Sanjay Singh Raghuvanshi vs Union Of India & Ors
2014 Latest Caselaw 5362 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 3489/2014
       SANJAY SINGH RAGHUVANSHI                ..... Petitioner
                    Through Mr. R.K. Shukla, Advocate
                           versus
       UNION OF INDIA & ORS                              .... Respondents
                     Through            Mr. Saqib & Mr. M.P. Singh,
                                        Advocates for the UOI
       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE NAJMI WAZIRI
                    ORDER

       %            30.10.2014

KAILASH GAMBHIR, J. (ORAL)

By this petition filed under Article 226 of the Constitution of India,

the petitioner seeks issuance of a writ in the nature of mandamus to the

respondents not to repatriate the petitioner from the National Security

Guard (hereinafter referred to as 'NSG'), 11 SRG, Manesar, Gurgaon

(Haryana) to his parent organisation CRPF at J&K in 126th Bn.

Mr. Saqib, the learned counsel for the respondents has drawn the

attention of this Court to sub clause (iii) of sub para (b) of Clause 1 of the

Standing Order No.E303/11/2009/NSG/3643-98 in support of the

decision taken by the respondents to prematurely repatriate the petitioner

to his parent department, as under this clause a member of the NSG who

is downgraded to permanent Low Medical Category (hereinafter referred

to as 'LMC') by the first Medical Review Board (in short 'MRB') and

continues to be placed in the same category even by the second MRB,

then such a candidate shall be repatriated to his/her parent

organisation/unit.

The learned counsel for the respondents thus submits that the

petitioner who had joined the NSG on deputation as a Commando since

04.11.2012 was detailed to undergo validation test training conducted by

Force HQ NSG Manesar on 12.12.2012 and during the training the

petitioner fell down on the ground while negotiating obstacle No.13 of

Battle Assault Obstacle Course (in short 'BAOC'), and sustained right leg

upper part injury and other minor injuries on other parts of the body. The

learned counsel for the respondents also submits that the petitioner was

admitted to Safdarjung Hospital, New Delhi and after his operation , he

was once again detailed for his medical examination by the Medical

Officer of Composite Hospital, NSG where yet again he was found under

LMC w.e.f. 12.02.2013 categorised as S1H1A2(T-12)(L)P1E1.

It is also the case of the respondents that to further assess the

physical fitness of the petitioner, a medical board from Composite

Hospital, NSG was constituted on 14.05.2013 which again declared him

under the LMC. The learned counsel for the respondents thus submits

that, the petitioner was found under LMC even for the second time and

therefore, in accordance with the said Standing Order the respondents had

decided to repatriate the petitioner to his parent department. The learned

counsel for the respondents also submits that since the NSG is a 100%

deputation force and its basic idea is to admit 'best talent' from other

unit/organisation and the persons taken on deputation are expected to

maintain high levels of professionalism, discipline, physical fitness and

endurance levels and due to this reason a maximum of two chances are

given to a candidate to accord him a chance to make himself fit as per the

laid down criteria of medical fitness.

The learned counsel for the respondents submits that the present

petitioner continues to serve in the NSG only pursuant to the interim

protection given by this Court otherwise the petitioner is not in a fit

condition to discharge the duties of the Commando in the NSG because

of his being under LMC. The learned counsel for the respondents also

submits that the premature repatriation of the petitioner attaches no kind

of stigma to him and that he will be entitled to other all benefits as per his

rank, that were available to him prior to his repatriation to his parent

department.

Mr. R.K. Shukla, the learned counsel for the petitioner, on the

other hand, submits that Safdarjung Hospital, New Delhi has already

declared him fit to resume his duty and the fitness certificate dated

06.08.2014 has already been issued by the hospital in favour of the

petitioner and in the light of this development, the respondent can again

examine the case of the petitioner so as to permit him to undergo

necessary training and to allow him to resume duty on the post of

Commando in the NSG.

We have heard the learned counsel for the parties at considerable

length and have given our thoughtful consideration to the arguments

advanced by them.

The petitioner was initially appointed as a Constable (GD) in the

CRPF on 15.06.2007. While working on this post in the CRPF he was

selected on deputation to serve the NSG for a period of five years. The

petitioner had reported to join 11 SRG, NSG, Manesar on 04.11.2012 and

an induction order was issued to him by the said group of the NSG Force

vide order dated 22.11.2012. The said deputation for a period of five

years was subject to premature repatriation on the grounds of

unsuitability, indiscipline and exigency of services or if any other

unforeseen factors so demand. The terms of the appointment further

required all the individuals who had joined the NSG to be in medical

category Shape-I and medically fit in all respects to serve in the NSG.

This petitioner was detailed to undergo validation test training as was

conducted by the Force HQ NSG, Manesar on 12.12.2012 but

unfortunately during the training period he fell down on the ground while

negotiating obstacle No.13 of BAOC and sustained right leg upper part

injury and some minor injuries on other parts of the body. He had

undergone surgery at Safdarjung Hospital, New Delhi and after the

surgery a medical examination was conducted by the medical officer of

Composite Hospital, NSG, Manesar, and he was placed under LMC w.e.f.

12.02.2013. With a view to further assess the physical fitness of the

petitioner, a medical board from Composite Hospital, NSG, Manesar was

constituted on 14.05.2013 and this medical board declared the petitioner

under LMC and in this manner on both the occasions, the petitioner was

not found in Shape-I. This down grading of the petitioner to LMC by the

two medical boards led to his repatriation to his parent department and we

find no irrationality or illegality in the said decision taken by the

respondents as such a decision of the respondents doesn't not stem from

any vendetta, vengeance, malice or bias and is well supported by the

Standing Order No.E303/11/2009/NSG/3643-98 and duly substantiated

by the LMC reports. The said Standing Order dealing with premature

repatriation was passed pursuant to a high level committee constituted by

the Director General, NSG and after taking into consideration the

recommendations made by the committee, fresh instructions were issued

superseding all previous orders or guidelines on the subject. The

instructions, which are relevant to the case of the petitioner, can be

reproduced as under:-

"(a) INJURIES DURING OPERATIONS

i) Any member of the NSG who is downgraded to Low Medical Category (LMC) of a temporary or permanent nature due to injuries sustained during operations shall be retained in the NSG till completion of his/her prescribed period of deputation.

ii) Such member of the NSG shall be given a sedentary appointment or assigned duties in keeping with his/her disability or medical condition.

               (b) INJURIES DURING TRAINING
               i)      Any member of the NSG who is downgraded to LMC

due to injury stained during training or an exercise will be retained in the NSG till his/her examination by the first

Medical Review Board which shall be convened not later than six months from the date of initial placement in LMC.

ii) Any member of the NSG who continues to be placed in LMC by the First Medical Review Board may, on the recommendation of the concerned Group Commander and the D.I.G., be considered for retention in the NSG by the competent authority till his/ her examination by the second Medical Review Board which shall be convened not later than six months from the date of assembly of the first Review Medical Board.

iii) Any member of the NSG who is downgraded to permanent LMC by the first Medical Review Board or continues to be placed in LMC by the second Medical Review Board shall be repatriated to his/her parent organisation/unit."

It is not a matter of dispute between the parties that the petitioner

was placed under LMC by the first Medical Board and then also by the

second Medical Board and therefore, in such like cases repatriation of

such a candidate to his parent department is a mandate of the aforesaid

sub clause (iii) and the said decision of the respondents to repatriate the

petitioner squarely falls under the said sub clause.

The National Security Guard (NSG) was set up in 1984 as a

"Federal Contingency Deployment Force" to tackle all facets of terrorism

in the country and this force is specially equipped and trained to deal with

specific situations of grave and emergent nature to deal with the menace

of terrorism. It needs no emphasis to state that the NSG has been playing

a very vital role in safeguarding the unity and integrity of the country and

they have commendably foiled attempts made by anti-national elements

who pose a threat to the peace, tranquility and integrity of the country.

Looking into the nature of the duties performed by the members of

this force, they are required to undergo specialized and rigorous training

and for that, members are expected to be exceptionally fit and there

should not be any compromise in the same. This force is a 100%

deputation force and the members of the force are taken on deputation

from various Para Military Forces. Any person who at any stage finds

himself under LMC in his medical examination, is provided another

chance to bring him back to Shape-I and if he does not succeed in his

endeavour then under the laid down rules repatriation to his parent

department is the sole answer.

The repatriation of the petitioner to his parent department on

account of his being found under LMC by the two Medical Boards cannot

be held to be an illegal, unreasoned or arbitrary decision and therefore,

we find no reason to interfere with such a decision taken by the

respondents. The fitness certificate issued by Safdarjung Hospital, New

Delhi on 06.08.2014, can hardly help the case of the petitioner as under

the said Standing Order the opportunity was available to the petitioner

only twice and on both the occasions, he was found under LMC and there

is no provision for any third chance to reassess the medical category of

the petitioner.

There is no merit in the present writ petition, the same is hereby

dismissed. All the pending applications are also dismissed.

KAILASH GAMBHIR, J.

NAJMI WAZIRI, J.

OCTOBER 30, 2014 v