Pratap Singh vs Union of India and 3 Ors

Heard Mr. B. Pathak, learned counsel for the petitioner. Also heard Mr. K. K. Parasar, learned CGC for the respondents.

By filing this writ petition, the petitioner has prayed for setting aside and quashing the impugned promotion order dated nil (Annexed as Annexure-5 to the writ petition), whereby his name was deleted from the promotion list for promotion to the rank of Naib Subedar/GD and the communication dated 31.01.2024 whereby his claim for promotion was rejected. The petitioner has further prayed for a direction upon the respondent authorities to consider his case for promotion to the rank of Naib Subedar/GD as per his seniority, with effect from 29.05.2023.

The petitioner was enrolled in the Assam Rifles as Rifleman/GD on 23.06.1990. He was thereafter promoted to the rank of Havildar/GD on 12.04.2003 and subsequently to the rank of Warrant Officer/GD on 01.06.2011. While serving with 34^th Assam Rifles, the petitioner sustained a ballistic injury to his brain during an operation against insurgents on 05.09.2009. The said injury was declared attributable to Government service and the petitioner was placed in medical category P2 (Permanent) on account of the said injury.

The petitioner was thereafter diagnosed with Primary Hypertension and Diabetes Mellitus Type-II and was placed in low medical category P3 (T-24) with effect from 02.07.2022. He was considered for promotion to the rank of Naib Subedar/GD in DPC-2023. Since he was not fulfilling the prescribed medical criteria at that stage, the DPC recommended his case subject to upgradation of his medical category.

The petitioner was subsequently examined on 29.05.2023 by the Specialist Medicine Officer, Border Security Force, who, after considering the control of his blood pressure and blood sugar, recommended that he may be upgraded to SHAPE-I, subject to continuance of medication and regular follow-up. Pursuant thereto, a re-categorisation Medical Board was conducted on 26.06.2023 and the petitioner was upgraded to P1/SHAPE-I for Primary Hypertension and Diabetes Mellitus Type-II with effect from 29.05.2023. The petitioner thereafter underwent his Annual Medical Examination on 22.07.2023 and was found in medical category SHAPE-I.

In view of the upgradation of the petitioner’s medical category, the respondent authorities issued an order dated 14.08.2023 promoting him to the rank of Naib Subedar/GD, subject to his meeting the medical criteria on the date of assuming the promoted rank. However, the petitioner was subsequently examined by the medical authority and was declared unfit for promotion on 19.10.2023 on account of Primary Hypertension and Diabetes Mellitus Type-II. His promotion was thereafter kept in abeyance and his junior, who fulfilled the prescribed promotional criteria, was promoted to the next higher rank.

The petitioner thereafter made several representations before the respondent authorities for release of his promotion in accordance with his seniority. He also served a legal notice dated 04.01.2024 seeking promotion to the rank of Naib Subedar/GD with effect from 29.05.2023. The respondents replied to the said legal notice vide communication dated 31.01.2024 stating that the petitioner had come up for promotion in the year 2023 as per his seniority and had met all the prescribed promotional qualitative requirements, but was subsequently found medically unfit for promotion on account of Primary Hypertension and Diabetes Mellitus Type-II and, therefore, could not assume the rank of Naib Subedar/GD. Being aggrieved by the denial of promotion, the petitioner has preferred the present writ petition seeking the reliefs as stated hereinabove.

Mr. B. Pathak, learned counsel for the petitioner, submits that the petitioner had fulfilled all the prescribed promotional criteria and his name was duly considered by the Departmental Promotion Committee. He submits that the only impediment pointed out by the respondents was the petitioner’s medical category and, upon his medical review, the competent Medical Board had upgraded him to SHAPE-I with effect from 29.05.2023. Thereafter, the respondents themselves issued the promotion order dated 14.08.2023 in favour of the petitioner.

Learned counsel submits that the petitioner’s ballistic injury was sustained while he was performing active duty during an operation against insurgents and the injury was declared attributable to Government service. He submits that paragraph 7 of Appendix-A to Record Office Instruction 04/2002 provides relaxation of the mandatory SHAPE-I medical standard in cases of personnel who have been wounded or injured while on active Government duty. The petitioner had already been granted the benefit of the said provision in respect of his operational injury and was earlier promoted to the rank of Warrant Officer/GD despite being in medical category P2 (Permanent) on account of the said injury.

Learned counsel submits that the petitioner was not denied promotion on account of his operational injury. His medical category for Primary Hypertension and Diabetes Mellitus Type-II had been upgraded to SHAPE-I after a proper medical examination. The Medical Board dated 26.06.2023 specifically recorded the petitioner’s upgraded medical category with effect from 29.05.2023. He was again found in SHAPE-I during the Annual Medical Examination conducted on 22.07.2023. Therefore, there was no justification for treating him as medically unfit thereafter on the basis of the very same ailments.

Learned counsel further submits that the promotion order dated 14.08.2023 was issued after the petitioner’s medical category had already been upgraded to SHAPE-I. Although the order required the petitioner to meet the medical criteria on the date of assumption, such condition could not be applied mechanically to defeat the petitioner’s promotion when there was no fresh injury or illness between the medical examination by a Board which resulted in his upgradation and the subsequent medical assessment by a Single Doctor relied upon by the respondents.

Learned counsel submits that the respondents have not produced any material to show that the petitioner suffered any fresh illness or that there was any deterioration in his medical condition after he was found fit in SHAPE-I during his Annual Medical Examination on 22.07.2023. The subsequent medical fitness certificate dated 19.10.2023, that too by a Medical Officer, only refers to Primary Hypertension and Diabetes Mellitus Type-II, conditions which were already known to the respondents and had been considered by the Medical Board while upgrading the petitioner to SHAPE-I.

Learned counsel submits that the respondents subsequently issued guidelines dated 02.08.2024 clarifying that the medical category ascertained during AME/PME remains valid for a period of one year and that a fresh medical examination for ascertaining the medical category is necessitated only upon occurrence of a fresh injury or illness during the intervening period. He submits that although the said guidelines were issued subsequently, they reflect the reasonable manner in which the validity of an already ascertained medical category is to be understood and cannot be ignored while considering the petitioner’s case.

Learned counsel further submits that the petitioner has rendered more than three decades of service in the Assam Rifles and is at the fag end of his service career. He submits that denial of promotion despite his name having been included in the promotion order and despite his having been found in SHAPE-I by the competent Medical Board is arbitrary and caused serious prejudice to him.

Learned counsel has also referred to the case of Rifleman/Store Keeper Technician Ramakant Bhakoji, wherein promotion was granted after the individual was found in SHAPE-I on the relevant date. He submits that the petitioner’s case cannot be treated differently when his own medical category had been upgraded to SHAPE-I with effect from 29.05.2023 and he was again found in SHAPE-I during his Annual Medical Examination.

Learned counsel has placed reliance upon the judgment of the Hon’ble Supreme Court in Union of India & Ors. v. Brigadier Javed Iqbal, 2022 SCC OnLine SC 633, decided on 17.05.2022. Relying upon the said decision, learned counsel submits that where the medical condition of an employee has improved and the competent Medical Board has found him fit, such subsequent improvement in the medical condition cannot be ignored while considering his entitlement to promotion. It is submitted that, in the present case also, the petitioner’s medical condition was duly reviewed by the competent Medical Board and he was upgraded to SHAPE-I, and there is no material to indicate that he suffered any fresh injury or illness during the intervening period so as to justify the subsequent denial of promotion.

Learned counsel submits that the action of the respondents in denying promotion to the petitioner, despite his fulfilling the other promotional requirements and despite his medical category having been upgraded to SHAPE-I, is arbitrary and cannot be sustained. He, therefore, submits that the impugned promotion order dated nil and the communication dated 31.01.2024 are liable to be set aside and the respondents ought to be directed to consider and grant the petitioner promotion to the rank of Naib Subedar/GD in accordance with his seniority.

Mr. K. K. Parasar, learned CGC for the respondents, submits that the promotion of Assam Rifles personnel is governed by the Record Office Instructions (RoI) 04/2002 and the Ministry of Home Affairs guidelines, under which medical fitness is a mandatory criterion for promotion. He submits that although relaxation of the SHAPE-I medical category is available to personnel who have sustained injury during operational duties, such relaxation is confined to the medical conditions arising from the operational casualty and does not extend to other illnesses.

Learned CGC submits that the petitioner was placed in Low Medical Category P3 (T-24) with effect from 02.07.2022 on account of Primary Hypertension and Diabetes Mellitus Type-II. The petitioner was thereafter considered by the Departmental Promotion Committee for promotion to the rank of Naib Subedar/GD, but as he did not meet the mandatory medical criteria, his promotion was recommended subject to upgradation of his medical category.

Learned CGC submits that during the medical review conducted on 29.05.2023, the Specialist Medicine Officer of the Border Security Force recommended that the petitioner may be upgraded to SHAPE-I on account of good control of his blood pressure and glycemic condition, subject to continuous medication and periodic review. On the basis of the said opinion, the duly constituted Medical Board upgraded the petitioner to SHAPE-I for Primary Hypertension and Diabetes Mellitus Type-II with effect from 29.05.2023. The petitioner thereafter underwent his Annual Medical Examination on 22.07.2023 and was found in SHAPE-I.

Learned CGC submits that taking into consideration the upgradation of the petitioner’s medical category, the Headquarters Directorate General Assam Rifles issued the promotion order dated 14.08.2023 promoting the petitioner to the rank of Naib Subedar/GD, subject to his meeting the medical criteria of SHAPE-I on the date of assumption of the rank. He submits that the issuance of the promotion order did not dispense with the requirement of medical fitness at the time of actual assumption of the promotional rank.

Learned CGC submits that prior to assumption of the promotional rank, the medical condition of the petitioner was again evaluated and he was found unfit for promotion on account of Primary Hypertension and Diabetes Mellitus Type-II. The petitioner was accordingly declared medically unfit for promotion vide medical fitness certificate dated 19.10.2023. It is submitted that the petitioner was not declared unfit on account of his ballistic injury, which was treated as an operational casualty and for which relaxation of the medical criteria was available under the applicable policy.

Learned CGC submits that after the petitioner was found medically unfit, his promotion was kept in abeyance till finalisation of the medical proceedings or till 31.12.2023, whichever was earlier. Since the petitioner did not fulfil the mandatory medical criteria for promotion, his junior, who fulfilled the prescribed criteria, was promoted to the next higher rank. It is submitted that the action of the respondents was thus in accordance with the applicable policy and not arbitrary.

Learned CGC further submits that the petitioner was again considered by the DPC-2024 for promotion to the rank of Naib Subedar/GD and was found to fulfil the other mandatory promotional criteria. However, in the meantime, the petitioner was again placed in Low Medical Category P3 (T-24) for Primary Hypertension and Pre-diabetes with effect from 13.02.2024 pursuant to the Medical Board dated 27.03.2024. Therefore, he could not be promoted in the year 2024 also.

Learned CGC submits that the provisions of RoI 04/2002 relied upon by the petitioner in respect of personnel wounded or injured during active Government duty have already been extended to the petitioner in respect of his operational injury. He submits that the petitioner was promoted to the rank of Warrant Officer/GD on 01.06.2011 despite being in Low Medical Category P2 (Permanent) on account of the ballistic injury. The present case, however, relates to his non-promotion on account of Primary Hypertension and Diabetes Mellitus Type-II, which is not covered by the relaxation available for operational casualties.

Learned CGC submits that the case of Rifleman/Store Keeper Technician Ramakant Bhakoji, relied upon by the petitioner, stands on a different footing. In that case, the individual was in SHAPE-I on the date of his seniority and was medically downgraded only thereafter. Since he fulfilled the medical criteria on the relevant date, his promotion was granted. In the case of the petitioner, however, he was found medically unfit for promotion when his health status was evaluated prior to assumption of the promotional rank. Therefore, the two cases cannot be treated as similarly situated.

Learned CGC submits that the revised guidelines dated 02.08.2024 relating to certification of medical category cannot be applied retrospectively to the petitioner’s case. The petitioner’s promotion order was issued on 14.08.2023 and his medical fitness was considered in accordance with the policy applicable at the relevant time. The subsequent guidelines, therefore, cannot confer any right upon the petitioner in respect of the earlier promotion process.

Learned CGC submits that the fact that the petitioner was upgraded to SHAPE-I with effect from 29.05.2023 does not by itself entitle him to promotion. The applicable policy requires the individual to be medically fit on the date of assumption of the promotional rank. Since the petitioner was subsequently found unfit on medical examination, he did not satisfy the mandatory requirement for assumption of the rank of Naib Subedar/GD.

Learned CGC further submits that the petitioner’s case was considered by the competent authorities at every relevant stage and the decision not to permit him to assume the promotional rank was taken on the basis of the medical assessment and the applicable policy. There is, therefore, no violation of the principles of natural justice, administrative fair play or any constitutional provision.

Learned CGC submits that the petitioner has not been denied promotion on account of his operational injury. The relaxation applicable to such injury was duly granted to him. His non-promotion was solely on account of Primary Hypertension and Diabetes Mellitus Type-II, which rendered him medically unfit for promotion under the applicable policy. The writ petition, therefore, lacks merit and is liable to be dismissed.

I have considered the submissions advanced by the learned counsel for the parties and also perused the materials available on record.

The admitted position is that the petitioner was considered by the Departmental Promotion Committee for promotion to the rank of Naib Subedar/GD and his case was recommended subject to upgradation of his medical category. Thereafter, the petitioner was examined on 29.05.2023 by the Specialist Medicine Officer, Border Security Force, who, upon considering his medical condition and the control of his blood pressure and glycemic condition, recommended that he may be upgraded to SHAPE-I, subject to continuation of medication and regular follow-up.

Pursuant thereto, a duly constituted Re-categorisation Medical Board was convened and, vide proceedings dated 26.06.2023, the petitioner was upgraded to medical category P1/SHAPE-I for Primary Hypertension and Diabetes Mellitus Type-II with effect from 29.05.2023. It is also not in dispute that the petitioner thereafter underwent his Annual Medical Examination on 22.07.2023 and was found in medical category SHAPE-I.

In view of the aforesaid medical assessment, the respondent authorities issued the promotion order dated 14.08.2023 promoting the petitioner to the rank of Naib Subedar/GD, subject to his meeting the prescribed medical criteria on the date of assumption of the promoted rank. Thus, the petitioner had been found otherwise eligible for promotion by the DPC and the competent authority acted upon his upgraded medical category while issuing the promotion order.

The petitioner was thereafter examined by the medical authority and was declared unfit for promotion vide medical fitness certificate dated 19.10.2023 on account of Primary Hypertension and Diabetes Mellitus Type-II. On the basis of the said certificate, the petitioner was not permitted to assume the promotional rank and his junior was promoted.

This Court is conscious of the fact that medical fitness is a condition prescribed for promotion under the applicable rules and that the Court, while exercising judicial review, does not sit in appeal over the opinion of a competent Medical Board. The question in the present case, however, is whether the subsequent medical opinion dated 19.10.2023 could have been relied upon without considering the earlier medical assessments which had found the petitioner fit in SHAPE-I.

Primary Hypertension and Diabetes Mellitus Type-II were already known medical conditions of the petitioner and had formed the basis of his earlier placement in low medical category. The said conditions were considered by the Specialist Medicine Officer on 29.05.2023, followed by the Medical Board proceedings dated 26.06.2023, and the petitioner was upgraded to SHAPE-I with effect from 29.05.2023. His medical status was thereafter again assessed during the Annual Medical Examination on 22.07.2023 and he was found in SHAPE-I.

The subsequent medical fitness certificate dated 19.10.2023 also refers to the same medical conditions. However, no material has been placed before this Court to show that, between the Annual Medical Examination dated 22.07.2023 and the subsequent medical assessment, the petitioner suffered any fresh injury or illness or that any specific deterioration in his medical condition was recorded which warranted a different medical assessment.

This Court is not holding that a subsequent medical examination cannot result in a different medical assessment. A subsequent opinion may certainly be acted upon where the medical record warrants such course. However, where successive assessments by competent medical authorities had placed the petitioner in SHAPE-I, the subsequent opinion dated 19.10.2023 was required to be considered along with the earlier medical record.

The respondents have not placed any material on record explaining the departure from the earlier medical assessment. The later certificate records the petitioner as unfit on account of the ailments which had already been considered while upgrading him to SHAPE-I. In such circumstances, the subsequent certificate could not have been treated as conclusive without examining the earlier medical assessments and the basis for the change in medical status.

The condition in the promotion order dated 14.08.2023 requiring the petitioner to meet the medical criteria on the date of assumption of the rank cannot be disputed. At the same time, the said condition has to be considered along with the medical record of the petitioner. The requirement of medical fitness on the date of assumption cannot mean that the earlier medical assessments become irrelevant or that a subsequent contrary opinion can be acted upon without considering the medical record as a whole.

The respondents have relied upon the requirement that an individual must satisfy the prescribed medical standard on the date of assumption of the promotional rank. The said requirement, however, does not dispense with proper consideration of successive medical assessments made by competent authorities. In the present case, the promotion order itself was issued after the petitioner had been upgraded to SHAPE-I and found fit during his Annual Medical Examination.

The operational injury sustained by the petitioner is not the basis for denial of his promotion. The respondents themselves have admitted that the ballistic injury sustained by the petitioner during an operation was attributable to Government service and that the applicable policy permits relaxation of the SHAPE-I requirement in respect of such operational casualty. The petitioner had earlier been promoted to the rank of Warrant Officer/GD notwithstanding his P2 (Permanent) medical category on account of the said injury. The respondents have also specifically stated that the petitioner was not denied promotion on account of the operational injury but on account of Primary Hypertension and Diabetes Mellitus Type-II.

In Brigadier Javed Iqbal (Supra), relied upon by the learned counsel for the petitioner, the Hon’ble Supreme Court considered the medical record of the officer and the improvement in his medical condition while examining the issue of promotion. The said decision does not dispense with the requirement of medical fitness under the applicable rules. It does, however, support the principle that the medical record and the subsequent medical position of an individual have to be considered while dealing with the question of promotion.

The revised guidelines dated 02.08.2024 issued by the respondent authorities provide that the medical category ascertained during AME/PME remains valid for a period of one year and that a fresh medical examination for ascertaining the medical category would be necessitated upon occurrence of a fresh injury or illness during the intervening period. The said guidelines were issued subsequently and cannot be applied retrospectively to confer a right upon the petitioner. However, they indicate the approach subsequently adopted by the respondents regarding the validity of an already ascertained medical category.

The case of Rifleman/Store Keeper Technician Ramakant Bhakoji relied upon by the petitioner stands on its own facts. The respondents have stated that in that case the individual was in SHAPE-I on the date of his seniority and was downgraded subsequently. The said case, therefore, cannot by itself determine the entitlement of the petitioner. The present case has to be decided on the basis of the petitioner’s own medical record and the successive assessments made by the competent medical authorities.

It is true that promotion is subject to fulfilment of the conditions prescribed under the applicable service rules. At the same time, the requirement of medical fitness has to be considered fairly and on the basis of the medical record available in the case. In the present case, the respondents, while relying upon the medical fitness certificate dated 19.10.2023, have not satisfactorily explained the departure from the earlier medical assessments or shown any intervening medical development warranting such departure.

In the facts and circumstances of the present case, this Court is of the considered view that the respondents failed to properly consider the earlier Medical Board proceedings dated 26.06.2023 and the Annual Medical Examination dated 22.07.2023 while relying upon the subsequent medical fitness certificate dated 19.10.2023. The decision to withhold the petitioner’s promotion, therefore, cannot be sustained.

Consequently, the impugned promotion order whereby the petitioner’s name was deleted from the promotion list and the communication dated 31.01.2024 rejecting his claim for promotion are hereby set aside.

The respondent authorities are directed to reconsider the case of the petitioner for promotion to the rank of Naib Subedar/GD, in the light of the observations made hereinabove and the medical record available as on the relevant date. Upon such consideration, the petitioner shall be granted promotion with effect from the date on which his immediate junior was promoted, with all consequential service benefits, in accordance with law.

The aforesaid exercise shall be completed within a period of 3 (three) months from the date of receipt of a certified copy of this order.

The writ petition stands allowed and disposed of in terms of the above directions. There shall be no order as to costs.