UNION OF INDIA & ORS. versus BRIGADIER JAVED IQBAL on 17 May 2022

[2022] 3 S.C.R. 860

SUPREME COURT REPORTS

[2022] 3 S.C.R.

UNION OF INDIA & ORS.

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v.

BRIGADIER JAVED IQBAL

(Civil Appeal No. 2560 of 2022)

BMAY 17, 2022

[INDIRA BANERJEE AND A. S. BOPANNA, JJ.]

Armed Forces:

Defence Service Regulations – Reg. 67 – Substantivepromotion by selection – Brigadier in the Judge Advocate GeneralCbranch of the Military, recommended for the promotion to the postof Additional Judge Advocate General corresponding to the rankof Major General in the JAG branch by the Selection Board – Hismedical condition classified as SHAPE-2 COPE-2 – Chief ofDefence Staff cleared the respondent for promotion considering allDthe aspects including his medical condition – Thereafter, competentauthority and the Central Government also granted the approval –However, the Military Secretary interfered with the promotion –Challenge to – Armed Force Tribunal finding that the medicalcategory of the officer was upgraded to SHAPE-1 by the Re-MedicalBoard, directed the grant of promotion – On appeal, held: Reg. 67Eprovides that officer classified as SHAPE-2 can also be considerfor the promotion – Repeated objections by the Military Secretarynot justified when the Chief of Defence Staff and the Selection Boardhas applied their mind and approved the officer for the promotion– Selection Board had took note of the medical records as it existedFearlier, in the background of nature of employability of the officer,which was approved by the Chief of Army Staff and further themedical records indicate that the medical condition of the officerhas improved for the better – Tribunal took into consideration allthese aspects, thus, interference with the order passed by the tribunalnot called for.G

Dismissing the appeal, the Court

HELD: 1.1 The case of the respondent was in the medicalclassification S1H1A1P1E2 referred to therein. It was subject toreview and the regular Review Medical Board had not happenedHin the routine period of two years due to Covid-19 restrictions.

The Regulation 67 of Defence Service Regulations for the Armyprovides that an officer who is in the classification S1H1A1P1E2also can be considered for promotion provided the Medical Boardfinds the officer to be capable of performing the normal activeservice duties. Hence, Regulation 67(b)(ii)(aa) provides thatthere is no absolute bar from being considered for promotion.Consideration could be made subject to the other criteria beingmet and the Selection Board will have to keep in perspectivethese aspects. Though the assessment made by the SelectionBoard is only a recommendation, the approval to be granted bythe competent authority would be relevant. However, the natureof the post for which the selection is made and the considerationmade by the Selection Board would also remain relevant. In thatcircumstance, the nature of consideration made by the No.1Selection Board forms a relevant basis more particularly in acircumstance where in the instant case after recommendation bythe No.1 Selection Board, the Chief of Defence Staff had alsotaken note of the medical status of the respondent and takinginto consideration the nature of duties to be performed as DeputyJAG had cleared the respondent for promotion. [Para 10][869-B-F]

1.2 In the instant case, the respondent is the JAG officerand even if promoted would generally perform his duties in theheadquarters. It cannot be disputed that the services may requirehim to occasionally go to high altitude areas. In that regard, aconsideration of the Medical Board opinion during April 2018records that the respondent is unfit for high altitude employabilityi.e., 9000 feet and above. As on the date of consideration by No.1Selection Board, undisputedly the respondent was in SHAPE-2medical condition. From the records of the selection process,the circular dated 06.05.1987 relating to selection process isreferred to. It is noted that as per the composition of the SelectionBoard for the various ranks, it is indicated that No.1 SelectionBoard would consider the cases for promotion from the rank ofBrigadier to Major General which is relevant in the instant caseand No.1 Selection Board consists of the cream of officers in theRank. In the guidelines for conduct of Selection Board, the aspectsto be taken into consideration is delineated and provides for theeligibility of the officer to be considered. Among the aspects ABC

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Aindicated, the medical classification of the officer is one of theaspects. While providing for objectivity in the selection process,apart from the overall performance of the officer, the employabilityof the officer in the next higher rank is to be kept in view by theSelection Board. The regulations while providing for theconsideration empowers the Chief of Army Staff to ultimately takeBa decision. The role of the Military Secretary is only to bring tothe notice of the Chief of the Army Staff if the officer concernedhas been graded against the guidelines in the board grading. [Para13][872-C-H]

1.3 Even if the primary aspect of the respondent officerCbeing classified as SHAPE-2 as on the date of consideration bythe No.1 Selection Board and as on the date of declassificationon 05.05.2021 is taken note of, as rightly observed by the AFTthe medical records were available before the No.1 SelectionBoard and a conscious decision was taken to recommend forDpromotion. The guidelines provide for the Selection Board totake note of the medical classification of the officer. That apart,for an objective selection, the guideline requires the SelectionBoard to keep in view the employability of the officer in the nexthigher rank. In a matter of the present nature where the selectionwas being made to a high rank from that of Brigadier to MajorEGeneral and that too in JAG branch, the employability of suchofficer and the nature of duties was also to be kept in view. In theinstant case, the only disability of the officer concerned while inSHAPE-2 also is with regard to the risk in high altitude serviceand the No.1 Selection Board has kept in view the normal natureFof work to be performed as JAG (Litigation). In that view, theNo.1 Selection Board should be credited of having applied itsmind before recommending the case of the respondent. Further,after clearance by the No.1 Selection Board, the Chief of DefenceStaff had on 12.02.2021 taken note of the medical status of the respondent and had approved the recommendation. When officersGof such high rank have applied their mind in the instant case andapproved the case of respondent for promotion the repeatedobjection by the Military Secretary is not justified. [Para 14][873-A-E]

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1.4 The respondent having filed an appeal and having madea request for waiver initially and thereafter for medical re-examination cannot be held against the respondent. Though theSelection Board had already recommended the candidature ofthe respondent which had been approved by the Chief of ArmyStaff, the respondent had sought for re-examination which is tohis credit and was rightly allowed. [Para 15][873-F-G]

1.5 It was submitted that the observation recorded in thechart as, ‘not on medication’ on various dates is based only onthe oral statement of respondent made to the doctor which cannotbe given credence. It is necessary to note that the medicalrecords are of the ‘Command Hospital’ itself and not of a privatepractitioner. The first date on which it is recorded as, ‘not onmedication’ is on 25.06.2020 and the same is continued thereafter.The observations extracted would indicate that the doctor hascategorically recorded that the blood pressure has beencontrolled with lifestyle modification and the BP control remainsadequate. When the opinion has been tendered by the competentmedical experts, merely because the Military Secretary is notsatisfied with the same will not entail either the AFT or this courtto sit as a medical expert and reassess the opinion given by theMedical Board. [Para 16][874-D-G]

1.6 When the No.1 Selection Board had taken note of themedical records as it existed earlier, in the background of natureof employability of the respondent, which was approved by theChief of Army Staff and further when there is medical record toindicate that the medical condition of the respondent has improvedfor the better and the AFT while arriving at its conclusion haskept in view all aspects of the matter, such consideration wouldnot call for interference. [Para 17][874-G-H]

1.7 It was submitted that given the time lag betweendeclassification of the Selection Board results and the physicalpromotion of an officer, it should be ensured that only thoseofficers who are in acceptable medical category are promoted tothe next higher rank. The said requirement also cannot act as abar in the instant case, since, firstly there is an improvement in AB

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Athe health condition and the respondent is opined to be inSHAPE-1 by the Medical Board. Even otherwise as noted, themedical condition was kept in view by the No.1 Selection Boardand all competent authorities, in the backdrop of employabilityand there is no other additional medical disability acquired bythe respondent during the period of time lag, if any. [Para 18][875-BC-E]

1.8 There is no reason to interfere with the order passedby the AFT impugned, which shall therefore be implementedforthwith. [Para 19][875-E-F]

CCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2560of 2022.

From the Judgment and Order dated 07.01.2022 of the ArmedForces Tribunal, Regional Bench, Lucknow in OA No. 619 of 2021 andOrder dated 28.01.2022 in MA No.76 of 2022 in OA No. 619 of 2021.

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Tushar Mehta, SG, Ms. Madhavi Divan, Sanjay Jain, ASG, R. Bala,Sr. Adv., Ms. Vaishali Verma, Ms. Vanshaja Shukla, Arvind KumarSharma, Advs. for the Appellants.

Devadatt Kamat, Sr. Adv., Javedur Rahman, Harsh Pandey, Advs.for the Respondent.

EThe Judgment of the Court was delivered by

A. S. BOPANNA, J.

1. The appellants/Union of India & Ors. are before this Court inthis appeal, assailing the order dated 07.01.2022 passed by the ArmedFForces Tribunal, Regional Bench, Lucknow (for short, ‘AFT’) in OANo.619 of 2021. Through the said order the AFT has allowed the OAand held that the respondent is entitled to promotion to the post of AdditionalMajor General (Litigation) in the Judge Advocate General’s Branch withall consequential benefits from the date of declassification of No.1Selection Board’s result on 05.05.2021. The order was directed to beGimplemented forthwith.

2. The brief facts are; the respondent is an officer of the 1989Batch and is presently serving as Brigadier in the Judge Advocate General(for short, ‘JAG’) branch of the Military. He has put in 33 years ofservice. The respondent is presently designated as the Deputy JudgeH

Advocate General. The promotion to which the respondent claims entitledis to the rank of Major General which corresponds to the post ofAdditional Judge Advocate General. The rank of Major General in theJAG Branch had fallen vacant on 01.12.2020. The No.1 Selection Boardcomprising of (i) Chief of the Army Staff, (ii) Vice Chief of the ArmyStaff (iii) 06 Army Commanders and (iv) the Military Secretary, onconsideration in its meeting on 26.10.2020 recommended the respondentfor promotion. It is the case of the respondent that after clearance bythe Selection Board the Chief of Defence Staff secured all informationrelating to the respondent, including that he had scored 94.482 markswhich was the highest. With regard to the query relating to the medicalstatus of the respondent, it was intimated to the Chief of Defence Staffthat the re-categorisation Medical Board on 12.02.2021 had indicatedthat medical status is the same as was in the previous pre-categorisationMedical Board proceedings held on 14.08.2018. The respondent at thatstage had been classified as SHAPE-2 COPE-2. The Chief of theDefence Staff was also informed that the respondent despite suchclassification continues to perform the duties of Deputy JAG of the entirecommand which involves heavy workload. The Chief of Defence Staffon considering all aspects, including the medical condition, cleared therespondent for promotion as the medical condition indicated would notbe a hurdle. Pursuant thereto the competent authority also granted itsapproval for promotion of the respondent. The respondent contends thatthe Central Government had also cleared but at that stage, the MilitarySecretary who has no such power had introduced the rider interferingwith the promotion of the respondent. The respondent contends that theNo.1 Selection Board had considered the medical condition in detail andthe Chief of Defence Staff as also the competent authority had acceptedthe recommendation of the No.1 Selection Board. However, despite allthis since the benefit of promotion was not accorded, the respondentfiled an application before the AFT seeking for the relief.

3. The case of the appellant is that in the Indian Army, every staffselection, whether it is an appointment or promotion is done by followinga prescribed procedure under the Rules. The appointment/promotion isalways subject to meeting the medical criteria. An individual in the IndianArmy is selected to the higher post subject to medical fitness irrespectiveof the Branch in which she/he is required to serve. Even if selected, thepromotion would be available only if the medical criteria is satisfied. Inthe instant case, the respondent was placed in low medical category for AB

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A‘Hypertension’ P2 (P) with COPE Coding C201P1El which is providedfor in the Adjutant General’s Branch policy letter dated 16.02.2018 asnon-promotable category. However, the Board considered him andrecommended for promotion keeping in view that he was placed in lowmedical category on 14.08.2018 during Annual Medical Examination andthe next Medical Board was due in August 2020, which could not beBheld due to Covid-19. It is contended that the empanelment pursuant torecommendation of the Selection Board cannot be claimed asunconditional, since it is always subject to meeting medical criteria.

4. With regard to the medical condition of the respondent, it iscontended that since he was suffering with ‘Hypertension’ the AnnualCMedical Board in 2018 advised him to take two drugs daily to control hisblood pressure within the permissible parameters. Although re-categorisation Medical Board held on 12.02.2021 found the respondent’sblood pressure within the permissible parameters at 130/90, his medicalcategory remained the same i.e., P2(P) with COPE coding C201P1ElDas he was still on medication. He had been advised to continue on onedrug i.e., ‘Telmisartan 40 mg’, to be taken twice daily. Regarding theRe-medical board, it is contended that it was held based on the orders ofthe Chief of Army Staff on the request made by the respondent. In Re-medical Board, the respondent’s blood pressure was found within thepermissible parameters and his medical category was approved to beEupgraded to SHAPE-I as he had informed the medical specialist that hewas not on any medication. The appellant contends that the respondentthough 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’sFmedical category was still P2(P) with COPE coding C201P1El he is notfit for promotion despite empanelment. It is contended that the guidelinesare applicable to all, irrespective of the Corps and Branch, moreparticularly when the duties are to be discharged in high altitude areasbetween 9000 feet to 14000 feet, which the respondent was required to perform at least on certain occasions if he was promoted to the post ofGMajor General. It was contended that the respondent was not entitled tobe promoted when his medical condition is admittedly in SHAPE-2.

5. The AFT having adverted to the rival contentions and also onmaking detailed reference to the documents which were placed beforeit has arrived at the conclusion that the No.1 Selection Board had takenH

all aspects into consideration and had thereafter empaneled therespondent. Further, AFT had also taken into consideration that the medicalcategory of the respondent was upgraded to SHAPE-1 by a Re-MedicalBoard held on 21.09.2021 after his blood pressure was found within thepermissible parameters. Hence, taking into consideration the factsevolving in this case, the AFT has allowed the application and directedgrant of promotion.

6. We have heard Ms. Madhavi Divan, learned Additional SolicitorGeneral appearing on behalf of the appellants, Mr. Devadatt Kamat,learned senior counsel appearing on behalf of the respondent and perusedthe appeal papers.

7. The factual aspects insofar as the No.1 Selection Boardrecommending on 26.10.2020 the case of respondent for promotion onobtaining 94.482 marks and at that stage, the respondent was in SHAPE-2 medical category is not in dispute. The position is also that the Chief ofDefence Staff on securing details on 12.02.2021 had declassified theresults on 05.05.2021.

8. The learned ASG placed strong reliance on the circular dated14.12.2012 relating to, system of Medical classification of Army Officersand consequent eligibility for promotion to select Ranks, which read ashereunder:- “9. Promotion to Select Ranks of Colonel and Above. Subject tomeeting all other laid down conditions, officers in followingpermanent medical categories are eligible for promotion to selectranks of Colonel and above:- A

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12. Officers in permanent medical classifications, other than thosementioned in Para 9 above, are NOT eligible for promotion toCselect ranks, less those eligible for consideration by Special ReviewMedical Board or granted Battle Casualty (War Wounded) statusas covered subsequently.”

9. In that backdrop it is also necessary to take note of DefenceService Regulations for the Army, relied on by the learned senior counselDfor respondent, which in the preface clarifies that departmental ordersand instructions are based on, and take their authority from the saidregulations. Regulation 67 of the Regulation for the Army relating tosubstantive promotion by selection, more particularly 67(b) thereofprovides as hereunder :- E“67. Substantive Promotion by Selection – (A) xxxxxxx (a) xxxxxxxxxxxxxx (b) Substantive promotion by selection to the rank of Lt. Coland above will be subject to the medical fitness of the officerconcerned for active service and the permanent medicalFclassification of an officer not being other than S1 H1 A1 P1E1, S1 H2 A1 P1 E1 or S1 H1 A1 P1 E2. An officer whosepermanent classification is S1 H1 A2 P1 E1, S1 H1 A1 P2 E1or S1 H2 A1 P1 E2 may also be considered for promotionprovided the following conditions are fulfilled:- G(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 normalactive service duties of the rank to which he is, beingpromoted, in his present medical category.

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(ab) any defect, disability, or disease, from which the officeris suffering, is not likely to be aggravated by serviceconditions, provided he is employed on duties compatiblewith this medical category and within the restrictions placedby the Board.”

(emphasis supplied)

10. The case of the respondent was in the medical classificationS1H1A1P1E2 referred to therein. It was subject to review and the regularReview Medical Board had not happened in the routine period of twoyears due to Covid-19 restrictions. The Regulation 67 of Regulations forthe Army provides that an officer who is in the classificationS1H1A1P1E2 also can be considered for promotion provided theconditions the fulfilled. Hence, Regulation 67(b)(ii)(aa) noted aboveprovides that there is no absolute bar from being considered for promotion.Consideration could be made subject to the other criteria being met andthe Selection Board will have to keep in perspective these aspects.Though the assessment made by the Selection Board is only arecommendation, the approval to be granted by the competent authoritywould be relevant. However, the nature of the post for which the selectionis made and the consideration made by the Selection Board would alsoremain relevant. In that circumstance, the nature of consideration madeby the No.1 Selection Board forms a relevant basis more particularly ina circumstance where in the instant case after recommendation by theNo.1 Selection Board, the Chief of Defence Staff had also taken note ofthe medical status of the respondent and taking into consideration thenature of duties to be performed as Deputy JAG had cleared therespondent for promotion.

11. The AFT having gone through the No.1 Selection BoardProceedings, Records and file noting sheets of the Army, DMA, MoD,noted the observations contained therein which enabled the AFT inarriving at its ultimate conclusion. Since the sequence of nature ofconsideration made by the authorities concerned as noted by AFTbecomes relevant, we find it expedient to reproduce and notice the samewhich read as hereunder :- “(i) No.1 Selection Board considered the applicant for promotionto the post of Additional Major General (Litigation) in JAG Branch.His complete details, including medical status, and restrictionsarising from this medical status were available to the Board.

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

(iii) No.1 Selection Board recommended applicant for the rank ofAdditional Major General in JAG Branch after him being foundfit in all respects for the rank. When Board recommended theapplicant for promotion it was aware that he was placed in lowmedical category P2(P) for Hypertension with COPE CodingC201 Pl El.

(iv) No.1 Selection Board recommended the applicant forempanelment to the higher rank of Major General without anyrider.

(v) After applicant being recommended by the No.1 SelectionBoard the file was processed in Department of Military Affairsand perused at the level of the then Chief of the DefenceStaff(CDS)/Secretary DMA. The then CDS, had, after goingthrough the file raised two queries. The first query on 19.11.2020was the “case needs to be bench marked with past boards”. Itwas answered in the negative stating that there was no such benchmark. While answering the query it was also stated that whenBrig Umesh Gupta, Brig Devendra Singh and Brig Rakesh wereconsidered for promotion in their turn to Major General in JAGBranch the “cut off’” marks were 91 and now the same was93.5 whereas applicant has scored 94.482 marks. This showsthat applicant is on a better footing than those officers who hadbeen promoted earlier to the post in the past.

(vi) After the first query being replied the then CDS had raisedanother query on 12.02.2021 regarding medical status of theapplicant, and in response to that query the CDS was informed onfile that in the re-categorization medical board report dated12.02.2021 his medical category was the same as that whichexisted on 14.08.2018 during his Annual Medical Examination,i.e. P2 (P) for Hypertension with COPE Coding C201 P1 E1. Itwas informed by Army HQ that “the officer has become lowmedical category (LMC) for Primary Hypertension on 15.04.2018and the officer was performing the duties of DJAG at HQ EasternCommand, which involved heavy work load of all legal and HQcases 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 medicalcategory P2 (P) with COPE Coding C201 PI EI would not be ahurdle in his promotion, had cleared the file for approval by theCompetent Authority of MOD/Govt of India. There was nothingon file to infer from any corner that applicant’s approval forpromotion to the rank of Major General was subject to meetingmedical criteria.

(vii) After No.1 Selection Board’s decision recommending applicantfor promotion to the rank of Major General being cleared by thethen CDS/Secy DMA without any rider, the same was alsoapproved by the Competent Authority of Govt of India.”

12. The learned ASG would however contend that the medicalopinion during April 2018 records that the respondent is diagnosed withprimary hypertension and the classification was indicated as SHAPE-2,which continued ever since. Insofar as the employability of the officerwith COPE coding C201P1E1 it was noted that the officer is unfit forhigh altitude i.e., 9000 feet and above. It is pointed out that in the re-classification by the Medical Board on 12.02.2021 it was again statedthat the serving officer was detected to have hypertension during AMEand ‘Telmisartan 40 mg’ tablet had been advised and the disability profileis P2 (P). The learned ASG further contended that as on the date ofdeclassification of result on 05.05.2021, it was indicated that latest AME/RME/RMB etc. is to be forwarded within 15 days, which discloses thatthe medical fitness was an essential factor to be taken into account. It isin that regard contended that the respondent also being aware of thisrequirement had filed an appeal dated 07.05.2021 wherein the respondenthimself has admitted to these aspects of the matter and had soughtconsideration since the respondent assumed that he would not be requiredto serve in high altitude area for which he was otherwise unsuitable.Further, the representation dated 17.05.2021 was made by the respondentseeking 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 foundfit. Such medical re-examination was sanctioned and through the medicalopinion dated 20.09.2021 it was opined that the respondent is‘asymptomatic’ and he is not on any medication for ‘Hypertension’. Theopinion recorded in the column, ‘diagnosis’ was that the officer is A

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Aupgraded to SHAPE-1. Though the medical opinion is to that effect, thelearned ASG sought to dispute the same by referring to the observationscontained in the communication dated 22.09.2021 stating that the opiniondated 20.09.2021 is not reliable since it was based on the statement ofthe respondent himself which was made to the doctor that he is not onany medication though the earlier records indicate that he was onBmedication.

13. Having taken note of the contentions, the facts involved hereinappear to be peculiar to the case on hand. Firstly, as noted from regulation67(b), an officer in SHAPE-2 also can be considered for promotionprovided the Medical Board finds the officer to be capable of performingCthe normal active service duties. In the instant case, the respondent isthe JAG officer and even if promoted would generally perform his dutiesin the headquarters. It cannot be disputed that as contended by the learnedASG the services may require him to occasionally go to high altitudeareas. In that regard, a consideration of the Medical Board opinion duringDApril 2018 records that the respondent is unfit for high altitudeemployability i.e., 9000 feet and above. As on the date of considerationby No.1 Selection Board, undisputedly the respondent was in SHAPE-2medical condition. Apart from the fact that we have taken note of theobservations of the AFT from the records of the selection process wehave referred to the circular dated 06.05.1987 relating to selection process.EIt is noted that as per the composition of the Selection Board for thevarious ranks, it is indicated that No.1 Selection Board would considerthe cases for promotion from the rank of Brigadier to Major Generalwhich is relevant in the instant case and No.1 Selection Board consistsof the cream of officers in the Rank. In the guidelines for conduct of

FSelection Board, the aspects to be taken into consideration is delineatedand provides for the eligibility of the officer to be considered. Among theaspects indicated therein, the medical classification of the officer is oneof the aspects. Further, while providing for objectivity in the selectionprocess, apart from the overall performance of the officer, the employability of the officer in the next higher rank is to be kept in viewGby the Selection Board. The regulations while providing for theconsideration empowers the Chief of Army Staff to ultimately take adecision. The role of the Military Secretary is only to bring to the noticeof the Chief of the Army Staff if the officer concerned has been gradedagainst the guidelines in the board grading.H

14. In the background of the above, even if the primary aspect ofthe respondent officer being classified as SHAPE-2 as on the date ofconsideration by the No.1 Selection Board and as on the date ofdeclassification on 05.05.2021 to which detailed reference as made bythe learned ASG is taken note of, as rightly observed by the AFT themedical records were available before the No.1 Selection Board and aconscious decision was taken to recommend for promotion. As noted,the guidelines provide for the Selection Board to take note of the medicalclassification of the officer. That apart, for an objective selection, theguideline requires the Selection Board to keep in view the employabilityof the officer in the next higher rank. In a matter of the present naturewhere the selection was being made to a high rank from that of Brigadierto Major General and that too in JAG branch, the employability of suchofficer and the nature of duties was also to be kept in view. In the instantcase, the only disability of the officer concerned while in SHAPE-2 alsois with regard to the risk in high altitude service and the No.1 SelectionBoard has kept in view the normal nature of work to be performed asJAG (Litigation). In that view, the No.1 Selection Board should be creditedof having applied its mind before recommending the case of therespondent. Further, after clearance by the No.1 Selection Board, theChief of Defence Staff had on 12.02.2021 taken note of the medicalstatus of the respondent and had approved the recommendation. Whenofficers of such high rank have applied their mind in the instant case andapproved the case of respondent for promotion the repeated objectionby the Military Secretary is not justified.

15. The other aspect of the matter is that the respondent havingfiled an appeal and having made a request for waiver initially andthereafter for medical re-examination cannot be held against therespondent. Though the Selection Board had already recommended thecandidature of the respondent which had been approved by the Chief ofArmy Staff, the respondent had sought for re-examination which is tohis credit and was rightly allowed. The Medical Board in the opiniondated 20.09.2021 (ANNEXURE A/10) has recorded as hereunder :- “This 57 year old serving officer was detected to have hypertensionduring AME in Apr 2018. He was evaluated and diagnosed tohave Primary Hypertension. He was advised medication BPcontrol was adequate. Subsequently the officer hasdiscontinued medicine for last one year as recorded by AMS

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Aand BP has remained within normal limits (Photocopy ofBP recordings by AMA attached). He is being observed inLMC P2 (Permanent). He has reported for remedial exam/Boardas per directions of the COAS vide integrated HQ, MoD letterno. 76086/Gen/DGMS-5A dated 13 Sep. 2021. He is presentlyasymptomatic. He is not on any medication forBHypertension.

3. DIAGNOSIS : Primary Hypertension

Opinion: This 57 year old serving officer is a case of primaryhypertension. He has adequate blood pressure control withClife style modification for one year. BP control remainsadequate. He has no target organ damage. In view of theabove, the officer is a candidate for upgradation to SHAPE-I (as per DGAFMS memorandum No. 182 of 2012 Para 17 d)”

(emphasis supplied)

D16. As noted, the learned ASG disputed the same by referring tothe treatment and follow up booklet which is produced along with theadditional documents by the respondent himself to indicate that theobservation recorded in the chart as, - ‘not on medication’ on variousdates is based only on the oral statement of respondent made to thedoctor which cannot be given credence. On this aspect, it is necessaryEto note that the medical records are of the ‘Command Hospital’ itselfand not of a private practitioner. The first date on which it is recordedas, - ‘not on medication’ is on 25.06.2020 and the same is continuedthereafter. The observations extracted above would indicate that thedoctor has categorically recorded that the blood pressure has beenFcontrolled 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 willnot entail either the AFT or this court to sit as a medical expert andreassess the opinion given by the Medical Board.

G17. Be that as it may, when the No.1 Selection Board had takennote of the medical records as it existed earlier, in the background ofnature of employability of the respondent, which was approved by theChief of Army Staff and further when there is medical record to indicatethat the medical condition of the respondent has improved for the betterand the AFT while arriving at its conclusion has kept in view all aspectsHof the matter, such consideration would not call for interference.

18. The learned ASG further referred to the circular dated07.09.2016, more particularly to para 3 thereof which read as hereunder:- “3. Post declassification of Selection Board results the empanelledofficers are promoted in their turn based on availability ofvacancies, performance & medical fitness. Given the time lagbetween the declassification of Selection Board results andphysical promotion of an officer, there is a need to ensure thatonly ‘those officers who are in acceptable medical category arepromoted to the next higher rank. The actions to be taken by theofficers and their Reporting chain on empanelment and duringphysical assumption of next higher rank are enumerated insucceeding paragraphs.”

In that regard, it is contended that given the time lag betweendeclassification of the Selection Board results and the physical promotionof an officer, it should be ensured that only those officers who are inacceptable medical category are promoted to the next higher rank. Thesaid requirement also cannot act as a bar in the instant case, since asnoted above, firstly there is an improvement in the health condition andthe respondent is opined to be in SHAPE-1 by the Medical Board. Evenotherwise as noted, the medical condition was kept in view by the No.1Selection Board and all competent authorities, in the backdrop ofemployability and there is no other additional medical disability acquiredby the respondent during the period of time lag, if any.

19. For all the aforestated reasons, we see no reason to interferewith the order passed by the AFT impugned herein, which shall thereforebe implemented forthwith. The appeal being devoid of merit standsdismissed with no order as to costs.

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

Nidhi Jain

Appeal dismissed.

(Assisted by : Shashwat Jain, LCRA)

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