2. The Director General, Sashastra Seema Bal, Ministry of Home Affairs, East Block, R.K. Puram, New Delhi

Transcription

1 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) W.P.(C) NO.2809 OF 2010 SHRI JIWAN CHANDRA PANT, S/o Shri L.P. Pant, Assistant Commandant, Office of the Deputy Inspector General, Training Centre, Salonibari, SSB, P.O. Salonibari , Dist. Sonitpur, Assam. - Versus - PETITIONER 1. The Union of India, represented by Secretary to the Government of India, Ministry of Home Affairs, Griha Mantralaya, New Delhi. 2. The Director General, Sashastra Seema Bal, Ministry of Home Affairs, East Block, R.K. Puram, New Delhi Assistant Director (Pers-I) Force Hqr, SSB, R.K. Puram, New Delhi The Inspector General, FIR HQ, SSB, Guwahati. 5. The Staff Officer (Admn.), FIR HQ SSB, Guwahati. 6. The Deputy Inspector General(TC), Office of the Deputy Inspector General, Training Centre, Salonibari, SSB, P.O. Salonibari ,

2 2 Dist. Sonitpur, Assam. - RESPONDENTS P R E S E N T THE HON BLE MR JUSTICE B.K. SHARMA. For the petitioner - Mr. S. C. Biswas, Mr. R. Mazumdar, Mr. M. Biswas, Mr. D. Medhi, Mr. A. Saikia, Ms S. Devi, Mr. G. Singh, Mr. R.K. Jain, Advocates. For the respondents - Mr. J.M.A Choudhury, Central Govt. Counsel. Date of hearing & Judgment and order JUDGMENT AND ORDER (ORAL) Heard Mr. R. Mazumdar, learned counsel for the petitioner as well as Mr. J.M. A. Choudhury, learned Central Government Counsel. 2. The petitioner, who is presently serving as Assistant Commandant in the S.S.B., is aggrieved by deprivation of the benefit of Senior Time Scale of Rs.10, ,200/- Pre-revised (Since Revised PB + GP 6600/-) and so also the benefit of

3 3 promotion to the post of Deputy Commandant. The petitioner has been deprived of the said benefit on the ground that he is unfit for the Senior Time Scale and promotion, being medically categorized as colour blindness. The petitioner has placed reliance on the circular dated and in respect of his plea that irrespective of such colour blindness, he is entitled to get the aforesaid benefits. For a ready reference, the said two circulars are quoted below :- (Typed copy) MINISTRY OF HOME AFFAIRS (PERS-II) Subject :- Introduction of Medical category SHAPE-I for the purpose of promotion of CPMS regarding. Reference CRPS, UO No.P-Vii/I-Pers-I dated 14 th May,2002 on the subject mentioned above. 2. The question of promotion of force personnel recruited with colour blindness has been examined in this Ministry and it has been decided that this 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

4 4 (Permanent) on their turn, if they are otherwise fit for promotion. Sd/- S.C. Saksena, Desk Office P.C. CRPF (Shri O.P. Singh, DIG (Pers) MHA UO No /52/2001-Pers-II dated 17 th May, DsG BSF/CISF/ITBP/SSB, New D. 2. DG, Assam Rifles, Shillong. (Typed copy) MINISTRY OF HOME AFFAIRS (PERS-II) Subject :- Prescribed Medical category SHAPE-I for compatised personnel of CPMS. Reference DG, CRPF UO No.P-Vii/I Pers. I dated the 19 th July,2002 on the subject mentioned above wherein they have sought classification with regard to the promotion of force personnel with colour blindness for the following categories. (i) In whose cases colour blindness was not a disqualification. (ii) In whose cases though colour blindness was disqualification but the same could not be detected at the time of their recruitment.

5 5 (iii) In case force personnel with colour blindness could not be promoted, whether they are to be medically invalidated out of service. 2. This has been examined in this Ministry. Attention is invited to this Ministry s U.O. of even number dated the 17 th May, 2002 which does not distinguish between force personnel, in whose cases, colour blindness was a disqualification or otherwise. It simply states that, whosoever has been selected with colour blindness, whether by ignorance or otherwise, cannot be treated differently after putting so many years of service. The illness cannot be held against them and therefore they will be eligible for promotion, despite their colour blindness, if they are, otherwise fit for promotion. 3. This clarifies position regarding categories (ii) and (iii) in Para-1 above. Such question regarding the category (iii) does not arise at all. Sd/- D.S. Mishra, Director (Pers) Tele No

6 6 DG. CRPF (Shri Man Singh Rawat, Addl. DIG) MHA UO No /52/2001-Pers-II dated Copy for information to :- 1. DsG BSF/CISF/ITBP/SSB, New D. 2. DG, Assam Rifles, Shillong. 3. The petitioner has also referred to the case of one Shri Madhab Chandra Ghosh, who in spite of being declared to have suffered from colour blindness, has been conferred with the said benefits. 4. In the counter affidavit filed by the respondents, while broadly agreeing to the aforesaid fact including the sincere and devoted services of the petitioner, which earned commendation from the respondents, it has been stated that the case of the petitioner could not be considered in view of the subsequent circular dated , which has been issued in reference to earlier circular dated For a ready reference, the said circular dated is quoted below :- MINISTRY OF HOME AFFAIRS (PERS-II) Subject :- Colour blindness.

7 7 Reference this Ministry s UO No /52/2001-Pers-II dated , wherein following has been mentioned. 1. the question of promotion of Force personnel recruited with colour blindness has been examined in this Ministry and it has been decided that this 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 provided immunity to those force personnel who were recruited till date i.e 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 provision in the present health care system, as there is no chance of improvement in colour blindness patients being a congenital disorder.

8 8 3. The Central Para Military Forces perform a critical role in maintaining internal security and guarding of national borders. 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 disqualifications for selection in service for the CPFs. If any person with colour blindness has been selected by chance in the past, 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 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 CPF is not able to find a suitable position

9 9 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 , such person shall be placed in SHAPE-V and be 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/- (Barun Kumar Sahu) Director (Pers) Tele No DG. ARs DG BSF DG CRPF DG CISF DG ITBP DG NSG DG SSB ADG (Med)CPFs

10 10 MHA UO No /1/2008-Pers-II dated 29 Oct 2008 Copy for information to :- 1. Dir. (Pers.I) 2. S.O.(Pers III) 5. On perusal of the above three circulars, what has transpired is that earlier an S.S.B. personnel with colour blindness was entitled to get promotion irrespective of such medical incapacity. However, in term of the 3 rd circular dated , all such cases which came to light where a person was appointed prior to with colour blindness, the concerned Force (herein S.S.B) will try to adjust such a person in non-technical security force where colour blindness may not be a disqualification. However, if the Central Police Force is not able to find 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. In terms of the said circular-letter dated , the cases of colour blindness, if detected in the appointees in the period after , such person shall be placed in SHAPE-V and be boarded out as per the laid down procedure for disability. 6. While Mr. R. Mazumdar, learned counsel for the petitioner submits that the aforesaid circular dated

11 does not stand on the way of promotion of the petitioner inasmuch as it is not the case of the respondents that because of colour blindness of the petitioner, efforts are being made to adjust him in non-technical security force. According to him, the services of the petitioner having been utilized and the petitioner having been allowed to continue in service, the service benefits, referred to above, cannot be denied so long as the petitioner remains in the S.S.B. 7. On the other hand, Mr. J.M.A. Choudhury, learned C.G.C, upon a reference to the said circular dated , submits that since the colour blindness of the petitioner is an admitted position, there is no question of considering his case for promotion. According to him, since the case of the petitioner is required to be considered for boarding out as per SHAPE, in such a situation, he cannot be conferred with benefit of promotion. 8. I have considered the submissions made by the learned counsel for the parties and the materials on record. 9. So far as the grant of Senior Time Scale, referred to above, is concerned, it is submitted that the incumbents remained in the same positions with the same duties and functions and there being no

12 12 functional difference on grant of Senior Time Scale, the aforesaid circular dated cannot be applied for depriving the said benefits. Needless to say that the conferment of Senior Time Scale does not involve any upward movement. The order dated , by which the Senior Time Scale of Pay was provided to the incumbents, will go to show that the same was not by way of promotion, but the incumbents were granted with the benefit of Senior Time Scale of Pay in the same position/post. 10. As regards the promotion to the post of Deputy Commandant, it is on record that although said Madhab Chandra Ghosh was declared to be colour blind, but his case was subsequently reviewed and was granted the promotion. On review by the Medical Board, he was found to be in category of SHAPE-I instead of SHAPE-II and accordingly, he was granted the benefit of promotion to the post of Deputy Commandant. 11. Considering the matter in its entirety, this writ petition is disposed of directing the respondents to dispassionately consider the case of the petitioner for grant of Senior Time Scale taking note of the fact that the post remains the same and there is no any functional difference. As regards the promotion to the post of Deputy Commandant, the respondents may

13 13 consider the case of the petitioner afresh as was done in the case of said Shri Ghosh. Let the entire exercise be carried out as expeditiously as possible, preferably within 3 (three) months. 12. With the aforesaid observation and direction, the writ petition stands disposed of. kotoki JUDGE