Jharkhand High Court
Union Of India Through The Secretary vs Oshihar Prasad on 24 August, 2018
Author: Aniruddha Bose
Bench: Chief Justice, H.C.Mishra
L.P.A. No. 136 of 2018
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 136 of 2018
With
I.A. No.2462 of 2018
With
I.A. No.2463 of 2018
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1. Union of India through the Secretary, Ministry of Home Affairs, New Delhi.
2. Director General, Border Security Force, CGO Complex, New Delhi.
3. D.I.G., T.C & S (Training Centre & School), Meru Camp, B.S.F Hazaribag, Jharkhand. ... Appellants
-Vs.-
Oshihar Prasad ... Respondent
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE H.C.MISHRA
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For the Appellants : Mr. Rajiv Sinha, A.S.G.I.
For the Respondent : Mr. Saurabh Shekhar,
Mr. Rishi Raj Verma, Advocates.
Order No. 4 : Dated 24th August, 2018
I.A No.2462 of 2018
Leave is given to the appellant to correct the application
for condonation of delay by giving the actual number of days by which the appeal is beyond prescribed time. There is delay of 162 days, but as per learned counsel for the appellant, it has been wrongly indicated in the application for condonation of delay, such delay is for 102 days.
We treat the application for condonation of delay as one in which prayer is made for condonation of delay of 162 days.
Upon going through the application, we are satisfied that the appellant was prevented by sufficient cause in preferring the appeal within prescribed time.
We, accordingly, condone the delay in preferring the appeal. I.A no.2462 of 2018 accordingly, stands disposed of. L.P.A. No. 136 of 2018 With I.A. No.2463 of 2018 Heard learned A.S.G.I. for the appellant Union of India and learned counsel for the private respondent.
The private respondent is working as Assistant Commandant in Border L.P.A. No. 136 of 2018 -2- Security Force, and he had approached this Court by filing a writ petition, registered as W.P.(S) No.6315 of 2010, claiming promotion to the higher post of Deputy Commandant. This was denied to the writ petitioner. The Hon'ble Single Judge, by the impugned order dated 30.8.2017, has allowed the writ application, directing that the case of the writ petitioner be considered for promotion to the higher post of Deputy Commandant, if he is otherwise eligible for the same in accordance with orders, circulars and extant guidelines, if any. It is this order which is under challenge in this Letters Patent Appeal.
It is stated in the impugned Judgment that the promotion to the petitioner was rejected on two counts. First, he had not undergone Young Officers Course (Commando and Weapons Training). Secondly, he was not qualifying the Medical Category of SHAPE-I. The Hon'ble Single Judge has took up for discussion the ground regarding medical disability of the petitioner, and we find from the impugned Judgment that only discussing about the medical disability, the writ application has been allowed by the Hon'ble Single Judge. The First ground, that he had not undergone the Young Officers Course (Commando and Weapons Training), has not been considered at all by the Hon'ble Single Judge.
While going through the records, we came across the order dated 05.11.2007 rejecting the representation for promotion to the writ petitioner, from which we find that the promotion had been refused to the petitioner on the only ground that he had not undergone the Young Officers Leg-II (Commando) Course, which was mandatory for promotion to the rank of Deputy Commandant.
For undergoing the said Young Officers Leg-II (Commando) course, the minimum medical criteria required to be fulfilled was the medical category SHAPE-1, which the writ petitioner was not fulfilling, as his case was coming within the medical category SHAPE-IE-2, because of the fact that he was found to be suffering from recurrent vitreous hemorrhage right eye. He had also undergone vitrectomy and scatter laser therapy. There were macular L.P.A. No. 136 of 2018 -3- changes and mild post lenticular opacity in the left eye, which disqualified him for undergoing the aforesaid Young Officers Leg-II (Commando) course.
Learned counsel for the respondent-writ petitioner has submitted before us that there is a provision for relaxation in the required medical standard for undergoing the Course and the petitioner ought to have been granted that relaxation for undergoing that course, in view of the services rendered by the petitioner in course of his postings even in the border areas. However, as per the extant orders and circulars, such relaxation could be granted only to the persons whose medical deficiency is found to be directly attributable to the conditions of service. We have also been taken through a communication dated 18.1.2009, whereby the writ petitioner was informed about this position.
The writ petitioner was also examined by the Medical Board for that purpose, and the report of the medical board is on record, which clearly shows that the medical disability in the sight of the appellant was not directly attributable to the conditions of service, though it was found that the disability was contracted during the service.
Learned counsel for the writ petitioner has drawn our attention towards the decision of the Hon'ble Supreme Court in Sukhvinder Singh Vs. Union of India, reported in 2014 (3) SLJ 110 (SC), wherein, an Army Personnel who was undergoing training, was allegedly slapped on the ear by the Instructor, due to which, he suffered medical deficiency. Though the fact was controverted, stating that he was slapped by the fellow army man, but the Hon'ble Supreme Court laid down the law as follows:-
"10. We are of the persuasion, therefore, that firstly, any disability not recorded at the time of recruitment must be presumed to have been caused subsequently and unless proved to the contrary to be a consequence of military service. The benefit of doubt is rightly extended in favour of the member of the Armed Forces; any other conclusion would be tantamount to granting a premium to the Recruitment Medical Board for their own negligence. Secondly, the morale of the Armed Forces requires absolute and undiluted protection and if any injury leads to loss of service without any recompense, this morale would be severely undermined. ----------------- ." (Emphasis supplied). L.P.A. No. 136 of 2018 -4-
Placing reliance on this decision, learned counsel submitted that the burden is upon the respondent to prove that the writ petitioner had not suffered medical disability due to the service condition, and in that view of the matter, the writ petitioner was entitled to be given the relaxation, so that he could undergo the Young Officers Course (Commando and Weapons Training), making him eligible for promotion to the post of Deputy Commandant.
We have given our anxious consideration to the facts of this case and we find from the record that the case of the writ petitioner has been considered by the Medical Board constituted for the purpose, which has come to the specific finding that the medical incapacity of the petitioner was not directly attributable to the service conditions.
In view of that specific finding, and taking into consideration that the writ petitioner is a member of the disciplined Armed Force, we are of the considered view that no direction could be given to consider the case of the petitioner, either for relaxation in the medical standards for undergoing the Young Officers Course (Commando and Weapons Training), or for consideration of the case of the writ petitioner for promotion to the higher post of Deputy Commandant, as has been directed by the Hon'ble Single Judge.
We find that the Hon'ble Single Judge has erred in law in giving the directions for consideration of promotion to the writ petitioner, and the impugned order passed by the Hon'ble Single Judge cannot be sustained in the eyes of law.
Accordingly, the impugned order dated 30.8.2017 passed in W.P (S) No.6315 of 2010, is hereby, set aside. This L.P.A stands allowed.
As we have allowed the appeal, the aforesaid I.A. No. 2463 of 2018, praying for ad-interim stay, also stands disposed of.
(Aniruddha Bose, C.J.) (H.C. Mishra, J.) DS-BS/-