Gauhati High Court
Keshab Chetry vs Union Of India And 3 Ors on 18 March, 2021
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/7
GAHC010175412016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7137/2016
KESHAB CHETRY
S/O. SRI KRISHNA BAHADUR CHETRY, VILL. BORBHOGIA, P.O. BORSOLA,
P.S. DHEKIAJULI, DIST. SONITPUR, ASSAM.
VERSUS
UNION OF INDIA and 3 ORS.
REP. BY THE HOME SECY., MINISTRY OF HOME AFFAIRS, NEW DELHI-
110003.
2:THE DIRECTOR GENERAL
BORDER SECURITY FORCE
BLOCK-10
CGO COMPLEX
NEW DELHI-110003.
3:THE INSPECTOR GENERAL
FRONTIER HEAD QUARTER BORDER SECURITY FORCE PATGAON
P.O. AZARA
ASSAM-17.
4:THE OFFICE COMMANDANT
95 BN BORDER SECURITY FORCE
BHONDSI
DIST. GURGAON HR
Advocate for the Petitioner : MR.K K UPADHYAY
Advocate for the Respondent : C.G.C.
Page No.# 2/7
Linked Case : I.A.(Civil)/1513/2020
KESHAB CHETRY
S/O. SRI KRISHNA BAHADUR CHETRY
VILL. BORBHOGIA
P.O. BORSOLA
P.S. DHEKIAJULI
DIST. SONITPUR
ASSAM
PIN-784117
VERSUS
UNION OF INDIA AND 3 ORS.
REP. BY THE HOME SECY.
MINISTRY OF HOME AFFAIRS
NEW DELHI-110003.
2:THE DIRECTOR GENERAL
BORDER SECURITY FORCE
BLOCK-10
CGO COMPLEX
NEW DELHI-110003.
3:THE INSPECTOR GENERAL
FRONTIER HEAD QUARTER BORDER SECURITY FORCE PATGAON
P.O. AZARA
ASSAM-17.
4:THE OFFICE COMMANDANT
95 BN BORDER SECURITY FORCE
BHONDSI
DIST. GURGAON HR.
------------
Advocate for : MR N N UPADHYAYA
Advocate for : MRS. A GAYAN appearing for UNION OF INDIA AND 3 ORS.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
JUDGMENT
Date : 18.03.2021 Page No.# 3/7 Heard Mr. R. Dhar, learned counsel for the petitioner. Also heard Mrs. A. Gayan, learned CGC appearing for the respondents.
2. The petitioner is aggrieved by the Order dated 02.08.2016 issued by the Commandant, 95th Batallion BSF, by which the petitioner has been discharged from service and struck off from the strength of RTC, BSF, Bhondsi under Section 11 of the BSF Act, 1968 read with Rule 13 of the BSF Rules, 1969, as amended in 2017.
3. The petitioner's case in brief is that after a selection test which involved medical examination, the petitioner was appointed to the post of Constable (GD) in the BSF. The petitioner was immediately sent for training and during routine medical examination of the petitioner held on 06.04.2015, the petitioner was found to be having defective colour vision and was referred to an Eye Specialist at FHQ Hospital-I. On examination by the Eye Specialist on 26.05.2015, the petitioner was found to be suffering from defective colour vision (colour blindness). Thereafter, the petitioner was discharged due to him suffering from colour blindness vide the impugned Order dated 02.08.2016.
4. The petitioner's counsel submits that the petitioner could not have been discharged from service in terms of Section 11 of the BSF Act, 1968 read with Rule 13 of the BSF Rules, 1969 as only the Director General, Inspector General or Deputy Inspector General could have discharged the petitioner from service. He also submits that the petitioner had himself examined in Safdarjung Hospital, New Delhi on 24.05.2016, wherein it was found that he was not suffering from colour blindness. He accordingly submits that a review Medical Board should be constituted to examine the petitioner.
5. The petitioner's counsel submits that even if the petitioner is found to be suffering Page No.# 4/7 from colour blindness, the petitioner should have been adjusted against some other clerical work in the BSF organization, keeping in view Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995 hereinafter referred to as the "PWD Act, 1995". He further submits that the petitioner is entitled to grant of pension, as he was discharged from service on medical grounds.
6. Mrs. A. Gayan, learned CGC submits that the petitioner was appointed by the Commandant and in terms of Section 11 of the BSF Act, 1968, the petitioner can be terminated by the Commandant. She also submits that Section 47 of the PWD Act, 1995 is not applicable to the petitioner and that the petitioner does not have the minimum qualifying years of service to be granted pension. She also submits that the petitioner was examined by three review Medical Boards on 03.06.2015, 03.03.2016 and 31.08.2016, wherein the petitioner was found to be suffering from colour blindness.
7. I have heard the learned counsels for the parties.
8. A perusal of Section 11 (2) of the BSF Act, 1968 shows that an officer not below the rank of Deputy Inspector-General or any prescribed officer may dismiss or remove from service, any person under his command other than an officer or a subordinate officer of such rank or ranks as may be prescribed. The petitioner having been appointed by the Commandant who comes within the meaning of "or any prescribed officers" in terms of Rule 177 of the BSF Rules, 1969, shows that the Commandant has the authority to discharge the petitioner from service.
9. The next ground of challenge made by the petitioner is with regard to Section 47 of the PWD Act, 1995, wherein the petitioner's counsel has stated that even if the petitioner was Page No.# 5/7 found to be suffering from colour blindness, he should have been adjusted against some other work, like clerical work in the BSF organization, instead of discharging him from service. Section 47 of the PWD Act states that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during service. As colour blindness is a congenital disease, i.e. it is a disease from birth/born with it, Section 47 of the PWD Act, 1995 would not be attracted to the petitioner's case.
10. With regard to the petitioner's claim for pension, the CCS Pension Rules, 1972 requires a person to have a minimum of 10 years of qualifying service to enable him to be granted pension. The petitioner herein was appointed on 11.09.2014 and discharged on 02.09.2016 and as such, had less than 2 years of service. Hence, the petitioner's claim for payment of pension is untenable as he did not have the minimum 10 years of qualifying service as required under Rule 49 of the CCS Pension Rules, 1972.
11. The petitioner's prayer for review Medical Board seems to have already been considered by the respondents, as the respondents, in paragraph No. 5 of their affidavit-in- opposition, have stated that the petitioner appeared before a review Medical Board held on 03.06.2015, 03.03.2016 and 31.08.2016 at FHQ, BSF Hospital-I, R.K. Puram, New Delhi and the opinion of the review Medical Board was that "he is suffering from Defective Colour Vision (CP-IV) and considered UNFIT for further service in BSF". The said averments not being controverted by the petitioner, the said averments are deemed to be admitted by the petitioner.
12. The petitioner also seems to have been examined by a Board of Medical Officers in A.I.I.M.S, New Delhi and the report of the Board of Medical Officers dated 06.11.2015 is to Page No.# 6/7 the effect that the petitioner has partial red and green colour deficiency (mild deuteranomaly).
13. The Government of India, Ministry of Home Affairs (Police-II Division) issued a New Policy Guidelines on the recruitment/retention, in respect of Central Armed Police Forces (CAPFs) and Assam Rifles (ARs) personnel having defective vision including colour blindness, vide Order dated 27.02.2013, wherein it has been held at paragraph No. (ii) as follows:-
(ii) "Any person who has defective vision or is colour blind will not be recruited in future.
If any person is wrongly recruited despite having defect in vision or despite being colour blind, he will be promptly removed from service as soon as the defect is noticed. The Doctor who declared him fit will be proceeded against in Departmental Proceedings for major penalty. The person who was wrongly recruited will not be allowed to continue to take advantage of this wrong act, and the Govt. cannot be bound by the wrong act of any of its functionaries."
At paragraph (iv), it has also been stated that as colour blindness is a congenital disease, to obviate the induction of colour blind personnel in CAPFs & Assam Rifles by error or by manipulation in any of the future recruitments, an undertaking shall be taken from all the selected candidates at the time of joining that if at any stage of their service career, if they are found to be colour blind, they will be boarded out as per the SHAPE Policy in vogue.
The New Policy Guidelines on the recruitment/retention of CAPFs and Assam Rifles (ARs) personnel having defective vision including colour blindness was clarified vide Government of India, Ministry of Home Affairs, Pers-II Desk dated 28.05.2013, wherein it was stated that person recruited earlier to 27.02.2013 would not be boarded out, but any person recruited thereafter, if found colour blind even after recruitment, shall promptly be boarded Page No.# 7/7 out of service. The "New Policy Guidelines on the recruitment/retention of CAPFs and ARs personnel having defective vision including colour blindness" has not been contested or challenged by the petitioner.
14. In view of the reasons stated above, this Court does not find any reason to exercise it's discretion in this case. The writ petition is accordingly dismissed.
JUDGE Comparing Assistant