Back
2007 Supreme(Cal) 792
High Court of Judicature at Calcutta
PINAKI CHANDRA GHOSE & BISWANATH SOMADDER
Major General Arun Roye, Avsm, Vsm
Versus
Union of India
M.A.T Appeal No. 2965 of 2006, 2255 of 2006
Decided On : 12-10-2007
For the Appearing Parties:Arjun Roy Mukherjee, Biswarup Bhattacharjee, Partha Sarathi Sengupta, Prodosh Mallick, Rajarshi Bharadwaj, Ramesh Sharma, Sakti Nath Mukherjee, Advocates.
Arbitrary and selective change of policy from time to time, which squarely affected the writ petitioner, was made in a manner and in a pattern, which clearly indicates that from time to time the writ petitioner was put to a disadvantageous position vis-s-vis others similarly situate.
Headnote:
Arbitrary and selective change of policy from time to time, which squarely affected the writ petitioner, was made in a manner and in a pattern, which clearly indicates that from time to time the writ petitioner was put to a disadvantageous position vis-s-vis others similarly situate.
Fact of the Case:
The writ petitioner, a Major General in the Indian Army, filed a writ petition challenging various decisions of the superior authorities, including the matter relating to his claim for promotion to the post of Lieutenant General. The Hon'ble First Court, upon considering the various contentions and submissions made by the parties, passed an order quashing the decisions of the Central Government and directing the military authorities to change the profile of the writ petitioner immediately in the light of the Hon'ble First Court's findings and reconsider the claim of the writ petitioner for promotion to the rank of Lieutenant General.
Finding of the Court:
The Hon'ble First Court erred in holding that the writ petitioner was not considered by the respondent authorities for selection to N.D.C. course in October, 1998 and therefore it cannot be said that the writ petitioner forfeited his mandatory look for N.D.C. in the year 1998. The Hon'ble First Court has erroneously held that the writ petitioner was illegally denied second mandatory look for N.D.C. course. The Hon'ble First Court has further erred in deciding that by signing the Adverse Career certificate the writ petitioner never undertook not to complain, if he was over looked for consideration and that the terms of the Adverse career Certificate, therefore, could not be invoked for defending the impugned actions of the respondent authorities. As per the records, the writ petitioner was given looks for N.D.C. in the following years: -1st-ln the year 1996 for N.D.C. 1997, 2nd-ln the year 1997 for N.D.C. 1998, 3rd-ln the year 1998 for N.D.C. 1999 and 4th-ln the year 1999 for N.D.C. 2000. The Hon'ble First Court ought not to have interfered and passed orders in the writ petition, since the matter related to policy decisions, which are ordinarily not interfered with the writ Court. The Hon'ble First Court erred while upholding the refusal of first look for N.D.C. 1999 and holding there was no illegality in not allowing conversion of figurative assessment into numeric assessment for 1997-1999, by virtue of which refusal by the concerned authorities, the writ petitioner was put to a disadvantageous position during N.D.C. consideration in 1999 and subsequent consideration for promotion to rank of Major general. The Hon'ble First Court did not take into consideration that in so far as the writ petitioner is concerned, he had moved to U.S.A. with a known set of rules for assessment of his A.C.R. and without informing him, the authorities could not mark his A.C.R. in pen-picture, which had the effect of keeping a blank in his A.C.R. for 1997-1999.
Issues: 1. Whether the writ petitioner was considered by the respondent authorities for selection to N.D.C. course in October, 1998? 2. Whether the writ petitioner was illegally denied second mandatory look for N.D.C. course? 3. Whether the writ petitioner, by signing the Adverse Career certificate, undertook not to complain, if he was over looked for consideration? 4. Whether the Hon'ble First Court ought to have interfered and passed orders in the writ petition, since the matter related to policy decisions? 5. Whether the Hon'ble First Court erred while upholding the refusal of first look for N.D.C. 1999 and holding there was no illegality in not allowing conversion of figurative assessment into numeric assessment for 1997-1999?
Ratio Decidendi: The court held that the arbitrary and selective change of policy from time to time, which squarely affected the writ petitioner, was made in a manner and in a pattern, which clearly indicates that from time to time the writ petitioner was put to a disadvantageous position vis-s-vis others similarly situate. The court further held that the Hon'ble First Court erred in holding that the writ petitioner was not considered by the respondent authorities for selection to N.D.C. course in October, 1998 and therefore it cannot be said that the writ petitioner forfeited his mandatory look for N.D.C. in the year 1998. The court also held that the Hon'ble First Court has erroneously held that the writ petitioner was illegally denied second mandatory look for N.D.C. course. The court further held that the Hon'ble First Court has further erred in deciding that by signing the Adverse Career certificate the writ petitioner never undertook not to complain, if he was over looked for consideration and that the terms of the Adverse career Certificate, therefore, could not be invoked for defending the impugned actions of the respondent authorities. The court also held that as per the records, the writ petitioner was given looks for N.D.C. in the following years: -1st-ln the year 1996 for N.D.C. 1997, 2nd-ln the year 1997 for N.D.C. 1998, 3rd-ln the year 1998 for N.D.C. 1999 and 4th-ln the year 1999 for N.D.C. 2000. The court further held that the Hon'ble First Court ought not to have interfered and passed orders in the writ petition, since the matter related to policy decisions, which are ordinarily not interfered with the writ Court. The court also held that the Hon'ble First Court erred while upholding the refusal of first look for N.D.C. 1999 and holding there was no illegality in not allowing conversion of figurative assessment into numeric assessment for 1997-1999, by virtue of which refusal by the concerned authorities, the writ petitioner was put to a disadvantageous position during N.D.C. consideration in 1999 and subsequent consideration for promotion to rank of Major general. The court further held that the Hon'ble First Court did not take into consideration that in so far as the writ petitioner is concerned, he had moved to U.S.A. with a known set of rules for assessment of his A.C.R. and without informing him, the authorities could not mark his A.C.R. in pen-picture, which had the effect of keeping a blank in his A.C.R. for 1997-1999.
Final Decision: The appeal filed by the Union of India, being M.A.T. No 2965 of 2006, for setting aside the impugned judgment and order dated 25th April, 2006 passed by the Hon'ble first Court, in W.P. No. 25155 (W) of 2005, cannot be sustained and therefore the same stands dismissed. In so far as the appeal filed by the writ petitioner, being M.A.T. No. 2255 of 2006 is concerned, we are of the opinion that in the facts and circumstances of the case, the Hon'ble First Court ought to have decided as to whether the posting of the writ petitioner as M/da to U.S.A. should have been treated as E.R.E., or was to be regarded as graded staff appointment, since treating of the writ petitioners tenure as M/da in U.S.A. as E.R.E. was one fo the reasons for the military authorities to non-select him in N.D.C. 1999 for 2000.
BISWANATH SOMADDER, J
(1) IN the present proceedings before us, two appeals have been filed against the judgement and order dated 25th April, 2006, passed by the Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 Honble 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 reint
