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Date ofdecision: 31®*July,2013 B.G.CARIAPPA Petitioner
Through: Mr.V.K.Kanagaraj,Sr.Advocate with Mr.S.S.Pandey and Mr.Vipul Jai, Advocates.
Through: Mr.Himanshu Baiaj,Advocate with Col.N.K.Ohri.
HON'BLE MS.JUSTICE DEEPA SHARMA iv A GITA MITTAL.J(Oral)
JUDGMENT
1. The petitioner has assailed the order dated 13.12.2011 passed by the Armed Forces Tribunal dismissing his petition whereby he assailed the order dated 4.5.2011 whereby the respondents rejected the petitioners case that he would not be permitted to serve in re-employment upto the age of58 years. The petitioner retired from regular employment with the Indian Army on attaining age of54 years on 30.09.2008 in the rank of Colonel. He sought re-employment with the W.P.(C)1204/2012. Page 1 of13 2013:DHC:7707-DB respondents which was granted to him with effect from 30.11.2008. The second extension wasgranted to the petitioner with effectfrom 3.9.2011.
2. It appears thatthe petitioner was subjected to a medical examination on 7^ March, 2006 in which examination he was categorised as S1H1A2P1E[1]. The MedicalBoard also prescribed the following employability restrictions: F-2(i)Fitfor normalarmy duties any where exceptin High Altitude Area above 2700 mtrs-9000ft. (ii)Places that has sub zero temperature for more than 3 months in a year. F-3(a)Have access to basic specialist at Mil/Civil Hosp.
3. The petitioner was posted at Andman&Nicobar when he was subjected to a second medical examination for extension ofhis employment in the year 2008. In this medical examination,the petitioner's categorization as well as employability Restrictions asnoted in the medical examination of2006 were repeated. til ^ 4. A third medical examination of the petitioner was conducted on 18 February,2010for purposes ofhis second extension.
5. Learned counsels for the parties have drawn our attention to the petitioner's medical classification. It is pointed out that the petitioner's medical classification as well as employability restrictions in the third medical examination remained the same as before. However, the Medical Board overlooked mentioning his employability criterion in terms of F-1/F-2/F-3 in the Medical Board W.P.(C)1204/2012 Page2of13 Pfoceedings dated 18"^February2010.
6. The services ofthe petitioner were however extended by the order dated 10*^ November 2010 till the date he attained the age of57 years and subjected to his remaining in tlie current medical status. Learned Senior counselfor the petitioner has submitted that in view of the failure of the Medical Board to notice the petitioner's employability categorization, he remained under the impression that ^:there washofurther medicalexaminationrequiredforthe purposesofextension of his service upto the age of58 years. The petitioner applied for third extension of his re-employment upto the age of58 years. The respondents appeared to have issued a communication dated 4^ May 2011 informing similarly placed personnel including the petitioner that they were due for release from the re-employment between 1 September2011 to 31 October2011. The petitioner responded by his letter dated 7*^ June 2011 submitting thathe had been granted four years ofre-employment being medically categorised as F[2] which was eligible for four years subject to employability restriction of FIA or FIB. Inthis comihtmication,the petitioner mentioned thatthere wasno mention of the employability restriction as FIA or FIB in his latest Medical Board proceedings and that therefore he was unaware that he was not eligible for reemploymentfrom 57-58 years. The petitioner noticed thatit wasnotknownto him asto whyhis servicesforone whole year were cutshort,the petitioner claimed that W.P.(C)1204/2012 Page3of13 \y he was performing all duties including physical activities at his current posting and soughta personalinterview tojustify his case for extension ofservice.
8. The respondent rejected the same by their letter dated Tf^ June 2011 informing the petitioner that being in a medical category with employability restrictions as mentioned by him,translated into F2(i);F2(ii)and F[3],and therefore he was eligible to serve only upto 57 years ofage. Itis stated thatin the counter affidavit on record thatthe petitioner soughtan early review medical board which was conducted on 21®*July2011 which returned the petitioner's re-employability categorization as FIB. The petitioner appears to have applied for re-employment with the respondent by his letter dated 22°** July
2011. The request ofthe petitioner was rejected by the respondents reiterating the stand takenintheirletter dated 4**^ May2011., J.O. As a result,the petitioner assailed the action ofthe respondent by way ofOA - No.345/2011. We may note that this petition was filed on 1®* September 2011 before the date ofthe petitioners' disengagement i.e. upon the termination of his second re-employment on 3*^^ September 2011 on which date the petitioner would have attained 57years ofage.The petition was opposed by the respondent and was rejected by the Armed Forces Tribunal by itsjudgment dated 13**"December 2011. The Armed Forces Tribunal was persuaded to rejectthe petition on the sole ground thatthe petitioner applied belatedly and that his medical categorization inthe board W.P.(C)1204/2012 Page4of13 proceedings dated 18*^February2010did notgive him employability eligibility up to 58 years ofage.
11. The challenge by the petitioner in the instant writ petition is opposed by the respondent on the ground that the petitioner was aware of his employability criterion in view ofthe clear intimation to this effect in the first medical board for re-employment conducted on 7**^ March 2006 as well as the second medical board ^field in the year 2008. Itis contended thatthe omission to state the re-employment criterion in the third medical board on 18^ February 2010 is ofno benefit to the petitioner for the reason that the conditions and the re-employment restrictions remained the same. It is further contended that the policy ofthe respondents did not create or confer any legal right to continue in re-employment and that he had no right to re-engagement. The third objection raised by Mr.Himanshu Bajaj, 4eamed counsel for the respondents is to the effect that the petitioner in any case ^had been notified by the communication dated 4^ May 2011 thatthe respondent were not considering his re-employment beyond 57 years ofage. The fault for the delay in the instant case rests squarely on the shoulders of the petitioner. The above submissions on behalfofthe respondents are opposed bythe petitioner.
12. We have heard learned counselfor the parties atlength.
13. This matter hasto be considered in the context ofthe policy which has been framed by the respondents with regard to the re-employment ofofficers who seek W.P.(C)1204/2012 Page5of13 v. extension ofengagement beyond 57 years ofage. It appears that the initial policy dated 18*^July2007provided asfollows: "General
2. In the light of the amendment to 'Terms and Conditions for Re-employed Officers issued vide ADG PS letter quoted at pragraph 1(b)above,there is a need to revise the procedure for grant of extension from 57 years to 58 years to the officers meeting the revised medical classification, subject to being placed in employmentindex F-IA orF-IB."
14. Sofar asthe procedure forreview consideration for extension beyond 57 yearsis concerned,the same was provided in para4onwards. So far asthe present consideration is concerned,paras4and[6] are material and read asfollows:
w ■ regular service (DGMS 5 letter No.l2642/DGMS-5(A) dated 22 Apr 92 refers). Hence, all LMC re-employed officers are expected to undergo atleast one Reclassification Medical Board till the age of57 years. Grant ofextension beyond 57 years of age will be governed by the latest medical board which is valid at the time the officer attains 57years ofage.
6. Submission of Documents for Consideration. Officers who have either been upgraded to medical category with employment restrictions as permitted vide AGPS/PS-2 letter dated 20 Apr 07 or are seeking review of medical category for continuation of service up to 58 years of age, should submit their latest Reclassification Medical Board proceedings six months prior to attaining the age of 57 years. No extension beyond 57 years of age would be W.P.(C)1204/2012 Page6of13 granted in cases where relevant documents are not submitted within the stipulated time."
15. This policy cameto be amended by an order dated 1®*March2011 passed by the respondents.As perthis order,the above noted pare[6] wasrevised to stand substituted bythe following para[6]; "6. Submission of Documents for Consideration. Officers who afterjoining re-employment,have either been upgraded to medical category with employment restrictions as permitted vide AGPS/PS-2 letter dated 20 Apr 07 or are seeking review of medical category, for continuation of service up to 58 years of age, should submit their Reclassification Medical Board proceedings within one year ofjoining initial re-employment. No extension would be granted in cases where relevant documents are not submitted within the stipulated time."
16. This direction of 1®^ March 2011 stipulated that the change in the policy would be applicable for all officers being considered for extension ofservice up to years ofage"with effectfrom 1.7.2011".
17. It is undisputed thatthe petitioner would have attained 57 years ofage on 3 September.2011 and would have become eligible for consideration for extension of service thereafter. Assuch the consideration ofthe petitioner had to be in terms of the policy letter dated 1®^ March 2011.
18. Para 6 of the policy letter dated 1®' March 2011 postulates that the reclassification medical board proceedings have to be submitted within one year of joining the initial re-emplovment. Learned counsel for the respondent has urged W.P.(C)1204/2012 Page7of13 rd thatthere is a clear reference to the expression"initial re-employment"and thatthe petitioner had to submit the medical report within one year of his initial reemployment.
19. So far as the petitioner is concerned, he was re-employed with effect from 7'^ March 2006. The petitioner wasrelieved from service on 30^^ September2008. Hisfirstre-employment was with effect from 30^^ November 2008.Ifwe construe ^^e policy in the manner which has been suggested by the learned counsel for the respondent,it would appearthatto be eligible consideration for extension ofhisreengagement after 54 years of age, the petitioner was required to submit his reclassification medical board proceedings within one year from 30*'' November 2008 i.e. on or before 30*'' November 2009 even though the period ofextension has to commence in 2009. This means that a person who may have been fit in ^009 but was rendered unfit immediately before the consideration of his employment in the year 2011 or 2012, would be considered fit for re-engagement. This certainly cannot be the spirit and intendment ofthe policy ofre-engagement or ofthe requirement ofthe medical examination. The policy has been formulated clearly to engage only those personnel who are fit for re-employment and are considered and granted the re-employment. Certainly, consideration of a fitness certificate ofthe year2008 forre-employmentin the year 2011 resultsis most unreasonable and could not have been the intention ofthe policy. W.P.(C)1204/2012 Page8of13
20. It has also been stipulated in the letter dated 1®'March 2011 thatthis policy wouldtake effectfrom 1^'July,2011. Itcontainsnolastdateforsubmissionofthe documents. There is also no stipulated prescription in the policy for cases as the petitioner who already stand re-employed and would become eligible for considerationfor extension afterthe policycame intoforce.
21. So far as the petitioner is concerned, the respondents have erroneously afplied the stipulation contained in para6ofthe policy dated 18 July 2007 and haverejected his extensionforthe reasonthathe had failed to submitthe relevant documents with six months prior to attaining the age of58 years. This stipulation standssubstituted bythepara6ascontainedintheamended policy dated 1 March
2011.
22. Thereis yetanotherreason asto whythe submissionsoftherespondentsdo notfindfavour with us. Ithasbeen urgedthatthere-employmentcategorisationin ii^rmsoftherankofthepersonbeingF1/F2/F3hasto bestipulatedbythemedical experts who conductthe medicalexamination. This wasclearly mentioned inthe medical examination of the petitioner conducted on March 2006 and in the second medical examination in the year 2008. The shape categorization ofthe petitioner was mentioned in the third medical examination conducted on 18 February 2010. However,his re-employment categorization was admittedly not mentioned therein. W.P.(C)1204/2012 ^ r
23. The respondents have easily submitted that the categorization having been mentioned in the medical examination conducted on 7*^ March,2006 and in the year2008 wasrelevantand sufficientnoticetothe petitionerofhisre-employment categorizationeveninthethird medicalexamination. However,thepetitionerhas addressed a communication dated 7^ June 2011 wherein he informed the respondents that there was no mention ofthe categorization and as such he was u^^warethathe wasnoteligibleforre-employmentfrom 57to58years. In the response dated 27^ June 2011,the respondents have taken the same stand as has been taken before this court. In the circumstances ofthe case,we see no reasonto disbelieve the petitioner who would nothave benefited in any manner by not having himself medically examined,had he been not remained under the impression asstatedinhiscommunicated dated7^June2011. 247 Wehave noted abovethatitcannotbethe spiritand intendmentofthe policy the respondentto obtain a medical fitness ofthe year 2009for the purposes of consideration ofthe petitioner's frtness for his re-engagement after he attained 57 years of age on September, 2011. Be that as it may, even if the matter is examined fromthe perspective ofdelay in getting hunselfmedically examined and having faulted in submission ofthe regular medicalrecord to the respondents,the facts which have been placed before us would show that the petitioner's Review Medical Board was conducted on 21'^ July, 2011 and he submitted the medical W.P.(C)1204/2012 Page10of13 board proceedingstothe respondents on 22"^July,2011.This wascertainly within one year of petitioner's last re-employment on 10**^ November, 2010. In the medicalboard proceedings dated 21®^ July,2011,the petitioner's employability had fallen inthe category ofFIB. The petitioner,therefore,in our view had complied withtherequirementsofpara6ofthe policy dated 1®^ March,2011,ifitis heldthat the same applied to him. 2^ Even if we assume that the submission ofthe medical certification by the petitioner did notcomply withthe requirementofthe policy dated 1®^March,2011. It is pointed out by learned counsel for the petitioner that the respondents had declared that policy of March,2011 would take effectfrom 1®'July,2011. The petitioner has pleaded ignorance ofemployability certification. The respondents rejected the petitioner's request for re-engagement by the communication of27^'' Juiii,2011.Barelyfive daysthereafterthe petitioner applied and had been granted medical review on 21®^ July, 2011. The result thereof was submitted by the petitioner on 22"'^ July,2011 to the respondents. In view ofthe above discussion no fault is attributable to the petitioner for delay, if any, in submission of the medical certificate.
26. It also has to be borne in mind thatthe respondents' policy stipulation dated 1®^ March, 2011 did not prescribe any last date for submission of the medical certification so far as cases asthe petitioner are concerned. In this background,the W.P.(C)1204/2012 Page 11 of13 th order dated 4'^ May, 2011 of the respondents as well as the order dated 13 December, 2012 of the Armed Forces Tribimal are erroneous and legally imsustainable.
27. We maynow consider whatbenefits wouldbe admissibletothe petitioner at this stage in the light the petitioner having attained 58 years of age as on 3 Sentember, 2012. There is therefore no possibility of granting re-employment to him. The petitioner was seeking extension of his re-employment with the respondents after hisregular service had come to an end on accountofhis having superannuated. Certainly, re-employment, or for that matter — its extension, cannot be claimed as a matter ofright. The respondents were required to consider the case ofthe petitioner and to grant him re-employment based not only on his eligibility and medicalfitnessbutalso onthe basisofavailabilityofposts. W ■ ^8. Inthisbackground,thepetitionercannotbegrantedthereliefofextensionor consideration for extension of his re-employment in the instant case. The impugned orders dated IB*'* December,2011 and 4 May,2011,however,are not legally sustainable and are setaside and quashed. W.P.(C)1204/2012 Page12of13
29. The petitioner is entitled to costs ofthis litigation which are quantified at Rs.25,000/-. The costs shall be paidtothe petitioner within six weeksfromtoday. C JULY 31,2013/rb riTAi^jrrfAL) JUDGE
(DEEPA SHARMA) JUDGE