Ajay Ram Pal vs Union Of India & Ors
2016 Latest Caselaw 6448 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Date of decision: 7th October, 2016

+      W.P.(C) 7980/2013

       AJAY RAM PAL                                    ..... Appellants
                          Through:     Mr.Ankur Chhibber, Adv.

                          versus

       UNION OF INDIA & ORS.                         ..... Respondents
                     Through:          Mr.Rajesh Gogna, CGSC for
                                       R-1 to R-4.

CORAM:
HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE V. KAMESWAR RAO

                              JUDGMENT

INDIRA BANERJEE, J. (ORAL)

1. The petitioner initially joined the Indian Army as a Short Commissioned Officer on 27th August, 1983. After the petitioner completed his ten years as a Short Service Commissioned Officer of the Indian Army, the petitioner was appointed as Assistant Commandant of the Border Security Force on 29.12.1992.

2. According to the petitioner, the petitioner was posted to various places. The petitioner was posted in the 10666 Artillery Regiment at Bhuj from 1993 till 31.5.1995.

3. According to the petitioner, the petitioner developed an allergic skin ailment while he was posted in Bhuj, because of excessive parthinium grass, and had to be referred to a dermatologist at the Civil Hospital at Indore, who put the petitioner on steroids.

4. On 7th October, 1998, the petitioner was promoted as Deputy Commandant. While the petitioner was undergoing a Fleet Management Course at CSMT Tikenpur, the petitioner developed burning sensation in both his eyes and had difficulty in reading the black-board. Sometime in January, 1999, the petitioner was diagnosed with cataract in both eyes.

5. The petitioner has stated that the petitioner underwent Intra Occular Lens (IOL) implant in his right eye in January, 1999, and in his left eye in February, 1999 and since the surgery, the petitioner has had normal distant and near vision. On or about 3.6.2008, the petitioner was considered for promotion and promoted to the rank of 2nd In- Commandant.

6. In or about April/May, 2012, the batch of the petitioner was considered for promotion to the rank of Commandant and a Medical Board was duly constituted to assess the medical category of the candidates including the petitioner. The Medical Board declared the petitioner to be in SHAPE-2 Category, because of the IOC implant that the petitioner had undergone. The Medical Board found that the disability of the petitioner was contracted in service. The Medical Board, however, held that the disability was not attributable to the service of the petitioner.

7. The petitioner claims that the petitioner had been considered for promotion along with others junior to him. The petitioner was however, not promoted, as he was medically found to be in the SHAPE-2 Category. According to the petitioner, many of the juniors of the petitioner, who were found to be SHAPE-1 Category were promoted. This is not in dispute.

8. On or about 29th May, 2012, the petitioner made a representation to

the respondent authorities, requesting that the petitioner be treated as in the SHAPE-1 Category and be promoted to the rank of Commandant along with his batch-mates.

9. It appears that the representation of the petitioner was favourably considered by the IG BSF, Tripura, who vide his letter dated 31.05.2012, recommended that the petitioner be treated as in SHAPE-1 Category.

10. The competent authority, however, rejected the request of the petitioner by an order dated 02.07.2012. The request of the petitioner to be promoted Commandant was rejected on the ground that he had been denied promotion as he was in SHAPE-2.

11. Mr. Chibber, appearing on behalf of the petitioner submitted that the petitioner was categorized in SHAPE-2, because of his disability, which had occurred while the petitioner was in service. The petitioner was, therefore, entitled to be granted relaxation for promotion to the next rank, and more so since the petitioner had been granted promotion from the post of Deputy Commandant to the second-in-Command, notwithstanding the same disability.

12. Mr.Chhibber argued that as per the policy of the respondents declared on 29.10.2008, persons who are in SHAPE-2 are to be treated in SHAPE-1 category by giving relaxation under clause 4.14 of the said policy. Even otherwise, the policy as submitted by Mr.Chhibber envisaged that persons in SHAPE-2 category above the age of 55 years, would be treated as in SHAPE-1 category. Mr. Chhiber has argued that the enhancement of the age of relaxation, which was earlier 50 years, to 55 years is irrational and arbitrary.

13. We cannot go into the dispute as to the reason for which the petitioner contracted cataract. As noted by the respondent-authority,

cataract was contracted while the petitioner was in service but it cannot conclusively be held that cataract was contracted due to the service actually rendered by the petitioner.

14. It was argued on behalf of the respondents that prior to 2001, no relaxation was allowed for those found to be in SHAPE-2. However, from 2001 onwards, relaxation was allowed to officers who had crossed 50 years of age. It is the case of the respondents that the age of relaxation has now been enhanced to 55 years. The petitioner being less than 55 years of age, he does not qualify for the relaxation.

15. We have not been able to appreciate the logic behind the enhancement, if any, of the age for relaxation of medical fitness. Be that as it may, we need not embark upon adjudication of the correctness of the change in policy having regard to the facts and circumstances of this case where admittedly the position of the dominant eye is within 6/9 upon correction after IOL implant. What is clear from the policy is that, to be categorized in SHAPE-I, the dominant eye should not be worse than 6/9 with correction. The petitioner, must, therefore be treated as in SHAPE-I. Further, it would be pertinent to note that even though the petitioner underwent IOL implant in both his eyes in January 1999 and February, 1999 respectively, in 2008, in spite of the IOL implant, the petitioner was promoted from the rank of Deputy Commandant to 2nd In-Commandant. It is nobody's case that there has been any further deterioration in the vision of the petitioner.

16. Having promoted the petitioner from the rank of Deputy Commandant to 2nd In-Commandant, notwithstanding his IOL implant, the petitioner cannot be denied further promotion on the ground of the same disability, if any, that existed at the time of his promotion in 2008

from the rank of Deputy Commandant to the rank of 2nd In-Commandant, and more so, when it is nobody's case that there has been further deterioration in his vision.

17. As argued by Mr.Gogna appearing on behalf of the respondents, policy issues are not usually interfered in proceedings under Article 226 of the Constitution of India. We have not gone into the appropriateness of the policy change. We find that denial of promotion to the petitioner on the ground of the same disability which existed at the time of his earlier promotion, is totally arbitrary and is not sustainable in law. The petitioner has, in any case, to be treated as in SHAPE-I as his vision is within limit upon correction by IOL implant. We accordingly allow the writ petition and we direct the respondents to consider the petitioner for promotion by treating the medical category of the petitioner as in SHAPE-1, if he is otherwise eligible.

18. Having regard to the judgment of the Supreme Court in Ramesh Kumar vs. Union of India & Ors. reported in (2015)14 SCC 335 cited by Mr.Chhibber, we direct the respondents to grant seniority and other benefits to the petitioner from the date, his juniors have been promoted to the rank of Commandant. The pay of the petitioner shall also notionally be fixed in the rank of Commandant with effect from the date from which his juniors were promoted to the said rank.

INDIRA BANERJEE, J

V. KAMESWAR RAO, J OCTOBER 07, 2016 n/gm