The medical category of A4G4 (P) made the appellant eligible only for time-bound promotions, not select promotions like JWO. The exemption of combatant personnel of the Armed Forces from Section 47 of the Persons with Disabilities Act, 1995 applied to the appellant's case.

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 namely