Union of India vs Brigadier Javed Iqbal
Union of India vs Brigadier Javed Iqbal
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2560 OF 2022
Union of India & Ors. .… Appellant(s)
Versus
Brigadier Javed Iqbal …. Respondent(s)
J U D G M E N T
A.S. BOPANNA, J.
1. The appellants/Union of India & Ors. are before this
Court in this appeal, assailing the order dated 07.01.2022
passed by the Armed Forces Tribunal, Regional Bench,
Lucknow (for short, ‘AFT’) in OA No.619 of 2021. Through the
said order the AFT has allowed the OA and held that the
respondent is entitled to promotion to the post of Additional
Major General (Litigation) in the Judge Advocate General’s
Branch with all consequential benefits from the date of
1
declassification of No.1 Selection Board’s result on
05.05.2021. The order was directed to be implemented
forthwith.
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
2
respondent, it was intimated to the Chief of Defence Staff that
the recategorisation Medical Board on 12.02.2021 had
indicated that medical status is the same as was in the
previous precategorisation Medical Board proceedings held
on 14.08.2018. The respondent at that stage had been
classified as SHAPE2 COPE2. 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.
3
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 General’s Branch policy letter
dated 16.02.2018 as nonpromotable 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 Covid19. It is contended that the empanelment
4
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 recategorisation
Medical Board held on 12.02.2021 found the respondent’s
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 Remedical 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 Remedical Board, the respondent’s blood pressure was found
within the permissible parameters and his medical category
was approved to be upgraded to SHAPEI as he had informed
the medical specialist that he was not on any medication. The
appellant contends that the respondent though was on
5
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 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 SHAPE2.
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 SHAPE1 by a ReMedical
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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.
6. We have heard Ms. Madhavi Divan, learned Additional
Solicitor General appearing on behalf of the appellants, Mr.
Devadatt Kamat, learned senior counsel appearing on behalf
of the respondent and perused the appeal papers.
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 SHAPE2 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.
8. The learned ASG placed strong reliance on the circular
dated 14.12.2012 relating to, system of Medical classification
of Army Officers and consequent eligibility for promotion to
select Ranks, which read as hereunder:
“9. Promotion to Select Ranks of Colonel and Above.
Subject to meeting all other laid down conditions, officers
in following permanent medical categories are eligible for
promotion to select ranks of Colonel and above:
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Ser
No
Statement of
Medical
Classification
Implications
(a) Overall medical
classification of
SHAPE1 and
SHAPE1B,
irrespective of
number of medical
disabilities, ie, x, y,
z or CODE Coding.
Promotable medical
categories, irrespective
of CODE Coding:
(a) SHAPE 1
(b) SHAPE1B
(b) Overall medical
classification of
SHAPE2
(irrespective of
number of medical
disabilities, i.e, x, y,
z), with disability
profile H2 or P2 (for
dental condition
only) or E2, which
will be considered at
par with SHAPE1
for promotion
purposes,
irrespective of the
overall COPE
Coding.
Promotable medical
categories, irrespective
of COPE Coding:
(a) S1H2A1P1E1
(b)S1H1A1P2E1(dental
only)
(c) S1H1A1P1E2
(c) Overall medical
classification of
SHAPE2
(irrespective of
number of medical
disabilities, i.e, x, y,
z), with disability
profile A2 or P2
(other than for
dental condition
only) or H2E2, if
overall COPE coding
is COPE0 or COPE1.
Promotable medical
categories, only if
overall COPE Coding is
COPE0 OR COPE1:
(a) S1H1A2P1E1
(b) S1H1A1P2E1 (other
than dental)
(c) S1H2A1P1E2
12. Officers in permanent medical classifications, other
than those mentioned in Para 9 above, are NOT eligible
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for promotion to select ranks, less those eligible for
consideration by Special Review Medical Board or granted
Battle Casualty (War Wounded) status as covered
subsequently.”
9. In that backdrop it is also necessary to take note of
Defence Service Regulations for the Army, relied on by the
learned senior counsel for respondent, which in the preface
clarifies that departmental orders and instructions are based
on, and take their authority from the said regulations.
Regulation 67 of the Regulation for the Army relating to
substantive promotion by selection, more particularly 67(b)
thereof provides as hereunder :
“67. Substantive Promotion by Selection – (A) xxxxxxx
(a) xxxxxxxxxxxxxx
(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
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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 of two years due to Covid19
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
10
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.
11. The AFT having gone through the No.1 Selection Board
Proceedings, Records and file noting sheets of the Army, DMA,
MoD, noted the observations contained therein which enabled
the AFT in arriving at its ultimate conclusion. Since the
sequence of nature of consideration made by the authorities
concerned as noted by AFT becomes relevant, we find it
expedient to reproduce and notice the same which read as
hereunder :
“(i) No.1 Selection Board considered the applicant for
promotion to the post of Additional Major General (Litigation)
in JAG Branch. His complete details, including medical
status, and restrictions arising from this medical status were
available to the Board.
(ii) The Military Secretary's policy letter on medical category
restrictions dated 14. 12.2012 was available to the Board.
(iii) No.1 Selection Board recommended applicant for the
rank of Additional Major General in JAG Branch after him
being found fit in all respects for the rank. When Board
recommended the applicant for promotion it was aware that
he was placed in low medical category P2(P) for Hypertension
with COPE Coding C201 Pl El.
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(iv) No.1 Selection Board recommended the applicant 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 recategorization
medical board report dated 12.02.2021 his medical category
was the same as that which existed on 14.08.2018 during
his Annual Medical Examination, i.e. P2 (P) for Hypertension
with COPE Coding C201 P1 E1. It was informed by Army HQ
that "the officer has become low medical category (LMC) for
Primary Hypertension on 15.04.2018 and the officer was
performing the duties of DJAG at HQ Eastern Command,
which involved heavy work load of all legal and HQ cases 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
medical category P2 (P) with COPE Coding C201 PI EI would
not be a hurdle in his promotion, had cleared the file for
approval by the Competent Authority of MOD/Govt of India.
There was nothing on file to infer from any corner that
applicant's approval for promotion to the rank of Major
General was subject to meeting medical criteria.
(vii) After No.1 Selection Board's decision recommending
applicant for promotion to the rank of Major General being
cleared by the then CDS/Secy DMA without any rider, the
same was also approved by the Competent Authority of Govt
of India.”
12
12. The learned ASG would however contend that the
medical opinion during April 2018 records that the
respondent is diagnosed with primary hypertension and the
classification was indicated as SHAPE2, which continued
ever since. Insofar as the employability of the officer with
COPE coding C201P1E1 it was noted that the officer is unfit
for high altitude i.e., 9000 feet and above. It is pointed out
that in the reclassification by the Medical Board on
12.02.2021 it was again stated that the serving officer was
detected to have hypertension during AME and ‘Telmisartan
40 mg’ tablet had been advised and the disability profile is P2
(P). The learned ASG further contended that as on the date of
declassification of result on 05.05.2021, it was indicated that
latest AME/RME/RMB etc. is to be forwarded within 15 days,
which discloses that the medical fitness was an essential
factor to be taken into account. It is in that regard contended
that the respondent also being aware of this requirement had
filed an appeal dated 07.05.2021 wherein the respondent
himself has admitted to these aspects of the matter and had
sought consideration since the respondent assumed that he
13
would not be required to 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 reexamination of his medical category so that it could be
upgraded if found fit. Such medical reexamination 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 SHAPE1.
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.
14
Firstly, as noted from regulation 67(b), an officer in SHAPE2
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 SHAPE2 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
15
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 SHAPE2
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
16
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 SHAPE2 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
17
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 reexamination 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 reexamination 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/DGMS5A 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
18
control remains adequate. He has no target organ
damage. In view of the above, the officer is a candidate
for upgradation to SHAPEI (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
19
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
20
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 SHAPE1 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.
19. For all the aforestated reasons, we see 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 with no order as to costs.
20. All pending applications, if any, stand disposed of.
…..…………....................J.
(INDIRA BANERJEE)
..…..………......................J.
(A.S. BOPANNA)
New Delhi,
May 17, 2022
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