Delhi High Court - Orders
Ex Ct Rama Shankar Mishra vs Union Of India & Ors on 29 January, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13892/2018
EX CT RAMA SHANKAR MISHRA .....Petitioner
Through: Mr.Arun Srivastava and
Mr.Rajesh Bansal, Advs.
alongwith petitioner in person
versus
UNION OF INDIA & ORS .....Respondents
Through: Mr.Satya Ranjan Swain, SPC
with Mr.Kautilya Birat, Adv.
for UOI
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
ORDER
% 29.01.2025
1. The present petition has been filed by the petitioner, inter alia, praying for a direction to the respondents to pay all disability benefits like Disability Medical Board Out Pension, compassionate appointment, and other financial benefits/compensation to the petitioner.
2. It is the case of the petitioner that the petitioner joined the Border Security Force as Constable (GD) on 20.02.1990. While being posted at the Kashmir valley, on 15.05.1994, he was a part of a patrol party of 95 Bn BSF which was fired upon by militants in the Rambagh area, Srinagar. As a result of the fire, he sustained bullet injuries on right hand, left palm, left thigh, and left side of stomach. The Inspector General, BSF Srinagar Frontier, by a report dated 08.03.1995, recommended the case of the petitioner for all financial benefits as admissible under the Rules, stating that the injury suffered This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/02/2025 at 22:48:23 by the petitioner was sustained by him while performing bona fide government service and was attributed to such service.
3. The Commandant of 96 Bn BSF, vide a Certificate 19.05.1998, recommended that the petitioner can be suitably employed in Unit to perform lighter duties consistent with his Low Medical Category.
4. In a report dated 16.08.2004, the petitioner was found to be suffering from 86% disability due to effect of amputation of his right upper limb and effects of GSW in the right lower limb.
5. The Commandant of 96 Bn BSF, vide a Certificate 16.09.2004, again recommended that the petitioner be given sheltered appointments/sedentary duties till completion of 20 years of service.
6. However, on 14.01.2007 a Show Cause Notice was issued to the petitioner asking him to show cause as to why he should not be invalidated out of service on medical grounds.
7. In spite of the representation of the petitioner, by an Order dated 30.04.2007, the petitioner was invalidated out of service. The petitioner challenged the same by way of a Writ Petition before the High Court of Judicature at Allahabad, Lucknow Bench in Writ Petition (Service Single) no.5882/2008 titled Rama Shanker Mishra v. Union of India & Ors.. The High Court, by its Interim Order dated 22.09.2008, took note of a representation made by the petitioner to the Director General, BSF, and directed that in case the petitioner makes a further representation, the same be disposed of by way of a speaking order.
8. The case of the petitioner for reinstatement, however, was again rejected by an Order dated 24.12.2008 by the DG BSF.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/02/2025 at 22:48:23
9. The above writ petition was disposed of by the High Court by its Order dated 07.08.2015, inter alia, directing the respondents to place the matter of the petitioner before the Rehabilitation Board or in case the same is not constituted, to consider the grievance of the petitioner sympathetically having regard to the essence of rehabilitation under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'PWD Act').
10. The respondents, however, again rejected the representation of the petitioner by an Order dated 27.01.2016, by observing that due to the physical disability suffered by the petitioner, he cannot be retained in combatised post and, keeping in view the role and nature of duties in the Force and having regard to the type of work carried, the provisions of PWD Act do not apply. It was observed that there is no practice of constituting a Rehabilitation Board, however, still enquiries were made from Headquarters and Training Institutions to intimate whether any kind of work/job can be provided to the petitioner for employment out of private fund in BSF. In response to this query, the Headquarters/Training Institutes expressed inability for providing any job to the petitioner out of private fund in BSF, as no such post was vacant.
11. Aggrieved of the above order, the petitioner then filed a Contempt Petition, which was disposed of by the High Court vide an Order dated 04.01.2017, reserving liberty with the petitioner to challenge the Order dated 27.01.2016 in accordance with law. The present petition has been filed availing of this remedy.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/02/2025 at 22:48:24
12. The learned counsel for the petitioner submits that the Impugned Order dated 27.01.2016 has failed to appreciate that there are various jobs that could have been performed by the petitioner in spite of his disability. The representation was primarily rejected as the petitioner could not be retained in combatised post.
13. He submits that with the passage of time now, while the petitioner would not insist on his reinstatement in service, he should at least be paid the disability element of pension to which he would be entitled to as the injury suffered by him was attributable to service as is evident from the entire record. He submits that the respondents are not releasing the disability element of pension to the petitioner by insisting on the petitioner to first surrender the lump sum compensation that was received by the petitioner post his injury. He submits that this lump sum amount, though cannot be recovered from the petitioner, the petitioner is willing to have it adjusted against the claim for disability pension.
14. Prima facie, we find the offer made by the learned counsel for the petitioner to be reasonable. As is evident from the above facts, the injury suffered by the petitioner was in performance of his duties and due to a militant attack, as is also verified from the report of the Inspector General referred by us hereinabove. Prima facie, we also find that the respondents had not fully complied with the Order dated 07.08.2015 passed by the Allahabad High Court, which had, in fact, called upon the respondents to consider the case of the petitioner sympathetically having regard to the essence of rehabilitation. Though the PWD Act itself may not apply to the respondents, the spirit behind This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/02/2025 at 22:48:24 the same should have been kept in mind by the respondents while considering the case of the petitioner. The respondents instead merely addressed a communication to all the Headquarters and the Training Institutes inquiring if the petitioner can be offered a job out of private fund in BSF.
15. We are unable to, prima facie, believe that with the disability suffered by the petitioner, he could not have been accommodated in any sedentary job. Prima facie, it appears that the intent was never there for considering the case of the petitioner sympathetically even though the petitioner had suffered the injury while being on duty and for the nation.
16. Be that as it may, given the offer made by the petitioner, we direct the Director General, BSF to consider the case of the petitioner afresh sympathetically in light of the offer made by the learned counsel for the petitioner, and pass an appropriate order thereon, within a period of four weeks from today. The order so passed, shall be produced before us on the next date of hearing.
17. List on 29th April, 2025, to be shown in the 'Supplementary List'.
NAVIN CHAWLA, J SHALINDER KAUR, J JANUARY 29, 2025/sg/VS Click here to check corrigendum, if any This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/02/2025 at 22:48:24