K JAYACHANDRAN Vs. DY INSPECTOR GENERAL SOUTHERN ZONE

JUDGEMENT

(1.) AGGRIEVED by the proceedings of the 1st respondent dated 13.02.1998 rejecting the request of the petitioner, the petitioner has filed the above writ petition to quash the same and issue direction to the 1st respondent to treat the period of medical invalidation from 17.06.1993 to 01.12.1998 as period spent on duty with all consequential benefits.

(2.) THE case of the petitioner is briefly stated hereunder: (a) Petitioner was recruited as Security Guard in the Central Industrial Security Force (for short "CISF") on 15.10.1970. THE same was re-designated as Constable. On completion of training he was posted to Cochin Port Trust and thereafter, he was transferred to various Units all over India. While working in the Fertiliser Corporation of India at Sindri in Bihar, he met with an accident as a result of which, he sustained a fracture in the right elbow. He underwent medical treatment from time to time and he was operated upon, but it was no successful. THErefore, his hand movement was affected. THE petitioner underwent further operation in the C.M.C.Hospital at Vellore and a steel plate was inserted in the elbow. As a result of which, hand movement became better and the petitioner resumed duty. (b) On 11.05.1985, the petitioner was promoted as Naik and was also deputed to undergo promotion course on three occasions. On all the three occasions, he was found fit to take up the course. Petitioner has also expressed his willingness to undergo the course of indoor subjects. On a particular day, when the Commandant came to the Unit, the petitioner saluted him, but due to the difficulty in free movement of the right elbow, he could not raise his elbow fully. By order dated 26.09.1991, he was reverted to the substantive rank as Constable. (c) Aggrieved by the said order, the petitioner preferred an appeal to the 1st respondent on 22.07.1991. However, the same was rejected on 10.11.1991. On 02.04.1992, the petitioner was again promoted as Landce Naik and was assigned to special armed duty training. Based on the Certificate issued by the Civil Assistant Surgeon, K.M.C.Hospital, Chennai, the petitioner submitted a representation to the Commandant on 30.06.1992 to assign light duties. On 01.10.1992, the petitioner was referred to the Medical Board and based on the legal report, by order dated 05.02.1993 he was medically invalidated with effect from 06.02.1993. Subsequently, the Commandant cancelled the earlier order dated 05.02.1993. In the meanwhile, on 28.01.1993, the petitioner underwent another operation in the elbow in the C.M.C.Hospital at Vellore and the steel plate was removed and the arm movement became almost normal. On that basis, the petitioner made a representation for implementation of the promotion as Landce Naik, but the Commandant again passed an order on 17.06.1993, medically invalidating the petitioner from service on the basis of the very same report of the Medical officer. (d) Aggrieved by the said action, the petitioner filed two writ petitions in W.P.Nos.21734 and 21735 of 1993. Both the writ petitions were allowed by order dated 07.03.1997 and a direction was issued to file an appeal before the Deputy Inspector General within four weeks. (e) Pursuant to the order, the petitioner made a representation on 31.03.1997. By order dated 12.11.1997, the said representation of the petitioner was considered. THEreafter, the petitioner joined duty on 01.12.1997. However, while passing the order, the 1st respondent also stated that it was proposed to regularise the intervening period from the date of the earlier invalidation i.e.17.06.1993 to the date of reinstatement in service as Dies Non. In the same order, the petitioner was given an opportunity to make a representation against the above proposal within a period of 15 days after reporting to the Unit. (f) Pursuant to the same, the petitioner submitted his representation on 10.12.1997, but by order dated 13.02.1998, the earlier proposal was confirmed and the intervening period from the date of medical invalidation to the date of reinstatement was treated as Dies Non. Aggrieved by the above said order, the petitioner has filed the above writ petition.

(3.) THE only point for consideration in this writ petition is whether petitioner is entitled to the relief as claimed in the writ petition?