Gauhati High Court
Tilak Chetry vs The Union Of India & 2 Ors on 9 March, 2017
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM &
ARUNACHAL PRADESH)
WP(C) 221 of 2013
SRI TILAK CHETRY,
S/o- Sri Lal Bahadur Chetry,
Vill: Nalamukh, PO- Jiadhol,
District-Dhemaji, Assam.
....PETITIONER
-versus-
1. Union of India
Represented by the Home Secretary,
Ministry of Home Affairs,
New Delhi- 110003.
2. The Director General,
Into Tibet Border Police,
Block-II, CGO Complex,
Lodhi Road, New Delhi-110003.
3. The Office Commandant,
9th Battalion, ITBP Force,
Home Ministry, Govt of India
99 APO, PIN-934409.
4. Deputy Inspector General (Tezpur),
Regional Head Quarters,
ITBP, Tezpur.
...RESPONDENTS
Advocates for appellant - Mr. PKR Choudhury,
Mr. KK Upadhyay,
Mr. NG Kundu,
Advocates for respondents - Mr. S Sarma,
Senior Central Govt. Counsel.
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
Date of hearing : 7.2.2017.
Page 1 of 9
Date of delivery of judgment & order : 9.03.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. PKR Choudhury, learned counsel for the petitioner and Mr. S Sarma, learned senior Central Govt. Counsel.
2. The present case relates to the petitioner, a Constable (GD) in the Indo Tibetan Border Police Force (ITBPF), who was released and discharged from service with effect from 31.1.2011 on being declared colour blind.
3. The petitioner's case in brief is that the petitioner had taken part in the selection process for selection to the post of Constable GD in the Indo Tibetan Border Police Force (for short 'ITBPF'). The petitioner was thereafter offered appointment to the post of Constable GD in the ITBPF vide Memorandum dated 6.6.2007 and it was stipulated in paragraph 6 of the said Memorandum that if the petitioner did not join by 9.7.2007, it would be presumed that the petitioner was not interested to serve in the ITBP and offer of appointment would be liable to be terminated.
4. The petitioner's counsel submits that the petitioner, thereafter, joined the post of Constable (GD) on 7.6.2007. The petitioner's counsel submits that the petitioner had undergone medical check-up during the selection process and even after joining of his post. In both the medical check-ups, the petitioner was found to be fit. The petitioner's counsel also referred to the Annual Medical Check-Up Register of 2008, which shows that the petitioner's eye vision is 6/6 BE and the petitioner was marked as fit in the said AMC Register of 2008. The petitioner's counsel submits that subsequently in the year 2009, the petitioner was subjected to another eye test and the petitioner was thereafter declared to be colour blind on the basis of the opinion of one Dr. DK Verma on 22.5.2009, who was posted at Base Hospital ITB Police, Tigri Camp, New Delhi. The petitioner's counsel submits that after the petitioner was declared to be colour blind, he accepted the fact that he was colour blind and did not prefer any appeal or file any representation against the finding of the Doctor that he was colour blind. The petitioner's counsel submits that subsequent to the petitioner Page 2 of 9 being declared colour blind, the petitioner was released and discharged from service with effect from 31.1.2011. He submits that the release and discharge of the petitioner from service on the ground that he is colour blind should be set aside as the disability of colour blindness that afflicted the petitioner occurred during his service period.
5. The petitioner's counsel submits that as per the Circular dated 30.10.2008 issued by Ministry of Home Affairs, force personnel recruited with colour blindness and ignored at the time of recruitment cannot be held against them and they should be adjusted against suitable post, without their services being terminated.
6. Petitioner's counsel submits that Section 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'PWD Act, 1995') states that disability includes blindness. The petitioner's counsel also submits that as per the Section 47 of the PWD Act 1995, no establishment can dispense with or reduce in rank, an employee who acquires a disability during his service. He also submits that as per the said Section 47, the disabled person can be shifted to some other post. Petitioner's counsel further submits that no notification has been issued by the ITBPF organisation or the State respondents exempting the ITBPF from the purview of the PWD Act, 1995. The petitioner's counsel thus submits that in view of the above, the PWD Act, 1995 would have to be applied in the case of the petitioner.
7. The petitioner's counsel in support of his submission has relied upon the judgment of the Apex Court in the case of Reena Banerjee and another vs. Government (NCT of Delhi) and others reported in (2015) 11 SCC 725.
8. Mr. S Sarma, learned senior CGC submits that as per the section 26 of the Indo Tibetan Border Police Force Rules, 1994 (for short 'ITBPF Rules, 1994') when a person is found by a Medical Board to be unfit for further service, the authority concerned, if it agrees with the finding of the Medical Board has to communicate to the said person, the findings of the Medical Board. The petitioner herein was informed of his disability of colour blindness by the Medical Board and as per Section 26 of the ITBPF Rules, Page 3 of 9 1994, the petitioner has a 30 day period for submitting a representation against the opinion of the Medical Board. The petitioner, however, did not avail the said opportunity and has been deemed to have accepted his medical condition of colour blindness. The petitioner was thus released and discharged from service w.e.f. 31.1.2011 under Sections 17 and 26 of the ITBPF Rules, 1994. Counsel for the respondents thus submits that the petitioner not having made a challenge to the opinion of the Medical Board, he cannot now be allowed to challenge the same by way of this writ petition.
9. Learned senior CGC also submits that as per the Circular dated 30.10.2008, issued by the Ministry of Home Affairs, persons who are appointed to the Force by chance prior to 17.5.2002 with colour blindness, were to be adjusted in non-technical security force where colour blindness may not be a disqualification. However, where cases of colour blindness were detected in the appointees appointed after 17.5.2002, such persons were placed in SHAPE-V and be boarded out as per the procedure laid down. The senior CGC submits that the Circular dated 30.10.2008 Annexure-G still holds the field. The same has not been challenged and accordingly, there is no infirmity in the release and discharge of the petitioner from the Force.
10. The learned senior CGC also submits that the petitioner was released from the Force w.e.f. 31.1.2011 and the petitioner has filed the present writ petition only on 4.1.2013 i.e. after nearly two years. He submits that the writ petition should be dismissed for delay and laches. He also submits that the respondents had made an attempt to identify a non- combative post, in which the petitioner could be accommodated/adjusted. However, as per the Office Memorandum dated 6.1.2017 issued by the Deputy Inspector General (Estt.)(ITBP), there was no non-combative post to adjust the petitioner.
11. I have heard the learned counsels for the parties.
12. Section 26 of the ITBPF Rules, 1994 is reproduced below:
Page 4 of 9"26. Retirement discharge of subordinate officers and enrolled persons on grounds of physical unfitness.-(1) Where a Commanding Officer not below the rank of Commandant is satisfied that a subordinate officer or an enrolled person is unable to perform his duties by reason of any physical disability, he may direct that the said subordinate officer or enrolled person, as the case may be, be brought before a Medical Board.
(2) The Medical Board shall consist of such officers and shall be constituted in such manner as may, from time to time, be laid down by the Director General.
(3) Where the said subordinate officer or the enrolled person is found by the Medical Board to be unfit for further service in the Force, as the case may be, the authority as specified in rule 17, if he agrees with the finding of the Medical Board, communicate to the said person the findings of the Medical Board and thereupon, within a period of 30 days of such communication, the person may make a representation against it to the competent authority supported by a prima-facie evidence of error of judgment in the opinion expressed by the Medical Board. Such an evidence should be from a government doctor not below the status of Civil Surgeon and should contain specific mention that he has taken into consideration the findings of the Medical Board before giving his opinion.
(4) Where the person declared to be unfit for further service makes a representation under sub-rule (3) the same shall be awarded to the next superior officer, who shall have the case referred to be reviewed by a fresh Medical Board, which shall be constituted in such manner as may from time to time, be laid down by the Director General.
The superior officer may, having regard to the findings of the fresh Medical Board, pass such order as he may deem fit.
Page 5 of 9(5) Where no representation is made against the decision of the Medical Board under sub-rule (3), the authority as specified in rule 17, as the case may be, may (if he agrees with the findings of the Medical Board) order the retirement/discharge of person declared to be unfit for further service in the Force."
13. As per Section 26 of the Rules, 1994, the petitioner had been given the opportunity to submit representation against the medical report. The petitioner, however, did not submit any representation against the opinion of the Medical Board as he had accepted the fact that he was colour blind. The Circular dated 30.10.2008 issued by the Ministry of Home Affairs states that when a case of colour blindness is detected after 17.5.2002, such persons are to be placed in SHAPE-V and boarded out. This Circular dated 30.10.2008 has not been put to challenge by the petitioner and in view of the same, the writ petition is liable to be dismissed. However, the provisions of Section 47 of the PWD Act, 1995 states that no establishment shall dispense with an employee who acquires disability during his service. However, the Ministry of Social Justice and Empowerment issued a notification dated 10.9.2002 with regard to applicability of Section 47 of the PWD Act to Central Para Military Forces wherein it is stated that Section 47 of the PWD Act, 1995 would not be applicable to the ITBPF. This notification dated 10.9.2002 is clearly reflected in paragraph 16 of the Judgment dated 25.9.2012 passed by the Division Bench of the Delhi High Court in Tejender Kumar -vs-Union of India & Another, WP(C) No. 2636/1999, which is as follows:
"16. In exercise of the powers conferred by proviso to sub-section (2) to Section 47 of the Act, the Ministry of Social Justice and Empowerment issued a notification dated 10.09.2002 with regard to applicability of Section 47 of the Act to Central Para- Military Forces, which reads as under:-
"NOTIFICATION New Delhi, the 10th September, 2002 S.O. 995 (E)- In exercise of the powers conferred by proviso to Section 47 of The Persons With Disabilities (Equal Opportunities, Protection Page 6 of 9 of Rights And Full Participation) Act, 1995 (1 of 1996) the Central Government having regard to the type of work carried on hereby exempt all categories of posts of "combatant personnel" only of the Central Para Military Forces (CPMFs), namely, Central Reserve Police Force (CRPF), Border Security Force (BSF) Indo-Tibetan Border Police (ITBP), Central Industrial Security Force (CISF) and Assam Rifles from the provisions of the said section."
14. The notification dated 10.9.2002, S.O.995(E) has also been reflected in the Revised List of Business of the Lok Sabha dated 29.11.2002, wherein it has been stated as follows:-
"3. SHRI SATYA BRATA MOOKHERJEE to lay on the Table-
(1) A copy each of the following Notifications (Hindi and English Versions) under sub-section (3) of section 73 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995:-
(i) S.O. 994 (E) published in Gazette of India dated the 13th September, 2002 seeking to exempt all categories of posts of "combatant personnel" only of the Central Para Military Forces and Assam Rifles from the provision of the section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
(ii) S.O. 995 (E) published in Gazette of India dated the 13th September, 2002 seeking to exempt all categories of posts of "combatant personnel" only of the Central Para Military Forces and Assam Rifles from the provision of the section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
(iii) S.O. 1179 published in Gazette of India dated the 13th April, 2002 seeking to exempt all categories of posts of "combatant personnel" of Armed Forces from the provision of the section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
(iv) S.O. 1180 published in Gazette of India dated the 13th April, 2002 seeking to exempt all categories of posts of "combatant personnel" of Armed Forces from the provision of the section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995."Page 7 of 9
15. In view of the above notification dated 10.9.2002 issued vide S.O.995(E), Section 47 of the PWD Act has no application to the present case. Further, the Revised List of Business of the Lok Sabha dated 29.11.2002 also shows that another notification No. S.O.994(E), seeking to exempt all categories of posts of combatant personnel only of the Central Para Military Forces from the provision of Section 33 of the PWD Act was laid on the table of the House. This S.O.994(E) is with regard to the provision of Section 33 of the PWD Act, 1955. Section 33 of the PWD Act deals with reservation of posts at the appointment stage, while Section 47 of the PWD Act, 1995 deals with the bar to dispensing or reducing in rank, an employee who acquires a disability during his service. In this regard, the Apex Court in Union of India and Others -vs- Dileep Kumar Singh (Civil Appeal Nos. 2466-2467 of 2015) has held that it is obvious that, if at the appointment stage, persons with disabilities need not have vacancies in posts reserved for them, equally after suffering a disability during service, a person may for the self-same reason not be able to perform what is required of him in the defence of the nation, thereby justifying his discharge from service.
16. Besides the law laid down by the Apex Court with regard to the applicability of a notification issued under Section 33 of the PWD Act and the effect of the same vis-a-vis Section 47 of the PWD Act, 1995, Central Government has issued the notification dated 10.9.2002, S.O.995(E) exempting the ITBPF from the provision of Section 47 of the PWD Act, 1995.
17. In view of the S.O.995(E), this Court does not find any infirmity with the release and discharge of the petitioner from service vide Order dated 31.1.2011.
18. In the present case, the ITBPF is a paramilitary force which has a very important role in protecting the Indian border. It needs people who are medically fit to be a part of the force. As stated earlier, the petitioner not having made a challenge to the Circular dated 30.10.2008, there is no Page 8 of 9 infirmity with the release and discharge of the petitioner from service vide order dated 31.1.2011.
19. However, keeping in view the fact that the petitioner had served for sometime in the ITBPF and as the petitioner has been released and discharged from service due to his colour blindness, which allegedly occurred during his service period, the respondents are directed to consider whether the petitioner is entitled to be given disability pension as per the rules.
20. The said consideration should be completed within a period of 2 (two) months from the date of receipt of a certified copy of this order and the result of the same should be communicated to the petitioner.
21. The writ petition stands dismissed, subject to the direction passed above. No cost.
JUDGE gunajit Page 9 of 9