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SUPREME COURT OF INDIA
RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.
Lt. Col. K. D. Gupta, Petitioner
Versus
Union of India, and others Respondents.
Civil Misc. Petn. No. 20065 of 1988 (In Civil Appeal No. 1702 of 1987)
Decided on 31-3-1989.
Claim for promotion - Medical categorisation - Petitioner a Lt. Colonel in the Indian Army, has filed this application for taking contempt proceeding against respondents on allegation that directions contained in judgment of this Court, in Civil Appeal have not been complied with - This Court in Civil Appeal found that petitioner was entitled to a reconsideration of his claim for promotion on basis of his medical categorisation continuing as S-1 - It may kindly be recalled that acting rank of Lt. Col. was granted to you with your original seniority based on the earlier directions of Hon’ble Court - Substantive rank of Lt. Col. was also granted to you along with your batch-mates - Consequent to SCs judgment your case for promotion to rank of A/Colonel was-considered on three occasions and rejected on ,air the three occasions based on your overall performance and merit of your batch - Medical category was not taken into consideration as per the laid down procedure - Whether Special Army Instruction authorises a reduction in rank for failure to rejoin duties for more than six months since that appears to be case of petitioner – Held, defence personnel have peculiar incidence of service - Life course does not run smoothly for everyone - In the present proceeding which is for contempt, court do not think that court can award compensation under every head of claim - Some of factors relevant for such purpose are duration of time for which petitioner was subjected to various medical checks and hospitalisation, and consequent suffering which he underwent - Loss of promotional prospects and the fact that he would now be obliged to request to be released from service prematurely, court are of view that a total compensation of Rs. four lakhs would meet the ends of justice - This would obviously mean that the petitioner would not be entitled to any other claim on these heads but we make it clear that he would be entitled to all other service benefits which an officer of the Lt. Colonels rank, which the petitioner admittedly holds, would be entitled to - This judgment should serve the petitioner in vindication of his stand and to dispel clouds cast on his physical and mental health by the purported lower medical characterisation and obviously in event of his being considered for re-employment after retirement his suitability would be considered on the basis of his service records and the judgment of this Court - Court direct that the amount be paid to petitioner within two months and petitioner may be released from the defence service in accordance with any decision that may be taken on his request for such release - Contempt proceeding is disposed of - Order accordingly.
JUDGMENT
RANGANATH MISRA, J. :— Petitioner a Lt. Colonel in the Indian Army, has filed this application for taking contempt proceeding against the respondents on the allegation that the directions contained in the judgment of this Court, dated 20th April, 1988, in Civil Appeal No. 1702 of 1987 (reported in AIR 1988 SC 1178, have not been complied with. This Court in the Civil Appeal found that the petitioner was entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S-1 and directed (Para 12) :
"The appeal is allowed in part and to the extent that the appellants medical category shall be taken as being continued to be S-1 from 1977 and on that basis his promotional entitlement shall be finalised by the respondents within three months, hence." .
2. After this Courts decision, by a letter dated 17th of June, 1988, the respondents informed the petitioner to the following effect :-
"In this connection, I have been directed to inform you that your case has been reexamined in the light of the judgment of the SC of India dated 20th April, 1988.
It may kindly be recalled that acting rank of Lt. Col. was granted to you with your original seniority based on the earlier directions of the Honble Court. Substantive rank of Lt. Col. was also granted to you along with your batch-mates. Consequent to the SCs judgment dated 10th Aug. 1983, your case for promotion to the rank of A/Colonel was-considered on three occasions viz., July86, April 87, Nov. 87 and rejected on ,air the three occasions based on your overall performance and merit of your batch. Your -medical category was not taken into consideration as per the laid down procedure. Therefore, upgradation of your medical category from Shape-2 to Shape-1 by the SC vide their orders dated 20th April, 1988, does not warrant reconsideration of your case for promotion because your medical category had not affected your case for promotion to the rank of A/Colonel on any occasion. You failed to make the grade for promotion not on the basis of your medical category but on the basis of your overall performance and merit of your batch .........."
3. Upon notice in this miscellaneous proceeding a counter affidavit was filed on behalf of the respondents stating that the petition was misconceived and he was not entitled to any relief as claimed. It was stated that the promotional entitlements of the petitioner had been finalised as per the directions of this Court after re-examining the petitioners case for promotion within the specified time and as there was no failure to comply with the directions, no contempt had been committed. The counter-affidavit proceeded to state :-
"As per the selection procedure explained in the preceding paragraphs, the medical category of Lt. Col. K.D. Gupta was not taken into cognizance. On receipt of the directions of the SC dated 20th April, 1988, Lt. Col. Guptas case for promotion was re-examined. Since the Honble Court had given no such directions to the effect that the case of Lt. Col. Gupta shall be placed before the Selection Board and has only directed that the petitioners promotional entitlements be finalised in view of his continued medical category in Shape-I since 1977, his case was re-examined and If finalised and the same was intimated to him vide or letter dated 17th June, 1988."
4. The record of consideration for promotion of the petitioner at the various stages by the Board was directed to be produced before the Court. In a further affidavit on behalf of the respondents, Col. Bharucha stated that :
"By letter dated 26-5-1988, the Military Secretary observed as under -.
The Officer was considered by No. 3 Selection Board for promotion to the acting rank of Colonel and awarded the following:
(a) R(Unfit) in July 1986 with ACR84/85.
(b) R(Unfit) in April, 1987 with ACR6/85 to. 2/86.
(c) R (Unfit) in Nov. 1987 with ACR 6/86 to 5/87"
The Officer has been finally superseded for promotion to the rank of acting Colon
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