Fg. Offr. P.K. Chabri vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1368 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner was commissioned as Pilot Officer on 14th August, 1992 with the Indian Air Force. It was a short service Commission for a period of ten years. After one year he was promoted to the post of Flying Officer. However, in 1993 he suffered Generalised Seizure. On examination by medical board, the authorities on 7th October, 1993 declared him to be temporary unfit for flying duties by placing him in low medical category P4 (T-6). However, the category of the petitioner was upgraded and he was declared medically fit to perform the duties of Co-Pilot vide Fitness Certificate dated 24th December, 1995. He thereafter continued to perform the duties of Co-Pilot till 2nd July, 1996. He was again examined by a duly constituted Medical Board for this purpose at Air Force Central Medical Establishment (hereinafter referred to as AFCME, for short). As a result of this medical examination, Board again declared him temporarily unfit for flying pilot's duties and recommended for ground duties not involving severe physical and mental stress. This categorisation was done when the petitioner was found to be suffering from : (a) Seizure Disorder; (b) Pulmonary Tuberculosis (Treated) and (c) Cervical LymphadenIT is (Treated). the petitioner does not dispute this medical examination held on 2nd July, 1996 and the result thereof.

2. It may be mentioned at this stage itself that as per the respondent, the Director-General Medical Service (Air) who is the competent authority to approve the proceedings, considered the facts of recurrence of seizure and starting of anti-seizure drug which was to be continued for a minimum period of 2-3 years and came to the conclusion/opinion that the petitioner was unlikely to regain his flying medical category. Accordingly, he amended the medical category of the petitioner to A-4 (Permanent), G-4 (T-24) as per which the petitioner was classified as 'permanently unfit for A-1, A-2 and A-3 duties'. Simply but he was classified as permanently unfit for flying duties. Furthermore, according to the respondent, this categorisation was sent to the petitioner which was recorded in the following terms: "Permanently unfit for F(P) duties. Permanently unfit for A1, A2 & A3. Fit for ground duties not involving severe physical and mental stress. The appeal should reach Air HQ(RKP) through The President AFCME by 30 July". This categorisation is disputed by the petitioner and therefore we shall revert to this aspect at the appropriate stage. However, it is not in dispute that the petitioner received letter dated 12th July, 1996 informing him that he had been categorised as permanently unfit for flying. This is obvious from the fact that the petitioner had made appeal dated 26th July, 1996 for Medical Board vide his letter dated 12th July, 1996 wherein he has referred to letter dated 12th July, 1996 as per which he had been declared permanently unfit for flying and requested for reconsideration for change-over to temporary category.

3. Since the petitioner was declared unit for air duties permanently, with recommendation for ground duties his case was processed and vide letter dated 4th September, 1996 he was asked to give his willingness. In response thereto vide Certificate dated 19th October, 1996, the petitioner certified that he was willing for transfer to Administrative or Logistic Branch as mentioned in the Air HQ Letter dated 4th September, 1996. His Commanding Officer also recommended his case observing on the Certificate that he was a "smart officer, very suitable for logistic/administrative branch". However, while his case was processed in this manner, strangely by communication dated 14th November, 1996, the petitioner's unit was informed that the petitioner had expressed his unwillingness for transfer to ground duties. Thereafter, vide another letter dated 25th November, 1996, the petitioner was asked to report to AFCME for his review Medical Board which was however not done. The petitioner in these circumstances, made representation dated 8th April, 1997 for Medical Board inter alia stating as under:-

"I submit the following facts for kind and sympathetic consideration by superior AF authorities:-

(a) Since 08 May 96 I have had no seizure of any kind.

(b) I have been under regular medication/treatment as advised by AFCME.

(c) My general standard of health has improved significantly. I have had no illness of any kind during the last nine months.

(d) I have performed all ground and staff duties assigned to me to the best of my ability and satisfaction of my superior officers.

(e) My young age of 27 yrs may be sympathetically considered. In view of the above and Air HQ (RKP) signal No. MD/440 dated 03 Apr 97 (copy enclosed for easy reference) I humbly request that my case please be reconsidered for the following:-

(a) Review of flying medical category.

(b) Retention in service.

4. His Commanding Officer as well as Station Commander strongly recommended for the Medical Board. Still the Medical Board to review the case of the petitioner was not constituted and decision was taken to discharge the petitioner from service.

5. At this stage the petitioner filed the instant Writ Petition with the following prayers:-

(i) Pass an appropriate writ/order or direction to quash the impugned order dated 11th July, 1997 passed by respondents.

(ii) Pass an appropriate writ/order or direction to the respondents to transfer the petitioner to the administrative/Logistic branch of Indian Air Force;

(iii) Pass an appropriate writ/order or direction to the respondents that the petitioner shall not be released from the services of Indian Air Force without due process of law before the completion of 10 years of services.

(iv) Pass an appropriate writ/order or directions to the respondents to stay the operation of the impugned Order till the disposal of the writ petition by this Hon'ble Court.

(v) Pass any other or further orders or directions as deemed just and proper in the circumstances of the case in favor of the petitioner.

6. On 12th August, 1997 while issuing show cause notice in the Writ Petition, in an application for stay filed along with this petition, this Court stayed the implementation of the impugned order. This order was continued from time to time as a result of which the petitioner is continuing in service. He is, however, discharging ground duties. As already mentioned above, the petitioner was taken in Short Service Commission for a period of ten years and this period is expiring on 14th August, 2002.

7. Learned counsel for the petitioner made the following submissions:-

(A) As a result of medical examination conducted on 2nd July, 1996 the petitioner was classified as temporary unfit for flying duties. Thereafter no medical examination was conducted. The alleged medical examination on 11th July, 1996 on the basis of which the petitioner had received letter dated 12th July, 1996 was not at all conducted and it was a forged and fabricated Order. In fact, the petitioner was not even in Station as on that date and could not have presented himself for the alleged medical examination. It was submitted with much vehemence that signatures of the petitioner on this Order dated 11th July, 1996 were forged and inspite of repeated request/demand of the petitioner the respondents had failed to produce the original of so-called medical examination dated 11th July, 1996. Thus, according to the petitioner, when there was no such medical examination the question of declaring him permanently unfit for flying duties does not arise.

(B) It was submitted that in any case the petitioner had given his willingness for ground duties as was clear from his Certificate dated 19th October, 1996 and further communication in this respect. The case of the petitioner was therefore not processed properly and he was sought to be invalided on wrong premise as contained in letter dated 14th November, 1996 of the respondents purportedly on the ground that the petitioner had expressed his unwillingness for transfer to ground duties. It was submitted that the respondents could not produce any record to show whether the petitioner had given his unwillingness and thus were acting in a most malafide manner.

8. Ms. Monisha, learned counsel for the respondent on the other hand submitted that the petitioner was trying to create unnecessary confusion by creating the bogey of the so called medical examination conducted on 11th July. 1996. Her submission was that it was never the case of the respondents that any further medical examination was conducted on 11th July, 1996. In fact the medical examination which was conducted was only on 2nd July, 1996 at AFCME on the basis of which he was declared temporarily unfit for flying duties by Air Commodore, AFCME. However, it was sought to be clarified, that medical Board findings are always subject to approval by the competent authority in terms of para 425 (b) of Regulations for the Medical Services of the Armed Forces, 1983 (hereinafter referred to as RMSAF, for short). The Director General Medical Service (Air) is the competent authority to approve the proceedings. When the proceedings were sent to him, for consideration of the fact that in the case of the petitioner it was a recurrence of seizure and further that he was to be on anti-seizure drug which had to continue for a minimum period of 2-3 years and that he was unlikely to regain his flying medical category, the Director General amended his category by classifying him as "permanently unfit for flying duties and permanently unfit for A1, A2 and A3" as per provisions of para 4.4.34 and 4.4.35 of IAP 4303 (IInd Edition). It was further submitted that this change in medical category by the approving authorities is within the power under Para 424(c)(iii) of RMSAF, 1983.

9. As far as the ground duties for which the petitioner had given his willingness is concerned, it was submitted that the seeking of willingness of the petitioner to change-over to ground duties was on erroneous assumption that he was entitled to be son considered. In fact such willingness is sought only from those officers who are Permanent Commissioned Officer. Since, the petitioner was a Short Service Commissioned Officer, he was not entitled for such an option and as per the Scheme/Policy relating to Short Service Commissioned Officer in his case he had to be released from the Commission. When the mistake came to the notice of the respondents this erroneous letter of option was cancelled vide letter dated 3rd October, 1996. As per the procedure along with the recommendation of Chief of the Air Staff were forwarded to the Central Government for decision. The Central Government after consideration of the IMB and the appeal filed by the petitioner, ordered the release of the petitioner being medically unfit for further continuation in service.

10. We have considered the submissions made on either side and have also perused the original record which was submitted to us by the respondents.

11. At the outset it may be stated that, the dispute is raised about the alleged medical examination held on 11th July. 1996 on the basis of which the petitioner is declared permanently unfit for flying duties and the petitioner has vehemently argued that his signatures on the said categorisation from are forged. It is also a matter of record that in the file of the respondent the original of this medical categorisation form is not available and it is only a photocopy which is available. The learned counsel for the respondent endeavored to explain it away by submitting that few copies of this categorisation from were prepared which are made for various departments and in the process it appears that the original was sent. Although this explanation does not inspire much confidence as a body like the Air Force cannot deal with the files in such a cavalier manner, it is not necessary to go into this aspect in further detail inasmuch as other surrounding factors and material on record would point out that nothing much turns on this.

12. It is not in dispute that the petitioner was earlier examined in December 1993 as a result of seizure. He was declared temporarily unfit for flying duties at that time. Thereafter, in December 1995 he was declared fit to fly as Co-Pilot in flying duties. It is also not in dispute that on 2nd July, 1996 the petitioner was medically examined once again and diagnosed as a case of 'Seizure Disorder'. ON the basis of this medical examination, Air Commodore, AFCME declared him temporary unfit for flying duties. However, thereafter on 11th July, 1996 he was declared permanently unfit for flying duties. He alleges that this classification is on the basis of some medical examination allegedly conducted on 11th July, 1996 which was not conducted at all. On the other hand, the case of the respondents is that the same medical Board findings of 2nd July, 1996 are subject to approval by competent authority. On the basis of the same material, the competent authority classified the petitioner as permanently unfit for air duties in view of the following reasons: (a) recurrence of seizure and (b) starting of anti-seizure drug which would have to be continued for a minimum period of 2-3 years. On this basis, the Director General Medical Services opined that the petitioner was unlikely to regain his flying medical category and therefore the classification was amended to A-4 (Permanent), G-4(T-24) and permanently unfit for A1, A2 and A3 duties.

13. The regulations which regulates such examination are RMSAF 1983, Para 419 deals with composition of medical Boards. Para 421 enables for arranging medical Board at once if it becomes obvious that the individual will have to be invalided out of service. Under Para 424(c) an Officer who is found by the medical Board to be permanently unfit for any form of military service can be released from service in accordance with the procedure laid down therein. Para 425 specifies that after the medical Board records its opinion on the forms applicable to each case it will return all documents duly completed to the Commanding Officer for onwards transmission to the approving authority and as per Para 425 (b)(i), in case medical Board recommends among others cadets of army/navy/air to be invalided from service such an approval will be subject to final acceptance of Director of Medical Services of the Army/Navy/Air, as the case may be.

14. As per para 425 (c) if the approving authority does not concur with the findings of the Medical Board, he may direct fresh Medical Board, further treatment/investigation and thereafter a fresh Medical Board or he may dispose of the case as he considers suitable in the circumstances. Relying on this provision it was stated that when the matter was placed before the Approving Authority he considered it suitable to treat the petitioner as permanently unfit having regard to the nature of the disease and its recurrence as well as the period for which the medication was required to treat the same. In our opinion, seizure for a Pilot may be a serious disease. According to Dorland's Pocket Medical Dictionary, 'seizure' is defined as - a sudden attack or recurrence of a disease; a single episode of epilepsy, often named for the type it represents; the seizure of absence epilepsy, marked by a momentary break in consciousness of thought or activity and accompanied by a symmetrical 3-cps spike and wave activity on the electroencephalogram. If keeping in view this aspect and the recurrence of seizure the Approving Authority considered it appropriate to board out the petitioner on medical grounds it cannot be said that the decision was arbitrary, unreasonable or irrational and this court therefore is not in a position to strike down the same.

15. We have also perused the original records. The noting in this file shows that after he was declared fit to fly as Co-Pilot on 21st December, 1995, he had flown 2.20 hrs (03 sorties). However, on 8th May, 1996 he had a recurrence of seizure lasting 2-3 minutes. In view of the recurrence of seizure, medical examination was conducted.

16. No doubt the second report (which the petitioner alleges to be fabricated) gives an impression that the petitioner's medical examination was conducted on 11th July, 1996 as well. However, it appears that it may be a mistake in recording this fact and it is the competent Authority who reviewed the case on 11th July, 1996 on the basis of medical examination conducted on 2nd July, 1996. We say so also because of the reason that the copy of the categorisation which was given to the concerned officer i.e. the petitioner is in Form-79 whereas in Form-15 the details of the medical examination conducted by the Board are recorded. Later Form in original is in the records which mentions about the medical examination conducted on 2nd July, 1996 on the basis of which the petitioner was rendered permanently unfit for flying duties by the Approving Authoirty.

Furthermore, it is not in dispute that the petitioner was in fact given this categorisation vide letter dated 12th July, 1996 as in his Appeal dated 26th July, 1996 he admitted as under:-

"As per the letter No. CME/526/1/21998/ Med dated 02 Jul 96 and 12 Jul 96, I have been made permanently unfit for flying."

17. Even thereafter, according to his own admission, he gave his willingness for transfer to administrative/logistics Branch, which willingness would be given only when the petitioner would be declared permanently unfit for flying duties.

18. So far as absorption of the petitioner in ground duties is concerned, admittedly the petitioner was a case of Short Service Commission. As per the terms and condition of the Short Service Commission, the tenure of engagement is ten years. Para 5 in this respect reads as under:-

Tenure of Engagement:

Engagement period would be for 10 years from the date of Commissioning. Grant of Permanent Commission would be considered subsequently subject to service requirements.

19. Para 11 deals with termination of Commission, relevant portion of which reads as under:-

".....Also, if at any stage, an SSC officer is declared medically unfit to perform the duties of a pilot, then this SSC would be terminated and the officer boarded out on medical grounds."

20. As per para 11, such Short Service Commissioned Officer if declared medically unfit to perform duties of a Pilot than his Short Service Commission has to be terminated and he has to be boarded out on medical grounds. This does not provide for giving alternate employment in ground duties. Therefore, in view of this, learned counsel for the respondent appears to be correct when she points out that the willingness of the petitioner was wrongly obtained for absorption on ground duties and on coming to know of this mistake the same was withdrawn.

21. Be as it may, there are certain developments which have taken place after the filing of this Petition. this Court had stayed the implementation of the impugned order of boarding out the petitioner on 12th August, 1997 while issuing show cause notice in the Petition. This order has continued to operate. In view thereof, the petitioner is allowed to continue in service although he has been discharging ground duties and not flying duties. In this way, he has been able to complete his tenure of ten years which is expiring on 14th August, 2002. Thus, even when the impugned Order was valid, because of the Stay Order, the petitioner has been able to complete his tenure of Short Service Commission. Thus, he has been able to get the relief substantially as prayed for in this Writ Petition because of the Stay Order.

22. We may mention here that in view of the operation of the said interim Order as he was still working, his case was considered by the Board for grant of Permanent Commission along with seven others. As per the original records produced, the Board did not recommend his case because of the following reasons:-

"1. The Officer does not meet the A.R. and medical criteria for grant of Permanent Commission.

2. The Officer is placed in permanent low category A4G4 and his release on medical grounds was progressed in 1997.

3. The release Order was also issued but the Officer has obtained a Stay Order from the Court....."

23. The A.R. of the petitioner which was put up before the Board as Appendix 'A' states that he obtained the grading of 6.3 whereas for consideration of conversion of Permanent Commission, an Officer of the Short Service Commission has to achieve minimum average A.R. grading of 6.5 in the last three years report. For this reason, the petition even otherwise, could not get a permanent Commission.

24. However, before parting we may mention that the medical examination of the petitioner was conducted in July 1996. Initially, on that basis the opinion of the Medical Board was that he should be treated as temporarily unfit for flying duties and should be examined again after 24 weeks. No doubt, the Approving Authority went by the fact that it was a case of recurrence of seizure and categorised him permanently unfit for flying duties. No doubt this exercise by the Approving Authority was valid as well. However, the fact remains that the petitioner continued in service because of the Stay Order and in this manner he has been able to complete his tenure of Short Service Commission. Further, he was to be administered the drug for this disease for a period of 2-3 years. Since he has continued in service and during this period he was on medication, it would be appropriate if the petitioner is medically examined again. While giving this direction, by no means, we are suggestions that it is for the purpose of retention of the petitioner in duty or to consider him for Permanent Commission. Since the action of the respondents in July 1997 is held to be valid no such direction can be given or is intended to be given. This medical examination is ordered for limited purpose, namely, if the petitioner is now cured, he may ge the discharge on the completion of the tenure (as he has already completed the Short Service Commission tenure) and his future career is not affected thereby as the petitioner is still a young man of 33 years. With the aforesaid observation, this Petition stands dismissed.