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2002 DIGILAW 176 (PAT)

Union Of India v. Kaulesh Kumar Jha

2002-02-06

NAGENDRA RAI, R.S.GARG

body2002
Judgment Nagendra Rai, J. 1. The appeal is barred by limitation. 2. After having heard learned counsel for the parties and taking into consideration the averments made in the limitation petition, we are satisfied that sufficient ground has been made out to condone the delay. Accordingly, the delay in filing this appeal is condoned. 3. The Union of India and the Officers of the Central Reserve Police Force (hereinafter referred to as the CRPF) are the appellants who being aggrieved by the order dated 16.2.2001 passed by the learned Single Judge in CWJC No. 6112 of 1999 whereby he has allowed the said writ application filed by the writ petitioners/respondents and directed the appellants to consider their cases afresh in the light of the medical test in which they have been found physically and medically fit for their absorption/appointment in the main stream of CRPF as Constable and issue necessary order and communicate it to the writ petitioners/respondents within two weeks of the receipt/production of a copy of the order have filed this appeal. The learned Single Judge further ordered that after their appointment in CRPF as regular constable, the respondents shall not be entitled to any other benefit for the past period except the benefit of their seniority. 4. The facts which are not in dispute are that on 1.9.1989 126 Auxiliary Battalion of CRPF was raised by the Central Government. Initially appointments were made of several persons including the writ petitioners/respondent as auxiliary constable for a period of six months. Respondent No. 1 was appointed in the year 1991 whereas respondent No. 2 was appointed !n the year 1989. The said period was extended at different intervals with the approval of the Govt. of India. The writ petitioners/ respondents continued along with others up to 31.3.1994 when the decision was taken for regularisation of existing Auxiliary Battalion in the regular CRPF battalion and a Board consisting of different officers was constituted to carry out screening of the existing Auxiliary personnel for their suitability for recruitment as regular constables/followers. It was further decided that all the constables and followers of Auxiliary Battalion shall be subjected to all recruitment tests except physical efficiency test. Thereafter the Screening Board conducted the medical examination of the Auxiliary constables/followers as part of the screening test. It was further decided that all the constables and followers of Auxiliary Battalion shall be subjected to all recruitment tests except physical efficiency test. Thereafter the Screening Board conducted the medical examination of the Auxiliary constables/followers as part of the screening test. No phycial efficiency test was conducted in the screening test The writ petitioners/respondents were declared medically unfit and their services were terminated with effect from 31.9.1994. A copy of which has been annexed as Annexure 3 to the writ application. Respondent Mo. 1 was found medically unfit on the ground of defect colour vision, hypertension, haemmorhoid and respondent No. 2 was found to be suffering from colour blindness. 5. Thereafter the writ petitioners/respondents and others filed CWJC No. 3355 of 1994 challenging the aforesaid order of termination. This Court did not interfere with the order of termination but directed the Deputy Inspector General of Police, CRPF to examine the grievances of the respondents with reference to the relevant materials available with them. On such examination, if the Deputy Inspector General of Police CRPF was satisfied that there was no proper medical check up of the respondents, then he was to make an arrangement for fresh medical check up and other screening test etc. in accordance with law. It appears that in pursuance of the said order again the respondents/writ petitioners were screened by the Medical Board and the Board found them medically unfit and accordingly, their cases were not considered for their appointment. 6. It appears that Directorate of CRPF, New Delhi invited application from the writ petitioners/respondents and other similarly situated persons for appointment in the follower trade of CRPF (vide Annexure-7 to . the writ application). It was clearly mentioned therein that if the writ petitioners/ respondents and others were desirous to join the aforesaid post of follower trade in CRPF, then their cases may be considered on filing their application and then they would be subject to medical test and on their being found fit they will be appointed. Thereafter, writ petitioners/respondents applied for appointment in follower trade and a call letter was sent to them from the office of Deputy Inspector General of Police, CRPF, Jamshedpur (Bihar) by letter dated 23.5.1998 informing them to appear on 12.6.1998 for the purpose of physical work, efficiency and medical test. Thereafter, writ petitioners/respondents applied for appointment in follower trade and a call letter was sent to them from the office of Deputy Inspector General of Police, CRPF, Jamshedpur (Bihar) by letter dated 23.5.1998 informing them to appear on 12.6.1998 for the purpose of physical work, efficiency and medical test. The respondents appeared and were found fit for the post of Follower Trade and accordingly, the office of the DIG, CRPF, Jamshedpur (Bihar) issued an order of appointment on 29.7.1998 with a direction to report Group CRPF, Muzaffarpur and consequently they joined. Subsequently, the respondents/writ petitioners filed present writ application in the year 1999 challenging the order of termination dated 31.3.1994 and directing the authorities for their absorption as Auxiliary Constable in CRPF on regular and permanent basis. 7. The writ petitioners/respondents case is that after their appointment in 1991 and 1989 respectively, they continued to work for five years as temporary Auxiliary constable in 126 Auxiliary Battalion. Later on when decision was taken to convert the aforesaid 126 Auxiliary Battalion in a regular Battalion of CRPF, they were subjected to medical test, but the Medical Board wrongly held them to be medically unfit. The direction given by this Court in the writ application to again re-examine the petitioners/respondents was not carried out truely and only show of examination was made and they were again found unfit. Later on in 1998 at the time of appointment as a Follower Trade in CRPF, they were found medically fit and they were engaged as Follower and as such the very ground given for their termination in 1994 that they were medically unfit was a device to get them out from the service. 8. The stand of the respondents/appellants on the other hand is that different tests are prescribed for appointment to the post of Follower and the Constable in the regular CRPF. When the case of the writ petitioners/respondents for appointment as a constable in regular CRPF was taken, they were medically found unfit on the examination by the Board. The said respondents/writ petitioners were re-examined again and they were found unfit. Later on when the posts of follower trade were vacant, the writ petitioners/respondents were given option to join the said post subject to medical test for the purpose of appointment of follower and for that they were found fit and engaged as Follower. The said respondents/writ petitioners were re-examined again and they were found unfit. Later on when the posts of follower trade were vacant, the writ petitioners/respondents were given option to join the said post subject to medical test for the purpose of appointment of follower and for that they were found fit and engaged as Follower. In the said case, they were not subjected to medical test as required in terms of the Rule for appointment to the regular CRPF constable. The writ petitioners/respondents having accepted the post of Follower Trade, now they cannot be allowed to claim for their being appointed as regular CRPF constable for which different medical test is required. 9. The learned Single Judge after hearing the learned counsel for the parties allowed the claim of the writ petitioner/respondents on the ground that as they have been found medically fit in the Follower Trade of CRPF, the stand of the appellants that they were not found medically fit for being appointed as regular stream of the force was wholly untenable when it has not been shown that two different criteria are prescribed, one for the Follower trade and the other for the regular constable in the CRPF. 10. The Seamed counsel appearing for the appellants submitted that the learned Single Judge has wrongly held that no different criteria for medical test has been prescribed for the Follower Trade and the regular constable in CRPF. It was clearly stated in the counter affidavit that subse- quently they were medically examined only for the purpose o! engagement as Follower Trade and in that test they were found fit which clearly means that the criteria for appointment as regular constable in CRPF is a different one, but the learned Single Judge ingnored the aforesaid statement and allowed the writ application. In the memorandum of appeal in paragraph 10, it is stated that criteria for appointment of Constable and Followers are different. The same is reproduced below: 495_Umed _A.htm 11. From perusal of the same, it Is clear that in case of Constable, a detailed medical examination as per instruction is required, whereas for appointment to the post of Follower no detailed examination is prescribed. Colour blindness is not disqualification for appointment as Follower, whereas the same is disqualification for appointment of Constable. 12. From perusal of the same, it Is clear that in case of Constable, a detailed medical examination as per instruction is required, whereas for appointment to the post of Follower no detailed examination is prescribed. Colour blindness is not disqualification for appointment as Follower, whereas the same is disqualification for appointment of Constable. 12. Learned counsel appearing for the writ petitioners/respondents however objected that the new material brought on the record in the memo of appeal cannot be taken into consideration at this stage. In our view, the said objection is without any substance. There was clear averment in the counter affidavit that test of the writ petitioners was held only for the post of Follower and as such it was not necessary for the appellants to show before the Court the relevant provision fixing different criteria. Thus the objection raised by the writ petitioners/respondents is wholly unfounded. 13. Admitted fact Is that the CRPF is a disciplined force and it has Rules for recruitment to different posts. The same should be strictly followed and if a person is not found medically fit, the Court will not issue a direction to appoint an unfit person to become a member of a disciplined force. The services of writ petitioners/respondents were terminated in 1994 as stated above. They came to this Court and this Court did not find any fault with the said order of termination and only observed that the authority may on being represented by the writ petitioners/respondents consider holding of another examination to remove the doubt from the mind of the writ petitioners/respondents. Again tests were held and they were found unfit and as such the order of termination attained finality. Later on when the post of Follower trade became vacant in the CRPF, the writ petitioners/ respondents were given option to apply for the said post and they were to be appointed on being found medically fit for the post of Follower. They appeared and were found medically fit with regard to requirements for the post of Follower as stated above. The medical requirements for the post of Follower are quite different and are not as rigorous as in the case of regular constable of CRPF. They appeared and were found medically fit with regard to requirements for the post of Follower as stated above. The medical requirements for the post of Follower are quite different and are not as rigorous as in the case of regular constable of CRPF. The stand of the writ petitioners/respondents that as they were found medically fit for the post of Follower, they be treated to have been medically fit for the post of Constable is wholly unfounded and unjustified. 14. As the writ petitioners/respondents were already found medically unfit for being appointed as regular post of Constable as stated above, no direction could be given to the authorities to absorb them as such. Sympathy and sentiments will not persuade this Court to issue direction to the authorities to do what is not permissible in law. 15. Accordingly, the order dated 16.2.2001 passed by the learned Single Judge in CWJC No. 6112 of 1999 is set aside. The appeal is allowed. R.S.Garg, J. 16 I agree.