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PETITIONER: LT. COL. K.D. GUPTA

       Vs.

RESPONDENT: UNION OF INDIA & ORS

DATE OF JUDGMENT20/04/1988

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J)

CITATION:  1988 AIR 1178            1988 SCR  (3) 646  1988 SCC  Supl.  347     JT 1988 (2)   199  1988 SCALE  (1)791

ACT:      Army Act,  1950: Section  20, 191  and 192  and Special Army Instruction  No. 1  dated January 9, 1974 Army Officer- Subjected to  frequent medical  examination-Downgrading  and upgrading between shape-I and shape-III-Treated to have been reduced in rank-Whether justified?

HEADNOTE:      The appellant was granted a permanent Commission in the Indian Army in 1958 and appointed as a Second Lieutenant. He rose to  the level of Lt. Colonel on 27th February, 1975. In March, 1976  he was  directed  to  report  to  the  Military Hospital for  his psychiatric examination, where his medical classification was reduced from shape-I to shape-III, and he was posted as GLO and treated as Major. There was however no specific order reducing him in rank.      In  December,   1976,  appellant’s  Classification  was upgraded to  shape II and in September, 1977 to shape-I. But it was decided that he should be subjected to special review before restoration  of his  rank. In  a special  report  the Brigade Commander  recorded appreciation  of the appellant’s work, and  recommended his promotion as Lt. Colonel. But the Army Headquarters  directed the  appellant to  the  Military Hospital for  further examination  on  the  ground  that  an earlier incident  of  1963  had  been  overlooked  when  the appellant was  graded as  shape-I. On  this examination, the appellant was permanently downgraded as shape-II.      In 1980,  the appellant  filed a  writ petition in this Court, challenging  the action  of Army Headquarters and his downgrading. This  Court directed that he should be restored to the  rank of  Acting Lieutenant  Colonel from the date he was reverted  and  that  his  claims  to  advancement,  pay, arrears of  pay, etc.  should be  considered and disposed of within six months (See 1984 (1) SCC 153).      After lodging  his claims,  the appellant  waited for a reasonable time  and then  filed a writ petition in the High Court. The respondent contended that there was nothing wrong in the  recategorisation and  the directions  of the Supreme Court had been fully complied with. The High Court dismissed the writ petition. 647

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    In  this   appeal  by   special  leave,  the  appellant contended that  a prejudicial approach developed against him in the  Headquarters establishment without any justification and he  had been unduly subjected to psychiatric examination from time  to time, and on the basis of the records built up against him  adverse  opinion  had  been  forthcoming  which resulted in  recategorisation from  shape-I to  shape-II. To remove the  apprehension of  bias, this  Court directed that the appellant may be examined by a Board consisting of three Experts with an outsider as Chairman.      After considering  the report  of the Experts Committee this Court allowed the appeal in part and, ^      HELD: 1.  The appellant’s  medical  category  shall  be taken as being continued to be shape-I from 1977 and on that basis his promotional entitlements shall be finalised by the respondents within  three months  hence. It  is open  to the respondents to release the appellant from service after this has been done. [655F]      2. The  report of  the Expert  Committee makes it clear that there  was no  justification for  the appellant  to  be subjected to psychiatric test in 1978 following which he was recategorised as shape-II. [654G]      3. This  subject of  categorisation  on  the  basis  of psychiatric test  is technical and should ordinarily be left to experts  available in  the  Defence  Department  and  the guidelines indicated  by the  Department should be followed. This Court has no intention to disturb the discipline of the Defence Department,  but on  the basis of material available on the  record and  on  the  basis  of  the  report  of  the Committee of  Experts, the  appellant is entitled to limited relief. Though there was no order reducing him from the rank of Acting  Lieutenant Colonel  to Major,  he was  treated as having  been   so  reduced.   Then  followed   the  frequent psychiatric examinations  without  any  real  justification. This recategorisation,  in these  circumstances, was without any justification. [654H; 655A-B]      [Reiterating that  it would  like the discipline of the Defence  Department  to  be  maintained  by  itself  in  the interest of  the nation,  this Court observed that this case may not be taken as a precedent.] [655F-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1702 of 1987. 648      from the  Judgment and  order dated  31.3.1987  of  the Allahabad High  Court in  Civil Misc. Writ Petition No. 5702 of 1985.      Petitioner in-person (Lt. Col. K.D. Gupta)      Kuldeep Singh, Additional Solicitor General, C.V. Subba Rao and Pramod Swarup for the Respondents.      The Judgment of the Court was delivered by      RANGANATH MISRA, J. This appeal is by special leave and is directed against the judgment of the Allahabad High Court dismissing the  writ application  of the  appellant. He  was granted a  permanent Commission  in the  Indian Army in 1958 and was  initially appointed  as  a  Second  Lieutenant.  He obtained successive  promotions to  the ranks of Lieutenant, Captain and  Major. In  December, 1974,  he was selected for promotion to  the rank  of acting  Lt. Colonel  and  was  so promoted with effect from 27th February, 1975.      From the  following year,  the appellant came to face a

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series of  set backs  in his service. On March 22, 1976, his Brigade Commander  directed the  appellant to  report to the Officer  Commanding,   Military  Hospital,  Kirkee  for  his psychiatric examination.  He was  examined  by  Lt.  Colonel Mukherjee, specialist  in psychiatry on 23rd March, 1976 and by Surgeon  Commodore D’netto,  Psychiatry Consultant to the Indian Navy  on the  26th March, 1976. On the basis of their reports, the  appellant’s medical classification was reduced from Shape-I to Shape III by order dated August 13, 1976. By order dated  November 16,  1976, the appellant was posted as GLO (Major/Captain)  152, G.L.  Sec. Type  Vice Captain I.K. Bedi, a  post ordinarily  held by a Major or Captain. Though there was  no specific  order reducing the appellant in rank from Acting  Lt. Colonel to that of Major, he was treated as Major. On  December 10, 1976, appellant’s classification was upgraded to  Shape-II and  on a  second  medical  review  on September 2,  1977 to  Shape-I.  His  authorities,  however, decided the  appellant to  be subjected  to ’Special Review’ before restoration  of the rank of Acting Lt. Colonel and on October  31,  1977,  required  the  Brigadier  Commander  to initiate a special report and submit it to the Headquarters. The  Brigade   Commander  recorded   appreciation   of   the appellant’s  work  and  recommended  his  promotion  as  Lt. Colonel. Yet, the Army Headquarters by letters dated October 12 and  November 27, 1978, directed the appellant to be sent to the  Military Hospital at Pune for further examination by the psychiatry consultant. It was indicated by way of 649 justification for  such requirement  that when the appellant was graded  as Shape I, an earlier incident of 1963 had been overlooked.  On   such   examination   the   appellant   was permanently downgraded as Shape II.      The appellant  filed an  application under  Article  32 being Writ  Petition No.  5302  of  1980  challenging  these actions and his downgrading. A two-Judge bench of this Court by judgment  dated August  10, 1983,  allowed the same. This Court stated:                "According to  the petitioner,  this was done           entirely without  any  basis  and  that  even  the           clinical reports  would reveal that the petitioner           was perfectly  fit. We  do not  desire to  go into           these  claims  of  the  petitioner  since  we  are           satisfied on  the material  placed before  us that           even the  very reduction  of the petitioner’s rank           in 1976  from Acting  Lieutenant Colonel  to Major           was bad.                Shri Abdul  Khader, learned  counsel for  the           respondents explained  to us  that the  petitioner           had  been   reverted  from   the  rank  of  Acting           Lieutenant 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 examination 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 admitted in the           hospital   and   under   the   rules,   he   stood           automatically reduced in rank". This Court  examined all  the three  points  and  ultimately ended by saying:                "As  stated   by  us   earlier,  we  find  no           substance in  any one  of the reasons mentioned by

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         Shri Abdul Khader on behalf of the respondents for           the reversion  of the  petitioner from the rank of           Acting Lieutenant  Colonel to Major. The reversion           or reduction in rank cannot be justified and it is 650           accordingly quashed. The petitioner is directed to           be re  stored to  the rank  of  Acting  Lieutenant           Colonel with  effect from the date he was reverted           and stripped  off the  badges indicating his rank.           As a  result of the restoration of the rank of the           Acting Lieutenant Colonel to the petitioner, other           consequences,  such   as,  consideration   of  the           petitioner’s further  claims to  advancement, pay,           arrears of  pay, etc.,  will have to be considered           by the  authority and  it is  directed that  these           claims may  be considered and disposed of within a           period of six months from today."      The  appellant  waited  for  a  reasonable  time  after lodging his  claim and  ultimately went before the Allahabad High Court by filing an application under Article 226 of the Constitution being  Writ Petition  No. 5702  of 1985. Before the High  Court he  asked for quashing of the proceedings of the Review Medical Board dated 11th January, 1984, and for a declaration that  he  should  be  treated  as  belonging  to medical  category   Shape-I   for   all   purposes   without interruption since 2nd September, 1977. He also asked for an appropriate posting  considering his  entitlement and  other service benefits.  The claim was resisted by the respondents on  the   ground  that   there  was  nothing  wrong  in  the recategorisation and the directions of the Supreme Court had been fully complied with and the appellant has no subsisting grievance. On 31st March, 1987, the High Court dismissed the petition. This  appeal has  been filed  after obtaining  the special leave.      The appellant  as on  the earlier  occasion argued  the appeal in  person and began his arguments by contending that the respondents  were guilty  of not  giving effect  to  the directions contained  in the judgment of this Court. When we heard the  appellant,  we  realised  how  very  correct  the observation of  Chinnappa Reddy,  J., where  he re corded in the judgment of this Court were:           "As usual  with parties,  who argued  their  cases           themselves, he  was  so  full  of  his  facts  and           grievances, big  and small,  that we  experienced,           for quite a while, difficulty in getting a picture           of the case in its proper frame."      After the  matter was  heard at  length, we  found that there was  absolutely no  merit in  the  contention  of  the appellant that  the respondents were guilty of not complying with  the  directions  of  this  Court.  Learned  Additional Solicitor General  was, therefore, right in taking the stand that full  effect had been given to the directions contained in 651 the judgment  of this  Court. We  would like  to recall here that there  were several  other contentions made in the writ petition which  this Court  did not  go into  by saying that even without  considering them the appellant was entitled to his relief.  The appellant  had  moved  this  Court  on  the earlier occasion under Article 32 of the Constitution but on this occasion  he went  before the  High Court under Article 226. Some  of his  allegations had  already been made in the writ petition  before  this  Court  and  others  related  to subsequent events.      It is  unnecessary to go into several aspects which the

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appellant in  his anxiety  had pleaded and even canvassed at the hearing.  It is  sufficient to  indicate that  the  main grievance of the appellant has been against recategorisation from Shape-I  to Shape-II.  We have already pointed out that the appellant enjoyed Shape-I until 1976 when he was reduced to Shape-3  in August  1976. In 1977, he was brought back to Shape-I. According to the appellant, there was absolutely no justification for  the direction  made  in  March,  1976  to subject the appellant for psychiatric examination. Similarly when the  appellant had  been  recategorised  in  September, 1977, as  Shape-I, there  was no necessity to require him to be subjected  to further  examination at Pune. He denied the allegation that the incident of 1963 had not been taken into account while  recategorising him  as Shape-I.  According to the appellant,  a prejudicial approach developed against him in the  Headquarters establishment without any justification and he  has been unduly subjected to psychiatric examination from time  to time  and on the basis of the records built up against him,  adverse opinion  has been forthcoming. To meet this objection  of the  appellant and remove apprehension of bias from  his mind,  in course  of hearing, we suggested to learned Additional  Solicitor General appearing on behalf of the respondents  that the  appellant may  be examined  by  a board consisting of three experts specially constituted with an outsider  as Chairman. Respondents’ learned counsel after obtaining instructions  accepted the  suggestion.  By  order made on January 25, 1988, this Court directed:                "In course  of  hearing  of  the  appeal,  we           suggested to  learned Additional Solicitor General           appearing on  behalf of  the respondent  to have a           fresh psychiatric evaluation of the appellant by a           competent body  of psychiatrists  by including  in           the  board   some  in-service   and  retired  Army           psychiatrists and  some  from  outside.  This  was           initially opposed  by learned Additional Solicitor           General by contending that it would be against the           discipline of  the Defence  Department  and  would           create in unwholesome 652           precedent. We  adjourned the  matter and  gave him           the  opportunity   to   take   instructions   from           Government and  we are  happy to  note that on the           basis of instructions, he has agreed. as a special           case, to  the constitution  of  such  a  board  of           psychiatrists. Appellant  has also  been heard  in           person in the matter. He has made writ submissions           by way  of  an  application  we  have  taken  into           consideration.                We  direct  that  a  board  of  psychiatrists           consisting of  three experts  be constituted  with           the Professor and Head of the Psychiatrist wing of           the All  India Institute  of Medical Sciences, New           Delhi, Air  Com. K.  Sethi Consultant  of the Army           Hospital at  Delhi and Colonel M.A. Bhasin, Senior           Advisor in  Psychiatry, Southern Command Hospital,           Pune. The  Head of the Department of the All India           Institute of  Medical  Sciences,  as  referred  to           above, shall  act as  the convenor and chairman of           the Board.  The Board  shall meet at Delhi at such           place, date  and time  as  may  be  fixed  by  the           convenor  in   consultation  with  the  two  other           members. The  Board shall  peruse all  the records           relevant for  the purpose  of  making  psychiatric           evaluation of  the appellant  and the  respondents           shall produce all such records as may be necessary

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         and  required   for  such  purpose  by  the  Board           including the relevant instructions of the Defence           Department in  the matter  of such assessment. The           appellant  shall  appear  before  the  Board  when           directed and  the respondents  shall take steps to           ensure his availability before the Board.                The report  should be  made available to this           Court within  six weeks  from today.  The expenses           including payment, if any, necessary to be made to           any of  the experts  shall be  borne by respondent           No. 1.  The evaluation  shall inter  alia indicate           whether there  was any justification to categorise           the  appellant  as  Shape-II  after  he  had  been           adjudged as  Shape-I and as to whether the present           categorisation as Shape-II permanent is justified.      We place  on record that this shall not be treated as a precedent."      The Board  sent its  report dated  March 8, 1988, after examining the  appellant between 22nd February, 1988 and 8th March, 1988. It evolved the following procedure: 653                "(a) Each  of  the  experts  to  examine  the           patient, independently at least twice.                (b)  Each   expert  to   maintain   his   own           observations.                (c) Daily observations reports of the patient           to be recorded by the Senior Resident Psychiatry.                (d) Psychometeric evaluation                (e) Perusal of old records of hospitalisation           by  the   three  consultants,  after  the  current           examination.                (f)   Maintenance   of   confidentiality   of           observation by  the experts,  Sr. Resident and the           Psychologist.                (g) Review  of the unit reports after current           examination.                (h) Joint  review and  report by the board on           7th  and   8th  March,  after  examining  all  the           material collected above". In paragraph 5 of the Reports the Board observed.                "(a)  During  September  1977,  when  he  was           recommended to be upgraded to medical category S-I           Lt. Col.  K.D. Gupta  was a symptomatic as per the           medical histories  examined by  the board. The old           medical records  do not  show any  evidence  of  a           psychiatric disorders between September 1977, when           he was  upgraded to S-I and the review board which           took place in November 1978 following which he was           recategorised to permanent S-II as per the opinion           of that  review board on the ground that a relapse           could occur in future.                (b) The  current A043/78 and DG Memorandum 97           (extract  attached   as  appendics   ’A’  &  ’B’),           precludes such  an individual  to be upgraded from           medical category S-II to S-I.                (c)  The   natural   history   of   affective           psychosis (MDP)  ICD 9,  is strongly  supported of           the fact that relapse without 654           any precipitating  cause and remission without any           medical intervention can take place." We felt that certain elucidation was necessary and requested the presence of the Chairman Professor Mohan in Court. Prof. Mohan appeared  in due course and with reference to what was stated in paragraph 5(a), he stated:

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         "We were of the view that there was no material in           the     Medical     reports     justifying     the           recategorisation  to  S-II  from  S-I  apart  from           apprehensions of relapse." In  answer   to  a  question  posed  by  learned  Additional Solicitor General, Dr. Mohan stated:                "During September 1977, when he was recommen-           ded to  be upgraded  to medical  category S-I  Lt.           Colonel K.D.  Gupta was  a symptomatic  as per the           medical histories  examined by the board. We meant           that there was no record in the history of medical           papers to  suggest that Lt. Col. Gupta was unwell.           " Upon the  suggestion of  the  learned  Additional  Solicitor General, Dr.  Mohan was  asked as  to whether  he was of the view that  the appellant  was at  the time  of  the  present examination  entitled  to  be  categorised  as  S-I  and  he answered.                "If you  take  the  natural  history  of  the           illness, it  is difficult  to say  one way  or the           other, because  it is self limiting and phasic and           after the  phase is  over  there  is  no  residual           deficit left.  The  individual  is  as  normal  as           anybody else is. The period between attacks varies           from one individual to another from months to year           .........."      The report  and the  statement made  by Professor Mohan make it  clear that  there  was  no  justification  for  the appellant to  be  subjected  to  phychiatric  test  in  1978 following which he was recategorised as S-II.      We agree  with the learned Additional Solicitor General that the  subject is technical and ordinarily should be left to experts  available in  the  Defence  Department  and  the guidelines indicated  by the  Department should be followed. This Court has no intention to disturb the discipline of the Defence Department but on the basis of material 655 available on  the record which had been partly dealt with by this Court  on the  earlier occasion  while disposing of the writ petition,  and what  we have  now found on the basis of the report  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 Lieutenent Colonel  to Major, he was treated to have been so reduced. Then followed the frequent psychiatric examinations without any  real justification.  These have constituted the foundation    of     the    appellant’s    grievance.    His recategorisation 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 categorisation continuing as S-I.      In a  petition dated 2nd April, 1988, the appellant had asked for certain directions and reliefs. The application is confused one  inasmuch as  arguments, pleadings  and prayers have been  jumbled up.  The appellant, inter alia, has asked for entitlements  of promotion  in view of promotions earned by his  batchmates. We  do not  think that  would be  a safe guide but  we do  hope and trust that the respondents should consider his  case for  promotion with  an open  mind on the basis of his continuity in shape-I. He has also indicated in paragraph 8  of that  petition that  he is  prepared  to  be released from  service after  his promotional  entilement is finalised and  he is  given his dues on such basis as may be determined. The  appellant has claimed compensation which we see no basis to grant.

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    The appeal  is allowed  in part  and to the extent that the appellant’s  medical category  shall be  taken as  being continued to  be  S-I  from  1977  and  on  that  basis  his promotional  entitlement   shall   be   finalised   by   the respondents within three months hence. We make it clear that it is  open to the respondents to release the appellant from service after this has been done. This case may not be taken as a  precedent and  we reiterate that this Court would like the discipline of the Defence Department to be maintained by itself in the interest of the nation Parties are directed to bear their own costs. G.N.                             Appeal partly allowed. 656