ORDER : Rajesh Shankar, J. 1. The present writ petition has been filed with following prayers:- (i) For quashing the findings recorded by the Staff Court of Enquiry (SCOI) on 20.02.2021 wherein it has opined that petitioner had never suffered from Prolapsed Intervertebral Disc (PIVD) and hence the PIVD could not have developed or aggravated or manifested due to injury sustained by the petitioner on 21.12.1994 while undergoing training (PW Course) at Central School of Weapons and Tactics (CSWT) BSF, Indore. (ii) For issuance of an appropriate writ, quashing the order dated 08.04.2021 passed by the Additional Director General, HQ Special DG Eastern Command who while agreeing with the findings as well as opinion of SCOI has directed that discase “Ankylosing Spondylitis” suffered by the petitioner will be treated as not attributable to government service. (iii) For commanding upon the respondent authorities to consider the opinion and finding recorded by the Presiding Officer, Staff Court of Enquiry on 22.07.2004, agreed by the Inspector General, BSF, North Bengal Frontier vide remarks given on 22.07.2005 as well as opinion of the Medical Board approved by the IG/Director (Medical), Directorate, BSF (Ministry of Home Affairs) on 27.03.2014 wherein it was observed that, the injury suffered by the petitioner on 21.12.1994 while doing PW Course and progressive sufferings i.e. “PIVD with Ankylosing Spondylitis” was attributable to his government bona fide duty. 2. The factual background of the case, as emanating from the writ petition, is that the petitioner joined Border Security Force (BSF) as Assistant Commandant (Direct Entry) in December 1991 and after successfully completing the basic training, he joined the 171 Battalion, BSF at Satrana, Annopgarh, Rajasthan in the month of January, 1993. Since April, 2020 he is on Deputation in Jharkhand Police and is posted as Superintendent of Police (Operation) Jharkhand Jaguar (Special Task Force), Ranchi. 3. The Petitioner had successfully undergone pre training course of Combat Platoon Weapon (P.W) at Subsidiary Training Centre, BSF, Kashmir from 31.10.1994 to 12.11.1994 and Combat PW Course from 21.11.1994 to 14.01.1995 at Central School of Weapons & Tactics (CSWT), Indore (M.P.) as well as Young Officers Integrated (Commando) Course from 21.01.1995 to 01.04.1995 at BSF Academy, Tekanpur (M.P.). 4. 3. The Petitioner had successfully undergone pre training course of Combat Platoon Weapon (P.W) at Subsidiary Training Centre, BSF, Kashmir from 31.10.1994 to 12.11.1994 and Combat PW Course from 21.11.1994 to 14.01.1995 at Central School of Weapons & Tactics (CSWT), Indore (M.P.) as well as Young Officers Integrated (Commando) Course from 21.01.1995 to 01.04.1995 at BSF Academy, Tekanpur (M.P.). 4. The Petitioner was medically examined by the Medical officer-Dr Digvijay Singh, 171 Bn BSF on 28.10.1994 and was declared 'FIT' before proceeding for pre-training course as well as the other related courses by issuing Medical Certificate to him in this regard. 5. In the morning of 21.12.1994, the petitioner fell down on his back on a metal road while carrying out routine road running exercise outside the BSF campus and sustained serious injuries in the left back side ribs along with spine. The Petitioner was taken to hospital at CSWT, BSF, Indore by other fellow officers attending the course where he was given regular treatment by Dr. R. S. Gupta, Chief Medical Officer (Selection Grade) and the other doctors posted there. 6. After completion of PW Course, the petitioner was sent to attend Commando Course, but due to his injuries, he could not attend/complete the said course and remained admitted in B.S.F., Composite Hospital, Tekanpur from 27.01.1995 to 07.02.1995 with final diagnosis of fracture in left 9th, 10th & 11th ribs. 7. The medical categorization of BSF Personnel is made after assessing his/her fitness under five sectors of health status in terms with the code letters ‘SHAPE’ which denotes:- S-Psychological, H-Hearing, A-Appendages, P-Physical capacity, E-Eye sight and functional capacity of BSF Personnel to serve one’s duty is graded under each factor in the scale from 1 to 5 indicating declining/increasing functional efficiency as well as employability limitations. 8. A medical categorization Board was constituted on 03.07.1996 and the petitioner was placed under low medical category as S1, H1, A1, P3 (T-24), E1 for a period of 24 week. Thereafter, regular Medical Boards were constituted wherein the petitioner was placed under low medical category. The Dy. Inspector General (Personnel), Directorate General, BSF, New Delhi vide letter no. 1662-1962 dt. 05.04.2002 and letter no. 15603-15992 dt. 26.08.2002 circulated consolidated instructions regarding medical categorization of BSF personnel SHAPE-I for the purpose of promotion. Thereafter, regular Medical Boards were constituted wherein the petitioner was placed under low medical category. The Dy. Inspector General (Personnel), Directorate General, BSF, New Delhi vide letter no. 1662-1962 dt. 05.04.2002 and letter no. 15603-15992 dt. 26.08.2002 circulated consolidated instructions regarding medical categorization of BSF personnel SHAPE-I for the purpose of promotion. Clause 1(s)(b) of the letter dated 05.04.2002 provides for relaxation in SHAPE-1 Medical category if the officers/men are wounded/injured during field firings/accidental firings/ explosion of mines or other explosives devices and due to accidents while on active government duty in India or abroad. 9. The petitioner vide letter dated 12.07.2003, requested for Court of Enquiry (COI) which was refused by the D.G., BSF HQ, New Delhi, however subsequently the said authority ordered a Staff Court of Enquiry (SCOI) vide letter dated 03.07.2004 to find out the circumstances under which the petitioner sustained injuries on 21.12.1994 at BSF training school, Indore. The Enquiry Officer recorded the statements of the petitioner and other witnesses who had undergone training with him including Dr R.S. Gupta, Chief Medical Officer (Selection Grade) and Officer-in-charge of the course and incorporated the original OPD slips dated 21.12.1994, 02.01.1995, 04.01.1995 and 09.01.1995 as well as other relevant documents containing records of the said period i.e. Daily medicine Issue Registers and hospital records of BSF hospital Indore. The Enquiry proceeding was finalized on 22.07.2004 with the opinion that the petitioner had sustained injury on his left side ribs on 21.12.1994 while undergoing PW Course from 21.11.1994 to 14.01.1995 at CSWT, BSF, Indore. 10. The Dy. Inspector General, SHQ, BSF, Kishanganj agreeing with the findings and opinion of the SCOI put remarks dated 09.08.2004 on the SCOI Proceedings and recommended that the petitioner should be produced before Medical Board to assess the physical condition for re-categorization. Finally, the Inspector General, BSF, North Bengal Frontier, after agreeing with the said recommendation, put remarks dated 22.07.2005 on the SCOI proceedings regarding injury sustained by the petitioner and opined that the same could not be diagnosed initially which got infected in due course of time and was subsequently placed under low medical category. It was further observed that the injury sustained by the officer was attributable to govt. duties and no one was to be blamed. 11. It was further observed that the injury sustained by the officer was attributable to govt. duties and no one was to be blamed. 11. The petitioner while posted at SHQ, BSF, Cooch Behar, appeared before the review Medical Board and after examination by the concerned orthopaedic surgeon, Medical Board proceeding, Part 1 was prepared on 07.12.2006 with respect to the petitioner which included complete medical history, clinical details of all X-ray reports, C.T. scan reports, MRI reports and the expert orthopaedic opinions provided to the petitioner time to time. The petitioner again appeared for examination on 11.12.2006 before the Medical Board which prepared Medical Board Proceeding, Part-2 and directly attributed the injuries and progressive sufferings of the petitioner to the specific conditions of his service mentioning the occurrence taking place on 21.12.1994 which was approved in the enquiry proceedings dated 22.07.2005. The said medical proceeding was also approved by the competent authority i.e. the respondent no.3. 12. The respondent no.4 vide letter dated 11/14th May, 2007 requested the Headquarters, CSWT, BSF, Indore to conduct a fresh court of enquiry relating to the same injury incident of the petitioner as per recommendation of the DPC, however the said letter was subsequently stayed vide interim order dated 17.07.2007 passed by the Kolkata High Court in W.P. No.11158 (W) of 2007. The respondent no.2 again constituted Medical Board of 03 doctors in May, 2008 and August 2010 for examining the petitioner which prepared Medical Proceedings Part-I & Part-II incorporating complete medical history, clinical reports, C.T. scan/ MRI reports, and expert orthopaedic opinions provided to the petitioner from time to time till April, 2008 and July, 2010 respectively. Moreover, Medical Board Part-2 prepared on 30.05.2008 and on 18.08.2010 on the basis of Medical Proceedings Part-1, directly attributed the injuries and progressive sufferings of the petitioner to the conditions of his service as per declaration of previous Medical Board dated 11.12.2006. The said medical proceedings were also approved by the competent Authority. 13. The respondent no. 2 with the approval of Ministry of Home Affairs, Govt. of India, promoted the petitioner to the rank of 2nd-in-command on 19.12.2008 with notional seniority with effect from 07.07.2006 and to the rank of Commandant in BSF on 01.06.2011 with notional seniority with effect from 06.12.2010. 13. The respondent no. 2 with the approval of Ministry of Home Affairs, Govt. of India, promoted the petitioner to the rank of 2nd-in-command on 19.12.2008 with notional seniority with effect from 07.07.2006 and to the rank of Commandant in BSF on 01.06.2011 with notional seniority with effect from 06.12.2010. Thereafter, the respondent no.2 again constituted Medical Board of 03 doctors in March 2014 for examining the petitioner which diagnosed his suffering as “effects of PIVD with Ankylosing Spondylitis (B/L BMHR done Arthroplasty)”. The Medical Board Proceedings, Part-I relating to the petitioner’s suffering was prepared on 26.03.2014 whereas Medical Board Proceedings, Part-II was prepared on 27.03.2014 wherein the illness & sufferings of the petitioner were directly attributed to the conditions of his service. The Medical Board Proceedings, Part-II was approved by Inspector General/Director (Medical), Directorate General, BSF (MHA), Government of India. The petitioner’s medical category was recommended as S1 H1 A2 (L) P1E1 and he was quite entitled to get the relaxation in SHAPE -1 Medical category for the purpose of getting promotion as per the existing instructions in BSF. 14. The respondent no.2 again constituted Medical Board in February, 2017 and April, 2017 for examining the petitioner’s medical categorization and on each occasion, the Medical Board diagnosed the petitioner’s suffering as Ankylosing Spondylitis with PIVD and recommended that the suffering was directly attributable to the conditions of his government service. However, the Medical Board proceedings held on 06.12.2018 though opined that the petitioner was suffering from Ankylosing Spondylitis with PIVD, but only recommended his suffering of “PIVD” as directly attributable to the conditions of his service and did not recommend his suffering “Ankylosing Spondylitis” as attributable to conditions of his service. 15. In the year 2017, Jharkhand Police / DG BSF New Delhi sought nomination for deputation of BSF commandants to Jharkhand State. The petitioner also submitted his willingness for the said deputation and after fulfilling all the criteria, gave joining to Jharkhand Police on 02.04.2020. Since then he has been instrumental in planning, organizing, monitoring all operational activities in insurgency/naxal affected districts with considerable operational achievements. In the meantime, the Inspector General, BSF, Guwahati Frontier, Patgaon (Assam) ordered SCOI/Addl. The petitioner also submitted his willingness for the said deputation and after fulfilling all the criteria, gave joining to Jharkhand Police on 02.04.2020. Since then he has been instrumental in planning, organizing, monitoring all operational activities in insurgency/naxal affected districts with considerable operational achievements. In the meantime, the Inspector General, BSF, Guwahati Frontier, Patgaon (Assam) ordered SCOI/Addl. SCOI to find out the circumstances under which the petitioner suffered from “Ankylosing Spondylitis” with “PIVD” disease as well as to ascertain as to whether the injuries sustained by him was attributable to government duty or otherwise and the same was finalized on 20.02.2021. The Additional Director General, HQ Spl. DG Eastern Command agreed with the findings and opinion of SCOI/Addl. SCOI vide remarks and order dated 08.04.2021, stating that “Ankylosing Spondylitis” suffered by the petitioner should be treated as not attributable to government service. The petitioner represented the respondent no.2-DG, BSF, New Delhi on 16.12.2021 and 03.03.2022 raising grievance against the said remarks/order dated 08.04.2021, however, the said representations were rejected and conveyed to him by DIG, BSF, Dhubri vide Letter no.SHQ/BSF/Dhubri L/No.2197-98 dated 14.08.2023. Hence the present writ petition. 16. The learned counsel for the petitioner submits that the petitioner was medically examined by Prof (Dr.) L. B. Manjhi, HOD, Department of Orthopaedics, Rajendra Institute of Medical Science (RIMS), Ranchi Jharkhand on 25.01.2021 who opined that as per medical records produced, PIVD could be traumatic or degenerative. It can be attributable, based on medical records of the petitioner, to previous injury sustained by him in the year 1994, while on government bona fide duty. As per several Medical Board proceedings held from time to time to examine the petitioner, PIVD has already been said to be directly attributed to the conditions of service. Prof. (Dr.) L.B. Manjhi also opined that it was quite possible, as per records, that PIVD could have got aggravated due to stress and strain in view of working in treacherous terrain and extreme climatic conditions of service. 17. It is further submitted that on 21.01.2021, Dr. Gaurav Kumar, MS (Orthopaedics), opined that the petitioner was suffering from chronic inflammatory disease with B/L BMHR with healed pott's spine L2L3 with PIVD with old history of trauma in left side chest wall occurred during training on 21.12.1994 and the same could not be diagnosed initially which got infected in due course of time. Gaurav Kumar, MS (Orthopaedics), opined that the petitioner was suffering from chronic inflammatory disease with B/L BMHR with healed pott's spine L2L3 with PIVD with old history of trauma in left side chest wall occurred during training on 21.12.1994 and the same could not be diagnosed initially which got infected in due course of time. It was also opined by him that as per medical records and opinion of various orthopaedic surgeons as well as keeping in view the petitioner’s working condition in extreme hard areas, his current medical condition was due to previous injury sustained by him which got aggravated by stress and strain with cold climatic condition. It was further opined that the petitioner was going through regular physiotherapy and his current clinical condition was quite satisfactory except restriction and stiffness in spine movement. 18. It is also submitted that Dr. Sabyasachi Mandal, M.S. Ortho, Dy. Superintendent, Sadar Hospital, Ranchi Jharkhand medically examined the petitioner on 28.01.2021 and opined that as per medical documents, it was possible that cause of his PIVD of the patient could be traumatic or degenerative and could be attributable to previous injuries sustained by him in the year 1994. He further opined that PIVD had already been recommended to be directly attributable to the conditions of service in the proceedings of various Medical Boards held in the years 2014, 2017 & 2018. 19. It is thus contended that the petitioner fulfils all the criteria for grant of promotion, however, due to the impugned order and findings of Staff Court of Enquiry as affirmed by the Additional Director General, BSF, HQ, Special DG Eastern Command, the petitioner may not be given the benefit of relaxation as detailed in letter no. -1662-1962 dated 05.04.2002. 20. Learned counsel for the petitioner further submits that the power once exercised by the respondent authorities under rule 174 (2)(b) of the Border Security Force Rules, 1969 (hereinafter referred to be as ‘the Rules, 1969’), duly approved by the competent authority under rule 175 of the said Rules, cannot be reviewed/ revisited on same issue by the authorities. The findings and opinion of Staff Court of Enquiry given in Medical Board Proceeding held on 11.12.2006 which was duly approved by the respondent no.3 on 10.01.2007, is final and conclusive which cannot be reviewed again by the respondent authorities in absence of any such statutory provision in the Rules, 1969. 21. The findings and opinion of Staff Court of Enquiry given in Medical Board Proceeding held on 11.12.2006 which was duly approved by the respondent no.3 on 10.01.2007, is final and conclusive which cannot be reviewed again by the respondent authorities in absence of any such statutory provision in the Rules, 1969. 21. It is also submitted that injury of the petitioner on his back got infected and led to caries of the spine which was considered by the Medical Board as attributable to his government service. The medical category of the petitioner was downgraded on 04.11.1997 due to caries of the Spine (Spinal Tuberculosis) L3 L4 during re-categorization examination done by the Medical Board and then on 11.10.1999 he was diagnosed as suffering from Degenerative Changes in Lumber Vertebrae with sacroiliitis with fusion of L2-L3 Vertebrae being old case of TB Spine. Thereafter, he was again diagnosed in several review medical examinations done from 02.08.2002 to 17.08.2010 as suffering from Degenerative changes in Lumber Vertebrae with sacroiliitis with fusion of L2-L3 Vertebrae in old case of TB Spine and cervical spondylosis. Subsequently, on 27.03.2014 he was diagnosed as “PIVD with Ankylosing Spondylitis” in the opinion of the review Medical Board. Hence, the degenerative changes of the spine resulted in development of PIVD which is also mentioned in the opinion of the court of enquiry dated 29.03.2020. 22. It is lastly submitted that in view of policy guidelines issued on 22.11.2016 by the Ministry of Home Affairs, Police-II Division, North Block, New Delhi regarding deputation of combatised Central Armed Police Forces & Assam Rifles Personnel in other organizations, the petitioner was given preference while appointing him on the post of Commandant in Jharkhand Police on deputation basis since he had fulfilled two conditions; one that he had served in the hard area and other that he was declared under low medical category due to injury suffered during operation in the field. 23. On the contrary learned Addl. S.G.I. appearing for the respondents submits that on 21.12.1994, the petitioner while undergoing the PW course at CSWT BSF, Indore from 21.11.1994 to 14.01.1995, fell down on his back on metal road and sustained injuries. He remained under treatment at Govt. 23. On the contrary learned Addl. S.G.I. appearing for the respondents submits that on 21.12.1994, the petitioner while undergoing the PW course at CSWT BSF, Indore from 21.11.1994 to 14.01.1995, fell down on his back on metal road and sustained injuries. He remained under treatment at Govt. Medical College & Hospital, Jammu from February, 1996 and subsequently on 30.10.1996, he was diagnosed with an old treated case of Koch's spine (TB) and was declared healed case of Koch's spine (TB) L2-L3 on 02.11.1996. 24. It is further submitted that as per the laid down procedure under BSF Act, 1968 & the Rules 1969, the findings & opinion of the Staff Court of Enquiry (SCOI) dated 22.07.2004 was submitted to the concerned DIG, Sector HQ, BSF Kishanganj, who endorsed his remarks based on the said findings. Finally, Inspector General BSF, North Bengal Frontier also endorsed his remarks on the said findings/opinion of the SCOI and agreed with the remarks of the DIG, SHQ, BSF, Kishanganj. However, when the case of petitioner was being considered by the DPC for his promotion to the rank of Second-in-Command (2IC), it was observed that as per the opinion of the Medical Board conducted on 11 Dec 2006, the petitioner was suffering from 'DEGENERATIVE CHANGES IN LUMBAR VERTEBRAE WITH FUSION OF L2L3 VERTEBRAE IN OLD CASE OF TB SPINE AND CERVICAL SPONDYLOSIS'. Accordingly, the DPC deferred the matter regarding empanelment and eventual promotion of the petitioner with an observation that a fresh court of enquiry was required to be conducted to ascertain as to whether the injuries sustained by the petitioner was attributable to government service or otherwise. Thereafter, the petitioner was re-examined by the Board of Medical Officers who prepared Medical Board proceeding, Part-II which was further approved by the respondent no.3-I.G. (Personnel), FHQ BSF, New Delhi on 10.01.2007. 25. Simultaneously, a DPC meeting was held on 31.01.2007 for consideration of the cases of Deputy Commandants for their empanelment and eventual promotion to the rank of 2IC in BSF during the vacancy year 2007-08. The DPC, however, decided to defer the consideration of the case of the petitioner and a fresh COI was ordered to be conducted by CSWT BSF, Indore. Subsequently on 27.03.2014, the Medical Board assessed the petitioner and found him suffering from PIVD for the first time. The DPC, however, decided to defer the consideration of the case of the petitioner and a fresh COI was ordered to be conducted by CSWT BSF, Indore. Subsequently on 27.03.2014, the Medical Board assessed the petitioner and found him suffering from PIVD for the first time. According to findings of the Additional SCOI dated 20.02.2021, the petitioner had never suffered from “PIVD” and hence the findings of the Additional SCOI mismatched with the findings of the re-categorization Medical Board which had mentioned in MBP Part-II dated 27.03.2014 that “PIVD” suffered by the petitioner was directly attributable to the condition of service. 26. A SCOI was earlier ordered by Ftr HQ BSF, Guwahati vide order No. 4175-79 dated 22.02.2020 to enquire into the circumstances under which the petitioner had suffered from Ankylosing Spondylitis with PIVD disease and also to ascertain whether the injuries sustained by him was attributable to government duty or otherwise. The said order was served to the petitioner much before he was relieved for deputation on 31st March 2020. The said order dated 22.02.2020 was however cancelled and a fresh order to conduct SCOI was issued on 09.03.2020. The SCOI was completed on 29.03.2020 before the petitioner was relieved for deputation in Jharkhand Police. 27. It is further submitted that on completion of the said SCOI, the same was forwarded to HQrs. SDG BSF (EC), Kolkata for obtaining the final remarks of the competent authority but the same was returned with the direction to get the petitioner examined by Medical Board of specialists in PIVD to specifically ascertain whether his PIVD got developed or aggravated or manifested due to injury sustained by him in the year 1994 or due to any other disease suffered by him consequent to the said injury and to incorporate the opinion of said Specialist Board in the findings of Staff Court of Enquiry. Accordingly, DIG, BSF, Sector HQ Dhubri requested the DGP Jharkhand vide letter No. 72-74 dated 02.01.2021 to direct the petitioner to report to the Sector HQ BSF, Dhubri for examination by a Medical Board of specialists. Accordingly, DIG, BSF, Sector HQ Dhubri requested the DGP Jharkhand vide letter No. 72-74 dated 02.01.2021 to direct the petitioner to report to the Sector HQ BSF, Dhubri for examination by a Medical Board of specialists. The respondent no.6 vide its order No.2950-54 dated 17.02.2021 ordered to conduct an Additional Staff Court of Enquiry to ascertain whether PIVD of the petitioner developed or got aggravated or manifested due to the injury sustained by him on 21.12.1994 while undergoing PW Course or any disease suffered by him consequent to the said injury. 28. On completion of the said Additional SCOI proceedings, it was opined that the petitioner had never suffered from the PIVD and had never taken treatment for the same. Hence, his PIVD could not have been considered as developed or aggravated or manifested due to injury sustained by him on 21.12.1994 while undergoing PW Course. It was further opined that TB spine being an infective disease which spreads through haematogenous route, could not have been caused due to any trauma. Based on the findings & opinion of Additional SCOI, the respondent no.6 endorsed his remarks that there was no scientific evidence to prove that trauma was the cause of Ankylosing Spondylitis, but aggravation effects of Ankylosing Spondylitis by trauma could not be ruled out. It was further observed that it might be possible that the petitioner was already suffering from Ankylosing Spondylitis and his symptoms got aggravated/worsened during his injury in PW Course at CSWT, BSF, Indore. Thereafter, the Addl Director General, HQrs. Spl. DG (Eastern Command) endorsed his remarks on the said SCOI/Addl SCOI proceedings that the disease 'Ankylosing Spondylitis" suffered by the petitioner be treated as "not attributable" to govt. service and he be produced before the Medical Board to assess his present medical category and percentage of disability, if any, for the diseases he was suffering. 29. Heard the learned counsel for the parties and perused the materials available on record. 30. Thrust of the argument of learned counsel for the petitioner is that the petitioner is entitled to be promoted to the post of Deputy Inspector General, BSF by extending him relaxation in SHAPE-1 medical category in view of Clause (S) of letter No. 17/54/99 Pers/BSF/1662-1962 dated 05.04.2002 issued by the Directorate General (Personnel Directorate), Border Security Force, Ministry of Home Affairs, Government of India, New Delhi. Moreover, once the staff court of enquiry held under rule 174(2)(b) of the Rules, 1969 was finalized on 22.07.2005 by holding that the injury sustained by the petitioner was attributable to government duties, there was no question of reviewing the said finding by ordering a fresh SCOI. 31. Learned Addl. S.G.I on the contrary has emphasized that the case of the petitioner is not covered under the instructions issued vide letters dated 05.04.2002 and 26.08.2002 and he is not entitled to get any relaxation in promotion since there is no specific evidence to prove that trauma suffered by him during PW course is the cause of Ankylosing Spondylitis. As per the earlier Staff Court of enquiry, the fracture of left side ribs was said to be attributable to government duties, however, since as per the opinion of the Medical Board dated 06.12.2018, PIVD was directly attributable to conditions of service, 2nd SCOI and Additional SCOI were ordered to find out whether the petitioner had suffered from “Ankylosing Spondylitis with PIVD” due to the injury sustained during PW course or not. 32. Before coming to the merit of rival contention of the parties, it seems appropriate to refer letter No. 17/54/99 Pers/BSF/1662-1962 dated 05.04.2002 issued by the Directorate General (Personnel Directorate), BSF, relevant part of which is reproduced hereinbelow:- “(a) SHAPE-I medical category will be an eligibility criteria for promotion to all Group 'A' level posts in the GD stream. If such provisions do not exist in the existing Recruitment Rules, steps may be taken to incorporate the same in the RRs. (b) Medical category SHAPE-1 will be an essential eligibility condition for promotion of all combatised personnel in all groups/rank/cadres in the CPMFs. (s) The relaxation in SHAPE-I medical category will be admissible to the following two categories of CPMFs personnel to the extent detailed below:- (a) Official/personnel wounded / injured during war or while fighting against the enemy/militants/ intruders/ armed hostiles/ insurgents due to an act of these in India or abroad will be eligible for promotion while placed in one of the following medical classifications: - (ii) Individual Low Medical Factors (aa) H2 or E2 or P2 (Dental) which will be considered at par with SHAPE-I : and (ab) A2 or P2 or A3. (iii) Combined Low Medical Factors (aa) H2 and E2 combined, and (bb) H2 or E2 combined with A2, A3 or P2 (a) Officers/ men who are wounded/ injured during field firings/ accidental firings / explosion of mines or other explosive devices and due to accidents while on active Government duty in India or abroad will be eligible for promotion in the following SHAPE categories (i) S1H1A2P1E1 (ii) S1H1A1P2E1 (iii) S1H2A1P1E1 (iv) S1H1A1P1E2 (v) S1H2A1P1E2” 33. Admittedly the petitioner does not come under the medical category of SHAPE-1, rather as per opinion of the medical re-categorization board dated 27.03.2014, the medical category of the petitioner was under S1H1A2(L)P1E1 and thus he was in the low medical category. In view of letter No. 17/54/99 Pers/BSF/1662-1962 dated 05.04.2002, the relaxation in SHAPE-I medical category is admissible if the officer is wounded/injured during field firings/ accidental firings/ explosion of mines or other explosive devices and due to accidents while on active government duty in India or abroad. 34. Thus, the issue before this court is as to whether there is conclusive evidence to suggest that “Ankylosing Spondylitis’’ suffered by the petitioner is the after effect of the injury sustained by him on 21.12.1994 during PW Course or he was suffering from the said disease prior to joining the service. 35. During Additional SCOI, three witnesses along with the petitioner were examined. The petitioner deposed that he was medically fit before going to PW course and during the said course he had fallen down on his back on metal road resulting into shooting pain in the left back side ribs and spine. He further deposed that on 09.12.2004 statement of Dr. Subodh Biswas, orthopaedic surgeon was recorded who had stated that it was quite possible that the ailment of the petitioner could be due to the injury he sustained in 1994 because as per the medical documents produced by him, it appeared that the fracture in his ribs was not diagnosed properly at the time he sustained injury and due to the said reason, it was quite possible that his injury got infected and led to present medical condition. 36. The evidence of Additional Witness No.2-Dr. H.L Jat, Chief Medical Officer and Additional Witness No.3-Dr. Ravindra Kumar, Specialist Ortho Surgeon examined during Additional SCOI, suggests that both were of the opinion that the petitioner was not suffering from PIVD. 36. The evidence of Additional Witness No.2-Dr. H.L Jat, Chief Medical Officer and Additional Witness No.3-Dr. Ravindra Kumar, Specialist Ortho Surgeon examined during Additional SCOI, suggests that both were of the opinion that the petitioner was not suffering from PIVD. So far as “Ankylosing Spondylitis” is concerned, they deposed that the etiology of “Ankylosing Spondylitis” is unknown but a combination of genetic and environmental factors work jointly to produce the said disease. On query of the court (i.e., Additional SCOI) as to what are the environmental factors that can produce the disease of “Ankylosing Spondylitis”, the additional witness no.2 replied “This can only be commented upon by the Orthopedician.” Whereas the witness no.3 replied “These are bacterial antigen toxins and pollutants.” The court further asked them “Is it possible that officer was already suffering with mild Ankylosing Spondylitis but got worsened due to the trauma suffered by the officer during PW course at CSWT BSF Indore on 21.12.1994 and during the mountaineering expedition to Nanda Devi in the year 1993.” The said witnesses answered “yes, it might be possible as the petitioner was HLA B27 (genetic factor) positive and Ankylosing Spondylitis has strong association with HLA B27, so it was possible that officer was already suffering from Ankylosing Spondylitis. However, on the question whether the said disease of the petitioner got aggravated/worsened due to the trauma suffered by him during PW course in the year 1994 or during the mountaineering expedition to Nanda Devi in the year 1993, the additional witness no.2 replied that it could have been commented only by a specialist or an orthopedician whereas the additional witness no.3 replied that there was no documentary proof for that, but the petitioner was firstly suspected for the said disease in the year 1997. 37. The Additional Director General, BSF, HQ Spl DG Eastern Command vide order dated 08.04.2021 agreed with the findings of the Additional SCOI and observed as under: “I generally agree with the findings and opinion of SCOI/Addl SCOI proceedings. 2. IRLA No. 19148267 Shri Sanjay Mukul Kispotta, Commandant (Ops) of SHQ BSF Dhubri while on the posted strength of 171 Bn BSF as Asstt Comdt was detailed to undergo PW Course at CSWT Indore from 21.11.1994 to 14.01.1995. 2. IRLA No. 19148267 Shri Sanjay Mukul Kispotta, Commandant (Ops) of SHQ BSF Dhubri while on the posted strength of 171 Bn BSF as Asstt Comdt was detailed to undergo PW Course at CSWT Indore from 21.11.1994 to 14.01.1995. On 21.12.1994 while carrying out running exercise on metal road fell down on his back, After completion of PW Course Officer reported BSF Academy Tekanpur for YO's Integrated Course w.e.f 21.01.1995 to 01.04.1995. On 27.01.1995 Officer was diagnosed as having Fracture on left 9th 10th &11th Rib. Later on, on 26.02.1995 after X-Ray it is revealed that " Bodies of 2nd and 3rd Lumbar Vertebrae fused with collapse of 2nd Lumber vertebrae. Both Sacroiliac (S.I) joints are sclerosed. Osteophytic changes are noted in bodies of lower Lumbar verterbrae with Spondylolisthesis of L3 on L4. Inter Vertebral disc spaces appears normal". 3. In the month of Mar-April 1995 while undergoing treatment, Officer was diagnosed as “Tuberculosis of Spine L2-L3 with collapse" and was advised full course of Anti tubercular drugs for the diseases. Thereafter, on 2-11-1996 after CT Scan of Lumbosacral Spine revealed irregularity of the anterior outline of L3 vertebra with a mixed dens lesion in its antero-superior aspect - ?old caries - ?old trauma. Evidence of lumbar Spondylosis and Mildprolapse of L4-L5 Intra vertebral disc was also noted. 4. On 04.11.1997 review Medical Board placed Shri Sanjay Mukul Kispotta, Commandant (Ops) in Low Medical Category S1H1A1P3(T-40) E1 after approval of 1G(Pers) FHQ. On 27.11.1997 Officer was diagnosed as "degenerative changes of upper lumbar vertebrae with Inflammatory pathology sacroiliac joint (bilateral) and suspected Ankylosing Spondilitis" at Christian Medical College Hospital, Vellore. 5. On 11.10.1999 the officer was placed under Low Medical Category as S1H1A1P3(P)E1 due to degenerative changes in lumbar vertebra with sacroileitis with fusion of L2-L3 vertebrae in old case of IB Spine. On 18.11.2010 the officer was operated for Bilateral BMHR (Birmingham Metalic Hip Resurfacing) after history of Backache and Stiffness since 16 years of pain and restricted movement of hips. 6. On 22.07.2005 the SCO was finalized by Ftr HQ BSF North Bengal with remarks that the Officer sustained injury on his left side ribs on 21.12.1994 while undergoing PW Course w.e.f 21.11.1994 to 14.01.1995 at CSWT BSF Indore. 6. On 22.07.2005 the SCO was finalized by Ftr HQ BSF North Bengal with remarks that the Officer sustained injury on his left side ribs on 21.12.1994 while undergoing PW Course w.e.f 21.11.1994 to 14.01.1995 at CSWT BSF Indore. The same could not be diagnosed initially which got infected in due course of time and placed under Law Medical Category and the injury sustained by the Officer is attributable to Govt. duties and no one is to be blamed. 7. On 06.12.2018 during re-categorization Medical Board at Ftr HQ BSF Guwahati the officer was recommended for the medical category S1H1A2(S)(L)P1E1 due to Ankylosing Spondylitis with PIVD(B/L BMHR Arthroplasty done)" which was not approved with the femarks)" As per COI reports the officer sustained injury on his Lt Sided Ribs on 21.12.1994 while undergoing PW Course at CSWT Indore. But the Officer has been evaluated for Ankylosing Spondylitis with PIVD by the re- categorization Medical Board assembled on 06.12.2018 which was mentioned as attributable to duty for PIVD in MBP-II. This is not mentioned in COI". 8. As per the Medical Board held on 06.12.2018 the disease Ankylosing Spondylitis was not mentioned as attributable to bonafide Govt. duty as the aetiology genetic involvement i.e. linked to HLA B-27 and the disease was first established on- of Ankylosing spondylitis is not caused due to any specific reason but can have a 15.09.2010 after 16 years of Injury at AIIMS, New Delhi and aetiology of Ankylosing Spondylitis is not associated with any trauma. 9. Officer was first medically downgraded on 04.11.1997 being diagnosed as "Carries (TB) spine L2-L3, further on 11.10.1999 officer was diagnosed as degenerative changes in lumber vertebra with sacroileitis with fusion of L2-L3 vertebrae in old case of TB spine" and thereafter from 02.08.2002 to 17.08.2010 officer suffered from "degenerative changes in lumbar vertebrae with sacroileitis with fusion of L2-L3 and Cervical spondylitis". On 27.03.2014 Officer was diagnosed as PIVD with Ankylosing Spondylitis (B/L. BMHR done-Arthoplasty). 10. It is also evident from SCOI/Addl SCOI proceedings that a Medical Board of Specialist was detailed and as per the findings Shri Sanjay Muku! Kispotta,` Commandant, IRLA No. 19148267 has never suffered from the PIVD and he has never taken treatment for PIVD. On 27.03.2014 Officer was diagnosed as PIVD with Ankylosing Spondylitis (B/L. BMHR done-Arthoplasty). 10. It is also evident from SCOI/Addl SCOI proceedings that a Medical Board of Specialist was detailed and as per the findings Shri Sanjay Muku! Kispotta,` Commandant, IRLA No. 19148267 has never suffered from the PIVD and he has never taken treatment for PIVD. On the basis of evidence on record, it is apparent that the injury sustained by the Officer on 21.12.1994, while undergoing PW Course Srl No. 14, at CSWT BSF Indore, w.e.f 21.11.1994 to 14.01.1995, did not result in PIVD. The Medical Board of Specialists have further opined that even the TB Spine suffered by the Officer in past is an ineffective disease spread through haematogenous route and it can not be caused due to trauma. 11. It is further evident that there is no scientific evidence to prove that trauma is the cause of Ankylosing Spondylitis, but aggravation of effects of Ankylosing Spondylitis by trauma can not be ruled out. It may be possible that the officer may already be suffering from Ankylosing Spondylitis and his symptoms got aggravated/worsened during his injury in PW Course at CSWT BSF Indore on 21.12.1994. Hence, no one is found blameworthy for the disease caused due to genetic involvement i.e. linked to HLA B-27. 12. I, therefore, direct that:- (a) The diseases “Ankylosing Spondylitis" suffered by Shri Sanjay Mukul Kispotta, Commandant (Ops) (IRLA No. 19148267), SHQ BSF Dhubri be treated as "not attributable" to Govt. service. (b) The Officer be produced before the Medical Board to assess his present Medical Category and percentage of disability, if any, for the diseases he is being suffering.” 38. On bare perusal of the aforesaid order, it would transpire that the ADG (Eastern Command), BSF, agreed with the findings of the SCOI and without any conclusive evidence observed that the disease “Ankylosing Spondylitis” suffered by the petitioner was not attributable to government service. The words ‘it may be possible’ used in paragraph no.11 of the said order suggests that the said authority himself was not of definite conclusion as to whether the petitioner was suffering from “Ankylosing Spondylitis” before entering into the service or he had suffered the said disease during service. There is no determinative/conclusive evidence and finding to the effect that the disease “Ankylosing Spondylitis’’ was not attributable to the injury sustained by the petitioner during PW Course. 39. There is no determinative/conclusive evidence and finding to the effect that the disease “Ankylosing Spondylitis’’ was not attributable to the injury sustained by the petitioner during PW Course. 39. The contention of the petitioner is that he had served in extreme tough areas such as Kupwara (Kashmir) and Dhubri (Assam) during his service period and in view of BSF Medical Directorate Manual Volume IX, “Ankylosing Spondylitis” and acquired deformities resulting from injuries are the diseases which can be affected by training, marching etc. Thus, the possibility that the petitioner acquired the said ailment due to serving in the extreme tough areas also cannot be ruled out. 40. That apart, as per the deposition of Dr. Subodh Biswas, Orthopaedic Surgeon in the Staff Court of Enquiry held in the year 2004, it was quite possible that ailment of the petitioner could have occurred because of the injury he sustained in 1994 since as per the medical documents produced by him, it appeared that the fracture in his ribs was not diagnosed properly at the time he had sustained injury and it might be possible that his injury got infected due to the said reason and led to present medical condition. The statement of Dr. Subodh Biswas supports the contention of learned counsel for the petitioner that his disease is attributable to the government service. 41. Moreover, in the Medical Board proceeding held on 27.03.2014, it was opined that the petitioner was suffering from ‘’PIVD with Ankylosing Spondylitis (B/L BMHR done – Arthroplasty) and was placed under S1H1A2(L)P1E1 medical category. It was further opined that the disease was directly attributable to conditions of service. The report of the said Medical Board proceeding was also approved by the competent authority i.e IG/Director (Medical), Director General BSF (MHA), New Delhi. The doctors who attended the petitioner during the Medical Board proceeding held on 27.03.2014 were not examined by the DIG/Presiding Officer, SHQ, BSF, Gopalpur during Additional SCOI. I am of the view that since the opinion of the Medical Board proceeding held on 27.03.2014 was favourable to the petitioner, before taking any different view from that opinion, the Presiding Officer of Additional SCOI was duty bound to examine the doctors who had attended the petitioner during the said proceeding to clarify as to on what basis they had opined that the disease suffered by the petitioner was directly attributable to the conditions of service. 42. The contention of the respondents is that there is no specific evidence to prove that trauma is the cause of Ankylosing Spondylitis. 43. In the case of Anil Rishi Vs. Gurbaksh Singh, reported in (2006) 5 SCC 558, the Hon’ble Supreme Court held as under:- “9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. 10. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side. 19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.” 44. Hence, the burden of proof that the disease “Ankylosing Spondylitis” suffered by the petitioner is not attributable to the service is upon the respondents since the petitioner was fit before going to P.W Course in December, 1994 and as per the opinion of several Medical Board proceedings conducted after injury of the petitioner, his suffering was said to be attributable to government service. It has already been observed by the respondent no.5 in the impugned order dated 08.04.2021 that the disease “Ankylosing Spondylitis” might be aggravated by the injury during PW Course. 45. Further contention of the learned counsel for the respondents is that the petitioner had sustained injury in the year 1994, however, he demanded court of enquiry after lapsed of 8 years and is trying to take undue advantage of such delay. This Court is of the view that even if there is a delay in constituting the court of enquiry, the respondents are liable for the same since in view of rule 174(2)(b) of the BSF Rules, 1929 a court of enquiry has to be held for all injuries sustained by persons subject to the acts which are likely to cause full or partial disability. The court shall in such case determine whether the injuries were attributable to service or not. Thus, it was mandatory for the respondents to constitute court of enquiry for the injuries sustained by the petitioner which they failed to do soon after the injury and thus the petitioner cannot be blamed for the same. 46. Moreover, the provision for relaxation in SHAPE-I medical category to officers who have sustained injury during field firings/accidental firings/explosion of mines or other explosives devices and due to accidents while on active government duty in India or abroad was introduced vide letter no.15603-15992 dated 26.08.2002 and only thereafter on 12.07.2003, the petitioner requested for court of enquiry. Thus, the petitioner has sufficiently explained as to why he had demanded court of enquiry after about 8 years. 47. Thus, the petitioner has sufficiently explained as to why he had demanded court of enquiry after about 8 years. 47. The claim of the petitioner is that before going to P.W Course, he was completely fit and only after the injury/trauma caused during the P.W Course, all such complications arose. The respondents have also failed to controvert the said claim of the petitioner by bringing on record any material to the effect that disease ‘’Ankylosing Spondylitis’’ suffered by the petitioner is due to the genetic factor HLA B27. The language used in the impugned order ‘’etiology of Ankylosing spondylitis is not caused due to any specific reason but can have a genetic involvement i.e. linked to HLA B-27’’ suggests that the respondent no.5 had no conclusive evidence to the effect that the disease suffered by the petitioner was due to the genetic factor HLA B27. Moreover, as per the observation made in the impugned order itself, it is possible that the petitioner may be suffering from “Ankylosing Spondylitis” and his symptoms got aggravated due to the injury suffered by him during P.W Course. 48. Considering the aforesaid facts and circumstance of the case, this Court is of the view that DG, HQ Spl. DG, Eastern Command, BSF has arrived at a conclusion that the disease ‘Ankylosing Spondylitis’ as suffered by the petitioner is not attributable to the government servant, without any conclusive evidence. Thus, the said finding is erroneous and cannot be sustained in the eyes of law. 49. Accordingly, the finding of the Staff Court of Enquiry dated 20.02.2021 and the order dated 08.04.2021 passed by the Additional Director General, HQ Special DG, Eastern Command, BSF are hereby quashed. The respondents are directed to consider the case of the petitioner for promotion to the post of DIG, BSF in view of letter No.17/54/99/ Pers/BSF/1662-1962 dated 05.04.2002 issued by the Directorate General (Personnel Directorate), Ministry of Home Affairs, BSF forthwith. 50. The writ petition is, accordingly, allowed. 51. I.A. No. 3662 of 2023 stands disposed of.