Shri Niraj Kum ar v. Union of India and ors.) and order dated
Case Details
WP(C) 735/2013 BEFORE HON’BLE THE CHIEF JUSTICE (ACTING) HON’BLE MR JUSTICE A. K. GOSWAMI (Goswami,J) All the writ petitions, which are dismissed, namely, WP(C) 735/2013, WP(C) 765/2 013, WP(C) 771/2013 and WP(C) 782/2013, and the pending writ petitions, namely, WP(C) 734/2013, WP(C) 768/2013, WP(C) 770/2013, WP(C) 774/2013, WP(C) 766/2013 h ad been filed challenging the order, dated 27.12.2012, issued by the Deputy Comm andant, Staff Officer-(I) (Recruitment) for Brigadier (Personnel), Assam Rifles. The learned Single Judge had dismissed the writ petitions, namely, WP(C) 735/2 013, WP(C) 765/2013, WP(C) 771/2013 and WP(C) 782/2013 by order dated 03.12.2013 , as against which writ appeals, namely, WA 153/2014, WA 119/2014, WA 178/2014, WA & &/2014 (Sl. No. 220943) have been filed.
Legal Reasoning
2. We have heard Mr. R. Mazumdar, learned counsel for the writ petitioners/ appellants. We have also heard Mr. S. C. Keyal, learned Assistant Solicitor Gen eral, appearing for the respondents. The writ petitioners as well as the writ appellants had qualified in a r 3. ecruitment test conducted by the Assam Rifles authorities for recruitment to var ious posts, and, consequently, they were enrolled in the Assam Rifles and, at th e time of enrollment, the petitioners/ appellants were medically examined by the competent medical authorities of the Recruitment Board and they having been fou nd to be fit in all respects, were sent for training at the Assam Rifles Trainin g Centre and School, Dimapur. At Dimapur, they were subjected to further medica l examination by the Assam Rifles authorities, wherein they were declared medica lly unfit and were discharged. 4.
Decision
Against the orders of discharge, writ petitions came to be filed and the learned Single Judge had disposed of the writ petitions by order dated 10.08.20 12 with the observations and directions as follows: (cid:28)Referring to the order 17.11.2009 passed in WP(C) No. 2320/2009 (Shri Niraj Kum ar vs. Union of India and ors.) and order dated 01.06.2010 passed WP(C) No. 3041 /2009 (Shri Sumanta Biswas vs. Union of India and ors.) and the order dated 10.0 6.2010 passed in four writ petitions being WP(C) 2593/2009 (Sanjay Kumar Tiwari vs. Union of India and ors.), WP(C) 2475/2009 (Ashok Kumar vs. Union of India an d ors.), WP(C) 4608/2008 (No. TC-61593 Rect/GD Prabhu Dayal vs. Union of India a nd ors) and WP(C) No. 2313/2009 (Balwinder Kumar vs. Union of India and ors.), l earned counsel for the petitioners submit that the instant batch of writ petitio ns is governed by the said orders. By the said orders, direction was issued to the respondents to constitute a fresh appeal/review medical Board comprising at least one Doctor having experience in the particular field of disability and to examine the case of each one of the petitioners. For a ready reference, the ope rating part of the order dated 10.06.2010 is quoted below: (cid:28) ’Without expressing any opinion on the merit of the case of the petitioners, all the writ petitions are disposed of with the direction that the authorities of t he Assam Rifles shall constitute a fresh appellate medical board comprising of a t least one doctor having expertise in the particular field of disability. The said medical board shall examine each one of the petitioners on their medical in capacity so as to find out as to whether they are medically fit for appointment as GD Rifleman. Independent of such re-medical examination of the petitioners, it will be open for the Assam Rifles authority to verify the authenticity or oth erwise of the certificates annexed to the writ petition, inasmuch as, same may h ave a bearing in the matter of appointment in the disciplined force like Assam R ifles.’ (cid:28)This batch of writ petitions is also disposed in terms of the above order. In WP(C) 1806/2012 (No. TC-M/61620 Rect/NA Shri Sajjan Kumar), it has been state d in the counter-affidavit that the petitioner has made misleading statements an d that there is suppression of material facts. Since the respondents are now en titled to verify the authenticity or otherwise of the certificates annexed to th e writ petition, it will be open for the respondents to deal with the case of th e said petitioner appropriately and in accordance with law. In view of the submissions made by the learned counsel for the respondents that irrespective of the earlier medical incapacity, during this long period of time since discharge of the petitioner way back in 1991 the petitioners might have be come unfit for engagement in Assam Rifles, it is provided that while considering the case of the petitioners in respect of the medical incapacity, in reference to the earlier finding of the medical board, it will also be open for the respon dents to consider that aspect of the matter while taking a decision in this rega rd. Let the above exercise be carried out as expeditiously as possible preferably wi thin 30.10.2012. With the above direction, the writ petitions are disposed of without, however, a ny order as to costs. (cid:29) It has been pointed out by the learned counsel for the parties that the 5. order of discharge of the writ petitioners/writ appellants was issued in the yea r 2001 and there is a typographical error in the order of the learned Single Jud ge, dated 10.08.2012, wherein the year of discharge of the writ petitioners have been recorded as 1991. 6. Pursuant to the order of this Court, dated 10.08.2012, the petitioners w ere advised to attend Appeal Medical Board for medical examination and to report , for such purpose, at MI room, Assam Rifles’ Construction and Maintenance Compa ny, Laitkor, Shillong, on 03.10.2012. In the medical examination conducted by t he Appeal Medical Board, the petitioners were found fit. Thereafter, the impugn ed order, dated 27.12.2012, was passed rejecting the case of the petitioners for enrollment into Assam Rifles as per the existing enrollment policy due to the p etitioners being over-aged. In the said order, dated 27.12.2012, issued individ ually to all the petitioners, it was recorded that they were found fit in relati on to their incapacity for which they had been declared unfit earlier. 7. Mr. Majumdar, learned counsel for the appellants as well as for the writ petitioners submits that pursuant to the directions of this Court, the petition ers were re-examined and, upon such re-examination, all of them were found fit a nd, as such, the stand taken in the impugned order, dated 27.12.2012, holding th em to be over-aged for strenuous training of the force cannot be sustained. He submits that the petitioners were enrolled into Assam Rifles and subsequently th ey were discharged from the Assam Rifles before completion of necessary basic tr aining, purportedly due to medical incapacity and, therefore, the contention of the respondents, in the order dated 27.12.2012, that the petitioners’ cases for enrollment against the existing employment policy cannot be considered due to th eir being over-aged is without any merit inasmuch as the petitioners had already been enrolled into Assam Rifles. He also submits that the petitioners should be given the opportunity to complete the necessary basic training, which could not be completed due to their arbitrary discharge. It is further submitted by Mr. Majumdar that if the petitioners/appellants are unable to complete the necessary basic training for any reason, the authorities may be justified in not issuing appointment order to them, but if they successfully complete the basic training, they must be offered appointment as, at the time of submitting application for appointment, they were in the required zone of age. 8. Mr. S. C. Keyal, learned Assistant Solicitor General of India submits t hat on a consideration of the materials on record, the learned Single Judge uphe ld the order dated 27.12.2012 on the ground that the petitioners had become over -aged for employment in the Assam Rifles. He submits that no interference is ca lled for with the impugned order of the learned Single Judge and the other pendi ng writ petitions also deserve to be dismissed. We have considered the submissions of the learned counsel for the partie 9. s and have also perused the materials on record. 10. The names of the writ petitioners/writ appellants, the post for which th ey had applied, the ground on which they were declared medically unfit and the d ates of their respective discharge certificates and the authority which issued t he discharge certificates etc., are given hereinbelow in a tabular form: Post applied for Ground o Discharge Certificate i Sl. No. Name of the petitioner/appellant f discharge ssuing authority 1 Date of issuing discharge Certificate FINE TRE Commandant, ORC Trg Team, Assam Rifles Training LMC EEE VERICOSE Commandant, ORC Trg Team, Assam Rifles Training Centre a Rifleman General Duty LMC EEE FINE TREMORS BOT Commandant, ORC Trg Team, Assam Rifles Training Centre a VEINS Devi Shanker WP(C) 770/2013 Washer-man in the Assam Rifles Hans Raj WP(C) 768/2013 Safai Karmachari Naresh Kumar WP(C) 734/2013 09.10.2001 nd School, Dimapur 2 H HANDS 09.10.2001 nd School, Dimapur 3 MORS BOTH HANDS 09.10.2001 Centre and School, Dimapur 4 Ramesh Kumar WP(C) 774/2013 09.10.2001 BOTH HANDS Centre and School, Dimapur Ashok Kumar WP(C) 766/2013 5 OCK KNEES 09.10.2001 Centre and School, Dimapur 6 FINE DIGITAL TREMORS 09.10.2001 raining Centre and School, Dimapur 7 HALLUX VALGUS WITH B UNION RT 09.10.2001 Rifles Training Centre and School, Dimapur 8 Sandeep Kumar WA 178/2014 [In WP(C) 735/ 2013] 09.10.2001 LMC EEE VARICOSE VEIN LEFT LEG AND DEFORMITY RIGHT LITTLE TOE Commandant, ORC Trg Team, Assam Rifles Training Centre and School, Dimapur Sajjan Kumar WA 153/2014 [In WP(C) 771/ 2013] Washer-man in the Assam Rifles Nursing Assistant Birender Singh WA 119/2014 [In WP(C) 765/ 2013] Rifleman General Duty VARICOCELE LT KN Commandant, ORC Trg Team, Assam Rifles Training Rifleman General Duty TREMORS Commandant, ORC Trg Team, Assam Rifles Training Commandant, ORC Trg Team, Assam Rifles T Commandant, ORC Trg Team, Assam Rifleman General Duty Vikram Singh WA & &./2014 (Sl. No. 220943) [In WP(C) 782/ 2013] 9 09.10.2001 Rifleman General Duty nt, ORC Trg Team, Assam Rifles Training Centre and School, Dimapur COARSE TREMORS BOTH HANDS Commanda 11. From the letters dated 27.12.2012 issued to the petitioners individually , it appears that the upper age limit for recruitment in the Assam Rifles is 18 to 23 years for General category, 18 to 26 years for OBC category and 18 to 28 y ears for SC category candidates and that all the petitioners had crossed the pre scribed upper age limit. It was recorded that an over-aged person cannot be enr olled and that the rationale behind the policy is that an over-aged person canno t be allowed to undergo the strenuous basic training of the force. 12. A perusal of the order of the learned Single Judge would go to show that the learned Single Judge had taken note of the fact that the petitioners had ap proached this Court belatedly in the earlier round of litigation. The learned S ingle Judge also took note of the earlier order of this Court, dated 10.08.2012, permitting the respondent authorities to also consider the fact that the petiti oners might have become unfit for engagement in Assam Rifles bearing in mind the ir discharge in the year 2001. 13. It may be that when the writ petitioners approached this Court in the ea rlier round of litigation, there was some delay. However, the writ petitions we re not dismissed on the ground of delay and laches and directions were issued fo r re-examining each of the petitioners by constituting a fresh Appeal Medical Bo ard. As has been noted earlier, the Appeal Medical Board had found all the peti tioners to be fit. 14. The impugned order dated 27.12.2012 itself indicates that the petitioner s were enrolled into Assam Rifles. They were found to be unfit during final med ical examination and, consequently, discharged from the Assam Rifles before comp letion of the necessary basic training. It is also very significant to note tha t all the petitioners, who had been found unfit by the authority in the Assam Ri fles, have been found fit by the Appeal Medical Board. The discharge orders of the petitioners were issued as they had been found medically unfit. Now, the Ap peal Medical Board having found the petitioners medically fit, the very foundati on of the discharge orders do not survive and/or exist and as such the petitione rs must be deemed to be in enrollment in Assam Rifles and, as a corollary, they must be afforded the opportunity to undergo and complete the necessary basic tra ining, which they had been undergoing before their discharge. If they can succe ssfully complete the training, they must be appointed to their respective posts. The question of over-age will not come into play in the factual matrix of thes e cases as, at the time of their enrollment in the year 2001, the petitioners/ap pellants were very much in the age group as prescribed for appointment in the As sam Rifles. 15. In the result, the writ petitions as well as the appeals are allowed. T he impugned order of the learned Single Judge, dated 03.12.2013, as well as the impugned order dated 27.12.2012, issued by the Deputy Commandant, Staff Officer- (I) (Recruitment) for Brigadier (Personnel), Assam Rifles are set aside. The re spondents are directed to call the petitioners/appellants, within a period of on e month from the date of receipt of a certified copy of this order, for undergoi ng the basic training. The petitioners/appellants may obtain certified copy of this order and produce the same before the authorities concerned for doing the n eedful. 16. he appeals stand disposed of. With the above observations and directions, all the writ petitions and t