Union Of India & Ors. vs Brig Rohit Mehta Vsm

Court
Delhi High Court

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 27 October, 2026
# CNR No. DLHC010347712026
+ W.P.(C) 10802/2026
UNION OF INDIA & ORS. .....Petitioners
Through: Mr. Farman Ali, CGSC with Ms.
Usha Jamnal, Advocate along with Maj. Rahul
Kumar and Maj. Himanshu Tyagi.

versus

BRIG ROHIT MEHTA VSM .....Respondent
Through: Mr. Nalin Kohli, Senior Advocate
with Mr. Indra Sen, Ms. Nimisha Menon, Mr.
Aditya Rathee and Ms. Ruchira Joshi, Advocates.

CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
HON'BLE MR. JUSTICE GURVINDER PAL SINGH

JUDGEMENT
JYOTI SINGH, J.
CAVEAT 360/2026
1. Since the Respondent/caveator has already entered appearance, the
caveat stands discharged.
CM APPL. 50100/2026 ( Exemption )
2. Allowed, subject to all just exceptions.
3. Application stands disposed of.
CM APPL. 50101/2026 ( Exemptions )
4. This application is filed on behalf of the Petitioners under Section 151
CPC seeking permission to file lengthy list of dates.
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
18:14:07
W.P.(C) 10802/2026 Page 1 of 34


5. For the reasons stated in the application, the same is allowed. List of
dates is taken on record.
6. Application stands disposed of.
W.P.(C) 10802/2026 and CM APPL. 50099/2026 ( for stay )
7. This writ petition is filed on behalf of the Petitioners under Article
226 of the Constitution of India laying a challenge to the impugned
judgment dated 02.04.2026 passed by learned Armed Forces Tribunal
(‘Tribunal’) in O.A. No.2557/2025 filed by the Respondent as also order
dated 15.05.2026 in R.A. No.31/2026, filed by the Petitioners.
8. Case of the Petitioners, as pleaded is that Respondent was
commissioned in Indian Army on 13.06.1992 as General Cadre Officer and
was promoted to the rank of Colonel in September, 2009 and on being
promoted to the rank of Brigadier in March, 2018, commanded 62
Armoured Brigade from 31.03.2018 to 05.07.2020 and earned 5
Confidential Reports (‘CRs’) during this period.
9. It is averred that Respondent preferred Statutory Complaint dated
05.02.2022, aggrieved by his CRs for the periods 07/2019-02/2020 and
02/2020-06/2020, which was rejected vide order dated 22.06.2022 by the
Central Government. Respondent filed O.A. No.288/2022 before the
Tribunal, Jaipur Bench, which was subsequently transferred to Principal
Bench, Delhi and renumbered as O.A. No.06/2023, wherein Respondent
challenged both the CRs. During the pendency of the O.A., Respondent was
considered for promotion to the rank of Major General by No. 1 Selection
Board (‘SB’) in April, 2023 along with his 1992 Batch, but was not
empanelled. By order dated 08.08.2023, Tribunal granted partial relief by
expunging CR for the period 07/2019-02/2020.
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
18:14:07
W.P.(C) 10802/2026 Page 2 of 34


10. It is stated that Respondent challenged Tribunal’s judgment dated
08.08.2023 to the extent it did not interfere with the second CR, but the writ
petition being W.P. (C) No.15167/2023 was dismissed on 13.03.2024 and
SLP(C) No.9350/2024 filed by the Respondent was dismissed vide order
dated 29.04.2024. Judgment of the Tribunal dated 08.08.2023 was
implemented by the Petitioners by expunging CR for the period 07/2019-
02/2020 and basis the redressal, Respondent was considered by No.1 SB in
April, 2024 as a Special Review (Fresh) case with 1993 Batch but was not
empanelled. Respondent filed Statutory Complaint dated 14.11.2024 against
non-empanelment to the rank of Major General and CR 02/2020-06/2020.
The complaint was examined in light of Respondent’s overall reckonable
profile, comments of Reporting Officers and other relevant documents and
the Competent Authority was of the view that assessments by all Reporting
Officers in all CRs in the reckonable profile i.e. in the ranks of Colonel and
Brigadier considered by No.1 SB, including impugned CR 02/2020-06/2020
were consistent, well corroborated, technically valid and in tune with the
overall profile of the Respondent and only the entire assessment of SRO in
CR 12/2009-07/2010 and assessment of SRO in Para 24(a) to (e)–‘QsAP’ in
CR 09/2017-03/2018, which were not part of the Statutory Complaint,
merited interference and accordingly, these were expunged.
11. It is averred that pursuant to redressal granted to the Respondent and
on account of change in his profile, Respondent was considered by No.1 SB
in April, 2025 as Special Review (Fresh) case in terms of Comprehensive
Promotion Policy, 2023 (‘CPP-2023’), promulgated vide MS Branch Policy
Letter dated 06.12.2023, along with 1994 Batch, being the next physically
available fresh batch, however, Respondent was again not empanelled.
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
18:14:07
W.P.(C) 10802/2026 Page 3 of 34


Being aggrieved, Respondent filed O.A. 2557/2025 challenging his non-
empanelment and CR for the period 02/2020-06/2020 with consequential
reliefs. By impugned judgment dated 02.04.2026, Tribunal allowed the OA
partially and directed the Petitioners to consider the Respondent for
promotion to the rank of Major General along with his batch i.e. 1992 Batch,
owing to the redressal granted in the Statutory Complaint, within a period of
three months from the date of judgment but did not interfere with the CR
02/2020-06/2020 on the ground that this issue stood adjudicated upto the
Apex Court and had attained finality. Petitioners preferred Review
Application No.31/2026, which was dismissed vide impugned order dated
15.05.2026.
CONTENTIONS ON BEHALF OF THE PETITIONERS:
12. Respondent was considered as a Fresh case by No.1 SB convened in
April, 2023 along with his original 1992 Batch in the General Cadre, in
accordance with MS Branch Promotion Policy dated 23.12.2017 (‘2017
Policy’). Consideration of officers for promotion to the select rank of Major
General is by No.1 SB and Para 10 of 2017 Policy ordains batchwise
consideration and stipulates that the Selection Board shall be convened only
when fresh batch is physically available for consideration as also the
vacancies accruing to the said batch. In implementation of judgment dated
08.08.2023, Respondent was considered as Special Review (Fresh) case by
No.1 SB in April, 2024 in accordance with CPP-2023 dated 06.12.2023,
which superseded the 2017 Policy, but was not empanelled on merit.
Paras 21 and 22 of 2017 Policy and Para 14 of CPP-2023 are para materia.
Para 21 stipulates that all Deferred and Withdrawn cases shall be considered
only with the next physically available fresh batch of their respective
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
18:14:07
W.P.(C) 10802/2026 Page 4 of 34


Arm/Service, applying the same cut-off CRs as applicable to such fresh
batch and compared with the fresh batch and if found within merit, shall be
empanelled against vacancies accruing to that batch and upon empanelment
they will be given seniority of their original batch. This principle applies to
Special Review cases also, as specifically provided under Para 22 of the
Policy. Para 14 of CPP-2023 echoes this principle and envisages additional
CR input and hence, there is no provision in either of the two policies which
permits consideration of Special Review cases with original batches and the
direction of the Tribunal to consider the Respondent with his original 1992
Batch is in the teeth of the promotion policies.
13. On filing Statutory Complaint dated 14.11.2024 against non-
empanelment as also CR 02/2020-06/2020, partial redressal was granted to
the extent of expunging entire assessment of SRO in CR 12/2009-07/2010
and assessment of SRO in Para 24(a) to (e)–‘QsAP’ in CR 09/2017-03/2018.
The impugned CR was found to be consistent and well corroborated with
Respondent’s profile. Owing to the redressal and consequent change in
profile, Respondent was considered by No.1 SB held in April, 2025 as
Special Review (Fresh) case with the next physically available 1994 Batch,
in consonance with CPP-2023 but was not empanelled on comparative
merit, for which Petitioners cannot be blamed.
14. Respondent did not challenge the promotion policies providing for
consideration of Special Review cases with the next physically available
batches against vacancies accruing to those batches at any stage prior to his
consideration by No.1 SB in April, 2024 and April, 2025 and only after he
was not empanelled, he questioned his non-consideration with his original
1992 Batch, but without challenging the policies even then. It is trite that
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
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W.P.(C) 10802/2026 Page 5 of 34


having participated in a selection process, it is not open to a candidate to
challenge the applicable rules/policies, else no selection process will attain
finality. Judgments of the Supreme Court in Union of India and Others v.
Air Commodore NK Sharma, 2023 SCC OnLine SC 1673 and Air
Commodore Naveen Jain v. Union of India and Others, (2019) 10 SCC 34 ,
affirm this legal position. In Deepak Agarwal and Another v. State of Uttar
Pradesh and Others, (2011) 6 SCC 725, the Supreme Court held that a
candidate only has a right to be considered for promotion in light of the
existing rules/policies and cannot claim that he must be promoted dehors the
rules/policies. Respondent was accorded due consideration in consonance
with the applicable promotion policy CPP-2023, but was not recommended
for promotion based on comparative batch-merit.
15. It is equally settled that exercising power of judicial review, Courts
cannot interfere in the recommendations of duly constituted Selection
Boards and substitute their own views, unless there is arbitrariness, mala
fides or violation of policies, warranting interference, which is not the case
here. [Ref. : Air Vice Marshal S.L. Chhabra v. Union of India and
Another, 1993 Supp (4) SCC 441 ]. In any event, Respondent has not
suffered any prejudice as he was considered as Special Review (Fresh) case
post-grant of redressal with the next fresh batch with an additional CR input
as applicable for the said batch.
16. Learned Tribunal’s observation that grant of partial redressal vide
order dated 20.03.2025 establishes that Petitioners themselves found that
Respondent’s earlier profile was tainted by inconsistent and subjective
assessments and accordingly, expunged entire SRO’s assessment in CR
12/2009-07/2010 and SRO’s QsAP assessment in CR 09/2017-03/2018 and
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
18:14:07
W.P.(C) 10802/2026 Page 6 of 34


thus due to material alteration in Respondent’s profile, he must first be
tested in the same legal and factual frame in which his earlier empanelment
arose, namely, in comparison with his original 1992 batch and not with the
later batch, overlooks that there is no policy which permits such
consideration and secondly, Respondent had only challenged his CRs for the
periods 07/2019-02/2020 and 02/2020-06/2020 in Statutory Complaint dated
05.02.2022 and there was no reason or occasion to consider the earlier CRs
at that stage, prior to his consideration by No.1 SB in April, 2023. It was
only when the Respondent filed Statutory Complaint dated 14.11.2024
against non-empanelment by No.1 SB held in April, 2024 and requested for
review of his entire profile, that the earlier CRs were examined for
inconsistency/subjectivity in terms of Part VII of Army Order 05/2024/MS
dealing with representations against CRs and non-empanelment. Once the
inconsistencies came to light, redressal was fairly granted to the Respondent.
17. Tribunal has gravely erred in placing reliance on the decisions
rendered in Maj Gen V.K. Singh, VSM v. Union of India and Others, 2018
SCC OnLine AFT 8980, and of this Court in Maj Gen Vinayak Saini v.
Union of India and Others, 2024 SCC OnLine Del 5562 , to hold that
Respondent is entitled to be considered with his original 1992 Batch,
inasmuch as both these judgments deal with material change in the policy by
the time the officers came up for consideration as Special Review cases,
which is not the case here. Maj Gen V.K. Singh was originally considered as
a fresh case in October, 2017, as per policy then in vogue. Upon grant of
redressal in the Statutory Complaint, he was considered as a Special Review
(Fresh) case in December, 2018 by which time 2017 Policy was
promulgated and he was considered under this policy. Relief was granted to
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
18:14:07
W.P.(C) 10802/2026 Page 7 of 34


the officer on the ground that the intervening policy altered the parameters
of comparison and transition to a materially different policy regime
retrospectively, adversely effected Applicant’s right of consideration under
the policy applied at the time of consideration of his original batch.
18. Similarly, case of Maj Gen Vinayak Saini is also distinguishable from
the instant case. In the said case, the officer filed Statutory Complaint dated
27.02.2023 against CR for the period 07/2021-05/2022 and while complaint
was pending, he was considered by SSB in February, 2023, with his own
1987 Batch under 2017 Policy but was not empanelled. Complaint was
disposed of on 09.10.2023 expunging IO’s Box Grading and consequently,
the officer was considered as a Special Review (Fresh) case in respect of
NGSC stream along with 1989 Fresh batch, with an additional CR input but
was not recommended. For promotion to the rank of Lt. General in the
Corps of Engineers, the officer was declared ineligible for consideration in
the SSB scheduled in the year 2025 with fresh 1988 Batch, owing to the fact
that he was superannuating on 31.10.2024 i.e. prior to occurrence of next
vacancy on 01.09.2025, in terms of Para 17 of CPP-2023, despite redressal.
In this backdrop, Court interfered and directed the Respondents therein to
reconsider Maj Gen Vinayak Saini’s case against vacancies in the Corps of
Engineers, applying the parameters of SSB held on 09.02.2023 for his
original batch and taking into account vacancies that existed on the said
date. The factors that weighed with the Court were that the officer could not
be denied relief despite redressal only because no vacancy was arising prior
to his superannuation as also that there was an interim order granted by the
Tribunal at the initial stage that his promotion will be subject to the outcome
of the Original Application he had filed. The Tribunal in the instant case has
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
18:14:07
W.P.(C) 10802/2026 Page 8 of 34


overlooked these distinctions and passed a direction for consideration of
the Respondent with his original 1992 Batch, which directly contravenes
CPP-2023.
CONTENTIONS ON BEHALF OF THE RESPONDENT:
19. Respondent is an officer of General Cadre (Armoured Corps) 1992
Batch. In April, 2023, he was considered by No.1 SB along with his original
1992 Batch but was not empanelled due to two CRs 07/2019-02/2020 and
02/2020-06/2020, which he assailed in O.A. 06/2023 and vide judgment
dated 08.08.2023, CR 07/2019-02/2020 was expunged in entirety but the
second was not interfered with. The judgment has attained finality and
therefore, Respondent at this stage is not questioning the CR for the period
02/2020-06/2020, however, the direction of the Tribunal to frame a policy
on treatment of deflated reports has not been framed till date and this
grievance survives.
20. Consequent to expunction of CR 07/2019-02/2020, Respondent was
considered by No.1 SB in April, 2024, as Special Review (Fresh) case under
CPP-2023 but wrongly compared with the subsequent 1993 Batch and not
empanelled. Respondent was granted redressal in the Statutory Complaint
against non-empanelment by expunging entire assessment of SRO in CR
12/2009-07/2010 and SRO’s ‘QsAP’ assessment in CR 09/2017-03/2018,
both of which were part of reckonable profile when Respondent was first
considered in April, 2023. Petitioners ought to have taken corrective steps
before the first consideration itself instead of considering the Respondent
with a tainted profile. After redressal, Respondent was again considered as
Special Review (Fresh) case in April, 2025 but was erroneously compared
with 1994 Batch and declared ‘not empanelled’. In this backdrop, no legal
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
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W.P.(C) 10802/2026 Page 9 of 34


infirmity can be found in the observation of the Tribunal that due to material
change in Respondent’s profile, he must be first tested in the same legal and
factual frame in which he was not empanelled i.e. comparison with his
original batch and/or consequent direction to consider him with his 1992
batch. In fact, the Tribunal has only redressed the wrong done to the
Respondent at each succussive stage of consideration for promotion.

21. Indian Army has followed quantification system of selection from
2009 albeit with some changes every 5 years and in this system each officer
of a particular batch is adjudged on scale of 100 marks, of which 95 are
allotted on the basis of quantifiable parameters such as numerical gradings
in CRs, gradings in military courses, honours and awards etc. and balance 5
marks are allotted by the Selection Board on the basis of ‘non-quantifiable
parameters’ such as posting profile, weak/adverse remarks in the dossier etc.
The benchmark of a particular batch depends on number of vacancies and
merit of the officers under consideration etc. and varies from batch to batch.
Therefore, if owing to the redressal granted to an officer in his CR(s), he is
assessed as a Special Review (Fresh) case with the next junior batch with
different benchmark/parameters, the purpose of granting redressal is
defeated. Grant of redressal means and implies that status quo ante has been
restored and rules of the game have to be the same as applied at the time of
original consideration. The Supreme Court in Union of India and Others v.
Major General Manomoy Ganguly, (2018) 1 SCC 552 , has held that a
Review Selection Board is nothing but an extension of original Board
and therefore, the officer must be considered on same parameters as
applied to the original batch in the original Board with the same comparative
field.
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
18:14:07
W.P.(C) 10802/2026 Page 10 of 34


22. Following the binding dictum in Major General Manomoy Ganguly
(supra) , Division Bench of this Court in Maj Gen Vinayak Saini (Supra),
held that denying an officer a review consideration with reference to the
very Board in which he was wronged, merely because a later vacancy or a
later batch has intervened, would defeat the very purpose of the redress
granted to him and therefore, the officer must be compared applying
parameters applicable to his peers/original batch. The judgment was upheld
by the Supreme Court on 24.09.2024 in SLP(C) No.20898/2024 and
subsequently implemented and in the status report filed by the Army in the
contempt petition filed by Maj Gen Vinayak Saini, it was categorically
stated that Petitioner was considered as a Special Review (Fresh) case with
his amended profile in the SSB held on 10.10.2024 and compared with the
benchmark of SSB held in February, 2023 albeit he was not empanelled. A
Special Review (Fresh) case by its very definition is not review with a later
batch but restoration of an officer’s position after redressal and comparative
field cannot change to his detriment.
23. Tribunal has simply applied the ratio of these judgments and
reiterated that once an officer is granted redress which materially corrects
and alters his profile, he acquires a right to be considered afresh on the same
parameters as were applied at the time of original consideration and this
reasoning is firmly rooted in the ethos that corrective action must be ‘real
and effective’ and not illusionary. Hence, the impugned judgement deserves
to be upheld and present petition dismissed with a direction to the
Petitioners to implement the judgement at the earliest and consider the
Respondent for promotion to the rank of Major General by No.1 SB along
with his original 1992 Batch applying the same parameters/benchmark, so
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
18:14:07
W.P.(C) 10802/2026 Page 11 of 34


that Respondent is able to enjoy the fruits of the redressal granted by the
Central Government and the Tribunal on two occasions.
24. Heard learned counsel for the Petitioners and learned Senior Counsel
for the Respondent.
25. Indisputably, Respondent is a 1992 Batch General Cadre officer and
was promoted to the rank of Brigadier in March, 2018 and commanded 62
Armoured Brigade from 31.03.2018 to 05.07.2020. Being unsuccessful in
challenge to his CRs for the periods 07/2019-02/2020 and 02/2020-06/2020
in Statutory Complaint dated 22.06.2022, Respondent filed O.A. 288/2022
before the Tribunal, which was allowed vide judgment dated 08.08.2023 and
partial relief was granted to the Respondent by expunging his CR for the
period 07/2019-02/2020. Aggrieved by partial redressal, Respondent filed
W.P. (C) 15167/2023, which was dismissed by this Court, agreeing with the
Tribunal that the impugned CR 02/2020-06/2020 was in sync with his
overall profile and SLP(C) No.9350/2024 was also dismissed. In the
meantime, Respondent was considered by No.1 SB for promotion as Major
General in April, 2023 with his original 1992 Batch under the 2017 Policy,
but was not empanelled.
26. Petitioners implemented the judgment of the Tribunal and expunged
the CR for the period 07/2019-02/2020. Owing to the redressal granted,
Respondent was considered by No.1 SB in April, 2024, as Special Review
(Fresh) case under CPP-2023 along with 1993 Batch, which was the next
physically available fresh batch, but was not empanelled. Respondent
submitted Statutory Complaint dated 14.11.2024 against his non-
empanelment as also against CR 02/2020-06/2020 and upon examination of
Respondent’s overall reckonable profile alongside the comments of the
Signature Not Verified
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By:KAMAL KUMAR
Signing Date:28.10.2026
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W.P.(C) 10802/2026 Page 12 of 34


Reporting Officers and other documents, Competent Authority in the
Central Government was of the view that assessments by all Reporting
Officers in all CRs in the ranks of Colonel and Brigadier (reckonable
profile) considered by No.1 SB including impugned CR 02/2020-06/2020
were consistent, well corroborated and technically valid, save and except,
entire assessment of SRO in CR 12/2009-07/2010 and assessment of SRO in
Para 24(a) to (e)–‘QsAP’ in CR 09/2017-03/2018, which were accordingly
expunged vide order dated 20.03.2025 and consequent to the redressal
granted and resultant change in profile of the Respondent, he was considered
by No.1 SB in April, 2025, as a Special Review (Fresh) case in terms of
CPP-2023 promulgated on 06.12.2023 but with 1995 Batch and was not
empanelled again and this triggered the filing of O.A. 2557/2025, which was
decided by impugned judgment dated 02.04.2026 and Petitioners were
directed to consider the Respondent for promotion to the rank of Major
General by No.1 SB along with his original batch and complete the process
within three months from the date of the judgement. Petitioners filed Review
Application being RA 31/2026, re-agitating the entire issue on merits, which
was dismissed vide order dated 15.05.2026. Aggrieved by the judgment as
also the order in the review application, Petitioners have filed this writ
petition.
27. For the sake of completeness, we may note that the reliefs sought by
the Respondent before the Tribunal were: (a) to set aside the
proceedings/results of No.1 SBs held in April, 2024 and April, 2025 qua the
Respondent, wherein his upgraded quantified-merit was ignored and the
benchmark/parameters applied by No.1 SB held in April, 2023 while
considering the 1992 batch, were not applied; and (b) to re-consider his case
Signature Not Verified
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By:KAMAL KUMAR
Signing Date:28.10.2026
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W.P.(C) 10802/2026 Page 13 of 34


for promotion without taking cognizance of his deflated CR for the period
02/2020-06/2020, since no policy was framed in respect of deflated CRs,
despite direction of the Tribunal in the first round of litigation. Tribunal
declined to interfere with CR 02/2020-06/2020 so far as the challenge was
laid on ground of bias of the SRO, on the ground that validity of the CR had
been adjudicated and tested in the first round of litigation up to the highest
judicial forum and the doctrine of finality of litigation, founded on
consideration of judicial discipline and certainty in law, precluded the
Tribunal from reopening the issue albeit to the extent of deflation of CR and
the dispute pertaining to which promotion policy will apply, there was no
res judicata as these were fresh causes of action. Neither party questions the
CR 02/2020-06/2020 before us and parties are ad idem that the only
question falling for consideration before this Court is whether the Tribunal is
right in directing the Petitioners to consider the Respondent for promotion to
the rank of Major General with his original 1992 Batch applying the
benchmark/parameters applied in No.1 SB held in April, 2023 and thus the
controversy is in a narrow compass.
28. Parties are not at variance that an officer in the rank of Brigadier is
considered for promotion to the rank of Major General by No.1 SB. The first
consideration of an officer to a select rank is termed as ‘Fresh’ consideration
and is with the eligible officers of his own batch of the Arm/Service to
which he belongs and if empanelled, he reckons seniority of his batch.
Second consideration is granted to an officer, who is not empanelled in
Fresh consideration and is called Fresh Review consideration, where the
officer is considered along with the next physically available fresh batch and
if empanelled, he gets seniority of the next batch, which means that the
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
18:14:07
W.P.(C) 10802/2026 Page 14 of 34


seniority is depressed. Third and final consideration called Final Review
consideration is granted to an officer who is not empanelled in either the
Fresh or First Review consideration and the officer is then considered along
with the next physically available fresh batch and if empanelled, the
seniority is reckoned with the junior batch with whom he is considered.
After three considerations, if the officer is not empanelled, he is deemed to
be finally superseded. However, as an exception when post-consideration for
promotion, an officer’s overall profile undergoes a material change, owing
to redressal granted by expunging or modifying his CR(s), which may be
through the mechanism of non-statutory/statutory complaint or judicial
order, the officer is considered as a Special Review (Fresh) case and if
empanelled, seniority is restored accordingly.
29. Coming back to the narrative of the instant case, Respondent was
granted redressal on two occasions. First, when the Tribunal expunged his
CR for the period 07/2019-02/2020 vide judgement dated 08.08.2023 and
second, when the Central Government granted redressal vide order dated
20.03.2025 and expunged the entire assessment of SRO in CR 12/2009-
07/2010 and assessment of SRO in Para 24(a) to (e)–‘QsAP’ in CR 09/2017-
03/2018. Due to change in Respondent’s profile under reckoning,
Respondent was considered as Special Review (Fresh) case in April, 2024
by No.1 SB after first redressal and again in April, 2025 after the second
redressal, but he was accorded consideration with next physically available
1993 and 1994 Batches, respectively and not with Respondent’s original
1992 Batch and it is here that the rival parties join issue.
30. Broadly understood, contention of the Petitioners is that Respondent
was rightly considered in April, 2024 and April, 2025 as per CPP-2023,
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:28.10.2026
18:14:07
W.P.(C) 10802/2026 Page 15 of 34


Para 14 whereof provides that Special Review/Deferred/Withdrawn cases
will be considered with the next physically available fresh batch of their
own Arm/Service with the same cut-off CR as that of the fresh batch under
consideration and will be compared with the fresh batch with which they are
being considered and will be empanelled, if in merit, against the vacancies
accruing for that fresh batch and if empanelled for promotion, they will
reckon seniority of their original batch and that the said policy is applicable
to all Selection Boards scheduled on or after 01.01.2024. As per the
Petitioners even if the Respondent was considered under 2017 Policy, as per
which his original batch was considered, the result would not have been
otherwise, since Paras 21 and 22 of 2017 Policy are para materia with
Para 14 of CPP-2023 and do not envisage consideration of a Special Review
case with original batch or against vacancies accruing to the said batch.
After promulgation of these policies, Respondent cannot claim consideration
with his original 1992 Batch as that will run counter to the promotion
policies.
31. Respondent, on the other hand, strongly refutes this position and
contends that as a Special Review (Fresh) case, he is entitled to be
considered with his original 1992 Batch and on the yardstick applied in No.1
SB held in April, 2023, when his original batch came up for consideration
for promotion to the rank of Major General for the first time, else the whole
purpose of granting him redressal will be defeated as also that the direction
of the Tribunal to consider the Respondent with his original batch is not
unprecedented and to buttress the latter plea, reliance was placed on the
judgments in Major General Manomoy Ganguly (supra), Maj Gen
Vinayak Saini (supra) and Maj Gen V.K. Singh (supra).
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32. Having given our thoughtful consideration to the rival submissions of
the parties, we are of the view that there is merit in the submissions of the
Respondent and consequently, no infirmity in the impugned judgment of the
Tribunal for the reasons, we shall advert to hereinafter. Before proceeding
further, it is imperative to look at the relevant Paras of the two policies,
which are the bone of contention between the parties and thus we extract
them hereunder for ease of reference:-
Promotion Policy dated 23.12.2017
“Deferred/ Withdrawn/ Special Review Case
21. Deferred/Withdrawn Cases. All Deferred/Withdrawn cases will
only be considered with the next physically available Fresh Batch of their
own Arm/Service with the same cut-off CR as that for the Fresh Batch. In
such cases, the officers will be compared with the Fresh Batch with which
they are being considered and will be empanelled if in merit, against the
vacancies accruing for that Fresh Batch. If empanelled for promotion,
they will reckon the seniority of their original Batch.
22. Special Review Cases.
(a) All Special Review cases will be considered in a manner similar
to Deferred/Withdrawn cases as given at Para 21 above.
(b) Special Review will be granted to the officer against Non
empanelment in the impugned Selection Board only and not for
previous ranks/boards, notwithstanding the point of time at which
th redress has been granted in the officers’ profile.
(c) If an officer already approved for promotion as First Review or
Final Review is granted Special Review, then he will be eligible for
consideration for Restoration of Seniority (ROS). If approved, his
Batch Year of Seniority (BYOS) will be adjusted accordingly.
23. Promotion of Deferred/Withdrawn/Special Review Cases.
Deferred/Withdrawn/Special Review cases, if empanelled, will be
promoted as per their seniority vis-a-viz the existing panel against the
vacancies of the Selection Board in which they are being considered.”

CPP-2023
“14. Special Review/ Deferred/ Withdrawn Cases. Such cases will only
be considered with the next physically available Fresh Batch of their own
Arm/Service with the same cut-off CR as that of the Fresh Batch under
consideration. Such cases will be compared with the Fresh Batch with
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which they are being considered and will be empanelled, if in merit,
against the vacancies accruing for that Fresh Batch. If empanelled for
promotion, they will reckon the seniority of their original batch.”

33. Coming to the impugned judgment of the Tribunal dated 02.04.2025,
we find that the decision is largely premised on the law laid down by the
Supreme Court in Major General Manomoy Ganguly (Supra), that Review
Selection Board in nothing but an extension of original Selection Board and
hence, the officer must be considered on the same parameters as if he was
participating in the promotion process undertaken in the original Board.
Tribunal also referred to and relied on the judgement of this Court in Maj
Gen Vinayak Saini (Supra), upheld by the Supreme Court in SLP(C)
No.20898/2024; judgment of the Tribunal in Maj Gen V.K. Singh (Supra)
and an earlier judgment of the Tribunal in Col V S Kahlon v. Union of
India and Ors., O.A. 3354/2024 , decided on 25.07.2025, where the law
laid down in Major General Manomoy Ganguly (Supra), was followed and
in our view, the neat legal nodus arising in the present case stands
crystallized in these judgements and thus we may briefly advert to these
judgements.
34. In Col V S Kahlon (Supra), the Tribunal discussed the intersection of
2017 Policy and CPP-2023 and after referring to the judgment in Maj Gen
V.K. Singh (Supra) at length, observed that from the said judgement it was
clear that while Deferred/Withdrawn and Special Review cases under the
new policy may be evaluated alongside the upcoming batch using a revised
standard and policy framework, however, it shall only apply to First and
Second Review cases and should not extend to a situation as in the case of
the Applicant before the Tribunal, where he was considered as a Special
Review case, classified as ‘Fresh’. It was also observed that in essence, the
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observations in Maj Gen V.K. Singh (Supra), lay down a fundamental rule
that a ‘Fresh’ candidate should not be grouped with the next junior batch,
where the officer has been wronged for no fault of his and the injustice is
rectified through a legal process and the officer should be considered as a
Fresh case in line with his own cohort from the original batch and this status
should not be altered by any new policy. Subjecting the Applicant to such a
disadvantage due to implication of a new policy, would constitute
discrimination and violate Articles 14 and 16 of the Constitution of India.
35. In Maj Gen V.K. Singh (Supra), Tribunal was called upon to
adjudicate whether on grant of redressal and consequent change of his
reckonable profile, the officer becomes entitled to be considered afresh as a
Special Review (Fresh) case vis-à-vis the last empanelled officer of his
original batch and under the same policy guidelines, which were in vogue
when the Selection Board, wherein he was wronged was held and in which
he was not empanelled, owing to the wrong done and/or whether his
consideration with the next available batch, which may have intervened by
then on different parameters, is justified. It is true that in the said case a
different policy regime had come into play at the time of Special Review
consideration, but the moot point under consideration was change of
yardstick at the time of consideration as a Special Review (Fresh) case on
grant of redressal. It was articulated on behalf of the Applicant that
consideration under the new 2017 Policy would change the
parameters/benchmark for selection, making it virtually a changed goalpost
and this would violate Articles 14 and 16 of the Constitution as also that
Paras 21 and 22 of the 2017 Policy providing for consideration of Special
Review cases at par with Deferred/Withdrawn cases, along with the next
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physically available fresh batch, were contrary to the very ethos of
consideration for promotion after the wrong done to an officer is corrected.
Reliance was essentially placed on the judgment in Major General
Manomoy Ganguly (Supra) , to support the legal plea raised.
36. Holding in favour of the Applicant and allowing the Original
Application, Tribunal directed the Respondents to consider the case of the
Applicant for promotion to the rank of Lt. General as a Special Review
(Fresh) case in accordance with the policy that was applied by the Selection
Board when Applicant was considered with his original batch, meaning
thereby that consideration was to be accorded on the same parameters and
benchmark, as applied at the time of original consideration. Tribunal held
that based on the non-statutory complaint filed by the Applicant, once the
Competent Authority detected a ‘wrong’ in his CR record and ‘corrected’
the same by expunging it, Applicant deserved consideration as a fresh case
with his original batch on same parameters/benchmark and adopting any
other path would amount to undoing the redress granted.
37. This judgment was challenged by Union of India in the Supreme
Court in Civil Appeal Diary No.44838/2018, titled Union of India & Ors. v.
Maj. Gen. V.K. Singh. When the appeal came up for consideration on
04.01.2019, the Supreme Court expressed an opinion that the Respondent
should be considered for the post of Lt. General by Review Promotion
Board on the basis of policy in existence in 2017 and that the Board should
hold a sitting and undertake the process as soon as possible, preferably
within three weeks. The appeal was adjourned to enable the Appellants to
undertake this exercise. When the matter came up on 25.01.2019, the
Supreme Court was informed that SSB had met on 19.01.2019 and
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considered the Respondent but he was not recommended for promotion. In
light of this, the appeal was disposed of, leaving it open to the Respondent to
make a representation against his non-empanelment. However, upshot of
this decision is that the Supreme Court did not interfere with the judgment of
the Tribunal on law and in fact, Appellants had held the Board applying the
same yardstick as of the original batch, in consonance with the directions of
the Tribunal.
38. This very issue came up for consideration before the Division Bench
of this Court in Maj Gen Vinayak Saini (Supra) . We may refer to a few
facts of this case as a prelude for better appreciation of the judgment.
Petitioner in the said case was commissioned in the Corps of Engineers on
19.12.1987 and was promoted to various ranks from time to time. The
problem started when after grading him ‘Outstanding’ in his two CRs in the
rank of Major General, the same IO downgraded the numerical grading in
the subsequent CR and this was endorsed by the RO. Officer was considered
by Special Selection Board (SSB) for promotion to the rank of Lieutenant
General as a fresh case of 1987 Batch against two Corps vacancies and as a
Review case for Non-General Cadet Staff (‘NGCS’) stream and both the
SSBs were held on the same date. It is at this stage that Petitioner learnt of
the downgrading in his CR for the period 15.07.2021 to 07.05.2022 and
submitted a Statutory Complaint dated 27.02.2023, however, no action was
taken and apprehending that results of the SSBs will be declassified to his
detriment, Petitioner filed O.A. 1559/2023 before the Tribunal. By order
dated 31.05.2023, Tribunal directed that Petitioner’s promotion will be
subject to outcome of the O.A.
39. Statutory Complaint of the Petitioner was forwarded through proper
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channel only after both the Corps vacancies were filled. Petitioner was,
however, granted redressal by the Central Government and IO’s Box
Grading was expunged. Due to change in profile, Petitioner was considered
as a Special Review (Fresh) case for NGCS stream along with fresh batch of
1989 by the Selection Board held in December, 2023, but was not
empanelled. Owing to non-consideration for the Corps vacancies after grant
of redressal, Petitioner sought a direction from the Tribunal to the
Respondents to hold a Special Review Board, which direction was issued by
the Tribunal, however, Respondents did not comply and justified their
inaction by taking a stand that Petitioner was not eligible for consideration
since the next vacancy was arising only on 01.09.2025, which was after the
superannuation of the Petitioner on 31.10.2024.
40. In this backdrop, agreeing with the Respondents, Tribunal held that
since no vacancy was available before superannuation of the Petitioner, he
could not be considered for promotion, despite the redressal granted to him.
Tribunal disagreed with the Petitioner on his plea that while considering the
Petitioner in the NGSC stream, the cut-off CR of 31.12.2022 i.e. of the
original batch ought to have been taken. The judgment of the Tribunal dated
19.04.2024 was challenged before this Court in W.P. (C) No.7181/2024 and
the main plank of the argument of the Petitioner was that in view of the
redressal granted by the Central Government by expunging IO’s Box
Grading in the impugned CR, which was the sole reason for his non-
empanelment, Respondents were required to conduct a review of the Board
held in February, 2023 and consider the Petitioner on the same parameters
and against the vacancies of the said batch. It was urged that Respondents’
plea that no review consideration can be given till a fresh vacancy arises in
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the Corps of Engineers, overlooks the fact that Petitioner’s profile that was
taken into account on 09.02.2023 had radically changed due to expunction
of the IO’s Box Grading in the CR in question and he cannot be denied the
benefits of the redressal granted by comparing him with the subsequent
batch on a different comparative field.
41. Per contra, Respondents contended that Special Selection Board is in
the nature of review consideration and can be held only when the next
physically available fresh batch is considered against the available vacancies
accruing for that batch and that this policy is applied uniformly to all
officers across the board. It was sought to be justified that since the next
vacancy was arising only after superannuation of the Petitioner, he could not
be considered by the Selection Board. Before coming to the findings and
decision of the Division Bench in the writ petition, it will be useful and
relevant to see how the Tribunal dealt with the rival submissions and
relevant passages are as follows:-
“24. Having thus examined contents of all of the above quoted letters
relevant to examination of case at hand we do not find any ambiguity with
relation to consideration of the applicant as per both the letters in question
whenever be the letter applicable to the case even if it is argued on behalf
of the applicant that he was to be governed by policy letter of December
2017 and not December 2023. It is clearly spelt out that there has to be a
vacancy to be availed of by the applicant and also there has to be presence
of a fresh batch to consider the applicant alongside as there is no
provision anywhere to consider a candidate as a lone case based on a
redressal thus received or for any other reasons as the case may be.
25. From the facts and the records placed before us it is observed that
there are three Lt. Gens authorized in the Corps of Engineers in the
applicants of Engineer-in-Chief, Director General, Border Roads and
Commandant of College of Military Engineering of which all the
vacancies are presently occupied by incumbents.
26. On a perusal of records, We find that the first vacancy that would
come up for utilization will be that of Lt. Gen Arvind Walia, Engineer-in-
Chief when he retires on 31.08.2025 and subsequently, the remainder
vacancies will come up on superannuation of respective officers holding
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the appointment. It is our observation therefore that hypothetically even if
the applicant is to be considered by boards as a lone candidate and he is
found empanelled for promotion there will be no vacancy available to
promote him to rank of Lt. Gen before his superannuation in the present
rank on 31.10.2024. Thus, the extant conditions do not help the case of the
applicant.
27. Moreover, it is settled jurisprudence that the exercise of power of
judicial review in the selection process and the policy matters of the
executive is limited and, therefore, we do not consider it appropriate to
exercise the power of judicial review in the instant case, in absence of any
express mala fide.”

42. Testing the correctness of the impugned judgement on the touchstone
of the 2017 Policy and CPP-2023 as also the judicial precedents before it,
the Division Bench first captured the rival submissions of the parties in
paragraph 24 of its judgment and thereafter formulated the question arising
for consideration in paragraph 26, both of which are extracted hereunder for
ready reference:-
“ 24. From the factual position noted herein above, what emerges is that
while the respondents do not deny that there has been a change in the
petitioner's CR profile with retrospective effect, their sole contention to
deny a review consideration to the petitioner viz a viz the Corps specific
vacancy is that as per their applicable policies, no such consideration can
be granted till a fresh vacancy of Lt. General arises in the said Corps.
Their plea being that where redressal is granted to an officer by way of a
statutory/non-statutory complaint, he does not automatically become
entitled to a special review consideration with respect to the earlier Corps
specific vacancy; this review consideration, it is contended is required to
be granted only when the next batch is to be considered for the next
available vacancy. The learned Tribunal accepted this contention of the
respondents and has, therefore, held that the petitioner is entitled for a
review consideration only when the next available vacancy of Lt. General
in the Corps of Engineers accrues on 01.09.2025, when Lt. General Arvind
Walia superannuates. Consequently, the Tribunal concluded that despite a
radical improvement in his profile, the petitioner cannot be granted any
consideration by way of special review and would have to retire in the
present rank without being considered for promotion.
xxx xxx xxx
26. From the aforesaid submissions of the parties, we find that the factum
about the redressal being granted to the petitioner being undisputed, the
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question for our consideration now lies in a very narrow compass. Should
the petitioner, who has been granted redressal by the Central Government
itself, thereby vindicating his stand that his IO had wrongly downgraded
his Box Grading in his CR which was considered by the SSB held on
09.02.2023, be told that he cannot be granted any consequential relief, by
accepting the respondents' stand that since the vacancies of Lt. General, as
available on 09.02.2023, already stand filled, no special review
consideration can be granted to him. The issue, thus, would be whether the
respondents' contention that despite it being conclusively found that the
petitioner was considered in the SSB on 09.02.2023 on the basis of his
faulty CR, he cannot be granted a special review as he will retire before
the next vacancy arises on 01.09.2025.”

43. The question posed for consideration was answered in favour of the
Petitioner by the Division Bench, observing that if the Petitioner was not
granted review consideration with respect to SSB held on 09.02.2023,
despite redressal granted to him and his stand being vindicated that he had
been wrongly downgraded by his IO, the very purpose of redressal would
stand defeated. This may lead to a situation like the present case, where
despite being meritorious an officer may be denied promotion only because
his IO/RO, as the case may be, arbitrarily downgrade his CR. Such an
officer cannot be told that even though the downgrading in his CR was
illegal and the wrong has been corrected, he would continue to be deprived
of his rightful promotion only because his junior has been promoted in the
meantime and will have to wait for the next vacancy and next batch.
44. Another observation in the said judgment, which is extremely
significant jurisprudentially on the legal issue involved and directly applies
to the present case before us is that if the Respondents’ plea that a review
consideration can be given only against the next available vacancy and not
with reference to the Selection Board where the officer is wronged, was to
be accepted, it would lead to a situation where in order to harm the
promotional aspects of an officer, disposal of the Statutory Complaint may
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itself be delayed deliberately, as was done in the said case. It was held that
Respondents’ refusal to grant review consideration to the Petitioner vis-à-vis
vacancies of Lieutenant General in Corps of Engineers as on 09.02.2023 was
arbitrary and illegal. Significantly, both the policies i.e. 2017 Policy and
CPP-2023, were before the Court and after examining them, Petitioner was
granted relief on the principle of fairness and justice albeit it be noted that
Court also considered the additional fact that there was an interim order in
favour of the Petitioner by the Tribunal making his promotion subject to the
outcome of the O.A. We also note that the Division Bench also placed
reliance on the decision of the Supreme Court in Major General Manomoy
Ganguly (Supra), on which the Tribunal has also relied in the judgement
impugned before us, wherein the Supreme Court held that review SPB is
nothing but an extension of original SPB, wherein Respondent was supposed
to be considered on the same parameters as if he was participating in
promotion process undertaken in original SPB.
45. The judgment of the Division Bench in Maj Gen Vinayak Saini
(Supra), was challenged by the Respondents therein and SLP(C)
No.20898/2024 was dismissed by the Supreme Court on 24.09.2024. It is
relevant to note that the Supreme Court observed that the High Court
interfered with the decision of the Tribunal holding that it was a case of
wrongful downgrading of CR and injustice to the officer, in light of the
order passed by the Central Government granting redressal, which is
extracted in paragraph 4 of the order of the Supreme Court. The SLP was
dismissed as being devoid of merit after due deliberation and consideration
and hence, the judgement of this Court stands affirmed. Relevant passages
from the judgement of the High Court are as follows:-
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“27. Having given our thoughtful consideration to this question, we are of
the opinion that if the petitioner is not granted review consideration for
promotion with respect to the SSB held on 09.02.2023, despite the
redressal granted to him and his stand being vindicated that he had been
wrongly downgraded by his IO, the very purpose of redressal being
granted to an officer would stand defeated. This may lead to a situation
like the present case, where despite being meritorious, an officer may still
be denied promotion only because his IO/RO, as the case may be,
arbitrarily downgrade his CR. Such an officer, in our view, cannot be told
that even though the downgrading of his CR by his IO/RO was illegal and
has been subsequently, set aside by the Central Government/the Chief of
Army Staff by accepting his statutory/non-statutory complaint, he would
still continue to be deprived of his rightful promotion as his junior has
already been promoted in the meanwhile and he will be required to wait
for accrual of the next vacancy.
28. There is yet another angle from which this issue can be examined. In
case, the respondents' plea that a review consideration can be given only
against the next available vacancy and not with reference to the Board
where he was wronged, was to be accepted, it would lead to a situation
where in order to harm the promotional prospects of an officer, the
disposal of the statutory complaint preferred by him may itself be delayed
deliberately. In the present case, the record in itself shows that though the
petitioner had submitted a statutory complaint on 27.02.2023, the same
was not forwarded to the competent authority/respondent no. 1 till as late
as July 2023 by which time the result of the Board held on 19.02.2023 was
de-classified. Further we also wonder as to why the statutory complaint
was not decided before the second vacancy of Lt. General in the Corps of
Engineers was filled on 01.10.2023 but was instead decided just nine days
thereafter.
29. In our view, the respondents' refusal to grant a review consideration to
the petitioner vis-a-vis the vacancies of Lt. General in the Corps of
Engineers as on 09.02.2023 is in itself arbitrary and illegal. However,
even if we were to accept their plea that such a review consideration is not
in consonance with the existing promotion policy, the petitioner, in our
view, would still be entitled to relief. We say so as we find that the
promotions pursuant to the Board held in February 2023 were itself
directed to be made subject to the outcome of the OA. The Tribunal
specifically directed on 31.05.2023 that the petitioner's promotion would
remain subject to outcome of the OA and therefore, it was evident that the
promotion of the two officers as Lt. General in the Corps of Engineers
recommended by the Board on 09.02.2023 in itself was subject to outcome
of the OA. This necessarily implied that these two officers, who were
promoted pursuant to the Board held in 2023, were to be put to notice qua
their promotion being subject to outcome of the OA.
xxx xxx xxx
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32. In the light of this factual position, when the Tribunal, by way of its
interim order dated 31.05.2023, had already protected the rights of the
petitioner, he cannot now be told that the Tribunal's order was of no
consequence. In our view, it would be a travesty of justice if the petitioner
were to be told that, despite it having been conclusively established that
his IO had wrongly downgraded him in the assessment of one of his CRs,
which was considered by the Selection Board held in February 2023, he
cannot now be considered for promotion as his batchmates, including a
person junior to him, have already been promoted and that too by ignoring
the interim order passed by the Tribunal. The learned Tribunal, we find,
has simply overlooked this aspect of the matter and has accepted the
respondents' plea that now that the vacancy against which the petitioner
could have been considered has already been allocated to his junior, he
must retire in his present rank itself, despite being meritorious. We are,
therefore, of the considered view that the impugned order is unsustainable
and is liable to be set aside with directions to the respondents to grant a
special review consideration to the petitioner with reference to the SSB
held on 09.02.2023 for the Corps of Engineers by applying the same
parameters as applied to the Board.
33. In this regard, we may refer to the following extracts from the decision
of the Apex Court in Union of India v. Major General Manomor Ganguly,
(2018) 1 SCC 552:
“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 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 SPB held on 20-1-2016, had
the revised marks of the respondent been 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 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 SPB held on 20-1-2016 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
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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 SPB.”
xxx xxx xxx
35. In the light of the aforesaid, we allow the writ petition by setting aside
the impugned order and directing the respondents to re-consider the
petitioner's case for promotion as a Lt. General in the Corps of Engineers
with respect to the SSB held on 09.02.2023 by taking into account the
vacancies as existing on the said date and applying the same benchmark
criteria as was applied for consideration of the other officers by the said
SSB.
36. It is further directed that in case the petitioner is recommended for
promotion, on the basis of the same parameters as applied by the SSB for
the Corps of Engineers held on 09.02.2023, he will be granted promotion
as a Lt. General with retrospective seniority and notional fixation of pay,
without any arrears of wages. However, since the Officers empanelled
pursuant to the recommendations made by the SSB for the Corps of
Engineers held on 09.02.2023 are not before us, we are consciously not
issuing any directions qua them, leaving it open for the respondents to
pass appropriate orders in this regard. Taking into account that if the
petitioner is not promoted to the next rank of Lt. General, he will
superannuate on 31.10.2024, we direct that the exercise in terms of this
order be carried out within four weeks.”

46. On perusal of the aforementioned judgements in Major General
Manomoy Ganguly (Supra), Maj Gen V.K. Singh (Supra) and Maj Gen
Vinayak Saini (Supra), we are of the view that the legal issue stands settled
that a special review consideration, occasioned due to a wrong being
redressed subsequently, has to be on the same parameters and benchmark as
applied at the time of original consideration with the original batch and this
is the common thread that runs in these judgements. Significantly, while all
these three cases started their journey from the Tribunal, they were finally
decided by the Supreme Court and applying the doctrine of merger, these are
decisions of the Supreme Court and hence, a binding dictum for us. It would
indeed be travesty of justice if the officer, even after grant of redressal, is
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told that he will be considered with another batch applying a different
yardstick though his initial consideration was with a tainted profile, owing to
a wrong done to him. This unwarranted change of goalpost causes prejudice
to the officer and virtually takes away the redressal granted and hence, we
re-iterate that Special Review (Fresh) consideration on grant of redressal and
resultant change in officer’s profile must be done on parameters applied at
the time of original consideration and with the original batch, else there will
be a change of the comparative field, against the settled law.
47. Matter can be seen from another angle. Army follows a quantification
system of selection, which was introduced in 2009 with the objective of
bringing transparency in the selection process and to do away with
unfettered discretion vested in the members of the Selection Board. Each
officer under consideration is judged on a scale of 100 marks, of which 95
are quantifiable parameters such as numerical gradings in CRs, gradings
obtained in military course, honours and awards etc. and 5 marks are
awarded by the Selection Board on non-quantifiable parameters such as
posting profile, performance in war reports, weak or adverse remarks in the
CRs etc. It is established that batch-merit/benchmark of a particular batch is
sacrosanct to that batch and depends on number of vacancies of each batch
as also the merit of the officers in a particular batch etc. and thus varies from
batch to batch. Therefore, consideration with a different batch will be on
different parameters and rules of the game will inevitably change.
48. In this backdrop, Respondent is right in contending that a Special
Review (Fresh) case implies restoration of the status of the officer to his
original batch and he cannot be considered with the next junior batch,
pitching his case on the judgement in Maj Gen Vinayak Saini (Supra) .
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Respondent is also right in contending that such an officer cannot be
confronted with non-availability of vacancy accruing to his original batch, as
held in above mentioned case. We cannot be unmindful of the fact the when
the Respondent was accorded first consideration with his 1992 batch in
April,2023, his profile was tainted as two of his CRs were admittedly,
deserving of interference. Paras 145-148 of Army Order 02/2016 and Policy
dated 19.08.2015 mandate that CRs received in the MS Branch shall be
subjected to intense internal scrutiny to identify and expunge any
inconsistency or subjectivity or technical invalidity in the CRs and had the
MS Branch carried out this exercise in discharge of its obligations at the
relevant time, Respondent would have been considered with modified/
upgraded merit with the original batch in April, 2023 itself and this would
have obviated the entire litigation that he was compelled to undertake and
strangely, even today the contest by the Petitioners seems to be unending.
49. The Tribunal, in our view, in the impugned judgment has rightly
observed that it is not striking down CPP-2023 but instead reads an
exception for Special Review cases on the touchstone of principles of
fairness, non-arbitrariness and protection against retrospective prejudice, in
line with the reasoning in Maj Gen V.K. Singh (Supra), Maj Gen Vinayak
Saini (Supra) and Major General Manomoy Ganguly (Supra). The
observation of the Tribunal that the judicial concern is not with marks or
benchmarks in abstract but with the timing and frame of comparison viz.
placing the Respondent against the fresh batch instead of re-running him
against the original batch, from which his earlier non-empanelment arose,
which would convert the statutory redress into a pure cosmetic exercise, is
absolutely correct. Tribunal rightly posed the question whether the
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Respondent is restored to the position he would have been in but for the
wrong CRs and answers it by holding that CPP based comparison with the
later batch fails that test.
50. Contention of the counsel for the Petitioners that the judgments relied
upon by the Tribunal are distinguishable, is without merit. No doubt the
decision in Col V S Kahlon (Supra) was confined to selection policies
governing promotions up to the rank of Brigadier, however, what is relevant
to the instant case is the analysis on the intersection of 2017 Policy and
CPP-2023 that an officer who is a Special Review (Fresh) case should be
considered with his own cohort from the original batch, once the wrong
done to him has been rectified through a legal process.
51. In Maj Gen V.K. Singh (Supra) case, the question was whether the
Applicant who had been granted redressal could be considered as a Special
Review (Fresh) case under the new 2017 Policy or should be considered
with the policy in vogue when his original batch was considered in October,
2017. The question was answered by the Tribunal holding in favour of the
Applicant that the parameters of consideration cannot change and the
Applicant should be considered in accordance with the same policy which
was in vogue when the first SSB took place in October, 2017 and this
direction was upheld by the Supreme Court. On reading of the operative
direction in the said case, one may get an impression in the first blush that
the case was simply one of application of two different policies, however,
close reading of the judgment would show the Applicant therein was
asserting a right for consideration with his original batch and on the same
parameters/benchmark as applied to the said batch as that would be the only
way meaningful redressal would come to him, after the wrong committed
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against him is corrected. Attempt of counsel for the Petitioners to distinguish
the two judgments, basis an argument that these cases involved material
change in the policies, is futile for the simple reason that it is not their case
that different parameters have not been applied while considering the
Respondent in the No.1 SBs held in April, 2024 and April, 2025 and this in
the teeth of the law laid down by the Supreme Court.

52. Mr. Farman Ali attempted to distinguish the judgment in Maj Gen
Vinayak Saini (Supra) on facts, urging inter alia that in the said case,
Petitioner was considered by two SSBs for two different streams and one of
the issues was of non-existence of Corps vacancy prior to superannuation of
the Petitioner as also that his promotion was made subject to outcome of the
OA. To our mind, these alleged distinctions are irrelevant as what is
applicable is the ratio that review consideration, occasioned by redressal of a
wrong cannot be with different batch and on different parameters. Equally
the argument that the Petitioner in the said case had an interim protection is
of no aid since the doctrine of lis pendens applies with full force in the
instant case. Many times, Courts do not stay the selection process in the
interest of administration, but make the rights of the applicants subject to
outcome of the pending litigation, but mere absence of such an order cannot
be construed to mean that pendency of the case before the judicial forum,
wherein rights are asserted by parties, has no meaning and even on getting
redressal, party must meet fate accompli.
53. For all the aforesaid reasons, we find no error or infirmity in the
impugned judgment of the Tribunal directing the Petitioners to re-consider
the case of the Respondent for promotion to the rank of Major General with
his original 1992 Batch as a Special Review (Fresh) case and on the same
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parameters/benchmark as applied to the said batch by No.1 SB and taking
into account the vacancies that existed when the Board was held in April,
2023. This writ petition is accordingly dismissed and the impugned
judgment dated 02.04.2026 passed by the Tribunal as also order dated
15.05.2026 in R.A. 31/2026 are upheld.
54. Petitioners are directed to make an endeavour to hold the No.1
Selection Board prior to the superannuation of the Respondent on
31.10.2026, however, if for any reason the same cannot be done, the needful
shall be done within 6 weeks from today and it is made clear that the
superannuation of the Respondent will not come in the way of his
consideration for promotion to the rank of Major General by No.1 SB and
we say this because Respondent had taken recourse to legal remedies well in
time in 2023 and unlike in the civil sector, in the Army promotion leads to
extension of service and date of retirement is consequently deferred, an
important observation made by the Supreme Court in Union of India & Ors.
v. Maj. Gen. V.K. Singh (Supra).
55. There is also no infirmity in the order dismissing the Review
Application as the Petitioners were seeking to reargue and reagitate the
matter on merits, which is impermissible in review jurisdiction where only
errors apparent on the face can be looked into.
56. Pending applications also stand disposed of.




JYOTI SINGH, J.


GURVINDER PAL SINGH, J.
OCTOBER 27 , 2026 /YA
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