The Bombay High Court, Nagpur Bench while dismissing a plea filed by an employee of CRPF (Central Reserve Police Force of India) seeking promotion has held that the medical eligibility conditions which are statutorily prescribed for promotion must be satisfied.

A Division Bench of Justice Rohit B. Deo and Justice Vrushali V. Joshi observed, “In our view, the denial of promotion is not merely on the ground of disability. We have referred to the recruitment rules in extenso in paragraph supra. We are more than satisfied, that considering the fact that the respondents CRPF is a paramilitary force, it is all the more necessary that the medical eligibility conditions which are statutorily prescribed for promotion, shall have to be satisfied. If unfortunately, due to disability it is not possible for an employee to satisfy the benchmark, no inference can be drawn that the employee is discriminated and that the denial of promotion is only due to the disability.”

The Bench further held that the petitioner employee was not entitled to the protective umbrella of Section 47 (2) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 or Section 20 of the Rights of Persons With Disabilities Act, 2016 respectively.

Advocate Rani G. Nitnaware appeared for the petitioner while Advocate Mugdha R. Chandurkar appeared for the respondents.

In this case, the petitioner who was superannuated from the CRPF was assailing the communication-cum-order whereby the petitioner was 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.

The petitioner was appointed in the 3rd Battalion of CRPF as Assistant Sub-Inspector (Clerk) in 1988 and was hospitalized in 1999 due to suffering from “Schizoaffective Psychosis”. The petitioner was held ineligible for promotion to the rank of Assistant Commander (Ministerial) on the premise that he did not satisfy the medical eligibility condition of the SHAPE-1 category.

The High Court in view of the facts and circumstances of the case noted, “The schematic difference in the statutory regime, as regards removal or reduction of rank and promotion is clearly discernible. A disabled employee cannot be removed or reduced in rank. The first option available is to adjust the employee against any other post, if the disability prevents the employee from discharging the duty of the present post. If such an option is not available, the disabled employee is to be kept on a supernumerary post until suitable post is available or he attains the age of superannuation.”

The Court further noted that as per the legislative mandate, the promotion cannot be denied only on the ground of disability and that the legislative intention will have to be respected and the jurisprudential and pragmatic logic clearly explains why removal or reduction is treated differently than promotion.

“Promotion is not a vested right. … In our considered view, if the case of the petitioner is considered on the touchstone of the recruitment rules which are brought to our notice, the submission that the denial of promotion falls foul of the legislative mandate of Section 47 of the Act of 1995 or Section 20 of the Act of 2016, which is worded identically much be rejected”, said the Court.

The Court also said that the petitioner failed to maintain the medical category prescribed as an eligibility condition, and he was informed by the Railways that in view of the requirements of the job, as also the safety and welfare of the public, the colleagues and the employee himself, he is not entitled to promotion.

“We are respectfully bound by the authoritative pronouncement of the Apex Court in Union of India v. Devendra Kumar Pant and others. … In the light of our answer to the first issue formulated, we are not inclined to delve deeper in the question whether the exemption notifications apply, or otherwise, to a combatised personnel. We leave that question open for consideration in an appropriate case”, concluded the Court.

Accordingly, the Court dismissed the petition.

Cause Title- Shyamkumar v. The Union of India & Ors.

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