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Supreme Court of India
Brig. Nalin Kumar Bhatia vs Union Of India And Ors . on 11 February, 2020Author: L. Nageswara Rao
Bench: L. Nageswara Rao, Deepak Gupta
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.5751 of 2017
BRIG. NALIN KUMAR BHATIA
…. Appellant(s)
Versus
UNION OF INDIA AND ORS.
…. Respondent (s)
WITH
Civil Appeal No.5629 of 2017
JUDGMENT
L. NAGESWARA RAO, J.
1. Whether the non-empanelment of the Appellant for
promotion to the rank of Major General was contrary to the
promotion policy is the question that arises for consideration
in the above Appeal.
2. The Appellant was commissioned in the Mechanised
Infantry of Indian Army on 13.06.1981 and was subsequently
transferred to the Corps of Intelligence in May, 1991. He was
promoted as a Brigadier in September, 2008. His
empanelment for promotion to the rank of Major General was
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placed before the Members of Selection Board on
24.04.2015. On 31.07.2015, he was declared as having not
been empanelled for promotion to the rank of Major General.
Being aggrieved by his non-empanelment, he filed Original
Application No.64 of 2015 before the Armed Forces Tribunal,
Regional Bench, Mumbai seeking the following relief:
“(a) Setting aside of the unpublished / unnotified policy of
the respondents, if any, whereby the service profile /
quantified merit of a candidate for promotion is required to
be compared with that of the previous / earlier batch;
(b) Direction commanding the respondents to review their
decision with regard to non-empanelment of the applicant for
the said promotion and to empanel him for the promotion in
accordance with the extant policy of batch wise
consideration;
(c) Direction requiring the respondents to ignore and not
to act upon, while so reviewing the applicant’s case, any
adverse / advisory remarks or any non-recommendation for
promotion endorsed in any of his CRs, which have remained
uncommunicated to him and forming ground to deny him the
promotion;
(e) Setting aside of any adverse / advisory remarks or any
non-recommendation for promotion endorsed in any of his
CRs, which have remained uncommunicated to the applicant;
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(f) Setting aside of the order No. A/46001/584/MS (X)
dated 28th November, 2014 retiring the applicant from
service w.e.f. 30.09.2015 (A/N);
(g) Direction requiring the respondents not to hold the
Number 1 Selection Board in respect of Intelligence Corps
1982 Batch tentatively scheduled to be held in September,
2015.”
3. It was contended on his behalf before the Tribunal that
the Appellant has an excellent record of service. Being the
only eligible candidate for empanelment for promotion to the
rank of Major General, he ought not to have been ignored.
The Appellant complained of arbitrary action on the part of
the Respondents in comparing his service profile with
persons belonging to the 1980 batch. It is relevant to
mention that the Appellant belongs to the 1981 batch.
According to the Appellant, his non-empanelment for
promotion to the rank of Major General was a result of the
arbitrary exercise of power on the part of the Respondents.
The Appellant relied upon the guidelines issued pursuant to a
policy decision dated 06.05.1997 which were not followed
while considering him for empanelment.
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4. On behalf of the Respondents it was contended before
the Tribunal that empanelment of officers for promotion to
higher ranks is governed by detailed instructions issued by
the Army Headquarters in the Policy dated 06.05.1997. It
was submitted before the Tribunal that quantified system
was introduced w.e.f. 01.01.2009 to bring greater
transparency and objectivity in the matter of selection for
promotions. The Respondents submitted before the Tribunal
that the Selection Board takes into account several factors
such as War/ Operational Reports, Course Reports, Annual
Confidential Reports’, performance in Command and Staf
appointments, honours and awards and disciplinary
background. Respondent further submitted that selection is
based upon the overall reckonable profile of an officer in
comparative merit within the batch as evaluated by the
Selection Board.
5. The Tribunal dismissed the O.A. filed by the Appellant
by holding that there is no illegality or patent material
irregularity in the constitution of the Selection Board or the
procedure followed by the Selection Board. The Tribunal was
convinced that the overall reckonable profile of the Appellant
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was taken into account by the Selection Board and the
decision of the Selection Board did not warrant interference.
The contention of the Appellant that his non-empanelment
was vitiated by a malice in law, was not accepted by the
Tribunal. The Tribunal drew a distinction between the Armed
Forces personnel and persons holding civil posts under the
State. The Tribunal observed that the decision of the
Selection Board cannot be substituted by a court of law.
6. This appeal has been filed challenging the judgment of
the Tribunal by which no relief was granted to the Appellant.
7. We have heard Mr. Dushyant Dave, learned Senior
Counsel and Indra Sen Singh, advocate for the Appellants
and Mr. R. Balasubramanian, learned
Senior Counsel for the Respondents.
8. It was urged on behalf of the Appellant that his non-
empanelment to the rank of Major General is arbitrary and
violative of the instructions issued in terms of the promotion
policy of the Respondents and hence contrary to Articles 14
and 16 of the Constitution of India. Mr. Dave submitted that
the Appellant is entitled for empanelment to the rank of
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Major General in accordance with the promotion policy. He
took us through the promotion policy of the Respondents
from 1987 onwards to contend that the Respondents have
breached the procedure prescribed in the promotion policy.
The action of the Respondents in not complying with the
policy while considering the Appellant for empanelment is
arbitrary and vitiated by malice in law.
9. On the other hand, it was contended on behalf of the
Respondents that the empanelment of the Appellant to the
rank of Major General was considered by the First Board and
later by a Review Board before he attained the age of
superannuation on 30.09.2015 after following the procedure
prescribed in the instructions issued by the Army
Headquarters. The Selection Board consisting of senior
officers considered the overall reckonable profile of the
Appellant and found that the Appellant was not fit to be
empanelled. The Respondents submitted that the Appellant
was the only Brigadier from the Army Intelligence Corps who
was considered for empanelment in the year 2015 and he
was not compared to the officers of the earlier batch as
apprehended by the Appellant. The Respondents submitted
that no right to promotion inheres in any person, and that the
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only right that is conferred by Articles 14 and 16 of the
Constitution of India is the right to be considered. As the
Appellant was not empanelled only after a proper
consideration in accordance with the instructions of the Army
Headquarters, Courts cannot substitute their opinion by
interfering in the matter of selection.
10. The only question to be considered is whether the
Appellant was considered for empanelment for promotion to
the rank of Major General in a fair manner. The selection
system for promotion to the higher ranks in the Army was
initially governed by a letter dated 06.05.1987 of the Army
Headquarters. It is mentioned in the said instructions that
the number of vacancies in the higher ranks decreases in the
face of the pyramidical rank structure. It becomes necessary
that only those officers whose record of service merits
promotion, within a particular batch, are selected to fill up
the vacancies available in higher ranks. All promotions
above the rank of Major are done through the process of
selection and the aim of the selection system is to serve the
best interest of the service by selecting only those officers
who are considered competent to shoulder the
responsibilities of high ranks. Fair consideration of every
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officer who is eligible for promotion to ensure objectivity and
impartiality was one of the aims of the selection system.
Composition of the Selection Boards is dealt with in para 6 of
the above instructions. No.1 Selection Board pertains to
promotion from Brigadier to Major General. The Selection
Boards are duty bound in accordance with the instructions to
assess all eligible officers of a batch who reckon seniority
during one calendar year, to screen officers of earlier batch
who have been placed on reviews for promotion to the next
rank, to assess the suitability of officers who have been
approved earlier to the next higher rank whilst in low medical
classification and to ensure selection through objectivity,
impartiality and in the best interest of the service in
accordance with the guidelines laid down by the Chief of the
Army Staf. According to the guidelines of assessment in the
above Army instructions, selection is to be based on the
overall profile of the officers with special stress on the
performance in criteria command appointment. Due
consideration should be given to officers who show
consistency in overall performance and they are given
preference over late starters. Another criteria taken into
account is consistent recommendations for promotion to the
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next rank and credit is to be given to those officers who have
earned positive recommendations for promotion in their very
first report in command. According to the guidelines of
assessment the officer should have potential for being
employed or being rotated in staf, instructional or ERE
appointments. Character qualities, disciplinary background
and decorations form an important input to the overall profile
of the officer and due consideration should be given while
assessing border line cases. There is a requirement that the
officers have undergone PSC/PTSC/ postgraduate courses
and/or to have worked well in Staf/ERE/Instructional
appointments. A cautionary note given by the Chief of the
Army Staf with respect to the assessment of the officers is
that such assessment should be as per the comparative
merit of the overall profile of officers within their own batch
and grading by the Board is to be undertaken only from the
material placed before it and not from any personal
knowledge. The Members of the Selection Board were
guided to invariably look for the overall performance of the
officers, employability of the officer in the next higher ranks,
important character qualities of the officer particularly drive
and determination, decisiveness, initiative, dependability,
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integrity and loyalty while making an assessment. The other
aspects which have to be taken into account by the Selection
Board are management of resources and technical
equipment and the professional knowledge and conceptual
ability of an officer.
11. The proceedings of the Selection Committee are sent
for approval to the Chief of the Army Staf and for final
approval of the Ministry of Defence. The Ministry of Defence,
in accordance with the instructions of the Army Headquarters
has to scrutinize each case independently. The Confidential
Reports’ dossiers of the officers considered for empanelment
are made available to the Ministry of Defence for their
perusal.
12. Realising the need for greater objectivity and to enable
discernment of the most deserving candidates for higher
ranks, it was felt that a quantification system would be
suitable in the matter of selection for empanelment to the
higher ranks. On 31.12.2008, the quantification system was
introduced by which it was decided that 95 per cent marks
will be given for quantified parameters to include confidential
reports (CRs), courses and honours and awards. 5 per cent
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marks will be kept for value judgment by the Selection Board
Members for aspects that cannot be quantified out of a grand
total of 100 marks. 91 marks are earmarked for CRs, 4
marks for courses and honours and awards. 5 marks are
assigned for value judgment by the Selection Board. Primacy
is given to the CRs by allocation of maximum marks of 91 out
of a grand total of 100 marks. 5 per cent marks which have
been set aside for value judgment by the Selection Board
shall be allotted by following the parameters of performance,
potential disciplinary awards/ administrative actions,
recommendations for promotion and degree of difficulty.
13. The revised policy for conduct of the Selection Boards of
quantification system was issued on 04.01.2011. Primacy of
the CRs vis-e-vis other criteria like performance of courses,
honours and awards has been maintained. All CRs in
reckonable profile were directed to be quantified. “Look-two-
down” principle of taking into consideration of CRs earned in
the present rank and previous rank, will continue for No.3
Selection Board, No.2 Selection Board and No.1 Selection
Board as before.
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14. There was also a change in allocation marks. Apart
from 2 marks allotted for the courses and 2 for honours and
awards (gallantry), 19 marks were allotted for performance
as Colonel, 8 for staf/Instr./others (Cols), 46 for Brigadier, 18
for Staf/Instr/others (Brigadier). The above allocation of
marks would be included in the quantifiable total of 95, with
5 marks being allotted to value judgment. The guidelines
issued for allotment of 5 marks earmarked for value
judgment are on the basis of performance, potential, special
achievements, honours and awards and recommendation for
promotion. Para 19 of the letter dated 04.01.2011 postulates
a review of the revised quantified model for Selection Boards
after a period of five years. The policy dated 04.01.2011
superseded all earlier policies on the conduct by selection
boards of quantification system.
15. The Appellant was considered for empanelment by the
First Selection Board on 24.04.2015 in accordance with the
guidelines laid down in the promotion policy dated
04.01.2011. The Appellant secured a total of 89.667 per
cent marks. The record pertaining to the First Selection
Board, held on 24.04.2015 was placed before us. The
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Selection Board did not recommend the Appellant for
empanelment for promotion to the rank of Major General in
Intelligence Corps. After examining the complete profile of
the officer, the Selection Board was of the opinion that the
Appellant did not have the requisite potential and was not fit
for promotion to the rank of Major General. The Appellant
was considered again for empanelment in September, 2015
in which he secured 90.469 marks out of 100 but was not
recommended for empanelment.
16. It is clear from the record that the Appellant was the
only officer of 1981 batch who was considered for
empanelment for promotion to the rank of Major General on
24.04.2015. The apprehension of the Appellant that he was
compared with the merit of the earlier batch is unfounded.
17. Article 16 of the Constitution of India confers a right to
be considered for promotion. There is no right for promotion,
but the right that is conferred by Article 16 is to be
considered for promotion fairly and in accordance with the
extant rules or regulations governing promotions. Violation
of rules/regulations or the policy governing promotions would
entail in violation of Article 16 of the Constitution of India.
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The contention of the Appellant that he deserved to be
empanelled on the basis of the promotion policy needs to be
considered. The quantification system for promotion was
introduced to ensure objectivity and impartiality in the
matter of promotions to higher ranks in the Army. It is clear
from the policy that primacy is given to the CRs. Admittedly,
the Appellant secured 89.667 marks in the first selection held
in April, 2015 and 90.469 marks in the review selection held
in September, 2015. He was the only eligible officer in the
rank of Brigadier in Intelligence Corps belonging to the 1981
batch who was considered for empanelment to the rank of
Major General. Responding to a query, Mr. Balasubramanian,
learned Senior Counsel submitted that the Appellant was
found not fit for promotion on a fair evaluation of his
suitability and employability in rank of Major General.
Though, only 5 marks have been earmarked for value
judgment by the Selection Board, Mr. Balasubramanian
submitted that there is nothing wrong in the decision of the
Selection Board in not recommending the Appellant for
empanelment to the rank of Major General after examining
the complete reckonable profile of the officer. He justified
the recommendation of the Selection Board by arguing that
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the Appellant was correctly refused empanelment on the
ground that he lacked the requisite potential for promotion.
18. The earlier policy followed for promotion to higher ranks
in the Army from 1987 was revised in the year 2008 to
introduce a quantification system to be followed by the
Selection Boards. The policy governing promotions to higher
ranks in the Army was issued on 04.01.2011 in supersession
of the earlier policy of the quantification system. Primacy is
given to the CRs as is clearly mentioned in the policy. There
is nothing mentioned in the policy that an officer can be
ignored for empanelment only on the basis of the value
judgment in spite of his securing high marks on the basis of
the other criteria. We are unable to agree with Mr. R.
Balasubramanian that the Selection Board can recommend
non- empanelment of an officer on the basis of their value
judgment without reference to the other marks that are
allotted to him. If the submission of Mr. Balasubramanian is
accepted, the reason for the change in the method of
evaluation of officers by the Selection Board to a
quantification model would be meaningless. In the instant
case, the Appellant was the only eligible Brigadier of his
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batch for empanelment to the rank of Major General with a
meritorious record of service. He could not have been
deprived of his empanelment only on the basis of value
judgment of the Selection Board.
19. Another submission of Mr. Balasubramanian is that the
Selection Board consists of senior officers of the Army and
deference has to be shown to the discretion exercised by
them in the matter of promotion. We disagree. Lord Acton
said: – “I cannot accept your canon that we are to judge Pope
and King unlike other men, with a favourable presumption
that they did no wrong. If there is any presumption it is the
other way against holders of power, increasing as the power
increases1.
20. There is no presumption that a decision taken by
persons occupying high posts is valid. All power vested in
the authorities has to be discharged in accordance with the
principles laid down by the Constitution and the other
Statutes or Rules/Regulations governing the field. The
judicial scrutiny of a decision does not depend on the rank or
position held by the decision maker. The Court is concerned
1 Letter to Mandell (later, Bishop) Creighton, April 5, 1887 Historical Essays and Studies,
1907.
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with the legality and validity of the decision and the rank of
the decision maker does not make any diference.
21. Judgments of this Court have been cited to contend that
officers in the Army are diferent from the civil servants. The
submission made on behalf of the Respondent is that the law
laid down in case of Government servants occupying civil
posts cannot be applied to the Armed Forces personnel. We
are not relying upon any judgment in favour of public
servants in Government service for adjudicating the dispute
in this case. The only point that is considered by us is
regarding the non-empanelment of the Appellant being in
accordance with the promotion policy of the Respondent.
The non-empanelment of the Appellant for promotion as
Major General is contrary to the promotion policy. He is
entitled for reconsideration for empanelment by a Review
Selection Board strictly in accordance with the promotion
policy by keeping in mind the observations in this judgment.
The Respondents are directed to complete this exercise
within a period of six months from today.
22. For the aforementioned reasons, the judgment of the
Tribunal is set aside and the Appeal is allowed.
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Civil Appeal No.5629 of 2017
23. The Appellant was not empanelled for promotion to the
rank of Major General in the year 2015, aggrieved by which
he approached the Armed Forces Tribunal, Principal Bench,
New Delhi. The Tribunal dismissed the Original Application
filed by the Appellant. The facts of this Appeal are similar to
the facts in Civil Appeal No.5751 of 2017. The Appellant was
the only eligible Brigadier to be considered for promotion for
empanelment for the post of Major General in the year 2015.
In spite of his securing 87.973 marks out of a grand total of
100 marks, he was deprived of empanelment for promotion
to the rank of Major General on the ground that he was not
fit for promotion on the basis of value judgment of the
Selection Board. This appeal is allowed in terms of the
judgment in Civil Appeal No.5751 of 2017.
…………………………..J.
[L. NAGESWARA RAO]
………………………J.
[HEMANT GUPTA]
New Delhi,
February 11, 2020.
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