Chintamani Rout vs Union Of India And Others

The applicant, who was enrolled in the Indian Air Force on 11.05.1989 and was on deputation to Sri Lanka under the project ""DRISHTI"" from

08.02.2007 to 10.10.2008, suffered certain injuries while he was on duty as Crew Chief at No. 2 ADRS, SLAF Base Vavuniya (Sri Lanka). On

09.09.2008, at about 0320 hrs. LTTE Black Tigers carried out a coordinated Air and Ground attack at the Base with mortars, rockets and bombs. The

applicant sustained splinter injury to his left leg posteriorly and another air warrior hit him near the right eye. On medical evaluation, the applicant was

classified in a low medical category A4G4(P). Even though he was disabled due to war injury, it is stated that he was denied promotion because of his

low medical category and praying for the following reliefs, the application in question has been filed under Section 14 of the Armed Forces Tribunal

Act, 2007 (in short, the Act):

(a) Quash and set aside impugned letter dated 18.02.2019;

(b) Direct the respondents to waive off the restriction of promotion to the rank of Junior Warrant Officer (JW0) being in low medical

category A4G4 for war injury from the date he was de and also to grant all consequential service benefits like seniority, etc. at par with his

batch mates; and

(c) Direct the respondents to treat the injury of the applicant as battle casualty and to issue battle casualty/war injury certificate and its

consequential benefits after promulgation of POR of war injury.

As far as the deputation of the applicant to Sri Lanka under the project ""DRISHTI"" for the period in question and the fact about his sustaining injury

and the subsequent classification in the low medical category A4G4 are concerned, all these factors are admitted and we need not dwell into all these

aspects of the matter. Primarily, it is the case of the applicant that even though he has been classified as a person with ""battle casualty"" on account of

his disability due to operational activity on deputation, he has been denied promotion on such consideration. It is his case that in the other wings of the

Armed Forces viz. the Navy and the Army, in the promotion policies in vogue, there are provisions for special consideration to persons like the

applicant. Learned counsel inviting our attention to the promotion policy of JC0s/ORs contained in Annexure All dated 10.10.1997, referred to Para

4(a) of the aforesaid policy and submits that in the Army, there is a provision for grant of special consideration for personnel wounded/injured during

deployment in various operations, including fighting with militants/terrorists and treating them as battle casualties, special provisions have been made in

the Army for grant of promotion also. However, in the Air Force, the authorities have failed to consider framing of such provisions for battle casualty

personnel. It is stated that there are similar provisions in the Navy also, but the third wing of the Armed Forces i.e. the Air Force, there is no whisper

about grant of any such special benefits to a person who is injured in operation. Referring to certain judgments and contending that there is

discrimination in the matter, the aforesaid reliefs are claimed. That apart, referring to the communication received by the applicant, after filing of this

application i.e. Annexure R1 dated 31.07.2019 filed by the respondents along with their counter affidavit, learned counsel tried to argue that the

communication indicates that the applicant is classified and is to be treated as a battle casualty, but no benefit is extended to the applicant by the

competent authority classifying him as a battle casualty and, therefore, the prayer in Para 8(c) is for seeking issuance of a certificate classifying the

applicant as a battle casualty and granting consequential benefits thereof. Learned counsel emphasised that when a member of the Force sustains

injury while in operation and when he suffers due to the same, there should be a provision to grant certain special benefits to such persons and the

authorities of the Air Force, in failing to provide for such a provision, have acted in a discriminatory manner, particularly when in the other wings of the

Armed Forces viz. Navy and Army there are provisions to this effect.

Refuting the aforesaid contentions, Mr. Tomar, learned counsel appearing for the respondents argued that the applicant is entitled to only such

benefits as are available to a member of the Air Force as per their policy, Annexure All dated 10.10.1997 is the policy applicable in the Army wherein,

there is a provision under Medical Standards (All Promotions to the rank of LD/NK and above), but in the Air Force, there being no such policy,

therefore, in the absence of there being any policy, the applicant cannot claim any benefit. Referring to the policy applicable in the case of the Air

Force viz, the promotion policy applicable to airmen (Annexure A10 dated 14.01.2015) and Clause 28(c) thereof, learned counsel for the respondents

argues that in the Air Force, an airman like the applicant in low medical category is eligible only for time bound promotion and not for selection

promotions. He accordingly argues that in the absence of there being any policy, no relief can be granted to the applicant.

As far as the grant of certificate to the applicant is concerned, the learned counsel for the respondents argues that Annexure RI dated 31.07.2019

has been issued to the applicant and as the applicant is not claiming any other benefit based on the said communication, no relief, at this stage, can be

granted to him. That apart, learned counsel also argues that the claim of the applicant is barred by limitation inasmuch as the applicant was considered

continuously for promotion right from 2011-12 to 2018-19 and it is only in the year 2019 that he has invoked jurisdiction of this Tribunal claiming the

benefit of promotion, that also after inordinate delay. The claim, according to the learned counsel for the respondents, is barred by limitation and in

support thereof, he places reliance on a decision of the Supreme Court in D.C.5 Negi v. Union of India and others (2019) 1 SCC (L&S) 32.1 That

apart, it was emphasised by the learned counsel appearing for the respondents that in exercise of the limited jurisdiction available to this Tribunal under

the Act in a proceeding initiated by virtue of the powers available under Section 14, in the absence of there being any legally enforceable right

available to the applicant, no direction can be issued, particularly with regard to issues pertaining to policy matters. It is argued that laying down policy

and formulating conditions for grant of service benefit are matters exclusively within the domain of the policy making authorities and normally, a

Tribunal or a court of law cannot issue any direction in the matter of formulating such policies. Accordingly, in sum and substance, it is the case of the

respondents that for the medical category in question, in which the applicant falls there being no policy applicable in the Air Force for grant of any

promotion, no relief can be granted to the applicant.

We have heard the learned counsel for the parties at length and have also taken note of the rival contentions.

At the very outset, we would like to deal with the issue of delay in filing this application and the objection pertaining to limitation raised by learned

counsel for the respondents. Even though the applicant was empanelled for promotion to the next higher rank during the promotion exercise conducted

continuously from 2011-12 onwards up to 2018-19, the claim of the applicant was alive even in the year 2018-19 when he was empanelled but not

granted promotion. That apart, his legal notice was replied on 18.02.2019 and it was only after filing of this application that the communication with

regard to the status of the applicant as a battle casualty was intimated to him on 31.07.2019. In view of these circumstances, we are unable to uphold

the objections of the respondents. We find no delay in filing of the application. Accordingly, this objection is rejected.

As far as Prayer 8(c) is concerned, vide Annexure R1 dated 31.07.2019, the Group Captain of the Air HQs (VB), New Delhi has issued a

communication, captioned as a battle casualty certificate issued to the applicant. The respondents themselves have filed this document and they do not

refute the contention to the effect that the applicant has not been classified as a person who has sustained injury while on deputation to Sri Lanka

under the project ""DRISHTI"", the documents available on record show that the respondents have treated the applicant as a battle casualty. That being

the position, it is not necessary for us to issue any direction for issuing the certificate as prayed for in Para 8(c). In view of the fact that the applicant

has been classified as a battle casualty, in case any right under the law or by virtue of any provision applicable to the Armed Forces, applicant is

entitled to any special privilege or benefit, he may claim it before the competent authority in accordance with law and it would be for the competent

authority to consider such a claim and decide it in accordance with law expeditiously. In this application, as no such benefit is claimed and the only

prayer made is for issuance of a certificate, which, in our considered view, is not necessary in view of the facts as have come on record, particularly

the communication Annexure R1 dated 31.07.2019. We grant liberty to the applicant to claim any consequential benefit, to which he may be entitled to

by virtue of the applicant being classified as a battle casualty.

As far as the main prayer for grant of promotion is concerned, it is a well settled principle of law that a Court or Tribunal normally enforces a right

available to a person in service or out of service or his legal heirs by virtue of the statutory provisions, rules or regulations or law laying down grant of

any benefit by the Legislature. In the matter of laying down rules, regulations or the policy, it is very rare that a Court or a Tribunal would issue a

direction or mandamus to formulate a policy and thereafter grant benefit to a person initiating judicial proceedings. In the realm of jurisdiction available

and the scope of judicial review does not permit this Tribunal to adjudicate into issues pertaining to formulation of policy and issue directions for its

formation and implementation. These are matters beyond the jurisdiction of this Tribunal. Laing down a policy particularly one for promotion in the

Armed Forces is a matter exclusively within the administrative domain of the rule or policy making authorities, that apart in the Armed Forces for

laying down such a policy the same warrants consideration of various aspects of the matter, technical, administrative or otherwise in nature and we, in

exercise of our limited jurisdiction, cannot enter into these areas and administrative, executive and expertise policy making exercise. At best, we can

interpret an existing policy and grant benefit to a person approaching us in case a benefit accruing to him under the policy is/ unreasonably or illegally

denied.

In this case, admittedly, the policy in vogue in the Air Force i.e. Annexure A10 dated 14.01.2015 clearly contemplates that an airman in low medical

category A4G4(T/P) alone will be eligible for time bound promotion and not selection promotion. Once the policy prohibits grant of selection promotion

to persons like the applicant in the medical category A4G4(T/P), merely because there is some provision for grant of promotion in the Army or Navy,

we cannot issue any direction. The three wings of the Armed Forces have their own statutory provisions, rules, regulations and policy governing

various facets of the terms and conditions of service and an employee working in one wing of the Armed Forces can only claim the benefit accruing

to him by virtue of the rule, regulation or policy applicable to him in the service, for which he is employed. He cannot claim benefit of a policy

applicable to another service on the ground of discrimination. It is for the Government of India, Ministry of Defence or the competent authority to

consider as to whether, in the facts and circumstances, it is feasible to have a policy for grant of promotion as claimed by the applicant and then

prescribe such policy based on administrative consideration and various other factors connected thereto. That being the legal position, we are of the

considered view that merely because in the Army or in the Navy there are certain provisions in their policy for grant of promotion to persons like the

applicant classified as ""battle casualty"", we cannot issue any direction to formulate a policy or grant similar benefits to the persons serving the Air

Force. If the applicant represents to the competent authority, it would be for them to consider the representation of the applicant, evaluate it in the

backdrop of administrative requirements and other considerations and take a decision in accordance with law within a reasonable period of time. We

grant liberty to the applicant to do so and in case such a representation is made by the applicant, we are confident that the competent authority would

consider the same and take a decision preferably within six months from the date of filing of such representation by the applicant.

With the aforesaid observations, we dispose of this O.A. No order as to costs.