Madras High Court
P.Evans vs Director General on 11 November, 2009
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.11.2009 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.No.24191 of 2003 P.Evans ... Petitioner Vs. 1.Director General, C.R.P.F.,CGO Complex, Lodhi Road, New Delhi. 2.Deputy Inspector General of Police, C.R.P.F., Avadi, Chennai 65. 3.Addl.Dy.Inspector General of Police, Group Centre, C.R.P.F, Avadi, Chennai -65. 4.Commandant, 19 Bn, C.R.P.F, Secunderabad, Andhra Pradesh. ... Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the records relating to the order No.J.II.48/2000-Estt-3 dated 31.07.2003 passed by the second respondent herein to quash the same and to direct the respondents to provide job mentioned in the Standing Order No.7/1999 dated 6.5.1999 with all monetary benefits to the petitioner. For Petitioner : Mr.M.Md.Ibrahim Ali For Respondents : Mr.S.Krishnasamy O R D E R
The petitioner was working as Cadet Constable in the C.R.P.F. He filed W.P.No.17933 of 1998 challenging the order dated 07.11.1998 and for a direction to accommodate the petitioner in any one of the posts. Pending the writ petition, the petitioner had the benefit of interim injunction. Subsequently, the writ petition was dismissed on 11.02.2000.
2. Thereafter, the petitioner had filed a second writ petition in W.P.No.20432 of 2000 challenging the order dated 14.08.2000 and demanding an alternative job in terms of Standing Order 7/99. This Court by a final order dated 07.04.2003 directed the respondents to consider his case along with the Medical Certificate. It was pursuant to the said direction, the respondents have passed the impugned order dated 31.07.2003. In that order, it was stated that there was no case for re-examining the decision taken by the Medical Board and the petitioner had been invalidated from service as on 08.11.1998.
3. In paragraph 7 of the impugned order, the respondents have recorded as follows:-
"7. ... I perused his earlier representation and the enclosed medical certificate dated 21.10.1998 as issued by Dr.C.Shakuntala, Professor and Head of the Department, Chief Cardiologist, Gandhi Hospital, Secunderabad. As per the said medical certificate dated 21.10.1998 Shri P.Ivans is a case of Sick Sinus Syndrome and is on Pace Maker since 1989. Ct P.Ivans cannot undertake strenuous duty as it may damage Pace-maker. But he can do duty of less laborious nature like office Runner, message bearer, Choukidar, Telephone Operator, Peon and other desk job. Then I consulted the Medical Officer of Group Centre hospital, CRPF, Avadi and ascertained that once pace maker is installed in a person, then he will be unfit for any job in CRPF (including peon etc)."
4. With reference to the application of the 1995 Act, reliance was placed upon the notification dated 10.09.2002, wherein Sections 33 and 47 have been made inapplicable to the CRPF. In the light of the above and the force being a combatant force, the petitioner's request was rejected. The petitioner has come forward with this writ petition once again challenging the said order. The writ petition was admitted on 29.08.2003. Pending the writ petition, this Court refused to grant any interim order.
5. On notice from this Court, the respondents have filed a counter affidavit dated Nil (December 2003). With reference to the petitioner's fitness to perform duty, in paragraphs 8 & 9 it was averred as follows:-
"8. I humbly state that the contention of the individual that he was entrusted with duties as if he was 100% fit for the force is not correct. He was assigned lightest job i.e. Signal runner. The statement of the individual that he was transferred from Secunderabad to difficult area like Manipur and Assam is also not correct. He was not transferred from peace area to difficult area. Actually the unit moved from Secunderabad to Manipur during 1999 and Assam during 2000 and the individual also happened to move along with the unit.
9. For the contents in para 6 of WP, I humbly state that the individual was infact not fit to perform any kind of duty in the department due to this ailment since 1989 (he was an appointee of 1988) but the department has made all efforts to provide him all possible Medical Assistance and retained him on lighter duties till he became eligible for invalid pension after putting in 10 years of service. As it was risky to continue with his services which would have aggravated any time, he was medically invalidated out. The Hon'ble Court in its judgment dated 11.02.2000 had also upheld the action of the Department."
6. The contention raised by the petitioner in the affidavit was that the exemption granted in 1995 Act was prospective and that can be seen from the judgment of the Supreme Court vide its judgment in Kunal Singh v. Union of India and another reported in (2003) 4 SCC 524. In Kunal Singh's case judgment was delivered on 13.02.2003 and therefore, notification must be presumed to be prospective. This Court is unable to agree with the said statement. First of all, exemption notification was not under challenge before the Supreme Court. Secondly, the fact that it has been exempted was not brought to the notice of the Supreme Court and therefore, there was no occasion to the Supreme Court to dwelve on the subject.
7. In the light of the above, there is no case made out by the petitioner. Accordingly, the writ petition stands dismissed. No costs.
svki To
1.Director General, C.R.P.F.,CGO Complex, Lodhi Road, New Delhi.
2.Deputy Inspector General of Police, C.R.P.F., Avadi, Chennai 65.
3.Addl.Dy.Inspector General of Police, Group Centre, C.R.P.F, Avadi, Chennai -65.
4.Commandant, 19 Bn, C.R.P.F, Secunderabad, Andhra Pradesh