Case: Union of India &amp; Ors Vs. Brigadier Javed Iqbal

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 approved the recommendation. When officers of such high rank have applied their mind in the instant case and 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 re-examination 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 re-examination 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/DGMS-5A 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 control remains adequate. He has no target organ damage. In view of the above, the officer is a candidate for upgradation to SHAPE-I (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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 SHAPE-2 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 05.05.2021.10. 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 Covid-19 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 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.13. Having taken note of the contentions, the facts involved herein appear to be peculiar to the case on hand. 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. 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 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 SHAPE-2 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 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 approved the recommendation. When officers of such high rank have applied their mind in the instant case and 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 re-examination 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 re-examination which is to his credit and was rightly allowed.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 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.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.