ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 106 of 2016 TUESDAY, THE 10TH DAY OF JANUARY, 2017/20TH POUSHA, 1938 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) APPLICANT: IC – 35284 N, MAJ GEN VIKAS JOSHI (RETD), S/O SHRI SP JOSHI, AGED 58 YEARS, G-21/1001 SANDEEP VIHAR AWHO, KANNAMANGALA, WHITEFIELD, BANGALORE, KARNATAKA – 560 067. BY ADVS.M/S T.R.JAGADEESH & COL. S.VIJAYAN VERSUS RESPONDENTS: 1. UNION OF INDIA, THROUGH THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI – 110 011. 2. THE CHIEF OF ARMY STAFF, INTEGRATED HQ OF MOD (ARMY) DHQ PO, NEW DELHI – 110 011. 3. MILITARY SECRETARY, INTEGRATED HQ OF MOD (ARMY), DHQ P.O., NEW DELHI – 110 011. 4. LT GEN JOHN GEORGE A, VSM, COMMANDANT SCHOOL OF ARTILLERY, DEVLALI MAHARASHTRA – 422401. BY ADV. SRI. C.B.SREEKUMAR, SENIOR PANEL COUNSEL COL. AJEEN KUMAR APPEARED. OA No 106 of 2016 : 2 : O R D E R VAdm.M.P.Muralidharan, Member (A): 1. The Original Application has been filed by Major General Vikas Joshi, No.35284 (Retd) aggrieved at his non- empanelment to the rank of Lieutenant General. 2. This is the second round of litigation by the applicant who had earlier filed OA.No.156 of 2015 on the same issue. This Tribunal observing that the applicant had not exhausted the statutory remedies available to him, had vide orders dated 16 November 2015 (Annexure A11) directed the applicant to prefer a statutory complaint and the respondents to take a decision on it within a period of three months. The statutory complaint preferred by the applicant had been examined and rejected by the respondents (Annexure A13) and hence this Original Application. OA No 106 of 2016 : 3 : 3. Col S.Vijayan, the learned counsel for the applicant submitted that the applicant had been commissioned into the Regiment of Artillery of Army on 10 June 1978. The applicant was promoted to the rank of Major General in May 2011 with effect from 09 May 2010. The applicant has served in various coveted and sensitive appointments in his career and the last appointment held by him was that of Commandant, Selection Centre South, Bangalore. The learned counsel submitted that the respondents had modified the policy of promotions from January 2009 to that of quantification model, under which apart from other criteria, value judgment marks awarded by Members of the Selection Board were also taken into account. It was further revised by a policy letter promulgated by MS Branch in January 2011 (Annexure A2). The learned counsel submitted that the applicant as well as Respondent No.4 (Lt Gen John George A) were promoted to the rank of Major OA No 106 of 2016 : 4 : General in their respective batches. It was further submitted that in accordance with the existing policy on promotion to the rank of Brigadier, officers belonging to the Regiment of Artillery, can either opt for promotion in the general cadre or remain in regimental vacancies. The applicant and Respondent No.4 were promoted in the regimental cadre. There were earmarked vacancies in staff appointments in the rank of Lt General for officers who did not opt for general cadre. Promotion Board is held for an entire batch for selection to such vacancies which are called as Non- General Cadre Staff Stream (NGCSS). An officer in the rank of Major General (Non General Cadre Stream) is considered for promotion to the rank of Lt General in the NGCSS along with officers of other Arms and Services. Further, an officer in the NGCSS even if holding the rank of Lt General is also required to be considered for empanelment in his own Corps/Regiment along with other eligible Major Generals. OA No 106 of 2016 : 5 : 4. Respondent No.4 who is from 1977 batch, as considered with his batch for promotion to the rank of Lt General in the NGCSS as well as against regimental vacancy, but was not empanelled. He was therefore reconsidered as a first review case along with 1978 batch, ie the batch of the applicant, was empanelled and promoted to the rank of Lt General. He was later considered for the Corps/Regimental stream vacancy of Lt General along with the applicant by a Special Selection Board (SSB) held in April 2015 (Annexure A3) for one vacancy in the Regiment of Artillery. 5. The learned counsel for the applicant further submitted that on completion of the SSB, the applicant learnt from reliable sources that he was recommended for empanelment and as per policy in vogue, Respondent No.4 may also have been deemed empanelled as he was already OA No 106 of 2016 : 6 : holding the rank of Lt General. While the results of all other SSBs were de-classified by the third week of August 2015, eventhough a vacancy was arising in the Regiment of Artillery on 01 September 2015, the results for Artillery were not de-classified. The learned counsel also submitted that the applicant firmly believes that the result of SSB (Artillery) was delayed and manipulated to benefit some officers. The results of the SSB (Engineers) which was declared in August 2015 (Annexure A4) indicated that two officers holding rank of Lt General were empanelled to hold one vacancy in rank of Lt General in the Corps of Engineers, indicating that for officers already holding the rank of Lt General in NGCSS, empanelment is not linked with the vacancy that exists in the Corps. 6. The applicant, apprehending that there were some moves to eliminate him from being promoted to the rank of Lt General to benefit some others, wrote a letter to the OA No 106 of 2016 : 7 : Chief of the Army Staff on the issue and also sought an interview with him (Annexure A5). The result of the Selection Board for the Artillery Regimental vacancy was de-classified in September 2015 wherein Respondent No.4, Lt Gen John George A was empanelled (Annexure A6). The learned counsel further submitted that in accordance with Central Government (Transaction of Business) Rules, 1961 empanelment of officers to the post of Lt General requires approval of the Appointments Committee of the Cabinet (ACC), (Annexure A7). However no such approval was taken prior to promulgation of the results of the SSB wherein Respondent No.4 was indicated as empanelled. The applicant was informed that he had not been empanelled (Annexure A1). Based on the request made by the applicant for interview with the Chief of the Army Staff he was informed that the results of the SSB held in respect of 1978 batch of Artillery were de-classified (Annexure A8). OA No 106 of 2016 : 8 : 7. The learned counsel further submitted that the applicant again learnt through reliable sources that in the SSB held in April 2015, the applicant's name had been recommended for empanelment to the rank of Lt Gen on relative merit. Respondent No.1 (Union of India) had changed the recommendations of the Selection Board without assigning any justifiable reasons. The applicant therefore sought another interview with the Chief of the Amy Staff (Annexure A9) but was denied the same and was informed by the MS Branch that he could seek redressal of grievance under non-statutory/statutory complaints (Annexure A9/2). Subsequently the applicant had filed OA.No.156 of 2014 before this Tribunal and in compliance of the direction of the Tribunal (Annexure A11), the applicant had filed a statutory complaint (Annexure A12). The complaint was considered and rejected by the Respondents without responding to the issues raised by the OA No 106 of 2016 : 9 : applicant, specifically on the grievance of the applicant that recommendation made by the SSB was overruled by the Government. 8. The learned counsel further submitted that the Hon'ble Apex Court in RS Mittal vs. Union of India, 1995 Supp (2) 230 had held that while a person on the select panel has no vested right to be appointed to the post for which he has been selected, he has a right to be considered for appointment and the appointing authority cannot ignore the select panel or decline to make appointment on its whims. Similarly in East Coast Railway vs. Mahadev Appa Rao, (2010) 7 SCC 678, the Apex Court had held that candidates who were otherwise eligible for appointment were entitled to ensure that selection process was not allowed to be scuttled for malafide reasons. The learned counsel also submitted that in an identical matter pertaining to the Regiment of Artillery, the Kolkata Bench in OA No 106 of 2016 : 10 : OA.No.85 of 2013 held that denial of promotion changing the recommendations of the Selection Board without assigning any reason is bad in law and the applicant therein had been granted relief and promoted to the rank of Major General. Similarly the Hon'ble Apex Court in Maj Gen HM Singh vs. Union of India & Anr, (2014) 3 SCC 670 granted promotion to the applicant therein to the rank of Lt General, holding that reasons for rejection of the petitioner's claim was not valid and the ACC did not record any reasons to negate the merit and suitability of the petitioner. 9. The learned counsel further submitted that the SSB is responsible for deciding comparative merit of candidates for empanelment and there are no marks either with the Ministry of Defence or the ACC and therefore no amendment to the merit can be carried out by any other agency other than the Selection Board.