Jammu & Kashmir High Court
Nitan Singh vs Union Of India And Others on 30 November, 2021
Author: Tashi Rabstan
Bench: Tashi Rabstan
Sr. No.21
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No.3061/2010
IA No.4302/2010
Nitan Singh ....Petitioner(s)/Appellant(s)
Through :- Mr. Vikram Sharma, Sr. Advocate with
Mr. Sachin Dev Singh, Advocate.
V/s
Union of India and others ....Respondent(s)
Through :- Mr. Eishaan Dadhichi, CGSC.
Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
ORDER
30.11.2021
1. The brief facts as narrated in the petition are as under:
2. The case of the petitioner is that he was selected/appointed as constable, General Duty (GD) in Central Reserve Police Force on 02.12.2009 and deputed for training at Group Center Yelenka Bangalore for 44 weeks. After completing the training successfully, he was sent to 182 Battalion CRPF Pulwama. Since then, the petitioner had been working at the utmost satisfaction of his higher authorities and subsequently, he qualified for Radio Operator Basic Course SL No.303(C) at 3 Signal Battallion CRPF Kotkata West Bengal and underwent training w.e.f 01.09.2008 to 16.05.2009. After completion of Radio Operator Basic Course, a certificate to this extent was issued by the Commandant 3- Signal Battalion, Kolkata and the petitioner along with other similar situated constables/trainees, stood transferred to 2- Signal Battalion CRPF, Hyderabad vide CRPF office order No.T.I.X.18/2009- Estt. dated 13.05.2009. The petitioner along with other constables was recommended for remustering of CT/GD as Head Constable Radio Operator 2 SWP No.3061/2010 after passing the Radio Operator Basic Course vide communication dated 12.08.2009 whereby list of candidates approved for Head Constable/Radio Operator issued by respondents vide communication dated 17.08.2009. It is contended that after issuing the list of approved remustering for the post of constable GD, the petitioner left his house on leave, however while completing the leave, the petitioner returned to his Unit and was detected colour blindness and the Medical Officer categorised him shape E5 as per provisions of categorization of medical laid down in Standing Order No. 4/2008 and as such, found not eligible for promotion.
3. Feeling aggrieved, the petitioner has questioned his rejection of promotion though the medium of this petition on the strength of the grounds taken therein.
4. I have heard learned counsel for the parties, considered their submissions and perused the writ record.
5. Before dealing with the issue, it would be advantageous to reproduce hereunder the relevant rule of Central Reserve Police Force Rules hereunder:-
11. Enlistment Standards
(a) Save as here in otherwise provided, no person shall be enrolled as a member of the Force unless he conforms to the following minimum (1) Height 5'-7"
(2) Chest 31 1/2" expanded 33"
(3) Age
(i) For Sub Inspector Age no less than 19 and not more than 24 years.
(ii) For Head Constables Age not less than 18 and not more than 23 years.
(substituted vide GSR 2600 dated 16.10.1975) 3 SWP No.3061/2010 (4) Following shall be the minimum educational qualifications for direct recruitment in the following ranks namely Sub Inspectors Graduate (or 9 Equivalent Army Head Constables Matric ( qualifications or Naiks). ( in case of Constables Matriculation ( ex-Army men). (substituted vide GSR-712 dated 15.9.87)
(b) The minimum standard laid down in sub rule
(a) in so for as it relates to height may be relaxed from 5'-7" to 5"-5" in the case of people having martial, traditions such as Gorkhas, Garkwalis, Kumaonese, Dogras and Marathas;
(bb) the minimum standard laid down in sub-
rule (a) may be relaxed:-
(i) in so for as it relates to height, from
5'.t7" to 5'-4".
(ii) (ii) in so for as it relates to chest
measurement, from 31 1/2"-expanded
33 1/2" to 30"-expanded 32" for
Adivasis.
(c) The minimum standard laid down in sub rule
(a) in so fo@ it relates th height may be relaxed from 5'-7" to 5'-4' in case of persons who have attained the age of eighteen years but have not attained twenty years; (sub-rules (b) and (c) substituted vide GSR 912 datdd 7.6.67)
(d) The minimum chest standard laid down in sub-rule (a) above may be relaxed by one inch in case of all persons including those belonging to hill tribes who have attained the age of 18 years but not more than 20 years.
Provided that the exemptions specified in (c) and (d) above are made Subject to the condition that the medical officer certifies that a person 4 SWP No.3061/2010 concerned is likely to attain the minimum standard prescribed.
(dd) The minimum standard in respect of female candidate for direct recruitment to non-gazetted posts excluding the posts of followers in Mahila Battalion, shall be as under:-
Height: 5'-2 3/4" (157 cms) 5'-2" (155cms) for Gorkha/Garhwalies/Kumaoti/ Dogras/ and Marathas. 5'-l 1/2" (154 cms) for Adhivasis.
The conditions regarding age limit and educational qualifications shall remain same as (those mentioned in clauses (a) above) laid down in sub-rule (a) above. (Inserted vide GSR-783 dated 8.10.88) (Ex service-men who are of exemplary or very good character may be enlisted not-withstanding that they are over 23 years of age provided they are under 30 years of age and are otherwise suitable for enlistment.
(f) Exception to any of these qualifications may be made with the prior approval of-
(i) The Miiiistry of Home Affaris in the case of any Superior officer.
(ii) The Inspector Gemeral in the case of a Subedar Major or Subedar(Inspector), and
(iii) The Deputy Inspector General in the case of any other member of the Force. (substituted vide GSR 135 dated 24.1.1967)
(g) The Commandant may at his discretion enlist as enrolled Followers persons who have attained the age of 18 years but not more than 40 years provided they are medically fit.
(h) The upper age limit prescribed may be relaxed in the case of candidates belonging to 5 SWP No.3061/2010 the scheduled castes, the scheduled tribes and of special categories of persons in accordancee with orders issued from time to time by the Central Government. (GSR 1673 dated 17.12.77).
6. From the above it comes to fore that there is no categorization in Shape-system permissible in the CRPF Act or Rules thereunder. Though the medical fitness standards of candidates, suppose to possess at the time of appointment, had been property conducted and checked up at the time of petitioner's initial appointment and the petitioner was found medically fit and suitable in all respects. The standing order bearing No.4/2008 dated 15.12.2008 came to be issued by the Director General, CRPF on the subject i.e., medical categorization and invalidation of Central Reserve Force personnel, which reveals that the Ministry of Home Affairs had desired that medical categorization in Shape system should be made only to consider the employment to high altitude, difficult and stressful areas and in no case for weeding out, denting promotions or varying their services to their disadvantages.
7. Clause 5.5 of the standing order referred hereinabove suggests that the medical categorization under Shape system has been laid. For facility of reference, clause 5.5 is reproduced hereunder:
Functional Capacity Scale Shape E-1: Fit for all duties any where; Shape E-2:Fit for all duties except with limitations in duties involving severe physical/mental strain. They would also be required perfect acuity of vision and hearing. Shape -E-3: Except S factor, fit for routine or sedentary duties but have limitations of employability; both job wise and Terrian wise as spelt out in classification against each factor as specified in Part IV.6 SWP No.3061/2010
Shape E-4:Temporary unfit for duties in the force on account of hospitalization/sick leave Shape E-5: Permanently unfit for service for any type in the force.
8. The issue of introduction of Shape system for the purpose of promotion in CPMFs, particularly with respect to the Force personnel detected later on with colour blindness, the Ministry of Home Affairs vide U.O. No. 45020/52/2001/Pers.II dated 17.05.2002 clarified that the question of promotion of Force personnel with colour blindness has been examined in this ministry and it has been decided that this disability ignored at the time of their recruitment cannot held against them now. As such all such force personnel, recruited with colour blindness are, therefore declared eligible for promotion, despite their being in medical category Shape- 2 (permanent) on their turn, if they are otherwise fit for promotion.
9. Objections have been filed by the respondents-Union of India resisting the contention of the petitioner. In the objections, the respondents have undisputedly admitted that the petitioner completed ROBC SI No.303(c) at Commandant, 3rd Singnal Battalion Kolkata and was recommended for remustering as HC/RO vide DIG communication dated 12.09.2009, however, it is mentioned that at the time of recruitment of the petitioner as CT/GD, due to unforeseen circumstances, could not detect colour blindness as well thereafter upto 2008 but at the time of conducting his AME by the Senior Medical Officers, his colour blindness was detected, thus in terms of the rules and instructions which are applicable to the force/defence personnel and having regard the standing order No.4/2008, the personnel has to undergo only medical examination. It is further contended that once the petitioner has been detected colour blindness, as such, the petitioner is not eligible for enlistment 7 SWP No.3061/2010 for further promotion, therefore, the order impugned issued by the respondents is strictly in terms of the provisions as well as instructions admissible to the field.
10. Mr. Vikram Sharma, learned senior counsel appearing for the petitioner submits that a similar and identical issue came up before Division Bench of Delhi high Court in batch of petitions lead case being WP(C) No.356/2013 title P.Suresh Kumar Vs. Union of India and others, decided on 28.02.2013, wherein it has been observed that:
"9......................................................... ............................................................ ............................................................ .........This Court is also conscious that the appeals by the respondents through special leave to the Supreme Court against the directions in Sudesh Kumar's case (supra) were unsuccessful; the SLPs were dismissed. It meant that not only did the petitioners in Mohal Lal Sharma and Sudesh Kumar cases acquire a right in the form of a declaration that they would not be treated differently from their other non-colour blind colleagues, such right also vested and inured in all similarly situated employees and personnel of all the forces. Such being the case, the respondents cannot now argue that in the form of the mere Circular of 18.5.2012 or in that matter of 27.2.2012, the present petitioners, or those who had not approached the Court, but are found to have the same conditions as the petitioners in Mohal Lal Sharma's case, can be in any manner discriminated against. That some approached the Court whilst the others felt no compulsion to do so, can be no rationale for a valid classification. In 8 SWP No.3061/2010 fact, the entire class of colour blind personnel WP (C) 356/2013 with connected matters Page 11 under such circumstance is indistinguishable. The respondents cannot treat the equals unequally by separating those who approached the Court and continue to give them promotions and other such benefits while denying the same to those who had not approached the Court and perhaps had no occasion to approach the Court on account of the declaration given. That would be plainly violation of Article 14 of the Constitution of India.
11. Mr. Eishaan Dadhichi, learned CGSC has admitted the fact that petitioner is similarly situated person to that of petitioners before the Delhi High Court and the benefit as given to those petitioners shall also be given to the petitioner in this petition.
12. Mr. Vikram Sharma, learned senior counsel further submits that the judgment passed by Hon'ble the Division Bench of Delhi High Court in P.Suresh Kumar case supra, has been implemented and benefits to the petitioners in those petitions have also been extended by the respondents.
13. In view of the discussions made hereinabove, implementation of judgment passed by Hon'ble the Division Bench in above referred case, the order impugned herein is set aside. The respondents are directed to issue orders of promotion on the basis of recommendations in terms of Annexure-C, whereby the petitioner along with other similarly situated persons had been accorded approval for remustering of CD/GD as promotion to the post of Head Constable Radio Operator. The respondents shall also provide the benefit of seniority to the petitioner at the appropriate place in terms of the communication dated 17.08.2009 as has been given to the petitioners before 9 SWP No.3061/2010 the Delhi High Court. Let this exercise be done within a period of two months from the date copy of this order along with complete set of this petition is made available to them by the petitioner.
14. Disposed of as above.
(Tashi Rabstan) Judge Jammu:
30.11.2021 Surinder Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No SURINDER KUMAR 2021.12.06 16:37 I attest to the accuracy and integrity of this document