Maj Gen Vinayak Saini SM VSM v. Union of India

15. Further, without prejudice to his aforesaid plea, he further submits that once the promotions based on the SSB held on 09.02.2023 itself had been made subject to outcome of the OA, the respondents could not be permitted to urge that in view of their promotional policies they could not hold a Review Board till a fresh vacancy accrues in the Corps of Engineers. He contends that in the light of the interim order passed by the Tribunal on 31.05.2023, it was incumbent upon the respondents to ensure that the selected candidates are informed about their selection being subject to outcome of the petitioner‟s OA. He, therefore, prays that the writ petition be allowed and the respondents be directed to review the recommendations of the Board held in February 2023 with respect to the then available vacancies of Lt. General in the Corps of Engineers.

16. On the other hand, learned counsel for the respondents, supports the impugned order and submits that the learned Tribunal has rightly rejected the petitioner‟s OA after finding that as per the respondents‟ policies dated 23.12.2017 and 06.12.2023, a Special Selection Board for an individual officer, in the nature of a review, could be held only when a fresh batch was being considered for the next available vacancy. He contends that even otherwise, as per the uniform policy being followed by the Army, once officers are promoted in terms of recommendations made by the SSB, they cannot be reverted, merely because one of their batchmates subsequently gets redressal in his statutory or non statutory complaint, with a consequential improvement in his CR profile. He submits that unfortunately for the petitioner, the next available vacancy in the rank of Lt. General in the Corps of Engineers would arise only in September 2025, by which time the petitioner will superannuate. Consequently, despite the redressal granted to him by the respondent no.1 and the consequential improvement in his CR profile, he cannot, as rightly held by the Tribunal, be considered by a Special Selection Board for the Corps specific vacancy of Lt. General in the Corps of Engineers. He, therefore, prays that the writ petition be dismissed.

17. Having considered the submissions of the learned counsel for the parties and perused the record, we may begin by noting the reasons given by the Tribunal for rejecting the petitioner‟s claim. The relevant extracts of the impugned order read as under-

Arvind Walia, Engineer-in-Chief when he retires on 31.08.2025 and subsequently, the remainder vacancies will come up on superannuation of respective officers holding the appointment. It is our observation therefore that hypothetically even if the applicant is to be considered by boards as a lone candidate and he is found empanelled for promotion there will be no vacancy available to promote him to rank of Lt Gen before his superannuation in the present rank on 31.10.2024. Thus, the extant conditions do not help the case of the applicant.

27. Moreover, it is settled jurisprudence that the exercise of power of judicial review in the selection process and the policy matters of the executive is limited and, therefore, we do not consider it appropriate to exercise the power of judicial review in the instant case, in absence of any express mala fide.”

18. Since the aforesaid findings of the Tribunal are based on the interpretation of the respondent‟s promotion policies dated 17.09.2010, 23.12.2017 and 06.12.2023, it would also be apposite to note the relevant extracts of these policies at this stage itself. In this regard, we may first note para nos. 7(a) and 8(b) of the respondents‟ policy dated 17.09.2010 which provides as to what would constitute a change in profile as also the manner in which an officer who is granted redressal is to be dealt with. The same read as under-

8. Procedure- {a) *** {b) An officer will be given a Special Review for each normal consideration already given to him after the point of time at which change in his profile has occurred. Example:

1. at appendix refers.

(c) to (f) ***

19. We may now refer to para nos.10,11, 12, 19, 21 & 22 of the policy dated 23.12.2017, which read as under-

(BYOS} of the Fresh Batch with which considered, for subsequent consideration to the next rank. For example, a First Review Case of 1983 Batch considered along with the Fresh Batch of 1984 (a and when physically available), if empanelled, will reckon BYOS of 1984 for all purposes. Superannuation Before Occurrence of First Vacancy

19. If an officer is superannuating before the occurrence of the first vacancy then he will not be eligible for consideration by No 1 SB or SSB. The name of the officer will be included in the agenda and shown as 'Not Eligible’ If all the officers of a particular batch are superannuating before the occurrence of the first vacancy then the next batch will be considered by No 1 SB or SSB, as the case may be. Deferred/ Withdrawn/ Special Review Cases

21. Deferred/Withdrawn Cases. All Deferred/Withdrawn cases will only be considered with the next physically available Fresh Batch of their own Arm/Service with the same cut-off CR as that for the Fresh Batch. In such cases, the officers will be compared with the Fresh Batch with which they are being considered and will be empanelled if In merit, against the vacancies accruing for that Fresh Batch. If empanelled for promotion, they will reckon the seniority of their original Batch.

22. Special Review cases. (a) All Special Review cases will be considered in a manner similar to Deferred/Withdrawn cases as given at Para 21 above. (b) Special Review will be granted to the officer against Non empanelment in the impugned Selection Board only and not for previous ranks/boards, notwithstanding the point of time at which the redress has been granted in the officers' profile.

(c) If an officer is already approved for promotion as a First

Review or Final Review is granted Special Review, then he will be eligible for consideration for Restoration of Seniority (ROS). If approved, his Batch Year of Seniority (BYOS) will be adjusted accordingly."

20. Even though the petitioner has vehemently urged and in our view rightly so, that the policy dated 06.12.2023 would not be applicable to him as his right to seek re-consideration of his case for promotion to the rank of Lt. General with reference to the consideration by the SSB on 09.02.2023, stood crystallised before this policy came into force, since the learned Tribunal has referred to this policy, we are noting the relevant extracts of this policy as well. The same read as under-

Consideration: No 1 SB and SSB

38. Batch-wise Consideration. Officers will be considered for promotion to the select rank of Maj Gen and Lt Gen batch-wise. The No 1 SB and SSS will be held only when a fresh batch is physically available for consideration {they will constitute the Fresh Agenda) and vacancies are accruing in that year/period. In the event of nonavailability of a fresh batch during a year/period, the No 1 SB & SSS will be conducted with the next available fresh batch if vacancies are occurring in that year/ period.

39. First and Final Review Cases. First and Final Review cases will form part of the Agenda of the batch under consideration and will only be considered along with. the next physically available Fresh Batch. For example, First Review cases of 1987 Batch or Final Review cases of 1986 Batch can only be considered along with the next physically available Fresh Batch of 1988. In case, Fresh Batch of 1.988 Is not physically available for consideration due to any reason, then the Review Cases will have no claim to be considered independently or as the Fresh Batch of 1988. These officers will be considered for promotion only with the next Fresh Batch which is physically available, in this case the 1989 Batch and so on.”

21. Having noted the relevant extracts of the impugned order as also the respondents‟ three policies, we may now summarise the facts on which the parties are ad idem. We find that both the parties are in agreement that the IO‟s „Box Grading‟ for the petitioner‟s CR, for the period between July 2021 and May 2022, which was the primary reason for his nonempanelment for the post of Lt. General against a Corps specific vacancy by the SSB held on 09.02.2023, stands expunged. The parties are also not at variance that this expunction amounts to an “occurrence counting towards change in profile” in terms of para no. 7(a) of the respondent‟s policy dated 17.09.2010. They are also in agreement qua the fact that as per para no. 8(b) of this policy, an officer has to be given a Special Review for each normal consideration already given to him whenever there is a retrospective change in his profile and in case, he is found fit for promotion as per the changed profile, his seniority has to be restored.

22. We find that it is also not in dispute that much before the result of the SSB held in February 2023 was de-classified on 19.06.2023, the petitioner had not only submitted a Statutory Complaint dated 27.02.2023 against the IO‟s downgrading of his CR, but had also approached the Tribunal assailing the same. Further, the parties are also not at variance that vide an order dated 31.05.2023 the learned Tribunal had itself, after considering the petitioner‟s prayer for reserving one vacancy for him, directed the respondents that the promotions to the rank of Lt. General, with reference to the Board held in February 2023, would remain subject to outcome of the OA, by specifically directing that the petitioner‟s promotion would remain subject to outcome of the OA. It is also an admitted position that though the petitioner was granted a special review consideration in December 2023, vis-a-vis the Board held in February 2023 in respect of the NGCS Stream, wherein he was not empanelled, till date no review consideration has been granted to him in respect of the Board held in February 2023 qua the vacancy in the Corps of Engineers.

23. At this stage, we may also note that even though, the petitioner had before the Tribunal additionally urged that the cut off CR for the two SSBs held on 09.02.2023 one for the NGCS Stream and the other for the Corps of Engineers ought to have been the same i.e. 31.12.2022, this plea has not been seriously urged before us. Consequently, the petitioner‟s grievance in the present petition is confined to non-grant of a review consideration to him vis-a-vis the Board held in February 2023 for promotion to the rank of Lt. General in the Corps of Engineers

24. From the factual position noted herein above, what emerges is that while the respondents do not deny that there has been a change in the petitioner‟s CR profile with retrospective effect, their sole contention to deny a review consideration to the petitioner viz a viz the Corps specific vacancy is that as per their applicable policies, no such consideration can be granted till a fresh vacancy of Lt. General arises in the said Corps. Their plea being that where redressal is granted to an officer by way of a statutory/non-statutory complaint, he does not automatically become entitled to a special review consideration with respect to the earlier Corps specific vacancy; this review consideration, it is contended is required to be granted only when the next batch is to be considered for the next available vacancy. The learned Tribunal accepted this contention of the respondents and has, therefore, held that the petitioner is entitled for a review consideration only when the next available vacancy of Lt. General in the Corps of Engineers accrues on 01.09.2025, when Lt. General Arvind Walia superannuates. Consequently, the Tribunal concluded that despite a radical improvement in his profile, the petitioner cannot be granted any consideration by way of special review and would have to retire in the present rank without being considered for promotion.

25. The learned senior counsel for the petitioner has however urged that the petitioner cannot be denied the fruits of the redressal granted to him and has by placing reliance on the decision in Union of India & Ors. v. Major General Manomor Ganguly, (2018) 1 SCC 552 urged that the respondents are required to immediately reconsider the petitioner for promotion with reference to the parameters applied in the SSB for the Corps of Engineers held on 09.02.2023.

26. From the aforesaid submissions of the parties, we find that the factum about the redressal being granted to the petitioner being undisputed, the question for our consideration now lies in a very narrow compass. Should the petitioner, who has been granted redressal by the Central Government itself, thereby vindicating his stand that his IO had wrongly downgraded his Box Grading in his CR which was considered by the SSB held on 09.02.2023, be told that he cannot be granted any consequential relief, by accepting the respondents‟ stand that since the vacancies of Lt. General, as available on 09.02.2023, already stand filled, no special review consideration can be granted to him. The issue, thus, would be whether the respondents‟ contention that despite it being conclusively found that the petitioner was considered in the SSB on 09.02.2023 on the basis of his faulty CR, he cannot be granted a special review as he will retire before the next vacancy arises on 01.09.2025.

27. Having given our thoughtful consideration to this question, we are of the opinion that if the petitioner is not granted review consideration for promotion with respect to the SSB held on 09.02.2023, despite the redressal granted to him and his stand being vindicated that he had been wrongly downgraded by his IO, the very purpose of redressal being granted to an officer would stand defeated. This may lead to a situation like the present case, where despite being meritorious, an officer may still be denied promotion only because his IO/RO, as the case may be, arbitrarily downgrade his CR. Such an officer, in our view, cannot be told that even though the downgrading of his CR by his IO/RO was illegal and has been subsequently, set aside by the Central Government/the Chief of Army Staff by accepting his statutory/non-statutory complaint, he would still continue to be deprived of his rightful promotion as his junior has already been promoted in the meanwhile and he will be required to wait for accrual of the next vacancy.

28. There is yet another angle from which this issue can be examined. In case, the respondents‟ plea that a review consideration can be given only against the next available vacancy and not with reference to the Board where he was wronged, was to be accepted, it would lead to a situation where in order to harm the promotional prospects of an officer, the disposal of the statutory complaint preferred by him may itself be delayed deliberately. In the present case, the record in itself shows that though the petitioner had submitted a statutory complaint on 27.02.2023, the same was not forwarded to the competent authority/respondent no.1 till as late as July 2023 by which time the result of the Board held on 19.02.2023 was de-classified. Further we also wonder as to why the statutory complaint was not decided before the second vacancy of Lt. General in the Corps of Engineers was filled on 01.10.2023 but was instead decided just nine days thereafter.

29. In our view, the respondents‟ refusal to grant a review consideration to the petitioner vis-a-vis the vacancies of Lt. General in the Corps of Engineers as on 09.02.2023 is in itself arbitrary and illegal. However, even if we were to accept their plea that such a review consideration is not in consonance with the existing promotion policy, the petitioner, in our view, would still be entitled to relief. We say so as we find that the promotions pursuant to the Board held in February 2023 were itself directed to be made subject to the outcome of the OA. The Tribunal specifically directed on 31.05.2023 that the petitioner‟s promotion would remain subject to outcome of the OA and therefore, it was evident that the promotion of the two officers as Lt. General in the Corps of Engineers recommended by the Board on 09.02.2023 in itself was subject to outcome of the OA. This necessarily implied that these two officers, who were promoted pursuant to the Board held in 2023, were to be put to notice qua their promotion being subject to outcome of the OA.

30. At this stage, it may be noted that on 07.08.2024, we had directed the respondents to file a specific affidavit informing us as to whether this fact of their promotion being subject to the outcome of the OA was communicated to the officers who were empanelled as Lt. General in the Corps of Engineers pursuant to the Board SSB held on 09.02.2023. Today, learned counsel for the respondents hands over an affidavit running into 23 pages. Though the said affidavit is taken on record, we find that the same does not answer this specific query of the Court. We, therefore, proceed on the basis that the Tribunal‟s interim order dated 31.05.2023 was not conveyed to the selected candidates.

31. In any event, irrespective of whether these directions of the Tribunal were conveyed to the empanelled officers or not, the fact remains that on 31.05.2023 vide a judicial order, it was specifically directed that promotions pursuant to the Board held in February 2023 in the Corps of Engineers, would remain subject to outcome of the OA. We also find that it is the respondent‟s own stand that the result of this SSB held in February 2023 was de-classified only on 19.06.2023 i.e., after the Tribunal had issued the aforesaid interim directions. In these circumstances, we are in agreement with the petitioner that it was incumbent upon the respondents to ensure that either the de-classification of the results was withheld till the disposal of the OA or the empanelled officers were informed that their promotions would be subject to the rights of the petitioner, as may be determined by the Tribunal in his pending OA. The respondents, in our view, were bound by these interim directions and therefore, cannot be permitted to urge that the petitioner‟s junior having been already promoted as Lt. General on 01.10.2023, there is no vacancy to consider the petitioner at this stage.

32. In the light of this factual position, when the Tribunal, by way of its interim order dated 31.05.2023, had already protected the rights of the petitioner, he cannot now be told that the Tribunal‟s order was of no consequence. In our view, it would be a travesty of justice if the petitioner were to be told that, despite it having been conclusively established that his IO had wrongly downgraded him in the assessment of one of his CRs, which was considered by the Selection Board held in February 2023, he cannot now be considered for promotion as his batchmates, including a person junior to him, have already been promoted and that too by ignoring the interim order passed by the Tribunal. The learned Tribunal, we find, has simply overlooked this aspect of the matter and has accepted the respondents‟ plea that now that the vacancy against which the petitioner could have been considered has already been allocated to his junior, he must retire in his present rank itself, despite being meritorious. We are, therefore, of the considered view that the impugned order is unsustainable and is liable to be set aside with directions to the respondents to grant a special review consideration to the petitioner with reference to the SSB held on 09.02.2023 for the Corps of Engineers by applying the same parameters as applied to the Board.

33. In this regard, we may refer to the following extracts from the decision of the Apex Court in Union of India & Ors. v. Major General Manomor Ganguly, (2018) 1 SCC 552: “In the original SPB meeting, Major General Sanjeev Chopra was awarded 1.70 out of 2 marks whereas the respondent was awarded 1.50 marks. Lesser marks given to the respondent were because of the reason that marks awarded to him out of 93 were lesser than Mr Sanjeev Chopra. Result of the redressal was that the marks of the respondent became higher than Mr Sanjeev Chopra which necessitated Review SPB. This Review SPB meeting has to be on the same standards which were adopted in original SPB meeting. It has to be on the assumption as if case of the respondent is considered in the original SPB, but with revised profile. In SPB held on 20-1-2016, had the revised marks of the respondent been available, which were more than the quantified marks of Sanjeev Chopra, the respondent would have certainly got 1.70 out of 2 marks by the Board. It is stated at the cost of repetition that that was the criteria adopted by the Members of the Board itself viz. awarding the marks (out of 2) in line with the quantified marks. Having not undertaken the independent exercise of looking into the “overall profile” in SPB held on 20-1-2016 and instead assigning the marks to all the officers out of 2 marks, on the basis of quantified marks of the candidates which they had received out of 93 marks by treating the same as “overall profile”, when it comes to Review SPB the appellant is supposed to stick to the same criteria. Only that would show fairness in approach, which would also be in conformity with the principles of equality enshrined in Article 14 of the Constitution. It is because of the reason that Review SPB is nothing but extension of original SPB, wherein the respondent was supposed to be considered on the same parameters as if he was participating in promotion process undertaken in original SPB.”

34. Before we conclude, we may also note that during the course of the hearing, we had put to the respondents as to whether taking into account that the parties were governed by the Tribunal‟s interim order as also the fact that their policies itself envisage restoration of seniority in a case where an officer is found fit in the review board, with respect to his initial consideration, the petitioner could be considered for promotion as a Lt. General without disturbing the promotion of his junior. The respondents had, however, submitted that the petitioner could not be accommodated and will have to retire as a Major General. In these circumstances, we have no other option except to set aside the impugned order.

35. In the light of the aforesaid, we allow the writ petition by setting aside the impugned order and directing the respondents to re-consider the petitioner‟s case for promotion as a Lt. General in the Corps of Engineers with respect to the SSB held on 09.02.2023 by taking into account the vacancies as existing on the said date and applying the same benchmark criteria as was applied for consideration of the other officers by the said SSB.

36. It is further directed that in case the petitioner is recommended for promotion, on the basis of the same parameters as applied by the SSB for the Corps of Engineers held on 09.02.2023, he will be granted promotion as a Lt. General with retrospective seniority and notional fixation of pay, without any arrears of wages. However, since the Officers empanelled pursuant to the recommendations made by the SSB for the Corps of Engineers held on 09.02.2023 are not before us, we are consciously not issuing any directions qua them, leaving it open for the respondents to pass appropriate orders in this regard. Taking into account that if the petitioner is not promoted to the next rank of Lt. General, he will superannuate on 31.10.2024, we direct that the exercise in terms of this order be carried out within four weeks.

37. The writ petition is, accordingly, disposed of in the aforesaid terms. (REKHA PALLI) JUDGE (SHALINDER KAUR)