RAMSING NENASING RAO Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The substantial question of law to be decided in this appeal is whether the impugned order of compulsory retirement passed by the District Superintendent of Police Banaskantha is legal and valid the two Courts below have concurrently held that the said order is legally valid. Some important facts which are necessary for the decision in this matter have to be taken into consideration. The appellant was working as Head Constable. He was believed to be mentally unfit for performing his duties. Hence he was sent for examination by the Civil Surgeon Ahmedabad After examining him the Civil Surgeon is said to have found him schizophrenic. On the basis of this finding the appellant was compulsorily retired on the ground that he was unfit for his duties under the provisions of Rule 207 of the Bombay Civil Services Rules (hereafter-BCSR). The appellant filed the present suit challenging the said order.

(2.) The appellant has been provided with the services of an advocate by the Legal Aid Committee. Mr. A. R. Thakkar has appeared on behalf of the appellant and urged that the impugned older of compulsory retirement is based on an erroneous understanding of Rule 202-A of the BCSR. According to him the appellant was not given any intimation regarding the finding of the Civil Surgeon that he was mentally unfit for his duties. The appellant was also not informed that he had a right to appeal before the Appeal Board within 30 days against the finding of unfitness by the Civil Surgeon. Hence he could not file appeal within 30 days. However when he actually came to know about such a finding he did file an appeal beyond 30 days. It was rejected on the ground that it was filed after 30 days.

(3.) Looking at Rule 202-A of BCSR it provides that if a competent authority comes to a conclusion on the report of a Medical Officer 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 invalid him. But in those cases were the Government servant has himself asked for being invalided or where it is obvious from the nature of the disability that no useful purpose will be served by an appeal the employee need not be informed. Mr. B. D. Desai learned A. G. P. has relied on this provision and urged that were it is obvious from the nature of disability that no useful purpose will be served by an appeal the Government servant need not be informed that he can file an appeal within 30 days before the Medical Appeal Board. This provision in the aforesaid Rule is quite obviously violative of the principles of natural justice. It is not open to the competent authority or anybody else to come to a subjective decision that no useful purpose Will be served by appealing because of the nature of the sickness. Whether any useful purpose will be served or not is a matter within the discretion of the person who is going to be affected by it. A right to appeal is a valuable right of a person likely to be affected which cannot be taken away by the unilateral subjective decision of another person. Hence it is held that this part of Rule 20L-A of the BCSR is illegal void and inoperative in law. The affected Government servant must be informed about his having been declared invalid and that he has a right to appeal within 30 days before the Medical Appeal Board. The two Courts below were wrong in holding that looking to the nature of illness it was not necessary for the competent authority to inform the present appellant. It is born out from the facts of this case that the appellant was mentally not so unfit that he could not file an appeal because when he came to know about his having been invalided by the competent authority he in fact filed an appeal although beyond the limitation period of 30 days. Hence the contention urged on behalf of the appellant is accepted and the finding of the two Courts below on the interpretation of Rule 202-A is set aside.