IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 WP(C).No. 33791 of 2007(W) --------------------------------------- PETITIONER: ------------------- THULASEEDHARAN, KIZHAKKEVILA VEEDU, VAZHAYILA, RANNI LANE, PEROORKADA P.O. THIRUVANANTHAPURAM DIST., FORMELY CONSTABLE C.R.P.F, PALLIPURAM, TRIVANDRUM. BY ADV. SRI.JACOB SEBASTIAN. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME, NEW DELHI. 2. COMMANDANT, 105 BN RAF C.R.P.F, PALLIPPURAM THIRUVANANTHAPURAM. 3. COMMANDANT, 105 BN RAF C.R.P.F, MAHALINGAPURAM, VALLALORE, COIMBATORE, TAMIL NADU-641 111. R1 TO R3 BY SRI.P.PARAMESWARAN NAIR,A.S.G OF INDIA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.33791/2007-W: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE CERTIFICATE ISSUED BY THE DOCTOR, DEPARTMENT OF PSYCHIATRY, MEDICAL COLLEGE, THIRUVANANTHAPURAM WHO TREATED THE PETITIONER. EXT.P.2: COPY OF THE ORDER DTD. 23/10/2000 OF THE R.2. RELIEVING THE PETITIONER FROM SERVICE WITH EFFECT FROM 23/10/2000. EXT.P.3: COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK OF THE PETITIONER CATEGORIZING HIM AS A VERY GOOD OFFICER. EXT.P.4: COPY OF THE OFFICE ORDER NO. R XIII-1/2001-105-ESTT-II DTD. 04/04/2001 OF THE R.2. EXT.P.5: COPY OF THE REPRESENTATION DTD. 07/09/2002 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.6: COPY OF THE JUDGMENT DTD. 20/02/2007 OF THIS HON'BLE COURT IN O.P. NO. 33032/2002. EXT.P.7: COPY OF THE LETTER NO. J II8/2002/105 EC. 2 DTD. JULY 2007 OF THE R.3. EXT.P.8: COPY OF THE RELEVANT PAGE OF THE BASE RECORD PERTAINING TO THE PETITIONER AND SPECIFICALLY CONTAINING ENDORSEMENT TO THE EFFECT REGARDING NON-DIET, WATCH BEHAVIOUR, NO DRUG ETC., EXT.P.9: COPY OF THE DISCHARGE CERTIFICATE ISSUED TO THE PETITIONER FROM THE C.R.P.F. HOSPITAL. EXT.P.10: COPY OF THE ORDER NO. J II 3/2005, EC II.105 DTD. 20/08/2007 OF THE R.2. EXT.P.11: COPY OF THE CERTIFICATE DTD. 25/07/2011 ISSUED BY THE SUPERINTENDENT OF THE CENTRAL PRISON, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS:- EXT.R(A): COPY OF THE JUDGEMENT DTD. 30/10/1999. EXT.R(B): COPY OF THE LETTER NO.M.V.-1/2000-105-ESTT-III DTD. 07/03/2000 TO OBEY THE ORDERS ISSUED BY THE HON'BLE FAMILY COURT, THIRUVANANTHAPURAM. EXT.R(C): ENGLISH TRANSLATION/TRUE COPY OF THE APPLICATION DTD. 19/10/2000. EXT.R(D): COPY OF THE PETITIONERS RESIGNATION ACCEPTED WITH EFFECT FROM 23/10/2000 (FN) VIDE OFFICE ORDER NO. D.V-2000-105-EC-3 DTD. 23/12/2000. EXT.R(E): ENGLISH TRANSLATION/TRUE COPY OF THE REPRESENTATION DTD. 16/01/2000 ADDRESSED TO THE DY. INSPECTOR GENERAL OF POLICE, RAF, NEW DELHI WITH COPY OF 105 RAF OFFICE. W.P.(C).NO.33791/2007-W: EXT.R(F): COPY OF THE UNDERTAKING SUBMITTED BY THE PETITIONER THAT HE WOULD NOT WITHDRAW HIS DESIGNATION UNDER ANY CIRCUMSTANCES. EXT.R(G): COPY OF THE 105 BN RAF LETTER NO.R.XIII-1/2000-105-ESTT-II DTD. 04/04/2001. EXT.R(H): COPY OF THE CIRCULAR ORDER NO.16/92 ISSUED BY THE DIRECTORATE GENERAL, CRPF, NEW DELHI. EXT.R(I): COPY OF THE CONDITIONS LAID DOWN IN RULE 26(4) (I) (III) (IV) BELOW RULE 26 OF CCS (PENSION) RULES. EXT.R(J): COPY OF THE MEDICAL REPORT OF BOARD OF MEDICAL OFFICERS THAT THE PETITIONER IS NOT FIT TO DO DUTY WITH FIRE ARMS. //TRUE COPY// P.A. TO JUDGE Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 33791 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2011 J U D G M E N T While working as a Constable in the CRPF, the petitioner resigned from service with effect from 23.10.2000, which according to the petitioner, was because of domestic problems between himself and his wife. That resignation was accepted by the respondents. But as per rules, the petitioner had a right to file an application within 90 days for withdrawing the resignation. The petitioner filed an application dated 16.1.2001 for re-employment in the CRPF. The same was rejected by Ext.P4 order dated 4.4.2001. Challenging the same, the petitioner filed O.P. No.33032/2002, in which this Court passed Ext.P6 judgment, which read as follows: “Writ Petition is filed with the following prayers: “i) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P4 and quash the same. W.P.(C)No. 33791 of 2007 -2- ii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to permit the petitioner to withdraw his resignation and to further reinstate him in service in the same post he was relieved in the CRPF, Palippuram. iii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to dispose of Ext.P5 representation expeditiously and within a time limit to be fixed by this Hon'ble Court. ” 2. Learned Addl. Central Government Standing Counsel, with reference to the counter affidavit, submits that the petitioner is medically unfit for service in CRPF and that Ext..P5 cannot be considered. It is also submitted that the application was not submitted within 90 days as stipulated in CCS (Pension) Rules. Learned counsel for the petitioner submits that the application has to be submitted through proper channel before the controlling officer and the petitioner has submitted the application within time. Further submission regarding the fitness of the petitioner is that it is a matter for the respondents to consider, based on the report of the medical board. Unless the petitioner is subjected to a further examination by a competitive medical board, there is no justification in arriving at such a conclusion based on the past medical board records, it is submitted. I find that there is force in the said submission. Going by the past records regarding his physical condition, he may not be fit to continue in service. Since an application to withdraw resignation having been filed within time and the petitioner claims that he is medically fit, there is no justification in rejecting the application based on the past records, without subjecting him for a further examination by a competitive medical board. In the above circumstances, the Original Petition is disposed of directing the second respondent to consider Ext.P5 W.P.(C)No. 33791 of 2007 -3- representation with notice to the petitioner and take appropriate action in accordance with law in the light of the observations contained in this judgment, within a period of four months from the date of production of a copy of this judgment, ignoring the order, if already passed in Ext. P5. “ (underlining supplied) Pursuant to the directions therein, the 3rd respondent passed Ext.P10 order, holding that as per the medical report, the petitioner is a mental/psychiatric patient and is not therefore a person fit to be continued in the CRPF. Consequently in Ext.P10 order it was concluded that the petitioner is not a fit person to be reinstated due to the reasons stated therein. The petitioner is challenging Ext.P10. According to him, the conclusion therein are totally perverse. He would submit that he is not a mental or psychiatric patient and the respondents had no such case before hand. He would further submit that he is at present working as a temporary Male Warder in Central Prison, Thiruvananthapuram. He would also contend that he has taken part in the National Veterans' Meet and secured prizes, based on which, he has been selected for an international meet for veterans. W.P.(C)No. 33791 of 2007 -4- 2. A counter affidavit has been filed explaining as to why the petitioner cannot be reinstated in service. 3. I have considered the rival contentions in detail. 4. I am of opinion that even if the conclusions in Ext.P10 regarding the mental and physical state of the petitioner are correct, the final decision contained in paragraph 7 of Ext.P10 is unsustainable, in view of Ext.P6 judgment. Paragraph 7 of Ext.P10 reads thus: “7. Therefore, the undersigned after going through the petitioner's representation and after judicious application of mind into the whole case has came to the conclusion that the individual is not a fit person to be re-instated in the Force due to the aforesaid reasons. Therefore, the representation of the individual is hereby rejected, being devoid of merit.” In Ext.P6, what this court has directed is that, since an application to withdraw resignation has been filed within time and the petitioner claims that he is medically fit, there is no justification in rejecting the application based on the past records, without subjecting him for a further examination by a competitive medical board. The resignation has already been sought to be withdrawn within the period prescribed under rules, the respondents cannot W.P.(C)No. 33791 of 2007 -5- simply reject the application on the ground of medical fitness. The petitioner has a right to withdraw the resignation as per the rules which he has done. If the respondents have got a case that he is not a medically fit to continued in the CRPF, it is open to the respondents to discharge him on medical grounds which has not been done in this case. Therefore, paragraph 7 of Ext.P10 order is clearly unsustainable. But from Ext.P10, I find that the petitioner has been subjected to medical examination by medical personnel of the CRPF and they opined that the petitioner is not in a mental condition fit for continued employment in the CRPF. Despite the petitioners protestations against the findings, I have no material on record to disbelieve such expert findings. That being so, it is clear that the petitioner is not medically fit to be retained in CRPF. In the above circumstances, I am inclined to treat Ext.P10 as an order discharging the petitioner from CRPF on medical grounds. Accordingly, it is directed that the petitioner shall be deemed to have been discharged from W.P.(C)No. 33791 of 2007 -6- the service of the CRPF with effect from 20.08.2007 on the ground of medical fitness. The petitioner would be entitled to all service benefits flowing from the above directions. But the petitioner would not be entitled to arrears of salary or other benefits up to 20.8.2007. Orders in this regard shall be passed and benefits due to the petitioner shall be disbursed to the petitioner, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/