WP(C) 2809/2010 BEFORE HON’BLE MR JUSTICE B.K. SHARMA.. JUDGMENT AND ORDER (ORAL) Heard Mr. R. Mazumdar, learned counsel for the petitioner as well as Mr. J.M. A. Choudhury, learned Central Government Counsel. 2. The petitioner, who is presently serving as Assistant Commandant in the S.S.B., is aggrieved by deprivation of the benefit of Senior Time Scale of Rs.10 ,000-325-15,200/- Pre-revised (Since Revised 15600-PB + GP 6600/-) and so also t he benefit of promotion to the post of Deputy Commandant. The petitioner has bee n deprived of the said benefit on the ground that he is unfit for the Senior Tim e Scale and promotion, being medically categorized as colour blindness . The pe titioner has placed reliance on the circular dated 17.5.2002 and 31.7.2002 in re spect of his plea that irrespective of such colour blindness, he is entitled to get the aforesaid benefits. For a ready reference, the said two circulars are q uoted below :- (Typed copy) MINISTRY OF HOME AFFAIRS (PERS-II) Subject :- Introduction of Medical category SHAPE-I for the purpose of promotion of CPMS - regarding. Reference CRPS, UO No.P-Vii/I-Pers-I dated 14th May,2002 on the subject mentione d above. 2. The question of promotion of force personnel recruited with colour blind ness has been examined in this Ministry and it has been decided that this disabi lity, ignored at the time of their recruitment cannot be held against them now. All such force personnel, recruited with colour blindness are, therefore eligibl e for promotion, despite their being in medical category SHAPE 2 (Permanent) on their turn, if they are otherwise fit for promotion. Sd/- S.C. Saksena, Desk Office P.C. CRPF (Shri O.P. Singh, DIG (Pers) MHA UO No.1-45020/52/2001-Pers-II dated 17th May, 2002 1. DsG BSF/CISF/ITBP/SSB, New D. 2. DG, Assam Rifles, Shillong. (Typed copy) MINISTRY OF HOME AFFAIRS (PERS-II) Subject :- Prescribed Medical category SHAPE-I for compatised personnel of CPMS. Reference DG, CRPF UO No.P-Vii/I Pers. I dated the 19th July,2002 on the subject mentioned above wherein they have sought classification with regard to the prom otion of force personnel with colour blindness for the following categories. (i) In whose cases colour blindness was not a disqualification. (ii) In whose cases though colour blindness was disqualification but the same could not be detected at the time of their recruitment. (iii) In case force personnel with colour blindness could not be promoted, whe ther they are to be medically invalidated out of service. 2. This has been examined in this Ministry. Attention is invited to this M inistry’s U.O. of even number dated the 17th May, 2002 which does not distingui sh between force personnel, in whose cases, colour blindness was a disqualificat ion or otherwise. It simply states that, whosoever has been selected with colour blindness, whether by ignorance or otherwise, cannot be treated differently aft er putting so many years of service. The illness cannot be held against them an d therefore they will be eligible for promotion, despite their colour blindness, if they are, otherwise fit for promotion. 3. This clarifies position regarding categories (ii) and (iii) in Para-1 ab ove. Such question regarding the category (iii) does not arise at all. Sd/- D.S. Mishra, Director (Pers) Tele No.3092956 DG. CRPF (Shri Man Singh Rawat, Addl. DIG) MHA UO No.1-45020/52/2001-Pers-II dated 31.7.2002 Copy for information to :- 1. DsG BSF/CISF/ITBP/SSB, New D. 2. DG, Assam Rifles, Shillong. 3. The petitioner has also referred to the case of one Shri Madhab Chandra Ghosh, who in spite of being declared to have suffered from colour blindness, h as been conferred with the said benefits. 4. In the counter affidavit filed by the respondents, while broadly agreein g to the aforesaid fact including the sincere and devoted services of the petiti oner, which earned commendation from the respondents, it has been stated that th e case of the petitioner could not be considered in view of the subsequent circu lar dated 29.10.2008, which has been issued in reference to earlier circular dat ed 17.5.2002. For a ready reference, the said circular dated 29.10.2008 is quote d below :- MINISTRY OF HOME AFFAIRS (PERS-II) Subject :- Colour blindness. Reference this Ministry’s UO No.1-45020/52/2001-Pers-II dated 17.5.2002, wherein following has been mentioned. 1. ’the question of promotion of Force personnel recruited with colour blin dness has been examined in this Ministry and it has been decided that this disa bility, ignored at the time of their recruitment, cannot be held against them no w. All such force personnel, recruited with colour blindness are, therefore elig ible for promotion, despite their being in medical category SHAPE 2 (Permanent) on their turn, if they are otherwise fit for promotion.’ 2. The above order provided immunity to those force personnel who were recr uited till date i.e. 17.5.2002. However, this order also placed such personnel i n Shape 2 (permanent) meaning thereby that they would be boarded out after 4 yea rs as per provision of SHAPE order and also as per provision in the present heal th care system, as there is no chance of improvement in colour blindness patient s being a congenital disorder. 3. The Central Para Military Forces perform a critical role in maintaining internal security and guarding of national borders. By very nature, the job requ irements are ’technical’ in nature requiring a high level of physical fitness an d abilities. The selection process is also rigorous in nature and every candida te must pass through medical examinations and physical efficiency test. The col our blindness is one of the disqualifications for selection in service for the C PFs. If any person with colour blindness has been selected by chance in the pas t, considering the requirement of the CPFs and in the interest of the person, he or she should be boarded out on account of physical disability. At the same ti me, if the person has served for a number of years in a Force, it may not be fai r to remove him summarily. It has, therefore, been decided that in all such cas es which came to light where a person was appointed prior to 17.5.2002 with colo ur blindness, the concerned Force will try to adjust such a person in non-techni cal security force where colour blindness may not be a disqualification. However , if the CPF is not able to find a suitable position for the person in the Force , he/she may be removed from service after giving due opportunity to defend his/ her case. The cases of colour blindness, if detected in the appointees in the pe riod after 17.5.2002, such person shall be placed in SHAPE-V and be boarded out as per the laid down procedure for disability. 4. CPFs and ADG(Medical) shall also take all measures to see that at the ti me of the medical examination/PET, the candidates are thoroughly screened for di sabilities like colour blindness and in case of detection of such defects at a l ater date, there should be in-built mechanism to fix responsibility and take exe mplary disciplinary action against those found guilty. Sd/- (Barun Kumar Sahu) Director (Pers) Tele No.23092956 DG. ARs DG BSF DG CRPF DG CISF DG ITBP DG NSG DG SSB ADG (Med)CPFs MHA UO No.1-45024/1/2008-Pers-II dated 29 Oct 2008 Copy for information to :- 1. Dir. (Pers.I) 2. S.O.(Pers III) 5. On perusal of the above three circulars, what has transpired is that earlier an S.S.B. personnel with colour blindness was entitled to get promo tion irrespective of such medical incapacity. However, in term of the 3rd circu lar dated 29.10.2008, all such cases which came to light where a person was appo inted prior to 17.5.2002 with colour blindness, the concerned Force (herein S.S. B) will try to adjust such a person in non-technical security force where colour blindness may not be a disqualification. However, if the Central Police Force i s not able to find a suitable position for the person in the Force, he/she may b e removed from service after giving due opportunity to defend his/her case. In t erms of the said circular-letter dated 29.10.2008, the cases of colour blindness , if detected in the appointees in the period after 17.5.2002, such person shall be placed in SHAPE-V and be boarded out as per the laid down procedure for disa bility. 6. While Mr. R. Mazumdar, learned counsel for the petitioner submits that t he aforesaid circular dated 29.10.2008 does not stand on the way of promotion of the petitioner inasmuch as it is not the case of the respondents that because o f colour blindness of the petitioner, efforts are being made to adjust him in no n-technical security force. According to him, the services of the petitioner ha ving been utilized and the petitioner having been allowed to continue in service , the service benefits, referred to above, cannot be denied so long as the petit ioner remains in the S.S.B. 7. On the other hand, Mr. J.M.A. Choudhury, learned C.G.C, upon a reference to the said circular dated 29.10.2008, submits that since the colour blindness of the petitioner is an admitted position, there is no question of considering h is case for promotion. According to him, since the case of the petitioner is req uired to be considered for boarding out as per SHAPE, in such a situation, he ca nnot be conferred with benefit of promotion. 8. I have considered the submissions made by the learned counsel for the pa rties and the materials on record. 9. So far as the grant of Senior Time Scale, referred to above, is concerne d, it is submitted that the incumbents remained in the same positions with the same duties and functions and there being no functional difference on grant of S enior Time Scale, the aforesaid circular dated 29.10.2008 cannot be applied for depriving the said benefits. Needless to say that the conferment of Senior Time Scale does not involve any upward movement. The order dated 31.3.2009, by which the Senior Time Scale of Pay was provided to the incumbents, will go to show th at the same was not by way of promotion, but the incumbents were granted with th e benefit of Senior Time Scale of Pay in the same position/post. 10. As regards the promotion to the post of Deputy Commandant, it is on reco rd that although said Madhab Chandra Ghosh was declared to be colour blind, but his case was subsequently reviewed and was granted the promotion. On review by t he Medical Board, he was found to be in category of SHAPE-I instead of SHAPE-II and accordingly, he was granted the benefit of promotion to the post of Deputy C ommandant. 11. Considering the matter in its entirety, this writ petition is disposed o f directing the respondents to dispassionately consider the case of the petition er for grant of Senior Time Scale taking note of the fact that the post remains the same and there is no any functional difference. As regards the promotion to the post of Deputy Commandant, the respondents may consider the case of the pet itioner afresh as was done in the case of said Shri Ghosh. Let the entire exerc ise be carried out as expeditiously as possible, preferably within 3 (three) mon ths. 12. With the aforesaid observation and direction, the writ petition stands d isposed of.