Union Of India vs Arun Roye

UNION OF INDIA & ORS. .... Appellant(s) Versus

MAJOR GENERAL ARUN ROYE & ORS. …. Respondent (s) JUDGMENT

L. NAGESWARA RAO, J.

1. The First Respondent was commissioned as Second

Lieutenant in the Army through the National Defence Academy

on 11.06.1967. He was promoted as Lieutenant Colonel,

Colonel and Brigadier. While he was working as Brigadier, he

was appointed as Defence Attaché/Military Attaché in the

United States of America on 16.05.1996. Before proceeding to

join the said post, the First Respondent signed an Adverse

Career Certificate, stating that he will accept any adverse

effect on his future career in terms of not being adequately

exercised, non-detailment on career courses/subsequent

courses, and delay in subsequent promotion etc. During the

1 course of his stay in the USA, the Chief of Army Staff (‘COAS’)

approved a change in the assessment of officers, by doing

away with figurative assessment of Defence Attachés/Military

Attachés in the matter of finalizing their Annual Confidential

Reports. By an office order dated 07.04.1998, the method of

figurative assessment in personal qualities and box-grading of

Defence Attachés/Military Attachés was dispensed with. Pen-

picture assessment of officers holding the listed appointments

was retained. After returning to India on completion of his

tenure as a Defence Attaché/Military Attaché, the First

Respondent requested for a ‘look’ for the National Defence

College (NDC), 2000 course.

2. The First Respondent was considered for nomination to

NDC, 2000 course. The First Respondent voiced his grievance

regarding the dispensation of figurative assessment of his

confidential reports as Defence Attaché/Military Attaché. In

response to the representation made by the First Respondent,

the Military Secretary informed the First Respondent that

figurative assessment in the confidential reports of Defence

Attachés/Military Attachés was re-introduced in 2000 with

prospective effect.

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3. The First Respondent was considered for promotion as

Major General but was not empanelled due to the absence of

NDC weightage. A Non-Statutory Complaint was preferred by

the First Respondent, aggrieved by his non-empanelment as

Major General, which was rejected on 07.11.2000. The First

Respondent was further denied consideration for nomination to

NDC for the year 2001. The First Respondent filed a Statutory

Complaint regarding his supersession to the post of Major

General, in which he contended that the order by which the

Non-Statutory Complaint was rejected did not consider various

claims made by him, including the one pertaining to conversion

of the confidential reports for the years 1997 and 1998. He

emphasized the injustice done to him by not considering his

nomination for the NDC course during his tenure as Defence

Attaché/Military Attaché. He raised other grounds in support

of his case that he was unjustly superseded. Pursuant to the

recommendations of the Special Selection Board, the First

Respondent was found fit for promotion as Major General. On

promotion, the First Respondent was posted as GOC, 11 th

Infantry Division. The Statutory Complaint filed by the First

Respondent regarding his supersession for promotion to Major

3 General in the year 2000 was rejected by the Chief of Army

Staff by a letter dated 14.03.2000.

4. The First Respondent was temporarily promoted as

Deputy Director General, Assam Rifles on 26.09.2002 and later

posted as Additional Director General, Assam Rifles on

10.01.2003. During the period of his service as Deputy

Director General, Assam Rifles, there was again a change in

the method of assessment of officers holding certain posts

including the post of Deputy Director General, Assam Rifles to

the detriment of the First Respondent.

5. The First Respondent was considered by the Special

Selection Board for promotion to the post of Lieutenant General

but he was not empanelled. The statutory complaints filed by

the First Respondent aggrieved by his non-empanelment as

Lieutenant General were rejected.

6. Assailing the legality of the orders rejecting the statutory

complaints and his non-empanelment as Lieutenant General,

the First Respondent filed a Writ Petition. During the pendency

of the Writ Petition in the High Court, the third Statutory

Complaint filed by the First Respondent was rejected on

02.02.2006 and the First Respondent was not selected for

4 promotion as Acting Lieutenant General by the Special

Selection Board meeting that was held in February, 2006.

7. The learned Single Judge of the High Court allowed the

Writ Petition and directed the Appellants to change the profile

of the First Respondent. The Appellants were further directed

to reconsider the claim of the First Respondent for promotion to

the rank of Lieutenant General in the light of the findings

recorded in the judgment. The Appellants were directed to

arrange a meeting of the Special Selection Board on or before

29.04.2006 to consider the claim of the First Respondent for

promotion to the rank of Lieutenant General on the basis of the

changed profile of the First Respondent. The members of the

Special Selection Board were specifically restrained from

considering the NDC aspect as the second mandatory look for

NDC was illegally denied to the First Respondent. The learned

Single Judge further directed that the figurative assessment in

the confidential reports of the First Respondent by the GOC-in-

C, Eastern Command and COAS when the First Respondent was

posted as ADG, Assam Rifles shall also not be taken into

consideration at the time of relative assessment of the

candidates for the purpose of granting promotion to the post of

Lieutenant General. In case the Special Selection Board

5 declared the First Respondent fit for promotion to the rank of

Lieutenant General on the basis of the changed profile in terms

of the order passed by the High Court, the First Respondent

was held entitled to enjoy all the benefits of the promotional

post in the rank of Lieutenant General. As the date of

retirement of the First Respondent on attaining the age of

superannuation was on the anvil, the Appellants were given

liberty to issue formal orders of promotion even after the date

of his retirement with retrospective effect.

8. Both the Appellants as well as the First Respondent filed

appeals against the judgment of the learned Single Judge.

While dismissing the appeal filed by the Appellants and

allowing the appeal filed by the First Respondent, a Division

Bench of the High Court affirmed the directions issued by the

learned Single Judge. The Division Bench further observed

that the learned Single Judge went wrong in not deciding

whether the posting of the First Respondent as Defence

Attaché/Military Attaché to the USA should have been treated

as an Extra-Regimental Employment. The Division Bench

further held that the learned Single Judge had erroneously

upheld the decision of the Appellants in refusing a first look to

the First Respondent for NDC, 2000 on the ground that there

6 was no illegality in not allowing conversion of figurative

assessment into numeric assessment for the years 1997-1999.

The Division Bench was of the opinion that the issue pertaining

to the non-selection of the First Respondent to the rank of

Major General in April, 2000 ought not to have been ignored by

the learned Single Judge by treating it as a non-vital issue. The

Appellants are before this Court challenging the judgment of

the learned Single Judge as affirmed by the Division Bench.

The Appellants are also aggrieved by the observations made

by the Division Bench while allowing the appeal of the First

Respondent.

9. It would be convenient to deal with each of the relevant

issues separately for a proper understanding of the dispute.

Confidential Reports

10. By an office order dated 07.04.1998 from the Army

Headquarters, the Chief of the Army Staff approved the

dispensation with the system of figurative assessment in

personal qualities and box-grading while retaining the pen-

picture in the confidential reports of the officers holding certain

specific appointments. At that point of time, the First

Respondent was working as Defence Attaché/Military Attaché

in USA. The contention of the First Respondent before the High

7 Court was that the figurative assessment was dispensed with

to cause prejudice to his service prospects, which would entail

an advantage to his colleagues. When the First Respondent

made a representation to the authorities complaining of

dispensation of figurative assessment in the ACRs of the

Defence Attaché/Military Attaché, he was informed that the

figurative assessment was re-introduced with effect from

01.01.2000, which would benefit his colleagues. The change

in assessment, according to the First Respondent, seriously

affected his career prospects. It was the further contention of

the First Respondent before the High Court that he was not

considered for nomination to NDC course and was not

empanelled as a Major General in view of the change of the

method of assessment of the confidential reports during 1997-

1999. The First Respondent sought for conversion of the

assessments made by the Ambassador to USA for the years

1997-1998, 1998-1999 to numeric quotients, which was not

allowed by the High Court as the Regulations do not permit

such conversion.

11. After being moved on temporary duty to the post of

Additional Director General, Assam Rifles the channel of

reporting for the post of Additional Director General, Assam

8 Rifles was changed to the detriment of the First Respondent.

On 19.12.2002, an order was issued by the Military Secretary

Branch regarding the initiation/endorsement of the confidential

reports by reporting officers other than the Army officers. It

was clarified in the said order that all reporting officers will fill

up only the pen-picture and are prevented from reporting in

figurative. The First Respondent contended that the GOC-in-C,

Eastern Command and the Chief of Army Staff made

assessments in figurative though they were not authorized to

do so. As the assessment in figurative was contrary to the

policy, the First Respondent sought expunction of the

assessment that was made by the GOC-in-C and COAS.

Accepting the submission of the First Respondent the learned

Single Judge held that the GOC-in-C, Eastern Command and the

COAS acted in excess of jurisdiction and in violation of the

policy decision by making figurative assessment of the First

Respondent when he was posted as ADG, Assam Rifles. The

Division Bench affirmed the said conclusion of the learned

Single Judge and we have no reason to take a different view on

the point pertaining to the figurative assessment made by the

GOC-in-C and COAS being contrary to the policy, and therefore

without jurisdiction.

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12. The learned Single Judge was of the opinion that the

assessment of CRs of the First Respondent cannot be stated to

be vitiated due to mala fides as no such submission was made

by the First Respondent. However, the learned Single Judge

found fault with the rejection of the statutory complaints on the

ground of violation of principles of natural justice. According to

the learned Single Judge, vital documents namely, the

comments of the Army Authorities on the statutory complaints

were not supplied to the First Respondent. Mr. R.

Balasubramanian, counsel for the appellant, did not press the

point relating to the supply of the comments of army

authorities on the statutory complaints to the First Respondent.

Therefore, we leave the question of law as to whether non-

furnishing of the remarks of the Army authorities on statutory

complaints to the officer concerned would result in violation of

principles of natural justice, open. However, on an overall

consideration of the issue pertaining to the confidential

reports, we are in agreement with the learned Single Judge that

the profile of the First Respondent warranted a change.

National Defence College

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13. The First Respondent contended before the High Court

that his service period as Defence Attaché/Military Attaché in

USA was not considered on the ground that the appointment of

the First Respondent was an Extra-Regimental Employment.

The procedure for selection to the NDC course provides for two

looks for all Brigadiers, provided they fulfill the eligibility

criteria. The First Respondent submitted before the High Court

that the first mandatory look for nomination to NDC course for

the year 2000 was rejected in the month of October 1999 in

view of the non-consideration of his ACRs during his service as

Defence Attaché/Military Attaché in the USA on the basis that

the posting of the First Respondent was an Extra Regimental

Employment. He was not considered for the second look on

the ground that he was assessed as ‘not promotable’ by the

concerned Selection Board. The learned Single Judge of the

High Court refused to adjudicate on the issue relating to the

posting of the First Respondent as Defence Attaché/Military

Attaché in USA being treated as Extra Regimental Employment,

on the ground that no such declaration was sought by the First

Respondent in the Writ Petition. The refusal to have a second

look at the First Respondent in October, 2000 for NDC, 2001

was found to be arbitrary by the High Court in view of

11 promotability checks being introduced only on 07.01.2002 and

07.02.2003. The submission made on behalf of the Appellants

that the First Respondent forfeited his right for the first

mandatory look for NDC in the year 1998 was rejected by the

High Court on the ground that the First Respondent was not, in

fact, considered by the Appellants for selection to NDC course

in October, 1998. Moreover, it is clear from the record that two

months after the refusal of a second look to the First

Respondent in October, 2000 for NDC 2001, the First

Respondent was found fit for promotion to the post of Major

General in April, 2001. On a detailed consideration of the

above issue, the learned Single Judge of the High Court

observed that the First Respondent was illegally denied a

second mandatory look for the NDC look. On a thorough

examination of the evidence on record, we have no reason to

take a different view from the one taken by the learned Single

Judge and affirmed by the Division Bench.

Non-empanelment as Lieutenant General

14. The First Respondent contended before the High Court

that his consideration for empanelment as Lieutenant General

in February, 2006 was not a valid exercise of power as his

service profile was not properly and correctly prepared. The

12 overall profile of the First Respondent presented before the

members of the Special Selection Board was tainted by

irrelevant and irregular considerations. In view of the

findings recorded by the High Court on the confidential

reports as well as the nomination to the NDC, the direction

issued by the learned Single Judge of the High Court that

there should be re-assessment of the First Respondent by

the Special Selection Board suffers from no infirmity. It is

relevant to note that the Special Selection Board considered

the First Respondent as a Special Review Fresh Case of 1968

batch with changed profile, but found the First Respondent

not fit for empanelment as Lieutenant General.

15. After holding that the directions issued by the learned

Single Judge and affirmed by the Division Bench warrant no

interference by this Court, the point that remains to be

considered is whether the Division Bench was justified in its

observations pertaining to certain aspects which were not

considered by the learned Single Judge. The learned Single

Judge made it amply clear that the High Court was not

interfering with any policy decision of the Government. The

relief that was granted to the First Respondent was in view of

13 the irregularities committed by the Appellants in violation of

the policy decision of the Government. As stated supra, the

learned Single Judge also observed that the First Respondent

did not seriously contest the issue of mala fides. We are of

the opinion that the Division Bench went wrong in holding

that the learned Single Judge ought to have decided the

point whether the posting of the First Respondent as Defence

Attaché/Military Attaché to USA should be treated as Extra

Regimental Employment. As the said issue was not raised by

the First Respondent in his Statutory Complaint filed in

February, 2005 and as the First Respondent did not even seek

for a declaration in the Writ Petition, the learned Single Judge

was right in not deciding the issue of the posting of the First

Respondent as Defence Attaché/Military Attaché to USA being

treated as Extra Regimental Employment. The Division Bench

also observed that the learned Single Judge erred in upholding

the refusal of first look in 1999 for NDC 2000. In view of the

relief that was granted by the learned Single Judge to change

the profile of the First Respondent after holding that the

second look for nomination to the NDC, 2001 was illegally

denied to him, we do not see any reason for the Division

Bench to have made such observations. The Division Bench

14 took a view different from the one taken by the learned

Single Judge on the point pertaining to the non-selection of

the First Respondent to the rank of Major General from

Brigadier in April, 2000. We are in agreement with the

learned Single Judge on this issue as well. The learned

Single Judge held that non-selection of the First Respondent

to the rank of Major General from Brigadier in April, 2000 is

not a vital issue since the First Respondent was promoted as

Major General in April, 2001. In view of the relief that was

granted by the learned Single Judge in favour of the First

Respondent, the Division Bench ought not to have held that

the learned Single Judge committed an error in not

considering the aforementioned issues. The observations

made by the Division Bench pertaining to the above issues

which were not considered by the learned Single Judge are

not sustainable and are hereby set aside.

16. For the aforementioned reasons, we uphold the

judgment of the learned Single Judge as affirmed by the

Division Bench. The observations relating to the non-

consideration of certain issues by the learned Single Judge

15 made by the Division Bench are set aside. Accordingly, the

appeals are dismissed.

..…................................J [L. NAGESWARA RAO]

..

…................................J [M.R. SHAH] New Delhi, April 09, 2019.

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