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2015 Supreme(Megh) 24
IN THE HIGH COURT OF MEGHALAYA
T. NANDAKUMAR SINGH, J.
AR-282 K Ram Bahadur Sunar - Petitioner
Vs
The Union of India represented by the Secretary to the Govt. of India, Ministry of Home Affairs & ors. - Respondents
WP (C)No.74/2014
Decided On : 10.03.2015
Advocate Appeared:
For the petitioner: Mr. HG Baruah, Adv
For the respondents: Mr. R Deb Nath, CGC
The opinion of the Medical board and the Annual Medical Board for re-categorizing the petitioner's medical category as Shape-1 w.e.f. 24.10.2013 are to be accepted. The words “AMA” and “SMO” mentioned in the MHA U.O. shall not be read as only “regular AMA” and “regular SMO” and not the contractual AMA/SMO appointed by the Directorate General Assam Rifles.
Headnote:
MEDICAL CATEGORY - SHAPE-1 - HEALTH CARE SYSTEM IN CENTRAL PARA-MILITARY FORCES - INSTRUCTIONS FOR MEDICAL EXAMINATION AND CLASSIFICATION OF PERSONNEL SERVING IN THE CPMF - MEDICAL BOARD PROCEEDINGS - RECATEGORIZATION - CONTRACTUAL AMA/SMO - DOCTRINE OF NATURAL JUSTICE - CONSTRUCTION OF STATUTE - MAXIM "EXPRESSUM FACIT CESSARE TACITUM" - DOCTRINE OF PURPOSIVE CONSTRUCTION - MAXIM "UT RES MAGIS VALEAT QUAM PEREAT" - PROMOTION - DEPARTMENTAL PROMOTION COMMITTEE (DPC).
Fact of the Case:
The petitioner, an Assistant Commandant in the Assam Rifles, was placed in low medical category P2 (P) due to an abdominal pain and URS with PNEUMATIC LITHOTRIPSY. The petitioner underwent open surgery and was subsequently referred to various medical specialists for review and reclassification of his medical category. The Specialist Medical Officer (SMO) of the Assam Rifles Composite Hospital, who was appointed on a contractual basis, referred the petitioner to various hospitals for further evaluation and needful opinion. Based on the opinions of the specialists, the SMO opined that the petitioner's medical category could be upgraded to SHAPE-1. The Medical board upgraded the petitioner's medical category to Shape-1 w.e.f. 24.10.2013. However, the respondents returned the Medical board proceedings unactioned and directed the petitioner to be referred to a Urologist/Nephrologist from CH (EC) Kolkata for review and reclassification.
Finding of the Court:
The Court held that the opinion of the Medical board and the Annual Medical Board for re-categorizing the petitioner's medical category as Shape-1 w.e.f. 24.10.2013 are to be accepted. The Court also held that the words “AMA” and “SMO” mentioned in the MHA U.O. shall not be read as only “regular AMA” and “regular SMO” and not the contractual AMA/SMO appointed by the Directorate General Assam Rifles. Accordingly, the impugned orders dated 29.07.2013, 13.11.2013, and 04.12.2013 were quashed.
Issues: 1. Whether the opinion of the Medical board and the Annual Medical Board for re-categorizing the petitioner's medical category as Shape-1 w.e.f. 24.10.2013 should be accepted? 2. Whether the words “AMA” and “SMO” mentioned in the MHA U.O. should be read as only “regular AMA” and “regular SMO” and not the contractual AMA/SMO appointed by the Directorate General Assam Rifles?
Ratio Decidendi: 1. The Court held that the opinion of the Medical board and the Annual Medical Board for re-categorizing the petitioner's medical category as Shape-1 w.e.f. 24.10.2013 are to be accepted based on the following grounds: * The Medical board is an expert body and its opinion is entitled to be given due weight, value, and credence. * The Medical board has clearly opined that the petitioner's disability was neither attributable nor aggravated by the military service. * The Apex Court has held that normally the opinion given by the medical board should be accepted. * There is no dispute that the medical board is a competent body and the judgment of a competent body has to be accepted unless it is proved contrary by any other cogent reason. 2. The Court held that the words “AMA” and “SMO” mentioned in the MHA U.O. shall not be read as only “regular AMA” and “regular SMO” and not the contractual AMA/SMO appointed by the Directorate General Assam Rifles based on the following grounds: * The maxim "expressum facit cessare tacitum" ("when there is express mention of certain things, then anything not mentioned is excluded") applies to the construction of a statute. * As such, when the words “AMA” and “SMO” are clearly mentioned in the said MHA U.O., it cannot be read as regular AMA and regular SMO or not the contractual AMA and SMO appointed by the Directorate General Assam Rifles. * The doctrine of purposive construction should be invoked in the construction of a statute. * Under the doctrine of purposive construction, all the provisions of the statute should have full effect. * Therefore, in the present case, powers and functions of the “AMA”:“SMO” and Medical board under the said MHA U.O. should be given full effect.
Final Decision: The impugned orders dated 29.07.2013, 13.11.2013, and 04.12.2013 were quashed. The promotion of the petitioner already recommended for promotion to the rank of Deputy Commandant shall be w.e.f. 01.04.2014 i.e. the date of promotion of his juniors. The respondents shall complete the whole exercise for the follow-up action of this judgment and order within 3 (three) months from the date of receipt of a certified copy of this judgment and order.
Heard Mr. HG Baruah, learned counsel for the petitioner and Mr. R Deb Nath, learned CGC appearing for the respondents.
2. By this writ petition, the petitioner is approaching this Court for a judicious decision of his case. The matter in disputes between the parties is as to the procedure of regaining medical category of the petitioner as Shape-1 w.e.f. 24.10.2013. The parties stated that “Health Care System in Central Para-Military Forces” containing the instructions for medical examination and classification of personnel serving in the CPMF was issued vide MHA U.O. No. I.45024/3/2004-Pers-II dated 31.07.2007. The matter in issue in the present writ petition is to be decided on the basis of the said MHA U.O.; it will be more profitable to quote the relevant portions of the said MHA U.O. hereunder:-
“HEALTH CARE SYSTEM IN CENTRAL PARA-MILITARY FORCES INSTRUCTIONS FOR MEDICAL EXAMINATION AND CLASSIFICATION OF PERSONNEL SERVING IN THE CPMF
(Issued vide this Ministry’s U.O. No. I.45024/3/2004-Pers-II dated 31/07/07)
APPENDICES
A. Declaration to be obtained from individuals before medical examination.
B. Health card format.
C. Proforma of medical examination report.
D. Proforma for certificate to be produced by an appellant challenging the findings for the AMA/Medical board for review.
E & F. Age and Height wise standard weight nomograms for male & female.
AIM
This order lays down instructions/Procedures for carrying out annual medical examination and classification of combatised Officers and other Personnel serving in the Central Police Forces.
2. This order supersedes all existing instructions on the subject and is laid out in following parts:
Part-I Policy of Medical Examination and classification
Part-II Instructions and Procedure for Medical classification
Part-III Disposal of various Medical Board Proceedings
Part-IV Board technical guidelines for Medical Officers
PART-I
POLICY OF MEDICAL EXAMINATION
3. GENERAL
The object of Medical Examination is for timely detection of any disease or infirmity when it may still be in a latent (sub-clinical) stage for early intervention with preventive and curative measures to promote positive health. This will not only make the personnel health conscious but also enhance their physical ability, professionalism and alertness, so vital for Armed Forces, particularly engaged in internal security duties in the prevailing security scenario. Our Officers and men must be composed and healthy to face any challenge in order to preserve unity and integrity of the country, to protect life and property of citizens while simultaneously defending themselves with agility and valor. To expect troops to remain healthy and efficient, its leaders must be examples to lead the way while working shoulder to shoulder with their personnel.
Therefore, all the combatised personnel and officers of all cadres and ranks, will be subjected to medical examination periodically every year. If a CPF personnel is on deputation to an organization he should get his AME done at that organization only; however if infrastructure/MO is not available in that organization, he can get his SHAPE categorization done in his parent organization. It will be rather their own responsibility to get their own AME carried out in time. The annual medical examination (AME) up to NGO level will be carried out by their respective authorized medical attendant (AMA) of the unit or in his/her absence, by an MO/SMO/CMO, detailed by the concerned D.I.G. (Medical)/Frontier Medical Officer in case of BSF, CMO I/C of administrative CH/GC Hospital in case of CRPF/CISF/SSB and the Sector Medical Officer in case of ITBP. For routine investigation and treatment, the individual will depend on his/her AMA and the nearest unit/Composite/Frontier/Sector Hospital of the respective Forces or, in its absence, under the AMA’s supervision, at the nearest CH of any CPF/Govt. hospital to which is AMA refers him officially.
For G.O.s, AME will be carried out by a B
