Union of India v. R. Bhusal

Case Details & Bench

Court: High Court
Hon'ble Judges: Arijit Pasayat
S. H. Kapadia
Judgment Date: 2006-07-12
Court Decision / Holding: The appeal is disposed of. The High Court should rehear the writ petition to consider the applicability of the relevant policy regulations with the opportunity for the parties to place further materials, and the High Court should dispose of the matter within four months from the date of the Order.
Final Disposition: Appeal disposed of. No costs.

Parties to the Case

Appellants / Petitioners

Union of India

Respondents

R. Bhusal

Legal Representation & Advocates

Counsels for Petitioners

• Mohd. Yusuf
• Kiran Bhardwaj
• Sushma Suri

Counsels for Respondents

• N.M. Krishnamani
• Narender Kaushik
• Pankaj Kaushik
• Ashok Kumar Sharma

Case Synopsis & Summary

This appeal challenges a Delhi High Court writ petition that ordered a permanent commission for an armed forces officer. The respondent, who was granted Short Service Commission with No. 3 Helicopter Short Service Course in 1993, was considered for permanent commission in February 2001. Suitability was determined by two criteria: demonstrable performance (minimum three-year average grade) and medical fitness (category). The Board found the applicant’s average to be 6.0, below the required 6.5, and assigned a medical category of A4G3, leading to denial of permanent commission and a release order issued in April 2002. The respondent contended that the medical deficiency arose from service-related injuries and should not be used to deny the permanent post, especially since a Chief of Air Staff inquiry concluded that no one could be blamed and injuries were attributable to service. The Union of India defended the decision, arguing that the performance criteria were not met and that medical fitness was only one factor among several. The Delhi High Court allowed the writ petition, directing that the officer be granted permanent commission and that alternate employability be considered with regard to fitness. The Supreme Court found that the High Court’s conclusions exceeded the pleadings and directed rehearing to properly examine the applicable policy regulations, with a view to disposing the matter within four months. The appeal was disposed of with no costs.

Submissions & Arguments

Contentions of Appellants / Petitioners

The Union of India contends that permanent commission decisions hinge on two criteria: a minimum performance benchmark (a three-year average of at least 6.5 in mandatory qualities) and a medical fitness category (A-2-G-2 or better). It asserts the respondent did not meet the performance standard (6.0 vs 6.5) and that, within the overall assessment, medical deficiency is only one factor among several under the relevant policy regulations. The Union maintains there was no challenge to the applicability of these criteria or to the regulations governing permanent commissions. It argues the High Court erred by relying on materials and concessions not pleaded and by examining issues beyond the pleadings, and it urges rehearing to consider the proper application of the policy regulations. It also notes that an interim order keeping the respondent in service should not prejudice the outcome and asks the High Court to dispose of the writ petition within a defined period after re-briefing the evidence.

Contentions of Respondents

The respondent maintains the medical deficiency, arising from a service-related aircraft accident, improperly influenced the decision to deny permanent commission. He contends the medical categorisation A4G3 should not be used to deny a permanent post, particularly since the injuries were service-connected and no blame attached as per the Chief of Air Staff's inquiry. He argues that permanency should reflect the service-connected nature of his injuries and seeks reversal of the denial, emphasizing that the performance criteria were not the only measure, and that the High Court appropriately addressed the claims by examining the overall suitability and the factual matrix.

Extracted Judgment Text

Exact text extracted from official judgment records.

A ## UNION OF INDIA _v._ ## R. BHUSAL ## JULY 12, 2006 ## B [ARIJIT PASA YAT AND S.H. KAPADIA, JJ.] _Service Law:_ _Armed Forces-Air Force-Claim for Permanent Commission-Officer_ C _granted Short Service Commission-With Helicopter Short Service Commission course-After completion of initial period, considered but not recommended for permanent Commission and release order issued as his performance appraisal ·was beloll' 111ini111u111 require111ent-Medical fitness was also below the required catego1y-Order challenged on the g,·ound that lower 111edical_ D _categm)' should not have been taken into account to deny hi111 per111anent Com111ission-High Court allowing writ petition-Held, conclusions arrived al by High Court were beyond pleadings-Specific stand of the Department was perfor111ance criteria fixed under the applicable policy regulations was not fulfilled by the Officer-There is no specific challenge as to applicability of either criteria or policy regulations.-Jn the fitness of things, High Court_ E _should re-hear the matter._ CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1622 of2004. From the Judgment and Order dated 18.2.2003 of the High Court of Delhi at New Delhi, in Writ Petition No. 8307/2002. F Mohd. Yusuf, Kiran Bhardwaj and Sushma Suri for the Appellant. N.M. Krishnamani, Narender Kaushik, Pankaj Kaushik and Ashok Kumar Sharma for the Respondent. G The Judgment of the Court was delivered by **H** **ARIJIT** PASA Y AT **J.** Union of India calls in question legality of the judgment rendered by a Division Bench of the Delhi High Court allowing the writ petition filed by the respondent. By the impugned judgment, High Court directed the present appellant to grant the writ petitioner a permanent 498 499 U.0.1. _v._ R. BHUSAL (PASAYA T . .I.] ... commission. It was further directed that alternate employability was to be A given, keeping in view his medical fitness. Background facts in a nutshell are as follows:- The respondent was granted Short Service Comission with No.3 Helicopter Short Service Commission Course on 19.2.1993. His initial terms B was for ten years as per terms and conditions of service. In February 200 I, he was considered for grant of permanent comission. The suitability assessment consisted of minimum demonstrated performance and medical fitness. The former was to be gauzed from the grading in the confidential annual reports for the previous three years and on the basis of mandatory qualities like C professional knowledge, job proficiency integrity, loyality, dependability, sense of responsibility, courage (mental and physical), bearing and demeanour. For grant of permanent commission. a minimum average of 6.5 in the previous three years appraisals and not less than 6 in the manadtory qualities. As regards medical categorisation, the requirement was not below the rating of A-2-G-2. According to the appellant, respondent averaged 6.0 as against the D minimum requirement of _6.5._ As regards medical fitness. he was in the category of A4G3. Accordingly he was not recommended for permanent commission by the Board and release order was issued on I 1.4.2002. Respondent's representation was rejected. Thereafter, respondent filed a writ petition before the High Court. His basic stand was that he was in the lower medical category as he was involved in an aircraft accident and that should not have been E taken into account to deny permanent commission, particularly when the Chief of the Air Staff had on enquiry found that no one could be blamed and the injuries sustained by the petitioner were attributable to service. Stand of the present appellant was that low medical categorisation had F no bearing on the decision to deny the permanent commission. It was categorically stated that the writ petitioner did not meet the minimum performance criteria. As noted supra the High Court allowed the writ petition. Learned counsel for the appellant submitted that the High Court did not consider the case in its proper perspective and allowed the writ petition overlooking the fact that there was no challenge to the performance criteria adopted and determination on the basis thereof. G Learned counsel for the respondent supported the judgment of the High H 500 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R. ## A Court. We find that the High Court's consideration of the writ petition filed by the respondent and conclusions arrived at were beyond the pleadings. The High Court acted on certain materials and purported concession without examining whether that concession was well founded and whether the appellant B got an opportunity to clarify the position as regards the applicability of the regulations which according to the High Court had application. The basic challenge in the writ petition was that the medical deficiency found by the appellant was not properly assessed. In the counter affidavit, the specific stand of the appellant-Union of India was that the medical deficiency was C only of the factors while assessing suitability for permanent commission. The Union of India's specific stand was that the performance criteria fixed under the applicable policy regulations was not fulfilled by the respondent. In the rejoinder affidavit filed, there was no specific challenge as to the applicability of the either criteria or policy regulations. D Therefore we find no substance in the plea of learned counsel for the respondent that though the High Court apparently travelled beyond the pleadings, its conclusions are justified in law. In the fitness of things, the High Court should rehear the matter. We make it clear that we have not expressed any opinion on the acceptability of E the plea raised by the respondent in the writ petiton. If the High Court so feels, it may permit the parties to place fu11her materials in respect of their respective stand. Learned counsel for the appellant submits that by virtue of interim order the respondent is continuing in service. Keeping that in view, we request the High Court to explore the possibility of disposing of the writ F petition within a period of four months from the date of receipt of our order. The appeal is accordingly disposed of. No costs. R.P. Appeal disposed of.