1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.8834 OF 2015

SGT Chaman Lal ….Appellant

:Versus:

Union of India and Others        …..Respondents

J U D G M E N T

A.M. KHANWILKAR, J.

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

2

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 was

ill­advised by 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 Delhi Cantt­10. The appellant was then admitted

on 03.06.2002, for removal of cancerous bone. However, post

surgery oncopathologist’s report dated 11.06.2002 showed

that there was no evidence of Non Hodgkin’s Lymphoma in the

entire specimen  so removed.  The  appellant asserts that  he

3

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.

2. 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.

4

3. 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.

4. 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 panel 2007­2008. However, 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

5

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 consideration ­ as 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 following reliefs:  

“8. That in light of the aforesaid facts and circumstances, this Hon’ble Court may graciously be pleased to award the following reliefs to the applicant:­

a) To  direct respondents to consider  applicant’s 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 respondent’s action is highly discriminatory/arbitrary/biased and malicious in not doing so already.  

b) To 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.

6

before obtaining exemption and to set aside the provisions of their promotion policy letter with retrospective effect/consequential reliefs in the instant case.  

c) To 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 Hon’ble Court so desires in the interest of justice equity and fair play and then to consider applicant’s case at par with them.

………..”

5. 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 was ill­advised and misplaced.

6. The Tribunal by the impugned judgment dated

28.10.2014  was  pleased to  dismiss the original application

7

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 period 2007­08, 2008­09 and for

2011­12 and the fresh promotion policy dated 04.01.2012

applicable for the  year  2012­13 and  2013­14.  The relevant

extract of the policy reads thus:  

“17. Promotion and extension to ground crew vis­à­vis their medical categories would be governed in the following manner: (Refer Appendix ‘C’ & ‘D’)

(a) 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 applicable presently.

(b) A4 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

8

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 Appendix “C”.  

(c) A4 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 condonation board.”  

(emphasis supplied)

Having 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

9

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

10

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 sub­

section (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

11

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.  

7. 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 following order:  

“O R D E R  

Heard Mr.Chaman Lal, the appellant­in­person and Mr.Yashank Adhyaru, learned senior counsel for the respondents.  

It is submitted  by  Mr.Chaman  Lal that one  Shri J.B.Yadav who is presently posted at Air Force Station,

12

Hindon,  Ghaziabad  though more  handicapped yet  has been confirmed and given the benefit of promotion. Mr.Yashank Adhyaru, learned senior counsel would submit that it would depend upon the work and function of the disabled  person  whether he can carry out the nature of  the  job assigned to him and disability factor has to be judged by the concerned Medical Board which has been done in the present case.  

Having heard Mr.Chaman Lal, the appellant­in­ person and 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 date fixed.  

Let the matter be listed on 11th July, 2017.

Needless to say, we have issued this direction as we intend to satisfy ourselves.”

When the matter was taken up for hearing on 11.07.2017, the

Court was informed that Shri J.B. Yadav having attained the

age of superannuation, did not appear before the  Medical

13

Board constituted by this Court. As a result, the matter was

proceeded for hearing on the basis of the material already on

record.  

8. The appellant  who has appeared  in person,  essentially

has raised three contentions as articulated in IA No.

51305/2017 filed by him. The same read thus:  

“(a) Whether there is discrimination in the  award of Medical Category as persons (cited cases) having more percentage of disability/disabilities, were kept in higher medical category (promotable medical category) and were given promotions than Appellant who would be retained in service till February 2026 (till superannuation) and he is merely a clerk like an accountant despite being empanelled since last 11 years?

(b) Whether Provisions of Section 47(1) & (2) of Persons With Disability Act 1995 reproduced under Rights of Persons With Disabilities 2016 are applicable to Appellant or not that too when his case pertains to pre­ exemption period i.e., of March 2002 whereas Respondents obtained exemption which got the assent of President on 13 April 2002?

(c) Whether Respondents rightly denying promotion to Appellant that too  when he  had been  doing  same  job since last eleven years (despite empanelment) which is done by the person holding promotional post and replacing/substituting Warranted Ranks as in appellant’s trade sergeant to Master Warrant Officer used to do same job and appellant had vast experience and knowledge pertaining to his trade for which Respondents never complained so far?”

14

The respondents on the other hand reiterate the stand taken

in the response filed to the original application as well as this

appeal and noticed by the Tribunal while rejecting the original

application. The respondents are represented by Shri Yashank

Adhyaru, Senior Advocate.

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

15

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.  

10. 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

16

commissioned) because of the special circumstances; and not

being a case of promotion inspite of low medical category.  

11. 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. The  medical report of the

appellant reads thus:  

“  TRUE TYPED COPY OF MEDICAL BOARD PROCEEDINGS RE­CATEGORISATION BOARD

BMI : 26.36 Kg/M WHR : 0.89 PART : 1

Place of Medical Board : 9 BRD AF Authority : IAP 4303. 1.Name : CHAMAN LAL 2.Ser. No. 726381­F 3.Rank : SGT 4. Unit : 9 BRD  5. Service : IAF  6. Trade : CRYPTO 7. DOB : 20.02.1969 (Age : 45 Yrs)  8. Sex: Male HT :172 cm Wt. 78 Kg 09. Add while on leave : N/A 10. Date of Enrolment : 12.10.1987 10. Record Office : AFRO 11. Past Med History : As per Col 15. 12.  Duty Ceased : Not Ceased.  14. Present Med Cat : A4G4 (P) wef.  Sd/x Indl Sign.  

PART : II

15. Details of Present and Previous Disabilities :­  Principle/Other Date & Place   Previous Med  Next Med Disabilities of Origin   Cat with date Cat 1. Non Hodgkin’s Lymphoma     Upper 1/3rd of Rt Tibia Optd    A4G4 Yearly     New Delhi diagnosed in Oct 01 as LCA+

17

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ ­­­

16. Specialists Opinions : Attached separately.  17. Is the disability Attributable to Service? (Y/N) If so Pl. explain

Dis (1) Yes as per GMO Military Pensions 2008 Chapter VI Para 10 (b) (IV).  

18. If not directly attributable to service, was it aggravated by service:  (Y/N)  : No N/A. 726381­F   Sgt Chaman Lal  Trade : Crypto  Unit : 9 BRD  

19. Med Cat Now Recommended : A4G4 (P)  For Dis 1 : A4G4(P) 20. Percentage of Disability (Only for Permanent LMC)

Previous Disablement % :60% Present Disablement % : 60%

21. Any Restriction regarding Employment : Fit for trade duties. 22.  Instructions given to the individual by the President of the Med Board. You are placed in Lower Medical Category A4G4 (permanent) wef. Subject to approval by higher authorities.”  

12. The medical category is assessed on the basis of objective

parameters specified in the Guide to Medical Officers (Military

Pensions) 2008, issued by the office of DGAFMS. The basis of

assessment and other related matters to observe objectivity in

assessment have been delineated in this policy document. The

medical assessment is done by the concerned Board on those

18

parameters without any exception. The relevant extract of the

said policy document reads thus:  

“ASSESSMENT

Definition.  

1. Medical Officers are called upon to evaluate a disablement at the time of Invaliding  Medical Board, Release Medical Board, Review Medical Board, or Appeal Medical Board for those invalided/released in low med cat, or on subsequent occasions.  2. The evaluation of a disablement for pension purposes is called assessment.  

Basis of assessment.  

3. The purpose of the disablement evaluation is to ensure compensation on equal terms for all  members of the Armed Forces of similar status suffering from a like disablement which may be due to injury or disease. It is estimated by reference to the physical or mental capacity for the exercise of the necessary functions of a normally occupied life, which  would be expected in a healthy person of the same age and sex. It should represent the extent to which the disablement has reduced that capacity. It is  determined  solely on  general functional capacity. Consideration should not be given to the member's capacity or incapacity to follow his own or any specific trade or occupation. Assessment should be based on measurement of plain facts. Sympathy, sentiments and personal feelings should not come in the way of assessment.  For arriving at a proper assessment of a disability, it is necessary to elicit a conclusive history, carry out a thorough clinical examination and all relevant laboratory and radiological investigations. It has to be determined whether the  disability is temporary  or  permanent  and

19

also the degree of disablement as it pertains to working capacity. The physical examination and laboratory tests must be relied upon more than ever to substantiate or disprove symptoms and complaints. In many cases, the physical findings may be negative, but the patient may complain only of pain, e.g. a headache, pain in the chest etc. The evaluation of a disablement based on measurement of function is a sound procedure by means of which a reliable medical opinion may be reached by reason or logic rather than by intuition, conjecture or assumption. However where investigations facilities are not available the assessment will be done on the basis of clinical findings.  

Definition of Function  

4. The term "function" is one that  is commonly used to denote the usefulness of a part of the body. In stating the extent of loss of function of a part, one has got to find out what the patient cannot do. For this, one should know what constitutes activity with perfection. When anatomical or physiological changes  have taken  place leading to the stiffness, atrophy or pain and the usefulness and the efficiency of the organ are impaired, the extent of the clinical disturbance is revealed through physical examinations.  However, the extent of deficiency of functional ability does not correspond to the extent of physical limitation. Limitation of motion by 50 per cent does not mean 50 percent loss of function.  The clinical findings  must  be designated as factors contributing to the loss of function and not measuring it.  

5. In analysing  the problem of  assessment a  thorough examination together with a deterioration of the anatomical  or  physiological  alterations from normal  as compared  to  abnormal  physical  state  of the same age and sex and the effect of such alterations are taken into consideration. In the case of injuries or diseases, the important points to note are:

20

(a) Quickness of action.  (b) Coordination of movements.  (c) Strength.  (d) Security.  (e) Endurance.  Expressed negatively, loss of function may be estimated in terms of (a) delayed action; (b) awkwardness; (c) weakness; (d) insecurity; (e)  diminished  endurance; (f) lowered swift factor and (g) the adverse influence of the conspicuous impairment.  

6. The functional factors e.g. in the hand may be stated as (a) quickness and nimbleness of digital action; (b) coordination of fingers and thumb in opposing finger tips to thumb and thumb to fingers and palm; (c) Strength of gripping and fist making ability, striking, slapping, holding and pushing power; (d) security or reliability of delicate finger sense; and (e) endurance of holding, gripping or pinching.  

In respect of leg, foot and toes, the factors would be : (a) quickness, nimbleness, springiness of step and gait  (b) coordination of feet and toes in smoothness and steadiness of steps and gait (c) strength or weight­ bearing and power of action in standing, walking, running or jumping and (d) security or reliability or toe, heel or foot action.  In an examination of the back, the gait, deformity, dressing or undressing, sitting down or getting up attitude will have to be taken into consideration, as also muscle spasm. Stiffness of the spine causes movement of the hips prior to that of the spine.  In the hip, the stance or gait or sitting down as in dressing, muscle spasm or rigidity, swelling or atrophy, degree  of  movement  at the hip;  have to  be  taken  into consideration.  In the knee, the gait, swelling, atrophy, movements painful or free, limitation of such movements have to be considered.

21

In the foot, the gait, deformity,  swelling, movements active and passive, muscle power, weight­bearing on toes and heels, and ankylosis if any, have to be taken into consideration.  In the shoulder, the general appearance, deformity, swelling,  atrophy, extent  of  motion painful or  free,  will have to be considered, as also any neurological signs. The same applies to elbow, wrist and the hands.  In head injury cases, the peculiar characteristic manner of special coordination of movements, gait, general appearance and behaviour with an examination of the scalp, the eyes, the facial expression along with an examination of the  reflexes will  have  to  be considered amongst other symptoms attributed to trauma, such as headache, dizziness, insomnia, nausea, vomiting etc.  In all the above, there must be distinct recognition between organic  disturbances  and  functional  neurosis. Once this distinction is made in the clinical entity of the disability, the examiner is in a position to evaluate the disability on the merits of pathological significance.  

Principles of Assessment.   

7. The assessment of a disability for pension purposes is the estimate of the degree of disablement it causes, which can properly be ascribed to service. The disablement properly referable to service is assessed slightly differently at the time of discharge from the forces.  

8.  There  are  various stages of  a disability.  These are: treatment period, healing period, temporary disablement or permanent disablement­partial or total. Thus, a disability causes disablement which may be temporary or permanent.  

9. In the light of the above, differentiation should be made between "NIL DISABLEMENT" and "NO DISABILITY".

22

"Nil Disablement" means that although a definite disability is, or has been in evidence, any disablement resulting there from has either ceased or has become so small as not to be appreciable. "No Disability" means a case where an individual is said to be suffering from a disability but medical science can find no evidence of the existence of that disability either present or past.  

10. Disabilities which necessitate invalidation from service are capable of improvement in due course or are of permanent nature.  "Permanent" means persisting for all times, i.e. the  disablement is supposed to  be in  a permanent state when the condition of the disability is unchangeable.  

Computation of Assessment.  

11. In the forces, the evaluation of disablement or assessment, is made to ensure compensation on equal terms for  all  members suffering from like  disablement. When the assessment is below twenty per cent, it may be assessed as 1­5 per cent;  6­10 per cent;  11­14 per cent  and 15­19 per cent.  Subsequent assessments are made in  multiples of 10, rising from 20 per cent; to maximum of 100 per cent. If the disability is assessed at 100 per cent, a recommendation will invariably be made as to the necessity or otherwise for a constant attendant, bearing in mind that the necessity arises solely from the condition of disability. If an attendant is recommended, the period for which such attendant is necessary, should be mentioned.  

A member  of the Armed Forces who  is in receipt  of  a disability pension in respect of disablement, the degree of which is not less than 100 per cent, may be awarded constant attendant allowance if it is certified by the Medical Board why a constant attendant on him is necessary on account of the disablement.

23

At the Time of Discharge From the Forces.  

xxx xxx xxx xxx xxx

15.  Assessment with Regard to Percentage of Disability.  

The assessment with regard to percentage of disability as recommended by the  Invaliding Medical Board, Release Medical Board would be treated as final unless the individual himself requests for review except in case of  disabilities  which are  not  of  permanent  nature.  The opinion of the Reassessment Medical Board, Review Medical Board or Appeal Medical Board, which will  be constituted by DGAFMS (later two) as & when required, will be final.  

16.  Reassessment of Disability. There will be no periodical reviews by the Resurvey Medical Boards for re­assessment of disabilities. In case of disabilities adjudicated as being of a permanent nature, the decision once arrived at will be final unless the individual himself requests for a review. In cases of disabilities which are not of a permanent nature, there will be only one review of the percentage by a Medical Board to be carried out later  within  a  specified time  frame.  The  percentage  of disability assessed/recommended by the Board will be final unless the individual himself asks for a review. The review  will be carried out by Review  Medical Board constituted by DGAFMS.”

13. No tangible reason is forthcoming to doubt the medical

assessment report  in the case of the appellant,  categorising

24

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.

25

14. 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 to non­suit the 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.  

15. 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

26

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 manner.   

16. We may now advert to the second contention pursued by

the appellant, founded on Section 47 of the said Act. The said

provision reads thus:  

“47. Non­discrimination in Government employments.­

(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided that, if an employee, after acquiring disability is  not suitable for the  post  he  was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the  employee  against  any post,  he may be  kept  on  a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.  

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of  work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”

27

Sub­section (1) has no application to the fact situation of the

present case. Sub­section (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 proviso empowers the appropriate

Government to exempt any establishment from its application,

by issuing notification in that behalf. Admittedly, the

Government of India, Ministry of Social Justice and

Empowerment has issued Notification No.16­27/2001­N 101,

dated 28.03.2002 after the assent was given by the President

of India in April 2002. It was published in the Official Gazette

on 13.04.2002. The same reads thus:  

“MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT

New Delhi, the 28TH March, 2002

S.O. 1179.­ In exercise of the powers conferred by proviso to Section 47 of the Persons  with  Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) the Central Government having regard to the type of work carried on hereby exempt all categories of posts of combatant personnel of the Armed Forces from the provision of the said section.

28

[No. 16­27/2001­NI.I] Smt. RAJWANT SANDHU, Jt. Secy.”

17. 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.

18. 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

29

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 in 2005­06 and also in the year 2006­07,

but 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.  

19. 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

30

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.   

20. Accordingly, this appeal fails and the same is dismissed

with no order as to costs.      

………………………………….J.     (Dipak Misra)

………………………………….J.           (Amitava Roy)       

.………………………………...J.                    (A.M. Khanwilkar)  

New Delhi; Dated: July 25, 2017.