IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 9879 of 2009 Anil Kumar Ojha, brother of late Constable Dinesh Kumar Ojha, Son of Sri Bhuneshwar Ojha, resident of village – Jorwarpur, P O - Gajrajganj, P S – Ara Mufassil, Dist – Bhojpur - Petitioner Versus 1 The Union of India through the Secretary, Ministry of Home Affairs, Government of India, New Delhi 2 The Secretary, Ministry of Home Affairs, Government of India, New Delhi 3 The Director General of Border Security Force, New Delhi 4 The Commandant, 22 Battalion, BSF Fatikachra, Tripura (West) 5 The DIG and Commandant, Border Security Force, T C & S, Meru Camp, Hazaribagh, Jharkhand - Respondents *** For the petitioner : M/s Ashok Kumar Singh & Anant Kumar Singh For the respondents : Mr Rana Randhir Singh *** 2 18.08.2009 Petitioner’s elder brother Constable Dinesh Kumar Ojha was killed in action while performing duty at Sri Nagar. He was employed with Border Security Force. The late Constable’s widow Smt Jayanti Devi filed due applications nominating the late Constable’s younger brother for employment in Border Security Force on compassionate ground. The same was duly processed and accepted subject to the petitioner, who was the younger brother, passing medical fitness. Petitioner Anil Kumar Ojha then appeared before Recruitment Board for recruitment as Constable General Duty under Compassionate Appointment Scheme but was declared medically unfit due to abnormal curvature of spine and carrying angle deformity. Petitioner immediately got himself examined by Government doctor being Civil Assistant Surgeon, Sadar Hospital, Buxar who certified that the medical findings, 2 as aforesaid, was an error of judgment. Petitioner did not suffer from any such abnormality. On strength thereof, petitioner applied for review medical examination which was done on 18th October, 2008. Here the earlier findings of abnormal curvature spine and carrying angle deformity were reaffirmed and petitioner was declared medically unfit. Petitioner was surprised. He then came to Patna and got himself examined at the Patna Medical College & Hospital by Assistant Professor in the Orthopaedic Department. The Assistant Professor clearly held that the medical unfitness declared by Border Security Force was an error of judgment. Petitioner has once again been declared medically fit. Petitioner again represented to Border Security Force authorities with this certificate. Petitioner has been told that there is no second review medical examination and the findings are conclusive. Petitioner’s case cannot be reviewed. Petitioner submits that while Border Security Force authorities maintained petitioner to be medically unfit, the civil authorities including Assistant Professor of Orthopaedic, who is specialised in this regard, certifies petitioner to be fit in all respects. It is submitted that only to unjustly deny petitioner employment, this has been done by the Border Security Force authorities. Without going into the question of motive behind disqualifying petitioner, in my view, the matter requires consideration by an impartial body as several such cases are coming to this Court. In my view, as it is a case of compassionate appointment and a case with regard to survival of a family of a person who had laid his life in 3 defence of the State, a reconsideration of the matter is in order by the competent authority. I, therefore, request the Superintendent of the Banaras Hindu University Medical College to request the Professor and Head of the Department of Orthopaedic there to examine the petitioner on proper identification for the deformity/disease as pointed out by the Medical Board of Border Security Force. The report would be sent under sealed cover to the DIG and Commandant, Border Security Force, TC & S, Meru Camp, Hazaribagh, Jharkhand. In case the report is favourable to the petitioner, the same would be acted upon and accepted as final. Petitioner would then be deemed to be medically fit and the respondents would then act accordingly. In case petitioner is found medically unfit then no further correspondence would be entertained by the authorities from the petitioner in that regard. A copy of the report to be sent to the DIG and Commandant, Border Security Force, as above, would also be sent by registered post to the petitioner by the Superintendent of Banaras Hindu University Medical College. All or any reasonable expense that is incurred by the College authorities in testing and communicating the report would be borne by the petitioner. This Court requests the Superintendent of the Medical College aforesaid to take steps for examination of the petitioner without unnecessary delay and the parties would act on basis of certified copy of order of this Court. With the aforesaid direction and observation, the writ application is disposed of. M.E.H./ (Navaniti Prasad Singh) 4