Union Of India vs Maj Gen Manomoy Ganguly Vsm

Respondent herein belongs to the Army Medical Corps. He is the Major General and aspires to become Lieutenant General (Lt. Gen.), which is next higher rank in his cadre. First Special Promotion Board (SPB), for this purpose was held on 20 th January, 2016 but he was not empanelled to the rank of Lt. Gen. by the said Board. His statutory complaint there against was partially redressed whereby an assessment of the Technical Officer (TO) in his Annual Confidential Report (ACR) of 2014 was expunged. This entitled him to fresh screening by Review SPB which held its meeting on 21st March, 2017. However, even Civil Appeal No. 17535 of 2017 Page 1 of 16 Review SPB did not empanel him for the promotional rank. After exhausting departmental remedies in the form of statutory complaint etc., the respondent approached the Armed Forces Tribunal (for short, ‘AFT’) and has finally succeeded inasmuch as vide orders dated 2nd September, 2017, passed in O.A. No. 1093 of 2017, the AFT has quashed the proceedings of Review SPB on the ground that it had allotted wrong board marks to the respondent. Directions are given to convene fresh Review SPB to consider him for promotion to the rank of Lt. Gen. in consonance with the parameters of relevant policies and his changed profile after allotting entitled board marks as stated in the said judgment, and to also restore his seniority. This appeal aims at questioning the correctness of the said judgment of the AFT.

Gen. and equivalent by SPB held on 20 th October, 2016. However, vide DGAFMS letter dated 1 st March, 2016, the respondent was informed that he was not empanelled for promotion. The respondent submitted his statutory complaint dated 30th June, 2016 against his non-empanelment challenging certain assessments in his relevant annual confidential reports. After seven months, the appellant granted partial redressal to the respondent vide their letter dated 30 th January, 2017, by way of expunging the entire assessment of the TO in the respondent’s ACR of 2014 on grounds of inconsistency, and directed that the respondent be considered for promotion by an appropriate Promotion Board. Consequent to the redressal granted to the respondent, his overall ACR profile for consideration before the SPB improved and consequently his merit logically came above that of the last officer empanelled in the SPB held on 20 th January, 2016. Since, the redressal was granted, as per the Civil Appeal No. 17535 of 2017 Page 3 of 16 policy of the appellants, the respondent had to be put through a fresh/Review SPB.

“Weightage to the Members of the Board: Board Members will have a weightage of two (2) mark for selection of the officers. The Board Members may award marks not exceeding two (2) based on the overall profile of the officers, exceptional achievements, appointments held, medical category, disciplinary background, field Area-Difficult Area posting. Average of the marks awarded by all the board members present, out of the two (2), will be used to calculate the overall marks.” Thus, it can be discerned that while 93 marks (ACR average 90, qualification marks-02, honour and awards – 01) can be quantified on the basis of relevant records, and need only Civil Appeal No. 17535 of 2017 Page 5 of 16 arithmetical calculations, marks to be assigned by the Board Members out of two(2), depend on the subjective assessment of the Board Members, al beit, after objectively evaluating the overall profile on the parameters laid down in the Promotion Policy.

9) From the aforesaid facts, it is clear that insofar as award of 93 marks, out of 95 marks, is concerned that can be calculated arithmetically on the basis of ACR, academic qualifications as well as military awards and decorations. Discretion is given to the Board to give weightage out of 2 marks and while exercising these discretions the Members of the Board are supposed to keep in mind the overall profile of the concerned officer, exceptional achievements, appointments held, medical category, disciplinary background, field area—difficult area posting.

10) Insofar as the respondent is concerned, he was assigned 87.90 marks on the basis of ACR, i.e., against extrapolated out of 90 marks, when his case was considered for promotion originally by the SPB on 20th January, 2016. However, after redressal of his statutory complaint which resulted in expunging of some adverse remarks in ACR of the year 2014, these extrapolated out of 90 marks stood enhanced to 88.50. However, in the Review Civil Appeal No. 17535 of 2017 Page 6 of 16 SPB, the Board stuck to the same marks which were awarded by the first Promotion Board. In this manner, though there was some increase in the total marks awarded to the respondent (as a result of increase in marks on account of ACRs). The final marks awarded to him were still below the cut-off marks because of which he was not empanelled for promotion by the Review Board as well. The entire controversy before the AFT, thus, pertained to the award of marks by the Board Members in the Review SPB.

11) The case pleaded by the respondent before the AFT was that one Mr. Sanjeev Chopra, VSM, who was junior to the respondent was empanelled by the SPB on the basis of proceedings held on 20th January, 2016. Total marks obtained by him out of 93 marks (i.e. without Board marks) were more than the respondent at that time. However, with increase of ACR marks of the respondent after his redress, total marks of the respondent out of 93 marks became more than that of Mr. Sanjeev Chopra. But the respondent was still denied promotion by the Review SPB by awarding marginally less marks than Sanjeev Chopra by the Board. It was argued that since total without board marks of the respondent were more than that of Mr. Sanjeev Chopra, there was no reason for the Board to give him Civil Appeal No. 17535 of 2017 Page 7 of 16 lesser weightage while awarding marks out of the 2 marks by the Board.

21) In the original SPB meeting, Major General Sanjeev Chopra was awarded 1.70 out of 2 marks whereas the respondent was awarded 1.50 marks. Lesser marks given to the respondent were because of the reason that marks awarded to him out of 93 were lesser than Mr. Sanjeev Chopra. Result of the redressal was that the marks of the respondent became higher than Mr. Sanjeev Chopra which necessitated Review SPB. This Review SPB Civil Appeal No. 17535 of 2017 Page 13 of 16 meeting has to be on the same standards which were adopted in original SPB meeting. It has to be on the assumption as if case of the respondent is considered in the original SPB, but with revised profile. In the SPB held on 20 th January, 2016, had the revised marks of the respondent available, which were more than the quantified marks of Sanjeev Chopra, the respondent would have certainly got 1.70 out of 2 marks by the Board. It is stated at the cost of repetition that was the criteria adopted by the Members of the Board itself viz. awarding the marks (out of 2) in line with the quantified marks. Having not undertaken the independent exercise of looking into the “overall profile” in the SPB held on 20th January, 2016 and instead assigning the marks to all the officers out of 2 marks, on the basis of quantified marks of the candidates which they had received out of 93 marks by treating the same as “overall profile”, when it comes to Review SPB the appellant is supposed to stick to the same criteria. Only that would show fairness in approach, which would also be in conformity with the principles of equality enshrined in Article 14 of the Constitution. It is because of the reason that Review SPB is nothing but extension of original SPB, wherein the respondent was supposed to be considered on the same parameters as if he was participating in promotion process undertaken in original Civil Appeal No. 17535 of 2017 Page 14 of 16 SPB.

23) For these reasons, we are not interfering with the directions given by the AFT. We make it clear that in any future selections, it would always be open to the Members of the Board to award the marks (out of 2 marks assigned for this purpose) keeping in Civil Appeal No. 17535 of 2017 Page 15 of 16 view the overall profile of the officers as per Promotion Policy dated 14th January, 2004 and as amended vide letter dated 17 th May, 2006.

24) This appeal is, accordingly, dismissed with the direction to the appellant to take further steps, without loss of time, as stated by the AFT in the impugned judgment.

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