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

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 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 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. 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 Generals Branch policy letter dated 16.02.2018 as non-promotable 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 Covid-19. It is contended that the empanelment 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 re-categorisation Medical Board held on 12.02.2021 found the respondents 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 Re-medical 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 respondents 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 applicants 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 SHAPE-2.5. 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 SHAPE-1 by a Re-Medical 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.

Reasoning:
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.