MOHD YASIN ANSARI Vs. UNION OF INDIA

JUDGEMENT

(1.) SUNIL Ambwani, J. Heard Col. (Retd) R. A. Pandey, learned Counsel for the petitioners; and Shri K. C. Sinha, Asstt. Solicitor General, Government of India, for the respondents. 2. Brief facts giving rise to these petitions are as follows. 3. In Writ Petition No. 17585 of 2003. the petitioner Mohd. Yasin Ansari, was enrolled in Indian Army as sepoy in 17 Rajpoot Regiment at Varanasi on 4-9-91. He completed his training at Fatehgarh and was posted at Dhana (Sagar) in the State of M. P. In the year 1995 his regiment was transferred to Assam, where he suffered with an infection due to change in atmosphere. He was sent to Sikandarabad in 1997 for medical tests. During this period he was attached to 4 Engineers Regiment. He was placed in lower medical category BEE (Permanent) w. e. f. 4-3-2000 with diagnosis 'extropia (RT) EYE OPTD1. Prior to his placement in category BEE, Permanent, he was operated at Sikandarabad Military Hospital on 22-7-98. He proceeded on sick leave for a month and was recalled to his unit alongwith his regiment and was posted at Shahjahanpur where he was temporarily put in Category XC on 3-9-99. After six months he was placed in category "bee' Temporary vide report dated 15-9-99 and thereafter in category "b' permanent on 8-3-2000. He was not given any sheltered appointment for further retention in service in the Unit. His discharge was sanctioned vide Army Headquarters Letter dated 15-3-2000. His release Medical Board was held at Military Hospital Bareilly on 13-3-2001 where his disability was assessed at 20% for two years and considered as attributable to military service. He was finally discharged from service w. e. f. 1-6-2001 under Army Rule 13 (3) III (v) read with Army Rule 13 (2-A) after rendering 9 years and 270 days of service. 4. The petitioner's claim for disability pension was forwarded to the Chief C. D. A. (P) Allahabad vide Rajput Regiment letter dated 15-12-2001. He was granted service elements at the rate of Rs. 1275/-per month for life and Rs. 310/-per month on account of temporary disability elements for two years by the Chief C. D. A. (P) Allahabad vide letter dated 16-5-2002. Re-survey Medical Board of the petitioner was required to be carried out before 13-3-2003. The petitioner was advised by the Military Hospital, Allahabad to report for re-survey medical board vide their letter dated 21-3-2003. His disability was again assessed at 20% for life by the concerned medical authority and the claim for disability was forwarded to Chief C. D. A. (P) Allahabad vide records the Rajput Regiment Letter dated 17-7-2003, which is still under consideration. 5. The petitioner has challenged the orders dated 16-11-2001 and 31-5-2001 and has prayed for writ of mandamus to retain him in service till the age of superannuation and to pay salary month to month whenever it falls due. 6. In Writ Petition No. 25959 of 2004 the petitioner Shri Gyanendra Singh while attending camp training at Raiwala on 6-7-2003 as driver PMT was accidentally hit by wooden peg of the tent flap, resulting into a blunt injury in his right eye. He was evacuated to MH Raiwala and thereafter to the camp. The petitioner successfully completed the training and was returned to BEG and Centre, Roorkee alongwith other recruits on the scheduled date. An inquiry report dated 23-7-2003 was initiated. The petitioner was discharged on 8-8-2003 by MH Roorkee in medical category 'shape-1' and was granted four weeks leave. On return he was referred to MH Dehradun on 13-9-2003. As there was no Eye Specialist, at M. H. Dehradun, he was examined by the Classified Specialist (Ophthalmology ). It was found that at the time of injury the visual acuity in his right eye had dropped to 6/60, which later on improved to 6/24. In the concluding para of the report it was written that he has a marked diminution of vision in right eye and is unlikely to make a good soldier, and was recommended to be invalidated out of service. Thereafter, the petitioner was transferred back to MH Roorkee for further disposal. An Invalidating Medical Board was held on 3-12-2003. The petitioner was discharged in the medical category as referred above with remarks to be retained in unit till the medical board is approved by higher medical authority. The petitioner was discharged from service on 28-1-2004. 7. The petitioner thereafter got himself examined from S. R. N. Medical Hospital, Allahabad which is an associated hospital of Moti Lal Nehru Medical College, Allahabad, by Dr. A. K. Chadha, D. O. M. S. , Professor Eye Department, and was provisionally diagnosed with vision in right 6/12 P and left eye 6/6 P vide report dated 24-4-2004. 8. The petitioner has prayed for a direction to quash the order dated 27-1-2004 by which he was discharged from Indian Army serving as recruit in the trade of driver PMT under Army Rule 13 (3) IV on medical grounds, due to medical category i. e. 's1h1a1p1e5', and to set aside discharge order approved by DDMS UP Area, Bareilly on 7-1-2004. 9. In Writ Petition No. 11212 of 2002, the petitioner No. 4272650m Ex Sep Inder Deo Oraon was enrolled in India Army on 26-12-1994. He served in high altitude area in Sikkim till February 1997. The petitioner got married on 11-3-1997 and brought his family to Chandi Mandir in April 1998. A male child was born to the couple. In May 1999 the petitioner reported sick with the complaint 'inability to sustain erection and perform satisfactory sex' and was placed in 'lmc: 'b' (Psy) (T) by Command Hospital (WC) for "psychosexual Dysfunction". He was lowered in medical category 'c (Psy) for the same disease on 30- 12-1999 to be reviewed afresh. It is alleged in the writ petition that on 27-9-2000 his only brother was murdered by anti social elements. The petitioner's AFMSF-10 was filled by Maj Surendra Monga, OC 'b' Coy/offg. CO highlighting his professional competence and Psychosocial profile as 'unsatisfactory, Gloomy, Suspicious and Equivocal performance'. Instead of reviewing his medical condition, the petitioner was discharged on the basis of solitary opinion of Major Neetu Narang, Graded Specialist (Psy) at CH (NC) invalidating him out of service in LMC S-5 of SHAPE factor as a case of 'psychosexual Dysfunction (Relapse)' and 'depression'. The petitioner's statutory petition dated 11-8-2001 under Section 26 of the Army Act was rejected by Chief of Army Staff on 30-10-2001 with following orders: "3. AND WHEREAS during his medical review in January 2000 at Command Hospital (Western Command), he was found to have manifestation of neurotic tendency, depressive feature and morbid pre-occupation with the sexual weakness. He was examined by different psychiatrists and has been given benefits of continuation of three antidepressant drugs, Counseling and psychotherapy. 4. AND WHEREAS during his medical review during July-August 2000, at Command Hospital (Northcom), Udhampur, the petitioner persisted with the complaints of sexual weakness, in addition to forgetfulness and lack of interest in work. Mental status evaluation revealed significant depressive features, depressive mood, depressive cognitions and disturbed diorhythms. In view of multiple relapse of symptoms, co-existed depressive disorder, significant impairment of his socio-occupational functioning, inadequate response to protracted psychiatric management and poor motivation for further service, a case was initiated by his Commanding Officer for a report of the Psychiatrist with regard to the employability of the petitioner. 5. AND WHEREAS, the petitioner was offered the required medical treatment. His diagnosis has been confirmed by different psychiatrists. He has been observed for almost two years. His frequent relapses despite adequate treatment and marked preoccupation with his illness led to his invalidment out from the service on medical grounds on 09 May 2001. 6. AND WHEREAS, in view of the foregoing, there being no infirmity in the invalidment out of the petitioner, his request for reinstatement in the service is not justified. " 10. The petitioner has prayed for directions to quash the order of discharge dated 9-5-2001, and the order rejecting his statutory petition with a further prayer to reinstate him in service with retrospective, seniority and salary. 11. In Writ Petition No. 18136 of 2004, the petitioner No. 14436384p Ex Recruit Ishu Narayan was enrolled in Indian Army on 10-1-2001 and joined training as Rect/opr. At Arty Centre, Nasik. In September 2001 he complained of headache, and was referred to INHS Asvini through Military Hospital Devlali, where Cl. Spl. (Med. and Neuro) vide his Summary and Opinion dated 11-9-2001 diagnosed it as 'generalised Tonic Clonic Seizure' and recommended him to be invalidated out of service in 'category P5'. The Medical Board approved the proceedings on 12-11-2001. HQM and G Area approved the invalidating medical board proceedings on 2-12-2001 and the petitioner was invalidated from Army on medical grounds by order dated 28-12-2001 w. e. f. 18-12-2001 under Army Rules 13 (3) III (iii), 13 (3) IV and 18 (3 ). He was given Provisional Discharge Certificate on 7-9-2002. The petitioner got himself examined by Prof. (Med. and Neuro) of SRN Hospital, Allahabad on 18-11-2003 who was advised after CT Scan that the petitioner' did not have any 'generalised Tonic Clonic Seizure'. The petitioner filed statutory petition under Section 26 of the Army Actuated 16-12-2003 which was pending for six months when the writ petition was filed. 12. In the counter affidavit of Shri S. Jadhav, QM 198 Fd Regt. C/o 56 APO it is stated that the petitioner had an attack of convulsions and had tongue bite on the right side of tongue. The convulsions subsided in 2-3 times. He was referred to MH Deolali and where he was treated five days and transferred on 5-9- 2001 to Indian Naval Hospital ship, Ashvini. After detail investigation he was diagnosed as a case of 'generalised Tonic Clonic Seizure' (Secondary) and was recommended to be invalidated out of service in medical category S1h1a1p5e1 with the conclusion that he was a recruit and was unlikely to become a fit soldier. He was transferred to Military Hospital, Deolali for Invalidating Medical Board which confirmed the opinion and recommended him to be invalidated. He was discharged on 18-12-2001 under Item (iv) of Rule 13 of Army Rules of 1954. 13. In Writ Petition No. 50936 of 2004 the petitioner No. 6493716f Ex Rect/ash Anil Singh was enrolled in Indian Army on 21-10-1997 and was assigned Animal Store Hand (ASH) trade in Army Service Corps. His training commenced at Gaya on 22-10-1997. A re-medical examination was held on 28-11-1997, at MH Danapur where Surgical Specialist recommended him to be invalided out for 'hydrocele and Un- descended Testis (Rt.)' Proceedings for medical board were held at MH Gaya on 9-1-1998 and were approved by Deputy Assistant Director of Health, Headquarters, Madhya Pradesh, Bihar and Orissa Area. The discharge order dated 7-3-1998 was passed invalidating him out of service on medical grounds and struck off strength (SOS) on 8-3-1998. No notice was given for discharge. Petitioner's disability pension claim was forwarded to Chief Comptroller, Defence Accounts (Pensions) Allahabad. It was rejected on 16-3-1999 on the basis of opinion expressed by Medical Advisor (Pensions) due to disability neither attributable nor aggravated by Military Services. His statutory petition dated 1-6-2001 received parawise comments of Commandant, ASC Centre (North) Paharpur, Gaya. It is contended that the statutory petition is still pending. In para -9 of the counter affidavit of Maj. Manish Ojha, it is admitted in para-9 that the statutory petition was received on 26-6-2001. There is, however, no indication whether it was decided. 14. In Writ Petition No. 15417 of 2004, the petitioner No. 1573209m Ex. Spr Hasib Ahmed Islam was enrolled as Sapper/musician in Army's Bombay Engineer Group, Kirkee on 22-12-1984. On his posting to 106 Engineer Regiment in Eastern Sector, he fell sick and was placed on 11-11-1992 in LMC "bee' (T) due to 'hepato INTESTINAL AMOEBIASIS' and in 'cee' (P) to be reviewed after 24 weeks. It is alleged that petitioner's signatures were obtained on 5-5-1993 on an application for pre-mature discharge on his own request after he was given assurance that he will get disability pension. He was proposed to be released on 1-8-1993 and was directed to 151 Base Hospital, Guwahati for Release Medical Board. The Invalidating Medical Board assessed his disability at 30% and recommended him to be released. The petitioner was asked to report in the end of June, 1993 to complete discharge formalities in the record office Kirkee, Pune, and by order dated 31-7-1993 he was discharged under Item-Ill (iv) of Army Rule 13 (3) showing 'premature retirement on his own request', without any order regarding disability pension. The petitioner submitted a statutory petition on 28-11-2002 to the Chief of Army Staff which was rejected on 11-1-2003 by the Record Officer for OIC Record on the ground that the petitioner is not entitled for disability pension as he was discharged on extreme compassionate ground on his own request. In para 3 of the writ petition, the petitioner has alleged that he was discharged after giving assurance that he will get disability pension. The petitioner has invoked doctrine of promissory estoppel for award of disability pension. He has prayed for setting aside the orders dated 28-3-2003 and 23-7- 1993 and for reinstatement with retrospective seniority. 15. The writ petitions were heard on 3-2-2005 and 12-8-2005. Learned Counsel for the petitioner has relied on to Section 47 of the Persons with Disabilities (Equal Opportunities, Protections of Rights and Full Participation) Act, 1995 (Act No. 1 of 1996) which provides that no establishment shall dispense with or reduce in rank an employee on acquiring disability during his service, provided that after acquiring disabilities, if the employee is not suitable for the post, he was holding, he can be shifted to some other post with the same pay scale and service benefits and further that if it is not possible to adjust him 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. Section 47 of the Act No. 1 of 1996 is reproduced below : "47. Non-discrimination in Government employment.- 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 dented 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. " 16. Shri K. C. Sinha, learned Counsel for Central Government placed on record notification dated 28-3- 2002 under proviso to Section 47 of Act No. 1 of 1996 by which all categories of posts of combatant personnel of Armed Forces were exempted from the provisions of Section 47 of the Act. The notification is reproduced below : "extract FROM THE GAZETTE OF INDIA PART II, SEC. 3, SUB-SEC (ii) Appearing on Page Nos. 3489-3490 Date: 13-4-2002 MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENt NOTIFICATIONS 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 on the Armed Forces from the provision of the said section. (No. 16-27/2001-Nil) Smt. RAJWANT SANDHU, Jt. Secy. 17. Col (Retd.) R. A. Pandey, learned Counsel for the petitioner has amended the writ petitions challenging the notification dated 28-3-2002 on the ground that it is biased, arbitrary, discriminatory and ultra vires to the Act No. 1 of 1996, and is thus violative of Article 14, 16 and 21 of the Constitution of India. He submits that the Ministry of Social Justice and Empowerment, Government of India without making any alternative provisions for nearly 25 Lacs combatant personnel of the three Armed Forces of the Union of India, has not only violated, the provisions of Act No. 1 of 1996 in letter and spirit but has also arbitrarily denied the benefits of the Act as also the benefits "of Army Order No. 46 of 1980, Army HQ letter dated 15-3-2000 to these unfortunate personnel who acquire disabilities during service, without any justification. 18. Col. (Retd.) R. A. Pandey submits that on being called young persons join Indian Army to serve the nation. They have strong sense of devotion and commitment to duty. They have to undergo rigorous training and having been recruited and trained, they should not be thrown out from service on suffering disabilities which may be attributable to training or service or otherwise. The denial of disability pension leaves them to destitution and, even if the disability pension is granted, the disability element of the pension is so low that they are not able to survive on his own. Col. (Retd.) R. A. Pandey submits that though in the present case the disabilities of the petitioners do not fall within the definition of disability under the Act No. 1 of 1996 which is too narrowly defined under the Acts, the discharge does not conform to the Army Order No. 46 of 1980, providing for procedure for dismissal of the permanent lower medical category "personnel other than officers, Army Rule 13, Army Headquarters letter dated 19-6-1999 and 15-3-2000. He submits that the discharge of personnel with lower medical category in Indian Army depends upon the whims of a few specialists in Military Hospitals. Their opinions are often biased and are arbitrary affecting a person's future and his right to life. He has given illustrations where army personnel in lower medical category are discharged without following due process of law provided by Army itself in the aforesaid orders. He submits that the Army personnel serve in extreme climate, and have to live for long periods in difficult terrain and circumstances. The nature of job is dangerous and risky and that in the circumstances the discharge not only affects the life of the persons, who suffer disabilities attributable to service but also affect the morale of the forces. Army Order No. 46/1980 lays emphasis upon suitable alternative appointment commensurate with the medical category, placed permanent low to the effect that the retention of such personnel does not exceed the sanctioned strength of the regiment/corps. These Army orders and Army HQ letters are also applicable to those who do not fall within the definition on of disabled under the Act No. 1 of 1996. It is contended by Col. (Retd.) Pandey that the respondents have not followed the guiding principles laid down in Army Headquarters letters No. B/10122/lmc/mp-3 (PBOR) dated 15-3-2000 which spells out the policy of the Indian Army for rehabilitation by offering sheltered appointments. No offer whatsoever or any effort was made to find out sheltered appointment for the petitioners. He has also attacked the policy on the ground that it discriminates those who have been rendered disabled or placed in permanent low medical category due to battle casualties and not those who have not suffered battle casualties. A lower medical condition on account of difficult conditions in service or in battle do not fall in different categories. It would be relevant to quote the entire Army Headquarters letter dated 15-3-2000; "disposal OF PERMANENT LOW MEDICAL CATEGORy 1. Reference: (a) AO 46/80 (b) AR13 (c) Army HQ letter No. B/10122/lmb/org 2 (MP) ( C) dt. 09 June, 1999.

(2.) IN the recent past, the aspect of management of permanent low medical categories (LMCs) has been under scrutiny at all levels with the aim of not only simplifying the procedure for discharge but also to ensure that such personnel are not deprived off various benefits offered from time to time by the Central/state Governments, Army HQ, Non-Governmental Organisations etc. As already known, most of these benefits, both monetary and material, are provided only to those battle casualties who are invalided out by the organization, and not to those who are themselves unwilling to continue in service. The conditionalities laid down by the donors for receipt of such benefits on discharge must, therefore, be explained in detail to affected JCOs/or so that maximum advantages are derived by them.

(3.) GUIDING Principles. Within the conditions laid down in AO 46/80, the guiding principles that should be considered by the Commanding Officers for retention/discharge of permanent LMCs are as under: (a) Those nearing their minimum pensionable service should preferably be retained. (b) The nature of disability and capability of the individual to look after himself outside the service and the need to continue treatment at MHs which may not be located in the vicinity of the individual's home station. (c) The circumstances under which he injury was sustained and/or aggravated. No differentiation should be made between attributable and non-attributable cases, except for battle casualties. Each case should be examined on merit. (d) Whether requisite medical treatment has been provided to the individual, including fitting of artificial limbs or other aids. (e) The effect on pensionary/disability benefits from the Central and State Govts/army HQ/agi/ngos etc. Sanctioning Authorities