Union Of India vs Brigadier Javed Iqbal

1 declassification of No.1 Selection Board’s result on

05.05.2021. The order was directed to be implemented

forthwith.

2. The brief facts are; the respondent is an officer of the

1989 Batch and is presently serving as Brigadier in the Judge

Advocate General (for short, ‘JAG’) branch of the Military. He

has put in 33 years of service. The respondent is presently

designated as the Deputy Judge Advocate General. The

promotion to which the respondent claims entitled is to the

rank of Major General which corresponds to the post of

Additional Judge Advocate General. The rank of Major

General in the JAG Branch had fallen vacant on 01.12.2020.

The No.1 Selection Board comprising of (i) Chief of the Army

Staff, (ii) Vice Chief of the Army Staff (iii) 06 Army

Commanders and (iv) the Military Secretary, on consideration

in its meeting on 26.10.2020 recommended the respondent

for promotion. It is the case of the respondent that after

clearance by the Selection Board the Chief of Defence Staff

secured all information relating to the respondent, including

that he had scored 94.482 marks which was the highest. With

regard to the query relating to the medical status of the

2 respondent, it was intimated to the Chief of Defence Staff that

the re­categorisation Medical Board on 12.02.2021 had

indicated that medical status is the same as was in the

previous pre­categorisation Medical Board proceedings held

on 14.08.2018. The respondent at that stage had been

classified as SHAPE­2 COPE­2. The Chief of the Defence Staff

was also informed that the respondent despite such

classification continues to perform the duties of Deputy JAG

of the entire command which involves heavy workload. The

Chief of Defence Staff on considering all aspects, including the

medical condition, cleared the respondent for promotion as

the medical condition indicated would not be a hurdle.

Pursuant thereto the competent authority also granted its

approval for promotion of the respondent. The respondent

contends that the Central Government had also cleared but at

that stage, the Military Secretary who has no such power had

introduced the rider interfering with the promotion of the

respondent. The respondent contends that the No.1 Selection

Board had considered the medical condition in detail and the

Chief of Defence Staff as also the competent authority had

accepted the recommendation of the No.1 Selection Board.

3 However, despite all this since the benefit of promotion was

not accorded, the respondent filed an application before the

AFT seeking for the relief.

3. The case of the appellant is that in the Indian Army,

every staff selection, whether it is an appointment or

promotion is done by following a prescribed procedure under

the Rules. The appointment/promotion is always subject to

meeting the medical criteria. An individual in the Indian Army

is selected to the higher post subject to medical fitness

irrespective of the Branch in which she/he is required to

serve. Even if selected, the promotion would be available only

if the medical criteria is satisfied. In the instant case, the

respondent was placed in low medical category for

‘Hypertension’ P2 (P) with COPE Coding C201P1El which is

provided for in the Adjutant General’s Branch policy letter

dated 16.02.2018 as non­promotable category. However, the

Board considered him and recommended for promotion

keeping in view that he was placed in low medical category on

14.08.2018 during Annual Medical Examination and the next

Medical Board was due in August 2020, which could not be

held due to Covid­19. It is contended that the empanelment

4 pursuant to recommendation of the Selection Board cannot be

claimed as unconditional, since it is always subject to meeting

medical criteria.

4. With regard to the medical condition of the

respondent, it is contended that since he was suffering with

‘Hypertension’ the Annual Medical Board in 2018 advised him

to take two drugs daily to control his blood pressure within

the permissible parameters. Although re­categorisation

Medical Board held on 12.02.2021 found the respondent’s

blood pressure within the permissible parameters at 130/90,

his medical category remained the same i.e., P2(P) with COPE

coding C201P1El as he was still on medication. He had been

advised to continue on one drug i.e., ‘Telmisartan 40 mg’, to

be taken twice daily. Regarding the Re­medical board, it is

contended that it was held based on the orders of the Chief of

Army Staff on the request made by the respondent. In Re­

medical Board, the respondent’s blood pressure was found

within the permissible parameters and his medical category

was approved to be upgraded to SHAPE­I as he had informed

the medical specialist that he was not on any medication. The

appellant contends that the respondent though was on

5 medication had falsely stated that he is not on medication. In

fact, he had stated in his appeal dated 07.05.2021 that he

was only on, one drug medication. In that view, it is

contended that since the applicant’s medical category was

still P2(P) with COPE coding C201P1El he is not fit for

promotion despite empanelment. It is contended that the

guidelines are applicable to all, irrespective of the Corps and

Branch, more particularly when the duties are to be

discharged in high altitude areas between 9000 feet to 14000

feet, which the respondent was required to perform at least on

certain occasions if he was promoted to the post of Major

General. It was contended that the respondent was not

entitled to be promoted when his medical condition is

admittedly in SHAPE­2.

5. The AFT having adverted to the rival contentions and

also on making detailed reference to the documents which

were placed before it has arrived at the conclusion that the

No.1 Selection Board had taken all aspects into consideration

and had thereafter empaneled the respondent. Further, AFT

had also taken into consideration that the medical category of

the respondent was upgraded to SHAPE­1 by a Re­Medical

6 Board held on 21.09.2021 after his blood pressure was found

within the permissible parameters. Hence, taking into

consideration the facts evolving in this case, the AFT has

allowed the application and directed grant of promotion.

6. We have heard Ms. Madhavi Divan, learned Additional

Solicitor General appearing on behalf of the appellants, Mr.

Devadatt Kamat, learned senior counsel appearing on behalf

of the respondent and perused the appeal papers.

7. The factual aspects insofar as the No.1 Selection Board

recommending on 26.10.2020 the case of respondent for

promotion on obtaining 94.482 marks and at that stage, the

respondent was in SHAPE­2 medical category is not in

dispute. The position is also that the Chief of Defence Staff on

securing details on 12.02.2021 had declassified the results on

05.05.2021.

8. The learned ASG placed strong reliance on the circular

dated 14.12.2012 relating to, system of Medical classification

of Army Officers and consequent eligibility for promotion to

select Ranks, which read as hereunder:­ “9. Promotion to Select Ranks of Colonel and Above. Subject to meeting all other laid down conditions, officers in following permanent medical categories are eligible for promotion to select ranks of Colonel and above:­

7 Ser Statement of Implications No Medical Classification

(a) Overall medical Promotable medical classification of categories, irrespective SHAPE­1 and of CODE Coding:­ SHAPE­1B, (a) SHAPE ­1 irrespective of (b) SHAPE­1B number of medical disabilities, ie, x, y, z or CODE Coding.

(b) Overall medical Promotable medical classification of categories, irrespective SHAPE­2 of COPE Coding:­ (irrespective of (a) S1H2A1P1E1 number of medical (b) S1H1A1P2E1(dental disabilities, i.e, x, y, only) z), with disability (c) S1H1A1P1E2 profile H2 or P2 (for dental condition only) or E2, which will be considered at par with SHAPE­1 for promotion purposes, irrespective of the overall COPE Coding. (c) Overall medical Promotable medical classification of categories, only if SHAPE­2 overall COPE Coding is (irrespective of COPE­0 OR COPE­1:­ number of medical (a) S1H1A2P1E1

disabilities, i.e, x, y, (b) S1H1A1P2E1 (other z), with disability than dental) profile A2 or P2 (c) S1H2A1P1E2 (other than for dental condition only) or H2E2, if overall COPE coding is COPE­0 or COPE­

1.

12. Officers in permanent medical classifications, other than those mentioned in Para 9 above, are NOT eligible

8 for promotion to select ranks, less those eligible for consideration by Special Review Medical Board or granted Battle Casualty (War Wounded) status as covered subsequently.”

9. In that backdrop it is also necessary to take note of

Defence Service Regulations for the Army, relied on by the

learned senior counsel for respondent, which in the preface

clarifies that departmental orders and instructions are based

on, and take their authority from the said regulations.

Regulation 67 of the Regulation for the Army relating to

substantive promotion by selection, more particularly 67(b)

thereof provides as hereunder :­

“67. Substantive Promotion by Selection – (A) xxxxxxx

(a) xxxxxxxxxxxxxx

(b) Substantive promotion by selection to the rank of Lt. Col and above will be subject to the medical fitness of the officer concerned for active service and the permanent medical classification of an officer not being other than S1 H1 A1 P1 E1, S1 H2 A1 P1 E1 or S1 H1 A1 P1 E2. An officer whose permanent classification is S1 H1 A2 P1 E1, S1 H1 A1 P2 E1 or S1 H2 A1 P1 E2 may also be considered for promotion provided the following conditions are fulfilled:­

(i) Such promotion would be in the public interest.

(ii) In the opinion of a Medical Board:­ (aa) the officer is capable of performing the normal active service duties of the rank to which he is, being promoted, in his present medical category.

(ab) any defect, disability, or disease, from which the officer is suffering, is not likely to be aggravated by service conditions, provided he is employed on

9 duties compatible with this medical category and within the restrictions placed by the Board.” (emphasis supplied)

10. The case of the respondent was in the medical

classification S1H1A1P1E2 referred to therein. It was subject

to review and the regular Review Medical Board had not

happened in the routine period of two years due to Covid­19

restrictions. The Regulation 67 of Regulations for the Army

provides that an officer who is in the classification

S1H1A1P1E2 also can be considered for promotion provided

the conditions the fulfilled. Hence, Regulation 67(b)(ii)(aa)

noted above provides that there is no absolute bar from being

considered for promotion. Consideration could be made

subject to the other criteria being met and the Selection Board

will have to keep in perspective these aspects. Though the

assessment made by the Selection Board is only a

recommendation, the approval to be granted by the competent

authority would be relevant. However, the nature of the post

for which the selection is made and the consideration made by

the Selection Board would also remain relevant. In that

circumstance, the nature of consideration made by the No.1

10 Selection Board forms a relevant basis more particularly in a

circumstance where in the instant case after recommendation

by the No.1 Selection Board, the Chief of Defence Staff had

also taken note of the medical status of the respondent and

taking into consideration the nature of duties to be performed

as Deputy JAG had cleared the respondent for promotion.

11. The AFT having gone through the No.1 Selection Board

Proceedings, Records and file noting sheets of the Army, DMA,

MoD, noted the observations contained therein which enabled

the AFT in arriving at its ultimate conclusion. Since the

sequence of nature of consideration made by the authorities

concerned as noted by AFT becomes relevant, we find it

expedient to reproduce and notice the same which read as

hereunder :­ “(i) No.1 Selection Board considered the applicant for promotion to the post of Additional Major General (Litigation) in JAG Branch. His complete details, including medical status, and restrictions arising from this medical status were available to the Board.

(ii) The Military Secretary's policy letter on medical category restrictions dated 14. 12.2012 was available to the Board.

(iii) No.1 Selection Board recommended applicant for the rank of Additional Major General in JAG Branch after him being found fit in all respects for the rank. When Board recommended the applicant for promotion it was aware that he was placed in low medical category P2(P) for Hypertension with COPE Coding C201 Pl El.

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(iv) No.1 Selection Board recommended the applicant for empanelment to the higher rank of Major General without any rider.

(v) After applicant being recommended by the No.1 Selection Board the file was processed in Department of Military Affairs and perused at the level of the then Chief of the Defence Staff(CDS)/Secretary DMA. The then CDS, had, after going through the file raised two queries. The first query on 19.11.2020 was the "case needs to be bench marked with past boards". It was answered in the negative stating that there was no such bench mark. While answering the query it was also stated that when Brig Umesh Gupta, Brig Devendra Singh and Brig Rakesh were considered for promotion in their turn to Major General in JAG Branch the “cut off'” marks were 91 and now the same was 93.5 whereas applicant has scored 94.482 marks. This shows that applicant is on a better footing than those officers who had been promoted earlier to the post in the past.

(vi) After the first query being replied the then CDS had raised another query on 12.02.2021 regarding medical status of the applicant, and in response to that query the CDS was informed on file that in the re­categorization medical board report dated 12.02.2021 his medical category was the same as that which existed on 14.08.2018 during his Annual Medical Examination, i.e. P2 (P) for Hypertension with COPE Coding C201 P1 E1. It was informed by Army HQ that "the officer has become low medical category (LMC) for Primary Hypertension on 15.04.2018 and the officer was performing the duties of DJAG at HQ Eastern Command, which involved heavy work load of all legal and HQ cases of the entire Command. In spite of LMC the officer continues to perform the duties of DJAG of the Command". The then CDS, after considering all aspects and finding applicant's medical category P2 (P) with COPE Coding C201 PI EI would not be a hurdle in his promotion, had cleared the file for approval by the Competent Authority of MOD/Govt of India. There was nothing on file to infer from any corner that applicant's approval for promotion to the rank of Major General was subject to meeting medical criteria.

(vii) After No.1 Selection Board's decision recommending applicant for promotion to the rank of Major General being cleared by the then CDS/Secy DMA without any rider, the same was also approved by the Competent Authority of Govt of India.”

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12. The learned ASG would however contend that the

medical opinion during April 2018 records that the

respondent is diagnosed with primary hypertension and the

classification was indicated as SHAPE­2, which continued

ever since. Insofar as the employability of the officer with

COPE coding C201P1E1 it was noted that the officer is unfit

for high altitude i.e., 9000 feet and above. It is pointed out

that in the re­classification by the Medical Board on

12.02.2021 it was again stated that the serving officer was

detected to have hypertension during AME and ‘Telmisartan

40 mg’ tablet had been advised and the disability profile is P2

(P). The learned ASG further contended that as on the date of

declassification of result on 05.05.2021, it was indicated that

latest AME/RME/RMB etc. is to be forwarded within 15 days,

which discloses that the medical fitness was an essential

factor to be taken into account. It is in that regard contended

that the respondent also being aware of this requirement had

filed an appeal dated 07.05.2021 wherein the respondent

himself has admitted to these aspects of the matter and had

sought consideration since the respondent assumed that he

13 would not be required to serve in high altitude area for which

he was otherwise unsuitable. Further, the representation

dated 17.05.2021 was made by the respondent seeking grant

of waiver since he was aware about his disability. Subsequent

thereto, on 31.08.2021 the respondent requested for re­

examination of his medical category so that it could be

upgraded if found fit. Such medical re­examination was

sanctioned and through the medical opinion dated

20.09.2021 it was opined that the respondent is

‘asymptomatic’ and he is not on any medication for

‘Hypertension’. The opinion recorded in the column,

‘diagnosis’ was that the officer is upgraded to SHAPE­1.

Though the medical opinion is to that effect, the learned ASG

sought to dispute the same by referring to the observations

contained in the communication dated 22.09.2021 stating

that the opinion dated 20.09.2021 is not reliable since it was

based on the statement of the respondent himself which was

made to the doctor that he is not on any medication though

the earlier records indicate that he was on medication.

13. Having taken note of the contentions, the facts

involved herein appear to be peculiar to the case on hand.

14 Firstly, as noted from regulation 67(b), an officer in SHAPE­2

also can be considered for promotion provided the Medical

Board finds the officer to be capable of performing the normal

active service duties. In the instant case, the respondent is

the JAG officer and even if promoted would generally perform

his duties in the headquarters. It cannot be disputed that as

contended by the learned ASG the services may require him to

occasionally go to high altitude areas. In that regard, a

consideration of the Medical Board opinion during April 2018

records that the respondent is unfit for high altitude

employability i.e., 9000 feet and above. As on the date of

consideration by No.1 Selection Board, undisputedly the

respondent was in SHAPE­2 medical condition. Apart from the

fact that we have taken note of the observations of the AFT

from the records of the selection process we have referred to

the circular dated 06.05.1987 relating to selection process. It

is noted that as per the composition of the Selection Board for

the various ranks, it is indicated that No.1 Selection Board

would consider the cases for promotion from the rank of

Brigadier to Major General which is relevant in the instant

case and No.1 Selection Board consists of the cream of officers

15 in the Rank. In the guidelines for conduct of Selection Board,

the aspects to be taken into consideration is delineated and

provides for the eligibility of the officer to be considered.

Among the aspects indicated therein, the medical

classification of the officer is one of the aspects. Further, while

providing for objectivity in the selection process, apart from

the overall performance of the officer, the employability of the

officer in the next higher rank is to be kept in view by the

Selection Board. The regulations while providing for the

consideration empowers the Chief of Army Staff to ultimately

take a decision. The role of the Military Secretary is only to

bring to the notice of the Chief of the Army Staff if the officer

concerned has been graded against the guidelines in the

board grading.

14. In the background of the above, even if the primary

aspect of the respondent officer being classified as SHAPE­2

as on the date of consideration by the No.1 Selection Board

and as on the date of declassification on 05.05.2021 to which

detailed reference as made by the learned ASG is taken note

of, as rightly observed by the AFT the medical records were

available before the No.1 Selection Board and a conscious

16 decision was taken to recommend for promotion. As noted,

the guidelines provide for the Selection Board to take note of

the medical classification of the officer. That apart, for an

objective selection, the guideline requires the Selection Board

to keep in view the employability of the officer in the next

higher rank. In a matter of the present nature where the

selection was being made to a high rank from that of Brigadier

to Major General and that too in JAG branch, the

employability of such officer and the nature of duties was also

to be kept in view. In the instant case, the only disability of

the officer concerned while in SHAPE­2 also is with regard to

the risk in high altitude service and the No.1 Selection Board

has kept in view the normal nature of work to be performed as

JAG (Litigation). In that view, the No.1 Selection Board should

be credited of having applied its mind before recommending

the case of the respondent. Further, after clearance by the

No.1 Selection Board, the Chief of Defence Staff had on

12.02.2021 taken note of the medical status of the respondent

and had approved the recommendation. When officers of such

high rank have applied their mind in the instant case and

17 approved the case of respondent for promotion the repeated

objection by the Military Secretary is not justified.

15. The other aspect of the matter is that the respondent

having filed an appeal and having made a request for waiver

initially and thereafter for medical re­examination cannot be

held against the respondent. Though the Selection Board had

already recommended the candidature of the respondent

which had been approved by the Chief of Army Staff, the

respondent had sought for re­examination which is to his

credit and was rightly allowed. The Medical Board in the

opinion dated 20.09.2021 (ANNEXURE A/10) has recorded as

hereunder :­ “This 57 year old serving officer was detected to have hypertension during AME in Apr 2018. He was evaluated and diagnosed to have Primary Hypertension. He was advised medication BP control was adequate. Subsequently the officer has discontinued medicine for last one year as recorded by AMS and BP has remained within normal limits (Photocopy of BP recordings by AMA attached). He is being observed in LMC P2 (Permanent). He has reported for remedial exam/Board as per directions of the COAS vide integrated HQ, MoD letter no. 76086/Gen/DGMS­5A dated 13 Sep. 2021. He is presently asymptomatic. He is not on any medication for Hypertension.

3. DIAGNOSIS : Primary Hypertension

Opinion: This 57 year old serving officer is a case of primary hypertension. He has adequate blood pressure control with life style modification for one year. BP

18 control remains adequate. He has no target organ damage. In view of the above, the officer is a candidate for upgradation to SHAPE­I (as per DGAFMS memorandum No. 182 of 2012 Para 17 d)” (emphasis supplied)

16. As noted, the learned ASG disputed the same by

referring to the treatment and follow up booklet which is

produced along with the additional documents by the

respondent himself to indicate that the observation recorded

in the chart as, ­ ‘not on medication’ on various dates is based

only on the oral statement of respondent made to the doctor

which cannot be given credence. On this aspect, it is

necessary to note that the medical records are of the

‘Command Hospital’ itself and not of a private practitioner.

The first date on which it is recorded as, ­ ‘not on medication’

is on 25.06.2020 and the same is continued thereafter. The

observations extracted above would indicate that the doctor

has categorically recorded that the blood pressure has been

controlled with lifestyle modification and the BP control

remains adequate. When the opinion has been tendered by

the competent medical experts, merely because the Military

Secretary is not satisfied with the same will not entail either

19 the AFT or this court to sit as a medical expert and reassess

the opinion given by the Medical Board.

17. Be that as it may, when the No.1 Selection Board had

taken note of the medical records as it existed earlier, in the

background of nature of employability of the respondent,

which was approved by the Chief of Army Staff and further

when there is medical record to indicate that the medical

condition of the respondent has improved for the better and

the AFT while arriving at its conclusion has kept in view all

aspects of the matter, such consideration would not call for

interference.

18. The learned ASG further referred to the circular dated

07.09.2016, more particularly to para 3 thereof which read as

hereunder:­ “3. Post declassification of Selection Board results the empanelled officers are promoted in their turn based on availability of vacancies, performance & medical fitness. Given the time lag between the declassification of Selection Board results and physical promotion of an officer, there is a need to ensure that only 'those officers who are in acceptable medical category are promoted to the next higher rank. The actions to be taken by the officers and their Reporting chain on empanelment and during physical assumption of next higher rank are enumerated in succeeding paragraphs.”

In that regard, it is contended that given the time lag between

declassification of the Selection Board results and the physical

20 promotion of an officer, it should be ensured that only those

officers who are in acceptable medical category are promoted to

the next higher rank. The said requirement also cannot act as a

bar in the instant case, since as noted above, firstly there is an

improvement in the health condition and the respondent is

opined to be in SHAPE­1 by the Medical Board. Even otherwise

as noted, the medical condition was kept in view by the No.1

Selection Board and all competent authorities, in the backdrop

of employability and there is no other additional medical

disability acquired by the respondent during the period of time

lag, if any.

19. For all the aforestated reasons, we see no reason to

interfere with the order passed by the AFT impugned herein,

which shall therefore be implemented forthwith. The appeal

being devoid of merit stands dismissed with no order as to costs.

20. All pending applications, if any, stand disposed of.

…..…………....................J. (INDIRA BANERJEE)

..…..………......................J. (A.S. BOPANNA) New Delhi, May 17, 2022

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