Kailash Chand vs Union of India and others

Augustine George Masih, J.

CM. No. 2191 of 2012

Prayer in this application is for permission to place on record Annexure R/2. Prayer granted. Annexure R/2 is taken on record.

Application stands disposed of.

CWP No. 437 of 2010

Petitioner is challenging order dated 29.12.2010 issued by the Commandant, Composite Hospital, Indo Tibetan Board Police (hereinafter referred to as ''ITBP''), Ministry of Home Affairs respondent No. 6, vide which the petitioner has been declared medically unfit for appointment to the post of Sub-Inspector in ITBP. Petitioner was appointed as a Constable (General Duty) in ITBP on 12.10.1999 and is in service for the last about 12 years. He remained posted at various operational and hard units such as Krera in Madhya Pardesh from 12.10.99 to 06.12.2000, BTC, Bhanu, Ramgarh from 06.12.2000 to 07.05.2001, Krera (MP) from 28.08.2001 to 20.12.2002, Kulu Himachal Pardesh from 20.12.2002 to 24.06.2004, Leh J&K from 24.06.2004 to 29.10.2004, TPT Chandigarh from 29.10.2004 to 29.08.2005, from 29.08.2005 to 17.04.2009, Braily Uttar Pardesh from 29.08.05 to 17.04.09 Krera and presently from 17.4.10 till date at 7th BN. NDRF Bhatinda Punjab. He has qualified Basic Training Course and Advance Course i.e. 2nd Grade MAP, 81 MM Mortar and MMG Course in AX Grading, Winter Survival Course AY Grading and obtained second position in the entire batch, Sniper Rifle Course in AX grade with 1st position in the batch, MFR/CSSR Course AX Grading, Swimming Course at Calcutta in AX Grading.

As per the provisions contained in the ITBP Rules, 1994, petitioner, on the basis of his excellent service record and being graduate, was allowed to participate in the Limited Departmental Competitive Examination where 84 vacancies were available, out of which, 67 were for the General Category, six for Scheduled Tribe and 11 for Scheduled Tribe Candidates. Petitioner belongs to the General Category. Petitioner cleared the examination, which was held from 06.12.2010 to 13.12.2010. Petitioner, thereafter, was declared medically fit after a thorough check-up but thereafter, an order was passed dated 29.12.2010, vide which he was declared unfit due to slight bend in index finger of the right hand and little finger of the left hand. Petitioner contends that he had all through been graded in Medical Category Shape-I in the annual medical report and even in the medical report for the year 2010 conducted by the Medical Officer, 7th Battalion where the petitioner is posted, he was found to be in Medical Category Shape-I and fully fit. It is, on this basis, the petitioner has contended that the impugned order cannot sustain.

Upon notice having been issued, respondents have filed reply, wherein, it has been asserted that the deformity was noticed during detailed medical examination in the Limited Departmental Competitive Examination Test and on the basis of the said test, the petitioner was declared medically unfit.

On 07.12.2011, when the case was taken up for hearing, this Court passed the following order:-

The grievance of the petitioner is that he is not being promoted to the post of Sub Inspector on the ground that he is medically unfit. His case is that even at the time of initial appointment as Constable this deformity in the index finger existed and he was found fit to be enrolled as Constable but surprisingly the same handicap is taken to be an impediment for the post of Sub Inspector, which is two steps higher to the one which he occupies. The Medical Board has declared him unfit for the said post solely on the ground of deformity in the index finger.

Let a specific affidavit be filed to the effect that as to why the petitioner has been considered medically unfit for the post of Sub Inspector when he was medically fit for the assignment of a Constable and moreso, when the deformity of index finger continues to remain the same.

Adjourned to 18.01.2012.

In compliance with the said order, an affidavit has been filed and the reason assigned by the respondents is that the deformed finger will hamper normal training activities like weapon handling, marching in parade, rope climbing and other training activities. This stand of the respondents cannot be sustained for the simple reason that all through, the petitioner, when was a Constable, has always been found fit and has been categorized as in Medical Shape-I. Further his record as a Sniper speaks for itself as regards the handling of the weapons is concerned. In Sniper Rifle Course in AX grade, he obtained first position in the batch, which fact is not disputed by the respondents. As a Constable, he would be required to perform more arduous tasks which require extreme physical fitness than as a Sub-Inspector and when the petitioner has been performing the same without any difficulty and all through, he has been assessed as excellent, the stand of the respondents cannot be accepted for rejecting the claim of the petitioner.

In view of the above, the present writ petition is allowed. The impugned order dated 29.12.2010 declaring him medically unfit is hereby quashed. Respondents are directed to consider the claim of the petitioner and pass appropriate orders in accordance with law within a period of one month from the date of receipt of certified copy of this order.