ORDER 1. Chagrined by the order of "severe displeasure" and non-award of an action rank of Lt. General, the petitioner, Maj. General and since retired on 30th September, 1995, filed this petition under Article 226 of the Constitution of India for the undementioned reliefs :- (a) The Hon'ble Court be pleased to quash and set aside the punishment Order dated 4.4.94 (Annexure - P/19), and direct to the respondents to convene the special board for further promotion to the petitioner to the rank of Lt. General within a specific period., The Hon'ble Court also may direct the restoration of his Original seniority for all purposes including pay and allowances. (b) The Hon'ble Court be pleased to order expunction of the entire assessment made by Lt. General Y.N. Sharma in the ACRs pertaining to the year from 1.7.92 to 31 Jan 93, and if there are any adverse comments low figurative assessment or non recommendations for promotion by any RO, SRO, NSRO after the allegation were laid in August, 91, these be expunged as being biased due to propaganda against the petitioner which was well publicised. (c) As the petitioner is to retire on 30 Sep. 95, it is requested that one vacancy for the rank Lt. General be kept vacant till the final disposal of this petition. (d) The Hon'ble Court he pleased to award to the petitioner the cost of this petition. (e) The Hon'ble Court quash the rejection order of his statutory complaint dated 14.6.95 (Annexure – P/24). (f) That the petitioner knows that the one vacancy of the post of Lt. General is available on 30.6.95 that should be kept vacant for the petitioner till the finalisation of the petitioner case. (g) That the Hon'ble Court may also-consider the judicial review of the selection proceedings. (h) As per the averments of mention by respondent No. 6 if there is any other subjective reports in the record of the petitioner, such reports also be quashed in the interest of justice. 2. "All ambitions are lawful" said Joseph Conard in personal record, "except those which climb upward on the miseries or credulities of mankind". Petitioner maintained that it was lawful to nurse ambition of promotion as Lt. General on linchpin of meritorious and mentionable service extending to about 36 years. Prayer is also made to quash proceedings of 15.9.1995. 3. 2. "All ambitions are lawful" said Joseph Conard in personal record, "except those which climb upward on the miseries or credulities of mankind". Petitioner maintained that it was lawful to nurse ambition of promotion as Lt. General on linchpin of meritorious and mentionable service extending to about 36 years. Prayer is also made to quash proceedings of 15.9.1995. 3. Facts may be stated first, Petitioner was commissioned in the Indian Army in June, 1959. He held prestigious staff and command appointments and earned commendable Annual Confidential Reports, over forty in number. He was awarded Uttam Yudh Sewa Medal (UYSM), second highest award for seniot officers, in recognition of his gallantry and able command of large body of troops in trying conditions. His case for promotion to rank of Lt. General was considered by the Board held on 24th and 25th April, 1992 but was not recommended and approved on 14.9.1992 (Annexure - 'P/1'). Fate did not fluctuate in April, 1993 on first review on ACR for 7/1992 to 1/1993 and in April, 1994 on final review on ACR for 3/1993 to 6/1993. He was, thus, declared thrice as unfit. Against adverse result dated 14.9.1992, he submitted statutory complaint (Annexure'P/2'). Certain allegations became subject matter of Court of Inquiry alleged to be held in breach of Army Rules, 180 and 184. Another Court of Inquiry took place on anonymous letter about operation works of 17 Mountain Division. Respondent No.2 (COAS) passed order of severe displeasure on 4.41994 (Annexure-'P/19') on alleged illegal and invalid second inquiry despite impeccability of petitioner (Annexure- 'P/12'), Petitioner was apprehensive of assessment by Lt. General Y.N. Sharma, that then Central Army Commander and now retired for the period July, 1992 to 31st January, 1993, Statutory complaint against order dated 4.4.1994 was rejected on 14.6.1995 (Annexure'P/24') after presentation of this petition on 25.4.1995. Military Secretary, Gen Ravi Eipe, had a biased mind against the petitioner, Order of severe displeasure and low grading at 5 points (high average) at the hands of Senior Reviewing Officer Lt. Gen. Y.N. Sharma (Retd.) in ACR 711992 to 1/1993. impugned via statutory complaint dated 26th August, 1994 (Annexure- 'P/25'), chogged the prospects of promotion. Partial redress against low grading on 31.7.1995 granted the petitioner an opportunity of being considered by Special Selection Board for promotion before retirement which was due on 30.9.1995. Gen. Y.N. Sharma (Retd.) in ACR 711992 to 1/1993. impugned via statutory complaint dated 26th August, 1994 (Annexure- 'P/25'), chogged the prospects of promotion. Partial redress against low grading on 31.7.1995 granted the petitioner an opportunity of being considered by Special Selection Board for promotion before retirement which was due on 30.9.1995. Special Selection Board, held on 15.9.1995, did not find the petitioner fit for promotion. He thus retired on 30.9.1995 as Maj. General, but the petition is continued. 4. Respondents submitted return and amended return along-with LA. No. 2401/97 on 7.5.1997 in oppugnation. This application was allowed on 4.7.1997 and amended return was taken on record. Respondents averred that order dated 4.4.1994, inflicting punishment of "severer displeasure" (Recordable) by respondent No.2; is legal and valid. The partial redress against assessment by Lt. General Y.N. Sharma was granted and Special Selection Board was consequently convened on 15.9.1995. The order on statutory complaint (Annexure - 'P/24') is proper and sustainable. Proceedings of 15.9.1995 are just and fair. 5. Petitioner filed the rejoinder. 6. On 7.6.1995, petition was directed to be listed for final hearing on 15.9.1995. On 15.9.1995, it was noted that Special Selection Board is scheduled to meet on 18.9.1995 to consider the case for promotion. It was not stated that Board will meet on that day itself i.e. 15.9.1995. It was however, contended that without ignoring censure i.e. order dated 4.4.1994 consideration by Board would be an eye-wash. The Court then fixed the petition on 22.9.1995 with observation that :- "However, it is expected that the Board shall look into the merits of the petitioner's case and his case for promotion should be considered strictly according to his merits and it should not reflect any prejudice or bias on the part of the Members of the Board." 7. On 22.9.1995, the petitioner filed I.A. No: 4571/95 to submit that the meeting of Board, scheduled for 18.9.1995, was purposefully proponed to 15.9.1995 on awareness that petition was listed for hearing on 15.9.1995 and possible quashment of censure dated 4.4. 1994 might tilt balance in favour of the petitioner. Such contention was, however, repudiated by counsel for respondents explaining the alteration of date from 18 to 15 on assembly of officer's due to Seminar at New Delhi. 1994 might tilt balance in favour of the petitioner. Such contention was, however, repudiated by counsel for respondents explaining the alteration of date from 18 to 15 on assembly of officer's due to Seminar at New Delhi. On 29.9.1995, the Court granted liberty to bring factum of change of date to the notice of the Court at the time of final hearing of the case. The Court declined to grant extension beyond 30.9.1995 with observation that "Needless to say that in case the petition is allowed then as a necessary consequence the petitioner shall get the benefits to which he may otherwise be entitled to". 8. The petition continued for about two years after retirement on 30.9.1995. The age of superannuation on rank of Maj. General is less by 2 years vis-a-vis the age of superannuation on rank of Lt. General. In case of promotion, the petitioner would have been due for retirement on 30.9. 1997 from the rank of Lt. General. On 5.8.1997, this Court asked the counsel for respondents to obtain record of Special Selection Board for perusal. 9. I have heard Shri K.G. Maheshwari, learned counsel for the petitioner and Shri B.G. Neema, learned counsel for respondents No.1 to 5 on 8.9.1997. None appeared for respondent No.6. 10. Relevant records of Special Selection Board dated 15.9.1995 and of Union of India (Central Government) are produced for perusal. 11. The counsel for the petitioner has placed reliance on Maj. General W.S. Chona v. Union of India & Ors (Civil Writ Petition No. 4915 of 1994) to contend that subsequent retirement on 30.9.1995 does not come in the way of grant of reliefs, if otherwise found irrecusably. The counsel for the respondents contended that verdict of unfitness by Special Selection Board on 15.9.1995 clinches the issue against the petitioner and this Court does not, as held in 1995 (2) SLR 130 (SC), Maj. General IPS Dewasn v. Union of India and others, sit as appellate authority over proceedings of the Selection Board. 12. Three questions fall for consideration :- (a) Whether order dated 4.4.1994 (Annexure - 'P/19') is liable to be incinerated? (b) Whether proceedings of Special Selection Board dated 15.9.1995 and order of Central Government denying promotion to rank of Lt. General are vitiated particularly. in view of Annexure - 'P/14'? If so, to what effect? (c) Whether any relief is grantable? 13. (b) Whether proceedings of Special Selection Board dated 15.9.1995 and order of Central Government denying promotion to rank of Lt. General are vitiated particularly. in view of Annexure - 'P/14'? If so, to what effect? (c) Whether any relief is grantable? 13. Before appreciating factual matrix, legal position, apart from aforesaid contentions, may be noticed :- (i) The defence services have their own peculiarities and special requirements. In AIR 1989 SC 1393 (Lt. Colonel K.D. Gupta v/s Union of India and Ors.), it is held that: "The defence services have their own peculiar-ties and special requirements. The considerations which apply to other Government Servants in the matter of promotion cannot as a matter of course be applied to defence personnel of the petitioner's category and rank. Requisite experience, consequent ex-poser and appropriate review are indispensable for according promotion and the petitioner, therefore, cannot be given promotions as claimed by him on the basis that his batch-mates have earned such promotions. Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not available." (ii) 'Promotion' is embraced by Article 16 (1) of the Constitution of India. In AIR 1979 SC 429 (The Manager, Govt. Branch Press and another v. D.B. Belliappa), it is laid down that: "According to the principle underlying S.16 of the General Clauses Act, the expression 'appointment used in Article 16(1) will include termination of or removal from service also. The expression 'matters relating to employment' used in Article 16 (1) is not confined to initial matters prior to the act of employment, but comprehends all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment, such as, provisions as to salary, increments, leave, gratuity, pension, age of superannuation, promotion and even termination of employment." (iii) This Court in Misc. Petition No. 2157 of 1993 (IC-10021 K Major General RS Taraqi Dy Commandant v. Union of India and others) passed orders on 8.7.1994 quashing the finding of Selection Board and directing reconstitution of Special Selection Board for promotion on parity with order dated 13.12.1993 passed by Division Bench in Misc. Petition No. 13.01 of 1993 (Brg. K.K. Sood v. Union of India). (iv) This Court in Misc. Petition No. 1280 of 1982 (Lt. Col. Petition No. 13.01 of 1993 (Brg. K.K. Sood v. Union of India). (iv) This Court in Misc. Petition No. 1280 of 1982 (Lt. Col. Maire Venkatramane Nayam v. The Chief of Army Staff, Army H.Q., New Delhi and others) passed orders on 11.1.1995 directing fresh decision on two statutory complaints. 14. In appropriate cases, there has thus been interference on judicial review. 15. The position between an employer and employee is no longer in tenebrosity. Employer's dominion over his employees was in tune with rustic simplicity of by-gone days, but is incompatible with current pattern. Lord Denning put it elegantly in Breen v. Amalgamated Engineering Union, (1971) I All ER 148 and Supreme Court stated in Khudiram's case, (1975) 2 SCR 832 = AIR 1975 SC 550 that in a Government of Laws "there is nothing like unfettered discretion immune from judicial reviewability. Fairness, founded on reason, is the essence of the guarantee epitomised in Article 14 and 16 (1). If the power has been exercised improperly or mistakenly so as to impinge unjusly on legitimate rights on intemsts of the subject, then Courts must so declare. The Courts stand between the executive and the subject alert, alert to see that discretionary power is not exceeded or misused. Lord Atkin highlighted that aspect. Liver Sidge v. Anderson, (1942) AC 206 is instructive and indicator of the amplitude of the power available with the Court. 16. The petitioner is aggrieved by the blur. In bulwark, he elected to vindicate his side in the face of embroilment. Richard Cumberland observed that "It is better to wear out than to rust out". In this exercise, the point, free from conundrum, is whether Annexure -- 'p/19' was unmeritedly foisted and whether this, as feared on 15.9.1995, has vitiated the proceedings of 15.9.1995 being countrary to expectation as, noted in para 6 above ? I shall decorticate to appreciate rival stands. 17. Respondent No.2 is the Chief, not the monarch. Petitioner earned, prestigious medal on his excellent performance. Now near his stage - for promotion on merit-cum-seniority, is it proper to flagellate such a senior officer with punishment like "severe displeasure" which has the potential to mar prospects of promotion and to push junior one, may be a favoured officer, upward? 17. Respondent No.2 is the Chief, not the monarch. Petitioner earned, prestigious medal on his excellent performance. Now near his stage - for promotion on merit-cum-seniority, is it proper to flagellate such a senior officer with punishment like "severe displeasure" which has the potential to mar prospects of promotion and to push junior one, may be a favoured officer, upward? Such a situation, in my view, should not be seen to be born lightly and interests of senior officers should not be put in jeopardy unless conduct compels such a course. In 1987 JLJ 497 (DB) (Jandel Singh v. Union of India & others), it is held that: "Though the second respondent is highest functionary of the Army and the petitioner is an ex--member of the Armed forces (being dismissed from service after conviction), he has to act nevertheless under the Army Act in discharging his duty under Section 182 and as such his actions are not immune to challenge under Articles 14 and 21 of the Constitution as Articles 33 merely insulates legislative acts against judicial challenge." 18. The stage is thus set to examine the validity of the harmful order dated 4.4.1994 (Annexure - 'P/19') 19. Annexure - 'P/19') is as under :- "CONFIDENTIAL DIRECTION OF THE COAS IN THE CASE OF IC--11528 MAJOR GENERAL KULWANT SINGH, DEPUTY COMMANDANT AND CHIEF INSTRUCTOR, INFANTRY SCHOOL, MHOW (M.P.) 1. I have perused the reply of IC-11528 Major General Kulwant Singh to the show cause notices No.B/29186/304/AG/DV--2 dated 11 May 92 and 26 Nov. 92 issued to him. I find his reply to the following averments, contained in the show cause notices ibid, as satisfactory and absolve-him thereof :- (a) Closure of cases of irregularities in 2 BIHAR and 17 BIHAR. (b) Improperly ordering and issuing Administrative Approval for Job S-205. (c) Improperly according approval and giving personal directions on 29 Jan 90 on the proposal of 52 Engr Regt of 09 Jan 90 for expenditure of Rs. 35.751 akhs on carry over works 1990-91. 2. I do not find the reply of the General Officer to the remaining averments as satisfactory and find him blameworthy for his following acts of omission and commission :- (a) Failure in command -function/related to financial irregularities in Headquarters 123 Mountain Bridge CSD Canteen, Commander's Fund and local purchases by 27 Mountain Division Ordnance Unit. 2. I do not find the reply of the General Officer to the remaining averments as satisfactory and find him blameworthy for his following acts of omission and commission :- (a) Failure in command -function/related to financial irregularities in Headquarters 123 Mountain Bridge CSD Canteen, Commander's Fund and local purchases by 27 Mountain Division Ordnance Unit. (b) Failing to exercise effective personal overall supervision over the operational works in the 27 Mountain Division Sector, being a command function in accordance with Headquarters 33 Corps standing instructions for the Management of operational works. (c) Failing to ensure and confirm through the staff that proper and formal handing/taking over between commanding officer 52 Engr Regt and officer commanding Advance Party 109 Engr Regt was done. I Direct that my severe displeasure be conveyed to IC--11528 Maj. Gen. Kulwant Singh, Dy Comdt. & Chief Instructor, Infantry School. Mhow (M.P.) 4. Signed at New Delhi on this Fourth day of April 1994. General Chief of Army Staff. 20. Indisputably, punishment of' 'Server Displeasure" (Annexure - 'P/19') related also to local purchases and supervision over operational works in 27 Mountain Division (Sub-paras (a) and (b) of Para 2 of Annexure - 'P/19') and the petitioner remained in this Division from 27 oct 89 to 17 March 91. Annexure'P/19' is of 4 April 1994 i.e. after three years from the last date of stay in this Division. Allegations manifestly pertained to period before three years. Section 122 of (The) Army Act, 1950 (for short 'Act') bars even trial by a court martial after the expiration of a period of three years from the date of offence. One point that can float is whether an officer can be punished in this manner by respondent No.2 after expiration of period of three years. 21. The other point is that order is on the linchpin of notices Annexure - 'P/3' dated 11 May 1992 and Annexure - 'P/8' dated 26 Nov. 1992, as referred to in Annexure - 'P/19' dated 4 April 1994. Annexure - 'P/3' and 'p/8' are notices to show-cause as to why Censure be not awarded. After consideration of replies to these, "Severe Displeasure", not Censure is awarded vide Annexure - 'P/19'. This is sought to be sustained on the strength of the letter No. 329081 AG/DV/1 date 5 Jan. 1989 and on the contention of grant of reasonable opportunity. Annexure - 'P/3' and 'p/8' are notices to show-cause as to why Censure be not awarded. After consideration of replies to these, "Severe Displeasure", not Censure is awarded vide Annexure - 'P/19'. This is sought to be sustained on the strength of the letter No. 329081 AG/DV/1 date 5 Jan. 1989 and on the contention of grant of reasonable opportunity. Shri Maheshwari has placed reliance on decision rendered by Division Bench of High Court of Jammu & Kashmir in SWP No. 297 of 1992 (IC001044-K Maj. Gen. P.C. Puri v. Union of India and others) to contend that letter (Circular) dated 5 Jan 1989 (supra) is not issued by Competent authority and as such is legally invalid and that 'severe displeasure' is a punishment which is not awardable like this on that basis and is thus liable to be quashed. He has also placed reliance on decision rendered by Division Bench of this Court in Misc. Petition No. 1202 of 1991 (IC-13536 P Brigadier Kranti Kumar Sood v. Union of India and others) to contend that notices Annexure - 'P/3) and 'P/8', mentioning only Censure, are vague and as such Annexure - 'P/19' is in breach of principles of natural justice. In this decision it is held that: "One more thing stares us in the face. That is, non--disclosure of the type of censure which was contemplated to be imposed against the petitioner in the show cause notice. The word used in the show cause notice is censure alone and censure is of two types; severe displeasure to be recorded and a mere displeasure. The latter does not come in the way of officer on whom the punishment is imposed in the matter of his promotion. Whereas severe displeasure to be recorded does come in the way of promotion of' the' concerned officer. The show cause notice is vague on that count also. For the aforesaid reason we find that the order conveying the severe displeasure of the Army Commander passed against the petitioner is vitiated for violation of principles of natural justice. The order, there fore, deserves to be quashed and is hereby quashed. The petitioner has admittedly suffered because of this order in the matter of his promotion." 22. For the aforesaid reason we find that the order conveying the severe displeasure of the Army Commander passed against the petitioner is vitiated for violation of principles of natural justice. The order, there fore, deserves to be quashed and is hereby quashed. The petitioner has admittedly suffered because of this order in the matter of his promotion." 22. On consideration, I find that order Annexure - 'P/19' is unsustainable in law on the ground chronicled below :- (i) It is too vague and does not reflect due application of mind. (ii) It ignores the safeguard contained in Section 122 of the Act. (iii) It is vitiated due to violation of principles of natural justice in that no opportunity of hearing was given against the punishment by Annexure -'P/3' and 'P/8' which related to only 'Censure' and not to 'severe displeasure'. (iv) It is contrary to law as noted above. 23. Statutory complaint has been rejected on 14.6.1995 (Annexure - 'P/24') by one-line order without consideration of Annexure - 1 P/19' vis-v-vis notices Annexures - 'P/3' and 'P/8'. In (1978) 2 SCR 272 (Mohinder Singh Gill v. Chief Election Commissioner, New Delhi), it is held as under :- "Independently of natural justice, judicial review extends to an examination of the order as to its being perverse, irrational, bereft of application of the mind or without any evidentiary backing." Annexure - 'P/24' is without due application of mind, As such, Annexure 'P/24', is also liable to be incinerated. 24. In the result, I quash the punishment of 'severe displeasure' i.e. Annexure - 'P/19' as also Annexure - 'P/24'. 25. I have perused the record of Special Selection Board of 15.9.1995 and the order of Respondent No.1. It was explained in Court that date of 18.9.1995 was retrojected to 15.9.1995 because officers had assembled at New Delhi to attend Seminar. No letter fixing 15.9.1995 is, however, filed. Apprehension of the petitioner at that stage was that there would not be objective consideration and order of punishment would cause the harm. But this Court had expressed expectations" as noted above, that merits should be considered without prejudice or bias. The award of Censure of severe displeasure has been taken into account to reach grading of unfitness for promotion besides over-all profile. But this Court had expressed expectations" as noted above, that merits should be considered without prejudice or bias. The award of Censure of severe displeasure has been taken into account to reach grading of unfitness for promotion besides over-all profile. On such consideration, Appointments Committee of the Cabinet of Central Government has accorded approval to this grading on 18.10.1995 after retirement of the petitioner on 30.9.1995: 27. Indisputably, Special Review in matter of promotion is grantable on the ground of change in profile. The only conflict in stand is that the counsel for the petitioner contended that this gives two chances in terms of letter dated 27 July, 1995 whereas the counsel for respondents No.1 to 5 maintains that only one chance, i.e. special review, is permissible. Such a chance was thereon 15.9.1995. 28. Finding of 15.9.1995 does not show consideration as to the change in profile as such. Moreover if only one chance was available on partial redress via statutory complaint for the period 7/1992 to 1/1993 causing change in profile to that extent, then why it necessary or proper to call it as a Special Review (First) ? Be that as it may, the under noted factors and features are vividly visible: (i) Board is said to have met on 15.9.1995 without such disclosure in Court on 15.9.1995. No letter is filed to show change of date from 18.9.1995 to 15.9.1995. Proceeding is signed by M.S. about whom allegations are in the petition on 16.9.1995 and is countersigned by COAS on 18.9. 1995 whose order Annexure - 'P/19' is challenged. (ii) Proceedings do not show application of mind to change in profile. (iii) Proceedings in any case suffer vitiation due to invalidity of Annexure - 'P/19' and Annexure - 'P/24' as Annexure - 'P/19' has been taken into account. (iv) Case of just and fair consideration is not indicated. 29. The petitioner, with reference to the Court of Inquiry, received the letter on 14 December, 1993 in the nature of show-cause notice. He submitted reply dated 28 December, 1993 (Annexure - 'P/11') stating in detail as to haw the proceedings of Court of Inquiry were prejudicial in nature and vialative of the relevant Army Rules, In the penultimate para of Annexure --. 'P/11' he expressed himself thus: "I seek justice from the COAS and would like to. know haw does a loyal ,decorated General offr. 'P/11' he expressed himself thus: "I seek justice from the COAS and would like to. know haw does a loyal ,decorated General offr. gets back his life long reputation which has been maligned by scandalous, mischievous and motivated false allegations which have hat been proved, but given wide publicity by the author by enorsing copies of allegations to. superior HQS by passing laid dawn channels of command.' 30. In view of the factors and features, documented in Para 28 above, it becomes luculent that the proceedings of 15.9.1995 is vitiated. 31. The inbred question is that an finding Annexure - 'P/19' invalid and an concluding that Special Review an 15.9.1995 is vitiated, what directions are required to. be passed in this petition in regard to. the petitioner who. stands retired an 30.9.1995 due to. non-promotion to the rank of Lt. General which would have permitted him to continue in service till 30.9 .1997. Shri Maheshwari has choosen to came under umbrella of the decision in case of Maj. General W.S. Chona (supra) to. obtain the reliefs, as noted in para 12 of this petition; whereas Shri Neema has opposed the reliefs stating that the Apex Court has granted stay with reference to the aforesaid decision. Shri Neema has not filed the copy of the Special Leave Petition and is unable to contend whether the validity of. the decision is questioned an the ground of retirement or same other grounds. Be that as it may, this Court did observe an 29.9.1995, while refusing the prayer for extension beyond 30.9.1995 that in case the petition is allowed, the petitioner shall get all the benefits to. which he may otherwise be entitled to In view of this observation, binding on the parties, this petition cannot be treated as in-fructuous and petitioner cannot be made to suffer adverse verdict, despite the merits as noted above, an the ground of his retirement, This Court, therefore, proceeds further to. consider the question of reliefs. 32. "Promotion" is covered by Article 16(1) of the Constitution of India as "noted above. Yet no one has an automatic right of receiving promotion. This is more so incase of defence services. Individual capacity and special qualities, relevant to a particular rank, mare so a very high rank like Lt. General, have to be found an the basis of assessment. "Promotion" is covered by Article 16(1) of the Constitution of India as "noted above. Yet no one has an automatic right of receiving promotion. This is more so incase of defence services. Individual capacity and special qualities, relevant to a particular rank, mare so a very high rank like Lt. General, have to be found an the basis of assessment. But the concerning individual has the right of being assessed properly and considered jusly and fairly. This right is, however, found to be unfeigned as already discussed. 33. Punishment of severe displeasure is said to be in regard to alleged acts of period when petitioner was not Maj. General. What is the propriety of conveying displeasure after showing pleasure to promote and to award rank to Maj. General and what is the logic to use it to clag promotion to higher rank ? Moreover, if censure in existence prior to. 15.9.1995 had to cause impediment and adverse consequence was inevitable then what was the charm in unhelpful consideration by the Board and in reiteration of the grading of unfitness? A soldier, in my view, should not retire with feeling of having been wronged by the system. Such a scene calls far serious introspection. Hon 'ble Krishna lyer, 1. graphically described the scene thus: "Law is a means to an end and justice is that end. But in actuality, Law and Justice are distant neighbours; sometimes even stage hostiles. If law shoots down justice the people shoot down the law and lawlessness paralyses development, disrupts order and retars progress. This is the current scene." 34. Injustice, when in sight, needs to be uncinerated. Hon'ble Brennan J., stated in classic terms that – "Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with But injustice makes us want to pull things down." 35. Paul A Freund, writing on Social Justice and the Law, drew attention to an inscription on the wall of The Harvard Law School Library, taken from Justinian's Institutes The percepts of the law are these – ''To live honorably, not to injure another, to render each his due" (Honest vivere, non alienum laeders, sum cuique tribute). 36. System has to be apparent and transparent. 36. System has to be apparent and transparent. It seems that the petitioner got himself lugged into litigation to get his "due" and to free his reputation from unmerited "spot" or "stigma" foisted by punishment of severe displease despite representation and protest that proceedings of Court of Inquiry, leading to such amercement, were contrary to Rules, show-cause notices (Annexures 'P/3' and 'P/8') were different and vague, order of punishment itself was obscure and eventual principles of natural justice and unmerited. He pleaded that such punishment should not mar lawful prospects of promotion. 37. It is different matter that even after obliteration of such punishment, profile of the petitioner may yet fail to make the grade for promotion. But consideration should be just. Points noted in para 28 indicate vitiation and this conclusion is obvious. The consideration in this regard does not tantamount to sitting as appellate authority over proceedings of Selection Board, Law and Justice are not to be distant neighbours. 38. Reputation and honour are vital and dear to individual. Shakaspeare observed that - "The purest treasure mortal times afford is spotless reputation." "Mine honour is my life, both grow in one Take honour from me and my life is done." 39. The essence is that why should there be "spot" on "reputation" and• why "honour" be taken. On that fulcrum, further cry is as to why the General Officer should have been made to retire as Maj. General? The power under Article 226 can be exercised, as held in State of Orissa v. Madan Gopal (1952) SCR 28 and in Fertiliser Kamgar Union v. Union of India, AIR 1981 SC 344 , for two fold purpose, viz. enforcement of (a) fundament rights; and (b) non--fundamental or ordinary legal rights. As held in K. Jagadeesan v. Union of India, AIR 1990 (2) SCC 228 -- "A right to be considered for promotion is a term of service." In Sant Ram Sharma v/s State of Rajasthan, (1968) 1 SCR 111 , it is laid down that: ".......... It is well established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone." 40. It is well established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone." 40. In AIR 1995 SC 44 , Chandra Gupta v/s The Secretary, Government of India, it is held that when promotion is made after expunction of adverse entries, the question of effective date of promotion can, however, be decided only after comparative estimate of merits where merit is the primary factor.• Reconsideration of case is the tune on orchestra. 41. No authority is produced by counsel for respondents No.1 to 5 to hold differently about punishment of Censure as severe displeasure (Recordable). In the ultimate analysis,1 quash, on the grounds stated in paras 22, 23 and 28 above, the order of punishment of "severe displeasure (Recordable)" (Annexure 'P/19') dated 4.4.1994 and order passed on statutory complaint on 14.6.1995 (Annexure - 'P/24') affirming the order, as already directed in para 24 above, making reputation "spotless" as also the grading of unfitness awarded by the Selection Board on 15.9.1995 and the order of approval of such grading by Government of India (Respondent No. 1) via-Appointments Committee of its Cabinet on 18.10.1995 resting also on Annexure - 'P/19' and 'P/24' with further directions as under :- (a) For the purpose of Special Review on the ground of change in profile, as persissible, the order of retirement dated 30.9.1995 from the rank of Maj General shall be treated as under "eclipse" to that limited extent. (b) In case of promotion to the rank of Lt. General, the petitioner could remain in service till 30.9.1997 the appropriate authority shall, therefore, convene and constitute Special Selection Board by 22.9.1997 i.e. before the aforesaid date for Special Review to consider the case of the petitioner for promotion to the rank of Lt. General justly and fairly with due consideration to state of expunction of low points assessment and of mortality of punishment (Annexure - 'P/19') and adverse order on Statutory Complaint (Annexure - 'P/24') (c) In case petitioner is awarded grading of fitness and respondent No.1 accords approval, consequential order, permissible in law, shall be passed. General justly and fairly with due consideration to state of expunction of low points assessment and of mortality of punishment (Annexure - 'P/19') and adverse order on Statutory Complaint (Annexure - 'P/24') (c) In case petitioner is awarded grading of fitness and respondent No.1 accords approval, consequential order, permissible in law, shall be passed. (d) In case petitioner is awarded grading of unfitness again despite change in profile and quashment of Annexure - 'P/19' and 'P/24' and respondent No.1 accords approval to such grading, order of retirement on 30.9.1995 shall become free from eclipse and be treated as revived, effective and valid for all purpose. (e) Petitioner shall be intimated without delay about (c) or (d) above. 42. In my view, such directions are essential to render ''due" to the petitioner as one of the percepts of the law and to create state for petitioner to live honourably without injuring anyone as stated in para 35 above. This petition is thus allowed in part in terms indicated above with costs payable by respondents No.1 to 5. Counsel fee, quantified at Rs. 2,500.00, for each side is allowed, if certified. Respondent No.6 is left to bear his own cost as incurred. Record (two unsealed files, as produced) is returned. 43. Let writ and direction be made issued in these terms immediately. Certified copy of this order be supplied to the parties in 3 days on application and proper charges in view of the directions as contained in para 41 above.