Full Text
HIGH COURT OF DELHI
Date of Decision: 27.02.2025
RAVINDER KUMAR .....Petitioner
Through: Mr.Ankur Chhibber and Mr.Nikunj Arora, Advs.
Through: Mr.Manish Mohan, CGSC
Mohan, Advs. for UOI Mr.Devender Singh, DG/JAG, ITBP
HON'BLE MS. JUSTICE SHALINDER KAUR NAVIN CHAWLA, J. (ORAL)
JUDGMENT
1. This petition has been filed by the petitioner, challenging the Order dated 18.09.2017, whereby the representation of the petitioner challenging his reversion from the post of Sub-Inspector (GD) to Assistant Sub-Inspector (GD), was rejected. The petitioner further prays for a direction to the respondents to continue the petitioner in the rank of Sub-Inspector having notional seniority and other consequential benefits as have been granted by an Order dated 06.10.2015.
2. It is the case of the petitioner that the petitioner joined the Indo- Tibetan Border Police Force (ITBP) on 10.09.1987 at the rank of Constable (GD). On 07.07.2011, personnel junior to the petitioner were promoted to the rank of Assistant Sub-Inspector (GD), while the petitioner was not promoted due to being placed in Low Medical Category (LMC).
3. The petitioner further states that his juniors were thereafter detailed for the Pre-Promotional Course, to which the petitioner was not detailed, again due to temporary unfitness by virtue of being placed in Low Medical Category.
4. The personnel junior to the petitioner were then promoted to the rank of Sub Inspector in March 2013, while the petitioner continued to serve the Force at the rank of Head Constable.
5. The petitioner remained in SHAPE-II Medical Category till 11.10.2013, when he was upgraded to SHAPE-I Medical Category. The petitioner was thereafter detailed for undergoing the Pre- Promotional Course for the rank of Assistant Sub-Inspector (GD), and earned his promotion to the said rank with effect from 07.07.2011, vide order dated 31.05.2014.
6. Placing reliance on Clause 4.13 of the Circular dated 29.10.2008, the petitioner states that on being promoted after gaining the Medical Category of SHAPE-I, the seniority of the petitioner would date back to the date of promotion of his juniors. The petitioner states that the same was also accepted by the respondents in the draft seniority list for the post of Assistant Sub-Inspector (GD), circulated vide the Order dated 03.03.2014.
7. The petitioner was later granted promotion to the rank of Sub- Inspector on 06.10.2015, with the notional seniority being maintained.
8. It is only thereafter, that the petitioner received a Show-Cause Notice dated 15.09.2016, proposing to revert him to the rank of Assistant Sub-Inspector, stating that he had wrongly been granted a retrospective seniority in the rank of Assistant Sub-Inspector from 07.07.2011. The petitioner replied to the same, however, the respondents have rejected the representation of the petitioner and passed an Order dated 16.05.2017, reverting the petitioner to the rank of Assistant Sub-Inspector (GD). The petitioner then filed a Statutory Petition, which has been dismissed by way of the Impugned Order, challenging which the petitioner has filed the present petition.
9. The learned counsel for the petitioner reiterates that if a promotion is denied to a personnel on the ground that he is not in SHAPE-I Medical Category, on the personnel gaining SHAPE-I Medical Category, his promotion shall date back to the date when his name is proposed for the same by the DPC.
10. He submits that in the present case, the petitioner was denied promotion to the rank of Assistant Sub-Inspector (GD) in the year 2011 because he was in a Temporary Medical SHAPE-II Category, however, once the petitioner gained SHAPE-I Medical Category in the year 2013, the petitioner was granted such promotion to the rank of Assistant Sub-Inspector (GD) which, in terms of Clause 4.13 of the Circular dated 29.10.2008, would relate back to the date of the promotion granted to his immediate juniors, that is, 07.07.2011.
11. He submits that taking such seniority into account, the petitioner was thereafter promoted to the rank of Sub-Inspector (GD), from which the petitioner is now wrongly being reverted back to the post of Assistant Sub-Inspector (GD).
12. On the other hand, the learned counsel for the respondents submits that posts at the rank of Assistant Sub-Inspector (GD) were created vide Order dated 17.02.2011, and accordingly, Head Constable (GD) who had completed five years in the Grade at the time were approved for promotion as Assistant Sub-Inspector (GD) on 07.07.2011 in one-time relaxation to the eligibility criteria. The approval was also accorded for promotion of the petitioner to the said rank, however, the petitioner could not take over the charge of the promoted post in view of being in a Permanent Low Medical Category. It was only in the year 2013, on the petitioner gaining SHAPE-I Medical Category and qualifying in the Pre-Promotional Course, that the petitioner was approved for promotion to the rank of Assistant Sub-Inspector (GD) with effect from 14.02.2014. The petitioner, therefore, could not have been granted a retrospective seniority from 2011 as he could not take charge of the rank of Assistant Sub-Inspector (GD) being in Low Medical Category.
13. He further submits that the petitioner was, erroneously promoted to the rank of Sub-Inspector (GD) taking into consideration the date of approval for promotion to the rank of Assistant Sub- Inspector (GD) on 07.07.2011. The said anomaly was discovered on a representation received from Assistant Sub-Inspector (GD), Ram Bahadur Yadav. Accordingly, a Show-Cause Notice dated 15.09.2016 was issued to the petitioner for reverting him back to the post of Assistant Sub-Inspector (GD), and upon considering his reply, the Impugned Orders have been passed.
14. We have considered the submissions made by the learned counsels for the parties.
15. The petitioner himself has placed his medical categorisation over the relevant period of time, which is produced hereinunder:
16. From the above it would be apparent that prior to 12.10.2013, the petitioner was last placed in the Medical Category of A3(P) and was upgraded to the SHAPE-I Medical Category only thereafter. As on 07.07.2011, therefore, the petitioner was not in the SHAPE-I Medical Category but in a Permanent Low Medical Category.
17. Though the learned counsel for the petitioner has today submitted that the petitioner could not have been placed in a Permanent Low Medical Category as the respondents themselves upgraded him to SHAPE-I Medical Category in the subsequent Medical Board and with effect from 12.10.2013, there being no challenge laid before us to the medical categorisation in the Annual Medical Check up conducted by the respondents, we would not like to comment on the same.
18. The fact remains that the petitioner, being considered in Permanent Low Medical Category was not allowed to take charge of the promotional post of Assistant Sub-Inspector (GD) alongwith his batchmates and juniors on 07.07.2011. He was later, however, promoted to the rank of Assistant Sub-Inspector (GD) with effect from 14.02.2014 after gaining SHAPE -I Medical Category.
19. Clause 4.13 of the Circular dated 29.10.2008, on which reliance has been placed by the learned counsel for the petitioner reads as under: “4.13 Mandatory for the purpose of promotion Medical Category SHAPE-I will be an essential condition for promotion of all combatised personnel in all groups/ranks/cadres in the CPMFs. In case of those who illness is of permanent nature and who are not SHAPE-I, they will be considered for promotion by DPC but will be declared unfit for promotion, even if, they are otherwise fit for promotion. In case of those personnel, whose illness is of temporary nature, after considering their cases for promotion alongwith others, if, they are otherwise fit, the DPC will grade them as „fit for promotion‟ subject to attaining SHAPE-I medical category. As and when they regain the SHAPE-I medical category, they will be promoted as per recommendations of DPC. But they will not be entitled to back wages. However, they will retain their seniority.” (Emphasis supplied)
20. A reading of the above would show that personnel whose illnesses are of permanent nature and who are not in SHAPE-I, though will be considered for promotion by the DPC, will be declared ‘Unfit’ for promotion even if they are otherwise ‘Fit’ for promotion. It is only in cases of the personnel whose illness is ‘temporary in nature’, that the DPC after considering their cases for promotion alongwith others, if they are otherwise found ‘Fit’, will grade them as ‘fit for promotion’ subject to them attaining SHAPE-I Medical Category, and as and when they regain the SHAPE-I Medical Category, they will be promoted as per the recommendations of the DPC and will be entitled to retain their seniority.
21. In the present case, it cannot denied that the petitioner was not in a Temporary Low Medical Category but was in a Permanent Low Medical Category when the batchmates were promoted to the rank of Assistant Sub-Inspector (GD), therefore he cannot be granted the benefit of Clause 4.13 of the Circular dated 29.10.2008.
22. The subsequent promotion to the post of Sub-Inspector (GD) granted to the petitioner was by erroneously taking his date of seniority to the rank of Assistant Sub-Inspector (GD) from 07.07.2011. On this mistake being pointed out on a representation received, the respondents have corrected this mistake by issuing the Impugned Orders. Therefore, no fault can be found in the same.
23. At the same time, the petitioner has worked in the rank of Sub- Inspector (GD) from the date of being granted promotion till the date of his reversion due to the Impugned Orders. The petitioner, therefore, cannot be denied the salary which he was entitled to while working as Sub-Inspector (GD). Therefore, any emoluments paid to the petitioner while the petitioner was working at the post of Sub-Inspector (GD), will not be recovered from the petitioner.
24. With the above directions, the petition is disposed of.
NAVIN CHAWLA, J SHALINDER KAUR, J FEBRUARY 27, 2025/sg/IK Click here to check corrigendum, if any