Case: Sgt Chaman Lal Vs. Union Of India

that less percentage of disability suffered by the appellant per se cannot be the basis to place the appellant under category A4G3 promotable medical category. Needless to mention that the appellant had resorted to other proceedings including by way of two successive writ petitions before the High Court regarding the issue of nature of medical treatment given to him and incorrect categorisation. Findings recorded in those proceedings could have been the basis for the Tribunal to non-suit the appellant at the threshold. However, we find that the Tribunal independently considered each of the grievances of the appellant and rejected the same being devoid of merit. We fully agree with that analysis and conclusions therefor. 15. The fact that the appellant has been empanelled in the list of candidates due for promotion and also qualified the merit bench mark, does not mean that he has acquired any vested right. The promotion to the post of JWO, indisputably, is a select promotion hedged with the medical fitness eligibility criterion to be fulfilled by the incumbent. That is not so in the case of time bound promotion. We hold that there is no substance in the contention that the appellant has in fact or in law been discriminated in any manner. 16. We may now advert to the second contention pursued by the appellant, founded on Section 47 of the said Act. The said provision reads thus: "47. Non-discrimination in Government employments.- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." Sub-section (1) has no application to the fact situation of the present case. Sub-section (2), is attracted to cases of promotion. It has an enabling provision in the form of a proviso. Thus, it is not an absolute stipulation, but subject to the proviso. The proviso empowers the appropriate Government to exempt any establishment from its application, by issuing notification in that behalf. Admittedly, the Government of India, Ministry of Social Justice and Empowerment has issued Notification No.16-27/2001-N 101, dated 28.03.2002 after the assent was given by the President of India in April 2002. It was published in the Official Gazette on 13.04.2002. The same reads thus: "MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT New Delhi, the 28TH March, 2002 S.O. 1179.- In exercise of the powers conferred by proviso to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) the Central Government having regard to the type of work carried on hereby exempt all categories of posts of combatant personnel of the Armed Forces from the provision of the said section. [No. 16-27/2001-NI.I] Smt. RAJWANT SANDHU, Jt. Secy." 17. The effect of issuance of this notification is to exempt the establishment in which the appellant was in service at the relevant time from the application of the provisions of the said Act. It is not the case of the appellant that the appellant was empanelled in the list of candidates due for promotion prior to the issuance of the aforesaid notification. He was empanelled for the first time for promotion post March 2002. Thus understood, the appellant cannot claim benefit of Section 47, which has no application consequent to the issuance of the stated notification. 18. It is a well established position that mere empanelment of an incumbent in the list of candidates due for promotion would not create any vested right in him, to be promoted on select post. At best he would only have a right to be considered for promotion. That claim of promotion would depend on the fulfillment of eligibility requirements as per the promotion policy applicable at the relevant time. The appellant did not possess the medical fitness qualification for being considered for select promotion to the post of JWO. The appellant has erroneously assumed that he was due for promotion in March 2002, which fact is not corroborated from the record. The record, however, indicates that the appellant was considered for promotion firstly in 2005-06 and also in the year 2006-07, but he could not qualify the merit criteria within the available vacancies in his trade rank. He was not considered nor was due for promotion to the next higher rank pre March 2002. Suffice it to observe that the dispensation stipulated in Section 47 of the said Act, has no application to the present case. 19. As regards the third contention, the same deserves to be stated to be rejected. The fact that the appellant is doing the same job for the past eleven years, cannot be the basis to issue direction to promote the appellant notwithstanding lack of eligibility regarding medical fitness for the select promotion. There is no challenge to the promotion policy applicable at the relevant time or as is presently applicable for select promotion. That plainly commands that airmen holding medical categories A4G4 (P) would not be eligible for select promotion and can be considered only for time bound promotion. The post of JWO is admittedly a select promotion post. The appellant, therefore, cannot succeed merely on the basis of his claim of vast experience, knowledge and performance unless he fulfills the eligibility criteria including medical fitness for select promotion.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. With regard to the first contention raised by the appellant regarding discrimination, the same, in our view, has been justly rejected by the Tribunal. As aforesaid, in the original application the appellant had adverted to cases of only two officers viz. Air Commodore P. Chakraborty and Honorary Flying Officer P.K. Choudhury. During the hearing of the original application before the Tribunal, the appellant also referred to the cases of three other officers namely Warrant Officer Chandrasekhar, Warrant Officer J.B. Yadav and Cadet R.K. Herojit Singh. The relevant facts regarding the aforementioned officers have been analysed by the Tribunal and we find no infirmity in the said analysis, as the same is founded on the record before the Tribunal. The officers Air Commodore P. Chakraborty, Honorary Flying Officer P.K. Choudhury, Warrant Officer Chandrasekhar and Warrant Officer J.B. Yadav have been placed in low medical category "other than A4G4 (P)" which are promotional/promotable medical categories, unlike A4G4 (P) in which the appellant has been categorised. Indisputably, persons classified in A4G4 (P) category are not eligible for select promotion but are eligible only for time bound promotions. The appellant is claiming promotion to the post of JWO, which is a select promotion. The appellant has already been given time bound promotion as sergeant; and is working as such since 1998. The appellant has also been granted financial benefit as available to a JWO under MAC applicable w.e.f. 01.09.2008.As regards the case of Cadet R.K. Herojit Singh, the respondents have explained the circumstances in which he was commissioned, but deputed to work in the accounts department for the whole tenure as a special case and under special circumstances. His case was different (of being commissioned) because of the special circumstances; and not being a case of promotion inspite of low medical category.The argument of the appellant, that the above named officers had a higher percentage of disability and were kept in high medical category, but the appellant was not given similar benefit deserves to be rejected.No tangible reason is forthcoming to doubt the medical assessment report in the case of the appellant, categorising the appellant as A4G4 (P). The fact that the percentage of disability of the appellant is relatively less than the other named officers would make no difference. In that, the percentage of disability is not the governing factor, but the relevant consideration is the categorisation done by the Medical Board. The categorisation is based on several factors and not singularly dependent on the percentage of disability. To wit, an individual may bear more percentage of disability but would still have nil employability restrictions. The medical category is thus dependent on the employment and functional capacity of the individual which may vary from case to case. That is determined by the experts after applying the objective parameters noted in the policy document in that regard. Even otherwise, having regard to the exigencies of the service involved and in the interest of overall standard of efficiency thereof, relatively increased rigorous adherence of all relevant norms bearing on the suitability for select promotion is called for.Suffice it to observe that less percentage of disability suffered by the appellant per se cannot be the basis to place the appellant under category A4G3 promotable medical category. Needless to mention that the appellant had resorted to other proceedings including by way of two successive writ petitions before the High Court regarding the issue of nature of medical treatment given to him and incorrect categorisation. Findings recorded in those proceedings could have been the basis for the Tribunal tothe appellant at the threshold. However, we find that the Tribunal independently considered each of the grievances of the appellant and rejected the same being devoid of merit. We fully agree with that analysis and conclusions therefor.The fact that the appellant has been empanelled in the list of candidates due for promotion and also qualified the merit bench mark, does not mean that he has acquired any vested right. The promotion to the post of JWO, indisputably, is a select promotion hedged with the medical fitness eligibility criterion to be fulfilled by the incumbent. That is not so in the case of time bound promotion. We hold that there is no substance in the contention that the appellant has in fact or in law been discriminated in any(1) has no application to the fact situation of the present case.(2), is attracted to cases of promotion. It has an enabling provision in the form of a proviso. Thus, it is not an absolute stipulation, but subject to the proviso.The effect of issuance of this notification is to exempt the establishment in which the appellant was in service at the relevant time from the application of the provisions of the said Act. It is not the case of the appellant that the appellant was empanelled in the list of candidates due for promotion prior to the issuance of the aforesaid notification. He was empanelled for the first time for promotion post March 2002. Thus understood, the appellant cannot claim benefit of Section 47, which has no application consequent to the issuance of the stated notification.It is a well established position that mere empanelment of an incumbent in the list of candidates due for promotion would not create any vested right in him, to be promoted on select post. At best he would only have a right to be considered for promotion. That claim of promotion would depend on the fulfillment of eligibility requirements as per the promotion policy applicable at the relevant time. The appellant did not possess the medical fitness qualification for being considered for select promotion to the post of JWO. The appellant has erroneously assumed that he was due for promotion in March 2002, which fact is not corroborated from the record. The record, however, indicates that the appellant was considered for promotion firstly inand also in the yearbut he could not qualify the merit criteria within the available vacancies in his trade rank. He was not considered nor was due for promotion to the next higher rank pre March 2002. Suffice it to observe that the dispensation stipulated in Section 47 of the said Act, has no application to the present case.As regards the third contention, the same deserves to be stated to be rejected. The fact that the appellant is doing the same job for the past eleven years, cannot be the basis to issue direction to promote the appellant notwithstanding lack of eligibility regarding medical fitness for the select promotion. There is no challenge to the promotion policy applicable at the relevant time or as is presently applicable for select promotion. That plainly commands that airmen holding medical categories A4G4 (P) would not be eligible for select promotion and can be considered only for time bound promotion. The post of JWO is admittedly a select promotion post. The appellant, therefore, cannot succeed merely on the basis of his claim of vast experience, knowledge and performance unless he fulfills the eligibility criteria including medical fitness for select promotion.