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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
ROHIT B. DEO, VRUSHALI V. JOSHI, JJ.
Shri Shyamkumar S/o. Pandurang Wankhede – Appellant
Versus
The Union of India – Respondent
Writ Petition No.6345 of 2018
Decided on : 02-05-2023
DISABILITIES - PROMOTION - Act of 1995, Section 47 - The court held that the denial of promotion to a disabled employee was not solely due to disability, as the employee failed to meet the medical eligibility conditions statutorily prescribed for promotion. The court emphasized that the legislative intent was to protect disabled employees from discrimination in promotion solely on the ground of disability, and that promotion is not a vested right. The court also noted that the denial of promotion was necessary to ensure the safety and security of the paramilitary force and the disabled employee. The petition was dismissed.
Fact of the Case:
The petitioner, a superannuated employee of the Central Reserve Police Force (CRPF), challenged the denial of promotion to the rank of Assistant Commander (Ministerial) on the grounds of disability and non-satisfaction of the medical eligibility condition of SHAPE-1 category. The petitioner had a history of hospitalization and diagnosis of mental disability, and had been reinstated in service following litigation.
Finding of the Court:
The court found that the denial of promotion was not solely due to disability, as the employee failed to meet the statutorily prescribed medical eligibility conditions for promotion. The court emphasized the need to ensure the safety and security of the paramilitary force and the disabled employee, and held that the protective umbrella of the Act of 1995 or Act of 2016 was not available to the petitioner.
Issues: The pivotal issues were whether the petitioner was entitled to the protective umbrella of Section 47 of the Act of 1995 or Section 20 of the Act of 2016, and whether the protection was taken away by exemption notifications. The court also considered the distinction between 'combatised' and 'combatant' personnel.
Ratio Decidendi: The court held that the denial of promotion was not solely due to disability, and emphasized the need to ensure the safety and security of the paramilitary force and the disabled employee. The court also noted that promotion is not a vested right, and that the protective mechanism is triggered only if the disabled employee is discriminated in promotion solely on the ground of disability.
Final Decision: The petition was dismissed.
JUDGMENT :
ROHIT B. DEO, J.
Petitioner who is superannuated from the Central Reserve Police Force (CRPF), is assailing, inter alia, the communication-cum-order dated 04-7-2018 (Annexure-A) whereby the petitioner is not extended the protective umbrella of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act of 1995) on the premise that all categories of posts of “Combatant Personnel” of the CRPF are exempted from the provisions of Section 47 of the Act of 1995 in view of the Government of India Notification dated 10-9-2002. The petitioner is held ineligible for promotion to the rank of Assistant Commander (Ministerial) on the premise that he does not satisfy the medical eligibility condition of SHAPE-1 category.
2. The litigation has a chequered history.
(a) The petitioner was appointed in the 3rd Battalion of CRPF as Assistant Sub-Inspector (Clerk) on 08-06-1988.
(b) The petitioner was hospitalized at the Base Hospital-II of the CRPF of Hyderabad from 04-7-1999 to 19-7-1999 and was diagnosed as suffering from “Schizoaffective Psychosis”.
(c) The petitioner was boarded out vide order 12-6-2000 on the ground that he was suffering from 80% mental disability.
(d) The petitioner challenged the order of removal from service in Writ Petition 4709/2007 filed at the High Court at Guwahati.
(e) The High Court quashed the order of removal by judgment dated 05-6-2012 and directed that the petitioner be reinstated in service with continuity and back-wages.
(f) The judgment of the High Court of Guwahati was assailed in Special Leave Petition (Civil) CC 14440/2013. The Apex Court was pleased to permit the Union of India to seek review.
(g) Union of India filed review petition before the High Court at Guwahati, which came to be dismissed on 04-4-2014.
(h) Union of India approached the Apex Court assailing the order of the High Court at Guwahati dismissing the review. The Apex Court, however, dismissed the challenge and upheld the order of the High Court.
(i) The petitioner was reinstated in service on 20-1-2016 and was transferred to the Nagpur Division.
(j) A list of promoted candidates was published by respondents 1 and 2 on 19-1-2017. According to the petitioner, considering his placement in the seniority list, he was entitled to promotion from the post of Subedar Major/Inspector (Ministerial) to Assistant Commandant (Ministerial) and was shocked to know that he was excluded from the list of promoted candidates.
(k) The petitioner refers to the seniority lists published on 10-1-2017 and 28-2-2018, and submits that he was erroneously excluded from the said lists. The petitioner then refers to the seniority list prepared for the promotion to the vacancies of the year 2017-2018 and submits that his name is recorded at Serial 4, and in the general list the petitioner is at Serial 5.
(l) The petitioner submits that he addressed several representations requesting that his claim to the promotional post be considered on the basis of seniority. It is further submitted that instead of deciding the representations, the petitioner was directed to appear before the Medical Board. The petitioner did appear before the Medical Board and was placed in the category of SHAPE-III (T-24).
(m) The petitioner is questioning the assignment of the medical category. The petitioner questions the categorization by the Medical Board. The petitioner contends that the High Court at Guwahati recorded finding that he is medically fit. The petitioner submits that in any event, he is protected by the provisions of Section 47 of the Act of 1995, and denial of promotion is contrary to the mandate of Section 20 of the said enactment.
(n) It is on these broad facts that the relief is sought.
3. Affidavit-in-response dated 20-2-2019 is filed on behalf of the respondents which is affirmed by Mr. Sanjay Kumar, Deputy Inspector General o
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