JETHALAL JIVABHAI PANDYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is filed under Article 226 of the Constitution of India for quashing and setting aside the order dated 17/01/1992 placed along with the petition at Annexure-D and to reinstate the petitioner with all consequential benefits. It was also prayed that the petitioner be provided lighter duty which he was performing earlier. The petition has arisen on the following backdrop.

(2.) The petitioner was serving as a First Grade Head Constable in State Reserve Police Force Group No.13, Rajkot, however, we are not able to ascertain the date of his recruitment as such. But, in 1985, the petitioner suffered a heart attack and till then he had put the service of many years. In 1985 on account of heart attack, the petitioner remained on leave for six months and resumed his duties and discharged duties upto 1989. Not only that he was promoted to First Grade Head Constable on 1st of June, 1989. However, in the year 1989 after the promotion, the petitioner requested the respondents No. 1 to 3 for lighter duty because he had suffered a heart attack in the year 1985. On receiving the request of the petitioner in 1989, he was sent to the Medical Board by respondents No. 2 and 3 on 22nd September, 1989. The decision of the Medical Board after examining the petitioner was however not communicated to the petitioner but he must have been declared unfit because on 30.10.1990 he was served with the order that w.e.f. 3 1/10/1990 on the ground of physical incapacity he was directed to be compulsorily retired. Against this order of compulsory retirement, petitioner preferred Department Appeal before respondent No.3. The Appeal was decided by Commandant, Group No.13, Rajkot on 14/12/1990. The operative part of the order dated 1 4/12/1990 is placed on record at Annexure-B. Accordingly, though the petitioner was declared unfit medically, the appellate authority thought it expedient to reinstate the petitioner and earlier order dated 30.10.1990 of compulsory retirement of the petitioner was suspended. It was further directed by the appellate authority in the said order dated 14.12.1990 at Annexure-B that the petitioner shall appear before the Medical Appeal Board for the physical fitness. It is pertinent to take note of provision of Rule 202-A of the Bombay Civil Services Rules, 1959 which makes provision to the extent that if a competent authority comes to the conclusion on the reports of a Medical Officer or any of the Standing Medical Board that a Government servant should be retired on invalid pension, it shall inform the Government servant that he has been declared to be completely and permanently incapacitated for further service and that it is proposed to declare him invalid. On the strength of this provision, vide order dated 30.10.1990 the petitioner was retired compulsorily. It is further pertinent to note here that sub-rule (2)of Rule 202-A provides for Appeal before a Board against a medical report by which the competent authority might be taking a decision to retire a Government servant on invalid pension. For this, the Government is also required to inform the concerned employee that if concerned employee so desires, he may be examined by Medical Appeal Board within one month from the date the concerned employee is so informed by the Government. Of course, the provision is also there that the request of the Government servant for examination by the Medical Appeal Board must be supported by prima facie evidence that good ground for an Appeal exists and it must accompany a treasury receipt for Rs.48 for the cost of Medical Appeal Board. It is also made clear that the right of Appeal cannot be claimed as of right but on an application, due consideration will be given to such request. There was further provision in Rule 202-A of the Bombay Civil Services Rules, 1959 to the effect that "except where it is clear that a Government servant himself desires to be invalidated or where it is obvious from the nature of the disability that no useful purpose will be served by an appeal", in such circumstances, the Government was absolved from the duty to inform the Government servant that he was completely and permanently incapacitated for further service and regarding the provision of the Appeal. The above said portion in the provisions of Rule 202-A of the Bombay Civil Services Rules, 1959, which absolve the Government in certain circumstances from the duty to inform the concerned Government servant was held ultra vires by the decision of this Court in the matter of RAMSING NENASING RAO vs. STATE OF GUJARAT, reported in 1987 (2) GLR 1137. It appears that after deciding his Appeal on 14th December, 1990, the petitioner was reinstated from 1.1.1991. The petitioner worked upto 31.1.1992 and thereafter again by an order dated 17.1.1992 the petitioner was compulsorily retired from 31.1.1992. In the said order dated 17.1.1992 which is placed at Annexure-D, respondent No.3 Commandant of Group No.13 informed the petitioner that the petitioner was required to appear before the Medical Appeal Board as per the provisions of Rule 202-A but since there was no such Medical Appeal Board constituted in the State of Gujarat, as per the earlier order dated 30.10.1990, whereby the petitioner was declared unfit by the Medical Board, Jamnagar, the petitioner was directed to be compulsorily retired from 31st January,1992. Against which, this petition is filed.

(3.) Learned Advocate Mr. A.M. Raval for the petitioner and learned AGP Ms. Harsha Devani for the respondents were heard at length.