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TMI Blog2022 (5) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent 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 Respondent, it was intimated to the Chief of Defence Staff that the re-categorisation Medical Board on 12.02.2021 had indicated that medical status is the same as was in the previous pre-categorisation Medical Board proceedings held on 14.08.2018. The Respondent at that stage had been classified as SHAPE-2 COPE-2. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 SHAPE-I as he had informed the medical specialist that he was not on any medication. The Appellant contends that the Respondent though was on 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 C201P1E1 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 SHAPE-2. 5. The AFT having adverted to the rival contentions and also on making detailed reference to the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant 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 re-categorization medical board report dated 12.02.2021 his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re-examination 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 SHAPE-1. 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. Firstly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the AFT the medical records were available before the No. 1 Selection Board and a conscious 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 SHAPE-2 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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