B. B. Deb, J.
1. By this writ petition, the petitioners sought for quashing/setting aside the Standing Order No. 10/2000 dated 20.12.2000, so far it relates to 'medical categorisation' of C.R.P.F. officials, and also for quashing/ cancelling the Recruitment Rules for the post of Group-A (General Duty) officers of C.R.P.F. relating to medical categorisation.
2. The petitioners who are holding the posts of Commandant, Deputy Commandant and Assistant Commandant filed this writ petition contending, inter alia, that at the time of entry in service, their medical fitness had been tested in view of Rule 105 of the Central Reserve Police Force Rules, 1955 (herein after referred to as the 'Rules of 1955') and there was no provision of medical categorisation after entry in service at the relevant time. The rule making power as has been envisaged under Section 18 of the Central Reserve Police Force Act, 1949 (hereinafter referred to as 'the Act of 1949') does never contemplate to frame any Rule or Standing Order for medical categorisation of officers already entered in service after due medical test. Though there is no provision either under the Act of 1949 or Rules framed thereunder enabling the authority to alter, verify or modify the service condition of Gazetted Officers by any Standing Order, but surprisingly the Director General of C.R.P.F. has issued Standing Order No. 10/2000 on 20.12.2000 under the caption 'Medical Categorisation and Invalidation of Central Reserve Police Force Personnel' and under the aforesaid Standing Order, all the Gazetted Officers and A, B, C, D and E for Non-Gazetted Officers in C.R.P.F., shall have to pass a medical categorisation test once a year which purportedly authorises termination from service declaring permanently unfit for C.R.P.F. duty. Being apprehensive, the petitioners filed this writ petition challenging the aforesaid Standing Order.
3. The Union of India has contested the case filing counter-affidavit contending, inter alia, that the Central Government has the power to frame Rule for carrying out the object of the Act of 1949 under Section 18 of the said Act and in exercise of that power the Central Government framed Recruitment Rules for the Group A (General Duty) officers prescribing the medical categorisation. The medical categorisation as has been prescribed by the Standing Order No. 10/2000 in fact provides the SHAPE I category being mandatory for promotion to all Group-A Posts in Central Paramilitary forces including the C.R.P.F. The Director General issued the impugned Standing Order No. 10/2000 under the instruction of the Central Government pursuant to Rule 4 of the Rules of 1955 and as such it is neither illegal nor invalid. The aforesaid Standing Order as soon as has been published in the Official Gazette, it should be treated to be part of the related Recruitment Rules and as such the petitioners should not have any grievance.
4. I have heard Mr. K.N. Bhattacharjee, learned senior counsel being assisted by Mr. S. Chakraborty, learned counsel for the petitioners and Mr. P.K. Dhar, learned senior Central Govt. Standing Counsel for the respondents.
5. Mr. Bhattacharjee, learned senior counsel for the petitioners submits that under Rule 105 of the Rules of 1955, the mode, manner, qualification, etc., for appointment and promotion of superior officers under CRPF have been prescribed and the authority cannot go beyond the prescribed criteria.
6. Among others, regarding medical standardisation Sub-rule (4)(iv)(c) of Rule 105 of the Rules of 1955 prescribes the physical standard, etc., for direct recruitment. For convenience sake, the same is re-produced below:
'(4)(iv) by direct recruitment from amongst the candidates possessing the following qualifications, namely:
(a) *** *** ***
(c) must satisfy the minimum physical standards, namely ; height 165 Cms; chest 81 Cms. (unexpanded) 86 Cms. (expanded); weight 50 Kgs ; eyes sight (with or without glasses) distant vision 6/6 in one eye and 6/9 in the other eye ; near vision 0'6 in one eye and 0'8 in the other eye ; candidates should not have knock knees or flat foot;
*** *** ***'
Having referred to the aforequoted medical standard prescribed, Mr. Bhattacharjee, learned senior counsel for the petitioners submits that at the time of entry in service, all the petitioners successfully complied with the aforequoted requirement of physical standard and as such in the name of medical categorisation, in view of the impugned standing order No. 10/2000, the authorities have been contemplating to terminate the service of the petitioners.
Mr. Bhattacharjee referred para II. Medical Categorisation, available in Standing Order No. 10/2000, dated 20th December, 2000 and submits that in view of this medical categorisation, the authorities unduly may assume the power to declare a particular officer unfit for CRPF duties, consequently the said officer would be terminated from service.
For better appreciation, the medical categorisation, as available under Standing Order No. 10/2000 is re-produced below :
'II. MEDICAL CATEGORISATION
Medical categorisation of the CRPF officers will be done by a duly constituted board by competent authority. The board will assess fitness of the officers as per following factors indicated by the code letters SHAPE and will give category classification.
(a) S - Psychological
(b) H - Hearing
(c) A - Appendages
(d) P - Physical capacity
(e) E - Eyesight
Medical categorisation under above systems will be based on functional capacity of the individual as a whole for CRPF duties with a view to ensure that low medical category awarded to an office for minor physical defects of a particular organ or system does not, by itself, restrict his employment. Thus, classification done under above system will enable the administrative authorities concerned to assign appropriate appointments to officers depending on their employment capacity.
Functional capacity of an officer under each factor will be denoted by numerals 1 to 5 against code letter, indicating declining functional efficiency. The numerals will be written next to the code letter, except that where an officer is in Grade-I in all factors, category may be denoted by writing SHAPE-I instead of writing S1, H1, A1, P1, E1.
General evaluation of these numerals is as under:
Shape-1 Fit for all duties anywhere.
Shape-2 Fit for all duties may have limitation as to type of duties and areas of employability depending on whether the duties involve severe stress or demand acuity of hearing/vision of both ears/ eyes.
Shape-3 Excepting 'S' factor, fit for routine or sedentary duties but may have limitation of employability at high altitude (above 2,700 meters) extreme cold areas/hilly terrain and for long stressful and difficult assignments.
Shape-4 Temporary unfit for CRPF duties on account of hospitalisation/ sick leave.
Shape-5 Permanently unfit for CRPF duties.
From the aforequoted format of medical categorisation, it reveals that if an officer is found to be under Shape-4, he may be declared 'temporary unfit for CRPF duties' and in case one is classified as Shape-5, he is likely to be declared permanently unfit for CRPF duties', as a result, there is likelihood of being discharged from service.
7. Mr. Dhar, learned senior Central Govt. Standing Counsel appearing for the respondents submits that in order to combat with the situation, medical fitness of CRPF officers is the paramount consideration and unless it is periodically assessed, it would be uncertain to face any unpredictable situation in the field of operation. If an officer of CRPF is found to be under Shape-4 or Shape-5 in course of employment, he cannot be allowed to be detailed in duty to combat with a precarious law and order situation and having regard to the better interest of the Force and very object of its public utility, the authority issued the aforesaid standing order.
8. On perusal of the Shapewise medical categorisation as quoted above, it appears that in case an officer of CRPF is declared to be under Shape-5, the likelihood of his being discharged from service cannot be brushed aside. Under Shape-5, one officer may be declared permanently unfit in CRPF duty and in such a situation, obviously the authority would discharge him from the Force.
9. In civilian service also, both under Central Govt. and State Governments, there is provision in the related Service Rules for asking an employee to go on compulsory retirement at the age of 50 years if it is found that further retention in service would not be for any public utility. In that view of the matter, in a paramilitary force like CRPF, the staff holding the position of Gazetted Officers cannot claim to be retained in service till the age of normal superannuation despite his medical categorisation does not permit such retention. In case an officer on periodical assessment under the impugned medical categorisation is found to be totally unfit for CRPF duties, the authority cannot be asked to retain such officer in service.
10. Mr. Bhattacharjee, learned senior counsel for the petitioners submits that since at the time of entry in service, the petitioners proved their physical fitness, according to the medical standard prescribed under Rule 105(4)(iv)(c) of the Rules of 1955, they cannot be asked to go for further medical categorisation test in the midst of their service career.
11. On perusal of the impugned Standing Order, it appears that in case an officer is found to be under Shape-5, he could be declared 'permanently unfit for CRPF duties' and there is likelihood of his being discharged from service, so far categories under Shape-1 to 3 and 4 are concerned, there is no such apprehension. It is not clear from the medical categorisation what would be the next course of action if an officer is found to be under Shape-5. It is only mentioned that Shape-5 is indicative of 'permanently unfit for CRPF duties'. Mr. Bhattacharjee, learned senior counsel for the petitioners submits that if one is found to be under Shape-5, obviously he will be discharged from service. The respondent Union of India also failed to clarify the nature of consequences to be followed in case one is found to be under Shape-5 of medical categorisation.
12. In view of the latest decision of the Hon'ble Apex Court, unless an. officer completes 20 years of service, he will not be entitled to get pensionary benefits if he is discharged from service before complition of 20 years. That aspect of the matter appears to have been ignored by the authority. On finding an officer under Shape-5 under medical categorisation, if the authority decides to dispensed with his service, he must be allowed to be paid the retiral benefits as if he has completed 20 years of service. Unless the aforesaid implication is provided under Shape-5, an officer would be deprived of his livelihood in the event of premature discharge under Shape-5.
13. Mr. Bhattacharjee, learned senior counsel for the petitioners submits that the Director General of CRPF has no power to issue such Standing Order and as such the impugned Standing Order is liable to be quashed.
On the other hand, Mr. Dhar, learned senior Central Govt. Standing Counsel appearing for the respondent Union of India submits that pursuant to the instruction of the Central Government, the Director General of CRPF only issued the Impugned Standing Order but the decision of formulation of such medical categorisation is of the Union of India.
14. Mr. Bhattacharjee referred a decision of the Hon'ble Apex Court in P. Mahendran and Ors., Appellants v. State of Karnataka and Ors., Respondents, reported in AIR 1990 SC 405 and submits that all Rules, statutory or executive in nature, are to be prosecuted to be prospective unless it is made retrospective either by express provision or by necessary implication. Mr. Bhattacharjee submits that in the present case, though the petitioners entered in service years ago, the impugned Standing Order No. 10/2000 cannot be made retrospective operation and in such case the impugned standing order is not applicable to the officers in service prior to 20.12.2000.
Mr. Bhattacharjee referring another decision of the Hon'ble Apex Court in Ex. Capt. K.C. Arora and Anr., Petitioners v. State of Haryana and Ors., Respondents, reported in AIR 1987 SC 1858 submits that no statutory Rule could be made ultra vires the Constitution.
Here according to the learned senior counsel for the petitioners, the conditions of service are to be governed by the existing Rule framed under Rule 102 of the Rules of 1955 and as such by any Executive instruction the Director General of CRPF cannot abridge the right of the petitioners by way of introducing the impugned Standing Order.
Referring another case law of the Hon'ble Apex Court, reported in AIR 1983 SC 852 (Y.V. Rangaiah and Ors., Appellants v. J. Sreenivasa Rao and Ors., Respondents), Mr. Bhattacharjee submits that no amendment in Service Rule is permissible to be made retrospective with a view to take away the vested right of the petitioners.
15. On perusal, it appears that the case of Y.V. Rangaiah (supra) dealt with a Service Rule regarding promotion of Sub-Registrar Grade-II of Andhra Pradesh Subordinate Services. The Hon'ble Apex Court held that the amendment of any Service Rule is governed to the posts and vacancies occurred on or after the amendment. In order to fill up the existing vacancies occurred prior to the amended Rule, it must be decided applying the unamended Rules.
16. Mr. Dhar, learned senior Central Govt. Standing counsel appearing for the respondents referring a decision of the Hon'ble Apex Court in Krishnan Kakkanth, Appellant v. Govt. of Kerala and Ors., Respodents, reported in AIR 1997 SC 128 submits that the reasonableness in imposing some restrictions on the service condition by the impugned Standing Order is to be examined in view of the guiding factors of public interest.
17. On perusal of the citations relied upon by both the parties, it reveals that the amendment of Service Rules normally would not be permissible with retrospectivity. Secondly, the amended Service Rules would govern the terms and condition of service of the employee, appointed against a vacancy occurred on or after the amended Rules. Thirdly, the amended Rules unless expressly provided cannot be applicable to the employees already in service. In the present case, the condition of service to be prescribed by the Recruitment Rules has been mandated under Rule 102 of the Rules of 1955. No service condition, fundamental in nature, could be incorporated having travelled beyond the periphery of Rule 102 of the Rules of 1955. However, Mr. Dhar, learned senior C.G.S.C. referring Rule 4 of the Rules of 1955 submits that for regulating the working of the Force, some power has been vested with the Director General. For convenience sake, Rule 4 is re-produced below :
'4. Powers of the Central Government and certain officers of the Force. -[(a) In all cases not specifically provided for in these Rules, instructions issued from time to time by the Central Government or the Director General or under his directions by the Additional Director General or the Inspector General shall regulate working of the Force.]'
In view of the aforequoted provision of Rule 4 it appears that Rule 4 as has been amended on 16th September, 1988 has kept the residuary power with the Central Government or the Director General of CRPF which are not specifically covered by Rule 102 of the Rules of 1955 or the other related Service Rules. In exercise of that power, the Director General of CRPF would issue instructions for upliftment of the standard of the Force having regard to the necessity of operation in the field and in doing so, in my considered opinion, the authority rightly issued the impugned Standing Order No. 10/2000, of course, so far the consequence of categorisation under Shape-5 is concerned, I already opined that the consequences of termination/discharge from service cannot be followed even after categorisation of an officer under Shape-5 without allowing him the retiral benefits.
18. The authority is directed to take care of the same and come with appropriate modification and till the same is done, no officer could be discharged or terminated from service as a consequence of classification under Shape-5 in the medical categorisation pursuant to the impugned Standing Order. The classification under other Shapes, viz., Shape-1 to 4 in the impugned medical categorisation standing order No. 10/ 2000 stands good.
19. With these observations and directions, the writ petition is disposed of with no order as to costs.