Bir Singh vs Uoi & Ors.
2009 Latest Caselaw 742 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      W.P.(C) No. 158/2009


%                      Date of Decision:    4th of March, 2009


#     BIR SINGH                           ..... Petitioner
!                            Through: Mr. Manzoor Ali Khan,
                             Adv.

                       versus


$     U.O.I & ORS.                         ..... Respondents
^                            Through: Mr. Ankur Chhibber, Adv.


*     CORAM:
      HON'BLE MR. JUSTICE B.N.CHATURVEDI
      HON'BLE MR. JUSTICE S.L.BHAYANA

      1.     Whether the Reporters of local papers
             may be allowed to see the judgment?             No


      2.     To be referred to the Reporter or not?          No


      3.     Whether the judgment should be
             reported in the Digest?                         No


: B.N.CHATURVEDI, J.

1. The petitioner, a constable in CRPF, after serving the

force for ten years, was invalided out of service in view of his

being found medically unfit to continue in service. He was

examined by a Medical Board on 13th December, 1994 and

declared as completely and permanently incapacitated for

further service of any kind owing to defective vision in both

eyes. A Review Medical Board was constituted at New Delhi in

September, 1995 at the request of the petitioner, which on a

fresh examination opined:-

"1. Vision is unlikely to improve in Right Eye due to macular degeneration.

2. Board agrees with the finding of previous medical board held on 13.12.94 at GC-I, CRPF, Ajmer.

3. The individual has not questioned the findings of 1st Medical Board nor any documentary evidence supplied to the board against the findings of previous medical board."

2. In view of aforesaid report of Review Medical Board, the

petitioner was invalided out of service w.e.f. 30.11.1995. The

decision in this regard was challenged by the petitioner before

this Court by way of a WP (C) 1350/1997 in which by an order

dated 23rd March, 2006 the Division Bench of this Court

directed yet another Review Medical Board consisting of Chief

Medical Officer of the respondent and an Ophthalmologist,

being constituted. In addition, an Ophthalmologist from the

All India Institute of Medical Sciences was also nominated and

associated as a member of such Review Medical Board. The

second Review Medical Board so constituted examined the

petitioner on 11th May, 2006 and 23rd May, 2006. The board

eventually submitted its report reading thus:

"Board is of the opinion that Ex-Ct. Bir Singh of GC-II, CRPF, Ajmer is suffering from defective vision both eyes, colour blindness, bilateral cone dystrophy, Rt.eye peripheral lenticular opacity, left eye Pseudophakia. Further, based on the above findings i.e. defective vision, colour blindness and bilateral cone dystrophy being progressive degenerative disorder in nature, he is not fit for any combatant duty in CRPF."

3. The WP (C) 1350/1997 was eventually dismissed vide

order dated July 27, 2007 noticing that the contentions raised

on behalf of the petitioner in support of his plea for

reinstatement in active service on one of the posts of

Dak/Office Runner, Telephone Operator, Attendant in

Recreation Rooms, Canteens, Co-operatives etc., which

according to him were non-combatant ones, carried no

substance.

4. The petitioner has now filed instant petition re-agitating

the same very issue, already decided in the said writ petition

on two grounds:-

(a) that he has not been given the benefit of provisions

of The Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995, and

(b) that the benefit of Standing Order No.7/99 dated 6 th

May, 1999 has not been given by rehabilitating him on a non-

combatised post of Dak/Office Runner, Telephone Operator,

Attendant in Recreation Rooms, Canteens, Flour Mills, Welfare

Centre, School Buses etc. as indicated in the said Standing

Order.

5. It is gathered that a similar argument in regard to his

rehabilitation by posting him on lighter jobs like Dak/Office

Runner, etc. was raised on earlier occasion also in the course

of hearing in WP (C) 1350/1997, which were appropriately

dealt with and rejected. The plea of the petitioner for his

rehabilitation on some lighter job was accorded due

consideration by the Rehabilitation Board of the CRPF headed

by the IGP, Northern Sector, CRPF, but found unacceptable.

The report of the Rehabilitation Board reads thus:-

"No.861320019 Ct. Bir Singh of GC-II, CRPF, Ajmer appeared before the Departmental Rehabilitation Board on 30.9.2004 and was examined by the board. As per opinion of the medical board consisting of three eye specialists conducted at Base Hospital-One, CRPF, New Delhi on 4.9.04 he is not fit as a combatant in CRPF. Further, he has been categorized as SHAPE-5, E-5(P). As per Standing Order 1/2003 the person who is categorized as SHAPE-5 is

permanently unfit for CRPF duties. In the light of opinion of eye specialists the case of the ex-Ct/Bug. Bir Singh is considered by the Departmental Rehabilitation Board and the Board is of the view that of ex-Ct/Bug Bir Singh of GC-II, CRPF, Ajmer is not fit for any type of job in CRPF."

6. Standing Order No. 1/2003 in vogue at the relevant time,

when the Rehabilitation Board considered the case of the

petitioner, was kept in view and as the petitioner was

categorized SHAPE-5, he was found permanently unfit for

CRPF duties. The petitioner could have sought his

rehabilitation by posting on some lighter job with reference to

a Standing Order, if any, in vogue on the date of his being

invalided out of service or on the date the Rehabilitation Board

considered his case in this regard. The Standing Order No.

7/1999 could not have been applied retrospectively when the

petitioner was invalided out of service in November, 1995 nor

it remained in force at the time his case was considered by the

Rehabilitation Board. Moreover, the petitioner could have very

well referred to this Standing Order in his earlier writ petition

which he did not do. Now, he cannot be allowed to renew his

plea for rehabilitation by filing yet another writ petition on the

strength of aforesaid Standing Order of 1999. Moreover, it is

noticed from the judgment dated 27th July, 2007 in WP (C)

1350/1997 that no posts, including those mentioned in the

Standing Order No. 7/1999, were non-combatant posts and all

the posts available in CRPF being combatised ones, the

petitioner could not have been offered posting on any of these

posts and his plea in that respect was accordingly turned

down.

7. So far as benefit of relevant provisions of The Persons

with Disabilities (Equal Opportunities, Protection of Rights

and Full Participation) Act, 1995 is concerned, apart from the

fact that on the date when the case of the petitioner was

considered by the Rehabilitation Board the provisions of the

said Act did not apply to the CRPF by virtue of exemption in

that regard vide notification dated September 13, 2002, the

said Act had not yet come into force on the date the petitioner

was invalided out of service in November, 1995. In either

situation, no benefit under the provisions of the said Act could

be claimed by the petitioner.

8. Finding that all relevant pleas pertaining to his

rehabilitation on being found medically unfit to continue in

service were appropriately dealt with and rejected vide

judgment dated 27th July, 2007 in WP (C) 1350/1997 as also

the pleas now sought to be raised in the present petition, as

noticed above, being misconceived and unavailable to the

petitioner to maintain the present petition, the same is liable

to be dismissed and it is ordered accordingly. No costs.

(B.N.CHATURVEDI) JUDGE

(S.L.BHAYANA) JUDGE MARCH 4th, 2009 AG