W.P.(C)No.3662/2002 Page 1 of 27 18 *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C)No.3662/2002 Date of Decision : 17th September, 2010 % KARAN SINGH YADAV ..... Petitioner Through : Ms. Maninder Acharya, Adv. versus UOI &ORS. ..... Respondents Through : Mr. Ankur Chhibber, Adv. CORAM :- HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may be allowed to see the Judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes GITA MITTAL, J. (Oral) 1. By way of this writ petition the petitioner assails the order dated 3rd May, 2002 by which the petitioner has been invalidated out from service with the Central Reserve Police Force (`CRPF‟ hereafter) on the basis of a Medical Board conducted by the respondents on 23rd November, 2001 and the Board of Officers opinion dated 30th April, 2002. Learned counsel for the petitioner has also assailed the proceedings of the Board of Officers dated 23rd November, 2001 and 30th April, 2002 which had also recommended that the petitioner be invalidated out of service. 2. The factual narration giving rise to the present writ petition is undisputed. W.P.(C)No.3662/2002 Page 2 of 27 3. While serving with the 52nd Battalion of the CRPF, the petitioner had been granted 15 days casual leave w.e.f. 15th November, 1990. Unfortunately while returning from his village Raiwana, Post Kayasa, Distt. Alwar, Rajasthan to the unit on 1st December, 1990, the bus in which he was travelling turned turtle, resulting in serious injury to his eye and head. Having regard to the serious nature of the injuries, the petitioner underwent a series of treatment. He was ultimately taken to the Base Hospital, CRPF, Jharoda Kalan, New Delhi. As a result of the injuries suffered in this accident, he lost vision of his right eye. The Chief Medical officer of the Base Hospital, CRPF consequently on 2nd February, 1991 reported that the petitioner was unfit for regular service. 4. The second medical examination by the unit medical officer on 10th June, 1991 brought forth the opinion that the petitioner was fit in all aspects except his blindness in the right eye. The petitioner had also communicated his willing for any post with the CRPF having light duties preferably those of the „daftary‟ in the force. The petitioner‟s unit consequently recommended his rehabilitation. 5. The respondents had framed a scheme for rehabilitation of force personnel vide Circular Order No.28/89 dated 15th November, 1989. In order to appreciate the issue which arises for consideration, it becomes essential to deal with the ethos in which this scheme was framed. The circular itself notices that in 1980s, CRPF personnel suffered in large numbers in various W.P.(C)No.3662/2002 Page 3 of 27 operations conducted by the force members in Punjab, Sri Lanka, Darjeeling, Manipur etc. which resulted in severe casualties as well as injuries and disabilities in the members of the force. It was felt by the respondents that the resultant disabilities not only incapacitated the force members physically but worked tremendous hardships to their families as well. Additionally, young men with just two or three years service had been boarded out on account of injuries even if they were fit to perform the duties of less laborious nature than actual comeback. 6. In this background, the matter received serious attention and a committee was constituted under the Chairmanship of the Additional Director General to examine the matter in detail and to make recommendations regarding rehabilitation of the disabled personnel of the CRPF. These deliberations and concerns resulted in issuance of the rehabilitation policy by way of the aforenoticed Circular Order No.28/89. The observations in paras 2 to 4 of the Circular deserve to be considered in extenso and read as follows:- “2. In cases of death in terrorist violence or in violence by anti-social elements, the widow of the deceased gets the last pay drawn as pension till her death or re- marriage under the provisions of the L.P.A. Similarly, those who are injured in terrorist violence or in violence by anti-social elements, also get the benefits of L.P.A. on invalidation. Besides there are other benefits to the NOK of such persons in the form of ex-gratia grants, payments from Risk Fund/CWF etc. 3. Other cases of personnel who are not W.P.(C)No.3662/2002 Page 4 of 27 covered by provisions of the L.P.A. who suffer injuries and become disabled are really pitiable. They find it difficult to look after themselves and the family as a result of invalidation. In many such cases, the disability is such that the person in question cannot take up any other job. The financial position of his family is worse than that of the family of a jawan dying in terrorist violence because normal disability pension is much less than the L.P.A. Moreover, the family has to support the disabled government servant throughout. We have also had cases of young men with just 2 or 3 years of service who had been boarded out due to injuries. Moreover, even if cases in which the disability is such that the person is fit to perform duties of less laborious nature, our men have been boarded out as posts involving lighter duties have not been identified in CRPF. 4. This is a matter for great concern. Our approach to this problem does not appear to be correct; it certainly cannot be governed by norms which were applicable some 20 years ago. In the CRPF, personnel who are injured are invalidated without any effort to assess whether the personnel in question could perform duties after equipping themselves with artificial limbs etc. On the contrary, in the Army, there are two serving Generals, both of whom have artificial legs. They have not only been retained in service but have even earned their promotions.” (Underlining by us) The above sets out the spirit of the policy formulated by the respondents in the said Circular. 7. So far as the measures which were recommended under this policy are concerned, we find that the respondents had taken a considered view and a comprehensive scheme of rehabilitation was framed regarding the manner in which a person who had suffered injury while in service with the CRPF W.P.(C)No.3662/2002 Page 5 of 27 was required to be treated was set out. In this behalf, the following provisions contained in the Circular Order No.28/89 which have a bearing on the instant case may also be usefully extracted and reads as follows:- “6. A sick/injured person should be given full medical treatment at Unit level, in Civil Hospital and GC Hospital/Base Hospital. The responsibility to ensure that the sick/injured person gets full medical treatment will be on the Medical Officer incharge of the M.I. Room/Group Centre Hospital/Base Hospital and on the Head of the Bn. Full medical treatment should include fitment of artificial limbs to those who are in need of them. After the sick/injured person has receiver full medical treatment and the Medical Officer incharge is of the opinion that the individual is not fit for normal active duty, the case of the individual should be referred to the Departmental Board for rehabilitation by the Unit concerned. 7. The Departmental Board for rehabilitation will consist of the following at the Sector level:- i) Chairman - IGP ii) Member - One DIGP iii) Member - One Addl DIGP/Comdt iv) Member - One CMO/SMO v) Member - One GDO Grade-I 8. This board will subject the person concerned to critical examination with a view to determining his physical capability, educational standard, aptitude, willingness, job requirement etc. and determine if the person could be accommodated in any job in the Force with his consent. 9. Further action will be taken thereafter in respect of those considered suitable for retention in service in lighter jobs indicated below:- i) Dak/Office runner, W.P.(C)No.3662/2002 Page 6 of 27 ii) Telephone operator, iii) Attendants in recreation rooms, canteen co-operatives, flour mills, welfare centres, school buses, any other welfare activities etc. iv) RTO duty, v) Any other duty considered suitable by the board. 10. Above mentioned posts are mostly for ORs only. In case any person of the ranks of SI and above and personnel of technical trades like MT, Signals, Ministerial cadre etc. are disabled, they will be retained in the same rank and cadre and their consent to work in the posts mentioned in para 9 will be taken. 11. However, before taking the final decision in such cases, it will be ensured. (a) that resulting deficiency in the post to which the disabled person belongs, does not hamper overall efficiency of a Unit/Office, (b) that while rehabilitating such partially disabled persons in units/offices care should be taken to ensure that the number of such persons per Bn/Office, is kept within reasonable limits so that the operational efficiency of the Unit does not suffer. (c) that such persons will be retained in service till such time they can perform their duties satisfactorily. (d) such persons will have claim to promotions only if they pass the prescribed promotion tests without any relaxation and are found fit for higher posts. 14. Payment at the revised rates will be effective from 27/10/89 as already intimated vide signal No.RF.1/89 dated 27/10/89. Cases already decided will not be re-opened. Recurring payments already being paid to persons with 100% disability will not be increased and revised benefits W.P.(C)No.3662/2002 Page 7 of 27 will be applicable to fresh cases only. 15. These instructions should be given wide publicity and explained to all ranks in the Force.” (Emphasis supplied) 8. It is an admitted position before us that in terms of the policy of Circular Order No.28/89,the petitioner was produced before the Rehabilitation Board which examined the petitioner on 27th January, 1992. On a detailed consideration of the petitioner‟s condition, this Departmental Board for Rehabilitation had made the following observations and recommendations qua him:- (ii) NO.880945841 CT KARAN SINGH OF 52 BN CRPF Constable Karan Singh of 52 Bn met with a bus accident while on his way from home town to Unit to join duty about 2 Kms from his home in Alwar District of Rajasthan. In the incident he sustained injuries in his Right Eye and head. After hospitalization he lost his eye sight of the Right Eye. As per brief history, CHD Bn-I and Unit Mo he was declared unfit in view of blindness in his eye. He can however see and the eye sight of left eye is normal though Circular order No.28/89 deals with cases of those suffered injuries which resulted them disabled and rendered unfit due to terrorists and other forms of violence, para (6) of the circular Order clearly stipulates that sick and injured person should be given medical treatment and they be referred to rehabilitation board for considering him for rehabilitation if he is declared unfit. It is, therefore, means those who are (Sic) inured in normal cases and those who are sick should also be considered for rehabilitation. The board therefore considered the case of No.880945841 Ct. Karan Singh and find him to fit to perform W.P.(C)No.3662/2002 Page 8 of 27 the duties of Security aid, office orderly, Telephone orderly and canteen salesman. He can also be detailed for office clerical duties in the absence of clerk. He will be detained in service till superannuating as Constable Orderly/Security aid. There has been some delay in constitution of rehabilitation board and he has not been paid any pay and allowances since June 91 he was however working in the Ors mess. The board therefore recommends that DIGP, CRPF, Calcutta may direct Commandant 52 Bn CRPF to pay the pay and allowances of the intervening period. The CMO BH-II was kind enough to recommend immediate surgery of the right eye of Ct Karan Singh to remove cataract which will given some improvement in the eye sight. Commandant 52 B should take immediate action in the matter.” (Underlining by us) 9. This Rehabilitation Board consisted of the Chairman and four senior members including medical specialists of the respondents in terms of the Circular Order No.28/89. 10. It is an undisputed position that the petitioner was not boarded out of service and continued to be employed by the CRPF. The recommendations of this Rehabilitation Board were accepted and fully implemented. The petitioner continued to serve with the CRPF as a Constable. 11. Ms. Maninder Acharya, learned counsel appearing for the petitioner submits that no complaint with regard to the service of the petitioner was made by the respondents at any point of time and that he continued to render satisfactory service. She submits that the petitioner had additionally even received a monetary award from the respondents for effective and W.P.(C)No.3662/2002 Page 9 of 27 meritorious discharge of duties while he was posted in Punjab. 12. It is also contended that the petitioner‟s medical condition has remained unchanged from 10th June, 1991 when examined in his unit and the 27th January, 1992 when he was examined by the Rehabilitation Board till date. 13. Before us, the respondents have taken a stand that in view of the implementation of a new policy dated 6th May, 1999, they reconsidered the case of the petitioner with other personnel. The petitioner was accordingly examined by rehabilitation board at Chandigarh on 23rd November, 2001, which opined that the petitioner was unfit to continue in service and recommended his invalidation. A subsequent board of three medical officers was constituted to examine the petitioner and others with regard to whom invalidation out of service had been recommended. This medical board examined the petitioner and on 30th April, 2002, also recommended that the petitioner be boarded out of service. 14. Pursuant to the recommendation of the Rehabilitation Board on 30th April, 2002, the petitioner appears to have been boarded out from the service. It is stated that the petitioner has remained unemployed without any source of income till date. 15. The primary ground of challenge to the action taken by the respondents to board out the petitioner is premised on the submission that a decision stood taken based on the Circular Order No.28/89 which was a final decision and created vested W.P.(C)No.3662/2002 Page 10 of 27 rights of the petitioner in his continued employment. It is contended by Ms. Maninder Acharya, learned counsel for the petitioner that the same could not have been effected by any change in the rehabilitation policy of the respondents. Learned counsel has further contended that the Standing Order No.7/99 (dated 6th May, 1999) does not have any retrospective operation and in any case, could not have been effected in such cases or injuries which occurred prior thereto; stood examined and final view stood taken in terms of the Circular Order No.28/89. In support of her submission reliance has been placed on the judgments reported at (2008) 13 SCC 213 Kusumam Hotels Pvt. Ltd. vs. Kerala State Electricity Board & Ors.; (2007) 12 SCC 198 Jay Mahakali Rolling Mills vs. Union of India & Ors.; (2003) 1 SCC 364 P. Tulsi Das & Ors. vs. Government of Andhra Pradesh & Ors.; (1997) 6 SCC 623 Chairman Railway Board vs. C.R. Rangadhamaiah & Ors.; (1993) 1 LLJ 284 SC State of Gujarat vs. Raman Lal Keshav Lal; 1986 (Supp.) SCC 584 T.R. Kapur & Ors. vs. State of Haryana & Ors. 16. Mr. Ankur Chhibber, learned counsel appearing for the respondents submits that the action of the respondents in reviewing the cases in terms of the Standing Order No.7/99 dated 6th May, 1999 cannot be faulted and that the respondents were justified in taking a relook at the matter. 17. We have given our considered thought to these submissions. W.P.(C)No.3662/2002 Page 11 of 27 18. The rehabilitation scheme envisaged in the Circular Order No.28/89 of 1989 was undoubtedly a welfare measure considered essential by the respondents not only towards rehabilitation of force personnel who were injured while on duty but also contained an extensive consideration of its necessity having regard to the ability of personnel injured or even disabled persons to perform duties depending upon the nature and extent of disability. The Circular makes recommendations of not only retention of such persons in service but also provided for consideration of such personnel for promotion as well, subject to their passing the prescribed promotion tests. It is evident that the spirit and intendment of this policy was a recognition of the fact that persons who were disabled while serving with the CRPF, could make a meaningful contribution to the force despite their disability. The same was necessary not only as a measure for rehabilitating the force personnel but also in the larger cause for ensuring social justice to the cause of the disabled. This was a laudatory step forward towards morale boosting for members of the force which deserves to be encouraged. 19. So far as the petitioner was concerned, the respondents had made an effective evaluation of the petitioner‟s medical, physical and mental condition in 1992. The Expert Committee constituted by them in 1992, had taken a view that the petitioner could perform certain duties which were well within the functioning of CRPF. The final view stood taken and the W.P.(C)No.3662/2002 Page 12 of 27 petitioner had been assigned such duties. 20. The only injury which the petitioner was found to be suffering from was the injury to his right eye and the resultant blindness thereof. In terms of the policy of 1989, the final order stood passed which had found that the petitioner was fit to perform the duties of security aid, office orderly, telephone orderly and canteen salesman etc. It had also been recommended that the petitioner could be detailed for office clerical duties in the absence of clerk. A specific direction had been made that the petitioner would be „detained in service till superannuation as Constable Orderly/Security Aid‟. Not only this, in the year 1992, the board had considered the fact that there had been delay in constitution of the rehabilitation board and that the petitioner had not been paid the allowances since June, 1991 despite his discharging duties in the officers‟ mess. The board had recommended payment of pay and allowances for this intervening period as well. It is an admitted position that these recommendations were accepted and fully acted upon. The petitioner had been satisfactorily performing the assigned duties. The respondents have also released the entire pay and allowances to the petitioner as well for the intervening period. 21. It is noteworthy that the views of the Expert Board or Committee created by the respondents could be set aside or overruled by another Expert Committee only in the event that circumstances had changed or a variation in the medical W.P.(C)No.3662/2002 Page 13 of 27 condition had come about which could justify a variation or a differential view. Obviously, the fresh decision which is taken would subject to judicial review and would have to disclose an application of mind to all relevant material. 22. The proceedings of the board which was held in Chandigarh on 23rd November, 2001 discloses no material basis or reasons at all except a bald recommendation to the effect that he is to be “to be invalidated out”. 23. The proceedings of the board dated 30th April, 2002 have been paced before this Court. These proceedings record that the petitioner was completely blind in the right eye for which his case had been taken up by the rehabilitation board held at Durgapur on 27th January, 1992. It is important to note that this board found no deterioration in the petitioners physical or mental condition from 1992 and no variation from 1992 is mentioned. The only additional observation which is noted by the board in 2002 is to the effect that the petitioner had suffered from Kochs in chest in the year 2000 for which he had completed the course of AKT for nine months. The board specifically recorded that there was no symptom of pulmonary kochs. In any case, this disease was not the basis for the recommendation in 2002. The only reason for its recommendation was that the petitioner being blind by right eye was „unable to perform active duties‟. 24. It is necessary to point out that so far as the observation that the petitioner suffered from koch‟s decease in 2000 is W.P.(C)No.3662/2002 Page 14 of 27 concerned, the respondents have found that he had taken the prescribed treatment. No observation with regard to the existence of such disease in the petitioner on the date of the examination has been noticed. Koch‟s disease is the medical name for the infection known as „tuberculosis‟. It is not the respondent‟s case that any such infection rendered the petitioner unfit for duties. 25. It is evident from the available record, that these boards in 2001 and 2002 have arrived at a different conclusion from that of the board which examined the petitioner in 1992 on the same disability without any change in condition. They have recorded no reasons or explanations for the recommendation to invalidate the petitioner. The boards in November, 2001 and April, 2002 have also completely ignored the fact that the petitioner was satisfactorily performing his duties despite his blindness in the right eye for a long period of over 10 years after 1992 when he had received the injury. 26. The respondents had effected an evaluation in terms of para 11 of the Circular No. 28/89, with regard to the impact on the overall efficiency of the petitioner‟s unit/office. On an assessment that the petitioner would be able to perform duties satisfactorily, the petitioner had been assigned duties which he was performing. In the above facts, the petitioner has been dealt with arbitrarily and unfairly. 27. The findings of the unfitness for service and the W.P.(C)No.3662/2002 Page 15 of 27 recommendations for invalidation therefore, are held to be based on no relevant material at all and are legally unsustainable. 28. There is yet another important facet to this matter. It appears that after a long period of almost 10 years of the working of the policy contained in the Circular Order No.28/89, the respondents thought it fit to supersede the same and implement a new policy. This new policy was notified as Standing Order No.7/99 dated 6th May, 1999. It is noteworthy that this policy also underlines the responsibility of the CRPF to make all efforts to rehabilitate the personnel mentioned therein and to support their families otherwise it would have the demoralizing effect on the force personnel. It is important to note that such policy was not retrospective in operation and would obviously apply to such persons, who were disabled or injured only after the implementation thereof. The policy did not even suggest, let alone direct review of cases in which decision stood taken in terms of the Circular Order No.28/89. 29. The issue which therefore arise before us is as to whether the Standing Order No. 7/99 had retrospective operation. A similar question has been raised before the Supreme Court on several occasions including in matters relating to legislative action and stands authoritatively settled. The court has clearly laid down the parameters within which crystallized rights could be impacted by retrospective application of legislative action, and even policies. W.P.(C)No.3662/2002 Page 16 of 27 A question as to whether the status of ex-ministerial employees who had been allocated to the Panchayat service as Secretaries, Officers and servants of Gram and Nagar Panchayats under the Gujarat Panchayat Act, 1961 as Government servants could be extinguished by making retrospective amendment of the said Act in 1978 arose before the Supreme Court in State of Gujarat v. Raman Lal Keshav Lal Soni MANU/SC/0346/1983 : (1983)ILLJ284SC. The Constitution Bench struck down the amendment on the ground that it offended Articles 311 and 14 of the Constitution. The law was declared by the Supreme Court in the following terms :- “52. …….The legislature is undoubtedly competent to legislate with retrospective effect