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Judgment
Ali Mohammad Magrey, J.—These two writ petitions relating to two different causes, filed by the petitioner, have been clubbed and heard
together. Though SWP No. 2729/2012 is the first in point of time, yet I deem it appropriate to first deal with SWP No. 529/2013, as the reliefs
sought in SWP No. 2729/2012 are umbilically connected to those prayed for in SWP No. 529/2013.
SWP No. 529/2013:
The case of the petitioner shrouded in, somewhat, complex pleadings made in the writ petition, is this: The petitioner is a Member of Central
Armed Police (Gazetted) Service. Being DIG, he was an aspirant for promotion to the rank of Inspector General of Central Reserve Police Force
(IG CRPF). The Departmental Promotion Committee met on 19.03.2012 and empanelled him for such promotion. The Competent Authority
(Appointment Committee of the Cabinet) vide order dated 08.05.2012 approved promotion of the petitioner to the rank of IG, CRPF. Even after
having been approved for promotion to the rank of IG, CRPF, and being medically fit possessing Medical SHAPE-1, the formal promotion order
of the petitioner was withheld on the plea that the petitioner, as per the Annual Medical Examination (AME) report/findings of the CRPF Medical
Board was not in Medical SHAPE-1 and, therefore, medically not fit. The further case of the petitioner is that on learning about the above
finding/report of the CRPF Medical Board, he made a representation dated 03.08.2012 to the Competent Authority in the Ministry of Home
Affairs against the Annual Medical Examination (AME) report/finding dated 26.07.2012. The Competent Authority in the Ministry of Home
Affairs, on examination/scrutiny, found the representation well founded and made an endorsement thereon to the following effect:
(i) There seems to be over writing in the medical report. That may be got enquired into by the CFSL and a senior officer;
(ii) He may be got examined by Doctors from AIIMS/Safdarjung or RML or a panel with one doctor from each Hospital.
In furtherance of the aforesaid direction of respondent No. 2, as recorded and endorsed on the representation, the medical papers of the CRPF
Medical Board supra, pertaining to the Medical Examination of the petitioner were sent to Director, Central Forensic Science Laboratory, New
Delhi, for investigation. Meanwhile, steps were also taken to constitute a Board of Doctors for Medical Examination of the petitioner to assess his
medical fitness as per the Standing Order No. 04/2008 dated 15.12.2008. In this connection, the Director, Personnel, Ministry of Home Affairs,
(Police II Division), Government of India, addressed communication dated 08.08.2012 to the Medical Superintendent, All India Institute of
Medical Sciences, New Delhi, requesting him to constitute a board of doctors to carry out the detailed medical examination of the petitioner. The
Administrative Officer (Hospital), AIIMS, in turn, vide his communication dated 09.08.2012, informed the Director that AIIMS Hospital did not
have any standing medical board for the said purpose. Eventually, it is submitted that, the competent authority in the Dr. Ram Manohar Lohia
Hospital (RML), New Delhi, acceding to the request, constituted a medical board, which medically examined the petitioner and placed him in
SHAPE-1. It is also stated that case of one Shri K.K. Sharma, DIG, BSF, was also referred to the said Board for assessment of his medical
category.
The Director, Personnel in the Ministry of Home Affairs, on receiving the report of the Medical Examination conducted by the specially
constituted medical board by RML, submitted the case of the petitioner and Shri K.K. Sharma, DIG, BSF, to the competent authority for
approval of their promotions to the rank of IG in the respective Para Military Forces, viz. CRPF and BSF. It is stated that approval sought for was
eventually accorded and, inter alia, the petitioner was promoted to the rank of IG, CRPF, which is evidenced by the communication of
Government of India, Ministry of Home Affairs, PERS-III bearing UO No. 11/3307/80/PERS/BSF (PERS)-III dated 10.09.2012. The
petitioner, it is stated, was informed about his promotion to the rank of IG vide signal dated 18.09.2012 and he was posted as IG (Operations)
CRPF, Kashmir.
It is stated by the petitioner that pursuant to the aforesaid posting order, he commenced discharging his duties as IG (Operations) Kashmir with
effect from 28.09.2012. However, immediately, thereafter, vide order dated 12.10.2012, he was transferred and posted as IG, CoBRA, New
Delhi. By yet another order dated 15.10.2012, petitioner was ordered to temporarily perform duties as IG, CRPF (Operations), Kashmir. The
petitioner is stated to have joined as IG, CoBRA on 23.10.2012. Thereafter, vide order dated 20.11.2012, the petitioner was transferred from
CoBRA and posted to ISA Mount Abou. Again, vide order dated 26.12.2012, while retaining the posting of the petitioner to ISA, Mount Abou,
the petitioner was placed at DTE Genl.
Aggrieved by the alleged frequency of transfers and postings within a short span of time, as aforesaid, the petitioner is stated to have filed writ
petition, SWP No. 2471/2012, challenging therein his transfer order dated 20.11.2012 whereby the petitioner was shifted from CoBRA to ISA,
Mount Abou.
It appears that before filing of the aforesaid writ petition, the petitioner had made a representation against his transfer. When the aforesaid writ
petition came up for consideration before the Court, it was disposed of by order dated 26.11.2012 with direction to respondent No. 2 to accord
consideration to the representation already moved by the petitioner. Till then, the order dated 20.11.2012, impugned therein, was ordered to be
put on hold.
It appears that respondent No. 2, vide order dated 04.12.2012, rejected the representation of the petitioner. The petitioner filed yet another
writ petition, SWP No. 2634/2012, challenging order dated 04.12.2012 passed by respondent No. 2 on the aforesaid representation of the
petitioner. The said writ petition, too, was disposed of by the Court vide order dated 18.12.2012 providing therein that respondent No. 2 would
consider impact of the transfer policy more particularly having reference to Clause (VIII) thereof to the transfer and posting of the petitioner.
Consequent upon the direction of the Court dated 18.12.2012 passed in SWP No. 2634/2012, it is stated that respondent No. 2,
contumaciously and in disregard of the orders passed by the Court from time to time, issued orders dated 26.12.2012, 27.12.2012 and
28.12.2012. It is worthwhile to mention here that meanwhile the Ministry of Home Affairs had ordered the medical examination of the petitioner by
a Medical Board to be constituted by AIIMS. By the aforesaid orders, the petitioner had been ordered to present himself before the AIIMS for
medical examination by the Medical Board of the said Institute and, for that purpose, ordered to be temporarily placed with Training Dte CRPF,
New Delhi. The petitioner challenged the aforesaid orders by filing yet another writ petition, SWP No. 2729/2012. By interim order dated
03.01.2013 passed by the Court, the operation of these orders providing for medical examination of the petitioner was stayed till next date before
the Bench.
It appears that the aforesaid writ petition, SWP No. 2729/2012, was listed before the Court on 06.03.2013 on which date none had
represented the petitioner. Awaiting appearance of the petitioner, the writ petition was adjourned and ordered to be listed again after two weeks.
Thereafter, on 15.02.2013, the respondents issued order No. G-II.4/13-PERS-DA-I, divesting the petitioner of his charge of IG (OPS)
Kashmir. Subsequent thereto, respondents issued another order, bearing No. T-IX-2/2013-PERS-DA-I dated 07.03.2013, transferring the
petitioner and posting him at the office of Special DG, J & K Zone, CRPF, Jammu. It is stated that the petitioner made a motion before the Court
in the aforesaid pending writ petition, SWP No. 2729/2012, seeking indulgence of the Court to treat the said orders as non-est in law and to desist
and refrain from giving effect thereto.
Meanwhile, it is stated, while the Court was seized of the matter in SWP No. 2729/2012, respondent No. 2 issued orders dated 03.04.2013
and 04.04.2013, violating the mandate of the constitutional guarantee under Article 311(2) of the Constitution of India and the principles of natural
justice. It may be mentioned here that by order dated 03.04.2013 it has been stated that the promotion order of the petitioner stands withdrawn
with effect from the date of issue of formal orders by CRPF. By order dated 04.04.2013, which is in the form of signal from POLCENT (PERS)
to CESPOL J & K/CENTRAL/NE ZONE/CENTPOL SOUTH COMMAND with information to ALL POLCENTs and ALL DIG
CENTs/PAO, the addressees have been, inter alia, informed that the promotion order of the petitioner issued vide the Directorate's signal dated
11.09.2012 stands withdrawn with effect from the date of issue of the formal order, i.e., 11.09.2012 and, consequently, the officer has been
placed as DIG at DTE GENL with immediate effect till further orders.
The petitioner has challenged the aforesaid orders dated 03.04.2013 and 04.04.2013 on the grounds taken in the writ petition which include
that the same are a product of malicious/mala fide exercise of power and authority as by law vested in respondent No. 2; that the impugned orders
are violative of the mandate of Article 311(2) of the Constitution of India and principles of natural justice; that the impugned orders suffer from lack
of jurisdiction, competence and authority on the part of the respondent Nos. 2 and 3, namely, Secretary to Government, Ministry of Home Affairs,
Government of India also impleaded by name as respondent No. 3.
Reply affidavit on behalf of the respondents has been sworn in by Mr. Sandeep Datta, DIG P C/O GC, CRPF, Srinagar. At page 4 thereof,
under the caption Brief Facts, it is stated that the system in the CRPF as well as in other Central Armed Police Forces (CAPFs), as prescribed
vide Standing Order 04/2008, is that an officer in order to earn his promotion should be in SHAPE-1 medical category, wherein S stands for
Psychological; H stands for Hearing; A for Appendages; P for Physical capacity; and E for Eye sight. It is stated that the principle behind such a
system is that unless the officers of the Forces are physically fit in all respects, they would not be able to discharge their duties effectively. No
exception has ever been made to this rule and, in fact, officers were superannuated without getting promotion due to not being in the prescribed
SHAPE-1 medical category even though they were assessed as fit by the DPC. In order to keep the personnel/officers of the Forces aware,
motivated and physically fit, Annual Medical Examination (AME) is done in respect of all. The report of Annual Medical Examination helps the
personnel to assess their fitness and also to take corrective measures, including precautions and change in life style in case any one is found falling
short in any component of the SHAPE system. In case any of the personnel is categorized below SHAPE-1, i.e., SHAPE-2, SHAPE-3 etc. and
he is not satisfied with the report of the medical board, he can appeal before the prescribed Appellate Authority and the decision of the Appellate
Authority is to be accepted as final. Such an opportunity for appeal is to be given only once for one Annual Medical Examination report.
It is stated that from the year 2011 the petitioner has been consistently graded as SHAPE-2 or SHAPE-3 by 6 different medical boards, 4 of
which successively graded him as SHAPE-2/SHAPE-3, i.e., unfit for promotion. The details of such medical examinations of the petitioner right
from 22.06.2011 to 26.07.2012 and even thereafter, and the reports of the medical boards are stated in a tabulated form in the reply affidavit at
pages 4, 5 and 6 thereof.
It is stated that the petitioner was considered for promotion to the post of IG from DIG during DPC meeting held on 19.03.2012. As per the
Annual Medical Examination held on 04.01.2012, the petitioner was under Low Medical Category (LMC), S1H1A1P3E1 (T-12), which means
unfit for promotion. The DPC placed him on extended panel for promotion subject to his attaining SHAPE-1. Since the petitioner was declared as
unfit for promotion, he made an application dated 14.06.2012, a photocopy whereof is appended as annexure 2 to the reply, requesting therein to
constitute a Review Medical Board by excluding the medical officers who had conducted his Annual Medical Examination on 04.01.2012.
It is stated that as per the rules, an officer is allowed one Review Medical Examination with the permission of DG. Accordingly, a Review
Medical Board was detailed by Director/IG (Med) vide signal dated 12.06.2012, which conducted review medical at CRPF Hospital, DG's Staff
Camp, CRPF, R.K. Puram, New Delhi on 16.06.2012 and submitted its report. According to the said report, the petitioner was again placed in
Low Medical Category SHAPE-2 (T-24 weeks), which means unfit for promotion.
Dissatisfied with the aforesaid review medical board and its report, the petitioner is stated to have again made application dated 20.06.2012 to
get his review medical examination done by a neutral medical board outside CRPF. It is stated that though this was not provided for in the rules,
but, as a special dispensation, the DG, CRPF, vide letter dated 25.05.2012 requested the ADG (Med), CAPF, to constitute another medical
board. Accordingly, a Medical Board comprising Medical Officers outside CRPF was detailed by ADG (Med.) CAPFs vide order dated
28.06.2012. The Board submitted its proceedings on 13.07.2012 according to which the petitioner was placed in SHAP2E (Permanent) medical
category which means permanently unfit for promotion. Thereafter, the petitioner is stated to have made application dated 27.06.2012 requesting
therein that his case may be placed before the apex board consisting of the Home Secretary, MHA as Chairman, DG of the concerned Force,
ADG (Med) and a specialist nominated by DGHS as members. Accordingly, the case was taken up with MHA for detailing a Board as above
vide UO) dated 17.07.2012. The Board which included a Specialist from Safdar Jung hospital convened at MHA on 26.07.2012 and concluded
that the petitioner was unfit for promotion to the rank of IG.
In order to hoodwink and defraud the system, it is stated, the petitioner sought an interview with the Home Secretary. During the said interview
with the Home Secretary, the petitioner is stated to have referred to one or two pages of the report on his Annual Medical Examination conducted
on 22.06.2011 which contained certain cuttings and thereby misled the Home Secretary with a false statement that his promotion had been
withheld on the basis of the said report. It is stated that the petitioner made various false and wrong statements in his representation to the Home.
For instance, in paragraph 4 thereof, it is stated, the petitioner made a wrong statement that he was medically examined and found SHAPE-1, but
his categorization was changed to SHAPE-II by the medical officers of CRPF. In this connection, it is stated that the statement was totally false,
inasmuch as the petitioner was, in fact, upgraded from medical category SHAPE-3 to SHAPE-2 which was concealed by him. While referring to
change of his medical category from SHAPE-1 to SHAPE-II by the medical officers of CRPF, he referred to his Annual Medical Examination
report dated 22.06.2011. The petitioner concealed the fact that he had further undergone another Medical Examination on 04.01.2012 and was
categorized as S1H1A1P3E1 (T-12) in that report also as well as in the subsequent Medical Examinations. It is also stated that the medical report
of 22.06.2011 was not relevant and had No. Page 4 bearing on his promotion which was considered in March, 2012. It is further stated that the
petitioner also concealed the fact that he was examined by two more Medical Boards on 16.06.2012 and 13.07.2012 wherein he was again
categorized as SHAPE-2 (T-24) (unfit for promotion) and SHAPE-2 (Permanent) (Permanently unfit for promotion). In paragraph 5 of the
representation, the petitioner had stated that from 4th to 11th July, 2012 (just after 20 days against all norms and procedures), he was again
subjected to review medical boards. In this connection, it is stated that the petitioner concealed the fact that the medical boards of 16.06.2012 and
13.07.2012 were constituted at his request or that he was categorized SHAPE-2 or SHAPE-3 by consecutive medical boards consisting of
different sets of medical officers from different forces.
In regard to the allegations of over writings/tampering of his medical examination report dated 22.06.2011 made by him in his representation
dated 03.08.2012, it is stated that after examining the issue in consultation with Central Forensic Science Laboratory, the MHA had decided that
the officers responsible may be suspended and proceedings be initiated against them. Subsequently, it was found that the cuttings and overwriting
had been made to upgrade the petitioner from SHAPE-3 to SHAPE-2, not that his medical category was changed from SHAPE-1 to SHAPE-2.
It is, however, stated that the petitioner had concealed the fact that his promotion had not been stopped because of Annual Medical Examination
report of 22.06.2011 which had overwriting, but because of Medical Examination report of 04.01.2012 in which he was found unfit. Against the
medical report of 04.01.2012, the petitioner availed the review medical examination on 16.06.2012 and special review medical examination on
13.07.2012 and in both these medical examinations he was found unfit.
In regard to the medical report of RML Hospital dated 31.08.2012, it is stated that the Home Secretary had directed fresh medical
examination of the petitioner because he had concealed the facts from the Home Secretary. Dr. RML Hospital in its report dated 31.08.2012
recommended the petitioner to be of S1H1A1P1 (0-24) E1 medical category. It is stated that this medical report was directly placed before the
concerned Division in the Ministry of Home Affairs who thought that it tantamount to fitness and, therefore, vide MHA order No. 11/3307/80-
Pers/BSF (Pers-III) dated 10.09.2012, ordered release of the petitioner's promotion. Consequent thereto the CRPF promoted the petitioner to
the rank of IG vide order dated 11.09.2012. However, later on, it came to the notice that comments of ADG (Med), CAPFs and AR were not
taken to assess the final SHAPE categorization of the petitioner on the basis of Dr. RML Hospital report. Therefore, the matter was referred to a
medical board constituted under the Chairmanship of ADG (Med) and comprising of two Inspectors General of Medical for the scrutiny of the
medical examination report of Dr. RML Hospital. The Board concluded that there were contradictions in the test reports on various parameters
and the final grading of S1H1A1P1 (0-24) E1 given to the petitioner by Dr. RML. It is stated that based on the test reports of Dr. RML Hospital,
the Board recommended the medical categorization of the petitioner as SHAP2E (Permanent).
The respondents further state that it was also noted that the petitioner had been declared not to be in SHAPE-1 medical category by previous
successive medical/appellate medical boards due to many factors, including that he being a chronic case of diabetes. Accordingly, the whole issue
was re-examined by a Board of Officers under the Chairmanship of Union Home Secretary which concluded that the petitioner cannot be placed
in SHAPE-1 medical category. As being SHAPE-1 is one of the mandatory conditions for promotion in CRPF and as the petitioner's promotion
order was released on a wrong report, it was decided that the order dated 10.09.2012 releasing the promotion be withdrawn with immediate
effect. Accordingly, the promotion order of the petitioner was withdrawn with effect from the date of issue of formal order by CRPF.
It is further stated that in order to give another opportunity to the petitioner, Home Secretary desired to request AIIMS to constitute a Special
Medical Board comprising specialists of AIIMS. Accordingly, vide MHA DO No. I.45020/2/2012 Pers II (CF-157822) dated 10.12.2012, the
AIIMS was approached in that behalf. The AIIMS vide their letter No. F-25/Medical Board/2012 Estt (H) dated 20.12.2012 constituted
Medical Board for medical examination of the petitioner at AIIMS on 04.01.2013. However, the petitioner challenged the same in SWP No.
2729/2012 and the Hon'ble High Court vide interim order dated 03.01.2013 stayed the orders dated 26.12.2012, 27.12.2012 and 28.12.2012,
i.e., the orders regarding detailing for review medical examination and placing the petitioner at Training Dte, New Delhi for that purpose. However,
the said interim order was not extended when the matter was subsequently listed on 06.03.2013 and 12.03.2013.
I have heard learned counsel for the parities, perused the material on record and considered the matter.
At the outset it may be observed that the petitioner has principally founded his case on the ground that his medical category evaluated in the
Annual Medical Examination of 20.06.2011 had been tampered with by the concerned Doctors. Though in the writ petition he has stated that he
had made the representation dated 03.08.2012 to the competent authority in the Ministry of Home Affairs against the Medical Examination
report/finding dated 26.07.2012, but at the hearing, the learned counsel for the petitioner referred to and relied upon the note of the Ministry of
Home Affairs (Pers. III Desk). It states as under:
PUC: A representation dated 8th August, 2012 addressed to the Home Secretary by Sh. S.S. Sandhu, DIG, CRPF against the Annual Medical
Examination (AE) Report/findings of the CRPF Medic l Board and opinion of the Board of Officers convened by MHA to re-assess the suitability
of officer on 26th July, 2012. Home Secretary has on the body of letter observed as under:
(a) There seems to be over writing in the medical report. That may be got enquired into by the CFSL and a senior officer.
(b) He may be got examined by Doctors from AIIMS/Safdarjung or RML or a panel with one doctor from each Hospital.
It may be recalled that Shri S.S. Sandhu, DIG was empanelled in DPC dated 19.03.2012 for promotion to the rank of IG. As on date of
convening of the DPC, the officer was medically SHAPE-III (T-12) and his promotion was subject to his regaining medical SHAPE-I. However,
the Review Medical Board which conduct ed his medical examination on 13.07.2012 categorized him as SHAPE-2 P-2 (Permanent). His case
was considered by the Review Medical Board headed by Home Secretary but was rejected.
Now, as per the direction of HS, we may send the medical papers of Sh. Sandhu to Director, CFSL, CGO Complex for investigating as to the
over writings in his health card (page 25 of the health card) and medical examination Proforma signed on 22.06.2011. Further more, we may write
to the Medical Superintendent, AIIMS to constitute a Board of Doctors for medical examination of Sh. S.S. Sandhu and his further categorization
as per the Standing Order No. 04/2008 dated 15.12.2008 regarding Health Care System in CPMFs.
Draft letters to Director, CFSL and Medical Superintendent, AIIMS are placed below for approval please.
The aforesaid note makes it clear that the overwriting was made and found in the medical report of the petitioner which pertained to the Annual
Medical Examination conducted on 22.06.2011. The respondents have clearly stated that the said medical report dated 22.06.2011, in fact,
contained deliberate overwriting whereby the medical category of the petitioner had been upgraded from SHAPE-3 to SHAPE-2. The reasons for
doing so are more particularly explained in the note dated 05.12.2012 of the Ministry of Home Affairs, appended by the petitioner as annexure K
to the writ petition, which document, the petitioner states, was obtained by him under Right to Information Act. Reference to the contents of this
document would be made later in this judgment. Presently, even if it be assumed that the medical category of the petitioner recorded therein had
been manipulated, though that obviously is not the case; the question is whether the said report was of any relevance to the DPC and whether on
the basis of the said report the petitioner could have earned the promotion?
It is not in dispute that the DPC was convened on 19.03.2012. Prior to that, the petitioner's Annual Medical Examination was conducted on
04.01.2012, as per the showing of the respondents, at the instance of the petitioner. In the said Medical Examination, the petitioner had been
categorized as S1H1A1P3E1 (T-12), i.e., unfit for promotion. The petitioner has conveniently omitted to mention this material fact in the writ
petition. He has rather concealed and suppressed this vital facts having crucial bearing on the matter from the Court.
It is the admitted case that the instructions and guidelines for medical examination and classification of personnel in Central Para Military
Forces are contained in Standing Order No. 04/2008 issued by the Directorate General CRPF under No. P.VII/1-2008-Pers.I dated
15.12.2008. These instructions and guidelines are enumerated under four broad headings, namely, Part-I, Policy of Medical Examination and
Classification; Part-II, Instructions and Procedure for Medical Classification; Part-III, Disposal of various Medical Board Proceedings; and Part
IV, Broad Technical Guidelines for Medical Officers.
Clause 3 captioned General under Part-1, Policy of Medical Examinations, details out the object of Medical Examinations. It, inter alia, states
that officers and men must be mentally and physically 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 the troops to remain healthy and efficient,
its leaders must be examples to lead the way while working shoulder to shoulder with their personnel. It proceeds to say: therefore, all the
combatised personnel and officers of all cadres and ranks will be subject to medical examination every year. For Gazetted Officers, it provides, the
Annual Medical Examination (AME) will be carried out by a Board of two doctors one of who may be from outside unit of the Force. The Board
will be detailed by IGT (Medical)/DIG (Medical).
Clause 4.1 under the heading Annual Medical Examination provides that a declaration from the individual in Proforma as in Appendix-A is to
be obtained from officers each time before AME. Thereafter, a complete physical & clinical examination will be done and appropriate
investigations as indicated in Proforma (Appendix-C) will be carried out.
Clause 4.2 provides that the details of findings, including the medical advice, if any, will be entered in the individual health card of officers and
men along with Proforma as in Appendix-C.
Clause 4.5, inter alia, provides that the Board papers will be submitted to the approving and perusing authority. In respect of Commandants
and above, the Board detailing authority is prescribed to be IG (Medical) of nearest 100 bedded CH/Director (Medical), and the perusing
authority is prescribed to be Director (Medical).
Clause 4.7, under the heading communicating result of AME provides as under:
The hospital authorities shall not immediately communicate the medical classification grading awarded to the individual to him/her until the
report/board proceeding is approved by the competent medical authority.
The procedure for AME is prescribed in Clause 4.10. It provides as under:
a. The individual officer/personnel undergoing AME will ensure availability of his/her original Health card and previous year's AME in Proforma B
duly certified, while reporting for AME. No fresh/new Health card will be opened unless a COI has been conducted and responsibility fixed for
loss of the previous health card to the satisfaction of the concerned controlling officer.
b. The examining Medical Officer/Board will endorse the medical categorization on completion of AME. The MO/Board will also enter the
findings/remarks in a register to be maintained at the unit/Hospital level for record.
c. Whenever an individual is already in temporary low medical category (LMC) in any factor of SHAPE system at the time of AME and his re-
categorization medial board is due within next 3 months, the AME will be suitably advanced so that both are carried out together. If the gap is 6
months or more, both will be held separately.
d. The medical category in AME will remain valid for one year unless his/her medical category has been changed, for reasons of subsequent
diseases or injury. In that case, the changed grade will prevail till next AME or reclassification if recommended earlier for temporary LMC.
e.
f. The previous year's AME report will be made available to the AMA/Medical Board as the case may be, by the unit. It will insist this from the
previous unit at the time, the member of the Force is received in the unit on transfer/attachment. In case the report is not received, the unit will
demand the same in advance, much before AME.
g.
Clause 4.10 provides for procedure for Annual Medical Examination (AME). Sub-clause (a) thereof stipulates that the individual officer
undergoing AME will ensure availability of his/her original Health card and previous year's AME in Proforma B duly certified, while reporting for
AME. It further stipulates that no fresh/New Health card will be opened unless a COI has been conducted and responsibility fixed for loss of the
previous health card to the satisfaction of the concerned controlling officer. Sub-clause (c) provides that whenever an individual is already in
temporary low medical category (LMC) in any factor of SHAPE system at the time of AME and his re-categorization medical board is due within
next 3 months, the AME will be suitably advanced so that both are carried out together. If the gap is 6 months or more, both will be held
separately. Sub-clause (d) thereunder provides that medical category in AME will remain valid for one year unless his/her medical category has
been changed for reasons of subsequent diseases or injury. In that case the change grade will prevail till next AME or reclassification, if
recommended earlier for temporary LMC.
Clause 4.11 provides that the concerned Unit/Office in which an individual is posted when due for AME will initiate it in a planned manner,
taking up with the Medical authority of the concerned hospital as indicated in Para 4.15 during January every year. It is further provided therein
that all are required to be examined system wise with greater clinical details, including ECG, Chest X Ray, GTT, Lipid profile, RFT etc.
Clause 4.13 contains the mandatory provisions for the purpose of promotion. It provides:
Medical Category SHAPE-1 will be an essential condition for promotion of all combatised personnel in all groups/ranks/cadres in the CPMFs. In
case of those whose illness is of permanent nature and who are not SHAPE-1, they will be considered for promotion by DPOC but will be
declared unfit for promotion, even if they are otherwise fit for promotion. In case of those personnel, whose illness is of temporary nature, after
considering their cases for promotion along with others, if they are otherwise fit, the DPC will grade them as fit for promotion subject to attaining
SHAPE-1 medical category. As and when they regain the SHAPE-1 medical category, they will be promoted as per recommendations of DPC.
But they will not be entitled to back wages. However, they will retain their seniority.
Clause 4.15 provides that officers, put in lower medical classification by the medical board/review medical board of S1H1A2P1E1 and
S1H1A1P2E1, who are otherwise fit for promotion, their suitability for promotion will be reassessed by a board consisting of the Home Secretary
as the Chairman, DG of the concerned Force, ADG (Med), MHA and a Specialist nominated by DGHS as members. The Board will assess the
suitability of the officer, who is otherwise fit for promotion, but is in the above mentioned medical categories, in consideration of the following
parameters:
a. The officer is capable of performing the normal duties of the rank to which he is being promoted.
b. Any defect, disability or discomfort which the officer is suffering from is not likely to be aggravated by the service conditions.
c. The officers, assessed fit for promotion by the Board will be promoted to the next higher rank as per the recommendations of the DPC.
d. The Board's assessment will be final.
As seen above, Clause 4.13 contains the mandatory provision for the purpose of promotion. It provides that medical category SHAPE-1 will
be an essential condition for promotion of all combatised personnel in all groups/ranks/cadres of the Central Para Military Forces. It also provides
that in case of those whose illness is of permanent nature and who are not SHAPE-1, they will be considered for promotion by DPC but will be
declared unfit for promotion, even if they are otherwise fit for promotion.
In the instant case, before convening of the DPC on 19.03.2012, the petitioner's Medical Examination was conducted on 04.01.2012. In the
said Medical Examination, the petitioner had been categorized as S1H1A1P3E1 (T-12), i.e., unfit for promotion. Therefore, whatever his medical
category in the AME report conducted prior to that dated viz., report dated 22.06.2011, would not earn him eligibility for promotion. Therefore,
the contention of the petitioner that his medical category as recorded in his report dated 22.06.2011 was altered is inconsequential. Apart from
that fact, as would be shown later in this judgment, the petitioner had also exhausted his remedy of appeal against the said medical report pursuant
to which his medical examination was conducted on 04.01.2012. Therefore, it would not behave him to rake an issue regarding the medical report
of 22.06.2011 in his representation made in August 2012, suppressing therein the medical categories he had obtained in the interregnum
subsequent to 22.06.2011 till the date of his representation.
The DPC, on the basis of petitioner's medical category S1H1A1P3E1 (T-12), determined in Annual Medical Examination held on
04.01.2012, admittedly, put him on extended panel. It is not in dispute that the petitioner suffers from diabetes mellitus and hypertension. Part IV
of the Standing Order No. 04/2008 prescribes the detailed guidelines on technical standards to Medical Officers for classification of serving
combatised personnel in the CPFs. Sub-clause (b) of Clause 22.5 provides the guidelines for grading the personnel who are known diabetes or
have impaired Glucose Tolerance or those who have declared themselves to be so and are under treatment. It, inter alia, provides that the newly
detected cases should initially be kept under category P3 (T-12). After 12 weeks, if the individual fully complies and improves with treatment
achieving parameters, as given therein, he/she be categorized as P2 (T-24). If he does not improve, he/she will continue in P3. As indicated above,
in the Medical Examination of the petitioner conducted on 04.01.2012, he had been categorized as P3. The circumstances under which he was
placed in the said medical category, namely, P3, are more precisely mentioned in the note of the Home Secretary dated 05.12.2012, annexed with
the writ petition as annexure K, and vehemently relied upon by the learned counsel for the petitioner to submit that the impugned orders were
actuated by mala fides and malicious design. The note clinches the whole issue and, therefore, it is extracted below:
Dr. Sanju Singh met me and gave me a representation which is placed opposite. He pointed out that the medical examination was conducted by
him and Dr. S.N. Kumar on 22.06.2011. They categorized Shri S.S. Sandhu as P-2. This report was seen and countersigned by the Director
(Medical), CRPF, Dr. A.K. Dhawan on 01.07.2011. On being asked about the changing of the original grading of P-3 to P-2 by cutting and
overwriting, Dr. Sanju Singh stated that in the first instance he had graded Shri S.S. Sandhu P-3 because in his declaration before the Board he
had claimed that he did not have Hypertension or Diabetes Mellitus, etc., and when it was found that he had Hypertension, Sinus Tachycardia and
Diabetes Mellitus, according to the norms he was graded as P-3. Thereafter Shri S.S. Sandhu stated that he had inadvertently made a wrong
declaration and he had hypertension and diabetes mellitus from before. Thereafter the grading was changed from P-3 to P-2. He pointed out that
he had signed after the correction was made and that it was a deliberate correction not a question of tampering. He also pointed out that this was
also the result which was filled up in the prescribed format and countersigned by the Director (Medical) and that this was a clear cut case of
correction which was signed by the Doctors after making the correction and countersigned.
Regarding the correction at page 25 of the Health Card he stated that when Shri Sandhu came for the medical check-up in March 2011 he had
already filled up the format as Shape-1 and asked him to sign. Since he had Hypertension and Diabetes Mellitus and could not be Shape-I
therefore, it was corrected from P-1 to P-II and thereafter signed. It was a deliberate correction made by them and there was no question of
tampering. Dr. Sanju Singh stated that he stands by the report given by him and Dr. S.N. Kumar.
(Underlining supplied)
The circumstances under which the medical category report dated 22.06.2011 had been corrected and overwritten is thus explained in the
aforesaid document. Since the matter relating to the aforesaid corrections and overwriting is also stated to be pending in criminal proceedings
before the Metropolitan Magistrate-06, Saket Court, New Delhi on a complaint filed by the petitioner, and the High Court of Delhi is also stated
to be seized of the matter, it would not be proper for this Court to make any comment about the conduct of the petitioner that is manifested from a
bare perusal of the aforesaid document.
However, on a further reading of the aforesaid document annexure K, it is revealed that the petitioner, not satisfied with the examination
conducted on 22.06.2011, preferred an appeal before DG, CRPF and a fresh Board was constituted and he was examined on 04.01.2012 by the
fresh Board of three other Doctors. This Board, as indicated above, placed him in medical category P-3. The petitioner again made a
representation asking for a fresh Medical Board. His request was acceded to and the fresh Board examined him on 16.06.2012 and placed him in
SHAPE-2. The petitioner submitted yet another representation for re-examination. The re-examination was conducted on 13.07.2012 by a team
of independent neutral Doctors and countersigned by ADG (Medical). This Board placed the petitioner in P-2 medical category.
The aforesaid note further reveals that in a meeting held by the Home Secretary, Dr. H.S. Isser, Senior Cardiologist, Safdarjung Hospital,
opened that the petitioner was a long standing hypertensive and diabetic on medical treatment. His fundus examination showed non-proliferative
Diabetic Retinopathy. His ECG showed sinus tachycardia and echocardiography shed mild concentric LVH with Grade I Diastolic dysfunction and
he also had target organ involvement which was also likely to be progressive.
It is true that in-between, on a representation made by the petitioner to the Home Secretary, it was decided to have the medical examination of
the petitioner done at RML Hospital. The said Hospital categorized the petitioner in medical category SHAP1(O-24)E1. This report is stated to
have directly been submitted to the concerned Police Division in the Home Department who took it as SHAPE-1 and ordered release of
promotion of the petitioner. In terms of the provisions of Standing Order No. 04/2008, as quoted hereinabove, the Board papers were required to
be submitted to the approving and perusing authority. Clause 4.7 further provides that the hospital authorities shall not immediately communicate
the medical classification grading awarded to the individual to him/her until the report/board proceeding is approved by the competent medical
authority. It is submitted by the respondents that the Doctors of civil hospital are not familiar with the health norms and SHAPE norms of the
CAPFs. The test reports of Dr. RML Hospital had to be scrutinized by a competent authority/Board before deciding on SHAPE categorization of
the petitioner. The submission is fortified by the relevant provision of the Standing Order No. 04/2008, which is extracted hereunder:
In case of newly detected cases of Impaired Glucose Tolerance, the individual should be placed in category P2(T-12) if his parameters are of P2.
If there is no CV risk factor or any target organ involvement, the individual is placed in P-1. If the Parameters fall in the category of P1, then he be
labeled as P1(O-24) and then deal with as given above for further categorization.
It needs a mention here that the petitioner was not a newly detected case of impaired glucose tolerance. Notwithstanding that, P1 category, as
defined under sub-clause (c) of Clause 22.5 under the caption Diabetes Mellitus of the Standing Order means personnel having diabetes or
impaired Glucose Tolerance under treatment with Diet Control and or oral hypoglycemics within parameters mentioned thereunder. It provides that
the given parameters must be maintained for a minimum period of six months with Fasting and 2 hour Post Prandial sugar every six weeks and
Glycosylated HbAlc every 3 months before the individual is upgraded to P1. During this period of 24 weeks observation, the individual shall be
kept labeled as P1(O-24) and finally upgraded as P-1, as the case may be, if he maintains the control consistently. The note prepared and
submitted by the Director (Pers) to the Joint Secretary (II) of MHA placed at page 37 of the writ petition reads as under:
Sh S.S. Sandhu, DIG, CRPF Medical Category was reported by the CAPF S1H1A1P2(P)E1, a case of Diabetes (Mellitus Type II with
hypertension):
His detailed medical examination report submitted by Dr. R.M.L. Hospital is at F/D. The Medical Board has placed in him S1H1A1P1(O-24)E1
medical category.
In accordance with para 23.5(c) of the existing Health Care Scheme (page 18/scheme placed below), the term P-1(O-24) refers to Diabetes
Mellitus, where certain parameters mentioned in Para 23.5(c) have to be maintained for a minimum period of six months with fasting and 2 hr Post-
Prandial sugar every six weeks and Glycosylated HbA1c every 3 months before the individual is upgraded to P1.
Having noted the above, the Director has recoded since the medical category of the officer has been upgraded to S1H1A1P1(O-24)E1, the
officer is eligible for promotion, consequent upon which the Under Secretary to the Government of India, MHA, issued UO No. 11/3307/80-
Pers/BSF-(Pers-III) dated 10.09.2012 to the following effect:
On the basis of medical examination of Sh. K.K. Sharma at AIIMS, new Delhi and that of Sh. S.S. Sandhu at RML Hospital, the medical
categorization of these two above said officers are recommended and accepted as SHAPE-1. BSF and CRPF are therefore, requested to issue
promotion order of Sh. K.K. Sharma and Sh. S.S. Sandhu respectively with immediate effect to the rank of IG.
It needs to be mentioned here that it is nobody's case that having been labeled as P1(O-24) by the RML Hospital, the petitioner had undergone
the processes and procedures as envisaged by the provision of Clause 22.5 (c) mentioned hereinabove and, thereafter, had been upgraded to P1,
or that S1H1A1P1(O-24)E1 means SHAPE-1.
Learned counsel for the petitioner argued that there is no provision contained in, or procedure prescribed by, the Standing Order authorizing or
empowering respondent No. 6 to sit in judgment on Medical Examination Report of the Competent Board of Doctors specially constituted under
the orders of the Competent Authority.
It is not the case of the petitioner that ADG (Medical), CAPFS & AR is an authority subordinate to the IG (Medical). Merely because the
RML Hospital report was examined by a Board headed by an authority of the rank of ADG (Medical) would not have any impact on the
determination of the medical category of the petitioner. Further, having regard to the provisions of the Standing Order, strictly speaking, it is not a
case of sitting in judgment on the Medical Examination Report of the RML Hospital. It rather is a case of ascertaining/determining the medical
category of the petitioner on the basis of the findings of the tests etc., conducted by the RML Hospital in accordance with the guidelines formulated
by the Ministry of Home Affairs and the parameters contained therein. Further, the Home Secretary in his Office Note dated 05.12.2012 has
himself stated that the petitioner in his representation had concealed the fact from him that five successive Medical Board manned by different
Doctors, including Doctors from outside the CRPF had found him unfit. It would be advantageous to quote hereunder the relevant findings of the
Home Secretary as mentioned in the aforesaid note:
(1) The cuttings and correction were deliberate and countersigned and the doctors concerned stands by what they have signed. So, it is not a
question of tampering.
(2) The report given on 22.06.2011 was confirmed by four succeeding Medical Board. In fact two of these medical Boards placed him in lower
categories [P-3 and P-2 Permanent].
(3) When Shri Sandhu gave me the representation at page 105-106/C (link file), he concealed the fact that five successive Medical Boards
manned by different Doctors including Doctors from outside the CRPF have found him Unfit and that the grading of 25.03.2011 or 22.06.2011
were confirmed by four subsequent Boards of that the cutting and correction were deliberate and signed. Shri Sandhu also did not reveal the fact
that he maintains multiple Health Cards.
(4) The report of RML Hospital appears to be strange and surprising; considering the fact that the five Medical Boards have found Shri Sandhu
Unfit. The report of RML was put up straight without showing it to ADG (Medical) and taking his opinion.
(5) Whether a person is having Diabetes Mellitus; Hypertension and Sinus Tachycardia and Echocardiography showing mild concentric LVH with
Grade I Diastolic dysfunction or target organ involvement, etc., are questions of fact. That the Board of RML found differently on all these
questions from five previous Boards is something which needs investigation.
After recording the aforesaid, the Home Secretary in paragraph 10 of the aforesaid Note has ordered as under:
Whether Shri Sandhu has the disabilities mentioned by the previous Boards which categorized him as Shape-2 (Permanent) or as Shape-3; or
whether the Board of RML which differed from five previous Boards is correct be got examined in the All India Institute of Medical Sciences in
the presence of ADG (Medical) and two other doctors not from the CRPF.
It may be recalled here that the order passed by the respondents pursuant to the aforesaid direction of the Home Secretary, requiring the petitioner
to present himself for the aforesaid Medical Examination at AIIMS has been challenged by him in SWP No. 2729/2012 and the Court by interim
order dated 03.01.2013 stayed the operation thereof. The net result is that the petitioner has not presented himself before the concerned Board of
AIIMS for the requisite Medical Examination.
In the peculiar facts of this case, it cannot be said that the respondents had committed any illegality in subjecting the medical report of the RML
Hospital to the parameters provided in the Standing Order No. 04/2008 which govern the Medical Examination of the Force personnel and
determination of their medical category.
Learned counsel for the petitioner next submitted that the petitioner having been promoted to the rank of IG, he could not be reverted or
demoted without recourse to the procedure mandated by the provision of Article 311(2) of the Constitution of India and unless the petitioner was
given an opportunity of being heard. He submitted that the impugned orders are in the nature of penalty actuated by mala fides and malice
entertained by the respondents in general and respondent No. 6 in particular. Learned counsel for the petitioner in this behalf cited and relied upon
a decision of the Supreme Court in P.C. Wadhwa Vs. Union of India (UOI) and Another,
Mr. Makroo, learned ASG, on the other hand submitted that it is not a case of infliction of punishment on the petitioner, but is a mere case of
correcting an illegality and a wrong that had crept by an order passed contrary to the rules governing the field and on a mistaken belief. He
submitted that the respondents were within their powers to rectify the wrong and in doing so, the principles of natural justice are not attracted. He
submitted that this Court would not pass an order which would have the effect of restoring an order which is totally contrary to law. Learned
counsel in this connection placed reliance on a judgment of this Court in Rajeev Sharma Vs. State and Others,
In P.C. Wadhwa v. Union of India (supra), cited and relied upon by Mr. R.A. Jan, the learned counsel, the petitioner therein, a member of the
Indian Police Service and holding the substantive rank of Assistant Superintendent of Police, was promoted to officiate as Superintendent of
Police. After he had earned one increment in that post, he was served with a charge sheet and before the enquiry, which had been ordered, had
started, he was reverted to his substantive rank of Assistant Superintendent of Police. The ground suggested for reversion was unsatisfactory
conduct. No details of the unsatisfactory conduct were specified and the appellant was not asked for any explanation. In those facts, the Supreme
Court held that the order of reversion made against the appellant was in effect a reduction in rank within the meaning of Art. 311(2) of the
Constitution inasmuch as he was given no opportunity of showing cause against the said order of reversion.
The present case is totally distinguishable on facts. In the present case, the petitioner has remained associated with determination of his medical
category by successive Medical Boards convened at his requests, details whereof have been given above. It would suffice to say here that he was
medically examined on 22.06.2011, 04.01.2012, 16.06.2012, 13.07.2012 and 26.07.2012 by different Medical Boards constituted by the
respondents. It hardly needs a reiteration that medical board conducted on 04.01.10123 was constituted pursuant to his appeal against the medical
category dated 22.06.2011. The other medical boards were constituted pursuant to his representations dated 16.06.2012, 20.06.2012,
27.06.2012 and 03.08.2012, and he failed to obtain SHAPE-1.
The RML Hospital conducted the medical examination of the petitioner on 27.08.2012 and 31.08.2012. They labeled him as S1H1A1P1(O-
24)E1, i.e., P1(O-24). In terms of the relevant provision of the Standing Order No. 04/2008, as mentioned earlier, a person labeled as P1(O-24)
has to maintain the prescribed parameters for a minimum period of 6 months with fasting and 2 hour Post Prandial sugar every 6 weeks and
Glycosylated HbAlc every 3 months before the individual is upgraded to P1. Admittedly, that was not done in case of the petitioner and, instead
the aforesaid report of RML Hospital was directly submitted to the concerned Police Division of the Ministry of Home Affairs without the
knowledge, perusal and/or approval of Medical authorities of the Force. The concerned Police Division of MHA, under a mistaken belief that
S1H1A1P1(O-24)E1 meant medical category SHAPE-1, ordered release of the promotion of the petitioner.
In the above factual position, in reality the petitioner has been given repeated and adequate opportunity to demonstrate his medical condition. It
is not a case where the medical categorization of the petitioner has been done behind his back. It is also not the case of the petitioner that
S1H1A1P1(O-24)E1, as recorded by the RML Hospital, meant SHAPE-1 in terms of the provisions of the Standing Order No. 04/2008.
Besides, rectification of the wrong that had crept in has been done within the shortest possible time. Therefore, the judgment cited and relied upon
by the learned counsel for the petitioner is distinguishable on facts and not attracted in the instant case. In that case the concerned authorities had
initiated a departmental enquiry, framed charge sheet against the petitioner, and reverted him during the pendency of the enquiry on a ground which
necessarily warranted an enquiry. In the instant case, even if some sort of explanation would be called from him, he would not improve his medical
category merely by spoken or written words. It is a condition to be determined on medical examination and petitioner has had enough
opportunities to prove and demonstrate his medical category wherein in he all through failed.
In Rajeev Sharma v. State and others (supra), cited and relied upon by the learned ASG, the facts were thus: Trained Graduate/Post Graduate
teachers who had been appointed on or before 09.05.1989 were to be promoted to the post of Master. The petitioner in that case was initially
appointed as Laboratory Assistant prior to 09.05.1989 and as teacher on 10.09.1992. However, information with regard to his appointment as
teacher was wrongly communicated to the competent authority upon which he was promoted as Master. The petitioner had also joined against the
promotional post of Master. Subsequently, the concerned subordinate officer brought this fact to the notice of the competent authority, indicating
that the petitioner was actually appointed as teacher on 10.09.1992. After receiving the said information, the Director, School Education cancelled
his promotion as Master with immediate effect. The petitioner challenged the order in writ petition. In paragraph 6 of the judgment, the learned
Writ Court observed as under:
In view of this factual position, it cannot be disputed by the learned counsel for the petitioner that the petitioner was not eligible for promotion. So
the question would arise whether before canceling the promotion of the petitioner granted on a mistaken belief observance of principles of natural
justice was necessary?
Relying on the decisions of the Supreme Court in State of M.P. and Others Vs. Shyama Pardhi etc. etc., , and M.C. Mehta Vs. Union of India
(UOI) and Others, the learned Writ Court observed and held as under:
In view of the above, it is manifest that it is not always necessary for the Court to strike down an order merely because it has been passed in
violation of principles of natural justice. The Court can refuse to exercise its discretionary jurisdiction under Article 226 if such striking down results
in the restoration of another order passed in favour of affected party which is not in accordance with law.
In the instant case granting of promotion to the petitioner was on accounts of wrong assumption of the fact that he had been appointed as a
teacher before the stipulated date which actually was admittedly incorrect. Being the appointee of the later date than the stipulated date he was not
entitled to be promoted. Therefore, the order impugned passed for cancellation of promotion though in violation of principles of natural justice if is
quashed it would restore the illegal order of promotion. In such a situation this Court is empowered to decline interference and accordingly is to be
declined. In the present situation when promotion order is per se in violation of the eligibility of the petitioner in the event of its cancellation, the
question of violation of principles of natural justice would not arise.
Not only the ratio, but also the facts of the above case squarely cover the peculiar facts and circumstances of the present case. In this connection, I
deem it appropriate to quote hereunder the body of impugned order dated 03.04.2013. It reads thus:
In continuation to this Ministry's UO No. 11/3307/80 -Pers/BSF (Pers-III) dated 10.09.2012 and Meeting Notice of even number dated
12.03.2013.
On the representation dated 03.08.2012 of Shri S.S. Sandhu, this Ministry requested Dr. RML Hospital to conduct a medical examination of
Shri Sandhu, DIG CRPF to assess his medical SHAPE categorization. Dr. RML Hospital in its report dated 31.08.2012 recommended Shri S.S.
Sandhu to be in S1H1A1P1(O-24)E1 category. This medical examination report was considered in MHA and purely on the basis of his
S1H1A1P1(O-24)E1 categorization made in the report by RML doctors, his promotion order was released with the approval of the Home
Secretary vide MHA's order No. 11/3307/80 Pers/BSF (Pers-III) dated 10.09.2012 and, accordingly, CRPF promoted him to the IG rank vide
order dated 11.09.2012.
However, later on, it came to the notice that comments of ADG (Medical), CAPFs & AR were not take to assess final SHAPE categorization
of Shri S.S. Sandhu on the basis of Dr. RML Hospital's report. Therefore, the matter was referred to a medical board constituted under the
chairmanship of ADG (Medical) for the scrutiny of the medical examination report of Dr. RML Hospital. The board concluded that there are
contradictions in the tests reports on various parameters and the final grading of S1H1A1P1(O-24)E1 given to Shri S.S. Sandhu by Dr. RML
Hospital. Based on the test reports of Dr. RML Hospital, the board has recommended the medical categorization of Shri S.S. Sandhu as
SHAP2E(Permanent). Further, it was also noted that Shri S.S. Sandhu had been declared not to be in SHAPE-1 category by previous successive
medical/appellate medical boards due to many factors including he being a chronic case of Diabetes.
Accordingly, the whole issue has been reexamined by the Board of Officers under the Chairmanship of Union Home Secretary which has
concluded that Shri S.S. Sandhu cannot be placed in SHAPE-1 category. A copy of the minutes of this meeting is enclosed.
As being SHAPE-1 is one of the mandatory conditions for promotion in CRPF, and as Shri Sandhu's promotion order was released on a wrong
report, it has been decided that the order dated 10.09,2012 releasing the promotion be withdrawn with immediate effect. Accordingly, the
promotion orders of Shri S.S. Sandhu stands withdrawn with effect from the date of issue of formal order by CRPF consequently.
This issues with the approval of Home Secretary.
It is thus seen that the promotion order of the petitioner was revoked in consequence of determination of his medical category as
SHAP2E(Permanent). The petitioner has not challenged the determination of his aforesaid medical category. Since possession of SHAPE-1
medical category is a mandatory requirement for promotion in the CRPF and the petitioner did not possess the same, his promotion order has
rightly been revoked as being wrong. The question that falls for consideration, therefore, is, whether this Court in exercise of its discretion would
quash the impugned orders? The natural consequence of such a course would be restoring an illegal order, make the petitioner, an officer of the
CRPF with medical category SHAP2E(Permanent) as eligible and entitled to promotion. This would be totally against the rules governing the field
and would rather unsettle the relevant rules not only in the CRPF, but all the Central Para Military Forces, who are governed by the same set of
Rules.
Though the learned counsel for the petitioner has sought to rake the issue of malice and mala fides, but, given the demeanor of the petitioner
that he has not only mislead the Home Secretary, but has suppressed and concealed material facts from this Court, the plea of mala fides and
malice has to be taken with a pinch of salt. In any case, no such particulars have been supplied in the writ petition to establish mala fides.
For all what has been discussed above, I do not find any merit in this petition as would warrant the exercise of discretion by this Court. This
petition alongwith the connected CMPs is, accordingly, dismissed. Interim directions, if any, subsisting shall stand vacated.
SWP No. 2729/2012 & IA No. 507/2013
In this writ petition, the petitioner has challenged orders dated 26.12.2012, 27.12.2012 and 28.12.2012. It may be reiterated here that the
Home Secretary in terms of his note dated 05.12.2013 had observed and ordered as under:
Whether Shri Sandhu has the disabilities mentioned by the previous Boards which categorized him as Shape-2 (Permanent) or as Shape-3; or
whether the Board of RML which differed from five previous Boards is correct be got examined in the All India Institute of Medical Sciences in
the presence of ADG (Medical) and two other doctors not from the CRPF.
Pursuant to the aforesaid direction issued by the Ministry of Home Affairs, which was more aimed at affording the petitioner an opportunity to
vindicate his stand and position, by the aforesaid impugned orders, the petitioner was asked to ensure presence before the AIIMS Medical Board
constituted at the behest of the Ministry of Home Affairs for his medical examination scheduled on 04.01.2013 and in that connection his
temporary placement with Training Dte CRPF, New Delhi, till further orders under extra ordinary circumstances was ordered. If the petitioner was
sure that he possessed the required medical category, he ought to have readily accepted the offer. But that was not to be; he challenged the said
orders and succeeded in obtaining stay of these orders. Despite possessing a low medical category, pursuant to the interim Court orders, he
continued to hold the rank of IGP. Since his claims of posting, whatever be the merit thereof, were founded on his holding the rank of IGP and
now that his writ petition, SWP No. 529/2013, stands dismissed, nothing survives in this petition to be decided.
It is, however, made clear that the petitioner is left free to abide by the directive to undergo the medical examination to be conducted by the
Medical Board of AIIMS strictly in terms of orders in question and referred to hereinabove. In the event his medical category in accordance with
the instructions and guidelines contained in Standing Order No. 04/2008, in such medical examination is determined as SHAPE-1, the petitioner
shall be promoted as IG retrospectively from the date such promotion was earlier released in his favour with all consequential benefits. In order to
obviate any further complicacies in the matter, the concerned Medical Authorities of CRPF/CAPFs such as Director (Medical)/IG (Medical)/ADG
(Medical) as may be ordered by the Ministry of Home Affairs, would associate with the AIIMS Medical Board proceedings and submit the report
to the Competent Authority in the MHA.
The process to convene such Medical Board shall be initiated only if the petitioner expresses his willingness to submit himself to such a medical
examination within 15 days from the date of this order. It is made clear that if the petitioner desires to submit himself to such a medical examination,
he shall unilaterally make a written request therefor addressed through proper channel to the Secretary to Government, Home Department,
Government of India, within the time stipulated above. Endeavour shall be made that the process of medical examination by the AIIMS Medical
Board in association with the aforesaid Medical Authorities of the CRPF/CAPFs is completed within the shortest possible time, preferably within
one month from the date the petitioner makes the request in writing and depending upon the determination of medical category of the petitioner by
such Board, the respondents shall proceed ahead in the matter of his posting.
This writ petition alongwith the connected CMPs is, accordingly, disposed of. Registry to place copy of the judgment on the records of SWP
No. 2729/2012.
Registry to provide copy of this judgment to Mr. S.A. Makroo, ASGI, for compliance. No order as to costs.