GAHC010110682024 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) PRINCIPAL SEAT W.P(C) NO. 2892/2024 Dipika Devi, Age-21 years, D/O Sri Ashok Kumar Singh R/O Village-Solagaon, P.O.-Bokajan, P.S.-Tezpur, District-Sonitpur, Assam, PIN-784105 ……..Petitioner -Versus- 1. The Union of India Represented by the Ministry of Home Affairs, Govt. of India, New Delhi, PIN-110001 2. The Director General, Border Security Force (BSF), Block-10, CGO Complex, Lodhi Road, New Delhi-110003 3. The Inspector General, Border Security Force, Guwahati Frontier HQ., Patgaon, Guwahati-781017 4. The Deputy Inspector General (DIG), Border Security Force, SHQ, BSF, Dhubri 5. The Commandant, 19th Bn. BSF, Dhubri, Panbari, PIN 783339 ……..Respondents – B E F O R E – HON’BLE MR. JUSTICE SOUMITRA SAIKIA Advocate for the petitioner :Mr. M.A. Islam, Advocate Advocate for the respondents :Ms. B. Sarma, CGC Date of Judgment & Order: : 30.01.2025 JUDGMENT AND ORDER The petitioner before this Court was a Constable Mahila (GD) in the Border Security Force, Sector Head Quarter (SHQ), Dhubri. She was appointed in the said post vide appointment order dated 22.11.2022. Pursuant to which the petitioner joined in her services with effect from 21.12.2022. 2. After joining in her services, the petitioner developed fever and cough and some skin rashes for which the petitioner was admitted to the Dhubri Civil Hospital. But she was referred by the Dhubri Civil Hospital to the Gauhati Medical College & Hospital. Although the petitioner was admitted to the Gauhati Medical College & Hospital, she took discharge from the Gauhati Medical College & Hospital after two days of treatment and was thereafter admitted in the Arya Hospital, Guwahati on 16.01.2023. She was discharged from the Arya Hospital under discharge certificate dated 21.01.2023 as her conditions improved. After her discharged from the Arya Hospital, the petitioner reported to the Composite Hospital, BSF, Patgaon on the same day and stayed there till 22.02.2023 and thereafter, the petitioner reported for her normal duties under the 19th Bn., BSF, Dhubri, Panbari. 3. Pursuant to her joining in her unit, the Chief Medical Officer, CAPF’s, Composite Hospital, Patgaon by letter dated 28.03.2023 referred the petitioner to the Rheumatology Department, GMCH for opinion on the fitness of the petitioner. However, the opinion sought for by the BSF authorities from the Rheumatology Department, GMCH was issued vide certificate dated 08.08.2023 in plain paper, the same was not accepted by the authorities. Thereafter, the head of the Rheumatology Department, GMCH issued another certificate dated 16.11.2023. The petitioner also consulted a Doctor of the Rheumatology Department in the Apollo Clinic and a certificate of fitness in respect of the petitioner was also issued on 11.08.2023. 4. Inspite of the medical certificates issued by the competent medical specialists that the petitioner is fit to carry on her regular duties, she was served with a show cause notice dated 03.11.2023 to the effect that the Medical Board was held at the Composite Hospital, BSF, Patgaon on 09.08.2023 and upon examination of the petitioner, it was found that she was not fit to be retained in service as she was found to be suffering from Systematic Lupus Erythematosus (SLE) and Hb-905 gm/dl and accordingly the petitioner was proposed to be discharged from her service by the respondent No. 4. 5. 5. Upon receipt of the said show cause notice, the petitioner requested vide her representation dated 16.11.2023 addressed to the I.G., FTR Hqr, BSF, Guwahati for a personal hearing in the matter and also submitted her show cause reply on 07.11.2023. In her reply, the petitioner stated that she admits significant progress in her health conditions and in terms of the medical certificates issued by the concerned specialists, she was fit to continue her training and perform her duties effectively and therefore she pleaded with the respondent No. 4 for retaining the petitioner in service and to undergo necessary medical tests if required in the future. However, by the impugned order dated 14.05.2024 issued by the Office of the DIG, Sector Hq, BSF, Dhubri, Panbari, Assam, the petitioner was discharged from service with effect from 14.05.2024 under provisions of Rule 13 Appendix –I, Part-II (Condition No. 2) of the BSF Rules, 1969 without any pensionary benefits. It was ordered that she will be struck off from the strength of the Head quarter with effect from 14.05.2024. 6. The learned counsel for the petitioner submits that this medical board ought to have considered the opinions of the concerned specialists namely Department of Rheumatology of both Gauhati Medical College & Hospital as well as the Apollo Clinic. However, without taking into consideration the opinions, the petitioner was discharged from service on the basis of medical board constituted by the departmental authorities. He therefore submits that the medical board ought not to have ignored the opinion of the specialists of the concerned department and ought to have taken into account the certificates granted before issuing the impugned order. 7. The affidavit in opposition has been filed by the respondent department disputing the claims of the petitioner. The learned CGC has submitted that the Review Medical Board was conducted on 09.08.2023 and it was duly taken into consideration the GMCH certificate dated 08.08.2023 issued a plain paper. However, subsequent medical certificate issued on 11.08.2023 by the consultant doctor of Rheumatology Department, Apollo Clinic and the head of the Rheumatology department, GMCH on 16.11.2023 obtained by the petitioner only after the Review Medical Board had considered and passed the order. Therefore, in terms of the provisions of the Act and the Rules, there is no infirmity in the order passed by the Review Medical Board as the petitioner as on date in view of her ailment has been found to be unfit for rendering services as a Mahila Constable (GD) in the BSF. She has drawn the attention of the Court to the opinion rendered in the Review Medical Board to show that her medical condition namely, Systematic Lupus Erythematosus (SLE) and Hb-905 gm/dl is found to be a chronic auto immune decease and not curable. Therefore, in terms of the Rules, once the Review Medical Board has arrived at a conclusion that because of her medical condition she is not found to be fit to be retained in service, the subsequent order of discharge has been issued. She further submits that pursuant to her representation before the IGP, respondent No. 3, her case was reconsidered and consequent thereto it is the Review Medical Board which was constituted and thereafter the Review Medical Board upon a review of the entire matter arrived at a conclusion that the medical condition presently suffered by the petitioner is not curable and therefore she was not found to be fit to be retained in service. It is submitted that the petitioner is yet to undergo a basic training necessary and because of her ailments she has not been undergo the training and therefore she has not a regular employment of the BSF as on date. 8. The learned counsel for the parties have been heard. Pleadings on record have been carefully perused. It is seen that the petitioner is stated to be suffering from health condition which is Systematic Lupus Erythematosus (SLE) and Hb-905 gm/dl. In the writ petition, the certificates from the Apollo Clinic as well as the GMCH have been enclosed which the petitioner claims have not been considered by the respondent authorities. The said contention however, is disputed by the learned CGC. 9. From the pleadings available before the Court, it is seen that the Medical Officer of Station CH-Patgaon on 28.03.2023 has referred the case of the petitioner to the Rheumatology department GMCH. The opinion of the Rheumatology Department, GMCH was sought for by the said reference made. However, in the opinion of the Review Medical Board, there is no discussion on the reference made by the Medical Officer for an opinion to the Rheumatology department, GMCH whether any opinion at all was received from the concerned Rheumatology Department, GMCH and the same was placed before the concerned authorities is also not clearly stated before this Court while the petitioner submits that two certificates from the GMCH Department was received and submitted before the concerned authorities. The learned CGC on the other hand disputes the said submission and submits that the first certificate dated 08.08.2023 although issued in a plain paper was considered by the Review Medical Board whereas the second certificate issued on 16.11.2023 was issued after the opinion of the Review Medical Board. Therefore, the subsequent certificate issued after the order of the Review Medical Board bears no relevance. 10. The opinion of the Review Medical Board which is available in the affidavit in opposition filed by the respondents shows that the Review Medical Board comprises of three doctors. There is an opinion that the medical condition suffered by the petitioner namely Systematic Lupus Erythematosus (SLE) and Hb-905 gm/dl is a chronic auto immune decease and not curable. This appears to be contradictory in the opinion furnished by the Rheumatology department, Gauhati Medical College wherein her activity has been found to be under control and she is found to be otherwise fit to pursue all physical activity and normal duties. From the opinion of the Review Medical Board, it is not clear on what materials the opinion have been arrived at by the Review Medical Board that the medical condition suffered by the petitioner is not curable and that she is not fit to be retained in service. That apart there is no explanation as to why the opinion sought for from the Rheumatology department by the Medical Officer Station CH-Patgaon vide reference form dated 28.03.2023 was not called for and/or received by the respondent authorities. A copy of the revised uniform guidelines for Review Medical Examination is CAPFs and Assam Rifles have been placed before the Court by the respondents counsel. Under the head “Guidelines for Review Medical Board” the procedure required to be adopted by the Review Medical Board has been prescribed. Clause (d) of the said guideline is relevant for this purpose and the same is extracted below: “(d) Review Medical Board may obtain opinion of concerned specialists or super specialists of Govt. Medical College and Hospital in case of any doubt. Therefore, in cases of rejection in review medical examination, clinical findings should be corroborated with confirmatory tests/investigations/opinion or specialists/ super specialists of Govt. Hospitals/Medical Colleges/Govt. approved private medical centers, whichever and wherever applicable.” 11. A perusal of the above extracted clause shows that opinions can be obtained of the concerned specialists or super specialists of Government Medical College in case of any doubt and in cases of rejection in the Review Medical Examination, clinical findings should be corroborated with confirmatory tests, investigations, opinions of specialists and super specialists of Government Hospitals and Medical Colleges. 12. A plain reading of the above guidelines reveals that the opinions or specialists or super specialists may be called for in cases of doubts and where the cases are rejected by the review medical examinations, clinical findings are to be corroborated with confirmatory tests, investigations and/or opinions of specialists or super specialists of Government Hospitals Medical Colleges etc. 13. From the pleadings available before this Court, it seen that there is no dispute that an opinion from the concerned specialist was called for by the Medical Officer of CH-Patgaon vide reference form dated 28.03.2023. It appears that there was some doubt with regard to the capability of the petitioner to undertake the regular duties in view of her medical conditions for which an opinion was called for. This opinion which is available as an Annexure to the writ petition given by the head of the Department of Rheumatology, GMCH reflects that the petitioner is found to be suitable for regular duty. However, the Review Medical Board in its opinion has concluded that the disease is incurable and therefore, the petitioner is not suitable for retention in service. There is no explanation as to why the Review Medical Board has arrived at a conclusion contrary to the findings of the specialists. The guidelines for the Review Medical Board clearly indicates that cases of rejections must be duly corroborated with confirmatory tests, investigations, opinions of the specialists or super specialist of Government Hospital and Medical Colleges and other approved medical centre etc. This is clearly not discernable from the Review Medical Board opinion rejected the case of the writ petitioner. Page 12 of 14 14. Under such circumstances, this Court is of the view that this is a case which will require re-consideration by the Review Medical Board by referring to all relevant materials including opinions of any specialists as well as the confirmatory tests and investigations as have been prescribed under the guidelines to support their conclusions that the petitioner is not to be retained in service because of medical conditions. It is also seen that the Review Medical Board does not comprise of the domain consultant or specialists, however, at this stage since the matter is sought to be remanded back to the respondent authorities, this Court does not wish to issue any specific directions to that effect leaving the matter to be decided by the authorities concerned as to whether a specialist or a consultant on the subject should also be included in the Review Medical Board. 15. Accordingly, the respondents are directed to forthwith constitute a Review Medical Board for re-examination of the case of the petitioner along with all relevant materials including opinions of consultants as well as other confirmatory tests and investigations and thereafter render its opinion. Any such opinion which is rendered will prevail of her the opinion render earlier by the Review Medical Board dated 09.08.2023. The order of discharge shall be kept on hold till the matter is re-decided by the Review Medical Board and depending on such opinion as may be arrived at by the Review Medical Board as directed within the period prescribed, the further consequential orders as may be necessary will be passed by the respondent authorities. The Review Medical Board be constituted within a period of two weeks from the date of receipt of certified copy of this order. The Board will thereafter examine the case of the petitioner as directed above and thereafter pass appropriate orders within a period of further three days. In the event the petitioner is found to be suitable to be retained in service, the impugned order of discharge shall be withdrawn accordingly and the petitioner will be retained in service without consequential benefits. 16. Since on the facts and circumstances of the case, this Court considers it appropriate to remand the matter back to the respondent authorities for a fresh decision by the Review Medical Board, the Judgments referred to by the writ petitioner are not discussed at this stage. Page 14 of 14 17. With the above direction, the writ petition stands disposed of. JUDGE Comparing Assistant