Biswanath Somadder, J.
1. In the present proceeding before us, two appeals have been filed against the judgment and order dated 25th April, 2006, passed by the Hon'ble First Court in W.P. No. 25155 (W) of 2005. One appeal, being M.A.T. No. 2965 of 2006 has been filed by Union of India and Ors. and the other, being M.A.T. No. 2255 of 2006, has been filed by the writ petitioner.
2. Before we look into the judgment in detail, the facts, in brief, as it unfolds from the impugned judgment, needs to be discussed:
(i) An Army Officer holding the rank of a Major General filed the writ petition, inter alia, challenging various decisions of the superior authorities in connection with his service career, including the matter relating to his claim for promotion to the post of Lieutenant General.
(ii) At the time of hearing of the matter before the Hon'ble First Court, the writ petitioner was posted as G.O.C., Bengal Area. He was aggrieved by various decisions of the superior authorities, which also included not being selected as fit for promotion to the post of Lieutenant General. Before the Hon'ble First Court it was contended on behalf of the writ petitioner that the seeds of disputes were sown at the time of selection of the writ petitioner as Military/Defence Attache (hereinafter referred to as M/DA) to U.S.A. in the year 1996. It was also contended that his assignment was not taken in the right spirit by his detractors who started spreading a wrong message that the writ petitioner was selected and sent to the U.S.A. as M/DA at the behest of the then Chief of Army Staff, General Sankar Roy Chowdhury.
(iii) It was specifically contended before the Hon'ble First Court on behalf of the writ petitioner that the respondent authorities on various occasions changed its policies regarding assessment of army officers and preparation of confidential reports in order to prejudice the service prospects of the writ petitioner. It was also contended that from records it would appear that an office order was issued on 7th April, 1998 from the Army Headquarters wherein it was specifically mentioned that the Chiefs of staff had approved dispensing with the system of figurative assessment in personal qualities and box-grading and retained only the pen-picture in the confidential reports of the officers holding certain specified appointments.
(iv) It was specifically contended before the Hon'ble First Court that the figurative assessment was dispensed with, mainly at the behest of certain top army officers, in order to prejudice the service prospects of the writ petitioner and also to protect the service careers of some other senior army officers, whose reports in the foreign missions were not up to the desired standard. The contention of the writ petitioner before the Hon'ble First Court was that he was illegally denied first mandatory consideration for nomination to the National Defence College (hereinafter referred to as N.D.C.) course, on unjust and untenable ground, as the Annual Confidential Reports (hereinafter referred to as A.C.R.s). in respect of his service period as M/DA to USA were not considered on the ground that the appointment of the writ petitioner as M/DA to U.S.A. was an 'Extra-Regimental Appointment'. It was further contended that the writ petitioner on 28th December, 1999 had submitted a representation against the dispensation of figurative assessment in the A.C.R.s of M/DAs, but the respondent authorities reintroduced the figurative assessment in the A.C.R.S of the M/DAS w.e.f. Is' January, 2000, which according to the writ petitioner benefited his batch-mates who were then posted as M/DAs, although the writ petitioner suffered serious prejudice because of the dispensation of the figurative assessment during his service tenure in USA.
(v) It was further contended that the writ petitioner was deprived of two numeric C.R.s, in view of the dispensation with the figurative assessment on 7th April, 1998 and reintroduction of the same, w.e.f. 1st January, 2000. According to the writ petitioner, change in A.C.R. endorsement had seriously affected his service prospect and career.
(vi) It was also contended that in the month of April, 2000, the writ petitioner was, however, considered by the No. 1 Selection Board for promotion to the post of Major General, but was not empanelled due to the absence of N.D.C. weightage. In the month of October, 2000, the writ petitioner was again denied for consideration for nomination to N.D.C. for the year 2001.
(vii) It was contended before the Hon'ble First Court that the writ petitioner, being aggrieved by the aforesaid non-consideration filed a statutory complaint, which was ultimately rejected by the concerned authority on the ground of promotability, as the writ petitioner was not found promotable by the No. 1 Selection Board. The said No. 1 Selection Board, however, found the writ petitioner fit for promotion to the post of Major General, in the month of April, 2001.
(viii) It was further contended before the First Hon Tale Court that although the No. 1 Selection Board refused to grant promotion to the writ petitioner for the post of Major General in the month of April, 2000, but on the basis of same set of materials, found the writ petitioner fit for promotion to the post of Major General, in the month of April, 2001.
(ix) It was specifically contended before the Hon'ble First Court that dispensation of numerics in the A.C.R.s of M/DAs and further reintroduction of the same from January, 2000, only benefited the batch-mates of the writ petitioner and prejudicially affected the service prospects and careers of the writ petitioner, as he was not considered for nomination to N.D.C. course and subsequently was also not considered for promotion to the post of Major General, in the month of April, 2000.
3. The Hon'ble First Court upon considering various contentions and submissions made on behalf of the parties and after going through the pleadings, inter alia held as follows:
(i) The decision of the Military Secretary's Branch dated 29th March, 2005, rejecting the statutory complaint of the writ petitioner, could not be sustained in the eye of law and the same was, therefore, quashed.
(ii) The decisions of the Central Government dated 14th March, 2002, and 2nd February, 2006, rejecting the statutory complaints filed by the writ petitioner, stood vitiated on account of violation of the audi alteram partem rule, as vital documents, namely, the comments of the Army authorities on the statutory complaints of the petitioner were not supplied to the petitioner for information and submission of necessary comments.
(iii) The decision of the Special Selection Board, taken in the meeting held on 8th February, 2006 and communicated by the letter dated 24th February, 2006, regarding non-selection of the writ petitioner for promotion, was quashed.
(iv) The Military authorities were directed to change the profile of the writ petitioner immediately in the light of the Hon'ble First Court's findings and reconsider the claim of the writ petitioner for promotion to the rank of Lieutenant General.
(v) The Military authorities were further directed to arrange a meeting of the Special Selection Board on or before 29th April, 2006 positively, in order to consider the claim of the writ petitioner for promotion to the rank of Lieutenant General, on the basis of the changed profile of the petitioner, pursuant to the findings and observation mentioned in the impugned judgment and order.
(vi) The members of the said Special Selection Board were specifically restrained from considering the N.D.C. aspect, as second mandatory look for N.D.C. was illegally denied to the writ petitioner, and also the figurative assessments of the C.R.'s of the petitioner by the G.O.C.-in-C, Eastern Command and COAS, while the writ petitioner was posted as ADG-Assam Rifles, at the time of considering the relative assessments of the candidates for the purpose of granting promotion to the rank of Lieutenant General.
(vii) In the event, the Special Selection Board declared the writ petitioner fit for promotion to the rank of Lieutenant General on the basis of the change profile in terms of the order of the Hon'ble First Court, then, the writ petitioner would be entitled to enjoy all the benefits of the promotional post in the rank of Lieutenant General.
(viii) The respondents were entitled to issue formal order of promotion to the petitioner even after the date of retirement with retrospective effect as the petitioner filed the writ petition long before his retirement and the writ petition had also been decided (on 25.4.2006), while the writ petitioner was still in service.
4. Before us, on behalf of the appellants Union of India and Ors. it has been inter alia contended as follows:
(i) The Hon'ble First Court has erred in holding in the impugned judgment that the writ petitioner was not considered by the respondent authorities for selection to N.D.C. course in October, 1998 and therefore it cannot be said that the writ petitioner forfeited his mandatory look for N.D.C. in the year 1998.
(ii) The Hon'ble First Court has erroneously hold that the writ petitioner was illegally denied second mandatory look for N.D.C. course.
(iii) While coming to the aforesaid conclusion the Hon'ble First Court has erroneously decided that by signing the Adverse Career Certificate the writ petitioner never undertook not to complain, if he was overlooked for consideration and that the terms of the Adverse Career Certificate, therefore, could not invoked for defending the impugned actions of the respondent authorities.
(iv) As per the case made out before the Hon'ble First Court the writ petitioner was given consideration in October, 1998 while he was away to U.S.A. and the second consideration was given in October, 1999. However, upon further scrutiny and perusal of records it was found that in the year 1996, the name of Major General Arun Roye (then Brigadier) figured in the list of eligible Brigadiers for consideration of N.D.C-37 commencing from January, 1997. However, the writ petitioner, at the relevant time, was serving as M/DA to U.S.A. and hence due to rendition of Adverse Career Certificate, on his own volition, he became ineligible. Similarly, in 1997, his name again figured in the list of eligible Brigadiers for N.D.C-38, commencing in January, 1998 along with other officers of the 1967 batch, but he became ineligible due to rendition of the Adverse Career Certificate. Notwithstanding the aforesaid, the writ petitioner, on return, was considered again in October, 1999 for N.D.C., commencing in the year 2000, but he was not nominated based on his low merit. In this regard learned Advocate appearing on behalf of the Union of India has referred to paragraph 25 of the affidavit-in-opposition affirmed on 6th March, 2006 and also paragraphs 5, 6 and 7 of the supplementary affidavit affirmed on 12th February, 2007.
(v) As far as the writ petitioner is concerned, as per records, he was given 'Looks' for N.D.C. in the following years:
1st - In the year 1996 for N.D.C. 1997,
2nd - In the year 1997 for N.D.C. 1998,
3rd - In the year 1998 for N.D.C. 1999, and
4th - In the year 1999 for N.D.C. 2000.
(vi) N.D.C. is an important course for the Brigadiers/Colonels and as such there was an effort on the part of the organization to afford a reasonable opportunity to all the Brigadiers who are eligible, irrespective of their arms/services, and to achieve this a detailed policy had been formed and one important aspect of the policy was to give two considerations, or, grant two 'Looks' to an officer, wherein a 'Look' was to go through the following stages of selection:
i) Shortlist Officer as per cut off date of birth;
ii) From (i) above, to remove the names of officers who are covered by a reject criteria due to adequately exercised/foreign assignment/unwillingness/Adverse Career Certificates/discipline;
iii) After taking into action as in (ii) above, preparation of merit list on the basis of weighted marks earned by the officers in their A.C.R.s/Courses/Honours and Award etc;
iv) Out of the list in (iii) above, submission of a list comprising double the number of vacancies in each Arm/Service before the Special Selection Board for selection of Officers for N.D.C;
v) Detailment of Officers on N.D.C. after the decision of Special Selection Board which is final subject to the condition that the officers remains in acceptable MED (Medical) category and that there is no drop in performance as on the date of commencement of the course.
(vii) The interpretation of the Hon'ble First Court as to the meaning of'Look' was not correct.
(viii) The fact has been that Brigadiers were entitled for 'Look' for N.D.C.
(ix) Writ petitioner's case for N.D.C. was considered on several occasions 1996 onwards. But, being in U.S.A. as M/DA and his signing of Adverse Career Certificate, made him ineligible after a 'Look' as per prescribed policy.
(x) In terms of the impugned judgment and order of the Hon'ble First Court dated 25th April, 2006, a Special Selection Board was constituted for the writ petitioner and after consideration of the case, he was not found fit for promotion to the post of Lieutenant General.
(xi) The writ petitioner before accepting the assignment as M/DA to U.S.A. had, on 6th December, 1995, signed an Adverse Career Certificate on his own volition and choice as would be manifest from the said Certificate itself. The writ petitioner well knew the fact really was that taking up the assignment as M/DA in USA would make him ineligible for being selected for N.D.C, under the reject criteria. Therefore, the writ petitioner is estopped from contending otherwise.
5. The learned Senior Counsel appearing on behalf of the Union of India before us has submitted that before the Hon'ble First Court the contention of the writ petitioner on the change of policy in the year 1998 with regard to dispensation of figurative and retaining only pen-picture in cese of M/DAs and again change from pen-picture to figurative in the year 2000, allegedly in cese of M/DAs, was wholly baseless and misleading. In this regard, learned Senior Counsel appearing on behalf of the Union of India, referred to the policy letter dated 7th April, 1998. The said letter appears as Annexure R-4 to the affidavit-in-opposition, which is at page 698 of the paper-book. According to the learned Senior Counsel for the Union of India, before introduction of the policy on 7th April, 1998, the M/DAs were assessed by their IO (initiating officer), RO (reviewing officer) and SRO (superior reviewing officer) in Part-I and Part-II of the A.C.R., in figurative and pen-picture, both. The learned Senior Counsel appearing on behalf of the Union of India submitted that, however, the policy letter dated 7th April, 1998, dispensed with the figurative assessment and retained only pen-picture for the three assessing officers in Part-I and Part-II of the A.C.R. form (being IO, RO and SRO). This policy was made applicable to 39 appointments and the list of these appointments was attached as appendix to the letter dated 7th April, 1998. He, thus, submitted that the writ petitioner was not the only one affected by this policy change.
6. The learned Senior Counsel appearing on behalf of the Union of India further submitted that the aforesaid policy was further modified by a subsequent policy letter dated 14th January, 2000. The said letter appears at page 227 of the paper-book. The RO and SRO were again allowed to give figurative assessment in Part-II of the form. However, IO remained to give pen-picture only as earlier. This policy, according to the learned Senior Counsel for the Union of India, was given effect from 1st January, 2000, by which time the writ petitioner had returned from U.S.A. The learned Senior Counsel for the Union of India submitted that there was no policy to convert the pen-picture into numeric and that the change of policy was never 'following' the writ petitioner. He further contended that the writ petitioner was promoted to the post of Major General on the basis of his then existing profile, which he accepted.
7. The learned Senior Counsel appearing on behalf of the Union of India also submitted that the contention of the writ petitioner that he should be treated as one who has successfully completed N.D.C. course could not be accepted because it went against his own signed Adverse Career Certificate and that from the records it may be seen that at least two 'Looks' were given and conversion of 'pen-pictures' to 'figurative' was not possible as it was not laid down in the policy.
8. The learned Senior Counsel appearing on behalf of the Union of India has drawn our attention to the provision of Section 27 of the Army Act and the Defence Services Regulations, paragraph 364, sub-paragraphs 10 and 12. According to the learned Senior Counsel, sub-paragraph 12(c) provides for forwarding the comments with recommendations, by the intermediary military authorities, only to the Central Government. According to him, this provision had had not been challenged in the writ petition and providing the comments to the complainant by the army authorities are not provided for, within the framework of these regulations. He submitted that the authorities were not deciding any thing at that stage and therefore the principles of natural justice were not affected.
9. The learned Senior Counsel for the Union of India, thus, contended that the decision of the Hon'ble First Court on the alleged non-compliance of the principles of the natural justice by non-forwarding the comments on his A.C.R. was not correct in law.
10. He further submitted that the complaints, whether statutory or nonstatutory, are essentially bases on the profile of the officer and in essence, this entails a complete analysis of the A.C.R.S that include figurative awards, pen-picture and other recommendations of the reporting officers in reporting chain and thus, by divulging these detail, the army as an organization, will be forced to empower the individual with information that he was not required/authorized to access in the first instance.
11. The learned Senior Counsel for the Union of India further submitted that providing comments to the complainant would reduce the confidentiality of Confidential Reports to a nullity and thereby negating the very definition of A.C.R.
12. The learned Senior Counsel appearing on behalf of the appellant, the Union of India, in M.A.T. No. 2965 of 2006 submitted that in the case of the writ petitioner the rules of natural justice was never compromised, since the authorities followed the statutory rules and provisions only and nothing else. According to him, there had been neither contravention nor any violation of the principles of natural justice. Reference in this regard has been drawn in respect of the decisions of the Hon'ble Supreme Court of India rendered in the following cases:
: [1958]1SCR1240 (Nagendra Nath Bora and Anr. v. Commissioner of Hills Division and Appeals, Assam and Ors.)
: [1995]2SCR532 (Major General I.P.S. Dewan v. Union of India and Ors.)
13. The learned Senior Counsel for Union of India further submitted before us that the Hon'ble First Court ought not to have interfered and passed orders in the writ petition, since the matter related to policy decisions, which are ordinarily not interfered with by the Writ Court. Reference in this regard has been drawn in respect of the decisions of the Hon'ble Supreme Court of India rendered in the following cases:
1980 (Supp) SCC 559 (Col. A.S. Sangwan v. Union of India and Ors.)
: (1997)IILLJ352SC (State of Rajasthan v. Sriram Verma and Anr.)
14. Apart from aforementioned judgments, the learned Senior Counsel for Union of India has also submitted that there has been an inordinate delay in filling the writ petition and on this ground alone the writ petition ought to have been dismissed. In support of this contention the learned Advocate for Union of India has submitted that the questions raised by the writ petitioner regarding N.D.C., change of policy, etc. took effect prior to 2001 and on that profile the writ petitioner was promoted as Major General in April, 2001. Therefore, such contentions ought not to have been allowed to be raised in December, 2005, when the writ petition was filed before the Hon'ble First Court.
15. On the other hand, the learned Senior Counsel appearing on behalf of the writ petitioner/respondent submitted before us that the writ petitioner, when holding the post of Brigadier in the Army, was selected from out of 15/16 officers, as M/DA to U.S.A. in December, 1995, by a Selection Committee. At the time of such selection, officers of the 1967 batch, to which the writ petitioner belonged, namely Brigadier Satur and Brigadier Bhandari were rejected by the selection Board, being lower in merit.
He has further submitted that the writ petitioner had to sign an Adverse Career Certificate, on being shortlisted for selection as M/DA. At that point of time, A.C.R.S of the writ petitioner were maintained in figuratives and the petitioner assumed post of M/DA in U.S.A. having known that his A.C.R. was to be assessed numerically/figuratively. The writ petitioner joined as M/DA to U.S.A. in June, 1996. His first C.R. as M/DA was endorsed with numerics (figurative assessment) for the period 07/96-06/97 with the Ambassador as initiating officer (IO), Director General Military Intelligence (DGMI) as Reviewing Officer (RO) and Vice Chief of Army Staff (VCOAS) as Senior Reporting Officer (SRO). It was an 'Outstanding' numerics, i.e. 9 C.R.
16. The learned Senior Counsel for the writ petitioner/respondent has drawn our attention to page 2 of the supplementary affidavit affirmed on 10th January, 2007, by the writ petitioner/respondent, which is a part of the paper-book. He has contended that it appears that when the writ petitioner was in U.S.A., the 1st National Defence College N.D.C. 'Look' was given to the 1967 batch officers in October, 1996 for N.D.C. 1997/37 and this fact came to be known only at the final stage of submission made on behalf of the appellant Union of India before this Court. He has further contended that Brigadier Ladder was amongst those officers who were detailed, Brigadier Bhandari was selected for N.D.C. abroad, while Brigadier Satur was rejected. In this regard he referred to paragraph 24 at page 588 of the paper-book filed before this Court.
17. He has further submitted that in October, 1997, the Chiefs of Staff Committee (COSC) dispensed with 'Numeric' assessments as well as 'Box-grading' in C.R.s by all Reporting Officers and retained only 'pen-picture' in C.R.s of officers serving in High Commissions/Embassies, without mentioning about the Channel of Reporting. Only Army dispensed with such 'figurative' assessments, while the Navy and Air Force did not dispense with figurative assessments. In this regard he has referred to paragraphs 3-5 at page 205 of the paper-book.
18. He has also submitted that in October, 1997 itself, 2nd N.D.C. 'Look' was given to the 1967 batch officers for N.D.C. 1998/38. At that time writ petitioner was in U.S.A. as M/DA and thus held ineligible. Due to such decision to change the system of maintaining C.R.s by dispensing with 'figurative' assessment (numerics) and retaining only 'pen-picture' for M/DAs, without mention of the channel of reporting, Army had designed a C.R. sans numerics applicable only for M/DA. In this regard he has referred to paragraph 4 at page 228 and paragraph 4 at pages 202-203 of the paper-book.
19. The learned Senior Counsel further submitted that on 7th April, 1998 a C.R. form sans numerics was issued, which related to M/DA only, not other officers in the Embassy. The same was made 'back-dated' so as to cover the period from June, 1997. Instructions in Special Army Order remained unchanged, thus reasserting transit with reference to descriptive words denoting numerics. In this regard he has referred to pages 698-701 of the paper-book.
20. He has also contended that out of 39 posts reflected, most were singular, except Serial Nos. 24 and 34. Serial Nos. 1 to 7, 12, 17, at times Serial 16 are Lieutenant Generals, who are never assessed in numerics.
The learned Senior Counsel for the writ petitioner/respondent has specifically contended that Army M/DAs commenced pen-picture assessment for first time, while Serial 11 continued to receive numeric assessments as before, notwithstanding supposed policy amended from time to time. Specific reference was made to line 6 at paragraph 2 contained in page 392 of the paper-book. Learned Senior Counsel for the writ petitioner/respondent submitted that at that stage, writ petitioner commenced dialogue with the then Military Secretary, Lieutenant General Y.K. Mehta. In this regard, he has specifically referred to line 1 at paragraph 2 contained in page 206 of the paper-book.
21. He has further submitted that in July, 1998, the writ petitioner's 2nd C.R. as M/DA for the period 07/97-06/98, was endorsed by his I.O. (Ambassador) without 'numerics'. This time again he was assessed 'outstanding' i.e. 9.
22. As against the contention of the appellant Union of India that 1967 batch officers came up for first look for N.D.C. in October, 1998 for N.D.C. 1999/39 and that the writ petitioner/respondent was also given his 1st 'Look', but was 'ineligible' as he was abroad (U.S.A.) and he was given 2nd and final 'Look' in 1999 for N.D.C. 2000/40, the learned Senior Counsel for the writ petitioner submitted that such contention, as raised before the Hon'ble First Court, was wholly misleading for reasons that follow.
23. The 1967 batch officers were given 1st 'Look' for N.D.C. in October, 1996 for N.D.C. 1997/37 and those who failed to qualify were considered in October. 1997 for 2nd 'Look' for N.D.C. 1998-99. One instance was that of Brigadier K.S. Sindhu. On this weightage, batch-mates of the writ petitioner/respondent became Major General in 2000.
24. The selection procedure for N.D.C. provides for two 'Looks'. Column 2 thereunder provides for Qualitative Requirement (QR). The selection procedure provides for two 'Looks' for all Brigadiers provided they fulfil the laid down eligibility criteria. The appellants having contended that the writ petitioner/respondent was given two 'Looks' for N.D.C, the position stands admitted that writ petitioner/respondent was eligible for N.D.C. in terms of the selection proaedure for N.D.C.
25. The learned Senior Counsel for the writ petitioner/respondent further submitted as follows:
(i) Respondent No. 5 in the writ petition was a 1966 batch officer, which batch was given '1st look' in 1995 for N.D.C. 1996/36, and he was also considered in 1998 for N.D.C. 1999/39. The writ petitioner was not considered for N.D.C. 1997 on the ground of his staying abroad, in spite of being superior to other officers in the process of being selected as M/DA. The 1967 batch officers got their two 'looks' in 1996 and 1997. Brigadier Satur, age barred for N.D.C. 1998/38 did N.D.C. 1999/39, based on which weightage he became Major General in No. ISB 2000. In 1999, Brigadier Lidder got selected as M/DA to USA and replaced the writ petitioner on strength of N.D.C. writ petitioner was the only 'eligible' officer of 1967 batch left, to be given his looks for N.D.C. 2000/40 and 2001/41.
(ii) In September, 1999, the petitioner returned to India, and found his C.R.s for the two years (07/96-06/97 and 07/97-06/98) marked 'blank' i.e. sans numerics in relation to other officers of his batch, since during the period, Army, had, in flagrant disregard of all norms, dispensed with the figurative Assessments of M/DA only. Petitioner returned to India as Brig. Gen. Staff (Operations) - an appointment meant for a N.D.C. qualified officer.
(iii) In October, 1999 he represented about C.R.s sans numerics. He wrote thrice to the Military Secretary between Dec., 1999 and May, 2000 to convert the pen-picture C.R.s to numerics/work out an average to ensure an equal comparison.
(iv) Petitioner was recommended for award of 'Ati Vishisht Seva Medal' (AVSM) by the Indian Ambassador to U.S.A. for extraordinary service rendered to the nation during Pokharan-II in 1998 and Operation Vijay in 1999. But the Army HQ held up the recommendation.
(v) Petitioner, on his return to India had requested for reasons for non-requisition of his C.R.s as M/DA for consideration of his N.D.C. and was informed that the same were not requisitioned as his service as M/DA was considered to be an Extra Regimental Employment (hereinafter referred to as E.R.E.). No reason was however given as to why his period of service as M/DA should be considered as E.R.E.
(vi) It had been the stand of the appellants (Union of India) before the Hon'ble First Court that in October, 1999, 2nd 'Look' for 1967 batch officers was given, but the petitioner was rejected on comparative merit. Importantly, Army did not consider that the writ petitioner could not have been considered equally with others, since he had two non-numeric (blank) C.R.s (1997-1998 and 1998-1999), and a third C.R. of the writ petitioner was not fielded before the No. 1 Selection Board for N.D.C. on the ground of writ petitioner's service as M/DA having been considered as E.R.E. Thus, writ petitioner could not do N.D.C. because of being unequally treated, in violation of Article 14 of the Constitution of India. Writ petitioner's candidature was not considered on a level playing ground with his batch-mates. He was treated unjustly.
(vii) Writ petitioner had been requesting for the 'pen-picture' conversion into 'numerics' in his C.R.s for 1997-98 and 1998-99, as also for non-requisitioning C.R.s leading to unequal treatment, when in January, 2000, (that is, 4 months after petitioner's coming back to India), Military Secretary wrote to Director General, Military Intelligence, approving reversion to numerics, w.e.f. 01.06.2000. Although the decision to dispense with numerics, was of COSC, Military Secretary approved the decision originated by COSC without obtaining formal sanction of the Ministry of Defence.
(viii) After the petitioner was made to suffer the unauthorized dispensation of numerics and 'Blank' C.R.s of M/DA for 1997-98 and 1998-99, Military Secretary asked views on dispensation of numerics, for officers other than M/DAs in Embassies.
(ix) Petitioner's representations made in December, 1999, and February, 2000, were replied on 31.3.2000 by Military Secretary, just prior to No. 1 Selection Board 2000, contending that no policy had been taken to convert pen-picture of numerics. If that be so, then Union of India was not required to strenuously contend that M/DA appointment was E.R.E. Petitioner was rejected on the ground of 'non-promotability', although such policy was not in existence on the date of rejection of petitioner's N.D.C. look. Such concept of promotability as a reject factor was introduced in January, 2002, to be applied only in May, 2002 for N.D.C. 2003/43. The Army had designed to introduce 'Non-Promotability' as a reject factor to cover non-requisitioning of petitioner's C.R.s in May, 2000, and for denying 'Look' to petitioner in October, 2000. This demonstrates the manifest mala fide intention of the appellants. In July, 2000, writ petitioner came to know of his non-empanelment as Major General of by the No. 1 Selection Board, held in April, 2000.
(x) In August 2000, petitioner filed a non-statutory complaint challenging improper N.D.C. 'Look' in 1999, lack of C.R.s and mentioning of the 7s in C.R.s, amongst other grievances. Non-empanelment of petitioner was due to the combined factors of two blank C.R.s no N.D.C. weightage, and an award denied illegally. Petitioner was recommended for another award, in connection with 'Operation Vij ay' in Jammu and Kashmir, by the Northern Command in September, 2000. He also received an 'outstanding' C.R. fourth in a row.
(xi) In September, 2000, the outgoing Vice Chief of the Army Staff and the then Military Secretary fortified the writ petitioner's stand that unjust and unequal treatment had been meted out of him. In this regard, the learned Senior Counsel for the writ petitioner has referred to pages 206 and 290-293 of the paper-book.
(xii) Petitioner's non-statutory complaint filed in August, 2000 was rejected in November, 2000, inter alia contending that petitioner's C.R.s were clear above average, requiring no intervention. Petitioner was not selected due to low Comparative Merit and Overall Profile. Army issued the order, deliberately, without considering the basic grievance of unequal benchmark in C.R.s and expungement of 7s, resulting in improper N.D.C. selection. In fact, officers of 1967 batch who were not selected for M/DA in U.S.A. 1996 on comparative merit and were behind petitioner in merit up to 1998 (such as Brigadier Satur) were allowed to supersede the writ petitioner for N.D.C. weightage in No. ISB 2000. There was, incidentally, no mention of Promotability check up to 07 November, 2000. Petitioner's excellent service as M/DA to U.S.A. during 1997-99 which was recorded by the Ambassador was not considered at all for N.D.C. weightage on the ground of change of numerics during such period. By not awarding the petitioner in time, in spite of recommendation by the Ambassador to U.S.A. in September, 1999, petitioner was made to suffer because of wilful delay and laches of the appellants. Appellants have clearly admitted that 'officers of a particular batch are to be considered together' for promotion, which appears from page 609 of the paper-book.
(xiii) In February, 2001, writ petitioner filed a statutory complaint on the issues of delay in processing award, improper consideration of first N.D.C. 'Look', denial of second 'Look' for N.D.C, lack of C.R.s and N.D.C. weightage, and unsustainable rejection order of non-statutory complaint.
(xiv) During pendency of such statutory complaint, petitioner was promoted in September, 2001 to the rank of Major General by No. ISB 2001 as a First Review by treating his seniority with 1968 batch. This promotion, without N.D.C. weightage signified his excellent military standing. On 7th January, 2002, Army introduced a New Qualitative Requirement of promotability check, effective same date, thus applying the policy of officers contending for N.D.C. 2003/43. The statutory complaint was rejected on 14.3.2002, i.e., after fourteen months.
(xv) The rejection order dated 14.3.2002 has revealed certain vital issues and inconsistent stand of the Army:
a) Given a look for N.D.C. 2000, but could not be given a second 'look'-thus accepting denial of a second 'Look' for N.D.C.
b) 'as assessment of promotability by No. 1 Selection Board is an essential element in the selection process for N.D.C. and he had already been over-looked by No. 1 Selection Board'- Selection process commences in May/June with requisitioning of C.R.s; appellants either have to accept a deliberate suppression of fact when they did not requisition C.R.s of petitioner, or accept that the policy was cooked up specifically for the writ petitioner, to deny him N.D.C.
c) 'provided with an honorary degree of N.D.C. and accruals'- It needs to be read against concerned paragraph in the Complaint/Redressal sought, to gauge the misquotings by appellants.
d) 'This time around C.R.s were quoted to be fair and objective'- as against 'Clear Above Average' (Line 4, Paragraph 2, page 235 of the paper-book) vis-a-vis (Line 2, Paragraph 4, page 289 of the paper-book).
e) Misleading parallel has been drawn to Naidu, YSM and Lidder, YSM, VSM also receiving C.R.s sans numerics - In fact, Lidder had replaced petitioner as M/DA, and received No. C.R. as M/DA, Naidu received only one C.R. as M/DA in 1998-1999. Further, both of them knew of C.R.s sans numerics when signing their respective Adverse Career Certificates. Also, those two officers cannot be compared with the writ petitioner, as they did not comprise the entire 1967 batch.
(xvi) Thus, even from the contention of the Army before the Hon'ble First Court it appears that the writ petitioner's rejection for N.D.C. was wholly mala fide and illegal because of the following:a) N.D.C. 1999- On the Ground of non-availability in country(Pages 632 and 981 of the paper-book);b) N.D.C. 2000- On the ground of comparative merit based onimproper consideration with C.R.s being heldback on the ground of E.R.E. (Pages 632 and 981of the paper-book);c) N.D.C. 2001- On the ground of non-existent policy ofpromotability (page 234 of the paper-book).
26. With regard to the contention of Union of India that the writ petitioner had gone abroad by giving an Adverse Career Certificate and as such he could not have claimed anything, having foregone his right, the learned senior Counsel for the writ petitioner/respondent submitted before us that when the writ petitioner had gone to U.S.A. by giving the Adverse Career Certificate he had not waived any known right. He further submitted that the writ petitioner/respondent had gone to U.S.A. by knowing that A.C.R.s would be maintained in numerics, but while in U.S.A., behind his back, his A.C.R. was maintained by dispensing with numerics. The petitioner had, thus, not waived any known right. The learned Senior Counsel submitted that the principle of estoppel does not apply, in the facts of the instant case.
27. With regard to the contention of Union of India that the writ petitioner was given proper 'Look' for N.D.C., the learned Senior Counsel for the writ petitioner/respondent has submitted that the writ petitioner was promoted to the rank of Major General in April, 2001 by treating him as a 1968 batch officer. The learned Senior Counsel has brought to notice before us that the learned Additional Solicitor General had stated before the Hon'ble First Court, as recorded in page 10 of the impugned judgment, that the writ petitioner was entitled to be considered with the 1967 batch officers in October, 1998 for N.D.C. 1999. The learned Senior Counsel submitted that, in the process, the learned Additional Solicitor General in fact challenged the order dated 14th March, 2002 of the Deputy Secretary of Government of India, rejecting the statutory complaint of the writ petitioner wherein it had been recorded that the writ petitioner was given a 'Look' for N.D.C. 2000, but could not be given the 'second Look' as he had already been overlooked by No. 1 Selection Board. He further submitted that the Hon'ble First Court held that respondents (appellants herein) could not challenge their own order. In the appeal, the appellants have questioned and/or challenged the submission of the Additional Solicitor General, while accepting the recording of his submission, in the judgment of the Hon'ble First Court. He further submitted that it was not clear from the varying stands of the appellants (Union of India) as to when the 1967 batch officers came to be considered for the first time for N.D.C. weightage. The disposal of statutory complaint on 14.3.2002 shows that the writ petitioner was given a 'Look' for N.D.C. 2000, but could not be given the 'second Look' as assessment of promotability by No. 1 Selection Board was an essential element in the selection process of N.D.C. and the writ petitioner had been overlooked by the No. 1 Selection Board.
28. It has been further contended by the learned Senior Counsel appearing on behalf of the writ petitioner/respondent that in paragraph 6 of the affidavit-in-opposition to the supplementary affidavit filed before this Bench, the Union of India, contended for the first time, and in contradiction to their earlier stand taken at all stages of the proceedings, that the writ petitioner was considered for the first time in 1996 for N.D.C. 1997/37, but was found to be ineligible for serving abroad and due to rendition of Adverse Career Certificate. It is the contention of the appellants in paragraph 7 of the same affidavit that the writ petitioner was again considered in 1997 along with other 1967 batch officers of N.D.C., but was found ineligible due to the same reason. The appellants have, however, contended that the writ petitioner was 'in fact' considered in October, 1999 for N.D.C. course commencing in 2000. According to the learned Senior Counsel for the writ petitioner/respondent, this meant that the writ petitioner was not considered earlier than October, 1999 and as such the statement in paragraphs 6 and 7 of the said supplementary affidavit are once again misleading. He submitted that the disposal of statutory complaint on 14th March, 2002 however gave a completely different picture as regards the writ petitioner's consideration for N.D.C.
29. It has been submitted by the learned Senior Counsel appearing on behalf of the writ petitioner/respondent that only after the writ petitioner produced documentary evidence that Brigadier K.S. Sindhu, a Brigadier and an officer of the 1967 batch was considered for N.D.C. 1997, in 1996, did the Union of India, for the first time, contended about the alleged consideration of the writ petitioner for N.D.C. in 1996. He, thus, submitted that the steps taken so far by the Union of India including disposal of statutory complaint on 14th March, 2002 were therefore vitiated by perpetuation of fraud. He has further submitted that the abrupt and purported change in policy of the appellants, following every relevant posting of the writ petitioner/respondent, so as to adversely affect him only, and the misleading statements made regarding the writ petitioner's consideration for N.D.C. were apparently and manifestly mala fide and unjust. The learned Senior Counsel has further submitted that the stand taken by the Union of India before the Hon'ble First Court was that the writ petitioner was considered for N.D.C. in 1998 and 1999 when the officers of the 1967 batch came up for consideration. The submission before the Hon'ble First Court and the affidavit filed before the Hon'ble First Court (at pages 632 and 981 of the paper-book) would show that the 1967 batch came up for first consideration in 1998 for N.D.C. 1999 and the second and final mandatory consideration was given in 1999 for N.D.C. 2000. In this regard, the learned Senior Counsel for the writ petitioner/respondent has referred to grounds II and III of the Memorandum of Appeal.
30. So far issue of delay in filing of writ petition is concerned, the learned Senior Counsel appearing on behalf of the writ petitioner/respondent submitted before us that this issue was never urged before the Hon'ble First Court by the authorities and the matter was contested purely on its merit. He further submitted that this point was raised for the first time in the present appeal. He submitted that the writ petitioner had asserted violation of fundamental right in the matter of being given unequal and unfair treatment, in breach of Articles 14 and 16 of the Constitution of India. He also submitted that the complaint of the writ petitioner/respondent was rejected by the army and not by the Central Government, on the ground of untenability, and not on the ground of delay. He further submitted that the statutory complaint of writ petitioner was rejected after fourteen months on 14th March, 2002, as against the maximum time limit of six months.
31. The learned Senior Counsel appearing on behalf of the writ petitioner/respondent has also submitted that the writ petitioner's subsequent statutory complaint dated 28th February, 2005 against non-selection to the rank of Lieutenant General was rejected on 2nd February, 2006, only after the writ petition was filed. He further submitted that it now appears that the fact of 1967 batch officers coining up for consideration for N.D.C. Look for the first time has been clouded and/or misrepresented by the appellants, making it impossible for any ordinary person to know correctly the fate of his career growth and whether he was being treated equally with similarly placed persons. The learned Senior Counsel also submitted that the writ petition was a culmination of a chain of events and the fact that writ petitioner was meted out with unequal treatment and that the writ petitioner remained in the dark, even during the last stage of hearing before this Court of Appeal, is now clearly apparent. The suppression of material facts on the part of the appellants, coupled with gross delay on their part in dealing with the writ petitioner's complaints, which resulted in violation of the fundamental rights of the writ petitioner, does not warrant any consideration for the appellant's submission, on the point of delay.
32. In so far as M.A.T. No. 2255 of 2006 is concerned, where the appellant is the writ petitioner, the learned Senior Counsel appearing on behalf of the appellant/writ petitioner in respect of the aforementioned appeal has submitted that the Hon'ble First Court did not decide as to whether the posting of the writ petitioner as M/DA to U.S.A. should be treated as 'Extra Regimental Employment' or be regarded as graded staff appointment on the ground that the writ petitioner did not seek relief in this regard. He submitted that although this was an issue before the Hon'ble First Court, this issue ought to have been taken into consideration and decided by the Hon'ble First Court, since treating of the writ petitioner's period as M/DA in U.S.A. as E.R.E. was one of the reasons for non-selecting him in N.D.C. 1999 for N.D.C. 2000. He has further submitted that the authority has failed to produce any document stating that the M/DA's appointment is 'Extra Regimental Employment'. He has submitted that in any case whenever C.R.s for consideration of N.D.C. are asked for by Deputy Military Secretary (X), no differentiation has ever been made in the past. Military Secretary has also failed to provide a certificate to the contrary, although asked for repeatedly. He has also submitted that Brigadiers on assignment in Assam Rifles are on deputation/E.R.E., and the writ petitioner himself had to ensure that the C.R.s of concerned Brigadiers reach the Military Secretary well in time prior to consideration of N.D.C. C.R.s of M/DA were thus important documents.
The other challenge thrown by the appellant/writ petitioner is in respect of the Hon'ble First Court upholding the refusal on first 'Look' for N.D.C. 1999, having held that there was no illegality in not allowing conversion of figurative assessment into numeric assessment for 1997-1999.
33. The learned Senior Counsel appearing on behalf of the appellant/writ petitioner submitted that although the Hon'ble First Court gave reason that the relevant rules during 1997-1999 did not provide for conversion of assessment from pen-picture to figurative assessment, yet no solution to unequal comparison was put forth. He further submitted that the Hon'ble First Court did not consider that in so far as the writ petitioner is concerned, he had moved to U.S.A. with a known set of rule for assessment of his A.C.R. and without informing him he could not be marked in pen-picture in his A.C.R., which had the effect of keeping a 'blank' in the A.C.R. of the writ petitioner, for 1997-1999. According to learned Senior Counsel, this put the writ petitioner at a tremendous disadvantage during N.D.C. consideration in 1999 and subsequently for consideration of promotion to rank of Major General. According to the learned Senior Counsel for the writ petitioner, although the Hon'ble First Court in passing made an observation in this respect, no decision on such finding was rendered by the Hon'ble First Court.
34. The other point that has been raised in the appeal filed by the writ petitioner is with regard to the fact that the non-selection of the writ petitioner as Major General in April, 2000 was not a vital issue according to the Hon'ble First Court, although according to the learned Senior Counsel, the selection of the writ petitioner as Major General was very much a vital issue, in the facts of the present case. He further submitted that had the writ petitioner been promoted to the rank of Major General with his batch, he would have been an incumbent for a higher rank of Lieutenant General and thereafter he could have gone up even higher, since the writ petitioner was ideally placed by way of qualification and age to be even the Chief of Army Staff. In this regard learned Senior Counsel has drawn our attention to the non-statutory complaint dated 7th August, 2000 and the statutory complaint 7th February, 2001, orders on which were considered vitiated and thus null and void by the Hon'ble First Court. Thus, according to the learned Senior Counsel, all aspects of the C.R.s need resurrection for years 1985 to 2000.
35. Finally it has been submitted by the learned Senior Counsel that, the appellant/writ petitioner had been adversely affected by the change in policy in assessing of his A.C.R. during his stay in U.S.A. as M/DA and writ petitioner was unequally treated amongst equals with his batch-mates for consideration of his case for being promoted to the rank of Major General and subsequently to the higher ranks. According to the learned Senior Counsel, the Hon'ble First Court, while directing fresh assessment of writ petitioner in pen-picture for his tenure as ADG, Assam Rifles, on the basis of the changed profile of the writ petitioner, ought to have taken into account the aforementioned aspect of adversarial policy change, which took place during the writ petitioner's tenure in U.S.A. as M/DA.
36. The learned Senior Counsel appearing on behalf of the writ petitioner/respondent had relied on the following decisions:
: (1981)ILLJ103SC (Ajay Hasia Etc. v. Khalid Mujib Sehravardi and Ors. etc.)
: 1980CriLJ1440 (Maru Ram v. Union of India and Ors.)
: [2002]SUPP5SCR605 (Onkarlal Bajaj and Ors. v. Union of India and Anr.)
: (2004)192CTR(SC)492 (Bannari Amman Sugars Ltd. v. Commercial Tax Officer and Ors.)
1972 SLR 44 (State of Assam and Anr. v. Raghava Rajgopalachari).
He has submitted that based on the facts of the instant case and the judgments relied on, as mentioned hereinabove, the appeal of Union of India ought to be dismissed by this Hon'ble Court and the appeal filed by the writ petitioner, being Mat. No. 2255 of 2006, allowed.
37. We have considered the various submissions made by the learned Senior Counsel appearing on behalf of the parties. We have also taken in consideration the order passed by the Hon'ble First Court.
38. What needs to be decided in the instant case is whether there has been any arbitrary and selection change of policy from time to time, which squarely affected the writ petitioner, in a manner and in a pattern, based on which, it can be fairly concluded that from time to time he was put to a disadvantageous position, vis-a-vis others similarly situate, due to such adversarial policy change.
39. To look into this aspect one needs to refer to some of the undisputed facts. They are as follows:
1. Writ petitioner signed an Adverse Career Certificate on 6th December, 1995. At the time of signing the Adverse Career Certificate the A.C.R.s of the writ petitioner were maintained in 'figuratives'.
2. The petitioner joined as M/DA to U.S.A. in June, 1996. At that point of time, for the period July, 1996 - June, 1997, his first C.R. as M/DA was endorsed with numerics/figuratives with the ambassador being the Initiating Officer (10), Director General Military Intelligence (DGMI) as Reviewing Officer (RO) and Vice Chief of Army Staff (VCOAS) as Senior Reporting Officer (SRO). He got 9 in his C.R. as numerics assessment which was 'outstanding'. In October, 1997, the numeric assessments as well as box grading in C.R.s were dispensed with by the Chiefs of Staff Committee (COSC) and only pen-picture in C.R.s of officers serving in High Commissions/Embassies were retained, without mentioning about the channel of reporting. Incidentally, only army dispensed with such figurative assessments, while navy and air force did not.
3. From the order dated 18th December, 2001, passed by the Deputy Secretary, Government of India, in Brigadier K.S. Sindhu's case, being an annexure to the supplementary affidavit affirmed by the writ petitioner/respondent on 10th January, 2007, it appears that the 1967 batch officers (to which the writ petitioner belonged) were first considered ('Look') for N.D.C. 1997, and such consideration had taken place in 1996, which is a matter of record. It also appears that the second mandatory 'Look' for N.D.C. was given to Brigadier Sindhu for N.D.C. 1998 in the year 1997, which is also a matter of record.
4. The writ petitioner returned to India in September, 1999 and found that his C.R.s were marked 'blank' for the two years, i.e., July, 1996-June, 1997 and July, 1997-June, 1998, while other officers of his batch were marked numerically/figuratively, for the same period. It is noteworthy to mention here that the Army authorities had dispensed with the figurative assessments in respect of the said period, of the M/DA only.
5. The writ petitioner made representations on October, 1999 with regard to his C.R.s not containing numeric/figurative assessments. He wrote thrice to the Military Secretary, between December, 1999 and May, 2000, to convert the pen-picture C.R.s to numerics/figurative, so that an average could be worked out to ensure an equal comparison with his other batch-mates.
6. The period of writ petitioner's service in United States of America as M/DA was considered to be an 'Extra Regimental Employment'. On 19th December, 2002, the Military Secretary Branch came out with a policy with regard to initiation/endorsement of C.R.s by reporting officers, other than Army Officers, wherein it was clarified that all reporting officers, including Army Officers as well as officers, other than army will fill up only the pen-picture and were excluded from reporting all figuratives and recommendations for promotion and, employment while rendering C.R.s on officers tenanting these appointments. The said policy decision in the form of order dated 19th December, 1992 was admittedly applicable to various appointments including ADG, Assam Rifles. Subsequently by another order dated 30th December, 2002, Military Secretary's Branch issued an order by which the channel of reporting to the post of DG, Assam Rifles and ADG, Assam Rifles was changed. The writ petitioner moved to Assam Rifles and assumed charge on 10th January, 2003.
7. It appears from the Military Secretary's Branch, Army Head Quarter's letter dated 21st April, 2005 that the figurative assessments for all officers (Major Generals and below) were reintroduced, w.e.f. 28th January, 2005. In this letter dated 21st April, 2005 at paragraph one it may be seen that reference was made to the earlier policy letter dated 19th December, 2002.
40. We shall now deal with the various judgments cited by the learned Senior Counsel on behalf of the parties.
41. In the judgment rendered by the Hon'ble Supreme Court in the case of Nagendra Nath Bora and Anr. v. Commissioner of Hills Division and Appeals, Assam and Ors. reported in : [1958]1SCR1240 reliance has been placed by the learned Senior Counsel of Union of India on paragraph 17 of the judgment which is set out hereinbelow:.The next ground of attack against the order of the High Court under appeal, was that the High Court had erred in coming to the conclusion that there had been a failure of natural justice. In this connection, the High Court has made reference to the several affidavits filed on either side, and the order in which had been filed, and the use made of those affidavits or counter-affidavits. As already indicated, the rules make no provisions for the reception of evidence oral or documentary, or the hearing of oral arguments, or even for the issue of notice of the hearing to the parties concerned. The entire proceedings are marked by a complete lack of formality. The several authorities have been left to their own resources to make the best selection. In this connection, reference may be made to the observations of this Court in the case of New Prakash Transport Co. Ltd. v. New Suwarna Transport Co. Ltd. : [1957]1SCR98 . In that case, this Court has laid down that the rules of natural justice vary with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened, should be decided not under any pre-conceived notions, but in the light of the statutory rules and provisions. In the instant case, no such rules have been brought to our notice, which could be said to have been contravened by the appellate authority. Simply because it viewed a case in a particular light which may not be acceptable to another independent Tribunal, is no ground for interference either under Article 226 or Article 227 of the Constitution....
From the law laid down by the Hon'ble Supreme Court in the aforementioned judgment it is clear that the question as to whether or not any rule of natural justice had been contravened, should not be decided under any pre-conceived notions, but in the light of the statutory rules and provisions. This proposition of law, according to us, has no manner of application in the facts and circumstances of this case, where nothing is being decided under any pre-conceived notions.
42. The next judgment relied on by the learned Senior Counsel appearing on behalf of the Union of India is in the case of. Major General I.P.S. Dewan v. Union of India and Ors. : [1995]2SCR532 . The learned senior Counsel has specifically relied on paragraphs No. 10, 11, 12, 13 and 18 of the said judgment. In the facts of that cese a Major General of the Indian Armed Forces was aggrieved with denial of promotion to the rank of Lieutenant General only on account of adverse remarks made by a General on a particular date i.e., on 11.5.1993, who was the Chief of Army Staff. It was the case of the writ petitioner being the appellant before the Hon'ble Supreme Court, that while making the said adverse report, the procedure prescribed by the relevant rules was not followed nor were the principles of natural justice. He, therefore, prayed for expunction of the said remarks and promotion to the rank of Lieutenant General. It was in this factual background the Hon'ble Supreme Court in the paragraphs relied on by the learned Senior Counsel observed that the adverse remarks were based not on mere observation but upon the report of a Court of Enquiry. The Hon'ble Supreme Court held that principle of natural justice was not violated, in the facts of that case, since the appellant/writ petitioner could and did in fact, submit a statutory complaint against the remarks to the Central Government. With regard to the grievance that the appellant/writ petitioner's statutory complaint ought to have been considered and disposed of before his case was considered by the Selection Board, the Hon'ble Supreme Court held that at best the said objection was merely technical. Moreover, the Hon'ble Supreme Court in deciding the judgment noted that there was no allegation of mala fides or arbitrariness levelled against the Chief of the Army Staff, who made the said remarks. It was in this factual backdrop that the Hon'ble Supreme Court decided to dismiss the appeal of the appellant/writ petitioner.
43. With regard to the next judgment cited by the learned Senior Counsel appearing on behalf of the Union of India in the case of Col. A.S. Sangwan v. Union of India and Ors. reported in 1980 (Supp) SCC 559 (paragraphs 2 & 4), the Hon'ble Supreme Court in the facts of that case was dealing with competing claims of two officers of the Armed Forces. In that factual background the Hon'ble Supreme Court, inter alia, held that the policy statement of 1964, although not issued under any rules or regulations or statute, was nevertheless an executive policy and the executive power of Union of India was wide and pursuant to its power it could make such a policy when it was untrammelled by any statute or rule. While agreeing with the submission of the Union of India, the Hon'ble Supreme Court held that there was no bar to its changing the policy formulated in 1964, if there were good and weighty reasons for doing so (emphasis supplied by us). The Hon'ble Supreme Court further held in the said judgment that such policy change was entirely within the reasonable discretion of the Union of India (emphasis supplied by us). The Supreme Court in the judgment has also held that the Union of India may stick to an earlier policy or give it up. The Supreme Court however also observed that one imperative of the Constitution implicit in Article 14 is that if it does change its policy it must do so fairly and should not give the impression that it was acting with any ulterior criteria or arbitrarily. The Hon'ble Supreme Court further observed that this object was achieved if the new policy, assuming Government wanted to frame a new policy, was made in the same way in which the earlier policy was made and not only made but made known. After all, what is done in secret is often suspected of being capricious or mala fide. So, whatever policy was made should be done fairly and made known to those concerned. It was in this background, the Hon'ble Supreme Court made it clear that while Central Government was beyond the forbiddance of the Court from making or changing its policy in regard to the Directorate of Military Farms, or in the choice of promotion of Brigadiers, it had to act fairly as every administrative act must be done (emphasis supplied by us).
44. The last judgment cited by the learned Senior Counsel appearing on behalf of the Union of India is in the case of State of Rajasthan v. Sriram Verma and Anr. reported in : (1997)IILLJ352SC . The learned Senior Counsel has relied on paragraph 12 of the said judgment. In the facts of that case an officer belonging to the Rajasthan Administrative Service had challenged an order by which 13 (thirteen) officers were selected and appointed in senior pay scale subject to review and revision for the year 1990-91 as prescribed in the separate list mentioned in the Rule 28B(11)(b) of Rajasthan Administrative Services Rules, 1954. 13(thirteen) officers selected and appointed under the said order were mentioned under two categories separately. 9(Nine) officers were mentioned under the heading 'on the basis of seniority and merit' and 4(four) officers were mentioned under the heading 'on the basis of merit'. Among the 9(nine) officers promoted on the basis of seniority and merit, a particular officer belonging to the Scheduled Caste was mentioned at serial No. 8. Since the respondent was also a member of Scheduled Caste he preferred an appeal against the said order before the Rajasthan Civil Services Appellate Tribunal wherein he complained that his junior had been promoted while he himself had been overlooked wrongly. It was on this factual backdrop the matter went up before the Rajasthan High Court and the State of Rajasthan being aggrieved by the order passed by the Rajasthan High Court approached the Hon'ble Supreme Court and the Hon'ble Supreme Court rendered its judgment. The Hon'ble Supreme Court while dealing with the matter, inter alia, held as follows:.It is equally true that even in administrative matters, this Court has been insisting upon the duty of act fairly which may sometimes require an opportunity of hearing. But having regard to the nature of function of selection and taking into consideration the fact that the only right of the Government servant is a right to be considered and not a right to promotion- we do not think it possible to infer the requirement of recording reasons in all situations. At the same time, we think that it is always desirable that procedure adopted by the selecting body should be fair and such as to lend credence to the process; it should be such as to inspire confidence in all concerned within the practicable limits....
While giving such suggestion to the State of Rajasthan, the Hon'ble Supreme Court further held as follows:.It must also be understood clearly that ours is a suggestion to avoid complaints of arbitrariness and primarily with a view to make the process credible....
45. On the other hand, the learned senior Counsel appearing on behalf of the writ petitioner has relied on the judgment of the Hon'ble Supreme Court in the Ajay Hasia's case reported in AIR 1981 SC 487. In this well-known judgment the Hon'ble Supreme Court was, inter alia, dealing with the question whether a society registered under the Societies Registration Act was an authority falling within the definition of 'State' as defined under Article 12 of the Constitution of India. The Hon'ble Supreme Court in the said judgment, held that where a Corporation is an instrumentality or agency of the Government it must be held to be an authority within the meaning of Article 12 and hence subject to the same basic obligation to obey the fundamental rights as the Government. The Hon'ble Supreme Court while deal with this aspect has observed the Constitutional limitations of the Government which was bound by the basic obligation to obey the Constitutional mandate of the fundamental rights assigned in Part-III of the Constitution. In the said judgment the Hon'ble Supreme Court, inter alia, relied on an earlier judgment of the Hon'ble Supreme Court reported in AIR 1974 SC 555 which had dealt with Article 14 of the Constitution of India and had pointed out that said Article had a highly activist magnitude and embodied a guarantee against arbitrariness. The reliance on this judgment may be found in paragraph 16 of Ajay Hasia's case. Another earlier judgment of the Hon'ble Supreme Court had also been relied on the Ajay Hasia's case which is also found in paragraph 16 and that is, Maneka Gandhi's case reported in AIR 1978 SC 597. In paragraph 16 of Ajay Hasia's case the Hon'ble Supreme Court while relying on the Maneka Gandhi's case has quoted from the said judgment as follows:.It must therefore now be taken to be well-settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the Courts is not paraphrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an 'authority' under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire Constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution....
46. The next judgment relied on by the learned Senior Counsel appearing on behalf of the writ petitioner is reported in : 1980CriLJ1440 (Maru Ram v. Union of India and Ors.). In the said judgment the Hon'ble Supreme Court was looking into Section 433A of the Code of Criminal Procedure, as inserted by amendment Act of 1978 and the legislative competence of Parliament under Article 246(2) to make laws with respect to any of the matters enumerated in List III of Schedule 7, especially Entry 2. The Hon'ble Supreme Court in the said judgment considered the two powers, one Constitutional and the other statutory and held such powers to be co-extensive. However, the Hon'ble Supreme Court held that the two things might be similar but not the same. The power which is the creature of the Code could not be equated with the high prerogative power vested by the Constitution in the highest functionaries of the Union and the States. The Hon'ble Supreme Court further held that the source was different, the substance was different, the strength was different, although the stream might have been flowing along the same bed.
47. The next judgment relied on by the learned Senior Counsel appearing on behalf of the writ petitioner is reported in : [2002]SUPP5SCR605 (Onkar Lal Bajaj and Ors. v. Union of India and Anr.). The Hon'ble Supreme Court in this judgment was dealing with the factual issue of allotment of retail outlets, distributorships, dealerships of petroleum products by the Government of India. In the said judgment the Hon'ble Supreme Court, inter alia, considered the Article 14 of the Constitution of India and the scope of judicial review of an administrative action when there was an allegation of arbitrary/discretionary exercise of power by the State and the manner of exercise of such power. Paragraphs 27 and 36 of the said judgment are set out hereinbelow:.Article 14 guarantees to everyone equality before law. Unequals cannot be clubbed. The proposition is well-settled and does not require reference to any precedent though many decisions were cited. Likewise, an arbitrary exercise of executive power deserves to be quashed, is a proposition which again does not require support of any precedent. It is equally well-settled that an order passed without application of mind deserves to be annulled being an arbitrary exercise of power. At the same time, we have no difficulty in accepting the proposition urged on behalf of the Government that if two views are possible and the Government takes one of it, it would not be amenable to judicial review on the ground that the other view, according to the Court, is a better view.....The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate by it as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate....
48. The Hon'ble Supreme Court in the said judgment went on to hold that the Government should not have exercised the power in a manner so as to enable it to escape the scrutiny of allotments exposed by the media. The Hon'ble Supreme Court further held that no arbitrary exercise of power should intervene to prevent the attainment of justice.
49. The learned Senior Counsel for the writ petitioner has also relied on the judgment of the Hon'ble Supreme Court reported in : (2004)192CTR(SC)492 (Bannari Amman Sugars Ltd. v. Commercial Tax Officer and Ors.). In the said judgment the Hon'ble Supreme Court, inter alia, observed as follows in paragraphs 9 and 10:.While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenant. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.....Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary....
50. The last judgment relied on by the learned Senior Counsel for the writ petitioner is reported in 1972 SLR 44 (State of Assam and Anr. v. Raghava Rajgopalachari). In the facts of that case the Hon'ble Supreme Court considering a case of an employee of Government of Assam who was suspended pending criminal trial and was subsequently convicted, but ultimately acquitted. The question that came up for consideration before the Hon'ble Supreme Court in an appeal filed by the State of Assam was whether the Government servant was entitled to full pay and allowances if the Government servant was not fully exonerated. The Hon'ble Supreme Court held that it was for the Government to consider what proportion of pay and allowances was to be given to the Government servant if he was not fully exonerated and what period of absence should be treated as duty. The Hon'ble Supreme Court also went on to hold that the respondent to a writ petition could not be allowed to attack its own under as a respondent. The aforementioned judgment has been relied on by the learned Senior Counsel for the petitioner in view of the submissions recorded before the Hon'ble First Court made by the learned Additional Solicitor General which is contrary to the pleadings on record and contrary to the stand of the respondent authorities as appearing on record.
51. We have considered the facts of the instant case as presented before the Hon'ble First Court. We have also taken into consideration the submissions made by the parties before us and also taken note of facts of the case, as they unfolded time to time, some of which were brought to light only before us, and we are of the opinion that the undisputed facts of the instant case reveal that there has been arbitrary and selective change of policy from time to time, which squarely affected the writ petitioner.
52. Such selective change of policy was made in a manner and in a pattern which clearly indicates that from time to time the writ petitioner was put to a disadvantageous position vis-a-vis others similarly situate.
53. Although the writ petitioner signed an Adverse Career Certificate on 6th December, 1995 before proceeding to United States of America where he joined in June, 1996 as M/DA, the policy change was effected by the authorities in October, 1997, which affected the writ petitioner, since pursuant to such change of policy, only army, under which the writ petitioner belonged, dispensed with figurative assessments, while the navy and air force did not and pen-picture in C.R.s was retained in respect of officers serving in High Commissions/Embassies without mentioning about the channel of reporting.
54. From the supplementary affidavit affirmed on 10th January, 2007, filed by the writ petitioner before this Bench, it becomes clear that the 1967 batch officers (to which the writ petitioner belonged) were considered for N.D.C. commencing from 1997 (N.D.C. 37/1999) and therefore the contention of Union of India that the 1967 batch of officers were first considered (Look) for N.D.C. commencing from 1999, in October 1998, is wholly incorrect. This is also corroborated by the document annexed to the said supplementary affidavit, being an order dated 18th December, 2002, passed by Government of India in respect of Brigadier K.S. Sindhu's statutory complaint.
55. The undisputed facts, as stated hereinbefore in detail, also reveals that the selective change of policy from time to time appears to have followed every relevant posting of the writ petitioner, so as to squarely affect him and the stand taken by the Union of India before the Hon'ble first Court with regard to the writ petitioner having been considered for first 'Look' for NDC in October, 1998 and final 'Look' in 1999 when the officers of 1967 batch came up for consideration was wholly incorrect in view of what appears from the order dated 18th December, 2001, passed in Brigadier K.S. Sindhu's case, by Government of India.
56. So far as Section 27 of the Army Act and Defence Service Regulations, paragraph 364, Clauses 10 and 12 are concerned, we are of the opinion that although Clause 12c provides for forwarding the comments with recommendations by the intermediary military authority to the Central Government for final disposal, non-furnishing of such comments by the said authority to the complainant who lodges the statutory complaint, tantamounts to violation of principles of natural justice. This is because, the comments that are furnished by the intermediary military authority to the Central Government, are essential to the complainant, so as to enable that person to know what has been commented against him/her by the said military authority, while forwarding the complaint to the Government of India for final disposal.
57. The aspect of delay in filing the writ petition, as sought to be raised by the learned Senior Counsel for Union of India before this Bench, in our opinion does not stand to reason, in view of the fact that such point was never raised before the Hon'ble First Court and from the facts and circumstances of the instant case we are of the opinion that filing of the writ petition before the Hon'ble First Court was a culmination of chain of events, the entire set of facts which reveal, arbitrary and mala fide treatment meted out to the writ petitioner.
58. In the circumstances we are of the opinion that the appeal filed by Umon of India, being M.A.T. No. 2965 of 2006, for setting aside the impugned judgment and order dated 25th April, 2006 passed by the Hon'ble First Court, in W.P. No. 25155(W) of 2005, cannot be sustained and therefore the same stands dismissed.
59. Insofar as the appeal filed by the writ petitioner, being M.A.T. No. 2255 of 2006 is concerned, We are of the opinion that in the facts and circumstances of the case, the Hon'ble First Court ought to have decided as to whether the posting of the writ petitioner as M/DA to U.S.A. should have been treated as E.R.E., or was to be regarded as graded staff appointment, since treating of the writ petitioner's tenure as M/DA in U.S.A. as 'E.R.E.' was one of the reasons for the military authorities to non-select him in N.D.C. 1999 for 2000. It is pertinent to note that the authorities failed to produce any document, either before the Hon'ble First Court or before this Bench, stating that the appointment of M/DAs are in the nature of E.R.E. The contention of the writ petitioner with regard to the fact that no differentiation had ever been made in the past in this respect, whenever C.R.s for consideration of N.D.C. were asked for by the Deputy Military Secretary (X), also remained unanswered by the concerned authorities.
60. We are also of the opinion that in the facts and circumstances of the instant case, the Hon'ble First Court erred while upholding the refusal of first 'Look' for N.D.C. 1999 and holding, there was no illegality in not allowing conversion of figurative assessment into numeric assessment for 1997-1999, by virtue of which refusal by the concerned authorities, the writ petitioner was put to a disadvantageous position during N.D.C. consideration in 1999 and subsequent consideration for promotion to rank of Major General. The Hon'ble First Court did not take into consideration that insofar as the writ petitioner is concerned, he had moved to USA with a known set of rules for assessment of his ACR and without informing him, the authorities could not mark his ACR in 'gen-picture' which had the effect of keeping a 'blank' in his ACR for 1997-1999.
61. For reasons stated hereinbefore, we are also of the opinion that the Hon'ble First Court erred while observing that the non-selection of the writ petitioner to the rank of Major General from Brigadier in April, 2000 cannot be a vital issue at the point of time of deciding the writ petition, since the writ petitioner was promoted to the rank of Major General in April, 2001. The nonstatutory complaint dated 7th August, 2000 and the statutory complaint dated 7th February, 2001 of the writ petitioner had emphasised this contention of the writ petitioner and the Hon'ble First Court in the impugned judgment and order dated 25th April, 2006, had occasion to consider the orders passed thereupon by the concerned authorities, but did not decide the issue, even though it was specifically raised by the writ petitioner. We are of the opinion that in the facts of the instant case, this issue was needed to be decided by the Hon'ble First Court, by taking the writ petitioner's CRs for the years 1985 to 2000 into consideration.
62. The Hon'ble First Court, while directing fresh assessment of the writ petitioner's performance is pen-picture, during his tenure as ADG, Assam Rifles with complete changed profile as per policy, ought to have held that such change in policy in assessing writ petitioner's A.C.R. had adversely affected him and the writ petitioner was unequally treated amongst equals with his batch-mates at the time of consideration of his case for being promoted to the rank of Major General in the year 2000 and subsequently to higher ranks.
63. In the circumstances, the appeal filed by the writ petitioner being M.A.T. No. 2255 of 2006 stands allowed, to the extent indicated above.
Pinaki Chandra Ghose, J.
I agree.