ROHITASHVA KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The brief facts of the case are as under:

(2.) Learned counsel for the petitioner submitted that firstly, the impugned order has been passed in contravention to Rule 25 of the Rules of 1969 as Proviso to Rule 25(3) specifically provides that before a delinquent is retired, the findings of the Medical Board and the decision to retire him shall be communicated to him. Learned counsel further submitted that the notice dtd. 7/5/2018 did not comply with the parameters as laid down in the said Rules. He submitted that no medical report comprising of the findings of the Medical Board was ever served on the petitioner before passing of the impugned order. In absence of the medical report, the petitioner could not have filed the representation which mandatorily required a medical certificate from a special medical officer to be annexed alongwith the same. It is the averment of the counsel that unless and until the report of the Medical Board could have been shown to the specialist medical officer, he could not have issued the certificate as required and therefore, the petitioner was not in a position to submit the certificate as required within the stipulated time. The second argument of the learned counsel is that the findings as reached by the Medical Board are totally biased as the same were based only on the report of the Commandant who had issued the unsuitability certificate qua the petitioner. Learned counsel argued that the Medical Board as constituted did not comprise of any specialist or psychiatrist and thus, the said Board was not competent to reach to a finding pertaining to the medical status of the petitioner. He further argued that the report of the Medical Board was totally on the basis of the prior medical status of the petitioner and on the basis of the report of the Commandant which cannot be said to be independent. Learned counsel further argued that the disability of 43% as calculated by the Board is also totally irrational as the said disability has been calculated only with an intention to somehow conclude his disability to be above 40% so that he could be retired from service as, if he would have been found to be disabled under 40%, he could not have been retired from the service. Learned counsel argued that the complete exercise has been undertaken with an ulterior motive to retire the petitioner from service so that he could not complete his term of 10 years of qualifying service. Learned counsel further submitted that the alleged show cause notice dtd. 7/5/2018 was served on the petitioner on 7/6/2018 and a perusal of the same shows that it was signed on 31/5/2018. Counsel pointed out that the said notice mentions the fact of the approval by the competent authority on 9/5/2018 which is a date post 7/5/2018 and therefore, it is clear that the said notice was prepared in advance which also clarifies the mala fide intention of the authority issuing the same.

(3.) Per contra, learned counsel for the respondents submitted that the Medical Board was constituted in terms of the Rules of 1969 and the Medical Board so constituted, after thorough clinical examination and the complete analysis of the mental status of the petitioner reached to the conclusion that the petitioner was medically unfit. Learned counsel further submitted that in terms of Rule 25, soon after the receipt of the report of the Medical Board, the petitioner was served with a show cause notice which was served on 7/6/2018. The petitioner did not choose to file any representation within the stipulated period and therefore, the Department had no other option than to pass an appropriate order in terms of Rule 25 of the Rules of 1969. Learned counsel further submitted that the requirement of Rule 25 was only to serve the findings of the Medical Board to the delinquent and not the report of the Medical Board. He submitted that the show cause notice specifically clarifies the findings of the Medical Board and therefore, the requirement as mentioned in Rule 25 of the Rules of 1969 was completely taken care of. Learned counsel submitted that the format of the medical certificate which was required to be submitted by the petitioner alongwith his representation was annexed alongwith the show cause notice and the same being not submitted within the stipulated time, the petitioner cannot now challenge the order of termination which was passed after the lapse of the stipulated period. Learned counsel also submitted that Rule 28A of the Rules of 1969 specifically provides for an alternative remedy i.e. a petition to the competent authority being available to the petitioner which he did not avail of and submitted the present petition directly before this Court which cannot be entertained.