UNION OF INDIAversusR. BHUSAL

A                                 UNION OF INDIA
                                         v.
                                    R. BHUSAL

                                    JULY 12, 2006

B                   [ARIJIT PASA YAT AND S.H. KAPADIA, JJ.]


          Service Law:

          Armed Forces-Air Force-Claim for Permanent Commission-Officer
C granted Short Service Commission-With Helicopter Short Service Commission
    course-After completion of initial period, considered but not recommended
    for permanent Commission and release order issued as his performance
    appraisal ·was beloll' 111ini111u111 require111ent-Medical fitness was also below
    the required catego1y-Order challenged on the g,·ound that lower 111edical
D   categm)' should not have been taken into account to deny hi111 per111anent
    Com111ission-High Court allowing writ petition-Held, conclusions arrived
    al by High Court were beyond pleadings-Specific stand of the Department
     was perfor111ance criteria fixed under the applicable policy regulations was
    not fulfilled by the Officer-There is no specific challenge as to applicability
    of either criteria or policy regulations.-Jn the fitness of things, High Court
E   should re-hear the matter.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1622 of2004.

         From the Judgment and Order dated 18.2.2003 of the High Court of Delhi
    at New Delhi, in Writ Petition No. 8307/2002.
F
          Mohd. Yusuf, Kiran Bhardwaj and Sushma Suri for the Appellant.

         N.M. Krishnamani, Narender Kaushik, Pankaj Kaushik and Ashok Kumar
    Sharma for the Respondent.

G         The Judgment of the Court was delivered by

          ARIJIT PASA YAT J. Union of India calls in question legality of the
    judgment rendered by a Division Bench of the Delhi High Court allowing the
    writ petition filed by the respondent. By the impugned judgment, High Court
    directed the present appellant to grant the writ petitioner a permanent
H                                         498
                       U.0.1. v. R. BHUSAL (PASAYA T. .I.]                  499
                                           ...
commission. It was further directed that alternate employability was to be          A
given, keeping in view his medical fitness.

      Background facts in a nutshell are as follows:-

      The respondent was granted Short Service Comission with No.3
Helicopter Short Service Commission Course on 19.2.1993. His initial terms          B
was for ten years as per terms and conditions of service. In February 200 I,
he was considered for grant of permanent comission. The suitability assessment
consisted of minimum demonstrated performance and medical fitness. The
former was to be gauzed from the grading in the confidential annual reports
for the previous three years and on the basis of mandatory qualities like           C
professional knowledge, job proficiency integrity, loyality, dependability, sense
of responsibility, courage (mental and physical), bearing and demeanour. For
grant of permanent commission. a minimum average of 6.5 in the previous
three years appraisals and not less than 6 in the manadtory qualities. As
regards medical categorisation, the requirement was not below the rating of
A-2-G-2. According to the appellant, respondent averaged 6.0 as against the         D
minimum requirement of 6.5. As regards medical fitness. he was in the category
of A4G3. Accordingly he was not recommended for permanent commission by
the Board and release order was issued on I 1.4.2002. Respondent's
representation was rejected. Thereafter, respondent filed a writ petition before
the High Court. His basic stand was that he was in the lower medical category
as he was involved in an aircraft accident and that should not have been            E
taken into account to deny permanent commission, particularly when the
Chief of the Air Staff had on enquiry found that no one could be blamed and
the injuries sustained by the petitioner were attributable to service.

      Stand of the present appellant was that low medical categorisation had        F
no bearing on the decision to deny the permanent commission. It was
categorically stated that the writ petitioner did not meet the minimum
performance criteria.

      As noted supra the High Court allowed the writ petition.
                                                                                    G
      Learned counsel for the appellant submitted that the High Court did not
consider the case in its proper perspective and allowed the writ petition over-
looking the fact that there was no challenge to the performance criteria
adopted and determination on the basis thereof.

      Learned counsel for the respondent supported the judgment of the High H
    500                     SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A   Court.

          We find that the High Court's consideration of the writ petition filed by
    the respondent and conclusions arrived at were beyond the pleadings. The
    High Court acted on certain materials and purported concession without
    examining whether that concession was well founded and whether the appellant
B   got an opportunity to clarify the position as regards the applicability of the
    regulations which according to the High Court had application. The basic
    challenge in the writ petition was that the medical deficiency found by the
    appellant was not properly assessed. In the counter affidavit, the specific
    stand of the appellant-Union of India was that the medical deficiency was
C   only of the factors while assessing suitability for permanent commission. The
    Union of India's specific stand was that the performance criteria fixed under
    the applicable policy regulations was not fulfilled by the respondent. In the
    rejoinder affidavit filed, there was no specific challenge as to the applicability
    of the either criteria or policy regulations.

D         Therefore we find no substance in the plea of learned counsel for the
    respondent that though the High Court apparently travelled beyond the
    pleadings, its conclusions are justified in law.

           In the fitness of things, the High Court should rehear the matter. We
    make it clear that we have not expressed any opinion on the acceptability of
E   the plea raised by the respondent in the writ petiton. If the High Court so
    feels, it may permit the parties to place fu11her materials in respect of their
    respective stand. Learned counsel for the appellant submits that by virtue of
    interim order the respondent is continuing in service. Keeping that in view,
    we request the High Court to explore the possibility of disposing of the writ
F   petition within a period of four months from the date of receipt of our order.

           The appeal is accordingly disposed of. No costs.

    R.P.                                                       Appeal disposed of.