Jagdish Narain Lal Srivastava v. Union of India — 1998 DIGILAW 699 (RAJ)

Honble GUPTA, J.–The petitioner was enrolled in the Indian Air Force as an airman in the trade of AFSO on 9.4.63 for initial term of 9 years. His term was extended time to time. He was promoted to the rank of Junior Warrant officer in 1985 and was appointed to the substantive rank in 1990. Having completed 20 years of service he was ordered to be discharged vide order dt. 20.3.97 w.e.f. 30.4.98. The petitioner made a request for further extension of service for a period of two years and 23 days to complete 55 years of age. His request for extension was turned down. (2). The petitioners case is that while in service he suffered from Ankylosing Spondylosis in 1972 and was placed in the medical category `CEE (Temporary) and finally in the year 1980 he was placed in category `CEE (Permanent). He presented himself before the Medical Board on 26.8.96 and the Medical Board opined that he would continue in medical category `CEE (P) and was fit for extension of service yet the respondents have not granted the extension. It has been averred that the petitioner contacted the disease while in service and this disability did not exist at the time he joined the service, and therefore, the disability is attributable to the Air Force Service. It has been stated that the authorities had recommended his case for extension of service but vide AFRO letter No. RO/2802/3/RW (Extn) dated 5.3.97 he was informed that his extension has not been accorded by the competent authority in terms of para 4(c) of Air HQ letter No. Air HQ/40811/PA-III dated 6.11.95 and 9.10.96. To explain the delay it has been averred that in March, 1997 the petitioner had come to know that he would be discharged w.e.f. 30.4.98 yet he learnt through the news-papers that one of his known mates viz. Warrant Officer Rajender Prasad Dixit Trade Radar stationed at Air Force Station, Hindon, who had been denied the grant of further extension, has succee- ded in the writ petition filed before the Delhi High Court and thereafter he approached him and obtained a copy of the order, and filed this writ petition. Warrant Officer Rajender Prasad Dixit Trade Radar stationed at Air Force Station, Hindon, who had been denied the grant of further extension, has succee- ded in the writ petition filed before the Delhi High Court and thereafter he approached him and obtained a copy of the order, and filed this writ petition. It has been averred that non grant of further extension of remaining two years in order to complete 55 years age of superannuation is unjust, unfair, unreasonable and arbitrary being violative of the policy of the respondents and Article 14 and 16 of the Constitution of India. (3). It has been prayed that the directions be issued to the respondents to cancel the impugned order of discharge dt. 20.3.97 qua the petitioner and grant him extension in terms of Anx. P-3 para 4(c). (4). In the return the respondents have resisted the writ petition on the ground that on medical examination the petitioner was found unfit for extension of service and the approving authority made a remark that he was unfit for extension of service as per existing policy. It has been averred that the petitioners disabilities were not attributable to service as these are constitutional disorders. It has been further stated that the petitioner got the orders of discharge in April, 1997 but he slept over for a period of one year and therefore the writ petition should be dismissed on the sole ground of delay. (5). Mr. Nanda contended that the matter of the petitioner is identifical to the matter of Rajender Prasad decided by the Delhi High Court vide judgment dt. 28.2.97 and therefore the petitioner is entitled to the extension and there is no rea- son to discriminate his case. Pointing out that the petitioner when joined service was in `Aye category, Mr. Nanda urged that if his category has been lowered down to `CEE (P) it is attributable to service. His further contention was that the Medical Board had recommended the case of the petitioner for further extension but the approving authority has denied him extension on the ground of existing policy and not because the petitioner is unfit for extension of service and therefore this Court should intervene in the matter. On the point of delay, the contention of Mr. On the point of delay, the contention of Mr. Nanda was that the petitioner when came to know about the Delhi High Court decision made a representation before the authorities but the same was not decided within the time limit fixed under the Rules for deciding the representation, and after wai- ting for some time he filed this writ petition. He submitted that clause (v) of para 4 of the Policy dt. 6.11.95 is arbitrary and the petitioner could not be denied extension on the whims of the competent authority. He placed reliance on the cases of : (i) R.P. Dixit vs. Union of India (1), (ii) Dr. Cap. Hardeo Singh vs. State of Punjab (2), (iii) Mohan Lal vs. Union of India (3) (Punjab & Haryana), (iv) Anil Kumar vs. Union of India (4) (Allahabad), (v) Union of India vs. Shyamlal (5) and Dariya Singh vs. Union of India (6). (6). As against this, Mr. Mathur contended that there was delay of about one year in filing the writ petition and on this ground alone the writ petition should be dismissed. His main contention was that under clause (v) of para 4 of the Policy there is prohibition of extension to the airmen placed in category `CEE (P) and it is only in the cases that the disease was attributable to service, the matter requires consideration by the authorities on merits. He submitted that after consideration of the case of the petitioner, the competent authority has not accepted his request for extension and this court should not substitute its opinion over the expert body which has declared the petitioner unfit for service after considering the whole case. Mr. Mathur placed reliance on the cases of Union of India vs. Baljeet Singh ( 1996 (11) SCC 315 ) and B. Sawarankar vs. Union of India (S.B.C. Writ Petition No. 830/88) decided on 17.9.97 of this Court to emphasise that it is for the petitioner to prove that the disability is attributable to the service. (7). I have carefully considered the above arguments. It is not disputed that the petitioner was informed of the order of refusing extension to him in April, 1997. The writ petition has been filed after about a year. (7). I have carefully considered the above arguments. It is not disputed that the petitioner was informed of the order of refusing extension to him in April, 1997. The writ petition has been filed after about a year. The delay has been explained in the manner that the petitioner on coming to know about the decision of Delhi High Court approached the authorities for extension of service in the light of that judgment but when no action was taken, he has approached this Court. Though, this cannot be a valid ground of filing writ petition with delay yet it is not proper to throw away the writ petition on this ground as the matter has been heard on merits. (8). The matter of extension of engagement of airman is regulated by the po- licy of extension of engagement dt. 6.11.95 Para 3 of the policy provides that extension of engagement shall be governed by the various principles viz. service requirement, willingness for extension of engagement, medical fitness, passing of promotion examinations, conduct records, ACR/assessments for last five years, suitability for extension and Certificate of Undertaking. (9). For the instant case, the relevant principles are the `medical fitness and the `suitability for extension. The principles have been explained at para 4 of the Policy. Clause (c) of this para provides that airmen seeking extention of engagement will be medically examined in the manner stated therein. To decide the controversy, sub-clause (v) is relevant which is reproduced :– ``(v) Airmen placed in Medical Category CEE (P) will not be granted Extension of Engagement. However, cases of airmen in medical category CEE (P) for reasons attributable to service will be considered on merit. (10). It is obvious that the general principle adopted in the policy is that airmen placed in medical category `CEE (P) will not be granted extension of engagement. An exception has been made of this general principle that if the airmen were placed in medical category `CEE (P) for reasons attributable to service, their cases will be considered on merits. It corollary follows that no airmen who is placed in medical category `CEE (P) has a right of extension of engagement. Mr. Nanda could not point out any rule or regulation envisaging that airmen placed in medical category `CEE (P) have got a right of extension of engagement. (11). It corollary follows that no airmen who is placed in medical category `CEE (P) has a right of extension of engagement. Mr. Nanda could not point out any rule or regulation envisaging that airmen placed in medical category `CEE (P) have got a right of extension of engagement. (11). The respondents case is that the petitioners disability is not attributable to the service and it is because of constitutional disorders. Disabilities pointed out in the medical reports are as follows :– (i) Ankylosing Spondylosis (ii) NIDD (M) (iii) Immature cataract both eyes. (12). The petitioners case is that when he joined service he did not have those disabilities, therefore, it should be presumed that the disabilities are attributable to the service. However, the medical report clearly states that the disabilities are not directly attributable to condition of service. In the presence of the medical report, it is difficult to accept that the disabilities pointed out above are attributable to conditions of service of the petitioner. (13). The Apex Court in the case of Union of India vs. Baljit Singh (supra) has considered the provisions of R. 173 Para (7)(a) to (d), Pension Regulations of Army, 1961 relating to disability pension. Their Lordships have observed that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the on set of the disease, and thus the conditions were due to the circumstances of entry in military service. It is to be noticed that in that case the disability was due to sustaining of an injury during service period yet it was not held to be attributable to military service on the basis of the report of the Medical Board. (14). It is thus obvious that even in the matter of disability pension not only it is required to be established that the disease had arisen while in service but it should also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. The matter of extension of engagement certainly stands on higher footing. The instant case is of disability due to disease. It is all the more necessary that it is affirmatively established as a fact that the disability had arisen due to condition of service. The matter of extension of engagement certainly stands on higher footing. The instant case is of disability due to disease. It is all the more necessary that it is affirmatively established as a fact that the disability had arisen due to condition of service. Therefore, on the basis that when the petitioner joined service, these disabilities were not mentioned by the medical authorities, it cannot be presumed that the disabilities incurred by the petitioner are attributable to the service. It is not the case for the petitioner that the disease had arisen when the petitioner was asked to work in particular circumstances which could cause spondylosis, cataract in eyes and NIDD (M). (15). Coming to the case of the Delhi High Court relied on by Mr. Nanda, it may be stated that the petitioner in that case was Jr. Warrant Officer in the Radio Operation Communication System ad there had developed eye problem in the year 1983 and his ratina got detached. It is obvious that Mr. Dixit who was engaged in Radio Operation Communication System had got the disease by coming in contact of the Radio Operation System. It was therefore, held that the disease was attributable to the service. Thus, the facts of that case are distinguishable. It is to be noticed that the petitioner is diabetic as per the medical report produced by the respon- dents and the disease is not controlled even with the diet prescribed. Without any foundation that the petitioner was asked to work in particular circumstances as to incur disabilities, it is not possible to presume that the disabilities are attributable to his service. (16). The cases relied on by Mr. Nanda are on R. 173, Army Regulations, which provides disability pension. In view of the decision of the Apex Court in the case of Union of India vs. Baljit Singh (Supra) on the point, these rulings do not help the petitioner. (17). Much emphasis was laid by Mr. Nanda on the medical report Anx. P-10 wherein Maj. Vijay Dutt, Graded Specialist recommended the petitioner fit for ex- tension of service. The medical report Anx. P-10 produced by the petitioner is incomplete record. The respondents have furnished a copy of the full medical report and also showed the original at the time of arguments. Nanda on the medical report Anx. P-10 wherein Maj. Vijay Dutt, Graded Specialist recommended the petitioner fit for ex- tension of service. The medical report Anx. P-10 produced by the petitioner is incomplete record. The respondents have furnished a copy of the full medical report and also showed the original at the time of arguments. The medical report indicates that the Medical Board recommended the extension of the petitioner subject to the approval by higher medication authority. But the approving authority who is a higher medical officer did not find the petitioner fit for extension of service. It is to be noticed that even the Medical Board had observed at item no. 9 that the petitioner was fit for sedentary duties only and he was not fit to be put on duty requiring good vision. Thus, the opinion of the superior officer is that the petitioner is not fit for extension of service. As already stated, the airmen falling in the category of `CEE (P) are not to be granted extension of engagement as a matter of Policy. The cases of airmen of that category whose disability is attributable to service, are required to be considered on merits. The petitioner has not been able to establish that his disabilities are attributable to service. The petitioner therefore was not entitled for the consideration of his case even on merits. (18). There is no merit in this contention of Mr. Nanda that provisions of sub-clause (v) of Clause (c) of Para 4 of the Policy are arbitrary. The competent authority decides the matter on its merit. This Court cannot be justified in substituting its opinion on the policy taken by a team of experts. (19). As a result of the above discussion, I am of the considered opinion that the order of refusal to grant extension to the petitioner cannot be held to be arbitrary, illegal or unjust. (20). Consequently, the writ petition being devoid of merit is hereby dismissed.