Neutral Citation No. - 2023:AHC-LKO:36870
Court No. - 8 Case :- WRIT - A No. - 18903 of 2021
Petitioner :- Shailesh Kumar Shukla
Respondent :- U.O.I. Thru. Secy. Ministry Of Home Affairs And Ors.
Counsel for Petitioner :- Sameer Kalia,Srideep Chatterjee
Counsel for Respondent :- A.S.G.,Sudhanshu Chauhan
Hon'ble Dinesh Kumar Singh,J.
1. Heard Shri Sameer Kalia, learned counsel for the petitioner and Shri Sudhanshu Chauhan, learned Counsel appearing for the respondents.
2. The present petition under Article 226 of the Constitution of India has been challenging the communication dated 17.05.2021 issued by the Inspector General of Police, Central Sector, Central Reserve Police Force, Lucknow whereby the petitioner has been informed that his promotion to the post of Head Constable made on 26.02.2013 has been cancelled on the ground of him being found Human immunodeficiency virus (hereinafter referred to as "H.I.V.") positive.
3. The petitioner was recruited to the post of Constable in Central Reserve Police Force (hereinafter referred to as "C.R.P.F."), a paramilitary force of Central Government on 28.08.1993. He became eligible for promotion to the post of Head Constable as per the provisions of Establishment Manual of C.R.P.F., 1976 corrected up to 11.05.2012 after he completed five years of regular service as Constable including three years duty in Battalion.
4. It appears that the petitioner unfortunately got infected with H.I.V. and was tested H.I.V. positive. In the initial medical examination, which was conducted on 04.01.2012, the petitioner was found to be in medical condition of Shape-1 category.
5. Thereafter, the petitioner was promoted to the post of Head Constable on 26.02.2013, however, his promotion was subject to the condition that he should be free from vigilance angle and no departmental enquiry/ prosecution for criminal charge was pending against him and he should be in Shape-1 category as per the Standing Order No.4 of 2008. The Establishment Manual of C.R.P.F. also provides the criteria for promotion, which would read as under:-
"11.5 APPD LIST-'A' (GD) FOR PROMOTION FROM CT TO
HC.
The CTs who fulfill the following conditions will be eligible for
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being considered for inclusion in Appd List-'A'/GD:-
i) Must have completed minimum five years regular service as Constable including three years in a duty Battalion.
ii) Must have qualified Section Commander Course (SCC)/Head Constable promotional Course (HCPC) or any other course prescribed by the DG, CRPF as per requirment.
iii) Must be in Medical Category SHAPE-1.
iv) Must not have adverse report in Confidential Card in preceding five years.
v) Must not have major punishment in preceding five years.
vi) Must have good record of service. Constables who fulfill above conditions upt a particular seniority as notified by the Dte.Genl from time to time and found fit by a Selection Board as per Standing Orders on the subject shall be brought on Approved List-'A'(GD) drawn by DIGP of GC/Principal/Commandant and their particulars forwarded to Dte.Genl, Estt Branch duly consolidated at Range/Sector/Zone Officers. After having arranged the Lists on Force Level seniority, Dte General will circulate it for the information of all concerned and they ill be released on promotion as per availability of vacancy.
Note-1 Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less and have successfully completed their probation period for promotion to the next higher grade alongwith the juniors who have already completed such qualifying eligibility service. Note-2 For the purpose of computing minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to the 1 January,2006, the date from which the revised pay structure based on the sixth Pay Commission recommendations has becn extended, shall be deemed to be service rendered in the corresponding scale of pay and grade pay extended based on the recommendations of the commission.
Note-3 Qualitative requirement of field service shall be deemed to have been condoned in the cases of Head Constables who are actively engaged in Central Sports or games by representing the Force at the AlI India Police Games or who serve as coaches or trainers of teams participating at least at national level or those posted Training Staff in Training Institutions."
6. The medical examination of the petitioner took place on
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17.05.2013 after his promotion i.e. on 26.02.2013 and he was adjudged with medical condition of Shape-2 category and thereafter, vide order dated 05.05.2014 his promotion was cancelled. It appears that the said order was not received by the petitioner and he filed representation, on which vide impugned communication dated 17.05.2021 reasons were communicated to him for cancellation of his promotion from the post of Constable to the post of Head Constable.
7. Shri Sameer Kalia, learned Counsel for the petitioner has advanced two folds submissions in support of the prayer made in the present petition; (i) that there are no different duties and responsibilities of the Head Constable than the Constable, if the petitioner is fit to discharge the functions and duties of a Constable, he is also fit to discharge the functions and duties of a Head Constable; and (ii) If the petitioner can be retained in service despite him being in medical condition of Shape-2, his promotion order dated 26.02.2013 should not have been cancelled on the ground that his category came down from P-1 to P-2. He therefore, submits that conditions for promotion that a Constable should be of medical condition of Shape-1 is arbitrary and is in violation of Article 14 of the Constitution of India.
8. He further, submits that as per the Establishment Manual of C.R.P.F., 1976, a Constable is promoted to the post of Head Constable only if he is having medical condition of Shape-1, there is no provision for subsequent medical examination after the promotion and it should be considered that the petitioner belongs to medical condition of Shape-1 when the promotion order was passed.
9. On the other hand, Shri Sudhanshu Chauhan, learned Counsel for the respondents submits that prescribing a qualification, physical fitness and medical category for a particular post is the subject matter of policy decision. The Court cannot substitute its opinion that what medical category and qualification or physical parameters should be prescribed for a particular post. He further, submits that providing the medical condition of Shape-1 category for the post of Head Constable in no manner violates Article 14 of the Constitution of India and it cannot be said that it is discriminatory or arbitrary.
10 He further, submits that initial promotion of the petitioner was provisional subject to fulfillment of the conditions as mentioned in the promotion order. The petitioner was not initially tested for his medical fitness, when the promotion order was passed on 26.02.2013 and when he was tested for his medical fitness on 17.05.2013, he was found to be having medical condition of Shape-2 category and therefore, his promotion was cancelled inasmuch as the initial promotion order was provisional one, subject to certain conditions. He also submits that the Establishment Manual of C.R.P.F., 1976 does not provide that if promotions have been made, subsequently no medical examination can be conducted, it is for the authority to conduct a
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medical examination at the time of promotion and it can be conducted later on also. It is not the case of the petitioner that he was not medically examined on 26.02.2013 when his promotion order was passed.
11. The specific stand of the respondents is that no medical examination for medical fitness was conducted initially when the promotion order dated 26.02.2013 was passed.
12. I have considered the submissions made on behalf of the parties.
13. The Article 14 of the Constitution of India comes into play when there is arbitrariness in discriminating two similarly situated persons. Prescribing particular qualification/physical standard and medical condition cannot be said to be arbitrary for the post of Head Constable. Even otherwise, employees having category P-2 are not to be given certain postings as prescribed in the Standing Order No.04 of 2008 itself. An employee with medical condition of Shape-2 category should not be given duties at difficult and solitary locations and should be preferably posted where Antiretroviral therapy (ART) facility is available. Therefore, prescribing qualifications and medical conditions of Shape-1 for the post of Head Constable in my view does not violate Article 14 of the Constitution of India as contended by learned Counsel for the petitioner.
14. The Establishment Manual of C.R.P.F., 1976 only prescribes certain qualifications for promotion to the post of Head Constable. Petitioner's qualification did not mean that if the medical examination was not conducted at the time of promotion, it cannot be subsequently, conducted. The promotion order itself discloses that promotion of the petitioner was provisional one, subject to the fulfillment of certain conditions including the petitioner being in P-1 category. As the petitioner was tested to be in medical condition of Shape-2 category, his promotion has been cancelled.
15. Considering the facts, I do not find that there is any illegality or perversity or violation of any Constitutional, legal or statutory prescription, which requires interference by this Court in cancelling promotion order of the petitioner.
16. In view thereof, I find no substance in the present petition, which is hereby dismissed.
(Dinesh Kumar Singh, J.) Order Date :- 24.5.2023 Piyush/-
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