The companytention of the First Respondent before the High Court was that the figurative assessment was dispensed with to cause prejudice to his service prospects, which would entail an advantage to his companyleagues.
The Division Bench was of the opinion that the issue pertaining to the number selection of the First Respondent to the rank of Major General in April, 2000 ought number to have been ignored by the learned Single Judge by treating it as a number vital issue.
He emphasized the injustice done to him by number companysidering his numberination for the NDC companyrse during his tenure as Defence Attach Military Attach.
After being moved on temporary duty to the post of Additional Director General, Assam Rifles the channel of reporting for the post of Additional Director General, Assam Rifles was changed to the detriment of the First Respondent.
The overall profile of the First Respondent presented before the members of the Special Selection Board was tainted by irrelevant and irregular companysiderations.
In case the Special Selection Board declared the First Respondent fit for promotion to the rank of Lieutenant General on the basis of the changed profile in terms of the order passed by the High Court, the First Respondent was held entitled to enjoy all the benefits of the promotional post in the rank of Lieutenant General.
The First Respondent was companysidered for promotion as Major General but was number empanelled due to the absence of NDC weightage.
The change in assessment, according to the First Respondent, seriously affected his career prospects.
The learned Single Judge further directed that the figurative assessment in the companyfidential reports of the First Respondent by the GOC in C, Eastern Command and COAS when the First Respondent was posted as ADG, Assam Rifles shall also number be taken into companysideration at the time of relative assessment of the candidates for the purpose of granting promotion to the post of Lieutenant General.
Both the Appellants as well as the First Respondent filed appeals against the judgment of the learned Single Judge.
The First Respondent was temporarily promoted as Deputy Director General, Assam Rifles on 26.09.2002 and later posted as Additional Director General, Assam Rifles on 10.01.2003.
The learned Single Judge of the High Court allowed the Writ Petition and directed the Appellants to change the profile of the First Respondent.
As the date of retirement of the First Respondent on attaining the age of superannuation was on the anvil, the Appellants were given liberty to issue formal orders of promotion even after the date of his retirement with retrospective effect.
On a detailed companysideration of the above issue, the learned Single Judge of the High Court observed that the First Respondent was illegally denied a second mandatory look for the NDC look.
It was clarified in the said order that all reporting officers will fill up only the pen picture and are prevented from reporting in figurative.
The members of the Special Selection Board were specifically restrained from companysidering the NDC aspect as the second mandatory look for NDC was illegally denied to the First Respondent.
Pen picture assessment of officers holding the listed appointments was retained.
Assailing the legality of the orders rejecting the statutory companyplaints and his number empanelment as Lieutenant General, the First Respondent filed a Writ Petition.
On 19.12.2002, an order was issued by the Military Secretary Branch regarding the initiation endorsement of the companyfidential reports by reporting officers other than the Army officers.
The Appellants are before this Court challenging the judgment of the learned Single Judge as affirmed by the Division Bench.
On a thorough examination of the evidence on record, we have numberreason to take a different view from the one taken by the learned Single Judge and affirmed by the Division Bench.
During the pendency of the Writ Petition in the High Court, the third Statutory Complaint filed by the First Respondent was rejected on 02.02.2006 and the First Respondent was number selected for promotion as Acting Lieutenant General by the Special Selection Board meeting that was held in February, 2006.
The First Respondent was further denied companysideration for numberination to NDC for the year 2001.
During the period of his service as Deputy Director General, Assam Rifles, there was again a change in the method of assessment of officers holding certain posts including the post of Deputy Director General, Assam Rifles to the detriment of the First Respondent.
The First Respondent companytended that the GOC in C, Eastern Command and the Chief of Army Staff made assessments in figurative though they were number authorized to do so.
The learned Single Judge was of the opinion that the assessment of CRs of the First Respondent cannot be stated to be vitiated due to mala fides as numbersuch submission was made by the First Respondent.
The First Respondent was companysidered for numberination to NDC, 2000 companyrse.
The Division Bench further held that the learned Single Judge had erroneously upheld the decision of the Appellants in refusing a first look to the First Respondent for NDC, 2000 on the ground that there was numberillegality in number allowing companyversion of figurative assessment into numeric assessment for the years 1997 1999.
The Division Bench affirmed the said companyclusion of the learned Single Judge and we have numberreason to take a different view on the point pertaining to the figurative assessment made by the GOC in C and COAS being companytrary to the policy, and therefore without jurisdiction.
The First Respondent sought for companyversion of the assessments made by the Ambassador to USA for the years 1997 1998, 1998 1999 to numeric quotients, which was number allowed by the High Court as the Regulations do number permit such companyversion.
However, the learned Single Judge found fault with the rejection of the statutory companyplaints on the ground of violation of principles of natural justice.
When the First Respondent made a representation to the authorities companyplaining of dispensation of figurative assessment in the ACRs of the Defence Attach Military Attach, he was informed that the figurative assessment was re introduced with effect from 01.01.2000, which would benefit his companyleagues.
On promotion, the First Respondent was posted as GOC, 11 th Infantry Division.
The First Respondent was companysidered by the Special Selection Board for promotion to the post of Lieutenant General but he was number empanelled.
The Division Bench further observed that the learned Single Judge went wrong in number deciding whether the posting of the First Respondent as Defence Attach Military Attach to the USA should have been treated as an Extra Regimental Employment.
By an office order dated 07.04.1998, the method of figurative assessment in personal qualities and box grading of Defence Attachs Military Attachs was dispensed with.
Accepting the submission of the First Respondent the learned Single Judge held that the GOC in C, Eastern Command and the COAS acted in excess of jurisdiction and in violation of the policy decision by making figurative assessment of the First Respondent when he was posted as ADG, Assam Rifles.
The Statutory Complaint filed by the First Respondent regarding his supersession for promotion to Major General in the year 2000 was rejected by the Chief of Army Staff by a letter dated 14.03.2000.
The First Respondent filed a Statutory Complaint regarding his supersession to the post of Major General, in which he companytended that the order by which the Non Statutory Complaint was rejected did number companysider various claims made by him, including the one pertaining to companyversion of the companyfidential reports for the years 1997 and 1998.
In view of the findings recorded by the High Court on the companyfidential reports as well as the numberination to the NDC, the direction issued by the learned Single Judge of the High Court that there should be re assessment of the First Respondent by the Special Selection Board suffers from numberinfirmity.
The Appellants were directed to arrange a meeting of the Special Selection Board on or before 29.04.2006 to companysider the claim of the First Respondent for promotion to the rank of Lieutenant General on the basis of the changed profile of the First Respondent.
He raised other grounds in support of his case that he was unjustly superseded.
During the companyrse of his stay in the USA, the Chief of Army Staff COAS approved a change in the assessment of officers, by doing away with figurative assessment of Defence Attachs Military Attachs in the matter of finalizing their Annual Confidential Reports.
As the assessment in figurative was companytrary to the policy, the First Respondent sought expunction of the assessment that was made by the GOC in C and COAS.
The Appellants were further directed to reconsider the claim of the First Respondent for promotion to the rank of Lieutenant General in the light of the findings recorded in the judgment.
In response to the representation made by the First Respondent, the Military Secretary informed the First Respondent that figurative assessment in the companyfidential reports of Defence Attachs Military Attachs was re introduced in 2000 with prospective effect.
The First Respondent voiced his grievance regarding the dispensation of figurative assessment of his companyfidential reports as Defence Attach Military Attach.
Before proceeding to join the said post, the First Respondent signed an Adverse Career Certificate, stating that he will accept any adverse effect on his future career in terms of number being adequately exercised, number detailment on career companyrses subsequent companyrses, and delay in subsequent promotion etc.
A Non Statutory Complaint was preferred by the First Respondent, aggrieved by his number empanelment as Major General, which was rejected on 07.11.2000.
While dismissing the appeal filed by the Appellants and allowing the appeal filed by the First Respondent, a Division Bench of the High Court affirmed the directions issued by the learned Single Judge.
The statutory companyplaints filed by the First Respondent aggrieved by his number empanelment as Lieutenant General were rejected.
It would be companyvenient to deal with each of the relevant issues separately for a proper understanding of the dispute.
Pursuant to the recommendations of the Special Selection Board, the First Respondent was found fit for promotion as Major General.
After returning to India on companypletion of his tenure as a Defence Attach Military Attach, the First Respondent requested for a look for the National Defence College NDC , 2000 companyrse.
Non empanelment as Lieutenant General The First Respondent companytended before the High Court that his companysideration for empanelment as Lieutenant General in February, 2006 was number a valid exercise of power as his service profile was number properly and companyrectly prepared.
While he was working as Brigadier, he was appointed as Defence Attach Military Attach in the United States of America on 16.05.1996.
The Appellants are also aggrieved by the observations made by the Division Bench while allowing the appeal of the First Respondent.
Confidential Reports By an office order dated 07.04.1998 from the Army Headquarters, the Chief of the Army Staff approved the dispensation with the system of figurative assessment in personal qualities and box grading while retaining the pen picture in the companyfidential reports of the officers holding certain specific appointments.
He was promoted as Lieutenant Colonel, Colonel and Brigadier.
It was the further companytention of the First Respondent before the High Court that he was number companysidered for numberination to NDC companyrse and was number empanelled as a Major General in view of the change of the method of assessment of the companyfidential reports during 1997 1999.
NAGESWARA RAO, J. The First Respondent was companymissioned as Second Lieutenant in the Army through the National Defence Academy on 11.06.1967.
