The main legal point established in the judgment is that the authorities cannot alter the kind of leave due and applied for except at the written request of the government servant, and commuted leave can be granted on submission of a medical certificate.

Deepa Sharma, J.

1. The undisputed facts of the case are that the petitioner had joined the Border Security Force as Sub-Inspector and had retired as Deputy Commandant on 31st December, 2005 at the age of 57 years. W hen he was posted at Barmer, Rajasthan, he availed 30 days earned leave from the period 11th February, 2005 to 13th March, 2005 and came to Delhi.

2. The case of the petitioner is that during this period he had fallen sick on 7th March, 2005 and reported at the BSF Hospital, Tigri Camp, Delhi. The hospital noted on examination that he had a mild enlarged prostate gland apart from other clinical observations. He was, therefore, referred to the Surgical Specialist, Safdarjung Hospital for “thorough check-up and management” (page 12). On the 9th of March, 2005, the petitioner reported at the Safdarjung Hospital General Surgery Department for check up which referred him to the OPD of Department of Urology.

3. The petitioner remained on treatment at the Safdarjung Hospital thereafter and has placed copies of his OPD card, medical treatment and the reports of the radiology and pathology test performed on him on record. Information with regard to his illness was given to Shri Hoshiyar Singh, Deputy Commandant who was the adjudant in the petitioner’s unit on 13th of March, 2005 and thereafter again on 7th of April, 2005. The petitioner has supported these with receipts of the telephone calls made from the

STD Booth. This fact is also not disputed by the respondents before us.

4. On 27th April, 2005, the respondent no.2 wrote a letter to the petitioner referring to the petitioner’s letter of 23rd April, 2005. The petitioner was directed by this letter to submit a certificate issued by the BSF Hospital, R.K. Puram, New Delhi or by the Medical Officer of the 25th Battalion, BSF to the effect that he was unable to travel failing which he should present himself on duties at the headquarter. By a second letter, also dated 27th April, 2005, the respondents directed the petitioner to report for further treatment to the CMO(SG) I/C STS Hospital and a medical certificate issued by the Medical Officer of the force as well as medical card be sent to the office.

5. On receipt of the first letter, the petitioner claimed that he reported to the CMO (SG) I/C STS Hospital. He was advised not to travel and, therefore, he could not attend to his duties.

6. The petitioner was still undergoing urology treatment when on 2nd of May, 2005 he complained of heart problem and he was therefore referred to Cardiology Department of the Safdarjung Hospital by the CMO(SG) I/C STS Hospital, Tigri Delhi. The petitioner was thereafter undergoing treatment for his cardiology condition in the Department of Cardiology, Safdarjung Hospital as well from the 2nd of May, 2005 onwards. On the 18th of May, 2005, the petitioner was referred to undergo several tests including TMT; eco Cardiogram, etc. which were performed on him.

7. The petitioner appears to have undergone several pathology and radiology investigation, both at the Urology Department as well as Cardiology Department of the Safdarjung Hospital. He was also admitted in the Department of Cardiology, Safdarjung Hospital between 24th May, 2005 to 25th May, 2005 for undergoing CAG and asked to report to the Cardiology OPD after four weeks. Photocopy of the complete record of the Safdarjung Hospital from the departments where the petitioner underwent treatment or investigation have been placed before us. On 8th June, 2005, the petitioner underwent a stress thallium test and again reported to the hospital on 13th June, 2005 and 20th June, 2005 with chest pain. On 16th May, 2005, the petitioner undergone a TMT and was reported that it was positive for provocative ischaemia. On 28th May, 2005, the petitioner undertook stress myocardial perfusion scan.

8. So far as information of the petitioner’s health to his employer is concerned, it is an admitted position that the BSF STS Hospital, Tigri Delhi sen