REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 17535 OF 2017
UNION OF INDIA AND OTHERS .....APPELLANT(S)
VERSUS
MAJ. GEN. MANOMOY GANGULY, VSM .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Respondent herein belongs to the Army Medical Corps. He
is the Major General and aspires to become Lieutenant General
(Lt. Gen.), which is next higher rank in his cadre. First Special
Promotion Board (SPB), for this purpose was held on 20th
January, 2016 but he was not empanelled to the rank of Lt. Gen.
by the said Board. His statutory complaint there against was
partially redressed whereby an assessment of the Technical
Officer (TO) in his Annual Confidential Report (ACR) of 2014 was
expunged. This entitled him to fresh screening by Review SPB
which held its meeting on 21st March, 2017. However, even
Civil Appeal No. 17535 of 2017 Page 1 of 16
Review SPB did not empanel him for the promotional rank. After
exhausting departmental remedies in the form of statutory
complaint etc., the respondent approached the Armed Forces
Tribunal (for short, ‘AFT’) and has finally succeeded inasmuch as
vide orders dated 2nd September, 2017, passed in O.A. No. 1093
of 2017, the AFT has quashed the proceedings of Review SPB on
the ground that it had allotted wrong board marks to the
respondent. Directions are given to convene fresh Review SPB
to consider him for promotion to the rank of Lt. Gen. in
consonance with the parameters of relevant policies and his
changed profile after allotting entitled board marks as stated in
the said judgment, and to also restore his seniority. This appeal
aims at questioning the correctness of the said judgment of the
AFT.
2) Facts which are absolutely essential for disposal of this appeal
may be mentioned at this stage:
3) The respondent was commissioned in the Army Medical Corps
(AMC) on 3rd March, 1980. He has an outstanding academic
record and brilliant service record, for which he has been
decorated time and again. This includes GOCin–C”s
Commendation in the year 2013, Commendation of Chief of Army
Civil Appeal No. 17535 of 2017 Page 2 of 16
Staff in the year 2014 and Vishisht Seva Medal in the 2015. He
has earned promotions from time to time, whenever became due
and has arisen to the rank of Maj. Gen. He is due for
superannuation in this rank on 31st May, 2018.
4) The respondent was considered for promotion to the rank of Lt.
Gen. and equivalent by SPB held on 20th October, 2016.
However, vide DGAFMS letter dated 1st March, 2016, the
respondent was informed that he was not empanelled for
promotion. The respondent submitted his statutory complaint
dated 30th June, 2016 against his non-empanelment challenging
certain assessments in his relevant annual confidential reports.
After seven months, the appellant granted partial redressal to the
respondent vide their letter dated 30th January, 2017, by way of
expunging the entire assessment of the TO in the respondent’s
ACR of 2014 on grounds of inconsistency, and directed that the
respondent be considered for promotion by an appropriate
Promotion Board. Consequent to the redressal granted to the
respondent, his overall ACR profile for consideration before the
SPB improved and consequently his merit logically came above
that of the last officer empanelled in the SPB held on 20th
January, 2016. Since, the redressal was granted, as per the
Civil Appeal No. 17535 of 2017 Page 3 of 16
policy of the appellants, the respondent had to be put through a
fresh/Review SPB.
5) It is pertinent to note at this stage that as per the Promotion
Policy dated 14th January, 2004 as amended by the Government
of India letter dated 17th May, 2006, the selection criteria was
based on following parameters:
“(a)Average marks of ACR : 90 marks extrapolated out of 90
(b)Total Marks for various : 02 marks
Qualifications like MD, DM,
M.Ch. etc.
(c) Marks for Military Awards of : 01 marks
Decorations
(d) Marks awarded by the members : 02 marks
of the Board
Total Marks : 95 marks”
6) The composition of the Promotion Board (Medical) is as per the
Ministry of Defence letter No. 301/DGAFMS/DG-1X/87-S/D
(Med.) dated 8th February, 1988 and for the SPB for promotion to
the rank of Lt. Gen. (&equiv) the board comprises:
Chairman : Chairman Chiefs of Staff Committee
Members : The other two Chiefs of Staff
Member Secretary : DGAFMS
7) As noted above, as per the Promotion Policy, the Board Members
Civil Appeal No. 17535 of 2017 Page 4 of 16
are empowered to assess and award the marks. Award of these
marks, not exceeding two (2), is based on the overall profile of
the officer, exceptional achievements, appointments held, medical
category, disciplinary background, field area – difficult area
posting. Average of the marks awarded by all the Board
Members present, out of two (2), is used to calculate the overall
marks.
8) The procedure for selection and promotion which is
communicated vide Circular dated 14th January, 2004 issued by
the Ministry of Defence (MoD), Government of India and as
amended vide letter dated 17th May, 2006 enumerates basis for
awarding two marks keeping the following criteria in mind.
“Weightage to the Members of the Board: Board
Members will have a weightage of two (2) mark for
selection of the officers. The Board Members may
award marks not exceeding two (2) based on the
overall profile of the officers, exceptional
achievements, appointments held, medical category,
disciplinary background, field Area-Difficult Area
posting. Average of the marks awarded by all the
board members present, out of the two (2), will be
used to calculate the overall marks.”
Thus, it can be discerned that while 93 marks (ACR
average 90, qualification marks-02, honour and awards – 01) can
be quantified on the basis of relevant records, and need only
Civil Appeal No. 17535 of 2017 Page 5 of 16
arithmetical calculations, marks to be assigned by the Board
Members out of two(2), depend on the subjective assessment of
the Board Members, al beit, after objectively evaluating the
overall profile on the parameters laid down in the Promotion
Policy.
9) From the aforesaid facts, it is clear that insofar as award of 93
marks, out of 95 marks, is concerned that can be calculated
arithmetically on the basis of ACR, academic qualifications as
well as military awards and decorations. Discretion is given to the
Board to give weightage out of 2 marks and while exercising
these discretions the Members of the Board are supposed to
keep in mind the overall profile of the concerned officer,
exceptional achievements, appointments held, medical category,
disciplinary background, field area—difficult area posting.
10) Insofar as the respondent is concerned, he was assigned
87.90 marks on the basis of ACR, i.e., against extrapolated out of
90 marks, when his case was considered for promotion originally
by the SPB on 20th January, 2016. However, after redressal of
his statutory complaint which resulted in expunging of some
adverse remarks in ACR of the year 2014, these extrapolated out
of 90 marks stood enhanced to 88.50. However, in the Review
Civil Appeal No. 17535 of 2017 Page 6 of 16
SPB, the Board stuck to the same marks which were awarded by
the first Promotion Board. In this manner, though there was some
increase in the total marks awarded to the respondent (as a result
of increase in marks on account of ACRs). The final marks
awarded to him were still below the cut-off marks because of
which he was not empanelled for promotion by the Review Board
as well. The entire controversy before the AFT, thus, pertained to
the award of marks by the Board Members in the Review SPB.
11) The case pleaded by the respondent before the AFT was
that one Mr. Sanjeev Chopra, VSM, who was junior to the
respondent was empanelled by the SPB on the basis of
proceedings held on 20th January, 2016. Total marks obtained by
him out of 93 marks (i.e. without Board marks) were more than
the respondent at that time. However, with increase of ACR
marks of the respondent after his redress, total marks of the
respondent out of 93 marks became more than that of Mr.
Sanjeev Chopra. But the respondent was still denied promotion
by the Review SPB by awarding marginally less marks than
Sanjeev Chopra by the Board. It was argued that since total
without board marks of the respondent were more than that of Mr.
Sanjeev Chopra, there was no reason for the Board to give him
Civil Appeal No. 17535 of 2017 Page 7 of 16
lesser weightage while awarding marks out of the 2 marks by the
Board.
12) This contention is accepted by the AFT in the following
manner:
“We have heard the learned counsel for the parties
and seen the records. The man point of dispute is the
award of Board Marks to the applicant during the
Review Special Promotion Board held on 21.03.2017.
It is a matter of record that the redressal given to the
applicant by the respondent in his Annual Confidential
Report for the year 2014 has enhanced his quantified
marks from 90.65 to 91.25 and with these revised
quantified marks, the applicant jumps above the last
empanelled officer of his batch, i.e., Major Gen
Sanjeev Chopra whose quantified marks are 91.15.
We find that Maj. Gen Sanjeev Chopra with lower
quantified marks in comparison to the applicant has
been given 1.70 out of two marks by the Board. We
have also been the trend of awarding the Board Marks
to all officers considered in this Board which is
commensurate with the quantified marks of the
candidates. Therefore, the same cannot be denied to
the applicant unless it is justified by the Board
Members, which has not been done in the Board
Proceedings.”
13) In the process, the AFT has also observed that wrong facts
were projected to the Board Members inasmuch as in the noting
of the Board proceedings it is, inter alia, mentioned that ACR
merit of the respondent in Chance one changed from 16th position
to 15th position among 18 officers considered for only six
vacancies. Noting No. 3 of the Notings in the Board proceedings,
giving this information, reads as under:
Civil Appeal No. 17535 of 2017 Page 8 of 16
“3. His CR merit in chance one changed from 16th
position to 15th position among 18 officers considered
for only six vacancies.”
14) The AFT found that it was factually wrong as the
respondent’s revised profile after getting redressal had resulted in
elevating his position to 7th place instead of 15th. According to the
AFT, had there been correct facts before the Board Members,
they may have given higher marks to the respondent. The AFT
has even castigated the officers who, according to the AFT, were
guilty of furnishing wrong information which caused serious
injustice to the respondent and subverted the system.
15) The AFT mentioned that since Mr. Sanjeev Chopra was
given 1.70 marks out of the two marks, by the Board, there was
no reason to give 1.50 marks to the respondent. Having regard
to the fact that in the original SPB meeting, award of these marks
commensurate with the quantified marks of the candidate, the
respondent is also entitled to 1.70 marks and in this way he would
attain above the cut-off marks and more marks than given to Mr.
Sanjeev Chopra, who has been promoted as Lt. Gen.
16) Challenging the aforesaid approach of the AFT, Mr.
Maninder Singh, learned Additional Solicitor General appearing
for the appellant submitted that AFT has committed a grave error
Civil Appeal No. 17535 of 2017 Page 9 of 16
in undermining the discretion that is given to the Members of the
Board for award of board marks. It is pointed out that these
marks are not to be given on the basis of ACRs. On the contrary,
it is on the basis of overall profile of the concerned officer which
included exceptional achievements, appointments held, medical
category, disciplinary background, field area-difficult area posting
etc. In this very hue, it is also contended that it was not
permissible for the AFT to determine as to how many marks are
to be given to the respondent and by doing so the AFT has
usurped the function of the Members of the Board. It is also
submitted that Members of the Board are Chiefs of Air force,
Army and Navy. It can reasonably be inferred that they would
have gone through overall profile of the respondent and still
decided to maintain the same marks in the Review SPB which
were given to the respondent in the original SPB held in January,
2016. On this basis, the learned ASG also took strong exception
to the remarks of the AFT that the three Service Chiefs are hardly
expected to examine the records in minute details.
17) There is no dispute insofar as legal propositions advanced
by the learned ASG are concerned. Undoubtedly, the Members
of the Board are empowered to award marks out of the two marks
Civil Appeal No. 17535 of 2017 Page 10 of 16
which are reserved for them. For this purpose, it is not the ACR
alone but the entire profile of an officer which is to be looked into.
Insofar as, marks for ACR are concerned these have already
been awarded under the head ‘average marks of ACR
extrapolated out of 90’. It shows that significant importance is
attached to the ACRs inasmuch as 90 marks out of 95 marks are
to be assigned on the basis of ACRs. Therefore, it cannot be
disputed that while awarding marks out of the two marks reserved
for the Members of the Board, they can examine the overall
profile of the officer and are not supposed to restrict it to the ACR
alone. It also needs no elaboration that Board Members are the
three Chiefs of Services and it can very well be presumed that
they would assess an officer in an objective manner. Indubitably,
higher degree of trust can be reposed in them and their
assessment is not to be interdicted unless very weighty and
overwhelming material is produced warranting interference while
undertaking judicial review of such an exercise.
18) We may mention here that the appellants had placed strong
reliance upon the earlier judgment of the AFT dated 16th January,
2015 rendered in OA No. 120 of 2014 entitled Major General S.K.
Chakravorty v. Union of India and Others. In that case, the AFT
had held that the allocation of system of marks, i.e., award of
Civil Appeal No. 17535 of 2017 Page 11 of 16
marks by the Board Members out of two (02) marks allotted to the
Board, is based on value judgment. In the impugned judgment,
the AFT distinguished the said judgment with the remarks that
that case was not in respect of the Armed Medical Corps wherein
the assessment is based on quantified check marks. This basis of
distinguishing the judgment in S.K. Chakravorty is clearly
erroneous. We may note that the provision for assessment for
promotion to Lt. General is same whether it is Army per se or
Armed Medical Corps. The principle enunciated in S.K.
Chakravorty is based on the judgments of this Court in Air Vice
Marshal S.L. Chabbra, VSM (Retd.) v. Union of India & Anr.1
,
Major General I.P.S. Dewan v. Union of India & Ors.2
, Dalpat
Abasaheb Solunke & Ors. v. Dr. B.S. Mahajan & Ors.3
, and
Surinder Shukla v. Union of India & Ors.4
19) Having said that, insofar as the present case is concerned,
we find it difficult to disagree with the ultimate conclusion arrived
at by the AFT in the facts of this case, even if some of the
observations of the AFT may not be correct. Most important
feature which is noted by the AFT and could not be disputed by
the appellant is the manner in which exercise was undertaken
1 (1993) Supp (4) SCC 441
2 (1995) 3 SCC 383.
3 (1990) 1 SCC 305
4 (2008) 2 SCC 649
Civil Appeal No. 17535 of 2017 Page 12 of 16
while holding SPB meeting on 20th January, 2016. Even when
the Board Members were entitled to give marks to the candidates
on the basis of overall profile that was not done. On the contrary,
the marks given to those officers who were considered in that
SPB, were strictly on the basis of marks obtained by them out of
93 marks.
20) That becomes clear from the record produced by the
learned ASG for our perusal at the time of hearing. This is the
case in respect of all officers, without any exception. The AFT is
right in observing that in the meeting held on 20th January, 2016
Board Marks to all officers who are considered commensurate
with the quantified marks of the candidates. Thus, the Board
Members adopted the criteria of looking into the quantified marks
as the yardstick for assessing overall profile.
21) 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
Civil Appeal No. 17535 of 2017 Page 13 of 16
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 the SPB held on 20th January, 2016, had the
revised marks of the respondent 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 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 the
SPB held on 20th January, 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
Civil Appeal No. 17535 of 2017 Page 14 of 16
SPB.
22) Other aspect which is highlighted by the AFT in the
impugned judgment is equally significant, viz., Noting No. 3 of the
Board proceedings was factually incorrect. As pointed out above,
as per Noting No.3, the respondent’s CR merit in chance one
changed from 16th position to 15th position among 18 officers
considered for only 6 vacancies. This Noting gave the impression
that even after the redress, the chances of promotion of the
respondent hardly improved. On the contrary, fact is that after the
redress, position of the respondent had jumped from 16th to 7th
.
Another significant aspect which was omitted was that with this
jump, his quantified check marks (i.e. out of 93) became more
than Major General Sanjeev Chopra, who was promoted after his
assessment in the original SPB even when he was junior to the
respondent. But for this error, there was a possibility of different
outcome even on value judgment of the respondent by the Board
Members.
23) For these reasons, we are not interfering with the directions
given by the AFT. We make it clear that in any future selections,
it would always be open to the Members of the Board to award
the marks (out of 2 marks assigned for this purpose) keeping in
Civil Appeal No. 17535 of 2017 Page 15 of 16
view the overall profile of the officers as per Promotion Policy
dated 14th January, 2004 and as amended vide letter dated 17th
May, 2006.
24) This appeal is, accordingly, dismissed with the direction to
the appellant to take further steps, without loss of time, as stated
by the AFT in the impugned judgment.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
NOVEMBER 10, 2017
Civil Appeal No. 17535 of 2017 Page 16 of 16
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 17535 OF 2017
UNION OF INDIA AND OTHERS .....APPELLANT(S)
VERSUS
MAJ. GEN. MANOMOY GANGULY, VSM .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Respondent herein belongs to the Army Medical Corps. He
is the Major General and aspires to become Lieutenant General
(Lt. Gen.), which is next higher rank in his cadre. First Special
Promotion Board (SPB), for this purpose was held on 20th
January, 2016 but he was not empanelled to the rank of Lt. Gen.
by the said Board. His statutory complaint there against was
partially redressed whereby an assessment of the Technical
Officer (TO) in his Annual Confidential Report (ACR) of 2014 was
expunged. This entitled him to fresh screening by Review SPB
which held its meeting on 21st March, 2017. However, even
Civil Appeal No. 17535 of 2017 Page 1 of 16
Review SPB did not empanel him for the promotional rank. After
exhausting departmental remedies in the form of statutory
complaint etc., the respondent approached the Armed Forces
Tribunal (for short, ‘AFT’) and has finally succeeded inasmuch as
vide orders dated 2nd September, 2017, passed in O.A. No. 1093
of 2017, the AFT has quashed the proceedings of Review SPB on
the ground that it had allotted wrong board marks to the
respondent. Directions are given to convene fresh Review SPB
to consider him for promotion to the rank of Lt. Gen. in
consonance with the parameters of relevant policies and his
changed profile after allotting entitled board marks as stated in
the said judgment, and to also restore his seniority. This appeal
aims at questioning the correctness of the said judgment of the
AFT.
2) Facts which are absolutely essential for disposal of this appeal
may be mentioned at this stage:
3) The respondent was commissioned in the Army Medical Corps
(AMC) on 3rd March, 1980. He has an outstanding academic
record and brilliant service record, for which he has been
decorated time and again. This includes GOCin–C”s
Commendation in the year 2013, Commendation of Chief of Army
Civil Appeal No. 17535 of 2017 Page 2 of 16
Staff in the year 2014 and Vishisht Seva Medal in the 2015. He
has earned promotions from time to time, whenever became due
and has arisen to the rank of Maj. Gen. He is due for
superannuation in this rank on 31st May, 2018.
4) The respondent was considered for promotion to the rank of Lt.
Gen. and equivalent by SPB held on 20th October, 2016.
However, vide DGAFMS letter dated 1st March, 2016, the
respondent was informed that he was not empanelled for
promotion. The respondent submitted his statutory complaint
dated 30th June, 2016 against his non-empanelment challenging
certain assessments in his relevant annual confidential reports.
After seven months, the appellant granted partial redressal to the
respondent vide their letter dated 30th January, 2017, by way of
expunging the entire assessment of the TO in the respondent’s
ACR of 2014 on grounds of inconsistency, and directed that the
respondent be considered for promotion by an appropriate
Promotion Board. Consequent to the redressal granted to the
respondent, his overall ACR profile for consideration before the
SPB improved and consequently his merit logically came above
that of the last officer empanelled in the SPB held on 20th
January, 2016. Since, the redressal was granted, as per the
Civil Appeal No. 17535 of 2017 Page 3 of 16
policy of the appellants, the respondent had to be put through a
fresh/Review SPB.
5) It is pertinent to note at this stage that as per the Promotion
Policy dated 14th January, 2004 as amended by the Government
of India letter dated 17th May, 2006, the selection criteria was
based on following parameters:
“(a)Average marks of ACR : 90 marks extrapolated out of 90
(b)Total Marks for various : 02 marks
Qualifications like MD, DM,
M.Ch. etc.
(c) Marks for Military Awards of : 01 marks
Decorations
(d) Marks awarded by the members : 02 marks
of the Board
Total Marks : 95 marks”
6) The composition of the Promotion Board (Medical) is as per the
Ministry of Defence letter No. 301/DGAFMS/DG-1X/87-S/D
(Med.) dated 8th February, 1988 and for the SPB for promotion to
the rank of Lt. Gen. (&equiv) the board comprises:
Chairman : Chairman Chiefs of Staff Committee
Members : The other two Chiefs of Staff
Member Secretary : DGAFMS
7) As noted above, as per the Promotion Policy, the Board Members
Civil Appeal No. 17535 of 2017 Page 4 of 16
are empowered to assess and award the marks. Award of these
marks, not exceeding two (2), is based on the overall profile of
the officer, exceptional achievements, appointments held, medical
category, disciplinary background, field area – difficult area
posting. Average of the marks awarded by all the Board
Members present, out of two (2), is used to calculate the overall
marks.
8) The procedure for selection and promotion which is
communicated vide Circular dated 14th January, 2004 issued by
the Ministry of Defence (MoD), Government of India and as
amended vide letter dated 17th May, 2006 enumerates basis for
awarding two marks keeping the following criteria in mind.
“Weightage to the Members of the Board: Board
Members will have a weightage of two (2) mark for
selection of the officers. The Board Members may
award marks not exceeding two (2) based on the
overall profile of the officers, exceptional
achievements, appointments held, medical category,
disciplinary background, field Area-Difficult Area
posting. Average of the marks awarded by all the
board members present, out of the two (2), will be
used to calculate the overall marks.”
Thus, it can be discerned that while 93 marks (ACR
average 90, qualification marks-02, honour and awards – 01) can
be quantified on the basis of relevant records, and need only
Civil Appeal No. 17535 of 2017 Page 5 of 16
arithmetical calculations, marks to be assigned by the Board
Members out of two(2), depend on the subjective assessment of
the Board Members, al beit, after objectively evaluating the
overall profile on the parameters laid down in the Promotion
Policy.
9) From the aforesaid facts, it is clear that insofar as award of 93
marks, out of 95 marks, is concerned that can be calculated
arithmetically on the basis of ACR, academic qualifications as
well as military awards and decorations. Discretion is given to the
Board to give weightage out of 2 marks and while exercising
these discretions the Members of the Board are supposed to
keep in mind the overall profile of the concerned officer,
exceptional achievements, appointments held, medical category,
disciplinary background, field area—difficult area posting.
10) Insofar as the respondent is concerned, he was assigned
87.90 marks on the basis of ACR, i.e., against extrapolated out of
90 marks, when his case was considered for promotion originally
by the SPB on 20th January, 2016. However, after redressal of
his statutory complaint which resulted in expunging of some
adverse remarks in ACR of the year 2014, these extrapolated out
of 90 marks stood enhanced to 88.50. However, in the Review
Civil Appeal No. 17535 of 2017 Page 6 of 16
SPB, the Board stuck to the same marks which were awarded by
the first Promotion Board. In this manner, though there was some
increase in the total marks awarded to the respondent (as a result
of increase in marks on account of ACRs). The final marks
awarded to him were still below the cut-off marks because of
which he was not empanelled for promotion by the Review Board
as well. The entire controversy before the AFT, thus, pertained to
the award of marks by the Board Members in the Review SPB.
11) The case pleaded by the respondent before the AFT was
that one Mr. Sanjeev Chopra, VSM, who was junior to the
respondent was empanelled by the SPB on the basis of
proceedings held on 20th January, 2016. Total marks obtained by
him out of 93 marks (i.e. without Board marks) were more than
the respondent at that time. However, with increase of ACR
marks of the respondent after his redress, total marks of the
respondent out of 93 marks became more than that of Mr.
Sanjeev Chopra. But the respondent was still denied promotion
by the Review SPB by awarding marginally less marks than
Sanjeev Chopra by the Board. It was argued that since total
without board marks of the respondent were more than that of Mr.
Sanjeev Chopra, there was no reason for the Board to give him
Civil Appeal No. 17535 of 2017 Page 7 of 16
lesser weightage while awarding marks out of the 2 marks by the
Board.
12) This contention is accepted by the AFT in the following
manner:
“We have heard the learned counsel for the parties
and seen the records. The man point of dispute is the
award of Board Marks to the applicant during the
Review Special Promotion Board held on 21.03.2017.
It is a matter of record that the redressal given to the
applicant by the respondent in his Annual Confidential
Report for the year 2014 has enhanced his quantified
marks from 90.65 to 91.25 and with these revised
quantified marks, the applicant jumps above the last
empanelled officer of his batch, i.e., Major Gen
Sanjeev Chopra whose quantified marks are 91.15.
We find that Maj. Gen Sanjeev Chopra with lower
quantified marks in comparison to the applicant has
been given 1.70 out of two marks by the Board. We
have also been the trend of awarding the Board Marks
to all officers considered in this Board which is
commensurate with the quantified marks of the
candidates. Therefore, the same cannot be denied to
the applicant unless it is justified by the Board
Members, which has not been done in the Board
Proceedings.”
13) In the process, the AFT has also observed that wrong facts
were projected to the Board Members inasmuch as in the noting
of the Board proceedings it is, inter alia, mentioned that ACR
merit of the respondent in Chance one changed from 16th position
to 15th position among 18 officers considered for only six
vacancies. Noting No. 3 of the Notings in the Board proceedings,
giving this information, reads as under:
Civil Appeal No. 17535 of 2017 Page 8 of 16
“3. His CR merit in chance one changed from 16th
position to 15th position among 18 officers considered
for only six vacancies.”
14) The AFT found that it was factually wrong as the
respondent’s revised profile after getting redressal had resulted in
elevating his position to 7th place instead of 15th. According to the
AFT, had there been correct facts before the Board Members,
they may have given higher marks to the respondent. The AFT
has even castigated the officers who, according to the AFT, were
guilty of furnishing wrong information which caused serious
injustice to the respondent and subverted the system.
15) The AFT mentioned that since Mr. Sanjeev Chopra was
given 1.70 marks out of the two marks, by the Board, there was
no reason to give 1.50 marks to the respondent. Having regard
to the fact that in the original SPB meeting, award of these marks
commensurate with the quantified marks of the candidate, the
respondent is also entitled to 1.70 marks and in this way he would
attain above the cut-off marks and more marks than given to Mr.
Sanjeev Chopra, who has been promoted as Lt. Gen.
16) Challenging the aforesaid approach of the AFT, Mr.
Maninder Singh, learned Additional Solicitor General appearing
for the appellant submitted that AFT has committed a grave error
Civil Appeal No. 17535 of 2017 Page 9 of 16
in undermining the discretion that is given to the Members of the
Board for award of board marks. It is pointed out that these
marks are not to be given on the basis of ACRs. On the contrary,
it is on the basis of overall profile of the concerned officer which
included exceptional achievements, appointments held, medical
category, disciplinary background, field area-difficult area posting
etc. In this very hue, it is also contended that it was not
permissible for the AFT to determine as to how many marks are
to be given to the respondent and by doing so the AFT has
usurped the function of the Members of the Board. It is also
submitted that Members of the Board are Chiefs of Air force,
Army and Navy. It can reasonably be inferred that they would
have gone through overall profile of the respondent and still
decided to maintain the same marks in the Review SPB which
were given to the respondent in the original SPB held in January,
2016. On this basis, the learned ASG also took strong exception
to the remarks of the AFT that the three Service Chiefs are hardly
expected to examine the records in minute details.
17) There is no dispute insofar as legal propositions advanced
by the learned ASG are concerned. Undoubtedly, the Members
of the Board are empowered to award marks out of the two marks
Civil Appeal No. 17535 of 2017 Page 10 of 16
which are reserved for them. For this purpose, it is not the ACR
alone but the entire profile of an officer which is to be looked into.
Insofar as, marks for ACR are concerned these have already
been awarded under the head ‘average marks of ACR
extrapolated out of 90’. It shows that significant importance is
attached to the ACRs inasmuch as 90 marks out of 95 marks are
to be assigned on the basis of ACRs. Therefore, it cannot be
disputed that while awarding marks out of the two marks reserved
for the Members of the Board, they can examine the overall
profile of the officer and are not supposed to restrict it to the ACR
alone. It also needs no elaboration that Board Members are the
three Chiefs of Services and it can very well be presumed that
they would assess an officer in an objective manner. Indubitably,
higher degree of trust can be reposed in them and their
assessment is not to be interdicted unless very weighty and
overwhelming material is produced warranting interference while
undertaking judicial review of such an exercise.
18) We may mention here that the appellants had placed strong
reliance upon the earlier judgment of the AFT dated 16th January,
2015 rendered in OA No. 120 of 2014 entitled Major General S.K.
Chakravorty v. Union of India and Others. In that case, the AFT
had held that the allocation of system of marks, i.e., award of
Civil Appeal No. 17535 of 2017 Page 11 of 16
marks by the Board Members out of two (02) marks allotted to the
Board, is based on value judgment. In the impugned judgment,
the AFT distinguished the said judgment with the remarks that
that case was not in respect of the Armed Medical Corps wherein
the assessment is based on quantified check marks. This basis of
distinguishing the judgment in S.K. Chakravorty is clearly
erroneous. We may note that the provision for assessment for
promotion to Lt. General is same whether it is Army per se or
Armed Medical Corps. The principle enunciated in S.K.
Chakravorty is based on the judgments of this Court in Air Vice
Marshal S.L. Chabbra, VSM (Retd.) v. Union of India & Anr.1
,
Major General I.P.S. Dewan v. Union of India & Ors.2
, Dalpat
Abasaheb Solunke & Ors. v. Dr. B.S. Mahajan & Ors.3
, and
Surinder Shukla v. Union of India & Ors.4
19) Having said that, insofar as the present case is concerned,
we find it difficult to disagree with the ultimate conclusion arrived
at by the AFT in the facts of this case, even if some of the
observations of the AFT may not be correct. Most important
feature which is noted by the AFT and could not be disputed by
the appellant is the manner in which exercise was undertaken
1 (1993) Supp (4) SCC 441
2 (1995) 3 SCC 383.
3 (1990) 1 SCC 305
4 (2008) 2 SCC 649
Civil Appeal No. 17535 of 2017 Page 12 of 16
while holding SPB meeting on 20th January, 2016. Even when
the Board Members were entitled to give marks to the candidates
on the basis of overall profile that was not done. On the contrary,
the marks given to those officers who were considered in that
SPB, were strictly on the basis of marks obtained by them out of
93 marks.
20) That becomes clear from the record produced by the
learned ASG for our perusal at the time of hearing. This is the
case in respect of all officers, without any exception. The AFT is
right in observing that in the meeting held on 20th January, 2016
Board Marks to all officers who are considered commensurate
with the quantified marks of the candidates. Thus, the Board
Members adopted the criteria of looking into the quantified marks
as the yardstick for assessing overall profile.
21) 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
Civil Appeal No. 17535 of 2017 Page 13 of 16
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 the SPB held on 20th January, 2016, had the
revised marks of the respondent 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 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 the
SPB held on 20th January, 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
Civil Appeal No. 17535 of 2017 Page 14 of 16
SPB.
22) Other aspect which is highlighted by the AFT in the
impugned judgment is equally significant, viz., Noting No. 3 of the
Board proceedings was factually incorrect. As pointed out above,
as per Noting No.3, the respondent’s CR merit in chance one
changed from 16th position to 15th position among 18 officers
considered for only 6 vacancies. This Noting gave the impression
that even after the redress, the chances of promotion of the
respondent hardly improved. On the contrary, fact is that after the
redress, position of the respondent had jumped from 16th to 7th
.
Another significant aspect which was omitted was that with this
jump, his quantified check marks (i.e. out of 93) became more
than Major General Sanjeev Chopra, who was promoted after his
assessment in the original SPB even when he was junior to the
respondent. But for this error, there was a possibility of different
outcome even on value judgment of the respondent by the Board
Members.
23) For these reasons, we are not interfering with the directions
given by the AFT. We make it clear that in any future selections,
it would always be open to the Members of the Board to award
the marks (out of 2 marks assigned for this purpose) keeping in
Civil Appeal No. 17535 of 2017 Page 15 of 16
view the overall profile of the officers as per Promotion Policy
dated 14th January, 2004 and as amended vide letter dated 17th
May, 2006.
24) This appeal is, accordingly, dismissed with the direction to
the appellant to take further steps, without loss of time, as stated
by the AFT in the impugned judgment.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
NOVEMBER 10, 2017
Civil Appeal No. 17535 of 2017 Page 16 of 16
