Madras High Court
N.Chandraswamy vs 5 The Deputy Commandant on 11 September, 2023
WP.No.12229/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 11.09.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.12229/2016 & WMP.No.10567/2016
N.Chandraswamy ... Petitioner
Versus
1 The Union of India
Rep.by its Secretary to Government Ministry
of Home Affairs New Delhi-110 001.
2 The Honble Director General
Central Industrial Security Force CGOs
Complex Lodhi Road FHQs New Delhi-110 003.
3 The Inspector General
Central Industrial Security Force South
Sector Head Quarters Chennai Port Trust
Campus Near War Memorial Chennai-600 009.
4 The Deputy Inspector General
Central Industrial Security Force South
Zone Head Quarters Rajaji Bhawan Besant
Nagar Chennai-600 090.
5 The Deputy Commandant
Central Industrial Security Force Unit CPCL
Manali Chennai-600 068. ... Respondents
1
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WP.No.12229/2016
Prayer : - Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of certiorarified mandamus To call for the
records relating to the Impugned Order passed by the 3rd respondent dated
09.03.2016 in his order No.E-31014/SS/DOC/ MACP/REP/2015/2593
communicated by the 5th respondent dated 15/16.03.2016 through his
Office Memorandum No.E-42099/CISF/CPCL/DOC/ OM/2016/826 and
quash the same and to direct the respondents to promote the petitioner as
ASI/Exe with effect from 31.03.2015 and to pay the 3rd MACP Benefits
from 11.02.2013 to 01.01.2014 and to pay all monetary benefits.
For Petitioner : Mr.A.R.Mujibur Rahman
For Respondents : Mr.J.Madhana Gopal Rao
Central Govt.Standing counsel
ORDER
(1) The writ petition has been filed in the nature of a certiorarified
mandamus seeking records relating to an order of the 3 rd respondent,
Inspector General, Central Industrial Security Force [CISF], Chennai
Port Trust Campus, Chennai dated 09.03.2016 which is impugned in
the present writ petition and communicated by the 5 th respondent on
15/16.03.2016 and to quash the same and to direct the respondents to
promote the petitioner as ASI/Exe with effect from 31.03.2015 and to
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pay the 3rd MACP benefits from 11.02.2013 till 01.01.2014 and also
all other monetary benefits.
(2) The petitioner had joined as Constable in Central Industrial Security
Force [CISF] on 11.02.1983. He had completed his training for six
months at BSF, Bangalore and had been posted to various places in
North-East India and in Southern India. He was then promoted as
Head Constable on 30.09.2004. He was then sent to the Promotion
Cadre Course in the year 2011 for further promotion as Head
Constable/GD to ASI/Exe. The course was conducted between
04.07.2011 and 29.07.2011. He qualified in the Promotion Cadre
Course. However, the petitioner was not promoted. His junior was
promoted. It was stated that in the year 2012, he was declared
'Shape-II' on the ground of diabetes. The petitioner however claims
that the medical reports were not communicated to him. It is also
stated in the affidavit that the Modified Assured Career Programmed
[MACP] Scheme was introduced with effect from 19.05.2009. This
was to grant financial upgradation. A Screening Committee has been
constituted and they should follow a time schedule and m3et thrice in
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the Financial Year .
(3) The petitioner claims that the 4th respondent, the Deputy Inspector
General, CISF, at Chennai, had informed him that his APAR was
graded as average input during the years 2009, 2010, 2011 and also
2012. He then made a representation for promotion and also for
consideration of payment of MACPS benefit. In the Impugned Order,
which is dated 09.03.2016, it had been stated that the petitioner was
declared 'not yet fit' and therefore, his request for grant of 3 rd MACPS
was rejected. It was also stated that the upgradation of ACR for the
year 2010 was also turned down. In effect, the petitioner was neither
promoted nor was he granted the benefit of 3 rd MACPS of financial
upgradation. Questioning the Impugned Order, the present writ
petition has been filed.
(4) In the counter affidavit, it had been stated that the petitioner could not
secure requisite bench mark for grant of 3rd MACPS benefit since he
failed in the Service requirements. It was found that though he was
found fit for grant of 3rd MACPS benefit with effect from 01.01.2014
and was also granted, but, since he suffered from 'Shape-II', which can
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be commonly called as 'colour blindness', he could not be either
granter promotion or be granted the financial benefit. It was stated
that since he suffered from colour vision defect right from the year
2011 and was placed in low medical category, he was not fit for grant
of promotion by the Departmental Promotion Committee. It was
however stated that the petitioner was actually in the zone of
consideration for promotion from Head Constable [GD] to ASI [Exe],
but, only because he was placed in low medical category [Shape-II],
for colour vision defect, he was declared as not fit for promotion. It
was therefore stated that the writ petition should be dismissed.
(5) One aspect which is glaring is that no enquiry was conducted and the
petitioner was not given any opportunity to defend himself with
respect to the allegation that he was not found fit for promotion owing
to the defect which he suffered, namely colour blindness/Shape-II.
This runs contrary to the very Circular of the respondents dated
29.10.2008 which was in effect when the petitioner's promotion came
to be considered. The said Circular is extracted infra in entirety. It
must also be stated that this particular Circular was considered by a
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Division Bench of Delhi High Court in a batch of matters, WP [C]
No.5077/2008 [Sudesh Kumar Vs. Union of India and Others]
batch. In a judgment delivered on 22.03.2011, the Division Bench
has extracted the Circular. It is as follows:-
''The policy circular dated 29.10.2008 issued
by Ministry of Home Affairs which reads as under:-
"Subject: Colour Blindness:
Reference this Minisry"s UO
No.145020/52/2001-Pers-II dated 17.05.2002
wherein following has been mentioned.
"the question of promotion of Force
personnel recruited with colour blindness has
been examined in this Ministry and it has been
decided that his disability, ignored at the time
of their recruitment, cannot be held against
them now. All such force personnel, recruited
with colour blindness are therefore eligible for
promotion, despite their being in medical
category SHAPE 2 (Permanent) on their turn,
if they are otherwise fit for promotion."
2. The above order provides immunity to
those force personnel who were recruited till
dated i.e. 17.05.2002. However, this order also
placed such personnel in Shape 2 (Permanent)
meaning thereby that they would be boarded
out after 4 years as per provision of SHAPE
order and also as per provisions in the present
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health care system, as there is no chance of
improvement in colour blindness patients
being a congenial disorder.
3. The Central Para Military Forces
perform a critical role in maintaining internal
security and guarding of National Border. By
very nature the job requirements are technical
in nature requiring a high level of physical
fitness and abilities. The selection process is
also rigorous in nature and every candidate
must pass through medical examinations and
physical efficiency test. The colour blindness is
one of the disqualification for selection in
service for the CPFs. If any person considering
the requirement of the CPFs and in the interest
of the person he or she should be boarded out
on account of physical disability. At the same
time, if the person has served for a number of
years in a force, it may not be fair to remove
him summarily. It has therefore, been decided
that in all such cases which came to light
where a person was appointed prior to
17.05.2002 with colour blindness, the
concerned Force will try to adjust such a
person in non technical security force where
colour blindness may not be a disqualification.
However, if the CPFs is not able to find out a
suitable position for the person in the force
he/she may be removed from service after
giving due opportunity to defend his/her case.
The cases of colour blindness if detected in the
appointees in the period after 17.05.2002 such
person shall be placed in SHAPE-V and be
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boarded out as per the laid down procedure
for disability.
4. CPFs and ADG (Medical) shall also
take all measures to see that at the time of the
medical examination/PET, the candidates are
thoroughly screened for disabilities like colour
blindness and in case of detection of such
defects at a later date there should be in built
mechanism to fix responsibility and take
exemplary disciplinary action against those
found guilty.
Sd/-
(Baraun Kumar Sahu) Director (Pers.)"
(6) A further Circular was also issued which clarified the above Circular
dated 29.10.2008. The same was dated 11.03.2011 and it had been
issued by the Ministry of Home Affairs and reads as follows:-
''The policy circular dated 11.03.2011 issued by
the Ministry of Home Affairs which reads as under:-
''Subject: Colour Blindness:-
In continuation to this Ministry's UO of
even number dated 29.10.2008 and in
supersession of this Ministry's UO of even
number dated 08.03.2011, on the subject cited
above, the matter has been reconsidered in
this Ministry and after taking into
consideration comments of ADG[Med] CPFs,
the competent authority has approved the
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following:-
[a]All duties where use of fire
arms/identification of various types of
coloured signals/identification of criminals in
mob/use of specialized equipments are not
regularly required and public safety is not
involved, may be defined as non-technical
duties.
[b]In MHA UO of even number dated
29.10.2008, word 'Non Technical Security
Force' implies for 'Non-Technical Security
Duties' within the Force and does not mean
creation of any separate Non-technical
Security Force.
2.It is further clarified that promotion of
all such force personnel recruited with colour
blindness prior to 17.05.2002 will continue to
be governed by this Ministry's UO No.I-
45020/52/2001.Pers-II dated 17.05.2002.
3.This issues with the approval of the
Secretary [IS].
Sd/----
[Ajay K.Singh]
Director [Pers.]''
(7) It is thus seen that in the Circular first referred above, dated
29.10.2008, it had been stated that all the Force personnel recruited
with colour blindness, are eligible for promotion despite their being in
medical category Shape-II [permanent], if they are otherwise fit for
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promotion. In the instant case, in the counter affidavit, the
respondents have very categorically stated that the petitioner was fit
for promotion. It was stated as follows:-
''4....Further, the petitioner had undergone
Promotion Cadre Course from HC[GD] to ASI[Exe]
at MPRTC Behror w.e.f. 04.07.2011 to 29.07.2011 and
was declared qualified vide CISF MPRTC Behror
Service Order Part II No.210/2011 dated 02.09.2011.
Petitioner was placed under low medical category
SHAPE-II for colour vision defect in the year 2011.
.....
6.......Even though the petitioner was in zone of
consideration for promotion from HC[GD] to ASI
[Exe], since he was placed in Low Medical Category
[Shape-II] for Colour vision defect from the year
2011, the Departmental Promotion committee found
that the petitioner not fit for promotion and
accordingly, he was not promoted to the rank of ASI
[Exe].''
(8) It is thus seen that the petitioner was in the zone of consideration for
promotion, but only because he suffered from colour blindness or
color vision defect, he was not promoted. This was the specific issue
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which came up for consideration before the Division Bench of Delhi
High Court and the Division Bench had stated that the Government
should frame a One Time Policy for candidates who are suffering
from colour blindness. It was stated that the respondents should
obtain better clinical evaluatory advise and seek a specific information
from Ophthalmologist with respect to the exact span of disability to
ascertain the jobs which can be performed. In the instant case, there
are no records to show that any enquiry was conducted. The learned
Central Government Standing counsel was also fair enough to state
that enquiry was not conducted. It is seen from the Circular that
removal of a person from service can be done only after an
opportunity is granted to defend his/her case. It was also stated that
only those who are in Shape-V, will be boarded out as per the laid
down procedure for disability.
(9) It is specifically contended by the learned counsel for the petitioner
that this Division Bench judgment of the Delhi High Court had not
been further put to test before the Hon'ble Supreme Court by the
respondents. The learned counsel also placed reliance on an order of
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a learned Single Judge of this Court in WP.No.22042/2016 dated
09.01.2023 [Patan Sahebjan Vs. The Union of India rep.by its
Secretary to Government, Ministry of Home Affairs, New Delhi
and Others]. In that particular case, the financial upgradation was
denied to the petitioner therein and it was contended that denial of
such financial upgradation benefit, when the petitioner was deprived
of adequate promotional avenues, would be extremely
disadvantageous to the petitioner therein.
(10) The learned Single Judge had placed reliance on the judgment of the
Hon'ble Supreme Court in Union of India and Others Vs.
Ex.HC/GD Virender Singh in SLP [C] No.16442 dated 22.08.2022.
In the said judgment, the Hon'ble Supreme Court had held as follows:-
“11. On the third aspect, we should record the
concession rightly made by the Additional Solicitor
General during the course of the hearing that the
personnel working in the Central Armed Forces would
be granted financial benefit under the MACP Scheme
on completion of prescribed years of regular service
by relaxation in cases where, on account of
administrative or other reasons, they could not be sent
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for participation in pre-promotional course. The
appellant-Union of India has agreed to accept the
directions given by the Delhi High Court in the case of
Ram Avtar Sharma v. Director General of Border
Security Force in this regard. A liberal, pragmatic and
ameliorative approach is required to succour genuine
grievances of the personnel doing duty for the nation,
owing to which they forgo participation in pre-
promotional courses. Accordingly, the third question
is answered against the appellant-Union of India.
12. In view of the aforesaid discussion, the
appeals filed by the Union of India are partly allowed
and impugned judgments, to the extent they hold that
the MACP Scheme applies with effect from 1.1.2006
and that under the MACP Scheme the employees are
entitled to financial upgradation equivalent to the next
promotional post, are set aside. MACP Scheme is
applicable with effect from 1.9.2008 and as per the
MACP Scheme, the entitlement is to financial
upgradation equivalent to the immediate next grade
pay in the hierarchy of the pay bands as stated in
Section 1, Part A of the First Schedule to the Central
Civil Services (Revised Pay) Rules, 2008. The third
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issue, which relates to the fulfilment of pre-
promotional norms for grant of financial upgradation,
is decided against the appellant-Union of India to the
extent that this would not be insisted in the case of the
Central Armed Forces personnel where, for
administrative or other reasons, they could not be sent
or undergo the pre-promotional course.....”
(emphasis supplied)
(11) It is thus seen that the petitioner herein had suffered non-grant of
promotion and denial of financial upgradation under the 3rd MACP
Scheme. The petitioner had suffered even though no enquiry was
conducted. He had not been subjected to any medical test. There are
no reports indicating that there an opinion was sought or given that
the petitioner can be placed in any other non technical post which was
the object of the Circulars issued by the respondents themselves.
(12) In view of this particular fact, the Impugned Order will necessarily
have to be interfered with by this Court.
(13) The learned counsel for the petitioner and also the learned Central
Government Standing counsel for the respondents stated that the
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petitioner had retired from service on attaining the age of
superannuation. It is therefore required that paper work has to be
done by granting notional promotion to the petitioner herein from the
date when he was actually eligible till the date when he retired from
service to the post of ASI [Exe] and also grant financial benefit under
3rd MACP Scheme. It is to be again noted that the petitioner was
declared fit for promotion, but it was only owing to him suffering
from colour blindness that he was denied promotion. Such
withholding of promotion is quite contrary to the Circulars extracted
above issued by the respondents themselves. Necessary proceedings to
be issued within a period of sixteen weeks from the date of receipt of a
copy of this order.
(14) The writ petition stands allowed and the Impugned Order dated
09.03.2016 passed by the 3rd respondent and communicated by the 5th
respondent on 15/16.03.2016 is set aside. No costs. Consequently,
connected miscellaneous petition is closed.
11.09.2023
AP
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WP.No.12229/2016
Internet : Yes
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WP.No.12229/2016
To
1 The Secretary to Government,
Union of India, Ministry of Home Affairs
New Delhi-110 001.
2 The Director General
Central Industrial Security Force CGOs
Complex Lodhi Road FHQs New Delhi-110 003.
3 The Inspector General
Central Industrial Security Force South
Sector Head Quarters Chennai Port Trust
Campus Near War Memorial Chennai-600 009.
4 The Deputy Inspector General
Central Industrial Security Force South
Zone Head Quarters Rajaji Bhawan Besant
Nagar Chennai-600 090.
5 The Deputy Commandant
Central Industrial Security Force Unit CPCL
Manali Chennai-600 068.
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WP.No.12229/2016
C.V.KARTHIKEYAN, J.,
AP
WP.No.12229/2016
11.09.2023
https://www.mhc.tn.gov.in/judis
