UDAY UMESH LALIT,J. - (1.) These appeals question the following judgments and orders passed by the Armed Forces Tribunal, Regional Bench, Lucknow. (a) Civil Appeal No.11009 of 2017 is directed against the Judgment and Order dated 17.01.2017: (b) Civil Appeal (Diary) No.40312 of 2017 with an application for leave to appeal is directed against the Judgment and Order dated 12.09.2017. Leave to appeal granted.
(2.) The relevant facts in the present case are as under:- (A) The respondent was initially enrolled in the Indian Army as Sowar in 1981. He cleared the examination conducted by Union Public Service Commission in the year 1988 and got commissioned as an Officer and was posted as Second Lieutenant in the Ordnance Corps of the Army. During his career, he received some commendations and appreciations. However, the respondent was summarily tried under Section 83 of the Army Act, 1950 (hereinafter referred to as the Act) by Commander, 29 Artillery Brigade for the offence of 'absenting himself without leave' for 03 days from 27.06.1991 to 29.06.1991. The Respondent pleaded guilty to the charge under Section 39(a) of the Army Act and was sentenced to 'Reprimand'. (B) While the respondent was serving as Major in 2004-05, he was tried by General Court Martial on four charges. The first charge was under Section 52 to the effect that while the respondent was posted at Saugor between November 2000 and May 2002, he pursued a case for procurement of 8.64 hectares of land belonging to Government of Madhya Pradesh for the purposes of building a War Memorial in the memory of late Sepoy Hawa Singh, who was the elder brother of the respondent. The second charge was connected to the first one and was to the effect that while performing duties as officiating Commanding Officer he improperly wrote a Demi Official letter on 09.11.2000 to the Collector, Saugor for allotment of the aforesaid land. The third charge was connected to the second one while according to the fourth charge the respondent had failed to submit report about the acquisition of said land in contravention of Army Order 3/S/98. (C) On 16.05.2005, he was found guilty of the first and third charges but guilty of the second and fourth charges and was sentenced to be cashiered and to suffer rigorous imprisonment for three years. On 21.10.2005, the competent disciplinary authority confirmed the findings as regards the first, second and fourth charges but did confirm the finding on the third charge The sentence awarded by the General Court Martial was confirmed with remission of six months out of three years rigorous imprisonment. Though the Court of Inquiry relating to the matter in issue was undertaken on 07.07.2001 the trial in respect of said charges had commenced on 19.10.2004. (D) The respondent being aggrieved, preferred statutory complaint under Section 165 of the Act. During the pendency of said complaint, selection for promotion to the rank of Colonel of 1988 Batch Officers was undertaken in August 2006 and appropriate selections were made. Since the respondent, by that time had stood punished in the General Court Martial, his candidature was considered. (E) As his Statutory Complaint was considered in due course, the respondent filed a Writ Petition in the High Court of Delhi which was later transferred to Armed Forces Tribunal, Calcutta. In pursuance of the directions issued at the interim stage by the Armed Forces Tribunal, the consideration of the pending Statutory Complaint was taken up and the matter was referred to the learned Solicitor General of India for his opinion. As the opinion given by the learned Solicitor General on 01.11.2013 has been extensively quoted and relied upon in the Judgments under appeal, the concluding part of the opinion is extracted hereunder: "17. Since the first Court of Inquiry was ordered to be convened on 07.07.2001, it can be said that the knowledge of the alleged offence (i.e. fraudulent allotment of land) was gained on or before such date. The Applicant's trial commenced from 19.10.2004, which is 3 years beyond such date. Thus, in my opinion, the CGM proceedings are barred by limitation. 18. Even on merits, the finding of the guilt by the CGM is tenable in view of the fact that even the Ministry is clear in whose name the land was allotted, as mentioned above in paragraph 12 and that the allotment was even otherwise valid in so far as the MP Government was concerned, as dealt with in paragraph 15. There has been no challenge to the findings arrived at by the magisterial inquiry. 19. It is also an admitted fact that the purpose of the allotment was only to build a war memorial, which has been done by virtue of surrender of the land to the Government. I am also unable to see any wrongful pecuniary gain. From an overall perspective, the intent of the Applicant cannot be said to be something which is forbidden by law. It was only to perpetuate the memory of his brother. Taking all these facts cumulatively, in my opinion, the findings of the GCM appear to be unacceptable. My view is also confirmed by Note 89 as would be evident from the file of Mr. Praveen Kumar (Director AGI")." (F) By Order dated 20.11.2013, the Central Government allowed the Statutory Complaint preferred by the respondent and directed:- "8. Now, therefore, the Central Government, under the powers conferred under section 165 of the Army Act, 1950 do hereby annul the proceedings of the General Court Martial findings and sentence dated 16th May, 2005 and confirmation order dated 21st October, 2005 being illegal and unjust and allow the petition filed by IC-47908F, Major Ran Singh Dudee, of 36 DOU. Consequently, the penalty imposed upon IC-47908F Ex Major Ran Singh Dudee of 369 DOU stands quashed and he is entitled to all consequential benefits as admissible under rules on the subject." (G) The respondent was thereafter reinstated in service on 13.01.2014 and paid all consequential benefits for the entire period. On 16.08.2014, the respondent was promoted to the rank of Lt. Colonel with effect from 16.12.2004. Sometime in January, 2015, an officer who was junior to the respondent was promoted to the rank of Brigadier. A representation was therefore made by the respondent for grant of all "consequential benefits". He was principally aggrieved by his nonempanelment for promotion to the rank of Brigadier. Around this time on 30.06.2015, the respondent was granted Time Scale promotion as Colonel, on completion of 26 years of service. (H) As regards the grievance made by the respondent and his representation in that behalf, the matter was again referred to the Law Officer of the Government of India who in his opinion dated 30.12.2015 opined that the respondent could be denied promotion to the rank his batch mates and immediate juniors were promoted, that the Government of India having directed in the Order dated 20.11.2013 that all consequential benefits be given to the respondent, the mandatory demands under the relevant Rules would stand waived and that the respondent should be granted the rank of a Brigadier. Serious reservation was however expressed by the Department which was of the view that no promotion to the rank of Brigadier could be granted except through the modalities of selection by the Selection Board and an appropriate Note was written in that behalf by the Additional Secretary in the Ministry of Defence on 03.02.2016. No.3 Selection Board was thereafter constituted and in the assessment made by said Selection Board on 26.04.2016, the respondent was found fit and as such was empanelled. (I) The respondent being aggrieved filed OA No. 260 of 2016 in the Armed Forces Tribunal, Regional Bench, Lucknow questioning his non-empanelment in the rank of Brigadier. It was submitted, inter alia, that: (i) The respondent came from a family of soldiers. Though enrolled as Sowar in the year 1981 by sheer dint of hard work he got the status of a Commissioned Officer in the year 1988. In his posting in Kargil he received COAS Commendation Card. He also received Letter of Appreciation from General Officer Commanding 36 Infantry Division and was recommended for Sena Medal in 2002. (ii) In 1990 he had made complaints against his superiors citing various irregularities. Further, sensing threat to his life he had reported the matter to the Brigadier Commander. Offended by such reporting, the respondent was falsely implicated in a Court of Enquiry which found nothing against him. A first information report was also lodged which was found to be stage managed. On the contrary in the Court of Enquiry, the officers against whom the respondent had complained, were found guilty and were suitably punished. (iii) In the year 1997 while he was posted at Jodhpur, he was a member of the Tender Opening Board for Pokhran field firing ranges. He had lodged complaint to the superior authorities with regard to mal-practices in auction proceedings pursuant to which proceedings of auction were annulled. (iv) Since he had reported about corrupt practices of the superiors, the superiors in retaliation had forged the documents of Revenue Court ascribing motive to the respondent as regards allotment of land. Though initially he was visited with an order of punishment, namely, "Recording of Displeasure", said punishment was later set aside. (v) He was wrongly implicated in the General Court Martial. In any case his innocence stood established by reason of order dated 20.11.2013 which inter alia had directed that he was entitled to all consequential benefits. (vi) In his submission because of the pendency of General Court Martial proceedings he was kept out of active service for nine years. Relying on the opinion given by the Law Officer on 30.12.2015 he submitted that he was entitled to the rank of Brigadier. (J) On the other hand, it was contended on behalf of the appellants that the respondent did fulfill the required criteria in terms of policy and had put in requisite period of service while holding the rank of Colonel. It was further submitted that promotion to the post of Colonel could either be purely on the basis of selection by the Board or could simply be on the basis of length of service which is normally known as time scale promotion. The Selection Board in question, namely, No.3 Selection Board had found the respondent fit to be promoted by "Selection". (K) The Armed Forces Tribunal principally relied on the opinion dated 01.11.2013 of the learned Solicitor General and the order dated 20.11.2013 to come to the conclusion that the respondent was framed by certain persons on unfounded grounds. It further held that the order dated 20.11.2013 was clear that the respondent was entitled to all "consequential benefits" and as opined by the Law Officer in his opinion dated 30.12.2015 the respondent ought to have been promoted as Brigadier. The Armed Forces Tribunal found that the Department was justified in ignoring the opinion of the Law Officer and in generating the Note dated 03.02.2016. It concluded: "There is no room for doubt that ordinarily, right to consider is a fundamental right and in case, the case is considered and incumbent does qualify because of lack of criteria, he cannot lay claim for promotion. However, the fact remains where in the facts and circumstances as in the present, because of grant of consequential benefits and loss of promotional avenues by virtue of pendency of General Court Martial (supra) and having suspended service period on account of such proceeding which has been held to be based on unfounded facts and allegations, rights that accrue to the Applicant on account of setting aside of punishment order, include the right to seek promotion to the higher rank from the date his juniors have been promoted keeping in view the facts and circumstances of the present case." (L) The Armed Forces Tribunal thus by its judgment and order dated 17.01.2017 directed that a final decision be taken by the appellants keeping in view the opinion expressed by the Law Officer for promotion of the respondent to the rank of Brigadier "Selection Grade". (M) The appellants being aggrieved approached this Court by filing Civil Appeal No.11009 of 2017. While issuing notice, this Court passed the following direction on 01.02.2017: "In the meantime, there will be stay of operation of the impugned judgment on the condition that the appellants shall take a decision on the promotion of the respondent to the rank of Colonel, within a period of two weeks from today, in accordance with law." (N) No.3 Selection Board was, therefore, constituted on 3.02.2017 which considered the candidature of the respondent and the question whether he was fit to be promoted by selection to the rank of Colonel. The proceedings dated 13.02.2017 indicate that the Board considered the profile of the respondent alongwith three other officers (Two of them being empanelled officers - the second being the lowest empanelled officer and the third being one who was empanelled). As per record, the matter was considered on the basis of six indicia namely (i) Overall C.R. Profile, (ii) Lowest C.R. Assessment, (iii) Recommendations for promotions, (iv) Course Profile, (v) Lowest Course grading and (vi) Discipline Profile. As against the candidates who were empanelled and the one who was empanelled, the respondent's profile was found to be lower than all three of them in terms of aforesaid Indicia Nos.(ii), (iv) and (v). Further as against Indicia No.(vi), where all those three officers had "NIL" entry the profile of the respondent indicated "reprimand" which was issued in 1991. It may be noted that only one out of those three officers who was empanelled had "Average CR Profile" graded as "Above Average to Outstanding" which was the same as the respondent. Considering the comparative profile of the respondent and those three officers, it was found that the respondent was fit to be promoted by selection to the post of Colonel. The assessment made by the aforesaid No.3 Selection Board was approved by Chief of Army Staff. (O) The Comparative Chart regarding profile of those three officers and the respondent is extracted hereunder. We have however disclosed the names of those three officers.Comparative Profile JUDGEMENT_17_LAWS(SC)7_2018_1.html (P) The respondent challenged the decision of No.3 Selection Board by filing OA No.104 of 2017 before the Armed Forces Tribunal, Regional Bench, Lucknow. When Civil Appeal No.11009 of 2017 was taken up, this Court recorded the fact that the Selection Board had found the respondent unfit to be promoted as Colonel against which decision challenge was pending before the Armed Forces Tribunal. The appeal was, therefore, adjourned to await the decision of the Armed Forces Tribunal while continuing the interim order passed earlier. (Q) The Tribunal reproduced the Comparative Chart which was part of the record including names of the officers concerned. According to the Tribunal the entry of "Reprimand" which was of the year 1991 could and ought to have been taken into account, more particularly when a clear opinion was expressed by the Law Officer on 30.12.2015. It did consider the fact that on Indicia Nos.(ii), (iv) and (v) the respondent was definitely found lower than other three officers but relied upon the fact that the overall C.R. Profile was adjudged "Above Average to Outstanding" whereas the lowest empanelled officer was actually graded as "Above Average". The Tribunal observed: "31. We have noticed that over all profile of the empanelled officer is above average whereas the applicant's over all profile is above average to outstanding. How the applicant's over all profile has been adjudged to be lower than the last selectee is comprehensible. 32. We thus feel that the Selection Board has acted fairly and justly after applying mind to the original records and seems to have considered the applicant's case with pre-disposed mind." (R) The Tribunal thus found the analysis and assessment made by No.3 Selection Board to be perverse. While allowing Original Application No.104 of 2017 vide its judgment and order dated 12.09.2017, the Tribunal directed the appellants to constitute a fresh Selection Board and reconsider the case of the respondent in the light of the judgment of the Tribunal. The Tribunal also awarded costs to the respondent which were quantified at Rs. 5 lakhs. (S) The appellants thereafter approached the Armed Forces Tribunal under Section 31 of the Armed Forces Tribunal Act, 2007 seeking leave to appeal to this Court. The application was however rejected on 13.11.2017, whereafter Civil Appeal (Diary) No.40312 of 2017 was preferred by the appellant alongwith an application for leave to appeal.
(3.) Both these appeals being inter-connected and between the same parties, were taken up for hearing together. We heard Mr. Maninder Singh, learned Additional Solicitor General who appeared for the appellants while Colonel (TS) Rs. Dudee(Retd.) appeared in-person and made his submissions.;