Uttarakhand High Court
Neeraj Tikedar vs Union Of India & Others on 5 December, 2023
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE ACTING CHIEF JUSTICE SRI MANOJ KUMAR TIWARI
AND
THE HON'BLE SRI JUSTICE VIVEK BHARTI SHARMA
SPECIAL APPEAL NO. 311 OF 2022
5TH DECEMBER, 2023
Neeraj Tikedar ...... Appellant
Versus
Union of India & others ...... Respondents
Counsel for the appellant : Mr. S.K. Mandal, learned counsel
Counsel for the respondents : Mr. V.K. Kaparuwan, learned
Standing Counsel for the Union of
India
The Court made the following:
JUDGMENT:
(per Hon'ble The Acting Chief Justice Sri Manoj Kumar Tiwari)
This intra-court appeal is filed by writ
petitioner challenging the judgment and order dated
19.07.2022, passed by learned Single Judge, in Writ
Petition No. 846 (S/S) of 2018.
2) Operative portion of the impugned judgment is
reproduced below :
"9. In that view of the matter, since
consistently the medical examination, which was
conducted upon the petitioner either by the Medical
Board of the respondents' department or by the
Chief Medical Officer of the State, the petitioner had
been consistently found to be suffering from medical
discrepancies, due to which he could not be
considered for grant of compassionate appointment,
as against the post for which, he has applied.
10. In view of the said apparent physical
anomaly, the rejection of the candidature of the
petitioner by the impugned order dated 7th March
2018 cannot be said to be suffering from any defect
of the procedural aspect, contained in the Standing
Orders, referred to hereinabove, governing the grant
of compassionate appointment.
11. Hence, the rejection of the petitioner's
appointment on compassionate ground was justified
and it didn't suffer from any apparent error, because
the examination of a medical suitability of a
candidate, to be appointed would be exclusively
falling within the domain of consideration of the
respondents department, which was resorted to by
them by the Medical Board and the Review Medical
Board, and both phases, the petitioner was not
found to be medically fit, hence the candidature of
the petitioner was rightly rejected by the
respondents for not being granted with the
compassionate appointment. Hence, the writ petition
lacks merit and the same is accordingly dismissed."
3) It is not in dispute that father of the appellant
was serving as Constable (General Duty) in Central
Reserve Police Force (for short 'CRPF'), who died while in
service on 14.08.2013. Appellant applied for
compassionate appointment. His claim for
compassionate appointment was considered and rejected
by the competent authority in CRPF, vide order dated
07.03.2018, on two grounds, namely -
i) He is under weight by 2.5 Kg., and his BMI is 16.9
ii) Orchiectomy was done in his childhood (left testis
absent).
4) Feeling aggrieved by rejection of his claim,
appellant approached the writ court by filing a writ
petition No. 846 (S/S) of 2018. The writ petition was
dismissed by the impugned judgment. Appellant has
challenged the impugned judgment mainly on the
ground that relevant provision contained in the Policy,
governing compassionate appointment in CRPF, has not
been considered.
5) Reliance is placed upon Clause VI(k) of
Standing Order No. 05 / 2001, which is enclosed as
Annexure No. -11 to the counter-affidavit. The same is
extracted hereunder :
"VI(k). In case a candidate is found unfit while
assessing the suitability / eligibility by the Board of
Officers then suitability / eligibility for next lower post
i.e. enrolled followers etc. be assessed. In case they
have shown unwillingness, the same may be obtained
in writing and kept on record and matter may be
disposed off."
6) Learned counsel for the appellant submits that
appellant's writ petition was dismissed only on the
ground that the Board constituted to assess suitability of
the appellant found him to be medically unfit for the post
of Constable (General Duty). His further submission is
that learned Single Judge completely overlooked clause
VI(k) of the Standing Order, which was enclosed with
the counter-affidavit filed on behalf of the respondents.
7) We find substance in the said submission
made on behalf of appellant. In the impugned
judgment, there is no discussion regarding Clause VI(k)
of the Standing Order, which provides that in case a
candidate is found unfit for appointment as Constable
(General Duty), then his suitability / eligibility can be
considered for next lower post, i.e., enrolled followers.
It is not the case of respondents that petitioner
expressed unwillingness for appointment as Enrolled
Follower, therefore, his claim for appointment to such
post deserves to be considered.
8) Mr. V.K. Kaparuwan, learned counsel
appearing for the respondents, fairly submits that a
person, who is found unfit for the post of Constable
(General Duty) can be considered for appointment as
Follower / Gardner (Mali) / Cook etc.
9) Since the provision contained in Clause VI(k)
of the Standing Order, as extracted above, creates a
right to be considered for compassionate appointment on
a post lower to the post of Constable (General Duty), in
the event a candidate is found unfit for appointment as
Constable (General Duty), which provision has been
overlooked in the impugned judgment, therefore, the
impugned judgment is liable to be set aside. We,
therefore, set aside the judgment dated 19.07.2022,
rendered in Writ Petition No. 846 (S/S) of 2018, and also
the rejection order dated 07.03.2018, impugned in the
writ petition.
10) In such view of the matter, the Special Appeal
is allowed. The competent authority in CRPF is directed
to reconsider appellant's claim for compassionate
appointment on a post which is lower in status to that of
Constable (General Duty) in terms of Clause VI(k) of the
Standing Order No. 05 / 2001. Such consideration shall
be made within six weeks from date of production of
certified copy of this judgment before the authority
concerned.
__________________________
MANOJ KUMAR TIWARI, A.C.J.
___________________
VIVEK BHARTI SHARMA, J.
Dt: 5TH DECEMBER, 2023
Negi
