Summary
A Brigadier of the Judge Advocate General's Branch, in permanent low medical category SHAPE-2 since 2018, was recommended on 26.10.2020 by the No. 1 Selection Board for promotion to Major General; the Chief of Defence Staff cleared him and the competent authority approved. The Military Secretary nevertheless withheld promotion under a 2012 policy letter on medical classification. The Armed Forces Tribunal directed his promotion, a Re-Medical Board having since upgraded him to SHAPE-1. The Supreme Court dismissed the Union's appeal: Regulation 67(b) permits promotion of such an officer where a Medical Board finds him capable of the higher rank's duties, the Selection Board and the CDS had consciously weighed his medical status against a JAG officer's employability, and neither the Tribunal nor the Court will sit as a medical expert over the Medical Board's opinion.
Issues
- Whether an Army officer in permanent low medical category SHAPE-2 (P2) for hypertension, empanelled for promotion to Major General by the No. 1 Selection Board with knowledge of his medical status and cleared by the Chief of Defence Staff and the competent authority, could be denied promotion by the Military Secretary on the basis of the 2012 policy on medical classification.
- Whether the opinion of a Re-Medical Board upgrading the officer to SHAPE-1 could be disregarded on the ground that it rested on the officer's own statement that he was not on medication.
Provisions considered
- Regulation 67(b) (substantive promotion by selection — medical classification), Regulations for the Army (Defence Service Regulations)Regulation 67(b) permits consideration for promotion of an officer in classification S1H1A1P1E2 or P2 where the promotion is in the public interest and a Medical Board opines that he can perform the normal duties of the higher rank and that his disability is not likely to be aggravated on compatible duties; there is thus no absolute bar, and departmental instructions such as the Military Secretary's letter of 14.12.2012 derive their authority from and must yield to the Regulations. (¶¶ 8, 9, 10, 13, 14)
- Section 30 (appeal to Supreme Court), Armed Forces Tribunal Act, 2007The Tribunal's conclusion, reached on the Selection Board proceedings and file notings of the Army, Department of Military Affairs and Ministry of Defence and on the subsequent medical upgradation, kept in view all aspects and called for no interference. (¶¶ 5, 11, 17, 19)
Held
- The No. 1 Selection Board, composed of the Army's senior-most officers, had the officer's complete medical details and the 2012 policy letter before it and consciously recommended him without any rider, as the guidelines require it to weigh medical classification and employability in the next higher rank; the Chief of Defence Staff then specifically enquired into his medical status, was informed that despite low medical category he was discharging the heavy workload of Deputy JAG of a Command, and cleared the file, which the competent authority approved. Where officers of such rank have applied their minds to a JAG appointment whose only restriction is high-altitude service, the Military Secretary's repeated objection, his role being only to flag deviations from the guidelines, is not justified. (¶¶ 10, 11, 13, 14)
- The officer's appeal, request for waiver and request for medical re-examination cannot be held against him; the Re-Medical Board of the Command Hospital on 20.09.2021 recorded that he had discontinued medication for a year, his blood pressure remained adequately controlled by lifestyle modification with no target-organ damage, and upgraded him to SHAPE-1. When competent medical experts have so opined, the Military Secretary's dissatisfaction with the opinion does not entitle the Tribunal or this Court to sit as a medical expert and reassess it. (¶¶ 15, 16, 17)
- The 2016 circular requiring that only officers in acceptable medical category be promoted after declassification does not bar the promotion: his condition had improved to SHAPE-1, his medical status had in any event been weighed by the Selection Board and all competent authorities against his employability, and no additional disability was acquired in the interval. (¶ 18)
Result
Appeal dismissed; the Armed Forces Tribunal, Lucknow's order of 07.01.2022 in OA No. 619 of 2021 directing the respondent's promotion to Additional Major General (Litigation) in the JAG Branch with consequential benefits from 05.05.2021, the date of declassification of the Selection Board result, affirmed and to be implemented forthwith. No order as to costs.