LETTERS PATENT APPEAL No.658 OF 2003 ----------- Against the judgment dated 14.8.1997 passed in C.W.J.C. No.11155 of 1995 by a learned Single Judge of this Court. ---------- 1. The Union of India through the Defence Secretary, Ministry of Defence, New Delhi. 2. The Chief of Army Staff, Army Headquarters, DHQ, P.O. New Delhi. 3. The Military Secretary, M.S. Branch, Army Headquarters, DHQ, P.O. New Delhi ------------- Appellants. Versus IC-15483 L Brig. Ashok Malhotra, son of late J.D. Malhotra, Resident of Flag Staff House, 5 River Side, P.O. Danapur Cantt- 801503 ------- Respondent. -------------- For the Appellants : Mr. Raghib Ahsan, Sr. Advocate. (Asstt. Solicitor General) & Mr. P.L. Jaiswal, CGC for Union of India. For the Respondent: Mr. Anshuman Singh, Advocate. ------------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE JAYANANDAN SINGH S.K.Katriar,J. 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 Vrs. 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 petitioner‟s 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 2 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 3 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 petitioner‟s 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. Vrs. 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.) Vrs. 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. 4 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 Vrs. Prabhat Chandra Jain and others [(1996) 2 SCC 363], which has been explained by the Supreme Court in the case of Union of India and another Vrs. 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 judgment of the Supreme Court in the case of Union of India and another Vrs. Major Bahadur Singh (supra). 4. Learned counsel for the writ petitioner has supported the impugned judgment and submits that the entry „High Average‟ for the period 1988-89, being adverse in nature, had to be communicated to the petitioner. Not having been communicated, the same could not have been taken into account by the authorities. He relies on the judgment of the Supreme Court in the case of Gurdial Singh Fijji Vrs. State of Punjab and others, [(1979) 2 SCC 368], which, in his submission, lays down to the effect that entry in the confidential character roll has the broader object of advisory 5 and corrective in nature. He next submits that adverse entry „High Average‟ was entered in the confidential character roll during the period 1988-89, whereafter he was promoted to the rank of Brigadier. He also submits that his case was considered for the post of Major General when non- statutory complaint was still pending. He further submits that the authorities should not be arbitrary. He relies on the judgment of the Constitution Bench of the Supreme Court in the case of Mrs. Maneka Gandhi Vrs. Union of India and another, [(1978) 1 SCC 248, Paragraph nos. 89, 90 and 206. He lastly submits that his case is squarely covered by the judgment of Division Bench of Madhya Pradesh High Court in the case of Brig. Kranti Kumar Sood Vrs. Union of India, 1994 Lab. I.C. 1150, which was affirmed by the Supreme Court in its judgment in the case of Union of India & Ors.Vs. K.K. Sood , JT 2002(8) SC 333. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The core issue in the present appeal is the value and content of the entry „High Average‟. This issue fell for the consideration of the Supreme Court in the case of Union of India V. Major Bahadur Singh (supra). That was a case where the Army Officer was denied promotion to the next higher rank. The writ petition before Delhi High Court was 6 dismissed, the intra-court appeal in the High Court was allowed, and the authorities were directed to reconsider his case. The Supreme Court on appeal at the instance of the Union of India considered the provisions and the procedure in force in the Indian Army with respect to the entries that could be made in the confidential character roll, and came to the conclusion that the entry assessed at 3 marks or less is adverse and is, therefore, required to be communicated to the Officer concerned. „High Average‟ is assessed at 6 or 5 marks, is not treated in the prescribed procedure to be an adverse entry and, therefore, is not required to be communicated. The Supreme Court also held that promotion up to the rank of substantive Major is based upon the length of service, provided the officer fulfills the mandatory requirement of such a promotion. Promotions above the rank of Major are done through process of selection. In other words, the Supreme Court on a consideration of the procedure in force in the Indian Army came to the conclusion that the High Court had not considered the procedure of the Indian Army and erred in reversing the judgment of the learned Single Judge. 6. It is thus evident on the authority of the judgment of the Supreme Court that the entry „High Average‟ is not adverse and, therefore, is not required to be communicated 7 to the concerned Officer. The learned Single Judge has based his judgment on this aspect of the matter alone. In other words, the learned Single Judge was labouring under the impression that „High Average‟ is adverse entry, not having been communicated to the petitioner, the same could not have been taken into consideration. We, therefore, disagree with this part of the judgment. Once we reach this conclusion, the very basis of the judgment goes. Therefore, there can not be any justification to quash the entry of „High Average‟ for the period 1988-89. 7. Learned counsel for the writ petitioner has made a strong grievance that the entry was not conveyed to him. As indicated hereinabove, the Indian Army, as per its established procedure, does not treat the entry in question as adverse entry. Therefore, the same was not required to be conveyed to the Officer concerned. In such a situation, there was no scope for non-statutory complaint. 8. Learned counsel for the appellant has rightly relied on the judgment of the Supreme Court in the cases of Anil Katiyar (supra), and Amrik Singh (supra), that it is normally not given to the court to critically examine and judicially review entry in the confidential character role, subject to exceptional circumstances like mala fide etc. 9. He has also submitted that after the alleged adverse 8 entry was made during the period 1988-89, whereafter he was promoted to the rank of Brigadier and, therefore, the same would be deemed to have been washed out, and cannot come in his way for the next promotion. The post of Major General is in the General‟s rank in the Indian Army, and is at the top of the pyramidal structure of control and command. Therefore, the authorities are entitled to consider the entire service record. Officers in the rank of Major General are far less in number than Brigadiers. It would naturally involve very strict stringent scrutiny. On them is the responsibility of defence of the country‟s borders. 10. We must also consider the judgment of a Division Bench of the Madhya Pradesh High Court in the case of Brig. Kranti Kumar Sood (supra), which was affirmed by the Supreme Court in the case of Union of India and Ors. Vrs. K.K. Sood (supra). The judgment does not take into account the procedure of the Army with regard to the recording of confidential character roll. Therefore, this judgment falls foul of the decision of the Supreme Court in the case of Union of India Vrs. Major Bahadur Singh (supra), and cannot be taken into account. 11. Learned counsel for the petitioner has also relied on the judgment of the Supreme Court in the case of Maneka Gandhi (supra). We are unable to appreciate its applicability 9 to the present case. We do not see any arbitrariness on the part of the authorities in denying promotion to the petitioner. The petitioner completely fails to realize that he was considered for promotion on three occasions, namely, 1994, 1995, and 1997, and on all the three occasions was not found fit for promotion. Such an approach is in complete ignorance of the position that an administrative structure in the Army is pyramidal in nature and, therefore, every officer can not get promotion to the next higher rank. Learned counsel for the appellant has on instructions provided us with the following charts. “Details of Selection Board: 1.Ist Chance Oct.1994 Seniority of 1964 Brig. Considered - 117 Approved for Major General- 24. 2. IInd Chance October, 1995- Seniority of 1965. Brig. considered - 149 Approved for Major General - 33 3. IIIrd Chance April, 1997 Seniority of 1966 Brig. considered - 150 Approved for Major General - 32.” 11.1. It is thus evident that in 1994, on the first occasion, 117 Brigadiers were considered and only 24 were found fit for promotion. In 1995, the second occasion, 149 Brigadiers were considered, and only 33 were found fit for promotion. In 1997, the third occasion, 150 Brigadiers were considered and only 32 were approved for promotion. We take judicial notice of the fact that the rank of Major General needs very 10 high level of competence and impeccable qualities. The numbers of posts of the rank of Major General is far less than those of Brigadiers. The promotion is limited by number of vacancies. 12. In the result, this appeal is allowed. We respectfully disagree with the judgment of the learned Single Judge and as a consequence the writ petition is dismissed. J. N. Singh, J. I agree. High Court Patna, Dated 11th August,2010 Vinay/ A.F.R. ( S. K. Katriar,J. ) (J. N. Singh,J)