- (1.) IN the present proceedings before us, two appeals have been filed against the judgement and order dated 25th April, 2006, passed by the Hon'ble First Court in W. P. No. 25155 (W) of 2005. One appeal, being M. A. T. No. 2965 of 2006 has been filed by Union of India and ors. and the other, being M. A. T. No. 2255 of 2006, has been filed by the writ petitioner.
(2.) BEFORE we look into the judgement in detail, the facts, in brief, as it unfolds from the impugned judgement, needs to be discussed. (i) An Army Officer holding the rank of a Major General filed the writ petition, inter alia, challenging various decisions of the superior authorities in connection with his service career, including the matter relating to his claim for promotion to the post of Lieutenant General. (ii) At the time of hearing of the matter before the Hon'ble First court, the writ petitioner was posted as G. O. C. , Bengal Area. He was aggrieved by various decisions of the superior authorities, which also included not being selected as fit for promotion to the post of lieutenant General. Before the Hon'ble First Court it was contended on behalf of the writ petitioner that the seeds of disputes were sown at the time of selection of the writ petitioner as Military/defence attache (hereinafter referred to as M/da) to U. S. A. in the year 1996. It was also contended that his assignment was not taken in the right spirit by his detractors who started spreading a wrong message that the writ petitioner was selected and sent to the U. S. A. as M/da at the behest of the then Chief of Army Staff, General Sankar Roy Chowdury. (iii) It was specifically contended before the Hon'ble First Court on behalf of the writ petitioner that the respondent authorities on various occasions changed its policies regarding assessment of army officers and preparation of confidential reports in order to prejudice the service prospects of the writ petitioner. It was also contended that from records it would appear that an office order was issued on 7th April, 1998 from the Army Headquarters wherein it was specifically mentioned that the Chiefs of staff had approved dispensing with the system of figurative assessment in personal qualities and box-grading and retained only the pen-picture in the confidential reports of the officers holding certain specified appointments. (iv) It was specifically contended before the Hon'ble First Court that the figurative assessment was dispensed with, mainly at the behest of certain top army officers, in order to prejudice the service prospects of the writ petitioner and also to protect the service careers of some other senior army officers, whose reports in the foreign missions were not up to the desired standard. The contention of the writ petitioner before the Hon'ble First Court was that he was illegally denied first mandatory consideration for nomination to the National defence College (hereinafter referred to as N. D. C.) course, on unjust and untenable ground, as the Annual Confidential Reports (hereinafter referred to as A. C. R. s) in respect of his service period as M/da to u. S. A. were not considered on the ground that the appointment of the writ petitioner as M/da to U. S. A. was an "extra Regimental appointment". It was further contended that the writ petitioner on 28th december, 1999 had submitted a representation against the dispensation of figurative assessment in the A. C. R. s of M/das, but the respondent authorities reintroduced the figurative assessment in the A. C. R. s of the M/das w. e. f. 1st January, 2000, which according to the writ petitioner benefited his batch-mates who were then posted as M/das, although the writ petitioner suffered serious prejudice because of the dispensation of the figurative assessment during his service. (v) It was further contended that the writ petitioner was deprived of two numeric C. R. s, in view of dispensation with the figurative assessment on 7th April, 1998 and reintroduction of the same, w. e. f. 1st January, 2000. According to the writ petitioner, change in A. C. R. endorsement had seriously affected his service prospect and career. (vi) It was also contended that in the month of April, 2000, the writ petitioner was, however, considered by the No. 1 Selection Board for promotion to the post of Major General, but was not empanelled due to the absence of N. D. C. weightage. In the month of October, 2000, the writ petitioner was again denied for consideration for nomination to N. D. C. for the year 2001. (vii) It was contended before the Hon'ble First Court that the writ petitioner, being aggrieved by the aforesaid non-consideration filed a statutory complaint, which was ultimately rejected by the concerned authority on the ground of promotability, as the writ petitioner was not found promotable by the No. 1 Selection Board. The said No. 1 selection Board, however, found the writ petitioner fit for promotion to the post of Major General, in the month of April, 2001. (viii) It was further contended before the First Hon'ble Court that although the No. 1 Selection Board refused to grant promotion to the writ petitioner for the post of Major General in the month of April, 2000, but on the basis of same set of materials, found the writ petitioner fit for promotion to the post of Major General, in the month of April, 2001. (ix) It was specifically contended before the Hon'ble First Court that dispensation of numerics in the A. C. R. s of M/das and further reintroduction of the same from January, 2000, only benefited the batch-mates of the writ petitioner and prejudicially affected the service prospects and careers of the writ petitioner, as he was not considered for nomination to N. D. C. course and subsequently was also not considered for promotion to the post of Major General, in the month of April, 2000.
(3.) THE Hon'bie First Court upon considering various contentions and submissions made on behalf of the parties and after going through the pleadings, inter alia held as follows : - (i) The decision of the Military Secretary's Branch dated 29th march, 2005, rejecting the statutory complaint of the writ petitioner, could not be sustained in the eye of law and the same was, therefore, quashed. (ii) The decisions of the Central Government dated 14th March, 2002, and 2nd February, 2006, rejecting the statutory complaints filed by the writ petitioner, stood vitiated on account of violation of the audi alteram partem rule, as vital documents, namely, the comments of the Army authorities on the statutory complaints of the petitioner were not supplied to the petitioner for information and submission of necessary comments. (iii) The decision of the Special Selection Board, taken in the meeting held on 8th February, 2006 and communicated by the letter dated 24th February, 2006, regarding non-selection of the writ petitioner for promotion, was quashed. (iv) The Military Authorities were directed to change the profile of the writ petitioner immediately in the light of the Hon'bie First Court's findings and reconsider the claim of the writ petitioner for promotion to the rank of Lieutenant General. (v) The Military Authorities were further directed to arrange a meeting of the Special Selection Board on or before 29th April, 2006 positively, in order to consider the claim of the writ petitioner for promotion to the rank of Lieutenant General, on the basis of the changed profile of the petitioner, pursuant to the findings and observation mentioned in the impugned judgement and order. (vi) The members of the said Special Selection Board were specifically restrained from considering the N. D. C. aspect, as second mandatory look for N. D. C. was illegally denied to the writ petitioner, and also the figurative assessments of the C. R. 's of the petitioner by the G. O. C.-in-C, Eastern Command and COAS, while the writ petitioner was posted as ADG-Assam Rifles, at the time of considering the relative assessments of the candidates for the purpose of granting promotion to the rank of Lieutenant General. (vii) In the event, the Special Selection Board declared the writ petitioner fit for promotion to the rank of Lieutenant General on the basis of the changed profile in terms of the order of the Hon'bie First court, then, the writ petitioner would be entitled to enjoy all the benefits of the promotional post in the rank of Lieutenant General. (viii) The respondents were entitled to issue formal order of promotion to the petitioner even after the date of retirement with retrospective effect as the petitioner filed the writ petition long before his retirement and the writ petition had also been decided (on 25. 4. 2006), while the writ petitioner was still in service. ;