Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.32759 of 2011 Along with W.P.(C) No. 12592 of 2019 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Sayed Sarwar Ali (in both the Writ Petitions) …. Petitioner(s) -versus- Government of India & Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr. Sanjay K. Samantray, Adv. Mr. K.C. Kar, Sr. CGC Mr. Aurovinda Mohanty, CGC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING: -08.10.2024 DATE OF JUDGMENT: -30.01.2025 Dr. S.K. Panigrahi, J. 1. Since both the cases are interlinked in terms of subject matter, the same were heard together and are being disposed of by this common judgment. 2. The petitioner, in the present Writ Petition, is challenging the order dated 25.05.2011, passed by the D.I.G.P. (Adm.), vide letter No. R.XIII- 31/2010-C.S-Admn.III, refusing to regularize the petitioner’s past service for the period from 05.11.1980 to 01.11.2008, including the duration of Page 1 of 14
Facts
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 his treatment from 11.05.1988 to 16.10.2000, along with all service benefits for the said period. 3. Additionally, the petitioner is seeking regularisation of the intervening period between his superannuation to rejoining i.e. 31.07.2019 to 21.09.2019. I. FACTUAL MATRIX OF THE CASE: 4. The brief facts of the case are as follows: (i) The petitioner was initially serving as a Constable with C.F. No. 800663419, having joined the service on 05.11.1980. During his tenure, he served at various locations, including the 8th Battalion, CRPF, Guwahati (Assam), Delhi, Uttar Pradesh, Bihar, and Rajasthan. (ii) In 1986, while he was deployed in Arunachal Pradesh, the petitioner was diagnosed with Hansen’s Disease, Bell’s Palsy, and Lagophthalmos at the Unit Hospital. (iii) Despite prolonged treatment, the petitioner’s health did not improve significantly. Consequently, a Medical Board constituted at BH-III, CRPF, Guwahati, assessed his fitness for service and opined that he was completely and permanently incapacitated for further service in the CRPF. (iv) Subsequently, the Commandant of the 8thBattalion, CRPF, processed the matter under Rule 38 of the CCS (Pension) Rules, 1972, proposing the petitioner’s invalidation from service. A notice was issued to the petitioner, and in response, the petitioner requested to be placed under medical review. Page 2 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 (v) On 23.03.1988, the petitioner was referred to the Standing Medical Board (ACP), which declared that he was not fit for duties involving the use of firearms but was fit for duties other than those involving the use of firearms. However, as no non-combatant posts were available within the CRPF, the petitioner was not re-employed in a Group-D post, such as Peonor its equivalent. Instead, the petitioner was invalidated from service vide Office Order No. P.III-01/1988 issued by the Commandant, 8th Battalion, CRPF. (vi) Further, since the petitioner had not completed the requisite 10 years of service before his invalidation, he was deemed ineligible for pension under Rule 49 of the CCS (Pension) Rules, 1972. (vii) Aggrieved by this, the petitioner filed Writ Petition O.J.C. No. 1751 of 2011 before this Court. On 13.07.2008, this Court allowed the writ petition, directing the respondent authorities to appoint the petitioner immediately to a suitable supernumerary post with effect from 01.11.2008 and to grant him back wages from the same date. (viii) Pursuant to this Court’s order, the D.I.G.P., GC, Rampur, Uttar Pradesh, issued an Office Letter No. A-VI-6/2010-EC-3 dated 03.03.2010, offering the petitioner a fresh appointment to the post of Peon (Combatised) in the CRPF. The petitioner accordingly joined the post of Peon (Combatised) on 20.03.2010 and has been serving continuously since then. (ix) Subsequently, the petitioner submitted a representation to the D.I.G.P. (Adm.), seeking the regularization of his past service from 05.11.1980 to 01.11.2008, including the period of his medical treatment from Page 3 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 11.05.1988 to 16.10.2000, along with all associated service benefits. However, his request was rejected on the grounds that the judgment dated 13.07.2009 passed by this Court has already been complied with. It was further stated that this Court has not directed for continuance of service or regularization of intervening period. Hence, no case is made out to consider the request of the individual. (x) Aggrieved by this rejection, the petitioner has filed the present writ petition in W.P(C) No. 32759 of 2011. (xi) Further, inW.P.(C) No. 12592 of 2019, the petitioner is seeking a direction of this Court to allow him to continue in service till the age of superannuation at 60 years instead of 57 years,in light of the directions in Dev Sharma v. Indo Tibetan Border Police And Another,1wherein the Delhi High Court has held that having different ages of superannuation for different ranks in the CAPFs is discriminatory and unconstitutional. (xii) The petitioner, who was due to retire on 31.07.2019, submitted a representation dated 03.07.2019 before the Inspector General of Police, CRPF, requesting to be allowed to continue in service until the age of 60 years, asserting that similarly situated employees had been provisionally allowed to continue in their respective services. However, despite his application, the petitioner was relieved from service on 31.07.2019. (xiii) The Ministry of Home Affairs in line with the directions of the Delhi High Court in Dev Sharma (supra) vide Order dated 19.08.2019 implemented the following: 12019 SCC OnLine Del 6797 Page 4 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 ‚a) Age of retirement will be as under: Force Irrespective of rank of cadre 60 years CRPF, BSF, ITBP, SSB, CISF, AR* *(regular Paramilitary Component) b) Date of effect will be the date of issue of order. c) In respect of all the 29 Petitioners as stated in Para-02 and in common Court order dated 31.01.2019 barring 03 Petitioner No.09 in WP (C) No.4859/2013, relief as granted at para-72 of the order be extended. d) As regard those whose date of superannuation fell in between date of judgment and date of issue of order: i. Those who have got interim stay will be deemed to have not superannuated and will be governed by age of retirement as at (a) above. ii. Those who have retired but did not approach any Court will be governed by the Court order dated 04.02.2019 clarifying para-72 of original order dated 31.01.2019 in Dev Sharma case (supra) and hence will be entitled to exercise options either for joining after returning all pensionary benefits, if received or will have an option to have benefit of fitment of pension on completion of age of 60 years.‛ (xiv) Accordingly, the petitioner submitted Application No.29 seeking to be allowed to continue in service till the age of 60 years. Subsequently, the Deputy Inspector General (Medical) issued a directive under Letter No. P.III 1/2019-DA-I-CH-BBSR, instructing the petitioner to rejoin his service in light of the judgment in Dev Sharma (supra). The intervening period was regularized on a "no work, no pay" basis in light of Para 72 of the judgment. (xv) The petitioner rejoined the post of Peon (Combatised) on 21.09.2019 and subsequently filed I.A. No. 16249, seeking the regularization of the Page 5 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 intervening period from his superannuation to his rejoining date i.e., 31.07.2019 to 21.09.2019. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 5. Learned counsel for the Petitioners earnestly made the following submissions in support of his contentions: (i) The petitioner submitted that despite this Court’s direction to appoint him to a suitable supernumerary post from 01.11.2008 and grant back wages, he was appointed him as a Peon (Combatised) without protecting his seniority or last pay scale. (ii) The petitioner submitted that he submitted a representation on 22.09.2010, seeking the regularization of his service from 05.11.1980 to 01.11.2008, including the period of treatment from 11.05.1988 to 16.10.2000, with protection of his last pay scale and other service benefits. Despite being entitled to these benefits under settled principles, the D.I.G.P. (Adm.) rejected his representation on 25.05.2011 without a hearing, citing sufficient compliance with the judgment dated 13.07.2009. (iii) The petitioner, having consistently demonstrated exceptional performance, including being selected as the best shooter in the 1985 All India Police Meet, diligently served in the CRPF from 05.11.1980 to 01.11.2008. Despite facing a dental ailment requiring prolonged treatment, he recovered and resumed his duties. Based on settled principles, the petitioner is entitled to all service benefits and seniority for this period. The D.I.G.P. (Adm.) acted unlawfully in rejecting the Page 6 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 petitioner’s grievance on 25.05.2011, in violation of the principle of natural justice, making the order liable to be quashed. (iv) The petitioner further contended that this Court, by judgment dated 13.07.2009, directed the immediate appointment to a suitable supernumerary post with effect from 01.11.2008. However, the Opposite Parties erroneously interpreted this judgment and failed to properly comply with the same. As such, the order cannot stand and is liable to be quashed. (v) The petitioner contended that various notifications were issued by the Central and State Governments and have clarified that the ad-hoc period of employees should be counted for seniority and pension benefits. Despite serving satisfactorily for over eight years and being directed by this Court to be appointed to a supernumerary post, the D.I.G.P. (Adm.) acted unlawfully in rejecting the petitioner’s representation. (vi) The petitioner further submitted that the petitioner must be allowed to continue in his post till superannuation at the age of 60 years in place of 57 years as per the direction given by the High Court of Delhi in Dev Sharma (supra). (vii) The petitioner submitted that while the Deputy Inspector General (Medical) vide his Letter No. P.III 1/2019-DA-I-CH-BBSR directed the petitioner to rejoin his service, the intervening period between his superannuation and rejoining was regularized on a ‘no work, no pay’ basis. Having rejoined the post, the petitioner is entitled to the regularization of the intervening period, as similarly situated Page 7 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 employees were allowed to continue. However, he was superannuated through no fault of his own and was kept out of a job, despite being entitled to continue in service. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 6. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: (i) In accordance with the order dated 13.07.2009 passed by this Court, and the directions received from the DIGP (Law), Directorate General, CRPF, New Delhi, a fresh offer of appointment for the post of Peon(Combatised) was extended to the petitioner through letter No. A.VI-06/2010-EC-3 dated 03.03.2010 by the creation of a supernumerary post with effect from 01.11.2008. Furthermore, back wages were paid from the same date. (ii) Despite the mandatory requirement of medical category SHAPE-I for the post, and recognizing the directions issued by higher authorities, the petitioner was appointed as Peon(Combatised), with Force No. 105262717, with effect from 01.11.2008. (iii) This Court’s judgment did not mandate the regularization of the petitioner’s past service for the intervening period, nor did it direct the continuation of service. In light of this, the request for regularization of the petitioner’s service for the period from 11.05.1998 to 01.11.2008 was not considered, as there was no legal obligation for such regularization. IV. COURT’S REASONING AND ANALYSIS: 7. Heard Learned Counsels for the parties and perused the documents placed before this Court. Page 8 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 8. The first issue before this court for determination is regularization of the petitioner’s past service, including the period of medical treatment, and entitlement to service benefits associated with that period. 9. The petitioner, having served the CRPF since 1980, and subsequently being invalidated from service on medical grounds, was entitled to rehabilitation. This Court’s earlier order, dated 13.07.2009 which specifically directed the creation of a suitable supernumerary post to accommodate the petitioner and the payment of back wages from 01.11.2008. 10. While dealing with a similar kind of issue, the Supreme Court in Kunal Singh v. Union of India2, has held that an employee who acquires a disability during service is protected under Section 47 of the Act. Employers cannot terminate, demote, or deny promotion based on disability. The relevant portion is reproduced hereinunder:
Legal Reasoning
‚9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that, person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only 2(2003) 4 SCC 524 Page 9 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. The section further provides that if an employee after acquiring disability is not suitable of the post he was holding, could be shifted to some other post with the same pay scale and service benefits, if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service." 11. It is, therefore, evident that a person medically invalidated during service can be reassigned to another post within the same pay scale and with the same service benefits. If such an adjustment is not possible, the individual shall be retained on a supernumerary post until a suitable position becomes available or until they attain the age of superannuation, whichever occurs earlier. Page 10 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 12. With respect to regularization of past service, the Supreme Court in Shitla Prasad Shukla v. State of U.P.3 held that seniority is exclusive to regularly appointed employees. Irregular appointees gain seniority only upon regularization, from that point onward. Courts will not interfere unless rules are violated or the process is unfair. The relevant excerpt is produced hereinbelow: ‚10. An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became regular or are regularized by the appointing authority as a result of which their stream joins the regular stream. At that point of confluence with the regular stream, from the join the stream by virtue of the point of time they regularization, they can claim seniority vis-a-vis those who join the same stream later. The latecomers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellants cannot therefore succeed. What is more in matters of seniority the court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the court will not overturn the determination unless it would be unfair not to do so. In any view of the matter the appellant who did not even belong to the stream of regularly (he was allowed to teach only in an 31986 Supp SCC 185 Page 11 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 irregular and unauthorised manner) and lawfully appointed lecturers cannot claim seniority against any one already in the stream before he joined the stream himself. The view taken by the High Court is unexceptionable.‛ 13. In the instant case, it is abundantly clear that the petitioner was serving as a Constable in the CRPF as a temporary employee. Following medical invalidation, he was rehabilitated into the post of Peon (Combatised) through the creation of a supernumerary post with effect from 01.11.2008, along with the payment of back wages from the same date, as per the directions of this Court. This rehabilitation was done by way of a fresh appointment. 14. Therefore, the petitioner cannot claim regularization of his past service, as he was not part of regular service but was serving as a temporary employee without pension. Moreover, the D.I.G.P., GC, Rampur, Uttar Pradesh, in Office Letter No. A-VI-6/2010-EC-3 dated 03.03.2010, clearly stated that it was a fresh appointment, and consequently, the intervening period of medical treatment cannot be regularized. 15. The issue in W.P.(C) No. 12592 of 2019 concerns the regularization of the intervening period between the petitioner’s superannuation and rejoining, specifically from 31.07.2019 to 21.09.2019. The petitioner had been reinstated in service pursuant to the order of the Deputy Inspector General (Medical), in accordance with the directions of the Delhi High Court in Dev Sharma (supra).In this regard, it is pertinent to note that the Delhi High Court observed the following: ‚72. The Court clarifies that this judgment will not have the effect of reinstatement of the Petitioners who have already Page 12 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 retired. In view of the principle of ‘no work, no pay’, it will also not have the effect of their being entitled to any arrears of pay for any further period beyond their retirement. However, for the purposes of calculation of retiral benefits, including pension and gratuity, the differential period (in the event of enhancement of the retirement age) will be added to the period of service actually rendered by each of them. In other words, their notional date of retirement would be arrived at by adding the differential years to their actual date of retirement. On such calculation, they would be entitled to the arrears of retirement benefits after adjusting the amount already paid.‛ 16. Moreover, in Ram Chander Kasania v. Union of India4 regarding personnel who had retired after the judgment dated 31.01.2019 in Dev Sharma (supra) but before the issuance of the Order dated 19.08.2019 by the Ministry of Home Affairs, the Delhi High Court observed: ‚5. In order to ensure that till such time the Respondents take the consequential steps for implementing the above judgment, no inconvenience is caused to such of those members of the CAPFs who superannuate in terms of the Rules as they existed prior to the judgment in Dev Sharma v. ITBP (supra), it is clarified that the Respondents will continue to issue PPOs in respect of such members of the CAPFs as and when they superannuate on the basis of Rules as they stood prior to the judgment. However, in the event that the Respondents decide, by way of implementation of the judgment, that the uniform age of superannuation would be 60 years or any age beyond 57 years, then depending on the date from which the change will take effect, the direction of this Court in para 72 of the judgment that it would not have the effect of reinstatement of those who have already retired would not come in the way of the Respondents deciding to reinstate such of those members of the CAPFs who would not have reached the uniform age of 42019 SCC OnLine Del 6877 Page 13 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2025 18:47:31 superannuation as determined. The Respondents will issue appropriate consequential orders at that stage.‛ 17. In the present case, although the petitioner was superannuated after the directions in Dev Sharma (supra), it occurred before the Ministry of Home Affairs’ Order of 19.08.2019. As a result, there is no bar to the reinstatement of his service, which has already been implemented. However, the Court is not inclined to direct the regularization of the intervening period between his superannuation and reinstatement, as it falls under the principle of ‘no work, no pay’. V. CONCLUSION: 18. In light of the above-mentioned facts and the precedents cited herein, this Court is not inclined to direct regularization of the petitioner’s services for the period from 05.11.1980 to 01.11.2008, including the duration of his treatment from 11.05.1988 to 16.10.2000, or to grant service benefits for the said period, nor is it inclined to regularize the intervening period between his superannuation and rejoining, i.e., 31.07.2019 to 21.09.2019.
Decision
19. Accordingly, both the Writ Petitions are dismissed. 20. Interim order, if any, passed earlier in any of the above-mentioned Writ Petitions, stands vacated. Orissa High Court, Cuttack, Dated the 30th January, 2025/ (Dr.S.K. Panigrahi) Judge Page 14 of 14