PETITIONER:
LT. COLONEL K.D. GUPTA
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT31/03/1989
BENCH:
MISRA RANGNATH
DUTT, M.M. (J)
CITATION:
1989 AIR 2071 1989 SCC (3) 566
JT 1989 (3) 283 1989 SCALE (2)174
ACT
Army Act, 1964: Defence Services--Promotion--Unlike other government servants, requisite experience, consequent exposure and appropriate review by authorities, indispensable--Individual capacity and special qualities--Basis for assessment--Lower medical categorisation--Effect of for purposes of promotion--Grant of compensation--Relevant factors--Considerations thereof.
HEADNOTE
The appellant has filed a contempt petition against the Respondents, alleging that the directions dated 20.4.1988 of this Court, have not been complied with.
The Respondents were directed to reconsider the case of the appellant for promotion on the basis that his medical category continues to be S-I from 1977, and that the medical category would be taken into account if the rules for promotion so require; otherwise not. It was also directed that the consideration of promotion would be completed within four weeks; (See 1988(3) SCR 646).
On behalf of the respondents, it was stated that the promotional entitlements of the petitioner had been finalised as per the directions of the Court, after re-examining the petitioner’s case for promotion within the specified time and since there was no failure to comply with the directions, no contempt had been committed. It was also submitted that the petitioner’s medical categorisation has nothing to do with the refusal to promote him. Disposing of the petition,
HELD: 1. The judgment of this Court did clearly proceed on the footing that the lower medical categorisation prejudiced the petitioner in the matter of obtaining appropriate promotions. For the first time, the respondents have taken the stand in the contempt proceeding that the lower categorisation has nothing to do with the refusal to accord promotion to the petitioner. The plea now advanced cannot therefore be accepted. [377E-F] 371
2. The .defence services have their own peculiarities and special requirements. The considerations which apply to other government servants in the matter of promotion cannot as a matter of course be applied to defence personnel of the petitioner’s category and rank. Requisite experience, consequent exposer and appropriate review are indispensable for according promotion, and the petitioner, therefore cannot be given promotions as claimed by him on the basis that his batch-mates have earned such promotions. Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not available. [377G-H; 378A-B]
3.1 As regards compensation, the petitioner advanced tail claims by contending that he has suffered physical and mental torture, loss of reputation and of social acceptance and financial loss. What promotions the petitioner would otherwise have earned would be a matter of speculation and cannot be ascertained at this stage for lack of appropriate decisive criteria. His grievance that he suffered in dignity and humiliation as a result of being looked down upon by his batch-mates, friends and relatives, has perhaps been sufficiently met by the appellate judgment which has declared that his lower medical categorisation was unjustified and the petitioner continued to be Shape-I without break from 1977. [368E-G]
3.2 The defence personnel have peculiar incidence of service. Life’s course does not run smoothly for everyone. Some relevant factors to be considered for award of compensation are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation, and the consequent suffering which he underwent, the loss of promotional prospects and the fact that he would now be obliged to request to be released from service prematurely. A total compensation of RS.4 lakhs would meet the ends of justice. The petitioner would not be entitled to any other claim on these heads, but he would be entitled to all other service benefits which an officer of the Lt. Colonel’s rank would be entitled to hold. [378G-H; 379A-B]
Major K.D. Gupta v. Union of India, [1984] 1 S.C.C. 153 and Lt. Col. K.D. Gupta, v. Union of India, [1988] 3 SCR 646. referred to.
This Court directed that the amount of Rs.4 lakhs be paid to the petitioner within 2 months and the petitioner may be released from the defence service in accordance with any decision that might be taken on his request for such release. [379C-D] 372
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Misc. Petition No. 20065 of 1988. In Civil Appeal No. 1702 of 1987.
From the Judgment and Order dated 31.3.1987 of the Allahabad High Court in C.M.W.P. No. 5702 of 1985. Petitioner-in-person.
G. Ramaswamy, Additional Solicitor General, C.V.S. Rao and A.K. Srivastava for the Respondents. The Judgment of the Court was delivered by
RANGANATH MISRA, J. Petitioner, a Lt. Colonel in the Indian Army, has filed this application for taking contempt proceeding against the respondents on the allegation that the directions contained in the judgment of this Court, dated 20th April, 1988, in Civil Appeal No. 1702 of 1987 have not been complied with. This Court in the Civil Appeal found that the petitioner was entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S-I and directed:
"The appeal is allowed in part and to
the extent that the appellant’s medical cate-
gory shall be taken as being continued to be
S-I from 1977 and on that basis his promotion-
al entitlement shall be finalised by the
respondents within three months hence."
After this Court’s decision, by a letter
dated 17th of June, 1988, the respondents
informed the petitioner to the following
effect:
"In this connection, I have been
directed to inform you that your case has been
reexamined in the light of the judgment of the
Supreme Court of India dated 20th April, 1988.
It may kindly be recalled that acting
rank of Lt. Col. was granted to you with your
original seniority based on the earlier direc-
tions of the Hon’ble Court. Substantive
373
rank of Lt. Col. was also granted to you along
with your batch-mates. Consequent to the
Supreme Court’s judgment dated th August,
1983, your case for promotion to the rank of
A/Colonel was considered on three occasions
viz., July 86, April 87, November 87 and
rejected on all the three occasions based on
your overall performance and merit of your
batch. Your medical category was not taken
into consideration as per the laid down proce-
dure. Therefore, upgradation of your medical
category from Shape-2 to Shape-I by the Su-
preme Court vide their orders dated 20th
April, 1988, does not warrant reconsideration
of your case for promotion because your medi-
cal category had not affected your case for
promotion to the rank of A/Colonel on any
occasion. You failed to make the grade for
promotion not on the basis of your medical
category but on the basis of your overall
performance and merit of your batch
"
Upon notice in this miscellaneous proceed-
ing a counter affidavit was filed on behalf of
the respondents stating that the petition was
misconceived and he was not entitled to any
relief as claimed. It was stated that the
promotional entitlements of the petitioner had
been finalised as per the directions of this
Court after reexamining the petitioner’s case
for promotion within the specified time and as
there was no failure to comply with the direc-
tions, no contempt had been committed. The
counter-affidavit proceeded to state:
"As per the selection procedure
explained in the proceeding paragraphs, the
medical category of Lt. Col. K.D. Gupta was
not taken into cognizance. On receipt of the
directions of the Supreme Court dated 20th
April, 1988, Lt. Cot. Gupta’s case for promo-
tion was reexamined. Since the Hon’ble Court
had given no such directions to the effect
that the case of Lt. Col. Gupta shall be
placed before the Selection Board and has only
directed that the petitioner’s promotional
entitlements be finalised in view of his
continued medical category in Shape-I since
1977, his case was reexamined and finalised
and the same was intimated to him vide our
letter dated 17th June, 1988".
The record of consideration for promotion
of the petitioner at the various stages by the
Board was directed to be produced before the
Court. In a further affidavit on behalf of the
respondents, Col. Bharucha stated that:
374
"By letter dated 26.5. 1988, the
Military Secretary observed as under:
The Officer was considered by No. 3 Selection
Board for promotion to the acting rank of
Colonel and awarded the following:
(a) ’R’ (Unfit) in July 1986 with ACR 84/85
(b) ’R’ (Unfit) in April, 1987 with ACR 6/85
to 2/86.
(c) ’R’ (Unfit) in November, 1987 with ACR
6/86 to 5/87
The Officer has been finally superseded for
promotion to the rank of acting Colonel based
on his overall profile and his medical catego-
ry was not taken into account during the above
three considerations. However, the officer has
been granted the substantive rank of Lt.
Colonel w.e.f. 01 August, 1979 vide Gazette
Notification No. 1774/87 dated 19th September,
1987.
Therefore, no further action is required by
the department in pursuance of the judgment of
this Hon’ble Court dated 20.4.1988."
"I state that the petitioner had
addressed a demi official letter dated
02.5.1988 to the Chief of Army Staff in this
regard. The Chief of Army Staff called for the
details of the case of the petitioner and the
same were placed before the Chief of Army
Staff on 03.6.1988. The Chief of Army Staff
after considering the note put up to him,
directed the office to intimate the petitioner
accordingly. By letter dated 17.6.1983, the
office has informed the petitioner, a copy of
which is enclosed herewith. It is, therefore,
humbly submitted that the case of the peti-
tioner was considered after the judgment of
this Hon’ble Court dated 20th April, 1988 by
the Military Secretary of the rank of Lt.
General and it was found that it is not neces-
sary to send him for selection board as he was
already found unfit without reference to his
medical certificate Shape-II".
375
On 24th of January, 1989, this Court made the
following order:
"After carefully considering the
matter, we direct the respondents to reconsid-
er the case of the appellant for promotion on
the basis that his medical category continues
to be S-I from 1977. The medical category will
be taken into account if the rules for promo-
tion so require, otherwise not. The considera-
tion of promotion will be completed within
four weeks from today ...... "
We have been informed that the petitioner’s
case was considered on the basis of record and
he was not found fit for any promotion.
It is relevant to notice at this stage
that the petitioner had come before this Court
on an earlier occasion by filing writ petition
No. 5302 of 1980 which was disposed of on
August 10, 1983 (1984 1 SCC 153). This Court
in its judgment indicated:
"Shri Abdul Khader, learned counsel for the
respondents explained to us that the petition-
er had been reverted from the rank of Acting
Lt. Colonel to Major for three reasons:
(i) Reduction in rank had to follow
as a matter of course on placement of the
petitioner in a lower medical category;
(ii) After the latest medical exami-
nation in 1978, he was not eligible to be
considered for promotion for one year; his
earlier reduction in rank was, therefore,
justified; and
(iii) He performed no duty for six
months from March 22, 1976 when he was admit-
ted in the hospital and under the rules, he
stood automatically reduced in rank.
We find no substance in any of the
reasons mentioned by Shri Abdul Khader. Shri
Khader was unable to draw our attention to any
rule, order or circular which prescribed that
reduction in rank should inevitably follow on
placement of an officer in a lower medical
category. In fact it was conceded by Shri
Khader that an officer whose medical classifi-
cation is downgraded, will not be reduced in
rank on that account, but will continue to
hold the same rank as
376
before. We are, therefore, unable to under-
stand why the petitioner had to be reduced in
rank because subsequent to his promotion, his
medical classification was downgraded. The
second reason given by Shri Khader that the
petitioner would not be eligible to be promot-
ed for a year after the latest medical exami-
nation and, therefore, his earlier reduction
in rank was justified, is only to be stated as
rejected. When the petitioner was promoted, he
satisfied all the requirements including that
of medical categorisation, if any.. We find it
impossible to agree with the proposition that
since he would be ineligible to be promoted
today, he could not have been promoted yester-
day when he satisfied all the requirements.
The reason really pressed before us was the
third reason, namely, that the petitioner had
not performed any duty for six months and,
therefore, he had to be reduced in rank in
accordance with paragraph 5 of Special Army
Instruction No. 1 dated January 9, 1974. We do
not propose to examine the question whether
Special Army Instruction No. 1 authorises a
reduction in rank for failure to rejoin duties
for more than six months since that appears to
be the case of the petitioner also."
The counter-affidavit filed m the writ petition and the submissions of counsel advanced at the hearing thereof clearly indicate that the medical category of the petitioner was connected with his entitlement to promotion. In fact in the civil appeal itself the petitioner’s claim for promotion to higher ranks, keeping the promotions accorded to his batch-mates in view, was challenged on the basis of the petitioner’s lower medical category. In the affidavits filed in the civil appeal the respondents never took the stand that entitlement to promotion as claimed by the petitioner had nothing to do with the state of his healthphysical and mental. If that stand had been adopted, this Court would certainly have gone into that question before directing the petitioner’s case to be reexamined by a Special Board of Psychiatrists, on the basis of whose report, the petitioner was allowed to be continued in shape-I from 1977 without any break. It is not disputed that the petitioner had in the second round of the litigation mainly pressed for his promotion by contending that his medical categorisation was vitiated. Counsel for the respondents at no stage during the hearing of the appeal advanced the contention that the claim for promotion was not, in any manner, connected with the medical category of the petitioner. That is why this Court in its judgment stated: 377
" ..... on the basis of material
available on the record which had been partly
dealt with by this Court on the earlier occa-
sion while disposing of the writ petition, and
what we have now found on the basis of the
result of examination by the Committee of
Experts the appellant has become entitled to
limited relief. Though there was no order
reducing him from the rank of acting Lt.
Colonel to Major, he was treated to have been
so reduced. Then followed the frequent psychi-
atric examinations without any real justifica-
tion. These have constituted the foundation of
the appellant’s grievance. His recategorisa-
tion as S-II in 1978, in these circumstances,
was without justification. He is, therefore,
entitled to a reconsideration of his claim for
promotion on the basis of his medical categor-
isation continuing as S-I."
"The appellant, inter alia, has asked
for entitlement to promotion in view of promo-
tions earned by his batchmates. We do not
think that would be a safe guide but we do
hope and trust that the respondents would
consider his case for promotion with an open
mind on the basis of his continuity in Shape-
I." The judgment of this Court did clearly proceed on the footing that the lower medical categorisation prejudiced the petitioner in the matter of obtaining appropriate promotions. For the first time, the respondents have taken the stand in the contempt proceeding that the lower categorisation has nothing to do with the refusal to accord promotion to the petitioner. In the circumstances indicated above, the plea now advanced cannot be accepted. In fact, Mr. Ramaswamy, Additional Solicitor General, appearing for the respondents being cognizant of this situation stated to us during the hearing of this application that the petitioner has justification to feel aggrieved.
The respondents have maintained that the petitioner has not served in the appropriate grades for the requisite period and has not possessed the necessary experience and training and consequential assessment of ability which are a precondition for promotion. The defence services have their own peculiarities and special requirements. The considerations which apply to other government servants in the matter of promotion cannot as a matter of course be.applied to defence personnel of the petitioner’s category and rank. Requisite experience, consequent exposer and appropriate review are indispensable for 378 according promotion and the petitioner, therefore, cannot be given promotions as claimed by him on the basis that his batch-mates have earned such promotions. Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not available. We find force in the stand of the respondents and do not accept the petitioner’s contention that he can be granted promotion to the higher ranks as claimed by him by adopting the promotions obtained by his batch-mates as the measure.
In the appellate judgment, this Court said:
"He has also indicated in paragraph
8 of that petition that he is prepared to be
released from service after his promotional
entitlements are finalised and is given his
dues on such basis as may be determined. The
appellant has claimed compensation which we
see no basis to grant". The petitioner also told us in course of the hearing of this case that even if he is not accorded promotions as claimed by him, he should suitably be compensated and thereafter he should be released from the Army on the basis of voluntary retirement. The respondents have also indicated that his retirement is being processed separately.
The question for consideration now is as to how the petitioner has to be compensated and what should be its measure. The petitioner has, of course, advanced tall claims by contending that he has suffered physical and mental torture, loss of reputation and of social acceptance and financial loss. What promotions the petitioner would otherwise have earned would be a matter of speculation and cannot be ascertained at this stage. for lack of appropriate decisive criteria. His grievance that he suffered in dignity and humiliation as a result of being looked down upon by his batch-mates, friends and relatives has perhaps been sufficiently met by the appellate judgment which has declared that his lower medical categorisation was unjustified and the petitioner continued to be Shape-I without break from 1977.
The defence personnel have peculiar incidence of service. Life’s course does not run smoothly for everyone. In the present proceeding which is for contempt, we do not think that we can award compensation under every head of claim. Some of factors relevant for such purpose are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation, and the consequent suffering which he underwent, the loss of promotional prospects 379 and the fact that he would now be obliged to request to be released from service pre-maturely. We are of the view that a total compensation of Rs. four lakhs would meet the ends of justice. This would obviously mean that the petitioner would not be entitled to any other claim on these heads but we make it clear that he would be entitled to all other service benefits which an officer of the Lt. Colonel’s rank, which the petitioner admittedly holds, would be entitled to. This judgment should serve the petitioner in vindication of his stand and to dispel clouds cast on his physical and mental health by the purported lower medical characterisation and obviously in the event of his being considered for reemployment after retirement his suitability would be considered on the basis of his service records and the judgment of this Court.
We direct that the amount of Rs. four lakhs be paid to the petitioner within two months and the petitioner may be released from the defence service m accordance with any decision that may be taken on his request for such release.
The contempt proceeding is disposed of with these directions and no order as to costs. G.N. Petition disposed of. 380