SGT CHAMAN LALversusUNION OF INDIA AND OTHERS

                            [2017] 8 S.C.R. 476


A                          SGT CHAMAN LAL
                                     v.
                    UNION OF INDIA AND OTHERS
                      (Civil Appeal No. 8834 of 2015)
B                           JULY25,2017
                 IDIPAK MISRA, AMITAVA ROY AND
                      A. M. KHANWILKAR, JJ.j
          Service Law:
C        Promotion - On selection post - Claim for - By the
  handicapped officer, whose medical category was A4G4 (P) -
  Alleging discrimination in the matter of consideration for promotion,
  as officers with more percentage of disability were granted
  promotion - Application dismissed - On appeal, held: Medical
  catego1y of the appellant-officer is assessed on the basis of
D parameters specified in the Guide to Medical Officers (Military
  Pensions) 2008 - There is no reason to doubt the medical assessment
  of the appellant categorizing him as A4G4 (P) by the Medical Board
  - The categorization is based on several factors and not singularly
  dependant on the percentage of disability - Promotion to the post
E of JWO is a select promotion hedged with the medical fitness
  eligibility criterion - Mere empanelment in the list of candidates
  due for promotion, would not create any vested right in the candidate
  to be promoted - The claim for promotion would depend on the
  fulfillment of eligibility requirements as per the promotion policy
  prevalent at the relevant time - The appellant did not possess the
F medical fitness qualification for being considered for select
  promotion to the post of JWO.
          Persons with Disabilities (Equal Opportunities, Protection of
    Right and Full Participation) Act, 1995:
           s. 47(2)- Benefit under - Claim for - Held: The provision
G   under sub-section (2) is not im 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- In the present case, notification was issued exempting
    the establishment, in which the appellant was employed, at the
H
                                     476
     SGT CHAMAN LAL v. UNION OF INDIA AND OTHERS                     477


relevant time from the application of the provisions of the Act -    A
Therefore, the appellant cannot claim benefit uls. 47(2) - Service
Law - Promotion.
      Dismissing the appeal, the Court
      HELD: 1.1 The plea . of the appellant regarding
discrimination, has been justly rejected by the Tribunal. The B
relevant facts regarding the officers who were named by the
appellant before the Tribunal have been analysed by the Tribunal
and there is no infirmity in the said analysis, as the same is
founded on the record before the Tribunal. Therefore, the plea
of the appellant, that the named officers had a higher percentage c
of disability and were kept in high medical C?tegory, but the
appellant was not given similar benefit, deserves to be rejected.
[Paras 9, 11][487-B, C-D, G-H]
      1.2 The medical category of the appellant is assessed on
the basis of objective parameters specified in the Guide to Medical D
Officers (Military Pensions) 2001!, issued by the office ofDGAFMS.
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 parameters without any exception. [Para 1211489-
BI                                                                   E
        1.3 There is no no tangible reason to doubt the medical
. assessment report in the case of the appellant, categorising 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 F
  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 niay bear more
  percentage of disability but would still have nil employability G
  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 ~tandard of H
478           SUPREME COURT REPORTS                     (2017] 8 S.C.R.


A     efficiency thereof, relatively increased rigorous adherence of all
      relevant norms bearing on the suitability for select promotion is
      called for. [Para 13)(494-D-GI
         1.4 Therefore, less percentage of disability suffered by the
   appellant per se cannot be the basis to place the appellant under
 B category A4G3 promotable medical category. 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 non-suit the appellant at the threshold.
 C However, the Tribunal independently considered each of the
   grievances of the appellant and rejected the same being devoid
   of merit. [Para 14)(494-G-H; 495-A-BJ
          1.5 The fact that the appellant has been empanelled in the
   list of candidates due for promotion and also qualified the merit
 D 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 case of time
   bound promotion. [Para 151[495-B-C)
 E       2.1 Sub-section (1) of s. 47 of Persons with Disabilities
   (Equal Opportunities, Protection of Right and Full Participation)
   Act, 1995 has no application to the fact situation of the present
   case. Sub-section (2), is attracted to cases of promotion. It has
   an enabling provision in the form of a proviso. Thus, it is not an
 F 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.16-27/
   2001-N 101, dated 28.03.2002 after the assent was given by the
 G President of India in April 2002. 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
 H promotion prior to the issuance of the aforesaid notification. He
   SGT CHAMAN LAL v. UNION OF INDIA AND OTHERS                     479



was empanelled for the first time for promotion post March 2002.   A
Thus understood, the appellant cannot claim benefit of Section
47, which has no application consequent to the issuance of the
stated notification. [Paras 16, l 71[495-G-H; 496-A-B, E-Fl
      2.2 Mere empanelment of an incumbent in the list of
candidates due for promotion would not create any vested right B
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 possess the medical fitness
qualification for being considered for select promotion to the post C
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 2005-06 and also in the year
2006-07, but he could not qualify the merit criteria within the D
available vacancies in his trade rank. He was not considered nor
was due for promotion to the next higher rank pre March 2002.
Thus, the dispensation stipuiated in Section 47 of the said Act,
has no application to the present case. [Para 181[496-G-H; 497-
A-BI
                                                                    E
       3. 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 F
that airmen holding medical 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 G
performance, unless he fulfills the eligibility criteria including
 medical fitness for select promotion. [Para 19][497-C-DI
     CNIL APPELLATE JURISDICTION: Civil Appeal No. 8834
of2015.
      From the Judgment and Order dated 28.10.2014 of the Armed    H
480           SUPREME COURT REPORTS                        [2017] 8 S.C.R.


A Forces Tribunal Regional Bench Mumbai in OA 60 of2013.
            Appellant-in-person.
             Y. P. Adhyaru, Sr. Adv., Santosh Kumar, M. K. Maroria, Advs.
      for the Respondents.
 B          The Judgment of the Court was delivered by
           A. M. KHANWILKAR, J. I. The appellant joined the Indian
   Air Force as an airman in Clerk General Duties (CGD) trade on
   12. l 0.1987. He was promoted from tinie to time and became sergeant
   in 1998. Due to health issues, he was reported sick several times at the
 C 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, 200 l,
   he was advised to undergo chemotherapy and other related treatments.
 D He was then referred by the medical Oncologist to the Surgical
   Oncologist, who advised him to remove tbe 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
 E 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
 F oncopathologist's report dated I 1.06.2002 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
 G 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
 H compensate him for causing permanent disability attributable at par with
    SGT CHAMAN LAL v. UNION OF INDIA AND OTHERS                             481
              [A. M. KHANWILKAR, J.]

battle causality. That petition was disposed of with liberty to the appellant A
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 31" October 2013 and again for another six years till 31 ''
October 2019, as a result of which the appellant continues to hold the B
post of sergeant.
       3. The appellant then filed another writ petition before the Delhi
High Court bearing Writ Petition (C) No.1191 of2008, 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 C
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 D
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 E
contended, was in contravention o( th.e 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, Air Commodore P. Chakraborty and Honorary F
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:                                                         G
       "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 applicants case (Medical
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482            SUPREME COURT REPORTS                          [2017] 8 S.C.R.


A          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 respondents
           action is highly discriminatory/arbitrary/biased and malicious
           in not doing so already.
B           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.
            before obtaining exemption and to set aside the provisions of
            their promotion policy letter with retrospective effect/
            consequential reliefs in the instant case.
 c
            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 ofjustice equity
            and fair play and then to consider applicants case at par
 D          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
 E 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
 F was ill-advised and misplaced.
         6. The Tribunal by the impugned judgment dated 28.l 0.2014 was
   pleased to dismiss the original application 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
 G 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 2007-
 H 08, 2008-09 and for 2011-12 and the fresh promotion policy dated
   SGT CHAMAN LAL v. UNION OF INDIA AND OTHERS                        483
             [A. M. KHANWILKAR, J.]

04.01.2012 applicable for the year 2012-13 and 2013-14. The relevant A
extract of the policy reads thus:
      "17. Promotion and extension to ground crew vis-a-vis their
      medical categories would be governed in the following
      manner: (Refer Appendix 'C' & 'D ')
      (a) A4 GI & A4 G2 (TIP) These would be promotionable B
      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 (TIP) These would be promotable categories for
      time bound promotions. Promotion to select rank (JWO C
      onwards) would be through condonation board. A4 G3 (T)
      will be considered only through a condonation board held in
      Feb/Mar of the year. Jn such cases, national seniority will
      not be protected. Airmen would be eligible for extension of
      service in the normal course as applicable presently provided D
      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 A4Gl/A4G2
       is attached as Appendix "C''.
       (c) A4 G4 (TIP) Airmen holding these categories would not E
       be eligible (or select promotions. They would be eligible only
       (or 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 A4Gl/A4G2/A4G3 is attached as F
       Appendix "C''. Extension of service would be only through a
       condonation board. "
                                                (emphasis supplied)
       Having notice4 the said policy and reckoning the fact that the G
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
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484            SUPREME COURT REPORTS                            (2017] 8 S.C.R.


A that, Air Commodore P. Chakraborty and Honorary Flying 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
B were, however, placed in category A4G2 (P) andA4G3 (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
C 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 R.K. Herojit
0
   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 depa1iment for the whole
   of his life and not as a pilot. Hence, that case could plainly be distinguished.
E 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
F
   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 appellant was not
G 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
 H
    SGT CHAMAN LAL v. UNION OF INDIA AND OTHERS                         485
              [A. M. KHANWILKAR, J.]

way of appeal which was admitted on 15.10.2015. The appellant has A
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 B
before this Court reiterating the stand taken before the Tribunal. During
the hearing on 26.04.2017, the court passed the following order:
                                 "ORDER
      Heard Mr. Chaman Lal, the appellant-in-person and
      Mr. Yashank Adhyaru, learned senior counsel for the               C
      respondents.
      It is submitted by Mr. Chaman Lal that one Shri J.B. Yadav who
      is presently posted at Air Force Station, Hindon, Ghaziabad
      though more handicapped yet has been confirmed and given
      the benefit of promotion. Mr. Yashank Adhyaru, learned senior     D
      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.
                                                                      E
      Having heard Mr.Chaman Lal, the appellant-in-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
      (AJJMS), New Delhi to examine Shri J.B. Yadav and Shri
      Chaman Lal, the appellant in this appeal with regard to their F
      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 G
      shall be notified about the date after the first respondent and
      its functionaries constitute a Medical Board consisting of
      doctors Ji-om the Indian Air Force and two doctors Ji-om the
      All India Institute of Medical Sciences, New Delhi. The date
      shall be intimated to the appellant as well as Mr. J. B. Yadav
                                                                      H
486            SUPREME COURT REPORTS                          [2017] 8 S.C.R.


A           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."
B
            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 Board constituted by
      this Court. As a result, the matter was proceeded for hearing on the
      basis of the material already on record.
 c
             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
 D
            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 ll years?
 E
            (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
 F          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
 G          Warranted Ranks as in appellants 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?"


 H
       SGT CHAMAN LAL v. UNION OF INDIA AND OTHERS                             487
                 [A. M. KHANWILKAR, J.]

         The respondents on the other hand reiterate the stand taken in the A
  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 YashankAdhyaru, Senior Advocate.
          9. With regard to the first contention raised by the appellant
   regarding discrimination, the same, in our view, has been justly rejected B
   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 C
   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
   Air Commodore P. Chakraborty, Honorary Flying Officer P.K. Choudhury,
   Warrant Officer Chandrasekhar and Warrant Officer J.B. Yadav have D
   been placed in low medical category "other than A4G4 (P)" which are
   promotional/promotable 11J.edical 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 E
   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                F
   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 commissioned) because of the special
   circumstances; and not being a case of promotion inspite oflow medical
   category.                                                                   G
           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 th1is:
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488           SUPREME COURT REPORTS                      [2017] 8 S.C.R.


A      :TRUE TYPED COPY OF MEDICAL BOARD PROCEEDINGS
                      RE-CATEGORISATION BOARD
                           BM/ : 26.36 Kg!M
                               WHR: 0.89
                                PART: 1
          Place of Medical Board : 9 BRD AF Authority: /AP 4303.
B
          I. Name: CHAMAN LAL 2. Ser. No. 726381-F 3. Rank: SGT
          4. Unit : 9 BRD 5. Service : /AF 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 : NIA
 c        JO. Date of Enrolment: 12.10.1987 JO. Record Office: AFRO
          11. Past Med History : As per Col 15.
          12. D!!ty Ceased : Not Ceased.
          14. Present Med Cat : A4G4 (P) wef Sdh: lndl Sign.
                                     PART: II
 D         15. Details of Present and Previous Disabilities :-
           Principle/Other Date & Place Previous Med Next Med
           Disabilities       of Origin      Cat with date Cat
           I. Non Hodgkins Lymphoma
              Upper J/3nJ of Rt Tibia Optd A4G4             Yearly
              New Delhi diagnosed in Oct OJ as LCA +
 E

            16. Specialists Opinions: Attached separately.
            17. ls the disability Attributable to Service? (YIN) If so Pl.
      explain
 F         Dis (1) Yes as per GMO Military Pensions 2008 Chapter VJ
      Para 10 (b) (IV).
            18. If not directly attributable to service, was it aggravated
            by service: (YIN) : No NIA.
            726381-F Sgt Chaman Lal Trade : Crypto Unit: 9 BRD
            19. Med Cat Now Recommended: A4G4 (P)
 G          For Dis I : A4G4(P)
            20. Percentage of Disability (Only for Permanent LMC)
                Previous Disablement % :60%
                Present Disablement % :60%
            21. Any Restriction regarding Employment : Fit for trade
 H          duties.
    SGT CHAMAN LAL v. UNION OF INDIA AND OTHERS                         489
              (A. M. KHANWILKAR, J.]

      22. Instructions given to the individual by the President of A
      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) B
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 parameters without any exception. The
relevant extract of the said policy document reads thus:
                                                                         c
                          "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 D
      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.                                               E

      3. The purpose of the disablement evaluation is to ensure
      compensation on equal terms for all members of the Armed
      Forces ofsimilar 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 F
      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 G
       members 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        H
490     SUPREME COURT REPORTS                       [2017) 8 S.C.R.


A     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 also the degree
      of disablement as it pertains to working capacity. The physical
      examination and laboratory tests must be relied upon more
 B
      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 ,1,>und
 c    procedure by means of which a reliable medical opinion may
      be reached by reason or logic rather than by i11t111 .. on,
      conjecture or assumption. However where investigations
      facilities are not available the assessment will be done on the
      basis of clinical findings.
 D    Definition o{Fu11ctio11
      4. The term 'function" is one that is commonly used to denote
      the usefulness of a part of the body. Jn 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
 E    activity with perfection. When anatomical or physiological
      changes have taken place leading to the stiffness, atrophy or
      pain and the usefulness and the efjiciency of the organ are
      impaired, the extent of the clinical disturbance is revealed
      through physical examinations.

 F    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.

 G    5. Jn 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. Jn the case
      of injuries or diseases, the important points to note are:
 H
     SGT CHAMAN LAL v. UNION OF INDIA AND OTHERS                       491
               [A. M. KHANWILKAR, J.]

      (a) Quickness of action.                                         A
      (b) Coordination of movements.
      (c) Strength.
      (d) Security.
      (e) Endurance.                                                   B

      Expressed negatively, loss of function may be estimated in
      terms of (a) delayed action; (b) awkwardness; (c) weakness;
       (d) insecurity; (e) diminished endurance; (/) lowered swift
      factor and (g) 'the adverse influence of the conspicuous
      impairment.                                                      c
      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
.'    (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 ofstep and gait (b)
      coordination of feet and toes in smoothness and steadiness E
      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 . F
      be taken into consideration, as also muscle spasm. Stiffness
              ,, causes movement of th~ hips prior to that of the
      of the spine
      spine.
      In the hip, the stance or gait or sitting down as in dressing,
      muscle spasm or rigidity, swelling or atrophy, degree of. G
      movement at the hip; have to be taken into consiqerat_ion.
      In the knee, the gait, swelling, atrophy, movements painful or
      free, limitation of such movements have to be considered.
      In the foot, the gait, deformity, swelling, movements active
                                                                       H'
492     SUPREME COURT REPORTS                         [2017] 8 S.C.R.


A     and passive, muscle power, weight-bearing 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
 B    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
 c     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
 D    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 o(Assessment.
      7. The assessment of a disability for pension purposes is the
 E    estimate of the degree of disablement it causes, which can
      properly be ascribed to service. The disablement properly
      referable to service is assessed slightly d(fferently at the time
      of discharge from the forces.
      8. 171ere are various stages of a disability. These are: treatment
 F    period, healing period, temporary disablement or permanent
      disablement-partial 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".
 G     "'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
 H
SGT CHAMAN LAL v. UNION OF INDIA AND OTHERS                         493
          [A. M. KHANWILKAR, J.]

 be suffering from. a disability but medical science can find no A
 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       B
 disablement is supposed to be in a permanent state when the
 condition of the disability is unchangeable.
 Comp11tatio11· o(Assessme11t.
 11. In the forces, the evaluation of disablement or assessment,
 is made to ensure compensation on equal terms for all members C
 suffering from like disablement. When the assessment is below
 twenty per cent, it may be assessed as 1-5 per cent; 6-10 per
 cent; 11-14 per cent and 15-19 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 D
 at I 00 per cent, a recommendation will invariably be niade
 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.                                                      E
 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 ceriified by the Medical Board why a constant
 attendant on him is necessary on account of the disablement.       F
 At the Time of Discharge From the Forces.
 xxx        xxx            xxx             xxx             xxx

 15. Assessme11t with Regard to Perce11tage o(Disabilitv.           G
 The assessment with regard to percentage of di~ability as
 recommended by the Invaliding Medical Board, Release
 Medical Board would be treated as final unless the individual
 himself requests for re1iew except in case of disabilities which
                                                                    H
494           SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A          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
 B         reviews by the Resurvey Medical Boards for re-assessment 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
 c         be carried out later within a specified time frame. The
           percentage of disability assessed/recommended by the Board
           will be fina'/ unless the individual himself asks for a review.
           The review will be carried out by Review Medical Board
           constituted by DGAFMS."
 D         13. No tangible reason is forthcoming to doubt the medical
   assessment report in the case of the appellant, categorising 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
 E 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
 F 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
 G for.
          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
 H successive writ petitions before the High Court regarding the issue of
    SGT CHAMAN LAL v. UNION OF INDIA AND OTHERS                                  495
              [A. M. KHANWILKAR, J.)

nature of medical treatment given to him and incorrect categorisation.           A
Findings recorded in those proceedings could have been the basis for
the Tribunal to non-suit 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.
                                                                                 B
       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 C
is not so in the 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:                                                                      D
      "47. Non-discrimination 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             E
      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 F
      superannuation, whichever is earlier.
       (2) No promotion shall be denied Jo a person merely on the
       ground of his disability:              e




        Provided that the appropriate Government may, having                     G
      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. "
       Sub-section (1) has no application to the fact situation of the present
                                                                                 H
496           SUPREME COURT REPORTS                          [2017] 8 S.C.R.


A case. Sub-section (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 issuii;ig
  notification in that behalf. Admittedly, the Government of India, Ministry
  of Social Justice and Empowerment has issued Notification No.16-27 I
B
  2001-N 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
  13.04.200.,f. The same reads thus:
                      "MINISTRY OF SOCIAL JUSTICE AND
                              EMPOWERMENT
 c
                          New Delhi, the ]8TH 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)
 D         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 Armeq Forces from
           the provision of the said section.
            [No. 16-2712001-NI.l]
              Smt. RAJWANT SANDHU, Jt. Secy."
 E
          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
 F 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. lt is a well established position that mere empanelment of an
   incumbent in the list of candidates due for promotion would not create
 G 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
   possess the medical fitness qualification for being considered for select
 H promotion to the post of JWO. The appellant has erroneously assumed
    SGT CHAMAN LAL v. UNION OF INDIA AND OTHERS                                497
              [A. M. KHANWILKAR, J.]

that he was due for promotion in March 2002, which fact is not A
corroborated from the record. The record, however, indicates that the
appellant was considered for promotion firstly in 2005-06 and also in the
year 2006-07, 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 B
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 C
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 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 D
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        E
no order as to costs.


Kalpana K. Tripathy                                        Appeal dismissed.