Delhi High Court
Malkiat Singh vs Uoi & Anr. on 26 October, 2009
Author: Pradeep Nandrajog
20.
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 26.10.2009
+ W.P.(C) 5433/2003
MALKIAT SINGH ..... Petitioner
Through: Mr.K.K. Sabharwal and
Mr. S.D. Kushwaha,
Advocates.
versus
UOI & ANR. ..... Respondents
Through: Mr. Puneet Aggarwal,
Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the
Digest? No.
PRADEEP NANDRAJOG, J. (ORAL)
1. Rule DB was issued on 20.08.2008. The matter has been
heard for disposal.
2. The grievance of the petitioner is that inspite of being
empanelled in list „D‟ for promotion to the rank of Sub-
Inspector vide the order dated 28.02.2001, promotion has been
denied to him.
3. The order dated 26.02.2001 is at pages 14 and 15 of the
record of the writ petition.
4. Vide para-2 of the order in question, it has been clearly
indicated as under:-
"2. ...............................On Promotion, they are
posted to the unit mentioned against their names.
Formal orders will be issued by the unit concerned
subject to the condition that they are medical
category "AYE" and no. D.E./Vigilance case is either
ending or contemplated against them. The named
persons have a rights to forgo their adhoc promotion
in case they do not favour their new postings no
alternative postings will be offered."
5. It is not in dispute that the petitioner, on a medical
examination, was not approved for being placed in category
"AYE".
6. As per the averments made in the writ petition, it is
apparent that the petitioner underwent heart by pass surgery
at the All India Institute of Medical Sciences, New Delhi (for
short „AIIMS‟) in December 2000 and thereafter remained
hospitalized at the Army Base Hospital, New Delhi for 56 days.
Being put back in the unit, the petitioner had to be re-
hospitalized at the Army Base Hospital, New Delhi for 7 days
w.e.f. 01.03.2001 to 07.03.2001.
7. As per the respondents, in terms of para-2 of the order
dated 26.02.2001 the petitioner was not promoted, though
empanelled for promotion, on account of not being placed in
the medical category "AYE".
8. We note that the averments of the respondents on the
issue are in para-5 of the counter-affidavit, which reads as
under:-
"5. The Petitioner underwent by pass surgery in
December 2000, which was a major surgery and the
Petitioner was not fit to resume his duties even after
the said surgery. The said surgery was conducted at
AIIMS and the Petitioner after the discharge from
AIIMS remained admitted in Base Hospital, ITBP from
23.12.2000 to 3.1.2001 for follow-up treatment. The
Petitioner was again sent on 56 days leave on
medical grounds by the Base, Hospital, New Delhi
w.e.f. 3.1.2001 as he was not fit to resume duty.
After the expiry of the leave the Petitioner was again
admitted in Base Hospital, New Delhi from 1.3.2001
to 7.3.2001 for review and follow-up of the treatment.
A copy of the instructions on „Medical Categorisation
and Invalidation‟ dated 19.2.1999 issued by the
Director (Medical) is annexed herewith as Annexure
R-1. That the Petitioner during all these days after
his discharge from AIIMS was either remained
admitted in hospitals or was on leave on medical
grounds. The Base Hospital, New Delhi referred the
Petitioner to Base Hospital, Ramgarh on 23.3.2001
for medical review and medical categorization with a
clear opinion that after CABG surgery the individual
could not be placed under medical category "AYE". It
is submitted that the medical categorization of a
personnel is always done by well-qualified Doctors
working in different Base Hospitals, keeping in view
the hazards of high altitude and difficult terrains etc.
The Petitioner was not declared medically fit for the
purpose of his promotion to the rank of Sub.
Inspector. On the receipt of subsequent
representation by the Petitioner, the comments of
Director (Medical) were obtained and the Director
(Medical) gave his opinion. The excerpts from the
note recorded by the Director (Medical) dated
14.8.2001 is being reproduced hereinbelow for the
convenience of this Hon‟ble Court:-
The hospitalization period is also taken as Low
Medical Category. That is Cat "DEE". It is already in
our orders.
He was- in Cat DEE from 7/2000
- Cat CEE (T) after 18.12.2000
- Cat CEE (P) after 4.4.2001
Even if he avoids AMC, his hospitalization period is
covered on the day of promotion i.e. on 26.2.2001 he
was in Category CEE(T) even if he avoided Medical
Board. After CABG operation (By pass surgery of
heart) on 18.-12-2000, he cannot be declared
Category AYE after two months. The individual was
formally placed in medical category CEE(P) for two
years by Base Hospital, Ramgarh w.e.f. 4.4.2001."
9. Responding to the said paragraph, in para-5 of the
rejoinder affidavit it is pleaded as under:-
"5. In reply to the contents of para 5 of the
preliminary objections of the counter-affidavit, it is
submitted that the Petitioner is seeking the relief
based on the submissions that he is to be treated
equally as equally two other persons. In the case of
other persons, whose names are mentioned, inspite of
their having also undergone by-pass surgery they
have been promoted while the Petitioner after having
promoted on adhoc basis and given rank cermonium
has not been regularized. It is also submitted that the
members of Schedule Casts were directly offered
regular posts while the Petitioner was not treated so
as he should have been treated."
10. With reference to the medical category in which a
member of the Armed Force has to be put, vide the Annexure
R-1, being the office memorandum dated 19.02.1999, a non-
gazetted officer cannot be placed in the category "AYE", if he
cannot undergo severe strain.
11. Further, a medically fit officer has to be in Shape-1 and as
per the same office memorandum, nobody can be certified to
be in Shape-I, if there is a sign of functional or organic disease
of the heart and blood vessels.
12. As per the respondents, due to the heart disease of the
petitioner, though he has undergone by-pass surgery, he
cannot be put in category "AYE" as he cannot undergo severe
strain.
13. Learned counsel for the petitioner submits that the
authorities at AIIMS have certified the petitioner as medically
fit.
14. To be medically fit as an ordinary person is distinct from
being medically fit to service in the Armed Forces. Needless to
state, as an officer in the Armed Forces, physical fitness
required is above the normal standard. The physical stress of
the officers in the Armed Forces is a known fact.
15. We note that the petitioner is employed in ITBP i.e. a
Paramilitary Force Station at the Indo-Tibetan Border i.e. at
high altitude.
16. We find no infirmity in the action of the respondents and
hold that no vested right accrued to the petitioner pursuant to
the order dated 26.02.2001, which order, as noted above was
contingent upon the petitioner being placed in the medical
category "AYE".
17. The petition is dismissed.
18. No order as to costs.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
OCTOBER 26, 2009
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