UNION OF INDIA & ORS. versus BRIGADIER JAVED IQBAL

Citation: [2022] 3 S.C.R. 860 · Decided: 17-05-2022 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Dismissed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 3 S.C.R.
UNION OF INDIA & ORS.
v.
BRIGADIER JAVED IQBAL
(Civil Appeal No. 2560 of 2022)
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
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
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
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
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.
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
in the routine period of two years due to Covid-19 restrictions.
[2022] 3 S.C.R. 860
860
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The Regulation 67 of Defence Service Regulations for the Army
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.
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. [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
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
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
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
UNION OF INDIA & ORS. v. BRIGADIER JAV

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