Rakesh Kumar Yadav vs Uoi & Ors.
2009 Latest Caselaw 5067 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                       Judgment Reserved on: 27th November, 2009
                       Judgment Delivered on: 08th December, 2009


+                          W.P.(C) No.9097/2009

       RAKESH KUMAR YADAV               ....Petitioner
                Through: Mr.M.G.Kapoor, Advocate

                                 Versus

       UOI & ORS.                               ....Respondents
                 Through:       Mr.Anil Gautam, Advocate and
                                Dr.Amit Butola and
                                Dy.Commandant Yadunath Singh


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?       No

     3. Whether the judgment should be reported in the
        Digest?                                   No




PRADEEP NANDRAJOG, J.

1. The petitioner was selected as a Constable GD under

Border Security Force (BSF) and was posted at the 25 th Bn. He

was required to undergo training for 24 weeks and for which

he was sent to BTC, TC&S, BSF at Hazaribagh, Jharkhand as a

part of Batch No.112 where he commenced his training on

26.12.2005.

2. While undergoing training at Hazaribagh, the

petitioner was detected with viral hepatitis (in common

parlance jaundice). He was referred to the Composite Hospital

TC&S BSF Hazaribagh where he was admitted on 26.5.2006

and his condition not improving was sent to the specialized

hospital being Sadar Hospital Hazaribagh on 30.5.2006 from

where he was referred back at the Composite Hospital at

Hazaribagh on 2.6.2006 where he remained admitted till

4.7.2006 on which date he was discharged being certified fit.

3. Rejoining the training centre, the petitioner

complained of general weakness, yellow colouration of urine

and sclera. He was examined for a second time at the

Composite Hospital TC&S BSF Hazaribagh on 14.7.2006 where

he was admitted and remained hospitalized till 20.9.2006. His

condition was not improving and he was referred to RIMS

Ranchi on 20.9.2006 where he remained admitted till

30.9.2006 and on intensive examination was detected with

Hyperbilirubinemia (Gilbert‟s Syndrome). He remained off

training, but in the lines till 12.10.2006 on which date he was

re-hospitalized at the Composite Hospital TC&S BSF

Hazaribagh where he remained as a patient till 4.11.2006. He

was examined by various experts including a doctor from NRS

Medical College Kolkata namely Dr.Abhijit Choudhary who

confirmed that the petitioner was suffering from a genetic

infirmity resulting in Gilbert‟s Syndrome.

4. On 14.11.2006 a Medical Board was constituted to

assess the suitability of retaining the petitioner in service and

the Board gave an opinion that the petitioner was unfit to be

retained in service. On 14.2.2007 a notice tentatively

proposing to discharge the petitioner from service without

pensionary benefits was issued and served upon the petitioner

as per the mandate of Rule 13 of the BSF Rules 1969. The

petitioner was informed that if he was aggrieved by the

decision of the Medical Board he could file an appeal and seek

Review Medical Board to be constituted. The petitioner

submitted an appeal praying that a Review Medical Board be

constituted. The petitioner asserted that Gilbert‟s Syndrome is

not a disease i.e. was not a permanent ailment. The Review

Medical Board was constituted which examined the petitioner

on 14.11.2007 and opined that the petitioner is a case of

Congenital Hyperbilirubinemia (Gilbert‟s Syndrome); opining

the same to be a permanent ailment of which the petitioner

could not be cured, the Board recommended that the

petitioner was unfit. Subsequently, with effect from

31.12.2007, on ground of medical infirmity petitioner was

retired from service under Rule 25 of the BSF Rules 1969

without any pensionary benefits. The reason for not granting

any pension was that the petitioner was not even confirmed in

service. In fact, he had rendered no service. During training,

the medical infirmity of the petitioner was detected.

5. It is not in dispute that under Rule 25 of the BSF

Rules 1969, on the Commandant being satisfied that a person

enrolled in the BSF is unable to perform his duties by reason of

any physical disability, the person concerned may be brought

before a Medical Board and if the opinion of the Medical Board

is to the effect that the person concerned is physically

disabled, the person may be retired from service subject to the

right of the person concerned requiring his examination before

a Review Medical Board, under which circumstance, the

opinion of the Review Medical Board would prevail.

6. The writ petition was filed alleging that medical literature

shows that Genetic/Congenital Hyperbilirubinemia is not a

disease and does not affect a person‟s ability to work.

Opinions obtained by the petitioner from specialists to the

effect that notwithstanding suffering from Congenital

Hyperbilirubinemia, the petitioner is not prohibited from

physical activities, have been annexed with the writ petition.

With reference to the opinion of Dr.Abhijit Choudhary it is

asserted that even said doctor has categorically written „this is

not a disease‟. With reference to a certificate issued by the

doctor at the Base Hospital recording that this disease does

not prohibit physical activity, the petitioner asserts that under

circular dated 28.1.2003 it was indicated that physical

infirmities justifying retirement from service within the first

two years of employment were incurable diseases like Cancer,

HIV +, Mental Disability, Epilepsy etc. It was urged that the

said circular required the disease to be incurable as a

condition for retirement from service. In a nutshell, the

petitioner asserts that Congenital Hyperbilirubinemia (Gilbert‟s

Syndrome) is neither a disease, much less incurable.

7. What is Gilbert‟s Syndrome?

8. In 1907 Gilbert submitted a report pertaining to

patients of jaundice. Before Gilbert gave his report it was

known that the bile enzyme breaks down fat and that bile is

excreted by the liver. It was also known that liver filters

impurities and toxins. Where the liver was unable to

consistently process the yellowish brown pigment called

bilirubin it remains present in the blood. Chronic cases of

jaundice were found to be actually a Genetic/Congenital

infirmity inherited by birth. Gilbert noted that such persons

having an inherited abnormality which causes reduced

production of an enzyme involved in processing bilirubin. This

leads to high levels of unconjugated bilirubin in the blood

stream. This infirmity was called Gilbert Syndrome by the

experts in the field.

9. Further research was conducted which revealed

that this infirmity did not result in known and definite pattern

of resultant side effects on the human body. Conventionally

understood a disease is something which produces or triggers

other effects affecting the human body. For example, a simple

cough is not treated as a disease as it has no effect on the

body. Some people would call every de-stability of the body as

a disease but prefer to label those as having no affect on the

body as benign diseases. It was in this context of the debate

that many a literature refers to Gilbert‟s Syndrome as benign.

10. But, as tools of research were refined it came to be

noted that those who inherit Gilbert Syndrome may

sometimes, occasionally, commonly or frequently report

fatigue, tiredness, panic attacks, poor memory, depression,

irritability, loss of appetite, stomach pain and cramping,

abdominal pain, swollen lymph nodes and weight loss. In

other words, every person afflicted with Gilbert‟s Syndrome

may not show afore-noted symptoms with the same

frequency. For somebody it may be a case of occasionally

suffering from the resultant affect. For somebody it may be

more than occasionally but less than commonly i.e.

sometimes. For others it may be reported more than

sometimes but less than frequently i.e. commonly reported

and for some unfortunate ones it may be reported frequently.

11. The issue at hand required to be decided by

us is not whether Gilbert Syndrome is a disease. The rule in

question i.e. Rule 25 of the BSF Rules 1969 does not require

that the person concern has to be suffering from a disease.

The Rule states: "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 ...................". Thus, the issue which has to be posed

and answered is: whether the petitioner is unable to perform

his duties by reason of any physical disability. For facility of

reference Rule 25 of the Border Security Force Rules 1969

reads as under:-

"25. Retirement of subordinate officers 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 a 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), and order passed under sub-rule (3), shall not take effect till it is confirmed by such superior officer."

12. Whether or not Gilbert Syndrome should be treated

as a disease is a matter of debate amongst the experts in the

field for the reason those who suffer from Gilbert Syndrome do

not show a consistent pattern of resultant infirmity of the

body. Further, Gilbert Syndrome does not inhibit normal

functioning of a body. But, all scientists and experts in the

field commonly agree that Gilbert Syndrome is the result of a

genetic/congenital deformity inherited through parents. Thus,

generically speaking Gilbert Syndrome has to be treated as a

physical disability which may assume aggravated forms in

those who come in the category of „Frequently Reported

Cases‟ i.e. qua those on whom resultant effects as noted

above frequent reoccur.

13. Now, there is enough data to show that those who

suffer from Gilbert Syndrome resultantly get fatigue, tired,

have stomach pain and cramping etc. etc. It is obvious that if

these persons adopt a lifestyle which involves excessive

physical activity, they would be rendered unable to perform

their duties. Standard text on Gilbert Syndrome opines that:

the fact is that there is a striking degree of similarity in the

symptoms suffered by those with Gilbert's Syndrome, and

these symptoms can be incredibly disruptive to one's life.

Luckily, it is not life threatening. It is apparent that experts in

the field are unanimous that Gilbert Syndrome disrupts one‟s

normal life, though it is not life threatening.

14. As the saying goes, the proof of a pudding is in its

eating.

15. A resume of how the petitioner withstood his

training, as noted in paras 2 to 5 above shows that the

petitioner could not even undertake the training of 24 weeks.

Repeatedly, he had to be hospitalized. Being inducted as a

Constable under BSF it was obvious that the training program

required strenuous physical activity because the petitioner had

to be trained as a soldier. There is empirical evidence that the

petitioner is unsuitable for strenuous physical work and thus

cannot perform the duties of a soldier by reason of the

physical disability which repeatedly surfaces due to Gilbert

Syndrome. It need hardly be re-stated that Gilbert Syndrome

is a non-curable congenital-genetical defect as of today. May

be, as Science grows, a cure may be found later on.

16. Pertaining to the plea that the office circular dated

28.1.2003 indicates which diseases have to be treated as the

ones pursuant where to power under Rule 25 of the BSF Rules

1969 can be exercised, suffice would it be to state that the

same have been noted by us in para 6 and the same do not

show any genus relating to a specie and hence it cannot be

said that the expression „etc.‟ in the circular has to be read

ejusdem generis gathering the genus from the preceding

words to determine what would be the specie of the

expression „etc.‟.

17. That some of the doctors have opined that the

petitioner is fit for normal duties would mean the fitness

expected from a person undertaking normal activities and not

a person who has to perform physically strenuous duties.

Besides, what is the use of opinion and theories where there is

empirical data with reference to a fact. The empirical data,

which is a matter of fact, pertaining to the petitioner is

evidenced by his repeatedly falling sick and requiring to be

hospitalized resulting in his not even completing the 24 weeks

training. From 26.5.2006 till 4.11.2006 the petitioner

remained virtually hospitalized. Due to medication whenever

he was brought back to normal, soon thereafter the sickness

would resurface. It is apparent that as and when the petitioner

undertook a strenuous physical activity, Gilbert Syndrome

showed its effect requiring the petitioner to be re-hospitalized.

18. We are fully satisfied that the BSF Authorities have

acted within the mandate of Rule 25 of the BSF Rules 1969.

19. Since the petitioner could not even successfully

undergo the training and has rendered no service under BSF

having remained in employment for less than two years we

hold that the writ petition requires to be dismissed.

20. The writ petition is dismissed.

21. Noting that the petitioner is without a job we refrain

from imposing any cost.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE December 08, 2009 mm / Dharmender