Nand Kishore Mishra v. Union of India

2007. Though successful in the selection and recommended for the grant of Short Service Commission in the AMC, he was denied the Commission on the ground that he was not eligible being in Medical Category SHAPE-II. In the counter affidavit filed on behalf of the respondents before the Armed Forces Tribunal, the reason assigned for denial of Commission to the appellant was stated as under: “(a) No 13989183K L/NK/HA Nand Kishor Mishra who has been recommended for grant of Short Service Commission in AMC (NT) by 17 SSB was Page 2 found medically unfit by the SMB, CH(AF) Banglore on 24 Dec.07 on account of disability 'Amputation Ring Finger Left Hand' Individual is in Low Medical Category SIHI A2(P) PIEI since 1998 for the disability.” It may be explained here that the fitness of a person for medical classification is assessed under five factors indicted by the acronym SHAPE. The acronym stands for: S-Psychological, H- Hearing, A-Appendages, P-Physical Capacity and E-Eye-Sight. From the counter affidavit of the respondents, it, thus, appears that the appellant was in Category-I under the other four factors but on account of the loss of the left ring finger he was put in Category-II under the factor Appendages and, hence, was assigned the Medical Classification SHAPE-II. Mr. S.G. Hasnen, learned senior advocate appearing for the appellant, submitted that the respondent-authorities wrongly applied the criterion of medical eligibility and contended that in terms of the Notification for the grant of commission the case of the appellant should have been considered under medical category SHAPE-II. He pointed out that the medical criterion regarding eligibility, as stated in the Notification dated January 19, 2007, was as under:- “(ii) The candidate must be in medical category SHAPE-ONE at the time of final selection for grant of PC. In case of those who possess exceptional merit or those who have suffered disability owing to active service or a war casualty, the medical category upto grade TWO, under any of the Page 3 SHAPE factors, except “S”, will be acceptable, on merit of each case, provided it is a result of the same disability." Learned counsel stated that on July 5, 1998, while the appellant was working as a Nursing Assistant in the Army Medical Corps, he was travelling from Lucknow to Allahabad on his motorcycle to join his duty at 181, Military Hospital, Allahabad. On the way he was attacked by some miscreants who wanted to snatch away his motorcycle. He put up resistance whereupon one of the miscreants fired a shot at him causing injury to his left ring finger. As a result of the injury, his left ring finger had to be amputated. In the Court of Inquiry, it was found and held that the appellant had received the injury while on duty vide Annexure P-2 and the appellant's Commanding Officer had also noted that the injury was caused when the appellant was shot by unknown miscreants while he was coming to join his duty and further that the injury sustained by him was not due to any neglect or misconduct on his part. From the findings of the Court of Inquiry and from the opinion of the Commanding Officer, it is clear that the appellant received injuries while he was on duty. The issue for consideration now is, whether being on duty would satisfy the terms of the Notification where the expressions used are 'active service' or 'war casualty'. The appellant does not claim to come under the expression 'war casualty', but he claims to be covered by the expression 'active service'. Page 4 The expression 'active service' is defined in Section 3(1) of the Army Act, 1950 as under:

declare persons to be on active service. Section 9 reads as under:

Page 5 Defence issued a Notification dated November 29, 1962, which was published in the Gazette of India (Extra.) Part II – Section 4 No.6. The Gazette Notification reads as follows: “S.R.O. 6.E – New Delhi, the 28th November 1962 – In exercise of the powers conferred by section 9 of the Army Act, 1950 (46 of 1950), the Central Government hereby declares that all persons subject to that Act, who are not on active service under clause (I) of section 3 thereof, shall, wherever they may be serving, be deemed to be on active service within the meaning of that Act for the purposes of the said Act and of any other law for the time being in force.” It is to be seen that the Notification is in very wide terms and covers all persons wherever they may be serving. It may further be noticed that a similar Notification issued under Section 9 of the Air Force Act, 1950 came under consideration before this Court in Balbir Singh & Anr. v. State of Punjab, (1995) 1 SCC 90. In that case this Court held that by virtue of the Notification issued under Section 9 of the Air Force Act, a person, even while on casual leave, would be deemed to be on 'active service'. In paragraphs 13 and 14 of the judgment, it was held and observed as follows: