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)  

W I T H

Civil Appeal No  .5629   of   2017

J U D G M E N T

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“(a) Setting aside of the unpublished / unnotified policy of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