Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 11.01.2016
Pronounced on: 18.03.2016
+ W.P.(C) 1252/2013, C.M. NO.2370/2013
RATI RAM ………Petitioner
Through: Sh. Arun Srivastava, Advocate.
Versus
UNION OF INDIA AND ORS. ……..Respondents
Through: Sh. Ruchir Mishra, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT
%
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
th rd
29 Battalion BSF (Now 33 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,
W.P.(C) 1252/2013 Page 1
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 S1H1A5 (L) (P) P1E1
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 P1 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 2
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. PGIMS Chandigarh who opined
that – no specific complaint and advised to review after 4
months’.
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.
rd
Bablesh Kumar, Senior Medical Officer (SMO) 33 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 S1H1A5 (L) P1E1 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 3
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.
No.
Date of assessment Petitioner’s medical
category
1 24.02.96 by Medical
Officer
CEE (T) for 6 months
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
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
Medical
Board
S1H1A5(L) (P) P1E1 for
60%
disability.
8. BSF submits that factor A under the SHAPE Medical category
denotes Appendages i.e. functional efficiency of upper and lower limbs
(including amputees, loss of fingers and toes), shoulder girdle pelvic girdle
and associated joints and muscles. One placed in numerical grade A2 is
generally fit for duties anywhere except in hilly terrain. Someone placed in
numerical grade A3 is not fit for operational/Counter insurgency duties. The
numerical figure A4 stands for sick, in Hospital/rest on medical ground and
such personnel are temporarily unfit for force duties. The figure A5 denotes
severe derangement of functional efficiency and liable to be permanently
unfit for force duties. It is further stated that the functional capacity and
employability limitations of a person who is placed under categories A1 to
A5 is as under:-
Numeric
al grade
Functional capacity Employability
limitations
A-I Has full functional capacity
though may be having
minor impairment
Fit for all duties
anywhere.
A1 (L) Loss of terminal phalanges
rd th
of 3 and 4 toe of any one
Fit for duties
anywhere
W.P.(C) 1252/2013 Page 5
foot
except
operational/IS
duties/
during hostility.
A2 (L) Has a defect/disease or
disability of a moderate
nature in one limb below
knee capable of marching
upto 8
KM and standing for 2
hours
Fit for all duties
which
do not involve
crawling, running,
jumping long
marching, hill
climbing and
handling of
weapons.
A3 (L) Has a disease or disability
above
knee on one side including
pelvic
girdle, but should be able
to walk
upto 5 km at his own place.
Fit for sedentary
duties only. Not fit
for high
altitude/operational/
CI/IS duties.
A-4 Sick, in hospital/rest on
medical
ground
Temporary unfit for
force
Duties
A-5 Severe derangement of
functional efficiency
Permanently unfit
for
Force duties.
The BSF has produced a copy of the elaborated functional capacity and
employability limitations of its employees with its counter affidavit.
9. According to the BSF, the petitioner has not disclosed to this Court
that he applied for compensation in the year 1998 which was forwarded by
th
letter dated 16.06.1998 of the Coy Commandant 25 Battalion BSF. The
Medical Board at that time examined him, assessed his disability to the
W.P.(C) 1252/2013 Page 6
extent of 60% and the Board’s proceedings were approved by the competent
authority on 16.02.1999. Therefore, the BSF denies that the petitioner was
assessed as disabled to the extent of 60% to throw him out of BSF service;
the fact of the matter is his disability was determined to the extent of 60% by
the Board of Officers on 17.11.-1998 itself. Based on the prevailing
guidelines, the sum of 49,518/- (Rupees forty nine thousand five hundred
`
eighteen only) was paid to the petitioner as disability compensation and
entry was made in his service records. BSF relies on Rule 9 (4) of CCS
(EOP) Rules, and Circular No.04/2000 dated 25.08.2000 of BSF inter alia ,
stipulating that if a Force personnel is retained in the service despite the fact
that he has been disabled and the amount of capitalized value is claimed and
paid under Rule 9 (4) of CCS (EOP) Rules such claims on account of that
disability stand settled. In case such person (who has been paid disability
compensation) is boarded out later, he will get only normal invalidation
pension even if he is boarded out on account of that particular disability.
And that, no person who has been paid lump-sum compensation for
disability, will be entitled to disability pension in the event of being
medically boarded out subsequently.
10. With regard to the petitioner’s further retention in service and the
suitability certificate given by the then Commandant, 25 Battalion BSF to
perform sheltered appointment/sedentary duties and also that he was suitable
for retention, it is urged that the petitioner was retained in BSF service as per
policy decision circulated by Medical Directorate FHQ BSF New Delhi
L/No.13/19/80-CMO/BSF dated 02.03.1981, regarding Low Medical
Category (LMC) personnel and which was further inserted as a guideline in
the BSF Medical Directorate Manual (Vol-IX). It is stated in this context
W.P.(C) 1252/2013 Page 7
that according to the policy, all mine blast injuries or amputated cases whose
disability is attributable to service should be retained till they complete 20
years of service. It is submitted that such person needs to be encouraged to
proceed on voluntary retirement for pension on completion of 20 years of
service, which is mandatory for earning normal pension benefits.
Accordingly, the petitioner was retained on duty. He completed 20 years’
service. The BSF alleges that the petitioner has suppressed the fact that he is
rd
not performing any duty including sedentary duty in the unit (33 Battalion
BSF, Hissar) since August, 2010. It is submitted that the petitioner appeared
before Medical Board on 09.11.2011 where he was placed in medical
category S1H1A5 (L) (P) P1E1 w.e.f. 09.11.2011 and considered unfit for
further service in BSF with 60% disability. Thereafter, he was produced
before Medical Board on 05.11.2012 to assess his present medical category.
Then the Board of medical officers again placed the petitioner under low
medical category S1H1A5(L) (P) P1E1 with 60% disability of permanent
nature and declared him as unfit for further service in BSF. He appeared
before the Review Medical Board on 22.01.2013, and was found unfit for
service in BSF with 60% disability. It highlighted that the petitioner has not
challenged the conclusion and findings of Medical Board by which he was
found unfit for service in BSF. Consequently, he is not entitled to seek
quashing of order, dated 05.02.2013 and the order dated 19.02.2013 as they
have been passed on the findings and assessment of petitioner’s medical
fitness.
Analysis and Findings
11. It is apparent from the above factual narrative that the petitioner was
enrolled in the BSF, in 1990; on 03.12.1994, he suffered injuries on account
W.P.(C) 1252/2013 Page 8
of a mine blast incident, whilst on duty. A Court of Inquiry was conducted;
he was hospitalized for some time and received treatment for quite a while.
The injuries led to amputation of his leg, below the knee. The BSF continued
to employ him; he underwent treatment whenever required. He was given
the compensation (less than ` 50,000/-, at the relevant time, in 1999.
12. This Court had called for the records at the time of hearing and has
considered the same. A reading of the record would show that from
18.06.2004 onwards, his medical category was assessed as S1H1A3(L) (P)
P1E1. According to the applicable guidelines, this categorization meant that
he was fit only for sedentary duties. This categorization continued right up to
2011. On 09.11.2011, for the first time, the categorization was revised,
downwards; it was recorded as S1H1A5(L) (P) P1E1. No doubt this grading
was recorded by three doctors and confirmed later, 05-12-2012 and 22-01-
2013 in review. The Court notices that the petitioner was on sedentary duties
throughout; the last time he was posted, was in August 2010, when he was
stationed to man a milk booth. The medical records show that in respect of
all other vitals, the petitioner was assessed as fit. In these facts, the BSF
doctors might well have followed its instructions zealously in assigning the
S1H1A5(L) (P) P1E1 category to the petitioner, since he had put in 22 years’
service. The Court is of the opinion that the BSF’s policy to “encourage” its
personnel who incur combat injuries to seek voluntary retirement after 20
years of service is a “one size fit all” one, which when applied uniformly,
would result in situations like the present case; the entire Force would be
geared to ensure that the injured personnel is made to feel unwanted. The
medical establishment too would be in such background in a frame of mind
that would lead to the personnel’s exit.
W.P.(C) 1252/2013 Page 9
13. There is no doubt that the BSF does not have a disability related
rehabilitation policy; it is also a fact that the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
does not apply to the para-military forces. The blind uniformity of treatment
in seeing injured members of the Force out of the service, as a general policy
(by encouraging them to seek voluntary retirement after 20 years) would rob
individual members of a fair chance to continue in the BSF, having regard to
the experience gained in other work, which is not field or combat related. A
force as large as the BSF- with over 2.5 lakh personnel would have a
significant administrative and support staff component, where these injured
personnel can be assessed for work.
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 10
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
W.P.(C) 1252/2013 Page 11