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2014 DIGILAW 134 (JHR)

Parikha Ram v. Union of India through Secretary, Ministry of Home Affairs, Govt. of India, New Delhi

2014-01-22

R.BANUMATHI, SHREE CHANDRASHEKHAR

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ORDER Heard the learned counsel appearing for the parties and perused the documents on record. 2. Seeking compliance of order dated 19.03.2007, whereby the petitioner was declared fit for promotion and posting in the rank of ASI (Exe), the petitioner had approached this Court in W. P. (S) No. 2288 of 2008, which has been dismissed by order dated 10.07.2012. 3. The brief facts of the case are that, the petitioner was appointed on 04.12.1974 on the post of Constable. He was promoted in the rank of Head Constable in the year, 1991. The Board of Officers of C.I.S.F. considered the matter of promotion in the rank of ASI (Exe) in the meeting of Departmental Promotion Committee held on 24.01.2007. The name of the petitioner was also recommended for promotion in the rank of ASI (Exe) and his name appeared at Sl. No. 179. Before that, the petitioner was medically examined on 10.07.2006 and he was found in SHAPEI and accordingly, he was declared fit. However, since the petitioner was not promoted and posted on the post of ASI (Exe) even after the recommendation of the Departmental Promotion Committee (DPC), the petitioner submitted representations. Still, the petitioner was not promoted in the rank of ASI (Exe) and therefore, the petitioner approached this Court in W. P. (S) No. 2288 of 2008. 4. A counter-affidavit has been filed on behalf of the respondents stating that, since on his personal appearance the petitioner was found limping on left foot, he was directed to appear before the Standing Medical Board at Saket vide office letter dated 24.03.2007. The Standing Medical Board at Saket declared him S1, H1, A2 (T24), P2 (T24), E1 and therefore, his case was again referred to FHQrs. by letter dated 19.06.2007. The matter of promotion to the petitioner was kept pending and by letter dated 19.06.2007, the petitioner was required to undergo medical examination after 24 weeks. The petitioner was directed to report to NHCC, Saket, New Delhi along with all relevant medical papers pertaining to his health, latest investigation reports, specialist opinion in respect of the disease and other documents. The petitioner appeared before the Standing Medical Board, C.I.S.F., Saket, New Delhi on 19.11.2008 and his condition was declared under medical SHAPE category as S1, H1, A2 L(P), P2(P), E1 for two years. The petitioner appeared before the Standing Medical Board, C.I.S.F., Saket, New Delhi on 19.11.2008 and his condition was declared under medical SHAPE category as S1, H1, A2 L(P), P2(P), E1 for two years. The petitioner was again examined by the Standing Medical Board, C.I.S.F., Saket, New Delhi on 25.11.2011 in which the Standing Medical Board declared the petitioner's condition under medical SHAPE category as A2 (left foot)(P), P2 (T24). In paragraph no. 17 of the counter-affidavit, the respondents have stated as under:- 17. “That with regard to averment made by the petitioner in Para3 of the LPA, it is humbly submitted before the Hon'ble Court that the petitioner was found fit for promotion to the rank of Assistant Sub-Inspector/Exe by the DPC Board held in Jan, 2007 on the basis of service record of the petitioner. Accordingly, the DPC result was forwarded to CISF HQrs. New Delhi by this office vide letter No. E31014/(10)/AdIIA/BCCL/2007/610 dated 04.02.2007. Subsequently, after being declared fit in the paper DPC, his promotion to the rank of ASI/Exe was released by CISF HQrs. New Delhi vide SO PartI No. 35/2007 issued under letter no. E31014/6(3)/Estt.II/949 dated 19.03.2007. Before giving him actual promotion, on his personal appearance, he was found limping on left foot, thus he was directed to appear before the Standing Medical Board at Saket referring his case vide this office letter No. E42099/ CISF/ BCCL/ SMB/AdmV/2007/1674 dated 24.03.2007. In the meantime, the matter was taken up with FHQ vide this office letter of even No. (1772) dated 29.03.2007 seeking advise whether to promote him or otherwise. In response to this office letter FHQrs issued instructions vide message No. E 31014/01/07 EsttI/315 dated 20.04.2007 to promote him if found SHAPEI by Standing Medical Board, Saket otherwise to refer his case again to FHQ for further action. Since, the Standing Medical Board at Saket has declared him S1, H1, A2 (T24), P2(T24), E1 his case was again referred to FHQrs vide this office letter of even No. (3166) dated 09.06.2007. In response to this office letter dated 09.06.2007, FHQrs has directed vide message No. (473) dated 19.06.2007 to send the individual for re-medical examination and to keep his promotion order pending till such time. Hence, the action taken by the respondent is as per existing rules of this organization.” 5. In response to this office letter dated 09.06.2007, FHQrs has directed vide message No. (473) dated 19.06.2007 to send the individual for re-medical examination and to keep his promotion order pending till such time. Hence, the action taken by the respondent is as per existing rules of this organization.” 5. The learned counsel appearing for the petitioner has submitted that, on 19.03.2007 when the name of the petitioner was recommended for promotion and posting in the rank of ASI (Exe), before that the petitioner was medically examined on 10.07.2006 and he was found in SHAPEI and accordingly, declared fit for promotion. The learned counsel has, thus, contended that, the subsequent degradation in medical category of the petitioner cannot be a ground for not promoting the petitioner in the rank of ASI (Exe) for which he was declared eligible in the DPC held on 24.01.2007. The learned counsel has further submitted that directing the petitioner to undergo further medical examination was arbitrary as, it has been stated that since the petitioner was found limping on left foot, he was directed to undergo further medical examination whereas, admittedly the thumb in the left foot of the petitioner was partially imputed in the year, 1990 itself and thereafter, the petitioner was promoted as Head Constable. In these facts, the learned counsel for the petitioner has submitted that the learned Single Judge has erred in dismissing the writ petition and therefore, a direction may be issued to the respondents to implement order dated 19.03.2007 and grant promotion to the petitioner in the rank of ASI (Exe). 6. Per contra, the learned counsel appearing for the respondents reiterated the stand taken in the counter-affidavit and submitted that attaining SHAPE I medical category is mandatory for promotion from one rank to another and since, the petitioner has been declared Low Medical Category by the Standing Medical Board, his promotion has been kept in abeyance. 7. Having considered the rival submissions of the parties, we are of the opinion that in view of the medical report of the petitioner declaring him in Low Medical Category, no direction can be issued to the respondents for promoting and posting the petitioner on the post of ASI (Exe). 7. Having considered the rival submissions of the parties, we are of the opinion that in view of the medical report of the petitioner declaring him in Low Medical Category, no direction can be issued to the respondents for promoting and posting the petitioner on the post of ASI (Exe). Order dated 19.03.2007 whereby, the name of the petitioner along with others were recommended for promotion on the post of ASI (Exe) indicates that the recommendation was subject to the following conditions: (a) “They are confirmed in the entry grade or in the present rank. (b) They have successfully completed the promotion cadre course of ASI/Exe. (c) They have been declared in the medical category SHAPE1 before being declared fit for promotion by the DPC. (d) No disciplinary case is pending against them and promotion should not be given during currency of punishment. (e) In the case of SC/ST candidates, it may be ensured that a certificate to the category issued by competent authority is available in their service documents. After verifying the same, the concerned individual be promoted/relieved on promotion-cum-posting to the concerned unit.” 8. The petitioner was directed, before order dated 19.03.2007 was implemented on 24.03.2007, to appear before the Standing Medical Board at Saket where he was declared not fit for promotion. The petitioner was again examined by the Standing Medical Board on 19.11.2008 and 25.11.2011 when he was declared under medical SHAPE category A2 (left foot (P), P2 (T24). 9. The petitioner has not challenged the opinion of the Standing Medical Board putting him in Low Medical Category. Referring to the contention raised by the counsel for the petitioner that the direction to undergo further medical examination after recommendation for promotion made on 19.03.2007 was arbitrary, we find that since order dated 19.03.2007 was conditional and one of the conditions was that a candidate should have been declared in medical category SHAPE1, the direction to undergo further medical examination cannot be held arbitrary. We further find that the CISF Circular No. 29/2005 dated 23.08.2005 indicates that medical category SHAPE1 is an essential eligibility condition for promotion of all combatised personnel in all grades/rank/cadres in CISF. We further find that the CISF Circular No. 29/2005 dated 23.08.2005 indicates that medical category SHAPE1 is an essential eligibility condition for promotion of all combatised personnel in all grades/rank/cadres in CISF. It is further provided that in cases where illness is found of permanent nature and the candidate is not SHAPE1, the candidate will be considered for promotion by the DPC, but the candidate will be declared unfit for promotion even if, the candidate is otherwise fit for promotion. 10. Adverting to the contention of the learned counsel for the petitioner that, since the thumb in left foot of the petitioner was partially imputed way back in the year, 1990, the reason assigned for putting the petitioner for medical examination is arbitrary, we are of the opinion that in view of the conditions for promotion, the decision to direct the petitioner to undergo medical examination was not arbitrary. Moreover, normally the Writ Court would not interfere with the opinion of the expert/medical board, unless it is found arbitrary. In “Secretary and Curator, Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity & Ors., reported in (2010) 3 SCC 732 , the Hon'ble Supreme Court has held as under: 37. The Constitution Bench of this Court in University of Mysore v. C.D. Govinda Rao held that (AIR p. 496, para 13) “normally the courts should be slow to interfere with the opinions expressed by the experts”. It would normally be wise and safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be. This view has consistently been reiterated by this Court as is evident from the judgments in State of Bihar v. Dr. Asis Kumar Mukherjee, Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, Central Areca Nut & Cocoa Mktg. & Processing Coop. Ltd. v. State of Karnataka and Dental Council of India v. Subharti K.K.B. Charitable Trust. 11. In “Union of India & Anr. Vs. Talwinder Singh”, reported in (2012) 5 SCC 480 , the Hon'ble Supreme Court has held as under:- 10. In Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity this Court while placing reliance upon a large number of earlier judgments including the Constitution Bench judgment in University of Mysore Vs. C.D. Govinda Rao held that ordinarily, the court should not interfere with the order based on opinion of experts on the subject. In Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity this Court while placing reliance upon a large number of earlier judgments including the Constitution Bench judgment in University of Mysore Vs. C.D. Govinda Rao held that ordinarily, the court should not interfere with the order based on opinion of experts on the subject. It would be safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be. 12. In view of the aforesaid discussion, we find no merit in the present appeal. Accordingly, the Letters Patent Appeal is dismissed.