# Shailesh Kumar Shukla v. U.O.I. & Ors

- **Citation:** (2023) 7 ILRA 1248
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-06
- **Case number:** Special Appeal Defective No. 430 of 2023
- **Bench:** Devendra Kumar Upadhyaya, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailesh-kumar-shukla-v-u-o-i-ors-50506
- **Pages:** 20

## Headnote

Service Law - The Central Reserve Police
Force Rules/Regulations/Scheme,1955. -
Persons with Disabilities Act 1995 - Central
Reserve Police Force, promotion, HIV positive,
SHAPE-1
medical
category,
discrimination,
fundamental rights, -Standing Order 04/2008,
non-discrimination in employment
The appellant, a Constable in the Central
Reserve Police Force (CRPF) challenged the
order dated, removing his name from the
approved list for promotion to Head Constable
due to his HIV-positive status and consequent
SHAPE-2
medical
categorization.
Despite
completing the required Section Commander
Course (SCC) in 2006 and being promoted to
Head Constable, his promotion was cancelled
after a 2013 medical examination reclassified
him as SHAPE-2 (P-2, physical capacity). The
appellant argued that his HIV status did not
impair his duties, and the denial of promotion
was discriminatory. The Single Judge dismissed
his writ petition, finding no illegality in the
cancellation. The appellant filed this intra-court
appeal under Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952, alleging
violation
of
his
fundamental
rights
and
discriminatory treatment. The special appeal
was allowed, the Single Judge's order, was set
aside, and the orders denying promotion were
quashed. The respondents were directed to
grant the appellant promotion benefits from the
date his juniors were promoted, with no order
as to costs. The delay condonation application
was also allowed. The High Court allowed the
appeal, set aside the Single Judge's order and
quashed the orders denying the appellant's
promotion.

The appeal is allowed.

List of Cases referred:

## Text

_Characters 0–39,840 of 64,336. This is a partial read: ask again with offset=39840 for what follows._

1248 INDIAN LAW REPORTS ALLAHABAD SERIES

109. In so far as SCC Revision (Def.)
No. 48 of 2022 is concerned, the order
passed by Judge, Small Causes dated
13.07.2022 passed by District Judge,
Saharanpur in Small Cause Suit No. Nil of
2022, impugned in revision petition is
hereby set aside and the matter is remitted
to be decided afresh by the Judge, Small
Cause on the point of maintainability of the
suit in the light of this judgment,
expeditiously,
preferably
within
three
months.

110. Thus both the revision petitions
stand disposed of.

111. Cost made easy.
----------
(2023) 7 ILRA 1248
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.07.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal Defective No. 430 of 2023

Shailesh Kumar Shukla ...Appellant
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Appellant:
Sameer Kalia, Srideep Chatterjee

Counsel for the Respondents:
A.S.G.I.

Service Law - The Central Reserve Police
Force Rules/Regulations/Scheme,1955. -
Persons with Disabilities Act 1995 - Central
Reserve Police Force, promotion, HIV positive,
SHAPE-1
medical
category,
discrimination,
fundamental rights, -Standing Order 04/2008,
non-discrimination in employment
The appellant, a Constable in the Central
Reserve Police Force (CRPF) challenged the
order dated, removing his name from the
approved list for promotion to Head Constable
due to his HIV-positive status and consequent
SHAPE-2
medical
categorization.
Despite
completing the required Section Commander
Course (SCC) in 2006 and being promoted to
Head Constable, his promotion was cancelled
after a 2013 medical examination reclassified
him as SHAPE-2 (P-2, physical capacity). The
appellant argued that his HIV status did not
impair his duties, and the denial of promotion
was discriminatory. The Single Judge dismissed
his writ petition, finding no illegality in the
cancellation. The appellant filed this intra-court
appeal under Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952, alleging
violation
of
his
fundamental
rights
and
discriminatory treatment. The special appeal
was allowed, the Single Judge's order, was set
aside, and the orders denying promotion were
quashed. The respondents were directed to
grant the appellant promotion benefits from the
date his juniors were promoted, with no order
as to costs. The delay condonation application
was also allowed. The High Court allowed the
appeal, set aside the Single Judge's order and
quashed the orders denying the appellant's
promotion.

The appeal is allowed.

List of Cases referred:

1. Bishamber Dutt Vs U.O.I., 2010 (2) LLR
Punjab & Haryana 228

2. SGT Chaman Lal Vs U.O.I., (2018) 14 SCC
455

3. Lieutenant Colonel Nitisha Vs U.O.I., (2021)
15 SCC 125

4. U.O.I. Vs Devendra Kumar Pant, (2009) 14
SCC 546

5. Air Commodore Naveen Jain Vs U.O.I., 2019
(10) SCC 34

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
7 All. Shailesh Kumar Shukla Vs. U.O.I. & Ors.
1249
&
Hon'ble Om Prakash Shukla, J.)

C.M. Application No. 1 of 2023 :
Application for condonation of delay .

(1) Heard Shri Sameer Kalia and Shri
Srideep
Chatterjee,
learned
Counsel
representing the appellants and Shri Surya
Bhan
Pandey,
learned
Senior
Advocate/Deputy Solicitor General of India
assisted by Shri Sudhanshu Chauhan,
representing the respondents.

(2)

Having
gone
through
the
averments made in the affidavit filed in
support
of
the
application
seeking
condonation of delay, this Court is satisfied
that delay has sufficiently been explained.

(3) The application is, accordingly,
allowed and delay in filing the special
appeal is hereby condoned.

Order on Appeal

(4) The present intra Court appeal
under Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952 has
been filed by the appellant/writ petitioner
whereby the judgment and order dated
24.05.2023 passed by the learned Single
Judge in Writ-A No.18903 of 2021 has
been sought to be interdicted. Apparently,
the appellant is aggrieved by an order
dated 17.05.2021 issued by the Inspector
General of Police, Central Sector, Central
Reserve Police Force, Lucknow, whereby
the appellant's name for promotion to the
post
of
Head
Constable
made
on
26.02.2013 has been removed from the
approved list A/GD-11/2009 on the
ground of him having been found Human
Immunodeficiency
Virus
(hereinafter
referred to as 'HIV') Positive, which
according to him was not just, proper
and
legal.
Since,
the
appellant's
proposition did not find any favour with
the learned Single Judge, his writ
petition (supra) was dismissed/rejected
and as such the appellant is before us in
special appeal.

A. FACTUAL BACKGROUND

(5) The appellant was recruited as a
Constable (General Duty-GD) in the
Central Reserve Police Force (hereinafter
referred as 'CRPF') on 28.08.1993. He
was initially allocated to 16th Batallion,
Jammu & Kashmir Zone.

(6) The post of Lance Naik and Naik
came to be abolished by the respondents
on 10.10.1997 and as such any Constable
in CRPF, if found to be eligible, was
directly promoted to the post of Head
Constable on or after the said date. The
appellant having not been promoted to
the said post of Head Constable, even
after two decades of service, approached
this Court by instituting the writ petition.

(7) It would be pertinent to mention
herein that Standing order No. 06/1999 lays
down the procedure for promotion for
members of the force from the rank of
Constable
to
Head
Constable.
The
promotional course to be undergone is as
per Clause-B and sub-Clause 1 says that
promotional course of section commander
course (SCC) has to be qualified by a
member of the force to be eligible for
promotion from the rank of constable to the
rank of Head Constable. Admittedly, the
appellant successfully underwent the said
course bearing No. 35 at CTC-3 Nanded in
the year 2006.
1250 INDIAN LAW REPORTS ALLAHABAD SERIES

(8) The appellant, although had
completed 13 years of service and also had
underwent the aforesaid SCC successfully,
however he was not promoted to Head
Constable in the year 2006, albeit the
Standing Order No. 06/1999 prescribed 8
years of completed service as Constable to
be promoted to the post of Head Constable.

(9) Nevertheless, in the year 2006,
Standing Order No. 06/2006 was issued
laying down the action plan on HIV/AIDS
for
awareness,
prevention,
detection,
treatment and rehabilitation of the members
of the force. However, the provision for
medical examination and classification of
members of the force is contained in
Standing
Order
No.
04/2008,
which
invariably
lays
down
the
instructions/procedure for carrying out
annual medical examination. Further, there
also exists an Establishment Manual which
provides
for
various
procedures
and
modalities to be followed with respect to
grant of promotion and other conditions of
service of the members of the force,
wherein it is mandatorily required that in
order to be eligible for being considered for
inclusion
in
the
approved
list
for
promotion, the medical category should be
SHAPE-I.

(10) In the intervening period, on or
about
18.02.2008,
the
appellant
was
diagnosed with HIV positive and put on AntiRetroviral therapy (ART) and subsequently
on
21.01.2009
was
given
medical
categorization as SHAPE-2. However, in
terms of the aforesaid Standing Order No.
04/2008, the appellant was made to undergo
annual medical examination in the year 2011,
in which he was declared to be in SHAPE-I
category and as such his name was brought in
the Special Approved List-A/ GD(Male) (11
of 2009) on 04.01.2011 and he was granted
the seniority No. 8545-A, which was
communicated to the appellant vide office
order dated 14.07.2011.

(11)

Apparently,
the
medical
examination of the appellant was again
conducted on 04.01.2012, wherein his case
was categorized as 'SHAPE-I'. Thereafter, on
due consideration along with other eligible
candidates, the Deputy Inspector General of
Police (Establishment), vide letter dated
26.02.2013, promoted the appellant along
with other eligible candidates to the post of
Head Constable (General Duty), subject to
the condition that all effected personnel ought
to be free from vigilance angle and no
departmental
inquiry,
prosecution
for
criminal charge was pending against them
and were not undergoing punishment of
withholding of increment and were 'SHAPEI' as per Standing Order No. 4/2008. The
name of the appellant in the aforesaid letter
dated 26.02.2013 was at Serial No. 2094.
Therefore, the appellant was promoted and
posted at 183 Battalion by the order of
Deputy Inspector General, South Srinagar
dated 06.04.2013.

(12) However, as per the facts of the
present case, the appellant was not relived
from his duties while working at Amethi and
on 17.05.2013, he was made to undergo
another annual medical examination wherein
on having been found HIV Positive, he was
medically categorized in SHAPE-2 (T-24)
and was further advised regular treatment for
the said ailment. Coincidently, the grading of
SHAPE-2 was acquired on the basis of
factor-P i.e physical as '2', whereas the other
factors were mentioned as '1' only.

(13) Furthermore, as the appellant
was placed in the temporary low medical
classification (LMC), he was to undergo
Review Medical Examination after 24
7 All. Shailesh Kumar Shukla Vs. U.O.I. & Ors.
1251
weeks as per Para-9 of Standing Order No.
4/2008. Thus, the said review examination
was conducted on 17.12.2013, wherein the
appellant was again granted medical
category of 'SHAPE-2' falling in the
category 'P2' under the factor physical
capacity. As the appellant was advised to
remain
under
observation
beyond
permissible period of 24 weeks i.e. 6
months, he was placed in permanent low
medical classification and his name was
removed from the approved list and as per
the rules, it could only be reconsidered for
the approved list after expiry of one year
from the date of removal of low medical
category under sub-clause 6 of clause 11.2
of the CRPF Manual, 1976.

(14) It would be apt to mention here
that since the appellant was suffering
from HIV, the relevant provisions of PartIV, clause 22.5(g) of the Standing order
No. 04/2008 would also apply to his case,
which also gives an insight on the
physical endurance of different categories
of recruits placed after the AME.

(15) According to the appellant,
there was no impediment in granting him
promotion to the post of Head Constable
as he had been till date performing all his
duties attached to his post without any
kind of assistance. In the meantime,
another Standing Order being No.01/2015
came to be issued in supersession of the
earlier Standing Order No. 06/1999 and
again the procedure for promotion from
the rank of Constable to the rank of Head
Constable has been laid down.

(16) In any case, the appellant was again
made to face the annual medical examination
on 13.04.2019 and was given the medical
category of 'SHAPE-2 (P)' on account of
being HIV Positive and was advised regular
treatment. It is the case of the appellant that he
had been sending several representation to the
competent authority to consider his case
favorably, as he was promoted to Head
Constable when he was placed in medical
category of SHAPE-1 earlier. He had also
represented before the authorities that about 81
incumbents junior to the appellant had already
been promoted from Constable to Head
Constable on 13.10.2000 and it was not fair
that he continued to be working as Constable
for the reason that being HIV positive, could
not
be
the
solitary
reason
for
his
discrimination. According to him, his medical
categorization continued to be SHAPE-2 as is
evident from medical examination held on
30.01.2016, 13.04.2019
and 24.06.2021.
According to him, clause 4.13 containing
restriction of ineligibility of candidates for not
being in SHAPE-1 medical category for
promotion does not have any rationale nexus
with the object sought to be achieved.

(17) It is the case of the appellant that
vide order dated 17.05.2021 issued by the
respondent, his name was removed from the
approved list, namely, A/GD-11/2009 and as
such all his avenues to be promoted stands
shattered.

(18) Thus, the appellant preferred Writ-A
No. 18903 of 2021, wherein vide the
impugned order dated 02.05.2023, the learned
Single Judge did not find any illegality or
perversity or violation of constitutional rights
in cancellation of the promotion order of the
appellant and as such dismissed the writ
petition. It is this order dated 02.05.2023,
which has been assailed in the instant intra
Court appeal.

B. SUBMISSIONS

(19) Learned Counsel for the
appellant has contended that the denial of
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
promotion to the appellant on the solitary
ground of being HIV positive is arbitrary
and discriminatory as two similarly situated
persons, who were recruited and junior to
the appellant are working on the post of
Assistant
Sub-Inspector,
whereas
the
appellant is working on the post of
Constable for no fault on his part.
According to him, as per the Standing
Orders/Circulars/ CRPF Manual, the only
requirement for posting of a recruit like the
appellant, who suffered from HIV positive
is to the place where ART facility is
available and not to any difficult and
solitary locations. It was argued that the
recruits of CRPF are posted throughout the
length and breadth of the country including
the Metro and Tier-I cities, where ART
facility is readily available. Therefore, as
the appellant is fit for all duties subject to
the aforesaid condition, there is no rationale
behind denial of promotion to employees,
like the appellant, who are in SHAPE-II
category.

(20) Inviting our attention to Clause
4.13 of the Standing Order No. 4/2008,
learned Counsel for the appellant has
contended that Clause 4.13 of the Standing
Order No. 4/2008 is contradictory to Clause
25.5
(g)
inasmuch
as
Clause
4.13
prescribes a restriction with respect to
promotion of the incumbents who are not in
SHAPE-I medical category, while Clause
25.5 (g) prescribes that incumbents who are
SHAPE (P) 2 medical category are fit
for all duties. His contention is that Clause
4.13 is irrational for the reason that as an
incumbent moves up in hierarchy in the
service, the physical endurance required
relatively reduces. Moreso, as a Constable,
the requirement of physical efficiency of
the appellant is much higher than what
would be required after he would be
promoted on higher positions. Thus, it is
the contention of the appellant that when
the respondents have found him fit for the
work of Constable, which requires greater
physical endurance, it is difficult to
understand as in what capacity he would be
lacking for the promotion post of Head
Constable, which in all circumstances,
requires less physical endurance than a
Constable.

(21) Learned Counsel for the
appellant has further argued that removal of
the name of the appellant from the
approved list amounts to reversion and
infringement of his fundamental and civil
rights and which could not have been done
without
affording
the
appellant
an
opportunity of hearing, however, in the
instant case, before removing the name of
the appellant from the approved list
amounting to cancellation of his promotion,
no notice of any kind was ever served upon
the appellant although he had been
regularly promoted vide order dated
26.02.2013.

(22) Learned Counsel for the
appellant has urged that it is an admitted
case of the respondents that the appellant
was found fit in all aspects and was granted
promotion to the post of Head Constable
and only after his joining at his new place
of posting, he was diagnosed as HIV
positive. According to him, promotion of
the appellant on the post of Head Constable
(General Duty) was granted on the basis of
evaluation of his work, conduct and
medical condition prior to issuance of
promotion order and thus, the same cannot
be cancelled/rescinded on the basis of his
medical condition post issuance of his
promotion order.

(23) Learned Counsel for the
appellant, thus, has submitted that the
7 All. Shailesh Kumar Shukla Vs. U.O.I. & Ors.
1253
learned Single Judge, while passing the
judgment and order appears to have not
taken into account the aforesaid aspects of
the matter while passing the impugned
order, therefore, he prays that the instant
special appeal be allowed to meet the ends
of justice.

(24) On the other hand, learned
Senior Counsel representing the Union of
India,
has
opposed
the
aforesaid
submissions of the learned counsel for the
appellant and has argued that the essential
eligibility condition for promotion from the
post of Constable (General Duty) to Head
Constable (General Duty) in CRPF is that
the individual should be in the medical
category of SHAPE-I. According to him, in
the instant case, the appellant falls in the
medical category of SHAPE-2 and as such
the appellant lacks requisite eligibility of
promotion to the post of Head Constable
(General Duty). Therefore, the learned
Single Judge has rightly dismissed the writ
petition.

(25)

Learned
Senior
Counsel
representing the Union of India has further
submitted that Para-6 of Clause-11.2 of the
CRPF Manual provides for review of
approved list which provides for annual
review and names of persons who failed to
keep the required standards of efficiency
may be removed from the approved list by
the competent authority. According to him,
such removal was not to be a permanent
bar for the individual for being reconsidered for the approved list, provided
that no action is to be initiated before
expiry of one year from the date of
removal. According to the learned Senior
Counsel, one of the mandatory conditions
for being considered for promotion from
the post of Constable to that of Head
Constable as per Clause 11.5 of the CRPF
Manual is that the recruit must be in
medical category SHAPE-I, but in the
instant case, the appellant does not fulfill
this mandatory eligibility condition, hence
his promotion was rightly denied by the
competent authority.

(26) Placing reliance upon the
judgment of the Apex Court in SGT
Chaman Lal Vs. Union of India and
others : (2018) 14 SCC 455, Lieutenant
Colonel Nitisha and others Vs. Union of
India and others : (2021) 15 SCC 125,
Union of India Vs. Devendra Kumar
Pant and others : (2009) 14 SCC 546, and
Air Commodore Naveen Jain Vs. Union
of India and others : 2019 (10) SCC 34,
learned Senior Counsel for the Union of
India, has assertively argued that the
learned Single Judge has rightly dismissed
the writ petition by means of the impugned
order and has prayed that the impugned
order does not merit any interference by
this court.

C.
RELEVANT
ACT/RULES/STANDING ORDERS

(27) We have given our thoughtful
consideration to the rival submissions made
by the learned counsel for the parties and
have also gone through the records
available before this Court on this special
appeal.

(28) Before proceeding further, it
would be worthwhile to take note of some
relevant provisions of law, particularly
those dealing with the right of the recruit of
CRPF seeking promotion to the post of
Head
Constable
(General
Duty),
as
applicable to the subject.

C.1. Central Police Force Act, 1949
& Central Police Force Rules, 1955.
1254 INDIAN LAW REPORTS ALLAHABAD SERIES

(29) The recruits of the CRPF are
governed by the Central Police Force Act,
1949 (hereinafter referred to as 'CRPF Act,
1949'), which inter alia provides for
constitution and regulation of an armed
Central Reserve Police Force. Section 3 of
the CRPF Act, 1949 provides for the
constitution
of
the
force,
which
is
reproduced as under :-

"3. Constitution of the Force.-
(1) There shall continue to be an armed
force
maintained
by
the
Central
Government and called the Central Reserve
Police Force.

(2) The Force shall be constituted
in such manner, and the members of the
Force shall receive such pay, pension and
other remuneration, as may be prescribed."

(30) Section 8 of the CRPF Act, 1949
vests the superintendence, control and
administration of force upon the Central
Government. Section 18 of the CRPF Act,
1949 deals with power to make rules,
which reads as under :-

"18. Power to make rules.-(1)
The
Central
Government
may,
by
notification in the Official Gazette, make
rules for carrying out the purposes of this
Act.
(2) In particular and without prejudice to
the generality of the foregoing power, such
rules may provide for all or any of the
following matters, namely:-

(a) regulating the classes and
grades of, and the pay, pension and other
remuneration of, members of the Force,
and their conditions of service in the Force;

(b) regulating the powers and
duties of officers authorised to exercise any
functions by or under this Act;

(c) fixing the period of service for
members of the Force;

(d) regulating the award of minor
punishments
under
section
11,
and
providing for appeals from, or the revision
of, orders under that section, or the
remission of fines imposed under that
section, and the remission of deductions
made under section 13;

(e) regulating the several or
collective liability of members of the Force
in the case of the loss or theft of weapons
and ammunition;

(f) for the disposal of criminal
cases arising under this Act and for
specifying the prison in which a person
convicted in any such case may be
confined.

(3) Every rule made under this
Act shall be laid, as soon as may be after it
is made, before each House of Parliament,
while it is in session, for a total period of
thirty days which may be comprised in one
session or in two or more successive
sessions, and if, before the expiry of the
session immediately following the session
or the successive sessions aforesaid, both
Houses agree in making any modification
in the rule, or both Houses agree that the
rule should not be made, the rule shall
thereafter have effect only in such modified
form or be of no effect, as the case may be;
so, however, that any such modification or
annulment shall be without prejudice to the
validity of anything previously done under
that rule.]"

(31) In exercise of the power
conferred upon it by the aforesaid Section
18 of the CRPF Act, 1949, the Central
Government has framed rules, namely,
Central Reserve Police Force Rules, 1955
(hereinafter referred to as "CRPF Rules,
1955"). Chapter IX of the CRPF Rules,
1955 lays down the provisions relating to
promotion of the member of force. Rule 55
of CRPF Rules, 1955 provides that all
7 All. Shailesh Kumar Shukla Vs. U.O.I. & Ors.
1255
promotions shall be governed by merit and
other things being equal, seniority shall
count for promotion. Rule 55 of CRPF
Rules, 1955 is reproduced as under :-

"CHAPTER - IX
RULES FOR PROMOTION
SECTION-I GENERAL PRINCIPLES

55. Merit: (a) All promotions
shall be governed by merit. Other things
being equal seniority shall count for
promotion. For promotion, a member of the
Force must be qualified and recommended
by
the
Commandant,
Assistant
Commandant or Company Commander as
the case may be.

(b) For exceptional reasons the
Commandant may promote an unqualified
Head Constable to the rank of SubInspector or an unqualified Sub-Inspector
to the rank of Subedar(Inspector) with the
prior approval of the Deputy Inspector
General or Inspector General respectively,
provided that such promotions in either
case do not exceed ten percent of the
sanctioned strength in such ranks."

(32) Rule 61 of the Rules, 1955
provides for maintenance of list of
approved candidates. Rule 62 of Rules,
1955 provides for the procedure for
preparing of list of approved candidates.
Rule 61 and 62 of the Rules, 1955 are
reproduced as under :-

"61. Maintenance of Lists of
Approved Candidates: Lists of approved
candidates for promotion to various ranks,
required to be maintained under sub-rule
(b) of rule 62, shall be kept in the office of
the Commandant, and promotions shall
ordinarily be made from these lists
according to the provisions of Rule 55.

62. Preparation of Lists of
Approved
Candidates:
(a)
The
Commandant may for special reasons,
promote to the next higher rank any
qualified candidate whose name is not on
the appropriate approved list. In the case of
Subedars(Inspectors) and Sub-Inspectors
prior approval of the Inspector General and
Deputy Inspector General respectively shall
be obtained.

(b) Promotions shall be made
from among the best men in the Force as
whole
and
for
this
purpose
the
Commandant shall maintain separate lists
for promotion to different ranks as shown
below:-

(1) List 'A" containing names of
Constables fit for promotion to the rank of
Lance Naik

(2) List 'B' containing names of
Lance Naiks suitable for promotion to the
rank of Naik.

(3) List 'C' containing names of
Naiks suitable for promotion to the rank of
Head Constables.

(4) List 'D' containing names of
suitable Head Constables for promotion to
the rank of Sub-Inspectors.

(5) List 'E' containing names of
suitable Sub-Inspectors for promotion to
the rank of Subedar(Inspectors).

(c) Ordinarily, only those men
shall be considered for inclusion in List 'A'
who have passed the prescribed course for
Drill
instructors
and
are
sufficiently
educated to be able to read and write Hindi,
Roman and Hindi Numerical. Higher
educational qualification is necessary for
promotion above the rank of Head
Constable, but the normal standard shall be
Third Class for promotion from Constable
to Lance Naik and Second Class from Naik
to
Head
Constable. A
selected
for
promotion should have initiative, power
and leadership the making of an officer.
Men on promotion list for Naiks and above
shall be on probation for at least one year
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
and names of those one the list who do not
come upto the required standard shall be
removed thereof from time to time. Entry
of names of lists A, B and C shall be made
by the Commandant and lists D and E by
the Commandant with the approval of the
Deputy Inspector General of Police and
Inspector General of Police respectively."

(33) Rule 67 of the CRPF Rules, 1955
lays down the requisite qualification for
promotion to the post of Head Constable,
which reads as under :-

"67.
Head
Constables:
Promotions to the rank of Head Constable
shall be made by the Commandant
according to seniority from the list 'C'
referred to in Rule 62 subject to the general
provisions
of
Rule
55
on
the
recommendations
of
Company
Commanders. The requisite qualification
for such promotions are the passing of the
Senior Cadre Course and the possession of
the Second Class Certificate of Education
or a Matriculation or equivalent or higher
academic qualification certificate(GSR 527
dated 6.6.1981)"

(34) Perusal of the aforesaid Rule 67
of
CRPF
Rules,
1955
reveals
that
promotion to the rank of Head Constable
shall be made by the Commandant
according to seniority from the list 'C'
referred to in Rule 62 subject to general
provisions
of
Rule
55
on
the
recommendations
of
Company
Commanders. Further, two things have
been made mandatory for promoting to the
post of Head Constable, the first being
passing of the senior cadre course and
second being the possession of the second
class certificate of
 education or a matriculation or equivalent
or higher academic qualification certificate.

C.2. ESTABLISHMENT MANUAL
CRPF, 1976

(35) The Establishment Manual
CRPF, 1976 (corrected upto 11.5.2022) was
published
under
the
Authority
of
Government of India, Ministry of Home
Affairs, U.O. No. 1390/76-Pers-1, dated
21.04.1976
and
subsequent
executive
orders issued by the Government and
Director General, CRPF, from time to time.
The criteria of promotion from Constable
to Head Constable has been set out in Para11.5 of the Establishment Manual CRPF,
1976, which reads as under :-

"11.5 APPD LIST-'A' (GD)
FOR PROMOTION FROM CT TO HC.

The CTs who fulfill the following
conditions will be eligible for being
considered for inclusion in Appd List-
'A'/GD:-

i) Must have completed minimum
five years regular service as Constable
including three years in a duty Battalion.

ii) Must have qualified Section
Commander Course (SCC)/Head Constable
promotional Course (HCPC) or any other
course prescribed by the DG, CRPF as per
requirment.

iii) Must be in Medical Category
SHAPE-1.

iv) Must not have adverse report
in Confidential Card in preceding five
years.

v)
Must
not
have
major
punishment in preceding five years.

vi) Must have good record of
service.

Constables who fulfill above
conditions upto a particular seniority as
notified by the Dte.Genl from time to time
and found fit by a Selection Board as per
Standing Orders on the subject shall be
brought on Approved List-'A'(GD) drawn
7 All. Shailesh Kumar Shukla Vs. U.O.I. & Ors.
1257
by DIGP of GC/Principal/Commandant and
their particulars forwarded to Dte.Genl,
Estt
Branch
duly
consolidated
at
Range/Sector/Zone Officers. After having
arranged the Lists on Force Level seniority,
Dte General will circulate it for the
information of all concerned and they will
be released on promotion as per availability
of vacancy.

Note-1 Where juniors who have
completed their qualifying or eligibility service
are being considered for promotion, their seniors
would also be considered provided they are not
short of the requisite qualifying or eligibility
service by more than half of such qualifying or
eligibility service or two years, whichever is less
and have successfully completed their probation
period for promotion to the next higher grade
alongwith the juniors who have already
completed such qualifying eligibility service.

Note-2 For the purpose of computing
minimum qualifying service for promotion, the
service rendered on a regular basis by an officer
prior to the 1 January,2006, the date from which
the revised pay structure based on the sixth Pay
Commission
recommendations
has
becn
extended, shall be deemed to be service rendered
in the corresponding scale of pay and grade pay
extended based on the recommendations of the
commission.

Note-3 Qualitative requirement of
field service shall be deemed to have been
condoned in the cases of Head Constables who
are actively engaged in Central Sports or games
by representing the Force at the AlI India Police
Games or who serve as coaches or trainers of
teams participating at least at national level or
those posted Training Staff in Training
Institutions."

C.3. STANDING ORDERS

(36) Rule 4 under Chapter II of CRPF
Rules, 1955 deals with the Powers of the
Central Government and Certain Officers
of the Force, which reads as under :-

"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.
(Substituted vide GSR-784 dtd 8/10/88)

(b) Omitted vide GSR 784 dated
8.10.88

(c) Omitted vide GSR 784 dated
8.10.88"

(37) Pursuant to the power conferred
under Section 4 of the CRPF Rules, 1955,
Standing Orders have been issued by the
competent authority from time to time.

(38) The Director General, CRPF in
supersession of earlier Standing Order Nos.
4/79,
3/95
and
1/96
(including
all
subsequent
addendum/amendments)
for
governing promotions of NG (Executive,
Trade and Technical including signal)
personnel had issued Standing Order No.
6/99. Clause A of the Standing Order No.
6/99 lays down the eligibility conditions for
promotion. Sub-clause (I) of Clause (A)
deals with promotion from the post of
Constable to the post of Head Constable,
which reads as under :-

"(A) (I) Constable to Head
Constable :-

a)
Must
have
completed
minimum 8 Years service as Ct. from the
date of enlistment.
1258 INDIAN LAW REPORTS ALLAHABAD SERIES

b) Must have qualified in Junior
Cadre Course and Section Commander
Course.

c) Must not have adverse report
in Confidential Card in preceding five
years.

d)
Must
not
have
major
punishment in preceding five years.

e) Service record should be
generally good."

(39) The brief details and eligibility for
the promotional courses has been laid down
in Clause B of the Standing Order No.
06/1999. Sub-clause (I) of Clause B of the
Standing Order No. 06/1999 deals with the
promotional course of Section Commander
Course (SCC), which is required to be
qualified by a member of the force in order to
be eligible for promotion from the rank of
Constable to the rank of Head Constable.
Sub-Clause (I) of Clause (B) of Standing
Order No. 06/1999 reads as under :-

"B. Brief Details & Eligibility
for the promotional courses

I. From Constable to Head
Constable

i) Must have completed seven
years' service as Constable from the date of
enlistment.

ii) Must have qualified in JCC

iii) Constables will be detailed for
SCC strictly in accordance with their
seniority.

iv) SCC of 6 weeks duration will
be conducted in Training Institution and if
need be by Zone/Sectors/Ranges as per
requirement
in
accordance
with
the
syllabus prescribed by Training Directorate.

v) Note more than three chances
shall admissible.

(40) The Director General CRPF has
also issued a Standing Order No. 06/2006
on 03.09.2006, laying down the action plan
on HIV/AIDS for awareness, prevention,
detection, treatment and rehabilitation of
the members of the force. Under the
caption 'Management of HIV/AIDS cases'
in the aforesaid Standing Order No.
06/2006, it has been stated as under :-

"As the CRPF is an armed Force
and mostly deployed in the disturbed areas
across the country. Hence, there is a need to
maintain the high standard of physical
fitness of the personnel. HIV infection is
such a type of problem/disease which
decreases the physical stamina of the
individual in several stages in a long run.
Therefore, there is a need to amend the
Standing Order-1/2003 in regards to HIV
infection (S/O-1/2003 is under review) so
that the new SHAPE SYSTEM could be
introduced for medical categorization and
invalidation. The following points may also
be
incorporated
in
the
policy
in
consultation with Government of India:-

a.
Promotion
of
active
participation of affected personnel in all
functions.

b. No discrimination in posting/
promotion/social activities.

c. Creation of self help group for
PLWHA.

d. Enabling the environment for
care and support.

e. Care by the family members
and others."

(41) Thereafter, the Director General
CRPF has issued Standing Order No.
04/2008 : Health Care System in Central
Para
Military
Forces-Instructions
for
Medical Examination and Classification of
Personnel in CPMF's on 15.12.2008 in
supersession of Standing Order No. 1/2003.
Standing order 04/2008 lays down the
instructions/procedure for carrying out
7 All. Shailesh Kumar Shukla Vs. U.O.I. & Ors.
1259
annual
medical
examination
and
classification of the combatised officers
and other personnel in CRPF. Clause-4 lays
down the Annual Medical Examination.
Sub-Clause 4.10 of the Standing Order No.
04/2008 lays down the procedure for
Annual
Medical
Examination
(AME),
which reads as under :-

"4.10 Procedure for AME

a.
The
individual
officer/personnel undergoing AME will
ensure availability of his/her original
Health card and previous year's AME in
proforma 3 duly certified, while reporting
for AME. No fresh/new Health card will be
opened unless a COI has been conducted
and responsibility fixed for loss of the
previous health card to the satisfaction of
the concerned controlling Officer.

b. The examining Medical Officer
Board
will
endorse
the
medical
categorization on completion of AME. The
MO
Board
will
also
enter
the
findings/remarks in a register to be
maintained at the unit/Hospital level for
record.

c. When ever an individual is
already in temporary low medical category
(LMC) in any factor of SHAPE system at
the time of AME and his re-categorization
medical board is due within next 3 months,
the AME will be suitably advanced so that
both are carried out together. If the gap is 6
months or more, both will be held
separately.

d. The medical category in AME
will remain valid for one year unless
his/her medical category has been changed
for reasons of subsequent diseases or injury
in that case, the changed grade will prevail
till next AME or reclassification if
recommended earlier for temporary LMC.

e. Officers on deputation with
other Govt/PSUs at Delhi will have their
AME got done at their respective Force
CH/Station Hospitals at Delhi. Others, who
are away from Delhi will get the same done
at the nearest respective CH of any CPF,
for which they shall apply in advance
through their administrative authorities.

f. The previous year's AME report
will
be
made
available
to
the
AMA/Medical board as the case may be,
by the unit insist this from the previous unit
at the time, the member of the Force is
received in the unit on transfer/attachment.
In case the report is not received, the unit
will demand the same in advance, much
before AME before AME.

g. The body weight will be
checked as per the chart given in AppendixE/F. Those found over weight, will be
disposed of as per guidelines in Pan-Ill
23.5(e)."

(42) Clause 4.13 of the aforesaid
Standing Order No. 04/2008 says that
SHAPE-I is the essential condition for
promotion of combatised personnel and in
case of personnel whose illness is of
permanent nature and who are not SHAPEI will be declared unfit for promotion, even
if, they otherwise attain SHAPE-I. The
illness of temporary nature, DPC would
grade them as fit for promotion subject
after attaining SHAPE-I. Clause 4.13 reads
as under :-

"Medical Category SHAPE-I will
be an essential condition for promotion of
all
combatised
personnel
in
all
groups/ranks/cadres in the CPMFs. In case
of those whose illness is of permanent
nature and who are not SHAPE-I, they will
be considered for promotion by DPC but
will be declared unfit for promotion, even
if they at otherwise it for promotion. In
case of those personnel, whose illness is of
temporary nature, after considering their
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
cases for promotion along with others, if
they are otherwise fit, the DPC will grade
them as 'fit for promotion' subject to
attaining SHAPE-I medical category. As
and when they regain the SHAPE-I medical
category, they will be promoted as per
recommendations of DPC. But they will
not be entitled to back wages. However
they will retain their seniority."

(43) Clause-5 contained in Part-II of
the aforesaid Standing Order No. 04/2008
deals
with
procedure
for
medical
categorization. Clause 5.3 of the aforesaid
Standing Order lays down the classification
principles for assessing fitness of the
members of the force in terms of the code
letters SHAPE as under :-

"S- Psycological

H- Hearing

A- Appendages

P- Physical Capacity

E- Eye sight."

(44) Clause 5.4 of the aforesaid
Standing Order lays down that functional
capacities of the members of the force
would be graded in the scale of 1 to 5
indicating declining functional efficacy and
increasing employability limitations. The
detailed guidelines with respect to each of
the aforesaid functional capacity and
employability as per the aforesaid factors
(SHAPE) are contained in Part-IV of the
aforesaid Standing Order. At this juncture,
clause 22.4 contained in Part-IV is relevant,
which is reproduced as under :-

"22.4. "P" FACTOR (PHYSICAL
CAPACITY)