JUDGMENT :

C.M. Application No. 1 of 2023 : Application for condonation of delay

(1) Heard Shri Sameer Kalia and Shri Srideep Chatterjee, learned Counsel representing the appellants and Shri Surya Bhan Pandey, learned Senior Advocate/Deputy Solicitor General of India assisted by Shri Sudhanshu Chauhan, representing the respondents.

(2) Having gone through the averments made in the affidavit filed in support of the application seeking condonation of delay, this Court is satisfied that delay has sufficiently been explained.

(3) The application is, accordingly, allowed and delay in filing the special appeal is hereby condoned.

Order on Appeal

(4) The present intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has been filed by the appellant/writ petitioner whereby the judgment and order dated 24.05.2023 passed by the learned Single Judge in Writ-A No.18903 of 2021 has been sought to be interdicted. Apparently, the appellant is aggrieved by an order dated 17.05.2021 issued by the Inspector General of Police, Central Sector, Central Reserve Police Force, Lucknow, whereby the appellant’s name for promotion to the post of Head Constable made on 26.02.2013 has been removed from the approved list A/GD-11/2009 on the ground of him having been found Human Immunodeficiency Virus (hereinafter referred to as ‘HIV’) Positive, which according to him was not just, proper and legal. Since, the appellant’s proposition did not find any favour with the learned Single Judge, his writ petition (supra) was dismissed/rejected and as such the appellant is before us in special appeal.

A. FACTUAL BACKGROUND

(5) The appellant was recruited as a Constable (General Duty-GD) in the Central Reserve Police Force (hereinafter referred as ‘CRPF’) on 28.08.1993. He was initially allocated to 16th Batallion, Jammu & Kashmir Zone.

(6) The post of Lance Naik and Naik came to be abolished by the respondents on 10.10.1997 and as such any Constable in CRPF, if found to be eligible, was directly promoted to the post of Head Constable on or after the said date. The appellant having not been promoted to the said post of Head Constable, even after two decades of service, approached this Court by instituting the writ petition.

(7) It would be pertinent to mention herein that Standing order No. 06/1999 lays down the procedure for promotion for members of the force from the rank of Constable to Head Constable. The promotional course to be undergone is as per Clause-B and sub-Clause 1 says that promotional course of section commander course (SCC) has to be qualified by a member of the force to be eligible for promotion from the rank of constable to the rank of Head Constable. Admittedly, the appellant successfully underwent the said course bearing No. 35 at CTC-3 Nanded in the year 2006.

(8) The appellant, although had completed 13 years of service and also had underwent the aforesaid SCC successfully, however he was not promoted to Head Constable in the year 2006, albeit the Standing Order No. 06/1999 prescribed 8 years of completed service as Constable to be promoted to the post of Head Constable.

(9) Nevertheless, in the year 2006, Standing Order No. 06/2006 was issued laying down the action plan on HIV/AIDS for awareness, prevention, detection, treatment and rehabilitation of the members of the force. However, the provision for medical examination and classification of members of the force is contained in Standing Order No. 04/2008, which invariably lays down the instructions/procedure for carrying out annual medical examination. Further, there also exists an Establishment Manual which provides for various procedures and modalities to be followed with respect to grant of promotion and other conditions of service of the members of the force, wherein it is mandatorily required that in order to be eligible for being considered for inclusion in the approved list for promotion, the medical category should be SHAPE-I.

(10) In the intervening period, on or abo