H.K Serna, C.J:— This appeal has been preferred by the Union of India against the judgment and order dated 14.5.1999 passed by learned Single Judge in SWP No. 219/1998, allowing the writ petition.

2. The argument was finally concluded on 26.2.2003 at the last hour of the court and due to time restraint, the order was kept reserved. We have heard Mr. N.P Kotwal, learned counsel for the appellant as well as Mr. Pramod Kohli, senior counsel for the respondent/writ petitioner at length.

3. In view of the order that we propose to pass in the facts and circumstances of the case, necessary details leading to the filing of the present appeal are obviated.

4. Respondent at the relevant time was holding the post of Brigadier. His case was considered along with his batch-mates of 1966 for promotion to the rank of Major General by No. 1 Selection Board on 11.4.1997 and he was found unfit. It appears from the record of M.S Branch File No. A/47052.GC/1.SB/MS(x)ii, that the recommendation was forwarded to the Ministry of Defence for approval along with computer data sheets CDS) in respect of officers by a letter dated 24.4.1997 It appears that the recommendations was proceeded by Ministry of Defence (MOD) in File No. 8(7)97.D(MS) and by its letter dated 16.6.1997, reversed the decision of the No. 1 selection Board and graded the writ petitioner-respondent as ‘B’ (Fit). All the confidential files have been placed before us namely MOD File No. 8(7)97.D(MS), Board file No. “A/47051/1 SB/97.MS(X) and MS Branch File No. A/47052.GC/ISB/MS(X)ii and we have perused the same. All the files have been marked as ‘Confidential’.

5. The aforesaid decision dated 16.6.1997 has again been reviewed in MOD File No. 8(7)/97.D(MS) by the Ministry of Defence. The proceedings of review has been recorded in Hindi. I have utilized the services of my learned brother, Gupta-J, who is well versed with Hindi in getting translation of the operative portion of the Note sheet dated 1.1.1998 Paragraph 4 of the Note sheet deals with the case of Brig. V.P Malhotra (writ petitioner). The translation version reads:

“Bring VP Malhotra-COAS pointed out that Brig VP Malhotra had been given a large number of ‘7’ points as Battalion Commander and despite the expunction of one grade of ‘7’ points, the other ‘7’ point gradings did not qualify him for promotion. There was no comparison between the record of Brig, VP Malhotra and that of Brig RP Goyal as Brig YP Goyal's profile is far superior to that of Brig Malhotra. COAS, therefore, felt and Defence Secretary agreed that on the basis of the record of Brig VP Malhotra, his was not a fit case for promotion.”

6. The aforesaid note was approved by the Defence Ministry on 7.1.1998 There-after the decision grading the petitioner Brig VP Malhotra as ‘Z’ (unfit) by the Ministry of Defence has been communicated to the Army Headquarter by letter dated 9.1.1998 This letter has an important bearing and we shall be referring to this letter at the appropriate time. It is pursuant to this letter, the letter dated 14.1.1998, impugned in the writ petition has been issued.

7. At the out-set, we may point it out that the writ petitioner has not challenged the proceedings of the No. L Selection Board held on 11.4.1997 in which cases of fresh 1966 batch along with the petitioner has been considered for promotion to the rank of Major General.

8. Before we advert further, we may at this stage, notice a few allegations made by the petitioner in his writ petition, despite of the fact, the selection proceeding has not been challenged.

9. In ground (E) of the writ petition, it is stated as under:—

The selection of these officers namely Brig. Arvind Sharma and Brig. V.S Budwar was primarily on account of their proximity with some of the members of the Board. The Ministry of Defence on consideration of their relative merit, rejected them but subsequently/under some kind of pressure from the Army Headquarters, the said officers were approved and the petitioner herein who was earlier approved was rejected subsequent (underline ours).

10. The officers named in the petition namely Brig Arvind Sharma and Brig V.S Budwar were not impleaded as party respondents in the writ petition. Such wild allegation has been made against them without making them as a party respondent. They are sought to be condemned unheard. At the same time bias of some of the members of the Board towards these two officers has been alleged, without the support of any material particulars and those members of the Board who were alleged to have favoured the officers mentioned therein has not been impleaded as party respondents. This apart, such allegations is not permitted unless the selection process is challenged. By now is well settled proposition of law that allegation of mala fides and bias cannot be made on the basis of surmises and conjectures. It must be based on factual matrix, (see S. Sankatanarayana, IAS v. State of Karnataka, (1993) 1 SCC 54).

11. In the instant case, the writ petitioner finally prayed the following 1998 (4) Crimes reliefs:

“In the premises, it is therefore, respectfully prayed that the Hon'ble court may kindly be pleased to :

(I) Issue writ of certiorari quashing impugned order/letter No. A/47065.R/II/97.MS(X) dated 14.1.1998

(II) By appropriate writ, declare the non-selection of the petitioner as unconstitutional, illegal void-abinitio and non est in the eyes of law.

(III) Command the respondents by a Writ of Mandamus to include the name of the petitioner in the list of approved officers and promote him to the rank of Major General on the basis of first approval accorded by the competent Authority; and (underline ours).

(IV) Any other appropriate writ, order or direction as the Hon'ble court may deem fit and proper, may also be issued in favour of the petitioner.”

12. It is contended at the Bar by Mr. N.P Kotwal, learned counsel appearing for the appellant that the appeal has virtually become infructuous because the writ petitioner based his claim in the No. 1 Selection Board held on 1.1.4.1997 but in the subsequent review selection held in April 2000, petitioner's case was also considered and graded him ‘Z’ (unfit), final review selection was held by the Board in April 2001, grading him as ‘Z’ (unfit). This statement at the Bar has not been controverted by counsel for the writ petitioner/respondent. Petitioner has not challenged the result of subsequent selection. Legally speaking, therefore, the grievance raised by the petitioner in his writ petition, claiming his selection in 1997 has become virtually infructuous.

13. We now proceed to deal with the prayers made in the writ petition one by one.

(a) Prayer No. (I) is with regard to the quashing of the order dated 14.1.1998

The order reads:

“Personal And Confidential Sena Sachiv Shakha/HS(X),

Sena Mukhyalaya,

Military Secretary's Branch,

Army Headquarters,

DHQPO New Delhi-110011.

No: A/47065.SR/II/97.MS(X) Dt. 14 Jan, 1998.

Brig VP Malhotra,”

Brig Adm,

16 Corps,

C/o 56 APO.

Non Promotion To The Acting Rank Of Maj Gen.

1. I am directed to inform you that your case for acting promotion to the rank of Maj Gen was considered by No. 1 Selection Board held on 11 April 1997 as a Fresh-1966 batch case. Their recommendations were, submitted to the Government. I regret, to say that you have not been selected for promotion.

2. Your case will be reviewed at the appropriate time in accordance with the rules on the subject.

(NK Phukan)

Sahayak Sena Sachiv/MS(X)

Kritey Sena Sachiv

for Military Secretary.”

As already said, the impugned order challenged in the writ petition is an off-shoot of the letter dated 9.1.1998, conveying the decision of MOS reversing the earlier order dated 16.6.1997 This order 9.1.1998 is available in MOD File flaged ‘18’. It is extracted:

“Ministry of Defence, Confidential D(MS)

Subject: No. 1 Selection Board-General Cadre.

Reference. CCAS Note No. A/47052.ISB/MS(X), dated 10.12.97

2. The matter was discussed by the Defence Secretary with the COAS on 31.12.97 In pursuance to the above discussion, the matter has been re-examined in its entirety. The RM has now approved the grading ‘Z’ (unfit) in respect of Brig VP. Malhotra, Brig FB Khatri and Brig JS Kanwar and has reconfirmed the grading ‘B’ (fit) in respect of Brig LM Tiwari and Brig Gurditar Singh.

3. AHC may pleas declassify the results in respect of these five officers.

Sd/-(R.K Kalia)

Undersecretary.”

This letter has not been challenged by the petitioner, therefore, no effective relief can be granted by a writ of Certiorari quashing the order dated 14.1.1998

(b) Relief No. (II).

The writ petitioner has not challenged the selection process. No such relief as prayed for could be granted without challenging the selection process.

(e) Relief No. (III).

This relief was asked for on the basis of the earlier order dated 16.6.1.997 communicated by Ministry of Defence which was reversed by another letter dated 9.1.1998 issued by Ministry of Defence as referred to above. The writ petition was filed on 12.2.1998 and at the relevant time, the earlier order dated 16.6.1997, on the basis of which, the petitioner is claiming relief, was not in existence. The letter dated 9.1.1998, reviewing the earlier order and grading the writ petitioner'Z (unfit) was holding the field.

14. Having said so, we now proceed to deal with the view taken by learned single, judge in the impugned order.

15. The learned Single Judge after detailed discussion of the facts of the case and after perusal of the records produced before him which were also made available before us, as referred to above, has come to the following conclusions:

The file also indicates that the name of the petitioner was cleared as per discussion with Secretary of Selection Board but the later Secretary did not agree. An entry in his favour thus came to be made even at Army Headquarters level and at Government level. This shows that at one stage Selection Board as also the Ministry of Defence found the petitioner fit for promotion.

There is another aspect of the matter. Two of the officers were found unfit. On what parameters they were declared fit is not apparent. Two of the cleared officers were found to be border line cases. On the same matter inconsistent view has been taken. Thus if an officer found unfit could be later on empanelled, then the petitioner who was found fit by the Ministry of Defence and at one stage found fit by the Army Headquarters could not be ignored. Petitioner was found to be an officer with better record. This is apparent from the assessment made at the first instance. He was found to have worked in difficult areas. Military Secretary who is also secretary of the selection Board has declared him fit. There is note regarding this on the file. Later Military Secretary appears to have differed. In this situation it can be concluded that petitioner has not been dealt with fairly. From the file it is appeared;” (underline ours)

(i) the Army Headquarters initially selected officers other than petitioner.

(ii) The Government found:

(a) petitioner fit.

(b) two officers were found unfit.

(iii) Army Headquarters did not agree;

(iv) later-on two officers were cleared;

(v) still later two other were cleared.

(vi) petitioner was at one stage cleared by the Army Headquarters as also by the Ministry of Defence.”

As to what transpired between the Army Headquarters and the Ministry of Defence is not being elaborated here. It is, however, clear that the petitioner became a victim in the hard stance between the two i.e Army Headquarters and the Ministry of Defence. Out of seven officers four got empanelled. The petitioner was found fit at one stage by Army Headquarters and the Ministry of Defence. Against his name, fit entry came to be recorded. This was later on cut. He was thus left out for un-explained reasons. The fact that pressure was “being exerted from the top becomes apparent when the file is perused. In the first review, by the Ministry of Defence, the assessment qua the work of the petitioner was found to be better than those who were empanelled. He was said to be an officer with clear profile both in the rank of Brigadier and in the lower rank. The fact that he had commanded Brigades in difficult areas and his performance had been noteworthy was also taken note of. In this very file, there is a remark that the previous Military Secretary had agreed to his being declared fit. As the Government as also the Army Headquarters had cleared the name of the petitioner, then there should have been some valid justification for his non-selection. No valid justification exists on the file. Respondents are, accordingly, directed to take note of their own decisions which decisions were in favour of the petitioner and pick up the thread from the stage where the Army Headquarters and Ministry of Defence were in unison, (underline ours)

The petition is allowed. Let petitioner's case be now considered for empanelment on the basis of decision which was taken in his favour both by the Army Headquarters and also Ministry of Defence level. Let a decision be taken at the earliest. The petitioner would also be entitled to all consequential benefits.”

16. With due respect to the learned Single Judge, the finding recorded by the learned Single Judge was clearly erroneous. The learned Single Judge referred to a note stating that earlier Military Secretary had agreed to found the petitioner ‘fit.’ The said note is available in MOD File No. 8(7)/97.D(MS). The note sheet is dated 2.6.1997 initiated by one R.K Kalia, Under Secretary. The learned Single Judge placed reliance on the side line of note sheet “previous MS had agreed”. The note on the side line indicated above is in red ink and without any initial and it is not a part of the decision making process. It is an un-authorised. The side line note a part of the original note-sheet and it appears to have been inserted subsequently by somebody who is an impostor with oblique motive to favour the petitioner. In our view such serious lapses in an important department like Ministry of Defence calls for detail enquiry. No reliance can be placed on such unauthenticated side line note.

17. The stand of the appellant/respondent consistently is that writ petitioner's grading is ‘Z’ (unfit). At no point of time, the Army Headquarters had ever agreed for grading the writ petitioner as ‘B’ (fit), atleast it is not borne out from the record. There is no written communication bome from the record that earlier Army Headquarter has ever agreed for grading the writ petitioner as ‘B’. Therefore, the finding of the learned Single Judge that at one stage petitioner was cleared by the Army Headquarters as also by the Ministry of Defence is not bome out from the records.

18. The direction of the learned Single Judge, directing the respondents to take note of their own decisions which were in favour of the petitioner from the stage where Army Headquarters and Ministry of Defence were in unison is also clearly erroneous.

As already said, from the record, it appears that there was never unison between Ministry of Defence and the Army Headquarters. Secondly the judgment and order of the learned Single Judge was delivered on 14.5.1999 and at that point of time, the earlier order of the Ministry of Defence dated 16.6.1997 was not in existence before the learned Single Judge. As already said, the order has been superseded by another order dated 9.1.1998 which was clearly available in the record and the same was perused by the learned Single Judge.

19. Apart from what has been stated above, the fact that case of the writ petitioner was subsequently considered in first review selection held in April 2000 and graded ‘Z’ and in final review-selection held in April 2001 and graded ‘Z’ would negate the contention of the writ petitioner that his non-selection in No. 1's Selection Board held on 11.4.1997 was erroneous.

20. Mr. Kohli persuaded us to examine the inter se merit of the writ petitioner qua the other candidates. In this connection, he has referred to the service profile of the writ petitioner and submit that the case of the writ petitioner was erroneously graded. We are not at all persuaded by this submission, firstly, as already said, the petitioner has not challenged selection process; and secondly it is not the function of the court to hear appeal over the decision of the Selection Committee and to scrutinize the relative merit of the candidates (see Dalpat Abasaheb Solunke etc. etc. Appellant v. Dr. B.S Mahajan, etc. etc., Respondents, (1990) 1 SCC 305 : AIR 1990 SC 434) : [1990 (1) SLR 849 (SC)]. Lastly, it is contended by Mr. Kohli, that under the provisions of Regulation 108 of the Army Regulations, the Central Government has no power to review its earlier decision. As already said, the order dated 9.1.1998, reviewing the earlier order dated 16.6.1997 has not been challenged, therefore, this contention is not available to the writ petitioner. Mr. Kohli, however, refers to us the provisions of Regulation 108(e) which reads:

“108. (a) to (d) xxx

(e) The Central Government or COAS have the inherent power to modify, review, approve with variation or repeal recommendations of the Selection Board.”

21. According to Mr. Kohli, the Central Government has no power to review its own order. In our opinion, this submission is well misplaced. In our view the inherent power to review is encompassed within it the power to review its own order, in absence of the provisions to the contrary.

22. For the aforesaid reasons, this appeal is allowed and the judgment and order dated 14.5.1999 passed by the learned Single Judge is set aside. The writ petition filed by the petitioner stands dismissed. No order as to costs.

23. Appeal allowed.