Holding

The Court held that the respondents had not complied with the direction, that the lower medical categorisation prejudiced the petitioner's promotion, and ordered reconsideration of promotion, payment of Rs. 4 lakhs compensation, and release from service.

Summary

Lt. Colonel K.D. Gupta filed a contempt petition alleging that the Union of India and other respondents had failed to comply with the Supreme Court's April 20, 1988 directions to reconsider his promotion in view of his continued Shape‑I medical categorisation. The Court examined whether the respondents had properly re‑examined his promotion case and whether his lower medical category was a relevant factor for promotion. It held that the lower medical categorisation had indeed prejudiced his promotion prospects and that the respondents could not now claim it was irrelevant. The Court further found that, given the peculiarities of defence service promotions, Gupta did not merit the promotions claimed on the basis of his batch‑mates' advancements. Consequently, the Court ordered the respondents to reconsider his promotion, to pay him compensation of Rs. 4 lakhs, and to facilitate his release from service, disposing of the contempt proceeding.

Issues considered

The respondents' compliance with the Supreme Court's direction to reconsider the petitioner's promotion based on his Shape‑I medical categorisation.
Whether the petitioner's lower medical categorisation is a relevant factor affecting his entitlement to promotion.
Whether the petitioner is entitled to compensation and release from service.

Legislation cited

Army Act, 1964

Subjects

promotionmedical categorisationdefence servicescontemptcompensationrelease from serviceArmy Actseniorityrank reduction

Judgment

A LT. COLONEL K.D. GUPTA
v.
UNION OF !NOIA & ORS.

MARCH 31, 1989

B [RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.]
/
~
Army Act, 1964: Defence Services-Promotion-Unlike other
government servants,· requisite experience, consequent exposure and
appropriate review by authorities, indispensable-Individual capacity
and special qualities-Basis for assessment-Lower medical categori-
"1
sation-Effect of for purposes of promotion-Grant of compensation-
c
·~,
Relevant factors-Considerations thereof
+'
The appellant has filed a contempt petition against the Respon-
dents, alleging that the directions dated 20.4.1988 of this Court, have
not been complied with.
D
The Respondents were directed to reconsider the case of the
appellant for promotion on the basis that his medical category continues
to be S-1 from 1977, and that the medical category would be taken into
account if the rules for promotion so require; otherwise not. It was also y
directed that the consideration of promotion would be completed within
E four weeks; (See 1988(3) SCR 646).

On behalf of the respondents, it was stated that the promotional
entitlements of the petitioner had been finalised as per the directions of
-
the Court, after re-examining the petitioner's case for promotion within
the specified time and since there was no failure to comply with the y
F directions, no contempt had been committed. It was also submitted that
the petitioner's medical categorisation has nothing to do with the
refusal to promote him. ..I,.· '
'
Disposing of the petition,

G HELD: 1. The judgment of this Court did clearly proceed on the
footing that the lower medical categorisation prejudiced the petitioner
r
in the matter of obtaining appropriate promotions. For the first time,
the respondents have taken the stand in the contempt proceeding that
the lower categorisation has nothing to do with the refusal to accord
promotion to the petitioner. The plea now advanced cannot therefore be
H accepted. [377E-F]
370
. K.D. GUPTA v. U.0.1. 371

2. The defence services have their own peculiarities and speCial A
requirements. The considerations which apply to other governnient
servants in the matter of promotion cannot _as a matter of course be
applied to defence personnel of the petitioner's category and rank.
Requisite experience, consequent exposer and appropriate review are
indispensable for according promotion, and the petitioner, therefore B
cannot be given promotions as claimed by him on the basis that his
batch'mates have earned such promotions. Individual capacity and spe-
cial qualities on the basis of assessment have to be found but in the case
of the petitioner these are not available. [377G-H; 378A-B]

3.1 As regards compensation, the petitioner advanced tall claims
by contending that he has suffered physical and mental torture, loss of. C

+ reputation and of social acceptance and financial loss. What promotions
the petitioner would otherwise have earned would be a matter of specu-
lation and cannot be ascertained at this stage for lack of appropriate
decisive criteria. His grievance that he suffered in dignity and humilia-
tion as a result of being looked down upon by his batch-mates, friends D
and relatives, has perhaps been sufficiently met by the appellate judg-
ment which has declared that his lower medical categorisation was
unjustified and the petitioner continued to be Shape-I without break
from 1977. [368E-G]

3.2 The defence personnel have peculiar incidence of service.
E
Life's course does not run smoothly for everyone. Some relevant factors
to be considered for award of compensation are the duration of time for
which the petitioner was subjected to various medical checks and .
hospitalisation, and the consequent suffering which he underwent, the
loss of promotional prospects and the fact that he would now be obliged
to request to be released from service prematurely. A total compensa-
F
tion of Rs.4 lakhs would meet the ends of justice. The petitioner would
not be entitled to any other claim on these heads, hut he would be
entitled to all other service benefits which an officer of the Lt. Colonel's
rank would be entitled to hold. [378G-H; 379A-B]

Major K.D. Gupta v. Union of India, [1984] I S.C.C. 153 and Lt.
G
Col. K.D. Gupta, v. Union of India, [!988] 3 SCR 646, referred to.

This Court directed that the amount of Rs.4 lakhs be paid to the
petitioner within 2 months and the petitioner may he released from the
defence service in accordance with any decision that might be taken on
his request for such release. [379C-D] H
372 SUPREME COURT REPORTS 11989] 2 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Misc. Petition
No. 20065of1988.

In

Civil Appeal No. 1702 of 1987.
B
From the Judgment and Order dated 31.3.1987 of the Allahabad
High Court in C.M.W.P. No. 5702of1985.

Petitioner-in-person.

G. Ramamswamy, Additional Solicitor Genetal, C.V.S. Rao
c and A.K. Srivastava for the Respondents. -.+
The Judgment of the Court was delivered by

RANGANATH MISRA, J. Petitioner, a Lt. Colonel in the
D 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 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
E continuing as S-I and directed:

"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 promo-
tional entitlement shall be finalised by the respondents
F within three months hence."

After this Court's 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
G you that your case has been reexamined in the light of the
judgment of the Supreme Court 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
H the earlier directions of the Hon'ble Court. Substantive
•. "

K.D. G UPTA v. U.0.1. (MISRA, J.] 373
-4- rank of Lt. Col. was also granted to you along with your A
batch-mates. Consequent to the Supreme Court's judg-
ment dated 10th August, 1983, your case for promotion to
the rank of A/Colonel was considered on three occasions
viz., July 86, April 87, November 87 and rejected on all the
three occasions based on your overall performance and
merit of your batch. Your medical category was not taken B
into·consideration as per the laid down procedure . There-
fore, upgradation of your medical category from Shape-2
to Shape-1 by the Supreme Court 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 promo- c
"'+ tion not on the basis of your medical category but on the
basis of your overall performance and merit of your batch
"

Upon notice in this miscellaneous proceeding a counter affidavit D
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 reexamining the
petitioner's case for promotion within the specified time and as there
was no failure to comply with the directions, no contempt had been E
committed. The counter-affidavit proceeded to state:

"As per the selection procedure explained in the pro-
ceeding paragraphs, the medical category of Lt. Col. K.D .
Gupta was not taken into cognizance. On receipt of the
directions of the Supreme Court dated 20th April, 1988, F
Lt. Col. Gupta's case for promotion was reexamined. Since
the Hon'ble 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 peti-
tioner's promotional entitlements be finalised in view of his
continued medical category in Shape-I since 1977, his case G
was reexamined and finalised and the same was intimated
to him vide our letter dated 17th June, 1988".

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. H
Bharucha stated that:
374 SUPREME COURT REPORTS (1989] 2 S.C.R.

A "By letter dated 26.5.1988, the Military Secretary ob-
served as under:

'The Officer was considered by No. 3 Selection Board
for promotion to the acting rank of Colonel and
awarded the following:
B
(a) 'R' (Unfit) in July 1986 with ACR 84/85

(b) 'R' (Unfit) in April, 1987 with ACR 6/85 to 2/86 .

(c) 'R' (Unfit) in November, 1987 with ACR 6/86 to
c 5/87'

The Officer has been finally superseded for promo- +"
tion to the rank of acting Colonel based on his overall
profile and his medical category was not taken into
account during the above three considerations. How-
D ever, the officer has been granted the substantive
ran~ of Lt. Colonel w.e.f. 01 August, 1979 vide
Gazette Not\fication No. 1774/87 dated 19th Septem-
ber, 1987'

Therefore, no further ac~ion is required by the department
in pursuance of the judgment of this Hon 'ble Court dated
20.4.1988." ,

"I state tl:tat the petitioner had addressed a demi offi-
cial letter dated 02.5.1988 to the Chief of Army Staff in this
regard. The Chief of Army Staff called for the details of the
F case of the petitioner and the same were placed before the
Chief of Army Staff on 03.6.1988. The Chief of Army Staff
a:ft~r considering the note put up to him, directed the office
to intimate the petitioner accordingly. By letter dated
17.6.1983, the office has informed the petitioner, a copy of
which is enclosed herewith. It is, therefore, humbly submit-
G .. ted that the case of the petitioner was considered after the
judgment of this Hon'ble Court dated 20th April, 1988 by
tbe M~litary Secretary of the rank of Lt. General and it was
fouJld that it is not necessary to send him for selection
board as he was already found unfit without reference to
his medical certificate Shape-II".
H
K.D. GUPTA v. U.0.1. (MISRA, J.J 375

-+· On 24th of January, 1989, this Court made the following order:
A
"After carefully considering the matter, we direct the
respondents to reconsider the case of the appellant for
promotion on the basis that his medical category continues
to be S-1 from 1977. The medical category will be taken
into account if the rules for promotion so require, other- B
' -4.,._ wise not. The consideration of promotion will be comp-
leted within four weeks from today. . .... "

We have been informed that the petitioner's case was considered on
the basis of record and he was not found fit for any promotion.

It is relevant to notice at this stage that the petitioner had come
c
~ --..+
before this Court on an earlier ()ccasion by filing writ petition No. 5302
of 1980 which was disposed of on August 10, 1983 (1984 I SCC 153).
This Court in its judgment indicated:

" Shri Abdul Khader, learned counsel for the respondents D
explained to us that the petitioner had been reverted from
the rank of Acting Lt. 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 medica\
category; E

- (ii) After the latest medical e:icamination in 1978, he
was not eligible to be considered for promotion for one
year; his earlier reduction in rank was, therefore, justified;
~· and
' F
(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.

We find no substance in any of the reasons mentioned
by Shri Abdul Khader. Shri Khader'was unable to draw our G
attention to any rule, order or circular which prescribed
that reduction in rank should inevitably follow on place-
ment of an officer in a lower medical category. In fact it
was conceded by Shri Khader that an officer whose medical
classification is downgraded, will not be reduced in n,mk on
tliat account, but will continue to hold the same rank as I-{
376 SUPREME COURT REPORTS [1989] 2 S.C.R.

A before. We are, therefore , unable to understand why the ~
petitioner had to be reduced in rank because subsequent to
his promotion, his medical classification was downgraded.
The second reason given by Shri Khader that the petitioner
would not be eligible to be promoted for a year after the
B
latest medical examination and, therefore, his earlier reduc-
tion in rank was justified, is only to be stated as rejected. ~--
When the petitioner was promoted, he satisfied all the re- ,1
quirements including that of medical categorisation, if any. 1,
We find it impossible to agree with the proposition that
since he would be ineligible to be promoted today, he could
not have been promoted yesterday when he satisfied all the
c requirements. The reason really pressed before us was the
third reason, namely, that the petitioner had not per-
fonned any duty for six months and, therefore, he had to ...... ...
be reduced in rank in accordance with paragraph 5 of Special
Army Instruction No. 1 dated January 9, 1974. We do not
propose to examine the question whether Special Army
D
Instruction No. 1 authorises a reduction in rank for failure
to re join duties for more than six months since that appears
to be the case of the petitioner also."

The counter-affidavit filed m the writ petition and the submissions
E of counsel advanced at the hearing thereof clearly indicate that the
medical category of the petitioner was connected with his entitlement
to promotion. In fact in the civil appeal itself the petitione(s claim for
promotion to higher ranks, keeping the promotions accorded to his •
batch-mates in view, was challenged on the basis of the petitioner's
lower medical category . In the affidavits filed in the civil appeal the
respondents never took the stand that entitlement to promotion as
F
claimed by the petitioner had nothing to do with the state of his health-
physical and mental. If that stand had been adopted, this Court would
certainly have gone into that question before directing the petitioner's
case to be reexamined by a Special Board of Psychiatrists, on the basis
of whose report, the petitioner was allowed to be continued in shape-I
from 1977 without any break. It is not disputed that the petitioner had
G in the second round of the litigation mainly pressed for his promotion
by contending that his medical categorisation was vitiated. Counsel for
the respondents at no stage during the hearing of the appeal advanced
the contention that the claim for promotion was not, in any manner,
connected with the medical category of the petitioner. That is why this ~
H Court in its judgment stated:
K.D. GUPTA v. U.0.I. [MISRA. J.] 377
-4-
" ..... on the basis of material available on the A
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 result 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 Lt ...Colonel to B
.· Major; he was treated to have been so reduced. Then fol-
-~•. lowed the frequent psychiatric examinations without any
'-'~i
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
c
). --+ promotion on the basis of his medical categorisation con-
tinning as S-L"

"The appellant, inter alia, has asked for entitlement
::·· to •promotion in view of promotions earned by his batch-
;>;.. mates. We ·do not think that would be a safe guide but we D
4" do hope and trust that the respondents would consider his
case for promotion with an open mi_nd on the basis of his
continuity in Shape-I." ;n.

~
The judgment of this Court did clearly proceed on the footing that the
lower medical categorisation prejudiced the petitioner in the matter of E

- obtaining appropriate promotions. For the first time, the respondents
have taken the stand in the contempt proceeding that the 1ower
categorisation has nothing to do with the refusal to accord promotion
to the petitioner. In the circumstances indicated above, the plea now
·~ advanced cannot be accepted. In fact, Mr. Ramaswamy, Additional
Solicitor General, appearing for the respondents being cognizant of F
this situation stated to us during the hearing of this application that
+ the petitioner has justification to feel aggrieved:

The respondents have maintained that the. petitioner has not !;!
served in the appropriate grades for the requisite period and has not
~--~ possessed the necessary ·experience and training and consequential G
assessment of ability which are a precondition for promotion. The \~'

"' defence services have their own peculiarities and special Tequirements.
The considerations which apply to other government servants in the
matter of promotion cannot as a matter of course be.applied to defence .,,,,
.~:

1 personnel of the petitioner's category and rank. Requisite experience,
consequent exposer and appropriate review are indispensable for H

l· (}
' • e~
378 SUPREME COURT REPORTS 11989] 2 S.C.R.

A according promotion and the petitioner, therefore, cannot be given
promotions as claimed by him on the basis that his batch-mates have
earned such promotions. Individual capacity and special qualities on
the basis of assessment have to be found but in the case of the
petitioner these are not available. We find force in the stand of the
respondents and do not accept the petitioner's contention that he can
B be granted promotion to the higher ranks as claimed by him by adopt-
ing the promotions obtained by his batch-mates as the measure.

In the appellate judgment, this Court said:

"He has also indicated in paragraph 8 of that petition
that he is prepared to be released from service after his
c promotional entitlements are finalised and is given his dues ·~ •
on such basis as may be determined. The appellant has
claimed compensation which we see no basis to grant".

The petitioner also told us in course of the hearing of this case that
D even if he is not accorded promotions as claimed by him, he should
suitably be compensated and thereafter he should be released from the
Army on the basis of voluntary retirement. The respondents have also
indicated that his retirement is being processed separately.

The question for consideration now is as to how the petitioner
E has to be compensated and what should be its measure. The petitioner
has, of course, advanced tall claims by contending that he has suffered
physical and mental torture, loss of reputation and of social acceptance
and financial loss. What promotions the petitioner would otherwise
-
have earned would be a matter of speculation and cannot be ascer-
tained at this stage for lack of appropriate decisive criteria. His grie- ,'>t/'.
f vance that he suffered in dignity and humiliation as a result of being
looked down upon by his batch-mates, friends and relatives has
perhaps been sufficiently met by the appellate judgment which has
declared that his lower medical categorisation was unjustified and the
petitioner continued to be Shape-I withou! break from 1977.

G The defence personnel have peculiar incidence of service. Life's
course does not run smoothly for everyone. In the present proceeding
which is for contempt, we do not think that we can award compensa-
tion under every head of claim. Some of factors relevant for such
purpose are the duration of time for which the petitioner was sub-
jected to various medical checks and hospitalisation, and the conse-
H quent suffering which he underwent, the loss of promotional prospects
K.D. GUPTA v. U.0.1. !MISRA, J.) 379

and the fact that he would now be obliged to request to be releJlsed A
from service pre-maturely. We are of the view that a total compensa-
tion 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. Colonel's rank,
B
which the petitioner admittedly holds, would be entitled to. This judg-
ment 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 the event of his being
considered for reemployment after retirement his suitability would be
considered on the basis of his service records and the judgment of this
Court. c
We direct that the amount of Rs. four lakhs be paid to the
petitioner within two months and the petitioner may be released from
the defence service in accordance with any decision that may be taken
on his request for such.release.
D
The contempt proceeding is disposed of with these directions and
no order as to costs.

G.N. Petition disposed of.

-

:~