K D GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition was filed at the Gwalior Bench, where it was registered as Miscellaneous Petition No. 276 of 1981. Later, it was amended and vires of a statutory provision was challenged. Accordingly, the petitioner has come for hearing at the main seat of the High Court at Jabalpur and is now registered as Miscellaneous Petition No. 1422 of 1982.

(2.) The petitioner K. D. Gupta is an army officer. He held the rank of Lt. Col. but was demoted to the rank of Major in November, 1976 and it is this rank which he continues to hold even now. Challenging his demotion as a Major, the petitioner filed a writ petition directly in the Supreme Court under Article 32 of the Constitution, which is still pending. In the present petition filed under Art. 226 of the Constitution the question of the petitioner's demotion to the rank of major is not involved and the challenge is mainly to the posing and transfer order dt. 31-8-1981 (Annexure 3), issued by the Military Secretary's Branch, Army Headquarters, transferring him from Gwalior to the Nort East Frontier Agency, and certain ancillary actions. In short, this challenge is made by the petitioner on the ground of excess or abuse of the discretionary power by the authorities, rendering the order as well as the ancillary acts invalid. The facts subsequent to the demotion of the petitioner as Major and relevant for the purpose of the reliefs claimed in this petition are stated hereafter.

(3.) After the petitioner's demotion a? a Major from the rank of Lt. Col. on medical grounds, he was placed, in the low, medical category, called S-2 (Permanent) which relates to psychological factor. The relevant extract from Part I of Appendix 'A' to Army Order 43, of 1978. relating to it. is as under "Appendix 'A' to A. O. 43/78 Part I Elaboration of factors/grades under SHAPE classification : Definitions of the different factors under SHAPE classification and the various grades under each factor to be awarded to officers depending upon their physical capacity are given below: The above extract is material to indicate the functional capacity of an Army Officer placed in category S-2 (Permanent) as well as his limitations, which are relevant considerations to be kept in view, while ordering posting of such an officer.