H.C. Kashinath Yadav vs Border Security Force And Anr.
2002 Latest Caselaw 1955 Del

JUDGMENT

Khan, J.

1. Petitioner has been retired from service on medical invalidation. He assails this and wants to be reinstated in service.

2. A Head Constable in the BSF, the petitioner was enrolled some time in 1970. He enjoyed High Medical Category "AYE" till 1995 when he was placed in Low Medical Category "CEE-T" for some mental depression. He remained in this till 1998 when he was upgraded to "BEE-T" category. He also claims that he was assessed fit by the private doctor at Amritsar and was also categorised "BEE-T" in the Annual Medical Examination of 25.3.2000 and as such was fit to be retained in service. But he was surprisingly issued a notice dated 28.4.2000 for retirement on medical invalidation on account of having been placed in low medical category "EEE" and was required to make a representation against this within 15 days from receipt of notice to DTG, Firozpur. The finding of the Medical Board was not, however, communicated to him and while the period for making representation had yet to expire, respondents had passed order dated 13.5.2000 to retire him from service. This, according to him, was violative of Rule 25 of BSF Rules and respondents' own annual medical examination report dated 25.3.2000 which had placed him in a higher category of "BEE" entitling him to be retained in service.

3. Respondents' stand is that petitioner was diagnosed as suffering from Schizophrenia Bipolar Disorder-I fro which he was treated and admitted in hospital on three occasions. He was eventually put before the Medical Board on 15.3.2000 which placed him in low medical category "EEE" and declared him unfit fro service. He was accordingly put on notice on 28.4.2000 which he received on the same day and was asked to make a representation within 15 days under Rule 25(4) which he failed to make till 12.5.2000. Consequently, order dated 13.5.2000 was passed to retire him from service on medical invalidation with pensionary benefits.

4. All that remained to be seen was whether petitioner was denied an opportunity to make a representation against his placement in the low medical category "EEE" and his retirement on medical invalidation under Rule 25 and whether his subsequent upgradation in the medical category "BEE" in annual medical examination entitled him to be retained in service.

Rule 25 of the BSF Rules reads -

"25. Retirement of subordinate officer and enrolled persons on grounds of physical unfitness.- (1) Where a Commandant is satisfied that a Subedar, a Sub-Inspector or an enrolled person is unable to perform his duties by reason of any physical disability, he may direct that the said Subedar, Sub-Inspector or the enrolled person, as the case may be, brought before a Medical Board.

(2) The medical Board shall be constituted in such manner as may be determined by the Director General.

(3) Where the said Subedar, Sub-Inspector or enrolled person is found by the Medical Board to be unfit for further service in the Force, the Inspector General, the DIG or, as the case may be, the Commandant may, if he agrees with the finding of the Medical Board, order the retirement of the Subedar, the Sub-Inspector, or as the case may be, the enrolled person.

Provided that before the said Subedar or Sub-Inspector or as the case may be, the enrolled person is so retired, the finding of the Medical Board and the decision to retire him shall be communicated to him.

(4) The Subedar, the Sub-Inspector or, as the case may be, the enrolled person may, within a period of fifteen days from the date of receipt of such communication make a representation to the officer next superior in command to the one who ordered the retirement.

(5) The said superior officer shall have the case referred to a Review Medical Board which shall be constituted in such manner as may be determined by the Director General.

(6) The superior officer may, having regard to the finding of the Review Medical Board, pass such order as he may deem fit.

(7) Where a representation has been made to a superior officer under Sub-rule (4), an order passed under Sub-rule (3), shall not take effect till it is confirmed by such superior officer."

5. This rule provides for retirement of subordinate officers and enrolled officers on grounds of physical unfitness and lays down that where a subordinate officer or an enrolled person was found unable to perform his duties by reason of any physical disability by the Commandant, he was to be brought before a Medical Board constituted by the Director General and if he was found unfit by the Board for further service, he was to be retired by the authority on acceptance of the findings of the Medical Board.

6. Sub-section 4 of this section allows such person to make a representation against this to the next superior officer within 15 days from receipt of such communication/notice on which his case is to be referred to a Review Medical Board to be followed by appropriate orders by the superior officer on the recommendations of the Board.

As would be seen from this, a junior officer or an enrolled person enjoys a right to make a representation against his placement in the low medical category and his retirement on medical invalidation within 15 days from the date of receipt of notice and in case he makes the requisite representation, his case is to be referred to a Review Medical Board by the superior officer. The rationale behind this seems to provide for a safeguard of a double check on the medical status of the person to eliminate the possibility of any doubt or error in it so as to ensure that he was not sent out of service for nothing.

7. Having said that, it does not appear to us that petitioner was denied the opportunity to make the representation under Rule 25(4) which would have entitled him to a second check by the Review Medical Board. Because it is not his case that he had made the requisite representation even till the last minute on 12.5.2000 or that he was preparing to do it even on 13.5.2000. His only plea is that respondents had not waited till 13.5.2000 and that they should have passed the order only on 14.5.2000. This, in our view, is only an attempt to catch at straws. Because the fact remained that petitioner had all the time to make the representation after receipt of notice on 28.4.2000 but which he had failed to do. The respondents were not obliged to wait for him endlessly and were entitled to conclude in the circumstances that he had accepted the finding of the Medical Board and did not want to seek any review. A day here and there becomes inconsequential in such a situation. Because the petitioner had at no stage shown any intention or action to indicate that he was in the process of making a representation or that respondents acted in hot-haste to close his option in the matter.

8. Petitioner's second plea must also fail because his unfitness for physical disability was to be ascertained by the duly constituted Medical Board under the Rules and not in a routine annual medical check-up to be conducted by the Unit doctor. The report of such a check-up would not, therefore, over-ride the findings of a duly constituted Medical Board under Rule 25 which were conclusive, if not challenged or opposed before the Review Medical Board and if not upset in the process.

This petition accordingly fails and is dismissed.