Gurbaksh Singh (Nb Sub) vs The Chief Of Army Staff & Ors.
1998 Latest Caselaw 650 Del

ORDER

K. Ramamoorthy, J.

1. The petitioner, while working in the Indian Army, had to undergo Hernia operation on the 25th of August, 1995. On the 11th of October, 1995, after examination of the petitioner by the Medical Board in view of the operation, he was placed on low medical category 'CEE'. Later on after he fully recovered, on the 23rd of April, 1996 he was examined by the Medical Board and on examination of the petitioner, being completely fit, he was upgraded and placed on medical category 'A'. He was working as Nb.Subedar. As per rules, he was to retire on the 31st of December, 1996. Proceedings to that effect had been issued in January, 1996. After he was placed in category 'A', his case was not considered for promotion.

2. The petitioner filed the CM.8390/96 praying for injunction restraining the third respondent from discharging the petitioner from service. Therein the petitioner had stated that the third respondent on the 7th of December, 1996 had sent a letter to the Headquarters at Lucknow calling Special Annual Confidential Report of the for the period from 1st of January, 1996 to 27th of November, 1996. The Initiating Officer had sent the Special ACR of the petitioner on the 10th of December, 1996 awarding him 7 marks, which amounted to 'above average' grading. On the 12th of December, 1996, the Reviewing Officer endorsed the Special ACR of the petitioner awarding him 9 marks, which amounted to the grading `outstanding'. As no interim order was passed on this application, the petitioner was discharged from service.

3. The claim of the petitioner is that having regard to his performance and he is being on medical category 'A', he should have been promoted as Subedar and there was nothing against him warranting the respondents from taking different view.

4. The stand taken by the respondents is that the petitioner should have approached the Release Medical Board and reliance is placed on circular dated the 4th of September, 1992. According to the respondents, as per this circular, even though the petitioner had fully recovered, he would be entitled only to full commutation of pension and he cannot claim promotion. The said circular has absolutely no application to the case of the petitioner. To appreciate the case of the petitioner, it is necessary to extract the circular which reads as under:-

"RELEASE MEDICAL BOARD:OFFICERS/JCOs/ORs

1. Reference AO 3/89 and 146/77.

2. Certain clarifications regarding holding of Release Medical Boards in respect of officers, JCOs and Ors are appended below:-

A. JCOs/ORs

(i) Para 16 Appx 'A' to AO 146/77 has stated that when a JCO/OR who is in permanent medical category BEE OR CEE reports to hospitals for medical board consequent to issue of orders for their discharge/release from service in accordance with prescribed policy, the medical board will ensure that the individual be examined for release purpose only and the existing medical category be not changed. This stipulation is not applicable to the officers. It is further clarified that the medical category of a JCO/OR may be appropriately changed by a duly constituted medical board before the orders issued by the concerned Record Officer for discharge/release of the JCO/OR from service, is received by the concerned unit.

(ii) Even in those cases of JCOs/ORs while a release medical board has been held on the basis of his being in permanent low medical category BEE or CEE and that there is evidence that the disability for which he has been placed in permanent low medical category either does not exist or has been completely cured, but due to complicacy and inefficiency of the medical boards, the JCO/OR has not been upgraded, the approving authority may not concur with the findings of the Release Medical Board and direct the concerned hospital that a fresh medical board be held or the case be disposed of otherwise as the approving authority may consider suitable under the circumstances vide Para 425(c) of RMS AF-1983.

B. Officers

(i) AO 3/69 has not directed that the officers are to be released in the same medical category in which they were placed before the conduct of Release Medical Board.

(ii) The medical category of an officer will not be altered at the time of Release Medical Board has not been stated in the said AO 3/89. The provisions contained in AO 146/77 and this HQ letter No.10499/DGMS-5A dated 25 Mar 91 is not applicable to the officers.

3. (a) A Release Medical Board is a specific medical board held vide AO 3/89 prior to release, retirement, discharge, completion of tenure of service limit or release/discharge at the request of the individual. This medical board is a guide to the pension sanctioning authority for releasing the commuted value of pension and other disability pensionary benefits.

(b) All ranks who are in medical classification Shape-I/ CAT AYE undergo a medical examination on form AFMSF-18, whereas all those who are in low medical category undergo a complete medical board on forms AFMSF-16, 18 & 81. A recommendation about the commuta tion of pension giving loading of age if any depending on the nature of the disability (ID) is recorded and attached along with form AFMSF-16.

(c) The policy of holding a Release Medical Examination/Board eight months prior to release/retirement is aimed to help in payment of gratuity/commuted value of pension immediately on retirement as a welfare measure.

(d) An individual who has undergone a release medical examination being in SHAPE-1/CATE AYE eight months prior to the date of release/retirement, may suffer from a disease, disability or injury and be placed in low medical category. In such a case the commutation of pension now may not be recommended (which was recommended earlier eight months prior to release as he then had no disease/disability) or loading of age affecting commutation of pension be recommended. In such an instance, the release medical board held prior to the release/retirement becomes legally effective and the release medical examination held eight months in advance gets automatically superseded. Such a happening where an individual may suffer from a disease/disability or injury after having undergone the release medical examination eight months prior to his release, is a reality which cannot be predicted or foreseen.

(e) Similarly an individual who has undergone a release medical board in low medical classification eight months prior to being released from service, may undergo a corrective surgical operation or may completely recover from the disease/disability prior to his release and be upgraded to medical category AYE/SHAPE-1. In such a case he now will undergo a release medical examination being in SHAPE-1/CAT AYE and be entitled for full commutation of pension. In this case again the release medical examination held just prior to being released super acids the release medical board held eight months before release from service.

4. It is clarified that if an officer claims that his disability has worsened during eight months after the date of release medical board he can ask for another Release Medical Board vide Para 1 of AO 3/89 and Para 391(ii) of RMSAF-1983 and another Release Medical Board prior to his release is to be held and CDA (Pensions) Allahabad is to be informed by signal accordingly."

5. I am unable to comprehend the reasonableness of the stand taken by the respondents. If an army personnel suffers from a minor ailment and he recovers immediately therefrom, he cannot be boarded out on the ground that he was in low medical category and once an army personnel is kept in low medical category, he is always to be in low medical category and he cannot aspire, however efficient he may be, to go up in the rungs of the ladder of service. It is well settled that if a public authority takes a view which a person who is properly instructed in law would take, that decision is completely vitiated and that decision comes within the mischief of Article 14 of the Constitution of India. The operation undergone by the petitioner was very minor which cannot be disputed by anybody. Having regard to the fact that petitioner recovered fully, the Medical Board properly placed him on medical category 'A'.

6. In this view of the matter, the petitioner is entitled to succeed. The respondents shall arrange for convening of the Promotion Board and consider the case of the petitioner for promotion for the vacancy which arose between 11.4.1996 and 31.12.1996 and issue appropriate order with all consequential benefits on or before the 30th of September, 1998.

7. The writ petition stands allowed in the above terms.

8. There shall be no orders as to costs.

9. Dasti to both the parties.