Jharkhand High Court
Oshihar Prasad vs Union Of India & Ors. on 30 August, 2017
Author: Pramath Patnaik
Bench: Pramath Patnaik
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6315 of 2010
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Oshihar Prasad, son of Shri Akshay Lal Mahto, Resident of - Village- Takkipur, P.O Takkipur, District - Siwan (Bihar) presently deputed at TC & S (Training Centre and School), Meru Camp, BSF, Hazaribagh, Jharkhand. ... Petitioner Versus
1.The Union of India through the Secretary, Ministry of Home Affairs, North Block, New Delhi.
2.Director General, Boarder Security Force, C.G.O Complex, Lodhi Road, New Delhi.
3.D.I.G., T.C & S (Training Centre and School), Meru Camp, BSF, Hazaribagh, Jharkhand... ... Respondents
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CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : Mr. Saurabh Shekhar, Advocate. For the Respondents : Ms. Bakshi Bibha, Mr. Devanand Kumar, C.G.C
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C.A.V on 27.07.2017 Delivered on 30/08/2017 Per Pramath Patnaik, J.:
In the accompanied writ application, the petitioner has inter alia prayed for direction upon the respondents to consider the case of the petitioner for promotion to the higher post of Deputy Commandant w.e.f the date on which the persons junior to him have been granted promotion along with all consequential benefits and further prayer has been made for direction upon the respondents to forthwith give benefits of circular dated 17th May, 2002 which empowers the authorities to give relaxation in individual cases for considering the cases of one or other disabled persons, if they came in the category of SHAPE-II, and if they are otherwise fit for promotion.
2. The facts, in brief, is that the petitioner joined the services of Boarder Security Force on 15.11.1997 as Assistant Commandant, 2 after going through proper selection process. It has been averred that after joining, the petitioner served with utmost satisfaction to his superior authorities without any complain and has served in almost all regions of the country and international boarders. However while continuing as such, he underwent tough training and in course of such training, he suffered leakage of blood in right eye, which was treated at different places. Resultantly, petitioner's eye vision reduced to 6/9 in right eye and 6/6 in left eye, which is termed as recurrent vitreous hemorrhage. Pursuant thereto, a medical board was constituted on 08.08.2001, who recommended medical category of the petitioner as S1H1A1P1E2 (P), which was approved by the then Inspector General (Personnel) on 5.9.2001. It has further been averred that after the first Medical Board, the petitioner was instructed to go for second Medical Board, after completion of 96 weeks or in two years for re-categorization and after review the petitioner was again put under the same category i.e. S1H1A1P1E2 (P) vide its report dated 05.01.2009. As a result of such medical report, when the petitioner applied for promotion, his case was not considered lacking the medical category of SHAPE-1 and for lacking Young Officers Course, Leg-2.
3. Learned counsel for the petitioner submitted that petitioner is seeking promotion to the post of Deputy Commandant, for which following requisite eligibility criteria is specified under Rule 8 of Border Security Force (General Duty Officers) Recruitment Rules, 2001:
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(i)A direct entry officer (in the post of Assistant Commandant) is to be one with 6 years of regular services in the grade and must have qualified following courses:
(i)Young Officers Course (Commando and Weapons Training).
(ii).Medical Category SHAPE-1.
Learned counsel for the petitioner submitted that the petitioner has served more than six years of regular services in the grade of Assistant Commandant. So far second criteria, i.e. SHAPE 1, the medical fitness category to be maintained by the candidate is concerned, it has been submitted that in the medical report itself, it has been observed that the petitioner suffered problem in the eye sight for the first time at the time of training as freshly recruited officer at Tekanpur Academy of BSF and thereafter the same has aggravated over the time and further it has been held that disability has been aggravated by the service conditions. Referring to provisions for medical category and relaxation from physical training, learned counsel for the petitioner submitted that as per provision as contained in clause 19 of 8th August, 2002 of Ministry of Home Affairs, the issue of promotion in the lower medical condition has been considered and it has been decided that the personnel in lower medical category of SHAPE-2 will be treated at par with medical category SHAPE-1 and will be eligible for promotion to higher rank. Hence, the second requirement of medical category gets fulfilled. So far mandatory courses of leg -1 and leg-2 are concerned, it has been submitted that though petitioner has completed leg -1 course but so far as leg-2 course is concerned, the same has not been allowed to be completed by the respondents-authorities, but, in the case of his junior, Ashihir John 4 and other batch-mate, namely, Nanjai Singh Yadav, relaxation have been given and they have cleared Young Officers Leg-2 Training Course and thereafter, their case was considered for promotion and the petitioner has been subjected to hostile discrimination. Equating the case of the petitioner with above-referred personnel, learned counsel for the petitioner submitted that above mentioned personnel underwent injury during the course of training and during the course of combat and petitioner also underwent low medical category during the course of his services at the time of his training. It has further been submitted that due to non-promotion, the petitioner is forced to work under his batch-mates and juniors and the entire future of the petitioner seems to have met a stage of stagnancy.
4. Learned counsel for the respondents submitted that in Recruitment Rules of the B.S.F for promotion to the post of Deputy Commandant, a direct entry BSF officer has to qualify YO's Course (Weapon Course and Commando Course) and should be in SHAPE- 1 medical category besides other criteria and the petitioner is lacking both the category. Learned counsel for the respondents further submitted that the medical board about the ailment of the petitioner on a categorical question "Is it directly attributable to service?", gave the answer was in "negative" and that opinion made by the Board has never been challenged by the petitioner. Hence, it can safely be said that eye disease of the petitioner has not been caused directly due to reasons of stress and strain of any Government duty or due to any hazardous climatic conditions or due to any factor relevant to service conditions in BSF rather it 5 suggests that the problem was before his service, which the petitioner concealed. Furthermore, as per instruction issued vide MHA dated 29.10.2008, the SHAPE-2 category of the petitioner cannot be treated as equivalent to SHAPE-1 category as he has not attained 55 years of age so far. So far course in question is concerned, petitioner could not qualify the course despite given repeated opportunities. Furthermore, it is settled law in service jurisprudence that promotion is not a legal right rather it has been to be earned by an individual by fulfilling all prescribed criteria, which the petitioner is lacking and the petitioner's request for granting him promotion to the next higher rank is nothing but going beyond the ambit of statutory rules/policy/instructions.
5. After having heard learned counsels for both the parties at length and going through the materials available on record, I am of the view that the petitioner has been able to make out a case for interference for the following facts, reasons and judicial pronouncements:
(I).Petitioner, who joined the services of Boarder Security Force on 15.11.1997 as Assistant Commandant has been denied promotion for not fulfilling mainly two criteria meant for next higher promotion:
(i)Young Officers Course (Commando and Weapons Training).
(ii).Medical Category SHAPE-1.
Here, it would be apt to discuss first regarding medical category of the petitioner and exemptions therein. From perusal of the record, it appears that there are certain conditions, which exempts the incumbents to fulfill those criteria. The first one, as 6 per instructions issued vide MHA dated 29.10.2008, is that the force personnel above the age of fifty five years placed in lower medical category of SHAPE 2 (dominant eye should not be worse than 6/9) with correction) will be treated at par with medical category SHAPE-1 and will be eligible for promotion to the higher ranks in the normal manner. Since the petitioner had not attained the age of 55 years at the relevant time, hence, in that category he is not falling. But, from perusal of para 18 and 19 of the circular/instruction dated 8.08.2002 of Ministry of Home Affairs (Annexure 14), the relaxation in SHAPE-1 medical category will be admissible to officers who are wounded/injured .... while on active Government duty and he will be entitled to promotion even if he is placed in lower medical category and will be treated at par with medical category SHAPE-1. From the pleading available on record, this Court got convinced that any deficiency/deterioration/disability which has not been recorded by the Medical Board at the time of recruitment, doubt cannot be cast upon any such deficiency/deterioration/disability was before the service tenure and it is presumed that the same cropped up during the service tenure, hence, the submission advanced by learned counsel for the petitioner, the petitioner has undergone eye sight problem during course of his training/service and not prior to that, have force and there are sufficient reasons to believe such argument. Hence, the first ground for denial of promotion goes and the petitioner's low medical category shall not stand as a bar for promotion. 7
(ii).View of this Court gets fortified by the decision of Hon'ble Apex Court as rendered in the case of Sukhvinder Singh Vs. Union of India as reported in 2014 (5) AWC 4855 (SC), wherein the Hon'ble Apex Court has categorically held that any disability not recorded at the time of recruitment was to be presumed to have been caused subsequently.
(iii).So far as Young Officers Course (Commando and Weapons Training) or LEG-I and LEG - II course is concerned, as per the pleading available on record, the petitioner cleared Leg-I Course but he could not compete Leg-II Course obviously for the reason for medical ground, as per Annexure C series in supplementary affidavit dated 07.3.2017 filed by the respondents-Union of India and thoroughly discussed in paragraphs 12 of the same affidavit.
(iv).Moreover, the Circular dated 17th May, 2002, which is meant for "Introduction of Medical Category SHAPE-1 for the purpose of promotion in CPMF's also comes to fortify the case of the petitioner, paragraphs 2 of which says that :
"The question of promotion of force personnel recruited 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 be held against them now. All such force personnel, recruited with colour blindness are, therefore, eligible for promotion, despite their being in medical category SHAPE 2 (permanent) on their turn, if they are otherwise fit for promotion."
(v).In the supplementary counter affidavit dated 07.03.2017, the respondents have categorically stated that as per para 18 of instruction dated 29.7.2004 it has been clarified that DG, BSF may grant exemption in part of the mandatory course required 8 to be undergone by the officers whose low medical category is due to combat injuries and injuries attributable to government duty. In the case at hand, in view of the discussions made in the preceding paragraph, it is established that the low medical category of the petitioner has been established to be have been done after joining the services and attributable to government duty/training and moreover, other persons have been given exemptions, hence, the petitioner is also entitled for the same and similar relief.
6. In view of the aforesaid facts, reasons and judicial pronouncements, the writ petition stands allowed and the respondents are directed to consider the case of the petitioner 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.
(Pramath Patnaik, J.) Alankar/-