Judgment:
Shrikant Tripathi, Member (J):
1. Heard Mr.T.R.Jagadeesh for the applicant and Mr. K.M. Jamaludeen for the respondents.
2. The applicant, Anu Sankar, Ex.Recruit No.15783489, claims his reinstatement in military service with all consequential benefits. Alternatively, he prayed for a direction to the respondents to appoint him as a civilian in the Army.
3. The applicant was enrolled in the Army on 3.9.2003. After completion of the basic training, he was invalided out of service on the recommendation of an Invaliding Medical Board. Consequently, he filed Writ Petition No.18017 of 2009 for disability pension in the High Court of Kerala at Ernakulam, which was transferred to this Bench and was registered here as T.A.No.145 of 2010. The Bench dismissed the said T.A. on merit on 24th February, 2012 on the ground that according to the opinion of the Medical Board, the disability was neither attributable to nor aggravated by the military service and was less than 20%. While dismissing the T.A., the Bench provided an opportunity to the applicant to challenge the opinion of the Medical Board before a Review Medical Board. Accordingly, he challenged the opinion of the Medical Board. Consequently he was examined by a Review Medical Board, which opined that the applicant had completely recovered from his primary disability.
4. After receiving the opinion of the Review Medical Board, the applicant moved the representation dated 10th October 2012 (Annexure A6), for reinstatement in service. The applicant's request for reinstatement was duly replied by Letter No. AAD/15783489Y/ Disch (RandD)/09/Med/03 NE dated 10th November, 2012 (Annexure A7), which is reproduced as follows:
â1. Ref your petition dated 10 Oct 12.
2. As per existing orders on the subject, you are supposed to report to your nearest ARO and apply for re-enrollment, alongwith medical documents, supporting your claim to be entirely free from the disability for which, you have been invalided. Further, you are supposed to be medically examined by Recruiting Medical Officer and if found fit, forward an application through the concerned Recruiting Office to the OIC Records, Army Air Defence to consider your case and issue of necessary directions to conduct re-medical examination and further re-enrollment please.â.
By the aforesaid letter, the applicant was required to appear before the nearest Army Recruiting Office for his re-enrolment. He was further informed that he was to be medically examined by the Recruiting Medical Officer at the time of the recruitment and if found fit, his case for re-enrolment could be considered. Accordingly, the applicant approached the Army Recruiting Office, Thiruvananathapuram, and they informed that they have no instructions from the Army Head Quarters and it was not possible to recruit the applicant to the Army. In view of this, he filed the instant O.A.
5. Mr.T.R.Jagadeesh, appearing for the applicant submitted that when the Review Medical Board ruled that whatever disability the applicant had at the time of discharge had come to an end, the applicant who had completed the basic training ought to have been reinstated on the post he had been holding at the time of his discharge. Alternatively, he submitted that in case it was not possible to reinstate the applicant to the service, he ought to have been considered for a suitable civil employment in the Army as per his academic qualifications.
6. Mr.K.M.Jamaludeen, on the other hand, submitted that after a gap of seven years, it was not possible to reinstate the applicant in the Army even if he recovered after the discharge from the disability. He however, did not dispute the claim for civil employment in the Army if duly selected and appointed. According to him, the applicant should have made a request for his civil employment in the Army, but he did not do so before filing the O.A.
7. The Medical Board which had examined the applicant before his discharge very clearly opined that the applicant had the disability âNon-Ossifying Fibroma Right Tibia Optdâ, which was assessed as 15-19%. The Review Medical Board nowhere overruled the opinion of the earlier Medical Board, and merely opined that the disability ceased to exist due to treatment and operation. Therefore, it could not be contended that the disability sustained by the applicant at the time of discharge had not been existing at that time. In our view, any subsequent change in the medical status of a person cannot be taken as a ground to provide him reinstatement in the Army service. Therefore, in our view, the claim for re-instatement in service does not appear to have any substance. Apart from the aforesaid, the physical fitness for the Army is one of the most essential requirements and it cannot be compromised in any way. When there is a gap of seven years it will also affect the performance of the person if re-inducted to the Army.
8. So far as the claim for civil employment, according to the academic qualifications of the applicant, who is said to be holding M.Sc. Degree, is concerned, the respondents shall give due consideration to this request and take suitable decision as early as possible. We therefore, direct the respondents to consider the applicant's claim for civil employment, and take appropriate decision thereon and communicate the same to him within four months from today.
9. With the aforesaid observations, the O.A. is disposed of.
10. There will be no order as to costs.
11. Issue free copy of this order to both side.