Madhya Pradesh High Court
Union Of India Through Secretary vs Abhishek Beniwal on 20 July, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 WA-1199-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 20th OF JULY, 2024
WRIT APPEAL No. 1199 of 2024
UNION OF INDIA THROUGH SECRETARY AND OTHERS
Versus
ABHISHEK BENIWAL
Appearance:
Shri Himanshu Joshi, Dy. Solicitor General for the appellant/UoI.
Ms. Pritha Ghoshal, counsel for the respondent.
JUDGMENT
Per: Justice Sushrut Arvind Dharmadhikari This appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalay (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 assails the order dated 22.02.2024 passed in the Writ Petition No. 29628/2022 whereby the learned Single Judge has allowed the petition filed by the respondent setting aside the order dated 28.04.2020 and 07.10.2020 and reinstated the respondent into service with all consequential benefits including backwages.
A cost of Rs. 50,000/- was also imposed upon the appellants.
2. The brief facts of the case are that the father of the respondent was an employee of the Central Reserve Police Force (CRPF) who died while in service. Respondent being his son applied for the compassionate appointment on the post of Writer which he could not pass. Thereafter, he had applied for the post of Washerman for which he appeared before the Signature Not Verified Signed by: SREEVIDYA Signing time: 20-07- 2024 18:17:10 2 WA-1199-2024 Scrutiny Committee and had undergone pre-selection training for 15 days. He was granted appointment vide order dated 17.05.2019 on the post of Constable / Washerman (Dhobi) on the payscale of Rs. 21,700/- - Rs. 69,000/- (Level 3). Pursuant to the appointment order, respondent gave his joining and was medically examined. On 15.06.2019, respondent was served with a notice stating that he has been found medically unfit due to 'Myopia'. The respondent was called to appear on 30.09.2019 at the Composite Hospital CH Group CRPF, Bhopal for review of medical investigation and the Review Board found him unfit due to Myopia of 6/24B.E, consequent upon which his appointment was cancelled. Against the cancellation order, respondent preferred an appeal before the competent authority, however, the same was dismissed.
3. Being aggrieved by the aforesaid dismissal, respondent filed the Writ Petition which stood allowed by the impugned order dated 22.02.2024. The operative paragraphs of the order is reproduced hereunder:
''07. In view of the above, on unsustainable grounds petitioner has been removed from the post which was given to him by way of compassionate appointment. In compassionate appointment certain conditions are liable to be relaxed in order to show the compassion towards the family member of the deceased Government employee. The respondents instead of taking such a harsh view ought to have provided a medical aid to the petitioner so that the disease would be cured.The District Hospital after examining the petitioner has duly certified his distant vision 6/6 and 6/6 in both the eyes.
08. With the aforesaid, the impugned orders dated 28.04.2020 and 07.10.2022 are hereby set aside. The petitioner be reinstated into the service with all consequential benefits including backwages.
Accordingly, this Writ Petition is allowed with the cost of Rs.50,000/- (Rupees Fifty Thousand Only/-) for the inhuman approach of the respondents towards the family of deceased Signature Not Verified Signed by: SREEVIDYA Signing time: 20-07- 2024 18:17:10 3 WA-1199-2024 employee. The cost be paid to the petitioner in 90 days from the date of production of certified copy of this order.''
4. The appellants herein, being aggrieved by the aforesaid order passed by the learned Single Judge, have filed this appeal for quashment of the order.
5. Learned counsel for the appellants contended that the writ petition has been allowed on the ground that the Myopia is a common vision condition which can be treated by way of surgery. Whereas, the learned Single Judge has failed to consider the document/circular and order filed along with the reply in the writ petition which clearly states that Myopia in the eyes is a sufficient cause to declare a candidate unfit for employment. The learned Single Judge also failed to consider the fact that the parameters of physical fitness of a candidate in civilian post differs from that of Central Armed Police Force. Learned counsel for the appellants referred to the Annexure VI of Policy Guidelines issued on 18.05.2002 in the Revised Uniform Guidelines for Medical Examination for Recruitment of GOs and NGOs in the CAPFs and AR which reads as under :
''66. 'Myopia' if there is a strong family history of Myopia particularly if it is established that the visual defect is recent, physically growth is still expected, or if the funds appearance is suggestive or progressive myopia, even if the visual acuity is within the limit prescribed, the candidate should be declared unfit.''
6. Learned counsel for the appellant contended that considering the aforesaid aspect, the learned Single Judge could not have allowed the writ petition directing for reinstatement along with backwages and imposing cost upon the appellants. Hence, the order deserves to be set aside and appeal is Signature Not Verified Signed by: SREEVIDYA Signing time: 20-07- 2024 18:17:10 4 WA-1199-2024 liable to be allowed.
7. Per contra, learned counsel appearing for the respondent has opposed the prayer and contended that the policy referred to by the appellants is in respect of regular recruitment and not for compassionate appointment. She further contended that on both the occasions the Medical Board declared the respondent 'Unfit'. In fact, the Office Memorandum dated 07.04.2024 issued by the Ministry of Home Affairs in respect of 'Conduct of Fresh Medical Examination on Initial Joining' provides as under
(paragraph 3):] ''3. The orders of MHA issued vide letter No. I-45023/5/2012- Pers-II(Part File) dated 09.04.2013 and conveyed vide this Directorate Signal No.A.VI.1/2011-rect(SSB) dated 11.04.2013, initiated issued in background of medical of RME candidate and joining Forces after one year period. The provisions are reiterated
- ''Fresh medical examination will be conducted in respect of RME fit candidates who will find a place in merit on their joining. Deformity of a permanent nature, if any detected during afresh medical examination should be examined by a board of medical offices at composite Hospital of CAPFs before declaring such candidates unfit for service to avoid litigation at later stage. Similarly, the candidates having deformity which is not a permanent nature for unfitness in CAPFs but of temporary nature which can be cured within 6-12 weeks may declare candidates 'temporary unfit.''
8. From the aforesaid office memorandum, it is clear that Myopia is a deformative disease and not of a permanent nature for unfitness in the CAPFs but of a temporary nature which can be cured within the stipulated period of 6-12 weeks. Therefore, the Medical Board ought to have declared the respondent as 'temporary unfit'. It is not in dispute that the respondent has undergone corrective surgery and his vision was restored. In such a Signature Not Verified Signed by: SREEVIDYA Signing time: 20-07- 2024 18:17:10 5 WA-1199-2024 situation, the Board could not have rejected the candidature of the respondent outrightly. Hence, it is prayed that there is no error in the order passed by the learned Single Judge and the appeal deserves to be dismissed.
9. Heard learned counsel for the parties. Perused the record.
10. On perusal of the order impugned as well as the facts of the case, it is not in dispute that the deformity of the respondent was a curable one which ultimately the respondent got cured by way of surgery within a period of 6-12 weeks as per the mandate of the office memorandum dated 07.04.2024. The appellants have wrongly rejected the candidature of the respondent based on the report of the Medical Board treating him to be unfit, in fact, the Medical Board ought to have recorded the finding that the disease of the respondent is curable and should have suggested that the respondent is 'temporary unfit'. Learned Single Judge has rightly come to the conclusion that the disease of the respondent is a curable one. Further, the policy for regular or direct recruitment cannot be a ground for rejection of appointment for a candidate seeking compassionate appointment. Considering the aforesaid circumstances, we are of the considered opinion that the learned Single Judge has rightly directed for reinstatement of the respondent in service.
11. However, having said that, so far as the payment of backwages for the period from cancellation till reinstatement is concerned, considering the principle of 'no work no pay', it is directed that the respondent will not be entitled for any salary/backwages for the period when he had not worked but that period shall be counted for the purpose of seniority, fixation of pay, etc. Signature Not Verified Signed by: SREEVIDYA Signing time: 20-07- 2024 18:17:10 6 WA-1199-2024 Further, the imposition of cost on the appellants appears to be not justified, therefore, the cost imposed upon the appellants is also set aside. Remaining part of the order impugned shall remain intact.
12. With the aforesaid modification, the appeal stands partly allowed and disposed of.
(SUSHRUT ARVIND DHARMADHIKARI) (DUPPALA VENKATA RAMANA)
JUDGE JUDGE
vidya
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 20-07-
2024 18:17:10