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PETITIONER: LT. COLONEL K.D. GUPTA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT31/03/1989

BENCH: MISRA RANGNATH 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  expo- sure  and  appropriate  review  by  authorities,  indispens- able--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 promo- tion  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  fina- lised 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  preju- diced 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 categor- isation has nothing to do with the refusal to accord  promo- tion to the petitioner. The plea now advanced cannot  there- fore 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

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petitioner’s category and rank. Requisite experience, conse- quent  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 avail- able. [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  suffi- ciently  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  compen- sation 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

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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

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             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  ......  "

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             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

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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 promo- tion  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  foot- ing  that  the lower medical categorisation  prejudiced  the petitioner  in  the matter of obtaining  appropriate  promo- tions.  For the first time, the respondents have  taken  the stand in the contempt proceeding that the lower  categorisa- tion 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.  Ramaswa- my, Additional Solicitor General, appearing for the respond- ents  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

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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  considera- tions 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 avail- able.  We find force in the stand of the respondents and  do not accept the petitioner’s contention that he can be grant- ed promotion to the higher ranks as claimed by him by adopt- ing the promotions obtained by his batch-mates as the  meas- ure.               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  other- wise have earned would be a matter of speculation and cannot be ascertained at this stage. for lack of appropriate  deci- sive 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  suffi- ciently  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  serv- ice.  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  conse- quent 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

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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  characterisa- tion 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 direc- tions and no order as to costs. G.N.                                          Petition  dis- posed of. 380