1. These applications under Section 14 of the Armed Forces Tribunal Act, 2007, have been filed by similarly placed nine serving Lt Cols and eight Cols who are aggrieved by their not being empanelled by the Special Review Medical Board (SRMB) held in Jun 2021 in spite of being in a promotable medical category as per the policy in vogue and having been empanelled by the No 3/ No 2 Selection Boards (SB). They have made identical prayers and therefore OA 1607/2021 is being taken as the lead case. The applicant here have prayed that the relevant records be called for and the impugned order by which these officers have been arbitrarily and _ illegally declared unfit for physical promotion to the rank of Col/Brig be quashed; certain provisions of the policy letter dated 14.12.2012 and 31.05.2015; the existing promotion policies pertaining to low medical category (LMC) be amended in conformity with para 67(b) of the Regulations for the Army(RA) and AO 09/2011/DGMS. And in the interim they have sought that the SB of the junior batches be not held; if held, necessary vacancy be kept aside for these officers.
Brief Facts of the Case
2. There are a total of 17 Lt Cols/Cols who have filed OAs on this matter; their details are given below:-
3. The brief facts of the case are that these officers were considered by the No 3 & 2 SB in 2021 and were approved for promotion to the rank of Col/ Brig respectively based on their overall professional record and merit. Since all of them were LMC and were within the permissible medical category and COPE Coding, they were all subsequently considered by the SRMB in Jun/ Jul 2021 again as per the provisions of the policy letter dated 31.05.2015 and were declared unfit for physical promotion to the rank of Col/ Brig. It is the case of the applicants here that while their medical status was known at the time of the No2/3 SB and were yet found fit for empanelment to the next rank, the SRMB which assembled thereafter, with only an additional input in the form of a ‘Special Report’ had_ arbitrarily declared all the applicants unfit for physical promotion. It is also the case of the applicants that the policy promulgated vide letter dated 31.05.2015 is opaque in nature with unfettered and unguided discretion to declare officers unfit for promotion. That Paras 5(b), 5(c), 15(c) and 16, besides being arbitrary and discriminatory were contrary to RA Para 67(b) and AO 09/2011/DGMS, besides being violative of the applicants’ fundamental rights under Article 16 of the Constitution of India.
Arguments by the Counsel for the Applicants
4. The Counsel for the applicants initially stated that all the applicants here had been empanelled for promotion by the No 3/2 SB and yet had been found unfit for physical promotion by the SRMB held subsequently, in spite of being in the acceptable medical category and COPE Coding. He further added that though all the applicants had an excellent career record with varied experience, yet they were not found fit for command, or instructional, or even staff appointments. The Counsel then stated that he would argue the case taking OA 1607/2021 as the lead case.
5. Referring to Annexure A-3, the Counsel stated that the applicant had been approved for promotion to the rank of Col by the No 3 SB held in Feb 2021. Since the applicant was a LMC, in med category SHAPE-2x (P2), COPE-2 (C201P1E1) for PIVD L4-L5, he was brought before the SRMB after obtaining a Special Report regarding his employability. In spite of the employability certificate given by the IO, the SRMB declared him unfit and the results were promulgated vide Annexure A-1. However, no reasons had been given as to why the applicant and others were found unfit.
6. The Counsel briefly stated the hierarchy of statutory and non statutory provisions and then took us through RA Para 67(b), AO 9/2011/DGMS and the two policy letters of 14.12.2012 (Annexure A-9) and 31.05.2015 (Annexure A-2). Having explained the details, the Counsel vehemently asserted that if the policy was contrary to the OA, then it had to give way to the AO. The Counsel then elaborated on the AO and stated that the functional ability for military duties was designated by a numerical with the SHAPE factors and that the employability of LMC officers was guided by the COPE coding, job content and the endorsement in the ACR by the IO/RO/SRO_ regarding the officers’ demonstrated performance. The Counsel then took us through the details of the policy letter dated 14.12.2014 and stated that earlier SRMB was only applicable for promotion to Col and that it had been later made applicable for promotion to the rank of Brig too vide policy letter dated 31.03.2015. The policy dated 14.12.2014 amongst other issues, laid down the medical cat and COPE coding based on which a LMC officer was eligible to be considered for promotion to the rank of Col and above. The policy also stipulated which cat of LMC officers would be eligible to be considered by the SRMB subject to the condition that the officer was approved by the SB and it was possible to employ the officer in suitable appointments commensurate with the LMC classification. Further referring to the policy letter dated 31.03.2015 the Counsel stated that the SRMB had been made applicable to promotion to Brig and that the policy elaborated on the conduct of SRMB and the consideration by the Board to incl the definitive grading to be assigned; fit for command or, fit for Staff/ERE/Instructional, or unfit. The Counsel then elaborated on the past SRMBs and stated that the No 3 SRMB of Dec 2019 had considered 07 (including 03 infantry officers) officers and all had been found fit for promotion with one fit for command and the balance 06 fit for staff/ERE/instructional. No 3 SRMB of Jul 2020 had considered 03 officers and all had been found fit for staff/ERE/instructional; and the No 3 SRMB of Dec 2020had considered 09 officers and all had been found fit; one for command and the balance for Staff/ERE/instructional. The Counsel then added that this was the first time that the No 3 SRMB of Jun 2021 considered 15 officers and had only found only four fit; one for command and three for staff/ERE/instructional.
7. The Counsel relied on the following judgements :-
(a) Supreme Court judgement in Brig Javed Iqbal Vs Uol, CA 2560/2022, dated 17.05.2022.
(b) Supreme Court judgement in UoI Vs Hemraj Singh Chauhan & Ors (2010) 4 SCC 290.
(c) Supreme Court judgement in State of Orrisa & Ors Vs Mamta Mohanty (2011) 3 SCC 436.
(d) Supreme Court judgement in A satyanaraya & Ors Vs S Puruhotham & Ors, (2008) 5 SCC 416.
(e) Supreme Court judgement in AL Kalra Vs Project and Equipment Corporation of India Ltd , (1984) 3 SCC 316.
(f) AFT (PB) order dated 06.04.2022 in OA 2072/2021, Col Sameer Sinha Vs Vs Uol.
(g) AFT (PB) order dated 11.07.2022 in OA 1944/2019, Hav Manoj Kumar Vs Uol.
Arguments by the Counsel for the Respondents
8. The Counsel first took us through the statutory provisions, overall promotion policy and conduct of selection boards for empanelment to select ranks and added that the medical category of the officer was not considered by the SB for empanelment. He further added that once an officer was found fit by the SB for empanelment, the officer’s physical promotion on occurrence of vacancy was based on the medical fitness and continued satisfactory performance (Annexure R-1). The requirement of medical fitness was applied uniformly to personnel of all arms and service in the Army. The Counsel further added that it was for the employer to consider the peculiarities of service and lay down the acceptable health or medical standards and no employee had a right to claim promotion without meeting such laid down acceptable medical criteria.
9. The Counsel then stated that the guidelines of acceptable medical category were enshrined in Para 67 (A) (b) of the Regulations for the Army, 1987, and that the promotion of an officer whose permanent classification was A2 or P2 or H2E2 was not a rule but an exception subject to fulfillment of conditions specified therein. He further stated that the prescription of acceptable medical category for promotion to the select ranks both in substantive ranks and acting ranks had the approval of the Central Govt. He then took us through the relevant policies since 1972 till date and explained the introduction of the concept of ‘Functional Capacity’ and ‘Employment Management Index’ contained in AO 1/2004/DGMS (Health Care System) where by, policy to promote LMC Officers without employability restrictions (i.e. F1A and F1B) to the rank of Brigadier and above was introduced for the first time. This then resulted in the promulgation of the policy dated 24.01.2005 whereby LMC officers even in P2 category with employability index F1A or F1B became eligible for acting promotion to higher ranks.
10. The Counsel further elaborated that AO 9/2011/DGMS (Health Care System) changed the concept of ‘Functional Capacity’ assessment from F1iA to F5 to that of employment restriction in five factors denoted by COPE Coding assessed from 0 to 2. Accordingly, the policy letter dated 14.12.2012 was promulgated shifting the ‘Functional Capacity’ to that of COPE coding. And that the COPE coding awarded by the medical board was a guide to MS Branch in finding suitable employment for LMC officers as it specifies the employability restrictions for climate/ terrain, degree of medical observations, physical limitations and Exclusive Restrictions specific to a disease.
11. The Counsel then stated that though the medical classification of an officer was not a criterion at the time of consideration by the SB, at the time of assumption of higher select rank, the medical classification of an officer had to be within the acceptable limits as laid down in the MS Branch Policy letter dated 14.12.2012 on ‘System of Medical Classification of Army Officers and consequent Eligibility for Promotion to Select Ranks’ along with MS Branch Policy No 04548/MS Policy dated 07 Sep 2016.
12. Further elaborating on the SRMB and its conduct, the Counsel referred to the policy dated 31.03.2015 (Annexure A-2) and stated that only one SRMB consideration was admissible and that the decision of SRMB was final. He then elaborated on the composition of the SRMB including the two nominated specialists (medical & surgical) present in an advisory capacity, and that the SRMB would be conducted along with scheduled No 2/No3 Selection Board. He further elaborated that on declassification of the SB results, the concerned controlling Group at MS Branch would then identify eligible empanelled officers who were required to be screened by the SRMB; seek additional prescribed documents in respect of these officers which were then placed before the SRMB. The SRMB then considered all relevant aspects and submitted it’s recommendation from the medical perspective on the suitability of the officer for physical promotion and his employment in the relevant rank. Elaborating on the recommendations made by the SRMB, the Counsel stated that the SRMB recommended the officer as fit for ‘Comd’; or as fit for Staff/ERE/Instructional; or as ‘Unfit’. The SRMB proceedings were then approved by the Military Secretary. In case SRMB altered the approval for promotion already recommended by No 3/No 2 SB, the Board Proceedings would be then approved by COAS/MoD as applicable. The Counsel reiterated that, the powers vested in SRMB were not unfettered and that any change to previous decision was final only on approval of the competent authority.
13. The Counsel then went on to explain the specific details pertaining to the applicant, a 2004 seniority officer from Armoured Corps who was empanelled as a First Review case by No 3 SB held in Feb 2021. That he could not be physically promoted to the rank of Col being in LMC SHAPE- 2 (P2) COPE-2. Accordingly, in terms of policy letter dated 31.03.2015, the applicant was considered by the SRMB in June 2021 which found him UNFIT for physical promotion to the rank of Col. Further referring to the assertion by the Counsel for the applicant that the applicant was eligible for promotion to the rank of Col as per the provisions of Para 67 of RA, the Counsel stated that that the provisions of Para 67 of the RA dealt with substantive promotion to select ranks in the Army. He further added that while Para 67 (b) specifically indicated that any substantive promotion was subject to medical fitness of the officers, Para 67 (b) did not provide that an officer with the P2 medical category was eligible for promotion to the selection grade ranks, since it only provided that an officer with the medical category P2 may also be considered for promotion, provided they fulfill the conditions set therein, and that the policy letter dated 14 Dec 2012 prescribed the conditions for LMC officers to be physically promoted to select ranks, and that in terms of the policy letter dated 31 Mar 2015 SRMB was held to assess the suitability of the applicant for physical promotion. Further referring to the assertion regarding the policy letters of 14.12.2012 and 13.03.2015 being at variance to Para 67 of the RA the Counsel stated that these two provisions were not at variation with each other as averred by the applicant and that the promotion policy was in fact further amplification of the provisions enunciated at Para 67 of the RA. The Counsel also then emphasised that neither were MS Branch policy letters dated 14.12.2012 and 18.09.2012 at any variance with AO 09/2011/DGMS as they were in consonance with the existing concept of SRMB with the revised COPE coding introduced vide AO 9/2011/DGMS. And that while AO 9/2011/DGMS was on Healthcare System in the Army, the policy letter dated 31.03.2015 was on the conduct of SRMB which was to determine whether the promotion of an LMC officer would be in organizational interest and to ascertain the Suitability of such empanelled officers for physical promotion as enunciated in Para 67 of RA. Further referring to the assertion that the SRMB was only meant to assess employment after promotion and not to reassess fitness for promotion, the Counsel reiterated that as per Para 5 (b) of the policy letter dated 31.03.2015 officers were screened by SRMB to decide upon both; their suitability for physical promotion to the rank of Col/Brig as well as the stream for their employment, (ie) Command or Staff/ERE/Instructional. The Counsel then stated that empanelment by No 3 SB and SRMB were on different parameters; that both were governed by respective policies as applicable to them; and that therefore the parameters of both the Boards cannot be equated; and that provisions of the impugned policy were therefore not arbitrary, irrational or unreasonable, and that changes to these policies were made after due approval of the competent authority.
14. Referring to the contention that in the light of the MS Branch Policy on quantification dated 04.01.2011 and 23.12.2017, the policy on SRMB was contradictory and violative of Art 14 & 16 of the Constitution of India, the Counsel elaborated that both these policy letters pertained to’ Quantification System of Selection for Selection Boards’ and that medical category was delinked from QSS as it was dynamic in nature and considering it under a quantified model would result in disadvantage to officers placed in LMC. Thus, SRMB was thereafter conducted to decide upon the suitability of officers placed in LMC for physical promotion and the suitable stream for employment. That the SRMB policy was therefore aligned to the provisions of Para 67 of Regulations for the Army which stated that officers in A2, P2 or H2E2 category may be promoted if it is in the interest of the organization and as per the opinion of a Medical Board. Moreover, as per Para 16 of Policy letter dated 31.03.2015, where the SRMB alters approval for promotion already recommended by No 3 / No 2 SB, the Board Proceedings have to be approved by COAS/MoD as applicable.
15. Referring to the assertion by the Counsel for the applicant that there was ‘cherry picking’ in declaring certain officers fit and others as unfit, the Counsel reiterated that medical category and employment restrictions were specific to the individual and therefore no parallel could be drawn with other officers, and that it was the function of SRB to examine all such cases independently and assess their suitability for promotion. Since the applicant and all other officers were considered by SRMB in accordance with the policy in vogue and after due consideration of the specific medical condition and restriction as applicable and then found ‘unfit’ for physical promotion, the action was not violative of Art 14 & 16 of the Constitution of India. The Counsel relied on the following judgements :-
(a) Supreme Court judgement in Rachna & Ors Vs Uol & Ors, (2021) 5 SCC 638.
(b) Supreme Court judgement in hardev Singh Vs Uol, (2011) 10 SCC 121.
(c) AFT (PB) Order dated 16.04.2018, OA 1989/2017, Lt Col Rahul Jain Vs Uol.
(d) AFT (PB) Order dated 21.02.2019, OA 1539/2018, Col Peyush Joshi Vs Uol.
16. The Counsel concluded by stating that the SRMB had been conducted as per the provisions of the policy in vogue and the applicant had not been found fit due to his medical category and restrictions. He vehemently asserted that the OA was bereft of any merit and that it therefore be dismissed.
Consideration of the Case
17. Having heard both the parties at length, the only issue that is required to be decided is whether the applicants here have been considered fairly by the No 3 and No 2 SRMB held in Jun/Jul 2021 based on the current policy in vogue. Based on the orders of this Court, the Respondents have produced the Board Proceedings of both these Boards and the connected files. We therefore examine the following :-
(a) Statutory Provisions.
(b) Policy on SRMB.
(c) Conduct of SRMB.
(d) Conclusion.
Statutory Provisions
18. The issue of promotion of officers is governed by Para 67 of the Regulations for the Army (Volume -1) Revised Edition 1987 which states the following:
"67. Substantive Promotion by Selection.— (A) All officers (except officers of Military Nursing Service, Army Medical Corps, Army Medical Corps (Non-Technical), Army Dental Corps, Remount and Veterinary Corps, Military Farms, Jag’s Department Special List and officers permanently seconded to Research & Development and Inspection Organisations): —
(a) XXX XXX XXX
(b) Substantive promotion by selection to the rank of Lt. Col and above will be subject to the medical fitness of the officer concerned for active service and the permanent medical classification of an officer not being other than S1 H1 Al P1 Ei, S1 H2A1 P1 E1 or S1 H1 Al P1 E2. An officer whose permanent classification is SI H1 A2 P1 E1, S1 H1 Ail P2E1 or S1 H2AI Pi E2 may also be considered for promotion provided the following conditions are fulfilled:—
(i) Such promotion would be in the public interest.
(ii) In the opinion of a Medical Board:—
(aa) the officer is capable of performing the normal active service duties of the rank to which he is, being promoted, in his present medical category.
(ab) any defect, disability, or disease, from which the officer is suffering, is not likely to be aggravated by service conditions, provided he is employed on duties compatible with this medical category and within the restrictions placed by the Board.”
Policy on SRMB
19. The policy of promotion of LMC officers to select rank has been laid down by MS Branch from time to time. We have examined the files/ records pertaining to policy on SRMB_ submitted by the Respondents. In recent times, the letter No 04502/MS Policy dated 17.11.2005 aid down the policy on ‘Promotion to theing Rank of Col and above: Officers in Low Medical Category. This was followed by letter dated 07.05.2007 aying down the policy on conduct of SRMB and laid down the aim, documents to be placed before the SB, composition, eligibility criteria for consideration by SRMB, grading and frequency. This letter of 07.05.2007 also stipulated the medical status of LMC officers who would be eligible for promotion to acting rank of Col without going through SRMB. The grading process entailed the SRMB grading the officer as ‘Fit’ of ‘Unfit’ for physical promotion to next higher rank. An officer found fit was to be further recommended as fit for ‘Command’ or, ‘Staff/ERE/Instructional’. The letter of 127,11.2005 was then amended vide letter dated 24.08.2009 where in Para 4 & 5 were replaced and new paras 6 & 7 added which included consideration of Cols by SRMB. MS Branch then vide its letter dated 22.06.2010 further amended thee letter dated 07.05.2007 and replaced para 6 & 7 pertaining to the medical category and employment index based on which attioets would be now eligible for consideration by SRMB. Vide letter dated 02.09.2011, the MS Branch issued the policy on ‘Command by Officers placed in LMC’, where in the acceptable medical category for placement in command appointments were laid down.
20. In Nov 2011, AO 9/2011/DGMS on Health Care System in Army was issued which laid down the instructions for medical examination and classification of serving officers. The new OA also revised the medical classification of officers given earlier in 1/2004/DGMS and replaced the Employment Management Index (F1A/F1B/F2/F3/F4) with an overall COPE Coding of 0/1/2. Accordingly, the letter No 04548/MS Policy dated 14.12.2012( Annexure A-9) , ‘System of Medical Classification of Army officers and Consequent Eligibility for Promotion to Select Ranks’ was issued indicating the overall COPE coding equivalence to the erstwhile Employment Management Index. Further letter on SRMB dated 18.09.2012 was issued superseding earlier letters dated 07.05.2007 and 22.06.2010. The MS Branch then examined the feasibility of extending the SRMB concept to higher select ranks, with inputs sought from the Commands, and it was decided to extend the SRMB concept to the rank of Brig (No 2 SB). Accordingly, letter dated 31.03.2015 (Annexure A-2) was issued extending SRMB to Brigs.
21. As seen from the files, medical category is not a criterion for empanelment, but is one of the criteria for physical promotion. Once an officer is empanelled, his professional competence for the job is already proven. While it is undisputable that LMC officers who cannot optimally discharge their duties owing to their medical condition are not promoted, the organisation opined that with suitable relaxation of medical conditions, it would be possible for the organisation to avail the services of such competent officers, who can be employed as per their medical restriction. This would not only reinforce the concept of merit with those being empanelled becoming eligible for promotion, but would improve the promotion prospects and thus enhance motivation. At the heart of the SRMB concept is the need to optimally employ professionally competent LMC officers in select ranks taking into consideration their medical and employment restrictions. Thus the policy now entails empanelled officers in certain medical category with COPE Coding-02 being considered for physical promotion based on their individual employment restrictions. To this end, the SRMB will grade officers as fit/ unfit; and if fit recommend for command or staff/ERE/instructional. Thus, there is adequate latitude to find employment for an officer under consideration of SRMB based on his employment = restrictions. Relevant extracts of letters dated 14.12.2012 and 31.03.2015 are reproduced below.
Extracts of letter dated 14.12.2012. The relevant issues from this letter are extracted below:-
“Ss. Employment Restrictions. Over and above medical classification of an officer in terms of SHAPE factors, related functional capacity in terms of numerals 1 to 5 and indication of multiple medical disabilities in terms of alphabets x to z, Employment Restrictions indicate fitness of the officer for military employment. Erstwhile concept of Employment Restrictions in terms of Employment Management Indices of F1A/F1B/F2/F3/F4, has been replaced in revised AO 9/2011/OGMS with the COPE Coding System as under:
(a) Cc - Climate and terrain restrictions.
(b) Q - Degree of medical Observation required.
(c) P - Physical capability limitation.
(d) E - Exclusive limitations as per Disease.
6 to 8 XXXXxx
. Promotion to Select Ranks of Colonel and Above. Subject to meeting all other laid down conditions, officers in following permanent medical categories are eligible for promotion to select ranks of Colonel and above:-
13, Special Review Medical Board. Only for promotion to the select rank of Colonel, officers who are in permanent low medical classifications of STHIA2P1E1, S1H1A1P2E1 (other than for dental condition) or STHZA1P1E2 with overall COPE coding of COPE-2, will be considered by Special Review Medical Board for physical promotion to the rank of Colonel, subject to the following:-
(a) They are approved for promotion to the rank of Colonel on initial assessment by No 3 Selection Board,
(b) It is possible to employ them in suitable appointments in the rank of Colonel, commensurate with their low medical classification.”
Extracts of letter dated 31.03.2015. The relevant issues letter are extracted below:-
"General
a The extant policy on SRMB was enunciated vide MS Branch letter at reference. As per the extant policy, officers in permanent low medical classification STH1A2P1E1 or SIH1A1P2E1 (less dental) or STH2A1P1E2, with employment restriction of COPE-2 and empanelled by No 3 Selection Board are screened by SRMB Which decides upon their suitability for physical promotion as well as stream for their employment in the rank of Colonel, viz, Command or Staff/ERE/Instructional.
3: The extant policy has been reviewed and the concept of SRMB has been extended upto the rank of Brigadier.
4, XXX XXX XXX
5. Broad Concept :;
(a) Officers empanelled by No 3/No 2 Selection Board and in permanent medical classification SIHIA2P1E1 or S1H1AIP2ZE1 (less dental) or SIH2ZA1P1E2, with employment restriction of COPE-2, will be eligible for promotion to the rank of Colonel/ Brigadier.
(b) Such officers will be screened by SRMB to decide upon their suitability for physical promotion to the rank of Colonel/Brigadier as well as stream for their employment, viz, Command or Staff/ERE/Instructional.
(c) Anofficer will be screened by separate SRMB for each level, that is, Colonel and Brigadier. Only one SRMB consideration will be admissible at any one level for an eligible medical classification. The decision of SRMB will be final and there will be no re-consideration.
(dq) Officers approved for Command Stream will be eligible to tenant Criteria/Part Criteria assignments as well as Non Criteria appointments. Officers approved for Staff/ERE/Instructional Stream will be eligible to tenant Non Criteria appointments only.
6 to 11 xxx XXX XXX
Conduct of SRMB
12. Composition of SRMB. Composition of the SRMB will be same as that of No 2/No 3 Selection Board. In addition, it will include a medical specialist and a surgical specialist, as nominated by DGMS (Army), in the advisory capacity.
13. Frequency of the SRMB, SRMB will be conducted along with scheduled No 2/No 3 Selection Board.
14. Actions by Military Secretary's Branch. On declassification of the selection board results, the concerned Controlling Group at Military Secretary’s Branch will identify eligible empanelled officers who are required to be screened by the SRMB. The Controlling Groups will also identify officers who have been medically downgraded while holding the rank of Colonel/Brigadier and need to be screened by SRMB to ascertain their suitability for tenanting Criteria/Part Criteria appointments in the present rank, The concerned Controlling Group will obtain the under-mentioned documents and forward the same to MS 5 for perusal by SRMB:-
(a) Special Report initiated by IO and RO, covering performance of the officer in his present appointment. Specimen copy of the Special Report is given at Appendix to this letter.
(b) Latest Medical Board proceedings.
15, Consideration by the Board. The Board of Officers will consider all relevant aspects and submit its recommendations from medical perspective on suitability of the officer for physical promotion and his employment in the relevant rank. The board will recommend one the following definite gradings to each officer under consideration:-
(a) B(Fit) Command. Fit for designated Criteria/Part Criteria appointments as _ also Staff/ERE/ Instructional assignments.
(b) B(Fit) Staff/ ERE/ Instructional. Fit for employment. on Staff / ERE Instructional appointments, that is, Non Criteria appointments only. The officer is not fit to tenant any Criteria/Part Criteria appointment.
(c) 2{ Unfit). Unfit for physical promotion to the next rank on medical grounds only. This grading, however, will not be awarded to an officer who has been medically downgraded while holding the rank of Colonel/Brigadier and is being screened by SRMB to decide upon his employment in the same rank, under the circumstances as covered at Paragraph 8(b) and 11(b) above.
16. Approving Authority. SRMB proceedings will be approved by the Military Secretary. In case SRMB alters approval for promotion already recommended by No 3/No 2 Selection Board, the board proceedings will then be approved by COAS/MoD, as applicable.”
Conduct of SRMB
22. The Respondents had been directed to submit the results of all the SRMBs conducted since 2015 along with the details of medical category and COPE coding of these officers. The results of SRMBs conducted from 2015 till Mar 2022 are summarised below.
(a) No3SRMB.
(a) No2SRMB.
23. A quick analysis of these tables show that No 3 SRMB from Jun 2015 to Dec 2020 considered 137 officers of whom only 04 were found unfit while in the period Jun 2021 to Mar 2022, 22 officers were considered of whom 13 were found unfit. Similarly, in the case of No 2 SRMB, from Jun 2015 to Dec 2020, 22 officers were considered of whom 03 were found unfit, while in the period Jul 2021 to Nov 2021 14 officers were considered of whom 12 were found unfit. A further analysis of the SRMB results from Jun 2015 to Dec 2020 indicates that the SRMB has approved for physical promotion 34 officers in low medical category for Primary Hypertension; 11 officers in low medical category for PIVD-L3/L4/L5; 03 officers in low medical category for Thalassemia Trait. Jn comparison, amongst the applicants here, 10 officers placed in low medical category for these very ailments have been declared unfit.
24. We have examined the proceedings of No 3 SRMB Jun 2021 and No 2 SRMB Jul 2021. The No 3 SRMB was held on 08.06.2021; was chaired by a Corps Cdr (Lt Gen) with four Maj Gens as members, two Medical Officers in attendance in advisory capacity and the Brig MS(B) as the Secretary. The Board considered a total of 15 officers of whom one officer was found (ffit for command, three for staff/ERE/instructional and 11 were found unfit. We find that the proceedings have the details of medical classification with disability and date of last medical board, the employment restrictions imposed by the last medical board and the details of the regular SB in which each officer had been empanelled to the rank of Col, summary of grading by members and the final grading awarded. The Proceedings indicate that the Board was briefed about the Advisory dated 07.01.2021 issued by DMA on ‘Empanelment of Offrs in LMC with severe Employment Restrictions’. The Board proceedings were then forwarded to COAS along with a copy of the Advisory and was approved by COAS on 10.06.20121. However, the proceedings have not endorsed any reason why each officer had been found unfit for command and also found unfit for staff/ERE/instructional appointments.
25. The No 2 SRMB was held on 13.07.20121; chaired by an Army Cdr (Lt Gen) with two Lt Gens and two Maj Gens as members and two Medical Officers in attendance in advisory capacity and with Addl MS(B) as the secretary. We find that the proceedings have similar details as in the case of No 3 SRMB, summary of grading by members and the final grading.. The Board proceedings indicate the grading by each member and the summarised final grading. Here too, the proceedings have not endorsed any reason why each officer had been found unfit for command/staff/ERE/instructional appointments. The Board Proceedings were then approved by the COAS and the list of those found unfit by the SRMB was then forwarded to DMA for the approval of the competent authority since it entailed a change in empanelment status from being declared FIT by the regular No 2 Board and had now been declared unfit for physical promotion. The Board proceedings were approved by COAS on 05.08.2021 and by the Competent Authority on 01.09.2021.
26. It is also seen from the proceedings that an MoD/DMA advisory dated 07.01.2021 on ‘Advisory on Empanelment of Officers in Low Medical Category with Severe Employment Restrictions’ was also brought to the notice of the SRMB. The letter states that keeping in view the overall operational requirement of the IA, where the employment restrictions of LMC officers are likely to hamper their performance, due cognisance needs to be taken of such employment restrictions when such officers are considered for promotion. While the necessity of ensuring medical fit officers in all echelons is undisputable, in view of the overall results of the No2/3 SRMBs under consideration here, /t is our considered opinion that this advisory perhaps has weighed rather disproportionately heavily on the Board Members in deciding the possible employment of each officer based on their individual employment restrictions due to their medical category.
27. As per the current policy, SRMBs are ONLY applicable to No 3 and No 2 SBs which consider eligible officers for empanelment to the select ranks of Cols and Brig. In the case of Nol SB and Special SB, in the absence of SRMB, officers with only promotable medical category are empanelled and the details of medical status, where applicable, are suitably endorsed in the SB proceedings as seen by this Court while examining OA 2637/2021 Maj Gen Anil Kumar Vs Uol. If indeed, in view of the Advisory of MoD/DMA dated 07.01.2021, or for any other consideration, if the SRMB/ Conduct of SB policies need revision/ amendment, then such amendment must first be promulgated prior to arbitrary implementation.
28. Moreover, since the proceedings have not endorsed any reason as to why these officers have been found unfit for command/staff/ERE/instructional appointments, it is not possible to fathom, why officers with good performance on courses, requisite staff and instructional experience have not even been found fit for staff/ ERE/ instructional appointments. From the records we also find that there are no laid down guidelines how a specific medical condition and it’s restrictions are to be interpreted and applied.
29. As seen from the two policy letters of 14.12.2012 and 31.03.2015, at the heart of the SRMB concept is the need to optimally employ professionally competent LMC officers in select ranks taking into consideration their medical and employment restrictions. To this end, SRMB policy envisages empanelled officers in certain medical category with COPE Coding-02 being considered for physical promotion based on their individual employment restrictions. Needless to say that till the SRMBs in 2020, this policy has been implemented in letter and spirit as borne out by the fact that out of a total of 159 officers who were empanelled by the regular SBs and were considered by the SRMB, 152 officers were found fit, of which 47 were found fit for ‘Comd’ and 112 officers being found fit for Staff/ ERE/ Instructional appointments.
Conclusion
30. Having examined all the relevant details pertaining to the case we conclude the following:-
The aim of the SRMB concept is to optimally employ professionally competent LMC officers in select ranks taking into consideration their medical and = employment restrictions.
The policy on promotion of LMC officers to select rank has been laid down by MS Branch from time to time, andthe — current policies in vogue are enshrined in the letters dated 14.12.2012 and 31.03.2015.
The SRMB policy envisages empanelled officers in certain medical category with COPE Coding-02 being considered for physical promotion based on_ their individual employment restrictions.
The number of officers found fit by SRMB till 2020 indicates that the policy has been implemented in letter and spirit. However, the implementation since then has been skewed.
While the SRMB have been conducted as per the __ policy, the Proceedings of both No. 2 & 3 SRMB have not endorsed any reason why an officer had been found — unfit for command and_— also found — unfit for staff/ERE/instructional appointments. In fact, there are No reasons or justification endorsed anywhere in the Proceedings, except for summary of grading by various members and the final result.
If the SRMB policy needs revision/ amendment, in view of the Advisory of MoD/DMA dated 07.01.2021, or for any other consideration, then such amendment must first be promulgated prior to arbitrary implementation.
31. In view of the above considerations, we quash the results of No 3 SRMB Jun 2021 and No 2 SRMB Jul 2021 limited to the applicants here and direct the respondents to:
Reconvene No 2 and No 3 SRMB and reconsider the applicants here afresh as per the ratio of consideration till 2020 within two months of this order.
Issue necessary instructions that the SRMB will record detailed reasons as to why an officer is unfit for command/ staff/ ERE/ instructional appointments.
Ensure that any modification in the current SRMB policy be only implemented after the existing policy is formally amended after due deliberations.
Formulate and lay down guidelines how generic medical conditions and its restrictions are to be interpreted and applied to classify officers being considered by SRMB as fit/ unfit.
32. These Original Applications are disposed of with the aforesaid directions. No order as to costs.
