PUSHPENDRA MISHRA Vs. UNION OF INDIA

JUDGEMENT

(1.) QUESTIONING the pregnability and substantiality of the order dated 3/7/2007 passed by the learned Single Judge in W. P. (S) No. 2039/2003 the present writ appeal has been preferred under section 2 (1) of the madhya Pradesh Uchcha Nyaylaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (for brevity 'the Act' ).

(2.) BEREFT of unnecessary details the facts which are essential to be exposited are that the appellant-petitioner (hereinafter referred to as 'the appellant') was selected for the enrolment as Soldier Technical and was recruited in Corps of Signals on 29-1-2002. He had undergone Basic Military Training at ; No. 1 Signal Training Centre, Jabalpur. On 4-3-2002 he became unconscious and carried to the Military Hospital, Jabalpur. Thereafter, he was transferred to 'command Hospital, Central Command, Lucknow on 9-3-2002. He was examined by a Neurophysician and had undergone 16 Channel awake EEG recording at command Hospital (Central Command) Lucknow. In the investigation it was found that the appellant was suffering from 'generalized Seizure' (interictal epileptiform activity ). After thorough check up by a Neurophysician at Lucknow he was put in the compartment of Medical Category P-5 (Permanent) and was advised not to swim, drive, handle fire arm, work near fire or open machinery. Periodic review was also suggested by the treating physician. Thereafter, he was transferred back to the Military Hospital, Jabalpur. On a request being made the petitioner was again referred to Command Hospital, Lucknow. At Lucknow the petitioner was examined and the Board recommended for invalided out of service in Medical Category P-5. As pleaded he was referred to Army Hospital (Research and Referral) Delhi Cantonment on 1-8-2002 for opinion of Senior advisor (Neurology ). After investigation it was found that he was suffering from generalized Seizure. A Senior Advisor of Neurology had advised him for avoiding climbing tree, swimming, handling firearms or working near naked fire, open machinery or at heights, avoid sleep deprivation, regular anti epilieptic drug theraphy, periodic review by physician, to be invalided out of service in Medical category P-5 (Permanent ). The Senior Advisor expressed the view the Disability generalized Seizure is not attributable to service and was not aggravated by service. On the basis of the aforesaid documentation the appellant was discharged. The legal propriety of the aforesaid order of discharge dated 23-4-2003 was called in question in the writ petition.

(3.) IT was contended before the learned Single Judge that the petitioner had examined himself at AIIMS, New Delhi and obtained a certificate to the effect that he was fit for any type of work. He also obtained another certificate from senior Consultant in Radiology and Imaging, NMC, Imaging and Diagnostic Centre. Vimhans. New Delhi to show that he was fit.