Promotion Can Be Denied If Disability Hinders Performance Of Higher Duties In Promotional Post: Bombay HC On CRPF Personnel’s Plea
The Bombay High Court has dismissed a petition filed by a CRPF personnel as he was not entitled to seek protective umbrella under Section 47 Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Section 20 of Rights of Persons With Disabilities Act, 2016. The bench was of the opinion that promotion cannot be denied to a person on the ground of his disability only if the disability does not affect his capacity to discharge the higher functions of a promotional post. However, as the petitioner did not satisfy the medical eligibility conditions statutorily prescribed for promotion in Paramilitary Forces, therefore could not seek the protection.
While referring to the proposition of the Apex Court in Union of India v. Devendra Kumar Pant and others (2009) 14 SCC 546, where the petitioner failed to maintain the medical category prescribed as eligibility condition, a bench of Justice Rohit B. deo and Justice Vrushali V. Joshi observed, “We are respectfully bound by the authoritative pronouncement… 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”.
Advocate Rani G. Nitnaware appeared for the petitioner, and Advocate Mugdha R. Chandurkar appeared for the respondents.
In the present case, the petitioner who is superannuated from the Central Reserve Police Force (CRPF), assailed, inter alia, the communication-cum-order dated July 4, 2018 whereby he was denied promotion, 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.
He was appointed in the 3rd Battalion of CRPF as Assistant Sub-Inspector (Clerk) on June 8, 1988. However, was hospitalized at the Base Hospital-II of the CRPF of Hyderabad from July 4, 1999 to July 19, 1999 and was diagnosed as suffering from “Schizoaffective Psychosis”.
The petitioner was thus held to be 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
Pursuant to which he was boarded out though an order dated June 12, 2000 on the ground that he was suffering from 80% mental disability.
On approaching the High Court, it quashed the order of removal by judgment dated June 5, 2012 and directed that the petitioner be reinstated in service with continuity and back-wages.
After subsequent chain of litigation, the Apex Court also dismissed the challenge by the Union of India and upheld the order of the High Court. Resultanly, the petitioner was reinstated in service on Januray 20, 2016 and was transferred to the Nagpur Division.
Nevertheless, the petitioner was not promoted, and on approaching the Medical Board, it further placed him in the category of SHAPE-III (T-24).
The bench therefore, after considering the relevant provision, the disability of the petitioner, and the averments made by the parties noted that the denial of promotion was not “merely on the ground” of disability.
“The legislative intent and anxiety is that the disability acquired during the service must not result in termination or reduction of rank. However, the aspect of promotion is dealt on a different pedestal. The legislative mandate is that the promotion cannot be denied only on the ground of disability. 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. While a disabled employee may be protected, if necessary by creating a supernumerary post and ensuring that he receives regular emoluments, even without discharging duty, till he superannuates, it is only if the disabled employee is discriminated in the sense that the promotion is denied because his disabled, that the protective mechanism is triggered”, the judgment further read.
Accordingly, the bench dismissed the petition.
Cause Title: Shyamkumar S/o. Pandurang Wankhede v. Union of India
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