The absence of clear guidelines indicating the refusal of a person to be examined by an Appeal Medical Board after being declared medically unfit by a specialist in a Review Medical Board.

JUDGMENT :

1. Heard Mr. R. Deka, learned counsel for the petitioner. Also head Ms. A. Gayan, learned CGC for the respondents.

2. The petitioner participated in an advertisement published in the website of the Indian Army in the month of May, 2015, by which the applications were invited from male candidates of Kamrup (M), Kamrup (R), Nalbari, Baksa, Darrang and Udalguri districts for filling up of vacancies of Solider General Duty.

3. In the selection process, the petitioner underwent re-medical on 7.12.2015 but was declared temporarily unfit by the Recruiting Medical Officer with the diagnosis ‘Lt Corneal Opacity’. The Recruiting Medical Officer referred the petitioner to 151 Base Hospital for review by eye specialist on 7.12.2015 and the specialist had also declared the petitioner unfit with the observation ‘Central Corneal Opacities (Lt)’.

4. According to the respondents as the petitioner was declared medically unfit, he could not be allowed to join Indian Army as per the policy on the subject inasmuch as the person recruited ought to be medically acceptable to the authorities.

5. The grievance raised by the petitioner in this writ petition is that the petitioner was not subjected to an Appeal Medical Board. In this respect we take note of the averments made in the paragraph 9 of affidavit of the respondents wherein it is stated that the petitioner also has an opportunity for being subjected to an Appeal Medical Board, under the rules.

6. The respondents refused the petitioner to be subjected to an Appeal Medical Board by taking a stand that as the petitioner was medically declared unfit by a specialist, therefore, he cannot be subjected to an Appeal Medical Board any further.

7. In the circumstance, we required the respondents to produce the relevant guidelines which may provide that once a specialist declares a person to be medically unfit, there is no further scope of being subjected to an Appeal Medical Board.

8. In response thereof, the respondents refer to the averments made in paragraph 11 of the affidavit, which is extracted as below:

“11. That as per ‘RECRUITMENT DIRECTIVE FOR RECRUITMENT OF JUNIOR COMMISSIONED OFFICERS AND OTHER RANKS, 2014, a candidate has no right for further review/re-medical after review at Military Hospital (Copy attached as Appendix BB). Further as per MANUAL ON MEDICAL EXAMINATION AND MEDICAL STANDARDS FOR VARIOUS ENTRIES INTO ARMY TRG ACADEMIES AND MILITARY SCHOOLS, the decision of appeal medical hoard examination will be final.”

9. A reading of the afore-extracted paragraph 11 of the affidavit makes it discernible that the decision of the Appeal Medical Board examination will be final meaning thereby that no indication is available that if the specialist declares a person to be medically unfit in a Review Medical Board, the person concerned would not be subjected to the Appeal Medical Board. Reference is also made to clause 248 of the Recruitment Directive for Recruitment’ of Junior Commissioned Officers and Other Ranks, 2014, which, inter alia, provides as extracted:

“248. After the review at the Appeal Medical Board, the candidate will have on right for further review re-medical. All candidates “who are found unfit by team of MOs and SRMO and endorsed unfit by specialist at designated hospitals will be debarred from participation in future rallies.”

10. A reading of the clause 248 makes it discernable that after a review by the Appeal Medical Board, the candidate will have no further right of any review/re-medical. The clause further provides that all the candidates who are found medically unfit by a team of MOs and SRMOs and endorsed unfit by specialist at designated hospitals would be debarred from participation in future rallies.

11. The said clause also in nowhere indicates that once a specialist declares a person to be medically unfit in a Review Medical Board, the further opportunity of being subjected to an Appeal Medical Board is absent. In fact, clause 248 provides that an opinion rendered b