High Court
Case Details
WP(C) 5973/2011 BEFORE HON’BLE MR JUSTICE BK SHARMA JUDGMENT AND ORDER (ORAL)
Legal Reasoning
Heard Ms K Akhtar, learned counsel for the petitioner. Also heard Mr J D 1. eka, learned CGC appearing for the respondents. While challenging the Annexure-2 Discharge Certificate and for that matt 2. er discharge from service on medical ground w.e.f. 31.3.2001, the petitioner has also prayed for a direction to the respondents to reinstate him in service purs uant to particular recommendation of the Medical Board that was constituted as p er the direction of this Court vide order dated 7.12.2010 passed in WP(C) No. 53 14/09. 3. The petitioner while in service as Rifleman in the Assam Rifles, was dis charged from service on medical ground w.e.f. 31.3.2001. Since then he is in rec eipt of invalid pension. After 6 years of such discharge from service on medical ground with invalid pension the petitioner filed a writ petition being WP(C) No . 2959/2007 before the High Court of Delhi, which was disposed of by order dated 11.4.2007 granting liberty to the petitioner to approach the Court of competent territorial jurisdiction in the matter. As recorded in the said order the reaso n for non-grant of disability pension to the petitioner was due to the finding o f the Medical Board that the disease which the petitioner was suffering from was neither attributable to nor aggravated by military service. As recorded in the said order if the petitioner was really aggrieved by the conclusion reached by the Medical Board, it is the said opinion formed by the Medical Board, was to be challenged. Simultaneously it was also held that the Medical proceeding was not within the jurisdiction of Delhi. 4. From the above what is seen is that in the said writ petition the griev ance agitated by the petitioner was in respect of non-granting of disability pen sion which according to the respondents the petitioner was not entitled to as th e disease from which he suffered was neither attributable to nor aggravated by military service.
Decision
After the aforesaid development the petitioner filed the writ petition b 5. eing WP(C) No. 5314/2009 before this Court, which was disposed of by order dated 7.12.2010 with the following direction :- (cid:28)9. Considering the above, I am of the view that ends of justice would be served if the respondents are directed to subject the petitioner to a fresh medical as sessment to consider whether the petitioner is suitable and fit for re-enlistmen t in service, since it was declared so in the Discharge Certificate issued to hi m. Accordingly the commandant of the 15 Assam Rifles is directed to take necessa ry steps to have the petitioner examined by a competent Medical Boar, to decide as to whether he can be re-enlisted in the organization in the Civil Police, as was specified in the Discharge Certificate dated 31.3.2001. 10. The petitioner is accordingly permitted to report before the Commandant of t he 15 Assam Rifles on or before 21.2.2011. On such reporting the Commandant woul d ensure a Review of the medical condition and fitness of the petitioner to asse ss his suitability for re-enlistment. 6. After the aforesaid order a Medical Board was constituted which examined the petitioner and upon such examination it was certified that the petitioner c ould be enlisted into service for doing light duty only. However, it was observe d that he would need to follow up with the concerned medical unit once a year, c onsidering the medical history. The said certificate is dated 3.2.2011. Thereaft er by the impugned order dated 21.7.2011 (Annexure-10) the authority in the Assa m Rifles having rejected the claim of the petitioner for re-enlistment, the peti tioner once again approached this Court by filing the instant writ petition. The grounds for rejection of the claim of the petitioner for re-enlistment as enume rated in the impugned order are as follows:- (cid:28)4. Now therefore the matter was placed before the Director General Assa m Rifles, being the competent authority who has holistically considered the rec ommendations of the Review Medical Board in the Light of Hon’ble Court judgment existing rule position and the overall interest of the organization and securit y of the state and reached a conclusion that Ex No. 153627W Rifleman (General Du ty) Bir Bahadur Chand is not fit for re-enlistment into Assam Rifles Service du e to the following reasons . a) Assam Rifles is an Armed Force of the Union deployed in the North Easter n Frontier infested with insurgency where a high degree of physical fitness of t roops to operate in the counter insurgency areas is of paramount importance. The petitioner belonged to General Duty category but does not have the full physica l competence to perform combat duties as per the opinion of Review Medical Board and when faced with a combat situation, he may not be able to do self defence b esides endangering own life and security of fellow soldiers. b) The re-enlistment of petitioner into service will directly impinge on th e administrative and fighting potential of the subunit of which he will form pa rt, and thereby affect operational cohesiveness of his unit. c) The petitioner is enjoying the pensionery benefits for the last 10 years at his home. His reinstatement into service on light duties will be against the established policy instructions regulating discharge of Armed Forces personnel on medical grounds. Further re-enlistment of petitioner into Assam Rifles servic e will set a wrong precedent in like cases in future and would thus be detrimen tal to organizational interests and service ethos. (cid:29) 7. Ms Akhtar, learned counsel for the petitioner submits that having regard to the fact that in spite of the discharge of the petitioner from service on me dical ground, as recorded in the Discharge Certificate, the petitioner being sui table for service in civil police the authority in the Assam Rifles ought to hav e considered that aspect of the matter instead of discharging the petitioner on medical ground. Referring to the documents produced in course of hearing she sub mits that there are available civil posts not involving in heavy duty in which t he petitioner can very well be accommodated. 8. Countering to the above argument, Mr J Deka, learned CGC, on the other h and, submits that the petitioner having been discharged from service on medical ground way back in 2001 ( 31.3.2001) and the petitioner having accepted the same only with the reservation of claim for disability pension, he cannot claim for re-enlistment. 9. Supporting the impugned order and the grounds assigned therein, he also submits that all the posts in the Assam Rifles have been combatised, the petitio ner in the background of his medical incapacity will not be fit for re-enlistmen t, more particularly, when the Assam Rifles is engaged in various defence duties including countermanding the insurgency activities. 10. Referring to the decision reported in 1995 Supp (4) SCC 278 (Union of I ndia vs Binod Bihari Behera), Mr Deka, learned CGC further submits that the grou nds on which re-enlistment of the petitioner has been denied is not required to be interfered with exercising jurisdiction under Article 226 of the Constitution of India. I have given my anxious consideration to the submissions made by the lea 11. rned counsel for the parties and have also perused the entire materials on recor d. My finding and conclusions are as follows :- 12. Long 12 years have gone by since the petitioner was discharged from serv ice on medical ground. There is nothing on record to show that the petitioner ha d raised any grievance in respect of the order of discharge dated 31.3.2001. He sent a legal notice to the Union of India on 5.9.2005 only demanding rejoining o f duty. Thereafter he approached the Delhi High Court by filing WP(C) No. 2959/2 007. As it appears from the order passed in the writ petition, the argument adva nced was for grant of disability pension. It was in such circumstances the Delhi High Court opined that if the petitioner was really aggrieved by the conclusion reached by the Medical Board that his disability is neither attributable to nor aggravated by military service, it was open for him to challenge the said concl usion and the writ petition was dismissed on the ground of lack of territorial j urisdiction. 13. After the aforesaid dismissal of the writ petition the petitioner approa ched this Court by filing the writ petition being WP(C) No. 5314/2009 which was disposed of by the above quoted order dated 7.11.2010. In the typed copy of the Discharge Certificate under the column (cid:28)Is he recommended as suitable for re-en listment in Assam Rifles of Police? (cid:29) the remark furnished was (cid:28)Yes in Civil Poli ce (cid:29). It is in reference to the said column and the remark thereof, it was submit ted by the learned counsel for the petitioner that the petitioner could have bee n engaged in any civil job in the Assam Rifles. But on perusal of the original copy of the Discharge Certificate what is found is that the petitioner was suit able for civil police and the remarks under the Head (cid:28)Is he recommended as suit able for re-enlistment in Assam Rifles or police? (cid:29). This variation of (cid:28)of (cid:29) and (cid:28) or (cid:29) made the projection that the petitioner was entitled to get re-enlistment in Assam Rifles as Civil police. However, the remark was that the petitioner could be re-enlisted in Civil Police and not in Assam Rifles. 14. Admittedly, the posts involving the Assam Rifles are all combatised. In this connection, Mr J Deka, learned CGC has produced a letter dated 19.9.1989 on the subject of combatisation of ministerial and other civilian posts in the As sam Rifles Hqrs. By the said letter it was conveyed that all civil posts in Assa m Rifles would stand combatised. It is in reference to combatisation of civil po sts the authority in the Assam Rifles passed the impugned order dated 21.7.2011 holding that the petitioner cannot be enlisted in Assam Rifles posts. As recorde d in the said order the Assam Rifles being an Armed Force of the Union deployed in the North Eastern Frontier infested with insurgency where a high degree of ph ysical fitness is required it will not even be suitable to re-enlist the petitio ner to perform combat duties. 15. As recorded in the impugned order, re-enlistment of the petitioner in th e services of the Assam Rifles will not be conducive having regard to the nature of the job and more particularly when the petitioner has been enjoying the pens ionery benefit for the last more than 10 years. The Assam Rifles being an armed force physical fitness for combatised service is a must. The petitioner was dis charged from service on medical ground and if it is not the case of the petition er that the said medical ground has ceased to exist. What has been submitted is that the petitioner is now fit to undertake light duty of civil nature. As per t he opinion of the Medical Board and as reflected in the Discharge Certificate, a t the time of discharge from service the petitioner was suitable for civil polic e and not for Assam Rifles. The said situation is not changed merely because som e vacancies are available. The petitioner cannot claim that he should be enliste d against once such vacancy with light duties. Having regard to the fact that th e posts in Assam Rifles are combatised and high degree for physical fitness is r equired, the grounds on which the respondents have rejected the case of the peti tioner for re-enlistment cannot be said to be arbitrary, unreasonable and legall y not sustainable. 16. In Binod Behera (supra), the Apex Court dealing with the particular situ ation in which the judicial scrutiny was required held that it was not for the H igh Court to sit on appeal over the findings recorded by the authority of the CI SF. As in the instant case, in the said case also, re-enlistment was sought for but the same was refused. It was held that refusal is not being arbitrary the Wr it Court was not competent to sit on appeal over the findings of the authority. 17. For all the aforesaid reasons the relief prayed for by the petitioner ca nnot be granted and that too after long 13 years of discharge from service on me dical ground. As noted above the petitioner is in receipt of invalid pension. The writ petition is dismissed. There shall be no order as to costs.