IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, GUWAHATI

O.A. No. 09 OF 2011

P R E S E N T

HON’BLE MR. JUSTICE H.N.SARMA (Retd.), Member(J)

HON’BLE CMDE MOHAN PHADKE (Retd.), Member (A)

Sqn.Ldr Jyoti Kumar Dhan (26060-K)

(MS-14331-M) Med of Headquarters

Eastern Air Command, Indian Air Force

C/O. 99 APO.

Appellant

Mr. Dr.G.Lal

Legal practitioner for

Appellant

- Versus -

1. The Union of India,

through its Secretary, Ministry of Defence,

South Block, New Delhi-110001.

2. Director General Armed Forces Medical

Services, Ministry of Defence,’M’ Block

New Delhi-110001.

3. Air Officer-In-Charge of Personnel (AOP)

Air Headquarters ( Vayu Bhawan)

Pin 936171 C/O. 56 A.P.O.

4. Director General Medical Services (AIR)

Air Headquarters, R.K.Puram,

New Delhi-110066.

5. Senior Officer-in-Charge of Administration (SOA)

Headquarters Eastern Air Command

PIN 936174,.C/O.99 A.P.O.

… Respondents.

Mr.C. Barua,

CGSC

Legal practitioner for

Respondent (s)

Date of Hearing : 16.02.2012

2

Date of Judgment & Order: 26.04.2012

JUDGMENT & ORDER

(HN Sarma, J)

This is the third round of approach by the appellant before this Tribunal

praying for ventilation of his grievances for not granting him second extension of

service up to 14 years by way of extension of his Short Service Commission in the rank

of Sqn.Ldr, in the Indian Air Force.

2. We have heard Dr. G. Lal, learned counsel appearing for the appellant and Mr.

C. Barua, learned CGSC of the respondents.

3. The projected case of the appellant inter-alia is that upon due selection in a

competitive test and becoming qualified he was granted Short Service Commission (for

short SSC) in the Indian Air Force on 9.1.2001 in the rank of Flt Lieutenant in Medical

Branch. As per the prevailing rules, the initial engagement of the appellant was for a

period of 5 years which is further extendable for another period of 5 years. In

consideration of the satisfactory service rendered by the appellant and upon

completion of his initial period of 5 years, the service of the appellant was extended

for another period of 5 years vide order dtd. 9.1.2006. The appellant successfully

completed the extended period of service also. Meanwhile the Central Government

formulated and adopted a policy to allow total tenure of Short Service Commission in

respect of AMC, AD Corps and MNS from 10 years to 14 years as reflected in the

communication dtd. 2.11.07 issued by the respondent No. 1 to all the three Chiefs of

Defence Services. The appellant being eligible to continue his service up to 14 years by

further extension made an application on 17.6.2010 for the second extension. The said

application of the appellant was duly recommended and forwarded by the concerned

Commanding Officer of his Unit. It is noteworthy to state herein that while the

appellant was continuing his service he was informed by a letter dated 2.8.2006 that

as per the information of the Air Force Medical Board, he has been diagnosed as

suffering from ‘Takayasu’s Arteritis’ and he was placed in medical category A4G2(P)

w.e.f 2.3.2004 i.e. during the initial period of his service. The disease having no

impact on the service required to be rendered by the appellant, he was granted the

first extension of service on 9.1.2006, although during this period also the appellant

was suffering from the said disease. It is not in dispute that for the purpose of granting

extension of service of an SCC officer from 5 years to 10 years, the criteria and

guidelines have been reflected in the letter dated 3.1.2005 issued by the Director

General of Air Force Medical Services (in short DGAFMS). As per the said guidelines,

the existing policy of extension was modified to a certain extent and in so far as the

medical fitness is concerned, officers should be as per the revised criteria, “In medical

3

category SHAPE-1 which replaced earlier criteria viz Medical category SHAPE-1 should

be in acceptable medical category except in ‘S’ factor (should be S1).”

3.1 The policy to extend the tenure of a SCC Officer of the Air Force Medical

Services from 10 years to 14 years was adopted by the Govt of India, Ministry of

Defence vide Notification No. 4(3) 2007/D(Medical) dated 2.11.07 and was

communicated to DGAFMS as well as the three related Chiefs of the Army, Navy and

Air Force with copy to other authorities by the Govt of India. At Para 7 of the order, it

is specifically stated that the order issued with the concurrence of Min of Def (Fin)

vide ID No. 716/PA dated 2.11.2007.

3.2 Consequent to the adoption of the aforesaid policy decision for further extension

of the services of SCC Officers up to 14 years, a detailed guideline was also issued vide

Letter No. Air HQ/C 98807/4/PO-5 dated 7.11.07. It is pertinent to note herein that

the appellant continued to remain in the same medical category of A4G2(P) for one

year as reflected from the proceedings of the Medical Board dated 24.4.2010.

4. Towards the end of completion of ten years of service, the appellant made

necessary application for his second extension up to 14 years vide application dated

12.6.2010 in terms of the policy and guidelines issued by the respondents and the said

prayer of the appellant was duly recommended and forwarded by the concerned

commanding officer to the higher authorities for necessary consideration. But without

intimating anything to the appellant in this regard an order was issued by Air

Headquarters, New Delhi on 04th Jan 2011 informing that the approval is given for

release of appellant from service w.e.f. 9.1.2011 as he was not granted extension of

service for failing to meet the eligibility criteria for grant of such extension, without

disclosing as to in which respect the appellant was deficient. The said order was

challenged before this Tribunal in OA No. 6/2011 which was disposed of on 01.03.2011

allowing the appellant to file appropriate application/complaint in terms of Sec. 27 of

the Armed Forces Act before the respondent No. 1 allowing him to raise all the

grounds in support of his prayer of extension enclosing therewith necessary documents

and till disposal of the appeal status-quo in regards to the service of the appellant

till then prevailing was allowed to be continued.

4.1 Thereafter, the appellant submitted his appeal on 8.3.2011 in compliance with

the order of the Tribunal before respondent No. 1, which was, however,

rejected/dismissed vide order dated 27.4.2011 by the Under Secretary to the Govt of

India and resultantly the appellant was released from his service with immediate

effect vide order dated 9.5.2011.

4

4.2 The aforesaid order dated 9.5.2011 was again challenged before this Tribunal by

filing OA No. 5/2011.Upon considering the relevant pleadings as well as the

submissions made on behalf of both the parties, the said appeal was allowed on

30.6.2011 and the impugned orders dated 27.4.2011 and 4.1.2011, modification on

12.5.2011 including all other consequential orders were set aside and allowed the

appellant to continue in his service primarily on the ground that the impugned order

has not disclosed any reason and did not address the points so raised by the appellant

in his appeal. The matter was remanded back to the respondent authority for passing

an appropriate speaking order keeping in mind the discussions made in the order

addressing the points raised by the appellant.

5. Thereafter, the respondent authorities vide impugned order dated 12.8.2011

intimated the appellant that his appeal was examined by the respondents and was

disposed of vide order No. 15/52/2011-D(Medical) dated 9.8.2011 which is reproduced

in the said communication dated 12.8.2011. The aforesaid order rejecting the appeal

of the appellant has again been challenged in the present appeal.

6. In support of the appeal, Dr Lal, learned counsel for the appellant has

submitted that the respondent while rejecting this appeal fell into obvious error by

not adhering to the true scope and spirit of Para 5.4.14 and Appendix-B as reflected in

the Manual of Medical Examinations and Medical Boards (4th Edition) which has already

been interpreted and considered its applicability by the Tribunal in its earlier

Judgment rendered in OA No. 5/2011. It has been further contended that although the

appellant was categorized in the same medical category, as he is in the present, at

the time he was granted the first extension, there cannot ensue any different

consequences for the same medical categorization while his consideration for second

extension came up and accordingly the stand of the respondent in rejecting his prayer

for second extension is contrary to its earlier stand. It is also contended that the

medical category of A4G2(P) with 20% disability is not attracted as per Para 1(d)(iii) of

the revised category issued from the Office of Director General of Armed Forces

Medical Services (in short ‘DGAFMS’) Ministry of Defence vide order dated 3.1.2005

and the appellant having categorized in SHAPE-1, the employability restrictions

reflected in Clauses contained therein are not attracted at all and respondents have

committed grave error in refusing to grant extension to the appellant. The categorical

submission made by Dr. Lal is that the appellant having categorized as A4G2(P) with

20% disability which is equivalent to SHAPE-IB in Army, S-2A1/ S-3A1 in Navy cannot be

refused extension on the ground of being low medical category as per the policy

adopted by the respondents authority as reflected in Communication dated 3.1.2005

that the finding in the impugned order that the appellant should have been

categorized as SHAPE-2 goes against the opinion of the Medical Board and is wholly

5

without jurisdiction in as much as it is only the Medical Board who is competent to

categorize a person medically and not the administrative authority.

6.1 The respondents by filing a counter affidavit contested the stand of the

appellant. It is contended on behalf of the respondents that the appellant was placed

in low medical category with disability and he does not meet the criteria laid down in

the letter No. 3569/DGAFMS.DG-1B dated 03.01.2005 wherein it is provided that only

low medical category officers due to war causalities are to be granted extension

provided they are in S-1 medical category. The respondents further contended that

DGAFMS being the cadre controlling Officer, letter/instruction issued by the Air HQ

regarding grant of further extension of SSC Officer is not applicable. Mr. N.Deka,

learned CGSC further submitted that the appellant is not entitled to base his claim on

the guidelines contained in Manual of Medical Examinations and Medical Boards which

are published under the authority of the Chief of the Air Staff and DGAFMS being

Cadre Controlling Authority, its decision in terms of Army Instruction 75/78 would be

applicable; and finally it is contended by Mr Deka that the case of the appellant was

duly considered by the respondent authority while disposed of his statutory appeal and

the grounds of rejection of his prayer have been categorically mentioned in the

impugned order dated 12.8.2011 and it is done in accordance with the provisions of

law and he prays for dismissal of the appeal.

7. We have considered the submissions made at the Bar. We have also perused the

impugned order, pleadings of the parties as well as the relevant

orders/guidelines/policy which are placed before us.

8. The main issue that calls for consideration in this appeal is as to whether the

respondent authorities in passing the impugned order have correctly held that the

appellant is not entitled to get further extension of his service within the ambit of

law, he having been categorized as A4G2(P) with 20% disability equivalent to SHAPE-

1B of the Army and as to whether the guidelines issued by the Air HQ in the Manual of

Medical Examinations and Medical Boards under the Authority of the Chief of the Air

Staff is applicable to the appellant for the purpose of consideration of his further

extension up to 14 years.

9. Be it noted herein that findings on most of the arguments advanced by the

respondents particularly relating to the non-applicability of the policy/guidelines

issued by the Air HQ are covered by our earlier Judgment dated 30.6.2011. In our

earlier Judgment passed in OA No. 5/2011, we have categorically held at Para 13, 14,

15 & 16 as follows-

6

“13. The Army Instructions 75, on which Mr. Deka has placed strong

reliance, regulates the terms and conditions of service of the Officers

granted Short Service Commission in Army Medical Corps. As per the said

instructions, the Commission is granted for a period of five years in the first

instance and can be extended further for such period as the DGAFMS may

decide subject to condition that the total SSC service of the Officer does

not exceed ten years or beyond the age of 55 years.

14. There is no dispute that as per the said Army Instructions, which

was incorporated on 04.11.1978, the terms of Short Service Commission for

five years, is extendable for another five years on being decided by the

DGAFMS. The criteria for such extension of service have been formulated in

the policy issued on 03.01.2005 revising the earlier policy. As per the

revised policy dated 03.01.2005 for granting extension to Short Service

Commissioned Officers, the criteria has been amended with a view to

improve screening process and as per the revised criteria officers should

fall within the medical category SHAPE 1. The extension of total tenure of

Short Service Commission service up to 14 years have been made by the

Central Government as reflected in the communication dated 02.11.2007

and this decision of the Central Government was communicated to all the

Chiefs of the three defence wings as well as to the three DGAFMS. The

extension of service up to 14 years, as decided by the Central Government

will certainly override the provisions of Army Instruction 75 formulated in

1978. Again, as submitted by Mr. Deka, if the said circular is excluded from

operation in respect of Air Force Medical Staff while applying in respect of

Amy and Naval staff, it will be highly discriminatory and would be an

antithesis to the principles and philosophy of equality clause laid down

under Article 14 of the Constitution of India. The further stand of the

Respondents that the DGAFMS being the cadre controlling authority, only

the circular/guidelines issued by the DGAFMS would be applicable and the

decision of Central Government dated 02.11.2007 extending the services of

SSC officers up to 14 years would not be applicable to the petitioner is

equally fallacious, inasmuch as, the policy decision/ guidelines issued by

the Central Government stands at the top and applicable to all SSC officers.

So far as the criteria applicable for granting extension, if we go back

to the policy letter dated 03.11.2005, it would be seen that in respect of

medical category an officer should be of medical category SHAPE-1. How

SHAPE-1 is to be interpreted in respect of an officer serving in the Air

Force, has been laid down in the Manual of Medical Examinations and

Medical Boards (4th Edition: September 2010) at Clause 5.4.14. For our

ready reference, Clause 5.4.14 is quoted below:-

7

“5.4.14. Whenever Air Force officers are reviewed or opined upon

by an AMC officer, other than Air Force Medical Officers, the

medical category given will be in SHAPE factor. Medical boards on

these officers should take into consideration the guidelines given by

the AMC specialist but should independently decide about the Air

category, which need not necessarily be based on the

recommendations of the Army/Navy specialist, and award an

appropriate Air Force medical category. For guidance of Air Force

Medical Officers, the equivalent of Army and Navy medical

categories are given in Appendix B to this chapter. These guidelines

are not sacrosanct and the accorded category should match the

employability restrictions.

Appendix B, referred to above, is also quoted below for ready

reference:

Appendix-B

(Refers to para 5.4.14)

EQUATION OF MEDICAL CATEGORIES

ARMY, NAVY AND AIR FORCE

1. “SHAPE” system classifying functional capacity mainly relates to

the G factor of Air Force Medical Category. Therefore, as a general

guide, the following are to be considered equivalent in the system of

medical categorization in Army, Navy and Air Force.

Air Force Medical Classifications and Their Equivalent in

Army/Navy (Aircrew/Ground Duty Officers and PBOR)

Air Force medical classifications and their equivalent in

Army/Navy are as under:-

AIR FORCE ARMY NAVY

Ground Aerial

(a) A4G1 A1G1 SHAPE-1A S1A1/S3A1

(b) A4G2 A2/A3G2 SHAPE-1B S2A1/S3A1

(c) A4G3 SHAPE-2 S3A2

(d) A4G4 SHAPE-3 S3A3

(e) AtGt SHAPE-4 S4A4

(f) ApGp SHAPE-5 S5A5

2. However, while converting medical category recommended

on the basis of ‘SHAPE’ classification to Air Force equivalent,

Medical Boards are to carefully evaluate the disabilities in terms of

8

Appendix A of this chapter and provisions of Section VI. The aerial

category should be decided independent of advice rendered by

specialists medical officers.

3. From 01 Dec 2003, SHAPE-1 has been re-defined as SHAPE-1A

which will be equivalent to A1/G1 and SHAPE-1B which will be

equivalent to A2 or A3/G2. “

15. The appellant before us has been placed under medical category

A4G2(P). From the above provisions relating to the equation of medical

categorization of Army, Navy and Air Force staff it is found that the

petitioner, who was categorized as A4G2 (P) would fall within SHAPE-1(B).

Thus, the appellant falls within the required revised medical criteria in

terms of the communication dated 03.01.2005. This view is further fortified

from the Air HQ Human Policy adopted on 07.11.2007 providing guidelines

for extension of service of Short Service Commissioned Officers. Further

details of medical category and implementation, restriction on all officers,

cadres, airmen or crew etc. are reflected in the Manual of Medical

Examination and Examination IAP 4303 (September 2010) at Appendix “A”

that in respect of officer who is categorized “A 4” his functional capacity

impaired to the extent that it interferes with flying duties as Air Crew, but

does not interfere with flying as a passenger. Officers on ground duties

branches possess full functional capacity not interfering with flying as a

passenger and such officer are unfit to fly as an air crew, but fit to fly as a

passenger. So far medical categorization G-2 is concerned, such officers are

capable of enduring physical and mental stress at a standard slightly lower

than G 1 and free from active disease, may have minor defects which do

not restrict employment or result in functional restrictions. So far

employability is concerned they are fit for ground duties, but slightly below

G-1 standard in any part of the world.

16. However, it is contended on behalf of the Respondents that the

extension of the service of the appellant was not granted in view of

restrictions contained in the Army Instruction 75 of 1978. The Respondents,

though at para-40 of their counter have admitted that on earlier occasion

the appellant was considered for extension of service after completion of

his first contractual period of five years and was granted extension for five

years with effect from 09.01.2006, but at paragraph-41 have casually stated

that the appellant was granted extension for five years erroneously by some

inadvertent omission which was not interfered with and he was allowed to

complete the term. But nothing has been stated as to when the alleged

9

“inadvertent omission” was detected or in what manner it occurred or as to

why it was not set at right. Had some inadvertent omission in fact been

taken place, it was the bounden duty of the respondents to rectify the

defect. But that was not done, which is indicative of the fact that the

appellant was granted extension in terms of the existing policy which he

was entitled under the law and the contention that his service was

extended erroneously appears to be only an afterthought.”

10. As none of the parties have challenged the Judgment and order dated

30.6.2011, it has attained its finality. Accordingly, in view of our earlier decision, the

respondent authorities ought to have considered the case of the appellant in terms of

the aforesaid decision, but while rejecting the statutory appeal of the appellant, they

have not at all considered the decision which was earlier arrived at by the Tribunal.

That apart, at Para 5 of the order passed by the respondent No. 1, it has been held

that the appellant would in fact be categorized as P(2) which is absolutely without

jurisdiction in as much as such categorization can be made only by a competent

Medical Board and not by an administrative authority like respondent No. 1. The said

finding in the impugned order is without jurisdiction and cannot be allowed to sustain.

Further the guidelines as contained in Appendix-B in terms of Clause 5.4.14 as

appearing in the Manual of Medical Examination and Medical Board were issued only to

follow the same by the appropriate authority but not to disobey. The guidelines issued

by the respondents which are the professed norms for the respondents in such matters

are applicable to the respondents as well and they are also required to adhere to

those norms whereas the respondents have attempted to give a total ho-bye to those

regulations on the plea that the said guidelines are not applicable, being issued by AIR

Headquarter.

11. According to the respondents as the appellant did not fulfill the eligibility

criteria of not being in SHAPE-1, he was not granted further extension for a further

term of four years. The criteria for extension of SSC officers is laid down in the Order

of the DGAFMS dated 03.01.2005.

11.1 According to Clause (d) acceptable medical category for such extension should

be in S-1 i.e. Medical Category SHAPE-1. As per Para 5.4.14 of the Manual “SHAPE”

system classifying functional capacity mainly relate to ‘G’ factor of Air Force Medical

category and A4 has been made equivalent to A2/A3 G2 in Aerial SHAPE-1B in the

Army. As per the said Appendix ‘B’ from 01.12.2003 SHAPE-1 has been re-defined as

SHAPE-1A, which is equivalent to A1 G1 and SHAPE-1B which will be equivalent to A2

or A3/G2.

10

11.2 Thus according to the Army equivalence the medical category of the appellant

A4G2 is equivalent to SHAPE-1B. As per Annexure 21 (Page 120) the employability

restriction is attributed to SHAPE-II which is low medical category, but the appellant is

in SHAPE-1B. As per policy of the GOI dated 07.11.2007, the eligibility criteria for

granting extension, as regards medical category, in respect of ground duties branch

should be A4 G2(P/T) or above (Annexure 5 page 54).

11.3 Appendix drawn up as per Para 5.4.14 of the Manual provides that medical

category of G2 personnel is fit for all ground duties, but slightly below G1 standard in

any part of the world. As per Army Order No. 1/2004 DGAFMS providing detail

instruction for medical classification for serving officers (Page 12, Annexure-20).

Person categorized as SHAPE-1B is fit for all duties anywhere under medical

observation with no employability restriction.

12. From the meticulous examination of the relevant Notification/guidelines and

policy, it is clear that the medical categorization A2G4 (P) (under which the appellant

falls) is equivalent to SHAPE-1B and there is no dispute that it falls within the SHAPE-1

and at any rate not in SHAPE-2. Appendix-B framed in terms of Clause 5.4.14 also does

not disclose that category A2G4 (P) does not fall within the ambit of SHAPE-IB. In the

revised criteria dated 3.1.2005 issued from the Office of the DGAFMS to the 3(three)

Medical Heads of the services also does not disclose that the Category S-1 does not

include S-1B.

13. In fact, as per Clause 3 of Appendix B (Para 5.4.14), SHAPE-1 is re-defined as

SHAPE-1A which will be equivalent to A1/G1-SHAPE and SHAPE-1B which will be

equivalent to A2 or A3/G2.

14. Thus considering from all angles and upon proper interpretation of the

guidelines, we find that the appellant falls within the category of S-1B equivalent to

Army and there is no employability restrictions as can be very well seen from the

policy/guidelines dated 7.11.2007. The said policy decision dated 7.11.07 states that

for granting extension to a SCC Officer, the medical category should be as follows-

8. Medical Category: Medical category required for the purpose

would be as follows:-

(a) Flying Branch A2G2(P/T) or above

(b) Ground Duty Branch A2G2(P/T) or above

(c) Officer on temporary low medical category who in all

likelihood is expected to regain his/her medical category could be

granted two successive ‘Temporary Extensions’ of six months

11

each. In case of failure to regain requisite category, the officer

would have to relinquish further extension of service.

In view of this latest policy decision adopted in 2007, the submission of the

learned counsel for the Respondents that the appellant is not entitled to get extension

as per earlier communication of the DGAFMS dated 30-1-2005 ( Clause d-III) is not

acceptable and the latest policy decision will prevail and shall hold the field.

15. In view of the above discussions, it is found that the respondents misdirected

themselves in passing the impugned orders dated 12.8.2011 and the order dated

9.8.2011 (quoted in order dated 12.8.2011) is not sustainable in law and accordingly

those are set aside and quashed. The respondents are directed to pass appropriate

order granting second extension to the appellant in his service in terms of the existing

policy and such order shall be done within a period of 30 days from the date of receipt

of the copy of this order; till such order is passed, the earlier order of status-quo shall

continue.

16. With the observations and directions made hereinabove, the appeal stands

allowed as indicated above.

17. No costs.

MEMBER (A) MEMBER (J)

12

IN THE ARMED FORCES TRIBUNAL

REGIONAL BENCH, GUWAHATI.

O.A. NO. 09 OF 2011

P R E S E N T

HON’BLE MR. JUSTICE H.N.SARMA, Member (J)

HON’BLE CMDE MOHAN PHADKE (Retd),Member (A)

Ex-Sqn Ldr Jyoti Kumar Dhan

(26060-K)(MS-14331-M)

Med of Headquarters Eastern

Air Command, India Air Force

C/O.99 APO, Permanent Resident

Of Village Kanti, Post Office,

Larta, District Khunti (Jharkhand)

Pin-835209.

……..Appellant/Petitioner

Dr.G.Lal

Legal Practitioner for

Appellant/Petitioner.

-Versus-

1.The Union of India,

through the Secretary,

Ministry of Defence,

Govt. of India, South Block,

New Delhi - 110001.

2. Director General Armed Forces Medical

Services, Ministry of Defence,’M’ Block

New Delhi-110 011.

3.Air Officer in charge of

Personnel (AOP), Air Headquarters

(Vayu Bhawan) Pin 936171

C/O. 56 A.P.O.

13

4. Director General Medical Services (AIR)

Air Headquarters R.K.Puram,

New Delhi- 110066.

14 Senior Officer Incharge

Of Administration (SOA),

Headquarters Eastern Air

Command, Pin 936174

C/O. 99 APO.

…….. Respondents

Mr.C.Baruah CGSC

Legal Practitioner

for Respondents.

Date of Hearing : 16-02-2012

Date of Judgment

& Order : 26-04-2012

JUDGMENT & ORDER

( Cmde Mohan Phadke)

The present Original Application No. 09/2011 was filed by the Ex.Sqn Ldr Jyoti

Kumar Dhan (26060-K) (MS-14331-M) MED of Headquarters Eastern Air Command,

Indian Air Force C/O.99 APO. The petitioner was granted Short Service Commission

(for short SSC) in the Army Medical Corps (AMC) for a term of 5 years in the rank of

Flight Lieutenant w.e.f. 09.01.2001 and was, in due course, promoted to the rank of

Squadron Leader. Whilst holding this rank, he was granted extension of his SSC for a

further term of 5 years w.e.f. 09.01.2006. At the time of his entry into service, the

petitioner was medically fit but on 06.05.2002, he was found to be suffering from

‘AORTA ARTERITIS’ (ICD-177), and placed in Low Medical Category S1H1A1P3 ( T-24) EI

equivalent to A4G4 in the Air Force on 23.08.2003. On further review on 02.08.2004,

his placement in Low Medical Category A4 G4 was made permanent with 15-19%

disability with a direction to review after one year on 02.08.2005. His condition was

subsequently reviewed from time to time and, with the last review being held on

24.04.2010 at HQ EAC (U) Air Force, the said permanent Low Medical Category was

continued with 20% disability on account of ‘TAKAYASU’S ARTERITIS’. Due to his being

permanently placed in Low Medical Category, in which he had continued for about 8

years, the petitioner was not granted further extension of his SSC.

14

2. Aggrieved by his non sanction/grant of further extension, Ex.Sqn Ldr Jyoti

Kumar Dhan (26060-K) filed the Original Applications 06/2010, 05/2011 and finally the

instant Original Application.

3. The petitioner’s case, in brief, is that he was eligible for grant of further

extension of his service as would be evident from the fact that he had earlier been

granted first extension of his service despite his having been in the same low medical

category. He had accordingly applied for extension vide his application dated

17.06.2010 (Annexure -7) and this was duly recommended by his Commanding

Officer, the Principal Officer of his Command and the Director General of Medial

Services (AIR) Air Headquarters and forwarded to Respondent No.2. On 04.01.2011,

however, he was ordered by Fax dated 04.01.2011 (Annexure-10) to be released from

service w.e.f. 09.01.2011. The petitioner challenged the aforesaid release order

before this Tribunal vide Original Application No.06/2010. The OA was disposed of

vide order dated 01.03.2011 with a direction to the appellant to exhaust his statutory

remedy under section 27 of the Air Force Act by filing an application before

Respondent No.1 within two weeks and, on such an application being filed,

Respondent No.1 was to dispose of the said application, within a period of three weeks

by passing an appropriate order and till then, the status quo was ordered. The

petitioner accordingly submitted a representation dated 08.03.2011 but this was

rejected by Respondent No.1 vide order dated 27.04.2011 (Annexure-12 ) which was

handed over to the petitioner along with order dated 06.05.2011 of Respondent No.3

and order dated 09.05.2011 of Respondent No.5 (Annexure-12). The petitioner then

filed a further Original Application being OA 05/2011 before this Tribunal for

challenging this action. The aforesaid OA was disposed of by this Tribunal vide order

dated 30.06.2011 on the ground that the respondents have mechanically rejected the

prayer of the appellant without due application of mind. The respondents were

accordingly directed to dispose of the application dated 8.3.2011 filed by the

appellant afresh in terms of the order dated 1.3.2011 passed in OA 6/2010 keeping in

mind the discussions in the aforesaid Judgment and Order and to pass a speaking

order. Respondents were also accordingly directed to allow the petitioner to rejoin his

duty and to pay necessary salary etc. to him.

4. The appeal preferred by the petitioner in the matter was decided by

Respondent No.1 vide order dated 09.08.2011 (Annexure -1 of the affidavit in

opposition). Pursuant thereto, Respondent No.2 ordered the release of the petitioner

vide letter dated 12.08.2011 (Annexure-18) and he was subsequently released by

Respondent No.5 vide his letter dated 17.08.2011 (Annexure-19). Aggrieved, the

petitioner filed the instant OA claiming his release to be arbitrary, discriminatory,

whimsical, unfair, unjust and illegal.

15

5. In furtherance of his plea that he was eligible for the grant of extension to the

SSC, the petitioner has essentially contended that as per Director General of Armed

Forces Medical Services (for short DGAFMS) order dated 03.01.2005 (Annexure-2), the

eligibility criteria was revised to Medical Category SHAPE-1 instead of “should be in-

acceptable medical Category except in ‘S’ factor (should be S1)”. The petitioner

further claims that as per Annexure-9 Appendix- B, his Medical Category viz A4 G2 was

equivalent to Medical Category SHAPE- 1B. He, being in Medical Category SHAPE-1,

was thus eligible. The petitioner further refers to Annexure-2 which was supplied to

him in response to his RTI request and wherein his Medical Category A4 G2 was shown

to be equivalent to SHAPE-1B in the Army. The petitioner has also referred to AIR

Headquarters, Human Resources Policy at Annexure-5 to contend that as per Para 8(b)

of this policy, the prescribed Medical Category for the purposes of eligibility was

A2 G2 (P/T) or above for the Ground Duty. The petitioner thus claims that he was

eligible as per this policy.

6. Respondents have in response contended that the applicant who was granted

short service commission in the Army Medical Core was governed by Army Instruction

(AI) 75/78 as granted from time to time. His cadre controlling authority was DGAFMS

who had been vested with delegated administrative power in respect of medical

personnel vide Sl.7 of Appendix –II Govt. of India, Ministry of Defence letter No. dated

29.11.2006 (Annexure-R/2) as well as Para 4 of Army Instruction 75/78 ( Annexure-

R/3) . That being so, the regulation laid down under Defence Services Regulations and

Policy letters issued by the Office of the DGAFMS are equally applicable to Medical

Officers of the three Services. Provisions of Army Instruction 75/78 as amended from

time to time do not allow an Officer in Permanent Low Medical Category to be granted

extension of service and, therefore, the OA is liable to be dismissed on this ground

alone. The applicant in this case was diagnosed to be suffering from ‘AORTO

ARTERITIS’( ICD-177) at Air Force Station Biohta on 06 May 2003 ( within 02 years 05

months of commencement of his Short Service Commission) and was placed in Low

Medical Category w.e.f. 25.6.2003. His category was reviewed form time to time

resulting in his being placed in Low Medical Category A4G2 (P) with 15-19 % disability.

Subsequently, on 24.4.2010, the Medical Board placed him in Permanent Low Medical

Category A4 G2 (P) and also granted him disability of 20% as a result of which he

cannot be deemed to be fit for military duty and be equivalent to Shape -1 as claimed

by him. Respondents have also contended that just because the applicant was granted

extension of service in the year 2005, it would not be correct to say that he should be

granted extension even though it is against the policy. This would, in fact, amount to

16

perpetuating an error. Respondents have strongly contended that as the Medical Board

had recommended the applicant with 20% disability w.e.f. 4.8.2005 in Medical

Category A4G2 (P), he cannot be equated with Medical Category SHAPE -1B as Army

Classification SHAPE- 1B denotes a temporary Category under which officers are

observed without medication for a period of one year and then either upgraded to

SHAPE-1 or downgraded to SHAPE-2 or below as the case may be. The first extension

that was granted to the applicant was the result of an inadvertent error which was

duly corrected whilst considering and refusing the second extension for a period of 4

years. The grant of extension as a result of an inadvertent error, can neither be

quoted as precedent nor confer any right on the applicant for the second extension. In

their subsequent rejoinder -affidavit dated 3.2.2012 , the respondents have once again

reiterated their earlier stand that the disease with permanent law Medical Category

with disability of 20% can in no way be compared to either SHAPE-1B or SHAPE-1.

Further, the applicant was not granted extension as he did not fulfill the criteria laid

down in Govt. Policy letter dated 3.01.2005 as per which the ‘Officers in Permanent

Low Medical Category will not be granted extension’. By virtue of the appellant being

placed in permanent Low Medical Category A4G2 (P) with 20% disability he cannot be

deemed to be fit for military duties and be equivalent to SHAPE 1 which is the

category required for grant of extension.

7. We have considered the submissions made at the Bar. We have also perused

the impugned order, pleadings of the parties as well as the relevant

orders/guidelines/policy which are placed before us.

8. The main issue that arises for consideration in this appeal is whether the

respondent authorities in passing the impugned order (Annexure-18) have correctly

held that the appellant is not entitled to get further extension of his service within the

ambit of law.

9. In considering this issue, we need to take note of the fact that the appellant

is an Army Medical Corps (AMC) Officer who is governed by the provisions of Army

Instruction (AI) 75/78 as amended from time to time and read with existing

policies/SOPs laid down by MOD/DGAFMSfor grant of extension to SSC Officers. The

Cadre Controlling authority for the AMC Officers is DGAFMS vide Govt. Of India,

Ministry of Defence Order dated 29.11.2006 (Annexure-R/2) as well as Para 4 of Army

Instruction 75/78 (Annexure-R/3). Further that the latest policy directive on the

question of grant of extension of service is contained in the DGAFMS, Ministry of

Defence order dated 3.1.2005 (Annexure-2) which clearly specifies that the Officers in

Permanent Low Medical Category will not be granted extension of service.

17

9.1. In view of the fact that DGAFMS is the cadre controlling authority of all AMC

Officers, it naturally and logically follows that all promotions, extension of service,

inter service transfers and in fact all career enhancement activities will be governed

by the DGAFMS orders. Once this position is accepted, all that remains with the

Service Headquarters is routine administrative control and disciplinary matters. In the

light of facts as discussed above, administrative guidelines that are issued by Service

Headquarters are only for guidance and application within the said service. Such

orders can under no circumstances control the career related matters – such as

promotions, extension etc. - of AMC officers. When viewed in this light , the orders of

Service Headquarters as referred to and relied upon by the appellant are rendered

inapplicable and ineffective in their application to the appellant’s case as these orders

cannot override/supersede the Govt. orders viz. AI 75/78 as amended and

DGAFMS/MOD orders dated 03.02.2005(Annexure-2). This Tribunal had earlier

disposed of OA vide order dated 01.03.2011 with a direction to the appellant to

exhaust his statutory remedy under section 27 of the Air Force Act by filing an

application before Respondent No.1 within two weeks and, on such an application

being filed, Respondent No.1 was to dispose of the said application, within a period of

three weeks by passing an appropriate order and till then, the status quo was ordered.

Similarly, OA 05/2011 was disposed of by this Tribunal vide order dated 30.06.2011 on

the ground that the respondents had mechanically rejected the prayer of the

appellant without due application of mind. The respondents were accordingly

directed to dispose of the application dated 8.3.2011 filed by the appellant afresh in

terms of the order dated 1.3.2011 passed in OA 6/2010 keeping in mind the

discussions in the aforesaid Judgment and Order and to pass a speaking order. This

was done vide the impugned order.

10. With reference to the present OA, it may be stated that the appellant’s

representation dated 8.3.2011 was rejected by the Govt of India, Ministry of Defence

vide their order No. 15 (15)/2011/D (Medical) dated 27.4.2011 (Annexure 12) on the

ground that his request was in contravention of the provision of Army Instruction

75/78 and therefore, non-grant of extension by the DGAFMS to the officer on account

of his failure to meet the specified medical criteria for grant of extension in the

service vide Army Instruction 75/78 was justified and hence no injustice has been done

to him. This order was, however, set aside as aforesaid vide judgment and order

dated 30.6.2011 of this Tribunal on the ground that the respondents had mechanically

rejected the prayer of the appellant without due application of mind. Respondents

were accordingly directed to dispose of the appeal dated 8.3.2011 filed by the

appellant afresh in terms of the order dated 1.3.2011 passed in OA 6/2010 keeping in

mind the discussion made in the aforesaid judgment and order and to pass a speaking

order.

18

11. The impugned order dated 12.8.2011 (Annexure-18) reiterates the fact that the

officer is an AMC officer to whom Army Instruction 75/78 as amended from time to

time applies. The order further states the officer is presently in low medical

classification A4G2 (Permanent) with 20% disability for the disease “Takayasu’s

Arteritis”. Further that the grant of extension is subject to the terms and conditions of

existing policy which clearly debars the grant of such extension to officers in

permanent low medical category with 20% disability vide Medical Board proceeding

dated 25.4.2010. The Government order further states in Para 5 that the contention

that medical category A4G2 (of the applicant) amounts to SHAPE-IB in view of the

provision of Para 5.4.14 of the Appendix-B of Manual of Medical Examinations and

Medical Boards (4th Edition, Sept/2010), is ill sustained as a person diagnosed to be

suffering from the disease “Takayasu’s Arteritis” cannot come under category SHAPE-

1B as he would, in fact, be categorized as P2 because such equivalence of medical

standards was merely a comparative yardstick for guidance of Air Force Medical

Officers. The impugned order thus justifies the non-grant of extension of SSC to the

appellant as he failed to meet the specific medical criteria.

12. The appellant had in this case, contended that his medical category A4G2(P)

was equivalent to the medical category SHAPE-1B as per the orders concerning

equation of medical categories of Army, Navy and Air Force (Annexure 9). He further

contends that as per Air HQ, Human Resources Policy (Annexure 5), the medical

category required for ground duty branch officer was A2G2 (P/T) or above and

therefore, he was entitled to extension of service. The appellant then refers to

DGAFMS Order at Annexure-2 which lays down the revised criteria for ‘grant of

extension to SSC officers’ and refers to Para 1(d)(i) which describes medical category

SHAPE-1 as the criteria for selection. The officer, however, fails to refer to Clause (iii)

of Sub Para. (d), which reads “Officers in permanent low medical category will not be

granted extension”. This proviso clearly debars an officer in permanent low medical

category from being granted extension of service. Further the rejoinder dated

3.2.2012 filed by the respondents repeatedly clarifies the position in this regard to say

that a person in permanent low medical category cannot come in category SHAPE-1B

or SHAPE-1. In this context, reference is drawn to statements in Paras 12, 14, 15 and

21 of the said rejoinder. In Para 12, the respondents have submitted, “a disease with a

permanent category, moreover, with a disability of 20% can in no way be comparable

to either SHAPE-1B/SHAPE-1 as the relevant Army order is explicit of the same.

Therefore, it is submitted that the applicant was not granted extension on the grounds

that he is in permanent low medical classification with disability and therefore, he

does not meet the criteria laid down under the policy letter No. 3569/DGAFMS.DG-

1B(i) dated 3 Jan 2005, wherein only in case of low medical category officers due to

19

war casualties are to be granted extension, provided they are in S-1 medical category.

Furthermore, the extant policy also specifically mentions that officers in permanent

low medical category will not be granted extension.” Para 14 of the said rejoinder

further states “the terms and conditions of service of medical and dental officers of

AMC and ADC are governed at all times by those approved by the MoD/DGAFMS and

may be at variance with those for the rest of the Armed Forces in their respective

services as Army, Navy or Air Force.”

13. The position that finally emerges is that the latest order on the subject viz

Office of DGAFMS, Ministry of Defence Order No. 3569/DGAFMS/DG-1B(I) dated

3.1.2005 (Annexure-2) which lays down the criteria for grant of extension to SSC

Officers of AMC very clearly debars officers in permanent low medical category from

grant of extension of service. Even if it is assumed for the sake of discussion that

Service Headquarters orders as relied upon contain anything that is contrary to

Government Instruction such orders will, to the extent that they are contrary, become

invalid. In this view, AI 75/78 and Annexure -2 orders being Govt. orders/Instructions

will prevail. This being a Govt order, will prevail over the orders issued by AIR HQ

whether it be Annexure-5 (AIR HQ orders on Human Resources Policy, Extension to SSC

Officers) or Annexure- 9 which lays down equation of medical categories in Army, Navy

and Air Force. It is also relevant to refer to Appendix-E of Army Order 1/04 which has

been cited to show that category SHAPE-1B implies “Fit for all duties everywhere

under medical observation and has no employability restrictions.”, can again not

supersede the Govt instruction as in Annexure-2 or the basic order as applicable to

AMC Officers viz Army Instruction 75/78, as this order also falls in the category of the

order issued by the service headquarters.

14. in the light of above discussion, the appellant is considered ineligible for grant

of extension of Short Service Commission. The impugned order is accordingly upheld.

15. The petition is accordingly dismissed as being devoid of merit.

16. In the facts and circumstances of the case, there will be no order as to costs.

-

MEMBER (A) MEMBER (J)

20

IN THE ARMED FORCES TRIBUNAL

(REGIONAL BENCH) GUWAHATI

OA 09 OF 2011

PRESENT

Hon’ble Mr. Justice Raghunath Ray, Member (Judicial)

(As Third Member Bench)

Ex-Sqn Ldr. Jyoti Kumar Dhan (26060-K) (MS 14331-M) Med

Headquarters Eastern Air command, Indian air Force C/o 99 APO

Permanent resident of Vill. Kanti, PO Larta, Dist. Khunti

Jharkhand, PIN 835209.

……. Applicant

Dr.G.Lal,Advocate

Mrs N.Das,Advocate

Mr.U.Sarma,Advocate

Legal Practitioner for Applicant.

-VS-

1. Union of India through the Secretary, M/o Defence, South Block, New

Delhi-110 001

2. Director General Armed Forces Medical Services, M/o Defence.

‘M” Block, New Delhi-110 001

3. Air Officer-in-charge of Personnel (AOP), Air Headquarters

(Vayu Bhawan) PIN 936171 C/o 56 APO

4. Director General Medical Services (Air) Air Headquarters, R.K.Puram

New Delhi-110066

5. Senior Officer In-Charge of Administration (SOA), Head Quarters,

Air Command, PIN 936174, C/o 99 APO.

…… Respondents

Mr.C..Baruah,CGSC

21

Legal Practitioner for Respondents.

Date of Hearing : 08.03.2013&12.03.2013

Date of Judgment & Order : 14.03.2013

JUDGMENT AND ORDER

Backdrop :

The instant OA was heard by the Armed Forces Tribunal, Regional Bench at

Guwahati. Since the learned Members of the Bench differed in opinion, they

formulated three points of difference and made a reference to the Hon’ble

Chairperson vide order dated 26.4.2012. The Member(Judicial), Kolkata Regional

Bench has, thereafter, been nominated as a Third Member to hear the matter in terms

of provision of Sec. 28 of the AFT Act, 2007.

Facts:

2. Factual matrix leading to filing of the instant OA may be capsulized as under:

3. The applicant was inducted in the rank of Flight Lieutenant in the Medical

Branch of Indian Air Force, as a Short Service Commissioned officer on 9th January 2001

initially for five years extendable for another term of five years.

4. As a Medical Officer in the Indian Air Force in the rank of Flt. Lt., he rendered

his duties and responsibilities with utmost sincerity, efficiency, dedication and

devotion to the full satisfaction of the concerned authorities. He had, in fact an

unblemished service records to his credit. At any rate, as ill luck would have it, on

6.5.03 he was diagnosed with TAKAYASUS ARTERITIS and was placed in medical

category known as “A4G2(P)” with 15-19% disability with effect from 2.8.04. However,

despite such diagnosis, he continued to perform his duty as usual with same degree of

efficiency and proficiency and his performance was not in any way affected because of

detection of such ailment: More so, he was not subjected to any medication for the

same.

5. Since his initial term of appointment was going to expire on 8.1.06, the

applicant applied for extension of service on 5.12.05 for a further period of five years.

After due consideration of his health status as also newly detected ailment etc, he was

22

granted further extension for second term of five years w.e.f. 09.01.2006 to

08.01.2012.

6. In the meantime because of formulation of a new policy by the Govt. of India,

Ministry of Defence, New Delhi, the tenure of SSC officers of Armed Force Medical

Services (AFMS for short) became extendable from 10 to 14 years vide letter bearing

No. 4(3)/2007/D(Medical) dated 2.11.2007. All the Chiefs of three Defence services as

also Director General Armed Forces Medical Services (DGAFMS for short) were also duly

communicated about such change in the Govt. policy.

7. Banking upon the afore-mentioned policy letter, the applicant submitted his

application through proper channel on 17.06.10 urging the respondents to extend his

service for another term of four years. Such prayer was duly recommended and

forwarded by the Commanding Officer of the applicant, i.e. the Principal Medical

Officer of his command, i.e. Eastern Air Command (EAC in short) as also the Director

General Medical Services (Air) at Air Headquarters (respondent No. 4) to the office of

respondent No. 2. His prayer for extension of service for a period of further four years

was not taken into consideration despite recommendation by the appropriate

authorities. The competent authority, however, accorded approval for his release

from service w.e.f. 09.01.2011 (FN) on the ground of non-fulfillment of eligibility

criteria required for grant of such extension. The respondents’ refusal to accede to

the applicant’s prayer for further extension of service gave rise to three rounds of

litigation:

First Round

8. The applicant had to rush to the Regional Bench of AFT at Guwahati

challenging the validity/legality of the release order impugned. After hearing both

sides, the Tribunal admitted his OA No. 6 of 2010 and passed an interim order of status

quo in respect of the service of the applicant till 04.02.11 vide order dt. 07.01.11.

Such interim order was further extended till 4.3.11. However, since the applicant had

not exhausted statutory remedy provided u/s 27 of The AIR FORCE ACT, 1950, (

hereinafter referred to as the said Act) OA 6 of 2010 was disposed of on 01.03.11

affording an opportunity to the applicant to file appropriate application seeking

redress in terms of Sec. 27 of saod Act before the Respondent Authorities within a

period of two weeks from the date of the order dated 01.03.11. The respondents were

also directed to dispose of such application within three weeks thereafter by passing

necessary order. The order of status quo in respect of service of the applicant dated

07.01.2011 was to continue pending disposal of the appeal in question by the

respondents.

23

9. An application u/s 27 of the Air Force Act was preferred as per direction of the

Tribunal before the Ministry of Defence against the release order in question. The said

appeal was, however, disposed of by the respondent No. 1 vide order dt. 27.04.11 and

the applicant was informed that he was being struck off from the strength (SOS for

short) w.e.f. 09.05.11 (FN). His prayer for some time to approach the Tribunal for

appropriate reliefs was also refused by the Respondent Authorities.

Second Round

10. In such circumstances, the applicant had to prefer OA 05 of 2011 for the

second time before the Tribunal with a prayer for setting aside the impugned orders

dt. 27.04.11, 04.01.11 and the modified order dt. 12.05.11. The said OA was allowed

on contest on 30.06.2011.All the three orders impugned were set aside and the

matter was remanded back with a specific direction upon the Defence secretary,

Union of India, respondent No. 1 to dispose of the appeal dated 08.03.2011 filed by

the applicant afresh in terms of the order dated 01.03.2011 passed in OA 06 of 2010 by

passing a speaking order in the light of discussions made in the judgement passed in

OA 05/2011 preferably within a period of two months from the date of receipt of a

copy of the Judgment and order The Respondents were asked to allow the petitioner

to continue in his service in the meantime.

11. The applicant was permitted to join his duty w.e.f. 01.07.11 (FN) accordingly

and was also paid salaries and other allowances admissible to him for the months of

May and June 2011 in compliance with the aforementioned judgment and order passed

in OA 05 of 2011.

12. The Statutory Complaint dated 08.03.2011 u/s 27 of the Air Force Act, 1950,

was re-examined by the Govt. of India, Ministry of Defence and was disposed of vide

their order dated 9th August, 2011 with the finding that the authority is justified in

refusing to grant an extension for another term of four years since he is in permanent

Low Medical Category with 20% disability vide the Medical Board Proceedings dated

24th April, 2010 (Annexure-18). Accordingly the applicant was served with the release

order dated 16th August 2011 intimating him about his release from service w.e.f.

forenoon of 17th August 2011 (Annexure- 19).

Third Round :

Applicant’s contentions

24

13. Being aggrieved and dissatisfied with the aforementioned order impugned, the

applicant has preferred this OA being OA No. 09 of 2011 as the third round of

litigation.

14. The main grievance of the petitioner as ventilated in the petition is that he has

been arbitrarily and whimsically denied second extension for a term of four years. He

was diagnosed with TAKAYASUS ARTERITIS and placed in medical category known as

A4G2 (P) with 15-19% disability with effect from 02.08.2004 (annexure-1) which was

subsequently rounded up to 20% vide Medical Board Proceedings dated 06.08.2005. On

consideration of such medical status he was granted further extension for a term of 05

years more with effect from 09.01.2006 to 08.01.2011. According to him, even though

the disease was stable and there was no change in his clinical parameters and he was

declared to be placed in the same medical category specified as A4G2(P) with 20%

disability by the Medical Board proceedings dated 24.04.2010, his prayer for second

extension for a term of four years was rejected by the respondent authorities on the

plea of being placed in Permanent Low Medical Category.

15. It is also specifically pleaded by him that further extension has been refused to

him even without specifying his exact deficiencies in meeting the eligibility criteria for

grant of such extension for a period of further four years. That apart, the policy

decision adopted by the Central Govt. as communicated vide letter dated 03.01.2005

(Annexure-2) coupled with subsequently revised policy decision as communicated

under letter dated 07.11.2007 (Annexue-5), in fact, made him eligible to secure

further extension. The guidelines, as envisaged in clause 5.4.14 of the Guidelines

dated. 7.11.07 together with Appendix B of the Manual of Medical Examination and

Medical Board ( in short said Manual) published under the authority of Chief of Air

Staff (Annexure-8), have not strictly been followed by the authorities while

considering his prayer for further extension even though those policy guidelines as also

the policy decision were very much applicable to him. Further, the statutory

Authorities have also not considered his prayer made in statutory appeal dated. 8th

March 2011 in the light of observations made in the Tribunal’s order dated. 30.6.12 in

its proper perspective.

Respondents’ stance

16. The averments made in the petition have, however, been strongly controverted

by the respondents in their affidavit-in-opposition. It has been contended inter alia

therein that the applicant was always under low medical category for the last eight

years for the principal disability of TAKAYASUS ARTERITIS. His disability, in fact,

continued to remain and the percentage of disability awarded was 20% in the

25

permanent low medical category for the disability of TAKAYASUS ARTERITIS. Since the

applicant failed to fulfill the eligibility criteria of not being in SHAPE1 for grant of

further extension, he was refused such extension for another term of four years.

17. It is further contended therein that the Armed Forces Medical Service (in short

AFMS) is a Tri-Services organization wherein officers are first commissioned in AMC

under a common Army Instruction(in short AI) No. 75/78 and subsequently seconded

into Army, Navy and Air Force. That being so, the DGAFMS is the cadre controlling

authority and has been vested with delegated administrative power in respect of

medical personnel (annexure-R2). In such a situation, the rules and regulations laid

down under Defence Service Regulations ( in short DSR) and the policy letter issued by

the Director General Armed Forces Medical Service are squarely applicable to the

Medical Officers of the three Services. It is also contended that the rules and

regulations pertaining to medical category and fitness etc. are governed under a

common platform for AFMS officers, who by virtue of being in Tri-Service set up, are

liable to be transferred from one Service to the other based on organizational/service

requirement. The Medical Officers from each service of AFMS are governed by the

respective regulations of Army/Navy/Air Force for discipline purposes but

administrative issues like posting, continuation in service, the medical fitness criteria

etc. are dealt with uniformly. Since the applicant is governed under AI No. 75/78 and

amendments thereto, he cannot be granted extension inasmuch as AI No. 75/78 does

not permit a permanent low category officer to get such extension.

18. The medical categorization rules in Army are equally applicable to the same

class of officers performing same duties and there cannot be two different yardsticks

for the same disability. Further the AIR HQ letter on Human Resource Policy vide letter

dated 07 Nov. 2007 (Annexure-5) is applicable to AE Branch of Air Force and not for

AMC Officers. It has, therefore, been averred that a person with infirmity of recorded

disability cannot be considered to be medically fit. True, first extension was granted

to the applicant from 5 to 10 years in the year 2005 after introduction of new policy

vide letter dated. 03.01.05 inadvertently by mistake. Such mistake cannot be allowed

to continue any further. According to the respondents, since the applicant had been

placed in permanent low medical category of A4GP2 by the medical board with

disability of 20%, the same cannot be equated with SHAPE1-B of Army or to be fit for

particular duties equivalent to SHAPE1. The present application is, therefore, devoid

of any merit and as such the reliefs, as prayed for, cannot be granted to him. The

petition is liable to be dismissed accordingly.

26

19. After a full-fledged hearing before the regular Division Bench of AFT, Guwahati

Regional Bench, two different judgments in the present case were pronounced and in

view of divergence of opinion, the following points were formulated as under :-

1) Whether while granting second extension of service to the appellant,

the policy decision appearing in Air HQ/C-98807/4/PO-5 dated

7.11.2007 will be applicable or whether the earlier policy decision

issued by MOD/DGAFMS dated 3.1.2005 will still hold the field ?

2) Whether the Appendix B drawn under Para 5.4.14 (Annexure-A9) of the

Manual of Medical Examination, having disclosed that the Medical

Category A4G2 is equivalent to SHAPE-1(B) of the Army, appellant can

be denied extension contending that the said categorization is not

applicable to the appellant ?

3) Whether the impugned order dated 12.8.2011 contained in the order

dated 9.8.2011 dismissing the statutory appeal of the appellant is

sustainable in law?

20. Argument on behalf of the applicant.

Appearing on behalf of the applicant, Dr.G.Lal, learned Advocate has

referred to Columns 21,22 and 24 of the Medical Board Proceedings dated 02.08.2004

and submitted that as per Air Force norms the applicant was medically categorized as

A4G2(P) with 15-19 % disability and as per medical opinion of the Board there was no

specific restriction regarding employment as mentioned in column 24 of the said

proceedings. Similarly, in the changed format of the Medial Board proceedings in

column 21 it is recorded that he had no restriction for employment and his disability

was rounded up to 20% .He was categorized in the same medical category i.e. A4G2

(P) accordingly. There was no adverse remark against him at any point of time

throughout his service career. According to him “Employment Restriction” is the main

criterion on which a medical category is based on. The medical categories i.e. SHAPE 2

and below in Army and A4G3 and below in Air Force have some kind of employability

restriction in its mandatory nature as explained in Annexure-8.

21. Dr.Lal has next argued in support of his petition that as per revised criteria in

the Policy letter dated 03.02.2005 (Annexdure-2), the acceptable medical category is

SHAPE 1 for grant of extension to SSC officers. Such revised category came into force

with the approval of the DGAFMS, Respondent No.2. At this stage, he makes an

endeavor to throw light on the composition and organization of the Armed Forces

Medical Services to highlight the hierarchical position of the AFMS. It is submitted by

him that the senior most in the medical services of the Armed Forces is designated as

Director General of Armed Forces Medical Services and that his orders are applicable

27

to all three medical services of the Army, Navy and Air Force. Similarly, each of the

Medical Services is headed by the Director General of Medical Services (DGMS) who is

the Medical Advisor of the Chief of the Staff of their respective service and responsible

for the day to day administration and proper functioning of the service under them.

Whereas, the Director General of Armed Forces Medial Services as Head of the Armed

Forces Medical Service is responsible to the Govt. and is also the Medical Adviser to

the Ministry of Defence and functions directly under the Ministry of Defence. He has

thus outlined inter service organization of Armed Forces Medical Service for

appreciation of the service requirement of each of the medical Services of the Army,

Navy and Air Force of AFMS by the Bench in its proper perspective.

22. It is further argued by him that for the revised category as laid under the

Defence Ministry communication dated 03.01.2005, which contains under Clause

1(d)(iii) that Officers in Permanent Low Medical Category is not to be granted

extension does not indeed include medical category A4G2(P) as Permanent Low

Medical category. As per ‘personal occurrence Report’ of the applicant he was granted

first extension when he was categorized as A4G2 (P). According to him, in view of the

partial modification of the provisions contained in AI 75/78, service of SSC Officers has

been made extendable up to 14 years subject to their fulfilling all laid down eligibility

criteria. It is, therefore, submitted by him that the applicant’s prayer for second

extension being duly recommended by the Commanding Officer as well as Principal

Medical Officers because of his placement in medical category as A4G2 with 20%

disability ought to have been accepted. As per Annexure-9 which introduced SHAPE

system classifying functional capacity mainly relates to G factor of Air Force Medical

Category. It also speaks about equation of Medical categories of Army, Navy and Air

Force. In column 1(b) of Appendix B of Air Force Medical Classification A4G2 has been

shown as equivalent to SHAPE1B in the Army. He has also drawn this Court’s attention

to Para 3 of the said table of Equation of Medical Categories of Army, Navy and Air

Force which provides that SHAPE 1 has been redefined as SHAPE 1A which will be

equivalent to A1/G1 and SHAPE 1B which will be equivalent to A2 or A3/G2.

23. It is, therefore, contended by Dr.Lal that since the respondents have not

denied applicability of the said manual to the applicant in the affidavit- in -opposition,

the Court is to accept such position that the applicant’s medical category being A4G2

can be equated with SHAPE 1B of the Army and he cannot be downgraded to SHAPE 2

for which one can be placed in Low Medical Category. It is also forcefully argued by

him that by no stretch of imagination it can be said that DGAFMS is not in the know of

the medical category SHAPE1B which is being looked upon as equivalent to Air Force

Medical category A4G2. According to him, the concept of division of SHAPE as per Para

3 of the Appendix-B of the said Manual published under the authority of Chief of the

28

Air Staff. Existence of such manual has not been disputed by the respondents at any

point of time. There is nothing on record to indicate that SHAPE1B can be equated to

SHAPE 2 being permanently Low Medial Category. It is strenuously argued by him that

SHAPE1B with certain amount of disability cannot be downgraded to SHAPE 2 which is

undoubtedly Low Medical Category having necessary employment restriction.

According to him, it is an admitted position that the applicant was never downgraded

to SHAPE 2 by the Medical Board in their medical proceedings.

24. Dr.Lal proceeds to argue further that even though SHAPE 1 has been

redefined w.e..f 01.12.2003 vide Para 3 of Annexure-9 and the revised criteria for

extension to SSC Officer (Annexure-2) is dated 02.01.2005 being issued after the gap of

more than two years, there is no stipulation in Annexure-2, which has been relied

upon by the Respondents, to the effect that SSC Officers having medical category

A4G4(P) with 20% disability which is equivalent to SHAPE1B shall not be eligible for

extension of their tenure. On the other hand, the schedule of information (Annexure-

21) sought for under Para 1(a) of I.T. query substantiates the petitioner’s contention

that SHAPE2 is a Low Medical Category and it would necessarily imply employability

restriction. It is, therefore, argued by him that, in fact, this is the Low Medical

Category contemplated for not granting extension of service to the SSC Officers vide

sub Para 3 (d) of para 1 of revised criteria dated 03.01.2005 (Annexure-2). And as per

Annexure 9 SHAPE 2 of Army is equivalent to A4G3 of Air Force vide Para 1(c) of

Annexure -9. In such view of the matter Air Headquarters policy letter is very much

applicable to the case of the applicant and denial thereof will be highly arbitrary and

discriminatory and it would jeopardize the service interest of the applicant who has all

along been working in the Medical Service of the Air Force. According to him, even

though the respondents have not denied the applicability of the said Manual punished

under the authority of Chief of Air Staff, they have sought to set up a plea of non

applicability of the guidelines and instructions issued by the Air Headquarters with the

sole purpose of restricting the applicant’s chance for further extension of service.

Such stand of the respondents appears to be self contradictory. Since both the

guidelines and instructions issued by the Air Headquarters as also the said Manual were

published under the authority of Chief of the Air Staff. He, therefore, urges this

Bench to opine that Air Headquarters letter (Annexure-5) is applicable to all the Air

Force personnel including members of the Air Force Medical Service.

25. Dr.Lal has, thereafter, taken this Bench through Paras 14.15,16 and 17 of the

Judgment and Order dated 30.06.2011 passed in OA No.05/2011 and argued that

certain questions of law have been settled and decided therein. Therefore, there is no

scope for the respondents to re-agitate those questions of law already settled by the

Hon’ble Members of the Division Bench per curium. It is submitted by him that the

29

policy decision of the Central Govt. dated 02.11.2007 and Appendix- B under clause

5.4.14 of the said Manual as also the guidelines of the Air Headquarters dated

07.11.2007 were held to be applicable to the applicant. He further argued that since

the applicant was able to make out a case of interference with the impugned order in

OA 05 of 2011 the same was set aside and quashed with a direction to the respondents

to dispose of the appeal dated 08.03.2005 filed by the applicant afresh in terms of the

order dated 01.03.2011 passed in OA 06/2010 keeping in mind the directions made in

the Judgment and order dated 30.06.2011. He has also relied upon the observation of

the Division Bench that as none of the parties challenged the Judgment and Order

dated 30.06.2011 it has attained finality. In support of his aforesaid contention Dr.Lal

has referred to as many as seven rulings of the Hon’ble Apex Court reported in (1)

(1976) 4 SCC 124(Manganese Ore (India)Ltd. Appellant Vs The Regional Assistant

Commissioner of Sales Tax,J abalpur Respondents ; (2) (2011)8 SCC 161( Indian

Council for Enviro-Legal Action petitioner Vs. Union of India and others respondents ;

(3) (2002)4 SCC 638 ; (4) (2011)12 SCC 615( Fida Husain and others appellants Vs.

Moradabad Development Authority and another respondents ; (5) (2011) 2 SCC 601 (

Medley Pharmaceuticals Limited appellant Vs. Commissioner of Central Excise and

Customs, Deman , respondents; (6) (2002)4 SCC 388(Rupa Ashok Hura petitioner

Vs.Ashok Hurra and another Respondents and (7) (2002) 4 SCC 234( Chandra Prakash

and others petitioner Vs. State of UP and another respondents. Relying upon those

citations it is further argued by him that a decision on the dispute between the parties

decided vide Paras 13-17 of the Judgment and order dated 30.6.2011 would bind the

Court in subsequent cases and its earlier decision should be followed as a binding

precedent.

26. In the concluding part it is vehemently argued by Dr. Lal that even though the

applicant is now not in service, it is absolutely within the discretion of the Court of

law to do dispensation of justice to the aggrieved party who is deprived of his

legal/fundamental right arbitrarily and illegally. According to him, to prevent

miscarriage of justice to the aggrieved party because of abuse of process of law by the

respondents, the Court of law cannot be a mute spectator. Rather the Court would

readily respond to the cause of justice and protect the right and interest of the

aggrieved party. It is further submitted by him that the applicant was, in fact, thrown

out from the service within a few minutes after disposal of the statutory complaint, on

17.8.2011 at around 10.30 AM when he had reported for his duties on that day. He was

even denied any reasonable opportunity to approach the Tribunal. It is, therefore,

finally submitted by him that this Bench is to offer its opinion exercising its discretion

judiciously in consonance with the canon of natural justice. According to him, the

order impugned is liable to be set aside accordingly.

30

27. Per Contra

It is argued by Mr,C.Boruah, learned CGSC at the outset that the applicant is

admittedly no longer in service and he has accordingly described himself in the Cause

Title of the petition as Ex Sq. Leader. It is ,therefore, contended by him that in view

of such discontinuance in the medical service of the Armed Forces his case for

further extension in such service is neither warranted nor legally permitted. Fortified

with the rulings reported in (2009) 16 SCC 385 (Rajiv Kumar and others appellants Vs.

Director of Health Services, Kerala and ors. Respondents. and (2006) 5 SCC 153

(D.C.Agarwal (dead) by Lrs. Appellants Vs. State Bank of India and another,

Respondents), it is forcefully argued by him that no legal is vested in the employee to

demand an extension and further that on the expiry of a fixed tenure appointment,

there would be no relationship of master and servant thereafter until the relationship

is continued by fresh letter of appointment or by intervention of any Court’s order.

28. Further, by referring to the applicant’s prayer dated 17.06.2010 wherein he

has expressed his willingness to serve another term and exercised his option for

extension of service (Annexure-7), it is submitted by Mr.Boruah that the applicant

himself has admitted unequivocally therein that he is in Low Medical Category. It is,

therefore, vehemently argued by him that in view of such admission he is unfit for

further extension in terms of Clause 1(d)(iii) of the policy letter dated 03.01.2005

issued by the office of DGFMS (Annexure-2). According to him, the instant application

can, therefore, be dismissed solely on these two grounds. He, thereafter, proceeds

to argue that the respondent No.2 is quite justified in rejecting the prayer for

extension inasmuch as it was not legally tenable in view of applicant’s utter failure to

satisfy the revised criteria including medial category SHAPE1 as laid down in the

revised criteria (Amnexue-2). In support of his contention he has referred to the

decision (unreported) of the Principal Bench of Armed Forces Tribunal, New Delhi

dated March 10, 2011 in the case of Major Vivakananda Choudhury, petitioner Vs.

Union of India, respondents (in OA 09 of 2011) wherein it is held that the petitioner

being a Short Service Commissioned Officer, he is entitled to get further extension

subject to his being medically in SHAPE1. Therefore, the Hon’ble Principal Bench was

pleased to opine that there is no question of granting extension to the petitioner as

per his service condition. Since the present petitioner and Maj Vivakananda Choudhury

petitioner in the case before the Hon’ble Principal Bench is similarly situated,

applying the ratio of the said decision the applicant’s prayer for further extension

should also be dismissed.

29. He has further drawn the attention of this Bench to Para 4 of AI 75/78 to

substantiate his case that the petitioner is subjected to Army Act 1950 and DGAFMS is

the authority to decide the question of further extension. In such a view of the

31

matter, the DGAFMS being the cadre controlling authority is vested with the power of

regulating the service conditions of all the medical officers of the AFMS while the

Director General Medial Service (Air) is to look after the day to day routine affairs as

also the disciplinary aspects of the officers of Medical Services (Air) as per Regulations

for the Medical Services of the Armed Forces. It is further pointed out by him that in

the relevant column of the Medical Board Proceedings the Doctor has opined that the

applicant continued to remain in Low Medical Category. According to him, despite

such opinion that applicant signed the Board Proceedings without challenging the

legality/validity of the said medical opinion. He is, therefore, of the view that the

order impugned does not call for any interference by the Tribunal.

30. Discussion/Analysis.

For the sake of convenience in discussion and brevity in treatment, all the

three points as referred to and quoted in Para 19 are taken up together for

consideration and opinion since they are interlinked with each other.

Anxious consideration has been paid to rival submissions advanced by both

sides with reference to plethora of documents (annexure 1 to 21 and R1 to R7)

furnished by the parties coupled with other relevant material facts and circumstances

on record. Medical Broad Proceedings in original was also perused by this Bench on its

production on behalf of the respondents. The original case records pertaining to

disposal of statutory complaint, were however, not produced, although it was called

for.

31. Admittedly, the petitioner was granted Short Service Commission (SSC for

short) in Indian Air Force in the rank of Flight Lieutenant in Medical Branch initially for

a period of five years. It appears that on consideration of satisfactory service rendered

by him, as also medical standard assessed by the appropriate Medical Board, he was

granted 1st extension of service for a further period of five years vide order dated

09.01.2006. Accordingly, he continued in the Medical Branch of Air Force till

09.11.2011, being declared fit by the Medical Board as per yardstick formulated by

DGAFMS. However, in the meantime, a new policy for renewal of extended service in

case of S.S.C Officers of Armed Forces Medical Services ( in short AFMS) from ten years

to fourteen years. vide letter dated 02.11.2007( annexure-4). The applicant

considered himself to be eligible for further extension of four years since it is an

admitted position that while he was in medical category A4G2P with 20% disability, he

was granted extension for another five years with effect from 09/01.2006. As his

medical category remained the same, he applied for another extension for a period of

four years as per revised policy of the Govt.

32

32. Mr.Baruah’s argument that the applicant’s prayer for further extension does

not deserve any consideration because of his discontinuance in the medical service of

the Air Force is of no avail for the simple reason that the Hon’ble Apex Court in the

decision cited on behalf of the respondents has ruled that even if such an employee is

no longer in service during pendency of the proceedings he can be protected by

issuance of fresh letter of appointment by the authorities or by intervention of Court’s

order. On the question of employees’ legal right to claim extension it can be said that

it is to be judged on the facts and circumstances as would be unfolded in a particular

case. The petitioner’s admission in his prayer for extension is of no consequence since

the claim of extension is to be considered in terms of the rules and regulation as

prescribed by the Govt. and other appropriate authorities. In this case it may be

pointed out that even though in the said application for further extension, the

applicant has sought for such extension as per provision of AIR Headquarters HRD

issued by AIR Headquarters C 98804/04/05 dated 7.11.2007, the respondents have

never controverted such statements. At any rate, the applicant’s medical category is

to be determined by the medical opinion of the Board and his purported admission

does not carry any weight in this regard.

33. Mr.Baruah, learned CGSC has sought to rely upon an unreported decision of

the Hon’ble Principle Bench of the Tribunal in the case of Vivekananda Choudhury

(supra). The aforesaid decision has been perused by this Bench. It appears that the

said ruling is easily distinguishable since the facts and circumstances of the case are

not identical to the present case. The applicant in the present case has been placed in

the medical category A4G2 which is equivalent to SHAPE1B in Army. The petitioner in

OA 09/2011 was placed in A4G3 i.e. P2 having employment restriction and was also on

medication as submitted on behalf of the applicant. In the instant case, it may be

pointed out that, the applicant is not on medication and also having no employment

restriction. It is reiterated on behalf of the applicant that any person having no

employment restriction can never be placed in Low Medical Category because Low

Medical Category has much employment restriction. Having considered the submissions

of both sides, it appears that the Judgment of the Principal Bench as cited by

Mr.Baruah is neither relevant nor applicable to the facts and circumstances of the

present case.

34. The applicant’s claim for 2nd extension for a term of four years is based on

Defence Ministry’s policy letter dated. 02.11.07 (annxure-4) which is set out as under

:-

“ No. 4(3)/2007/D(Medical)

Govt. of India, Ministry of

Defence New Delhi, the 2nd

33

November 2007

Subject : Extension of tenure of short Service Commissioned Officers of

the Armed Forces Medial Services (AFMS) from 10 years to 14

years

Sir,

In partial modification of the provision contained in AI 75/78,

AI 15/79 and AI 17/96 as amended, I am directed to convey the

sanction of the President for extension of total tenure of Short

Service commission (SSC) in respect of AMC, AD Corps and MNS

from 10 years to 14 years in the following manner :-

Source of Candidates

Initial period

First extension

Second extension

Total period of service

AMC (From AFMC)

07 07 NA 14

AMC (From Civil)

05 05 04 14

MNS (From Schools of Nursing)

05 05 04 14

MNS (From Civil)

05 05 04 14

AD Corps (From Civil)

05 05 04 14

2. Extension of service upto 14 years will also be applicable to serving Short

Service Commissioned Officers (SSCOs) including those officers currently on

terminal leave, subject to their fulfilling all the laid down eligibility

criteria.

3. The SSC Officers granted extension shall be eligible for time scale

promotions as applicable to Permanent Commissioned (PC) officers of

respective cadre/service i.e. AMC, AMC (NT), AD Corps and MNS to the rank

of Capt. Major and Lt. Col (& equivalent. ) (Emphasis supplied)

4. AMC/SSC officers will include …..

5. These orders will come into effect from the date of issue of the letter.

6. Amendment to the relevant Army Instructions will be issued in due course.

7. This issues with the concurrence of Min of Def (Fin) vide their ID No. 716/PA

dated 2.11.2007.

Yours faithfully,

Sd/ R.c.Raturi

Dy. Secretary to Govt. of India:”

34

35. It is quite evident from the underlined portion of the caption ‘subject’ itself as

also the relevant Sl. No. 1 & 2 of the afore-quoted communication of Ministry of

Defence which was communicated to all the Chiefs of three wings of the Armed Forces

and also the Director General, Armed Forces Medical Service, the cadre controlling

authority of the applicant that such extension of service up to 14 years would be

equally applicable to Short Service Commissioned Officers (SSCOs) of the Armed

Forces Medical Services which consist of the Medical Services of the Army, Navy and

Air Force. In partial modification of provisions contained in AI 75/78, AI 15/79 and AI

17/96 such extension of tenure from 10 years to 14 years was sanctioned subject to

their fulfilling all the laid down eligibility criteria. Further, SSC officers granted

extension shall be eligible for time scale promotions as applicable to permanent

commissioned (PC) officers of respective cadre/service i.e. AMC, AMC(NT) etc. to be

rank of Capt. Major and Lt. Col ( & equivalent). The first term of the applicant was

due to expire on 8.1.12. He was, therefore, entitled to get the benefit of the revised

policy of Govt. of India, as a member of the Armed forces Medical service (for short

AFMAS) subject to his satisfying the laid down eligibility criteria since such revision of

Govt. policy came into effect on and from 2.11.2007 i.e. the date of issuance of the

letter. The respondents’ plea of non-applicability of this changed policy in case of

applicant is not backed by any sufficiently strong cogent ground. Therefore, the

applicant’s right to be considered for further extension of four years on the strength

of the afore-quoted Govt. order cannot be denied. Respondents’ objection on that

score appears to be devoid of any merit.

36. On the question of fulfillment of eligibility criteria norms, the revised criteria

as specified by the office of DGAFMS in the circular dated. 23.01.2005 (Annexure-2) is

now to be examined meticulously for ascertainment of the applicant’s eligibility for

being entitled to second extension as per revised criteria. In this context, it would be

apt to reproduce the revised criteria as under :-

“ OFFICE OF THE DGAFMS

MINISTRY OF DEFENCE

DG-IB(I), ‘M’ BLOCK

NEW DELHI-110 001.

03 Jan 2005

GRANT OF EXTENSION TO SSC OFFICERS

35

1. The present criteria for grant of extension of SSC officers is governed by item

XVII of MSAC meeting held on 25 Apr 1990. with a view to improve the screening

process to retain better officers the present criteria is amended as follows :-

PRESENT CRITERIA REVISED CRITERIA

(a) Officers should have minimum Minimum average of all available

Average of at least 6 in the latest ACRs should be 6. However, in star

Available ACRs qualities rating should be more than 05. Minimum

02 ACRs required.

(b) No adverse remarks in any of the ACR No change

(c) No drop in performance in the latest No change

ACR

(d) should be in acceptable medical

Category except in ‘S’ factor

(should be SI)

(i) Medical category

SHAPE-1

(ii) in case of war casualties Low Medical

category officers will be granted extension

but should be In S-1 Medical category.

(iii)Officers in permanent low Medical

category officers will not be granted

extension.

MOBC COURSE

(I) Should be graded “A’,’B’ or ‘C’ in

MOBC

(II) Officers failed in MOBC course will

not be considered for extension.

(iii) If not done MOBC at the Initial

extension, officer will not be granted

extension. “

2. This has approval of the DGAFMS

Sd/-

(Indulekha Halder)

Dir AFMS(P) for DGAFMS.”

37. These revised criteria were sent to the Director General of three Medical

Services (Army Navy and Air Force). A close scrutiny of the afore-quoted criteria

36

reveals that the criteria evolved in 1990 was amended “with a view to improve the

screening process to retain better officers”. Accordingly, the acceptable medical

category for extension was specified as SHAPE1 while the officers in permanent low

medical category will not be granted extension. In such view of the matter, the core

issue requiring adjudication is whether the applicant is qualified in terms of clause

(1)(d)(i) or disqualified under 1(d)(iii) of the said circular (Annex-2).

38. The aforementioned issue which appears to be the crux of the matter is to be

adjudicated in the light of the opinion of the Medical Board read with medical

categorization through SHAPE system as also the concept of equivalence in the revised

acceptable medical standard of SSC officers envisaged in Annexure-2,4,5,8 and 9 vis-

à-vis their functional employability in respect of medical duties assigned to them.

39. At the outset, reference may be made to para 5.4.1 of Chapter-4 of Manual of

Medical Examination and Medical Boards (4th Edn. September 2010) (in short the said

Manual) wherein it is emphasized that “Medical Boards and categorization must be

done on time and expeditiously with the singular aim of returning an individual to his

work in the minimum of time and with minimum dislocation from his duties/duty

station.”

40. It is further clarified in para 5.4.6 of the said Manual that “while awarding

medical category to AF Medical, Dental and Nursing officers, equivalent medical

category of Army (SHAPE) should also be indicated.” In this context it would be

pertinent to refer to Para 3 of the ‘ FORE-WORD’ of the said Manual which may throw

light on the main objective of formulation of the said Manual.

“ 3. The current edition has been formulated keeping in mind the

unique service requirements of an air warrior in times of war and

peace, the need to harmonize the health status of an air-warrior with

the demands of his/her profession………….” (emphasis supplied),

41. It is, therefore, abundantly clear from the preface of the said Manual itself

that the object of formulation of the said manual is only to meet the unique service

requirements of Air Force officers which include AMC Officers who have been

seconded to Air Force and has been working as a Medical Officer of the Air Force. In

such view of the matter the concept of equivalence of medical category of Army, Air

force and Navy has been introduced w.e.f. 2003 to meet respective service

requirement of each of the medical service. The ends of justice would not be

adequately met if we oversimplify the matter by simply brushing aside the said Manual

by merely saying without any rhyme or reason that the relevant provisions of the said

Manual have no application to the Medical Officers of the Air Force who have been

37

working there being seconded from AMC. The service requirement of the Air Force

Medical Services which is one of the constituents of the Armed Forces Medical Services

cannot thus be ignored on any pretext whatsoever. In course of argument Mr.Baruah,

learned counsel for the respondents has, however, in his usual fairness admitted that

the said Manual has limited application to the case of the applicant only in respect of

awarding medical category to AF Medical, Dental and Nursing Officers in terms of

equivalence of Army (SHAPE) and rest of the provisions of the said Manual cannot be

applied to the applicant’s case. To my mind, such piecemeal acceptance of the

relevant provisions of the said Manual is neither plausible nor acceptable in the facts

and circumstances as unfounded and discussed above in this case. I am, therefore, of

the considered opinion that the said Manual is wholly applicable for arriving at a just

decision in the instant case.

42. As per para 5.4.10 of the said Manual, details of medical categories and

employment restriction of officers, cadets and Airmen aircrew, Airmen and NCs(E)

have been specified in Appendix- A wherefrom the relevant extracts pertaining to the

exact medical category (column-b), functional capacity (column-c) and Employability

(column-d) are reproduced herein below :-

“ APPENDIX-A

MEDICAL CATEGORIES OFFICERS,CADETS AND AIRMEN AIRCREW

Sl. No. Medical

Category

Functional Capacity Employability

(a) (b) (c) (d)

1. A1 -- --

2. A2 - -

3. A3 - -

4. A4 Functional capacity

impaired to the extent

that it interferes with

flying duties as an

aircrew, but does not

interferes with flying

as passengers. Officers

of ground duties

branches possess full

functional capacity or

impaired functional

capacity not

interfering with flying

as a passenger.

Unfit to fly as an aircrew. Fit to fly

as a passenger only.

38

5 At - -

6 Ap - -

7 G1 - -

8 G2 Physical capacity and

stamina slightly less

than GI. Capable of

enduring physical and

mental stress at a

standard slightly lower

than GI. Free from

active disease, may

have minor defects

which do not restrict

employment/ or result

in functional

restriction.

Fit for all ground duties, but

slightly below GI standard, in any

part of the world. In the case of

cadets, officers undergoing

training, ACs, U/T and airmen

undergoing training, fitness to

continue training to be clearly

specified by the board.

9 G3 - -

10 G4 - -

11 Gt - -

12 Gp - -

Explanatory Notes

Note 1. Each Officers and Airmen Aircrew shall be awarded appropriate Aerial (A) and

Ground (G) category. As a rough guide AI/GI means full medical category with fitness

to serve in any part of the world. A2/G2 would be appropriate for cases with mild

disease or disability where there is minimal limitation of function and only requires

periodic observation. Such persons are generally fit to perform duties in any part of

the world. As co pilot only. Similarly, G3 would imply moderate disability fit for

duties not involving severe stress. A4 (for aircrew)/G4/A4G4 would imply severe

disability. Fit for sedentary duties only.”

43. It is mandated accordingly in Note-1 of the explanatory notes thereunder that

“each officers and airmen aircrew shall be awarded appropriate Aerial (A) and Ground

(G) category”. Now adverting to the table under Appendix A it appears that as per the

policy in the Air Force , Medical category of the Officers are to be denoted by A and G

category and not as SHAPE category as is done in the Army. “A” stand for

employability condition in Air and “G” stands for employability in ground duty. The

applicant has medically been categorized as A4G2 which is stated to be equivalent to

SHAPE1B

39

44. It would also be contextually relevant and appropriate to quote Para 5.4.14.

of the said manual as under :

“ 5.4.14. Whenever Air Force officers are reviewed or opined upon by a AMC

officer, other than Air Force Medical Officers, the medical category given will be in

SHAPE factor. Medical boards on these officers should take into consideration the

guidelines given by the AMC specialist but should independently decide about the Air

Category, which need not necessarily be based on the recommendations of the

Army/Navy specialist, and award an approprite4 Air Force medical category. For

guidance of Air Force Medical Officers, the equivalent of Army and Navy medial

categories are given in Appendix B to this chapter. These guidelines are not sacrosanct

and accorded category should match the employability restrictions………………..”.

45 Appendix B referred to in the aforequoted para 5.4.14 reads as under :-

“ APPENDIX –B

1. ‘SHAPE’ system classifying functional capacity mainly relates to the G

factor of air Force Medical category. Therefore, as a general guide, the

following are to be considered equivalent in the system of medical

categorization in Army, Navy and Air Force.” ( emphasis supplied )

Air Force Medical Classifications and their Equivalent in Army/Navy

(Aircrew/Ground duty Officers and PBOR)

Air Force medical classification and their equivalent in Army/Navy are as

under:

AIR FORCE ARMY NAVY

Ground Aerial

(a) A4G1 A1G1 SHAPE-1A S1A1/S3A1

(b) A4G2 A2/A3G2 SHAPE-1B S2A1/S3A1

© A4G3 SHAPE-2 S3A2

(d) A4G4 SHAPE-3 S3A3

(e) AtGt SHAPE-4 S4A4

ApGp SHAPE-5 S5A5

2. However, while converting medical category recommended on the basis

of SHAPE classification to Air Force equivalent, Medical boards are to carefully

evaluate the disabilities in terms of Appendix A of this chapter and provisions

40

of Section VI. The aerial category should be decided independent of advice

rendered by specialist medical officer.

3. From 01 Dec 2003, SHAPE-1 HAS BEEN RE-DEFINED AS shape-1A

which will be equivalent to A1/G1 and Shape-1B which will be equivalent to

A2 or A3/G2. ( emphasis supplied)”

46. Keeping in view Appendix- A under Para 5.4.10 together with Appendix B

under Para 5.4.14 of the said Manual the process of medical categorization / re-

categorization of the applicant by the Medical Board in their proceedings is to be

scrutinized meticulously. It is found at Annexure-1 that his medical category was

shown as A4G3 (T24) w.e.f. 20 Feb 2004 with 5 to 19 % disability. It was, therefore,

opined by the classified specialist (Medicine and Rheumatology) on 3.0.7.2004 that it

was a case of Takayasus Arteritis and medical category was A4G2 (P) with the

recommendation for three monthly review by Rheumatologist. There is, however,

nothing on record to indicate that 3 monthly review was undertaken by a

Rheumatologist. At any rate, the applicant was recommended to continue in A4G2 (P)

with an advice of 3 monthly review. Further Lt. Col. R.Arunachalan, the classified

specialist (Medicine & Rheumatology) also opined that the applicant may be granted

extension of service in existing category vide recommendation dated. 4.8.2005

(Annexure-1A). Said recommendation was approved by the competent authority on

21.11.06 (Annexure-1B). By referring to column No. 24 of the part I of the Medical

Board proceedings (Annexure 1) as also Column No.21 of the revised format of the

Medical Board proceedings (Annexure 1B), it has been rightly been pointed out by

Dr.Lal that the Medical Board have categorically recorded its medical opinion on 2nd

August and 1st Nov.2006 respectively that that there is no specific restriction

regarding employment.

47. Pausing for a moment, it can, therefore, safely be concluded that the first

extension was given to the applicant after due consideration of the recommendation

made by the Medical Board properly constituted by the DGAFMS and it is now

preposterous to suggest before the Bench, after the successful completion of the first

tenure of extension by the applicant as also after the expiry of long five years, in

connection with a judicial proceedings that the grant of extension in favour of the

applicant was a mere inadvertent omission on the part of the competent authority. It

is also significant to note that no whisper was ever made within the four corners of

the affidavit- in- opposition as to at what point of time such inadvertent omission was

detected by whom and further what remedial measures were taken to rectify such a

serious error of judgment in their decision. Was there any lack of transparency in the

decision making process? All such pertinent questions remain unanswered. In the

41

absence of all these relevant particulars, it can easily be inferred that such plea of

mistake has been set up at a belated stage to resist the applicant’s claim of 2nd

extension which is founded on similar acceptable medical category and also on

fulfillment of all other criteria entitling him to such extension. In this connection, it is

worth mentioning that Dr.Lal has invited the attention of the Bench to para 16 of the

Judgment dated 17.6.2011 passed by the Division Bench of the Tribunal (Annexure 13)

wherein it is observed : “the contention that service was erroneously extended appear

to be an afterthought”. Aforementioned observation of the Division Bench thus lends

support to such inference of the Bench on this score.

48. That apart, the applicant’s successful completion of his extended tenure leads

the Bench to conclude that the Medical Board was completely justified in

recommending first extension to the applicant. In fact, the applicant discharged his

duties and responsibilities as a medical officer to IAF efficiently to the entire

satisfaction of concerned authorities during the tenure of his first extension so granted

in his favour by the competent authority. This Bench is, therefore, of the considered

view that, it was neither a bonafide mistake nor an inadvertent omission as pleaded by

the respondents now. Rather, it was a well considered judicious decision on the part

of the respondent authorities based on sound recommendation of the Medical Board.

He was granted first extension for tenure of five years accordingly. In that view of the

matter the applicant cannot be subjected to any discrimination now while considering

his prayer for second extension on the same set of facts and circumstances on any

pretext whatsoever since the Medical Board proceedings reveal that the applicant

continued to remain in the same medical category of A4G2(P) with 20% disability on

20.04.2010 vide Annexure- R5. His medical condition, therefore, remained stable and

there was no deterioration since last examination by the Medical Board on 10.08.2004.

49. Against the background of such factual scenario specially in respect of similar

medical categorization in the year 2010 on the eve of his prayer for second extension,

it can further be concluded that the disease of Takayasus Arteritis had no adverse

impact on the medical service required to be rendered by the applicant. He was

granted first extension of service on 09.01.06 and the same consideration ought to

have played a vital role when the question of 2nd extension in similar circumstances

arose, as there being no material change in his medical category for all these years. It

was within the acceptable medical norms meant for the AIR Force Medical Service.

The competent authority should have granted extension for a period of four years

since the applicant also fulfilled all other eligibility criteria including discharge of his

duties as a Medical Officer of the Air Force satisfactorily. The purported low medical

category for having 20% disability because of the disease of Takayasus Arteritis cannot

be taken into account as convincing ground for refusing second extension whenever

42

there was not even a minor variation in the ground level situation pertaining to the

applicant’s medical category which conforms to the medical standard as per table of

equivalence of medical categories of Army, Navy and Air Force shown at Appendix –B

of the said manual (Annexure-9).

50. Unfortunately, the respondent No. 2 while disposing of the statutory complaint

vide order dated. 11.08.2012 failed to appreciate the true scope and spirit of para

5.4.14 together with Appendix B of the said Manual already considered and relied upon

by the Division Bench of the Tribunal in its earlier judgment and order dated

30.06.2011 in OA 5 of 2011 (Annexure-13). This bench feels constrained to opine that

the respondent No 1 has not taken into consideration the relevant observations made

by the Tribunal in the aforementioned judgment while refusing to grant further

extension. As a matter of fact, the order impugned (Anenxure-18) does not reflect any

deliberation throwing light on the observations made by the Division Bench of the

Tribunal. Even keeping in view Mr,Baruah’s argument that the respondent No.2 is free

to take his own decision independently irrespective of Tribunal’s observations touching

the merit of the case, it can be said that the judicial propriety demands and dictates

that the Respondent No.1 in his quasi judicial capacity should at least take into

consideration the discussions made in the body of the judgment of the Tribunal. In

fact, the order impugned itself has maintained a sturdy silence in this regard. It is to

be borne in mind that the Tribunal in its earlier Judgment dated 30.06.2011 clearly

spells out the infirmities of the earlier orders rejecting applicant’s prayer for further

extension by holding inter alia that the prayer in question was rejected mechanically

without any application of mind. Accordingly, the impugned orders dated 27.04.2011

and 04.01.2011, modified order dated 12.05.2011 and all consequential orders were

set aside and quashed with a specific direction to objectively consider the applicant’s

case for extension up to 14 years and further to pass a speaking order. This Bench is

afraid, the respondents again failed to avoid such shortcomings in the order impugned

(Annexure-18) wherefrom it is evident ex facie that there is no iota of discussions

which would tend to show that respondent No. 1, who was specially directed by the

Division Bench of the Tribunal at Para 17 of page 17 of the Judgment (Annexure -13),

has at least taken note of the observation / discussion made in the body of the said

Judgment, not to speak of consideration of the same therein. It is also not clear to

the Bench from the communication dated 12.08.2011 (Annexsure-18) quoting the

extracts of the impugned order as to whether the statutory complaint of the applicant

was disposed of by the Respondent No.1. Such communication was, however, made by

the Joint Director AFMS (HR) for DGAFMS. Even though the Division Bench in their

Judgment made it clear that “ It shall be the responsibility of the respondent No.1

himself to dispose of the appeal as directed……..” There is nothing on record to

indicate that the Respondent No.1 himself passed the order impugned by making

43

proper application of mind and such rejection of the prayer was not made

mechanically as was done on earlier occasion as observed by the Division Bench in the

aforementioned Judgment.

51. In this context several judgments of the Hon’ble Apex Court cited by Dr.Lal

are required to be considered since relying upon those rulings Dr.Lal has argued by

referring to para 13 to 17 of the Judgment dated 13.6.2011 (Aneexue-13) that those

findings of the Division Bench of the Tribunal are binding upon the Hon’ble Members of

the Tribunal who per curium passed the said Judgment. I have very carefully gone

through the rulings cited by Dr.Lal with reference to argument advanced by Mr.Baruah

to counter such submissions of Dr.Lal. It is argued by Mr.Baruah that this Third Judge

Bench is not bound by those observations of Division Bench of the Tribunal and this

Third Judge Bench has only been called upon to offer its opinion on the questions

formulated by the Division Bench and referred to him for a decision since the Hon’ble

Members of the Division Bench of the Tribunal differed in their opinion. In such view of

the matter, this Third Judge Bench is to give his opinion only on the points formulated

by the Division Bench of the Tribunal independently. Therefore, observations/findings

of the Division Bench have no binding effect upon this Third Judge Bench as the

relevant observations made in the Judgment of the Division Bench cannot be treated

as precedent in the process of formation of opinion in respect of points formulated by

the Division Bench. After taking into consideration the rival submissions advanced by

both sides, I find much substance in the submission of Mr.Baruah and as such,

submission made by Dr.Lal on that score has no relevance.

52. As already discussed earlier, the medical category A4G2(P) with 20%

disability does not attract disqualification in terms of para 1(d)(iii) of the revised

criteria issued from the office of DGAFMS dated. 03.01.2005 (Annexure-2). The

Respondent No.1 has not considered the applicant’s medical categorization in its

proper perspective and has arbitrarily resorted to the disqualifying clause to refuse

applicant’s prayer for further extension. Furthermore, on the issue of acceptable

standard of Medical category it can be said that having categorized as A4G2(P) with

20% disability, which is SHAPE-1B in the Army with corresponding S2A1/S3A1 in the

Navy, he cannot be refused extension on the pretext of being placed in low medical

category since the policy adopted by the respondents authority under communication

dated. 03.01.2005 does not at all support such plea.

53. The finding of the respondents in the impugned order (Annexure-18) that the

applicant should have been categorized as P2 is misconceived for the simple reason

that such finding by the administrative authority goes against the medical opinion and

recommendation of the Medical Board which was recorded after taking into

44

consideration various types of medical examinations of the applicant, deliberation

over the issue as well as the opinion of the classified specialist. It is well settled legal

position that it is only the Medical Board which is competent to categorize a person

medically and not the administrative authority. In other words, the competent

authority in the instant case decided the issue of second extension arbitrarily by

bypassing the medical opinion of the Board which was duly constituted by the

respondent No.2.

54. The plea of the respondents that the DGAFMS being the cadre controlling

authority, instruction issued by the Air HQ regarding grant of further extension is not

applicable, appears to be devoid of any merit. There is no doubt that even though a

medical officer seconded to the Air Force remains in the Army Medical Corps and his

service conditions are also undoubtedly regulated by the DGAFMS being cadre

controlling authority, but the disciplinary affairs and other allied matters including his

performance appraisal as a medical officer attached to the Air Force are looked into

by the Air Force Authority as per the principles enunciated by them. It would be

detrimental to his service interest if an Air Force Medical officer is not given the

benefit of circulars relating to policy matters formulated by Air Force Authority.

Appraisal criteria, medical category and other day- to- day routine matters are

accordingly controlled by DGMS (Air) although formal approval is to be accorded by the

DGAFMS being the cadre controlling authority in some of those matters. But at the

same time, it is to be borne in mind that DGAFMS cannot exercise authority and

discretion in an arbitrary manner by rejecting the recommendation of the Air Force

Medical authorities.

55. In this connection it would be pertinent to refer to the Appendix E of Army

Order No. 1/04/DGMS issued by DGMS(A) dated. 20.05.04 (Annexure-20) wherein

detailed instructions for medical classification of serving officers have been imparted

(for short medical classification). Clause (3) of the said medical classification indicates

that the SHAPE system “ is based on functional capacity of the officer as a whole for

military duties with a view to ensuring that low medical category awarded to an

officer for minor physical defects per se of a particular organ or system does not, by

itself, restrict his/her further employment. Thus, classification done under this system

enables the administrative authorities concerned to assign appropriate

appointments/posts to officers depending on their employment capability.”

56. As per clause (4) of the said Army Order functional capacity for military duties

under each factor will be denoted by numerals 1 to 5 against each code letter

indicating declining functional efficiency. The numerals will be written next to the

code letters SHAPE, except that, where an officer is in Grade one in all the factors, his

45

category will be denoted by writing SHAPE-1 instead of writing S1H1AIPIEI. General

evaluation of these numerals is as under :-

“1A Fit for all duties anywhere

1B Fit for all duties anywhere under medical observations and

has no Employability restrictions. (emphasis supplied).

2. – Fit for all duties but may have limitations as to type of duties and

areas of employability depending on whether the duties involve severe

Stress or demand acuity of hearing/vision of both eyes.

………. …………. ”

57. Turning to the guidelines enumerated in the Air Hqs circular dated.

7.11.07 (annexure-5|) it is found that those are exhaustive in nature and are required

to be followed for granting extension of service to SSC officers working in Medical

Services of Air Force. The specific guideline in respect of medical category is laid

down in clause 8 of the said circular indicating the medical category required in

respect of Flying Branch as also Ground Duty Branch . Clause 8 of the said Circular

dated 07. Nov.2007 (Anneexure-5) reads as under :

Air HQ (VB)

“ AIR HQ/C98807/4/OI-5 PIN 936171

C/o 56 APO

07 Nov 07

AIR HEADQUARTERS HUMAN RESOURCES POLICY

PART I/PO/CM/11/2007 EXTENSION TO SHORT SERVICE COMMISSIONED OFFICERS

INTRODUCTION

……………………………………………………………………………………………

AIM

…………………………………………………………………………………………….

GUIDELINES

..........................................................................................................

......................................

2. Medical Category. Medical category required for the purpose would be as

follows :-

(a) Flying Branch - A2G2(P/T) or above

(b) Ground Duty Branch - A4G2 (P/T) or above

46

(c) Officer on temporary low medical category who in all likelihood is

expected to regain his/her medical category could be granted two successive

‘Temporary Extensions’ of six months each. In case of failure to regain

requisite category, the officer would have to relinquish further extension of

service.

… ….. …….”

“

In concluding portion of the circular the object of the policy has been laid

down as under :

“ ……. The procedures and guidelines, enumerated in this HRP, will

ensure that the most deserving and optimum number of SSC officers are

granted extension of SSC. This will also ensure long-term cadre management of

IAF”

58. The required medical category for the applicant-doctor, who belongs to

Ground Duty Branch of Indian Air Force is, therefore, A4G2(P/T) or above and such

requirement has been satisfied by the applicant as per recommendation of the Medical

Board.

59. The applicability of this circular has been questioned on behalf of the

respondents on the ground that the applicant being a member of the Armed Forces

Medical Service Corps, seconded to Air Force Medical Service is governed by Army

Rules. Before addressing the issue in question Defence Services Regulations For the

Medical Services of the Armed Forces, 2010 (Revised Edition) (approved

amendments/orders up to 01 Jan 2010) (in short said Regulations) are required to be

taken into consideration.

60. There is no doubt that Medical Services in the Armed Forces (Army, Navy and

Air Force) are provided by the Corps of AMC (Army Medical Corps). Regulation 1 of

Chapter I of the said Regulations deals with composition and organization of Armed

Forces Medical Services, Its Director General Medical Services ( Air) ( in short DGMS

(Air)) is responsible for day- to - day administration and proper functioning of the

service. Whereas the Director General, Armed Forces Medical Service is the Medical

Advisor to the Ministry of Defence and is also the Chairman of the Medical Services

Advisory Committee.

61. Regulation 18 of chapter II, Sec. I of the said Regulations indicates that

DGAFMS, as head of Armed Forces Medical Services with status of a PSO will be

responsible to the Government for the overall medical policy, while the director

47

Generals of Medical Services will be the Medical Advisers to their respective chiefs of

Staff and will be responsible for the day to day administration and proper functioning

of the medical services of the Army, Navy and Air Forces. The said regulations have

broadly outlined the role of DGAFMS and three DGMS, Director General (DGDS), and

Additional Director Generals MNS (ADGMNS) and officers delegated with financial

powers. It is crystal clear that the Director General of Medical Services is responsible

for proper functioning of the respective medical service of Army, Navy and Air Forces

while DGAFMS being the cadre controlling authority in respect of Armed Forces

Medical Service officers will regulate their service conditions. The Director General of

each of the Medical Services would, therefore, exercise supervision for proper

functioning of the respective Medical Services of Army, Navy Air Force which are under

their immediate control.

Findings

62. It is, therefore, importantly important to consider the peculiarities of

medical service pertaining to employability criteria in each Force.. In fact, every

service manages its own medical support and the Director General of the Army Medical

Corps being the head of medical service regulates the working condition of all the

three medical services headed by. DGMS. The main purpose of each category of force

is to optimize the medial resources and technical facilities and the overall head of the

Armed Forces Medical service DGAFMS being the cadre controlling authority is to lay

down the policies with regard to all aspects of personnel management including

promotions and other allied matters of SSC officers. All these come within the ambit

and scope of charter of duties of DGAFMS as per Reg. 18 of the said Regulations. These

policies are, however, subject to approval by the Ministry of Defence. It is, therefore,

to be specifically noted here that DGAFMS is to exercise his discretionary power with

abundant care and circumspection. There is no scope for arbitrariness in disposing of

the service matters which are normally routed through respective DG of Medical

Service with suitable recommendations by appropriate Air Force authorities based

upon the opinion of Medical Board specially when the case of extension of service of

SSC Officers comes up before the DGAFMS for judicious consideration.

63. As already analyzed in preceding paragraphs, the policy with regard to

medical standard for being eligible for extension of service for SSC officers has been

laid down in Annexure-2 dated 03.01.2005 issued from the Office of the DGAFMS,

Ministry of Defence. The applicant, though an AMC officer, is in the Air Force and is

thus governed under the Air Force Acts and Rules. That being so, as per extant policy

in the Air Force, medical category of the officers are to be denoted by A and G

category and not as SHAPE as is done in the Army. ‘A’ denotes employability condition

for Air branch officers and G stands for employability for ground level officers. The

48

category of the applicant has been A4G2 as recommended by the medical board which

is said to be equivalent to SHAPE 1B. The applicant’s contention in respect of

equivalence is that SHAPE 1A and SHAPE 1B are the two shades of SHAPE 1. In fact, the

applicant has not been downgraded to SHAPE 2 OR BELOW. In this context, it should be

made clear that his A4G2 category cannot be termed as low medical category by any

stretch of imagination. Rather it should be considered at par with SHAPE 1. It is also

worth mentioning that in the Army P2 is promotable category but in the present case

we are simply concerned with acceptable medical category which makes the applicant

eligible for extension of service as a SSC officer, who is found otherwise eligible and

qualified.

64. It is not disputed that the applicant in the present medical category has been

functioning to the entire satisfaction of the Air Force authorities. His appraisal by

superiors was also found to be adequate and there is no complaint in respect of his

performance on account of his medical category which he is holding at the present

moment. It is, therefore, established and firmly established that at no point of time,

during his extended tenure, he has failed to satisfy other eligibility criteria apart from

holding his acceptable medical category.

65. It is to be borne in mind that the purpose of medical categorization is to

obtain the objective view with regard to officer’s employability in the service.

Employability condition on account of medical conditions would differ from Army to

Air Force. But it is a matter of record that DGAFMS has not laid down any common

medical category for officers of all three services nor it is pragmatic to obtain such

commonality.

66. In the light of foregoing discussions it can safely be concluded that A4G2(P/T)

with 20% disability should be treated at par with SHAPE1B for the purpose of granting

extension to SSC medical officers of the Air Force. True, there are some grey areas in

the table of equivalence itself. There is no doubt that some sort of uniformity in

respect of medical standard as per requirement of each of the medical services under

the control of DGAFMS is required to be introduced in the interest of medical officers

of all the three forces. Such arduous task should invariably be left to the wisdom of

DGAFMS. Be that as it may, the fact remains that in the instant case, the applicant

who happens to be the Medical Officer in the Air Force Medical Services has to

discharge his duties restricted to ground only which appears to be far less rigorous

than that of an Army Officer or Officers of the Air Force performing air duty. Since the

present applicant has satisfied all the other criteria there should not be any cogent

ground to refuse his extension as SSC officer.

49

67. Based upon the important consideration of the relevant fact that the applicant

is all along in the medical category of A4G2 (P) with 20% disability having no

employability restriction equivalent to SHAPE1B of Army, this Bench of the definite

opinion that the applicant is eligible for his second extension of service as prayed for

in his application dated 17.06.2010 (Annexure-7).

Opinion

68. The three points which have been referred to for opinion of the Third

Member and quoted in Para 10 have been discussed and analyzed together in the

foregoing paragraphs with reference to submission of both sides and materials on

record.

69. As a sequel to the above discussion/analysis/findings, this Bench is now to

record its opinion and answer point-wise separately in the manner indicted below:

Point (a) Whether while granting second extension of service to the appellant,

the policy decision appearing in Air HQ/C-98807/4/PO-5 dated 7.11.2007 will

be applicable or whether the earlier policy decision issued by MOD/DGAFMS

dated 3.1.2005 will still hold the field ?

As per foregoing discussion it is opined that while granting the second

extension of service to the appellant, the policy decision appearing in the Air

HQ/C-98807/4/PO-5 dated 7.11.2007 will be applicable and the earlier policy

decision issued by the MOD/DGAFMS dated 03.01.2005 will not hold the field.

This point is answered accordingly.

Point (b) Whether the Appendix B drawn under Para 5.4.14 (Annexure-A9) of

the Manual of Medical Examination, having disclosed that the Medical Category

A4G2 is equivalent to SHAPE-1(B) of the Army, appellant can be denied

extension contending that the said categorization is not applicable to the

appellant ?

In view of the discussions made in preceding paragraphs, I am of the

opinion that the medical category of the appellant is to be treated as SHAPE1B

of the Army and hence, the appellant cannot be denied extension contending

that the said categorization is not applicable to the appellant.

This point is thus answered.

50

Point (c) Whether the impugned order dated 12.8.2011 contained in the order

dated 9.8.2011 dismissing the statutory appeal of the appellant is sustainable

in law ?

Viewed in the light of findings recorded hereinbefore, I am to opine that

the order impugned dated 09.08.2011 dismissing the statutory appeal of the

appellant is not sustainable in law.

This point is answered in the negative.

70. As my opinion has been called for in respect of three points framed by the

Bench, let this opinion be placed before the Bench for an appropriate order in this

regard.

(Justice Raghunath Ray)

MEMBER (J)

51

OA 09/2011

IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, GUWAHATI

P R E S E N T

HON’BLE MR. JUSTICE H.N.SARMA (Retd.), Member(J)

HON’BLE CMDE MOHAN PHADKE (Retd.), Member (A)

Sqn.Ldr Jyoti Kumar Dhan (26060-K)

(MS-14331-M) Med of Headquarters

Eastern Air Command, Indian Air Force

C/O. 99 APO.

… Appellant

Mr. Dr.G.Lal

Legal practitioner for Appellant

- Versus -

1. The Union of India,

through its Secretary, Ministry of Defence,

South Block, New Delhi-110001.

2. Director General Armed Forces Medical

Services, Ministry of Defence,’M’ Block

New Delhi-110001.

3. Air Officer-In-Charge of Personnel(AOP)

Air Headquarters( Vayu Bhawan)

Pin 936171 C/O. 56 A.P.O.

4. Director General Medical Services(AIR)

Air Headquarters, R.K.Puram,

New Delhi-110066.

5. Senior Officer-in-Charge of Administration (SOA)

Headquarters Eastern Air Command

PIN 936174,.C/O.99 A.P.O.

… Respondents.

Mr C Barua, CGSC

Legal practitioner

For the respondents.

19.02.2013

A difference of opinion having arisen between two Members while disposing of

the appeal, the matter was referred to the Hon’ble Chairperson under Section 28 of

52

the Armed Forces Tribunal Act. Accordingly, the matter was referred to the Third

Member.

The Hon’ble Third Member, upon hearing the parties, has delivered his

judgment and order on 14.03.2013 allowing the appeal by answering the three

questions referred to him. In such a situation, in terms of the majority of the

judgments, the appeal stands allowed and the impugned orders dated 09.08.2011 and

dated 12.08.2011 are set aside and quashed.

The respondents are directed to pass appropriate order granting second

extension to the appellant in terms of existing provisions. Such order shall be passed

within a period of 30 days from the date of receipt of this order.

MEMBER(A) MEMBER(J)