Non-Reportable  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos.7436-7437 of 2010

UNION OF INDIA & ORS.                                                                                    .... Appellant(s)

Versus

MAJOR GENERAL ARUN ROYE & ORS.                                               …. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. The  First  Respondent  was  commissioned  as  Second

Lieutenant in the Army through the National Defence Academy

on  11.06.1967.   He  was  promoted  as  Lieutenant  Colonel,

Colonel and Brigadier.  While he was working as Brigadier, he

was  appointed  as  Defence  Attaché/Military  Attaché  in  the

United States of America on 16.05.1996.  Before proceeding to

join  the  said  post,  the  First  Respondent  signed  an  Adverse

Career  Certificate,  stating  that  he  will  accept  any  adverse

effect on his future career in terms of not being adequately

exercised,  non-detailment  on  career  courses/subsequent

courses, and delay in subsequent promotion etc.   During the

1

course of his stay in the USA, the Chief of Army Staff (‘COAS’)

approved  a  change  in  the  assessment  of  officers,  by  doing

away with figurative assessment of Defence Attachés/Military

Attachés in the matter of  finalizing their  Annual  Confidential

Reports.   By an office order dated 07.04.1998, the method of

figurative assessment in personal qualities and box-grading of

Defence Attachés/Military Attachés was dispensed with.   Pen-

picture assessment of officers holding the listed appointments

was retained.   After  returning  to  India  on completion  of  his

tenure  as  a  Defence  Attaché/Military  Attaché,  the  First

Respondent  requested  for  a  ‘look’  for  the  National  Defence

College (NDC), 2000 course.

2. The First  Respondent  was considered for  nomination to

NDC, 2000 course.   The First Respondent voiced his grievance

regarding  the  dispensation  of  figurative  assessment  of  his

confidential  reports  as  Defence  Attaché/Military  Attaché.  In

response to the representation made by the First Respondent,

the  Military  Secretary  informed  the  First  Respondent  that

figurative  assessment  in  the  confidential  reports  of  Defence

Attachés/Military  Attachés  was  re-introduced  in  2000  with

prospective effect.  

2

3. The  First  Respondent  was  considered  for  promotion  as

Major General but was not empanelled due to the absence of

NDC weightage.   A Non-Statutory Complaint was preferred by

the First  Respondent,  aggrieved by his  non-empanelment as

Major General,  which was rejected on 07.11.2000.  The First

Respondent was further denied consideration for nomination to

NDC for the year 2001.  The First Respondent filed a Statutory

Complaint  regarding  his  supersession  to  the  post  of  Major

General, in which he contended that the order by which the

Non-Statutory Complaint was rejected did not consider various

claims made by him, including the one pertaining to conversion

of the confidential reports for the years 1997 and 1998.  He

emphasized the injustice done to him by not considering his

nomination for the NDC course during his tenure as Defence

Attaché/Military Attaché.   He raised other grounds in support

of his case that he was unjustly superseded.  Pursuant to the

recommendations  of  the  Special  Selection  Board,  the  First

Respondent was found fit for promotion as Major General.  On

promotion,  the  First  Respondent  was  posted  as  GOC,  11th

Infantry Division.   The Statutory Complaint  filed by the First

Respondent regarding his supersession for promotion to Major

3

General in the year 2000 was rejected by the Chief of Army

Staff by a letter dated 14.03.2000.

4. The  First  Respondent  was  temporarily  promoted  as

Deputy Director General, Assam Rifles on 26.09.2002 and later

posted  as  Additional  Director  General,  Assam  Rifles  on

10.01.2003.   During  the  period  of  his  service  as  Deputy

Director General,  Assam Rifles, there was again a change in

the  method  of  assessment  of  officers  holding  certain  posts

including the post of Deputy Director General, Assam Rifles to

the detriment of the First Respondent.   

5. The  First  Respondent  was  considered  by  the  Special

Selection Board for promotion to the post of Lieutenant General

but he was not empanelled.   The statutory complaints filed by

the  First  Respondent  aggrieved  by  his  non-empanelment  as

Lieutenant General were rejected.  

6. Assailing the legality of the orders rejecting the statutory

complaints and his non-empanelment as Lieutenant General,

the First Respondent filed a Writ Petition.  During the pendency

of  the  Writ  Petition  in  the  High  Court,  the  third  Statutory

Complaint  filed  by  the  First  Respondent  was  rejected  on

02.02.2006  and  the  First  Respondent  was  not  selected  for

4

promotion  as  Acting  Lieutenant  General  by  the  Special

Selection Board meeting that was held in February, 2006.

7. The learned Single Judge of the High Court allowed the

Writ Petition and directed the Appellants to change the profile

of the First Respondent.  The Appellants were further directed

to reconsider the claim of the First Respondent for promotion to

the  rank  of  Lieutenant  General  in  the  light  of  the  findings

recorded in  the judgment.   The Appellants  were directed to

arrange a meeting of the Special Selection Board on or before

29.04.2006 to consider the claim of the First Respondent for

promotion to the rank of Lieutenant General on the basis of the

changed profile of the First Respondent.  The members of the

Special  Selection  Board  were  specifically  restrained  from

considering the NDC aspect as the second mandatory look for

NDC was illegally denied to the First Respondent.   The learned

Single Judge further directed that the figurative assessment in

the confidential reports of the First Respondent by the GOC-in-

C, Eastern Command and COAS when the First Respondent was

posted  as  ADG,  Assam  Rifles  shall  also  not  be  taken  into

consideration  at  the  time  of  relative  assessment  of  the

candidates for the purpose of granting promotion to the post of

Lieutenant  General.    In  case  the  Special  Selection  Board

5

declared the First Respondent fit for promotion to the rank of

Lieutenant General on the basis of the changed profile in terms

of the order passed by the High Court, the First Respondent

was held entitled to enjoy all the benefits of the promotional

post  in  the  rank  of  Lieutenant  General.    As  the  date  of

retirement  of  the  First  Respondent  on  attaining  the  age  of

superannuation was on the anvil,  the Appellants  were given

liberty to issue formal orders of promotion even after the date

of his retirement with retrospective effect.  

8. Both the Appellants as well as the First Respondent filed

appeals  against  the  judgment  of  the  learned  Single  Judge.

While  dismissing  the  appeal  filed  by  the  Appellants  and

allowing the appeal  filed by the First Respondent,  a Division

Bench of the High Court affirmed the directions issued by the

learned Single Judge.    The Division Bench further observed

that  the  learned  Single  Judge  went  wrong  in  not  deciding

whether  the  posting  of  the  First  Respondent  as  Defence

Attaché/Military Attaché to the USA should have been treated

as  an  Extra-Regimental  Employment.   The  Division  Bench

further  held  that  the  learned  Single  Judge  had  erroneously

upheld the decision of the Appellants in refusing a first look to

the First Respondent for NDC, 2000 on the ground that there

6

was  no  illegality  in  not  allowing  conversion  of  figurative

assessment into numeric assessment for the years 1997-1999.

The Division Bench was of the opinion that the issue pertaining

to  the  non-selection  of  the  First  Respondent  to  the  rank  of

Major General in April, 2000 ought not to have been ignored by

the learned Single Judge by treating it as a non-vital issue.  The

Appellants are before this Court challenging the judgment of

the learned Single Judge as affirmed by the Division Bench.

The Appellants are also aggrieved by the observations made

by the Division Bench while allowing the appeal  of  the First

Respondent.   

9. It would be convenient to deal with each of the relevant

issues separately for a proper understanding of the dispute.

Confidential Reports                                 

10. By  an  office  order  dated  07.04.1998  from  the  Army

Headquarters,  the  Chief  of  the  Army  Staff  approved  the

dispensation  with  the  system  of  figurative  assessment  in

personal  qualities  and  box-grading  while  retaining  the  pen-

picture in the confidential reports of the officers holding certain

specific  appointments.   At  that  point  of  time,  the  First

Respondent was working as Defence Attaché/Military Attaché

in USA.  The contention of the First Respondent before the High

7

Court was that the figurative assessment was dispensed with

to cause prejudice to his service prospects, which would entail

an  advantage  to  his  colleagues.  When the  First  Respondent

made  a  representation  to  the  authorities  complaining  of

dispensation  of  figurative  assessment  in  the  ACRs  of  the

Defence  Attaché/Military  Attaché,  he  was  informed  that  the

figurative  assessment  was  re-introduced  with  effect  from

01.01.2000, which would benefit his colleagues.   The change

in  assessment,  according  to  the  First  Respondent,  seriously

affected his career prospects.   It was the further contention of

the First Respondent before the High Court  that he was not

considered  for  nomination  to  NDC  course  and  was  not

empanelled as a Major General in view of the change of the

method of assessment of the confidential reports during 1997-

1999.   The  First  Respondent  sought  for  conversion  of  the

assessments made by the Ambassador to USA for the years

1997-1998,  1998-1999 to  numeric  quotients,  which  was  not

allowed by the High Court as the Regulations do not permit

such conversion.   

11. After  being  moved  on  temporary  duty  to  the  post  of

Additional  Director  General,  Assam  Rifles  the  channel  of

reporting for  the post  of  Additional  Director  General,  Assam

8

Rifles was changed to the detriment of the First Respondent.

On 19.12.2002, an order was issued by the Military Secretary

Branch regarding the initiation/endorsement of the confidential

reports by reporting officers other than the Army officers.  It

was clarified in the said order that all reporting officers will fill

up only the pen-picture and are prevented from reporting in

figurative.  The First Respondent contended that the GOC-in-C,

Eastern  Command  and  the  Chief  of  Army  Staff  made

assessments in figurative though they were not authorized to

do so.   As the assessment in figurative was contrary to the

policy,  the  First  Respondent  sought  expunction  of  the

assessment  that  was  made  by  the  GOC-in-C  and  COAS.

Accepting the submission of the First Respondent the learned

Single Judge held that the GOC-in-C, Eastern Command and the

COAS acted in  excess  of  jurisdiction  and in  violation  of  the

policy  decision by making figurative assessment of  the First

Respondent when he was posted as ADG, Assam Rifles.  The

Division  Bench  affirmed  the  said  conclusion  of  the  learned

Single Judge and we have no reason to take a different view on

the point pertaining to the figurative assessment made by the

GOC-in-C and COAS being contrary to the policy, and therefore

without jurisdiction.  

9

12. The  learned  Single  Judge  was  of  the  opinion  that  the

assessment of CRs of the First Respondent cannot be stated to

be vitiated due to mala fides as no such submission was made

by the First Respondent.   However, the learned Single Judge

found fault with the rejection of the statutory complaints on the

ground of violation of principles of natural justice.  According to

the  learned  Single  Judge,  vital  documents  namely,  the

comments of the Army Authorities on the statutory complaints

were  not  supplied  to  the  First  Respondent.   Mr.  R.

Balasubramanian, counsel for the appellant, did not press the

point  relating  to  the  supply  of  the  comments  of  army

authorities on the statutory complaints to the First Respondent.

Therefore,  we leave the question of  law as to whether non-

furnishing of the remarks of the Army authorities on statutory

complaints to the officer concerned would result in violation of

principles  of  natural  justice,  open. However,  on  an  overall

consideration  of  the  issue  pertaining  to  the  confidential

reports, we are in agreement with the learned Single Judge that

the profile of the First Respondent warranted a change.   

National Defence College                  

10

13. The First  Respondent  contended  before  the  High  Court

that his service period as Defence Attaché/Military Attaché in

USA was not considered on the ground that the appointment of

the  First  Respondent  was  an  Extra-Regimental  Employment.

The procedure for selection to the NDC course provides for two

looks  for  all  Brigadiers,  provided  they  fulfill  the  eligibility

criteria.   The First Respondent submitted before the High Court

that the first mandatory look for nomination to NDC course for

the year 2000 was rejected in the month of October 1999 in

view of the non-consideration of his ACRs during his service as

Defence Attaché/Military Attaché in the USA on the basis that

the posting of the First Respondent was an Extra Regimental

Employment.  He was not considered for the second look on

the ground that he was assessed as ‘not promotable’ by the

concerned Selection Board.  The learned Single Judge of the

High Court refused to adjudicate on the issue relating to the

posting  of  the  First  Respondent  as  Defence  Attaché/Military

Attaché in USA being treated as Extra Regimental Employment,

on the ground that no such declaration was sought by the First

Respondent in the Writ Petition.  The refusal to have a second

look at the First Respondent in October, 2000 for NDC, 2001

was  found  to  be  arbitrary  by  the  High  Court  in  view  of

11

promotability checks being introduced only on 07.01.2002 and

07.02.2003.  The submission made on behalf of the Appellants

that  the  First  Respondent  forfeited  his  right  for  the  first

mandatory look for NDC in the year 1998 was rejected by the

High Court on the ground that the First Respondent was not, in

fact, considered by the Appellants for selection to NDC course

in October, 1998.  Moreover, it is clear from the record that two

months  after  the  refusal  of  a  second  look  to  the  First

Respondent  in  October,  2000  for  NDC  2001,  the  First

Respondent was found fit for promotion to the post of Major

General  in  April,  2001.   On  a  detailed  consideration  of  the

above  issue,  the  learned  Single  Judge  of  the  High  Court

observed  that  the  First  Respondent  was  illegally  denied  a

second  mandatory  look  for  the  NDC  look.   On  a  thorough

examination of the evidence on record, we have no reason to

take a different view from the one taken by the learned Single

Judge and affirmed by the Division Bench.   

Non-empanelment as Lieutenant General   

14. The First  Respondent  contended  before  the  High  Court

that his consideration for empanelment as Lieutenant General

in February, 2006 was not a valid exercise of power as his

service profile was not properly and correctly prepared.  The

12

overall profile of the First Respondent presented before the

members  of  the  Special  Selection  Board  was  tainted  by

irrelevant  and  irregular  considerations.   In  view  of  the

findings  recorded  by  the  High  Court  on  the  confidential

reports as well as the nomination to the NDC, the direction

issued by the learned Single Judge of the High Court that

there should be re-assessment of  the First  Respondent by

the Special Selection Board suffers from no infirmity.  It  is

relevant to note that the Special Selection Board considered

the First Respondent as a Special Review Fresh Case of 1968

batch with changed profile, but found the First Respondent

not fit for empanelment as Lieutenant General.       

15. After holding that the directions issued by the learned

Single Judge and affirmed by the Division Bench warrant no

interference  by  this  Court,  the  point  that  remains  to  be

considered is whether the Division Bench was justified in its

observations pertaining to certain aspects which were not

considered by the learned Single Judge.   The learned Single

Judge  made  it  amply  clear  that  the  High  Court  was  not

interfering with any policy decision of the Government.   The

relief that was granted to the First Respondent was in view of

13

the irregularities committed by the Appellants in violation of

the policy decision of the Government.  As stated supra, the

learned Single Judge also observed that the First Respondent

did not seriously contest the issue of mala fides.   We are of

the opinion that the Division Bench went wrong in holding

that  the  learned  Single  Judge  ought  to  have  decided  the

point whether the posting of the First Respondent as Defence

Attaché/Military  Attaché  to  USA  should  be  treated  as  Extra

Regimental Employment.  As the said issue was not raised by

the  First  Respondent  in  his  Statutory  Complaint  filed  in

February, 2005 and as the First Respondent did not even seek

for a declaration in the Writ Petition, the learned Single Judge

was right in not deciding the issue of the posting of the First

Respondent as Defence Attaché/Military Attaché to USA being

treated as Extra Regimental Employment.   The Division Bench

also observed that the learned Single Judge erred in upholding

the refusal of first look in 1999 for NDC 2000.   In view of the

relief that was granted by the learned Single Judge to change

the  profile  of  the  First  Respondent  after  holding  that  the

second look for nomination to the NDC, 2001 was illegally

denied to him, we do not see any reason for the Division

Bench to have made such observations.  The Division Bench

14

took  a  view  different  from the  one  taken  by  the  learned

Single Judge on the point pertaining to the non-selection of

the  First  Respondent  to  the  rank  of  Major  General  from

Brigadier  in  April,  2000.   We  are  in  agreement  with  the

learned  Single  Judge  on  this  issue  as  well.   The  learned

Single Judge held that non-selection of the First Respondent

to the rank of Major General from Brigadier in April, 2000 is

not a vital issue since the First Respondent was promoted as

Major General in April, 2001.  In view of the relief that was

granted by the learned Single Judge in favour  of the First

Respondent, the Division Bench ought not to have held that

the  learned  Single  Judge  committed  an  error  in  not

considering  the  aforementioned  issues.  The  observations

made by the Division Bench pertaining to the above issues

which were not considered by the learned Single Judge are

not sustainable and are hereby set aside.  

16. For  the  aforementioned  reasons,  we  uphold  the

judgment  of  the  learned  Single  Judge  as  affirmed  by  the

Division  Bench.   The  observations  relating  to  the  non-

consideration of certain issues by the learned Single Judge

15

made by the Division Bench are set aside.    Accordingly, the

appeals are dismissed.    

                   ..…................................J                                                                    [L. NAGESWARA RAO]

                                                          .. …................................J

                                                 [M.R. SHAH] New Delhi, April  09, 2019.  

16