1 OA 1481 of 2012

ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 1481 of 2012

Brig (Retd) NJS Sidhu …… Applicant Vs Union of India and others …… Respondent(s) -.- For the Petitioner (s) Mr. Navdeep Singh,Advocate For the Respondent(s) Mr Gurpreet Singh, Sr PC

Coram: Justice Surinder Singh Thakur, Judicial Member. Lt Gen DS Sidhu (Retd), Administrative Member. -.- ORDER 15.12.2015 -.- By means of the present Application preferred under Section

14 of the Armed Forces Tribunal Act, 2007 (in short „the Act‟) the

Applicant craves the indulgence of this Tribunal precisely to test the veracity, technical soundness and the correctness of the Special

Review (Fresh) No. 1 Selection Board held on 7.1.2011 pursuant to the Army Head Quarter Noting PC No. A/47052/SB/GC/MS(X) and

PC No. A/ 47053/ISB ac-1/MS X) dated 31.1.10211. It is further prayed that in case Special Review (Fresh) No. 1 Selection Board held on 7.1.2011 is found technically invalid, in that event the Applicant being the only seniormost eligible officer be promoted to the rank of

Maj Gen to a vacancy existing in the year 2002 to the rank of Maj

General in Army Aviation Corps (permanent cadre).

A. BACKGROUND FACTS

2. The Applicant was commissioned in the Indian Army on June

23, 1968 in the rank of second Lieutenant, but seniority in Army was 2 OA 1481 of 2012 refixed w.e.f. August 21,1969. Thus for the purpose of promotion, he became an officer of 1969 Batch.

3. The Govt. of India, Ministry of Defence, had sanctioned formation of nucleus Addl. Directorate General Army Aviation at

Army Head Quarters, by order dated 29th October, 1986.

4. The selection grade vacancies including the post of Major

General were to be from within the sanctioned cadre of the Army and were to remain unfilled for a period of one year till the post of

Additional Director General Army Aviation was sanctioned by the

Government of India.

5. The Chief of the Army Staff approved the establishment of permanent cadre of officers as per terms and conditions set out, therein, for the Army Aviation Corps by an order dated April 17,

1997. As a consequence, thereof on September 1, 1997 a letter was issued by Army Headquarters seeking application from volunteers for transfer to Army Aviation. In May, 1997, the Applicant was already promoted to the rank of Brigadier in the Artillery Regiment.

6. On 14.12.1997, the Applicant had voluntarily applied for permanent transfer from the „Regiment of Artillery‟ to „Army

Aviation Corps‟ vide communication dated November 6, 1998. The transfer of the Applicant to Army Aviation Corps was approved with immediate effect by the Army Headquarters. In the year 1997-1999, the Applicant had commanded 37/3 (1) Artillery Brigade in the

Regiment of Artillery. He had assumed appointment of Brigadier 3 OA 1481 of 2012

(Aviation) HQ Western, Command at Chandimandir on 24th June,

1999.

B. REMEDIES EXHAUSTED

7. The Applicant BEING SENIORMOST, had submitted a non statutory complaint ON December 22, 2001 for promotion to the rank of Maj Genl, when it was not decided he filed CWP No. 6558 of 2002 wherein the Hon‟ble Division Bench of the Punjab and Haryana High

Court on 29.4.2002 directed the respondents to consider the case of the

Applicant and pass appropriate orders. But thereafter his statutory complaint was rejected on 10.6.2002 giving rise to the filing of another petition i.e. CWP No. 10037 of 2002 in the High Court of

Punjab and Haryana, claiming that he being the senior most Brig in the

Army Aviation Corps was entitled to be considered for promotion to the post of Major Gen in the same corps and the respondents cannot bring officers from other corps to head the Aviation Corps. which was resisted and contested by the respondents on various grounds, inter- alia also that the Army Aviation Corps was not authorised to fill up the post of Major General and the Applicant had the choice to revert back to his parent cadre of Artillery where he would be considered as and when his batch mates of 1968 are considered for promotion to the rank of Major General.

8. While dealing with the contentions raised by the respondents, the High Court before evaluating the points raised had noted the following facts which were not disputed:

“ There is no dispute to the fact that petitioner has a reasonably good service profile and has been awarded various distinctions as noticed in 4 OA 1481 of 2012

the judgement above. He had been promoted upon selection to the rank of Brigadier in the corps of Artillery in the year 1997. Applications for conversion to Army Aviation Corps were invited by the respondents in response to which the petitioner submitted application on 14.12.1997. The petitioner was permanently converted to the Army Aviation Corps on 16.11.1998. We may noticed that before the petitioner was permitted to convert his Corps from Artillery to Aviation, he was required to exercise his option only in terms of the letter issued by the Military Secretary Branch Army Head Quarters dated 28.5.1977. The condition precedent specified in this letter related to career progression which in turn included induction and criteria appointments. The relevant clause reads as under: Career Progression 4, Induction. Initial induction into Avn Corps will be on voluntary basis with an irrevocable one time option i.e. an officer will have no option to revert to his parent Arm after induction. The detail O Rs for this will be worked out in consultation with ADG Avn by MS Br. Eligible cases will be screened by No. 2 SB along with other IAST cases. Criteria Appointments. Aviation officers will be groomed in stipulated criteria appointments. Due career protection will be given to those posted in ‘hi-tech’ appointments like test pilots. The criteria appointments are as follows:

(a) Major IR Pilots (b) Col. Aviation Sqn Cdrs. (c )Brigs. Brig Aviation staff On the basis of the above clear mandate, the petitioner had applied for conversion to the Aviation Corps on permanent basis. The petitioner obviously considering various aspects including the chances of future promotion in the Aviation Corps came out of his permanent corps. At that time the fate of the post of Major General in the Aviation Corps was still to be decided. The process of exercising an option was irreversible one and the officer was left with no option to revert back to his parent Corps. The parties were given an option, but the option once exercised could not be altered.” After deliberating upon the rival contentions and the law on the point, the Hon‟ble High Court while allowing the writ petition vide its judgement dated 10.10.2002 issued the following directions;-

“ In view of our discussion afore stated we are of the considered view that the petitioner is entitled to be considered for promotion to the rank of Major General in accordance with the rules and on his own service profile in the Army Aviation Corps. To state the direction of the Court and avoiding ambiguity we reiterate that it is the right of consideration for which we have granted the relief to the petitioner. His actual promotion would obviously depend upon the respondents. The writ petition is allowed to the above limited extent, leaving the parties to bear their own costs.” (Emphasis ours) 9. Since the Applicant was due to retire on 31.10.2002, as such he filed another CWP No. 17160 of 2002 and also sought interim order 5 OA 1481 of 2012 restraining the respondents from retiring him on 31.10.2002. Vide order dated 31.10.2002, the Hon‟ble Court observed that it will not be appropriate at this stage to injunct the respondents, from retiring the petitioner if the retirement under rules is otherwise due. Therefore, by an interim order a direction was issued to the respondents to consider the case of the petitioner for promotion/ selection to the post of Major

General in the Army Aviation Corps forthwith, also keeping in mind

Rule 16A of the Army Rules. Such consideration of the petitioner was ordered to be subject to further orders which may be passed by the

Court in the pending petition. It was further clarified that retirement of the Applicant, if directed as on 31.10.2002 would not hamper his consideration by the Selection Board and will not be construed in any manner prejudicial to his interest.

10. In the meantime, the respondents had laid a challenge by filing CA No. 80 of 2003 in the Hon‟ble Supreme Court against the earlier judgement/ order passed by the Punjab and Haryana High Court in CWP No. 10037 of 2002 whereby the respondents were directed to consider the case of the petitioner for promotion as aforesaid.

11. The Hon‟ble Supreme Court examined the entire issue and also the service career profile of the Applicant, which was also noted by the High Court in the judgement impugned as quoted supra and reiterated in its judgement, by the Supreme Court while affirming the findings of the High Court observing that the inevitable effect of filling up the post of Major General sanctioned in Army Aviation

Corps by bringing Major General from other corps had the adverse effect of marring the chances of promotion of the officers belonging to 6 OA 1481 of 2012

Army Aviation Corps. But, however, after creating a permanent cadre and specifying the post of Major General in the Army Aviation Corps, the respondents were treating the same as an unspecified vacancy to be manned by an officer to be brought from the other corps which was held to be erroneous and not justified at all. Supreme Court vide its judgement dated 29.9.2010 directed the respondents to consider the case of the Applicant for promotion to the post of Major General in the

Army Aviation Corps as no case was made out for interference in the appeal filed by the respondents. Hence the appeal was dismissed as it lacked merit. Consequently, the stay regarding the operation of the judgement of Punjab and Haryana High Court got vacated.

C.FOLLOW UP ACTION OF SUPREME COURT JUDGEMENT 12. Thereafter, in compliance with the judgement of the

Hon‟ble Supreme Court, the Applicant was considered as a Special

Review (Fresh) Case of 1969 Batch of Army Aviation Corps but WAS not approved for promotion to acting rank of Major General by No. 1

Selection Board held on 7.1.2011. These the proceedings of Selection

Board were approved by the competent authority, as informed by the respondents to the Applicant vide letter dated 20.9.2011 with a copy of letter dated 31.3.2011 after about eight months, which according to the Applicant is contrary to the instructions issued by the Ministry of

Defence (Annexure P.5), which inter-alia says, that on the issue of

Selection Board for Single Officer the AHQ recommendation for delinking the issue has been agreed to.

D. GRIEVANCE OF T HE APPLICANT 7 OA 1481 of 2012

13. It is now contended in this ORIGINAL application that, thereafter the Applicant applied for the copies of the orders under the

RTI pertaining to his case vide Annexure P.6 dated 30.11.2001 which disclosed that the Applicant was considered under the previous system of selection in January, 2011 in conformity with the criteria of promotion of Army Officers as was in vogue in 2002 whereas as per

MS Branch PC No. 47052/SB/GC/MS(X) letter dated 31.1.2011

(Annexure P7) and referring to MS Branch PC No. A/ 47053/ISB/GC

1/MS(X) dated 31.1.2011, the names of officers recommended by

1SB and Special Selection Board held on 7.1.2011 shall be cleared for promotion after due scrutiny on the basis of the revised quantified model. Further vide another letter dated 17.1.2012 (Annexure P.8) it is informed that the Applicant was the only officer considered by the

Special Review (Fresh) Case 1969 Batch for No.1 Selection Board held in Jan., 2011.

14. The Applicant also avers that WHEREAS vide Signal dated

12.1.2007, IC 27289 Brig AH Gadre who was Comdt OTS Kamptee,

DC was posted on promotion as officiating ADG Army Aviation

Corps in the Actg. Rank of Major General to assume the charge

19.1.2007 (Annexure P.9).

15. Further, the Applicant had a reasonably good career with distinction with good service profile and was promoted to the rank of

Brigadier to which the High Court also made a reference in its order and reiterated by the Apex Court in its final judgement.

16. Thus against the aforesaid factual background the Applicant contends that despite all this he was denied promotion. According to 8 OA 1481 of 2012 him, the approach was biased and the terms and conditions laid down by the Army Head Quarters were not adhered to. Therefore it is ventilated that No. 1 Selection Board, held on 7.1.2011 was technically invalid which requires to be scrutinised, as the respondents successfully frustrated the orders passed by the Highest Court. With these averments, the Applicant prays for the relief as indicated above.

E. RESPONDENTS’ STAND

17. Upon notice, the respondents have filed the reply vide which they resisted and contested the present application.

18. The usual stand taken by the respondents in their reply is that the Army has a pyramidical rank structure. The number of vacancies in higher ranks ARE less. From the broad base of the pyramid, only those officers whose record of service within a particular batch are better, are selected to fill up the vacancies available in higher ranks.

As per the promotion policy, promotions in the Army upto the rank of

Maj were by time scale till 16.12.2004 but now as per new promotion policy it has been extended to the rank of Lt. Col whereas for promotion to the rank of Maj General three looks are given for promotion by No. 3 Selection Board. All officers of a particular batch are considered together with same cut off ACR and inputs and on the basis of individual profile of the officer is approved/ not approved.

Seniority in itself is no consideration before Selection Board for approval/ non approval. In case, if any officer gets any relief through complaint etc. in any ACR after the Selection Board has been held, he is entitled to a special corresponding consideration by the Board with his changed profile, and in case, he is approved at such special 9 OA 1481 of 2012 consideration, his original seniority remains protected. As per the present policy, each officer is entitled for three considerations only for promotion to the selection rank of Maj Gen and above i.e. Fresh, First

Review and Final Review. In case an officer is not approved as a Fresh case, but approved as a First Review or a Final Review case, he looses his seniority accordingly vis-a-vis his original batch. After three considerations, if an officer is not approved, he is deemed to be finally superseded. They have also given the details of the procedure adopted while assessing the ACR, at the time of considering an officer for promotion to a selection rank it is averred that the Selection Board takes into consideration number of factors such as war/ operational reports, course reports, ACR performance in command and staff appointments, honours and awards, disciplinary background and not only the ACR or one/few ACRs etc. Selection/ rejection is based upon the overall profile of an officer and comparative merit within the

Batch as evaluated by the Selection Board to assess the suitability of the Applicant for promotion. It is further averred that every time the

Selection Board is convened, the Board has different members. It is, however, contended that the Applicant did not make the grade based on his overall profile and comparative batch merit within the batch as evaluated by the Selection Board. It is also the case of the respondents that pursuant to the judgement of the High Court as affirmed by the Hon‟ble Supreme Court, the applicant was considered by No.1 Selection Board and the Applicant was not recommended for approval by the Board consisting of COAs, VCOAs and the Army

Commanders. The recommendations being recommendary in nature 10 OA 1481 of 2012 were approved by the competent authority i.e. the Central

Government. It is further averred by the respondents that the Applicant was considered fairly as per the policy applicable in the year 2002 and he was not recommended by No. 1 Selection Board for promotion in value judgement system of selection against which no mala-fide or bias is alleged.

F. SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE APPLICANT. 19. Shri Navdeep Singh, Advocate, learned for the Applicant has vehemently argued that the reply filed by the respondents is contrary to the factual aspect of the case. The Applicant was the only person who was to be promoted to the post of Major General, as informed by the respondents, vide the information received under the RTI, as aforesaid, but in the written statement, the stand taken by the respondents is absolutely contrary to whatever information was supplied to the Applicant, which smacks of malafides. ThUS, proceedings of the Selection Board aforesaid are technically invalid and its confirmation by the Central Government is also wrong and erroneous and therefore requires to be set aside, It is further contended that the Applicant was penalised only for the reason that he had knocked at the doors of the Court to seek redressal of his grievances, which approach of the respondents is wrong and incorrect. The learned counsel also ventilated that in view of the aforesaid facts, the

Applicant deserves to be promoted notionally against the vacancy, suo motu by the Tribunal without referring the case back to the respondents for its consideration. To buttress his arguments, he has cited a judgement of the Apex Court in Harigovind Yadav v. Rewa 11 OA 1481 of 2012

Sidhi Gramin Bank and others 2006 AIR (SC) 3596 wherein the

Supreme Court had examined the Regional Rural Banks (Appointment and Promotions of Officers and other Employees) Rules, 1988 wherein the Hon‟ble Court noticed that at three occasions the Bank‟s promotion procedure was faulty resulting in supersession of the appellant by his junior for more than 16 years by adopting such an erroneous procedure contrary to the principles of seniority-cum-merit.

It was against this background to do complete justice, the respondent bank was directed to promote the appellant as a Field Supervisor from the date when his junior was promoted and placed above him but the monetary benefits were confined prospectively though the pay was ordered to be re-fixed w.e.f. the retrospective date of his promotion.

20. The reliance has also been placed on another judgement of the

Apex Court in the case of State of Bihar v. Dr. Braj Kumar Mishra

1999(4) SCT 774. It was a case of promotion to the post of Professor under the time bound promotion scheme. While examining the matter, the Hon‟ble Supreme Court observed as under:

“It is true that normally the Court, in exercise of its power under Article 226/227 of the Constitution of India, after quashing the impugned order should remand the matter to the concerned authority particularly when such authority consists of experts for deciding the issue afresh in accordance with the directions issued and the law laid down by it but in specified cases, as the instant case, nothing prevented the Court to issue directions when all the facts were admitted regarding the eligibility of the respondent No. 1 and his possessing of the requisite qualifications. Remand to the authorities would have been merely a ritual and ceremonial. Keeping in mind the lapses attributable to the Commission which had failed to take appropriate action despite recommendation made in favour of the respondent "No. 1, the learned Single Judge as also the Division Bench of the High Court felt it necessary to declare the respondent No. l-promoted with effect from 1.2.1985. We do not find any illegality or error of jurisdiction. Learned counsel appearing for the appellants were apprehensive that if the impugned judgment is not set aside, it may become precedent and in other cases pertaining to the University, such directions may be issued in future also preventing the authorities and the State Government from exercising their statutory powers. The apprehension is misconceived and without any substance. To allay even such apprehension we deem it appropriate to clarify that the impugned judgment has been passed under peculiar circumstances of 12 OA 1481 of 2012

the case and is no precedent with respect to the subject regarding which the appellants have conceived an apprehension.”

21. Similarly, to buttress his argument the learned counsel for the petitioner also cited a judgement of the Delhi High Court in the case of

Major Joginder Singh Gill v. Union of India and others 2000(4)

SCT 658 in which the petitioner had challenged the seniority and promotion of respondents 29 to 31 to the rank of Lt. Col. denying the same to the petitioner particularly when his name was approved for promotion on 15.5.1982 and all the persons senior to him in the approved list were promoted but the petitioner was not given the promotion though the vacancies arose thereafter whereas respondents

29 to 31 were promoted on 23.3.1983. The petitioner had made a representation on 31.3.1984, followed by a detailed representation in

April, 1983, requesting the respondents to promote him to the rank of

Lt. Col. However, when no reply was received, the petitioner filed the petition on 2.5.1983 as he was due to retire on 30.6.1983. Had the petitioner been granted promotion before 30.6.1983, he would have been entitled to remain in the Army Service for another two years.

Holding that the petitioner was entitled to the relief claimed, he was directed to be treated as promoted to the rank of Lt. Col. as on

23.3.1983 when the other respondents were promoted and ordered to be treated “as retired as Lt. Col.” However, he was not held entitled to the arrears of salary from 23.3.1983 for the post of Lt. Col for the remaining period served or would have served on his actual promotion as Lt. Col.

22. Learned counsel further submitted that in case (TA No. 255 of

2009) Maj Gen. Devendra Nath Verma v. Union of India and others 13 OA 1481 of 2012 decided on 22.2.2010 by the Principal Bench of Armed Forces

Tribunal, the petitioner therein was granted notional promotion after his retirement after setting aside the impugned order of his retirement dated 30.9.1995. In fact a Promotion Board was held on 4.1.1994, and

Board recommended three officers. Out of the three Maj. Gen.

D.Ajwani was of 1958 batch and was screened as First Review Case.

Maj Gen. PD Bhargava was of 1959 batch and was the second officer.

He was scheduled to superannuate on 31.1.1994. The result of the

Promotion Board held on 4.1.1994 was declassified on 17.2.1994.

Therefore, no promotion was made against the so called existing vacancies till 1.4.1994. But, however, in October, 1994 another

Promotion Board was held to select officers for promotion to the rank of Lt. General in the Corps of Signals from 1959 batch. In this Board, the petitioner was approved for promotion within the Corps of Signal whereas P.D. Bhargava was also approved for promotion with the

Corps of Signals leading to a dichotomous situation. Whereas as per the policy letter of 1.9.1986, an officer from the Non General Cadre should first be found fit for promotion within the Corps and then considered for selection to the Staff Stream. The Hon‟ble Supreme

Court observed that in this case Lt. Gen PD Bhargava was selected for staff stream while found fit for promotion within the Corps in October,

1994. The vacancies within the Corps of Signals for a Lt. General occurred on 1.2.1995. Logically since Lt Gen PD Bhargava stood promoted w.e.f. 1.4.1994 from Staff Stream, the vacancy in the Corps

Signal should be given to the petitioner whereas Lt. Gen Bhargava was allotted this vacancy on 1.2.1995 and made the Signal Officer in Chief 14 OA 1481 of 2012 and thereafter the next vacancy in the rank of Lt. General in the Corps of Signals occurred on 1.10.1995 whereas the petitioner retired on

30.9.1995. Counsel for the petitioner had argued that it was a stage managed show to help Lt. Gen PD Bhargava while denying opportunities for promotion to the rank of Lt. General to the petitioner.

Having considered the arguments of both the sides and going through the record of the Board Proceedings, the contention of the petitioner was upheld, the impugned order of retirement dated 30.9.1995 was quashed and he was granted the relief as aforesaid.

23. The learned counsel for the petitioner further cited a judgement of the Delhi High Court reported as Air Vice Marshal Harish Masand v. Union of India and others 2005(1) SCT 605 wherein the treatment meted out to the petitioner was a classic case of indifference, highhandedness, arbitrariness, irrationality and amounted to colourful exercise of powers and manipulations to deny promotion to a meritorious officer. The High Court observed that there cannot be anything worse for an officer of the Armed Forces to be without his uniform for a period of more than 10 months on account of such arbitrary action. Thus, the respondents were directed to convene a

Special Promotion Board within four weeks and re-assess the comparative merit in terms of promotion policy by taking into consideration 5% of the Board Marks for the purpose of selection pursuant to the promotion policy with 5% Board marks rest of the parameters of 80% weight age of AR marks for the last five years shall remain the same. For that an appropriate record of Board for marks assigned was ordered to be maintained. 15 OA 1481 of 2012

24. Reliance has also been placed on another Division Bench judgement of the Delhi High Court in the case of Surgeon Rear

Admiral P. Sivadas v. Union of India and others 2005(85) DRJ 620 wherein the petitioner was recommended by the Board based upon his excellent service record and his case was ordered to be reconsidered by the Government to obviate his hardship.

25. Lastly, the learned counsel for the petitioner relied upon a judgement of the Hon‟ble Supreme Court in the case of Major

General HM Singh, VSM v. Union of India and others 2015 STPL

(Web) 18 SC wherein the Hon‟ble Court found the order of rejection of the appellant‟s claim for promotion to the rank of Lt. General on the ground that he was on extended service as invalid. The operative part of the order of the Appointment Committee of the Cabinet was set aside. Since the Selection Board had recommended the selection on the basis of record of service, past performance, qualities of leadership and vision, out of a panel of four names and the Appointment

Committee of cabinet did not record any reason to negate the same relating to the merit and suitability of the Appellant. Therefore, in the opinion of the Hon‟ble Court, the appellant deserved promotion to the rank of Lt. General from the date due to him, which was ordered accordingly.

G. SUBMISSIONS OF THE LD COUNSEL FOR THE RESPONDENTS 26. Contra, Shri Gurpreet Singh, learned counsel for the respondents forcefully argued that the promotion in question is based upon the merit-cum- suitability as it being a selection post which in the case in hand, was applied in accordance with the rules and the letter 16 OA 1481 of 2012 under reference which was examined by the Board consisting of top brass of the Army. They did not find the Applicant fit to be promoted and their report/ recommendation was approved by the Central

Government. However, learned counsel frankly admitted that the reply filed by the respondents to the effect that the case of the petitioner was considered along with the officers of his batch and the Applicant did not make the grade based on his overall profile and comparative batch merit within the batch as evaluated by the Selection Board, is incorrect. As a matter of fact, it was a singular name which was considered for promotion and not found fit. Learned counsel for the respondents further ventilated that in any case there is any merit in the claim made by the Applicant, the Tribunal may be within its discretion to refer the matter back to the authorities to constitute a fresh Selection Board but the Court/ Tribunal has no powers to issue the mandamus to promote the Applicant even notionally.

27. To support his argument, he has cited the following judgements:

i)Indian Airlines corporation v. Capt. KC Shukla and others 1992(2) SCALE 587; ii)Lila Dhar v. State of Rajasthan 1981 AIR 1777; iii)Nutin Arvind v. Union of India and others 1996 SCC (2) 488; iv)State of Mysore v. C Seshadri and others 1974 AIR 460; v)Mir Gulam Hussain and others v. Union of India and others (Writ Petition (civil) 73 of 1969) decided on 27.2.1973; vi)Janki Prasad Parimoo and other v. State of J& K and others 1973 AIR 930; vii)N. Suresh Nathan and others v. Union of India and others (CA No. 698 of 2004 ( decided on 22.4.2010); viii)Union of India and another v. SK Goel and others (2007) 14 SCC 641; ix)Union of India and others v. Lt. Gen. Rajendra Singh Kadyan and another (2000)6 SCC 698; x)Surinder Shukla v. Union of India and others (2008) 2 SCC 649; and 17 OA 1481 of 2012

xi)Union of India and another v. Samar Singh and others (1996) 10 SCC 555. H. OUR DISCUSSION AND FINDINGS 28. We have surveyed all the judgements referred by the learned counsel for the parties. To appreciate the rival contentions of the parties, we also sent for the proceedings of the No. 1 Selection Board.

On its perusal, we were shocked to note that the reply statement filed by the respondents though Col. Devendra Singh Col M.S. (Legal) vide Secretariat Branch was misleading and contrary to the official record. Infact it was only the Applicant who was eligible and considered by the Board for his promotion and none else but was not recommended for promotion without assigning any cogent reasons, which appears to have been mechanically accepted by the Central

Government. Whereas in the reply respondents wrongly contended that the Applicant had failed to make grade based on the overall profile and comparative batch Merit within the batch as evaluated by the Selection Board. This statement of fact is false, absolutely incorrect and also condemnable and no attempt was made to correct it till date. We also sought for the record for our perusal, when the respondents counsel was confronted with it, it was then the learned counsel admitted the fault, for which respondents are required to be penalised by saddling them with heavy costs leaving them at liberty to recover it from the defaulting officer besides taking an appropriate administrative action for mis-representing and distorting the facts before the Tribunal.

29. However, on merits on the conjoint and purposeful reading of the documents produced before us and also the rival contention of the 18 OA 1481 of 2012 parties, it is evident that the post of Maj. Genl. was already been marked and specified for Army Aviation Corps to which sanction of the President of India was granted as observed by the Apex Court in

CA No. 80 of 2003 aforesaid. Thus a direction was given to the respondents to consider the case of the Applicant, herein alone for promotion to the post of Maj General.

30. Now, a bare perusal of para 4 of the proceedings of the Board aforesaid apparently and abundantly makes it clear that only the case of the Applicant was placed before No. 1 Selection Board on

7.11.2011 to consider him for promotion to the acting rank of Maj

General with the Army Aviation as a Special Review (Fresh) case of

1969 batch of „Army Aviation Corps‟ on a standalone basis under the previous system of selection as there being no other officer of Army

Aviation in that batch.

31. The Applicant had already picked up the rank of full Colonel in

1990 and thereafter on the basis of service profile he was promoted to the rank of Brigadier in the Artillery Regiment by the competent authority upon due selection and when he was seniormost Brigadier in the „Army Aviation Corps „due for consideration for on his service career and profile and that of distinction during the period of service he was also given various awards as mentioned in the judgement passed by the High Court in CWP No. 10037 of 2002, and reiterated by the Apex Court which was not disputed by the respondents. In these circumstances the reasons for what prevented the No. 1 Selection

Board not recommending his promotion are neither available in the records and nor decipherable from any other source. Thus it sans 19 OA 1481 of 2012 reasons and it appears to us in the absence of such a record that such proceedings/ recommendations have been mechanically and blindly approved by the Central Government. On this aspect of the matter, the respondents are silent in their reply and submissions; rather they invented a novel method to take a stand Juxtapposite to the record.

The least we can observe is that, at the highest level instead of placing the truth, ways and means were devised to conceal the truth. If this can happen at that level then how the rule of law and faith of the Court

/Tribunal or for that matter any Judicial or quasi Judicial Authority can place on such a reply/affidavit filed by the Union Government would survive, particularly while verifying the facts in the reply, it is stated that all the facts mentioned are true based on knowledge derived from the official records and no part of it is false and nothing material has been concealed there from. Whereas every attempt was made to mislead us. Therefore, it rocks and shocks the judicial conscious as to how carelessly and casually the Union of India has taken a stand, which could encourage their instrumentalities to follow the illegal pursuit, this requires to be curbed at this stage, as the respondents never tried to amend, correct and even felt apologetic to project their wrong stand. Despite all this, we will hesitate to order suo motu for the relief sought because the judicial precedents cited by the petitioner and discussed above are not fully applicable in the case in hand to order the promotion of the petitioner as sought for, because in the cases cited above, either the name(s) of the petitioner(s) was/ were already approved by the Selection Board or the supersession was made contrary to service rules. 20 OA 1481 of 2012

J. CONCLUSION/ORDER

32. Therefore, for the reasons aforesaid, we set aside the proceedings of Special Review ( Fresh) No.1 Selection Board held on

7.1.2011 as also its approval by the Competent Authority being unsustainable , devoid of any reasons thus technically invalid. The

Applicant was the only and only one eligible and senior most candidate for the post of Major General against the existing vacancy.

Thus having regard to his merit seniority, fitness and suitability and being alone he should have been considered and promoted notionally under these circumstances by the competent authority if found fit, but however in case of „not found fit‟ the procedure for considering a single candidate should have been clearly spelt out with rationale and reasons for adopting such a course.

33. Therefore, now the course open to us is to further direct the respondents to hold a Special Review qua the Applicant by Fresh No.

1 Selection Board within three months from the date of receipt of certified copy of this order by the learned counsel for the respondents or in any case before 31st March, 2016 to reconsider him for promotion to the post of Maj General from the due date in the year

2002 by a speaking order and if found fit to be promoted, in that event the Applicant shall be notionally promoted as he stood retired on

31.10.2002, by giving him post retiral benefits in the rank of Major

General. If rejected reasons and procedure adopted needs to be clearly spelt out and recorded in the proceedings. 21 OA 1481 of 2012

34. The Original Application is accordingly allowed with costs quantified at Rs.25,000/- to be paid to the petitioner leaving it to the respondents to recover it from the defaulting officer in view of the observations made in paras 28 to 31 supra.

35. The matter disposed of in the above terms.

36. No other point urged or pressed.

37. The records be returned in sealed cover by the Tribunal Officer to the Incharge, Legal Cell against receipt.

(Justice Surinder Singh Thakur)

(Lt Gen DSSidhu(Retd))

15.12.2015 okg

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