Mirza Maqbool Hussain vs Union of India and Others

On account of medical opinion expressed by the Board and the petitioner having been placed in BEE (T) category. Petitioner was not given

promotion. Stand taken by the respondent in this regard in para 4 of the reply is reproduced below :

That the contents of para 4 are admitted to the extent that the petitioner was examined by a Board of Directors on 19.8.93 and he was placed

under low medical category GEE (Temp) for one year w.e.f. 24.11.1993. The petitioner had again appeared before the Medical Board for review

of his medical category on 19th January, 1995 and was found unfit medically by the Board of Directors and placed under low category BEE

(Temp) for one year with effect from 19.2.1995. His medical category was to be reviewed after one year. The petitioner had again appeared

before Medical Board on 3rd July, 1996 and was not found to remain in category AYE and was placed under low medical category GEE (Temp)

for one year w.e.f. 10.7.96 with the direction to be reviewed after one year. As per the directions of the Board of Directors, the petitioner had

lastly appeared before the medical board held on 22.7.97 and was not found fit by the Medical Board and placed under low medical category

BEE (T) for another one year w.e.f. 01.8.97 and is still under low medical category.

That the petitioner has got promotion upto the rank of SubInspector on his turn and seniority when he was in medical category AYE."" Petitioner

submits that :

i. the above opinion of the Medical Board was to operate for a period of one year;

ii. in view of circular dealing with promotion of Low Medical Category and in view of the provision contained in the Persons with Disabilities

(Equal Opportunities Protection of Rights and Full Participation) Act, 1995, petitioner is entitled to the benefit of promotion notwithstanding he

was placed in Low Medical Category.

So far as the last argument is concerned, it is clear that the Act in question would not be available to the situation as it exists in this case. This

Act is meant for those persons who are suffering from disabilities as indicated in Section 2(h) of the Act. The disabilities which are so mentioned in

Section 2(n) of the Act, for facility of reference, are reproduced below

Disabilities means i. Blindness

ii. Low vision

iii. Leprosy cured

iv. Hearing impairment

v. Locomotor disability

vi. Mental retardation

vii. Mental illness.

A perusal of above statutory provision would indicate that the case of the petitioner is not covered by the said provision. The purpose of this

Act is to enable a person to participate alongwith others. Apart from the fact that the petitioner does not suffer from any of the disabilities he has

not been prevented from participation. He has simply been placed in 'low medical category' on account of his physical state of affair. No doubt,

Section 47 of the Act does make mention of the fact that there would be no discrimination in the Government employment and this Section also

makes a provision that a promotion is not to be denied merely on the ground of disability, nevertheless, the aforementioned provision would not be

attracted to the facts of this case. The words used in Section 47(2) are: ""no promotion shall be denied to a person merely on the ground of his

disability"". In the present case, the petitioner has been placed in low medical category with a direction that his claims would be considered for

promotion after one year. The petitioner has not been debarred permanently. There is nothing on the record to indicate that the aforementioned

provision is applicable to Armed Forces. In any case, the respondents have taken a decision. This has been placed on the record as Annexure 'A'.

Whosoever has suffered disability on account of army operations is being considered. As indicated above, the petitioner has not been permanently

debarred from promotion. The only thing which can be said in favour of the petitioner is that respondents would reexamine the claims of the

petitioner. In case, the disability no longer exists, then his claims for promotion be considered. Let this be done within a period of three months

from the date, a copy of this order is made available to the respondents by the petitioner.

Disposed of as such.