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2009 DIGILAW 501 (ORI)

SAYED SARWAR ALI v. GOVT. OF INDIA

2009-07-13

B.P.DAS, S.R.SINGHARAVELU

body2009
JUDGMENT : S.R. Singharavelu, J. - The writ Petitioner was initially appointed on 5.11.1980 as a Constable and was later on transferred to 8th Battalian C.R.P.F., Gauhati Assam and had so served different places of Indian in Punjab, Delhi, U.P., Bihar & Rajsthan under the 8th Battalian. After undergoing the work of "Shooter", he was subsequently transferred to Neemuch in the State of Madhya Pradesh. 2. Petitioners suffers some minor dental ailment. The Petitioner underwent some ailment and after treatment, he was posted at CIPA Bombing place. He was subsequently declared medically invalidated and the. C.R.P.F authority had ordered so on 11.5.1988. In view of such order, he was removed from service even after satisfactory service of 8 years. After recovery from illness, he was denied of any suitable post in the rank of Class-IV. Even though he was entitled to pension after successful completion of 8 years of service, the same was not extended. 3. While all other similarly situated employees have got the benefit of rehabilitation, this Petitioner who after treatment was found fit by medical certificate datd. 16.12.2000 could not get a suitable post and could not also get the pensionary benefit. Therefore, he has prayed for either for pension or for a suitable job. 4. The counter filed by the opposite party Nos. 1 to 6 contended that it is true that the Petitioner remained under treatment from 1986 in the various hospital as per details given 1. Homeopathic Treatment from Khurda (Orissa) 2. R.K. Mission Hospital, Itanagar (ACP) 3. Leprosy office, Naharlagun 4. Group Centre, CRPF, Hospital, Rampur (UP) 5. Base Hospital-III, CRPF, Gauhati (Assam) 6. State Standing Medial Board, (ACP). He was invalidated from service as per rules based upon opinion dt. 22.12.1987 of the medical Board. The Petitioner was invalidated from 11.5.1988. Therefore, question of rehabilitation may not arise. The Petitioner has undergone treatment at Leprosy Hospital, Naharlqagun. There was no improvement in the condition of the Petitioner. He is not fit for duty involving use of fire arms. He is fit for duties other than this involving use of fire-arms. 5. Although the State Standing Medical Board opined that the Petitioner was fit for service other than those not involving fire arms, yet the post of 'Peon' in Civil Deptt. He is not fit for duty involving use of fire arms. He is fit for duties other than this involving use of fire-arms. 5. Although the State Standing Medical Board opined that the Petitioner was fit for service other than those not involving fire arms, yet the post of 'Peon' in Civil Deptt. Is having different nature of duty under recruitment roll and that of paramilitary forces like CRPF for which all the Peons are bound to undergo basic training of handling of various weapons including conduct of Musketry training and Rage classification, firing practice. 6. As regards pension, any person to be not less than 10 years of qualifying service cannot be granted as per Rule 49 of CCS Pension Rules, 1972. 7. Regarding rehabilitation of similarly situation person, those persons who received injury and decease during service were rehabilitated after due critical examination by the Medical Board. But the case of the Petitioner relates to re-employment after proceeding on invalidation. Therefore, the petition may be dismissed. We have heard the learned Counsels for both sides. 8. This is an unfortunate plight of an young man who has undergone eight years of service in the CRPF, 8th Battalion and he had rendered his service starting from Gauhati in Assam staying in various places of India in Punjab, Delhi, U.P., Bihar, Rajasthan under the 8th Battalion. He had also served under Bombing place as CIPA. He became a patient and as seen from the counter, he was afflicted with leprosy. 9. True it is that he has been invalidated by Medical Board w.e.f. 11.5.1988. Equally true it is that he seeks re-employment claiming that he had been cured and could lead a normal life. 10. In this context, it has to be mentioned that even though pensionary benefits based upon his past satisfactory service was claimed by the Petitioner that could not be not extended by the opposite parties due to the embargo in CCS Pension Rules, 1972 according to which there shall be completion of 10 years qualifying service which the Petitioner does not possess. 11. The Petitioner claims re-employment even after invalidation by contending that similarly situated persons were extended of such benefits. In para 23 of the counter it was admitted that the Department had rehabilitated the personnel who received injury and disease during their service and due to which not able to perform the active duties. 11. The Petitioner claims re-employment even after invalidation by contending that similarly situated persons were extended of such benefits. In para 23 of the counter it was admitted that the Department had rehabilitated the personnel who received injury and disease during their service and due to which not able to perform the active duties. Such personnel were rehabilitated after due critical examination by the Medical Board. 12. In this case also, the Petitioner suffered disease only during his service. It has also been mentioned so in the counter stating his decease as leprosy. Even in para 1 of the counter, there were 6 hospitals mentioned in which treatment was given to this Petitioner right from 1986 before ever his invalidation was put into effect on 11.5.1988. Thus, it is made clear that the Petitioner had been afflicted with diseases during service. As admitted in para 23 of the counter, the Petitioner is entitled for rehabilitation. 13. It cannot be argued that rehabilitation is different from re-employment. It is because of the removal of service, rehabilitation is required by way of offering new appointment to a suitable post. If there is no discontinuance of earlier service, the question of rehabilitation will not at all arise. Furtherduring service only Petitioner was afflicted with leprosy. Therefore, to say, rehabilitation cannot be made as re-employment is unacceptable. It is a welfare measure and cannot be denied when rehabilitation amounts to reemployment. By considering all these aspects only and also by considering the age of the Petitioner as 38, the following order was passed by this Court on 17.10.2008. Heard in part. Place this matter on 3rd November, 2008 for further hearing. In the meanwhile, on behalf of opposite parties, an affidavit shall be filed indicating whether any Peon and Dufftary in the establishment of opposite party No. 6 has retired and there is any consequential vacancy from January, 1992 till date. Today, it is submitted by the Govt. Advocate that there is no vacancy as the same had been filled up. 14. Today, it is submitted by the Govt. Advocate that there is no vacancy as the same had been filled up. 14. While there was an order dated 17.10.2008 by this Court to mention by way of affidavit as to whether there is any vacancy of Peon and Dufftary in the establishment of opposite party No. 6, then it is implied that such requirement of information in such circumstances and facts of the case is only to explore the possibility of appointing the Petitioner in that post. That was the scope and ambit of the hearing and order. But unfortunately, before ever report about the retirement and consequential vacancy is made before this Court, such vacancies were said to have been filled up. without even intimation to this Court. Therefore, we have no other alternative except to direct the opposite party No. 6 to immediately appoint the Petitioner in a suitable supernumerary post to be created in this regard and pay back wages from 1.11.2008. This order in retrospective nature is made because the earlier direction dated 17.10.2008 made by this Court was not adhered to or not complied with by the opposite party No. 6 nor was satisfactory explanation therefore given. According to the principles of Natural Justice and as also similarly situated personnel were admittedly rehabilitated, this Petitioner needs to get appointment at the hands of the opposite party No. 6 in a suitable supernumerary post to be created w.e.f. 1.11.2008. Back wages shall also be paid from that date. The writ petition disposed of accordingly.