(1) THIS is an appeal preferred by the appellant, who is a Lt. Colonel in the Indian Army, against the judgment of the High Court of Patna in C.W.J.C. No. 8083/94 dated 18.2.1997. The writ petition filed against that judgment was dismissed by the learned Chief Justice of the Patna High Court, Justice D.P. Wadhwa (as he then was) and learned Justice Radha Mohan Prasad, the other Judge of the Bench, writing separate judgment. So far as the judgment of the learned Chief Justice is concerned, it states that the non- promotion of the appellant along with his batchmates who were promoted in 1990, could not be interfered with in writ jurisdiction and that the fresh assessment that was made pursuant to an earlier direction of the High Court in C.W.J.C. No. 175/1992 dated 25.3.1994 could not be interfered with under writ jurisdiction. The other learned Judge in his separate judgment, made certain observations stating that the appellants previous records were good and that the appellant otherwise deserved promotion but the learned Judge said, in writ jurisdiction he could not interfere, because it would amount to a review of the decision of the Selection Committee, as an appellate authority. Thus, in spite of certain observations made in favour of the appellant, learned Justice Radha Mohan Prasad ultimately concurred with the judgment of learned Chief Justice, in dismissing the writ petition. It is against this judgment that his appeal has been preferred.

(2) ON an earlier occasion, the appellant filed C.W.J.C. No. 175/1992 challenging the orders dated 15.5.90 and 30.4.1991 by reason of which promotion of the appellant to the rank of Lt. Colonel was refused on the basis of the ACRs of the year for 1985-86. It was prayed in that writ petition that the order dated 15.3.87 and the other order of January 1989 communicated on 3.2.1989, rejecting the promotion should be quashed. A further direction was sought to issue a writ of mandamus for considering the case of the appellant for promotion along with his batchmates who were promoted in 1990.

(3) IT will be noticed that the appellant was subsequently promoted as Lt. Colonel (Time Scale). But in the present proceedings, he is claiming that he ought to have been promoted as Lt. Colonel from an anterior date from 1990 when his batchmates were promoted to higher posts as Lt. Colonel.

(4) SO far as the promotion to the post of Lt. Colonel is concerned, it is done by way of selection process. During the course of the selection, the ACRs of the previous 5 years would be considered. With regard to the ACRs of each year, there is an assessment made by the immediate superior officer called "Investigating Officer", then a Senior Officer above him called "Reviewing Officer" and finally a Senior Officer above the Reviewing Officer called "Senior Reviewing Officer" of a very high rank.

(5) THE records relating to this case were produced before the High Court and also before us. It appears that for the year 1985-86, the Investigating Officer had given a fairly good report about the appellant on 7.2.86, The Reviewing Officer while giving him good report in various respects, made a particular remark which was adverse to the appellant in the sense that the appellant was "advised to display resoluteness during execution of operations". While the I.O. granted an assessment marking as no.7, the R.Os assessment was 5. The S.R.O., who thereafter gave his remarks, gave him an assessment of no.5. In other words, the assessment, so far as the year 1985-86 was concerned, was 7,5,5, as assessed by the I.O., R.O. and S.R.O. respectively. The assessment by the S.R.O. was on 14th November, 1986. For 1990, ACRs in previous 5 years were relevant.

(6) IN subsequent ACRs of the later years, invariably the appellant got various ranking on assessment at 7,8 and 9 also. Assessment at 9 appears to be a case where the performance is "outstanding".

(7) BUT in the context of the disp