CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1702 of 1987.
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 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 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
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
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 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 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
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
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:
"(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
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:
"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 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.
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.