UNION OF INDIA & OTHERS versus COL RAN SINGH DUDEE on 3 July 2018

UNION OF INDIA & OTHERS

v.

COL RAN SINGH DUDEE

(Civil Appeal No. 11009 of 2017)

JULY 03, 2018

[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]

Army Act, 1950 – ss. 83, 39(a) – Selection – Selection fromthe post of Lt. Colonel to the rank of Colonel – On facts, findingsof General Court Martial against respondent-army officer quashed– Reinstatement of respondent – Issuance of directions to theGovernment for payment of all consequential benefit for the saidperiod – Thereafter, respondent promoted to the rank of Lt. Coloneland, also granted time scale promotion as Colonel – However, officerjunior to respondent promoted to the rank of Brigadier –Respondentchallenged the same – Selection Board not find the respondent fit,and was not empanelled – In a subsequent order, Selection Boarddid not find respondent fit to be promoted by selection to the post ofColonel – However, the tribunal found the assessment made by theSelection Board to be perverse and issued directions to theGovernment to constitute a fresh selection Board – Held: Whileannulling the findings and effect of the General Court Martialproceedings, the idea was to confer those benefits which the officerstood denied directly as a result of pendency of such proceedings –Such benefits would be those which are easily quantifiable namelythose in the nature of loss of salary, emoluments and other benefits– But the expression cannot be construed to mean the promotionswhich are strictly on the basis of comparative merit and selectionmust also stand conferred upon the officer – On facts, SelectionBoard considered the matter on merits and found the respondentunfit for selection as “Colonel” – Assessment was cumulative takinginto account the grading as against those six parameters – Actionon part of the Selection Board in relying upon the entry of reprimandwas consistent with Selection Policy and could not be characterizedas incorrect or illegal in any manner – Also there were other factorswhich weighed with the Selection Board – Thus, the tribunal waswholly unjustified in finding the assessment made by the Selection

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[2018] 5 S.C.R.

ABoard to be perverse –Judgments and orders passed by the tribunalset aside.

Allowing the appeals, the Court

HELD: 1.1 While annulling the findings and effect of theGeneral Court Martial proceedings, the idea was to confer thoseBbenefits which the officer stood denied directly as a result ofpendency of such proceedings. Such benefits would therefore bethose which are easily quantifiable namely those in the nature ofloss of salary, emoluments and other benefits. But the expression cannot be construed to mean that even promotions which areCstrictly on the basis of comparative merit and selection must alsostand conferred upon the officer. It is true that as a result ofpendency of the General Court Martial proceedings therespondent was kept out of service for nearly nine years and assuch his profile would show inadequacy to a certain extent. Onthe other hand the Department was also denied of properDassessment of the profile of the respondent for those years. [Para6][108-F-H; 109-A]

1.2 The concept that he must be granted those promotionswhich his batchmates or juniors received and the idea that hemust also be considered for promotions which are strictly basedEon “selection” basis have not been accepted by this Court inK.D. Gupta case. The tribunal therefore, completely erred inpassing the directions in its order.Since the opinion of the LawOfficer was not consistent with the provisions of the relevantrules and the law declared by this Court in K.D. Gupta case, theFDepartment was justified in expressing serious reservations andin generating note. The tribunal, attached undue importance tothe opinion of the Law Officer.[Para 7][109-F-H; 110-A]

1.3 The matter was considered on merits by SelectionBoard which found the respondent unfit for selection as“Colonel”. The matter was analyzed by the Board on six indiciaGor parameters. The assessment was cumulative taking intoaccount the grading as against those six parameters. Admittedly,the respondent was lower in terms of indicia Nos.(ii), (iv) and (v)as against all other three officers, which included one who wasnot empanelled at all. Apart therefrom, the entry of reprimand as H

against indicia No.(vi) also put the case of the respondent in thenegative. [Para 8][110-A-C]

1.4 In terms of the Selection Policy which has been placedon record by the appellants, disciplinary award forms part of theoverall profile of an Officer. Said provision in fact lays down,“character, qualities, disciplinary background and decorationsform an important input to the overall profile of an Officer anddue consideration should be given while assessing border linecases.”The action on part of the Selection Board in relying uponthe entry of reprimand was thus, consistent with Selection Policyand could not be characterized as incorrect or illegal in any manner.In any case that was not the only pointer which weighed with theSelection Board. Even eschewing such entry, the respondent wasstill found to be lower as against three Officers on other threeindicia. Even though one out of those three Officers had faredbetter than the respondent on those three indicia and also didnot have any entry or reprimand, he was not an empanelled Officer.It is precisely for this reason that whether a candidate is fit for aparticular post or not has to be decided by the duly constitutedSelection Committee which has the expertise on thesubject.”[Para 9][110-D-F]

1.5 The overall CR profile of the respondent was betterthan the last empanelled officer. But the respondent was certainlylower on other three indicia or parameters. It is the cumulativeassessment which the Selection Board was expected to and didundertake. Going by the law laid down by this Court, it cannot besaid that the assessment of the Selection Board suffered on anycount. This case is not where irrelevant factors have been takeninto account or relevant factors have been missed out oreliminated from consideration. The Selection Board comprisedof high ranked officials from Indian Army. No malafides have beenand could be attributed to the actions on part of the members ofthe Selection Board. The tribunal was thus wholly unjustified infinding the assessment made by the Selection Board to beperverse. The approach of the tribunal and the assessment madeby it were completely erroneous. The tribunal was also notjustified in awarding costs of Rupees five lakhs to the respondent.The judgments and orders passed by the tribunal are set aside.[Paras 10, 11, 13][110-G-H; 111-A-B, D]

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A1.6 It may be that the respondent was wrongly proceededagainst and punished by General Court Martial. He was alsoawarded sentence of imprisonment and lost out nine years ofservice. The prejudice is quite apparent. However, sympathycannot outweigh the considerations on merit. He has receivedtime scale promotion to the rank of Colonel after having put inB26 years of regular service. But if he was not found suitable forempanelment by way of selection, the matter must end there.[Para 12][111-C-D]

Union of India v. Lt. General Rajendra Singh Kadyan(2000) 6 SCC 698 : [2000] 1 Suppl. SCR 722; DalpatCAbasaheb Solunke v. B.S. Mahajan (1990) 3 SCC 305;Air Vice Marshal S.L. Chhabra, VSM (Retd.) v. Unionof India (1993) Supp 4 SCC 441 : [1993] 3 SCR 669;Surinder Shukla v. Union of India (2008) 2 SCC 649 :[2008] 1 SCR 449; Lt. Col. K. D. Gupta v. Union ofDIndia and Others (1989) Suppl 1 SCC 416 : [1989] 2SCR 370 – referred to.

Case Law Reference

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FCIVIL APPELLATE JURISDICTION: Civil appeal no. 11009 of2017.

From the Judgment and Order dated 17.01.2017 in OA. No. 260of 2016 of the Armed Forces Tribunal, Regional Bench, Lucknow.

WITH

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C. A. No. 5973 of 2018.

Mr. Maninder Singh, ASG, R. Balasubramanian, Prabhas Bajaj,Akshay Amritanshu, Ms. Aarti Sharma, Ms. Sakshi Kakkar, MukeshKumar Maroria, Advs. for the Appellants.

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Respondent-in-person

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. These appeals question thefollowing judgments and orders passed by the Armed Forces Tribunal,Regional Bench, Lucknow.

(a) Civil Appeal No.11009 of 2017 is directed against the Judgmentand Order dated 17.01.2017:

(b) Civil Appeal (Diary) No.40312 of 2017 with an applicationfor leave to appeal is directed against the Judgment and Order dated12.09.2017. Leave to appeal granted.

2. The relevant facts in the present case are as under:- (A) The respondent was initially enrolled in the Indian Army asSowar in 1981. He cleared the examination conducted by Union PublicService Commission in the year 1988 and got commissioned as an Officerand was posted as Second Lieutenant in the Ordnance Corps of theArmy. During his career, he received some commendations andappreciations. However, the respondent was summarily tried underSection 83 of the Army Act, 1950 (hereinafter referred to as the Act) byCommander, 29 Artillery Brigade for the offence of ‘absenting himselfwithout leave’ for 03 days from 27.06.1991 to 29.06.1991. TheRespondent pleaded guilty to the charge under Section 39(a) of the ArmyAct and was sentenced to ‘Reprimand’.

(B) While the respondent was serving as Major in 2004-05, hewas tried by General Court Martial on four charges. The first chargewas under Section 52 to the effect that while the respondent was postedat Saugor between November 2000 and May 2002, he pursued a casefor procurement of 8.64 hectares of land belonging to Government ofMadhya Pradesh for the purposes of building a War Memorial in thememory of late Sepoy Hawa Singh, who was the elder brother of therespondent. The second charge was connected to the first one and wasto the effect that while performing duties as officiating CommandingOfficer he improperly wrote a Demi Official letter on 09.11.2000 to theCollector, Saugor for allotment of the aforesaid land. The third chargewas connected to the second one while according to the fourth chargethe respondent had failed to submit report about the acquisition of saidland in contravention of Army Order 3/S/98.

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A(C) On 16.05.2005, he was found guilty of the first and third chargesbut not guilty of the second and fourth charges and was sentenced to becashiered and to suffer rigorous imprisonment for three years. On21.10.2005, the competent disciplinary authority confirmed the findingsas regards the first, second and fourth charges but did not confirm thefinding on the third charge The sentence awarded by the General CourtBMartial was confirmed with remission of six months out of three yearsrigorous imprisonment. Though the Court of Inquiry relating to the matterin issue was undertaken on 07.07.2001 the trial in respect of said chargeshad commenced on 19.10.2004.

(D) The respondent being aggrieved, preferred statutory complaintCunder Section 165 of the Act. During the pendency of said complaint,selection for promotion to the rank of Colonel of 1988 Batch Officerswas undertaken in August 2006 and appropriate selections were made.Since the respondent, by that time had stood punished in the GeneralCourt Martial, his candidature was not considered.

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(E) As his Statutory Complaint was not considered in due course,the respondent filed a Writ Petition in the High Court of Delhi whichwas later transferred to Armed Forces Tribunal, Calcutta. In pursuanceof the directions issued at the interim stage by the Armed Forces Tribunal,the consideration of the pending Statutory Complaint was taken up andEthe matter was referred to the learned Solicitor General of India for hisopinion. As the opinion given by the learned Solicitor General on01.11.2013 has been extensively quoted and relied upon in the Judgmentsunder appeal, the concluding part of the opinion is extracted hereunder:

“17. Since the first Court of Inquiry was ordered to be convenedFon 07.07.2001, it can be said that the knowledge of the allegedoffence (i.e. fraudulent allotment of land) was gained on or beforesuch date. The Applicant’s trial commenced from 19.10.2004,which is 3 years beyond such date. Thus, in my opinion, theCGM proceedings are barred by limitation.

G18. Even on merits, the finding of the guilt by the CGM is nottenable in view of the fact that even the Ministry is not clear inwhose name the land was allotted, as mentioned above in paragraph12 and that the allotment was even otherwise valid in so far as theMP Government was concerned, as dealt with in paragraph 15.There has been no challenge to the findings arrived at by theHmagisterial inquiry.

19. It is also an admitted fact that the purpose of the allotmentwas only to build a war memorial, which has not been done byvirtue of surrender of the land to the Government. I am alsounable to see any wrongful pecuniary gain. From an overallperspective, the intent of the Applicant cannot be said to besomething which is forbidden by law. It was only to perpetuatethe memory of his brother. Taking all these facts cumulatively, inmy opinion, the findings of the GCM appear to be unacceptable.My view is also confirmed by Note 89 as would be evident fromthe file of Mr. Praveen Kumar (Director AG-I”).”

(F) By Order dated 20.11.2013, the Central Government allowedthe Statutory Complaint preferred by the respondent and directed:- “8. Now, therefore, the Central Government, under the powersconferred under section 165 of the Army Act, 1950 do herebyannul the proceedings of the General Court Martial findings andsentence dated 16[th] May, 2005 and confirmation order dated 21[st]October, 2005 being illegal and unjust and allow the petition filedby IC-47908F, Major Ran Singh Dudee, of 36 DOU. Consequently,the penalty imposed upon IC-47908F Ex Major Ran Singh Dudeeof 369 DOU stands quashed and he is entitled to all consequentialbenefits as admissible under rules on the subject.”

(G) The respondent was thereafter reinstated in service on13.01.2014 and paid all consequential benefits for the entire period. On16.08.2014, the respondent was promoted to the rank of Lt. Colonelwith effect from 16.12.2004. Sometime in January, 2015, an officerwho was junior to the respondent was promoted to the rank of Brigadier.A representation was therefore made by the respondent for grant of all“consequential benefits”. He was principally aggrieved by his non-empanelment for promotion to the rank of Brigadier. Around this timeon 30.06.2015, the respondent was granted Time Scale promotion asColonel, on completion of 26 years of service.

(H) As regards the grievance made by the respondent and hisrepresentation in that behalf, the matter was again referred to the LawOfficer of the Government of India who in his opinion dated 30.12.2015opined that the respondent could not be denied promotion to the rank hisbatch mates and immediate juniors were promoted, that the Governmentof India having directed in the Order dated 20.11.2013 that all AB

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Aconsequential benefits be given to the respondent, the mandatory demandsunder the relevant Rules would stand waived and that the respondentshould be granted the rank of a Brigadier. Serious reservation washowever expressed by the Department which was of the view that nopromotion to the rank of Brigadier could be granted except through themodalities of selection by the Selection Board and an appropriate NoteBwas written in that behalf by the Additional Secretary in the Ministry ofDefence on 03.02.2016. No.3 Selection Board was thereafter constitutedand in the assessment made by said Selection Board on 26.04.2016, therespondent was not found fit and as such was not empanelled.

(I) The respondent being aggrieved filed OA No. 260 of 2016 inCthe Armed Forces Tribunal, Regional Bench, Lucknow questioning hisnon-empanelment in the rank of Brigadier. It was submitted, inter alia,that:

(i) The respondent came from a family of soldiers. Though enrolledas Sowar in the year 1981 by sheer dint of hard work he got theDstatus of a Commissioned Officer in the year 1988. In his postingin Kargil he received COAS Commendation Card. He alsoreceived Letter of Appreciation from General Officer Commanding36 Infantry Division and was recommended for Sena Medal in2002.E(ii) In 1990 he had made complaints against his superiors citingvarious irregularities. Further, sensing threat to his life he hadreported the matter to the Brigadier Commander. Offended bysuch reporting, the respondent was falsely implicated in a Courtof Enquiry which found nothing against him. A first informationFreport was also lodged which was found to be stage managed.On the contrary in the Court of Enquiry, the officers against whomthe respondent had complained, were found guilty and were suitablypunished.

(iii) In the year 1997 while he was posted at Jodhpur, he was aGmember of the Tender Opening Board for Pokhran field firingranges. He had lodged complaint to the superior authorities withregard to mal-practices in auction proceedings pursuant to whichproceedings of auction were annulled.

(iv) Since he had reported about corrupt practices of the superiors,the superiors in retaliation had forged the documents of RevenueH

UNION OF INDIA v. COL RAN SINGH DUDEE[UDAY UMESH LALIT, J.]

Court ascribing motive to the respondent as regards allotment ofland. Though initially he was visited with an order of punishment,namely, “Recording of Displeasure”, said punishment was laterset aside.

(v) He was wrongly implicated in the General Court Martial. Inany case his innocence stood established by reason of order dated20.11.2013 which inter alia had directed that he was entitled to allconsequential benefits.

(vi) In his submission because of the pendency of General CourtMartial proceedings he was kept out of active service for nineyears. Relying on the opinion given by the Law Officer on30.12.2015 he submitted that he was entitled to the rank ofBrigadier.

(J) On the other hand, it was contended on behalf of the appellantsthat the respondent did not fulfill the required criteria in terms of policyand had not put in requisite period of service while holding the rank ofColonel. It was further submitted that promotion to the post of Colonelcould either be purely on the basis of selection by the Board or couldsimply be on the basis of length of service which is normally known astime scale promotion. The Selection Board in question, namely, No.3Selection Board had not found the respondent fit to be promoted by“Selection”.

(K) The Armed Forces Tribunal principally relied on the opiniondated 01.11.2013 of the learned Solicitor General and the order dated20.11.2013 to come to the conclusion that the respondent was framedby certain persons on unfounded grounds. It further held that the orderdated 20.11.2013 was clear that the respondent was entitled to all“consequential benefits” and as opined by the Law Officer in his opiniondated 30.12.2015 the respondent ought to have been promoted asBrigadier. The Armed Forces Tribunal found that the Department wasnot justified in ignoring the opinion of the Law Officer and in generatingthe Note dated 03.02.2016. It concluded:

“There is no room for doubt that ordinarily, right to consider is afundamental right and in case, the case is considered andincumbent does not qualify because of lack of criteria, he cannotlay claim for promotion. However, the fact remains where in thefacts and circumstances as in the present, because of grant of A

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Aconsequential benefits and loss of promotional avenues by virtueof pendency of General Court Martial (supra) and havingsuspended service period on account of such proceeding whichhas been held to be based on unfounded facts and allegations,rights that accrue to the Applicant on account of setting aside ofpunishment order, include the right to seek promotion to the higherBrank from the date his juniors have been promoted keeping inview the facts and circumstances of the present case.”

(L) The Armed Forces Tribunal thus by its judgment and orderdated 17.01.2017 directed that a final decision be taken by the appellantskeeping in view the opinion expressed by the Law Officer for promotionCof the respondent to the rank of Brigadier “Selection Grade”.

(M) The appellants being aggrieved approached this Court byfiling Civil Appeal No.11009 of 2017. While issuing notice, this Courtpassed the following direction on 01.02.2017:

D“In the meantime, there will be stay of operation of the impugnedjudgment on the condition that the appellants shall take a decisionon the promotion of the respondent to the rank of Colonel, withina period of two weeks from today, in accordance with law.”

(N) No.3 Selection Board was, therefore, constituted on 3.02.2017Ewhich considered the candidature of the respondent and the questionwhether he was fit to be promoted by selection to the rank of Colonel.The proceedings dated 13.02.2017 indicate that the Board consideredthe profile of the respondent alongwith three other officers (Two ofthem being empanelled officers - the second being the lowest empanelledofficer and the third being one who was not empanelled). As per record,Fthe matter was considered on the basis of six indicia namely (i) OverallC.R. Profile, (ii) Lowest C.R. Assessment, (iii) Recommendations forpromotions, (iv) Course Profile, (v) Lowest Course grading and (vi)Discipline Profile. As against the candidates who were empanelled andthe one who was not empanelled, the respondent’s profile was found toGbe lower than all three of them in terms of aforesaid Indicia Nos.(ii), (iv)and (v). Further as against Indicia No.(vi), where all those three officershad “NIL” entry the profile of the respondent indicated “reprimand”which was issued in 1991. It may be noted that only one out of thosethree officers who was empanelled had “Average CR Profile” gradedas “Above Average to Outstanding” which was the same as theH

respondent. Considering the comparative profile of the respondent andAthose three officers, it was found that the respondent was not fit to bepromoted by selection to the post of Colonel.

The assessment made by the aforesaid No.3 Selection Board wasapproved by Chief of Army Staff.

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(O) The Comparative Chart regarding profile of those threeofficers and the respondent is extracted hereunder. We have howevernot disclosed the names of those three officers.

Comparative Profile

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(P) The respondent challenged the decision of No.3 SelectionBoard by filing OA No.104 of 2017 before the Armed Forces Tribunal,Regional Bench, Lucknow. When Civil Appeal No.11009 of 2017 wastaken up, this Court recorded the fact that the Selection Board had found Athe respondent unfit to be promoted as Colonel against which decisionchallenge was pending before the Armed Forces Tribunal. The appealwas, therefore, adjourned to await the decision of the Armed ForcesTribunal while continuing the interim order passed earlier.

(Q) The Tribunal reproduced the Comparative Chart which wasBpart of the record including names of the officers concerned. Accordingto the Tribunal the entry of “Reprimand” which was of the year 1991could not and ought not to have been taken into account, more particularlywhen a clear opinion was expressed by the Law Officer on 30.12.2015.It did not consider the fact that on Indicia Nos.(ii), (iv) and (v) therespondent was definitely found lower than other three officers but reliedCupon the fact that the overall C.R. Profile was adjudged “Above Averageto Outstanding” whereas the lowest empanelled officer was actuallygraded as “Above Average”. The Tribunal observed:

“31. We have noticed that over all profile of the empanelled officeris above average whereas the applicant’s over all profile is aboveDaverage to outstanding. How the applicant’s over all profile hasbeen adjudged to be lower than the last selectee is notcomprehensible.

32. We thus feel that the Selection Board has not acted fairly andjustly after applying mind to the original records and seems toEhave considered the applicant’s case with pre-disposed mind.”

(R) The Tribunal thus found the analysis and assessment madeby No.3 Selection Board to be perverse. While allowing OriginalApplication No.104 of 2017 vide its judgment and order dated 12.09.2017,the Tribunal directed the appellants to constitute a fresh Selection BoardFand reconsider the case of the respondent in the light of the judgment ofthe Tribunal. The Tribunal also awarded costs to the respondent whichwere quantified at Rs.5 lakhs.

(S) The appellants thereafter approached the Armed ForcesTribunal under Section 31 of the Armed Forces Tribunal Act, 2007 seekingGleave to appeal to this Court. The application was however rejected on13.11.2017, whereafter Civil Appeal (Diary) No.40312 of 2017 waspreferred by the appellant alongwith an application for leave to appeal.

3. Both these appeals being inter-connected and between the sameparties, were taken up for hearing together. We heard Mr. ManinderH

Singh, learned Additional Solicitor General who appeared for theappellants while Colonel (TS) RS Dudee(Retd.) appeared in-person andmade his submissions.

4. The hierarchy in the Army and the method of selection andpromotion was considered by this Court in Union of India v. Lt. GeneralRajendra Singh Kadyan[1] as under:

“11. The hierarchy in the Army and the method of selection andpromotion to various posts starting from the post of Lieutenantand going up to the post of the Chief of the Army Staff will clearlyindicate that the posts of Lieutenant, Captain and Major areautomatic promotion posts on passing the promotion examinationirrespective of inter se merit, whereas the posts from Major to Lt.Colonel, Lt. Colonel to Colonel, Colonel to Brigadier, Brigadier toMajor General and Major General to Lt. General are all selectionposts filled up by promotion on the basis of relative merit assessedby the designated Selection Boards…..”

Since the aforesaid decision, there has been an amendement andas the situation presently stands[2], all promotions upto the rank of Lt.Colonel are time-bound promotions without involvement of any selectionprocess and it is only for the promotion from the post of Lt. Colonel toColonel and upwards that Selection Boards are constituted. Thecomposition of relevant Selection Boards in terms of Selection Systemis as under:- “Composition of Selection Boards

1. Special Selection Board

(a) Function: To screen officers for promotion from Maj Gen. toLt. Gen.

(b) Composition:

(i) Chairman

- COAS

(ii) Members - Army Cdrs (5) VCOAS

(iii) Secretary - MS

1 2000 (6) SCC 698

2 Ref.: Para 3 of Written Submissions of the appellants A

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A2. No. 1 Selection Board

(a) Function: To screen Brig for promotion to the rank of Maj.Gen.

(b) Composition

(i) Chairman - COAS

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(ii) Members - Army Cdrs (5) VCOAS/PSO (1)

(iii) Secretary - MS

3. No. 2 Selection Board

(a) Function: To screen Col. for promotion to the rank of Brig.

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(b) Composition

(i) Chairman - Army Cdr (1)

(ii) Members - Corps Cdr (1)

Lt. Gen. of Staff

[Should have commanded a Div.(1)]

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Maj. Gen. (GOC Div) (1)

Maj. Gen. (Staff) (1)

(iii) Secretary - Addl.MS (B)

(iv) In attendance - Respective Heads of Arm/Services E

4. No. 3 Selection Board

(a) Function: To screen Lt. Cols to the rank of Col.

(b) Composition

(i) Chairman - Corps Cdr or Lt. Gen. who has commanded a Corps(1)

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(ii) Members - Div. Cdr (2), Maj Gens on Staff (2)

(iii) Secretary - Dy. MS(B)

(iv) In Attendance - Respective Heads of Arm/Services.”

G5. We are presently concerned with selection from the post of Lt.Colonel to the rank of Colonel and the appropriate Selection Board wouldtherefore be No.3 Selection Board with Officer of the rank of Lt. Generalas Chairperson, two members of the rank of Major General and twoDiv. Commanders. On few occasions this Court has considered thecases where the assessment and analysis made by such Selection BoardsHwere directly put in question. Some of the observations of this Court are UNION OF INDIA v. COL RAN SINGH DUDEE[UDAY UMESH LALIT, J.]

extremely relevant for the present purposes:

(a) In Dalpat Abasaheb Solunke v. B.S. Mahajan[3]this Courtobserved:

“……..It is needless to emphasise that it is not the function of thecourt to hear appeals over the decisions of the SelectionCommittees and to scrutinize the relative merits of the candidates.Whether a candidate is fit for a particular post or not has to bedecided by the duly constituted Selection Committee which hasthe expertise on the subject. The court has no such expertise.The decision of the Selection Committee can be interfered withonly on limited grounds, such as illegality or patent materialirregularity in the constitution of the Committee or its procedurevitiating the selection, or proved mala fides affecting the selectionetc. ……”

(b) In Air Vice Marshal S.L. Chhabra, VSM (Retd.) v. Unionof India[4], this Court observed:

“……No oblique motive has been suggested on behalf of theappellant against any of the members of the Selection Board andthere is no reason or occasion for us to infer such motive on thepart of the members of the Selection Board for denying thepromotion to the appellant with reference to the year 1987. Publicinterest should be the primary consideration of all Selection Boards,constituted for selecting candidates, for promotion to the higherposts, but it is all the more important in respect of Selection Boards,meant for selecting officers for higher posts in the Indian Air Force.The court cannot encroach over this power, by substituting itsown view and opinion…..”

(c) In Union of India v. Lt. General Rajendra Singh Kadyan(Supra), this Court observed:

“…..Critical analysis or appraisal of the file by the Court mayneither be conducive to the interests of the officers concerned orfor the morale of the entire force. Maybe one may emphasizeone aspect rather than the other but in the appraisal of the totalprofile, the entire service profile has been taken care of by theauthorities concerned and we cannot substitute our view to that 3 1990 (3) SCC 305 4 1993 Supp (4) SCC 441

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Aof the authorities. It is a well-known principle of administrativelaw that when relevant considerations have been taken note ofand irrelevant aspects have been eschewed from considerationand that no relevant aspect has been ignored and the administrativedecisions have nexus with the facts on record, the same cannotbe attacked on merits. Judicial review is permissible only to theBextent of finding whether the process in reaching decision hasbeen observed correctly and not the decision as such…..”

(d) Further, in Surinder Shukla v. Union of India[5], it wasobserved:

C“11. Considering the comparative batch merit, if the SelectionBoard did not recommend the name of the appellant for promotionto the rank of Colonel which appears to have been approved bythe Chief of Army Staff, it is not for the court exercising power ofjudicial review to enter into the merit of the decision. The SelectionBoard was constituted by senior officers presided over by anDofficer of the rank of Lt. General. It has been contended beforeus that the Selection Board was not even aware of the identity ofthe candidates considered by them because only in the memberdata sheet all the informations of the candidates required to beconsidered by the Selection Board are stated, but the identity ofEthe officers is not disclosed. The appellant moreover did not allegeany mala fide against the members of the Selection Board…..”

6. The first question that arises is regarding the significance ofthe expression “consequential benefits” as used in the order dated20.11.2013. The matter which was directly in issue and underFconsideration was the correctness and validity of General Court Martialproceedings. While annulling the findings and effect of such GeneralCourt Martial proceedings, the idea was to confer those benefits whichthe officer stood denied directly as a result of pendency of suchproceedings. Such benefits would therefore be those which are easilyquantifiable namely those in the nature of loss of salary, emoluments andGother benefits. But the expression cannot be construed to mean thateven promotions which are strictly on the basis of comparative meritand selection must also stand conferred upon the officer. It is true thatas a result of pendency of the General Court Martial proceedings therespondent was kept out of service for nearly nine years and as such hisH 5 (2008) 2 SCC 649

profile would show inadequacy to a certain extent. On the other handthe Department was also denied of proper assessment of the profile ofthe respondent for those years. The correct approach in the matter isthe one which was considered by this Court in Lt. Col. K. D. Gupta v.Union of India and Others[6]as under:-

“8. The respondents have maintained that the petitioner has notserved in the appropriate grades for the requisite period and hasnot possessed the necessary experience and training andconsequential assessment of ability which are a precondition forpromotion. The defence services have their own peculiarities andspecial requirements. The considerations which apply to othergovernment servants in the matter of promotion cannot as a matterof course be applied to defence personnel of the petitioner’scategory and rank. Requisite experience, consequent exposureand appropriate review are indispensable for according promotionand the petitioner, therefore, cannot be given promotions as claimedby him on the basis that his batchmates have earned suchpromotions. Individual capacity and special qualities on the basisof assessment have to be found but in the case of the petitionerthese are not available. We find force in the stand of therespondents and do not accept the petitioner’s contention that hecan be granted promotion to the higher ranks as claimed by himby adopting the promotions obtained by his batchmates as themeasure.”

7. The opinion of the learned Solicitor General dated 01.11.2013and the consequential order dated 20.11.2013 must be confined to thequestion of validity and correctness of the General Court Martialproceedings and the benefits which respondent stood denied purely as aresult thereof. The concept that he must be granted those promotionswhich his batchmates or juniors received and the idea that he must alsobe considered for promotions which are strictly based on “selection”basis have not been accepted by this Court in K.D. Gupta (supra). TheTribunal therefore completely erred in passing the directions in its orderdated 17.01.2017. Since the opinion of the Law Officer dated 30.12.2015was not consistent with the provisions of the relevant rules and the lawdeclared by this Court in K.D. Gupta (supra), the Department wasjustified in expressing serious reservations and in generating note dated 6 1989 Suppl (1) SCC 416

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A03.02.2016. The Tribunal, in our considered view, attached undueimportance to the opinion of the Law Officer dated 30.12.2015.

8. Be that as it may, the matter was considered on merits by No.3Selection Board which found the respondent unfit for selection as“Colonel”. The matter was analyzed by the Board on six indicia orBparameters. The assessment was cumulative taking into account thegrading as against those six parameters. Admittedly, the respondentwas lower in terms of indicia Nos.(ii), (iv) and (v) as against all otherthree officers, which included one who was not empanelled at all. Aparttherefrom, the entry of reprimand as against indicia No.(vi) also put thecase of the respondent in the negative. At this stage we may considerCwhether the entry of reprimand of the year 1991 was rightly or wrongly taken into account.

taken into account.

9. In terms of Paragraph 10 (f) of the Selection Policy dated06.05.1987 which has been placed on record by the appellants, disciplinaryaward forms part of the overall profile of an Officer. Said provision inDfact lays down, “character, qualities, disciplinary background anddecorations form an important input to the overall profile of an Officerand due consideration should be given while assessing border line cases.”The action on part of the Selection Board in relying upon the entry ofreprimand was thus consistent with Selection Policy and could not beEcharacterized as incorrect or illegal in any manner. In any case that wasnot the only pointer which weighed with the Selection Board. Eveneschewing such entry, the respondent was still found to be lower asagainst three Officers on other three indicia. It is relevant to note at thisjuncture that even though one out of those three Officers had faredbetter than the respondent on those three indicia and also did not haveFany entry or reprimand, he was not an empanelled Officer. It is preciselyfor this reason that the law as laid down by this Court is, “whether acandidate is fit for a particular post or not has to be decided by the dulyconstituted Selection Committee which has the expertise on the subject.”

10. It is true that overall CR profile of the respondent was betterGthan the last empanelled officer. But the respondent was certainly loweron other three indicia or parameters. It is the cumulative assessmentwhich the Selection Board was expected to and did undertake. Goingby the law laid down by this Court, it cannot be said that the assessmentof the Selection Board suffered on any count. This case is not whereirrelevant factors have been taken into account or relevant factors haveH

been missed out or eliminated from consideration. The Selection Boardcomprised of high ranked officials from Indian Army. No malafideshave been and could be attributed to the actions on part of the membersof the Selection Board. The Tribunal was thus wholly unjustified infinding the assessment made by the Selection Board to be perverse.

11. Having considered the matter in its entirety, we cannot supportthe view taken by the Tribunal. According to us, the approach of theTribunal and the assessment made by it were completely erroneous.The Tribunal was also not justified in awarding costs of Rupees fivelakhs to the respondent.

12. It may be that the respondent was wrongly proceeded againstand punished by General Court Martial. He was also awarded sentenceof imprisonment and lost out nine years of service. The prejudice isquite apparent. However sympathy cannot outweigh the considerationson merit. He has received time scale promotion to the rank of Colonelafter having put in 26 years of regular service. But if he was not foundsuitable for empanelment by way of selection, the matter must end there.

13. We therefore allow both the appeals and set aside Judgmentsand Orders dated 17.01.2017 and 12.09.2017 passed by the ArmedForces Tribunal, Regional Bench, Lucknow.

14. No order as to costs.

Nidhi Jain

Appeals allowed.

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