The Supreme Court has dismissed a plea by Major General Pradeep Kumar Hazija seeking a writ of certiorari for quashing of an order passed by the Ministry of Defence which had approved the empanelment of Major General Rajiv Mohan Gupta, VSM for promotion to the rank of Lieutenant General and equivalent, in the Executive Cadre of the Army Medical Corps, without considering the petitioner for the post as per his entitlement.
The petitioner is due to superannuate from service on March 31, 2022. Therefore, he had also sought to keep a vacant post during the pendency of matter.
Senior Advocate P.S. Patwalia, who appeared for Major General Hazija, submitted before the bench of Justices S. Abdul Nazeer and Justice Vikram Nath that there were 70 people for five vacancies and he was the fifth person recommended for the said post.
The Bench asked Patwalia, “Can we issue writ directing the respondents that you should be given promotion?”
Justice Nazeer said, “How can we ask to give you the promotion?”
The Bench asked the counsel, “Should we dismiss or you are withdrawing?”
Patwalia replied, “I would like to withdraw my petition so that I can pursue remedy in accordance with law.” The bench noted the petition was dismissed as withdrawn.
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The petitioner approached the Apex Court seeking quashing of the order passed by the Secretariat of the Appointments Committee of the Respondents conveying the approval of ACC for the Empanelment of one Major General Rajiv Mohan Gupta, VSM for the promotion to the Rank of Lt. Gen and Equivalent, in the Executive Cadre of the Army Medical Corps, in the Armed Forces Medical Services without considering petitioner for the said coveted rank and post as per his entitlement despite the pendency of civil appeal filed by the petitioner.
The petitioner also urged the Apex Court to direct the Chief of Army Staff, Director General, Armed Forces Medical Services, to keep his retirement in abeyance or reserve one post of Lt Gen falling vacant on 1.4.2021 till outcome of civil appeal pending before the Apex Court, considering his impending superannuation on 31.03.2022.
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The petitioner was commissioned as a medical officer in the Army Medical Corps on 20.12.1984 and reckons security from 06.12.1985. He acquired professional status as a Super-Specialists in Cardiology. The Government of India, Ministry of Defence promulgated a revised promotion policy dated laid down detailed procedure for selection and promotion of AFMS officers of Army, Navy and Air Force.
During 1985-2020, the petitioner performed his duties with sincerity and in his first attempt, he got promoted to rank of Lt Colonel in 1999, Colonel in 2008, Brig in 2016, stated Advocate Pulkit Aggarwal in his writ petition.
The respondents published a letter declaring that Special Promotion Board (SPB) will be held for considering 17 officers of rank of Major General/equivalent of AFMS, promotion to the rank of Lt General/equivalent against 5 vacancies of Lt Generals arising in the calendar year of 2021.
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As per the petition, Govt of India, Ministry of Defence promulgated revised promotion policy on 5.02.2016 which lays down procedure for selection and promotion of AFMS officers of the Army, Navy and Air Force.
Para 4 of such policy provides number of vacancies against which the Promotion Board is to be held, will be approved by the Ministry of Defence at the time of the convening of the Promotion Board and that no separate Promotion Boards will be held if any additional vacancy is released in a year, the writ petition states.
Para 5(b) of the aforementioned policy prescribes that ‘zone of consideration’ for Special Promotion Board i.e., for promotion of Maj General/equivalent to Lt General/equivalent, will be worked out by taking candidates equal to three times the number of vacancies in addition to the officers graded ‘NS’ (i.e., Not Selected) 9 in the previous ‘Promotion Board.
The contentions of the petitioner was he was the junior most officer falling in the zone of consideration for SPB 2021,as no other major general/equivalent junior to the petitioner was eligible to be placed in zone of consideration on SPB 2021 as they did not have mandatory one year confidential report in rank of Major General.
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The respondents filed their counter-affidavit and submitted that the first four officers out of the five recommended by Special Promotion Board to be empanelled as Lt General have already been approved and in order to decide the fifth officer, the Promotion Board may be asked to comment on the observation of Department of Defence, regarding award of value judgment marks.
One of the grounds raised in the writ petition was that action of respondents i.e. Chief of Army Staff, Director General Armed Forces Medical Services was wrongful, arbitrary in relation to holding a fresh SPB 2022 on 14.03.2022, despite knowing the fact that first vacancy arose on 1.04.2022 during pendency of civil appeal.