Delhi High Court

Amarendra Kumar vs Uoi & Ors on 2 August, 2010

Author: Gita Mittal

3

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +    W.P.(C)No.10028/2009

                                  Date of Decision : 02nd August, 2010
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      AMARENDRA KUMAR               ..... Petitioner
                  Through : Ms. Jyoti Singh, Adv.

                       versus

      UOI & ORS                              ..... Respondents
                            Through : Mr. Rajinder Nischal and
                                      Mr. Gaurav Liberhan, Advs.



CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                 YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                YES

3.      Whether the judgment should be                        YES
        reported in the Digest?


GITA MITTAL, J. (Oral)

1. Rule DB. With the consent of both the parties, the matter

is taken up for final consideration. The original record relating

to the petitioner has been made available for perusal as well.

2. This writ petition raises a short issue. There is no dispute

relating to the factual narration.

3. Pursuant to an advertisement issued by the Staff

Selection Commission in the year 2002, the petitioner applied

for appointment for the post of Sub-Inspector (GD) in the

Central Police Organization („CPO‟ for brevity hereafter). The

petitioner successfully appeared in the written examination by

a letter dated 7th March, 2003 and was called upon to appear

on 3rd April, 2003 in the Physical Examination Test („PET‟ for

brevity) at the Group Centre. The petitioner was declared

successful even in the PET examination.

4. Our attention is drawn to the letter dated 17th May, 2003

sent by the Staff Selection Commission requiring the petitioner

to present himself for a medical examination to be held on 4 th

of June, 2003. This communication informed the petitioner that

if he was found medically fit, he would have been eligible for

the interview which would be conducted on 5th June, 2003.

There is no dispute before us that the petitioner was medically

examined on 4th June, 2003 and was thereafter interviewed for

appointment to the post. Ms. Jyoti Singh, learned counsel for

the petitioner has placed reliance on the communication dated

17th May, 2003 to contend that the same manifests that the

petitioner was interviewed because he was found medically fit

in all respects in the medical examination.

It appears that the petitioner also qualified in the

interview which was conducted by the respondents resulting in

issuance of the communication dated 24th November, 2003

informing the petitioner of his provisional selection for

appointment to the post of Sub-Inspector (GD) in the CRPF as a

result of the aforenoticed selection process.

5. Mr. Gaurav Liberhan, learned counsel appearing for the

respondents has drawn our attention to the terms and

conditions of the appointment at serial No.2(h) which were

notified to the petitioner in the letter dated 24th November,

2003 which states as follows:-

"(h) Your appointment is subject to your medical fitness, which will be conducted by the appropriate medical authority of this department on your reporting to the Training Centre. Appointment letter will only be issued on medical fitness and on satisfying various other requirements."

This communication contains all the other standard terms

and conditions as well for appointment which are normally

incorporated in appointment letters issued by the government.

The stress on behalf of the respondents is on their authority to

insist on medical fitness.

6. Pursuant to the receipt of this letter, on 22nd December,

2003, the petitioner reported to the Group Centre, CRPF,

Pinjore. The troubles of the petitioner began thereafter.

7. The medical examination in terms of the appointment

letter of the petitioner was conducted on 24th December, 2003.

It appears that a signal was sent by the CPO of the North West

Zone Office to the effect that once physical measurement

standards are satisfied and a detailed medical examination is

conducted by the Medical Board, such measurements of the

candidates will not be taken again and they would not be

subjected to another medical examination when they actually

joined their respective CPOs. This signal also notified that the

medical examination conducted during the selection process

would be valid for a period of one year. It was also intimated

that only such persons who are beyond the period of validity of

first medical examination would be required to undergo a

detailed medical examination.

8. The respondents have placed a further signal dated 12th

April, 2004 before us which was to the effect that in case the

medical dossier of a candidate was incomplete due to the non-

availability of inter alia, the X-ray film/report, a candidate

would be declared fit subject to his chest X-ray which may be

got completed from the regional office of the Staff Selection

Committee. The petitioner contends that despite repeated

requests between 29th December, 2003 and 31st December,

2003 to get his chest X-ray taken privately, no action at all was

taken by the respondents for a period of almost four months.

9. It is only on receipt of clarification vide signal dated 8th

April, 2004 when the Office of IGP, North West Zone sent a

requirement that the petitioner along with his dossier was

required to be sent to the regional office of the Staff Selection

Commission (Central Region), Allahabad for the purposes of

getting his chest X-ray done.

10. In this background, the petitioner was sent along with his

dossier to the regional office of the Staff Selection Commission

at Allahabad with a special messenger to complete his chest X-

ray in order to complete the formalities of the medical

examination. On 21st April, 2004, the Staff Selection

Commission (Regional Office) informed that the X-ray of the

selected candidates was required to be undertaken by the

Medical Board constituted by the coordinating Central Para-

Military Organization and that the Selection Commission had no

role to play in this regard. It was consequently directed that

the X-ray of the petitioner should be done at the CRPF Group

Centre, Pinjore itself or alternatively the Directorate General

BSF, the Coordinating CPO was required to be got in touch with,

in the matter.

11. Still nothing was done in the matter till a signal dated 26th

April, 2004 was sent by the Office of the DIGP, CRPF to the

Group Centre, Pinjore informing that the petitioner‟s chest X-

ray be got done from any Government hospital/private

practicing Radiologist in the presence of a representative from

CRPF Group Centre, Pinjore Hospital. It was only thereafter

that the petitioner was sent to the Chief Medical

Officer/Incharge of the CRPF for chest X-ray and as a result of

the radiological examination, he was declared fit on 27th April,

2004 by the said Chief Medical Officer. The petitioner‟s dossier

and record was thereafter forwarded by the respondents to the

Commandant of the Battalion for issuance of formal

appointment letter. The formal appointment letter dated 6th

May, 2004 was issued to the petitioner informing him that he

has been appointed as Sub-Inspector (GD) with effect from 27th

April, 2004.

12. A challenge is laid to this action of the respondents for

the reason that during the period when the respondents failed

to take action with regard to the radiological examination of

the petitioner and unwarrantedly delayed the same, the

respondents have floated the new contributory pension scheme

which came into effect from 1st April, 2004. The respondents

also declared that the old pension scheme to which the

petitioner would have otherwise been entitled, if his

appointment was effected on 22nd December, 2003 when he

had reported on duty, he would have been entitled to the

benefit of the pension scheme which was applicable till 31st

December, 2003. The contention is that the grave injustice has

thereby resulted to the petitioner who has also lost seniority by

virtue of the appointment letter which has been issued to the

petitioner.

13. The respondents have contested the case of the

petitioner contending that their action was justified for the

reason that the appointment letter was required to be issued

only with effect from the date when the petitioner was formally

declared fit.

14. We have given our thoughtful consideration to the rival

contentions. The delay in completion of the medical

examination and the radiological examination of the petitioner

cannot be attributed to the petitioner in any manner. The

record does not disclose at all that the petitioner was not

subjected to the X-ray when he was medically examined on 4th

June, 2003. In this regard, we may refer to the letter dated 28th

April, 2004 issued by the Office of the Additional DIG of the

Group Centre, CRPF, Pinjore pointing out that the petitioner‟s

dossier requirements were incomplete due to non-availability

of the X-ray film.

15. Be that as it may, in any case, there is not even a wit of

an explanation for as to why the X-ray could not be conducted

at the CRPF Group Centre, Pinjore once this matter came to the

knowledge of the respondents on 24th December, 2003. The

petitioner has contended that repeated requests for completing

the X-ray process between 29th December, 2003 and 31st

December, 2003 evoked no action from the respondents which

is not denied in the counter affidavit which has been filed. The

only explanation for the delay of almost four and a half months

which has resulted is to the effect that the matter remained in

correspondence with the higher authorities and a decision was

taken on receipt of a clarification.

16. We find that the petitioner has also given instances of five

other personnel who had appeared with him for medical

examination at the Group Centre and were not subjected to

any X-ray. Yet they were given appointment by their respective

Group Centre with effect from the date of their joining and

reporting. It has also been contended in the writ petition that

these candidates started getting their pay from the date of

their reporting/appointment whereas even though the

petitioner underwent training and was admittedly on duty from

22nd December, 2003 to 26th April, 2004 for a period of four

months and six days till his services were terminated, he was

not paid any pay and allowances. There is categorical

averment to the effect that during this period, the petitioner

had been made to work and train just like the other persons

who had been issued appointment letters similar to the

appointment letter of 24th November, 2003 issued to the

petitioner. In reply to these categorical assertions, the

respondents have merely stated that „these need no

comments‟. It is trite that such a plea in law tantamounts to

admission of the averments made in the writ petition.

17. We also find from the several communications placed by

the respondents on record to the effect that the petitioner had

been assigned to the 86th Battalion of the CRPF. It is also an

admitted position that the petitioner was residing in the Official

Mess of the CRPF at the Group Centre, Pinjore. All these facts

in totality manifest that the respondents have treated the

petitioner as their employee with effect from 22nd December,

2003 when he joined the duty.

18. We may notice that the appointment letter dated 24th

November, 2003 had stipulated that the appointment of the

petitioner was provisional subject to his completing the

formalities stated therein. As noticed above, condition No.2(h)

in this letter informed the petitioner that his appointment was

subject to medical fitness which would be conducted by the

appropriate medical authority of the department. The

respondents have clearly taken a decision which stands

communicated in the aforenoticed signal dated 24th December,

2003 and 12th April, 2004 to the effect that so far as fitness of a

person was concerned, the certification thereof in the medical

examination conducted during the selection process was

sufficient. The petitioner was duly certified as medically fit

resulting in his being made to participate in the interview and

the consequent appointment letter dated 24th November, 2003

being issued to him. In terms of the said decisions of the

authorities, it is apparent that the certification of the

petitioner‟s fitness in the medical examination conducted on 4th

June, 2003 was sufficient for him to be entitled to regular

appointment. The insistence on the x-ray was therefore,

unnecessary even as per the respondents.

19. As noted above, the only reason for delay in issuance of

the appointment letter is the missing X-ray in the dossier of the

petitioner. There is nothing on record to even enable us to hold

that no X-ray was conducted at the time of the petitioner‟s

medical examination on 4th June, 2003. There is no material

which could manifest that the petitioner was not subjected to

X-ray on 4th June, 2003 and only thereafter declared medically

fit. In these circumstances there is every possibility that the X-

ray could have been misplaced in transit or otherwise from the

dossier of the petitioner. In any case, no fault can be attributed

to the petitioner for the same.

20. As noted above, the petitioner has pointed out instances

of at least five other persons in support of his contention that

there were other persons who were not X-rayed and have been

issued regular appointment letters with effect from the date

when they first reported for duty. In the given facts, the action

of the respondents in issuing the appointment letter to the

petitioner with effect from 21st April, 2004 is unfair and unjust

and cannot be justified on legally tenable grounds.

21. The provisional appointment letter was issued to the

petitioner in November, 2003 pursuant whereof he reported for

duty on 22nd December, 2003. He trained with the respondents

ever since.

22. The petitioner has admittedly been on duty since 22nd

December, 2003 when he reported for duty. In this

background, the non-grant of the pay and allowance of the

petitioner with effect from 22nd December, 2003 as well as the

action in issuing the letter of appointment with effect from 27th

April, 2004 is not justified.

23. There is an additional ground which persuades us to hold

that the respondents have not been fair to the petitioner. It is

an admitted position also that the Defined Benefit Pension

System of the respondents came to an end on 31st December,

2003.

24. The new Defined Contribution Pension Scheme which

came into effect from 1st April, 2004 requires a monthly

contribution from the salary equivalent to 10% of the salary

and dearness allowance.

25. The impact of issuance of the appointment letter with

effect from 27th April, 2004 would be that the petitioner would

be deprived of the benefit of the earlier scheme which came to

an end on 31st December 2003. He would therefore be required

to make a monthly contribution from his salary in accordance

with the new scheme. Compared against the earlier scheme,

this could certainly work tremendous financial loss to the

petitioner.

26. The justification of the respondents to the effect that the

delay occurred because the matter was pending for

correspondence with higher authorities is also not supported by

the record. There is no warrant at all for shuttling the petitioner

between the Group Centre and Staff Selection Committee and

back when the medical facility for undertaking the X-ray was

available at the Group Centre. In addition, it is not as if the

respondents were continuously in correspondence over a

period of four and a half months since the issuance of the

provisional appointment letter.

27. We may also note that the provisional letter of

appointment dated 24th November, 2003 does state that the

appointment is provisional. However the only consequence

thereof is that upon the completion of the stated formalities,

issuance of the formal appointment letter would follow. The

appointment obviously has to relate back to the date of his

original appointment.

28. In view of above discussion, it has to be held that the

petitioner is deemed to have been regularly appointed with

effect from 22nd December, 2003. The petitioner would also be

entitled to the benefit of the Defined Pension Scheme which

was valid till 31st December, 2003. The respondents are

required to ensure that all benefits which are admissible to the

petitioner pursuant to the appointment with effect from 22nd

December, 2003 including seniority, etc. are made available to

him.

29. In view of the above, we direct the respondents as

follows:-

(i) The respondents shall issue a fresh appointment

letter to the petitioner informing him of his

appointment with effect from the 22nd of December,

2003 when he has admittedly joined the duty.

(ii) The appointment letter in these terms shall be

issued to the petitioner within a period of four weeks

from today.

(iii) The respondents shall also ensure making payment

of the pay and allowances to which the petitioner is

entitled as per the applicable rules and regulations

with effect from 22nd December, 2003.