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2014 DIGILAW 1181 (JHR)

Ram Prakash Jha v. Union of India

2014-12-01

SUJIT NARAYAN PRASAD

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Order In this writ petition, the petitioners have challenged the order dated 19.1.2006, by which they have been terminated from service. Against the said order, the petitioners had preferred appeal before the appellate authority, but the same has also been rejected by order dated 12.5.2006. 2. The brief facts, as has been argued on behalf of the petitioners, is that the petitioners had been appointed as constables under the Central Reserved Police Force in terms of an advertisement after following due procedures on 27.5.2003 and 31.3.2003 respectively. After being appointed, the petitioners had started discharging their duties. Pursuant to the reports submitted by the C.B.I with respect to commission of irregularities in the said appointment, the petitioners along with other 64 persons had been directed to undergo remedial examination, which was held on 21.9.2005. On medical reexamination, the petitioner No.1 was not found medically fit on the ground of (a) left side DNS (b) left side hydrocele (c) B/L vercose vein with hypo piguntetion of B/L feet. On medical reexamination, the petitioner No.2 was not found medically fit on the ground of (a) knock knee (b) deformed Arch of feet, B/L i.e. partial tallpes eqhino venus deformity (club feet) (c) Tania verniclolur warte on back of neck. Thereafter, the petitioners had been terminated from service by the impugned order in exercise of power conferred under sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965. 3. Learned counsel for the petitioners submitted that the petitioners had been appointed after medical examination, they had been permitted to discharge their duties, but they had been directed to undergo remedial examination on a complain made by the C.B.I. Once the petitioners had been medically examined and they had been directed to discharge their duties as constables, there was no occasion to again direct them to undergo remedial examination. The petitioners had been terminated from service without following due procedure of law in exercise of power conferred under sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965. The petitioners had been terminated from service without following due procedure of law in exercise of power conferred under sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965. Since the petitioners had been appointed against the permanent sanctioned posts, they were entitled to be proceed departmentally under Article 311(2) of the Constitution of India, but without following due procedure of law, they have been terminated without considering the fact that sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965 will not be applicable because the posts on which the petitioners had been appointed were permanent in nature. As per the definition given in the Central Civil Service (Temporary Service) Rules, 1965, the petitioners are not coming under the purview of the said rules. It has been submitted that 66 enrolled persons including the petitioners had been remedically examined, but most of them are in service, though they have been found medically unfit. It has been further submitted that other 64 enrolled persons had also been terminated on the ground of medical unfitness, but they have been taken back in service. The respondents have adopted pick and choose policy and they have not reinstated the petitioners in service, which is discriminatory. Learned counsel placed reliance on the judgments rendered by this Court in Anil Kumar Das & Ors. Vs. The Union of India & Ors. reported in 2011 (4) JLJR 215 and in Debabrata Shit Vs. Union of India through the Inspector General of Police, B/S, Central Reserve Police Force, Patna & Ors. reported in 2012 (2) JCR 466 (Jhr). 4. On the other hand, learned counsel for the respondents has submitted that the petitioners had been appointed on the post of constable under the C.R.P.F. A complain was made before the C.B.I that some enrolled persons have been appointed, who are not medically fit. On the basis of the said complain, the respondents had directed 66 enrolled persons including the petitioners to appear for remedial examination. In the remedial examination, it was found that the enrolled persons are medically unfit, as such the respondents have rightly terminated them from service. On the basis of the said complain, the respondents had directed 66 enrolled persons including the petitioners to appear for remedial examination. In the remedial examination, it was found that the enrolled persons are medically unfit, as such the respondents have rightly terminated them from service. So far as the fact as to whether Central Civil Service (Temporary Service) Rules, 1965 will be applicable to the petitioners, it has been argued that the provision of Central Civil Service (Temporary Service) Rules, 1965 will be applicable on the ground that the respondents have already made reference of the same in the appointment letter issued in favour of the petitioners wherein it has been stated in Column ‘Ga’ that after joining in the C.R.P.F, the C.R.P.F Rules, 1955 will be applicable. Learned counsel drew attention of this Court towards Rule 16 of the C.R.P.F Rules, 1955, which is being quoted herein below. “16. Period of Service – (a) All members of the Force shall be enrolled for a period of three years. During this period of engagement, they shall be liable to discharge at any time on one month’s notice by the appointing authority. At the end of this period those not given substantive status shall be considered for quasi-permanency under the provision of the Central Civil Services (Temporary Service) Rules, 1965. Those not declared quasi-permanent under the said rules shall be continued as temporary Government employees unless they claim discharge as per schedule to the act. Those who are temporary shall be liable to discharge on one month’s notice and those who are quasi-permanent shall be liable to discharge on three months’ notice in accordance with the said rules, as amended from time to time.” 5. It has been incorporated in the C.R.P.F Rules, 1955 that the enrolled persons, who have not completed three years of service, will be dealt with under the provision of Central Civil Services (Temporary Service) Rules, 1965, as such the order of termination has rightly been passed under the provision of Central Civil Services (Temporary Service) Rules, 1965, which is in consonance with the rules as contained in Rule 16 of the C.R.P.F Rules, 1955. So far as the contention regarding the judgments, which have been relied upon by learned counsel for the petitioners, it has been submitted that the same are with respect to colour blindness and the persons of those cases have been directed to reinstate in the service on the basis of the notice issued by the Ministry of Home Affairs dated 31.7.2002. This Court has held in Paragraph 5 of the judgment rendered in the case of Anil Kumar Das, supra, as follows : "5. The next argument is that the Ministry of Home Affairs issued a Circular/Notification dated 31st July, 2002. The said Circular is quoted as under: - "Ministry of Home Affairs (Pers-II) Subject: Prescribed medical category SHAPE-1 for combined personnel of CPHE. Reference DG, CRPG U.O. No. P-VII/I. Pers. I dated the 19th July, 2002 on the subject mentioned above wherein they have sought clarification with regard to the promotion of force personnel with colour blindness for the following categories:- (i) In whose cases colour blindness was not a disqualification. (ii) In whose cases though colour blindness was a disqualification but the same could not be detected at the time of their recruitment. (iii) In case force personnel with colour blindness could not be promoted, whether they are to be medically invalidated out of service. 2. This has been examined in this Ministry, Attention is invited to this Ministry's U.O. Of even number dated the 17th May, 2002 which does not distinguish between force personnel, in whose cases, colour blindness was a disqualification or otherwise. It simply states that, whosoever, has been selected with colour blindness, whether by ignorance or otherwise, cannot be treated differently after putting so many years of serve. The illness cannot be held against them and, therefore, they will be eligible for promotion, despite their colour blindness, if they are otherwise fit for promotion. 3. This clarifies position regarding categories (ii) and (iii) in para-1 above, such question regarding the category (iii) does not arise at all. (Sd/-) (D.M. Mishra) Director (Pers.) Tele No. 3092956 DG, CRPF (Shri Man Singh Rawat, Addl. DIG) MHA U.O. No. I – 45020/52/2001-Pers.II dated the 31.7.2002 Copy for information to: 1. DIG: BSF/ CISF/ ITBP/ SSB, New Delhi. 2. Assam Rifles.” The aforesaid Circular deals with the promotion of personnel in Force with 'Colour Blindness”. (Sd/-) (D.M. Mishra) Director (Pers.) Tele No. 3092956 DG, CRPF (Shri Man Singh Rawat, Addl. DIG) MHA U.O. No. I – 45020/52/2001-Pers.II dated the 31.7.2002 Copy for information to: 1. DIG: BSF/ CISF/ ITBP/ SSB, New Delhi. 2. Assam Rifles.” The aforesaid Circular deals with the promotion of personnel in Force with 'Colour Blindness”. On bare perusal of the aforesaid Circular, it evidently grants liberty to the employees of the Paramilitary Force to continue in service despite Colour Blindness, if they are otherwise fit for promotion or continuation in service. This argument has also not been disputed by the counsel appearing on behalf of the Union of India." 6. It has been submitted that the nature of appointment of the petitioners was purely temporary, but likely to continue. As per the advertisement, the petitioners have no right to continue in the service, if they were not found medically fit. The petitioners were supposed to discharge the duty of Para Military Force with all efficiency, but if they are medically unfit, it is not expected from them to discharge the duty with all efficiency. Learned counsel for the respondents has relied upon a judgment of Hon’ble Apex Court in Kendriya Vidyalaya Sangathan Vs. Arunkumar Madhavrao Sinddhaye & Anr. reported in (2007) 1 SCC 283 . By referring Paragraphs 10 & 17 of the said judgment, it has been submitted that the respondents have got right to terminate an employee on the basis of the terms and conditions of the appointment letter. 7. Heard the parties, perused the record. 8. The petitioners have been appointed as constable under the C.R.P.F by virtue of an advertisement issued by the C.R.P.F. Initially they had been found medically fit, thereafter, they were permitted to discharge their duties. Subsequently, it was found that some of the enrolled persons are not medically fit. After knowing this fact, the respondents-C.R.P.F had directed 66 candidates including the petitioners to undergo medical reexamination. In the medical reexamination, the petitioners were found medically unfit. The petitioner No.1 was detected with three deformities (a) left side DNS (b) left side hydrocele (c) B/L vercose vein with hypo piguntetion of B/L feet. The petitioner No.2 was detected with three deformities (a) knock knee (b) deformed Arch of feet, B/L i.e. partial tallpes eqhino venus deformity (club feet) (c) Tania verniclolur warte on back of neck. The petitioner No.1 was detected with three deformities (a) left side DNS (b) left side hydrocele (c) B/L vercose vein with hypo piguntetion of B/L feet. The petitioner No.2 was detected with three deformities (a) knock knee (b) deformed Arch of feet, B/L i.e. partial tallpes eqhino venus deformity (club feet) (c) Tania verniclolur warte on back of neck. After coming to conclusion that the petitioners are not medically fit, the respondents have taken a decision not to continue them in service in exercise of power conferred under sub-rule (1) of Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965. 9. So far as the contention of learned counsel for the petitioners that the Central Civil Service (Temporary Service) Rules, 1965 will not be applicable in view of the fact that the appointment of the petitioners was made against the permanent posts and as per the definition of temporary service given under Section 2(d) of the Central Civil Service (Temporary Service) Rules, 1965, the petitioners do not come under the purview of the said definition, as such in exercise of power conferred under Central Civil Service (Temporary Service) Rules, 1965, their dismissal is incorrect and improper. 10. But after perusing the C.R.P.F Rules, 1955, I find that there is specific reference under Rule 16 wherein it has been laid down that the provision of Central Civil Service (Temporary Service) Rules, 1965 will be applicable to the enrolled persons who have not completed their probationary period. 11. However, in view of Rule 16, the impugned order passed by the competent authority in exercise of power conferred under Central Civil Service (Temporary Service) Rules, 1965, cannot be questioned. 12. So far as the contention of learned counsel for the petitioners that the persons of the above cited cases have already been reinstated in service, though they have been found medically unfit on the ground of colour blindness, in my view, these persons have been given the benefit of the circular issued by the Ministry of Home Affairs dated 31.7.2002. Hence, the petitioners cannot be given the benefit of the said judgments. In this case, the petitioners are suffering from disease, which is quite different from colour blindness. 13. Since the C.R.P.F has to maintain internal security, physical fitness of the enrolled persons is sine qua non. Hence, the petitioners cannot be given the benefit of the said judgments. In this case, the petitioners are suffering from disease, which is quite different from colour blindness. 13. Since the C.R.P.F has to maintain internal security, physical fitness of the enrolled persons is sine qua non. As the petitioners are suffering from physical deformities, as has been detected on fresh medial examination, the respondents-CRPF which is the appointing authority, has got prerogative to judge who can discharge the duty with all efficiency. 14. In that view of the matter, since the appointing authority has come to the finding that the petitioners are suffering from physical deformities and they are not fit to discharge the duty in the C.R.P.F with efficiency, the decision taken by the disciplinary authority needs no interference by this Court. 15. This writ petition is, accordingly, dismissed.