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2012 DIGILAW 1720 (JHR)

Ram Chander Pandey v. Union of India

2012-12-12

APARESH KUMAR SINGH

body2012
Judgment : I.A. No. 2897 of 2006, I.A. No. 1950 of 2007 Petitioner has sought to challenge the order dated 13.10.2006 issued by respondent no. 3, the Deputy Inspector General of BSF, 99 APO, Meru Camp, Hazaribagh whereby the petitioner has been compulsorily retired from service. In the instant writ application, the petitioner had come for quashing the order no. 17161 dated 5.8.2006 by which he had been declared medically unfit for further service in the Border Security Force; During the pendency of the writ application, the order dated 13.10.2006 has been passed, compulsorily retiring him, which has been sought to be incorporated by way of amendment in the present Interlocutory Application. Since, the impugned order appears to be a consequence of the original order dated 5.8.2006 assailed in the writ application originally, the I.A. No. 2897 of 2006 is allowed and the petitioner is permitted to incorporate the prayer in the main writ application. Interlocutory Application No. 2897 of 2006 is treated to be a part of the record. 2. Accordingly, I.A. No. 2897 of 2006 and I. A. No. 1950 of 2007 stand disposed of. W.P.(S) No. 5560 of 2006 3. Heard learned counsel for the parties. 4. This writ petition has been preferred for quashing the order no. 17161 dated 5.8.2006 (Annexure-12) passed by the respondent no. 3, the Deputy Inspector General of BSF, 99 APO, Meru Camp, Hazaribagh whereby the petitioner has been declared medically unfit for further service in the Border Security Force. The petitioner has also sought for quashing the consequent order dated 13.10.2006 by which petitioner has been compulsorily retired from service, which has been permitted to be incorporated in the main writ petition pursuant to the prayer made in the I.A. No. 2897 of 2006. 5. The short facts of this case, according to the petitioner, are that he was appointed in the Border Security Force and was engaged in combat operation in the extremists affected Kashmir Valley in the first week of May 1995 where he sustained injuries on account of Bomb blast on 4.4.1995. The petitioner was immediately referred to All India Institute of Medical Science (in Short AIIMS), New Delhi by the Director General, BSF Hospital, New Delhi vide reference dated 6.5.1995 (Annexure-1). The authorities of the AIIMS, New Delhi had assessed him to be disabled to the extent of 60% vide Annexure-4 dated 8.1.1996. The petitioner was immediately referred to All India Institute of Medical Science (in Short AIIMS), New Delhi by the Director General, BSF Hospital, New Delhi vide reference dated 6.5.1995 (Annexure-1). The authorities of the AIIMS, New Delhi had assessed him to be disabled to the extent of 60% vide Annexure-4 dated 8.1.1996. Vide movement order dated 5.8.1997, the petitioner was transferred from 25th Battalion of Border Security Force to Training Centre and School, BSF, Hazaribagh where he was given sedentary duties to discharge i.e. the work as messenger in the Hospital and also in the public call office. Subsequently, on 22.8.2001 (Annexure-6), the petitioner was examined by the Medical Board, B.S.F. at Training Centre and School, Hazaribagh and assessed him suffering from disability to the extent of 60%. The petitioner relies on certificate dated 22.9.03 issued by the authorities of the Training Centre and School, Hazaribagh. The Medical Board has diagonsed him as a case of splinter injury on the face and other major injury to the mandible and declared him as suffering from 60% disability. The petitioner has since been employed/engaged by the respondents in sedentary duties at Public Call Office and Messenger in the Hospital of BSF, Meru Camp, Hazaribagh where he has been discharging his duties satisfactorily without any complaint from his superiors. The petitioner was subsequently examined by the Medical Board and vide order dated 6.1.2004 (Annexure-8), he was placed under low medical category for two years. In the meantime, the petitioner was transferred to B.S.F. Hospital at Kolkata, however, the said order has been revoked on the ground that the petitioner had assailed the order dated 24.1.2006 in W.P.(S) No.1574 of 2006. The petitioner was again directed to appear before the Medical Board at Hazaribagh against which he has made protest that he was made to sign forcibly on the medical report furnished by the Medical Board on 5.6.2006 said to have been held on 8.6.2006. The Medical Board declared the petitioner unfit and recommended that his services can be dispensed with. The petitioner protested against the same by making representation before the Director General, BSF, Hazaribagh but he has never responded in respect of the same. The Medical Board declared the petitioner unfit and recommended that his services can be dispensed with. The petitioner protested against the same by making representation before the Director General, BSF, Hazaribagh but he has never responded in respect of the same. The petitioner also alleges that as per Rule 25 of the Border Security Force Rules, 1969, the opinion of the Medical Board ought to have been furnished to the employee before taking any decision and acting upon the same. The petitioner has subsequently been retired on 13.10.2006. 6. The petitioner has assailed the impugned actions and orders of the respondents mainly on the following grounds:- 1. For injuries sustained on 1.4.1995 during the combat operations while dealing with extremists in the Kashmir Valley, the petitioner sustained injuries and was assessed as suffering from 60% disability by the authorities of the AIIMS, New Delhi in the year 1996 and was granted sedentary duty for which he was transferred to Hazaribagh in 1997. Even in the year 2001, the Medical Board of the respondent-BSF found him suffering from the same extent of medical disability and further respondents issued certificate (Annexure-7) dated 22.9.2003 to that effect that he was suffering with same disability. Further, he was found to be discharging his duties on sedentary post as a messenger in the Hospital at Meru Camp, Hazaribagh and also in the Public Call Office. These consistent facts show that he was suffering from the same medical disability to the extent of 60% found on regular medical examinations which he sustained due to injuries at the time of combat operations. The respondent had no occasion to re-examine the petitioner again and again and even on re-examination when he was found suffering from the same disability as in the year 2004, there was (sic-no?) occasion for them to declare him medically unfit. 2. The petitioner has also relied upon the provisions of Section 47 of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 and submits that no establishment shall dispense with or reduce in rank, an employee, who acquires a disability during his service. The provisions thereof also indicates that if an employee, after acquiring disability is not suitable for the post he was holding he could be shifted to some other post with the same pay scale and service benefits. The provisions thereof also indicates that if an employee, after acquiring disability is not suitable for the post he was holding he could be shifted to some other post with the same pay scale and service benefits. Counsel for the petitioner has submitted that although the organization has been exempted by the notification issued by the Ministry of Social, Justice and Empowerment vide notification dated 10.9.2002, the same notification cannot be said to be with retrospective effect to disentitle the benefits, which were already granted to the petitioner under the said Act after sustaining injuries leading to 60% disablement during the combat operation. Counsel for the petitioner relied upon the judgment rendered by a Single Bench of this court in the case of Bhola Kumar Jha Vs. Union of India & Ors. in W.P.(S) No. 3199 of 2006, Reported in 2011(4) JLJR 223 vide judgment dated 29.7.2011, which according to the petitioner, has been rendered in similar circumstances by quashing the order of the respondent by which the said petitioner was also a member of the BSF, who was forced to retire from service on the alleged ground of physical unfitness. Learned counsel for the petitioner submits that judgment was upheld in Letters Patent Appeal being LPA No.345 of 2011, which was preferred by the respondent-Union of India and dismissed by the Division Bench of this Court vide order dated 31.10.2012. Counsel for the petitioner also relied upon the judgment in the case of Upendra Kumar @ Upendra Kumar Singh vs. The Union of India & Ors. passed in LPA No. 277 of 2011 vide judgment dated 17.4.2012 wherein even in case of low medical category, the respondents were directed to consider the case of promotion of the said petitioner also, taking into regard Section 47 of the Disabilities Act, 1995. Learned counsel for the petitioner has also relied upon another judgment in the case of Sailendra Singh vs. Union of India & Ors. in LPA No. 415 of 2008, Reported in 2009(2) JLJR 355 , wherein interim order was passed in LPA No. 415 of 2008 whereby the order of termination of the person concerned, who is constable in BSF, has been stayed when he was sought to be removed because of injuries sustained in terrorist operation in the State of Jammu & Kashmir. 7. The respondent-Union of India has appeared and filed counter-affidavit. 7. The respondent-Union of India has appeared and filed counter-affidavit. Learned counsel for the respondents-Union of India has vehemently argued that the person, who has suffered more than 40% disability is liable to be separated from the organization. and is not entitled to the protection of Disabilities Act, 1995, in view of exemption notification dated 10.9.2002, which operates in respect of the respondents-BSF: organization as well. Learned counsel for the respondents submits that the petitioner cannot claim protection under Section 47 of Disabilities Act, 1995 and even this question was answered in favour of the respondent-BSF organization in the case of Daroga Yadav vs. Union of India & Ors. reported in 2006(2) JCR 353 (Jhr) [ : 2006(2) JLJR 310 ]. Learned counsel for the respondents relied upon the aforesaid judgments and submits that the Division Bench of this court had held that the contention of the said petitioner that the notification of exemption is with prospective effect was not sustained as according to the learned court, the said petitioner was never allowed the benefit like extension of service. 8. Heard learned counsel for the parties at length and gone through the materials on record. From the facts narrated hereinabove, which are not in dispute, it is apparent that rile petitioner suffered injuries on 4.4.1995 during combat operation in Kashmir Valley while he was working in the respondent's organization BSF. The petitioner was, thereafter, treated at AIIMS, New Delhi on the reference made by the Director General, BSF Hospital, New Delhi and authorities of AIIMS assessed the disability to the extent bf 60% in the year 1996 itself. It appears that on the ground of such disabilities due to the injuries sustained by him, the present petitioner was posted in 25th Battalion of BSF and thereafter, was transferred to the Training Centre and School, BSF, Meru Camp, Hazaribagh in order to discharge sedentary duty at Public Call Office and as messenger in the Hospital in the Meru Camp, of BSF in 1997 itself. In the year 2001 again, the petitioner was assessed by the Medical Board and was found suffering to the same extent of disability of 60%. In the year 2001 again, the petitioner was assessed by the Medical Board and was found suffering to the same extent of disability of 60%. In fact, in the year 2003, the certificate was issued by the authorities of the Training Centre and School, BSF, Meru Camp, Hazaribagh (Annexure-7) showing the description of his injuries as Splinter injuries on the face and fracture of mandible to the extent of 60%. The said certificate also• reflects that the authorities found him discharging his duty satisfactorily as attached to the Public Call Office and further duties as Messenger in Hospital of BSF at Meru Camp, Hazaribagh. It was also recommended that his services can gainfully be utilized by the force by employing him in sedentary duty. From the aforesaid facts, it appears that after coming into force of Disabilities Act, 1995, the petitioner enjoyed the benefit of the protection granted under Section 47 of the said Act, which is• quoted hereinbelow:- "47. Non-discrimination in Government employment.—(1) No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supplementary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." 9. The exemption of the BSF organization from the rigours of the said Act under the proviso of the said Section 47 was issued vide notification dated 10.9.2002 by the Ministry of Social, Justice and Empowerment. The exemption of the BSF organization from the rigours of the said Act under the proviso of the said Section 47 was issued vide notification dated 10.9.2002 by the Ministry of Social, Justice and Empowerment. The argument of the respondents, relying upon the judgment in the case of Daroga Yadav (supra), that notification will have retrospective application of the Act or not, is perhaps not in issue in the present case since as per the facts narrated hereinabove, the petitioner was already engaged in sedentary duty after suffering from 60% disablement by the respondent organization itself and his services were not dispensed with on account of such disability. The disability of the petitioner did not increase even in the reexamination conducted by the Medical Board on 22.8.2001 or even thereafter, on 6.1.2004 by another Medical Board, where he was only placed on low medical category. Counsel for the respondents submits that extension of the petitioner's services were made for two years, each time on the recommendation of the Medical Board itself. In the year 2006, the same Medical Board on re-examination had declared him to be unfit. However, the counsel for the. respondent is not able to dispute the position that the said Medical Board itself did not find the petitioner having suffered from any more disability than the 60% disability which he originally suffered after his injuries in the year 1995 and were consistently found on examination by the authorities of AIIMS and BSF Medical Board in the year 1996, 2001 and 2004. It appears that in similar circumstances, in the case of Bhola Kumar Jha (supra), who was also a constable in the BSF and his services were sought to be dispensed with on the ground of physical unfitness under the provision of Rule 25 of BSF Rules, 1969, the Single Bench of this court vide judgment dated 29.7.2011, found action of the respondent to be unsustainable in law and accordingly, impugned order of his premature retirement was quashed and writ petition was allowed. In the said judgment, it was also taken into account that respondents had allowed him to work on sedentary post and the person was discharging his duties of civil nature on the sedentary post. Therefore, his premature retirement was found improper contrary to their own documents. In the said judgment, it was also taken into account that respondents had allowed him to work on sedentary post and the person was discharging his duties of civil nature on the sedentary post. Therefore, his premature retirement was found improper contrary to their own documents. The said judgment has been further upheld in the Letters Patent Appeal being LPA No. 345 of 2011, which was preferred by the respondent-Union of India. The said Letters Patent Appeal has been dismissed vide judgment dated 31.10.2012. In the case of Upendra Kumar @ Upendra Kumar Singh in LPA No. 277 of 2011, the Division Bench of this court, even in the case of low medical category, had considered it proper to direct the respondents to consider the case of said petitioner for promotion, although he was suffering from medical category of S1H1A1P3E1, the same category as the present petitioner and it is stated that the said person suffered disability to the extent of 75%. The judgment, relied upon by the respondents, does not appear to be applicable herein because in the present case, the petitioner has been granted benefit by the respondent in the year 1997 onwards by putting him on sedentary duty as already discussed hereinabove giving him the protection of Section 47 of the Act of 1995. The action of the respondents have to be judged on the touchstone of rationality and wednesbury reasonableness. From the facts narrated hereinabove, it appears that in the present case, petitioner has not suffered any more disability since 1995 after sustaining such injury and has continued to discharge sedentary duty to the satisfaction of the respondent-authorities as aforesaid. In the year 2006, the exercise to declare him medically unfit and compulsorily retire him consequent thereto, does not appear to be reasonable on the touchstone of wednesbury reasonableness. Accordingly, in view of findings rendered hereinabove and the judgments rendered by this court in similar circumstances in the case of other persons, the impugned orders of respondent-authorities declaring him medically unfit vide order dated 5.8.2006 (Annexure-12) and forced him to compulsorily retire vide order dated 13.10.2006 (Annexure-13), cannot be sustained in eyes of law and are, accordingly, quashed. The writ petition stands allowed. 10. The petitioner is directed to be reinstated in service with all consequential benefits.