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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 377-378 OF 2013 (Arising out of SLP (Civil) Nos. 10130-10131 of 2011)

NAND KISHORE MISHRA ......APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

O R D E R

Leave granted.

The  appellant  was  a  candidate  for  grant  of  Permanent/  

Short  Service  Commission  in  the  Army  Medical  Corps(AMC)(Non-

Technical)  for  which  applications  were  invited  vide  Notification  

No.32433/PC/SSC/AMC(NT)/07/DGAFMS/DG-1A(1) dated January 19,  

2007.  Though successful in the selection and recommended for the  

grant  of  Short  Service Commission in  the AMC,  he was denied the  

Commission on the ground that he was not eligible being in Medical  

Category SHAPE-II.

In the counter affidavit  filed on behalf  of  the respondents  before the Armed Forces Tribunal,  the reason assigned for denial  of  Commission to the appellant was stated as under:

“(a)  No 13989183K L/NK/HA Nand Kishor Mishra  who  has  been  recommended  for  grant  of  Short  Service Commission in AMC (NT) by 17 SSB was  

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found medically unfit by the SMB, CH(AF) Banglore  on 24 Dec.07 on account of disability 'Amputation  Ring Finger Left Hand' Individual is in Low Medical  Category  SIHI  A2(P)  PIEI  since  1998  for  the  disability.”

It  may be explained here that  the fitness of  a person for  

medical  classification  is  assessed  under  five  factors  indicted  by  the  

acronym  SHAPE.   The  acronym  stands  for:  S-Psychological,  H-

Hearing, A-Appendages, P-Physical Capacity and E-Eye-Sight.  

From  the  counter  affidavit  of  the  respondents,  it,  thus,  

appears  that  the  appellant  was  in  Category-I  under  the  other  four  

factors but on account of the loss of the left ring finger he was put in   

Category-II under the factor Appendages and, hence, was assigned the  

Medical Classification SHAPE-II.

Mr. S.G. Hasnen, learned senior advocate appearing for the  

appellant, submitted that the respondent-authorities wrongly applied the  

criterion  of  medical  eligibility  and  contended  that  in  terms  of  the  

Notification for the grant of commission the case of the appellant should  

have been considered under medical category SHAPE-II.  He pointed  

out  that  the  medical  criterion  regarding  eligibility,  as  stated  in  the  

Notification dated January 19, 2007, was as under:-

“(ii)   The candidate must  be in  medical  category  SHAPE-ONE at the time of final selection for grant  of PC.  In case of those who possess exceptional  merit or those who have suffered disability owing to  active  service  or  a  war  casualty,  the  medical  category  upto  grade  TWO,  under  any  of  the  

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SHAPE factors, except “S”, will be acceptable, on  merit  of  each case,  provided it  is  a result  of  the  same disability."

Learned  counsel  stated  that  on  July  5,  1998,  while  the  

appellant  was  working  as  a  Nursing  Assistant  in  the  Army  Medical  

Corps, he was travelling from Lucknow to Allahabad on his motorcycle  

to join his duty at 181, Military Hospital, Allahabad. On the way he was  

attacked  by  some  miscreants  who  wanted  to  snatch  away  his  

motorcycle.   He put up resistance whereupon one of the miscreants  

fired a shot at him causing injury to his left ring finger.  As a result of the  

injury, his left ring finger had to be amputated.

In  the  Court  of  Inquiry,  it  was  found  and  held  that  the  

appellant had received the injury while on duty vide Annexure P-2 and  

the appellant's Commanding Officer had also noted that the injury was  

caused when the appellant was shot by unknown miscreants while he  

was coming to join his duty and further that the injury sustained by him  

was not due to any neglect or misconduct on his part. From the findings  

of the Court of Inquiry and from the opinion of the Commanding Officer,  

it is clear that the appellant received injuries while he was on duty.

The issue for consideration now is, whether being on duty  

would satisfy the terms of the Notification where the expressions used  

are  'active service'  or  'war casualty'.  The appellant does not claim to  

come under the expression 'war casualty', but he claims to be covered  

by the expression 'active service'.

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The expression 'active service' is defined in Section 3(1) of  

the Army Act, 1950 as under:

“3.  Definitions.  -  In  this  Act,  unless  the  context  otherwise requires. -  

(i) “active service”,  as applied to a person subject  to  this  Act,  means  the  time  during  which  such  person -  

(a) is attached to, or forms part of, a force  which is engaged in operations against an  enemy, or

(b) is engaged in military operations in, or  is  on  the  line  of  march  to,  a  country  or  place  wholly  or  partly  occupied  by  an  enemy, or

(c) is attached to or forms part of a force  which is in military occupation of a foreign  country;

xx xx xx”

Section 9 of the Act empowers the Central Government to  

declare persons to be on active service.  Section 9 reads as under:

“9.   Power  to  declare  persons  to  be  on  active  service.  -  Notwithstanding  anything  contained  in  clause  (I)  of  section  3,  the  Central  Government  may,  by  notification,  declare  that  any  person  or  class  of  persons  subject  to  this  Act  shall,  with  reference to any area in which they may be serving  or with reference to any provision of this Act or of  any  other  law  for  the  time  being  in  force,  be  deemed to be on active service within the meaning  of this Act.”

In exercise of  the power under  Section 9,  the Ministry  of  

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Defence issued a Notification dated November 29,  1962, which was  

published in the Gazette of India (Extra.) Part II – Section 4 No.6.  The  

Gazette Notification reads as follows:

“S.R.O. 6.E – New Delhi, the 28th November 1962  – In exercise of the powers conferred by section 9  of  the Army Act,  1950 (46 of  1950),  the Central  Government  hereby  declares  that  all  persons  subject to that Act, who are not on active service  under  clause  (I)  of  section  3  thereof,  shall,  wherever they may be serving, be deemed to be on  active service within the meaning of that Act for the  purposes of the said Act and of any other law for  the time being in force.”

It is to be seen that the Notification is in very wide terms and  

covers all persons wherever they may be serving.   

It  may further be noticed that a similar Notification issued  

under Section 9 of the Air Force Act, 1950 came under consideration  

before this Court in  Balbir Singh & Anr.  v.  State of Punjab,  (1995) 1  

SCC 90. In that case this Court held that by virtue of the Notification  

issued under Section 9 of the Air Force Act, a person, even while on  

casual leave, would be deemed to be on 'active service'.  In paragraphs  

13 and 14 of the judgment, it was held and observed as follows:

“13. Thus,  the  effect  of  the  notification  is  that  whether or not a person is covered by the definition  of “active service” as spelt out in Section 4(i) of the  Act they still would be deemed to be so wherever  they may be 'serving'.  Can a person governed by  the Act be deemed to be “on active service” while  on casual leave?  The answer to the question can  only  be  found by  a  reference  to  the  leave  rules  

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governing  the  armed  forces  read  with  the  provisions of the Act.

14. The Central Government has framed certain  rules  regarding  the  conditions  of  leave  of  the  persons  subject  to  Army  Act  and  it  would  be  profitable  to  refer  to  some  of  the  relevant  rules  dealing  with  “casual  leave”.   Relevant  portion  of  Rule  9  of  the  Rules  of  the  service  provides  as  follows:

“9.  Casual leave counts as duty except as  provided for in Rule 10(a).”

Rule 9 of the Rules (supra) thus specifically states  that  casual  leave  counts  as  duty  except  as  provided for in Rule 10(a).  It therefore follows that  a person subject to the Act would be deemed to be  “on  active  service”  even  when  he  is  on  casual  leave.  Learned counsel for the parties, in view of  this  legal  position,  did  not  dispute  that  the  appellant,  though  on  casual  leave,  would  be  deemed to  be  on  “active  service”  in  view of  the  notification dated 5-12-1962 (supra).”

On the basis of the Notification dated November 29, 1962,  

therefore, the appellant must be held to have received the injury while  

on active service.

He  was  undeniably  in  Medical  Category  SHAPE-II  and,  

therefore, his case ought to have been considered by the authorities  

under  that  category  for  having  received  the  injury  while  on  active  

service.

We have carefully gone through the order of the Tribunal  

and it appears to us that the attention of the Tribunal was not drawn to  

the Notification, dated November 29, 1962 issued by the Government of  

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India under Section 9 of the Army Act and it was on account of that  

omission  that  the  Tribunal  did  not  accept  the  appellant's  case  and  

rejected his application.

On  hearing  counsel  for  the  parties  and  on  a  careful  

consideration  of  the  materials  on  record,  we  are  satisfied  that  the  

appellant's  case  is  fully  covered  by  the  medical  criterion  regarding  

eligibility, as stipulated in the Notification for the grant of Commission  

dated January 19, 2007 and his case ought to have been considered  

under Medical Category SHAPE-II.

We, accordingly, allow the appeals, set aside the order of  

the Tribunal and direct the concerned authorities to consider the case of  

the  appellant  under  Medical  Category  SHAPE-II  and  since  he  was  

otherwise  selected  for  the  grant  of  Commission,  to  grant  him  the  

Commission in terms of the Notification.

No costs.

……………………...................J. (AFTAB ALAM)

……………………....................J. (RANJANA PRAKASH DESAI)

NEW DELHI, JANUARY 08, 2013.

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