ORDER

The present petition under Article 226 of the Constitution of India has been filed against the order dated 06.01.2023 passed by respondent no. 2 whereby while rejecting the statutory appeal preferred by the petitioner, the order of termination dated 1.10.2022 was affirmed and the services of the petitioner were terminated on the ground of medical unfitness.

Brief facts of the case are that the petitioner had initially joined the respondent department on 29.06.2010 on the post of Constable and since then had discharged his duties with utmost devotion and sincerity.

The petitioner submitted an application before respondents and requested that his posting may not be made to police headquarters on the ground of depression and insomania. In pursuance to the aforesaid request being made by the petitioner, the petitioner was referred to Civil Surgeon, Morar, Gwalior for examination of his health condition. The Civil Surgeon referred the petitioner to the medical board for his examination on the same day and the medical board after examining the petitioner had found the petitioner to be unfit for service on 14.09.2022. The medical board in the remark column of certificate had observed that the petitioner was suffering from moderate depression with symptoms of " occasionally suicidal ideas" intermittent severe anxiety, lack of sleep and thus, he is advised to take Psychiatric treatment with regular follow up. The petitioner being aggrieved by the aforesaid medical report requested for re-examination, however respondent no. 3 without considering the same vide its order dated 01.10.2022 terminated the services of the petitioner on the basis of aforesaid report without giving him any opportunity of hearing. After termination of the services of the petitioner, a statutory appeal was preferred by him but the said appeal was also dismissed by holding that since in the medical certificate issued by the Board it has been mentioned that petitioner is unfit for duty, therefore, the order of termination has rightly been passed by respondent no. 3.

Aggrieved by the aforesaid order of termination as well as appellate Court's order, the present petition has been filed.

Learned Counsel for the petitioner had argued that from bare perusal of Annexure P/2 which is certificate issued by Medical Board it would be evident that the petitioner was sent for his medical examination since he was having symptoms of moderate depression with symptoms of " occasionally suicidal ideas" for the past two years and after examining the petitioner, the Board had advised the petitioner to take psychiatric treatment with regular follow up and only on 14.09.2022 the petitioner was declared unfit as he was currently suffering from psychiatric disorders but considering it to be remark of his unfitness for service, respondent no. 3 without giving any opportunity of hearing to the petitioner had dismissed the petitioner from service which is not legal. It was further argued that this aspect has also not been considered by the appellate authority and wrongly construing the petitioner to be unfit for duty had affirmed the order passed by the authority terminating service of the petitioner which is per se illegal and deserves to be quashed. It was further argued that since the petitioner was only having symptoms of moderate depression and that too was due to insomnia for past two days that he himself had requested for restraining his posting to police headquarters and even the medical board vide Annexure P/2 had advised the petitioner to take psychiatric treatment and, therefore, the order of termination of the petitioner from service is bad in law. Thus, it was prayed that the impugned order Annexure P/4 dated 01.10.2022 and the appellate Court's order Annexure P/1 dated 06.01.2023 deserves to be set aside. The petitioner is required to be reinstated with all consequential effects.

Per contra, Shri Kushwaha appearing for the State while placing reliance on the reply had submitte