Kirori Mal vs Dir (Gen.) Crpf & Ors. on 8 July, 2011

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision: 8th July 2011.

+                       W.P.(C) No.4873/1997

       KIRORI MAL                           ..... Petitioner
                Through:     Ms.Urvashi Malhotra, Advocate

                             versus

       DIR (GEN.) CRPF & ORS.                  ..... Respondents
                  Through: None

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SUNIL GAUR

1.        Whether the Reporters of local papers may be allowed to
          see the judgment?

2.        To be referred to Reporter or not?

3.        Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J

1.     The Petitioner was recruited as a Constable with CRPF and
was on probation. The recruitment was at a open competitive test
held at Phulaguri, District Nagaon (Assam), and since no Medical
Officer of CRPF was available, the Police Surgeon of Nagaon, as
approved by the Regional IG, CRPF, subjected the Petitioner to a
medical examination, and found him fit in all respect.
2.     The Petitioner was given preliminary training, pending
allocation of a seat for basic training at RTC-I, CRPF, Neemuch
and thus he remained at Nagaon till September 1995, when he
was sent for basic training at Neemuch.


W.P. (C) No.4873/1997                                       Page | 1
 3.     During training, the Medical Officer detecting the Petitioner
for defective vision, being 6/12, and thus opined that the
Petitioner was not fit to undergo training.

4.     Petitioner submitted an appeal, accompanied therewith filed
an opinion obtained by him from one Dr.A.K. Barthakur,
Ophthalmologist Surgeon of Golaghat, Assam, certifying that the
Petitioner's vision was 6/6.

5.     The DIG, CRPF noted the contra opinion given by Dr.A.K.
Barthakur and directed the Petitioner to be examined by a
Medical Board consisting of specialist in field of Ophthalmology.
The Petitioner was re-examined and was found to be having
defective vision, right eye being 6/36 and the left eye being 6/18.
It was opined that with glasses, the vision could be 6/6.

6.     The DIG, CRPF took note of the fact that corrective vision
was permissible only for non-combatants and since the Petitioner
was employed as a combatant, exercised power under Rule 5 of
the Central Civil Services (Temporary Service) Rules 1965,
terminated the services of the Petitioner. It be noted at the outset
that the power ought to be exercised under Rule 6 and not under
Rule 5, for the reason that the termination is on account of
medical disability.

7.     Learned counsel for the Petitioner referred to Annexure D,
being the medical opinion dated 13.2.1996 which records that
the Petitioner is a case of refractive error and was assessed for
his refractive status and that without glasses, his vision improved
to 6/6 of both eyes. However, with reference to the original
certification of Dr.S.K.Chakravorty, learned counsel concedes that

W.P. (C) No.4873/1997                                       Page | 2
 in Annexure D, there is a typing error for the reason that the
doctor has not opined that 'with glasses', Petitioner's vision could
improve.

8.     It was urged by learned counsel for the Petitioner that, as
pleaded in para 3 of the Writ Petition, it was during training that
the Petitioner hurt his eye. However, learned counsel could show
no material wherefrom it can be gathered that Petitioner, during
training, hurt his eye.

9.     On the contrary, documents filed by the Petitioner would
reveal that the Petitioner had a defect eye vision.

10.    To the argument urged that the Petitioner was subjected to
medical examination at the time of his being selected, the
answer would be, as pleaded in the counter affidavit, that due to
non-availability of a CRPF doctor in Nagaon, the Police Surgeon
conducted the medical examination. There is every possibility of
the Police Surgeon being negligent in conducting the medical
examination of the Petitioner.

11.    Be that as it may, learned counsel for the Petitioner has,
herself, produced the medical record of the Petitioner, which
certainly reveals that the Petitioner had a refractive error and
that his eye sight was not perfect. If that be so, there is no merit
in the submission that it is a case of colorful exercise of power.

12.    A feeble attempt was made to urge that the Petitioner
should have been given alternative employment. The answer to
the submission is that the Petitioner has neither pleaded, nor
brought on record any policy pertaining to 'shelter employment'.


W.P. (C) No.4873/1997                                      Page | 3
 13.    Thus, as regards the claim relatable to prayer (a) and (b)
the same is dismissed in so far it is prayed that order terminating
services of the petitioner be set aside and mandamus be issued
to the respondents to reinstate the petitioner with consequential
benefits.

14.    We find that the petitioner has raised a grievance in para 11
of the writ petition, that since October 1995 till his services were
terminated no pay and allowances have been paid to him.

15.    As per the counter affidavit filed, pay and allowances have
been released with effect from January 1996 till services of the
petitioner were terminated and a sum of `16,278/- has been sent
to the petitioner vide Bank Draft No.MOLA/83/400292. It has been
clarified that deduction on account of mess dues and regimental
subscription have been effected.

16.    Thus, it is apparent that the petitioner has to receive salary
for the month of October, November and December 1995, in
respect whereof it is pleaded that request has been sent to RTC-I,
Neemuch for doing the needful.

17.    It appears that when the counter affidavit was filed, due to
some administrative hiccup, salary for 3 months was not paid to
the petitioner.

18.    Neither counsel could throw any light whether during
pendency of the writ petition salary has been released for the
said 3 months.
19.    Accordingly, we direct that if salary for the said 3 months
has not been released to the petitioner, needful would be done
within a period of 6 weeks from today.
W.P. (C) No.4873/1997                                      Page | 4
 20.    Writ petition stands disposed of declining relief as prayed
for, but directing the respondents to comply with as per para 19
above.

21.    No costs.

22.    Dasti.



                                 PRADEEP NANDRAJOG, J.

SUNIL GAUR, J.

JULY 08, 2011
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