Allowed

Ex TC-M/371384 Rect/Na Sri Sant Lal v. the Union of India AND3 Ors.

Gauhati HC7 Jun 2019Review.Pet./111/2018

Case brief

AI extract

What is this about?

Gauhati High Court allowed a review petition challenging a writ order dismissing a recruitment appeal. The Court found a contradiction between the Review Medical Board's finding of unfitness and a Specialist Doctor's report showing normal hearing. The Court recalled the earlier order and directed respondents to constitute a new Review Medical Board within two months.

What did the court decide?

recalled the order dated 19.03.2018 and directed the respondents to constitute a Review Medical Board within two months to re-examine the petitioner's medical fitness.

Ex TC-M/371384 Rect/Na Sri Sant Lal Vs the… — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010085202018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Review.Pet. 111/2018

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1:EX TC-M/371384 RECT/NA SRI SANT LAL

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S/O LATE BALWAN SINGH, VILL. BAGANWALA, P.O. RAMRAI, P.S. JIND, DIST. JIND, STATE-HARYANA

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VERSUS

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1:THE UNION OF INDIA AND3 ORS

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REPRESENTED BY THE SECY., DEPTT. OF PERSONNEL AND TRAINING, GOVT. OF INDIA, MINISTRY OF HOME, NEW DELHI-1

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2:THE DIRECTOR GENERAL ASSAM RIFLES SHILLONG MEGHALAYA 793011

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3:THE DEPUTY COMMANDANT STAFF OFFICER -1 (RECRUITMENT) DIRECTOR GENERAL ASSAM RIFLES SHILLONG

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4:THE DEPUTY COMMANDANT ASSAM RIFLES TRANSIT CAMP KHANAPARA GUWAHATI ASSAM PIN 78102

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Advocate for the Petitioner : MR. R MAZUMDAR

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Advocate for the Respondent : MR. D C BORAH (CGC)

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 07-06-2019

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Heard Mr. R. Mazumdar, learned counsel for the review petitioner. Also heard Mr. D.C. Borah, learned CGC for the respondents.

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This review petition has been filed against the order dated 19.03.2018 passed in WP(C) No. 2427/2016, on the ground that this Court had decided the matter on the basis of paragraph 4(2) of the affidavit-in-opposition filed by the respondents, which was not in consonance with the finding of the Specialist Doctor of North Eastern Indira Gandhi Regional Institute of Health and Medical Science (NEIGRIHMS).

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The petitioner’s counsel submits that while the first part of the Review Medical Board Report dated 03.10.2012 does not state anything about the petitioner’s medical fitness, the second part of the Review Medical Board Report states that the petitioner was unfit, though the same was not supported by the Specialist Doctor’s Report, which states that the petitioner’s hearing sensitivity was within normal limits.

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The petitioner’s counsel submits that the ground for dismissing the writ petition was due to the fact that the photocopy of the Medical Certificate dated 19.01.2013 submitted by the review petitioner did not show the name and seal of the Doctor who issued the Certificate.

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Mr. D. C. Borah, learned CGC fairly submits that there is a contradiction between Para

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No. 4(2) of the affidavit-in-opposition filed by the respondents in the writ petition and the Specialist Doctor’s report dated 05.10.2012. He further submits that the petitioner was not

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reinstated in service not only due to his medical problem, but also due to the petitioner being overaged.

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I have heard the counsels for the parties.

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The petitioner was provisionally selected for enrollment as Recruit (NA) in the Assam Rifles during the Recruitment Rally held at Jind (Haryana) on 23.05.2001, subject to being found fit in the final medical examination. The petitioner having been found unfit by the Classified Special ENT due to LMC EEE S SOM (RT) EFFECTS OF, during the final medical examination, the petitioner was discharged from service w.e.f. 31.10.2001 vide discharge certificate dated 09.10.2001.

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The petitioner being aggrieved filed WP(C) No. 4687/2008. WP(C) No. 4687/2008, along with other similar writ petitions, was disposed of by this Court vide Order dated 10.08.2012, wherein this Court held as follows:-

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“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 become unfit for engagement is 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 respondents to consider that aspect of the matter while taking a decision in this regard.

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Let the above exercise be carried out as expeditiously as possible preferably within 30.10.2012.”

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Paragraph 4(2) of the affidavit-in-opposition of the respondents in the writ petition is to the effect that in compliance with the order dated 10.08.2012 passed in WP(C) 4687/2008, 23 (twenty three) candidates, including the petitioner were called for review Medical Board Examination, which was conducted on 03.10.2012. Out of the 22 (twenty two) candidates who come, 12 of them, including the petitioner were found to be medically unfit.

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The affidavit-in-opposition further states that as per the policy in vogue, all Review Medical Examinations were to be supported by radiology and laboratory findings relevant to their disability. After investigations, individuals are referred to Specialist for opinion. The petitioner was referred to the North Eastern Indira Gandhi Regional Institute of Health & Medical Science (Shillong) (NEIGRIHMS) for Specialist’ opinion and based on laboratory finding and Specialist opinion, the petitioner was declared medically unfit. This para 4(2) was not controverted by the writ petitioner’s counsel at the time of disposal of the writ petition.

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On perusal of the Review Medical Board Report, it is seen that the opinion/impression of the Specialist Doctor of NEIGRIHMS is to the effect that the review petitioner’s hearing sensitivity was within normal limit. As such, it cannot be said that the petitioner was UNFIT medically.

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As the pleadings of the respondents in Paragraph 4(2) of their affidavit-in-opposition, which is to the effect that the petitioner is “UNFIT” is not supported by facts, as stated above, this Court is of the view that the review petitioner has made out a case for review of the order dated 19.03.2018 passed in WP(C) 2427/2016.

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The Review Medical Report found the petitioner to be unfit, though the impression of the Specialist, with regard to the hearing ability of the petitioner, does not support the finding of the Review Medical Board.

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The said order dated 19.03.2018 passed in WP(C) No. 2427/2016 is accordingly recalled.

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In the above context, this Court is of the view that another Review Medical Board should again be constituted to examine the medical fitness of the petitioner again.

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The respondents are accordingly directed to constitute a Review Medical Board again, with a period of 2 (two) months from the date of receipt of a certified copy of this order and examine the petitioner’s medical fitness.

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If the petitioner is found to be fit in the Review Medical Examination, then the respondents would have to consider appointing the petitioner, inasmuch as, the petitioner was within the permissible age limit at the time he joined the Assam Rifles and as the report of the Review Medical Board would relate back to the time the petitioner was initially recruited into the Assam Rifles.

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This would be in consonance with the judgment dated 26.09.2014 passed by the Division Bench of this Court in WA No. 153/2014, WA No. 119/2014, etc.

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The review petition is accordingly allowed.

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JUDGE

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Comparing Assistant

Ex TC-M/371384 Rect/Na Sri Sant Lal v. the Union of India AND3 Ors.

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Ex TC-M/371384 Rect/Na Sri Sant Lal v. the Union of India AND3 Ors.

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