Anand Singh Yessong vs Uoi & Ors.
2010 Latest Caselaw 663 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Date of decision: 5th February, 2010

+                             W.P.(C) 8618/2007


      ANAND SINGH YESSONG                ..... Petitioner
                   Through Mr. Amitesh Kumar, Adv.

                      versus


          UOI & ORS.                                 ..... Respondents

Through Mr. Saleem Ahmed, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

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

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

GITA MITTAL, J (Oral)

1. The writ petitioner was enrolled in the Indo-Tibetan Border

Police Force on 18th November, 1990 as an Assistant

Commandant. After successfully undergoing rigorous training at

Mussoorie, district Dehradun, till date the petitioner was posted

from time to time at different places, most of which have been

identified as hard postings. The postings given to the petitioner

till the filing of this writ petition are as follows:-

Sl. Place of Posting Batta- Period Designat-

         No.                                  lion                           ion
     1.        Leh, Laddakh, Extreme Hard 21 Bn 12/1991 to 4/1994          AC
               Area                       ITBP
                                              th
     2.        Patiala (Pb)                 16 Bn 5/1994 to 7/1995         AC
                                              th
     3.        Daksham (J & K) Valley 19 Bn 8/1995 to 6/1997               AC
               Extreme Hard Area`



       Sl.             Place of Posting   Batta-           Period       Designat-
      No.                                 lion                           ion
                                               th
     4.      Mirthi Hard Area            10 Bn 7/1997 to 6/2000        AC
     5.      Leh Extreme Area            Ladakh 7/2000 to 4/2002       AC
                                           st
                                         21 Bn
                                         Hard
     6.      Saboli                      SS Bn. 4/2002 to 5/2003       DC
     7.      Kasovo                      UN      5/2003 to 5/2004      DC
                                         Mission
                                          th
     8.      Lohitpur (Arunachal Pradesh 9 Bn.      27-5-04 to till date DC
             Area) Hard

2. Learned counsel for the petitioner has submitted that since

2009, the petitioner stands posted in Chhatisgarh and is involved

in the anti-naxalite operations. These facts are not disputed

before us.

3. In the year 1994, the petitioner appears to have suffered

from fever. A medical examination was conducted on him at the

I.T.B.P. Base Hospital at Tigri Camp, New Delhi which brought out

t4he diagnosis that the petitioner was suffering from "Gilberts

Syndrome". While recording the diagnosis, Dr. M.V.K. Rao, the

Chief Medical Officer (SG) has clearly recorded the following note

on 29th of October, 1994:-

"Recommended to be placed in SHAPE-1 in above disease. Fit for all duties. No Board required."

4. The respondents accepted these recommendations and have

treated the petitioner as so fit for all duties. This is evident from

the fact that in August, 1995, he was again posted in Daksham (J

& K) Valley an extremely hard area.

5. The writ petition has been necessitated in view of the

vacillating stand of the respondents. So far as the medical

condition of the petitioner is concerned, there is also no dispute

that the petitioner is suffering from the Gilberts Syndrome.

However, the respondents have ignored the recommendations of

the medical experts so far as the petitioner's fitness for duties and

the fitness/medical category in which he is to be placed. For this

reason, the respondents have denied him consideration for

promotion at the appropriate stage on two occasions and he

stands superseded.

6. In the year 1997, the petitioner developed fever while

undergoing courses at Belgaum for which he was treated at the

Military Hospital and placed in low medical category P2 (T-24)

w.e.f. 21st January, 1997 which was continued till 3rd December,

1998. In 1998, the petitioner was downgraded to permanent low

medical category P-2 w.e.f. 4th December, 1998 which was

continued by a subsequent medical board held on 12th December,

2000. Interestingly, despite this categorisation, no special

consideration was shown as far as the petitioners posting is

concerned, and he continued to perform his duties at hard

postings in difficult areas as noticed above. During the perioid

from July, 1997 to June, 2002, the petitioner was posted in Mirthi,

which is also considered a hard area.

7. The petitioner made a grievance that he was entitled for

consideration and appointment to the post of Deputy

Commandant in the year around 2000-2001. However, despite

the petitioner being fit in all respects, the respondents referred

him for a review medical board and medical opinion to the army

hospital known as 153, General Hospital at Leh on the 22nd June,

2001 for opinion with regard to the Gilberts Syndrome. The doctor

at this General Hospital referred the matter for review opinion to

the Department of Hepatology of the Postgraduate Institute of

Medical Education & Research (PGIMER) at Chandigarh. The

petitioner was accordingly examined by Dr. Y. Chawla, Professor

and Head of the Department of Hepatology at the PGIMER,

Chandigarh. The respondents have stated that after investigation,

Dr. Y. Chawla had confirmed the diagnoses as Gilberts Syndrome

with the opinion that the petitioner can perform all duties and he

is fit for posting at all places.

8. Taking the specialist opinion into consideration, the unit

sought approval of the Deputy Inspector General (J & K) for

sending the petitioner to 153 General Hospital for a fresh opinion

and constitution of a Sector Medical Board. Such Board was

accordingly constituted which conducted a premature review of

the petitioner's fitness.

9. The medical opinion from the Head of the Department of PGI

was considered by the Lieutenant Col. Dr. Arun Tyagi at the

General Hospital, Leh who again recorded an opinion on 26th June,

2001 recommending that the petitioner be upgraded to medical

category of P-1 of SHAPE. This doctor had advised that the factum

of the petitioner being a case of Gilberts Syndrome be endorsed in

all his medical documents.

10. It is apparent from the above narration that so far as the

fitness of the petitioner is concerned, the same is not disputed by

any of its expert. Despite the petitioner suffering from Gilberts

Syndrome, it was confirmed that he was fit for performing all

duties and he was categorised as medical category P1 of SHAPE.

This fact is manifested from the postings which were assigned to

the petitioner. The respondents at no point of time have

considered the petitioner unfit for normal and hard duties. It is

not disputed at all, that the petitioner's suffering from the Gilberts

Syndrome has not impacted his fitness for, or actual performance

of duties in any manner.

11. As a result of the above opinions, the Sector Medical Board

upgraded the petitioner to the medical category SHAPE 1 on 5th

July, 2001.

12. The respondents considered the petitioner's case for

promotion only upon his upgradation to SHAPE 1 in the DPC held

on 21st March, 2002 and promoted him to the rank of Deputy

Commandant/GD w.e.f. 11th April, 2002.

13. The petitioner made representations seeking protection of

seniority from the retrospective date when his juniors were

promoted. These representations were rejected by the competent

authority by the orders 13th June, 2002 and 23rd June, 2004. The

petitioner makes a grievance that this was in violation of the OM

No.I-45024/4/2001MS-110-60 dated 5th January, 2002 issued by

the Government of India.

The office memorandum dated 5th January, 2002 deserves to

be considered in extenso and reads as follows:-

"Please refer to our Endr. No.1-

46024/4/2001/MS--4509-69 dated 10.10.2001 which is regarding above cited subject.

The following paras may please be added after para in MHA UO No.45420/45/99 II dated 27.7.2001.

17. If the actual promotion of a force officer is delayed because of his low medical category and he is required to regain medical category Shape-I, the person below him can be promoted but the officer will regain his seniority immediately on his promotion.

18. A fresh BPG cannot be convened for filling up the vacancies remain unfilled because of inclusion of officers with low medical category in the panel till such time the concerned officer of low medical category is unable to attain Shape I medical category."

It is evident from the above Office Memorandum that on

delay of the promotion of an officer to a post, on account of his

being in a low medical category, on regaining the medical

category SHAPE 1 and on being promoted, the seniority of the

officer (in the promoted post) would be restored above the other

officers, who though junior to the former, may have been

promoted earlier because of the former being in low medical

category at the time of consideration of the cases for promotion.

In the seniority list for the promotional post i.e. Deputy

Commandant/GD, the petitioner was required to be placed

accordingly.

14. It has been submitted on behalf of the petitioner that again,

despite his being medically fit at the stage when his promotion to

the post of second-in-command became due, the respondent

directed a review medical board. This board was held on 18 th

August, 2005 which opined that the petitioner is having a disease

which is congenital in nature and there will be intermittent

jaundice which has a prepondance of exaggeration with strenuous

work, hence the petitioner be put on category of P-2 (permanent)

for the reason that he was suffering from the Gilbert Syndrome.

The petitioner was accordingly put in the low medical category P-2

(permanent).

15. The petitioner represented against his medical down

gradation again. In view of his representations, he was reviewed

on the 4th March, 2008 by the Sector Medical Board at the

Composite Hospital, Chandigarh. Again, a medical opinion of

fitness was given by Dr. A.K. Mukhopadhyay, Chief Medical Officer,

SG resulting in upgradation of the petitioner again to SHAPE 1 as

on the previous occasion. Only thereafter, the case of the

petitioner for promotion as second-in-command was considered

and he was promoted to that post vide communication dated 9 th

April, 2009.

16. It is not disputed that medical fitness is an essential

eligibility condition for promotion of all combative personnels in all

groups and cadres in the force. The above narration discloses that

even though the petitioner was suffering from the Gilbert

Syndrome, the experts in the field including the Head of the

Department of Hepatology at PGI, Chandigarh and the experts

who form part of the medical board which examined the

petitioner, have expressed a clear opinion that the petitioner was

fit for the purposes of performing all postings and duties. The

facts as noticed above, demonstrate the manner in which the

respondents have treated the sickness of the petitioner and that

the same has not come in the way of his postings at hard

postings. The petitioner is being admittedly assigned difficult jobs

in hard terrain for the reason that the respondents accept his

capability and fitness in this regard.

17. We find that there is no difference in the diagnoses since

1994. It is pointed out that the recommendations of the Board

held on 18th August, 2005 were contrary to that made by PGI; that

the arduous assignments undertaken by the petitioner had not

reflected any of the above observations and further that despite

the afore-noticed observations, the petitioner was posted in hard

postings and relentlessly discharged professional functions ably.

18. Undoubtedly, the medical opinion of the experts would bind

consideration of the petitioner's medical fitness and we are not

competent to override the same. The respondents have also

accepted this position for the reason that they have themselves

also upgraded the petitioner's status based on medical opinion

which has been received. Another factor which emerges from the

above facts is that the change in the medical gradation of the

petitioner, so far as the medical fitness is concerned, from SHAPE

1 to SHAPE 2 and vice versa is not based on any change in his

medical condition, degradation or improvement of health and

fitness. The diagnosis of the petitioners condition remains the

same. In these facts, the downgradation is not supported by

either the expert medical opinion or the physical status of the

petitioner and appears to be wholly unwarranted and unjustified.

For this reason, the petitioner was entitled to consideration for

promotion at the time when his juniors were considered for

promotion.

19. Our attention is drawn to the Standing Order No.4/2002

dated 29th May, 2002 issued by the respondents keeping in view a

circumstance where a person may be medically downgraded. The

manner in which promotion and seniority of such person is to

follow on the assumption of a medical status has been clearly

delineated by the Government. The relevant extract of the office

memorandum dated 29th May, 2002 provides as follows:-

"SHAPE I medical category will be mandatory for the purpose of promotion to Group `A' posts in ITBP. In case of those, whose illness is of permanent nature and who are not SHAPE-1, they will be considered for promotion by DPC but will be declared unfit for promotion, even if, they are otherwise fit for promotion. In case of those personnel, whose illness is of temporary nature, after considering their cases for promotion alongwith others, if they are otherwise fit, the DCP will grade them as `fit' for promotion subject to attaining SHAPE-I medical category. As and when they regain the SHAPE-I medical category, they will be promoted as per recommendations of DPC. However, they will not be entitled to back wages but retain their seniority."

20. This standing order has been placed by the respondents

before the us. There is no dispute that this memorandum also

binds the respondents so far as the consideration of the case of

the petitioner is concerned. In the light thereof, the petitioner

would be entitled to seniority in the post of Deputy Commandant

and in the post of second-in-command.

21. The above discussion shows that the petitioner was

considered after his juniors and his promotion to the posts of

Deputy Commandant and Second-in-Command delayed on

grounds of medical gradation as SHAPE 2.

22. Needless to say, the petitioner was entitled to the

consideration for promotion to the post of deputy commandant

and second-in-command as well at the same time his juniors were

considered for promotion. In terms of the office memorandum

dated 5th January, 2002 and the standing order No.4/2002, the

petitioner would not be entitled to the back wages, but would be

entitled to retain his seniority.

23. It is pointed out by learned counsel for the petitioner that

juniors of the petitioners have now been considered for promotion

to the post of commandant. However, the petitioner had been

wrongfully ignored for the same in the above facts and

circumstances.

24. In view of above discussion, it is apparent that the petitioner

would be entitled to the relief (a) in the writ petition being the

challenge to the order dated 18th August, 2005 placing the

petitioner in category P 2 (permanent). However, the respondents

have themselves reviewed the same. No further orders are

required to be passed in view thereof in respect of the said prayer.

25. So far the relief of fixation of seniority, payment of the

promotional scale and consequential benefits are concerned, the

same is required to be moulded in the light of the facts which

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have been intervened hereinabove.

Accordingly, we direct the respondents as follows:-

(i) the respondents shall grant seniority to the petitioner in the

post of Deputy Commandant and Second-in-Command in the light

of the Office Memorandum dated 5th January, 2002 and the

Standing Order No.4/2002 dated 29th May, 2002, and, so far as his

promotion to the post of Commandant is concerned, the petitioner

would be entitled for consideration of his case forthwith in

view of the office memorandum and standing order noticed

hereinabove; &

(ii) the orders and action in terms of the directions at serial no.

(i) above shall be passed within twelve weeks from today; &

(iii) the petitioner shall be entitled to the costs of the present

petition which are quantified at Rs.10,000/-. The costs shall be

paid within a period of four weeks from today.

Dasti to parties.

GITA MITTAL, J

VIPIN SANGHI, J FEBRUARY 05, 2010 aa

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