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UNION OF INDIA & OTHERS versus MOHD. YASIN ANSARI

High Court of Judicature at Allahabad

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Union Of India & Others v. Mohd. Yasin Ansari - SPECIAL APPEAL No. 515 of 2006 [2006] RD-AH 16658 (21 September 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

C.J.'s Court.

Special  Appeal  No.  515  of  2006.

Union of India and others .......    Appellants

 Versus

Mohd. Yasin Ansari (No.2991567 K

Ex Sepoy) .......    Respondent.

With

Special  Appeal  No.  516  of  2006.

Union of India and others .......    Appellants

 Versus

Ishu Narayan (No.14436384P

Ex Recruit) ....... Respondent

With

Special  Appeal  No.  517  of  2006.

Union of India and others .......    Appellants

 Versus

Indra Deo Oraon (No.4272650M

Ex Sepoy) ....... Respondent

With

Special  Appeal  No.  300  of  2006.

Union of India and others .......    Appellants

 Versus

Gyanendra Singh (No.15343947N

Ex Recruit) .......   Respondent

     ::::::::::::::

Counsel for the Appellants :  Sri (Dr.) A.K. Nigam, Addl.   Solicitor General of India.

Sri K.C. Sinha, Assistant

  Solicitor General of India

assisted by Sri Ajay Bhanot.

Counsel for the Respondents:  [Col. (Retd. R.A. Pandey].

::::::::

Hon'ble Ajoy Nath Ray, CJ.

Hon'ble  S.  Rafat  Alam, J.

Hon'ble Ashok Bhushan, J.

We are in respectful disagreement with the majority of the reasons given and the order passed by the Hon'ble Single Judge, who disposed of on the 6th of February, 2006 several writ petitions.

In regard to the writ petitions which were dismissed by his Lordship, we are in full agreement with the order passed and the reasons given and these dismissed writ petitions need not be considered once again since no appeals have been filed by or on behalf of the writ petitioners themselves.

We are concerned only with four writ petitions in each of which relief was granted and in each of which case an appeal has been filed by and on behalf of the Army, i.e., the Union of India. Before we come to the individual cases, which all concern discharge of the writ petitioners from the combatant forces on the ground of unfitness, we have to remove out of track one issue on which a lot of time was spent in the Court below and a lot of time unfortunately was also spent before us.

The issue does not arise and is wholly an academic one.

The issue was in regard to the alleged invalidity of a notification issued under Section 47 of the proviso of the Disabilities Act, 1995 being Parliament Act 1 of 1996, the long title of which can be seen from the Act itself.

Coupled with this notification there was another notification under Section 33 of the said Act. The both were issued by the Central Government on 28.3.2002. The notification under Section 33 was not challenged but the notification under Section 47 was challenged by the successful writ petitioners by way of an amendment.

The said Disability Act was brought about for offering full succour to persons with high disability. The Act itself mentioned that any disability below 40% does not come within the purview of the said Act.

Section 33 requires identification of certain posts in organisations of the Government which can be filled up even by persons of this type of high disability. Section 47 mandates that because of the disability and disability alone the person in service will not be removed from service and if necessary even supernumerary posts will be created for them. They would also not be denied promotion because of their disability.

The notification under Section 47 sought to exempt the respondents from being forced to retain them in the combatant forces even if the persons had suffered the degree of high disability which rendered them wholly unsuitable of such retention.

We have not entered finally into the merits or demerits of the challenge to the said notification although we have heard arguments on that matters on several dates.

The reason why we have not finally entered into this matter is that none of the successful writ petitioners was so disabled as to come within the purview of the said Act.

The combatant forces and specially the Army understandably can retain personnel only up to a particular degree of disability and no more. The disabilities are categorised in the Army by numbers ranging from 1 to 5. Up to No.3 the personnel is retained. The fourth category is the borderline category. He is under treatment or is in hospital; either he recovers back to stage 3 and is retained or he does not recover and is thereafter put in category 5 and put out of the Army with or without pension as the case might be.

The Hon'ble Single Judge himself has said at internal page 9 of the judgment that disabilities of the writ petitioners do not fall within the definition of disability under the said Act 1 of 1996. His Lordship proceeded to say that the definition is 'too narrow' in the said Act. Be that as it may, this is wholly in the province of Parliament and the Court cannot extend the large scale benefit given by Parliament under this Act even to lower category disabled persons, i.e., who are less disabled than 40%.

The successful writ petitioners themselves never claimed to be more than 40% disabled. In the Army and the armed forces the disability is not categorised by percentage but it is assessed at the functional level, and is given grades 1 to 5 as we have stated above.

In view of these facts it is obvious and, we can say even admitted, that the issue of the validity of the notification under Section 47 proviso was an issue which was only moot. The decision this way or the other on this issue would help not even one amongst the array of parties in any of the writ petitions. It is a very old and standard principle of law that the Court does not decide merely academic questions. On the application of this principle the Hon'ble Single Judge, with due respect, should have desisted from considering the validity of the impugned notification and should have desisted even more from passing an order quashing the same.

Our judgment is not to be interpreted as either approving or disapproving the impugned notification. The issue does not arise before us and we are bound by the above principle not to give our opinion on the academic issue simply because it is academic. With this clarification the quashing of the impugned notification by the Hon'ble Single Judge is set aside and the notification is to be treated as not affected in any manner either positively or negatively by any order or observations made by us or any order or observations made in the Court below.

Regarding the four individual successful writ petitioners, we give our judgment below.

The case of Mohd. Yasin Ansari is dealt with by his Lordship mainly in paragraphs 3, 4 and 46 of his Lordship's judgment.

The writ petitioner was put out of service on account of eye disability. He was twice examined by the Army authorities and was found to be 20% disabled. His disability was assessed to be attributable to Military service. He was finally discharged from service with effect from the 1st of June, 2001. His Lordship has set aside the discharge order and has directed the respondents to reinstate him in service with arrear, wages and seniority. We are in respectful disagreement with this part of the order. If the medical authorities of the Army have thought the person to be unable to serve properly and not found him a useful person for the combatant forces, the writ Court cannot sit over the fact and direct reinstatement. Regarding sheltered appointment ordered to be considered by his Lordship on the basis of the Army order dated 15.3.2000, we modify the said order only to this extent that such consideration will no doubt be made but if the conditions for sheltered appointment are not found to be satisfied, each and all, in the case of the said writ petitioner, the respondents will be under no compulsion to offer sheltered appointment because and only because the Court has ordered the case to be considered once again afresh.

In regard to the writ petitioner, Gyanendra Singh, his Lordship gave the reasons for allowing the writ petition under inter alia paragraphs 6, 7 and 47 of the impugned judgment.

The order is substantially upheld in this regard excepting that there will be no compulsory order for reinstatement nor any order for payment of arrears. Gyanendra Singh who was discharged from service in 2004 will be re-examined once again within a period of three months from date hereof by the respondents. If he is found fit in regard to his vision and in regard to other matters, then and in that event he will be reinstated in service forthwith and will be paid all emoluments from and after such reinstatement. If he is not found to be in a sufficiently fit condition for reinstatement, a detailed reasoned order will be passed in that regard and it will be served on the said writ petitioner giving reasons why he is not being reinstated.

Regarding the writ petitioner, Inder Deo Oraon, we note that his case was dealt with by his Lordship inter alia in paragraphs 9, 10 and 48 of the impugned judgment. He was discharged on the ground of psychological disability and he had a sexual dysfunction. The Army authorities explained that he was observed for nearly 2 years. Several Psychiatrists have examined him.  Proper sexual function is an essential requisite in the stringent chart of army fitness. The Court is not to change that chart of fitness or examine why this fitness or that fitness is needed in the Army. It has to be accepted as such. We find no case of mala fide in regard to Inder Deo Oraon. He has been generally thought to be psychologically unfit and discharged with effect from 30.10.2001. The appeal in regard to this writ petitioner is allowed and his writ petition is dismissed without any orders excepting for the above consideration for sheltered appointment, which will be made in the same manner and with the same liberty as in the case of Mohd. Yasin Ansari.

The last and the fourth successful writ petitioner before his Lordship was one Ishu Narayan. His case has been dealt with in paragraphs 11, 12 and 49 in the impugned judgment before us. Ishu Narayan was only at the stage of recruitment. He was diagnosed as unfit and subject to sudden seizure. It was found that he was subject to attack of convulsions and he had bite mark on the right side of his tongue.

In these circumstances we do not find that any discretionary order is called for when the recruit was discharged at the very thresh hold, so to speak, on the ground of unfitness, or if we might say so, found to be unpredictible fitness no question of sheltered appointment arises at the stage of a mere recruit. As such the appeal in regard to Ishu Narayan is wholly allowed and his writ petition is disposed of without any order at all.

The appeals are all disposed of by this common judgment and order. There will be no order as to costs.

Dated 21.9.2006.

Rakesh


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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