Allowed

Ex TC-62078 Rect/Bb Rambir v. the Union of India and 3 Ors.

Gauhati HC9 Jun 2022WP(C)/2225/2016

Case brief

AI extract

What is this about?

The Gauhati High Court quashed the medical fitness rejection order against a former Assam Rifles recruit. The Court held the Appeal Medical Board was invalid as it relied on a specialist opinion dated two days after the board meeting. A fresh board examination was directed within two months.

What did the court decide?

The impugned order rejecting enrolment was quashed. The respondents were directed to constitute a fresh Appeal Medical Board within two months to examine the petitioner's medical fitness.

Ex TC-62078 Rect/Bb Rambir Vs the Union of… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/6

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GAHC010170072016

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

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Case No. : WP(C)/2225/2016

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EX TC-62078 RECT/BB RAMBIR

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S/O ANANTA RAM, VILL. TEONTHA, P.O. TEONTHA, TEHSIL, PUNDRI, DIST- KAITHAL, HARYANA-136042

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VERSUS

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THE UNION OF INDIA and 3 ORS REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, NEW DELHI-1

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2:THE DIRECTOR GENERAL ASSAM RIFLES SHILLONG MEGHALAYA-11

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3:THE DY. COMMANDANT STAFF OFFICER-1 RECRUTMENT DIRECTORATE GENERAL ASSAM RIFLES SHILLONG-11

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4:THE DY. COMMANDANT ASSAM RIFLES TRANSIT CAMP KHANAPARA GHY-22 ASSA

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Advocate for the Petitioner : MR.H BEZBARUAH

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Advocate for the Respondent : C.G.C.

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Page No.# 2/6

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 09-06-2022

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Heard Mr. R. Mazumder, learned counsel for the petitioner as well as Mr. K.K. Parashar, learned CGC for the respondents.

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By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 27.12.2012 issued by the Deputy Commandant, Staff Officer-1, Recruitment on behalf of the Brigadier (Personnel), Assam Rifles by which the candidature of the petitioner for his enrolment in Assam Rifles was rejected on account of Appeal Medical Board examination, whereby the petitioner was found unfit due to ‘Rt TM has Tympons elastic Patel scarred enlarged and inflamed Tunnels with S/D’ and subsequently discharged from the Assam Rifles w.e.f. 31.10.2001, before completion of necessary basic training for a soldier due to medical incapacity.

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In brief, the case of the petitioner is that on 13.07.2001, he was enrolled in Assam Rifles as a ‘recruit Barber’, after successfully completing the requisite tests including medical test and he was required to undergo training at Assam Rifles Training Centre and School at Dimapur.

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It is projected that after his enrolment, the petitioner was subjected to detailed confirmatory medical examination, where the hereinbefore referred medical disability of the petitioner was detected and accordingly, was discharged from service w.e.f. 31.10.2001, vide Discharge certificate dated 09.10.2001,

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Page No.# 3/6

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issued by the Assam Rifles Training Centre and School, Dimapur.

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The petitioner had applied for Appeal/ Review Medical Board Examination and by a communication dated 13.09.2012, the petitioner was informed to report before the Appeal Medical Board examination on 03.10.2012 at 0800 hours. As per the documents appended to the affidavit-in-opposition by the respondents, the name of the petitioner appears at Sl. No.2 of the Appeal Medical Board list and the reasons assigned is as follows: ‘Rt TM has Tympons elastic Patel scarred enlarged and inflamed Tunnels with S/D’.

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It further appears from Annexure-R4 appended to the affidavit-inopposition filed by the respondents that the referral form for Appeal Medical Board, Assam Rifles contains a mention of “Specialist Opinion Enclosed” in respect of Part-II of the said form. The said Referral form for Appeal Medical Board, Assam Rifles bears the signature of Medical Officer, Assam Rifles (Construction & Maintenance Company). However, the specialist medical opinion which is appended as a part of Annexure-R4 at pages 22 to 24, contains a remark of audiological evaluation bearing date of 05.10.2012 with impression regard to Right and left ear as ‘Bilateral (N) Hearing Sensitivity/ WNL’. The abbreviation WNL is perceived by the Court to be the short form of ‘within normal limit’ and the other abbreviation N, therefore, can only mean to be ‘normal’.

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It is absolutely surprising about the manner in which the Referral form for Appeal Medical Board, Assam Rifles which was prepared and signed on

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Page No.# 4/6

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03.10.2012. In the said form, there is a mention of ‘Specialist Opinion Enclosed’. However, the said medical opinion came into existence only on 05.10.2012.

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The aforesaid facts as contained in Annexure-R4 to the affidavit-inopposition is indicative of the fact that the authorities had first decided to declare the petitioner as “unfit”, by assigning the reasons of ‘Rt TM has Tympons elastic Patel scarred enlarged and inflamed Tunnels with S/D’. Thereafter, the petitioner was sent for evaluation by Medical experts on 05.10.2012.

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It may be mentioned herein that while vehemently opposing this writ petition, amongst others the learned CGC had submitted that the prescribed age for recruitment into Assam for OBC category was 18 to 26 years and that as per records the date of birth of the petitioner was 03.03.1978 and therefore, when the candidature of the petitioner was rejected and he was discharged from service, the petitioner was 34 years old. Accordingly, it is submitted that even if a fresh Appeal Medical Board is constituted for examining the petitioner, he would still be over-aged.

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In this regard, the Court is of the considered opinion that this is not the projected case of the respondents that at the time when the petitioner had applied for recruitment into Assam Rifles, he had made any misrepresentation and concealed his age. Therefore, the age of the petitioner was within the permissible range on the date when he had applied for being appointed to the

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Page No.# 5/6

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post. Notwithstanding the present age of the petitioner, the Court is of the considered opinion that as the Appeal Medical Board examination had wrongfully rejected the candidature of the petitioner by relying on a specialist opinion which came into existence two days later on 05.10.2012. The Specialist opinion dated 05.10.2012 does not support the medical condition of the petitioner as reflected in the “Referral Form for Appeal Medical Board, Assam Rifles” dated 03.10.2012, the contents of which has been extracted herein before. Hence, the petitioner would be entitled to have examined by a fresh Appeal Medical Board.

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As already indicated above, the Appeal Medical Board of the Assam Rifles which is recorded on 03.10.2012 is not sustainable because the medical cause for declaring the petitioner permanently unfit in service in Assam Rifles, is not found indicated in the specialist opinion dated 05.10.2012 by the Audiologist of the Department of Otorhinolaryngology and Head and Neck Surgery, NorthEastern Indira Gandhi Regional Institute of Health and Medical Sciences, Shillong (NEIGRIHMS). Hence, the said medical report dated 03.10.2012, of Appeal Medical Board of Assam Rifles, in respect of the petitioner is hereby set aside and quashed.

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Resultantly, the order dated 27.12.2012 bearing no. I.12016/Rect. Branch/2012/460, issued by the Deputy Commandant, Staff Officer-1 (Recruitment) for Brigadier (Personnel), thereby rejecting the case of the petitioner for enrolment into Assam Rifles on medical ground is also set aside and quashed.

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Accordingly, in view of the findings recorded above, the respondent authorities are directed to constitute a Appeal Medical Board/ Review Medical Board within a period of 2(two) months from the date of receipt of a certified copy of the order for the purpose of examining the medical fitness of the petitioner.

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It is further directed that if the petitioner is found to be fit in the Appeal/ Review Medical Board examination, then the respondents would have to consider the candidature of the petitioner for his continuance in service in Assam Rifles by recalling the discharge certificate dated 09.10.2001. The Appeal / Review Medical Board shall examine the case of the petitioner in accordance with the Detailed Medical Examination Guidelines, which was prevailing during the recruitment year of 2001.

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It would be open to the respondents to determine whether the petitioner was within the permissible age on the date when he had applied for joining and/ or enrolled in the Assam Rifles.

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The writ petition stands allowed to the extent as indicated above.

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The parties are left to bear their own costs.

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JUDGE

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Comparing Assistant

Ex TC-62078 Rect/Bb Rambir v. the Union of India and 3 Ors.

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Ex TC-62078 Rect/Bb Rambir v. the Union of India and 3 Ors.

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