IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE THIRTEENTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.18632 OF 2011 Between: B.S.S. Reddy ..... Petitioner AND The Central Industrial Security Force & 3 others ..... Respondents The Court made the following: HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.18632 OF 2011 ORDER: This Writ Petition is filed under Article 226 of the Constitution of India, seeking to issue a writ of Mandamus declaring the action of the 3rd respondent in not considering the petitioner for medical invalidation from service in SHAPE-V medical category as arbitrary, discriminatory, illegal and contrary to the order, dated 27.04.2011, in W.P.No.12249 of 2011, and consequently direct the respondents to forthwith invalidate the petitioner from CISF service on account of his categorization in SHAPE-V medical category with disability pension as assessed by the Regional Medical Board, Osmania General Hospital, Hyderabad, vide its Medical Certificate, dated 16.05.2011, and further direct the 3rd respondent to sanction Special Medical Leave to the petitioner from July, 2010, onwards and with all consequential benefits, monetary or otherwise. 2. The averments, in brief, stated in the affidavit filed in support of the Writ Petition may be stated as follows: The petitioner was enrolled as a Constable in the Central Industrial Security Force (CISF) on 23.12.1988. He met with a major motor vehicle accident on 20.12.2008 while he was in active service in the 3rd respondent unit. Immediately, he was hospitalised in General Hospital, BHEL, for medical treatment from 20.12.2008 to 17.04.2009. Thereafter, he was shifted from the BHEL General Hospital to Nizam’s Institute of Medical Sciences at Hyderabad on 18.04.2009 for better treatment, where he was hospitalised upto 09.10.2009. Sri J.W. Khan, the then Commandant of the 3rd respondent unit was transferred from the 3rd respondent unit and 4th respondent was posted in his place as Commandant. A stage managed Court of Inquiry (COI) was conducted and it found that the petitioner was on active duty in the 3rd respondent unit on 20.12.2008 and therefore, recommended for all the benefits on account of the injuries sustained by him. On account of severe injuries on his spinal cord, loss of eyesight and bodily injuries in various parts, due to the said motor vehicle accident, the petitioner could not discharge his normal duties. Sarojini Devi Government Eye Hospital, Hyderabad, examined and assessed the disability in his eyes at 40%. The said COI proceedings was accepted by the 2nd respondent who is the competent authority. The petitioner was categorized by the 3rd respondent unit in SHAPE-IV Medical Category for the year 2009, which would expire on 16.05.2010 and therefore, directed him to undergo Annual Medical Examination for review of his medical categorization. The General Hospital, BHEL, which had examined the petitioner, found him permanently unfit for CISF duties and categorized him in SHAPE-V on 22.02.2011 and recommended him to the Medical Superintendent, Osmania General Hospital, Hyderabad, for assessment of his disability for his medical invalidation from service. The 3rd respondent sanctioned him Special Medical Leave for 311 days only i.e., for the period of his hospitalisation from 20.12.2008 to 09.10.2009 and refused to sanction him Special Medical Leave, even though he was on leave from July 2010 onwards. The petitioner approached this Court with W.P.No.12249 of 2011 for redressal of his grievance. This Court, by order, dated 27.04.2011, disposed off the said Writ Petition permitting the petitioner to make a fresh application to the 3rd respondent herein with a further direction to the 3rd respondent herein to dispose of the same within four weeks thereafter in accordance with law. However, the 3rd respondent did not accept his application for medical invalidation and insisted that the assessment of his disability has to be made by the Medical Board, which is the competent authority. The original medical certificate, dated 16.05.2011, issued by the Regional Medical Board, Osmania General Hospital, Hyderabad, was communicated by the Medical Superintendent, Osmania General Hospital, Hyderabad, to the General Hospital, BHEL, vide letter Rc.No.MRD/MB/2011/24/341, dated 26.05.2011. The petitioner also submitted his application, dated 26.05.2011, to the 3rd respondent requesting for his medical invalidation and to grant him disability pension, as per the recommendations of the Regional Medical Board of Osmania General Hospital, Hyderabad, but the 3rd respondent returned the same. The petitioner applied to both the General Hospital, BHEL, and the 3rd respondent to supply the original medical certificate issued by Regional Medical Board, Osmania General Hospital, Hyderabad. The petitioner submitted a representation, dated 20.06.2011, enclosing a copy of the medical certificate, dated 16.05.2011, issued by the Regional Medical Board, Osmania General Hospital, Hyderabad, and once again requested the 3rd respondent to medically invalidate him from service on the basis of the said medical certificate with disability pension. The petitioner also submitted another representation, dated 24.06.2011, reiterating his request to the 3rd respondent. After receipt of his representation, dated 24.06.2011, the 3rd respondent served on him on 29.06.2011 to the petitioner stating that his representation for invalidation of medical pension did not accompany any medical documents and to expedite the matter to comply with the said order, dated 27.04.2011, an Invalidation Medical Board at CISF Hospital, NISA Hakimpet, Hyderabad, was constituted with three Medical Officers and directed the petitioner to appear before the said board. The Regional Medical Board, Osmania General Hospital, Hyderabad, assessed his disability from 50 to 55% stating that he was suffering with Post Traumatic L1 Wedge. After receipt of the medical certificate, dated 16.05.2011, the 3rd respondent requested the respondents 1 and 2 to constitute an invalidation Medical Board as it is not possible to comply with the directions granted by this Court in its order, dated 27.04.2011, in the absence of medical ceritificate. The 1st respondent constituted an Invalidation Medical Board consisting of fresh medical graduates who were recently appointed in CISF at NISA, Hakimpet Training Centre for providing clinical treatment to the trainees. Hence, the Writ Petition. 3. Earlier, a direction was given that as per Rule 38 of the CCS (Pension) Rules, 1972, necessary application has to be filed by the petitioner before the 4th respondent therein. Whether the petitioner is entitled for the relief sought for has to be decided by the competent authority in accordance with the rules governing the service conditions of the petitioner. Hence, the petitioner has to make an application before the 4th respondent. On making such application, the 4th respondent shall dispose of the same within a period of four (4) weeks from the date of such representation. In pursuance thereof, the petitioner filed a representation on 26.05.2011 before the 3rd respondent for his medical invalidation and to grant him disability pension, as per the recommendations of the Regional Medical Board of Osmania General Hospital, Hyderabad, but the same was returned directing him to re-submit the representation with all original medical documents. Thereafter, another representation was given on 24.06.2011 without enclosing any medical certificates as required by the hospital. 4. As seen from the representation, dated 20.06.2011, a copy of the letter, dated 16.05.2011, of the Medical Superintendent, Osmania General Hospital, Hyderabad, and the medical certificate, dated 16.05.2011, issued by the Regional Medical Board of the Osmania General Hospital, Hyderabad, are enclosed. So, the question is whether invalid pension may be given to the petitioner according to Rule 38 of the CCS (Pension) Rules, 1972. 5. Rule 38 of the CCS (Pension) Rules, 1972, reads as follows: “38. Invalid pension (1) Invalid pension may be granted if a Government servant retires from the service on account of any bodily or mental infirmity which permanently incapacitates him for the service. (2) A Government servant applying for an invalid pension shall submit a medical certificate of incapacity from the following medical authority, namely:- (a) a Medical Board in the case of a Gazetted Government servant and of a non-Gazetted Government servant whose pay, as defined in Rule 9 (21) of the Fundamental Rules, exceeds Two thousand and two hundred rupees per mensem; (b) Civil Surgeon or a District Medical Officer or Medical Officer of equivalent status in other cases.” Note No.1 clearly indicates that no medical certificate of incapacity for service may be granted unless the applicant’s head of his office or department is aware of the intention of the applicant before the Medical Board. So, this note is very clear that unless for the purpose of claiming invalid pension, the person must be referred to the hospital by the head of his office or department. The petitioner has not filed any copy of the same to show that he was referred to the Osmania General Hospital, Hyderabad, by the head of the department or head of his office. He is only referring to the reference made by the doctor of the General Hospital, BHEL, to the Osmania General Hospital, Hyderabad. The hospital authorities are not the head of the department or head of the office so as to refer him to the hospital for claiming invalid pension. 6. According to the learned standing counsel for the respondents, Medical Board is constituted by the head of the department in the head office Commandant, CISF unit, Hakimpet, as per Rule 38 of the Rules, 1972. Therefore, necessarily, the petitioner has to appear before the Medical Board constituted for the purpose of invalidation by the respondents. 7. Hence, the Writ Petition is disposed of directing the petitioner to submit all the medical certificates available with him and also obtain a copy of the medical certificate issued by the Regional Medical Board, Osmania General Hospital, Hyderabad, and enclose the same to the 4th respondent so that the 4th respondent can refer him to the Medical Board constituted by the first respondent and on filing of such representation, the 4th respondent shall take appropriate decision in referring the petitioner to the constituted Medical Board of the first respondent within a period of two (2) weeks from the date of receipt of representation along with medical certificates. The petitioner is entitled to receive the original copy submitted by the Osmania General Hospital, Hyderabad, to the General Hospital, BHEL, from the hospital authorities. There shall be no order as to costs. ______________ (K.C.BHANU, J) Dated: 13th July, 2011. Note: Issue CC by one week (B/o.) KL HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.18632 OF 2011 13th July, 2011 KL