15 Jun 2023 6:32 AM GMT
Observing that satisfaction of medical eligibility conditions is necessary to ensure safety of paramilitary personnel, the Bombay High Court dismissed a differently abled candidate's plea against denial of promotion. The court held that denial of promotion to a differently abled person who did not satisfy the medical criteria does not mean he was discriminated against due to his...
Observing that satisfaction of medical eligibility conditions is necessary to ensure safety of paramilitary personnel, the Bombay High Court dismissed a differently abled candidate's plea against denial of promotion.
The court held that denial of promotion to a differently abled person who did not satisfy the medical criteria does not mean he was discriminated against due to his disability.
A division bench of Justice Rohit B Deo and Justice Vrushali V Joshi sitting at Nagpur dismissed a writ petition filed by a disabled CRPF employee alleging that he was discriminated against and denied promotion only due to his disability.
“…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 court held.
The petitioner was appointed as Assistant Sub Inspector in Central Reserve Police Force in June 1988. He was hospitalised from July 1999 in July 1999 and was diagnosed with schizoactive psychosis. He was boarded out on the ground of 80% mental disability. However, he challenged his removal before the Guwahati High Court that directed CRPF to reinstate him with continuity and back wages. This judgement was upheld by the Supreme Court and the petitioner was reinstated and transferred to Nagpur division in 2016.
In January 2017, a list of promoted candidates was published by the CRPF. The plaintiff claimed that considering his seniority he was entitled to promotion to the post of Assistant Commandant (Ministerial), however was excluded from the list of promoted candidates. Thus, he filed that present writ petition challenging the decision not to promote him.
The CRPF in its reply submitted that the petitioner does not fall under the required medical eligibility category SHAPE-I for the post in question.
Section 47(2) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 mandates that promotion shall not be denied to a person merely because of his disability.
The court said that the legislative intent behind this provision is clear and not every denial of promotion will attract this section.
The promotion can be denied to disabled person in order to ensure that the safety and security of other personnel of the paramilitary force and the personal safety and security of the disabled employee is not jeopardized, the court observed.
The court said that the denial of promotion to the petitioner cannot be considered as denial only on the ground of disability as he is suffering from 80% mental disability and does not satisfy the medical eligibility criteria.
The court observed that the Guwahati High Court reinstated the petitioner on the basis of section 47(1) of the 1995 Act, which provides that no employee who acquires disability during service shall be removed. However, if an employee is not suitable for the post he was holding, he can be shifted to some other post with the same pay scale and service benefit, the court noted.
The court said that the legislative intent is that the disability acquired during service must not result in termination or rank reduction. However, promotion is on a different pedestal and it cannot be denied only on the ground of disability. The court said that promotion is not a vested right and while a disabled employee may be protected, the protective mechanism is triggered only if promotion is denied based solely on his disability.
Considering the recruitment rules of the concerned post, the court rejected the petitioner’s argument that the denial of promotion violates section 47 of the 1995 Act or the corresponding section 20 of the Rights of Persons With Disabilities Act, 2016.
The court opined that in case of para military force like CRPF, it is all the more necessary that the medical eligibility conditions have to be satisfied. If an employed does not satisfy the conditions due to his disability, it cannot be inferred that he is discriminated against and denied promotion only due to his disability, the court held.
Thus, the court held that the petitioner was not entitled to the protection of section 47(2) of the 1995 Act or section 20 of the 2016 Act.
Case no. – Writ Petition No.6345 of 2018
Case Title – Shyamkumar S/o. Pandurang Wankhede v. Union of India and Ors.
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