NAND KISHORversusUNION OF INDIA & ORS.

                     [2013] 1 S.C.R. 213


                  NANO KISHORE MISHRA                              A
                               v.
                   UNION OF INDIA & ORS.
            (Civil Appeal Nos. 377-378 of 2013)

                      JANUARY 8, 2013
                                                                   B
 [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

    Army Act, 1950:

     s.9 read with Ministry of Defence Notification dated          c
29.11.1962 - 'Active service' - Army Medical Corps - Short
Service Commission - Denied to appellant being categorized
under medical category SHAPE-II - Held: Amputation of ring
finger of appellant was as a result of injury sustained while on
duty- On the basis of Notification dated 29. 11. 1962, appellant   0
must be held to have received the injury while on active
service - His case is fully covered by the medical criterion
regarding eligibility as stipulated in Notification dated
29.11.1962 for grant of Commission and his case should
have been considered under Medical Category SHAPE-II -             E
Directions given to authorities concerned to consider
appellant's case accordingly and to grant him Commission
- Government of India, Ministry of Defence Notification dated
29. 11. 1962 - Armed Forces - Army.

   Balbir Singh & Anr. v. State of Punjab, 1994 (5) Suppl.         F
          =
SCR 422 (1995) 1 SCC 90 - relied on
                      Case Law Reference:
 1994 (5) Suppl. SCR 422            relied on     para 14
                                                                   G
    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
377-378 of 2013.

     From the Judgment & Order dated 05.08.2010 &
                              213                                  H
    214       SUPREME COURT REPORTS                [2013] 1 S.C.R.


A   06.10.2010 of the Armed Forces Tribunal, regional Bench,
    Lucknow in TA 157 of 2009 and in R.P. No. 17 of 2010.

          S.G. Hasnen, Varinder Kumar Sharma for the Appellant.

        Ashok Panda, Wasim A. Qadri. D.K. Thakur, Anil Katiyar
B for the Respondents.

          The following Order of the Court was delivered

                               ORDER
c         1. Leave granted.

       2. 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
D 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
E SHAPE-II.

        3. 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:

F         "(a) No 13989183K UNK/HA Nand Kishor Mishra who has
          been recommended for grant of Short Service
          Commission in AMC (NT) by 17 SSB was found medically
          unfit by the SMB, CH(AF) Banglore on 24 Dec.07 on
          account of disability 'Amputation Ring Finger Left Hand'
G         Individual is in Low Medical Category SIHI A2(P) PIEi since
          1998 for the disability."

        4. 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 s'tands for: S-
H
NANO KISHORE MISHRA v. UNION OF INDIA & ORS. 215


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

     5. 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
                                                                           8
was put in Category-II under the factor Appendages and, hence,
was assigned the Medical Classification SHAPE-II.

     6. Mr. S.G. Hasnen, learned senior advocate appearing
for the appellant, submitted that the respondent-authorities
wrongly applied the criterion of medical eligibility and                   C
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:-                        D

     "(ii) The candidate must be in medical category SHAPE-
     ON Eat 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                  E
     casualty, the medical category upto grade TWO, under
     any of the SHAPE factors, except "S", will be acceptable,
     on merit of each case, provided it is a result of the same
     disability."

     7. Learned counsel stated that on July 5, 1998, while the             F
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             G
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.

     8. In the Court of Inquiry, it was found and held that the            H
    216       SUPREME COURT REPORTS                 (2013] 1 S.C.R.

A 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
B 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.

       9. The issue for consideration now is, whether being on
C 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 ciaims to be covered by the expression 'active
  service'.

D        10. 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. -
E         (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
F
                 (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
G                in military occupation of a foreign country;
                 xx   xx          'X)(

       Section 9 of the Act empowers the Central Government
  to declare persons to be on active service. Section 9 reads as
H under:
NANO KISHORE MISHRA v. UNION OF INDIA & ORS. 217


     "9. Power to declare persons to be on active service. -           A
     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          B
     other law for the time being in force, be deemed to be on
     active service within the meaning of this Act."

    11. In exercise of the power under Section 9, the Ministry
of Defence issued a Notification dated November 29, 1962,
which was published in~lhe Gazette of India (Extra.) Part II -         C
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             D
     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 sc:::rl .Ar;t and of any other law for the time being in      E
     force."

    12. It is to be seen that the Notification is in very wide terms
and covers all persons wherever they may be serving.

     13. It may further be noticed that a similar Notification         F
issued under Section 9 of the Air Force Act, 1950 came under
consideration before this Court in· Bafbir 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             G
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•     H
    218        SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A       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
B       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
c         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
D         Rule 10(a)."

          Rule 9 of the Rules (supra) thus specifically states that
          casual leave counts as duty except as provided for in Rule
          1O(a). It therefore follows that a person subject to the Act
          would be deemed to be "on active service" even when he
E
          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)."
F
         14. 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.
G        15. 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.

       16. We have carefully gone through the order of the Tribunal
H and it appears to us that the attention of the Tribunal was not
NANO KISHORE MISHRA v. UNION OF INDIA & ORS. 219

drawn to the Notification, dated November 29, 1962 issued by             A
the Government of 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.

     17. On hearing counsel for the parties and on a careful
                                                                         8
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.
                                                                         c
     18. 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.                D
       19. No costs.
R.P.                                             Appeals allowed.