LexNAND KISHOR versus UNION OF INDIA & ORS.
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[2013] 1 S.C.R. 213 NANO KISHORE MISHRA v. UNION OF INDIA & ORS. (Civil Appeal Nos. 377-378 of 2013) JANUARY 8, 2013 [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.] Army Act, 1950: A B s.9 read with Ministry of Defence Notification dated c 29.11.1962 - 'Active service' - Army Medical Corps - Short Service Commission - Denied to appellant being categorized under medical category SHAPE-II - Held: Amputation of ring finger of appellant was as a result of injury sustained while on duty- On the basis of Notification dated 29. 11. 1962, appellant 0 must be held to have received the injury while on active service - His case is fully covered by the medical criterion regarding eligibility as stipulated in Notification dated 29.11.1962 for grant of Commission and his case should have been considered under Medical Category SHAPE-II - E Directions given to authorities concerned to consider appellant's case accordingly and to grant him Commission - Government of India, Ministry of Defence Notification dated 29. 11. 1962 - Armed Forces - Army. Balbir Singh & Anr. v. State of Punjab, 1994 (5) Suppl. F SCR 422 = (1995) 1 SCC 90 - relied on Case Law Reference: 1994 (5) Suppl. SCR 422 relied on para 14 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 377-378 of 2013. From the Judgment & Order dated 05.08.2010 & 213 G H 214 SUPREME COURT REPORTS [2013] 1 S.C.R. A 06.10.2010 of the Armed Forces Tribunal, regional Bench, Lucknow in TA 157 of 2009 and in R.P. No. 17 of 2010. S.G. Hasnen, Varinder Kumar Sharma for the Appellant. Ashok Panda, Wasim A. Qadri. D.K. Thakur, Anil Katiyar B for the Respondents. c The following Order of the Court was delivered ORDER 1. Leave granted. 2. The appellant was a candidate for grant of Permanent/ Short Service Commission in the Army Medical Corps(AMC)(Non-Technical) for which applications were invited D vide Notification No.32433/PC/SSC/AMC(NT)/07/DGAFMS/ DG-1A(1) dated January 19, 2007. Though successful in the selection and recommended for the grant of Short Service Commission in the AMC, he was denied the Commission on the ground that he was not eligible being in Medical Category E SHAPE-II. 3. In the counter affidavit filed on behalf of the respondents before the Armed Forces Tribunal, the reason assigned for denial of Commission to the appellant was stated as under: F "(a) No 13989183K UNK/HA Nand Kishor Mishra who has been recommended for grant of Short Service Commission in AMC (NT) by 17 SSB was found medically unfit by the SMB, CH(AF) Banglore on 24 Dec.07 on account of disability 'Amputation Ring Finger Left Hand' G Individual is in Low Medical Category SIHI A2(P) PIEi since 1998 for the disability." 4. It may be explained here that the fitness of a person for medical classification is assessed under five factors indicted by the acronym SHAPE. The acronym s'tands for: S- H NANO KISHORE MISHRA v. UNION OF INDIA & ORS. 215 Psychological, H-Hearing, A-Appendages, P-Physical A Capacity and E-Eye-Sight. 5. From the counter affidavit of the respondents, it, thus, appears that the appellant was in Category-I under the other four factors but on account of the loss of the left ring finger he 8 was put in Category-II under the factor Appendages and, hence, was assigned the Medical Classification SHAPE-II. 6. Mr. S.G. Hasnen, learned senior advocate appearing for the appellant, submitted that the respondent-authorities wrongly applied the criterion of medical eligibility and C contended that in terms of the Notification for the grant of commission the case of the appellant should have been considered under medical category SHAPE-II. He pointed out that the medical criterion regarding eligibility, as stated in the Notification dated January 19, 2007, was as under:- D "(ii) The candidate must be in medical category SHAPE- ON Eat the time of final selection for grant of PC. In case of those who possess exceptional merit or those who have suffered disability owing to active service or a war E casualty, the medical category upto grade TWO, under any of the SHAPE factors, except "S", will be acceptable, on merit of each case, provided it is a result of the same disability." 7. Learned counsel stated that on July 5, 1998, while the F appellant was working as a Nursing Assistant in the Army Medical Corps, he was travelling from Lucknow to Allahabad on his motorcycle to join his duty at 181, Military Hospital, All
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