Union of India (UOI) and Others vs Yatish Chandra Mishra

Virender Singh, J.—The instant Letters Patent Appeal on hand is directed against the judgment dated November 16,2009 in SWP No.

714/2007 titled Col. Yatish Chandra Mishra v. Union of India and Ors. whereby learned Writ Court allowed the writ petition and directed the

Respondents to expunge the remarks of Higher Technical Officer (HTO) from writ Petitioner's (Respondent herein) AC Rs for the period 2001 to

2005, make fresh assessment on the basis of his service profile and grade, and put up the Respondent's case before the Review Promotional

Board for his promotion to the rank of Brigadier with effect from the date, Respondents 5 and 6 in the writ petition stand promoted.

The controversy revolves around promotion of Appellants 5 and 6 herein to the rank of Brigadier over the head of the Respondent.

The contours of controversy make it necessary to trace the career graph of the three officers.

Shri Yatish Chandra Mishra, writ Petitioner/Respondent, was commissioned in Army Dental Corps (hereafter referred to as AD Corps) on

November 15, 1978 and climbed up through the route of 'time bound promotion' to the position of Lieutenant Colonel in the Corps sometime

before the year 2000 AD. He was thereafter considered along with other eligible officers for promotion to the post of Colonel on August 13,

2000, May 16, 2001 and January 9, 2002. However, the Respondent could not make the grade and was held unfit for promotions on all the three

occasions. Aggrieved thereof, he filed a non-statutory complaint on August 8, 2001, which was accepted by expunction of AC Rs for the year

1995-96 on the ground of inconsistency. In wake of outcome of the non-statutory complaint, the Respondent's case for promotion to the rank of

the Colonel was reviewed by the Review Promotional Board on June 11, 2002 and the Respondent found fit for promotion to the rank of Colonel.

The proceedings of the Review Promotional Board were thereafter approved by the Government on December 30,2002 and he was promoted to

the rank of Colonel on July 22,2003 with effect from August 13, 2000 i.e. the date, the first Selection Board was convened in which he was found

unfit for promotion.

The Regular Promotion Board, met on July 31,2003 to make recommendations for promotion to the post of Brigadier (or equivalent). The

Respondent, however, was not considered for the promotion. He was thereafter considered by the Board along with other eligible officers for

promotion to the post of Brigadier in its meeting held on December 7,2005. The Board on consideration did not find the Respondent fit for

promotion to the rank of Brigadier (or equivalent), the reason being that the Respondent's AC Rs were not up to the mark. The Respondent filed a

non-statutory complaint on June 8,2006. The Respondent's case was that his AC Rs merited to be reviewed inasmuch as these were not

inconsonance with his actual performance. The non-statutory complaint did not find consideration and was . pending disposal on the date the writ

petition (SWP 714/2007) was filed. The Respondent thus continues to hold rank of Colonel in Army Dental Corps.

Shri Sushanta Karkun, Respondent No. 5 in the writ petition and Appellant No. 5 herein, was commissioned in AD Corps on November

16,1978. The Appellant sometime after his promotion to the rank of Colonel was considered by Regular Promotion Board for promotion to the

rank of Brigadier on July 31,2003, but found unfit for promotion. He filed a statutory complaint against his non-selection on September 29,2003.

The complaint was decided on September 15,2004 and partial relief was granted to him by setting aside the assessment made by First Technical

Officer in ACR of 2001 and Special Confidential Report (SCR) of 2002 on the ground of inconsistency. The Appellant after redressal of his

grievance and expunction of his grades/numerical assessment recorded by First Technical Officer in aforementioned ACR and SCR was given

second consideration for promotion to the rank of Brigadier by the Review Promotional Board on March 15, 2005. The Board, however, for the

second time declined promotion to Appellant No. 5. The Promotion Board Medical No. 2 on December 7, 2005 once again considered him

(Appellant No. 5) for promotion to the rank of Brigadier (or equivalent). The Board again declined promotion to him. Appellant No. 5 on January

23, 2006 filed a non-statutory complaint. However, the complaint was rejected on September 19, 2006. He thereafter filed another statutory

complaint on Nov. 28, 2006. The complaint was received by Complaints Advisory Board on December 21, 2006 and forwarded to Appellant

No. 1 on December 28, 2006. It was partially accepted by the Central Government vide its order dated January 11, 2007 and complete

numerical assessment of ACR for the year 2001 was directed to be expunged on the ground of inconsistency. Soon after the decision was taken

on the statutory complaint dated November 28, 2006, Review Selection Board was held on Feb. 2, 2007 and Appellant No. 5 cleared for

promotion to the post of Brigadier (or equivalent). Resultantly, he was promoted to the rank of Brigadier and is at present holding said rank.

Shri Rajesh Madan-Respondent No. 6 in the writ petition and Appellant No. 6 herein was commissioned in the AD Corps in 1979. Shri Madan

rose to the rank of Lieutenant Colonel and was thereafter promoted to the rank of Colonel. A non-statutory complaint was filed by him questioning

Special Confidential Report (SCR) of the Initiating Officer for the year 2002, not expected to have information of any adverse

reporting/assessment in his SCR. The Appellant was considered for promotion in Regular Promotional Board held on Feb. 2, 2007 and cleared

for promotion to the rank of Brigadier (or equivalent). The Appellant No. 6 was subsequently promoted as Brigadier (or equivalent) and is holding

the rank at present.

The Respondent aggrieved of promotion of ""Appellants 5 and 6 to the rank of Brigadier (or equivalent) questioned the decision of the Review

Promotion Board Medical No. 2 and Promotion Board Medical No. 2 dated Feb. 2, 2007 whereby Appellants 5 and 6 were selected for

promotion to the rank of Brigadier (or equivalent), in writ petition registered as SWP No. 714/2007.

The Respondent's case before the Writ Court was that promotion of Appellants 5 and 6 to the rank of Brigadier (or equivalent) amounted to his

supersession inasmuch as the Appellants 5 and 6 were junior to him and could not be promoted ahead of him. The Respondent threw challenge to

the decisions of Review Promotion Board Medical No. 2 and Promotion Board Medical No. 2 held on Feb. 2, 2007 primarily on the ground of

mala fides and bias. The Respondent contended that malice was writ large on and gatherable from the mode and manner in which the Appellants 1

to 4 proactively helped Appellants 5 and 6 to steal a march over the Respondent. The bias and malice on part of Appellant 1 to 4 according to

Respondent was evident from the following circumstances:

(i) Respondents 1 to 4 entertained second statutory complaint dated Nov. 26, 2006 from Appellant No. 1 on the same cause of action on which

the first statutory complaint was filed and dealt with by the competent authority, least realizing that second statutory complaint was not competent

in absence of a fresh cause;

(ii) The statutory complaint filed by Respondent/writ Petitioner on June 8,2006, was kept on hold and not accorded consideration till 4/2007 i.e.

the date writ petition was filed, whereas the second statutory complaint filed by Appellant 5 on November 28, 2006 was taken up at a neck-break

speed and disposed of within less than a month and relief also granted to Appellant No. 5; that while Respondent's non-statutory complaint was

left unattended, three complaints of Appellant No. 5? two statutory and one non-statutory? against the same grievance were decided one after

another within the shortest time,

(iii) Though the Regular Promotion Board was held on Nov. 27, 2006, decision regarding Dental Service was intriguingly deferred and no

recommendations made for promotion to the rank of Brigadier from AD Corps, whereas the Board considered the officers in other constituents of

Armed Force Medical Service and immediately after statutory/non-statutory complaints filed by Appellants 5 and 6, were considered and relief

granted, the Board met hastily on Feb 2, 2007 to accord consideration to the promotion of Appellants 5 and 6.

(iv) The two available vacancies of Brigadiers were without any reason split and one vacancy taken up by Review Promotion Board Medical No.

2 and another Promotion Board Medical No. 2 so as to give benefit to Appellants 5 and 6 and promote them to the rank of Brigadier and deny

consideration to the Respondent,

(v) The Appellant No. 6 surprisingly filed a non-statutory complaint against the Special Confidential Report (SCR) initiated by his Initiating Officer

in June 2002 without having any information regarding the adverse entries/low grades in his SCR inasmuch as the entries made in the said report

are highly confidential and not disclosed to anyone including the Ratee/Officer. Furthermore, the Promotional Board Medical No. 2 had not met

before the complaint was filed and held Appellant No. 6 unfit for promotion so as to give Appellant No. 6 a cause to file a non-statutory

complaint; that the complaint was not only entertained but also accepted and relief granted to Appellant No. 6.

(vi) That the Higher Technical officer motivated by mala fides gave rating of 8 to the Respondent for years 2001, 2002, 2003 and 2004 as against

the grade of 8.90 given by the First Technical officer, whereas the Higher Technical Officer gave the grade of 9 for the years 2003, 2004 to

Appellant No. 5 though he was graded at 8.10 and 8.80 by the First Technical Officer. The Higher Technical officer gave higher grades to

Appellant No. 5 and lower grades to the Respondent so as to help him (Appellant No. 5) to improve his period average and get promoted to the

rank of Brigadier (or equivalent).

The Respondent questioned the competence of the Higher Technical officer to assess grade an officer of the rank of the Colonel arbitrarily

having no regard for the inputs/grades received from the First Technical Officer. The Respondent pleaded that it was the First Technical Officer,

under whose supervision a member of AD Corps worked and thus having first hand knowledge about performance, capability, etc. of an officer

and that Higher Technical Officer not having any supervisory role had no source except the inputs received from the First Technical officer to

assess the officer. It was pleaded that the Higher Technical Officer is not competent to lower down assessment/grades given by the First Technical

Officer to a member of the AD Corps working under his supervision, except for the reasons to be recorded, and that in the present case no such

reasons were recorded.

It is pertinent to mention that after the Appellants disclosed that the non-statutory complaint preferred by the Respondent on June 8, 2006 was

rejected vide No. 10026/NSC/DGDS-I dated May 7, 2007, the Respondent laid a motion for amendment of the petition, to question the

aforementioned order rejecting his non-statutory complaint. Vide order dated 14.12.2007, leave was granted to amend the writ petition. The

Respondent in his amended petition insisted that his non-statutory complaint was required to be considered on the same analogy, the non-statutory

complaint of Appellant No. 5 was considered and that the Respondent was entitled to have his numerical assessments for the period 2001 to 2004

re-examined in entirety and any low grading expunged/removed.

The Respondent/writ Petitioner on the strength of averments sought the following reliefs:

i. A writ, order or direction in the nature of certiorari quashing the result of the Review Promotion Board Medical No. 2 held on February 2,2007

whereby Respondent No. 5 has been selected for promotion to the rank of Brigadier or equivalent.

ii. A writ, order or direction in the nature of certiorari quashing the result of the Promotion Board Medical No. 2 held on Feb. 2, 2007 whereby

Respondent No. 6 has been selected for promotion to the rank of Brigadier or equivalent,

iii. A writ, order or direction in the nature of certiorari quashing the relief granted to Respondent No. 5 on his second statutory complaint numbered

as S-l66506 as received by Complaints Advisory Board, Respondent No. 2.

iv. A writ, order or direction in the nature of writ of certiorari quashing the recommendations made by Respondent No. 2 and the decision taken

on the non-statutory complaint filed by the Petitioner against his supersession by the Selection Board Medical-2 held on December 7, 2005

whereby the non-statutory complaint filed by the Petitioner has been rejected by the COAS as communicated to the Petitioner vide communication

dated May 7, 2007 issued from the office of the Director General of Dental Services, Adjutant General Branch, New Delhi.

The Appellants opposed the Respondent's writ petition on the ground that none of the fundamental, constitutional or legal rights of the Respondent

was violated and that the Respondent had no cause to file the writ petition. The Appellants disputed that the second complaint was not competent

on the grounds agitated in the first complaint and insisted that an officer not satisfied with the outcome of non-statutory complaint, may at his

option, file a statutory complaint and even a second statutory complaint where any part of his grievance is left unaddressed in the first statutory

complaint. The Appellants also denied that the Respondent's non-statutory complaint filed on June 8, 2006 was deliberately delayed so as to give

benefit to Appellants 5 and 6. Pleading that a non-statutory complaint has to pass through various stages and to be looked into by officers at

different levels, the Appellants pleaded that the Respondent's non-statutory complaint dated June 8, 2006 stood rejected by Chief of the Army

Staff (COAS) and the decision conveyed to him vide letter No. 10026/NSC/DGDS-I dated May 7, 2007 inasmuch as the ""CRSs in the

reckonable profile"" of the Respondent, ""were found to be well corroborated, consistent and in tune with the overall profile.

The Appellants while admitting that in terms of para 364 of DSR, complaints are to be disposed of within 180 days, pleaded that outcome of

complaint processed with proper dispatch or the procedure adopted cannot be questioned on the ground of its expeditious disposal. The

Appellants pointed out that though second statutory complaint of Appellant No. 5 dated November 28, 2006 was dealt with expeditiously, yet the

decision of the Promotion Board (Med) No. 2 held on July 31, 2003 whereby the Appellant was superseded was not overset and the promotion

to the rank of Brigadier (or equivalent) given to Appellant No. 5 on December 7,2005. The Appellants 1 to 4 also denied that the Promotion

Board (Medical) No. 2 held on November 27, 2006 deferred consideration to AD Corps officers with any intent of malice. It was denied that

Appellant No. 6 was not competent to file a non-statutory/statutory complaint once he felt wronged by his Commanding Officer or any other

superior officer or was under any obligation to wait for the Promotion Board to meet and decline him the promotion that would otherwise come his

way.

The writ court on consideration allowed the writ petition and granted the relief detailed above in favour of the Respondent/writ Petitioner and

against the Appellants.

The Writ Court judgment is questioned in the present Letters Patent Appeal on the grounds that the judgment is contrary to the facts and law

and liable to be set aside. Detailing mode and manner of assessing performance of an officer on administrative and technical sides, the Appellants

insist that the C Rs of Appellants 5 and 6 and the Respondent were recorded in accordance with the procedure laid down in Special Army Order

(SAO) 8/S/91 and that the complaints received from the three officers questioning numerical assessment made by the officers at different levels,

were also dealt with objectively and in accordance with guidelines. The Appellants questioned the judgment on the ground of factual errors and

mis-appreciation of Rule position. It is disputed that only Initiating Officer and First Technical Officer have the best information about work and

conduct of a Ratee/Officer and thus competent to administratively and technically assess the officer and that the Higher Technical officer or the

Senior Review Officer is to exclusively depend on inputs from the Initiating Officer and the First Technical officer. It is insisted that the role of the

higher officer(s) in assessing an officer(s) is one of balancing and moderation and thus not to be downplayed. The Appellant also refuted the

Respondent's stand that he was downgraded by the Higher Technical officer. It is pleaded that the Higher Technical Officer rated the Respondent

as ""outstanding"" and thus cannot be accused of having exercised his power maliciously and arbitrarily. The Appellants, reiterating the grounds

pleaded in opposition to the writ petition, plead that the writ court traveled beyond the relief claimed by the Respondent in the writ petition by

directing expunction of all the grades given by Higher Technical officer(s) for the years 2001 to 2005 and asking Appellants 1 to 4 place the matter

before the Review Promotion Board for promotion of Respondent with effect from the date Appellants 5 and 6 were promoted. The Appellants'

stand is that the writ court having regard to the relief sought even if satisfied with the ease projected by the Respondent could at the most direct

Appellants 1 to 4 to accord consideration to the promotion of Respondent to the rank of Brigadier (or equivalent).

We have gone through the appeal and perused the writ record as also CR dossiers of Respondent and Appellant No. 5 made available by the

Central Government Standing Council. We have heard learned Counsel for the parties at length.

The AD Corps is a constituent of Armed Forces Medical Service constituted for all the three wings of the Armed forces i.e. Army, Air Force,

and Navy. The other two, constituents of the service are Armed Medical Corps and Military Nursing Service. An officer of any of the three

constituents may be transferred and posted in any of the wings of the Armed Forces. In the event of promotion, transfer and posting, the

nomenclature of the rank/post to which an officer is transferred, posted or promoted may change. To illustrate, if a Colonel in Army Dental Corps

is promoted to the rank of Brigadier and transferred to the Air Force, such officer would be designated as Air commodore and in the event of his

transfer on promotion to the Navy such officer would be known as Surgeon Commodore. The promotion up to the rank of Lieutenant Colonel is a

'time bound promotion'. The promotion from the post of the Lieutenant Colonel to Colonel and thereafter to Brigadier and so on and so forth, is

made on the basis of merit-cum-seniority. The merit is assessed on the basis of Confidential Reports of the officer. The aim and object of

Confidential Report as laid down in Special Army Order (SAO) 8/S/91 para 5, is to have an objective assessment of an officer's professional and

personal qualities, his comprehension, employability and his potential as observed during the period covered by the report. In terms of the

aforesaid Order the Reporting Officers must be fair, impartial and objective in their assessment. The confidential reports of the officers of AD

Corps are initiated in two parts? reflecting administrative and technical capabilities. On administrative side, the Confidential Report is initiated by

the Initiating Officer, reviewed by the Reviewing Officer and thereafter Senior Reviewing Officer. The Confidential report, as regards technical

capabilities, is initiated by First Technical Officer and thereafter considered by the Higher Technical officer. The Initiating Officer, as noticed by the

Writ Court, makes the assessment having regard to 20 administrative attributes like motivating ability, presence of mind, decisiveness, integrity, etc.

etc. and award points on a scale of nine for each of the 20 attributes. The Reviewing Officer while making his assessment follows the same

procedure. However, the Senior Reviewing Officer does not make his assessment on the basis of each of the 20 attributes but awards points on a

scale of nine having regard to overall grading of the Ratee/Officer. Thereafter the numerical assessment made by the Initiating Officer, Reviewing

Officer and Senior Reviewing Officer are added and average worked out. Similarly, the First Technical officer initiates the Confidential Report on

technical side, awards points on a scale of 9 where-after the Higher Technical Officer makes his assessment. The average of numerical assessment

made by the First Technical Officer and Higher Technical officer is calculated. The averages on administrative and technical side are again added

and a final average for a particular period as ""period average"" is worked out.

On December 31 of the calendar year the available vacancies in the rank to which promotions are to be made are identified and the matter

placed before the Promotion Board. The Promotion Board is required to meet at least once in a year to accord consideration in terms of policy

laid down vide No. 10(l)/2004(D)(Med) dated January 14, 2004 to the eligible officers twice in number of the available vacancies and the officers

not selected by previous Promotion Board and considered for promotion less than three times by the Board. The Promotion Board while assessing

merit takes into consideration AC Rs of five years preceding the year in which consideration is accorded.

The Army Act and the Regulations for the Army (1987) provide a grievance redressal mechanism for an officer aggrieved of the order of the

Promotion Board. Such an officer may file a non-statutory complaint u/s 27 Army Act read with para 364 of DSR to be considered by Chief of

the Army Staff/Chief of the Navel Staff/Chief of the Air Force, depending upon the service to which the officer belongs. In the event the officer is

not satisfied with the decision on his non-statutory complaint, he is given an option to file a statutory complaint to the Central Government.

After a brief overview of the procedure to be followed in matters of promotion to the rank of Brigadier (or equivalent) let us go to the grounds

urged in the appeal to question the Writ Court judgment.

The weft and warp of the Respondent's case before the Writ Court was that promotion of Appellants 5 and 6 to the rank of Brigadier (or

equivalent) was tainted with mala fides and bias on the part of the Appellants 1 to 4. The Writ Court recorded agreement with the case projected

by the Respondent that Appellants 1 to 4 exercised their power arbitrarily and maliciously to keep the Respondent out of race for promotion to the

rank of Brigadier (or equivalent) and promoted Appellants 5 and 6 in supersession of the Respondent to the aforesaid rank. The Writ Court while

arriving at the conclusion that the impugned action was actuated by mala fides was inter alia influenced by the contention that the Appellants

entertained second statutory complaint from Appellant No. 5 in face of a bar under para 85 of Special Army Order 8/S/91 against second

statutory appeal on the same cause of action. The Writ Court opined that the acceptance of second statutory appeal was indicative of mala fides

on the part of Appellants. The Writ Court, however, while arriving at the conclusion ignored to appreciate that the first statutory complaint filed by

Appellant No. 5 was in context of the decision of the Promotion Board held on July 31, 2003. The Appellant thereafter aggrieved of the decision

of Promotion Board (Medical) No. 2 held on December 7, 2005 because of his having been found Not Suitable (NS) for the promotion filed a

non-statutory complaint on January 23, 2006. The non-statutory complaint was rejected on September 19, 2006 where-after Appellant No. 5

filed a statutory complaint on November 28, 2006. Both the non-statutory complaint dated January 23, 2006 and the statutory complaint dated

November 28, 2006 were filed against the backdrop of the Order of Promotion Board dated December 7, 2005 and not the earlier Promotion

Board held on July 31, 2003. The decision of the Promotion Board dated December 7, 2005 gave Appellant No. 5 a fresh cause to file the non-

statutory complaint and when his grievance were left unaddressed, to file a statutory complaint. The Writ Court for one or the other reason did not

notice that para 85 of Special Army Order 8/S/91 leaves room for a statutory complaint, after a non-statutory complaint is rejected. However, in

case any fresh facts other than the facts contained in the earlier complaint are not set out, fresh comment from contemporary reporting officers

would not be called for and instead regular documents including comments of reporting officers who process the earlier complaint would be

obtained. Para 364 sub-para 2 of Special Army Order 8/S/91 also does not place a blanket ban on a second statutory complaint and leaves

scope for a second complaint where fresh facts and circumstances have come to light. The conclusion that ""no second statutory complaint could

have been filed by Appellant No. 5 after rejection of his non-statutory complaint"" is not tenable and Appellants 1 to 4 cannot be said to have dealt

favourably with complaint of Appellant No. 5 to the disadvantage of the Respondent while entertaining and disposing of the statutory complaint

dated November 28, 2006.

The Respondent as well as Appellant No. 5 were considered by the Promotion Board (Medical) No. 2 for promotion to the rank of Brigadier

(or equivalent) on December 7, 2005 and both were held not suitable (NS) for promotion. Appellant No. 5 lost no time in filing a non-statutory

complaint on January 23, 2006 i.e. six weeks after the decision was made. The Respondent on the other hand waited for more than six months to

file a non-statutory complaint on June 8, 2006. The Respondent cannot turnaround and accuse Appellants 1 to 4 having kept his nonstatutory

complaint, under the carpet and rushed to redress the grievances of Appellant No. 5. The Respondent earlier also when promotion from the rank

of Lieutenant Colonel to the rank of Colonel was declined filed non-statutory complaint one year after the Promotion Board's decision. While it

took the competent authority about eleven month to take a decision on the non-statutory complaint filed by the Respondent, the non-statutory

complaint filed by Appellant No. 5 did not take any lesser time to be disposed of. The Appellant's non-statutory complaint filed on January 23,

2006 was decided on September 19, 2006 i.e. after about nine months. There is thus no reason for the Respondent to complaint of step-motherly

treatment given to him. The stages through which the non-statutory complaint filed by the Respondent on June 8, 2006 and the time taken at each

stage, tabulated in para 22 of the reply, and other aspects highlighted above, if noticed by the Writ Court, would have persuaded it to disagree

with the Respondent's plea that the complaint filed by the Respondent was willfully or deliberately delayed to give benefit to Appellant No. 5 and

hold that no mala fides were attributable to Appellant 1 to 4 on this count, more so when it took Appellants 1 to 4 almost a year to address the

grievance set out in the complaints, non-statutory complaint and statutory complaint filed by the Appellant.

Mere fact that the Promotion Board (Medical) No. 2 met on November 27, 2006 and decided to defer consideration to the aspirants from 80

Corps to the rank of Brigadier (or equivalent) on deciding to set apart one of the two vacancies for Review Promotion Board (Medical) No. 2 and

another vacancy for Promotion Board (Medical) No. 2 was not sufficient to infer bias and mala fides on the part of Appellants 1 to 4. Appellants 1

to 4 were within their powers to take note of the developments that had taken place after the Promotion Board (Medical) No. 2 met on

November 27, 2006 and refer one of the vacancies to the Review Board (Medical) No. 2 in wake of redressal of grievance of Appellant No. 5

who was earlier considered for promotion to the rank of Brigadier (or equivalent) and refer another vacancy to the Promotion Board (Medical)

No. 2 for regular promotion. Again it would be too much to accuse Appellants 1 to 4 of malice only because a non-statutory complaint from

Appellant No. 6 against his Special Confidential Report (SCR) for the year 2002 was entertained. It is pertinent to point out that neither Section

27 Army Act nor para 85 of Special Army Order or the SAO 8/S/91 make communication of the action complained of, condition precedent for

filing a non-statutory complaint. Section 27 confers a right on an Army Officer who ""deems himself wronged by his Commanding Officer or any

superior officer to complain to the Central Government in such manner as may from time to time be specified by the proper authority. There was

no impediment in way of Appellant No. 6 to file a non-statutory complaint, if he ""deemed himself"" wronged by his superior officers. So viewed

Appellants 1 to 4 cannot be said to have extended any extraordinary or undue favour to Appellant No. 6 while receiving and dealing with his non-

statutory complaint.

The ground that persistent downgrading of the Respondent and upgrading of Appellant No. 5 by the Higher Technical Officer, unmindful of the

assessment made by the First Technical officer speaks of mala fides and bias against the Respondent, is also bereft of any substance. Perusal of

record reveals that the assessment made by First Technical Officer in respect of Respondent went through hands of more than one Higher

Technical Officer. The record made available by the learned CGSC reveals that performance of the Respondent for the period 2001 to 2004 was

assessed by two Higher Technical Officers viz. Lt. General G. L. Sharma and Lt. General R.C. Dhir (Lt. Gen. Sharma for the period 2001 and

2002 and Lt. Gen. Dhir for the period 2003-04). Both the officers, as against 8.9 points (with the exception of 8.20 points in the year 2003)

awarded by the First Technical Officer, awarded 8.00 points to the Respondent. Appellant No. 5 on the other hand has also been awarded 8

points by the Higher Technical Officer for the years 2001 and 2002 against 8.10 points awarded by First Technical Officer and 9 points as against

8.80 points awarded by the First Technical Officer for the year 2003 and 2004. Appellant No. 6, however, has been awarded 9 points by the

First Technical officer. There is thus no scope for suspecting any mala fides or bias, firstly for the reason that there is no significant swing in the

assessment made by the First Technical officer and Higher Technical officer in respect of both Appellant No. 5 and the Respondent, and secondly,

because it is not only one Higher Technical officer who has all along awarded 8 points to the Respondent and 9 points to Appellant No. 5. It

would not be reasonable to presume that both Lieutenant Generals under whom the Respondent worked nursed a bias against the Respondent

more so when the Respondent has been graded ""outstanding"" though less than the grade given to Appellant No. 5. When the grading done by First

Technical Officer and Higher Technical Officer for the period 2001 to 2004 both as regards the Respondent and Appellant No. 5 is seen in its

entirety, even remotest suspicion of malice or bias is bound to be ruled out. The numerical assessment made by First Technical Officer of Appellant

No. 5 as well as the Respondent oscillates between 8.10 to 8.90 and that of Higher Technical officer between 8 and 9 indicating that there is

neither any significant upswing nor downswing so as to compel one to suspect bias or mala fide.

The Writ Court while concluding that there has been an arbitrary and malicious exercise of discretion of power by Respondents 1 to 4

(Appellants herein) seems to have lost sight of one important aspect of the case. Appellant No. 5 was accorded consideration for promotion to the

rank of Brigadier (or equivalent) by Promotion Board on July 31, 2003 and declared Not Suitable (NS) for promotion. Though partial relief was

granted to Appellant No. 5 by accepting his statutory complaint on September 9, 2003 yet the Review Promotion Board held on March 15, 2005

again declined promotion to Appellant No. 5. Appellant No. 5 was considered third time for promotion by the Promotion Board (Medical) No. 2

on December 7, 2005 and again declared Not Suitable (NS) for promotion. The non-statutory complaint filed by Appellant No. 5 on January 23,

2006 was rejected after nine long months on September 19, 2006, constraining Appellant No. 5 to file a statutory complaint. In short it took a little

less than four years for the Appellant No. 5 after attaining eligibility to get promoted to the rank of Brigadier (or equivalent). Had Appellant No. 5

any clout or had Appellants 1 to 4 been favourably disposed towards him, there was no reason for Appellants 1 to 4 to decline promotion to

Appellant No. 5 three times in a row and even reject his non-statutory complaint. It thus does not appeal to reason that there was any tinge of

malice or bias on part of the official Respondents in the mode and manner adopted while taking the decisions.

From the above discussion it emerges that there was no material before the Writ Court to conclude that impugned decisions of the Review

Promotion Board (Medical) No. 2, Promotion Board (Medical) No. 2 or the decision dated May 7, 2007, taken on the Respondent's non-

statutory complaint dated June 8, 2006, was actuated by and outcome of malice or bias on the part of Appellants 1 to 4. There is no scope for any

disagreement with the legal proposition that ""wide"", ""unguided"" and ""unrestricted"" power conferred on an authority is bad because of an inherent

element of arbitrariness in such power. It is equally well settled that where exercise of such power in a particular case is assailed on the ground of

mala fides, bias or alleged to be discriminatory, the authority exercising the power is to explain the circumstances in which the power is exercised.

However, as laid down in Badrinath Vs. Government of Tamil Nadu and Others, , the Courts in exercise of power of judicial review, cannot

interfere with the assessment made by Departmental Promotion Committee in regard to merit or fitness for promotion unless there is a strong case

for applying the Wednesbury doctrine or there are proved mala fides. The courts, it has been held are to be extremely careful in exercising the

power of judicial review in dealing with the assessment made by the Departmental Promotional Committees and not to assume the role of an

appellate authority nor substitute their own views for the views of such committees. In the present case the Writ Court erroneously proceeded on

the assumption that the decisions impugned in the writ petition were motivated and actuated by malice or bias when a closer look at the record

does not lead to a reasonable suspicion of such bias or malice let alone establish malice or bias on the part of Appellants 1 to 4.

This takes us to the next limb of the case set up by the Appellants. The promotion from the rank of Colonel upwards as already pointed out is

to be made on the basis of merit-cum-seniority. To make a comparative assessment of the merit of the officers falling within consideration zone, the

Promotion Board is to rely on the Confidential Reports of such officers duly reflecting their administrative and technical capabilities. Special Army

Order 8/S/91 provides for a multi-layered assessment of merit of an officer. The capabilities of an officer, administrative as well as technical,

weighed on a scale of 9 and converted into numerical assessment, initiated at the level of Initiating Officer or the First Technical Officer go through

repeated scrutiny as assessment moves up the reporting channel. In terms of para 72(6) of the Order wherever there is variation of 3 or more

marks in personal qualities, administrative performance, technical assessment inbox grading by various Reporting Officers, the variance is required

to be explicitly elaborated by the Reporting Officer. The Senior Reporting Officers like the Senior Reviewing Officer and Higher Technical Officer

in terms of para 74 of the Order while endorsing specific remarks on assessment by Junior Reporting Officer are required to show in picture

whether the assessment by Junior Reporting Officer is ""liberal"", ""justified"", or ""strict"". The Order impresses upon objectivity in reporting. The High

Technical officer thus is not clothed with any unbridled and wide discretion as would prompt one to label it as arbitrary and in conflict with the

doctrine of equality enshrined in Article 14 of the Constitution of India. The Higher Technical officer is under an obligation to give the reasons

where there is a significant variation, say variation of 3 or more marks between the marks given by the First Technical Officer and the marks given

by the Higher Technical Officer. In the present case, as already pointed out, there is no significant variation between numerical assessment

recorded by the First Technical Officer and the Higher Technical Officer.

The observation made by the Writ Court that as the Higher Technical officer having no opportunity to supervise the work of a Ratee/Officer,

the assessment made by the First Technical Officer is the only input available with the Higher Technical Officer and that the Higher Technical

officer thus should assess the Ratee/Officer on the lines he has been assessed by the First Technical Officer, cannot be accepted, the reason being

that the proposition is in conflict with the very concept of multi-layered assessment. If the Higher Technical Officer is held to be duty bound to toe

the line of First Technical Officer, his role in the Reporting channel which undoubtedly is of pivotal nature, is neutralized. The role of Review

Officer, Senior Review Officer and Higher Technical officer is one of moderation and balancing and the role assigned can in no circumstances be

downplayed. The mechanism of assessment envisaged under the Order is reasonably foolproof and faultless inasmuch as it gives due weightage to

the assessment at every level leaving no room for any bias or favouritism. Whenever one of the key actors in the reporting channel shows any bias

or favour that has potential of brightening up promotional chances of any officer, such Reporting Officer has to spell out or explain the reasons for

upswing. The mechanism of ""period average"" makes the final grade truly representative of the assessments made both on administrative and

technical sides at different levels. The observation made by the Writ Court that power to remove aberrations in Confidential Reports is void,

unguided and arbitrary does not stand a close scrutiny. The Army Act, Regulations for Army and Special Army Order 8/S/91 lay down adequate

and reasonable mechanism for removal of aberrations in the assessments made at different levels in the reporting channel. The representations or

complaints ? non-statutory and statutory? voicing grievances against the assessments are in terms of the provisions of the Act and the Regulations

and Orders made there-under dealt with at different levels and decided on the basis of inputs received from the officers at different levels. While

the non-statutory complaints are finally dealt with at the level of Chief of the Army Staff/Chief of the Air Staff/Chief of the Navy, the statutory

appeal is dealt with and decided by the Central Government. There is, thus, an objective appraisal of the case projected, ensured in the procedure

enshrined in the Act and the Regulations and Orders made there-under.

The Writ Court has also not noticed that even after dismissal of non-statutory complaint, the Respondent was not precluded from making a

statutory complaint to the Central Government.

There is merit in the argument advanced by the learned Counsel for the Appellant that the Writ Court while directing expunction of remarks of

Higher Technical officer in favour of the Respondent from 2001 to 2005 and make a fresh assessment on the basis of his overall service profile has

travelled beyond the relief sought in the petition. The Writ Court by directing expunction of the numerical assessment made by Higher Technical

Officer has stepped in the shoes of the authority under rules competent to entertain the representation/complaint against ""Confidential Reports and

Supersession"" in terms of para VII of Special Army Order S/8/91. There is consensus in judicial opinion that the court would out-step its

jurisdiction where the court embarks on an exercise to assess the service record of an officer, interfere with the assessment of performance made

by the competent authority or sit in appeal over the authority assessing performance of the officer or the decision taken by the Promotion Board.

Reference in this regard may be made to law laid down in State of Madhya Pradesh Vs. Srikant Chaphekar, , Major General I.P.S. Dewan Vs.

Union of India (UOI) and Others, , Union of India (UOI) and Another Vs. S.K. Goel and Others, , Mrs. Anil Katiyar Vs. Union of India and

others, . The Writ Court thus has over-stepped and out-stepped its jurisdiction while directing blotting out of the assessment made by the Higher

Technical Officer of the Respondent/writ Petitioner's performance for the years 2001 to 2005 and the follow-up action as a result of such

expunction.

In the circumstances and for the reasons discussed hereinabove, there is merit in the appeal and the Writ Court judgment dated November 16,

2009 is liable to be set aside. Resultantly, the instant Letters Patent Appeal is allowed and Writ Court judgment dated November 16, 2009, set

aside.

CR Dossier of the Respondent/writ Petitioner and Appellant No. 5 be returned to Mr. Chandel.