Surgeon Rear Admiral P. Sivadas Vs. Union of India (Uoi) and ors. - Court Judgment

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constitution of india - article 226 -- writ petition challenging reduction from seriall no. 6 to 7 in the merit list drawn for promotion -- alteration of accommodation of promotion board -- reason for reconsideration not found to be arbitrary or capricious -- writ petition rejected. - - management of hindu kanya maha vidyalaya 1987(32)elt8(sc) .11. it is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. financial commissioner reported as air 1978 p&h 326:-mala fide and calculated suppression of material facts which, if disclosed, would have disentitles the petitioners to the extraordinary remedy under the writ jurisdiction or in any case would have materially affected the merits of both the interim and ultimate relief claimed 'failure to mention all these material facts was neither inadvertent nor was occasioned by any bona fide omission' held that the writ petitioners, in the present case, had by their own conduct disentitled themselves to the relief which they sought to claim. 11. we are also conscious of the intense disappointment caused to the petitioner by the denial of the promotion for which he had been recommended by the board. there is no doubt that the petitioner has an excellent service record and is indeed an able officer and the circumstances of this case has denied him what he perhaps legitimately expected to be his due as per the board's initial recommendation dated 25th april, 2005. thereforee, we hope that the government will reconsider the case of the petitioner and will find means to alleviate the hardship, caused to the petitioner by the selection process, may be by considering him for a post retirement employment in a suitable capacity so that the petitioner's vast experience and undoubted talent is utilised for the good of the nation.mukul mudgal j.1. this writ petition challenges the order of the director general armed forces medical services (hereinafter referred to as the dgafms) dated 7th may, 2005 by which the rank of the petitioner was decreased from 6 to 7 in the merit list drawn for the promotion to the rank of lt. general and equivalent, because of one additional mark awarded to the respondent no. 4, major general h.k. maini for the purposes of promotion to the rank equivalent to that of a lt. general. the petitioner, a doctor by profession, joined the defense services (navy) in its medical corps. during his tenure, he earned regular promotions up to the rank of a rear admiral/equivalent to major general in the army and air vice marshal in the air force on 1st january, 2003. the petitioner was at the relevant time holding the post of rear admiral in the indian navy.2. the brief facts of the case are as under:-(a) the petitioner whose rank is that of surgeon rear admiral, along with 14 others was considered for the next promotion to the rank of lt. general and equivalent, by the selection board on 25th april, 2005 for 5 posts. a merit list was to be drawn for the said purpose, as per clause 15 of the promotion policy of the ministry of defense, government of india (hereinafter referred to as the 'promotion policy'). clause 15 of the promotion policy reads as under:-'15. final overall marks: a merit list of officers considered by the board will be prepared by adding the overall acr average extrapolated out of 90 (para 10), marks for academic achievements out of 5 (para 11 & 12) and marks granted by members out of 5 (para 14).' (b) as per the merit list, the petitioner was placed in the 6th position, whereas the respondent no. 3, lt. general m.p. jai prakash was placed at no. 1 in the merit list but as he was junior to the respondent no. 2, lt. general m.l. chawla in seniority, he had to be placed at no. 2 as per clause 8 of the promotion policy. clause 8 of the promotion policy reads as follows:-'8. numbers to be selected : the promotion board will grade all the officers in the zone of consideration in the order of merit. from the merit list, the number of officers required as per vacancies identified in para 4 above will be selected in the order of merit. in case of a tie, the senior most will take precedence. the rest of the officers in the list will be marked 'ns'. the select list will then be arranged according to seniority for placement on promotion.' (c) thereforee, by virtue of clause 8 of the promotion policy, major general a.p. singh who was 3rd in the merit was due to retire on 30th june, 2005 before the occurrence of vacancy and the vacancy created by him had to be filled in by the officer ranked 6th i.e. the petitioner. the respondent no. 3 would not have been eligible for promotion as he was to retire on 31st may, 2005, thereby bringing respondent no. 4 within the five available posts. thereforee, the names of 7 persons including that of the petitioner who was ranked 6th were sent by the selection board of the dgafms for obtaining the approval of the central govt., as per clause 21 of the promotion policy . clause 21 of the promotion policy reads as under:- '21. on finalization of the proceedings of the promotion board, all proceedings of the board will be forwarded to the ministry of defense for obtaining approval of the central government.' (d) on 2nd may, 2005, the respondent no. 3 lt. gen. m.p. jai prakash who as per merit was at rank 1 based on his acr profile, made a representation to the government complaining about the inaccuracy of the selection procedure. on 7th may, 2005, the additional secretary, defense, acting on the representation of respondent no. 3, took the view that inclusion of two officers on the premise of retirement of two officers in the original merit list of 5 persons before the occurrence of vacancy was incorrect and thereforee requested the board that the selection be 'accordingly reviewed'. the order dated 7th may, 2005 reads as under: 'ministry of defensefurther to our mod id no. 2780/as(1)/2005 dated 6.5.05.2. it is noted that the special promotion board (med) held on 25 apr 05 is based on an incorrect premise that two officers would be retiring before the occurrence of vacancy for their promotion. 3. it is, thereforee, requested that the board be accordingly reviewed. sd/- (ranjit issar)additional secretary (i)cosccopy to:-dgafmsmod id no. 2780/as(i)/2005 dated 7.5.05'(e) on 1st may, 2005 there had been a change in the constitution of the dgafms board leading to a change of member secretary from general j.r.bhardwaj to surgeon vice admiral v.k. singh. the said new board pursuant to the order dated 7th may, 2005 reviewed the weightage of marks of respondent no. 4 and increased the same by one mark thereby bringing respondent no. 4 to position 6 in the list and consequently brought down the petitioner to no. 7, as against rank no. 6 secured originally. since, there were only 5 vacant posts the petitioner was deprived of promotion. the deprivation of its promotion by the selection board on 7th may 2005 has led to the present writ petition.3. the contentions of the petitioner as advanced by his learned counsel shri rakesh tikku, advocate are as follows:-(a) once the recommendations have been made by the duly constituted selection board which had sent the names of first five persons in the merit list along with two or more persons, the government was only required to accord its formal approval, unless the selection board's recommendations were contrary to law. (b) as per clause 21 of the promotion policy, the proceedings of the selection board are only to be 'forwarded' to the ministry of defense for 'obtaining approval' of the central government, which is only a ministerial act. (c) under regulation 109 of the defense services regulations for the army, the central government is not empowered to modify and/or review and/or reject the recommendations of the selection board as there is no clause under regulation 109 unlike clause (e) of regulation 108 which provides for the inherent power of the central government to modify/review the recommendations of the selection board for making selection of officers other than army medical corps., army dental corps and military nursing services. the relevant clauses 108 (d) & (e) and 109 read as follows:-'108. constitution and duties of selection boards.-- selection boards (for officer other than army medical corps, army dental corps and military nursing service) are constituted as required under the order of the chief of the army staff. their composition and duties are given below:-.(e) the assessment of the selection board shall be recommendatory in nature and not binding until approved by the competent authority viz the coas or the central govt as the case may be. (e) the central government of coas have the inherent power to modify review, approve with variation or repeal recommendations of the selection boards.109. constitution and duties of selection boards (medical).-- the director general, armed forces medical services is responsible for convening promotion appointment and regular commission boards, as under:-(a) selection board no. 1-- for the appointment of dgafms and selection for promotion of other appointments in the rank of lt. gen (or equivalent) of the armed forces medical services. .' thus, as per clauses 108 (d) & (e) set out above, the assessment of selection board is recommendatory and subject to approval or modification by the central government. clause 108 applies to services other than medical corps. but regulation 109 deals specifically with the selection board (medical) and there is no such corresponding clause therein. this omission is deliberate and has been obviously done so as to give due respect to the composition and constitution of the selection board which comprised of all the three chiefs of the defense services and in addition included dgafms. (d) even if the selection board was empowered to review its order, the board should have confined itself to the ambit of the order of the central government directing the review regarding the calculation of the resultant vacancies. even in such review the board was not competent to make a fresh assessment and alter the marks granted by the previously held board. the board was not empowered to revaluate its entire recommendation. the petitioner relies on the principles of law laid down in the following judgments:'(i) kuntesh gupta v. management of hindu kanya maha vidyalaya : 1987(32)elt8(sc) ..11. it is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. the vice chancellor in considering the question of approval of an order of dismissal of the principal, acts as a quasi-judicial authority. it is not disputed that the provisions of the u.p. state universities act, 1973 or of the statutes of the university do not confer any power of review on the vice-chancellor. in the circumstances, it must be held that the vice-chancellor acted wholly without jurisdiction in reviewing her order dated january 24, 1987 by her order dated march 7, 1987. the said order of the vice-chancellor dated march 7, 1987 was a nullity. (ii) abha tyagi v. delhi energy development agency and anr., 2002 iii ad (del) 641. .18. the supreme court has held in dr. (smt.) kuntesh gupta's case (supra) that power of review cannot be exercised unless it is specifically conferred. this view has been followed by the division bench of this court in dhanpatmal virmani senior secondary school's case (supra). the competent authority undoubtedly derives its powers as granted in terms of the said act. no such power of review has been conferred under the said act. in view of the competent authority having exercised its power, in the absence of a power of review, the authority could not have reviewed its earlier decision.' 4. the contentions of the respondent as advanced by mr ghulam vahanvati, the solicitor general are as under:-a) that as per section 23 of the navy act and regulation 235 to 240 of the regulation for navy, a naval officer can file a statutory complaint to the central government for the redressal of his grievance. this remedy was not exhausted by the petitioner before approaching this court. hence the present petition filed by the petitioner deserves to be dismissed.b) since the petitioner was aggrieved by the decision of the special promotion board(medical) held by the dgafms, the dgafms being a necessary party should have been made a party to the petition. since the dgafms has not been made a party to this petition, the same deserves to be dismissed.c) the petitioner was considered for promotion by the special promotion board in the previous year also i.e. 2004, but was not considered because he was lower in overall merit. the petitioner has not disclosed this material fact in the present petition. hence the writ petition should be dismissed at the outset due to suppression of material facts by the petitioner. the respondent relies upon the following extract of the judgment in charanji lal v. financial commissioner reported as air 1978 p&h; 326:-'mala fide and calculated suppression of material facts which, if disclosed, would have disentitles the petitioners to the extraordinary remedy under the writ jurisdiction or in any case would have materially affected the merits of both the interim and ultimate relief claimed 'failure to mention all these material facts was neither inadvertent nor was occasioned by any bona fide omission' held that the writ petitioners, in the present case, had by their own conduct disentitled themselves to the relief which they sought to claim.' d) the special promotion board selects the candidate on the basis of recommendations based on the inputs provided in the approach documents including the acr merit ratings. as per the clause 21 of the promotion policy the proceedings are submitted to the government for approval and scrutiny. e) before approving the decision of the promotion board, the government can refer the proceedings back to the board for review and rectification before approving the same. the selection process is only complete when the proceedings are finally approved by the government i.e. by the appointment committee of the cabinet. f) on 2nd may, 2005, the government received a representation from respondent no.3 lt. general m.p. jaiprakash which inter alias pointed out that the calculation of the number of vacancies and a statement that the two officers would be retiring before vacancies arise, was not correct. a copy of the representation was sent to the chief of staff committee under the cover note dated 6th may, 2005. the defense secretary, on consideration of the said representation of lt. general jaiprakash decided on 7th may 2005 that the board proceedings should be sent back to the chief of staff committee for review. g) the entire proceedings of the board leading to the recommendation dated 25th april, 2005 were based on an incorrect premise that the two officers in the merit list were retiring before the occurrence of the vacancy. this erroneous information caused injustice to the most meritorious officer, lt. general, m.p. jaiprakash. h) on review of its decision dated 25th april, 2005, the board decided to award an additional mark to major general h.k. maini, because the marks awarded to him previously by the board were not commensurate with his overall profile. the award of an additional mark brought him to rank 6 from rank 7. 5. the learned solicitor general has confined himself to the pleas on merits averred in the additional affidavit. 6. the petitioner has contended that the order of the dgafms dated 7th may, 2005 is null and void because it reviewed its earlier order dated 25th april, 2005 by awarding one additional mark to respondent no. 4. the scope of the review had to be confined in view of order of the central government dated 7th may 2005 directing the review regarding the calculation of the resultant vacancies and the review so ordered could not be utilised for a revluation of the entire list done by awarding an additional mark to the respondent no. 4. in our view this contention of the petitioner cannot be accepted since the nature of review proceedings under the code of civil procedure is different from the nature of review in administrative proceedings such as the process of selection of candidates for promotion, as is the case in the present petition. a review under order xlvii of the code of civil procedure is available to an aggrieved person only in case of a decree or an order or a decision on a reference from court of small causes. a review, under the administrative proceedings however, cannot be given such a narrow interpretation. thereforee, we find that the reason given by the board for reviewing its decision i.e. that the previous order of the dgafmc dated 25th april, 2005 was causing injustice to respondent no. 3 is correct and sustainable and is a germane reason.7. we are also of the view that the order dated 7th may, 2005 pertains to the review of the proceedings board which was previously constituted, and could not be merely confined to recalculation of the available vacancies as it was based on erroneous assumption of the number of vacancies. 8. mr. tiku, learned counsel for the petitioner has further contended that the finalization of the proceedings of the promotion board was merely a ministerial function and accordingly the government approval to the recommendations made by the proceedings of the promotion board merely a formality. we are of the view that this interpretation urged by the learned counsel for the petitioner cannot be accepted. the very purpose of obtaining approval of the central government postulates an application of mind by the central government to the approval sought and not merely a mechanical approval of the recommendation. the central government, in our view, is required to take note of all relevant circumstances having a bearing on the recommendations, the effect of such recommendations on the force and the promotional prospects of all other affected officers. in our view, the reason advanced by the government for altering the effect of the recommendation of the promotion board dated 25th april 2005 namely the denial of an opportunity to lt. general m.p. jai prakash was a relevant circumstance and the effect of the recommendation on the promotional prospects of lt. general m.p. jai prakash who was indubitably an outstanding officer was rightly taken into account by the central government. accordingly, this plea of the learned counsel for the petitioner cannot be sustained.9. in so far as the petitioner's plea about the regulation 109 not giving the power to the government to approve or modify the selection board proceedings is concerned, it was not raised by the petitioner in the writ petition and consequently there is no averment with respect to it in the counter affidavit of the respondent. in any event in so far as the petitioner's plea about regulation 109 not giving the power to the government to approve or modify the selection board proceedings is concerned, based on the reading of regulation 109, we are of the view that clause 21 of the promotion policy which requires the approval by the government has inherent in it the power to modify or order the review of the recommendation of the board and the power to approve indicates application of mind to the recommendation and not merely a pure ministerial act of automatic approval.10. the learned counsel for the petitioner further submitted that the central government does not have inherent powers of review. in our view, the very fact that the approval has to be accorded under clause 21 of the promotion policy postulates that if necessary the government can direct the review which really is in the nature of reconsideration. in this context, the two judgments relied upon by the learned counsel for the petitioner in the case of kuntesh gupta (supra) relate to exercise of statutory powers under u.p. state universities act. the said narrow definition delineating of a power of statutory review cannot be ipso facto be implanted in the administrative review of a recommendation for promotion. abha tyagi's case (supra) took the view that unless a power of review is conferred specifically it cannot be exercised. we have already held that inherent in the power of approval was the power to direct review/reconsideration and hence abha tyagi's case has no application to the facts of the present case. in our view, in such a case a recommendation for review can be considered to be a recommendation for reconsideration. such a reconsideration was rightly done within the ambit of scope of clause 21 by the central government. the reason given by the central government for the review/reconsideration cannot be termed to be a reason which is irrelevant, arbitrary or capricious so as to invite the interference of this court under article 226 of the constitution of india. the writ petition is accordingly dismissed. 11. we are also conscious of the intense disappointment caused to the petitioner by the denial of the promotion for which he had been recommended by the board. there is no doubt that the petitioner has an excellent service record and is indeed an able officer and the circumstances of this case has denied him what he perhaps legitimately expected to be his due as per the board's initial recommendation dated 25th april, 2005. thereforee, we hope that the government will reconsider the case of the petitioner and will find means to alleviate the hardship, caused to the petitioner by the selection process, may be by considering him for a post retirement employment in a suitable capacity so that the petitioner's vast experience and undoubted talent is utilised for the good of the nation.