Read Full Ruling of Armed Forces Tribunal Regional Bench Lucknow In Review Application No 19 of 2015 Major General RS Rathore Vs Major General NK Mehta

Review Application No 19 of 2015 Major General R.S.Rathore
A.F.R.
RESERVED
Court No.3
ARMED FORCES TRIBUNAL, REGIONAL LUCKNOW
REVIEW APPLICATION No. 19 of 2015
 Wednesday, this the 17th day of February 2016
Hon’ble Mr. Justice D.P. Singh, Member (J)
Hon’ble Air Marshal Anil Chopra, Member (A)
Major General RS Rathore s/o late Ram Singh, presently posted as
Deputy Commandant and Chief Instructor, College of Material
Management, Jabalpur (presently at Lucknow).
-----Applicant
Ld. Counsel for the: Shri S.S. Rajawat & SS Pandey
Applicant Advocates.
In Re:
Original Application No. 255 of 2012
Brig. N.K. Mehta, VSM (IC-38397F) (Now Maj General)
Son of Late G.K. Mehta,
R/O. 3, Swarg Marg, Mathura Cantt, (U.P.)
 ----- Applicant-respondent
Vs.
1. Union of India, through the Secretary, Ministry of Defence,
Government of India, New Delhi.
2. The Chief of the Army Staff, Integrated Headquarters of Ministry of
Defence (Army), South Block DHQ, Post Office New Delhi.
3. The Military Secretary, Military Secretary’s Branch, Integrated
Headquarters of Ministry of Defence (Army) South Block. DHQ, Post
Office New Delhi.
4. Major General P.V.K. Menon VSM (Retired), Bungalow No. 86,
K.K. Birla Lane, Lodhi Estate, Lodhi Road, New Delhi 110 003.
 ……..Respondents
Ld. Counsel for the: Shri Ankur Chhibar & R. Chandra,
Advocates for respondent No. 1 and Shri Sunil Sharma
 assisted by Col NK Ohri, MS Branch, IHQ of
 MoD (Army), New Delhi & Lt Col Subodh Verma,
 OIC Legal Cell.


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 Review Application No 19 of 2015 Major General R.S.Rathore
ORDER
Per Justice Devi Prasad Singh
1. This is an application under Section 14 (f) of the Armed
Forces Tribunal Act (for short the Act) read with rule 18 of the
Armed Forces Tribunal Procedural Rules, 2008 (in short the
Rules) for review of order dated 30.10.2012 passed by the
Tribunal in O.A. No. 255 of 2012.
2. We have heard Shri S.S. Rajawat, Ld. counsel for the
applicant, Shri Ankur Chhibbar, Ld. Counsel for applicant-
respondent No. 1 and Shri Sunil Sharma Ld. Counsel for Union
of India assisted by OIC Legal Cell.
3. The applicant and applicant-respondent No. 1 belong to
the same batch of Army Ordnance Corps (AOC) inducted on
22.12.1979. Both have been serving in the organization for the
last 36 years at different places in different capacities.
Admittedly, applicant is senior than applicant-respondent No. 1
and was promoted to the rank of Brigadier as part of 1979
batch. Names of both of them came up for consideration for
promotion to the rank of Major General on 23.10.2011 by
Number 1 Selection Board (No. 1 SB). Admittedly name of the
applicant was approved but it appears that on account of
adoption of “sealed cover procedure” on account of pendency
of court of inquiry, in the light of judgment in the case of Union

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 Review Application No 19 of 2015 Major General R.S.Rathore
of India & ors vs. K.V. Jankiraman & ors, (1991) 4 SCC 109.
After receipt of recommendation, the Government took a
decision to withhold the result by an order dated 28.10.2011.
For convenience sake order dated 28.10.2011, copy of which is
on record is reproduced in its entirety as under :-
“Ministry of Defence
D (MS)
Sub : No. 1 Selection Board held on 13-14 Oct 2011—
AOC
Ref: AHQ Note PC No A/47053/1SB/AOC/MS (X) dated
28.10.2011.
2. The Competent Authority has approved the
recommendations of the Board subject to the following
changes :-
(a) award of grading ‘B’ (Fit) in respect of IC-
38381 Brig RS Rathore be withheld during the pendency
of the DV ban and the case be resubmitted, thereafter.
(b) revision of grading in respect of Agenda No. 3
Brig NK Mehta from ‘Z’ (Unfit) to “Withdrawn” and to
consider his case afresh after setting aside the
assessments of IO in ACR 09/09-06/10 on technical
grounds.
Sd/-x x x x x x
(R. Sunder)
Under Secretary (MS)
Tele : 2301 3233
PD MS (X), AHQ
MOD ID No. 9 (20)/2011-D(MS) dated 19.04.2012”

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 Review Application No 19 of 2015 Major General R.S.Rathore
4. It has been stated by Ld. Counsel for the applicant that
criteria for promotion is merit cum seniority against specified
vacancy by treating the batch mates which is falling in the zone
of consideration based on comparative assessment of profile as
envisaged in policy dated 16.05.1987. Comparative merit is
assessed keeping the number of vacancies available for
placing of officer falling within the zone of consideration and in
case no vacancy exists before the date of retirement, it shall be
transferred to the batch of next year in terms of policy dated
11.12.1991. It is submitted that an officer granted relief by
Court of Tribunal may be promoted if he meets the bench-mark
of last approved case and to meet out the contingency, vacancy
of next batch may be appropriated to promote such officer
notwithstanding vacancy of his batch which has already utilized
all available vacancies.
5. Since respondent No. 1 Major General NK Mehta was not
empanelled by No. 1 SB against sole vacancy of Major General
he assailed the order of non empanelment with a prayer to be
considered for promotion after impinging CR of the period from
01.07.2009 to 22.06.2010 in the O.A. in question. According to
applicant’s counsel he made prayer in spite of the fact that he
was not meeting the bench mark of the present applicant. It is
further submitted that an officer is to be adequately exercised
(AE) for Brig to Major General (No. 1 SB) on Command Criteria

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 Review Application No 19 of 2015 Major General R.S.Rathore
appointment for 20 months and must have earned two reports
as per MS policies dated 26.09.2003 and 20.03.2013.
Adequately Exercised appointment is mandatory and according
to applicant’s counsel, respondent No. 1 does not fulfill this
criteria. It is also submitted that while preferring the O.A. this
fact was not brought to the notice of the Tribunal by the Union
of India as well as Army and also it has not been taken into
account by the Tribunal while delivering final verdict.
6. The other submission of applicant’s counsel is that the
applicant’s result was only withheld by the Government (supra)
which the applicant-respondent No. 1 and the Army treated it as
withdrawn with intention to proceed afresh of 1979 batch
though before the passing of impugned order in pursuance to
the judgment/order of Principal Bench, Delhi, D.V. Ban was
lifted and promotions to post of Major General was approved.
7. Being aggrieved with the continuance of court of inquiry
the applicant preferred O.A. No. 88 of 2012 in the Principle
Bench Delhi which was allowed by the Tribunal by order dated
29.05.2012, which has been not disputed by the respondents.
The court of inquiry as well as Discipline and Vigilance (DV)
was quashed by order dated 29.05.2012 and in consequence
thereof the applicant moved a representation to declare the
result and promote him to the post of Major General. Approval
was granted on 23.08.2012. In spite of the fact that applicant’s


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 Review Application No 19 of 2015 Major General R.S.Rathore
O.A. was allowed and approval was granted by the
Government; the officers of 1980 batch were promoted on
20.06.2012, but the applicant’s matter was kept pending. The
result was not declared in terms of Jankiraman’s case (supra).
Order of Tribunal and approval (supra) was not brought into the
notice of the Tribunal at Lucknow, though at that time matter
was pending at Lucknow.
8. Case of applicant-respondent No 1 was again considered
as special review fresh case on the order of MOD but since he
was found below the applicant on merit, once again applicant-
respondent No. 1 was declared unfit and not empanelled for
promotion to the post of Major General. The officers of 1980
batch were promoted. Subject to above the applicant-
respondent No. 1 filed O.A. in the Tribunal at Lucknow in July
2012 without disclosing the outcome of applicant’s case
(supra). In the meantime on 21.08.2012 result of applicant was
declassified and he was approved as 1979 batch AOC against
sole vacancy of Major General being at the top of the merit list.
Now next promotional avenue for applicant is post of Lt Gen.
Subject to above applicant-respondent No. 1 had preferred
Original Application No. 255 of 2012 and claimed the following
reliefs:-
“1) The Hon’ble Tribunal may be pleased to direct
the respondents to produce the entire record of the

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 Review Application No 19 of 2015 Major General R.S.Rathore
proceedings including all relevant files and noting of No. 1
Selection Board held on 13/14 October, 2011 and 25
April, 2012, the annual confidential report of the applicant
covering from the period from 01/07/2009 to 22/06/2010
initiated by respondent No. 4 and the relevant file of MS
Branch dealing with the correspondence of the applicant
relating to the impugned annual confidential report for its
perusal.
II) The Hon’ble Tribunal may be pleased to
quash the impugned annual confidential report covering
period from 01/07/2009 to 22/06/2010, the proceedings of
No. 1 Selection Board held on 25 April, 2012 so far as it
related to the consideration of the applicant for promotion
to the rank of Major General and the letter dated 20 June
2012 issued by respondent No. 3 (Annexure-A/1).
III) The Hon’ble Court may be pleased to issue
the directions to the respondents to consider the case of
the applicant for promotion to the rank of Major General
afresh without taking into consideration the impugned
annual confidential report for the period from 01/07/2009
to 22/06/2010 as a fresh case of 1979 batch as on 13/14
October, 2011 independently without any benchmark and
thereafter promote him to the rank of Major General w.e.f.
2011 with all consequential benefits including arrears of
salary and seniority etc.
IV) Any other appropriate order or direction which
this Hon’ble Tribunal may deem just and proper in the
nature and circumstances of the case including cost of
the litigation.”

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9. A perusal of the relief claimed by the applicant-
respondent No. 1 shows that he had made prayer not only for
the quashing of the Confidential Report covering period from
01.07.2009 to 22.06.2010 but also made a prayer for quashing
of the proceeding of No 1 SB held on 25.04.2012 to the extent it
relates to consideration of applicant-respondent No. 1.
Admittedly there was only one post of Major General against
which the applicant was selected by No. 1 SB and the result
was withheld by Government in view of Jankiraman’s case
(supra). At the face of record setting aside the result of No 1
SB was adversely affecting applicant’s career, more so, when
the order has been implemented and the applicant was
promoted on the post of Major General after judgment of
Principle Bench of the Tribunal at Delhi (supra).
Though the applicant has alleged mala fide on the part of
respondent’s in delaying implementation of Principal Bench
Tribunal’s judgment, that too after filing of Execution Case,
resulting in loss of almost 10 months, but that aspect of the
matter is not necessary to be considered at the stage of
disposal of Review Application, being not relevant.
10. A perusal of the order of the Tribunal shows that while
adjudicating the controversy the Tribunal has framed two core
issues as is evident from para 6 of the impugned order which
for convenience sake is reproduced as under :-

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 Review Application No 19 of 2015 Major General R.S.Rathore
“No 1—Whether the impugned Confidential Report
covering the period from 01.07.2009 to 22.06.2010 is
totally invalid on the grounds pleaded on behalf of the
applicant in O.A. and rejoinder affidavit. If so, its impact
qua promotional avenue of the applicant to the rank of
Major General?
No 2—whether there was any bench-mark available
to compare the case of the applicant with 1979 batch vis-
à-vis Brigadier RS Rathore recommended by No 1
Selection Board held on 13-14 October 2011?
(Emphasis supplied)
11. At the face of record while framing core issue No 2, the
Tribunal itself framed an issue to compare the case of the
applicant-respondent No. 1 (Brig N.K. Mehta) with 1979 batch
vis-à-vis Brig RS Rathore, i.e. the applicant for promotion on
recommendation made by No. 1 SB held on 13/14-10.2011. It
appears that the Tribunal inadvertently has not taken note of
the fact that the applicant should have been impleaded as
party/respondent, causing gross injustice in violation of principle
of natural justice. At the face of the record applicant-
respondent No. 1 committed not only substantial illegality but
tried to obtain an order from the Tribunal without impleading the
applicant who seems to be necessary party. While finally
adjudicating the controversy the Tribunal had not only quashed
the Confidential Report covering the period 01.07.2009 to
22.06.2010 but directed the Army/Government to consider case

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 Review Application No 19 of 2015 Major General R.S.Rathore
of applicant-respondent No. 1 as fresh case of 1979 AOC, in
spite of the fact that there was only one vacancy against which
the applicant was selected. Operative portion of order dated
30.10.2012 passed by the Tribunal in O.A. No 255 of 2012 is
reproduced as under:-
“12. Accordingly, we quash the impugned
Confidential Report covering the period from 01.07.2009
to 22.06.2010, the proceedings of No 1 Selection Board
held on 25.04.2012 so far as it relates to the
consideration of the applicant for promotion to the rank of
Major General. We direct the respondents to consider the
case of the applicant for promotion to the rank of Major
General as a Fresh case of 1979 batch of Army Ordnance
Corps independently without any bench-mark. Entire drill
requires to be considered as early as possible preferably
within three months from the date certified copy of order
is made available to Ld. Counsel for the respondents. Till
then one vacancy shall be kept vacant. With this direction
the Original Application is disposed of.”
12. The Ministry of Defence, Government of India filed
Review Application No. 19 of 2012 which was dismissed by the
Tribunal re-affirming the impugned order which appears for the
reason that the material facts which were concealed by the
applicant-respondent No. 1 were not brought to the notice of
the Tribunal.
13. Aforesaid relief was granted directing to keep one post of
Major General vacant, though by that time in pursuance to

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 Review Application No 19 of 2015 Major General R.S.Rathore
Tribunal’s order (Principal Bench) applicant was entitled to hold
the solitary post of Major General, leaving no vacancy for
applicant-respondent No. 1.
Why Government of India and the Army did not bring into
notice of Tribunal the correct fact, is not understandable.
AGGRIEVED PARTY:
14. Applicant’s counsel as well as counsel for the
respondents had submitted written notes and have argued the
case. The first objection raised by Ld. Counsel for the
respondents is that the applicant is not an aggrieved or
necessary party and rightly he was not impleaded in the O.A.
preferred by applicant-respondent No. 1. It is submitted that
since he was not a party, the review is not maintainable.
15. On the other hand counsel for applicant submits that
applicant was a necessary party since on the sole vacancy
being senior only the applicant could have been promoted and
not the applicant-respondent No. 1 since promotional avenue is
considered on the basis of comparative merit of the candidates
falling within the zone of consideration and there were only two
candidates, i.e. the applicant and the applicant-respondent No.
1 who does not qualify because of only one CR. Thus the
applicant was not only necessary party but also an aggrieved
party. It is submitted by applicant’s counsel that the applicant

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 Review Application No 19 of 2015 Major General R.S.Rathore
in the review application categorically stated that since the
applicant is affected by the judgment/order of the Tribunal, the
order requires to be reviewed. In counter affidavit dated
08.02.2016 respondent Government has raised the question
with regard to two CRs as command report and in turn thereto
non eligibility of the applicant-respondent No. 1 but it has not
been considered.
16. Hon’ble Supreme Court in the case of Jasbhai Motibhai
Desai vs Roshan Kumar, Hazi Bashir Ahmad reported in AIR
1976 SC 581 held that expression “aggrieved person” denotes
an elastic, and to an extent, an elusive concept. It cannot be
confined within the bounds of a rigid, exact and comprehensive
definition. English Courts have sometimes put a restricted and
sometimes a vide construction on the expression “aggrieved
person”.
In the case of P. Lal vs Union of India & Ors reported
in (2003) 3 SCC 393 their Lordship of the Supreme Court have
held that a “person aggrieved” means a person who has
suffered a legal grievance that is a man who has been
wrongfully denied of something or to whom something has
been refused wrongfully.
17. Undoubtedly, in case contention of applicant is accepted
(which is subject matter of argument on merit) then it may

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 Review Application No 19 of 2015 Major General R.S.Rathore
safely be held that applicant-respondent No. 1 had derived
benefit wrongly from the order of the Tribunal, an order which
could not have been given.
18. It has been established by law that a person shall be
aggrieved by an order or judgment and may be held to be
aggrieved if his or her pecuniary interest is directly affected by
the adjudication or may be divested from such right. In the
present case though it has been stated that no harm will cause
to the applicant, but keeping the pyramidical structure of the
Army and the fact that there was only one post of Major
General, it appears to be correct that the applicant may suffer
from further promotional avenue may be affected in case a
person not qualified is given benefit/placed in the same zone of
consideration with regard to future promotional avenue.
Accordingly the applicant seems to be an “aggrieved party” and
he has right to prefer review application since order was passed
by the Tribunal without impleading the applicant as respondent
and in consequence thereof the applicant could not get
opportunity to submit his case.
NECESSARY PARTY:
19. The second objection raised by respondent’s counsel is
that the applicant is not a necessary party. From the pleadings
of the O. A. as well as order passed by the Tribunal, which is

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 Review Application No 19 of 2015 Major General R.S.Rathore
subject matter of review, it is evident that a prayer has been
made by applicant-respondent No. 1 and the same has been
allowed to the affect that applicant-respondent No. 1 be
considered (supra) again without any bench-mark ignoring the
fact that a candidate (applicant) was selected and available in
view of proceedings of No. 1 SB held on 25.04.2012. The
Tribunal has not taken note of the fact that there was only one
vacancy against which applicant was selected and result was
kept in seal cover in view of the Jankiraman’s case (supra)
and belatedly the applicant was promoted on the post of Major
General in compliance of the order of Principle Bench at Delhi.
The directions to ignore bench-mark seems to be in violation of
policy meant for the purpose which may be discussed
hereinafter.
20. There being only one vacancy and respondent being not
qualified could not have been promoted to the post of Major
General by ignoring the bench-mark, that too in the teeth of
applicant’s selection on said post. The result was only withheld
which means it was kept in suspension in seal cover till
completion of court of inquiry (supra). It is well settled law that
where a person duly selected by the commission has not been
impleaded as respondent though he is necessary party then, in
such a case no order adversely affecting such person can be
passed behind his back. (vide; Prabodh Verma Vs. State of

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 Review Application No 19 of 2015 Major General R.S.Rathore
U.P. AIR `1985 SC 167; Ishwar Singh Vs. Kuldeep Singh
1995 Supp (1 SCC) 179; Bhagwanti Vs. Subordinate Service
Selection Board, Haryana, 1995 Supp 2 SCC 663; Central
Bank of India Vs. S Satyam, (1996) 5 SCC 419: J. Jose
Dhanapaul vs. S Thomas, (1996) 3 SCC 587; Arun Tiwari vs.
Zila Manaswavi Shikshak Sangh, 1997 AIR SCW 4310;
Azhar Hasan Vs. District Judge Saharanpur, (1998) 3 SCC
246; Ram Swarup Vs. SN Maira, AIR 1999 SC 941; SL
Chandrakishore Singh Vs. State of Manipur, (1999) 8 SCC
287; Riazul Usman Gani Vs. District & Sessions Judge
Nagpur, AIR 2000 SC 919; Nirmala Anand Vs. Advent
Corporation (P) Ltd, AIR 2002 SC 3396; MP Rajya Sarkari
Bank Maryadit Vs. Indian Coffee Workers’ Co-operative
Society Ltd., AIR 2002 SC 3035 Ram Rao vs. All India
Backward Class Bank employees welfare association, AIR
2004 SC 1459 and Tridip Kumar Dingal Vs. State of West
Bengal (2009) 1 SCC 768.
21. In view of above the applicant was necessary party and
why he was not impleaded by applicant-respondent No. 1 and
the Tribunal could not take note of it is not understandable,
more so, when from the core issue framed by the Tribunal and
the relief prayed by applicant-respondent No. 1 in the O.A.
(supra) at the face of record shows that the Tribunal has
considered the subject matter of applicant’s selection vis-à-vis

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applicant-respondent No. 1 by No. 1 SB and allowed the O.A.
against sole vacancy against which the applicant was selected
by No. 1 SB. The Government and Army not brought into notice
of Tribunal the Principal Bench judgment/order is serious lapse
on the part of the respondents.
CONCEALMENT OF FACTS:
22. It is not disputed that two columns of the CR were
unfilled. Inviting attention of policies dated 26.09.2003 and
20.03.1913 (para 9) it is submitted by applicant’s counsel that
since one of the report criteria of respondent No. 1 was set
aside and since no longer he remains AE, he was not entitled
to be empanelled.
23. It is stated that criteria of AE was very well in force in view
of policy dated 26.09.2003, a copy of which has been placed on
record in affidavit dated 04.01.2016. It is submitted that this
fact has been concealed by the respondents from the Tribunal.
It is further submitted that the revised extract with regard to two
unfilled CR was sent to respondent No. 1 on 26.09.2010, but
the respondent had not disclosed it in the O. A. While filing
counter affidavit the Government/Army has specifically pleaded
this fact in para 2 of the counter affidavit. In the counter
affidavit it has also been stated that the applicant has been duly
recommended by the Selection Board followed letter of

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approval by the competent authority. It has also been stated
that DV ban was also lifted. This fact is evident from paras 2
and 3 of the counter affidavit under the head “preliminary
objection”, but the Tribunal has failed to take note of the fact
that against sole vacancy no order could have been passed in
favour of applicant-respondent No. 1 since attention seems to
be not invited. The substantial illegality/error seems to be
apparent from the face of record. The affidavit was filed on
11.08.2012.
24. It shall be appropriate to reproduce relevant portion from
the policy dated 26.09.2003, to quote:-
“Promotion on Comd/Staff Appts.
6. Those offrs who are moved fromComd
prematurely and have not earned two CRs in Comd, or
are posted on promotion to Staff appts, may be
considered for further promotion in staff appts only,
provided they have earned min two CRs. Which could be
in criteria/non criteria appts. To be considered for
promotion in Comd assignments, an offr must have
earned min two CRs in criteria appts,
7. This letter supersedes the following policy letters :-
(a) Appx C to Army HQ,MS Branch policy letter no.
04560/1/MS Policy dt 27 Jun 96.
(b) Army HQ,MS Branch policy letter No. 04560/1/MS Policy
dt 01 Jul 03.”
(Emphasis supplied)

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Aforesaid condition has been reiterated in Policy dated
20.03.2013 in Para 5 with fresh opportunity to complete criteria
in para-9, to become AE, only then officer shall qualify to be
considered for promotion to the rank of Major General. It has
not been considered by the Tribunal or not specifically pressed
and brought on record by respondents.
25. While passing the impugned order the Tribunal has
recorded finding that the result of the applicant was cancelled.
The Tribunal has observed as under :-
“In the rejoinder affidavit, it is pleaded that Court of
Inquiry against Brig Rathore was quashed on technical
ground and allegation against him are still intact. Be that
as it may, but it is clear that on 25.04.2012 there was D.V.
Ban against Brig Rathore. The applicant was considered
for promotion to the rank of Major General as Fresh
(Withdrawn) case on 25.04.2012 for the lone vacancy of
1979 batch. Till then Brig Rathore was not approved for
promotion. His case was kept pending for long and it is
submitted on behalf of the applicant that Brig Rathore was
involved in a disciplinary case even then respondents
awaited for his exoneration as if the vacancy as if the
vacancy was reserved for him and that such type of
averment from the departmental authorities are
unfortunate.”
26. The Tribunal has committed error apparent on the face of
the record while making observation as extracted above. The
applicant’s Court of Inquiry was quashed and the D.V. Ban was

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removed before the passing of impugned order. His matter was
pending to be implemented and later on it was implemented.
The applicant’s case was only withheld, meaning thereby it was
suspended for period of court of inquiry. Opinion of the No. 1
SB selecting the applicant was not withdrawn. The finding
recorded by the Tribunal; on the face of record seems to be
based on facts ignoring the material on record without
impleading the applicant as respondent. By necessary
implication also the applicant seems to be “necessary party”
and no decision could have been taken by the Tribunal in the
absence of applicant that too without taking note of the
judgment/order of Principal Bench, Delhi.
27. Ld. Counsel for applicant-respondent No. 1 has relied
upon the following cases :-
1. Jaswant Singh Lamba vs Hariyana Agricultural
University & Ors, (2008) 5 SCC 656;
2. A Janardhana vs. Union of India & Ors, (1983) 3 SCC
601;
3. V.P. Shrivastava & Ors vs State of M.P. & Ors, (1996)
7 SCC 759;
4. KK Ajit Babu & Ors vs Union of India & Ors, (1997) 6
SCC 473; and
5. Commissioner of Central Excise Belarpur, Mumbai
vs. RDC Concrete (India) Private Ltd., (2011) 12 SCC
166;

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6. Rajesh Kagra & Ors vs. State of Madhya Pradesh &
Ors (2010) 12 SCC 139.
28. In the case of Jaswant Singh Lamba (supra) the
question related to seniority while considering the question with
regard to locus standi, Hon’ble Supreme Court held that only
because second seniority list was published in the same year
and petitioner therein submitted representation it could not be a
ground for unsettling the settled position. The judgment seems
to be passed on facts and circumstances not applicable in the
present case.
29. The case of A Janardhana (supra) also relates to
seniority where in representative capacity certain persons were
impleaded and the Hon’ble Supreme Court held that it is not
necessary to implead applicant in person. This case also does
not apply to the facts and circumstances of the case on hand.
30. The case of V.P. Shrivastava (supra) is matter relating to
inter se seniority between direct recruits and ad hoc promotees
and relates to determination of seniority of ad hoc promotees. A
perusal of para 14 relied upon by Ld. Counsel for the
respondents does not seem to be applicable to the present
case. In that case the petitioner had not challenged the
appointment of promotees and only the procedure provided by
the State with regard to determination of seniority was in
question.

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31. The case of K.K Ajit Babu & Ors relates to question of
locus standi wherein order 47 CPC has been dealt with
decision of Central Administrative Tribunal (CAT) was
challenged. The Hon’ble Supreme Court allowed the review
holding that unless order is reviewed or appealed against, shall
attain finality. In the absence of any statutory provision no
review can be filed. The facts of the case of KK Ajit Babu &
Ors (supra) is not applicable in the present case.
32. In the case of Mahanagar Telephone Nigam Limited vs.
State of Maharashtra & ors, (2013) 9 SC C 92, the
controversy before the Hon’ble Supreme Court was that in case
a person does not approach the Court clean hand, then
whether some relief may be granted to him? Their Lordships of
Hon’ble Supreme Court held that a person who has not
approached the Court with clean hands concealing material
shall not be entitled to any relief from the Court.
FRAUD:
33. In Dalip Singh vs. State of U.P.,(2010) 2 SCC 114, the
Hon’ble Supreme Court considered the question whether relief
should be denied to the appellant who did not state correct
facts in the application filed before the prescribed authority and
who did not approach the High Court with clean hands. After
making reference to some of the precedents, it was observed:

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“9….. while exercising discretionary and equitable
jurisdiction under Article 136 of the Constitution, the facts
and circumstances of the case should be seen in their
entirety to find out if there is miscarriage of justice. If the
appellant has not come forward with clean hand, has not
candidly disclosed all the facts that he is aware of and he
intends to delay the proceedings, then the Court will not
non-suit him on the ground of contumacious conduct.”
34. In Oswal Fats and Oils Ltd vs. Commr (Admn),
(20P10) 4 SCCF 728 relief was denied to the appellant by
making the following observations (SCC pp.738-39 paras 10-
20)
“19. It is quite intriguing and surprising that the
lease agreement was not brought to the notice of the
Additional Commissioner and the learned Single Judge of
the High Court and neither of them was apprised of the
fact that the appellant had taken 27.95 acres land on
ease from the Government by unequivocally conceding
that it had purchased excess land in violation of Section
154(1) of the Act and the same vested in the State
Government. In the list of dates and the memo of special
leave petition filed in this Court also there is no mention of
lease agreement dated 15.10.1994. This shows that the
appellant has not approached the Court with clean hands.
The withholding of the lease agreement from the
Additional Commissioner, the High Court and this Court
appears to be a part of the strategy adopted by the
appellant to keep the quasi-judicial and judicial forums

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 Review Application No 19 of 2015 Major General R.S.Rathore
including this Court in dark about the nature of its
possession over the excess land and make them believe
that it has been subjected to unfair treatment. If the
factum of execution of lease agreements and its contents
were disclosed to the Additional Commissioner, he would
have definitely incorporated the same in the order dted
30.5.2001. In that event, the High Court or for that reason
this Court would have none suited the appellant at the
threshold. However, by concealing a material face, the
appellant succeeded in persuading the High Court and
this Court top entertain adventurous litigation instituted by
it and pass interim orders. If either of the courts had been
apprised of the fact that by virtue of lease deed dated
15.10.1994, the appellant has succeeded in securing
temporary legitimacy for its possession over excess land,
then there would have been no occasion for the High
Court to entertain the writ petition or the special leave
petition.
20. It is settled law that a person who approaches
the court for grant of relief, equitable or otherwise, it is
under a solemn obligation to candidly disclose all the
material/important facts which have bearing on the
adjudication of the issues raised in the case. In other
words, he owes a duty to the court to bring out all the
facts and refrain from concealing/ suppressing any
material fact within his knowledge or which he could have
known by exercising diligence expected for a person of
ordinary produce. If he is found guilty of concealment of
material facts or making an attempt to pollute the pure
stream of justice, the court not only has the right but a
duty to deny relief to such person”

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 Review Application No 19 of 2015 Major General R.S.Rathore
35. In view of above, we sum up the material concealment of
facts (fraud) apparent on the face of record by either side
(applicant-respondent No. 1 as well as the Ministry of Defence,
as follows:
(i) There is only one post of Major General. The
applicant was selected by No 1 SB as officer of 1979
batch but the implementation was withheld in view of
Jankiraman’s case (supra) by the Government. The
respondent Army as well as the Government of India
treated the result in view of Jankiraman’s case (supra)
as cancelled one and incorrectly placed material before
the Tribunal;
(ii) Since there is only one post of Major General,
hence in view of judgment/order of Principle Bench
Tribunal Delhi which was implemented in pursuance of
order of Tribunal in execution case vide approval dated
23.08.2012 no order could have been passed by the
Tribunal on 30.10.2012 against lone vacancy of Major
General for which applicant’s promotion was already
approved. The Army as well as the officers of
Government of India, prima facie, seems to have acted in
collusion by not apprising the Tribunal with the
development which took place with regard to applicant’s
selection. Being one post of Major General, applicant-

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 Review Application No 19 of 2015 Major General R.S.Rathore
respondent No. 1 could not have been promoted on said
post. There is serious miscarriage of justice and
concealment of fact on the part of the respondents.
(iii) The policy dated 26.09.2003 as well as policy
dated 20.03.2013 both require for two CRs (supra). The
Government of India/Army in their affidavit dated
08.02.2016 admitted the requirement of two CRs. In the
absence of two criteria report no order could have been
passed by the Tribunal in violation of the policies (supra)
to consider for promotion of applicant-respondent No. 1.
For the reasons best known to the Government of India
and the Army, the Tribunal was not informed regarding
setting aside of one Confidential Report, which prima
facie makes ineligible the applicant-respondent No. 1 for
promotion to the post of Major General. Prima facie there
appears to be concealment on the part of applicant-
respondent No. 1 in not bringing into notice of the
Tribunal with regard to setting aside one Confidential
Report. Being left with only one criteria report against the
requirement of two CRs for applicant-respondent No. 1
could not have been considered for promotion for
empanelment.
(iv) The Tribunal directed the respondents to
consider the case of the applicant-respondent No. 1 for

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 Review Application No 19 of 2015 Major General R.S.Rathore
promotion to the rank of Major General as a fresh case of
1979 batch of AOC which apparently seems to be against
the policy. Once the applicant was selected and only the
result was withheld keeping in view the pending court of
inquiry finding at the face of record is not only erroneous
but suffers from substantial illegality.
The Tribunal failed to take note that the applicant-
respondent No. 1 was found unfit in Sep 2012 and special
review date back to Oct 2011 wherein the applicant was
over and above applicant-respondent No. 1. Relevant
date for consideration was Oct 2011 and not Apr 2012 as
held by the Tribunal, more so when the applicant’s case
was already approved after setting aside court of inquiry
and lifting of DV ban and after approval for promotion of
applicant no order could have been passed by the
Tribunal to consider applicant-respondent No. 1.
(v) There was only one vacancy of the post of
Major General hence no order could have been passed to
consider for promotion of applicant-respondent No. 1 in
view of settled proposition of law.
(vi) Neither applicant-respondent No. 1 nor other
respondents placed on the record the judgment/order of

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 Review Application No 19 of 2015 Major General R.S.Rathore
Principal Bench Delhi dated 29.05.2012 and approval of
applicant dated 23.08.2012.
36. At the face of record there appears to be collusive act on
the part of respondents in not inviting Tribunal’s attention to
material facts on record as well as concealing material
development and the facts goes to the core of issue. In the
case of Mahanagar Telephone Nigam Ltd (supra) relied by
Ld. Counsel for the respondents their Lordships of the Supreme
Court have declined to condone delay on account of
concealment of fact.
37. From the material on record (supra) it seems to be a case
of commission of fraud and respondents have failed to place
correct material before the Tribunal for the reason best known
to them. Process of law seems to have been abused for
extraneous reasons.
38. Hon’ble Supreme Court in the case of Ram Chandra
Singh vs. Savitri Devi 2003 (8) SCC 319 held that
concealment of fact or misrepresentation of fact amounts to
fraudulent act and is nullity in law. In the case of K Dalmia vs.
Delhi Administration, AIR 1962 SCC 1821 Hon’ble Supreme
Court has held that if the intention with which a false document
is made is to be concealed a fraudulent or dishonest act which
has been previously completed, the intention could not be other

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 Review Application No 19 of 2015 Major General R.S.Rathore
Principal Bench Delhi dated 29.05.2012 and approval of
applicant dated 23.08.2012.
36. At the face of record there appears to be collusive act on
the part of respondents in not inviting Tribunal’s attention to
material facts on record as well as concealing material
development and the facts goes to the core of issue. In the
case of Mahanagar Telephone Nigam Ltd (supra) relied by
Ld. Counsel for the respondents their Lordships of the Supreme
Court have declined to condone delay on account of
concealment of fact.
37. From the material on record (supra) it seems to be a case
of commission of fraud and respondents have failed to place
correct material before the Tribunal for the reason best known
to them. Process of law seems to have been abused for
extraneous reasons.
38. Hon’ble Supreme Court in the case of Ram Chandra
Singh vs. Savitri Devi 2003 (8) SCC 319 held that
concealment of fact or misrepresentation of fact amounts to
fraudulent act and is nullity in law. In the case of K Dalmia vs.
Delhi Administration, AIR 1962 SCC 1821 Hon’ble Supreme
Court has held that if the intention with which a false document
is made is to be concealed a fraudulent or dishonest act which
has been previously completed, the intention could not be other

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 Review Application No 19 of 2015 Major General R.S.Rathore
than an intention to commit the fraud. In the case of State of
Maharashtra vs. Budhikota Subbarao (Dr), (1993) 2 SCC
567 Hon’ble Supreme Court has held that fraud is
misrepresentation by one who is aware that it was untrue with
an intention to mislead the other who may act upon it to his
prejudice and to the advantage of the representer. Affect of
fraud on any proceeding or transaction is that it becomes a
nullity.
39. Even a solemn proceeding stands vitiated if it is activated
by fraud. In the case of S.P. Chengalavaraya Naidu vs.
Jagannath (1994) 1 SCC 1 Supreme Court had held that a
fraud is an act of deliberate deception with the design of
securing something by taking undue advantage of another. In
Baburao Dagdu Paralkar vs. State of Maharashtra (2005) 7
SCC 605 Hon’ble Supreme Court has held that by fraud meant
an intention to deceive; whether it is from any expectation of
advantage to the party himself or from ill will towards the other,
is immaterial.
40. In V Papayya Shastry vs. Government of AP (2007) 4
SCC 221 Hon’ble Supreme Court has held that the judgment,
decree or order obtained by plain fraud on the court, tribunal or
authority is a nullity and non est in the eyes of law. Such a
judgment decree or order passed by the first court or by the
final court is to be treated as nullity by every court, superior or

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 Review Application No 19 of 2015 Major General R.S.Rathore
inferior. It can be challenged in any court at any time, in
appeal, revision, and writ or even in collateral proceedings.
41. In view of A V Papayya Shastry’s case (supra) while
adjudicating the controversy involved in the review the Tribunal
has got right to record a finding with regard to commission of
fraud and nullify the impugned order dated 30.10.2012 and
direct to maintain status quo ante. No person how so high may
be, should be permitted to enjoy office acquired by commission
of fraud even for a day.
42. Much emphasis has been given by Ld. Counsel for the
respondents with regard to power of review with submission
that power of review may not be exercised as appellate forum.
In Thungabhadra Industries Ltd. Vs. Government of
Andhra Pradesh represented by the Dy. Commissioner of
Commercial Taxes Anantapur, AIR 1964 SCC 1372, the
Hon’ble Supreme Court has held as under :-
“A review is by no means an appeal in disguise
whereby an erroneous decision is reheard and corrected,
but lies only for patent error. We do not consider that this
furnishes a suitable occasion for dealing with this
difference exhaustively or in any great detail, but it would
suffice for us to say that where without any elaborate
argument one could point to the error and say here is a
substantial point of law which stares one in the face, and
there could reasonably be no two opinions entertained

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 Review Application No 19 of 2015 Major General R.S.Rathore
about it, a clear case of error apparent on the face of
record would be made out.”
43. While considering the twin grounds with regard to power
of review the Supreme Court has held that the first and
foremost requirement of entertaining a review application is that
the order, review of which is sought (a) suffers from any error
apparent on the face of the record; and (b) permitting the order
to stand will lead to failure to justice (vide Rajendra Kumar vs.
Rambhai, AIR 2003 SC 2095; Green View Tea and Industries
vs. Collector, Golaghat, Assam, (2004) 4 SCC 122 and Des
Raj vs. Union of India, (2004) 7 SCC 753.
In the present case there is not only error apparent on
face of record, but if permitted to stand it shall lead to failure of
justice.
44. Ld. Counsel for the applicant has relied upon the
following cases:-
1. Shiv Dev Singh & Ors vs. State of Punjab & ors,
AIR 1963;
2. S Nagraj & Ors vs. State of Karnataka & Ors,
1993 SCC (4) Suppl. 595;
3. Smt Rajpati Devi vs. Ram Sewak Singh & Ors
AIR 2005 SC 595;
4. BCCI & Anr Vs. Netaji Cricket Club & ors, AIR
2005 SC 595;

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 Review Application No 19 of 2015 Major General R.S.Rathore
5. Union of India vs. Sube Ram and ors, 1979 (9)
SCC 69.
45. In the case of Shiv Dev Singh & Ors (supra) Hon’ble
Supreme Court has held that court in its inherent power may
prevent miscarriage of justice or to correct grave and palpable
errors committed by it which affected the interest of person who
were not made parties before it to the proceedings.
In S Nagraj & Ors (supra) Hon’ble Supreme Court has
held that court can review its order if it is satisfied that it is
necessary to do so for the sake of justice.
In Smt Rajpati Devi (supra) their Lordships have held
that where the court has failed to consider statement of pivotal
witnesses, it can review its order.
In BCCI & Anr (supra) it has been held that while
exercising jurisdiction of review court has got right to consider
subsequent events to rectify its own mistake.
Union of India vs. Sube Ram and ors (supra) the
Lordships held that subsequent judgment affecting jurisdiction
is open for review.
FINDING:
46. There appears to be no room of doubt that the impugned
order of tribunal suffers from error apparent on the face of
record and requires to be review under Order 47 Rule-1 CPC

32
 Review Application No 19 of 2015 Major General R.S.Rathore
read with rule 18 of the Armed Forces Tribunal Procedural
Rules, 2008, in nut shell, for the following reasons:-
(i) There is material concealment of facts with regard
to service carrier of respondent No.1 as well as
policies dealing with promotional avenue (supra);
(ii) The core issues framed by the Tribunal (supra)
shows that the case with regard to applicant Major
General R.S. Rathore selection as No. 1, 1979
batch vis-à-vis case of respondent No. 1 was
comparatively assessed by the Tribunal and was
adjudicated. Why the applicant was not made a
party is not understandable.
(iii) Relief claimed by the applicant and order passed by
the Tribunal at the face of the record relates to No.
1 SB and Special Board affecting the applicant’s
right with regard to further promotional avenue on
the post of Lt General, more so, when there was
only one post of Major General for next promotional
avenue. The applicant was the only available
qualified candidate since there was only one post.
There is miscarriage of justice while allowing O.A.
No. 255 of 2012 by order dated 30.10.2012; and

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 Review Application No 19 of 2015 Major General R.S.Rathore
(iv) The Government of India as well as the Army had
not brought into notice of the Tribunal that much
before the delivery of impugned judgment/ order,
the applicant was approved for promotion to the
sole post of Major General and no second person
could have been selected in view of only one
sanctioned vacancy. There appears to be deliberate
attempt on the part of certain persons to create
disturbance in the way of applicant by commission
of fraud.
(v) Applicant’s O. A. was decided by the Principal
Bench Delhi (Tribunal) on 29.05.2012 and his
promotion was approved on 23.08.2012 to fill up
sole vacancy of Major General. But this material
factual position was not brought on record, though
the impugned order was passed 30.10.2012.
47. Since the impugned order seems to be outcome of fraud
(concealment of material facts) hence it is liable to be recalled
in view of settled proposition of law (supra) and may not stand
even for a moment causing miscarriage of justice. And once
the impugned order goes, in view of law settled by Hon’ble
Supreme Court in catena of cases (supra) as well as in the
case reported in H.V. Pardasani vs. Union of India, AIR 1985
SC 781, Government of Maharashtra vs. Deokar’s Distillery,

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 Review Application No 19 of 2015 Major General R.S.Rathore
AIR 2003 SC 1216, Amarjeet Singh vs. Devi Ratan, (2010) 1
SCC 417, and A.V. Papayya Sastry (supra), all the
subsequent order, decision or action shall stand vitiated
resulting in restoration of status quo ante with regard to
appointments, selection or promotion done in pursuance of
impugned order of this Tribunal.
In the case of Mohd Sartaj & Anr vs. State of U.P., 2006
(2) SCC 315 Hon’ble Supreme Court upheld the judgment of
High Court to dismiss after fourteen years of the teachers
whose initial appointment was not in accordance with rules and
not qualified for the post.
48. It shall be appropriate to reproduce observations of
Hon’ble Supreme Court in the case of A.V. Papayya Sastry
(supra) before concluding the present order, to reproduce :-
“22. It is thus settled proposition of law that a
judgment, decree or order obtained by playing fraud on
the court, Tribunal or authority is a nullity and non est in
the eye of the law. Such a judgment, decree or order –by
the first court or by the final court—has to be treated as
nullity by every court, superior or inferior, it can be
challenged in any court, at any time, in appeal, revision,
writ or even in collateral proceedings”.
23. In the leading case of Lazarus Estates Ltd. V.
Beasley (1956 1 All ER 341) Lord Denning observed; (All
ER p. 345 C).

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 Review Application No 19 of 2015 Major General R.S.Rathore
“No judgment of a Court, no order of a
Minister, can be allowed to stand if it has been
obtained by fraud”.
“25. It has been said : fraud and justice never dwell
together (fraus et jus nunquam cohabitant); or fraud and
deceit ought to benefit none (fraus et dolus nemini
patrocinari debent)”.
“38. The matter can be looked at from a different
angle as well. Suppose, a case is decided by a
competent court of law after hearing the parties and an
order is passed in favour of a plaintiff appellant which is
upheld by all the court including the final court. Let us
also think of a case where this Court does not dismiss
special leave petition but after granting leave decides the
appeal finally by recording reasons. Such order can truly
be said to be a judgment to which Article 141 of the
Constitution applies. Likewise, the doctrine of merger
also get attracted. All orders passed by the
Court/authorities below, therefore, merge in the judgment
of this Court and after such judgment, it is not open to any
party to the judgment to approach any Court or authority
to review, recall or reconsider the order.
“39. The above principle, however, is subject to
exception of fraud. Once it is established that the order
was obtained by a successful party by practising or
playing fraud, it is vitiated. Such order can not be held
legal, valid or in consonance with law. It is non-existent
and non est and cannot be allowed to stand. This is the
fundamental principles of law and needs no further
elaboration. Therefore, it has been said that a judgment,
decree or order obtained by fraud has to be treated as a

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 Review Application No 19 of 2015 Major General R.S.Rathore
nullity, whether by the Court of first instance or by the final
court. And it has to be treated as non est by every court,
superior or inferior.
49. While parting with the case, we feel that corruption has
crept in every system of the country and pray to Almighty to
impart justice and help the country to recognize merit of the
persons serving Nation instead of extraneous considerations.
50. In view of above, the Review Application is allowed with
cost which is quantified to Rs. 25,000 (Rupees twenty five
thousand) which shall be deposited by respondent no. 1 within
three months in the Registry of Armed Forces Tribunal,
Regional Bench, Lucknow and be remitted to AFT Bar
Association. Order dated 30.10.2012 passed in O.A. No. 255
of 2012 is recalled. The O.A. is restored to its original number.
The applicant shall be impleaded as respondent in the O.A. and
may file counter affidavit within four weeks. Two weeks time
thereafter is allowed to file rejoinder affidavit. The case shall be
listed for peremptory hearing.
Since from material on record, there appears to be
concealment of material facts, respondent No. 1, prima facie,
seems to be not eligible for promotion even to the rank of Major
General, we direct the respondents to maintain status quo ante
forthwith.

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 Review Application No 19 of 2015 Major General R.S.Rathore
51. Let the O.A. be listed for final hearing on 30.03.2016
peremptorily.
52. Let a copy of this order be sent to Secretary, Ministry of
Defence, New Delhi and Chief of the Army Staff within three
days for compliance and necessary action.
53. Review allowed accordingly.
(Air Marshall Anil Chopra) (Justice D.P. Singh)
 Member (A) Member (J)
anb