Ashok Kr. Singh vs Uoi & Anr.
2010 Latest Caselaw 753 Del

                       IN THE HIGH COURT OF DELHI

                 Writ Petition (Civil) No. 846/2010


                      Date of decision: 9th February, 2010

     ASHOK KUMAR SINGH                 ..... Petitioner
                   Through Mr. Yudhvir Singh Chauhan, Adv.

                      versus


     UNION OF INDIA & ORS.               ..... Respondent

Through Ms. Sapna Chauhan, 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?

No

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

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

GITA MITTAL, J(Oral)

1. This writ petition seeks promotion of the petitioner from the post of the

Head Constable. It has been submitted that the petitioner joined the CISF on

12th October, 1984 as Constable (GD) and was confirmed in this position on 1 st

April, 1988. He successfully underwent a promotion course from the post of

Constable to Head Constable (GD) as per the communication dated 25th

September, 2001. The petitioner was also granted financial upgradation under

the ACP scheme in the year 2004.

2. This writ petition is premised on the contention that the petitioner was

declared medically fit and categorised as SHAPE-1 on 1st December, 2006.

Reliance has been placed on a Movement cum Promotion order dated 7th June,

2007 issued by the respondents posting the petitioner from Constable (GD) to

Head Constable (GD) at the CISF Unit at BTS, Badarpur from the CISF Unit at

CPT at Cochin. The submission is that the petitioner joined his new promotion

posting on 28th June, 2007 however, he was not placed at the promotion post.

Representations dated 18th May, 2009 and 29th May, 2009 did not also bring

the sought promotion. The petitioner's representations stand rejected by an

order dated 10th September, 2009 which has been assailed by way of the

present writ petition.

3. We have heard learned counsel for the petitioner as well as counsel for

the respondents. There is no dispute that the Movement Order dated 7th June,

2007 had also notified the petitioner's promotion to the post of Head Constable

(GD). Learned counsel for the respondents had placed before this court the

CISF circular no. 29/2005 dated 23rd August, 2005 which lays down the

instructions pertaining to medical categorisation/classification by "SHAPE"

system and medical boards for combatised officers and personnel serving with

the CISF. It is submitted that in view of this

circular, the petitioner was required to be medically fit not only on the date of

his DPC but also on the date when he is actually promoted. We find that the

circular lays down the instructions/procedures for carrying out medical examination and classification by the shape system of medical categorisation

and the manner in which the medical assessment of a CISF personnel is to be

undertaken. Instruction no. 13 in this background provides as follows:-

"13. If there is any deterioration in the medical categorisation of an empanelled officer after the DPC and before his actual promotion, the promotion will be withheld."

4. According to the respondents, the petitioner was required to produce his

medical fitness in the "SHAPE-1" category on the date that he joined the unit

pursuant to the promotion cum transfer order dated 7th June, 2007. The

petitioner had joined the BTPS, Badarpur, New Delhi on 28th June, 2007. The

medical record which the petitioner produced had been given to him by the

Medical Trust Hospital, MG Road, Cochi, Kerala-16. It was found from these

documents that the petitioner had been admitted to the hospital on 4th

December, 2006 and discharged therefrom on 27th December, 2006 and that

he had been diagnosed as suffering from the end stage of the renal disease.

The order dated 10th September, 2009

further records that the petitioner's case was considered by the Group

Headquarter at Saket, New Delhi as well as by the headquarters of the CISF

which had directed action to be taken in terms of circular no. 29/2005.

5. Consequently, the petitioner's case was forwarded to the Director,

Medical of the Selection Medical Board. The petitioner's examination in the

hospital at BTPS Badarpur on 18th October, 2007 resulted in a finding that he

was "unfit for CISF service" recorded by the medical officer who examined him. On 8th November, 2008, the petitioner's medical category was declared

as SHAPE-IV by the medical officer at the BTPS, Badarpur. It has also been

recorded that the petitioner has not been categorised as Shape-1 till date. We

are informed by learned counsel for the respondents that the petitioner is

currently so unwell that he is undergoing dialysis.

6. From the above narration, it is apparent that the respondents have

placed reliance on the medical categorisation of the petitioner, albeit after the

departmental promotion committee but certainly before the actual promotion

of the petitioner. It is unfortunate that the petitioner has reached this status of

health. However, the respondents action is based on the instructions which

govern the process of promotion and cannot be faulted on any

legally tenable grounds. Having regard to the nature of duties which the

postings in the Central Industrial Security Force, medical fitness cannot be

ignored.

In view of the above, we find no merit in this writ petition which is hereby

dismissed.

GITA MITTAL,J

VIPIN SANGHI, J FEBRUARY 09, 2010 kr