UNION OF INDIA Vs. L BRIG ASHOK MALHOTRA

JUDGEMENT

(1.) The Union of India has preferred this appeal under Clause 10 of the Letters Patent of High Court of Judicature at Patna and raises a grievance with respect to the judgment dated 14.8.1997, passed by a learned Single Judge of this Court in C.W.J.C. No. 11155 of 1995 (Brig. Ashok Malhotra Vs. The Union of India and others), whereby the alleged adverse entry of "High Average" has been quashed, and the authorities have been directed to reconsider the petitioner's case for promotion to the post of Major General in the Indian Army service with effect from the due date, i.e., with effect from the date any Officer junior to the petitioner in the rank of Brigadier was promoted.

(2.) A brief statement of facts essential for the disposal of this appeal may be indicated. We shall draw the basic facts from the writ proceedings, except by specific reference to any other proceedings. The petitioner was commissioned in the Indian Army on 9.2.1964, He had risen from rank to rank and was ultimately, by order dated 23.2.1990 (Annexure-1), promoted to the rank of Brigadier. He was considered for the next higher post of Major General thrice, namely, 1994,1995, and 1997, and was not promoted on any one of the three occasions. One of the prescribed performance remarks, namely 'High Average', was entered in his confidential character roll for the period 1988-89. Taking it to be adverse entry, the petitioner had submitted his non-statutory representation to the same which remained pending all through.

(3.) While assailing the validity of the impugned judgment, learned counsel for the appellant submits that adverse confidential character roll, save exceptional circumstances, cannot normally be subjected to judicial review. He relies on the following judgments: