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2016 DIGILAW 444 (JK)

Binder Chand v. Union of India

2016-09-01

B.S.WALIA, RAMALINGAM SUDHAKAR

body2016
JUDGMENT : B.S. WALIA, J. 1. Letters Patent Appeal has been filed seeking setting aside judgment dated 21.02.2006 passed by the learned Writ Court in SWP No. 3221/2001 rejecting the challenge to order dated 07.11.2001 whereby the appellant was invalidated from service and praying for allowing the Writ Petition with costs. 2. Brief facts of the case necessary for the adjudication of the present appeal are that the appellant was granted provisional enrolment in the Indian Army(JAK RIF). Vide Communication dated 18.04.2000 i.e. Annexure-A-2 to the Writ Petition, the petitioner was informed that he had been provisionally selected subject to meeting the laid down qualitative requirement for recruitment as a soldier. Petitioner was called upon to report in the regiment along with the documents mentioned therein by 30.04.2000 failing which it was intimated that his enrolment would stand cancelled. It was also intimated that the provisional enrolment letter would not be treated as an authority for claiming enrolment if it was found that the petitioner was unfit at a later stage for any reason etc. 3. On reporting, the petitioner was sent for undergoing a nine months training course at Jabalpur along with other recruits. On completion of the said course, while other trainee cadets were granted attestation as soldiers, the petitioner was not attested on account of non-receipt of police verification prior to his falling ill due to the communication for verification having been inadvertently sent to the District Magistrate Jammu who did not have jurisdiction and although the communication was forwarded by said District Magistrate to the District Magistrate Udhampur having jurisdiction in the matter, but the same delayed the intimation of verification report which was received from the District Magistrate Udhampur vide letter dated 30.08.2001 of there being nothing adverse against the petitioner-on-record. However, attestation of the petitioner as soldier in the army could not be done due to the petitioner having fallen sick in the meantime and been admitted to army hospital on 09.07.2001 with diagnosis of Pulmonary Tuberculosis thereafter, the invalidating board was conducted on 29.09.2001 at Military Hospital Namkum and on the recommendation of the Medical Board as approved by the HQMP P&O area dated 08.10.2001, the petitioner was invalidated from service on 24.10.2001 by being granted disability pension and other consequential benefits. 4. 4. That it also needs noticing that in terms of order dated 07.11.2001 i.e. Annexure-D-1 passed on behalf of the Commandant Lt. Col. OIC TB Wing, the petitioner was discharged from the hospital for journey to his home town after being boarded out of army. 5. That the prayer of the-petitioner in the Writ Petition was for the issuance of a Writ of Mandamus for commanding the respondents, particularly respondent No. 2 i.e. Commandant JAK RIF Regimental Centre Jabalpur (MP) to appoint him as a soldier in view of the police verification report dated 30.08.2001 received by the Commandant from the District Magistrate Udhampur on the ground that under paragraph No. 139 of Army order dated 24.03.1987, the Commandant was immediately required to call for the police verification report of the petitioner from the concerned quarters and in the case of other cadets, police verification reports were called for and after receipt of the same, they were attested as soldiers on 05.07.2001 whereas in the case of the petitioner the same was also called for but only vide letter dated 26.12.2000 and instead of the communication being sent to the District Magistrate Udhampur, it was sent to the District Magistrate Jammu, who, in turn, forwarded the same to the District Magistrate Udhampur, but in the process, the receipt of police verification got delayed and that had there not been any delay, the petitioner like his other cadets colleagues would have been attested as a soldier on 05.07.2001 and in terms of Section 16 of the Army Act would have become entitled to certain privileges at the time of boarding out. 6. That the plea is that on account of delay in obtaining the police verification, prejudice has been caused and that since report dated 30.08.2001 certified the petitioner to be of good character, he should have been deemed to have been attested as a soldier on 05.07.2001 along with his other cadets colleagues, in which eventuality, his admission to the hospital on 09.07.2001 would not have dis-entitled him from the benefits available to an attested soldier. Paragraph 20 of Army Order No. 150 of 1975 reads as under:- "Cadets, Recruits, Boys, Apprentices, Direct Entry Sailors, Airmen (under Training) and Probationer Nurses - If any of these personnel are suffering from TB/Lebrosy they will be invalided out from service. They may however be transferred at Govt. Paragraph 20 of Army Order No. 150 of 1975 reads as under:- "Cadets, Recruits, Boys, Apprentices, Direct Entry Sailors, Airmen (under Training) and Probationer Nurses - If any of these personnel are suffering from TB/Lebrosy they will be invalided out from service. They may however be transferred at Govt. expense to Military Hospital (Cardio Thoracic Centre) Pune/MH Namkum/LLS Kasauli in the case of those suffering from TB." 7. That a perusal of paragraph No. 20 reveals that if a cadet, recruit etc. is suffering from Tuberculosis etc. then such candidate is to be invalidated out from service. However, they may be transferred at government expense to military hospital. However, the fact remains that the petitioner was invalidated from service on account of suffering from Tuberculosis and being placed in low medical category 'CEE'. On being invalidated out of army on medical grounds, the petitioner has been granted disability pension. Attestation of a cadet as a soldier in the army depends upon the verification of character. Attestation of the petitioner could not be done upto the date of his falling ill i.e 09.07.2001, unlike in the case of his cadets colleagues, who were attested on 05.07.2001 on account of receipt of verification report from the concerned District Magistrates of their areas, whereas in the case of the petitioner, the verification report was delayed although inadvertently on account of having been sent to the wrong District Magistrate. 8. That reliance is placed on Section 17 of the Army Act read with Rule 8 of the Army Rules 1954 to contend that on successful completion of 14 weeks' basic military training and 22 weeks' technical training by 23.06.2001, the petitioner was eligible to be attested as Section 17 of the Army Act provides that a person who is reported fit or has completed the prescribed probation period may be attested by the Commanding officer. Further, it has been contended that Army Order 343-344 prescribes the procedure for attestation. Paragraph No. 1 and 2 of the same reads as under:- "AO 343-344 Verification and Attestation - Other Ranks 1. Action to verify an individual's character and antecedents through the local police, in accordance with para 139 of Regulations for the Army, 1962, will be initiated, immediately after enrolment by the enrolling officer. He will, however, be attested only after successful completion of basic military and technical training, subject to favourable verification report. Action to verify an individual's character and antecedents through the local police, in accordance with para 139 of Regulations for the Army, 1962, will be initiated, immediately after enrolment by the enrolling officer. He will, however, be attested only after successful completion of basic military and technical training, subject to favourable verification report. Attestation will be carried out by officer commanding of the training unit in The manner laid down in AA Section 17 before being posted to an active unit. 2. In case the verification is not carried out before completion of basic military and technical training, the individual may be posted to an active unit other than those in a field service area. In that case the individual will be attested by the officer commanding of the unit to which posted after verification roll has been received from the police duly verified. No person will be posted to a unit in a field service area unless he has been verified and attested." 9. That extract of Para 139 of the Regulations for the Army 1962 read with Rule 8 of the Army Rules, 1954 which is also relevant is reproduced hereunder:- "139. Verification of Character - The character and antecedents of all persons enrolled under the Army Act will be verified in accordance with the instructions on IAFK-1152. Verification Roll (IAFK-1152) shall be initiated by the enrolling officer immediately after enrolment. On completion of verification, the Verification Roll will be retained with the man's Sheet Roll." "Rule 8 - Persons to be attested - All combatants and other enrolled persons who may be selected to hold non-commissioned rank shall when reported fit for duty be attested in the manner provided in Section 17." 10. That on the basis of the aforementioned provisions, it has been contended that the appellant having completed military and technical training by 23.06.2001 was fit for duty and was entitled to be attested under Section 17 of the Army Act read with Rule 8 subject to verification report by the District Magistrate. That on the basis of the aforementioned provisions, it has been contended that the appellant having completed military and technical training by 23.06.2001 was fit for duty and was entitled to be attested under Section 17 of the Army Act read with Rule 8 subject to verification report by the District Magistrate. Although Army Order 343/73 mandates that action to verify an individual's character and antecedents through local police in accordance with para 139 of the Regulations for the Army 1962 is to be initiated immediately after enrolment by the enrolling officer, but in this case the same was delayed and process for character verification was initiated only in December, 2000 vide communication dated 26.12.2000 i.e. nearly eight months after enrolment. Even then, it was sent to the wrong District Magistrate, whereby it got further delayed by one month. It has further been reiterated that even without waiting for verification report, the petitioner was entitled to be posted to a active unit other than field service in terms of para 2 of Army order 343/73 (A.O. 343-344). 11. That it is contended that the consequence of date of attestation as such, is that a solider who is attested under Section 17 of the Army Act in case he is suffering from a disease is to be dealt with under para 12 & 13 of Appendix to A.O. 150/75 whereas a recruit who is suffering from a disease is to be dealt with under para 20 of the same order. Para 12 & 13 of Appendix to A.O. 150/75 reads as under:- "12(a) JCO OR and their equivalent ranks in the Navy and AIR Force suffering from Pulmonary Tuberculosis will be transferred to Military Hospital (Cardio Thoracic Centre), PUNE-MH NAMKUM MH Ramgarh LLS-Kasauli and those suffering from leprosy, to armed forces hospitals where beds for treatment of leprosy are allocated. After required investigation, a definite diagnosis of pulmonary tuberculosis will be made within 60 days of such transfer. From the date of definite diagnosis which should be confirmed by a duly constituted medical board within the said period of 60 days the individual other than one suffering from Lepromatous Leprosy will be entitled to a maximum of 12 months treatment with full pay and allowance. However, cases in which medical or surgical finality is reached prior to the expiry of this period will be invalidated out of service immediately. However, cases in which medical or surgical finality is reached prior to the expiry of this period will be invalidated out of service immediately. (b) Lepromatous cases of Leprosy will be invalidated out from service immediately on confirmation of the disease by the medical board. They will, however, be discharged from hospital only after they become-non-infective subject to a maximum of 24 months treatment or till medical/surgical finality is reached, whichever is earlier. 13. In the cases falling under Para 12(a) above, if at any time during the period of 12 months treatment the disease is arrested, the individual would be brought before a duly constituted medical board to determine his fitness for retention in service. Those who are found fit for retention in service will be dealt with as under:- (a) If an individual is found fit for retention in service he will be placed in medical category 'C' (CEE and sent back to his unit/ship/establishment/Regi Centre provided he can be given sheltered employment for a period of one year. During the period of sheltered employment, he will be governed by the conditions mentioned in para (b) below. If he cannot at all be provided sheltered employment he will be invalided out of service in which case also, the procedure detailed in para (b) will be followed. (b) If at the end of one year's sheltered employment the medical category of the individual cannot be upgraded on account of his disability or in the event of relapse of the disease at any time during the period of five years after rejoining the duty, he will be invalided out of service, but he will be given leave as entitled to under para 15(b) below and any further medical treatment will be under the rules available to ex-service personnel. Note :- The term upgraded used in para 12(a) above implies that if the medical category of individual is raised from 'C' to even 'B' within the specified period, it indicate an improvement in the clinical state of the individual. (c) The provisions of sub para 5(11)(a), (b) and 5(ii) and para 6 apply mutatis mutandis to JCOs/OR and their equivalent ranks in the Navy and Air Force. (c) The provisions of sub para 5(11)(a), (b) and 5(ii) and para 6 apply mutatis mutandis to JCOs/OR and their equivalent ranks in the Navy and Air Force. It may, however, be added that in the case of personnel below office rank, the whether TB/Leprosy is attributable to or aggravate by service rendered prior to the date he rejoined duty is normal, decided by the Controller of Defence, Accounts (Pension). Accordingly in their cases the decision of the Controller Defence Accounts (Pension), unless superseded by the President, will be acted upon." 12. That the appellant completed his training on 23.06.2001, but fell ill and was admitted in Military Hospital Jabalur on 09.07.2001. Thereafter, due to his continued illness, he was admitted on 03.08.2001 at Military Hospital Namkum, where after treatment he was discharged by respondent No. 3 on 07.11.2001. 13. That in the light of the aforementioned factual background, it is contended that although persons recruited along with the petitioner, were attested on 05.07.2001 on completion of their character verification, but in the case of the petitioner there was delay in initiating character verification and in the meantime he fell ill and was admitted, in Hospital on 09.07.2001, where-after he was transferred to the specialised facility at Army Hospital Namkum on 03.08.2001. Resultantly, he was not attested. 14. A perusal of paragraph No. 7 of the objections reveals that the verification roll of the petitioner was sent in time but despite receipt of the report, the petitioner could not attested because he was not present in JAK RIF Regimental Centre as he was availing medical treatment on account of suffering from Pulmonary Tuberculosis at Military Hospital Namkum. The appellant could not be retained in service in terms of para 20 of Appendix A to Army Order 150/75. Consequently, Invalidating Board was carried out on 29.09.2001 at Military Hospital Namkum and approved by HQ MP B&O Area on 08.10.2001 as per which the duty constituted medical board recommended the invalidation of the appellant from service in low medical category 'EEE'. 15. Consequently, Invalidating Board was carried out on 29.09.2001 at Military Hospital Namkum and approved by HQ MP B&O Area on 08.10.2001 as per which the duty constituted medical board recommended the invalidation of the appellant from service in low medical category 'EEE'. 15. that the plea that the appellant was entitled to have been attested on 05.07.2001 i.e. the date on which other cadets were attested on the basis of Section 17 of the Army Act read with Army Order 343-344 and Para 139 of the Regulations for the Army 1962 and Rule 8 of the Army Rules 1954 has been dealt with by the learned Writ Court by holding that the appellant could not claim attestation from the date the other cadets were attested for the sine-qua-non for attestation Was police verification about character prior to attestation as a soldier. The verification rolls of the appellant were forwarded for verification on 26.12.2000 but were inadvertently sent to the District Magistrate Jammu instead of being sent to District Magistrate Udhampur. However, the verification rolls were forwarded to the District Magistrate Udhampur on 22.01.2001, who, in turn, forwarded the verification report to the Army Authorities on 30.08.2001 whereas the petitioner was admitted in Hospital on 09.07.2001. However, the fact remains that attestation as per the aforementioned provisions, is dependent upon police verification report, therefore, it was not open to the appellant to contend that irrespective of the date of receipt of police verification, he should be deemed to have been attested from the date, the cadets enrolled along with him were attested. As per AO 343-344, attestation is to take place only after successful completion of basic Military and Technical Training subject to favourable verification report. Verification report was received only on 30.08.2001 whereas the petitioner was admitted to Hospital on 09.07.2001 and could not be considered for attestation on account of his suffering from Pulmonary Tuberculosis. It also needs mention that Pulmonary Tuberculosis is not a disease which occurs over night and has a considerable incubation period. 16. In the circumstances, there is no infirmity in the judgment of the learned Writ Court warranting intervention by this Court. Accordingly, the appeal is bereft of merit and is dismissed as such.