Brig. Nalin Kumar Bhatia vs Union Of India And Ors . on 11 February, 2020


Supreme Court of India

Brig. Nalin Kumar Bhatia vs Union Of India And Ors . on 11 February, 2020

Author: 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“(a) Setting aside of the unpublished / unnotified policy of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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