Delhi High Court
Ex Ct./Dcpo Sunil Kumar vs Union Of India & Others on 30 September, 2024
Author: Navin Chawla
Bench: Navin Chawla
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30.09.2024
+ W.P.(C) 11715/2021
EX CT./DCPO SUNIL KUMAR .....Petitioner
Through: Mr.U Srivastava, Mr.M.K.
Gaur, Advs.
versus
UNION OF INDIA & OTHERS .....Respondents
Through: Ms.Nidhi Raman, CGSC,
Mr.Zubin Singh, Ms.Rashi
Kapoor and Mr. Akash Mishra,
Advs. with De/Exe-Rishi
Kaushik.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
NAVIN CHAWLA, J. (ORAL)
1. This petition has been filed by the petitioner challenging the
order dated 21.12.2020 passed by the respondents, terminating the
services of the petitioner on the ground that he is not fit for permanent
appointment due to low medical category, as well as the order dated
20.07.2021 passed by the respondents, rejecting the request of the
petitioner for grant of invalid pension.
2. It is the case of the petitioner that the petitioner was appointed
as a Constable in the CISF on 02.11.2013, on probationary basis. The
petitioner remained on leave from 06.04.2015 to 18.09.2017 as he was
diagnosed with tuberculosis and remained under treatment. He
rejoined the duties with effect from 19.09.2017 and was advised for
light duty. In the Medical Board conducted on 28.09.2020, he was
diagnosed as suffering from Locomotor Disability in both lower limbs
(paralysis) and was assessed as suffering from 90% physical
impairment. Based on this report, vide the Impugned Order, he was
declared unfit for the permanent appointment and his services were
terminated with effect from 21.12.2020. The petitioner claims that he
would be entitled to invalid pension in accordance with the Office
Memorandum dated 12.02.2019 as he had been examined at the time
of his appointment and was declared medically fit.
3. The learned counsel for the petitioner places reliance on the
judgment of the Supreme Court in Dharamvir Singh v. Union of
India & Ors., (2013) 7 SCC 316, in support of the prayer made by the
petitioner.
4. On the other hand, the learned counsel for the respondents
submits that the petitioner was appointed only on a probationary basis.
The medical examination conducted at that time is not for the
appointment in a permanent capacity, and only routine tests are done.
5. She further submits that the petitioner remained on leave from
06.04.2015 to 18.09.2017, which was regularized considering it to be
an extraordinary leave. On his rejoining, at least four opportunities
were given to the petitioner to clear the medical examination, as for
being granted permanent status on completion of the probation period
one of the pre-conditions is for the candidate to be having SHAPE-1
medical category. She submits that in the present case, the petitioner
was in fact reported to be SHAPE-3 permanent with multiple CNS
tuberculosis. Due to his medical condition, he was not found fit and
eligible under Rule 25 of the CISF Rules, 2001 to be granted a
permanent status. She also places reliance on the judgment of the
Supreme Court in NO. 14666828M EX CFN Narsingh Yadav v.
Union of India and Others, (2019) 9 SCC 667, to submit that while
considering whether the disability suffered by the petitioner can be
said to be attributable to or aggravated by service, all attendant
circumstances have to be looked into and the opinion of the Medical
Board, though open to judicial review, has to be given due deference.
6. We have considered the submissions made by the learned
counsels for the parties.
7. As would be evident from the above, the petitioner was
appointed only on a probationary basis on 02.11.2013. He proceeded
on leave on 06.04.2015, and remained on leave for 897 days, till
18.09.2017. On his rejoining, the respondents conducted medical
examination wherein he was found unfit for service. Even as per the
Disability Certificate of Government of Rajasthan, he has been
declared to be suffering from permanent physical impairment with
multiple CNS tuberculosis. The petitioner, therefore, could not attain
SHAPE-1, which is a pre-requisite for his confirmation in terms of
Rule 25 of the CISF Rules, 2001.
8. Merely because his medical condition was not discovered at the
time of his appointment on probation, it cannot be said that the
medical condition is attributable to service or has been aggravated
thereby, this is more so especially keeping in view the limited period
for which the petitioner had actually worked. There is also absence of
a plea in the petition that his medical condition could actually be said
to be attributable to or to have been aggravated only because of the
service conditions.
9. As far as the Office Memorandum dated 12.02.2019, on which
reliance has been placed by the petitioner, it relates to the Government
officials who have retired from the services on account of physical or
mental infirmity, while in the present case, the petitioner was yet to be
given confirmation of his appointment and therefore, he is not covered
by the said Office Memorandum.
10. Keeping in view the peculiar facts of the present case, therefore,
we do not find it to be a fit case for interfering with the Impugned
Order dated 21.12.2020.
11. The petition is accordingly dismissed.
12. There shall be no order as to costs.
NAVIN CHAWLA, J
SHALINDER KAUR, J
SEPTEMBER 30, 2024/Arya/as
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