Doma Yadav vs Union Of India & Ors.
2017 Latest Caselaw 4235 Del

7

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       WP(C) No.8392/2016 & CM No.34714/2016

                                     Date of decision: 18th August, 2017


      DOMA YADAV                                     ..... Petitioner
                        Through:    Mr.Arun Srivastava, Adv.

                        versus

      UNION OF INDIA & ORS.                          ..... Respondents
                    Through:        Mr.G.Tushar Rao and Mr.Mukesh
                                    Sharma, Advs.


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE NAVIN CHAWLA


      SANJIV KHANNA, J. (Oral)

Doma Yadav in the writ petition seeks quashing of the order dated

03.08.2016 discharging him from Border Security Force (BSF in short).

He also prays for directions to the respondents to pay Seema Prahari

Beema Yojna claim (in short SPBY Claim) and disability pension.

WP(C) 8392/2016 Page 1

2. The respondents have paid the amount due under the SPBY Claim.

To this extent the writ petition is rendered infructuous.

3. Further, arguments have not been addressed on the claim for

disability pension.

4. Grievance of the petitioner is against the boarding out order on

account of low medical category. The petitioner claims violation of

paragraph 'e' of the circular No.Med Dte. L/No.13/19/80-CMO/BSF

dated 02.03.1981. This clause stipulates that all cases of permanent low

medical category, would be reviewed immediately or on completion of

two years permanent low medical category whichever is later and those

who cannot be upgraded should be invalidated out of service.

5. In order to appreciate the aforesaid contention, we would like to

reproduce the circular dated 02.03.1981, which reads:

Disposal of Permanent Low Medical Category Personnel (vide Med Dte.L/No.13/19/80-CMO/BSF dated 2nd March 1981) A large number of permanent low medical category personnel are serving in the Force. Being in permanent low medical category, these personnel have outlived their usefulness in the Force. With a view to lay down a rational policy for retention/invalidation of such personnel without being harsh to those personnel it has been decided to lay down the following guidelines for their retention/disposal in the Force:-

WP(C) 8392/2016 Page 2 "(a) All GOs who are in permanent low medical category be retained in service till the age of superannuation.

(b) All those personnel with less than 10 years of service be retained till they completed 10 years of service irrespective of whether their disability is attributable or not to service.

(c) All mine blast injuries or amputated cases whose disability is attributable to service should be retained till they complete 20 years of service/date of superannuation whichever is earlier. They should be encouraged to go on voluntary retirement and avail 5 years benefit for pension on completion of 20 years of service.

(d) Any other deserving person on the merit who may seek retention after invalidation.

(e) All other cases of permanent law medical personnel be reviewed immediately or on completion of 2 years of being permanent law medical category whichever is later and those who cannot be upgraded should be invalided out of service."

6. The opening paragraph of the circular states that a large number of

permanent low medical category personnel were serving in the Force.

These personnel in permanent low medical category have outlived their

usefulness in the Force. With a view to lay down a rational policy for

retention/invalidation of such personnel without being harsh, it has been

decided to lay down the guidelines for their retention/invalidation in the

Force. Thereafter, specific guidelines and parameters have been fixed.

WP(C) 8392/2016 Page 3

7. Clause 'a' of the said circular is not applicable to the petitioner as

he is not a Gazetted Officer. Clauses 'b & c' are also not applicable. The

petitioner in fact has relied upon Clause 'e'. We do not think that the case

of the petitioner is covered under Clause 'e' which stipulates that all cases

of permanent low medical personnel as on 02.03.1981 will be reviewed

immediately or on completion of 2 years of being permanent low medical

category whichever is later and those who cannot be upgraded should be

invalided out of service. The reasons for our conclusion are recorded

below.

8. The petitioner had joined BSF on 01.03.1989 as Constable. On

06.09.2012, the petitioner while on earned leave had suffered traumatic

fracture of D-12 Vertebra, due to fall from the roof of his residential house

in village Kripa patti, in Uttar Pradesh. As a consequence, the petitioner

suffered paraplegia with bowel and bladder involvement. The petitioner

was first treated at BSF Hospital, R.K.Puram, New Delhi and then

referred to AIIMS Trauma Centre, where he was operated. Certificate

dated 17.09.2013, declares the petitioner as physically handicapped with

100% temporary physical impairment in relation to his both lower

WP(C) 8392/2016 Page 4 extremity. The condition it was recorded was likely to change and

reassessment was recommended after two years.

9. The condition of the petitioner did not in the two years undergo

much change. The petitioner is still suffering from paraplegia of the lower

limbs and incontinence of bowel and bladder. This is clear from not one

but from various medical certificates placed on record.

10. Counsel for the petitioner, however, relies upon medical certificate

issued by the District Hospital, Gwalior, M.P. dated 05.08.2014. This

certificate records the petitioner's disability as 60%. Thus, it is pleaded

that the certificate would establish improvement. We would not agree.

The fact of the matter is that the petitioner in the photograph in the

certificate can be seen sitting on the wheel chair. The certificate did not

specify whether the disability was permanent or temporary.

11. The medical board after considering the petitioner's physical

condition and health, vide certificate dated 9th February, 2016, had

declared the petitioner as unfit. They have opined that the physical

disability of the petitioner is permanent. The percentage of disability is

100%.

WP(C) 8392/2016 Page 5

12. The petitioner has been in the same position since he suffered from

the said accident on 16th September, 2012. The impugned order

invalidating the petitioner was passed after nearly four years on 3rd

August, 2016. The petitioner was admittedly under treatment in different

hospitals all along.

13. The respondents have relied on instructions for medical

examination and classification of personnel service in the Central Para-

Military Forces issued by the Ministry of Home Affairs dated 31.07.2007.

Paragraph 2 states that this order supersedes all existing instructions on

the subject. The respondents, therefore, submit that circular dated 2nd

March, 1981 would not apply. The instructions is divided in different

parts. Paragraph 9 of the said instruction states that temporary

classification will be permissible for a maximum period of 24 weeks. If

an individual requires observation beyond permissible period, he has to be

placed in permanent low medical category, except in 'S' factor cases

where the provision of paragraph 10 apply. The opinion given by the

specialist for review in case of temporary classification is valid for the

period of three months only. This being the position, we do not think that

the petitioner can challenge, the invalidation order on the ground that it

WP(C) 8392/2016 Page 6 has been passed contrary to the procedure prescribed by law i.e. the

instruction or it has been passed in haste and hurry without following the

procedure fixed under the guidelines.

14. Another contention raised in the petition pertains to the competence

and authority of Dr.S.K.Srivastava, IG (MED)/MED Supdt., who had

signed the discharge order. It is highlighted that earlier order dated 19th

July, 2016 passed by the same officer was withdrawn, after the petitioner

had preferred writ petition WP(C) 6496/2016. The assertion was that

Dr.S.K.Srivastava as IG was not competent to direct discharge. The order

dated 3rd August, 2016 under challenge, however, records that the same

was issued after approval of the ADG/Director, BSF Academy, Tekanpur.

The fault and defect noticed in the earlier order dated 19th July, 2016,

which was the subject matter of challenge in WP (C) 6496/2016 has been

rectified. The order dated 3rd August, 2016, does not suffer from the same

vice and defect. It is valid.

15. Though, we are dismissing the writ petition, we would like to refer

to the order passed in another writ petition WP (C) 1252/2013, Rati Ram

v. Union of India & Ors., decided on 18.03.2016. The relevant portion of

said order reads as under:

WP(C) 8392/2016 Page 7 "There is no doubt that the BSF does not have a disability related rehabilitation policy. It is also a fact that the Persons With Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 does not apply to the para-military forces. The blind uniformity of treatment in seeing injured members of the Force out of the service, as a general policy (by encouraging them to seek voluntary retirement after 20 years) would rob individual members of a fair chance to continue in the BSF, having regard to the experience gained in other work, which is not field or combat related. A force as large as the BSF-with over 2.5 lakh personnel would have a significant administrative and support staff component where these injured personnel can be assessed for work."

In Rati Ram (supra), the fact position was different as the petitioner

therein had suffered grievous injury in a mine blast. Different parameter

had to be applied to the said case.

16. Nevertheless, we would call upon the respondents to examine and

consider whether petitioner can be given any vocational training so that he

can continue to maintain the financial status which he was enjoying before

invalidation. Learned counsel for the petitioner states that the children of

the petitioner may apply on compassionate ground. If any application is

filed, the same be considered as per law.

WP(C) 8392/2016 Page 8

17. With the aforesaid observation, the writ petition is dismissed with

no order as to cost.

                                                  SANJIV KHANNA, J


                                                  NAVIN CHAWLA, J
AUGUST 18, 2017/vp




WP(C) 8392/2016                                                 Page 9