1. Vide separate order, the Original Application is allowed with directions that entire copy of the judgment shall be delivered Dasti to the parties as well as a copy thereof be sent to Secretary, Ministry of Defence and also be placed before the Members of the Board. Directions which have been given are that the earlier Board proceedings are quashed, especially with regard to the allocation of Board marks and the marks which the Applicant would have got as 1.7 out of two, and in that back ground, fresh Board shall take place for the Applicant. Till the time the decision is taken by the Board, the post of Director General of Medical Services (Army) (DGMS) shall not be filled.

2. This is an OA under Section 14 of Armed Forces Tribunal Act 2007, wherein the applicant is aggrieved by his non empanelment for the rank of Lieutenant General (Lt. Gen) in his Review Special Promotion Board (SPB) in Army Medical Corps held on 21.03.2017 due to low figurative assessment in the Board marks awarded to him by the Board Members, comprising of the Chief of the Army Staff (COAS), Chief of Air Staff (CAS), Chief of Naval Staff (CNS) and Director General Armed Forces Medical Services (DGAFMS) being the Member Secretary.

3. The facts of the case in brief are that the applicant was commissioned in the Army Medical Corps on 03.03.1980. The applicant has stated that he had an outstanding record of service and rose to the rank of a Major General on 01.05.2014. However, he was not empanelled to the rank of Lt. Gen in his first Special Promotion Board held on 20.01.2016. He submitted a statutory complaint dated 30.06.2016 wherein he was given a partial redressal by expunging the entire assessment of the Technical Officer (TO) in his Annual Confidential Report of 2014 and was thus screened by a Review Special Promotion Board on 21.03.2017. The applicant was again non empanelled. He preferred a Statutory complaint dated 03.06.2017 which has not yet been decided by the respondents despite the order of this Tribunal dated 13.07.2017, 24.08.2017, 28.08.2017 and 01.09.2017. Since the respondents have failed to comply to abide by several orders by this Tribunal as stated above, and the fact that the applicant's final Special Promotion Board is scheduled on 04.09.2017, we are constrained to pass this order to ensure fair justice to the applicant and also to bring to notice the anomalies noticed by us in the conduct of previous Review Special Promotion Board held on 21.03.2017, so that necessary corrective measures could be taken.

4. It is the case of the applicant that:-

(a) He graduated from AFMC Pune in 1979, standing first in the college and winning three out of the four Gold Medals in the professional subjects. The applicant was a all-rounder, representing AFMC Pune in Sports, debating etc.

(b) The applicant was selected and posted to the prestigious Armed Forces Malignant Diseases Treatment Centre at Command Hospital Pune in November 1989, which was the only Oncology Centre for the AFMS at that time. The applicant was an instructor for the undergraduates and post graduate students at AFMC Pune.

(c) The applicant was selected and qualified for specialized training in Onco-surgery at the prestigious Tata Memorial Hospital, Mumbai in 1990-1991.

(d) The applicant was, and at present is, the only AFMS Surgeon to have been selected to qualify for an All India competition for a MCh. (Onco-surgery) seat in the Cancer Institute, Adyar, Chennai and holds the prestigious super-specialty professional qualification.

(e) Due to his outstanding qualifications, the applicant was hand-picked to establish a new Oncology Centre at the prestigious R&R Army Hospital, New Delhi in 1998, which he commissioned as a State-of-the art apex centre and a centre of excellence.

(f) The applicant is an established outstanding onco-surgeon with more than a thousand complex onco-surgeries to his credit. He is a professor of Surgeon for M.S. (General Surgery) courses of Delhi and GGSIP Universities, KGMU Lucknow and Rohtak University for over two decades. He is a Professor and an examiner for DND and MCh Onco-surgery for a number of cancer institutes. He was a member of the Select Board of Medical Council of India, besides being a member of the expert committee of ICMR. He has published several papers and is a well-recognised speaker and chairperson in National and International conferences. He has served in the Indian Association of Surgical Oncology in the capacity of Executive member, Vice President and the President.

(g) The applicant has rendered over 37 years of unblemished service and is reputed Onco-Surgeon. He has served the organization with utmost devotion, sincerity and professional competence. For his professional competence, administrative acumen and contribution to the service, the applicant was awarded 'Vishisht Seva Medal' in 2015, besides being awarded the Chief of Army Staff commendation in 2014 and GOC-in-C's Commendation in 2013. The applicant is due for superannuation in his present rank on 31.05.2018.

5. Learned Senior Counsel Ms. Jyoti Singh, for the applicant has argued that:-

(a) The promotion policy in respect of Armed Forces Medical Services (AFMS) is governed vide respondent's mother letter dated 14.01.2004. This policy was further amended vide respondents' letter dated 17.05.2006. Reading both the policy letters in conjunction brings out that five annual confidential reports including one in the present rank, would be considered by Special Promotion Board for promotion to the rank of Lt. Gen and equivalent.

(b) The detailed method of calculation of annual confidential report average is stipulated vide Para 10 of the ibid policy. Besides the annual confidential report average, the marks are also allotted for academic qualifications, which are stipulated vide Para 11 and 12 of the ibid policy. Amongst the two marks for academic qualification, one mark is allocated for possessing a Masters' Degree and one marks is for Super Specialty Degree like M Ch/DM. Para 13 amended the applicability of weightage of two marks for academic qualifications for each Special Promotion Board faced by an officer.

(c) Para 14 was amended to allocate one mark for military decorations/awards to an officer and two marks were for the Special Promotion Board for allocation based upon the overall profile of the officer, exceptional achievement, appointments held, medical category, disciplinary background and field area - difficult area postings.

(d) Para 15 of the ibid policy sums up the final overall marks by stipulating that the overall annual confidential report average of an officer will be extrapolated out of 90 (Para 10), marks of academic achievements will be out of two (Para 11 and 12) and marks for military awards and decorations will be out of one mark.

(e) Para 14A and marks awarded by Special Promotion Board Members will be out of two (Para 14B). Thus, the overall final extrapolation is done out of 95 (90+2+1+2). The 90 marks are based upon the annual confidential report average of an officer, two marks are for his academic qualifications and maximum of one mark is for his military awards and decorations. The remaining two marks are allocated by the Special Promotion Board members based upon the overall profile of an officer, including his exceptional achievements, appointments held, medical category, disciplinary background and field area - difficult area postings. As far as the weightage of two marks to be awarded by the Special Promotion Board is concerned, the methodology followed was that commensurate to the number of vacancies to be reckoned by the Special Promotion Board, a merit list was to be drawn and then the marks were to be allotted on pro-rata basis. Thus, it stands to reason that if the annual confidential report average of an officer is enhanced then the pro-rata weightage of marks allotted by Special Promotion Board members should also increase correspondingly.

(f) Learned Senior Counsel for the applicant has further argued that based upon the above mentioned outstanding profile of the applicant, which was indicative of his comparative better performance in relation to his colleagues and peers, he had a legitimate expectation of being empanelled for promotion to the rank of Lt. Gen and equivalent. The applicant was considered for promotion to the rank of Lt. Gen and equivalent by Special Promotion Board held on 20.10.2016. However, vide DGAFMS letter dated 01.03.2016 the applicant was informed that he was not empanelled for promotion. The applicant submitted his statutory complaint dated 30.06.2016 against his non empanelment challenging certain assessments in his relevant annual confidential reports. After a long delay of seven months the respondents granted partial redressal to the applicant vide their letter dated 30.01.2017, by way of expunging the entire assessment of the (Technical Officer) TO in the applicant's annual confidential report of 2014 on grounds of inconsistency, and directed that the applicant be considered for promotion by an appropriate Promotion Board. Consequent to the redressal granted to the applicant, his overall annual confidential report profile for consideration before the Special Promotion Board improved and consequently his merit logically came above that of the last officer empanelled in the Special Promotion Board held on 20.01.2016. Since the redressal was granted, as par the policy of the respondents, the applicant had to be put through a fresh/Review Special Promotion Board. The enhancement in annual confidential report profile of an officer should also have led to an increase in the weightage of two marks awarded by the Special Promotion Board members since these marks are also based upon the overall profile of an officer. It is pertinent to point out that the policy letter of 17.05.2006 itself clearly stipulates the broad parameters on which the two Board marks have to be awarded. The parameters are overall profile of the officer, exceptional achievements, appointments held, medical category, disciplinary background and field or difficult area service.

(g) It is pointed out that the increased annual confidential report average and higher merit after redressal was sufficient for the applicant's selection to the next rank of Lt. Gen, since it increased his Annual Confidential Report average and this should have also led to a corresponding increase in the marks (out of two) allocated by the Special Promotion Board members. Precedence of similar nature exists in as much as in the case of Air Vice Marshal Ajay Banerji (MR-03991K), marks (out of two) by Special Promotion Board members were enhanced based upon the increase of annual confidential report average consequent to grant of redressal to him. The applicant was considered afresh by a Review Special Promotion Board held on 21.03.2017. However, it came as a shock to the applicant that he was again not empanelled in the Review Special Promotion Board. The applicant has again submitted his statutory complaint dated 03.06.2017 against his non-empanelment which is still pending.

(h) It has been pointed out that the applicant had missed out on the timely action of grant of redressal to him, during which period his juniors were promoted ahead of him. Even after grant of redressal to the applicant, which had enhanced his annual Confidential Report Average and overall merit, he was not empanelled in the Review Special Promotion Board. The next vacancy in AFMS in the rank of Lt. Gen is occurring on 01.11.2017 due to retirement of the present DGAFMS. If promoted to Lt. Gen (with automatic restoration of his seniority), the applicant will be the senior most AMC officer in Army with more than one year's residual service and he will be due for filling up the post of DGMS (Army) on 01.11.2017, or as and when it falls vacant. The file processing for filling up the post of DGMS (Army) commences a few months prior to the occurring of said vacancy, which should reasonably be initiated sometime in the months of July/August 2017. This does not leave sufficient time for the applicant to wait for disposal of his statutory complaint dated 03.06.2017. As such, the applicant is challenging the arbitrary actions/inaction of the respondents in application of their own promotion policy, with respect to awarding of Board Marks to him in Review Special Promotion Board held on 21.03.2017.

6. In the light of above submissions, the applicant has prayed for following relief's:-

(a) Quash the Special Promotion Board for Army Medical Corps officers held on 21.03.2017 as being illegal and arbitrary in so far it has wrongly assessed the applicant and not awarded adequate marks against the two marks allocated towards the Board's weightage, ignoring the upward change in the profile of the applicant and consequent merit after redressal granted in his annual confidential reports after his first Special Promotion Board held on 20.01.2016.

(b) Direct the respondents to produce the records of Special Promotion Boards held on 201.01.2016 and 21.03.2017.

(c) Direct the respondents to convene a Fresh Review Special Promotion Board of the Special Promotion Board held on 20.10.2016 in respect of the applicant and to consider him for promotion at the earliest, based upon his comparative enhanced annual confidential report average. The respondents be further directed to allocate marks to the applicant (Board marks out of two) strictly in accordance with the parameters laid down in the policy dated 17.05.2006 taking into account his changed profile.

7. The respondents in their counter have submitted that:-

(a) The applicant has filed the present OA without having exhausted the statutory remedies available to him. The statutory complaint dated 03.06.2017 is under consideration of the competent authority. The contention of the applicant that his complaint has to be decided expeditiously in view of the fact that a vacancy in the rank of Lt. Gen is arising on 01.11.2017 is misconceived. The applicant is due for superannuation in the present rank only on 31.05.2018 and as per the current forecast apart from the vacancy arising on 01.11.2017, two more vacancies in the rank of Lt. Gen and equivalent are likely to arise on 01.01.2018 and 01.04.2018 that is a total of three vacancies in the rank of Lt. Gen and equivalent would arise prior to his date of superannuation. It was further stated that if at all the applicant is given redressal in his statutory complaint, Special Review Board can be convened and his case for promotion can be considered. In view of the above the present OA is liable to be dismissed on the ground of not having exhausted the statutory remedies available.

(b) It is pointed out that the promotion policy dated 14.01.2004 as amended by Government of India letter dated 17.05.2006, the selection criteria was based on the following parameters:-

Thus so far as the allocating of marks and its parameters are concerned there was no dispute.

(c) It is clear that while 93 marks (ACR Average 90, qualification marks - 02, honour and awards - 01) are quantified, the board members are at liberty to award marks out of two (2) based on their value judgment. It is submitted that the promotion board proceedings comprising of the Three Service Chiefs and DGAFMS is an expert body and cannot be regarded as a mechanical exercise. It is the duty of the promotion board to select the best among the available officers for promotion. The complete profile of the officers being considered is placed before the promotion board and the board marks are allotted by each member of the board. The average of the marks awarded by all the board members present is used to calculate the overall board marks.

(d) It has been stated that in the original board dated 20.01.2016, fifteen out of the eighteen officers considered had better annual confidential report average than the applicant and with the improved annual confidential average, fourteen out of the eighteen officers still had better annual confidential report average than the applicant. Hence there was only an insignificant improvement in the confidential report profile of the applicant in comparison with the other officers who were part of the board dated 20.10.2016. Having considered the overall profile of the applicant and after due deliberation the board unanimously awarded the applicant 1.50 as Board marks.

(e) It would be relevant to submit that in the Board dated 20.10.2016 the highest average board marks by the board members was 1.90 and the lowest average marks by the Board Members was 1.20 and the average board marks was 1.50. In view of the same, the award of 1.50 marks to the applicant duly justified by members of the Board cannot be labeled as arbitrary or motivated.

8. We have heard the learned counsel for the parties and seen the records. The main 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 seen 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 it is justified by the Board Members, which has not been done in the Board Proceedings.

9. The only reasoning which has been given is that firstly the redressal does not bring any change in this overall profile and secondly that out of 18 officers considered 15 or 16 officers had better annual confidential reports then the applicant. We have also seen the Board Proceedings of all previous and subsequent Boards, and we find that there is a consistency in awarding Board marks out of two in such a manner as to conform to the quantified marks of the candidates. Both the reasoning given in the Board proceedings are flawed. In case the redressal is given by the Ministry of Defence it is unthinkable that it will not change the profile. It is different thing that the vested interest do not see any change in profile because they have already made up their mind to present the facts in such a manner before the Board which consists of the Three Service Chiefs who are hardly expected to examine these minute details. The applicant seeing the logic deserves to get 1.7 marks out of two in Board marks, as Maj Gen Sanjeev Chopra, who is having lower quantified marks than the applicant has been given 1.7 out of two in Board marks in the batch in which the applicant was considered. With these Board Marks, the merit of the applicant comes just above Maj Gen Sanjeev Chopra who was empanelled and accordingly the applicant deserves to be empanelled in the Review Special Promotion Board held on 21.03.2017 and restored with original seniority in his batch. So far as the fifteen other officers who are stated to be having a better Annual Confidential Report than the applicant is also a misplaced argument. The reason for this is that Annual Confidential Report are of the officers are not expected to be seen or referred to except that average of last five are to be taken on quantified on the touch stone of 90 marks.

10. The Tribunal has also noted that the Review Special Promotion Board held on 21.03.2017 has projected wrong facts to the Board Members who are the three senior most officers of the Armed Forces i.e. the Chief of Army Staff, Chief of Air Staff and Chief of Naval Staff and the DGAFMS and are signatories to the Board Proceedings. The notings in this Board proceedings, signed by all Board Members, are reproduced below:-

"1 The marks awarded by the Board as board marks was arrived at after due deliberation.

2. The board members observed that the revised profile after grant of partial redress did not significantly alter the CR based merit position in both Promotion Boards against which the officer is being reviewed.

3. His CR merit in chance one changed from 16th position to 15th position among 18 officers considered for only six vacancies.

4. Similarly in chance two, his CR merit changed from 19th position to 16th position among 21 officers considered for only five vacancies.

5. Considering the above facts and after deliberating on the officer's spoken reputation and past promotional profile, the board unanimously awarded 1.50 as the board marks in chance 1 and 2.

6. This is as per Para 14(b) of the previous promotion policy applicable for chance one and Para 16 of the current promotion policy applicable for chance two.

11. We have checked and re-checked the records. A plain comparison of the applicant's revised profile after getting redressal will indicate that the applicant with 91.25 quantified marks jumps to seventh place, above Maj Gen Sanjeev Chopra having 91.15 quantified marks, and not 16th/15th as indicated in Note 3 above notes and also stated in the counter affidavit, which is totally false. If the two are compared in totality, the applicant is entitled to same Board Marks which were given to Maj Gen Sanjeev Chopra i.e. 1.7 out of two marks and would be higher in merit than Maj Gen Sanjeev Chopra. Thus, we are of the firm opinion that a serious misrepresentation of facts has been done by the Secretary of the Board in compiling the data and presenting wrongly to the Board Members thereby obtaining their signatures as well as stating the same in the counter affidavit. Since these proceedings are typed in advance, it is quite obvious in Board marks that lower figurative assessment to the applicant was a pre-planned vested interest in order to harm the chances of the applicant by somehow and deny him a fair consideration in a level playing field, in the said Review Special Promotion Board and presented as fait accompli to the Board Members, who are busy senior most Commanders of the Three Services of the Armed Forces. We strongly feel that such acts need to be investigated and guilty brought to book.

12. The learned counsel for the respondents has put lot of stress on the Judgment of S. Chakraborty passed by this Tribunal. We have gone through the same, suffice it would be here to mention that so far the said judgment is concerned it was not in respect of Army Medical Corps. The allocation of systems of marks is different. In the former case it is value judgment while as in the latter case it is quantified check marks.

13. We are also cognizant of the fact that the Tribunal cannot sit as a court of appeal on the proceedings of Board and the only thing it can do is direct fair consideration. Certainly within the jurisdiction to correct any arbitrariness. In allocation of quantified grading or marks what is done without any reasoning or logic just to bring an officer down and further interest of the other. Further we would have preferred to wait the outcome of the statutory representation but the impression which has been given in court is that it is moving at a snail pace only to make the rejection of the applicant as a fait accompli.

14. We have also perused the noting by various officials in the Ministry of Defence and find that the above anomaly has been correctly detected and pointed out in their noting from the lowest levels upwards upto the level of Additional Secretary in the Ministry of Defence. However, the noting of the Defence Secretary has overruled all these objections on the grounds that all three Chiefs and DGAFMS have approved the Board and the Ministry needs to go with their views. This stand of the then Defence Secretary in overruling his subordinates is not understood and has caused serious injustice to the applicant and subverted the system. Hon'ble Raksha Mantri has very rightly noticed this aspect and asked for clarifications and these are also seemed to be dealt with at a snail pace knowing full well that the board is to meet on 04.09.2017. We are sanguine that the justice will be given to the applicant and guilty will be dealt as per law.

15. Therefore, in the interest of justice, we quash the proceedings of the Review Special Promotion Board held on 21.03.2017 in respect of the applicant due to wrong Board marks allotted to him in this Board as a result of incorrect data presented to the Board Members by the Secretary of the Board. We also direct that the applicant be put through a fresh Review Special Promotion Board 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 pointed out above, and his seniority restored. In the meantime the respondents will refrain from filling up the post of DGMS (Army) falling vacant on 01.11.2017 and will only proceed after the case of the applicant is decided by the Board. We also hope and trust that the concerned officials guilty of misleading the Review Special Promotion Board Members on 21.03.2017 comprising of the three Services Chiefs and the DGAFMS will be looked into and the responsibility fixed so that the procedures streamlined and to eliminate arbitrariness in conduct of such promotion boards in future.

16. The OA is allowed with above orders. No order as to costs. A copy of the order be given dasti to the learned counsel for the parties and a copy shall also be sent to Secretary, Ministry of Defence and placed before the Members of the Board for their information.