Calcutta High Court: In a petition challenging an order by the Inspector General, STC BSF Churachandpur, declaring petitioner’s fitness as unsatisfactory after a “Review Medical Board”, a single-judge bench comprising of Rajarshi Bharadwaj,* J., held that the dismissal is based on the petitioner’s lack of physical fitness for paramilitary duties, as established by the Medical Board’s findings. The Court further held that the petitioner’s provisional selection and lack of formal enrolment exclude the applicability of Border Security Force Act, 1968 and Border Security Force Rules, 1969.
Factual Matrix
In the instant matter, the petitioner, after successfully completing all stages of the recruitment process for the post of constable, was provisionally selected on 08-03-2021, with an appointment letter issued based on a conclusive satisfaction regarding medical fitness. The petitioner joined duty at STC BSF Churachandpur on 02-04-2021, following a medical examination conducted by the Recruitment Medical Board, the findings of which were valid until June-July, 2021.
Subsequent to a directive, the petitioner underwent a formal medical examination, resulting in a declaration of medical unfitness on 18-04-2021. However, a subsequent review by an Orthopedic Surgeon on 20-05-2021, declared the petitioner fit for active service. Despite being declared fit, the petitioner received a notice dated 02-06-2021, stating that he was deemed medically unfit by a “Review Medical Board”, and the petitioner’s name appeared on the list of candidates declared unfit.
Aggrieved by the order dated 02-06-2021 by the Inspector General, STC BSF Churachandpur declaring the petitioner’s fitness status as unsatisfactory, the petitioner preferred the present writ petition challenging the same.
Moot Point
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Whether the order dated 02-06-2021, declaring the petitioner medically unfit is legally valid?
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Whether the procedures outlined in the Border Security Force Act, 1968 and Rule 25 of the Border Security Force Rules, 1969, were adhered to?
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Whether the petitioner, being provisionally selected, is entitled to the protections afforded by the mentioned rules?
Parties’ Contentions
The petitioner contended the violation of stipulations in the Border Security Force Act, 1968 and Rule 25 of the Border Security Force Rules, 1969. It was contended that there was denial of natural justice as the conclusions of the Medical Boards were not furnished to the petitioner. It was contended that respondent failed to permit the petitioner to resume duty during the pendency of his representation. It was contended that the “Review Medical Board” was improperly constituted without the issuance of a retirement order.
The respondent contended that the petitioner was provisionally selected and not formally enrolled in BSF, making him ineligible for the protections under the mentioned rules. It was contended that the recruitment medical evaluation remains valid for one year; the petitioner’s subsequent medical examinations confirmed his unfitness for service. The respondent asserted the necessity of a fit constabulary for the operational success of Central Armed Police Forces (CAPFs).
Key Legal Provisions
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Rule 25 of the Border Security Force Rules, 1969.
Court’s Decision
The Court noted that the armed forces personnel are presumed to be in sound mental and physical condition at the time of joining, and the burden of proving disability rests on the employer. The Court noted that the petitioner’s rejection is based on the findings of a duly constituted Medical Board, and the deformity existed ab initio.
The Court noted that the mandatory requirements under the Border Security Force Act, 1968, and Rule 25 of the Border Security Force Rules, 1969, do not apply as the petitioner was provisionally recruited and not formally enrolled in BSF.
The Court held that the petitioner’s appeal against the Second Medical Examination’s finding is not subject to the BSF Acts and Rules. The writ petition is dismissed, and all pending applications are disposed of.
[Vikash Kumar Chouhan v. Union of India, 2023 SCC OnLine Cal 5487, order dated 21-12-2023]
*Judgment by Justice Rajarshi Bharadwaj
Advocates who appeared in this case :
Ms. Shraboni Sarkar, Counsel for the Petitioner
Ms. Indrani Chakraborty and Ms. Sarda Sha, Counsel for the Respondents
