MANOJIT BHUYAN,J. - (1.) Heard Ms. D. Borgohain, learned counsel for the petitioner as well as Mr. S.C. Keyal, learned Assistant Solicitor General of India representing all the respondents.
(2.) At the relevant time, the petitioner was working as Rifleman Operator Radio and posted at 44, Assam Rifles, Guwahati. He is aggrieved of the order of discharge dated 30.06.2011, so issued on medical grounds. The gangplank of the petitioner 's case is that the Discharge Order is not sustainable in law as the same had been rendered without following the procedure prescribed under Rule 26 of the Assam Rifles Rules, 2010. According to the petitioner, on 24.07.2010, a letter was issued on behalf of the Commandant, 44, Assam Rifles recommending the petitioner 's invalidation from service for Alcoholic Dependence Syndrome and having been placed in Medical Category S-5, as per opinion of the Psychiatrist of the Composite Hospital, CRPF, Guwahati. About a year later, the impugned Discharge Order was issued. A representation came to be preferred by the petitioner on 26.09.2011 before the Director General, Assam Rifles with prayer for reinstatement in service. Ground urged in the said representation was that he had been discharged from service on medical ground without any opportunity of hearing being afforded. Along with the said representation, a Medical Report issued from the Amritsar District Hospital certifying his fitness was also enclosed. The said representation was rejected by the authority concerned on 02.12.2011.
(3.) Ms. D. Borgohain, learned counsel for the petitioner submits that the entire procedure culminating in the discharge of the petitioner on medical grounds did not conform to the procedure laid down in Rule 26 of the Assam Rifles Rules, 2010. It is submitted that the petitioner was not made to appear before a Medical Board nor he was informed of a Medical Board being constituted nor any report thereof was communicated to the petitioner. For a better appreciation of the aforesaid Rule 26, the same is reproduced hereunder: "26. Retirement or discharge of subordinate officers and enrolled persons on grounds of physical unfitness. - (1) Where a Commandant is satisfied that a subordinate officer or an enrolled person is unable to perform his duties by reason of his physical disability, he may direct that the said subordinate officer or enrolled person, as the case may be, be brought before a medical board. (2) The medical board shall consist of such officers and shall be constituted in such manner as may, from time to time, be laid down by the Director-General. (3) Where the said subordinate officer or the enrolled person is found by the medical board to be unfit for further service in the Force, as the case may be, the authority as specified in rule 17 shall, if it agrees with the findings of the medical board, communicate to the said person the findings of the medical board and thereupon, within a period of thirty days of such communication, the person may make a representation against it to the competent authority supported by a prima-facie evidence of error of judgment in the opinion expressed by the medical board. Such an evidence should be from and Government doctor not below the status of civil surgeon and should contain specific mention that he has taken into consideration the findings of the medical board before giving his opinion. (4) Where the person declared to be unfit for further service makes representation under sub-rule(3) the same shall be forwarded to the next superior officer, who shall have the case reviewed by a fresh medical board constituted for the purpose and order the retirement/discharge of the said person, if the decision of the fresh medical board is adverse to him. (5) Where no representation is made against the decision of the medical board under sub-rule(3), the authority as 'specified in rule 17 ' as the case may be, may (if he agrees with the findings of the medical board) other the retirement or discharge of the person concerned." ;