Kapil Dev vs Union Of India & Others

The petitioner is aggrieved and has challenged the communication issued by Directorate General, CRPF vide No. P-VII-6/2015. Pers.DA-2 dated 10th July, 2015, whereby the claim of the petitioner for grant of senior time scale has been rejected on the ground that the petitioner was in S1H1A1P1E2 medical category due to injury sustained by him while playing cricket during game period. Relying upon para 4.17 of the standing order No.4 of 2008 read with definition of "active duty" given in the CRPF Act, 1949, it was concluded by the respondents that the disability had been incurred by the petitioner while playing cricket during game period and not while being on active duty.

Learned counsel for the petitioner submits that the similar issue was subject matter of consideration before the High Court of Delhi in the case of Venkatesh v. Union of India and other (WP(C) No.11263/2015), the Division Bench of the High Court of Delhi vide its judgment dated 13.12.2018 set at rest the controversy with regard to the actual meaning and import of the term "active duty".

Learned counsel for the petitioner submits that the facts of this case are entirely similar to the facts of the case before the Delhi High Court, in that, in the case before Delhi High Court the petitioner had suffered injury while playing the game of badminton during game period and in the instant case, the petitioner has suffered injury while playing cricket during the game period. Drawing similarity between the two cases, learned counsel for the petitioner urges this Court to allow the petition on the same analogy on which the petition of one Venkatesh was allowed by the Division Bench of Delhi High Court in terms of the judgment (supra). It is the further submission of learned counsel for the petitioner that the judgment passed by the Division Bench of Delhi High Court in the case of Venkatesh (supra) has been implemented by the respondents.

Having heard learned counsel for the parties and perused the record, it is seen that the claim of the petitioner, an Assistant Commandant in CRPF, for his promotion as Dy. Commandant (senior time scale) has been rejected primarily on the ground that in terms of para 4.17 of Standing Order No.4 of 2008, relaxation for S1H1A1P1E2 medical category for promotion is admissible only to those personnel, who are kept in low medical category due to wound/injury during field firing/ accidental firing/ explosion of mines or explosive devices or due to accident while on active government duty in India or abroad.

There is no denying fact that the petitioner has been placed in law medical category i.e. S1H1A1P1E2 because of the wound/injury suffered by him while playing cricket during game period. The only question that begs determination in this case is as to whether the injury, because of which the petitioner has been placed in low medical category has occurred while being on active duty or not?

The answer to this question can be found in the elaborate judgment of the Division Bench of the Delhi High Court in the case of Venkatesh (supra). After thorough discussion on the issue and also giving purposeful meaning to the term "active duty", the Division Bench in para 15 and 16 of the judgment (supra) has held thus:-

"15. There is a difficulty in accepting the submission on behalf of the Respondents. A member of the CRPF does not cease to be on active duty only because he is not actually in the line of firing or dealing with mines or other explosive devices. A member of the CRPF continues to remain on duty in whichever post he is - whether it is an anti-insurgency station posting or a peace posting. He is expected to be ready to perform his duty "to restore and preserve order in any local area in the event of any disturbance there". To elaborate even in a peace station when members of the CRPF are engaged in an activity which is formed part of their assigned duties and suffered an accident, that accident cannot be characterized as not big incurred while on „active duty‟. It is the preparedness to participate in all activities to restore and preserve order in any local area that is determinative of whether a person is on „active duty‟ or not.

For instance, if in a peace station as part of a regular drill that the officers have to undertake for maintaining their fitness, an accident takes place which reduces an officer medical category from Shape-I to Shape-II and to be more precise to the E2 permanent medical category. It cannot be said that this is on account of an accident that was not suffered one being on „active duty‟. At any point in time as long as the officer in that station and in that posting, he may be called upon to perform active duties and therefore to restrict the expressions „accidents‟ to only those incurred during "field firings, accident firings, explosion of mines" will not do justice to the intention behind providing for such relaxation.

Having gone through the judgment of the Division Bench of Delhi High Court (supra), I am in full agreement with the interpretation put by the Delhi High Court on the term "active service". A CRPF personal while playing the game during game period, which is an integral party of his duty, cannot be said to be out of active service and in case during the course of playing the game, he suffers injury, same cannot be said to have been suffered while not on active duty.

That being so, the decision of the respondents to declare the petitioner ineligible for further promotion on account of his low medical category on account of having suffered injury while playing cricket during game period is bad in the eye of law and, therefore, cannot sustain.

In view of the aforesaid, this petition is allowed. The impugned communication of the Directorate General, CRPF dated 10.07.2015 is quashed. The petitioner is held entitled to relaxation in terms of Para 4.17 of the Standing Order No.4 of 2008 for promotion to the post of Dy. Commandant (senior time scale). Accordingly, a direction is issued to the respondents to pass fresh consideration order within a period of four weeks giving the petitioner relaxation in terms of Para 4.17 of Standing Order No.4 of 2008. The respondent will also pass consequent order of promotion of the petitioner to the rank of Dy. Commandant, if otherwise, eligible with effect from the date his immediate juniors have been so promoted. Promotion to which the petitioner is found entitled to shall be given with retrospective effect only on notional basis.