Full Judgment Text
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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.
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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.
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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
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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
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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:
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"(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.
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