The Supreme Court, on May 18, cleared Brigadier Javed Iqbal's promotion to the post of Major General, the highest post in the Judge Advocate General's Department, which was denied on medical grounds, at the instance of the Military Secretary.
The Court overruled the medical objections raised by the Union Government - that the officer had hypertension and was unsuitable for working at high altitude areas.
"In the instant case, the respondent is the JAG officer and even if promoted would generally perform his duties in the headquarters",the Court observed.
A Bench comprising Justices Indira Banerjee and A.S. Bopanna upheld the order of the Armed Forces Tribunal, Lucknow Bench (AFT) which had directed Brigadier Iqbal to be promoted forthwith to the post of Major General. It also directed the order of the AFT to be implemented immediately.
"For all the aforestated reasons, we see no reason to interfere with the order passed by the AFT impugned herein, which shall therefore be implemented forthwith. The appeal being devoid of merit stands dismissed with no order as to costs."
Javed Iqbal is an officer of the 1989 Batch and serving as Brigadier in the Judge Advocate General (JAG) branch of the Military. He is designated as the Deputy Judge Advocate General and claims entitlement to the post of Major General, which had fallen vacant on 01.12.2020. Brigadier Iqbal was cleared for promotion to the post of Major General, by the Selection Board, then the Chief of Defence Staff, the competent authority and later his selection was confirmed by the Central Government. However, he was denied promotion at the interference of the Military Secretary at the last minute. In view of the same he had approached the AFT. Vide order dated 07.01.2022, it allowed the application directing the petitioner to be promoted 'forthwith' with effect from 05.05.2022.
The Union Government argued that the selection to a higher post, is subject to satisfaction of the medical criteria. It was submitted that Brigadier Iqbal was placed at a lower medical category for Hypertension P2(P), which would fall under the non-promotable category. It was further stated that the empanelment pursuant to recommendation of the Selection Board is subject to meeting the requisite medical criteria. In this regard the Additional Solicitor General, Ms. Madhavi Divan had relied on the circular dated 14.12.2012 pertaining to the medical classification of Army Officers and consequent eligibility for promotion to select Ranks, which was issued in exercise of power under Regulation 67 of the Regulation for the Army relating to substantive promotion by selection.
Senior Advocate, Mr. Devadatt Kamat, appearing on behalf of Brigadier Iqbal had submitted that under Regulation 67, officers who fall under the classification of SHAPE2, like the respondent-officer, can be considered for promotion subject to certain conditions. It was averred that the nature of duties to be performed by the officer upon promotion is also required to be taken into consideration
The Court noted that Brigadier Iqbal fell in the SHAPE-2 category, which as per Regulation 67(b) does not render him ineligible for promotion. If the Medical Board finds the officer to be capable of performing normal active service duty they can be considered for promotion, as per Regulation 67(b).
Moreover, the contention of the Union Government that he was not fit to go to high altitude areas would not have much bearing in the present case, as he is a JAG officer and would be performing his duties in the headquarters. It observed that apart from the overall performance of the officer, the Selection Board ought to consider the employability of the officer in the next higher rank. It was also noted that the Chief of Army Staff is the ultimate authority to take decisions and the role of the Military Secretary is limited to bringing into the notice of the Chief if the officer concerned had been graded against the guidelines in the Selection Board grading. The medical record was available with the Selection Board and on perusal of the same a conscious decision was taken to recommend Brigadier Iqbal for promotion. Therefore, the Court was of the view -
"In a matter of the present nature where the selection was being made to a high rank from that of Brigadier to Major General and that too in JAG branch, the employability of such officer and the nature of duties was also to be kept in view. In the instant case, the only disability of the officer concerned while in SHAPE2 also is with regard to the risk in high altitude service and the No.1 Selection Board has kept in view the normal nature of work to be performed as JAG (Litigation).
In that view, the No.1 Selection Board should be credited of having applied its mind before recommending the case of the respondent. Further, after clearance by the No.1 Selection Board, the Chief of Defence Staff had on 12.02.2021 taken note of the medical status of the respondent and had approved the recommendation. When officers of such high rank have applied their mind in the instant case and approved the case of respondent for promotion the repeated objection by the Military Secretary is not justified."
The Court had also taken note of the fact that when Brigadier Iqbal had requested for waiver and thereafter for medical re-examination it was allowed and he was eventually upgraded to SHAPE1. It was clarified that at the curiosity of the Military Secretary neither AFT nor the Apex Court can sit in judgment on the expert opinion given by the Medical Board.
Case Title: Union of India And Ors. v. Brigadier Javed Iqbal Civil Appeal No. 2560 of 2022