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Himachal Pradesh High Court · body

2018 DIGILAW 1905 (HP)

Jaiprakash v. Union Of India

2018-11-01

AJAY MOHAN GOEL, SURYA KANT

body2018
JUDGMENT Surya Kant, C.J. - The petitioner seeks a direction to Sashastra Seema Bal to formally promote him in the rank of Inspector (Communication), in furtherance of order dated 23.07.2018 (Annexure P-2). The aforesaid order has been issued by the Government of India (MHA), through Director General, Sashastra Seema Bal and the relevant extracts of the order are to the following effect:- "7. On the basis of further recommendation of DPC, the Competent Authority has also approved promotion of following Sub-Inspectors(Communication) to the rank of Inspector (Communication) against the vacancy year 2018 subject to regaining medical category SHAPE-I upto 31st December 2018. Their promotion will b released by FHQ after receipt of report of regaining his medical SHAPE-I category from concerned unit alongwith the leastest DE/Vigilance clearance certificate. The units concerned are requested to take up their cases with FHQ well in time so that their promotion order could be released accordingly. In case, the officials fail to regain SHAPE-I medical category upto 31st December, 2018, their cases would be considered afresh in the next vacancy year:- 8. The inter-se-seniority will be maintained at FHQ, SSB New Delhi in the same order as in the feeder grade irrespective of their date of date of joining/assumption of charge as Inspector (Communication). (P. Namgial) Joint Deputy director (Pers-III)" 2. It may be mentioned that the petitioner joined as Constable (GD) in the respondent-organization on 22nd March, 1990. He was thereafter selected to the rank of Constable (Telecommunication) on 25th April, 1991. He was further promoted as Head Constable (Tele) on 28th January, 2002. 3. The petitioner unfortunately met with an accident while on duty at Training Centre, Faridabad, during the course of DPC from the rank of Head Constable (Tele) to the post of Assistant Sub Inspector (Tele). His right hand was injured due to which third finger was badly injured and fourth finger was cut down. Regardless of the said disability, the petitioner was promoted as Assistant Sub Inspector(Tele) on 11.11.2005. He was again promoted as Sub Inspector on 23rd May, 2012. It is thereafter that vide above reproduced order dated 23 rd July, 2018, the competent Authority, on acceptance of the recommendations made by the DPC, approved the name of the petitioner for promotion in the rank of Inspector, though subject to "regaining medical category SHAPE-I" upto 31st December, 2018. 4. It is thereafter that vide above reproduced order dated 23 rd July, 2018, the competent Authority, on acceptance of the recommendations made by the DPC, approved the name of the petitioner for promotion in the rank of Inspector, though subject to "regaining medical category SHAPE-I" upto 31st December, 2018. 4. As regards to the medical category SHAPE-I, it appears that the petitioner was examined by the Medical Board on 06.07.2018 (Annexure P-1) and its relevant Clauses 10 and 15, are to the following effect:- 10 Any specific restriction regarding employment: Fit for all duties, which do not involve crawling, running, jumping, long marching, hill climbing and handling of weapons. 15 Fit/Unit for civil employment: Fit (further refer paragraph 4.14 (b) of Medical Manual, according to which Officer/Men who are wounded/injured during the field firings/accidental firing/explosion devices and due to accidents while on active Government duty in India or abroad will be eligible for promotion in the following SHAPE Categories:- i)S1H1A2P1E1 ii) S1H1A1P2E1 iii) S1H2A1P1E1 iv) S1H1A1P1E2 v) S1H2A1P1E2 5. It may, thus, be seen that the Medical Board was of the view that owing to the disability caused due to accident while on active Government duty, the petitioner was eligible for promotion in SHAPE category of S1H1A2P1E1. 6. The competent Authority, however, appears to have not agreed to those recommendations of the Medical Board and consequently the petitioner''s promotion has been withheld. 7. Learned Counsel for the petitioner relies upon Rule 4.14 (b) of the Medical Manual of the respondent-Organization and it reads as follows:- "4.14 Relaxation in SHAPE-1 Medical Category. The relaxation in SHAPE-1 medical category will be admissible to the following two categories of CPMFs personnel to the extent detailed below:- b) Officers/men who are wounded/injured during the field firings/accidental firings/explosion on mines or other explosive devices and due to accidents while on active Government duty in India or abroad will be eligible for promotion in the following SHAPE categories:- i)S1H1A2P1E1 ii) S1H1A1P2E1 iii) S1H2A1P1E1 iv) S1H1A1P1E2 v) S1H2A1P1E2" 8. It is, thus, urged that the Rule contemplates relaxation in SHAPE-1 Medical Category in case of Officers, who are wounded/injured during the field firings/accidental firing/explosion devices and due to accidents while on active Government duty rendering them eligible for promotion in various SHAPE categories including S1H1A2P1E1, as has been recommended by the Medical Board in the petitioner''s case also. It is, thus, urged that the Rule contemplates relaxation in SHAPE-1 Medical Category in case of Officers, who are wounded/injured during the field firings/accidental firing/explosion devices and due to accidents while on active Government duty rendering them eligible for promotion in various SHAPE categories including S1H1A2P1E1, as has been recommended by the Medical Board in the petitioner''s case also. It is urged that denial of relaxation despite there being an express provision to that effect, renders the action of the competent Authority arbitrary and untenable in law. 9. On the other hand, learned Standing Counsel for the respondents vehemently urges that relaxation cannot be claimed as a matter of right. 10. We have given our thoughtful consideration to the rival submissions of the parties. It appears to us that the case of the Officers, who have been wounded or injured in the circumstances illustrated in sub Clause (b) of Rule 4.14 of the Manual reproduced above including due to accident while on active Government duty, require a special sympathetic and dispassionate consideration at the hands of the Authorities. It is to keep the morale of the force high that such Officers, who have become unfit or disabled for the reasons beyond their control, deserve to be suitably accommodated. The case of the petitioner appears to be falling in such exceptional situations. 11. We, thus, dispose of this writ petition with a direction to the Director General of Sashastra Seema Bal to reconsider the petitioner''s claim for grant of promotion in the SHAPE category for which the Medical Board has found him eligible and fit. Let an appropriate decision be taken within a period of one month from the date of receipt of copy of this order. 12. The petition stands disposed of in the above terms, so also pending miscellaneous application(s), if any. Copy dasti.