Pavnesh Kumar Vs. Union of India (UOI) and Ors. (Neutral Citation: 2023 INSC 1025) - (Supreme Court) (28 Nov 2023)

Appointment to a higher post of an incumbent working on lower post is in the form of an accelerated promotion but it cannot be equated with normal mode of promotion

MANU/SC/1267/2023

Service

The Appellant who was working as a constable with the Border Security Force (BSF), applied for the post of Sub-Inspector General Duty (GD) through Limited Departmental Competitive Examination (LDCE) 2018-19 but was declared medically unfit and the said order was not disturbed even in the review medical examination by Board of three doctors.

Aggrieved by the above action of the Respondent BSF declaring him medically unfit for the post of Sub-Inspector (GD) through LDCE, the Appellant preferred a writ petition before the Delhi High Court for quashing the medical result dated 27th February, 2020 of the review medical examination and for a direction to the Respondent BSF to treat him medically fit. The writ petition so filed by the Appellant was dismissed by the High Court vide impugned order.

Appointment to a higher post of an incumbent working on lower post is in the form of an accelerated promotion but it cannot be equated with normal mode of promotion. This is evident from the advertisement itself which in unequivocal terms states that applications are invited for selection to the post of Sub-Inspector (GD) in BSF through LDCE. The very fact that the applications were invited for selection to the post of Sub-Inspector (GD) connotes that it was not a normal promotion rather selection to the higher post from amongst the eligible candidates working on the lower post. Thus, the submission that the normal Rules of promotion or medical examination ought to have been applied, is not acceptable.

Additionally, a distinction has to be drawn between a normal promotion and promotion by selection through LDCE. Promotion by selection through LDCE vis-à-vis competitive examination is a facility or a chance given for out of their promotion without waiting for the normal course of promotion. It in effect is selection through competitive examination within the limited category of candidates and cannot be equated with normal promotion. This being the position, the argument that regular promotion criteria had to be applied with regard to medical fitness even in the matter of selection through LDCE is not acceptable.

There is no review of the medical of the Appellant and the declaration that he is "medically unfit", is not contrary to any earlier reports as he was never declared to be medically fit in the process of examination for selection to Sub-Inspector (GD) through LDCE.The judgment and order of the High Court dismissing the writ petition upholding the decision of the Medical Board declaring the Appellant as medically unfit does not suffer from any error of law or fact. Appeal dismissed.

Tags : PROMOTION DENIAL LEGALITY