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TMI Blog2022 (5) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 C201P1E1 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 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 medical category was still P2(P) with COPE coding C201P1E1 he is not fit for promotion despite empanelment. It is contended that the guidelines are applicable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 categ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etary'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 P1 E1. (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'" mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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-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 upgraded to SHAPE-1. Though the medical opinion is to that effect, the learned ASG sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 SHAP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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