Air Vice Marshal Harish Masand vs Union Of India (Uoi) And Ors. on 8 November, 2004

[Cites 22, Cited by 9]

Delhi High Court

Air Vice Marshal Harish Masand vs Union Of India (Uoi) And Ors. on 8 November, 2004

Equivalent citations: 119(2005)DLT152, AIR 2003 ANDHRA PRADESH 179, 2005 LAB. I. C. 613, (2005) 1 SCT 605, (2005) 119 DLT 152, (2003) 2 ANDHLD 78, (2003) 3 ANDH LT 711

2. We have two petitions on identical ground; the one which we are dealing and other by Air Vice Marshal T.S. Chhatwal [WP (C) No. 879/2004]. We are writing a separate judgment as both the petitions are argued separately. Therefore, the legal points which are common in both the petitions are not repeated in the judgment of AVM Chhatwal, same may be read as recorded here. The present writ petition has been filed by Air Vice Marshal Harish Masand, who joined the Air Force as Fighter Pilot in 1967. It was stated that he participated in Indo-Pak War and shot down a Pakistani Sabre Jet over Dhaka on 4th December, 1971. On account of his valour and gallantry, he was decorated with Vir Chakra. In 1974 the petitioner went for All Purpose Flying Instructor course and stood first in all the disciplines. According to the petitioner, the record set by the petitioner has not ye been touched by any officer in the entire Air Force till date. In 1975 the petitioner was posted to MiG-21 as an instructor and thereafter for the Photo Interpreter Course and stood first in the said examination. In 1977, the petitioner once again stood first in Junior Commanders Course. In 1978 the petitioner completed with distinction Fighter Combat Leader course and again stood first. In 1978 the petitioner was promoted as Squadron Leader. In 1979 the petitioner appeared for the defense Service staff College examination and also stood first. In 1981 he was posted to a prestigious post with Directorate of Air Staff Inspection as the youngest Inspector. In 1986 petitioner was sent to Russia as commanding officer designate of a squadron to train he first batch of Indian pilots on the latest MiG-29 fighter aircraft. In 1989 he was promoted as group captain and awarded the Vayu Sena Medal. In 1992 the petitioner deputed for the prestigious Air War College course in USA there also he was winner of the Spring-Butt Award. The petitioner was specially selected as Director, Aircraft upgrade in 1996. Petitioner was recommended for grant of 'Ati Vishisht Seva Medal'. In 1996 he was promoted as Air Commodore. In 1997 the petitioner took over commander of Air Force station and put in-charge of inducting the new SU-30 aircraft in Pune. In December, 1997 Air Marshal S. Krishnaswamy took over as Commander-in-Chief of South Western Air Command and the petitioner came directly under him. It was the case of the petitioner that Air Marshal S. Krishnaswamy gave adverse remark to the petitioner which were expunged by the Chief of Air Staff. It was also contended that Air Marshal S. Krishnaswamy had a grouse against the petitioner as the petitioner had given an opinion to the Chief of Air Staff as an expert for an accident of low aerobatic sortie pursuant to an inquiry against Air Commodore S. Krishnaswamy, who is presently Chief of Air Staff who had taken the plea that their aircraft had misbehaved. In December, 2000, the petitioner was given the assignment as Director, Air Staff requirement in Air Headquarter and was promoted to the rank of Air Vice Marshal on 26th December, 2001 and was posted as Senior Air and Administrative Staff Officer at Maintenance Command at Nagpur. It was contended that in June, 2000 at the time of Kargil Operation he was specially called to assist South Western Area Command in the preparation and in September, 2003 petitioner was designated as the Chief Coordinator and conducted Air Awareness Campaign and Air Show at Nagpur without any mishap.

In February, 2003, the Special Promotion Board was constituted for promotion to the rank of Air Marshal and in order to deny the promotion to the petitioner, the previous policy of seniority-cum-fitness was given a go bye as in the promotion policy of March, 2002, 20% marks were given for viva-voce and rest of the 80% marks were given to the weighted average of last five years' ARs. As petitioner was due to retire as Air Vice Marshal on 31.3.2004, respondent issued a signal vide impugned order dated 1.1.2004 promoting respondents 3 and 4, who were junior to the petitioner to the post of Air Marshal. This writ petition was filed on 27.1.2004, i.e. before retirement of the petitioner and on that day the Court passed the following order :-

"The retirement of the petitioner shall be subject to further orders in this writ petition."

3. Again on 17th March, 2004 when junior officers than the petitioner were to be promoted pursuant to the selection board, the Court passed the following orders on 17th March, 2004 :-

" If any promotion is made by the respondent that shall be subject to the orders passed by this Court in this petition."

4. It was contended before us by the petitioner that the new promotion policy which was announced vide letter dated 15.3.2002 vested 20% marks for the first time in the history of the Indian Air Force at the discretion of Promotion Board members with the Chief of Air Staff as its Chairman. The factor considered to determine the discretionary marks were totally subjective as all of them with their essential ingredients were part of AR which were considered while raising the ARs of the officers, i.e. leader ship, personality, potential to hold the responsibility of the next higher rank and employability. It was contended that such a criteria was against the principle of objectivity and transparency and in total violation of the directions of the Supreme Court. With such a high percentage of discretion, the merit list can be easily manipulated as per the whims and fancies of a very few and it was contended that it would result in sycophancy and not the stated objective of the new promotion policy, i.e. merit, demonstrated performance and forthrightness. It was also contended that out of the four Air Vice Marshals promoted to the rank of Air Marshals under the Special Promotion Board held in February, 2003, three of them were serving directly under the Ai Officer in charge personnel Air Marshal Menon, who was not only the custodian of all personal records but also the Secretary of the Special Promotion Board, responsible for bringing the performance of each officer under consideration to the notice of the members of the Board. In all fifteen officers in the rank of Air Vice Marshals were considered by the Promotion Board whereas petitioner as per the AR marks was at the first position with 406 marks out of 600 marks on the basis of 80% of the weightage given on the AR for the last five years. But on the basis of the Board marks on the basis of 20% weightage he was only given 63 marks and his position slipped to the 7th position. It was contended that when on the basis of AR marks the petitioner had obtained 84.6% by sheer manipulation and by award of 63 marks out of 120, he was given 52.5% marks and was brought to 7th position, thereby denying him promotion. Air Vice Marshal A.D. Joshi got 395 marks. He was given 101 marks out of 20% of the weightage i.e. 81.2% whereas his percentage of the 80% of the AR marks was 82.3%, although he ranked No. 7 on the basis of AR marks on the basis of Board marks was placed at No. 1. It was contended before us that Air Vice Marshal A.K. Singh, who was at No. 10 in the list of 15 persons as her AR marks got 393 marks i.e. 81.9% on the basis of 20% weightage giving 70.8% of marks. So he was placed at No. 4 by the Selection Board and thus making him Air Marshal whereas the petitioner who had all along been a meritorious and outstanding officer in spite of being on the list at No. 1 was placed at No. 7 denying him promotion to the rank of Air Marshal. From the side of the petitioner it was stated that this Court can grant a mandamus as the whole selection process has been vitiated on account of disproportionate weightage given to the Board Marks as well as on account of extraneous and irrelevant factor which have gone into consideration in the decision making process. It was contended on behalf of the petitioner that this Court in such a case should issue mandamus promoting the petitioner as Air Marshal and in this context reliance was placed on The Comptroller and Auditor General of India Vs. K.S. Jagannathan and Anr. . Mr.P.P. Malhotra, learned Additional Solicitor General contended that the promotion was in the domain of the Government and even if the petitioner was having outstanding record still there were other parameters which could have been taken into consideration. It was contended before us that the Selection Board took into consideration the promotion policy dated 15th March, 2002. In this regard learned Additional Solicitor General relied on a decision of the Supreme Court in Union of India and Anr. Vs. Samr Singh and Ors. . Learned counsel for the respondent has contended that when the promotion policy was issued it superseded earlier Air Force Orders. This argument was advanced on behalf of the respondent when they were confronted that AFO 227 of 77 and paragraph 26 of the said Air Force Order postulate that how censure could have been taken into consideration. It was contended that as the Air Force Orders are non-statutory in nature, therefore, they could be superseded as and when the Chief of Air Staff wanted too so. It was also contended that 20% marks were based upon consideration of the Board with regard to the entire span of service of the petitioner. In support of his contention learned counsel for the respondent relied upon Union of India and Ors. Vs. K.V. Jankiraman and Ors. . Reliance was also placed on Collector of Thanjavur Distt. and Ors. Vs. S. Rajagopalan and Ors. , Supreme Court while relying on K.V. Jankiraman's case held that in view of the fact that minor penalty in the shape of stoppage of increment had been imposed on the respondent held that stoppage of increment had the effect of promotion and the doctrine of double jeopardy will not come into play. Learned counsel for the respondent also cited Union of India and Ors. Vs. Lt. General Rajendra Singh Kadyan and Anr. . The Supreme Court held as under :-

"The contention put forth before us is that there are factual inaccuracies in the statement recorded by the Cabinet Secretary in his note and, therefore, must be deemed to be vitiated so as to reach a conclusion that the decision of the Government in to his regard is not based on proper material. The learned Attorney General, therefore, took great pains to bring the entire records relating to the relevant period which was considered by the Cabinet Secretary and sought to point out that there were nothings available on those files which justify these remarks. Prima facie, we cannot say, having gone through those records, that these nothings are baseless. Critical analysis or appraisal of the file by the Court may neither be conducive to the interests of the officers concerned or for the moral of the entire force. May be one may emphasize one aspect rather than the other but in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we cannot substitute our view to that of the authorities. It is well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has beeignored and the administrative decisions has nexus to the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether process in reaching decision has been observed correctly and not the decision as such. In that view of the matter, we think there is no jurisdiction for the High Court to have interfered with the order made by the Government."

5. Reliance was placed by the respondent on Badrinath Vs. Govt. of Tamil Nadu . In this case Court held :-

" Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, courts and Tribunals cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed."

6. Reliance was also placed by learned counsel for the respondent on Union of India Vs. Harjeet Singh Sandhu , Major General I.P.S. Dewan Vs. Union of India and Ors. , Union of India and Ors. Vs. S.L. Dutta and Anr. , Collector of Central Excise Vs. Shalimar Chemical Industries Pvt. Ltd. 2001 (2) SC 516, Air Vice Marshal S.L. Chhabra Vs. Union of India . Counsel for the respondent argued that Board awarded marks to the petitioner on the basis of four parameters laid down in para 16 of the promotion policy dated 15.3.2002, i.e. employability, leadership, personality, potential to hold responsibility of the next higher rank. It was contended that these reports are additional inputs in the form of intelligence reports, disciplinary reports, inspection reports available before the Board for deliberation. It was also contended that term 'report' is significant because it does not reflect the material to be considered by promotion board to the appraisal report only. It was further contended that if Board's consideration is restricted to the appraisal report, then there would hardly be any role for the promotion board to play. It was contended that the other aspects which are not reflected in the AR were to be considered by the Board. Dealing with the alleged bias of the Chief of Air Staff it was contended that every flying accident is investigated by a Court of Inquiry and the petitioner was not in any way involved with the said inquiry. Stand taken is that no records are available that any opinion in the matter was sought by the then Chief of Air Staff from the petitioner. It was contended that the petitioner has worked under the present Chief of Air Staff during 1992-95 and during the period two appraisal reports ( 1.10.93 to 30.09.1994 and 1.10.1994 to 30.9.1995) had been initiated by the present Chief of Air Staff and in both the reports he has been assessed 'Very High'. It was contended that the promotion policy does not stipulate any co-relation between the appraisal report marks and the Board marks. The Board marks are given after taking into consideration entire career of the officer. We have given our careful consideration to the arguments advanced by learned counsel for both the parties. First of all what needs to be looked into as to what was the policy dated 15th March, 2002. At page 43 of the paper-book under the heading Promotion Considerations of the said policy under paragraph 10 (a) it has been mentioned :-

" Special Promotion Board and No. 1 Promotion Board will take into account vacancies in the respective Air rank i.e. Air Marshal, AVM and Air Cmse which will arise during the during the Promotion Year. For this purpose, vacancies arising on 31 March of the promotion year due to retirement/premature retirements, will be counted against the vacancies arising during the same promotion year, though actually available only on 01 Apr of the next promotion year."

7. Thereafter at page 45 in para 16 Selection Process has been described as under. The same is relevant to adjudicate upon the controversy. The same is reproduced below :

"16. Preparation of Merit List Merit List will be prepared on the basis of 'AR Marks' and 'Board Marks' with weightage of 80:20 respectively. In case of promotion to the rank of Air Marshal average of numerical grading of last five years will be taken into account to determine the AR marks. For promotion to the rank of Air Cmde and AVMs, average of numerical gradings of last ten years will be taken into consideration. 'Board Marks' will be sum total of marks given by each member present in the Board meeting on the scale of 20. The guiding principle for Board marks will be based on the following features as discerned from reports raised on the officer in various field and staff appointments held by him in the past :-

(a) Employability

(b) Leadership

(c) Personality

(d) Potential to hold the responsibility of the next higher rank"

8. Therefore, in the promotion policy the selection process has defined as to how the Board Marks which were 20 were to be given and what would be the guiding principles, this Court has to see whether marks given were on the aforesaid basis, if there is co-relation between awarding of Board Marks on the aforesaid basis then this Court will not have jurisdiction to go into the marks as given by the Board as per Rajender Singh Kadyan's case (supra). But if Board Marks were used as a device to upset the level age of combined effect of AR's and were either too low or too high so as to nullify the aggregate weightage of AR marks, judicial review of consideration which were into the process of awarding such marks must stand the test of scrutiny on rationality, reasonableness and doctrine of fair play. The whole case of the respondent centered round on the plea that 20 marks given by six persons in the Selection Board which comes to 120 was based on the past record of the petitioner including censure when petitioner was a junior officer. It would be relevant to point out that on the basis of the weighted average of the last five years AR, the petitioner got 406 marks whereas A.D. Joshi, who was seventh in the merit list got 395 marks, A.K. Singh, who was tenth in the merit list, got 393. Respondents 3 and 4 who were junior to the petitioner and promoted pursuant to the said merit list, Air Vice Marshal F.H. Major, respondent No. 3 had 398 and similarly Air Vice Marshal J.S. Gujral, respondent No. 4 who was junior to the petitioner got 396 marks. It was only on the basis of 20 Board marks, the petitioner was deprived of his promotion. The petitioner, out of 120 marks got 63, A.D. Joshi got 101, A.K. Singh got 85, F.H. Major got 82 and J.S. Gujral got 94. We must not forget that earlier the promotion policy was seniority-cum-fitness. Whereas the policy under consideration before us dated 15th March, 2002 was based on weighted average of AR and Board marks. As lengthy arguments were addressed by the respondent on the censure having been taken into consideration although not pleaded in the counter affidavit. It would be relevant to reproduce Air Force Order 227 of 77 :-

"(a) The award of 'Censure' will be considered only once by that authority or Promotion Board before which the officer's case first comes up for consideration. The award shall be considered irrespective of the currency of the censure.

(b) Censure awarded to an officer will be considered while deciding his suitability or otherwise for his promotion to the next higher rank only, e.g. if an officer incurs censure in the rank of Plt Off/Fg Offr, such award shall be considered while deciding his suitability or otherwise for grant of acting rank of Flt Lt and so on. To determine promotability, the gravity of the mis-conduct, the authority who censured the officer and the period for which the censure was awarded would be taken into account.

(c) The award of 'Severe Displeasure' and 'Displeasure' shall carry negative marks, for consideration for promotion to the acting rank of Wg Cdr and Gp Capt. The basis for awarding negative marks will be the authority who censured the officer and in case of Severe Displeasure, the period for which the Severe Displeasure was awarded. If after taking into account the negative marks for the award of censure the officer is cleared for promotion, then the currency of 'Severe Displeasure' will not be the ground to defer his promotion.

(d) For promotion to Air Ranks, No. 1 Promotion Board shall consider the award of censure while deciding the promotability of the officer for the next acting rank. To determine fitness for promotion, the gravity of the lapse/misconduct for which the officer was censured, the authority who censured him and in case of a Severe Displeasure, the period of Severe Displeasure shall be taken into account. If after considering the award, the officer is cleared for promotion, the currency of Severe Displeasure so all not be the ground to defer his promotion.

(e) If an officer, who is cleared for grant of acting rank, is awarded censure before he wears the higher acting rank, the approving authority shall reconsider his case and decide afresh on promotability of the officer."

9. The impugned policy does not mention entire service profile or other criteria/inputs except ongoing investigations in para 18 of the said policy. Therefore, arguments advanced by the respondent that other inputs and intelligence reports were taken into consideration is not correct as same has not been mentioned in the policy. The assessment of Board marks has to be on the basis of four traits mentioned in the policy.

10. First we will deal with argument whether AFO 227 of 77 has been superseded pursuant to the new promotion policy. An argument was raised as an afterthought by filing arguments by the respondent that censure which has been given to the petitioner in May, 2001 and censure given for some alleged financial irregularities was considered by the Special Promotion Board of February, 2003 for first time no such stand was taken in the counter affidavit filed by the respondent. Petitioner did not have the opportunity to deal with this aspect of the matter. However it was contended by the petitioner that no adverse inference was taken against the petitioner as petitioner was promoted to the rank of Air Vice Marshal on 26th December, 2001. Therefore, the argument of the respondent that although censure was given to the petitioner in February, 2001 the very fact that censure has been given in February, 2001 was taken into consideration, when petitioner was promoted as Air Vice Marshal on 26th December, 2001, therefore, it merged with the promotion of the petitioner as Air Vice Marshal. It was also brought to our notice that if censure was given, same has to be dealt with under AFO 227/77. It was also contended that present Chief of Air Staff has also got censure in his career but still has gone on the top of the ladder. In para 20 of the counter affidavit it was mentioned that merit based promotion policy was framed and implemented in pursuance of the Task Force for Review of the Management of defense and recommendations of group of ministers that necessary steps should be taken to maintain a younger age profile and to provide stability of tenures for officers in the higher rank. In para 21 (i) of the counter affidavit filed by the respondent on 5th April, 2004 which is at page 120 of the paper-book, the plea taken was that " In fact it is for the first time in the history of the Indian Air Force (IAF) that a promotion policy for Air ranks has been evolved with quantified marks. As stated herein above a distinct weightage has been given to Appraisal Reports marks and to the Board marks. The Board marks are based on distinct parameters as discerned from various reports such as Intelligence report, disciplinary reports, Air Staff Inspection Reports etc. on the officer during his various field and staff appointments held in the past."

11. From the above stand of the respondent, if any censure report was taken into consideration by the respondent then that should have found mention in the counter affidavit but it was on the basis of the records which were summoned by the Court and after perusal of the record when the Court had directed the Additional Solicitor General to produce the file of the Ministry of defense where AFO 227 of 77 has been superseded so as to nullify the effect of para 26 (c) of that order it was fairly stated by the learned Additional Solicitor General that no such order superseding AFO 227 of 77 and para 26 regarding censure has been approved by the Ministry of defense. Why it could not have been, would be seen when we deal with the view of the Ministry of Defenc on selection board's recommendations and its policy to introduce 20% of Board Marks for selection. In written arguments a vague plea has been taken by the respondent that the censure report was taken into consideration. Even if AFO is a non-statutory order but if it is in vogue and same is to be modified or is to be repealed, the same has to be done in accordance with law laid down in the Air Force Act. Now we will deal with the promotion policy as such and the stand of the Government of India about this so called transparent objective promotion policy.

12. We will go into the question as to whether such high percentage of marks i.e. 20% was justifiable or not. We must observe that Government of India insisted for change in high percentage of Board marks and respondents 1 and 2 subsequently changed the policy whereas they have brought this Board mark to 5 instead of 20. In this regard the notes of the Ministry of defense are relevant. The same are as follows :-

"Note 49 para 6 of the file of Ministry of defense No. 5(4) 2002-D/AIR-III by Mr.A.P. Pandit, Deputy Secretary on 26th March, 2003 has noted "It would be observed from the statement at Flag 'Y' that the Air Officer, viz. AVM Harish Masand who has secured first position on the basis of AR marks has slipped down to 7th position and the air officer, viz. A.D. Joshi who is at 8th position as per AR marks has gone up to 1st position after inclusion of air marks. The officer at 4th position, viz. AVM Limaye has slipped down to position 9 after inclusion of air marks and the officer viz. AVM A.K. Singh has gone up from 10th to 4th position."

Paragraph 10 "Further it would be observed from the statement at Flag Y that 9 out of 15 officers have slipped down by 20 or more points due to their under assessment by the Board. While such sharp variation can be acceptable at the initial stage of recruitment where candidates from the market are assessed through written examination and interview, any service assessment particularly in the Services it would be proved to be counter productive in the sense that the officer secured appreciation in the multi-tier assessment. There is system (10/RO/CS), crystalised in the shape of numerical gradings of ARs would suddenly put themselves in poor light after assessment by the Board and missing the next higher rank. It will generate an atmosphere of despair and demotivation. It is, therefore, felt that the variation upward or downward in the assessment of the Board as compared to the mark awarded on the basis of AR grading should be of a limited extent may be up to 10 to 15 points."

Paragraph 10 - The case was discussed by the undersigned and Director, Air-I with JS (G/Air) has desired the position in respect of the above mentioned four air officers given in the statement at flag 'Y' is reproduced in the follows matrix:-

Position in the Name of the Air AR marks Board marks Position list of 15 officers officer 80% weightage 20% weightage after as per AR marks out of 600* marks out of 600* marks Board Marks marks %age marks %age

1. 2. 3. 4. 5. 6. 7.

1. AVM H. Masand 406 84.6 063 52.57

4. AVM R D Limaye 396 82.5 067 55.89

8. AVM A.D. Joshi 395 82.3 101 81.21

10. AVM A.K. Singh 393 81.9 085 70.84 100 X 6 number of members of the board.

Paragraph 12 - In view of the position given above and as discussed recommendation of the special Promotion Board of 2003 is in order except in respect of these four officers as such there are two options to ask Air Headquarter to furnish adequate justification for low assessment of the Board in respect of AVM Masand and AVM Limaye and high assessment in respect of A.D. Joshi and A.K. Singh as compared to their position on the basis of air marks. This note was submitted to the Joint Secretary by the Deputy Secretary on 28th March, 2003.

Paragraph 12 " Thus the analysis shows that the award of Board marks has not been done judiciously. It lacks fairness and objectivity. The comparative profile of the two officers viz. A.D. Joshi and A.K. Singh do not validate the marks awarded to them.

Paragraph 13 "In view of this it is proposed that we may return the proceedings of the Special Promotion Board to the Air Headquarter with the direction that they may reconsider the Board marks awarded by it specially with respect to AVM A.D. Joshi and A.K. Singh who seem to have been marked very liberally not in consonance with their comparative profile. The Board should also be advised that marks awarded by them should be with justification and amenable to validation by available record. It was in this background, keeping the variation in the Board marks and the air marks that the then defense Secretary Ajay Prasad on 29.8.2003 recommending the case for appointment noted :-

"I have also separately suggested to the Case that the discretionary element which is at present 20% should be brought down to say 5% so that such difficulties are not undergone in the future. The Case has agreed to revise the promotion policy and will be sending a proposal in this regard."

13. Mr.Tom Jones, Director (Air) on 31.10.2003 while examining the justification of the Air Headquarter for retaining the present policy in note 87 of the same file in para 6 wrote :-

" An examination of the current proposal reveals that the grounds put forth by the air headquarter in defense of the policy constituted basicly old wine in new bottle. The shortfalls and drawbacks of the present policy made out in depth in note 51 and 5 still remains. The first thrust of MOD argument was that by virtue of 20% discretionary marks awarded by the Board some times officers at the lower end of the spectrum got pushed up, while those who have been constantly holding it at the top got pushed down. Thus, there is an ample scope for Promotion Board to maneauvre, appoint and favor officers who were otherwise not likely to make it to the select list."

Para 18 " The case of AVM A.K. Singh is another one which is quite illustrative. In the case of A.K. Singh, his position as per the Air marks was at No. 10, whereas after the Board marks this discretionary power he shot up to No. 4 position and made to the rank of Air Marshal. This is despite the fact that there has been some unfitting remarks in his ACR. Some of them written by the present Case himself. May kindly refer to para 8 (x) of Note 51 ante. Despite such unfitting remarks, the officer has been able to make the grade solely on the ground of genorisity shown to him by the Promotion Board. While the Board has been quite liberal in its attitude towards A.K. Singh it has been quite harsh to many others. All these aspects point to enormous differential and decisive powers at present held by the Promotion Board which is able to undermine the entire lifetime record of an officer with one stroke."

Paragraph 9 " An argument that has been put forth by the air headquarter is that the number of complaints, statutory and otherwise as well as Court proceedings have gone down vis-a-vis the new policy. This does not in any way give a clear picture of the state of affairs. The fact that the number of complaints have gone down may not be truly representative of the reality as many might prefer to suffer in silence than raise any hue and cry. In fact, the simmering anger and discontentment felt by various officers about the present promotion policy has come out and manifested itself to officers of the MOD on various occasions in meetings and conferences in an informal manner."

Paragraph 10 " It is also pertinent to note that while completing ARs of individual officers competent authority has the power to moderate or increase the gradings. A scrutiny of ARs reveals that many a time this power is exercised by the competent authority. Thus the final grades received by an officer goes through several levels of filtering and is probably the most correct indication of his performance. The need to increase the grades with the weapon of discretionary marks, therefore, does not appear justifiable."

Paragraph 14 "In the final analysis, therefore, we may not accept the argument put forth by the air headquarter as has been decided by RM vide note which ante. We may rule that the promotion policy would be recognised so as to maintain the discretionay marks of the promotion Board to 5% compared to the existing 20%. Such a step would certainly bring a lot of relief to the officers who are at present favoring 20%. They are having democles sword hanging over their heads. When it is brought down to 5% there would be greater transparancy and lesser chances of manipulation which is quite possible in the current situation. Moreover, the powers now available with the board should indicate good track record achieved by the officers and penned down by various IOs appear too overriding. After all the correct assessment of an officer with respect to his personality and performance can only be written by his immediate superior and that is what gets reflected in ACRs. Hence going above the ACRs and granting discretionary power to the promotion board even he may be an experienced officer does not appear justified. Therefore, it is felt that 5% discretionary marks are more than sufficient for any broad to make its recommendations. We may rule accordingly.

As averment was made in the writ petition by the petitioner that it was Air Marshal N. Menon, AOP who has been instrumental in placing the report of the officers to the Promotion Board, normally affidavits filed by the Government are taken as correct this matter would not have reached to its logical conclusion but it was only after seriously perusing the files of the Ministry of defense which were ordered to be produced, we have noticed that Ministry of defense was also of the same view as has been expoessed before us by the petitioner. Government of India changed the promotion policy by reducing the discretionary marks from 20 to 5 vide letters dated 27.2.2003 and 1.9.2003 conveying the decision to change the policy and make it applicable to the vacancies arising after March 31, 2004 What affidavit to be filed in the High Court in the present case, how Court should be misled, how truth should not come before the Court, ingenuity on the part of Air Headquarters to deny justice to the petitioner would not have been unrevealed but for a note recorded by Mr. Arvind Joshi, Joint Secretary, Ministry of defense. It is revealing to reproduce the note by Shri Arvind Joshi, Joint Secretary (G/Air) on 13.2.2004, which is as follows :-

This note of the Director (Air) is dated 31.10.2003 which was also endorsed by the defense Secretary on 3.11.2003 and finally by the Raksha Mantri on 10.11.2003. Meeting with Additional Solicitor General regarding hearing in the Delhi High Court with respect to the writ petition filed by AVM Masad (Retired) and AVM Chhatwal about their non-promotion.

A meeting was held at 1630 hours on February 11, 2004 with with ASG Mr.K.K. Sud, CGSC Smt.Pinky Anand. ASG discussed the writ petition of AVM Masand and AVM Chhatwal which are coming up for hearing on 16.2.2004 before the Delhi High Court. I attended he meeting on behalf of MOD accompanied by Air Marshal N. Memon, AOP Air and other officers. While going for the meeting AOP mentioned that if ASG inquires about why the Government has gone in for a revision of promotion policy, we should mention that is because a similar policy is being contemplated by Air Force Medical Services. Hence in the context of the same Air Force Policy has also been revised. I kept quite on this suggestion of AOP. However, this question did not come up for deliberation in the meeting.

During the meeting the ASG stated that Justice Vijender Jain, who is the Judge in the Division Bench may ask probing questions and go through the records as he did in AVM Chhatwal's case and will not shy away from issuing a direction to the Government in he finds anything amiss in the Board proceedings. On this AOP stated that reviewing of promotion policy for air force officers is being contemplated, by reduction of discretionary marks and asked whether this change should be held in abeyance. The AS opined that if it is being contemplated then it should be held in abeyance as per CWS advice rendered on January 30, 2004 Paragraph 4 " At this juncture I intervened and told the ASG that I must put the facts in correct perspective and that Government decision in respect of change in policy has already been taken. I showed him the letter issued by MOD to air headquarter dated Feb 27, 2003 and September 9, 2003 conveying the decision to change the policy and make it applicable to vacancies arising after March 31, 2004 ASG read both the letters and said that since decision has already been taken we for the time being may held action in abeyance. AOP immediately intervened and said that air headquarter in that case will go ahead with holding of the scheduled board of promotion in Feb. and March, 2004 based on old policy and a view can be taken about the new policy after the final decision in these two court cases. I stated that new policy is already in place. There is no old policy based on which any promotion can be held. ASG told AOP that there is no urgency to hold the board of promotion and what he meant by holding action in abeyance was that implementation in terms of holding board etc. may be held in abeyance. AOP asked what will happen beyond March 31, 2004 ASG said that implementation cannot be withheld and after March 31, 2004 action as per new policy can commence.

Para 5 "Thereafter the discussion shifted to the affidavit to be filed in the High Court. CGSC mentioned that with regard to application of promotion policy to Masand's case phrase used in the affidavit should be that 'he was considered as per the policy' instead of "as per existing policy" because the later formulation would immediately convey the meaning that change in policy has been affected. The meeting ended with this.

Paragraph 6 "AOP insisted that MOD should issue a letter that the new policy is hereby withdrawn or held in abeyance till further orders. I advised him that there is no logic for such action. MOD's orders are based on a considered decision after a lot of deliberations and MOD cannot issue such orders arbitrarily. In fact the High could would find such actions manipulative, designed to influence the decision and draw extremely adverse inference. AOP further suggested that they would hold the promotion board as per 80:20 formula and apply 95:5 formula also to them to show that there is no difference between the results generated by the two methods. I asked him whether he meant that the board result based on 80:20 formula will be so designed that the would not change if 95:5 formula is applied. He staid the Board proceedings will be objective and no such manipulation of result will be done by the Board. I then posed a hypothetical question to him that in case the results drawn up by application of two formulae are different, which result will air headquarter will recommend to the Govt. for acceptance and on what basis? I gave him the example of Special Promotion Board 2003 for empanelment of Air Marshal where the two formulae produced two distinctly different results. He agreed that such a problem can come up and that he has no answer for it."

14. This is the note recorded by Arvind Joshi, Joint Secretary (G/Air) on 13.2.2004 Thereafter defense Secretary has also written a note that he has received a letter from AOP which is quite contrary to this. If one carefully goes through the note, the least we can observe is that at such highest level instead of placing the truth, ways and means were devised by AOP, Air Headquarters and others who were present in the meeting to conceal thruth. If this could happen at that level, how the rule of law and faith of the Court in the affidavits filed by the Government would survive. We are shocked that ways and means were devised by an officer of the rank of Air Marshal to hide from the Court what was against he Air Headquarters. It was a fit case where we would have ordered appropriate actions to be taken against Air Marshal Menon, who was the AOP. However, we were told that he has retired in September this year. Therefore, we do not contemplate any action except that people in authority must state the truth as it would be evident from the records. It is a matter of sheer anguish and concern for us that Government of India having decided to lower down Board Marks from 20 marks to 5 marks on 27.2.2003 an same was communicated to the Air Headquarters on 1.9.2003. This fact was not communicated to this Court till we perused the records ourselves. As a matter of fact, if this situation would have been brought to our notice on 27.2.2004 before the petitioner retired, the fate of the petitioner would have been different. Even when promotions were made by the respondents particularly of respondents 3 and 4, even then the factum of reduction of Board Marks to 5 from 20 was not brought to the notice of this court and, therefore, on 17.3.2004 the Court had directed that if any promotion was made by the respondent, that shall be subject to the order passed by this Court in this writ petition. Non-disclosure of reduction of Board Marks from 20 to 5 was a deliberate attempt to over-reach and circumvent the orders of this Court. Although petitioner has not prayed for quashing of the promotion policy of 2002, but in other writ petition filed by another Air Vice Marshal T.S. Chhatwal in WP (C) No. 879/2004 on the similar grounds in the said writ petition, petitioner has prayed for quashing the promotion policy fixing 20% Board marks being violative of Article 14 of the Constitution of India. Therefore, we are now dealing the promotion policy on the touchstone of Article 14 of the Constitution of India.

15. In Ashok @ Somanna Gowda Vs. State of Karnataka a petition was filed before the Karnataka Administrative Tribunal challenging the rules on the ground that the percentage of marks for viva-voce at 33.3 were excessive and in violation of the decision of the Supreme Court. The Tribunal dismissed the petition and the appellant aggrieved against the decision approached the Supreme Court. Relying upon Ashok Kumar Yadav Vs. State of Haryana 1985 (4) SCC 414 and Mohinder Sain Garg Vs. State of Punjab it was observed :- "On a direction given by this Court on September 4, 1991 the record of the Selection Committee was produced before this Court at the time of hearing. From a perusal of the marks awarded to the selected candidates it is clear that a large number of candidates have been selected though they had secured much lesser marks than the appellants in the qualifying examination but had secured very high marks in the viva voce out of 50 marks kept for this purpose. Thus it is an admitted position that if the maks for interview were kept even at 15 per cent of the total marks and merit list is prepared accordingly then both the appellants were bound to be selected and a large number of selected candidates would have gone much lower in the merit list than the appellants. In view of the fact that the result of the impugned selections was declared in 1987 and the selected candidates have gone already joined the post, we do not consider it just and proper to quash the selections on the above ground. Further the elections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there is no allegation of any mala fides in the matter of the impugned selections. However, the Rules are clearly in violation of the dictum laid down by this court in the above referred cases and in case the marks for viva voce would have been kept say at 15 per cent of the total marks, the appellants before us were bound to be selected on the basis of marks secured by them in interview, calculated on the basis of converting the same to 15 per cent of the total marks."

16. Similarly in Munindra Kumar and Ors. Vs. Rajiv Govil and Ors. , the Court held that marks for interview and group discussion should not be kept exceeding 10% and 5% of the total marks respectively. The Court observed as follows :-

"The question now which calls for our consideration is as to what percentage of marks may be considered as reasonable for group discussion. The purpose of group discussion is to assess the qualities mental alertness, manner of asserting oneself, showing regard for opinion of others, ability to discuss a subject without losing temper and his initiative, tact and self confidence when confronted with a problem facing a large number of people. However, the group discussion as one of the methods of assessing the suitabillty of a candidate for the post of Assistant Engineer has not been kept by any other State Electricity Boards in India except Andhra Pradesh and Uttar Pradesh. In group discussion the examiner observes the candidates from behind and makes his own assessment and as such the allotment of marks for group discussion cannot be equated with the marks allotted for interview. In the interview every candidate gets a chance and the members of the interviewing Board can in a better manner judge the intelligence, ability and personality of the candidate to determine his suitability for the job. The marks for group discussion cannot be kept at an equal pedestal with the interview. Thus in our view as already held in Mohinder Sain Garg's case [199 (4) JT 704] (supra) 15 per cent marks in all are to be kept for interview, and if the rule making authorities want to keep group discussion also as one of the modes of selection then marks for interview and group discussion should not exceed 10 per cent and 5 per cent respectively of the total marks."

17. If we agree with the argument of the counsel for the respondent that 20% marks were sole criterion for preparing the select panel in the manner it has been done by the respondent then we have to brush aside 80% of the marks on the basis of which the weighted average in the scale of 9 points has come to 406 in the case of the petitioner. That means the petitioner after having obtained and maintained such a high profile by getting 7.6 and above to the scale of 9 points can be upset by the Board mark of 120. This does not sound to logic but also seems to be wholly unreasonable. That means that a serving officer in the Air Force gets over 7.6 graded average in the last 5 years and yet at the time of promotion people who are less meritorious than him can make to the top by by-passing him on the basis of such high marks from 120 Board marks as in the present case. Then in such cases the policy ought to have reflected that the promotion and selection thereto is based on the performance of 20% of the marks totally upsetting his performance which he has demonstrated on the basis of weighted average of 80% of the marks. A very strong case of mala fide was urged before us against the present Chief of Air Staff by the petitioner. Looking at the note of Shri A.P. Pandit, Deputy Secretary on 28.3.2003 recorded vide note No. 50 which is as follows :-

"I have examined AR dossiers of these air officers. A comparison of pen portrait of AVM A.D. Joshi as I have been able to discern shows that both the officers are of comparable merit but the former has an edge over the latter. When AVM Masand has secured 84.6% marks on the basis of 80% weightage of AR gradings there is no real justification for awarding 52.5% marks by the Board on 20% weightage. This variation which is by 32 points depicts that there is no co-relation between the weight or gradings and assessment of the Board. It is further observed that there were some adverse remarks for the year 1997-98 and 1998-99. These remarks were recorded by the present Case (the then Air Marshal) in the capacity of I.O. But the same were expunged by he Case in the capacity of R.O. It appears that the non formation at the stage of recording AR carried on at the back of main of Board members when the air officer was being assessed in the promotion board. We can observe that needle of suspicion is writ large on the selection process. We would be fortified in our view if we take into consideration the nothings of the Ministry of defense regarding this Selection Board. Therefore, the exercise of discretion of grant of 20% Board marks was wholly unreasonable, unfair and not in accordance with the declared policy of the respondent. It has no co-relation with rationality and reasonableness. It smacks of sycophancy as has been observed in the nothings of Ministry of defense. If we see the important traits as has been mentioned in criterion for giving the Board marks, the same are employability, leadership, personality, and potential to hold responsibility for the next higher rank, same finds mention at page 130 of the paper book. 24 traits are evolved from the said factors which is a part of the policy. If one looks at the column of the ARs they are comprehensively covered in more than one place and the AR finally gets covered by these 24 traits with 46 traits in AR form which are at pages 212 and 224. Argument was thus raised that AR grading average qualifies these traits in a more comprehensive, fair and accurate manner as compared to any assessment by individual Board members who may never had any candidate served under them. What was contended before us was that the Board Marks cannot be that disproportionate to the average of the ARs so as to nullify the effect of AR which constitute 80% of the basis for determining the merit of the candidate. Because all the 4 traits which are basis of award of Board Marks i.e. employability, leadership, personality and potential to hold responsibility for next higher rank were more or less are covered on 46 traits on the basis of which AR of an officer is written, therefore while assessing in the Board there may be some difference of such grading but same cannot be as disproportionate so as to knock out the basis on which AR has been written by IO, RO and SRO. It was contended that reports are not mentioned in the said promotion policy on which reliance in additional affidavit was placed by the respondent and if they were not based on any promotion policy then the same was irrelevant material for determining the merit of the petitioner and on this ground alone irrelevant consideration has gone with the Board, the recommendation and preparation of merit list of the Board should be quashed. We find no merit in the submission of the respondents that there was any adverse report which has resulted in such a disproportionate assessment as neither any adverse report was communicated nor action was taken against the petitioner nor the petitioner was put to notice on the basis of such inputs or reports. During the course of hearing we had asked the respondent as to whether any record has been kept of the individual mark assigned by the Board members. We were told that no such record has been maintained by the respondent. As a matter of fact, non-keeping of the record on the basis of which a meritorious officer like the petitioner has not been selected on the basis of 20% Board marks, shows the unfettered discretion of the Board which has been exercised in an arbitrary and irrational manner. Such a sweeping power and unfettered discretion in the hands of the Selection Board pursuant to the policy of promotion is violative of Article 14 of the Constitution of India. Such policy cannot stand the scrutiny of law and same is to be quashed. Judging from any angle in view of the perception of the Ministry of defense as has been recorded in their note sheets reproduced above, whereby taking into consideration that such high percentage of Board marks resulting in arbitrariness and no co-relation between the weight or gradings and the assessment of the Board and holding that such sharp variation may be acceptable at the initial stage of recruitment where candidates from the market are assessed through written examination and interview, any service assessment particularly in the Services it would proved to be counter productive in the sense that the officer secured appreciation in the multi-tier assessment. There is system of gradings crystalised in the shape of numerical gradings of ARs would suddenly put themselves in poor light after assessment by the Board and missing the next higher rank. It is very difficult to maintain a high profile of aggregate of 84.6%, i.e. a very high order at the grading of nine in a year and by using such an arbitrary power of awarding 20 and thereby giving only 52% marks, a meritorious officer from position No. 1 can be made non-suitable for promotion to the post of Air Marshal. Reliance placed by the respondent on Samar Singh's case (supra) has no application in the present case. The judgment of the Supreme Court in that case was in view of para 14 of the Central Staffing Scheme which postulated that post at these levels at the centre filled according to the Central Staffing Scheme are not to be considered as post for the betterment of promotion prospects of any service. The needs of the Central Government would be of the paramount consideration. It was in these circumstances the Supreme Court while interpreting and taking into consideration para 14 of the Central Staffing Scheme held that there were other matters which have to be considered namely, merit, competence, leadership and flair for participating in the policy making process and the need of the Central Government which is the paramount consideration. Even the reliance placed by the learned Additional Solicitor General on K.V. Jankiraman's case (supra) is also not applicable to the facts of the present case as in that case, the employee was found guilty of misconduct and, therefore, the Supreme Court held that the said employee cannot be placed on par with other employees as his case has to be treated differently. In the present case, the petitioner was never found guilty of any misconduct. Similarly, reliance placed by respondent on Badrinath's case (supra) does not help the case of the respondent. In Badrinath Vs. Govt. of Tamil Nadu (supra), Court held :-

"While the courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committee, the executive is also to bear in that, in exceptional cases the assessment of merit made by them is liable to be scrutinised by courts, within the narrow Wednesbury principles or on the ground of mala fides. The judicial power remains but its use is restricted to rare and exceptional situations. We are making these remarks so that courts or Tribunals may not -- by quoting this case as an easy precedent -- interfere with assessment of merit in every case. Courts and Tribunals can neither sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committees. Undue interference by the courts or Tribunals will result in paralysing recommendations of Departmental Committees and promotions. The case on hand can be a precedent only in rare cases."

18. Therefore, the reliance placed by respondent on Badrinath's case (Supra) is also of no use for the respondent as we have held that the promotion made by the Selection Board are based on irrelevant material, same is irrational and arbitrary and without any basis and policy itself suffers from the vires of Article 14 of the Constitution of India. Irrelevant materials have been taken into consideration which vitiates decision making process, thereby vitiating recommendation of the Selection Board. This case reminds us of the prophetic words of Supreme Court in State of Kerala Vs. Kumari T.P. Roshana and Ors. , which are as follows :-

"Had we left the judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the malady -- confusion, agitation, paralysis. The root of the grievance and the fruit of the writ are not individual but collective and while the 'adversary system' makes the judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the court's power in to affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfillment of legality is complementary. This principle of affirmative action is within our jurisprudence under Art.136 and Art.32 and we think the present cases deserve its exercise."

19. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or any other appropriate writ to take affirmative action to give necessary directions where the Government has failed to exercise or have wrongly exercised the discretion conferred upon it or have exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. The same view was expressed by a three judge Bench of the Supreme Court in the case of B.K. Chaturvedi Vs. Union of India and Ors. regarding cases emanating from disciplinary proceedings. Supreme Court observed as follows :

".......The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."

20. In S.L. Chhabra's case (supra) Supreme Court observed that while exercising the power of judicial review, Court should not venture to assess and appraise the merit or the grading of an officer. In that case the Court directed the respondent to consider the case of the petitioner for promotion to the post of Air Vice Marshal with reference to the year ignoring the adverse remarks which were already expunged. In the recent judgment of Supreme Court in Rajendra Singh Kadyan's case (supra) the Court held :-

"Before parting with the case we need to observe that considering the nature of the sensitivity of the posts involved and that each of the officer feeling that he did not get the best of the deal at the hands of the Government or that the members of the force being aware who is the best is not heading them will certainly weaken the esteem and morale of the force. Therefore, the standards to be adopted and applied should be of the highest order so as to avoid such an impression in the force."

21. Even the prophetic word of the Supreme Court that keeping in view the nature of the sensitivity of the post involved and the officer feeling that he did not get the best of the deal at the hands of the Government or the members of the force being aware who was the best is not heading them will certainly weaken the esteem and morale of the force. The petitioner who is a meritorious and highly decorated officer of the Air Force have been denied promotion on account of arbitrariness writ large in giving only 52% of the marks out of 120 without any basis as no records were produced nor were maintained admittedly by the respondent of these marks. In these circumstances what the Court could do? We cannot sit with folded hands to watch injustice being perpetuated or rightful due being denied to a person. The Court will be abdicating its jurisdiction not to grant appropriate relief to the petitioner. As this Court has already made the retirement of the petitioner subject to the outcome of the writ petition and in view of the nothings of the Ministry of defense as recorded hereinabove as well as taking into consideration that the Government of India, Ministry of defense has itself reduced the Board marks from 20 to 5 on 27.2.2003, which was communicated to the Air Force Headquarters on 1.9.2003, although to be applicable for promotion to be made after 1.4.2004 and keeping in view as to how discretion has been exercised by the Selection Board while giving Board marks, it is held that policy gives unfettere discretion to the Board members. Same has been exercised in an irrational, arbitrary and unreasonable manner by the respondents. The promotion policy of 2002 is violative of Article 14 of the Constitution of India and same is hereby quashed. Although, we refrain from issuing any mandamus for appointment of petitioner. We quash the recommendations of the Selection Board held in February, 2003 and quash all the appointments made pursuant thereto. If any appointments have been made after 2002 policy between 2002 to February, 2003, the same will not be affected by this order. Before parting with the judgment we must observe and hope that this kind of action of the respondent is an aberration and should not repeat in the armed forces. Otherwise, the morale of officers and airmen would be adversely affected. In our country these brave officers of the Armed Force are held in high esteem. The treatment meted out to the petitioner is a classic case of indifference, high handedness, arbitrariness, irrationality and amounts to colourful exercise of powers and manipulations to dey promotion to a meritorious officer. There cannot be anything worse for an officer of the Armed Forces to be without his uniform for a period of more than 10 months on account of such arbitrary action.

We direct the respondents to convene a Special Promotion Board within four weeks and re-assess the comparative merit in terms of promotion policy. The question before us is once we have quashed the promotion policy of 2002 insofar as it gives 20% Board marks in an unfettered and uncanalised discretion, what would be the policy under which respondents will consider the petitioner afresh for promotion to the rank of Air Marshal. In view of the fact that the respondents themselves have lowered down the marks from 20 to 5, for the reasons we have stated in the preceding paragraphs, it will be in the interest of justice that the petitioner be also assessed on the same footing. The root of the grievance and the fruit of the writ are not individual but collective and while the 'adversary system' makes the judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the court's power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Therefore, petitioner be considered in terms of the promotion policy which takes into consideration 5% of the Board Marks for the purpose of his selection pursuant to the promotion policy with 5% board marks rest of the parameters of 80% weightage of AR marks for last five years shall remain the same. For that an appropriate record of board marks assigned shall be maintained.

Rule is made absolute.

22. Writ petition is allowed with costs.

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