Vijay Singh vs Union Of India

1 Aggrieved by the action of the third respondent in rejecting the case of the petitioner for promotion as Deputy Commandant, vide order dated 25.09.2017 on the ground that the petitioner has been permanently incapacitated though he is on active duty, the petitioner filed the present writ petition under Article 226 of the Constitution of India.

2 Sri M.Srikanth, the learned counsel for the petitioner, submits that the petitioner was initially appointed as Sub-Inspector in the Central Reserve Police Force in June, 1990 and thereafter he was promoted as Inspector in the year 1997 and was subsequently promoted to the post of Assistant Commandant on 9.09.2004. While so, the petitioner was directed to shift two companies of the personnel to the State of Chattisgarh on 20.02.2009. While the convoy was on the way, it met with an accident due to which he lost his left leg. A court enquiry was conducted and as per the Standing Orders, he was put in ‘E’ category. Now though he has been put in-charge of the higher post of Deputy Commandant, no regular promotion is given to him though there are several posts in which a person with incapacitation can be accommodated in CRPF. The petitioner made a representation to the third respondent but the same was rejected on 25.09.2017, which is impugned in the present writ petition.

3 It is the predominant contention of the learned counsel for the petitioner that similarly situated persons have been given promotions but the case of the petitioner was rejected, instead he has been put in charge of the same. The petitioner lost his leg in due discharge of the official duty only and as per the SHAPE Category Rules, petitioner is eligible for promotion. As per Standing Order No.04/2008 dated 15.12.2008 relating to the instructions for Medical Examination and Classification of Personnel in Central Para Military Forces, there is relaxation of medical fitness for the category of personnel who are injured in discharge of their official duties. In spite of the same, the case of the petitioner was not considered stating that though the petitioner sustained injury while on duty, but his case is not covered under the relaxation in SHAPE-I as provided in Para No.4.17 of Standing Order No.04/2008. Hence the petitioner is constrained to file the present writ petition.

4 On the other hand, the learned counsel for the respondents, inter alia, admitting the employment of the petitioner as well as the accident in which the left leg of the petitioner was amputated, submitted that due to the accident the petitioner was continuously in low medical category. He further submitted that as per Sl.No.08 of Schedule to Recruitment Rules-2010, pre-promotion course is mandatory requirement for promotion from Assistant Commandant to the rank of Deputy Commandant, but the petitioner has not undergone such course. He further submitted that since the petitioner was found in permanent Low Medical Category and has not completed mandatory pre-promotion course and the case of the petitioner is not covered under any of the categories of Para No.4.17 of Standing Order No.04/2008, the petitioner was not empanelled for promotion to the rank of Deputy Commandant.

5 There is no dispute with regard to the employment and the accident that took place on 20.02.2009 wherein the petitioner lost his left leg. The grievance of the petitioner is that though similarly situated persons have been promoted, his case has not been considered on the ground that he has been put in Low Medical Category. It is also an admitted fact that notwithstanding the disability of the petitioner, he is still performing active duty and he is placed in-charge of the post of Deputy Commandant.

6 The learned standing counsel for the respondent authorities submits that SHAPE-I Category was mandatory for consideration for promotion in the rank of Deputy Commandant. But he did not deny the fact that S.O.No.04/2008 provides for relaxation of the category.

7 As per Para No.4.13 of the Standing Orders of the CRPF, Medical Category SHAPE-I is an essential condition for promotion. In case of those, whose illness is of permanent in nature and who are not SHAPE-I, they will be considered for promotion by the DPC, but will be declared unfit for promotion, even if they are otherwise fit for promotion. As per Para No.4.17 relaxation in SHAPE-I Medical Category will be admissible in the following two categories.

"4.17. Relaxation in SHAPE-1 Medical Category

The relaxation in SHAPE-I Medical Category will be admissible to the following two categories of CPMFs personnel to the extent detailed below:-

a) Official/Personnel wounded/injured during war or while fighting against the enemy/militant/intruders/armed hostiles/insurgents due to an act of these in India or abroad will be eligible for promotion while placed in one of the following medical classification:-

i) Individual low Medical Factors

(aa) H2 or E2 opr P2 (Dental) which will be considered at par with SHAPE-1; and;

(ab) A2 or P2 or A3

ii) Combined Low Medical Factors (aa) H2 and E2 combined and

(ab) H2 or E2 combined with A2, A3 or P2

b) Officers/men who are wounded/injured during field firings/accidental firings/explosion of mines or other explosive devices and due to accidents while on active Government duty in India or abroad will be eligible for promotion in the following SHAPE Categories:-

i) S1H1A2P1E1 (ii) S1H1A1P2E1 (iii) S1H2A1P1E1 (iv) S1H1A1P1E2

(v) S1H2A1P1E2.

8 Therefore, it is seen that in terms of para 4.17 (B) (v), a permanent E2 medical category, which is the categorization as far as the Petitioner is concerned, is recognized as one of those medical categories which would be viewed as a relaxation in the SHAPE-I medical category. The Further question that arises is whether the Petitioner fulfills the requirement to be considered eligible for such relaxation. In other words is the accident suffered by the Petitioner, as a result of which his medical category is E2, occurred "while on active government duty in India" Needless to point out that the petitioner sustained the injury while he was shifting two companies of the personnel to the State of Chattisgarh on 20.02.2009, which is obviously while on active duty.

9 A noticeable situation in the present case is that though the petitioner is denied the promotion to the post of Deputy Commandant, still he is placed in-charge of the post of Deputy Commandant and discharging the duties as such. It is also not the case of the respondent authorities that because of the disability sustained by the petitioner he cannot perform or discharge the duties of the post of Deputy Commandant. In such situation, this Court is unable to understand as to why the petitioner is denied the promotion to the post of Deputy Commandant.

10 In identical circumstances a Division Bench of the High Court of Delhi, by order dated 13.12.2008 made in W.P.(C) No.11263 of 2015, (Venkatesh Vs. Union of India) took note of the facts and circumstances of the case of the petitioner therein and observed as under:

The Court clarifies that it is not expressing any opinion on what category the Petitioner should be placed under. The Court is proceeding on the basis that at present the Petitioner has been placed in the E2 permanent category. If in future point in time that medical category gets revised, then obviously it will be open to the Respondents to proceed on the basis of such revised medical category. However, as of now the Petitioner continues to be in the E2 permanent category and in the considered view of the Court, he is entitled to the relaxation which is provided under para 4.17 (B) (v) of SO No. 4/2008.

In that view of the matter, rejection of the Petitioner's representation by the orders dated 1st April, 2015 and 26th August, 2015 is hereby set aside by the Court and a mandamus is issued to the Respondents to pass a fresh order within four weeks giving the Petitioner the relaxation in terms of para 4.17(b) (v) of SO No. 4/2008. The Respondents will also pass the consequential orders for promotion of the Petitioner to the rank of DC from 19th December 2014 the date on which the batch mates were promoted as DC received the said promotion.

11 The petitioner in the present case also stands on the same footing as that of the petitioner in the above case. Therefore and in view of the facts and circumstances of the case and also having regard to the observations made in Venkatesh Vs. Union of India (supra) this Court is also of the view that the petitioner is entitled to promotion to the post of Deputy Commandant.

12 Accordingly, this writ petition is allowed, the respondents are hereby directed to pass a fresh order within four weeks giving the petitioner the relaxation in terms of para 4.17 (b) (v) of SO No.04/2008 and consider his case for promotion to the post of Deputy Commandant prospectively. No order as to costs.

13 As a sequel, miscellaneous petitions if any pending in this writ petition shall stand closed.