ARMED FORCES TRIBUNAL,

REGIONAL BENCH,
JABALPUR
MA/01(J)/2016 Inre OA Nil/2016
Date of Order : 19.01.2018

Hon’ble Mr. Justice Amar Saran, Judicial Member

Hon’ble Lt Gen N.B. Singh, Administrative Member

Havildar (Lineman) NJK Dahya Lal (Retd), (No. 153712597L), S/o

Shri DC Nayak, R/o Parmananad Nagar, Sindhi Colony, Laloda
Road, Tehsil - Idar, Dist- Sabarkantha (Gujrat).
..…. Applicant
Versus

1. Union of India, through the Secretary, Ministry of Defence,

Government of India, New Delhi.
2. Chief of Army Staff, Integrated Headquarters of Ministry of
Defence (Army) DHQ Post Office New Delhi.
3. The Officer-In-Charge, Signal Records, Jabalpur Cantt
Jabalpur (M.P.).
…… Respondents

Ld. Counsel appeared for the Applicant - Shri KC Ghildiyal

& Shri HC Singh
Advocates.

Ld. Counsel appeared for the Respondents - Shri Vikram Singh,

Central Govt. Counsel.
Along with
Maj Gourav Verma,
OIC Legal Cell.
 MA/01(J)/2016 Inre OA Nil/2016

ORDER
Delivered by Hon’ble Lt Gen (Dr) Narendra Bahadur Singh,
Member (A)

1. This OA has been filed under Section 14 of the Armed Forces

Tribunal Act, 2007 by Ex Hav NJK Dahya Lal against the impugned
order dated 09.11.2013 and 26.10.2015 directing his discharge form
service w.e.f. 30.04.2014 as well as rejection of his representation by
the Competent Authority denying grant of extension of service.

2. The applicant has submitted that he was enrolled in the Army in

the Corps of Signal on 27.12.1989. He was promoted to the rank of
Havildar on 01.01.2008. On 17.09.2013 he was placed in Low
Medical Category (LMC) P2 (P) for “Obesity and Impaired Glucose
Tolerance and Tubercular Effusion (RT)”. He further submits that he
was screened for extension of service by two years in 2011 and his
extension was approved and as such he was to retire from service on
completion of 26 years on 31.12.2015. W.e.f 04.11.2013 to
28.12.2013 he successfully completed the promotion course for
promotion to the rank of Naib Subedar and states that his juniors
were promoted to the rank of Naib Subedar w.e.f. 01.03.2014 or
01.04.2014. An order was issued by respondent No.3 on 09.11.2013
directing the retirement of the applicant from service w.e.f.
30.04.2014 on the ground that he was LMC for Obesity and hence
ineligible for promotion as per the instant policy. His representation
before the Competent Authority against the denial of extension was
rejected on the same grounds on 26.10.2015. The applicant has
contended that during his Release Medical Board (RMB) held on
04.04.2013 his actual body weight was shown as 69 kgs as against
the ideal body weight of 66.5 kg and he was shown as overweight by
3.6 kg, as he was overweight by less than 10% he could not have
been placed in LMC for Obesity as per policy letter on the subject.
He has, therefore, contended that the Medical Board is apparently

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illegal and contrary to the provision of RFMS-2010 and liable to be

ignored as per directions of Hon’ble Apex Court in case of Veer Pal
Singh Vs Secretary of Ministry of Defence (2008) 13 SCC 83. He
has concluded that as he was erroneously placed in LMC P2 for
Obesity and was denied promotion as well as extension of two years
service, he is entitled to be promoted to the rank of Naib Subedar
w.e.f. 01.03.2014 or 01.04.2014 and as he could have served for 28
years in this rank, he is also entitled for further promotion of Subedar
on the date when his batch mates were promoted. He has placed
reliance in a case of Armed Forces Tribunal, Regional Bench at
Kochi, OA No 18/2015, Ex Nb Sub Kuriakose CV Vs Union of India
& Others decided on 21.09.2015. He has prayed for reinstatement
in service w.e.f. 01.05.2014 and promotion to the rank of Naib
Subedar with all consequential benefits.

3. The respondents in their response have corroborated the basic

facts about the applicant and stated that the petitioner was granted
two years extension of service in terms of Integrated HQ of MoD
(Army) letter dated 21 Sep 1998 (Annexure R2). Subsequently, as
the petitioner was placed in LMC before commencement of extension
of service and became ineligible for grant of two years of extension of
service for the said extension and accordingly his discharge order
dated 09.11.2013 was issued with the date of discharge as
30.04.2014. They have contended that as the RMB had physically
examined the applicant and placed him in LMC for all three
disabilities (i) Impaired Glucose Tolerance (ii) Obesity (iii) Tubercular
Effusion (RT), therefore, the opinion of the medical board was given
due weightage and value. The same has been reiterated by the Apex
Court in Civil Appeal No 164/1993, Union of Indian And Others Vs
Ex Sapper Mohinder Singh. As the applicant was diagnosed as
obese vide AFMS 16 dated 11.04.2014, hence his contention that he
is not obese is not sustainable in the eyes of law. On the same
ground, he was not eligible to promotion to the rank of Nb Sub being
LMC on account of Obesity. As he failed to report to Depot Regiment
within a stipulated period he was locally discharged from service on

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30.04.2014. They have further contended that as he was discharged

from service on completion of terms of engagement there was no
requirement for issue of show cause notice.

Arguments

4. During the course of the arguments Shri KC Ghildiyal, Ld

counsel for the applicant drew the attention of the Court to Army
Order 03/2001, and stated that as per Appendix A to the said Army
Order the applicant was not obese since in the said table it is clearly
mentioned that the 10% variation on either side of the average weight
was acceptable and the applicant was well within this 10% limit and
therefore it is not understood as to how he was declared obese and
subsequently not granted the extension. He also stated that the
applicant was fulfilling all conditions for grant of extension of two
years service in accordance with the policy letter dated 20.09.2010,
wherein vide Para 2(b)(ii), personnel placed in medical category BEE
were eligible for extension of service and this was to include
temporary as well as permanent low medical categories and was
irrespective of whether the disease was attributable to / aggravated
by or not by military service. He contended that since at the time of
the RMB the applicant was not found to be obese, his discharge was
illegal and liable to be set aside. He drew the attention of the Court to
the letter dated 26.10.2015 (Annexure A/2) as well as letter dated
09.11.2013 (Annexure A1) where the primary reasons for not granting
extension to the applicant was stated to be Obesity. He placed
reliance on OA No 18/2015 (supra) of AFT, Kochi.

5. Shri Vikram Singh, Ld counsel and Maj Gourav Verma, OIC

Legal Cell appearing on behalf of the respondents in their reply drew
the attention of the Court to the medical board proceedings
(Re-categorization) dated 17.09.2013 wherein the applicant was
found to be suffering from three disabilities including Obesity and had
been placed in medical category P2 (P) for all disabilities. He was
advised weight reduction and life style modification with minimal
physical activity. They further added that based on this medical

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categorization the decision to discharge the applicant was taken as

he was completing his terms of engagement on 30.04.2014 and was
not eligible for grant of any further extension as per instructions
contained in IHQ of MoD (Army) letter No B/33098/AG/PS-2(C) dated
06.06.2012. They reiterated their earlier stance that as the medical
board is an expert body and as it had given the finding that one of the
ground for the applicant to be LMC was Obesity, the same was duly
considered being the opinion of the expert body and accordingly the
applicant was found to be ineligible for grant of extension of ser vice.
They drew the attention of the Court to policy letter dated 21.09.1998
Appendix ‘A’ Para 2(b) (i) & (ii) where the following was mentioned:-

“2(b)(i):- Must continue to remain in medical category AYE. Those

who are temporary low medical category at the time of screening board
will continue to be in service. If this temporary low medical category is
made into permanent low medical category by subsequent re-
categorization Medical Board before commencement of the enhanced
service limit, the individual will be disposed of
in accordance with the existing rules on the subject.

“2(b)(ii):- The screening boards would screen permanent low

medical category PBOR with a view to assess their suitability for
retention up to enhanced service of age limit, provided there is ample
opportunity for upgradation of their medical category by the
subsequent re-categorisation medical board before commencement of
the enhanced service limit. The screening board can declared them fit
conditionally by adding a clause in their case “subject to his medical
category being upgraded to the acceptable level before expiry of his
normal tenure.” If they are not assessed fit by the screening board,
they will be disposed of in the normal manner and will not be given the
benefit of enhanced service limit.”

6. They have submitted that vide policy letters dated 06.06.2012

as well as 22.02.2001 it has been laid out that cases of category BEE
(Temporary or Permanent) for Obesity will not be considered for
extension of two years unless they are regular sportsman. As such
the individual was not eligible for extension on this ground also.

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7. We have heard the case, perused the pleadings and gone

through the case laws provided by the contending parties. It is seen
that vide Appx ‘A’ to policy letter dated 20.09.2010, procedure and
criteria for screening of PBOR in the Army, the following is the
eligibility for grant of extension in respect of personnel in medical
category BEE:-

Appx ‘A’

“2(b)(ii). Eligible upto Medical Category ‘BEE’. Personnel placed

in category ‘BEE’ will be eligible for extension in service. This will
include both temporary and permanent low medical categories. This
will be irrespective of whether or not the disease, sickness or injury is
attributable / non-attributable to or aggravated by service conditions.
However, cases of medical category ‘BEE’ (both temporary and
permanent) due to psychological causes, misconduct or self inflicted
will not be eligible for extension in service.

(iii). (aa) Eligibility at (i) and (ii) above is subject to proficiency of

the affected personnel being of a specially high standard and
suitable appointments being found for them within the
Regiment/Corps.

(ab) The above yardsticks will apply uniformly to all

categories of JCOs/ NCOs and no consideration will be given
to categories like Clerks, Storemen etc on the ground that a
particular disability (hearing, eye-sight and so on) does not
interfere in the performance on their duties.”

8. In addition, based on a specific query by Infantry Directorate, a

clarification was issued on 06.06.2012 stating that the criteria for two
years extension in case of JCOs and ORs will be the same as for
promotion and that personnel found to be in LMC BEE (temporary or
permanent) for Obesity will not be considered for extension of two
years unless they are a regular sportsman as per para 2 of IHQ of
MoD letter dated 22 Feb 2001. It is noted that the applicant has been
an LMC since 25 Mar 2010. He became LMC for Impaired Glucose
Tolerance & obesity w.e.f. Mar 2013. He was placed in LMC P2 (P)

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w.e.f. 17 Sep 2013. As such he became unfit for extension of service

as per provisions of IHQ of MoD (Army) letter No. B/33513/AG/PS-
2(e)(i) dated 22 Feb 2001. It is noted that para 20 of AO 3/2001,
deals with policy on disposal of overweight JCOs, NCOs & OR and
reads as under :-

PART IV (a) – POLICY ON DISPOSAL OF OVERWEIGHT

JCOs, NCOs AND OR

20. During ME of JCOs, NCOs and OR, the body weight will be
checked as per the age, height and weight chart published at Appx ‘A’ to
this order and disposal will be as under;-
(a) (i) If weight is more than 10 per cent but less than 20
percent over and above the ideal body weight (IBW), the individual
has no symptoms/signs of any disease and no abnormality is
detected even after investigations, the individual will be advised in
writing in the sick report book to reduce his weight within 12 weeks
by strict dieting and physical exercises.
(ii) After 12 weeks, if the individual, has not brought down his
body weight to less than 10 percent over and above his IBW, he will
be placed in medical category P2(T-24).
(iii) At the end of one year, if the individual continues to be
overweight by more than 10 per cent over his IBW, he will be
downgraded to category P2(Perm) and will be debarred from
promotion to the next higher rank.
(iv) After the individual is placed in permanent LMC for obesity,
no sheltered employment will be given. After contractual period of
service individuals may be released from service as per AR-13.
(b) If the body weight is in excess of IBW by more than 20 percent,
investigations will be carried out with a view to exclude any metabolic
abnormality and he will be placed in medical category P-2(T-24). Rest is
as per para 20(a)(iii) above.
9. The case law referred to by Ld counsel for the applicant (OA
18/2015 of AFT Kochi (supra)) no way supports the contention of the
applicant. The AO at para 20 (a) (iv) categorically states that after
the individual is placed in LMC for obesity, no sheltered employment
will be given and the individuals may be released after contractual
service as per AR 13. It is also seen that during the RMB held on
11.04.2014 at Military Hospital, Jalandhar Cantt, on page 1 of AFMS-

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16 the applicant’s personal details had been furnished in Part I

(Personal Statement) and at para 3 of the said statement, while
answering the following requirement :

3. Give particulars of any diseases, wounds or injuries from

which you are suffering.

The applicant had answered the following:- (i) Impaired

Glucose Tolerance, (ii) Obesity, (iii) Tubercular Effusion (RT)
and he had signed on the same on 28.02.2014.

10. The President of the Medical Board in response to a query has

given the following answer vide MH Jalandhar Cantt letter dated
31.03.2017:-

“Court Case : MA No 01(J) of 2016 in OA No Nil/2016 filed by No

15371259L Ex Hav NJK Dahya Lal Vs UoI & Ors in the Hon’ble AFT
(RB) at Jabalpur.

1. Ref your letter No P/15371259/LC/T-2/PC-352 dated 16 Mar

2017.

2. In this regard, it is stated that when recategorisation Medical

Board of No 15371259L Hav JD Nayak was done on 26 Mar 2013, he
was placed in LMC P3(T-24) w.e.f. 26 Mar 2017 (copy att) for disability
Impaired Glucose Tolerance with Obesity as he was found to have
body weight of 79 Kgs which is much more than 10% range of his ideal
body weight hence the category was given, he was also continued in
low medical classification P2(P) for Tubercular Plural Effusion w.e.f. 21
Mar 2013. His Release Medical Board was held on 11 Apr 2014 on the
basis of Signal Records signal No A-6890 dated 09 Nov 2013. As per
Para 13 of Appx ‘C’ to AO 03/2001/DGMS (Army), indl was examined
for release purpose only and his existing medical category cannot be
changed.”

Sd/-xxx.
(K Pathania)
Lt Col
President Medical Board

We hereby reproduce para 13 of A003/2001/DGMS:-

“13. When a JCO/OR, who is in permanent low medical category

‘2’ or ‘3’, in any SHAPE factor, reports to hospital for medical board,

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consequent to issue of orders for his discharge/release from service,

in accordance with the prescribed policy, the medical board will
ensure that the individual is examined for release purpose only and
his existing medical category is not changed.”

11. The Presiding Officer of the Medical Board has clearly brought
out that in accordance with Para 13 of Army Order 03/2001/DGMS
(Army) when the individual is being examined for release purpose the
medical category cannot be upgraded. It is also seen that the same
Army Order at Para 19 (b) has mentioned the following:-

19(b). The medical Category of those placed in permanent medical

category is reassessed every two years except in case where the AMA
considered that the existing medical category of any individual has to be
downgraded. In all such cases the individual should be brought before the
duly constituted medical board.

12. It is therefore evident that the individual’s category could not

have been reassessed at the time of the RMB as per the extant policy
and could have only been reviewed after two years. During the
course of the RMB the applicant has been again placed as P2(P) for
all three disabilities and has been given a cumulative assessment of
disability as 20% for three years which has been made attributable to
military service.

13. We therefore find that the due process has been followed as far
as the categorization of the applicant is concerned, by the Review
Medical Board held on 17.09.2013 where he was placed in LMC
w.e.f. 17.09.2013 and the date and place of next re-categorisation
board was given as 17.09.2015. At the time of the RMB the applicant
has filled in the personal statement Part 1 and accepted that he was
suffering from all the three disabilities including Obesity. As such at
this stage, his asking for any relief on account of an oversight
committed by him is not justified. The RMB was also within its rights
to have assessed the applicant as per his current medical
categorisaiton since the review was only feasible at the end of two
years from the date of his initial categorisation. Moreover, there is

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nothing on record to show that he had brought this issue in front of

the Release Medical Board. One cannot sleep over over an
opportunity and claim once the same has been missed. Moreover, as
per policy his LMC could have been reviewed only after two years.

14. We therefore are of the opinion that no injustice has been done
to the applicant and the decision of not granting him extension in
2013 was correctly taken based on extant rules. The fact that he was
within 10% variation on either side of the acceptable average weight
during the RMB cannot be solely taken as the ground to justify him
the extension, since the grant of such extension is also had
dependent on other eligible criteria as given out in the policy letter
and availability of suitable appointments within a Regiment or Corps,
which may have been filled up by other personnel who had been
granted the required extension. Any relief now could unsettle the
settled rights of other parties, whose rights have been settled in the
meanwhile. The fact remains that the time of his discharge he was
LMC (P2 Permanent) and still found to be having two disabilities i.e.
Impaired Glucose Tolerance and Tubercular Effusion (RT) (if his
contention of not being obese is accepted) and was given a
composite assessment of 20% for three years with attributability to
military service. His discharge was as per extant rule position, and no
arbitrariness or malafide stands established.

15. We find no basis for grant of any relief to the applicant. The OA
is dismissed. No order as to costs.

(Lt Gen N.B. Singh) (Justice Amar Saran)

(Member (A) (Member (J)

Sarkar / 19.01.2018

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