High Court · 2012

Heard Mr. C. Deka, learned counsel for the petitioners. Also heard Mr. S. Chakra borty, learned CGC. The basic grievance raised in the writ petition is in respect of the Annexure-8 order dated 30.4.2011 by which the appointment order issued in favour of the pet itioners have been withdrawn on the ground of the same having been issued inadve rtently as the petitioners have been declared medically unfit for appointment as Constables (GD) in the BSF. Mr. C. Deka, learned counsel for the petitioners su bmits that once the petitioners had been appointed pursuant to a successful sele ction undertaken by the petitioners, their appointment could not have been dispe nsed with in the manner in which the respondents have done by issuing the impugn ed order on 30.4.2011. The respondents have filed their counter affidavit denying the pleas raised by t he petitioners. It has been stated that since both the petitioners have been fou nd to be medically unfit due to (cid:28)colour blindness and low standard vision (cid:29) respe ctively, their provisional appointment had to be withdrawn. It has been stated t hat due to inadvertent mistake, the petitioners had been offered with provisions appointment but on detecting the said mistake, the same were withdrawn. It has also been stated that the petitioners were sent for a review medical board for r e-examination as per the appeal / review petition filed by the petitioners. The review medical board has also opined that the petitioners are medically unfit no t only due to colour blindness and low standard vision respectively. From the materials on record, it appears that during the selection when the peti tioners were medically examined, it was found that they were suffering from colo ur blindness and low standard vision respectively. Such medical unfitness was re flected in the medical history sheet Part-II and III prepared by the Medical Off icer, which were also signed by the petitioners as a token of acknowledgement. After the preliminary medical examination conducted by the Presiding Officer of the Selection Board, the petitioners were put to detailed medical examination i. e. Part-II and Part-III, where they were again found medically unfit but during preparation of recruitment board proceeding, names of the petitioners were incl uded in the list of fit candidates erroneously. Although, as noticed above, both of them were declared medically unfit by the Medical Officer with clear endorse ment in the medical history sheet of Part-II and III. The aforesaid fact of being medically unfit was informed to the petitioners and they were also given opportunity to apply for review medical board. As against t he claim of the petitioners that they have been appointed in the services of the BSF as Constables (GD), it has been stated in the counter affidavit that the pe titioners were not engaged in the training but only platoons were allotted to th em. Be that as it may, the petitioners duly applied for consideration of their c ases by review medical board and accordingly review medical examination was cond ucted in which also they were found to be medically unfit due to colour blindnes s and low standard vision respectively. Mr. C. Deka, learned counsel for the petitioners submits that the respondents af ter having appointed the petitioners as Constable (GD), could not have been sent for review medical examination on the ground of they being medically unfit. Acc ording to him, the manner in which the services of the petitioners have been dis pensed with, same is violative of the principles of natural justice. Countering the above argument, Mr. S. Chakraborty, learned CGC submits that it b eing a case of inadvertent mistake towards issuance of offer of appointment, the respondents were always within its competence and jurisdiction to correct the e rror. He further submits that since the petitioners were not engaged as such in the training but only platoons were allotted to them, the offer of appointments were withdrawn on noticing the fact of medical unfitness on the part of the peti tioners. He also submits that since the petitioners themselves applied for revie w medical examination following which the review medical examination was also co nducted, the petitioners are not entitled to raise the plea of violation of prin ciples of natural justice. The fact of the matter is that the petitioners were never appointed but only all otted platoons. The fact of the matter is also that during medical examination, they were found to be medically unfit due to colour blindness and low standard v ision respectively. Further due to inadvertent mistake, same went un-noticed and consequently the offers of appointment have been issued. When the mistake was d etected, action in the matter was taken and the petitioners were also given opti on to apply for review medical examination, which they did accordingly. However, the review medical board also found the petitioners medically unfit. In such a situation, it cannot be said to be a case of violation of principles of natural justice and cancellation of appointment without any notice, etc. When the matter was last taken up on 26.9.2012, Mr. S. Chakraborty, learned CGC was directed to obtain instruction as to whether the review medical board was co nstituted with a specialist on the subject in which the petitioners have been de clared medically unfit. He fairly submits that there was no specialist in the re view medical board in respect of the category in which the petitioners have been declared to be medically unfit. As noted above, the ground on which the petitioners have been declared to be med ically unfit is colour blindness and low standard vision respectively. Thus, the review medical board ought to have been constituted with an Eye Specialist, whi ch admittedly was not done. In view of the above, the writ petition is disposed of directing the respondents to re-examine the case of the petitioners by constituting a review medical boar d consisting of at-least one Eye Specialist along with other members of the boar d. Depending upon the outcome of the said review medical examination, further fo llow up action shall be taken in the matter. Let the review medical board shall be constituted within a month with due intima tion to the petitioners for appearance before the said medical board for re-exam ination. With the above directions and observations, the writ petition stands disposed of , without however, any order as to costs.