GITA MITTAL, J.

1. Thomas Jefferson said that “Experience has shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny”. Tyranny points towards arbitrariness. The instant case raises this issue with full force.

2. The writ petitioner assails the order dated 22nd of September 2011 passed by the Armed Forces Tribunal rejecting O.A.No.161/2011. By this petition, the petitioner had challenged the legality of the action of the respondents in considering respondent no.5 of the 1974 batch (who was a review case) in 2009 in the Selection Board No.1 held on 12August, 2009 as a solitary case for promotion to the rank of Major General; and the order dated 22October, 2010 passed by the Central Government – respondent no.1 rejecting the statutory complaint of the petitioner against his non-consideration in the aforesaid Selection Board. The petitioner had also laid a challenge to the action of the respondents in not considering him in the Special Selection Board scheduled on 28April, 2011 (subsequently held on 18August, 2011) for promotion to the rank of Lieutenant General in which the respondent no.5 has been considered for promotion.

3. The facts giving rise to the instant petition are largely undisputed and are within a narrow compass. To the extent necessary for the purposes of the present consideration and for the purpose of convenience, the issues raised before this Court are being considered in the following heads:-

S. No. Heading Para nos.

(i) Factual background : 4

(ii) Scope of Judicial Review : 36

(iii) Applicable Rules and Policy : 48

(iv) The respondents understanding and : 52

implementation of the Regulations/

Policies

(v) The petitioners eligibility for : 73

promotion to Major General.

(vi) Selection Board Misled that : 89

the respondent no.5 (of the 1974

Batch) was being given a

consideration as if he was a

fresh case of the 1975 Batch.

(vii) Whether the respondent no.5 : 98

was eligible for consideration

for appointment as Lieutenant

General?

(viii) Comparative/relative merit of : 130

the two officers

(ix) Issuance of promotion order : 145

dated 28th September, 2011

of the respondent no.5 (to the

rank of Lt. General) and pipping

ceremony of the respondent no.5

in undue haste

(x) Bias in favour of the respondent no.5 : 154

(xi) Conclusions : 160

(xii) Result : 172

Factual background

4. The petitioner was commissioned in the Remount Veterinary Corps (RVC) of the Indian Army on the 22of November 1976 with the same date of seniority. The respondent no.5 was commissioned in the RVC in the year, 1974.

5. On 1st November, 2006, the respondent no.5 was promoted to the rank of brigadier. The petitioner was promoted as brigadier on the 21st of April, 2008 along with the 1976 batch.

6. The Selection Board No.1 was held for the RVC on the 12of August 2008 for promotion from the rank of Brigadier to Major General. It appears that the respondent no.5 was considered by this selection board along with Brigadier M.L. Sharma, also of the same batch as a fresh batch. Brigadier M.L. Sharma was empanelled by the Board but the respondent no.5 was not empanelled on merits.

7. The writ petitioner contends that consideration of the 1974 batch for the promotion to the rank of Major General was thus over. For the next vacancy, as per the applicable policies, the next available batch had to be granted its first consideration as fresh cases. The respondent no.5 could have been considered only as a first review case along with such next available batch in the next selection.

8. It is not disputed that in March, 2009 one additional vacancy in the RVC was added for the rank of Major General. Promotion to this vacancy is being strongly contested in the present proceedings.

9. It is undisputed that there was no officer eligible for consideration in the next batch which was the 1975 batch as t