1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.4838 OF 2009 (Shashanka Shekhar s/o Narayan Chandra Jena vs. Union of India and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri S.P. Hedaoo, Advocate for petitioner. Shri S.B. Ahirkar, Advocate for respondents. -------- CORAM : D.B. BHOSALE AND P.B.VARALE, JJ. DATED : JULY 8, 2010 Heard learned Counsel for the parties. By this writ petition, the petitioner has impugned the order dated 12/12/2008 passed by respondent no.3. The order dated 12/12/2008 passed by respondent no.3 reads thus : “Invalidation from service on Medical Grounds : Whereas Shri S.S. Jena, Asstt. Commandant (IRLA-4805) of GC, CRPF, Nagpur has been declared as completely incapacitated for further service of any kind in the Force by a Board of Medical Officers 2 headed by the CMO (OG) of Composite Hospital, Nagpur in consequence of FUC Residual Schizophrenia c DM Type II and it was proposed to board him out from service on invalid pension. And whereas the said Shri S.S. Jena, A/C was accordingly directed to submit his representation, if any against proposed invalidation vide notice of even number dated 31/7/2008. And whereas the said Shri S.S. Jena, A/C submitted his representation stating that he is not having any disease/deformity and performing normal duties such as Coy Comdr, MTO, Week Officer, etc. However, he has neither challenged the finding of the Board of Medical Officers nor has submitted prima facie evidence from any Medical Authority to substantiate his claim that he is not suffering from the disease in consequence of which invalidation is proposed. That Standing Order : 1/2003, which is uniformly applicable, prescribes that a member of the Force, who is categorized S 5(P) has to be boarded out on invalidation pension. Now therefore, the President is pleased to board out the said Shri S.S. Jena, A/C on invalidation pension as admissible under Rule 38 of CCS (Pension) Rules 1972 from the date of receipt of this memorandum. This notice/memorandum shall be acknowledged by the said Shri S.S. Jena, A/C of GC CRPF, Nagpur. By order and in the name of the President 3 of India.” We have perused the reply filed by respondent no.3. It would be advantageous to reproduce the relevant portion from the reply, which reads thus : “4. It is submitted that the representation of the petitioner against show cause notice proposing invalidation was considered before passing the impugned order. The petitioner is suffering from serious mental disorder and cannot function as an combatant officer, who is expected to lead a company of 135 personnel, armed on the infantry scale. That the invalidation on medical grounds casts no stigma and it is stated that the petitioner is incapacitated on account of schizophrenia and is therefore, boarded out on invalidation pension. The force also cannot keep him against any other post as the entire strength are of combatants, who are expected to use fire arms. A mentally unsound person in any rank cause havoc in a combat organization like the CRPF. 5. It is submitted that the petitioner was serving in CRPF, which is being engaged for highly sensitive duties in various parts of the country. Besides, force cannot keep a psychiatric patient in the executive rank. Hence, the actions of respondents are well within the rules. The persons with disabilities (equal 4 opportunities, protection of rights and full participation) Act, 1995 are not applicable to the CRPF being an Armed Force of the Union of India. 6. It is submitted that petitioner was under treatment since 2002. The petitioner was examined by a Board of Psychiatrists on 27/11/2008 at CH, New Delhi. Therefore, the contention of the petitioner is false and malicious. 7. It is submitted that denial of mental problem/illness for which he was under regular treatment, itself is a symptom of psychiatric patients. As per the medical advice, the petitioner should not be entrusted with fire arms and can only perform light duties. This stage of health is not conducive for combat duties and the petitioner, despite disability, was continued in service only on humanitarian grounds for the permissible duration under the existing rules.” Shri Hedaoo, learned Counsel for petitioner, submitted that the petitioner was not examined by the Board of Psychiatrists on 27/11/2008 at CH, New Delhi as mentioned in the reply-affidavit. He further submitted that the Doctors, who examined the petitioner at Nagpur, are all M.B.B.S. and do not possess post graduate 5 degree in psychiatry. Having regard to the order impugned in the writ petition so also the statements made by respondent no.3 on affidavit, it is difficult to accept the submissions advanced by learned Counsel for the petitioner whereby he has raised several disputed questions of facts. It would not be possible to examine the contentions advanced by learned Counsel for the petitioner in the present petition. The relief prayed in the writ petition, in our opinion, cannot be granted in the face of material placed before us and more particularly reply-affidavit filed by the respondents. Shri Ahirkar, learned Counsel for respondents, submitted that they have already forwarded the pension papers of the petitioner to the Head Office. We hope and trust that the Head Office shall take decision in respect of the petitioner's pension expeditiously. In the circumstances, writ petition is dismissed. Interim relief, if any, stands vacated. JUDGE JUDGE khj 6