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2006 DIGILAW 791 (GAU)

Ex. Sub. Jushim Uddin Mazumdar v. Union of India

2006-08-24

AMITAVA ROY

body2006
JUDGMENT Amitava Roy, J. 1. The challenge is to the order of Petitioner's discharge from service and the dismissal of his departmental appeal preferred against the same. 2. I have heard Mr. B.C. Das, Senior Advocate assisted by Mr. S.P. Bhattacharjee, advocate for the Petitioner and Mr. N. Bora, learned Central Govt. Counsel for the Respondents. 3. The facts in bare essential, necessary for the determination of the issue involved, are that the Petitioner was appointed as a sepoy clerk in the Indian Army on 31.01.1971 and in due course rose to the rank of Subedar Clerk. He was assessed to be in medical category, CEE (Temporary) for a period of six months with effect from 25.03.1994. 4. On a review of his physical state, the Medical Board on 30.09.1994 recommended the Petitioner for Medical category AYE. On 08.06.1995, the Medical Board of the concerned unit considered the Petitioner's case and placed him in low medical category CEE (Permanent) for a period of two years with effect from 08.06.1995. He was upgraded to Medical Category BEE (Permanent) w.e.f. 01.9.1998 for two years. The Petitioner, who was due to be superannuated from service on 31.12.1998, was therefore, denied extension because of poor health condition. He was accordingly discharged from service on completion of 50 years of service (sic) on 31.12.1998. Being aggrieved, the Petitioner preferred a departmental appeal on 27.01.1999, which was also rejected on 10.09.1999. Situated thus, the Petitioner has approached this Court. As is evident from the writ petition, the Petitioner has registered three grievances. Firstly, though in medical category BEE, the Petitioner being eligible for promotion as Subedar Major in September 1998, he was not considered by the DPC for the said purpose. Secondly, in terms of the Circular dated 21.09.1998, his case ought to have been assessed by the Screening board to ascertain the scope for upgradation of his medical category for consideration of his case of retention in service for two years. Thirdly, though, required under the Army order dated 3/89, the Petitioner was not examined by the Release Medical Board in advance and without under taking that exercise, was released on 05.01.1999. 5. Thirdly, though, required under the Army order dated 3/89, the Petitioner was not examined by the Release Medical Board in advance and without under taking that exercise, was released on 05.01.1999. 5. The Respondents in their counter have dismissed the above contentions as untenable, pleading that the Petitioner's case was duly considered by the DPC on 01.01.1998 for promotion to the post of Subedar Major along with other eligible candidates, but he failed to make his mark in merit and, therefore, was not recommended for promotion. The Respondents while, admitting that the Petitioner was covered by the circular dated 21.08.1998, have asserted that he having been categorized as Low Medical Category CEE (Permanent) for two years with effect from 08.06.1995 and thereafter as BEE (Permanent) also for two years with effect from 01.09.1998, he was denied extension. In their affidavit, the Respondents in categorical terms have averred that the Petitioner was produced before the Screening Board on 14.12.1998 and that the Released Medical Board also assembled on 31.12.1998 to assess his physical condition. According to the Respondents, in view in the change of the retirement policy, the Petitioner could not be presented before the medical board, six months prior to his due date of retirement in service. 6. Mr. Das, in the above state of pleadings, has urged that notwithstanding with Petitioner's categorization as BEE (Permanent) on 01.09.1998, keeping in view his impending retirement with effect from 31.12.1998, the Respondent authorities ought to have got him examined by the Screening Board earlier, so as to explore the possibility of upgradation in his medical category and determine the prospects of the extension of his service term. According to the learned senior counsel, the convening of the screening board on the eve of his retirement was only a matter of formality. Further the Release Medical Board, vis-a-vis, the Petitioner having been convened on 31.12.1998, his valuable right to be assessed for retention in service was unjustifiably denied. The Respondents having consciously contravened the mandates of the relevant administrative instructions, the Petitioner's discharge from service consequently is illegal, arbitrary and unconstitutional, he urged. 7. Mr. Further the Release Medical Board, vis-a-vis, the Petitioner having been convened on 31.12.1998, his valuable right to be assessed for retention in service was unjustifiably denied. The Respondents having consciously contravened the mandates of the relevant administrative instructions, the Petitioner's discharge from service consequently is illegal, arbitrary and unconstitutional, he urged. 7. Mr. Bora, in reply has contended that it being apparent the face of the records that the Petitioner had been categorized as BEE (Permanent) for a period of two years beyond his normal date of superannuation, there was no realistic prospect of his improving in physical condition and, therefore, the contentions raised, are untenable in law. Without prejudice to the above, Mr. Bora, has argued that as a matter of fact, the Petitioner was examined by the Screening as well as release Medical Boards on 14.12.1998 and 31.12.1998 respectively and no improvement in his physical condition having been noticed, the marginal delay in undertaking the exercise, did not vitiate the impugned decision and, therefore, no interference is called for. 8. The present scrutiny has been confined to the argued pleas. The parties, are one with regard to the sequence of events narrated hereinabove. Admittedly, the Petitioner was placed in category BEE (Permanent) for a period of two years with effect from 01.09.1998. The Petitioner does not dispute as well that he was presented before the Screening Medical Board and the Release Medical Board on 14.12.1998 and 31.12.1998 respectively. It is not his case either that on his examination by the said Boards, his medical category was found to have improved, justifying his retention in service. In terms of the guidelines for screening of Personnel Below Officer Rank (hereinafter for short referred to as the 'PBOR'), the individual concerned, for the purpose of retention beyond the normal term/tenure, should continue to remain in the medical category AYE with the rider that if he is in temporary low medical category at the time of screening, he would be allowed to continue in service. The Screening Board, is however, required to screen the permanent medical category PBOR with a view to assess his suitability for retention upto the enhanced service or age limit, provided there is ample opportunity for upgradation for his medical category by the subsequent recategorization medical board before the commencement of the enhanced service limit. The Screening Board, is however, required to screen the permanent medical category PBOR with a view to assess his suitability for retention upto the enhanced service or age limit, provided there is ample opportunity for upgradation for his medical category by the subsequent recategorization medical board before the commencement of the enhanced service limit. In such a case, a screening board can declare him fit conditionally, subject to his medical category being upgraded to the acceptable level before the expiry of his normal tenure. In terms of Army Order 3/89, the members of all ranks, are required to be medically examined by a medical officer prior to release, retirement, discharge on completion of the tenure of service period. It lays down that in the event of on individual being in low medical category or suffering from any disability, he would be brought before a medical board well in advance, so that the board proceedings are completed prior to his release from service. The order provides that the Release Medical Board can be held, in advance, six months from the date of release from service. It is the pleaded case of the Respondents in categorical terms that the Petitioner on being examined by the screening Board on 14.12.1998 was found to be in a low medical category and BEE (permanent) and thus physically unfit for extension. Having regard to the purpose of the scrutiny to be made by the Screening Board, as well as Release Medial Board i.e. to ascertain the physical fitness of an incumbent in service for his extension, the assessment made by the Screening Board as on 14.12.1998, in my view leaves no scope even to speculate that on 31.12.1998, the Petitioner's medical category could have improved to either AYE or Lower Medical Category (Temporary) justifying his retention in service in terms of the administrative guidelines. The plea based on delay on the part of the Respondent authorities in getting him examined by the Screening Board and the Release Medical Board, therefore, is not convincing I have carefully scrutinized the order of the departmental appellate authority. The reasons are based on records and are neither illogical non-national. 9. In view of the materials available on record, I do not see any cogent reason to interfere with the impugned decision in exercise of power under Article 226 of the Constitution of India. The reasons are based on records and are neither illogical non-national. 9. In view of the materials available on record, I do not see any cogent reason to interfere with the impugned decision in exercise of power under Article 226 of the Constitution of India. In the result, the petition fails being without any merit and is accordingly dismissed. No costs. Petition dismissed