UNION OF INDIA & ORS.versusBRIGADIER JAVED IQBAL

860                      [2022]REPORTS
               SUPREME COURT    3 S.C.R. 860                [2022] 3 S.C.R.


A                         UNION OF INDIA & ORS.
                                        v.
                         BRIGADIER JAVED IQBAL
                         (Civil Appeal No. 2560 of 2022)
B                          MAY 17, 2022
             [INDIRA BANERJEE AND A. S. BOPANNA, JJ.]
            Armed Forces:
             Defence Service Regulations – Reg. 67 – Substantive
      promotion by selection – Brigadier in the Judge Advocate General
C
      branch of the Military, recommended for the promotion to the post
      of Additional Judge Advocate General corresponding to the rank
      of Major General in the JAG branch by the Selection Board – His
      medical condition classified as SHAPE-2 COPE-2 – Chief of
      Defence Staff cleared the respondent for promotion considering all
D     the aspects including his medical condition – Thereafter, competent
      authority and the Central Government also granted the approval –
      However, the Military Secretary interfered with the promotion –
      Challenge to – Armed Force Tribunal finding that the medical
      category of the officer was upgraded to SHAPE-1 by the Re-Medical
      Board, directed the grant of promotion – On appeal, held: Reg. 67
E
      provides that officer classified as SHAPE-2 can also be consider
      for the promotion – Repeated objections by the Military Secretary
      not justified when the Chief of Defence Staff and the Selection Board
      has applied their mind and approved the officer for the promotion
      – Selection Board had took note of the medical records as it existed
F     earlier, in the background of nature of employability of the officer,
      which was approved by the Chief of Army Staff and further the
      medical records indicate that the medical condition of the officer
      has improved for the better – Tribunal took into consideration all
      these aspects, thus, interference with the order passed by the tribunal
      not called for.
G
            Dismissing the appeal, the Court
             HELD: 1.1 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
H     in the routine period of two years due to Covid-19 restrictions.
                                    860
   UNION OF INDIA & ORS. v. BRIGADIER JAVED IQBAL                       861


The Regulation 67 of Defence Service Regulations for the Army           A
provides that an officer who is in the classification S1H1A1P1E2
also can be considered for promotion provided the Medical Board
finds the officer to be capable of performing the normal active
service duties. Hence, Regulation 67(b)(ii)(aa) provides that
there is no absolute bar from being considered for promotion.
                                                                        B
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       C
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
                                                                        D
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. [Para 10][869-
B-F]
        1.2 In the instant case, the respondent is the JAG officer
and even if promoted would generally perform his duties in the          E
headquarters. It cannot be disputed that 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      F
Selection Board, undisputedly the respondent was in SHAPE-2
medical condition. From the records of the selection process,
the circular dated 06.05.1987 relating to selection process is
referred to. 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           G
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          H
862            SUPREME COURT REPORTS                      [2022] 3 S.C.R.


A     indicated, the medical classification of the officer is one of the
      aspects. 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
B
      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. [Para
      13][872-C-H]
            1.3 Even if the primary aspect of the respondent officer
C     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 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
D     promotion. 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
E     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
F     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
G     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. [Para 14][873-
      A-E]

H
   UNION OF INDIA & ORS. v. BRIGADIER JAVED IQBAL                      863


       1.4 The respondent having filed an appeal and having made       A
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
                                                                       B
his credit and was rightly allowed. [Para 15][873-F-G]
       1.5 It was submitted 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. It is necessary to note that the medical
records are of the ‘Command Hospital’ itself and not of a private      C
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 would indicate that the doctor has
categorically recorded that the blood pressure has been
controlled with lifestyle modification and the BP control remains      D
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. [Para 16][874-D-G]
                                                                       E
      1.6 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        F
kept in view all aspects of the matter, such consideration would
not call for interference. [Para 17][874-G-H]
      1.7 It was submitted 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          G
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, firstly there is an improvement in

                                                                       H
864             SUPREME COURT REPORTS                             [2022] 3 S.C.R.


A     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. [Para 18][875-
B
      C-E]
            1.8 There is no reason to interfere with the order passed
      by the AFT impugned, which shall therefore be implemented
      forthwith. [Para 19][875-E-F]
C           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2560
      of 2022.
            From the Judgment and Order dated 07.01.2022 of the Armed
      Forces Tribunal, Regional Bench, Lucknow in OA No. 619 of 2021 and
      Order dated 28.01.2022 in MA No.76 of 2022 in OA No. 619 of 2021.
D           Tushar Mehta, SG, Ms. Madhavi Divan, Sanjay Jain, ASG, R. Bala,
      Sr. Adv., Ms. Vaishali Verma, Ms. Vanshaja Shukla, Arvind Kumar
      Sharma, Advs. for the Appellants.
             Devadatt Kamat, Sr. Adv., Javedur Rahman, Harsh Pandey, Advs.
      for the Respondent.
E
             The Judgment of the Court was delivered by
             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
F     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 declassification of No.1
      Selection Board’s result on 05.05.2021. The order was directed to be
G     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
H
   UNION OF INDIA & ORS. v. BRIGADIER JAVED IQBAL                             865
                 [A. S. BOPANNA, J.]

Advocate General. The promotion to which the respondent claims entitled       A
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
                                                                              B
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      C
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
                                                                              D
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        E
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
                                                                              F
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          G
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       H
866             SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A     ‘Hypertension’ P2 (P) with COPE Coding C201P1El which is provided
      for in the Adjutant General’s 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
B
      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
C     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 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
D     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 respondent’s blood pressure was found within the
      permissible parameters and his medical category was approved to be
E     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
F     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
G     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
H
   UNION OF INDIA & ORS. v. BRIGADIER JAVED IQBAL                              867
                 [A. S. BOPANNA, J.]

all aspects into consideration and had thereafter empaneled the                A
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
                                                                               B
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.
                                                                               C
       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.                                                         D

      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:-
                                                                               E
      “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:-

                                                                               F




                                                                               G




                                                                               H
868            SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A




B


            12. Officers in permanent medical classifications, other than those
            mentioned in Para 9 above, are NOT eligible for promotion to
C           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
D     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 :-

E           “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
F              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:-
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 normal
                   active service duties of the rank to which he is, being
                   promoted, in his present medical category.
H
   UNION OF INDIA & ORS. v. BRIGADIER JAVED IQBAL                              869
                 [A. S. BOPANNA, J.]

             (ab) any defect, disability, or disease, from which the officer   A
             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)         B
       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                 C
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                    D
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        E
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.
                                                                               F
       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        G
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.            H
870      SUPREME COURT REPORTS                         [2022] 3 S.C.R.


A     (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
B     applicant for promotion it was aware that he was placed in low
      medical category P2(P) for Hypertension with COPE Coding
      C201 Pl El.
      (iv) No.1 Selection Board recommended the applicant for
      empanelment to the higher rank of Major General without any
C     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
D     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
E     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
F     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 medical category was the same as that which
      existed on 14.08.2018 during his Annual Medical Examination,
G     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
H
   UNION OF INDIA & ORS. v. BRIGADIER JAVED IQBAL                             871
                 [A. S. BOPANNA, J.]

      to perform the duties of DJAG of the Command”. The then CDS,            A
      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
                                                                              B
      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.”                  C

        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 SHAPE-2,
which continued ever since. Insofar as the employability of the officer
with COPE coding C201P1E1 it was noted that the officer is unfit for          D
high 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 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           E
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            F
consideration since the respondent assumed that he 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 re-            G
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
                                                                              H
872             SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A     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
B
      medication.
              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
C     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
D     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.
E     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
F     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
G     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.
H
   UNION OF INDIA & ORS. v. BRIGADIER JAVED IQBAL                              873
                 [A. S. BOPANNA, J.]

       14. In the background of the above, even if the primary aspect of       A
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
                                                                               B
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       C
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
                                                                               D
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     E
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               F
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 :-
                                                                               G
      “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
                                                                               H
874            SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A           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
B
            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
C           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)
D            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
E     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
F     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.

G            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
H     of the matter, such consideration would not call for interference.
    UNION OF INDIA & ORS. v. BRIGADIER JAVED IQBAL                              875
                  [A. S. BOPANNA, J.]

      18. The learned ASG further referred to the circular dated                A
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              B
       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.”                                                  C

       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         D
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      E
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.                                            F
        20. All pending applications, if any, stand disposed of.

Nidhi Jain                                                  Appeal dismissed.
(Assisted by : Shashwat Jain, LCRA)
                                                                                G




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