Ct/Gd Bhau Govind Shinde vs Union Of India & Ors.
2017 Latest Caselaw 4360 Del

21

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 WP(C) 7572/2014

                                     Date of decision: 23rd August, 2017

      CT/GD BHAU GOVIND SHINDE                  ..... Petitioner
                   Through: Mr.N.L.Bareja, Adv.

                        versus

      UNION OF INDIA & ORS.                ..... Respondents
                    Through: Mr.Kirtiman Singh, CGSC with
                    Mr.Waize Ali Noor, Mr.Prateek Dhanda, Advs.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE NAVIN CHAWLA


      SANJIV KHANNA, J. (Oral)

Bhau Govind Shinde, Constable (General Duty), had applied

for selection as Sub-Inspector (General Duty), (Sub-Inspector (GD)

for short), in Central Reserve Police Force through Limited

Departmental Competitive Examination 2006-07 LDCE (LDCE for

short).

2. The petitioner was successful in the written test, had

qualified the physical efficiency test and had satisfied physical

measurement standard. He was subjected to detailed medical

WP(C) 7572/2014 Page 1 examination along with other candidates and declared fit by the

medical board.

3. The petitioner was not selected for he had not secured

minimum qualifying marks in the interview.

4. Fifty one candidates as per merit list were appointed to the

post of Sub-Inspector (GD) on different dates.

5. Some other unsuccessful candidates had filed writ petitions

before the Delhi High Court challenging the selection process on

different grounds including minimum qualifying marks in the

interview. These writ petitions were partly allowed vide common

judgment of the Delhi High Court, dated 2nd May 2008, in WP(C)

Nos.1510/2007, Constable Barot Jignesh Kumar vs. UoI & Ors.

and other cases. The authorities were directed to re-examine the

stipulation of minimum qualifying marks in the interview,

particularly when there was no such requirement for direct

recruitment to the same post in the other Central Police

Organizations (CPO) under the LDCE. The Authorities were

required to take a decision within four months, whether the

minimum qualifying marks in the interview should be retained. In

WP(C) 7572/2014 Page 2 case it was decided to dispense with the said requirement, the writ

petitioners would be considered for promotion to the rank of Sub-

Inspectors (GD) on the basis of written test /marks obtained by

them in LDCE 2006-07. The Court observed that a number of

posts had remained unfilled, for against 90 vacancies only 51

candidates had been appointed to the post of Sub-Inspector (GD).

Had there been no provision for minimum marks in the interview,

several candidates would have been selected.

6. Pursuant to the aforesaid directions, the authorities examined

the issue and the petitioner i.e. Bhau Govind Shinde was issued an

offer of appointment letter dated 2nd March, 2011 for promotion as

Sub-Inspector (GD).

7. The petitioner tendered his technical resignation from the

post of Constable(GD) for joining as Sub-Inspector(GD), which

vide order dated 16th March, 2011 was accepted with effect from

the said date. The petitioner's past service, it was observed, would

be counted for all purposes.

8. However, vide office order dated 11th May, 2011, the

promotion dated 16th March, 2011 was cancelled reverting the

WP(C) 7572/2014 Page 3 petitioner to the post of Constable (GD), with the direction to join

his earlier unit. The petitioner, it was observed, was found to be

unfit for DESO Course due to Low Medical Category as he was

suffering from epilepsy.

9. The petitioner made representations and protested.

10. On 8th August, 2011, the petitioner was referred to Civil

Hospital, Ahmadabad for medical examination and opinion of

Specialists. Petitioner, on examination, was declared medically fit

after examination by the Review Medical Board constituted in Civil

Hospital, Gandhi Nagar, Gujarat. He was declared to be Shape-I.

Necessary endorsement was recorded in the petitioner's health

records.

11. The petitioner, along with the report of the Review Medical

Board, made representation dated 16.12.2011 requesting for issue

of the offer of appointment letter. Correspondence followed and the

petitioner was again subjected to medical examination on 16th

September, 2013 by the Medical Board at Delhi under the

directions of the Director General. The petitioner was declared

medically fit in this examination. Opinion of the Medical Board

WP(C) 7572/2014 Page 4 dated 16th September, 2013 was forwarded to the authorities for

appropriate consideration.

12. Notwithstanding the aforesaid medical opinions, the Director

General, vide order dated 9th May, 2014 rejected the petitioner's

request for appointment as Sub-Inspector(GD) as devoid of merit,

for the petitioner was unfit at the time of recruitment /selection and

his subsequent upgrade to Shape-I after completion of recruitment

process was inconsequential. The petitioner was in Shape-II as per

the Annual Medical Examination held on 12th June, 2007, on

account of Epilepsy. He was subsequennntly upgraded to Shape-I

on 8th August, 2011. The offer of appointment letter was issued on

15th October, 2010. The validity of the offer of appointment was

six months, and therefore, the offer of appointment was rightly

cancelled.

13. The petitioner was, as per Annual Medical Examinations, in

Shape-II, between 2007 and 8th August, 2011. However, the

petitioner was in Shape-I when he had appeared as a candidate in

the LDCE 2006-07. The petitioner was declared fit by the Medical

Board who had examined candidates who had qualified and had

WP(C) 7572/2014 Page 5 cleared the written examination, physical measurements and

physical efficiency test in June, 2006. As noted by us above, the

petitioner was upgraded to Shape-I in the Annual Medical

Examination which was conducted on 8th August, 2011.

14. A short question which arises in the aforesaid factual matrix

is whether the petitioner who was not in Shape-I from 2007

onwards till Annual Medical Examination held on 8 th August, 2011,

was disqualified and ineligible.

15. The answer to this question depends upon the Standing

Orders and what is mandated and stipulated thereunder. Standing

Order No. 01/2010 stipulates that the candidates should be in

medical category Shape-I. Temporary unfit are not eligible and

stand disqualified.

16. The petitioner was in Shape-I on the date of the application.

The petitioner satisfies the said condition of the Standing Order No.

1/2010.

17. The Standing Order No.01/2010 also postulates medical

examination at stage V i.e. the candidates who have been successful

WP(C) 7572/2014 Page 6 in the written exam and PET. The candidates have to undergo a

detailed medical examination, to be declared either fit or unfit. No

candidate can be categorized as "temporarily unfit". The petitioner

was subjected to the stage V medical examination in June, 2006 and

was declared fit. The petitioner, therefore, satisfies the second

requirement of the said Standing order.

18. In the present case, extraordinary and peculiar situation had

arisen as the offer of appointment was issued after nearly 5 years

i.e. on 02.03.2011, though the LDC examination and medical

examination was held in 2006.

19. The petitioner was de-categorized and downgraded in the

Annual Medical Examination on 12.06.2007, albeit the petitioner

claims and asserts that he had recovered. He was upgraded to

Shape-I as is clear, when the Annual Medical Examination was

held on 8th August, 2011. The petitioner submits that he was in

Shape - I when the offer of appointment letter dated 02.03.2011

was issued.

20. As there was a considerable time gap between 2006 and

2011, it would have been appropriate and just for the respondents to

WP(C) 7572/2014 Page 7 have subjected the petitioner to fresh medical examination as there

was doubt as to his medical category. The last medical examination

of the petitioner was held two years back on 4th May, 2009. At that

time, the petitioner was categorized as in Shape-II, on account of

epilepsy. The petitioner then on regular medication/treatment. No

Annual Medical Examination was held in 2010. Thus, it was

necessary for the respondents to ensure that the petitioner was given

a fair and proper chance for promotion, as the earlier Annual

Mediacl Examination was in 2009. The failure of the respondents

coupled with the fact that the petitioner declared to be in Shape-I in

the Annual Medical Review held on 8th August, 2011 and since

then, the petitioner has been in Shape-I throughout, we feel, it

would be unfair and unjust to treat him as medically disqualified

and unfit.

21. The respondents have submitted and raised the plea of delay

and laches. The contention is fallacious and unattainable. The

respondents had twice subjected the petitioner to medical

examination by two different boards. On each occasion, the

petitioner was declared fit. The final rejection order was passed on

WP(C) 7572/2014 Page 8 9th May, 2014. Till then the matter/issue of appointment was

pending consideration of the respondents. The present writ petition

was filed in October, 2014.

22. The last issue relates to the date from which the petitioner

should be treated as having joined the post of Sub-Inspector (GD).

By order dated 3rd September, 2015, the respondents were asked to

submit details of 39 candidates who were appointed to the post of

Sub-Inspector(GD) pursuant to the decision of the Delhi High

Court in Constable Barot Jignesh Kumar (supra). The respondents

have filed an affidavit enclosing details of appointments. Twenty

four candidates were appointed between 2009 to 2012. The

petitioner herein would be ranked as the junior most and below

them. In case these candidates have been given benefit from an

earlier date, the petitioner would be given benefit from the earlier

date subject to the condition that he would rank at the bottom. The

counsel for the petitioner has consented and agreed that the

petitioner should be ranked junior most in the hierarchy of the

candidates who were appointed at the rank Sub-Inspector(GD) in

2009-2012. The petitioner would not be entitled to back wages.

WP(C) 7572/2014 Page 9 However, while fixing the pay scale, the petitioner will be given the

benefit of the notional date of appointment i.e. he would be given

the benefit of increments without payment of back wages.

23. The respondents would accordingly issue a letter of

appointment to the petitioner for the post of Sub-Inspector (GD)

within a period of four months from the date a copy of this order is

received.

24. Writ petition is accordingly disposed of, without any order as

to costs.

                                                   SANJIV KHANNA, J


                                                    NAVIN CHAWLA, J
      AUGUST 23, 2017
      RN




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