Case: Sgt Chaman Lal Vs. Union Of India

1. The appellant joined the Indian Air Force as an airman in Clerk General Duties (CGD) trade on 12.10.1987. He was promoted from time to time and became sergeant in 1998. Due to health issues, he was reported sick several times at the Air Force Station, New Delhi. He was treated by the Air Force doctors and specialists of Base Hospital Delhi Cantt. The appellant got MRI Scan for his right leg at Max Medical Centre at his own expense on 26.08.2001. That revealed some abnormality with right tibia bone. It was diagnosed as Osteogenic Sarcoma or Osteomylitis. In October, 2001, he was advised to undergo chemotherapy and other related treatments. He was then referred by the medical Oncologist to the Surgical Oncologist, who advised him to remove the right tibia bone and some part of the knee joint, allegedly without conducting any proper medical tests. After surgery the appellant was discharged from hospital with low medical category with instructions to report after three months for knee replacement surgery. The appellant claims that he wasby the respondents for removal of bone for cancer (NHL) and fitment of artificial knee. Besides, he was given prosthesis of an extra large size and advised admission in Joint Replacement Centre Ward at Army Hospital Research and Referral DelhiThe appellant was then admitted on 03.06.2002, for removal of cancerous bone. However, post surgery oncopathologists report dated 11.06.2002 showed that there was no evidence of Non Hodgkins Lymphoma in the entire specimen so removed. The appellant asserts that he suffered permanent disability because of the negligence of the doctors in the Army Hospital and as a result of which, his medical category was changed from BEE (P) to CEE (P) by the Medical Board.The appellant, therefore, after exchanging correspondence with the department, filed a writ petition before the Delhi High Court bearing Writ Petition No.3712/2003, praying for an enquiry against the concerned doctors, to retain him in service and to grant him promotion as usual or to compensate him for causing permanent disability attributable at par with battle causality. That petition was disposed of with liberty to the appellant to make representation to the authorities and with a direction to the authorities to consider the same expeditiously. Pursuant to such representation, the appellant was granted extension of service of six years up to 31st October 2013 and again for another six years till 31st October 2019, as a result of which the appellant continues to hold the post of sergeant.The appellant then filed another writ petition before the Delhi High Court bearing Writ Petition (C) No.1191 of 2008, praying for diverse reliefs inter alia to conduct an independent inquiry to find out the negligence of the medical authorities, to grant him promotion retrospectively w.e.f. 01.07.2007 to the next higher rank of Junior Warrant Officer (for short "JWO"). The Division Bench of the High Court observed that most of the reliefs were prayed by the appellant in the earlier writ petition and the same were barred by the principle of res judicata. It appears that the appellant had filed some other proceedings as noted by the Division Bench in the judgment. The Division Bench then declined to grant any relief to the appellant.The appellant continued to assert that he was entitled for promotion to the rank of JWO in 2007 as he was placed in the promotion panelHowever, he was denied promotion because he was placed in low medical category CEE(P) A4G4(P). That, the appellant contended, was in contravention of the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities Protection of Right and Full Participation) Act, 1995 (for short "said Act"). The appellant having realised that he was not being considered for promotion to the post of JWO and was discriminated in the matter of considerationas two other officers namely, Air Commodore P. Chakraborty and Honorary Flying Officer P.K. Choudhury, who had suffered more percentage of disability than that of the appellant were granted promotion, he approached the Armed Forces Tribunal, Regional Bench, Mumbai at Mumbai by way of Original Application No.60/2013 praying for the followingThat in light of the aforesaid facts and circumstances, this Honble Court may graciously be pleased to award the following reliefs to theTo direct respondents to consider applicants case (Medical Category) at least at par with leg amputated cases if not higher i.e., A4G3 and to consider/grant applicant promotion to the next higher rank of Junior Warrant Officer as the respondents action is highly discriminatory/arbitrary/biased and malicious in not doing soTo direct respondents to comply the provisions of Section 47 (1) & (2) of Persons with disabilities and Full Participation Act 1995 as applicant became disabled in October 2001 i.e. before obtaining exemption and to set aside the provisions of their promotion policy letter with retrospective effect/consequential reliefs in the instantTo call for the medical records of Air Commodore P. Chakraborty (15632) AE(L) and 631060 Hony Fg Offr P.K. Choudhary Rdo Fit as both of them are leg amputated cases if this Honble Court so desires in the interest of justice equity and fair play and then to consider applicants case at par with them.The respondents resisted the said application, denying that there was any medical negligence in the treatment of the appellant or that he was wrongly categorised in the low medical category A4G4(P). The respondents also stoutly refuted the allegation of discrimination or for that matter, that the other two named officers have been favoured or treated differently. The respondents also contended that the appellant had unsuccessfully approached the High Court for similar reliefs in the past. Further, reliance placed on Section 47 of the said Act by the appellant was6. The Tribunal by the impugned judgment dated 28.10.2014 was pleased to dismiss the original application preferred by the appellant. The Tribunal noted that the reliefs claimed in the original application were unsuccessfully pursued by the appellant in the past, by way of other proceedings including before the High Court. Nevertheless, the Tribunal went on to examine the points canvassed by the appellant independently and found that the same were devoid of merit. The Tribunal adverted to the promotion policy dated 15.05.2007 issued by the Air Headquarters, Vayu Bhavan, New Delhi for the relevant period9 and forand the fresh promotion policy dated 04.01.2012 applicable for the year4. The relevant extract of the policy same readsPromotion and extension to ground crewtheir medical categories would be governed in the following manner: (Refer Appendix `C &A4 G1 & A4 G2 (T/P) These would be promotionable medical categories for both time bound and select promotions. Airmen would be eligible for extension of service in the normal course as applicableA4 G3 (T/P) These would be promotable categories for time bound promotions. Promotion to select rank (JWO onwards) would be through condonation board. A4 G3 (T) will be considered only through a condonation board held in Feb/Mar of the year. In such cases, national seniority will not be protected. Airmen would be eligible for extension of service in the normal course as applicable presently provided they fulfill all other requisite service conditions. Modalities for promotion and protection of seniority in case of airmen holding category A4G3 (T) who are upgraded to A4G1/A4G2 is attached as AppendixA4 G4 (T/P) Airmen holding these categories would not be eligible for select promotions. They would be eligible only for time bound promotions. Extension of service would be only through condonation board, provided they fulfil all other requisite conditions. Modalities for promotion and protection of seniority in case of airmen holding medial category A4G4 (T) who are upgraded to A4G1/A4G2/A4G3 is attached as Appendix "C". Extension of service would be only through a condonationg noticed the said policy and reckoning the fact that the appellant was placed under low medical category A4G4 (P), the Tribunal has held that the appellant was not eligible for select promotion but only eligible for time bound promotion. Hence, the Tribunal concluded that no relief can be granted to the appellant. The Tribunal then proceeded to examine the argument of discrimination as pursued by the appellant. In that, Air Commodore P. Chakraborty and Honorary Flying Officer P.K. Choudhury were treated differently even though they have a higher percentage of disability than that of the appellant. The Tribunal, on the basis of material on record, held that the said two officers were not placed under low medical category A4G4 (P), unlike the appellant. They were, however, placed in category A4G2 (P) and A4G3 (P) respectively, at the relevant point of time; and thus could be considered for select promotion. The appellant, during the hearing of the original application before the Tribunal, pointed out three more cases of officers who, according to the appellant, had suffered more percentage of disability than the appellant namely Warrant Officer Chandrasekhar, Warrant Officer J.B. Yadav and Cadet R.K. Herojit Singh. The Tribunal examined even these new facts urged by the appellant. The Tribunal, however, noticed that the two officers, namely, Warrant Officer Chandrasekhar and Warrant Officer J.B. Yadav, were placed in the low medical category A4G3 (P) respectively at the relevant point of time. Hence, were eligible for being considered for select promotion. In case of Cadet R.K. Herojit Singh, it was found that he was commissioned in the Indian Air Force under special circumstances, after taking into consideration his promising career before the accident which occurred during his training. He was advisedly commissioned to work in the accounts department for the whole of his life and not as a pilot. Hence, that case could plainly be distinguished. Even the argument of the appellant with reference to Section 47, in particular proviso to(2) of the said Act, did not commend to the Tribunal. Accordingly, as the nature of work assigned to the appellant was of a Cryptographer and moreso since the provisions of the Act stood exempted to the establishment of the Armed Forces in which the appellant was working namely Indian Air Force, the Tribunal concluded that for select promotion such as JWO onwards, the minimum low medical category was specified as A4G3 (P) and that too through Condonation Board. The Tribunal has noted that the appellant was not denied time bound promotion which is only up to the rank of sergeant. Rather, the appellant was already working on that post. The appellant was not working in a civilian post but in the Indian Air Force and for which reason the argument founded on Section 47 of the said Act was unavailable to him. The Tribunal accordingly dismissed the original application.Being aggrieved, the appellant has approached this Court by way of appeal which was admitted on 15.10.2015. The appellant has now adverted to another case of officer, namely, Warrant Officer D.K. Thakur, Cryptographer who has been assessed of having 60% composite disability on record but still was considered for promotion. The medical record of this officer, however, indicates that he has been placed in medical category A4G2 (P). The respondents have filed detailed affidavit before this Court reiterating the stand taken before the Tribunal. During the hearing on 26.04.2017, the court passed the followingheard Mr.Chaman Lal, theand learned senior counsel for the respondents, to satisfy ourselves we direct the Medical Board from Indian Air Force and two doctors from All India Institute of Medical Sciences (AIIMS), New Delhi to examine Shri J.B.Yadav and Shri Chaman Lal, the appellant in this appeal with regard to their disability and also their functional disability regard being had to the nature of the work. The report shall be filed in a sealed cover before this Court in the first week of July, 2017. The Medical Board while considering the disability shall also deal with the medical category in its report. The appellant shall be notified about the date after the first respondent and its functionaries constitute a Medical Board consisting of doctors from the Indian Air Force and two doctors from the All India Institute of Medical Sciences, New Delhi. The date shall be intimated to the appellant as well as Mr.J.B.Yadav ten days in advance so that they remain present on the datethe matter be listed on 11th July,to say, we have issued this direction as we intend to satisfy ourselves."

Reasoning:
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.