Sandeep Singh vs Union Of India & Ors.
2012 Latest Caselaw 1188 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.254/2012

%                        Date of Decision: 22.02.2012

Sandeep Singh                                               .... Petitioner

                      Through Mr.A.K.Mishra      &     Mr.Ajay       Tiwari,
                              Advocates

                                 Versus

Union of India & Ors.                                    .... Respondents

                      Through Mr.Rajinder Nischal, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

*

1. The petitioner has sought quashing of Office order dated 22nd

October, 2011, whereby he was boarded out from the service and has

also sought directions to the respondents to reinstate the petitioner

with full back wages.

2. The petitioner contended that he was recruited in the Central

Reserve Police Force (hereinafter referred to as „CRPF‟) on 29th

December, 2005 after fulfilling all the criteria and norms as prescribed

under the Recruitment Rules. The petitioner had been found to be

physically and medically fit for enlistment as a Constable (GD).

3. After the enlistment in the CRPF and completing the training at

Shivpuri (M.P.), the petitioner was posted at 156 Bn CRPF, Pehlgaon

(Jammu & Kashmir).

4. According to the petitioner, he suffered a paralytic attack in

December, 2007 due to which he was admitted in the Hospital. After

paralytic attack, he was on leave from 9th January, 2008 to July, 2008

as per the recommendation of the doctors who treated the petitioner.

Thereafter, the petitioner was declared medically fit and he re-joined the

duty in August, 2008 at Kukurmari, Chirang District, Assam. After the

petitioner re-joined the duty, he was examined by various medical

boards from time to time at different places.

5. The petitioner contended that in the month of March, 2011 he

received a disqualification notice. Consequently, the petitioner

requested his Commandant to retain him in the service as he is the only

employed member in the family. The petitioner also requested for his

retention as a peon in the office. The petitioner was, however,

disqualified from the service and boarded out on 22nd October, 2011 as

the petitioner was having 75% disability.

6. The request of the petitioner to continue to retain him in the

service as he had recovered and ready to perform his duty with full

dedication and devotion was not accepted by the respondents. Even the

petitioner‟s representations were not accepted, entailing the filing of the

present writ petition on the ground that he was boarded out by the

respondents contrary to the rules and regulations, as he was not given

an opportunity of being heard by the concerned authorities and that he

could not be disqualified from the service.

7. The petitioner contended that he only has partial deficiency which

is not sufficient to board him out and to disqualify him from the service

as a general duty Constable.

8. Learned counsel for the petitioner has also contended that the

petitioner could not be boarded out in view of the Section 14 (7) of The

Persons with Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995 and has also relied on the decision in the

Civil Misc. Writ Petition No.17585/2003, titled as „Mohd. Yasin Ansari

& Ors. v. Union of India & Ors.‟, wherein the claimants who had

suffered from one disability or the other while they were in service, were

discharged on account of their disability. Learned counsel for the

petitioner has emphatically contended that in any case the petitioner

was on non-combatant duty and consequently, the provisions of The

Persons with Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995 are applicable to him. Reliance was also

placed on behalf of the petitioner on the description of the CRPF given

in the Wikipedia which is a free encyclopedia wherein it is stated that

even though the CRPF has 220 Battalions and various other

establishments and is largest para military force in the world, however,

according to new definition of „para military‟ it does not fall under the

said category.

9. Referring to dictionary meaning of `combatants‟ as persons who

are engaged in or ready for combat, learned counsel for the petitioner

has asserted that the petitioner could not be boarded out and should

have been given shelter appointment and consequently, the decision of

the respondents dated 22nd October, 2011 is not sustainable and is

thus liable to be set aside.

10. Mr.Rajinder Nischal, learned counsel for the respondents who has

appeared on advance notice has contended on instructions, that the

petitioner cannot rely on the provision of The Persons With Disabilities

(Equal Opportunities, Protection of Rights And Full Participation) Act,

1995 as the Govt. of India by notification dated 10th September, 2002

exempted the „combatants‟ of the CRPF from the applicability of The

Persons With Disabilities (Equal Opportunities, Protection of Rights And

Full Participation) Act, 1995 in exercise of the power conferred under

Section 47 of the said Act. Consequently, it is urged that the petitioner

cannot contend that he could not be boarded out and that he should

have been accommodated on some post in the CRPF. The notification

dated 10th September, 2002 is as under:-

"NOTIFICATION New Delhi, the 10th September, 2002

S.O. 995 (E)- In exercise of the powers conferred by proviso to Section 47 of The Persons With Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 (1 of 1996) the Central Government having regard to the type of work carried on hereby exempt all categories of posts of "combatant personnel" only of the Central Para Military Forces (CPMFs), namely, Central Reserve Police Force (CRPF), Border Security Force (BSF), Indo-Tibetan Border Police (ITBP), Central Industrial Security Force (CISF) and Assam Rifles from the provisions of the said section.

[No.16-39/2(x) 2-NI.1] SMT RAJWANT SANDHU, Jt.Secy."

11. Learned counsel for the respondents has also relied on an order

of the Division Bench of this Court in W.P.(C) No.9797/2003, titled as

„Ex. Constable Raj Kumar v. Union of India & Ors.‟, holding that the

petitioner in the said case who had sustained injury and who had

sought benefit of The Persons With Disabilities (Equal Opportunities,

Protection of Rights And Full Participation) Act, 1995 was not entitled

for the protection under the said Act on account of the notification

stipulating the exemption granted by the respondents from the

applicability of the provisions of the said Act.

12. This Court has heard the learned counsel for the parties. The

petitioner has challenged the order of the respondents dated 22nd

October, 2011 wholly on the ground that it is contrary to the rules and

regulations and that the respondents have committed gross error in

disqualifying the petitioner from the service without giving him any

opportunity of being heard. The learned counsel for the petitioner has,

however, not pointed out any rule or regulation which would render the

boarding out of the petitioner as illegal. Though, it has been asserted

that the partial disability of the petitioner will not be a ground to

disqualify the petitioner from the general duty constable, however, the

petitioner has not been able to refute the decision of the medical board

of the respondents that the petitioner is having 75% disability and on

account of having such disability, he is still entitled to continue in his

service and cannot be boarded out. Consequently, this plea of the

petitioner cannot be accepted.

13. The plea of the petitioner that he is entitled to be retained in the

service in view of Section 47 of The Persons With Disabilities (Equal

Opportunities, Protection of Rights And Full Participation) Act, 1995

also cannot be accepted due to the notification of the Govt. dated 10th

September, 2002 issued in exercise of the power conferred by the

proviso to Section 47 of the said Act exempting all categories of the post

of "combatant persons" of the CRPF from the provisions of the said Act.

14. The next contention of learned counsel for the petitioner that the

petitioner is not a combatant person also cannot be accepted since the

petitioner was appointed as constable (general duty) and had undergone

training for the same and is governed by rules and regulations of the

CRPF Act, 1949. The CRPF Act, 1949 does not contemplate the

appointment of constable (GD) as "non-combatant" and the Act does not

even define the term "combatant" and "non-combatant". If the Act does

not contemplate the post of "non-combatant" in the CRPF, then the

petitioner cannot contend that he is a „non-combatant‟ and exemption

notification is not applicable to him. Thus, the contention of the learned

counsel for the petitioner that the petitioner was engaged in non-

combatant work and, therefore, he is not a "combatant" cannot be

accepted in the facts and circumstances. This also cannot be denied

that the petitioner was trained for combatant duty as he was appointed

as Constable (GD) and that he had undergone appropriate training for

the same. After being trained as a "combatant", the petitioner is deemed

to be ready for combat at any time and by no stretch of argument, the

petitioner can be held to be "non-combatant".

15. The judgment of Mohd. Yasin (supra) by a single bench of

Allahabad is an unreported judgment and the petitioner has not

produced the copy of the same but what is produced is merely an

extraction from an unidentified source. It cannot be relied on in the

facts and circumstances. A perusal of the said extract of the judgment,

in any case, shows that it is apparently distinguishable in the facts and

circumstances, as it is pertains to a notification of the Government

dated 28th March, 2002 whereas, the respondents are claiming

exemption from the provision of The Persons With Disabilities (Equal

Opportunities, Protection of Rights And Full Participation) Act, 1995 on

the basis of notification dated 10.9.2002.

16. For the foregoing reasons, it cannot be accepted that the

exemption notice dated 10th September, 2002 in respect of the non

applicability of the provisions of The Persons with Disabilities (Equal

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

not applicable to the petitioner. Consequently, the petitioner cannot

claim that he could not be boarded out in view of the provisions of the

said Act. The pleas raised by the petitioner are therefore, not

sustainable in the facts and circumstances.

The writ petition, therefore, is without any merit and it is

dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

FEBRUARY 22, 2012 vk