Union of India and Others v. Maj. Gen. Manomoy Ganguly. Vsm

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 17535 of2017 From the Judgment and Order dated 02.09.2017 in O. A. No. 1093 of 20JV and Judgment and Order dated 05.10.2017 in M.A. No. 1252of2017 of the Principal Bench, Armed Forces Tribunal, New Delhi. Maninder Singh, ASG, Harish V. Shankar, Raj iv Nanda, Ms. Nisha Mohandas, Mukesh Kumar Maroria, Ad vs. for the Appellants. Mukul Rohatgi, Ms. Jyoti Singh, Sr. Advs., Sudarshan Rajan. Ms. Shriya Chauhan,ArchitArora, Ramesh Rawat, Karanjot Singh,Advs. for the Respondent. 65 GANGULY, VSM The Judgment of the Court was delivered by A. K. SIKRI, J. I. 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 20'h Januaiy, 20 16 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) of2014 was expunged. This entitled him to ·fresh screening by Review SPB which held its meeting on 21" March, 2017. However, even Review SPB did not empancl 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 vi de orders dated 2"'1 September, 20 l 7, passed in O.A. No. I 093of2017, 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 j udgmcnt, and to also restore his seniority. This appeal aims at questioning the correctness of the said judgment of the AFT. 2. Facts which arc absolutely essential for disposal of this appeal may be mentioned at this stage: 3. The respondent was commissioned iri the Anny Medical Corps (AMC) on 3"1 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 Staff in the year 2014 and Vishisht Scva 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 superairnuation in this rank on 31" May, 2018. 4. The respondent was consi~cred for promotion to the rank of Lt.

Gen. and equivalent by SPB held on 20fu January, 2016. However, vide DGAFMS letter dated l" March, 2016, the respondent was informed that he was not empanelled for promotion. The respondent submitted his statutory complaint dated 3Q•h June, 20 l 6 against his non-empanelment 66 SUPRE'.'v1E COURT REPO' (2017] I I S.C.R. challenging Lcnain assessments in his relevant annual cunfidLntial reports. Atler ,;cwn month,, th~ 1ppellanr grunted p<1rtial 'edrcssal to the respondent v1dc t11c1r letter aatcd 30" January. 2017. by way ol expunging the entire assessment of the TO in the respondent's ACR of 2014 on grounds ofi•1rnnsistcney. and directed that the respondent be considered for promotion by aq appropriate Promotion Board. Consequent tn the rcdrcssal grantc<t lo the respondent. his overall ACR profile fur considi:rat1on . .:tort thL' SPli 1mprov~tl and consequently his 1ncrit logically came above tha1 of the last officer cmpancllc<t in the SP13 hdd on 20"' January. 20! 6.

Since, the rcdrcssal was granted. as per th,· policy of the appcllams, lhc respondent had to be put through a frcsh1Rcvicw SPR. 5. It is pertinent to note at this stage that as per the Promotion Policy dated J 4'" January. 2004 as amended by the Government of India letter dated 17'" May, 2006, the selection criteria was based on following pammcters: "(a)Avcragc marks of ACR : 90 marks extrapolated out of 90 (b)Total Marks for various : 02 marks Qualificatiq,ns like MD, OM, M.Ch. etc. (c)Marh for Military Awards of: OJ marks Decoratio11s (d)Marh 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 ofDefonec letter No. 301/DGAFMS/DG-IX/87-S/D (Med.) dated 8'" 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 are empowered to assess and award the marks. Award of 67 GANGULY. VSM [A. K. S!KRI, .I.] these marks. not exceeding rwo (2). is based on the overall profile of the officer. exceptional achievements. appointments held, medical category, disi:iplinary 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 14"' January. 2004 issued by the Ministry of Defence (MoD), Government oflndia and as amended vidc letter dated l 7'" 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 otlicers.

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 Arca-Difficult Arca 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 - 0 I) can be quantified on the basis of relevant records, and need only arithmetical calculations, marks to be assigned by the Board Members out of two(2), depend on the subjective assessment of the Board Members, albeit, 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 of93 marks, out of95 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 arc supposed to keep in mind the overall profile of the concerned olliccr, exceptional achievements, appointments held, medical category, disciplinary background, field area---<lifficult area posting. IO. Jnsofar 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 68 [2017] l l S.C.R. 20'" 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 of9U marks stood enhanced to 88.50.

However, in the Review SPB, the Board stuck to the same marks which were awarded by the first Promotion Board. In this manner, though there was some mcrcase 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 w<irc still below the cut-off marks because of which he was not empanell~d for promotion by the Review Board as well. The entire controversy be.fore 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. Sanjccv Chopra, VSM, who was junior to the respondent was empanelled by the SPB on the basis of proceedings held on 20'" January, 2016. Total marks obtained by him out of93 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 (jut of93 marks became more than that ofMr.

Sanjeev Chopra. But the rqspondent was still denied promotion by the Review SPB by awarding marginally less marks than Sanjccv 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 lcsscrweightagc 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 2 l.03.2017.

It is a matter ofrecord 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 arc 9 l.15. We find that Maj. G¢n 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 69 GANGULY. VSM [A. K. SIKRI, J.] 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 16'" position to 15'" 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: "3. His CR merit in chance one changed from 16'" position to 15'' position among 18 otlicers considered for only six vacancies." 14. TheAFTfmmd that it was factually wrong as the respondent's revised profile after getting redressal had rcsulled in elevating his position to 7'' place instead of 15m. 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 otlicers 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. Sanjccv Chopra was given I. 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 in undermining the discretion that is gi vcn to the Members of the Board for award of board marks.

It is pointed out that these marks arc 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, 70 [2017) I I S.C.R. appointments held, medical category, disciplinary background. field areadifficult 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 arc to be given to the respondent and by doing so the AFT has usurped the function of the Members of the Board. It is abo submitted that Members of the Board are Chiets of Air force, Army and Navy. It can reasonably ~c infcn-cd that they would have gone through overall profile of the respQndcnt 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 rcl!larks of the AFT that the three Service Chiefs arc hardly expected tu 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 arc empowered to award marks out of the two marks which arc reserved for them. For this purpose, it is not the ACR alone but the entire profile of an ot1icer which is lo 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 arc 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 offa:cr and arc not supposed tu restrict it to the ACR alone.

It also needs no elaboration that Board Members arc 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 intcrfcrcnuc while undcrtakingjudicial 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 16'" January, 2015 rendered in OA No. 120 of 2014 entitled Major General S.K. C/wkravorty v. Union <!f India and Others. In that case. the AFT had held that the allocation of system of marks, i.e., award of 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 71 GANGULY. VSM [A. K. SJKRI, J.] in respect of the Armed Medical Corps wherein the assessment is based on quantified check marks.

This basis of distinguishing the judgment in SK. 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 SK. Chakravorty is based on the judgments of this Court in Air Vice Marshal ~:L. C/111bbra, VSM (Reul) v. Union of India & Am:'. Major General J.P.S. Dewan v. Union of India & Ors.'· Dafpat Abasaheb Sol1111ke & Ors. v. Dr. B.S • .!11"/111j1111 & Ors. 3, and S11rinder S/111klt1 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 while holding SPB meeting on 20'h 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 become.~ 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 20'h 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 of2 marks whereas the respondent was awarded 1.50 marks.

Lesser marks given to the respondent were because of the reason that marks aw:irded to him out of93 were lesser than Mr. Sanjccv Chopra. Result of the redressal was that the marks of the respondent became higher than Mr. Sanjecv Chopra which necessitated Review ·' (1993) Supp (4) sec 441 '0 995) 3 sec 383. '1199011sec305 • 12008) 2 sec 649 72 [2017] II S. C.R. SPB. This Review SPB meeting has to be on the same standards which were adopted in otiginal 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. Ill the SPB held on 20'h January, 2016, had the revised marks of the respondent available, which were more than the quantified marks ofSanjeev Chopra, the respondent would have ce1tainly got I. 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 oflooking into the "overall profile" in the SPB held on 20'" January, 2016 and instead assigning the marks to all the officers m1t of2 marks, on the basis of quantified marks of the candidates whicll 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 s;1111e criteria. Only that would show fairness in approach, which would also be in conformity with the principles of equality enshrined inA1ticlc 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. 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 l 6'h position to ! S•h 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 16'" to 7'". 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 Sanjcev 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 arc not interfering with the directions given by the AFT.

We make it clear that in any fnture selections, it would always be open to the Members of the Board to award the marks (out of2 marks assigned for this purpose) keeping in view the overall 73 GANGULY, VSM [A. K. SIKRI, J.) profile of the officers as per Promotion Policy dated 14" January, 2004 and as amended vide letter dated I 7" 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. Kalpana K. Tripathy Appeal dismissed.