PRAMATH PATNAIK,J. - (1.) In the accompanied writ application, the petitioner has inter alia prayed for direction upon the respondents to consider the case of the petitioner for promotion to the higher post of Deputy Commandant w.e.f the date on which the persons junior to him have been granted promotion along with all consequential benefits and further prayer has been made for direction upon the respondents to forthwith give benefits of circular dated 17th May, 2002 which empowers the authorities to give relaxation in individual cases for considering the cases of one or other disabled persons, if they came in the category of SHAPE-II, and if they are otherwise fit for promotion.
(2.) The facts, in brief, is that the petitioner joined the services of Boarder Security Force on 15.11.1997 as Assistant Commandant, after going through proper selection process. It has been averred that after joining, the petitioner served with utmost satisfaction to his superior authorities without any complain and has served in almost all regions of the country and international boarders. However while continuing as such, he underwent tough training and in course of such training, he suffered leakage of blood in right eye, which was treated at different places. Resultantly, petitioner's eye vision reduced to 6/9 in right eye and 6/6 in left eye, which is termed as recurrent vitreous hemorrhage. Pursuant thereto, a medical board was constituted on 08.08.2001, who recommended medical category of the petitioner as S1H1A1P1E2 (P), which was approved by the then Inspector General (Personnel) on 5.9.2001. It has further been averred that after the first Medical Board, the petitioner was instructed to go for second Medical Board, after completion of 96 weeks or in two years for re-categorisation and after review the petitioner was again put under the same category i.e. S1H1A1P1E2 (P) vide its report dated 05.01.2009. As a result of such medical report, when the petitioner applied for promotion, his case was not considered lacking the medical category of SHAPE-1 and for lacking Young Officers Course, Leg-2.
(3.) Learned counsel for the petitioner submitted that petitioner is seeking promotion to the post of Deputy Commandant, for which following requisite eligibility criteria is specified under Rule 8 of Border Security Force (General Duty Officers) Recruitment Rules, 2001: (I) A direct entry officer (in the post of Assistant Commandant) is to be one with 6 years of regular services in the grade and must have qualified following courses: (I) Young Officers Course (Commando and Weapons Training). (ii) Medical Category SHAPE-1. Learned counsel for the petitioner submitted that the petitioner has served more than six years of regular services in the grade of Assistant Commandant. So far second criteria, i.e. SHAPE 1, the medical fitness category to be maintained by the candidate is concerned, it has been submitted that in the medical report itself, it has been observed that the petitioner suffered problem in the eye sight for the first time at the time of training as freshly recruited officer at Tekanpur Academy of BSF and thereafter the same has aggravated over the time and further it has been held that disability has been aggravated by the service conditions. Referring to provisions for medical category and relaxation from physical training, learned counsel for the petitioner submitted that as per provision as contained in clause 19 of 8th August, 2002 of Ministry of Home Affairs, the issue of promotion in the lower medical condition has been considered and it has been decided that the personnel in lower medical category of SHAPE-2 will be treated at par with medical category SHAPE-1 and will be eligible for promotion to higher rank. Hence, the second requirement of medical category gets fulfilled. So far mandatory courses of leg-1 and leg-2 are concerned, it has been submitted that though petitioner has completed leg-1 course but so far as leg-2 course is concerned, the same has not been allowed to be completed by the respondents-authorities, but, in the case of his junior, Ashihir John and other batch-mate, namely, Nanjai Singh Yadav, relaxation have been given and they have cleared Young Officers Leg-2 Training Course and thereafter, their case was considered for promotion and the petitioner has been subjected to hostile discrimination. Equating the case of the petitioner with above-referred personnel, learned counsel for the petitioner submitted that above mentioned personnel underwent injury during the course of training and during the course of combat and petitioner also underwent low medical category during the course of his services at the time of his training. It has further been submitted that due to non-promotion, the petitioner is forced to work under his batch-mates and juniors and the entire future of the petitioner seems to have met a stage of stagnancy.;