SUDHIR KUMAR KATRIAR and J.N.SINGH JJ.

1. The Union of India has preferred this appeal under Clause 10 of the Letters Patent of High Court of Judicature at Patna and raises a grievance with respect to the judgment dated 14.8.1997, passed by a learned Single Judge of this Court in C.W.J.C. No. 11155 of 1995 (Brig. Ashok Malhotra Vs. The Union of India and others), whereby the alleged adverse entry of "High Average" has been quashed, and the authorities have been directed to reconsider the petitioners case for promotion to the post of Major General in the Indian Army service with effect from the due date, i.e., with effect from the date any Officer junior to the petitioner in the rank of Brigadier was promoted.

2. A brief statement of facts essential for the disposal of this appeal may be indicated. We shall draw the basic facts from the writ proceedings, except by specific reference to any other proceedings. The petitioner was commissioned in the Indian Army on 9.2.1964, He had risen from rank to rank and was ultimately, by order dated 23.2.1990 (Annexure-1), promoted to the rank of Brigadier. He was considered for the next higher post of Major General thrice, namely, 1994,1995, and 1997, and was not promoted on any one of the three occasions. One of the prescribed performance remarks, namely High Average, was entered in his confidential character roll for the period 1988-89. Taking it to be adverse entry, the petitioner had submitted his non-statutory representation to the same which remained pending all through.

2.1. The order declining promotion was conveyed to him on 30.1.1995 (Annexure- 5). He submitted statutory complaint which was rejected by order dated 28.9.1995 (Annexure-10), leading to the present C.W.J.C. No. 11155 of 1995. By order dated 9.4.1996, the learned Single Judge, during the pendency of the present writ proceedings, directed the authorities to reconsider the points raised in the statutory complaint. The appropriate authority considered the same and passed order on 10.5.1996 (Annexure-13), whereby rejection of the statutory complaint was reiterated.

2.2. The writ petition was disposed of by the impugned judgment dated 14.8.1997 (Annexure-2), whereby the alleged High Average entry in the confidential character roll has been quashed, and the authorities have been directed to consider the petitioners case for promotion to the next higher post of Major General with effect from the date the Officer next to him in the rank of Brigadier has been promoted. The Union of India challenged the same by preferring Civil Appeal Nos. 7219-7220 of 1997 (Union of India and Ors. Vs. Ashok Malhotra), before the Supreme Court, which was disposed of by order dated 16.4.2003 (Annexure-1 herein), whereby the Union of India was directed to approach this Court by preferring Letters Patent Appeal. Hence this intra court-appeal.

3. While assailing the validity of the impugned judgment, learned counsel for the appellant submits that adverse confidential character roll, save exceptional circumstances, cannot normally be subjected to judicial review. He relies on the following judgments:

(i) Anil Katiyar (Mrs.) Vs. Union of India and Others {(1997) 1 SCC 280},Paragraph no.4.

(ii) Amrik Singh Vrs. Union of India and Others {(2001) 10 SCC 424}, Paragraph no.21.

3.1. He next submits that the learned Single Judge has erred in relying on the judgment of the Supreme Court in the case of U.P. Jal Nigam and Others Vs. Prabhat Chandra Jainand others [(1996) 2 SCC 363], which has been explained by the Supreme Court in the case of Union of India and another Vs. Major Bahadur Singh [(2006) 1 SCC 368 (Paragraph No.5)], that decision in U.P. Jal Nigam (supra) case has no universal application and confined to the employees of that Nigam only. He next submits that the entry High Average is not treated to be an adverse entry in the Army Manual and, therefore, there was no requirement to convey the same to the petitioner. He relies on the judgmen