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Judgment
M.A No. 1247 of 2020:
This is an application for amendment of the main relief in Para 8(a) and the interim relief in 0.A No. 996 of 2020 and for permission to carry out
such amendments in Paragraphs 8 and 9 of the said O.A. The amendments sought are to the following extent:
Para 8(a):
(a) Call for all the relevant records based on which Respondent No. 1 has issued the impugned direction dated 29.07.2020 to reconvene the Promotion
Board (AFMS) No. 1 AMC held on 28.04.2020 as also the order of retirement issued vide order dated 07.11.2019 and thereafter quash the same with
further direction to finalise the result submitted in exercise of power conferred under Para 108 of the Regulation of the Army 1987 and grant
promotion to the applicant to the rank of Major General in case his name appears in the list of the empanelled officer with all consequential benefits or
in alternative and without prejudice to the relief as sought above, direct the respondents to consider the applicant for promotion in the reconvened
Board and promote him with all consequential benefits if he is found empanelled by the reconvened Promotion Board (AFMS) No. 1 AMC.
Interim Relief in Para 9:
Direct the respondents to hold the order dated 07.11.2019 in abeyance with further direction to permit the applicant to continue in service beyond
31.08.2020 till final disposal of the 0.A in the present rank in the same terms and conditions as granted in terms of the orders dated 27.11.2014 in 0.A
No. 610 of 2014 and 16.10.2015 in 0.A No. 837 of 2015 passed by this Tribunal or till the applicant is considered by the Promotion Board (AFMS) No.
1 AMC and result is finalised, whichever is later.
The amendment sought in the M.A is allowed. The Registry is directed to carry out the amendments.
When the matter had come up for consideration on 28.08.2020, we issued an order directing the respondents that the retirement of the applicant
with effect from 31.08.2020 should not be given effect to until further orders and a detailed order giving reasons for the same would be passed by next
week.
0.A No. 996 of 2020:
The applicant, an officer of Brigadier rank of the Army Medical Corps (AMC), who was considered by the said Board as a ""First Review Case
for promotion to the rank of Major General, is aggrieved by the non-declassification of results of No.1 Promotion Board (Armed Forces Medical
Services) held on 28.04.2020 in the context that he is due to retire in the rank of Brigadier on 31.08.2020.
Facts of the case, as averred by the applicant, are that PB No. 1 (AFMS) for 2019 was not held in the year 2019 and instead, the delayed Board
was held on 28.04.2020 and thereafter proceedings were submitted to Respondent No. 1 (Government of India/MoD) for approval on 29.04.2020.
However, Respondent No. 1 did not approve the same, but instead, vide order dated 29.07.2020, has returned the Board proceedings with a direction
to reconvene the Board, which the applicant contends as being unfair and detrimental to his interests, more so, if he was approved for promotion by
the earlier Board of 28.04.2020, as the applicant is scheduled to retire in the Brigadier's rank on 31.08.2020, prior to reconvening of the Promotion
Board.
Mr. Pandey, learned counsel for the applicant submitted that the applicant, having come in the zone of consideration for promotion to the rank of
Major General for vacancies occurring in 2019, was considered as a ""Fresh Case"" in the No. 1 SB (AFMS) for AMC, which was held on 19.11.2018,
but was not approved for promotion. The applicant filed a statutory complaint against non-empanelment on 04.07.2019, which was unfairly rejected by
the first respondent vide order dated 02.07.2020. The applicant was scheduled to be considered again for promotion as a ""First Review Case"" by No.
1 SB (AFMS) to be held in 2019 for vacancies occurring in 2020, but the Board was not held in 2019. Learned counsel has contended that as per their
policy of 2016, the respondents were duty bound to hold the Promotion Board at least three months prior to February 2020, when the first vacancy of
Major General was due to occur in 2020. However, after first announcing that No. 1 SB (AFMS) would be held on 19.09.2019, the Board was
repeatedly postponed vide the notification of Respondent No. 2 (DGAFMS) dated 12.09.2019 (Annexure Al), 11.11.2019, 06.12.2019 (Annexure A3)
to the effect that it was not held at all in 2019. Thereafter, on 16.03.2020, it was intimated by the first respondent vide Annexure A4 that a proposal of
Respondent No. 2 (DGAFMS) for holding Promotion Boards for vacancies for the year 2020 had been agreed to and accordingly, No. 1 PB (AFMS)
for AMC was held on 28.04.2020. Consequently, the PB, which, as per policy, should have been held by November 2019, was held only in April 2020.
The delay has been further exacerbated by the fact that the results of the same have not been declassified so far, and instead, vide order dated
29.07.2020, the first respondent has directed that the PB be reconvened.
Mr. Pandey, learned counsel for the applicant contended that as the applicant in the rank of Brigadier is scheduled to retire on 31.08.2020, the
decision by Respondent No. 1 not to declassify the results and instead, reconvene No. 1 PB (AFMS) citing Para 108(e) of the Regulations for the
Army, 1986 is blatantly unfair to the applicant, especially if he had been recommended for promotion by the Board held on 28.04.2020. Para 108(e) of
the Regulations for the Army, 1986 is reproduced as under:
108(e). The Central Government or COAS have the inherent power to modify, review, approve with variation or repeal recommendations of
the Selection Boards.
On behalf of the applicant, reliance has been placed on the order of this Tribunal (Principal Bench) dated 28.04.2017 in the matter of Maj. Gen.
lagdeep Kumar Sharma v. Union of India and others (0.A No. 586 of 2017). The relevant portions of the said order are reproduced as hereunder:
The question which arises for consideration is that although the selection board proceedings had taken place on 17 12.2016 and the
result of two streams were declassified but so far as the General cadre stream is concerned, this was neither declassified nor timely
submitted for the approval of ACC. There is no dispute about the fact that the selection made by the selection board is only recommendatory
in nature and does not confer any vested right in an officer to get the promotion. The Government has vested rights to reject or not to
accept any particular recommendations. Therefore, even though learned counsel for the applicant has contended that the name of the
applicant has been recommended, he does not have any fundamental right of promotion as on date because he has no definite information
with regard to the same. But at the same time, the other side of the argument is that assuming that the name of the applicant has been
recommended and the recommendation is likely to sail through ACC without any hindrance then merely because of the said approval does
not come before 30.04.2017 which happens to be his day of retirement, it will be very unfair to the officer that despite the fact that he holds
a position in Military Operation Directorate of Army, yet he is not able to earn his promotion. Obviously, this kind of fait accompli to be
found by an officer is bound to create ripples not only in the mind of the applicant but also create dissatisfaction in the ranks. Therefore,
the question which would arise is how to balance the equity. Admittedly, for getting ad-interim order, a person must satisfy three things
namely, he has a prima facie case, balance of convenience is in his favour and he is going to suffer irreparable loss if interim order IS not
passed. On the aforesaid parameters, we feel that irreparable loss Is to be suffered by the applicant in case ad-interim order is not given
and the only ad-interim order which can be passed in the case of the applicant is that, he should not be made to suffer by not getting
promotion to the rank of Lt. General only if the approval comes after 30.04.2017, within a reasonable time.
No doubt, the learned counsel for the applicant has relied upon the three orders which have been passed but all these three orders are
distinguishable from the facts of the applicant.
(a) In Maj. Gen. P K Bharali's case, there was already a judgement passed by the Tribunal giving direction to the respondents to hold a
special selection board for 1997 batch for appointment DG in Army Aviation Corps and though the said selection board had taken place
but the applicant in the said case was retired on 30.11.2014. Accordingly, a direction was given that the respondents shall take a decision
on the recommendations of the Selection Board preferably before 15.11.2014. In that case, the applicant was permitted to continue to be in
service till 0701.2015 by which date the Tribunal expected the decision to be taken and after the said date, the interim order was stated to
be ceasing to have any operation.
(b) Similarly, in Maj: Gen. K. K. Sinha's case, the same bench had passed an order date d16.10.2015 that the officer did not retire from the
service till a decision with regard to the promotion of the applicant is taken by 31.10.2015 and the officer was to retire on 31.10.2015 and
in case the decision with regard to the promotion of the applicant is not taken by 31.10.2015, he shall be deemed to have retired.
(c) Similarly, in Brig. P: K Sharma 's case, the retirement of the officer was stayed and he was directed to be given pay and allowance
subject to his refunding the same in case he does not get promoted.
We feel that the orders on the line as have been passed in the aforesaid three cases may not be in order because age of retirement cannot
be stayed by the Court because the age of retirement is linked with the date of its operation by fiction of law. Moreover, the facts of those
cases were slightly different than that of the applicant's case. The only order which, under the aforesaid circumstances, can be passed is
that the respondents should not deny the promotion to the rank of Lt General to the applicant only if there is a dear vacancy arisen before
30.04.2017 and the name of the applicant has been recommended by the selection board and it/s approved by the ACC only on the ground
that he has retired on 30.04,2017 as certain time is bound to be consumed in taking such decision. But, in the instant case, the excessive
time which has been taken by the respondents, in as much as the result of two streams which were considered by the same board, have been
declassified and the result of the third stream pertaining to the rank of Lt. General in General Cadre category in which the applicant falls,
was not declassified clearly showing that there was something more than what meets the eyes.
In view of the aforesaid directions, we reiterate the following interim orders:
The respondents are free to process the recommendations of the selection board with regard to General Cadre Stream vacancies as
expeditiously as possible.
10 In case there is a vacancy in General Cadre Stream pertaining to the rank of Lt General which has arisen before 30.04.2017 and the
name of the applicant is empanelled and in normal course & he would have picked up the rank of Lt. General against the said vacancy,
then he should not be denied the said vacancy only on the ground that he has superannuated on 30.04.2017
Mr. Anil Gautam, learned counsel for the respondents, on the other hand, has refuted the contentions made on behalf of the applicant. At the outset,
he has challenged the maintainability of the 0.A as the applicant has approached this Tribunal without availing the remedy available to him in terms of
the statutory complaint against nondeclassification of results. Learned counsel has also cited the decision of the Hontle Supreme Court in the case of
Pratap Singh v. State of Punjab (AIR 1964 SC 72) to contend that this Tribunal cannot exercise judicial review or discretionary power. The relevant
portion of the said decision is summarised below:
The Court is not an appellate forum where the correctness of the order of the Government could be canvassed and, indeed, it has no jurisdiction to
substitute its own view ................ for entirety of the power, jurisdiction and discretion is vested by law in the Government. The only question which
could be considered by the Court is whether the authority vested with the power has paid attention to or taken into account circumstances, events or
matters wholly extraneous to the purpose for which the power was vested, or whether proceedings have been initiated mala fide for satisfying a
private or personal grudge of the authority.
Learned counsel for the respondents contended that the substantive prayer made in the 0.A regarding declassifying of result of No.1 PB (AFMS)
for AMC held on 28.04.2020 is infructuous as the recommendations made in the impugned PB have not been agreed to by the competent authority
and the same has been instructed to be reconvened. Learned counsel submitted that as per Para 23 of the Promotion Policy of 2016, the Central
Government is the approving authority of all PB proceedings, therefore, the impugned No. 1 PB (AFMS) AMC having been ordered to be reconvened
by the competent authority, the main prayer of declassifying the result does not survive. Thus the case deserves to be dismissed in limine.
With regard to the interim prayer to stay the retirement of the applicant, Mr. Gautam asserted that there are no justifiable reasons or policy which
allows for extension of retirement date. In this regard, learned counsel referred to the order dated 07.09.1998 of the Hon/JDle Supreme Court in the
matter of Union of India and others v. Air Cmde S.K. Mishra (1999) SCC (L&S) 949, wherein it was observed as follows:
After hearing learned counsel for the parties and examining the record, we are of the opinion that the impugned direction was not
justified. The respondent would have retired from service in November 1997 but by virtue of the direction has been permitted to continue f1
7 service. It was not proper. A direction like the impugned one in this case is not normally to be granted at the interim stage because in the
event the employee succeeds in his case, he can always be granted relief even for the period during which he was out of service. We,
therefore, without prejudice to the rights of the parties in the letters patent appeal, set aside the impugned direction, as noticed above.
Concluding his arguments, learned counsel asserted that the prayer for issuing stay on retirement of the applicant should not be granted.
Consideration:
Having heard the learned counsel for the parties and perused the documents on record, including the file related to PB (AFMS) No. 1 AMC held
on 28.04.2020, as handed over to the Tribunal during the course of hearing on 28.08.2020, the primary issue before us is, whether the applicant should
be granted a stay on his retirement on 31.08.2020 on the ground that the proceedings of the PB held on 28.04.2020, in which he was considered as a
First Review Case was inordinately delayed and that despite the PB having recommended his approval for promotion, the recommendations of the PB
were not approved by the competent authority and instead, the said Board has been ordered to be reconvened at a fresh date well beyond the
retirement date of the applicant, thus unfairly depriving him of consideration for promotion to the rank of Major General, which would also grant him
additional years of service.
Details pertaining to the case, as ascertained by this Tribunal from perusal of Respondent No. l's file related to 'Promotion Board (AFMS) No. 1
AMC held on 28.04.2020' are as follows:
(a) No. 1 PB (AFMS) AMC to consider eligible Army Medical Corps officers of the rank of Brigadier and equivalent against 13 vacancies of Major
General and equivalent, which are likely to arise up to December 2020 was held on 28.04.2020. 41 officers viz. 26 officers in chance 01, in addition to
14 officers in chance 02 and 01 officer in chance 03 were considered by the Board. Cut off report for the Board was ACR 2018 or NIR in lieu. Total
number of ACRs up to the cut off report specified for No. 1 PB is five, including one numerical ACR in the present rank of Brigadier.
(b) The Board comprised of the Vice Chiefs of the three Services, the DGAFMS, the three DGsMS and the DG (Org & Pers) of the AFMS. The
senior most Vice Chief viz. Vice Chief of Army Staff, was the Chairman of the Board.
(c) Order of merit for the Promotion Board was worked out taking into account the final overall marks viz, sum total of overall ACR average
extrapolated out of 90, marks for qualifications out of 0.75, marks for gallantry awards out of one, and marks awarded by the Board members out of
two.
(d) The PB proceedings were forwarded by Respondent No. 2 (DGAFMS) to Respondent No. 1 (Gal/MoD) on 29.04.2020 for approval.
(e) Perusal of the Board proceedings shows that 14 Brigadiers and equivalent, including the applicant, were recommended for promotion. The list
included one additional officer to cater for the fact that one of the recommended officers would superannuate in the rank of Brigadier before his turn
came up for promotion.
(f) On 03.06.2020, Respondent No. 1 sought clarification from Respondent No. 2 seeking clarification as to why two Brigadiers or equivalent who had
been recommended for promotion, had been given higher Value Judgment marks by the Board as compared to two other officers who appeared better
qualified. These names did not include that of the applicant. Respondent No. 2 replied to the Note on 08.06.2020 contending that the Value Judgment
marks were awarded by the Board Members based on the guidelines given at Para 16 of the extant promotion policy dated 05.02.2016.
(9) Thereafter, on 25.06.2020, Respondent No. 1 again wrote to Respondent No. 2 seeking clarifications on the Value Judgment allotted by Board
Members to three of the officers recommended for promotion, including the applicant. Respondent No. 2 responded vide Note dated 07.07.2020 to
Respondent No. 1 stating once again that 'Value Judgment' marks were awarded by the Board Members in accordance with factors mentioned in
Para 16 of the extant promotion policy, reproduced as under:
(i) Overall profile including military reputation in professional and administrative field.
(ii) Appointmentsheld (Comd/ Staff/ Administrative/ Instructional).
(iii) Special achievements â€" Professional,
Administrative,Academic, Sports, Adventure games at National and International level. (iv) Gallantry and Distinguished Service Awards (Gallantry
Award in possession of any officer will be taken into consideration only if he/ she is not being awarded marks for Gallantry Award separately in terms
of para 14).
(v) Employability in future appointments.
(vi) Med Category
(vii) Disciplinary background
(h) Thereafter, on 29.07.2020, Respondent No. 1 issued a notification to Respondent No. 2 conveying a decision that No. 1 PB (AFMS) AMC held on
28.04.2020 would be reconvened and that the Board may submit its recommendations strictly in line with MoD AFMS promotion policy dated
05.02.2016 as amended on 16.09.2016 and 16.08.2017 especially with regard to six specific officers, including the applicant.
Therefore, the facts of this case can be summarised as follows:
(i) There was delay in holding of No. 1 PB (AFMS) for AMC, which was originally scheduled on 19.09.2019 but finally held seven months later i.e. on
28.04.2020.
(ii) The applicant was recommended for promotion by the PB held on 28.04.2020. However, the first respondent has not approved the Board
proceedings, apparently due to observations with regard to award of Board marks, and instead, has directed on 29.07.2020 that the Board be
reconvened. The said PB has, however, not been reconvened so far.
(iii) The applicant is due to retire in the rank of Brigadier on 31.08.2020.
Having considered the extraordinary facts of the case as stated above, we are in agreement with the contentions of the learned counsel for the
applicant that the retirement of the applicant on 31.08.2020 would place him at a substantial disadvantage during consideration by the PB when it is
reconvened at a future date.
Accordingly, we direct that the retirement of the applicant should not be given effect to till de-classification of results of the said No. 1 PB
(AFMS) for AMC after it is reconvened, as ordered on 29.07.2020. In case the applicant is approved for promotion to the rank of Major General and
there is a vacancy available for his promotion on that date, he should be promoted with effect from 31.08.2020. However, in case he is not approved
for promotion by the reconvened PB, he will be deemed to have retired on 31.08.2020 and he will return any salaries or allowances, if any, beyond his
pension that may have been paid to him with effect from 01.09.2020 for his service after that date.
Resultantly, the 0.A is allowed. No order as to costs.