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2023 DIGILAW 658 (UTT)

Neeraj Tikedar v. Union of India

2023-12-05

MANOJ KUMAR TIWARI, VIVEK BHARTI SHARMA

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JUDGMENT : Manoj Kumar Tiwari, J. This intra-court appeal is filed by writ petitioner challenging the judgment and order dated 19.07.2022, passed by learned Single Judge, in Writ Petition No. 846 (S/S) of 2018. 2. Operative portion of the impugned judgment is reproduced below : “9. In that view of the matter, since consistently the medical examination, which was conducted upon the petitioner either by the Medical Board of the respondents’ department or by the Chief Medical Officer of the State, the petitioner had been consistently found to be suffering from medical discrepancies, due to which he could not be considered for grant of compassionate appointment, as against the post for which, he has applied. 10. In view of the said apparent physical anomaly, the rejection of the candidature of the petitioner by the impugned order dated 7th March 2018 cannot be said to be suffering from any defect of the procedural aspect, contained in the Standing Orders, referred to hereinabove, governing the grant of compassionate appointment. 11. Hence, the rejection of the petitioner’s appointment on compassionate ground was justified and it didn’t suffer from any apparent error, because the examination of a medical suitability of a candidate, to be appointed would be exclusively falling within the domain of consideration of the respondents department, which was resorted to by them by the Medical Board and the Review Medical Board, and both phases, the petitioner was not found to be medically fit, hence the candidature of the petitioner was rightly rejected by the respondents for not being granted with the compassionate appointment. Hence, the writ petition lacks merit and the same is accordingly dismissed.” 3. It is not in dispute that father of the appellant was serving as Constable (General Duty) in Central Reserve Police Force (for short ‘CRPF’), who died while in service on 14.08.2013. Appellant applied for compassionate appointment. His claim for compassionate appointment was considered and rejected by the competent authority in CRPF, vide order dated 07.03.2018, on two grounds, namely – i) He is under weight by 2.5 Kg., and his BMI is 16.9 ii) Orchiectomy was done in his childhood (left testis absent). 4. Feeling aggrieved by rejection of his claim, appellant approached the writ court by filing a writ petition No. 846 (S/S) of 2018. The writ petition was dismissed by the impugned judgment. 4. Feeling aggrieved by rejection of his claim, appellant approached the writ court by filing a writ petition No. 846 (S/S) of 2018. The writ petition was dismissed by the impugned judgment. Appellant has challenged the impugned judgment mainly on the ground that relevant provision contained in the Policy, governing compassionate appointment in CRPF, has not been considered. 5. Reliance is placed upon Clause VI(k) of Standing Order No. 05/2001, which is enclosed as Annexure No. –11 to the counter-affidavit. The same is extracted hereunder : “VI(k). In case a candidate is found unfit while assessing the suitability / eligibility by the Board of Officers then suitability / eligibility for next lower post i.e. enrolled followers etc. be assessed. In case they have shown unwillingness, the same may be obtained in writing and kept on record and matter may be disposed off.” 6. Learned counsel for the appellant submits that appellant’s writ petition was dismissed only on the ground that the Board constituted to assess suitability of the appellant found him to be medically unfit for the post of Constable (General Duty). His further submission is that learned Single Judge completely overlooked clause VI(k) of the Standing Order, which was enclosed with the counter-affidavit filed on behalf of the respondents. 7. We find substance in the said submission made on behalf of appellant. In the impugned judgment, there is no discussion regarding Clause VI(k) of the Standing Order, which provides that in case a candidate is found unfit for appointment as Constable (General Duty), then his suitability / eligibility can be considered for next lower post, i.e., enrolled followers. It is not the case of respondents that petitioner expressed unwillingness for appointment as Enrolled Follower, therefore, his claim for appointment to such post deserves to be considered. 8. Mr. V.K. Kaparuwan, learned counsel appearing for the respondents, fairly submits that a person, who is found unfit for the post of Constable (General Duty) can be considered for appointment as Follower / Gardner (Mali) / Cook etc. 9. 8. Mr. V.K. Kaparuwan, learned counsel appearing for the respondents, fairly submits that a person, who is found unfit for the post of Constable (General Duty) can be considered for appointment as Follower / Gardner (Mali) / Cook etc. 9. Since the provision contained in Clause VI(k) of the Standing Order, as extracted above, creates a right to be considered for compassionate appointment on a post lower to the post of Constable (General Duty), in the event a candidate is found unfit for appointment as Constable (General Duty), which provision has been overlooked in the impugned judgment, therefore, the impugned judgment is liable to be set aside. We, therefore, set aside the judgment dated 19.07.2022, rendered in Writ Petition No. 846 (S/S) of 2018, and also the rejection order dated 07.03.2018, impugned in the writ petition. 10. In such view of the matter, the Special Appeal is allowed. The competent authority in CRPF is directed to reconsider appellant’s claim for compassionate appointment on a post which is lower in status to that of Constable (General Duty) in terms of Clause VI(k) of the Standing Order No. 05 / 2001. Such consideration shall be made within six weeks from date of production of certified copy of this judgment before the authority concerned.