1 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay W.P.A. 16847 of 2017 Minarul Sk. -Vs- The Union of India & Ors. For the Petitioner : Mr. Ashim Banerjee For the Respondents/UOI : Ms. Chandreyi Alam Heard on : 19.08.2024, 07.10.2024, 07.01.2025, 07.08.2025, 12.08.2025 Judgment on : 02.09.2025 Ananya Bandyopadhyay, J.:- 1. The petitioner has invoked the writ jurisdiction of this Hon’ble Court seeking a mandamus to set aside the order of termination from the post of Constable (GD), 113 Bn. BSF, on the ground of unfitness for service, alleging such action was taken without due procedure, without affording an opportunity of hearing, and in contravention of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 2. The petitioner was duly appointed to the post of Constable (GD) in BSF on 30.10.2013 and posted at Jodhpur. During service, he suffered a medical condition for which he was treated at MG Hospital, Jodhpur, where the 2 attending neurologist opined that there was no recurrence of epileptic episodes and recommended continuation in service under medication. 3. Despite the said medical opinion, a Medical Board constituted at STC BSF, Jodhpur on 09.06.2015 placed the petitioner in low medical category S1, H1, A1, P5, E1 and declared him unfit for further service. Subsequent Medical Boards reiterated this finding, leading to issuance of show-cause notices proposing his discharge. 4. The petitioner duly replied to the notices contending that he was asymptomatic, medically fit, and capable of completing training, and requested reconsideration of the Medical Board’s opinion. However, by order dated 26.05.2016, the authorities reiterated the finding of permanent unfitness and proceeded to terminate his service. 5. Against the order of dismissal, the petitioner initially approached this Hon’ble Court. By order dated 08.02.2016, liberty was granted to him to pursue the statutory appellate remedy before the Director General, BSF. 6. In pursuance thereof, the petitioner preferred an appeal, which was heard by the Deputy Inspector General, STC BSF, Jodhpur, but the same was rejected by order dated 21.09.2016 in a mechanical manner, without adequate reasoning and in complete disregard of the medical opinion of the treating neurologist. 7. It is the specific case of the petitioner that the appellate authority, i.e., the Director General, BSF (Respondent No.3), failed to exercise the statutory jurisdiction vested in him and thereby abdicated his duty to consider the appeal on merits. 3 8. The petitioner contends that since both Medical Board reports admitted that the alleged disability arose during service, the petitioner could not have been discharged from service in view of the statutory protection under Section 47 of the Disabilities Act, 1995, which prohibits termination on the ground of disability acquired during service. 9. The impugned termination is further assailed as violative of the principles of natural justice, Article 14 and 16 of the Constitution, being arbitrary, non- speaking, and passed without affording a proper opportunity of hearing. 10. The petitioner, therefore, prays that the impugned orders of termination and appellate rejection be quashed and appropriate directions be issued for his reinstatement with consequential benefits. 11. The Learned Advocate representing the petitioner submitted as follows:- i. The termination of the petitioner’s service was ex facie illegal, arbitrary, mala fide and in colourable exercise of power, having been made without due application of mind. ii. The Medical Boards arrived at divergent and whimsical conclusions, contrary to the consistent opinion of the treating neurologist (Dr. Amita Bhargav), who had certified that the petitioner was seizure-free for 1–3 years, suffered only from a mild condition, and was capable of performing normal duties with minimal chance of aggravation. iii. The impugned orders ignored these medical opinions and were bereft of reasons, thereby rendering them unsustainable in law. iv. The reports of the Medical Boards themselves recorded that the alleged disability arose during the course of service. Hence, discharge on that 4 ground was impermissible under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. v. Rule 25(5) of the Border Security Force Rules, 1969 provides that the opinion of the Medical Board is not final and is subject to review. The petitioner had sought such review, but the same was not considered. vi. The petitioner was not afforded any meaningful opportunity of hearing before discharge, vitiating the proceedings. vii. The Director General, BSF (Respondent No.3), acting as the appellate authority, failed to decide the appeal on merits and mechanically affirmed the termination order without recording reasons. viii. This amounted to abdication of jurisdiction and was in violation of the Border Security Force Act, 1968 and Rules framed thereunder. ix. The arbitrary acceptance of the Medical Board’s report without rational basis violated Article 14 and Article 16 of the Constitution, which require fairness, reasonableness and equality in public employment. x. Even assuming the petitioner was not fit for active combat duty, the BSF was under a statutory obligation to provide alternative/light duty or adjust him against any suitable post (including Group-D posts), instead of discharging him outright. 12. The Learned Advocate representing the Respondents submitted as follows:- i. The petitioner, while under anti-epileptic treatment (tapering dose of Phenytoin 200 mg since 09.10.2015), remained seizure-free for nearly one year and ten months. However, medical opinion mandated 5 continuation of treatment until April 2017. None of the medical experts ruled out recurrence of epileptic seizures, and it was noted that he had not undergone basic training, nor could he be permitted to handle firearms. ii. The Medical Board, upon detailed examination, diagnosed him with Idiopathic Generalized Epilepsy, placing him in SHAPE category S1 H1 A1 P5 E1, where P5 represents the lowest medical grade, thereby rendering him unfit for further service in the Border Security Force. iii. The petitioner admittedly suffered a seizure during basic training, leading to hospitalization between 30.04.2015 and 13.05.2015, followed by regular treatment extending over two years. Despite improvements, medical opinions, including MRI findings, did not eliminate the risk of recurrence. iv. Given the nature of duties in the Force, the risk of recurrence while handling arms and ammunition was deemed grave. His health condition prevented him from completing proper training, undermining his ability to discharge essential functions of service. v. Being a probationer, the petitioner’s appointment was governed by specific terms of service. The offer of appointment explicitly provided that during probation, the appointing authority could terminate services without assigning any reason if the candidate was found unlikely to become an efficient member of the Force. vi. Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was inapplicable in 6 the present case, as the Ministry of Social Justice and Empowerment, by Notification dated 13.09.2002, expressly exempted all combatant personnel of Central Paramilitary Forces, including the BSF, from the operation of the said provision. vii. In view of the above, the impugned order dated 13.06.2016, striking the petitioner off the strength of the STC and BSF, was valid and sustainable in law, as he was not likely to become an efficient member of the Force. 13. The service of a probationer can be terminated without assigning reasons if the appointing authority is of the opinion due to reasons owing to inefficiency, the probationer is assessed to be ineligible to be confirmed in the service. Moreover, such termination is not punitive or stigmatic to create encumbrance or constraints in pursuing further employment of the probationer being terminated from availing different source of employment. 14. In the instant case, the respondent B.S.F. authority directing the physical incapacity of the petitioner terminated his services in accordance to the condition explicit in the offer of appointment replicated as follows:- “initially you will be on probation for a period of two years which may be extended by the appointing Authority for such further period or periods not exceeding one year, for reasons to be recorded in writing. During the period of probation if the appointing Authority considers that you are not likely to become efficient member of the Force due to any reasons your services can be terminated without assigning any reasons or without any advance notice”. 15. However, this Court is confounded to fathom the peculiarity of the physical incapacitation of the petitioner based on the medical documents on record 7 detecting the extent of the physical/mental disability which has been suffered by the petitioner which in the estimation of the respondent/B.S.F. will cause hindrance and prejudice to it, if the petitioner is allowed to continue with the service. 16. There is a claim of the respondent/B.S.F. based on medical reports to justify its decisions to terminate the services of the petitioner suffering from epileptic attacks and counter claim by the petitioner that Dr. Amita Bhargav opined the petitioner to be comparatively fit to continue with his services. 17. In the premise of such ambiguities, it will be prudent to assess the physical condition of the petitioner through an independent Medical Institution. 18. The Learned Registrar General of High Court at Calcutta is to convey a copy of this order to the M.S.V.P. of S.S.K.M. Hospital to constitute a Medical Board within a one (1) month of from the communication of this order and thereafter, issue notice to the petitioner at his registered address mentioned in the writ petition to appear before the Medical Board, so constituted for his physical condition in medical terms, determining as to whether his physical condition would enable him to render the service of the respondent/B.S.F. to the post in which he had been inducted as a probationer. 19. The Learned Registrar General, High Court at Calcutta is further directed to provide the registered address of the petitioner to the M.S.V.P. of S.S.K.M. Hospital. 20. The decision of the Medical Board is to be communicated to the petitioner as well as the respondent/B.S.F. for consideration. 8 21. The opinion of the Medical Board so constituted determining the physical ability of the petitioner to pursue the work entrusted to him in the form of a probationer will be final. 22. Department is directed to provide a copy of this order to the Learned Registrar General, High Court at Calcutta for necessary compliance. 23. Accordingly, the writ petition being WPA 16847 of 2017 is disposed of. 24. There is no order as to costs. 25. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)