Jonu Tiwari v. Union of India Ors

RAJIV SAHAI ENDLAW, J.

ASHA MENON, J. AUGUST 06, 2020 'gsr'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th August, 2020 + JONU TIWARI .... PETITIONER Through: Mr. Vikas Kochar & Mr. O.P. Bhadani, Advs. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. Nirvikar Verma, Adv. along with Wing Commander B. Mishra. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON'BLE MS. JUSTICE ASHA MENON [VIA VIDEO CONFERENCING] JUSTICE RAJIV SAHAI ENDLAW 1. The petitioner, a candidate for recruitment as Airmen in Group 'X' and 'Y' category of the respondents Indian Air Force (IAF) and having been found unfit by the Medical Board as well as the Appeal Medical Board, on account of "Varicocele (Left)", has filed this petition, (i) for a direction to the respondents IAF to produce complete record of the case; (ii) seeking quashing of the findings dated 10th January, 2020 of the Medical Board and dated 5th February, 2020 of the Appeal Medical Board; (iii) seeking mandamus to the respondents IAF to conduct re-medical examination of the petitioner at any designated military hospital; and, (iv) seeking mandamus for selection of the petitioner as Airmen, if found medically fit. 2. The petition came up first before this Court on 23rd July, 2020, when it was the plea / contention of the plaintiff that, (i) the Appeal Medical Board did not even medically examine him; (ii) the decision of the Appeal Medical Board was not informed to him; (iii) he had undergone a surgical procedure between examination by the Medical Board and Appeal Medical Board, for correction of the 'Varicocele' but the impact thereof has not been assessed; (iv) even the Manual of Medical Examinations and Medical Boards (IAP 4303 of September 2010, 4th Edition), in Para 4.3.18 thereof states that slight degree of 'Varicocele' should be accepted; (v) no assessment of the degree of 'Varicocele' has been done; and, (vi) else, the petitioner is meritorious, having been placed at Serial No.86 in the merit list comprising of 4382 candidates. 3. In view of the aforesaid contentions, vide order dated 23rd July, 2020, the counsel for the respondents IAF, appearing on advance notice, was directed to produce before us the record of the Medical Board as well as of the Appeal Medical Board qua the petitioner, including the medical tests, if any, carried out and the degree of 'Varicocele' if any assessed, which the petitioner was found suffering from. The counsel for the respondents IAF was also directed to inform, whether the impact of surgery claimed to have been undertaken by the petitioner before being examined by the Appeal Medical Board was considered by the Appeal Medical Board. 4. In compliance of the above, the counsel for the respondents IAF has filed before this Court documents pertaining to the primary medical examination as well as appeal medical examination of the petitioner together with the letter dated 29th July, 2020 issued by the Medical Advisor, Medical Wing, Central Airmen Selection Board and the relevant extract of the Manual of Medical Examinations and Medical Boards, IAP 4303, (4th Edition : September 2010). 5. The counsel for the petitioner, when first appeared before us today, stated that copies of the documents filed before us had not been supplied to him. The matter, on the request of the counsel for the petitioner, was passed over with direction to the counsel for the respondents IAF to supply all the said documents to the counsel for the petitioner. Though on passover, the counsel for the petitioner complained that the copy of the letter dated 29th July, 2020 of the Medical Advisor, Medical Wing, Central Airmen Selection Board had not been supplied to him but we verbally informed the contents to the counsel for the petitioner and have heard the counsels. 6. The counsel for the petitioner, at the outset has contended that the respondents IAF have not complied with the part of the earlier order dated 23rd July, 2020 requiring the respondents IAF to place before us the medical tests if any carried out and the d