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Judgment
K. Chandru, J.—Heard both sides.
The writ petition is filed challenging the order of the 2nd respondent dated 18.11.1999 as well as the 1st respondent''s orders dated
25.02.2000, 15.06.2000, 23.01.2002, 13.07.2002, 05.06.2003 and for a consequential direction to reinstate the petitioner in service as Soldier
(clerk) with all consequential benefits.
The writ petition was admitted on 08.09.2003 and in the application for interim direction to pay certain amounts due to the petitioner only notice
was ordered. A counter affidavit dated 16.07.2004 was filed by the respondents.
Subsequently the petitioner filed W.P.M.P. No. 25600 of 2004 seeking for a direction to the respondents to constitute a Medical Board to
seek a fresh opinion. This Court, by an order dated 18.01.2005 directed the petitioner''s case to be referred to a Medical Board to get a fresh
opinion regarding his fitness. Pursuant to the direction, petitioner''s case was referred to the opinion of the Medical Board.
The Medical Board, found that he was unfit for Army Service due to Hyperhidrosis Pitted Keratolysis. After the said report was submitted to
this Court, the petitioner filed an objection statement dated 01.082005. He also enclosed a medical certificate from a Government Doctor,
Perunthurai dated 18.07.2005, which reads as follows:
This is to certify, that Mr. M. Balasubbramani, aged 29 years has got scars due to old warts over left wrist and Hyperhidrosis and pitted
Keratolysis.
They are unrelated to each other.
Pitted Keratolysis is a simple skin disease which occurs over soles and which could be easily controlled by ointments like vaseline.
Hyperhidrosis is an entity, which every body could get in new environments and it is not a separate disease.
S/d
Dr. K.M. Sankaravadivelu, M.D., D.V.,
Professor and Head. Dept. of Skin
and Std. Perundurai Medical College
and Hospital, Perundurai.
By the impugned order dated 18.11.1999 the petitioner was informed by the 1st respondent, which reads as follows:
You have been invalided out of service by medical board wef 18 Nov., 1999 (FN/AN) being medically unfit. Credit balance, if any will be
remitted by AD Arty, Records, Nasik Road Camp as and when the accounts are finalised.
Further when the petitioner sent a representation for reconsidering their decision, the 1st respondent by an order dated 25.02.2000, informed
the petitioner, which is as follows:
You have been enrolled on 05 Jul 99 and invalided out from service on 19 Nov 99. As you have been declared unfit for Army Service by
Invaliding Medical Board, you cannot be reinstated.
Your disability has existed before enrolment and could not be detected. Hence your enrolment has been declared as fraudulent enrolment.
Period you served in the Army is required to be regularised by Govt of India and it takes considerable time. However, necessary action for final
settlement of your acct is being taken and you will be intimated as and when accts are finally settled.
When the petitioner made yet another representation dated 03.05.2001, he was informed by the respondents by a reply dated 15.06.2001,
which reads as follows:
Your case has been forwarded to PAO(OR) Artillery, Lekhanagar Nasik-9 for finalisation. PAO(OR) Artillery has objected that the disability for
which you have been invalided out from service was existed before your enrolment as indicated by Medical authority on page No. 3 of the
Invaliding Medical Board. The disability could not have been detected by the President of Medical Officer at the time of your enrolment. Hence
your case has been deemed as fraudulent enrolment and required to be regularised under the order of Govdernment of India. The case for
regularisation of infructuous expenditure incurred from the date of your enrolment to date of discharge/invalided out from service is being initiated
by AD Arty Centre, Nasik Road Camp, and this will take considerable time for finalisation.
Thereafter the petitioner sent further representation dated 12.06.2002, which was rejected by an order dated 13.07.2002. His final
representation dated 26.04.2003 was again rejected by an order dated 05.06.2003. The petitioner was corresponding for over 4 years on the
very same issue. The learned Counsel for the petitioner submitted that the action of the respondents was arbitrary and the latest medical certificate
produced from a Civilian Doctor shows that the ailment will not disqualify him from continuing in the respondent''s service.
In response to the said contention, the respondents have averred in paragraph 6 of the counter affidavit, which is as follows:
It is submitted that they are not superficial skin lesions as claimed by him in paragraphs 6 and 7. It is a recurrent lesion and may recur at any time,
which may lead to dissemination and involvement of other parts of the body also. As explained above persons with such diseases are a threat to
own life as well as other''s life through inept handling of arms and ammunitions. It is further submitted that the decision given by the competent
authority to invalid petitioner'' is treated as final. Assessment of disablement and acceptance of attributability/aggravation in cases of disabilities
other than injuries are medical issues. Views on such medical issues shall be given by the competent authority. No comments can be offered for his
approaching to Doctor in Civil Hospitals after his invalidment from service.
In the light of the defence taken by the respondents, the learned Counsel for the respondents also submitted that a judicial review over such
matters are clearly impermissible. In this context, the learned Counsel referred to an unreported Judgement of the Division Bench in the case of
R.Paramasivam v. Union and India in W.A. No. 3143 of 2004 dated 27.06.2005, where in identical circumstances this Court refused to judicially
review the order of the Government rejecting the claim for disability pension.
In the aforesaid case in paragraphs 3 and 4, the Division Bench had observed as follows:
This Court cannot sit as a Court of appeal over administrative decisions. The scope of judicial review of administrative decisions is very limited.
It is true that while prior to 1947 the Courts would not undertake judicial review of administrative decisions, but after the historical decision of the
House of Lords in the Wednesbury case Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 A L.R. 680 the law
was slightly changes and it was held that there can be judicial review of administrative decisions but that can only be done only on certain very
limited grounds, vide State of N.C.T. of Delhi v. Sanjeev AIR 2005 SC 2080. The Court cannot ordinarily sit in appeal over the decision of the
administrator, but can only look into the manner of reaching the said decision. In the present case, we cannot question the decision of the Medical
Board and we cannot sit in appeal over the same.
Our view get support from the decision of the Supreme Court in Union of India (UOI) and Another Vs. Baljit Singh, and the decision of the
Punjab and Haryana High Court in Gurdip Singh (retd.) Subedar (Rony Lt) v. Union of India 1997 (5) SLR 341.
The petitioner by virtue of the interim direction also had the benefit of a further review by the Medial Board and a fresh opinion was also
obtained. That opinion had gone against the petitioner''s contention.
However, the learned Counsel for the petitioner Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act (1 of 1995) (for short Disability Act) and contended that the respondents cannot discharge the petitioner on account of the
disability acquired by him since the said Act prohibits an employer from doing so. Further by placing reliance upon the Judgement of the Supeme
Court in Bhagwan Dass and Another Vs. Punjab State Electricity Board, , it was contended that he is entitled for reinstatement with all the other
attendant benefits.
In response to this argument, in the counter affidavit, in paragraph 12, it has been averred as follows:
...All categories of combatants of the Armed Forces are exempt from Section 47 of the Persons with Disability Act, 1995 as per notification dated
28 Mar, 2002.
The learned Counsel for the petitioner submitted that the exemption granted to the Armed Forces under the Disability Act came into force only
in March 2002 whereas the petitioner was discharged in November 1999 and that the exemption can only be prospective. The petitioner is entitled
to get protection u/s 47 of the Disability Act. This argument cannot be accepted because the exemption granted to the Armed force is to reiterate
the position that the Armed Forces are not covered by the Disability Act. Once the Disability Act does not apply to the Armed Forces, placing
reliance upon the decision of the Supreme Court does not advance the cause of the petitioner. In the light of the above, both contentions must fail.
In view of the binding precedents cited and the limited judicial review available to this Court, the writ petition will have to be necessarily
dismissed. All the miscellaneous petitions are closed. However, there will be no order as to costs.