ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI O.A No. 19 OF 2012 THURSDAY, THE 25TH DAY OF JULY, 2013/3RD SRAVANA, 1935 CORAM: HON'BLE MR. JUSTICE SHRI KANT TRIPATHI, MEMBER (J) HON'BLE LT.GEN.THOMAS MATHEW, PVSM, AVSM, MEMBER (A) APPLICANT: P.CHANDRAN PILLAI, AGED 45 YEARS, (EX C.P.O. RC-I, NO.162310) SAGARIKA HOUSE, KAITHA NORTH, CHETTIKULANGARA P.O., MAVELIKKARA, ALAPPUZHA DISTRCT, KERALA-690 106. BY ADV. SRI. V.K.SATHYANATHAN. versus RESPONDENTS: 1. UNION OF INDIA, REPRESENTED BY IT'S SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI -110 011. 2. THE CHIEF OF NAVAL STAFF, INTEGRATED HEAD QUARTERS OF MINISTRY OF DEFENCE(NAVY), NEW DELHI -110 011. 3. THE COMMODORE, BUREAU OF SAILORS (CABS) CHEETAH CAMP, MANKHURS, MUMBAI -400 088. 4. THE FLAG OFFICER COMMANDING, WESTERN FLEET (MUMBAI), MUMBAI. 5. THE FLAG OFFICER COMMANDING-IN-CHIEF, HEAD QUARTERS, SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI-682 004. O.A No.19 of 2012 2 6. THE COMMANDING OFFICER, INS VENDURUTHY, NAVAL BASE, KOCHI-682 004. 7. THE PRINCIPAL DIRECTOR PAY AND ALLOWANCES, DTE. OF PAY AND ALLOWANCES, 'D' II WING, SENA BHAWAN, INTEGRATED HEAD QUARTERS, MINISTRY OF DEFENCE (NAVY), SOUTH BLOCK, NEW DELHI – 110 011. BY ADV.SHRI. K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL. O R D E R SHRIKANT TRIPATHI, MEMBER(J): 1. Heard Mr. V.K.Sathyanathan for the applicant and Mr.K.M.Jamaludheen for the respondents and perused the record. 2. Reply statement filed on behalf of the respondents is taken on record, after condoning the delay. M.A.No.333 of 2013 is accordingly disposed of. 3. The applicant P.Chandran Pillai, Ex Chief Petty Officer, No.162310-N, has filed the instant O.A challenging the order of the respondents, whereby he was denied promotion to the rank of Master Chief Petty Officer-II as also extension of service on the ground of his O.A No.19 of 2012 3 being in low medical category. A declaration that the disease which resulted in placing the applicant in low medical category was attributable to service, has also been claimed. 4. The relevant facts are that, the applicant joined the Indian Navy on 2nd March, 1985, and in due course raised to the rank of Chief Petty Officer. The applicant was due for promotion to the next rank of Master Chief Petty Officer-II with effect from 1st April,2006. The applicant's case for promotion was duly considered by the respondents and he was found fit in all respect for promotion. But as he was in low medical category S3A2 with effect from 25th April 2005 due to the disease/injury “Spontaneous Intracerebral Haematoma”, he could only be promoted after prior approval of the Chief of Naval Staff as per the Policy (Annexure - R1 and R2). 5. The applicant's case was therefore referred to the Chief of Naval Staff by Headquarters, Southern Naval Command, Kochi, for approval vide the letter No.SL/2531 dated 6th February, 2007 (Annexure- A11) with the following posting recommendations. Para 7 of the aforesaid letter reads: “7. The sailor is presently tasked as the in-charge of O.A No.19 of 2012 4 Command Plans Office of this Headquarters. As would be evident from the remarks in the Service Document the sailor is extremely hardworking and meticulous in completing all assigned tasks. The sailor is highly enterprising and innovative and has singularly ensured the smooth functioning of the Plans office. Notwithstanding his medical category the sailor withstands a considerable amount of stress at the work place and remains calm in trying circumstances. The sailor is an asset to the organisation and is strongly recommended for re-engagement and the promotion to the next rank”. 6. On the basis of the aforesaid recommendations of the Headquarters, Southern Naval Command, the Bureau of Sailors, Cheetah Camp, Mankhurd, Mumbai, endorsed the same vide the letter No.DV/162310 dated 27th February 2007 (Annexure-R3) and recommended the applicant's case for promotion despite the low medical category. Accordingly, the matter reached the Chief of Naval Staff for his consideration. 7. After receiving the aforesaid proposal, the Chief of Naval Staff passed the appropriate order thereon and communicated the same to the Bureau of Sailors vide the letter No.RP/1402/LMC (Annexure-R5). The Chief of Naval Staff found that the applicant was not fit for promotion to the rank of MCPO-II and was also not fit for the engagement in his O.A No.19 of 2012 5 present LMC. This fact was disclosed in paragraph 2 of the aforesaid letter dated 30th March, 2007. 8. During the course of hearing, the learned counsel for the applicant submitted that he would press the question of attributability of the disease/injury and its consequence towards the claim for disability pension in another proceeding and he accordingly sought for the permission of the Bench to grant such liberty to the applicant. Accordingly, the prayer for the liberty is accepted. 9. Mr.V.K.Sathyanathan, appearing for the applicant, next submitted that the Navy Order No.14/2001 was applicable in the matter of the applicant to govern his promotion matters and to this extent there does not appear to be any dispute between the parties. Para 9 thereof being relevant is reproduced as follows: “9. Promotion. Sailors with S1A1 S2A1 (Pmt) and S2A2 (Pmt) on the actual date of promotion are eligible for promotion. In the case of S3A1 (Pmt), S3A2 (Pmt) and S3A3 (Pmt) the administrative authorities shall forwarded documents for consideration by Naval Headquarters through the Bureau of Sailors. Sailors in temporary categories will normally not be promoted till awarded a permanent medical category”. Apart from the aforesaid Navy Order, the learned counsel for the O.A No.19 of 2012 6 applicant referred to Navy Instructions No.2/1996 and contended that the paragraph No.27 thereof provides medical qualification for the promotion, which may be reproduced as follows: “27. Medical Qualification (1) Men should belong to one of the following medical categories S1A1, S2A1, S2A2 on the actual date of promotion. (2) Sailors who are placed in medical categories S3 A1 and S3 A2 (temporarily or permanently), even if otherwise eligible, shall not be promoted without the prior approval of the Chief of Naval Staff. Recommendations on such cases, shall be forwarded to the Chief of Naval Staff through the Commodore, Bureau of Sailors and each case will be considered on its merits. The Service Documents of the sailor and the medical board proceedings should accompany all such recommendations which must also include the date from which promotion is recommended. In the case of a sailor who is to be promoted from the Promotion Roster, the Commodore, Bureau pf Sailors will communicate to the Commanding Officer the date from which a vacancy has arisen for him. (3) Sailors placed in medical category S4 A4 will be considered for promotion in accordance with the procedure laid down in clauses 1 and 2 above depending upon the revised medical category in which they are placed on discharge from the hospital or sickbay”. O.A No.19 of 2012 7 10. What is significant to the aforesaid Navy Instructions and Naval Order is that the persons in medical category S3A1 and S3A2 (temporary or permanent), if otherwise eligible or fit for promotion cannot be promoted without the prior approval of the Chief of Naval Staff. Cases of such persons are required to be forwarded to the Chief of Naval Staff through the Commodore, Bureau of Sailors and such cases are required to be considered by him on merits. Apart from placing the recommendations, the service documents of the Sailor and the Medical Board Proceedings are also required to be placed before the Chief of Naval Staff. While considering a case for promoting a person, who is in the aforesaid low medical category, temporarily or permanently, what is required from the Chief of Naval Staff is to give due consideration to the entire records so produced before him and to pass appropriate order keeping in view the merits of the case. 11. The learned counsel for the applicant submitted that the order passed by the Chief of Naval Staff (Annexure-R5) does not disclose any reason as to why the promotion of the applicant to the rank of MCPO-II could not be granted. To put it otherwise, what grounds prompted the Chief of Naval Staff to take the decision against the applicant, is not clear from the order. According to the learned counsel for the applicant, O.A No.19 of 2012 8 the Chief of Naval Staff should have passed a reasoned order, therefore, the same was bad. 12. Mr.K.M.Jamaludheen appearing for the respondents, on the other hand, submitted that the physical suitability of the applicant for the service was one of the relevant factors to be taken into account by the Chief of Naval Staff. If the applicant, despite the disability, was of any use to the service, he could be promoted. But, if he was not of any use for the service, his denial for promotion was proper. 13. We are not legally required to consider the question whether the applicant was fit to be provided promotion to the rank of MCPO II and to retain him in service. The said question was required to be considered by the Chief of Naval Staff. But, when a person of low medical category S3A2 could also be promoted in a given case, a heavier responsibility was on the Chief of Naval Staff to see as to whether the applicant's matter had fallen in that category or not.