REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 17535 OF 2017

UNION OF INDIA AND OTHERS .....APPELLANT(S)

VERSUS

MAJ. GEN. MANOMOY GANGULY, VSM .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

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  20th

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

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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.  

2) Facts which are absolutely essential for disposal of this appeal

may be mentioned at this stage:

3) The respondent was commissioned in the Army Medical Corps

(AMC) on 3rd March,  1980.   He has an outstanding academic

record  and  brilliant  service  record,  for  which  he  has  been

decorated  time  and  again.   This  includes  GOCin–C”s

Commendation in the year 2013, Commendation of Chief of Army

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Staff in the year 2014 and Vishisht Seva Medal in the 2015.  He

has earned promotions from time to time, whenever became due

and  has  arisen  to  the  rank  of  Maj.  Gen.  He  is  due  for

superannuation in this rank on 31st May, 2018.

4) The respondent was considered for promotion to the rank of Lt.

Gen.  and  equivalent  by  SPB  held  on  20 th January,  2016.

However,  vide  DGAFMS  letter  dated  1st 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 30th 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

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policy of the appellants, the respondent had to be put through a

fresh/Review SPB.

5) It  is  pertinent  to  note  at  this  stage  that  as  per  the  Promotion

Policy dated 14th January, 2004 as amended by the Government

of  India  letter  dated 17th May,  2006,  the selection criteria  was

based on following parameters:

“(a)Average marks of ACR : 90 marks extrapolated out of 90   

(b)Total Marks for various : 02 marks      Qualifications like MD, DM,

M.Ch. etc.

(c) Marks for Military Awards of : 01 marks     Decorations

(d) Marks awarded by the members :  02 marks     of the Board

Total Marks :  95 marks”

6) The composition of the Promotion Board (Medical) is as per the

Ministry  of  Defence  letter  No.  301/DGAFMS/DG-1X/87-S/D

(Med.) dated 8th February, 1988 and for the SPB for promotion to

the rank of Lt. Gen. (&equiv) the board comprises:

Chairman : Chairman Chiefs of Staff Committee

Members : The other two Chiefs of Staff

Member Secretary : DGAFMS

7) As noted above, as per the Promotion Policy, the Board Members

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are empowered to assess and award the marks.  Award of these

marks, not exceeding two (2), is based on the overall profile of

the officer, 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 two (2), is used to calculate the overall

marks.

8) The  procedure  for  selection  and  promotion  which  is

communicated vide Circular dated 14th January, 2004 issued by

the  Ministry  of  Defence  (MoD),  Government  of  India  and as

amended vide letter dated 17th May, 2006 enumerates basis for

awarding two marks keeping the following criteria in mind.

“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

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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

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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

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lesser weightage while awarding marks out of the 2 marks by the

Board.

12) This  contention  is  accepted  by  the  AFT in  the  following

manner:

“We have heard the learned counsel  for  the parties and seen the records.  The man point of dispute is the award  of  Board  Marks  to  the  applicant  during  the Review Special Promotion Board held on 21.03.2017. It is a matter of record that the redressal given to the applicant by the respondent in his Annual Confidential Report for the year 2014 has enhanced his quantified marks  from  90.65  to  91.25  and  with  these  revised quantified marks, the applicant jumps above the last empanelled  officer  of  his  batch,  i.e.,  Major  Gen Sanjeev  Chopra  whose  quantified  marks  are  91.15. We  find  that  Maj.  Gen  Sanjeev  Chopra  with  lower quantified marks in comparison to the applicant has been given 1.70 out of two marks by the Board.  We have also been the trend of awarding the Board Marks to  all  officers  considered  in  this  Board  which  is commensurate  with  the  quantified  marks  of  the candidates.  Therefore, the same cannot be denied to the  applicant  unless  it  is  justified  by  the  Board Members,  which  has  not  been  done  in  the  Board Proceedings.”    

13) In the process, the AFT has also observed that wrong facts

were projected to the Board Members inasmuch as in the noting

of  the Board proceedings it  is,  inter  alia,  mentioned that  ACR

merit of the respondent in Chance one changed from 16th position

to  15th position  among  18  officers  considered  for  only  six

vacancies.  Noting No. 3 of the Notings in the Board proceedings,

giving this information, reads as under:

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“3.  His  CR merit  in  chance  one  changed  from 16th

position to 15th position among 18 officers considered for only six vacancies.”

14) The  AFT  found  that  it  was  factually  wrong  as  the

respondent’s revised profile after getting redressal had resulted in

elevating his position to 7th place instead of 15th.  According to the

AFT,  had there been correct  facts before the Board Members,

they may have given higher marks to the respondent.  The AFT

has even castigated the officers who, according to the AFT, were

guilty  of  furnishing  wrong  information  which  caused  serious

injustice to the respondent and subverted the system.

15) The  AFT mentioned  that  since  Mr.  Sanjeev  Chopra  was

given 1.70 marks out of the two marks, by the Board, there was

no reason to give 1.50 marks to the respondent.  Having regard

to the fact that in the original SPB meeting, award of these marks

commensurate  with  the quantified  marks of  the candidate,  the

respondent is also entitled to 1.70 marks and in this way he would

attain above the cut-off marks and more marks than given to Mr.

Sanjeev Chopra, who has been promoted as Lt. Gen.

16) Challenging  the  aforesaid  approach  of  the  AFT,  Mr.

Maninder Singh, learned Additional  Solicitor  General  appearing

for the appellant submitted that AFT has committed a grave error

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in undermining the discretion that is given to the Members of the

Board for  award of  board marks.   It  is  pointed out  that  these

marks are not to be given on the basis of ACRs.  On the contrary,

it is on the basis of overall profile of the concerned officer which

included exceptional achievements, appointments held, medical

category, disciplinary background, field area-difficult area posting

etc.   In  this  very  hue,  it  is  also  contended  that  it  was  not

permissible for the AFT to determine as to how many marks are

to  be  given  to  the  respondent  and  by  doing  so  the  AFT has

usurped the function of  the Members of  the Board.   It  is  also

submitted  that  Members  of  the  Board  are  Chiefs  of  Air  force,

Army and Navy.  It  can reasonably be inferred that they would

have  gone  through  overall  profile  of  the  respondent  and  still

decided to maintain the same marks in the Review SPB which

were given to the respondent in the original SPB held in January,

2016.   On this basis, the learned ASG also took strong exception

to the remarks of the AFT that the three Service Chiefs are hardly

expected to examine the records in minute details.

17) There is no dispute insofar as legal propositions advanced

by the learned ASG are concerned.  Undoubtedly, the Members

of the Board are empowered to award marks out of the two marks

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which are reserved for them.  For this purpose, it is not the ACR

alone but the entire profile of an officer which is to be looked into.

Insofar  as,  marks  for  ACR are  concerned  these  have  already

been  awarded  under  the  head  ‘average  marks  of  ACR

extrapolated out of 90’.  It  shows that significant importance is

attached to the ACRs inasmuch as 90 marks out of 95 marks are

to be assigned on the basis of  ACRs.  Therefore,  it  cannot  be

disputed that while awarding marks out of the two marks reserved

for  the  Members  of  the  Board,  they  can  examine  the  overall

profile of the officer and are not supposed to restrict it to the ACR

alone.  It also needs no elaboration that Board Members are the

three Chiefs of Services and it can very well be presumed that

they would assess an officer in an objective manner.  Indubitably,

higher  degree  of  trust  can  be  reposed  in  them  and  their

assessment  is  not  to  be  interdicted  unless  very  weighty  and

overwhelming material is produced warranting interference while

undertaking judicial review of such an exercise.

  18) We may mention here that the appellants had placed strong

reliance upon the earlier judgment of the AFT dated 16th January,

2015 rendered in OA No. 120 of 2014 entitled Major General S.K.

Chakravorty v. Union of India and Others.  In that case, the AFT

had held that  the allocation of  system of  marks,  i.e.,  award of

Civil Appeal No. 17535 of 2017 Page 11 of 17

marks by the Board Members out of two (02) marks allotted to the

Board, is based on value judgment.  In the impugned judgment,

the AFT distinguished the said judgment with the remarks that

that case was not in respect of the Armed Medical Corps wherein

the assessment is based on quantified check marks. This basis of

distinguishing  the  judgment  in  S.K.  Chakravorty is  clearly

erroneous.  We may note that the provision for assessment for

promotion to Lt.  General is same whether it  is Army  per se  or

Armed  Medical  Corps.   The  principle  enunciated  in  S.K.

Chakravorty is based on the judgments of this Court in Air Vice

Marshal S.L. Chabbra, VSM (Retd.)  v.  Union of India & Anr.1,

Major General I.P.S. Dewan v.  Union of India & Ors.2,  Dalpat

Abasaheb Solunke & Ors.  v.  Dr.  B.S.  Mahajan & Ors.3,  and

Surinder Shukla v. Union of India & Ors.4

19) Having said that, insofar as the present case is concerned,

we find it difficult to disagree with the ultimate conclusion arrived

at  by  the  AFT in  the  facts  of  this  case,  even  if  some of  the

observations  of  the  AFT may  not  be  correct.   Most  important

feature which is noted by the AFT and could not be disputed by

the appellant  is the manner in which exercise was undertaken

1  (1993) Supp (4) SCC 441 2  (1995) 3 SCC 383. 3  (1990) 1 SCC 305 4  (2008) 2 SCC 649

Civil Appeal No. 17535 of 2017 Page 12 of 17

while holding SPB meeting on 20th January, 2016.  Even when

the Board Members were entitled to give marks to the candidates

on the basis of overall profile that was not done.  On the contrary,

the marks given to those officers who were considered in that

SPB, were strictly on the basis of marks obtained by them out of

93 marks.   

20) That  becomes  clear  from  the  record  produced  by  the

learned ASG for our perusal at the time of hearing.  This is the

case in respect of all officers, without any exception.  The AFT is

right in observing that in the meeting held on 20 th January, 2016

Board Marks to all  officers who are considered commensurate

with  the quantified marks of  the candidates.   Thus,  the Board

Members adopted the criteria of looking into the quantified marks

as the yardstick for assessing overall profile.

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

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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

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SPB.

22) Other  aspect  which  is  highlighted  by  the  AFT  in  the

impugned judgment is equally significant, viz., Noting No. 3 of the

Board proceedings was factually incorrect.  As pointed out above,

as per  Noting No.3,  the respondent’s  CR merit  in  chance one

changed  from  16th position  to  15th position  among  18  officers

considered for only 6 vacancies.  This Noting gave the impression

that  even  after  the  redress,  the  chances  of  promotion  of  the

respondent hardly improved.  On the contrary, fact is that after the

redress, position of the respondent had jumped from 16 th to 7th.

Another significant aspect which was omitted was that with this

jump, his quantified check marks (i.e. out of 93) became more

than Major General Sanjeev Chopra, who was promoted after his

assessment in the original SPB even when he was junior to the

respondent.  But for this error, there was a possibility of different

outcome even on value judgment of the respondent by the Board

Members.

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

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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.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; NOVEMBER 10, 2017

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ITEM NO.1502            COURT NO.6             SECTION XVII

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Civil Appeal No. 17535/2017

UNION OF INDIA & ORS.                           Appellant(s)

VERSUS

MAJ. GEN. MANOMOY GANGULY, VSM                  Respondent(s)

Date : 10-11-2017  This appeal was called on for pronouncement of judgment

today.

For Appellant(s) Mr. Harish Vaidyanathan Shankar, Adv. Ms. Nisha Mohandas, Adv. Mr. Mukesh Kumar Maroria, AOR

                   For Respondent(s)

Mr. Sudarshan Rajan, AOR                      

Hon'ble Mr. Justice A. K. Sikri pronounced the

judgment  of  the  Bench  comprising  His  Lordship  and

Hon'ble Mr. Justice Ashok Bhushan.

The appeal is dismissed in terms of the signed

reportable judgment.

(NIDHI AHUJA)              (MALA KUMARI SHARMA) COURT MASTER  COURT MASTER

[Signed reportable judgment is placed on the file.]

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