Rati Ram v. Union of India

1. The petitioner is aggrieved by his discharge from the Border Security Force [hereafter referred to as “BSF”/ “Force”], on the ground that he no longer fulfilled the medical standards stipulated. The order was issued by the respondent, (hereafter “BSF”) after he completed 22 years service.

2. The petitioner was enrolled as Constable (General Duty) in the BSF, on 24.03.1990. On 03.12.1994, the petitioner, then posted as “D’ Coy of 29th Battalion BSF (Now 33rd Battalion) was deputed to perform Road Opening Party (ROP) duty between K.P. Chowk to Mehandi Kadal Area in Anantnag, Kashmir. He completed patrolling, and moved a wooden log and sat on it. A powerful explosion occurred which resulted in serious injuries to him. The injuries were a result of mines placed by insurgents. He was evacuated to 92 Base Hospital, Srinagar, where his left leg was amputated below the knee. The petitioner was subsequently treated from time to time in various government hospitals, including 92 Base Hospital; Base Hospital, Jallandhar (upto 01.01.1996); Safdarjung Hospital, Delhi; PGIMS, 2016:DHC:2308-DB W.P.(C) 1252/2013 Page 2 Chandigarh, etc. He was fitted with a prosthetic leg at the Artificial Limb Centre. Earlier, a Staff Court of Inquiry (hereinafter referred to as “SCOI”) was conducted to investigate the circumstances under which the petitioner got injured on 03.12.1994. It completed its report, which concluded that injuries sustained by petitioner were attributed to active bona fide government duty.

3. The BSF’s Board of medical officers on 24.02.1996 placed him under “Low Medical Category CEE (Temp)” for six months. Thereafter, his medical category was assessed from time to time, and the last board of medical officers had assessed his medical category as S1H1A[5] (L) (P) P1E[1] and the petitioner was found unfit for further service in BSF. Thereafter, the BSF issued the impugned order, discharging him from its services.

4. The petitioner impugns his discharge from service as arbitrary. It is argued that the BSF did not consider all the materials including the previous medical records, and took an uninformed decision. The petitioner argues that the competent authority failed to appreciate that in Para 10 of Part A, which relates to “further treatment/investigation recommended” was ‘as advised by Ortho Specialist.’ It is urged that with respect to the details of period and date of injury/disease/injuries, both the Medical Board as well as the Competent Authority overlooked that the petitioner is capable of doing various light duties, which is generally assigned, to P[1] Category personnel. Here, it is argued that in the Medical Board Proceedings Part-I Para (VIII) which deals with Specialist opinion taken from time to time, states that: ‘On 17.07.2008 by Orthopedic Surgeon Distt. Hospital Bareilly to continue wearing prosthesis.’ On 22.10.2011 by Orth. Specialist, Govt. Civil Hospital, Hisar - advised for light duty.’ ‘On 27.03.2012 by visiting Orth. Specialist FHQ Hosp. – I, R.K. W.P.(C) 1252/2013 Page 3 Puram, New Delhi’ – Patient is independent to perform all his activities, however prosthesis needs to be installed. Disability be granted as per rule.’ On 23.05.2012 case seen by Senior Resident Deptt. of Orth. PGIMS, Chandigarh, opined that Adv. – Patient is fit to do light duty.’ ‘ On 29.08.2012 case seen by Senior Resident Deptt. of Orth.

5. As far as the petitioner’s suitability is concerned, urges counsel, there is no specific finding that he is unfit to serve the force. The opinion of Dr. Bablesh Kumar, Senior Medical Officer (SMO) 33rd Battalion., is relied upon. BSF took a fresh opinion on 11.09.2012 from Orthopedic Specialist, Govt. Civil Hospital, Hisar, which did not state anything adverse. However, the said SMO had made mala fide recommendations that the petitioner was “not fit for category SHAPE-I” and arbitrarily recommended that he be placed under medical category S1H1A[5] (L) P1E[1] for 60% disability. It was highlighted that having regard to more than 15 years reports, the SMO had arbitrarily changed the Petitioner’s medical category with the intention of dispensing with his services. It is submitted that the BSF ignored vital facts such as the fitting of the new prosthesis from PGIMS Chandigarh after which the petitioner’s working efficiency improved. In fact the SMO had recommended the case of the petitioner to be processed before a fresh Medical Board, without waiting for the positive result of new prosthesis, which was still under observation of senior doctors of PGIMS, Chandigarh. These are urged to say that the order of discharge was taken in haste.

6. The BSF in its counter affidavit, states that medical fitness of Force Personnel is assessed under 5 factors denoted by code “SHAPE”. The 5 factors/elements included in “SHAPE” are: W.P.(C) 1252/2013 Page 4 S - Psychological H - Hearing A - Appendages P - Physical Capacity E - Eye Sight

7. The functional capacity/efficiency and employability limitations for duties in the Force under each of the above 5 factors is graded on a scale of 1 to 5. It is contended that after the above incident of anti-personnel mine explosion, the petitioner was produced before a Court of Inquiry, whose determination led to his medical downgrading. However, in keeping with the policy, BSF did not terminate or discharge the petitioner from its services, but retained him. He was provided with prosthetics and assessed medically to determine his category and suitability to continue in service. The various dates on which the petitioner was assessed medically, and his categorization on each occasion, has been set out in a chart, which is extracted below:

┌───────────────────────────────────────────────────────────────────────────────────────┐
│          Sl.        Date of assessment      Petitioner’s        medical               │
│          No.                                category                                  │
├───────────────────────────────────────────────────────────────────────────────────────┤
│         1       24.02.96    by    Medical CEE (T) for 6 months                        │
│                 Officer                                                               │
│         2       24.09.96 by Medical Board CEE (T) for 1 year                          │
│         3       17.11.98 by Medical Board CEE (P) for 1 year                          │
│         4       04.05.01 by Medical Board CEE (P) for 2 years                         │
│         5       18.06.04 by Medical Board S1H1A3(L) (P) P1E1 for 2                    │
│                                           Years                                       │
│         6       19.07.06 by Medical Board S1H1A3(L) (P) P1E1 for                      │
│                                           96 Weeks                                    │
│ W.P.(C) 1252/2013                                                          Page 4     │
│                                                                    2016:DHC:2308-DB   │
│         7       28.01.09 by Medical Board S1H1A3(L) (P) P1E1 for                      │
│                                           96 Weeks                                    │
│         8       09.11.11 by Medical Board S1H1A5(L) (P) P1E1 for                      │
│                                           60% weeks                                   │
│         9       05.11.12 by Medical Board S1H1A5(L) (P) P1E1 for                      │
│                                           60%                                         │
│                                           disability                                  │
│         10      22.01.13     by    Review S1H1A5(L) (P) P1E1 for                      │
│                 Medical                   60%                                         │
│                 Board                     disability.                                 │
│ 8.     BSF submits that factor A under the SHAPE Medical category                     │
└───────────────────────────────────────────────────────────────────────────────────────┘

14. The petitioner had received medical treatment; the BSF helped him to secure better prosthetics just before issuing the impugned order. The petitioner was on sedentary duties from August, 2010. There is no document showing that any effort was made by the BSF to locate a sedentary type of job or posting for the petitioner. Unlike in cases of disease or chronic conditions that members of the para-military forces develop during their career, in the case of the petitioner, the injuries incurred were virtually combat related, or incurred in war-like situations. In these circumstances, the BSF could not have, consistent with its duty to be fair to someone who was retained for over 15 years after the injury, not have explored ways of ensuring how he could be further retained in service. Even otherwise, the BSF owed a duty to ask the petitioner- after finding out whether he could be retained in desk posting or sedentary jobs - whether he was willing to seek premature or voluntary retirement according to its policies. These steps were not followed. As a result, his 22 years might well result in deprivation of W.P.(C) 1252/2013 Page 11 pension and a life with no further prospects, despite his fitness in other parameters.

15. In these circumstances, the Court is of the opinion that the BSF must, consistent with its policies, reinstate the petitioner, first explore the possibility of assigning a sedentary job and if there is none available, then offer the option of voluntary retirement to him. In the event of the latter, the period between 28.02.2013 and the later date of voluntary retirement shall be treated as having been spent on duty- in other words, the said period shall be added to his service, so as to ensure that his service benefits also increase proportionately (pension, gratuity, commutation, etc). However, he shall not be entitled to arrears of salary, etc. The writ petition is allowed in these terms.

S. RAVINDRA BHAT

(JUDGE)

DEEPA SHARMA (JUDGE) MARCH 18, 2016