1. Airman placed in low medical category — Denial of select promotion — Claim for promotion based on disability laws and alleged discrimination. (Para 1 , 4 )
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2017 Supreme(SC) 691
SUPREME COURT OF INDIA
Dipak Misra, Amitava Roy, A.M. Khanwilkar, JJ.
SGT Chaman Lal – Appellant
Versus
Union of India and Others – Respondents
CIVIL APPEAL NO.8834 OF 2015
Decided On : 25-07-2017
IMPORTANT POINTS
In absence of any tangible reason to doubt the medical assessment of appellant, it cannot be held that he has been discriminated.
Empanelment and qualifying merit bench mark does not confer any vested right for promotion.
Doing the same job for 11 years cannot be basis for promotion.
Headnote:(a) Guide to Medical Officers (Military Pensions) 2008 – Appellant alleging discrimination in assessment of his medical disability category vis-à-vis other personnel – No tangible reason to doubt the medical assessment of appellant forthcoming – Armed Forces Tribunal rightly not finding any discrimination. (Para 13, 14)
(b) Service law – Promotion – Empanelment and qualifying merit bench mark – Does not confer any vested right for promotion – appellant rightly denied select promotion and instead given time bound promotion. (Para 15)
(c) Persons with disabilities and Full Participation Act 1995 – Section 47 – Appellant getting empanelled after notification exempting Armed Forces from operation of the Act – Section 47 does not apply to appellant’s case. (Para 18)
(d) Service law – Promotion – Doing the same job for 11 years – Cannot be basis for promotion. (Para 19)
Facts of the case:
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.
MRI Scan for his right leg at Max Medical Centre revealed some abnormality with right tibia bone. It was diagnosed as Osteogenic Sarcoma or Osteomylitis. After undergoing chemotherapy and other related treatments his right tibia bone and some part of the knee joint was removed.
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 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 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.
The appellant, therefore, filed a writ petition 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.
Pursuant to directions of the High Cpurt, 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.
The appellant’s another writ petition wherein the Division Bench declined to grant any relief.
The appellant approached the Armed Forces Tribunal, by way of Original Application.
The Tribunal by the impugned judgment was pleased to dismiss the original application preferred by the appellant.
Finding of the Court:
There is no merit in the appeal.
Result: Appeal dismissed.
Act Referred
Legal Category Hierarchy
Table of Contents
2. Discrimination in medical categorization — Applicability of Section 47, Persons with Disabilities Act, 1995 — Promotion based on experience despite medical category. (Para 4 , 5 , 8 )
3. Medical categorization depends on functional capacity and objective parameters — Armed Forces exempted from Section 47, PWD Act — Empanelment creates no vested right to promotion. (Para 9 , 12 , 13 , 16 , 17 , 18 )
4. Select promotion requires fulfillment of medical fitness criteria — Statutory exemptions via notification override general non-discrimination provisions in employment laws for exempted establishments. (Para 13 , 17 , 18 )
5. Appeal dismissed. (Para 20 )
6. Does a higher percentage of disability automatically entitle an employee to a higher promotable medical category?
No. Medical categorization is based on objective parameters and functional capacity, not solely on the percentage of disability. An individual may have a higher disability percentage but still have different employability restrictions based on expert assessment of functional capacity. (Para 12 , 13 )
7. Does Section 47 of the Persons with Disabilities Act, 1995 apply to all government employees regardless of the nature of their establishment?
No. The proviso to Section 47(2) empowers the appropriate government to exempt establishments based on the type of work. The Central Government specifically exempted combatant personnel of the Armed Forces from the provisions of this section via notification. (Para 16 , 17 )
8. Does empanelment in a promotion list create a vested right to be promoted?
No. Mere empanelment does not create a vested right to be promoted; it only grants a right to be considered. Actual promotion depends on the fulfillment of all eligibility requirements, including medical fitness for select posts. (Para 15 , 18 )
9. Can professional experience and performance override medical fitness requirements for select promotions in the Armed Forces?
No. For select promotions, fulfillment of the specified medical fitness eligibility criterion is mandatory. Vast experience, knowledge, and performance cannot substitute for the required medical category specified in the promotion policy. (Para 19 )
JUDGMENT
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 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 ill-advised 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 Cantt-10. 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 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.
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 2007-2008. 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 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 name
