Gauhati High Court
WP(C)/2892/2024 on 30 January, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
GAHC010110682024
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
PRINCIPAL SEAT
W.P(C) NO. 2892/2024
Dipika Devi,
Age-21 years,
D/O Sri Ashok Kumar Singh
R/O Village-Solagaon, P.O.-Bokajan,
P.S.-Tezpur, District-Sonitpur, Assam,
PIN-784105
........Petitioner
-Versus-
1. The Union of India
Represented by the Ministry of Home Affairs, Govt.
of India, New Delhi, PIN-110001
2. The Director General, Border Security Force
(BSF), Block-10, CGO Complex, Lodhi Road, New
Delhi-110003
3. The Inspector General, Border Security Force,
Guwahati Frontier HQ., Patgaon, Guwahati-781017
4. The Deputy Inspector General (DIG), Border
Security Force, SHQ, BSF, Dhubri
5. The Commandant, 19th Bn. BSF, Dhubri, Panbari,
PIN 783339
........Respondents
-BEFORE-
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the petitioner :Mr. M.A. Islam, Advocate
Advocate for the respondents :Ms. B. Sarma, CGC
Date of Judgment & Order: : 30.01.2025
JUDGMENT AND ORDER
The petitioner before this Court was a Constable Mahila
(GD) in the Border Security Force, Sector Head Quarter (SHQ),
Dhubri. She was appointed in the said post vide appointment
order dated 22.11.2022. Pursuant to which the petitioner
joined in her services with effect from 21.12.2022.
2. After joining in her services, the petitioner developed
fever and cough and some skin rashes for which the petitioner
was admitted to the Dhubri Civil Hospital. But she was referred
by the Dhubri Civil Hospital to the Gauhati Medical College &
Hospital. Although the petitioner was admitted to the Gauhati
Medical College & Hospital, she took discharge from the
Gauhati Medical College & Hospital after two days of treatment
and was thereafter admitted in the Arya Hospital, Guwahati on
16.01.2023. She was discharged from the Arya Hospital under
discharge certificate dated 21.01.2023 as her conditions
improved. After her discharged from the Arya Hospital, the
petitioner reported to the Composite Hospital, BSF, Patgaon on
the same day and stayed there till 22.02.2023 and thereafter,
the petitioner reported for her normal duties under the 19 th
Bn., BSF, Dhubri, Panbari.
3. Pursuant to her joining in her unit, the Chief Medical
Officer, CAPF's, Composite Hospital, Patgaon by letter dated
28.03.2023 referred the petitioner to the Rheumatology
Department, GMCH for opinion on the fitness of the petitioner.
However, the opinion sought for by the BSF authorities from
the Rheumatology Department, GMCH was issued vide
certificate dated 08.08.2023 in plain paper, the same was not
accepted by the authorities. Thereafter, the head of the
Rheumatology Department, GMCH issued another certificate
dated 16.11.2023. The petitioner also consulted a Doctor of
the Rheumatology Department in the Apollo Clinic and a
certificate of fitness in respect of the petitioner was also issued
on 11.08.2023.
4. Inspite of the medical certificates issued by the
competent medical specialists that the petitioner is fit to carry
on her regular duties, she was served with a show cause
notice dated 03.11.2023 to the effect that the Medical Board
was held at the Composite Hospital, BSF, Patgaon on
09.08.2023 and upon examination of the petitioner, it was
found that she was not fit to be retained in service as she was
found to be suffering from Systematic Lupus Erythematosus
(SLE) and Hb-905 gm/dl and accordingly the petitioner was
proposed to be discharged from her service by the respondent
No. 4.
5. Upon receipt of the said show cause notice, the
petitioner requested vide her representation dated 16.11.2023
addressed to the I.G., FTR Hqr, BSF, Guwahati for a personal
hearing in the matter and also submitted her show cause reply
on 07.11.2023. In her reply, the petitioner stated that she
admits significant progress in her health conditions and in
terms of the medical certificates issued by the concerned
specialists, she was fit to continue her training and perform
her duties effectively and therefore she pleaded with the
respondent No. 4 for retaining the petitioner in service and to
undergo necessary medical tests if required in the future.
However, by the impugned order dated 14.05.2024 issued by
the Office of the DIG, Sector Hq, BSF, Dhubri, Panbari, Assam,
the petitioner was discharged from service with effect from
14.05.2024 under provisions of Rule 13 Appendix -I, Part-II
(Condition No. 2) of the BSF Rules, 1969 without any
pensionary benefits. It was ordered that she will be struck off
from the strength of the Head quarter with effect from
14.05.2024.
6. The learned counsel for the petitioner submits that this
medical board ought to have considered the opinions of the
concerned specialists namely Department of Rheumatology of
both Gauhati Medical College & Hospital as well as the Apollo
Clinic. However, without taking into consideration the opinions,
the petitioner was discharged from service on the basis of
medical board constituted by the departmental authorities. He
therefore submits that the medical board ought not to have
ignored the opinion of the specialists of the concerned
department and ought to have taken into account the
certificates granted before issuing the impugned order.
7. The affidavit in opposition has been filed by the
respondent department disputing the claims of the petitioner.
The learned CGC has submitted that the Review Medical Board
was conducted on 09.08.2023 and it was duly taken into
consideration the GMCH certificate dated 08.08.2023 issued a
plain paper. However, subsequent medical certificate issued on
11.08.2023 by the consultant doctor of Rheumatology
Department, Apollo Clinic and the head of the Rheumatology
department, GMCH on 16.11.2023 obtained by the petitioner
only after the Review Medical Board had considered and
passed the order. Therefore, in terms of the provisions of the
Act and the Rules, there is no infirmity in the order passed by
the Review Medical Board as the petitioner as on date in view
of her ailment has been found to be unfit for rendering
services as a Mahila Constable (GD) in the BSF. She has drawn
the attention of the Court to the opinion rendered in the
Review Medical Board to show that her medical condition
namely, Systematic Lupus Erythematosus (SLE) and Hb-905
gm/dl is found to be a chronic auto immune decease and not
curable. Therefore, in terms of the Rules, once the Review
Medical Board has arrived at a conclusion that because of her
medical condition she is not found to be fit to be retained in
service, the subsequent order of discharge has been issued.
She further submits that pursuant to her representation before
the IGP, respondent No. 3, her case was reconsidered and
consequent thereto it is the Review Medical Board which was
constituted and thereafter the Review Medical Board upon a
review of the entire matter arrived at a conclusion that the
medical condition presently suffered by the petitioner is not
curable and therefore she was not found to be fit to be
retained in service. It is submitted that the petitioner is yet to
undergo a basic training necessary and because of her
ailments she has not been undergo the training and therefore
she has not a regular employment of the BSF as on date.
8. The learned counsel for the parties have been heard.
Pleadings on record have been carefully perused. It is seen
that the petitioner is stated to be suffering from health
condition which is Systematic Lupus Erythematosus (SLE) and
Hb-905 gm/dl. In the writ petition, the certificates from the
Apollo Clinic as well as the GMCH have been enclosed which
the petitioner claims have not been considered by the
respondent authorities. The said contention however, is
disputed by the learned CGC.
9. From the pleadings available before the Court, it is seen
that the Medical Officer of Station CH-Patgaon on 28.03.2023
has referred the case of the petitioner to the Rheumatology
department GMCH. The opinion of the Rheumatology
Department, GMCH was sought for by the said reference
made. However, in the opinion of the Review Medical Board,
there is no discussion on the reference made by the Medical
Officer for an opinion to the Rheumatology department, GMCH
whether any opinion at all was received from the concerned
Rheumatology Department, GMCH and the same was placed
before the concerned authorities is also not clearly stated
before this Court while the petitioner submits that two
certificates from the GMCH Department was received and
submitted before the concerned authorities. The learned CGC
on the other hand disputes the said submission and submits
that the first certificate dated 08.08.2023 although issued in a
plain paper was considered by the Review Medical Board
whereas the second certificate issued on 16.11.2023 was
issued after the opinion of the Review Medical Board.
Therefore, the subsequent certificate issued after the order of
the Review Medical Board bears no relevance.
10. The opinion of the Review Medical Board which is
available in the affidavit in opposition filed by the respondents
shows that the Review Medical Board comprises of three
doctors. There is an opinion that the medical condition
suffered by the petitioner namely Systematic Lupus
Erythematosus (SLE) and Hb-905 gm/dl is a chronic auto
immune decease and not curable. This appears to be
contradictory in the opinion furnished by the Rheumatology
department, Gauhati Medical College wherein her activity has
been found to be under control and she is found to be
otherwise fit to pursue all physical activity and normal duties.
From the opinion of the Review Medical Board, it is not clear
on what materials the opinion have been arrived at by the
Review Medical Board that the medical condition suffered by
the petitioner is not curable and that she is not fit to be
retained in service. That apart there is no explanation as to
why the opinion sought for from the Rheumatology
department by the Medical Officer Station CH-Patgaon vide
reference form dated 28.03.2023 was not called for and/or
received by the respondent authorities. A copy of the revised
uniform guidelines for Review Medical Examination is CAPFs
and Assam Rifles have been placed before the Court by the
respondents counsel. Under the head "Guidelines for Review
Medical Board" the procedure required to be adopted by the
Review Medical Board has been prescribed. Clause (d) of the
said guideline is relevant for this purpose and the same is
extracted below:
"(d) Review Medical Board may obtain opinion of concerned
specialists or super specialists of Govt. Medical College and
Hospital in case of any doubt. Therefore, in cases of rejection
in review medical examination, clinical findings should be
corroborated with confirmatory tests/investigations/opinion
or specialists/ super specialists of Govt. Hospitals/Medical
Colleges/Govt. approved private medical centers, whichever
and wherever applicable."
11. A perusal of the above extracted clause shows that
opinions can be obtained of the concerned specialists or super
specialists of Government Medical College in case of any doubt
and in cases of rejection in the Review Medical Examination,
clinical findings should be corroborated with confirmatory
tests, investigations, opinions of specialists and super
specialists of Government Hospitals and Medical Colleges.
12. A plain reading of the above guidelines reveals that the
opinions or specialists or super specialists may be called for in
cases of doubts and where the cases are rejected by the
review medical examinations, clinical findings are to be
corroborated with confirmatory tests, investigations and/or
opinions of specialists or super specialists of Government
Hospitals Medical Colleges etc.
13. From the pleadings available before this Court, it seen
that there is no dispute that an opinion from the concerned
specialist was called for by the Medical Officer of CH-Patgaon
vide reference form dated 28.03.2023. It appears that there
was some doubt with regard to the capability of the petitioner
to undertake the regular duties in view of her medical
conditions for which an opinion was called for. This opinion
which is available as an Annexure to the writ petition given by
the head of the Department of Rheumatology, GMCH reflects
that the petitioner is found to be suitable for regular duty.
However, the Review Medical Board in its opinion has
concluded that the disease is incurable and therefore, the
petitioner is not suitable for retention in service. There is no
explanation as to why the Review Medical Board has arrived at
a conclusion contrary to the findings of the specialists. The
guidelines for the Review Medical Board clearly indicates that
cases of rejections must be duly corroborated with
confirmatory tests, investigations, opinions of the specialists or
super specialist of Government Hospital and Medical Colleges
and other approved medical centre etc. This is clearly not
discernable from the Review Medical Board opinion rejected
the case of the writ petitioner.
14. Under such circumstances, this Court is of the view that
this is a case which will require re-consideration by the Review
Medical Board by referring to all relevant materials including
opinions of any specialists as well as the confirmatory tests
and investigations as have been prescribed under the
guidelines to support their conclusions that the petitioner is
not to be retained in service because of medical conditions. It
is also seen that the Review Medical Board does not comprise
of the domain consultant or specialists, however, at this stage
since the matter is sought to be remanded back to the
respondent authorities, this Court does not wish to issue any
specific directions to that effect leaving the matter to be
decided by the authorities concerned as to whether a specialist
or a consultant on the subject should also be included in the
Review Medical Board.
15. Accordingly, the respondents are directed to forthwith
constitute a Review Medical Board for re-examination of the
case of the petitioner along with all relevant materials
including opinions of consultants as well as other confirmatory
tests and investigations and thereafter render its opinion. Any
such opinion which is rendered will prevail of her the opinion
render earlier by the Review Medical Board dated 09.08.2023.
The order of discharge shall be kept on hold till the matter is
re-decided by the Review Medical Board and depending on
such opinion as may be arrived at by the Review Medical
Board as directed within the period prescribed, the further
consequential orders as may be necessary will be passed by
the respondent authorities. The Review Medical Board be
constituted within a period of two weeks from the date of
receipt of certified copy of this order. The Board will thereafter
examine the case of the petitioner as directed above and
thereafter pass appropriate orders within a period of further
three days. In the event the petitioner is found to be suitable
to be retained in service, the impugned order of discharge
shall be withdrawn accordingly and the petitioner will be
retained in service without consequential benefits.
16. Since on the facts and circumstances of the case, this
Court considers it appropriate to remand the matter back to
the respondent authorities for a fresh decision by the Review
Medical Board, the Judgments referred to by the writ
petitioner are not discussed at this stage.
17. With the above direction, the writ petition stands
disposed of.
JUDGE
Comparing Assistant
