2022 (5) TMI 1526 - SC - Indian Laws

Promotion to the post of Additional Major General (Litigation) in the Judge Advocate General's Branch with all consequential benefits from the date of declassification of No. 1 Selection Board's result on 05.05.2021 - 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 - HELD THAT - Firstly, as noted from Regulation 67(b), an officer in SHAPE-2 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 SHAPE-2 medical condition - 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. 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. It is contended that given the time lag between declassification of the Selection Board results and the physical 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 SHAPE-1 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. There are 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.

Summary

Issues Involved:
1. Entitlement to promotion despite medical classification.
2. Validity of the Armed Forces Tribunal's (AFT) order.
3. Compliance with military regulations and medical guidelines.
4. Consideration of medical re-examination and its impact on promotion.

Issue-wise Detailed Analysis:

1. Entitlement to Promotion Despite Medical Classification:
The Respondent, an officer of the 1989 Batch serving as Brigadier in the Judge Advocate General (JAG) branch, was recommended for promotion to Major General by the No. 1 Selection Board on 26.10.2020. Despite being classified as SHAPE-2 COPE-2 due to hypertension, the Chief of Defence Staff cleared the Respondent for promotion, considering his medical condition would not hinder his duties. The Respondent argued that the No. 1 Selection Board and the Chief of Defence Staff had accepted his medical condition and recommended his promotion. However, the Appellant contended that meeting the medical criteria is essential for promotion, and the Respondent's low medical category made him non-promotable under the Adjutant General's Branch policy letter dated 16.02.2018.

2. Validity of the Armed Forces Tribunal's (AFT) Order:
The AFT allowed the Respondent's application, directing his promotion with all consequential benefits. The AFT concluded that the No. 1 Selection Board had considered all aspects, including the Respondent's medical status, and recommended his promotion. The AFT also noted that the Respondent's medical category was upgraded to SHAPE-1 by a Re-Medical Board held on 21.09.2021. The Supreme Court upheld the AFT's decision, noting that the No. 1 Selection Board and the Chief of Defence Staff had applied their minds and recommended the Respondent for promotion, considering his duties as Deputy JAG.

3. Compliance with Military Regulations and Medical Guidelines:
The Appellant relied on the circular dated 14.12.2012, which stated that officers in certain medical categories are not eligible for promotion to select ranks, except under specific conditions. Regulation 67(b) of the Defence Service Regulations for the Army allows officers in certain medical classifications (including SHAPE-2) to be considered for promotion if the Medical Board finds them capable of performing their duties. The Supreme Court noted that the No. 1 Selection Board had considered the Respondent's medical classification and recommended his promotion, and the Chief of Defence Staff had approved it. The Court emphasized that the selection process involved high-ranking officers who had duly considered the medical records and the nature of the Respondent's duties.

4. Consideration of Medical Re-examination and Its Impact on Promotion:
The Respondent underwent a re-medical examination, which upgraded his medical category to SHAPE-1. The Appellant disputed the reliability of this re-examination, arguing that the Respondent had falsely stated he was not on medication. However, the Supreme Court noted that the medical records from the Command Hospital indicated that the Respondent had adequate blood pressure control without medication. The Court held that the opinion of the competent medical experts should be given credence and that the Military Secretary's objections were not justified. The Court also noted that the Respondent's request for medical re-examination was to his credit and should not be held against him.

Conclusion:
The Supreme Court dismissed the appeal, affirming the AFT's order and directing the implementation of the Respondent's promotion. The Court highlighted that the No. 1 Selection Board, the Chief of Defence Staff, and the Medical Board had all considered the Respondent's medical status and found him fit for promotion. The Court emphasized that the objections raised by the Military Secretary were not sufficient to override the recommendations of the high-ranking officers involved in the selection process.