NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3973 OF 2010  

Hardev Singh .....Appellant.

        Versus

U.O.I. & Anr.       …..Respondents

J U D G M E N T   

ANIL R. DAVE, J.

1. Aggrieved by the Judgment and Order dated 26.4.2010 passed  

by the Principal Bench of the Armed Forces Tribunal, New Delhi in  

T.A. No. 541 of 2010 (O.A. No. 29 of 2010),   the appellant has filed  

this appeal under Section 30 of the Armed forces Tribunal Act, 2007.  

1

2. The appellant was commissioned as an Officer in Indian Army  

on  17.6.1973.  Over a period of time, he rose to the rank of Major  

General  and  retired  on  30.4.2010.  During  his  service  tenure,  he  

performed his duties well and he had also carried out several special  

assignments and he was suitably honoured by Indian Army.  Being  

aggrieved by the aforestated order passed by the Tribunal, he has filed  

this appeal, as according to him,  he was wrongly denied promotion to  

the rank of Lieutenant General.  

3. The facts giving rise to the present litigation in a nutshell  are as  

under:

Grievance of the appellant is that he was not promoted to the  

rank of Lieutenant General.  According to him, the policy with regard  

to  promotion  had  been  changed  after  Special  Selection  Board  

(hereinafter  referred  to  as  the  ‘SSB’)   had  been  constituted  for  

considering cases of officers of 1973 batch for promotion to the rank  

of Lieutenant General.  After the SSB started the process of selecting  

officers  for  promotion  to  the  rank  of  Lieutenant  General,  the  

Government  had promulgated  a  new policy  dated  31.12.2008 with  

2

regard to promotion.   Formerly, the policy with regard to promotion  

was  based  on  ‘value-judgment’  and on  that  basis  the  SSB was  to  

consider overall profile of all the concerned officers.  According to the  

said Policy, confidential remarks, war operation report, course report,  

honours and awards and disciplinary background of each officer was  

to be considered while taking a final  decision with regard to giving  

promotion to him to the rank of Lieutenant General. The said policy  

was  changed  with  effect  from  1st January,  2009.  Instead  of   the  

aforestated  ‘value  judgment’,   a  new  policy  described  as  

‘quantification method’  has been adopted for giving promotion to the  

rank  of  Lieutenant  General.   According  to  the  new  policy,  while  

considering cases for promotion, 92%  weightage is to be given to  

confidential  reports,  3%  to  courses,  honours  and  awards  and  5%  

weightage is to be given to value judgment.

4. The learned counsel for the appellant submitted that the  new  

policy was adopted at the time when the appellant and other officers  

of 1973 batch became due for promotion to the rank of Lieutenant  

General.  According to him, the SSB had already started the procedure  

for considering officers of 1973 batch during calendar year 2008 and,  

therefore, the policy could not have been changed.  According to him,  

3

this was not permissible in law because once the SSB was constituted  

in 2008 and had started procedure for considering the officers of 1973  

batch  for  their  promotion  to  the  rank  of  Lieutenant  General,  new  

policy, even if framed could not have been implemented but the same  

could have been implemented only for the officers of 1974 batch. The  

learned counsel relied upon the judgments delivered in the cases of  

P. Mahendran & Ors. v. State of Karnataka & ors. [(1990) 1 SCC  

411];  Maharashtra  State  Road  Transport  Corpn.  &  ors.  v.  

Rajendra  Bhimrao  Mandve  &  Ors.  [(2001)  10  SCC  51];  K.  

Manjusree v. State of Andhra Pradesh and another [(2008) 3 SCC  

512]  so as to substantiate his submissions.  

5. He also submitted that  every year,  the SSB used to consider  

officers of a particular batch for promotion to the rank of  Lieutenant  

General.   In  the  calendar  year  2006,  1971  batch  officers  were  

considered for promotion to the rank of Lieutenant General; in 2007,  

officers of 1972 batch were considered for promotion to the said rank  

but in 2008, officers of 1973 batch were not considered. The officers  

of 1973 batch were considered in 2009.  Had the officers of 1973  

batch been considered in calendar year 2008, they could have been  

considered as per the old policy.   

4

6. He also submitted that though the appellant was awarded ‘Kirti  

Chakra’, the said fact was not given due weightage while considering  

the appellant’s case for his promotion.

7. As the appellant had not been promoted, the appellant had filed  

non-statutory and statutory complaints but the said complaints were  

not properly considered and were disposed of without assigning any  

reason.   In  the  circumstances,  the  appellant  was  constrained  to  

approach  the  Armed  Forces  Tribunal,  Jaipur  Bench,  by  filing  an  

Original Application.   The said application was thereafter transferred  

to the Armed Forces Tribunal, Principal Bench, New Delhi.  The said  

application  was  rejected  by  the  judgment  dated  26th April,  2010,  

which has been challenged in this appeal.

8. According  to the learned counsel, if the earlier policy based on  

‘value judgment’  had been followed by considering overall profile of  

the appellant, the appellant would have been selected for promotion to  

the rank of Lieutenant General.   According to him,  the appellant,  

who was an outstanding officer, ought to have been promoted to the  

rank of Lieutenant General.   

5

9. In substance,  the counsel  submitted that  the  entire  procedure  

followed by the SSB was incorrect and the appellant  and the officers  

of 1973 batch ought to have been assessed as per old policy and in  

that event, the appellant would have been found fit for promotion and,  

therefore, it was submitted that the appellant deserved promotion  to  

the  rank  of  Lieutenant  General.   It  was  further  submitted  that  the  

appellant retired on 30.4.2010 but had he been promoted to the rank of  

Lieutenant General, he would not have been made to retire. Finally, he  

submitted that the appeal deserves to be allowed and relief sought for  

in the appeal be granted.   

10. On  the  other  hand,  Mr.  P.P.  Tripathi,  learned  Additional  

Solicitor  General  submitted  that  the  judgment  delivered  by  the  

Tribunal is just and proper.  He submitted that Indian Army is having  

a  pyramidal  organisation  and  it  has  framed  its  promotion  policy  

accordingly.  Till 15th December, 2004,  promotions up to the rank of  

Major were given on the basis of seniority whereas promotions from  

the rank of Major to Lieutenant General and onwards were strictly on  

merit and they were given promotion on the basis of recommendations  

of  a  Selection Board.   However,  as  per  the new policy,  at  present  

promotions upto the rank of Lieutenant Colonel are by time scale and  

6

thereafter  the  promotions  to  higher  ranks  are  given  on  the  

recommendation of the Selection Board.

11. He submitted that the averments of the appellant to the effect  

that  the  policy  with  regard  to  promotions  was  changed  after  

commencement of selection process of the officers of 1973 batch for  

their promotion to the rank of Lieutenant General is incorrect.   He  

submitted  that  the  old  policy,  which  was  prevalent  up  to  31st  

December, 2008, was never applied in case of the appellant and other  

officers of 1973 batch for their promotion to the rank of Lieutenant  

General.  He submitted that first meeting of the SSB for considering  

cases of the appellant and other officers of 1973 batch was convened  

on 9th January, 2009. He denied that the SSB had ever convened its  

meeting prior to 2009 for the aforestated purpose.  It was clarified that  

only the process of collecting relevant data had been started in 2008  

because for the purpose of considering cases of all officers of 1973  

batch, certain record was to made available to the SSB in a particular  

form  and  the  process  being  lengthy,  needful  was  done  by  the  

ministerial staff for collecting the data in 2008, but the said data was  

considered by the SSB only after 1st January, 2009 i.e. when the new  

policy had been implemented.   

7

12. So far as ‘Kirti Chakra’ is concerned,  it was submitted that the  

appellant was awarded ‘Kirti Chakra’ in 1985 when he was working  

in the rank of Major.  The said fact cannot be considered for ever.  

While giving promotions to the higher ranks, the aforestated fact was  

duly considered by the Selection Board earlier.   The said fact was  

considered while considering the appellant’s case for giving him four  

promotions i.e.  upto Major General.   The award/ honour cannot be  

considered for ever as per normal promotion policy.  As per the new  

policy, marks for awards are allotted only for two times after receipt  

of  the  award/honour.   In  the  circumstances,  in  the  case  of  the  

appellant, award of ‘Kirti Chakra’ had rightly not been considered by  

the SSB when it had convened its meeting in January, 2009.

13.  The  case  of  the  appellant  was  considered  twice  by  the  SSB  

along with other  officers  of  1973 batch.   His  case  was considered  

when the SSB convened its meeting on 9th  January, 2009 and his case  

was  again considered,  by way of  a  second chance,  by  the  SSB in  

December, 2009 but the appellant was not empanelled for promotion  

on both the occasions for the reasons that there were many other more  

meritorious  officers  and,  therefore,  the  appellant  could  not  be  

promoted to the rank of Lieutenant General.

8

14. The learned counsel  for the respondents  also denied that  the  

appellant was having ‘outstanding’ grade.  He submitted that most of  

the time the appellant was considered ‘above average’ and the said  

fact was duly considered by the SSB.  He further submitted that the  

appellant had not levelled any allegations with regard to mala fides  

and,  therefore,  the  recommendations  made  by  the  SSB  cannot  be  

faulted with.  The averments and allegations with regard to pressure  

exerted by officers so as to grant  ‘8’ instead of ‘9’ points were also  

baseless.

15. The learned counsel also relied upon judgments delivered by  

this  Court  in  the  cases  of  Union  of  India  &  Ors v.  Lt.  Gen.  

Rajendra  Singh  Kadyan  and  Another,  [(2000)  6  SCC  698];  

Lakhwinder Singh v. Union of India and Ors.  [(2008) 7 SCC 648]  

so as to substantiate his submissions.  He further submitted that the  

appellant had a right to be considered for promotion but he had no  

right to be promoted as observed by this Court in the case of Union of  

India & Ors. v. S.L. Dutta and Anothers. [(1991) 1 SCC 505] and  

Roshan Lal Tandon v. Union of India [ AIR 1967 SC 1889].

9

16. For the aforestated reasons and for the reasons recorded by the  

Tribunal, the learned counsel submitted that the appeal deserves to be  

dismissed with costs.

17. We heard  the  learned  counsel  and  also  perused  the  relevant  

material placed before this Court.

18. It  cannot  be  disputed  that  no  employee  has  a  right  to  get  

promotion; so the appellant had no right to get promotion to the rank  

of  Lieutenant  General  but  he  had  a  right  to  be  considered  for  

promotion  to  the  rank  of  Lieutenant  General  and  if   as  per  the  

prevailing policy, he was eligible to be promoted to the said rank, he  

ought to have been considered.  In the instant case, there is no dispute  

to the fact that the appellant’s case was duly considered by the SSB  

for his promotion to the rank of Lieutenant General.

19. The main grievance ventilated in the appeal is with regard to  

change of promotion policy.  The case of the appellant is to the effect  

that after starting the selection process, the respondents could not have  

changed  the  policy.   According  to  the  appellant,  the  policy  was  

changed  with  effect  from 1st January,  2009,  whereas  the  selection  

process for promoting the appellant along with other officers of 1973  

10

batch started in December, 2008.  According to him relevant material  

was prepared and placed before the SSB and in fact it convened its  

meeting  and  started  doing  the  needful  in  December,  2008  and,  

therefore,   it  was not open to the respondents to change the policy  

after having started the process for selection.  The appellant had also  

relied upon the judgments delivered by this Court to substantiate his  

case  to  the  effect  that  after  initiating  the  selection  process,  the  

authorities  and  the  SSB  should  not  have  given  effect  to  the  new  

policy.

20. Upon perusal of the contents of the counter affidavit filed and  

submissions  made  on  behalf  of  the  respondents  by  the  learned  

Additional Solicitor General, it is clear that the first meeting of the  

SSB  to  consider  the  cases  of  the  appellant  and  other  officers  for  

promotion  to  the  rank  of  Lieutenant  General  was  convened  on  9th  

January, 2009, and not prior thereto.  The counsel had however, stated  

that the ministerial staff of the respondents had collected relevant data  

in  2008  because  relevant  material  for  considering  cases  of  all  the  

concerned officers was to be placed before the SSB when its meeting  

was  to  be   convened.   For  the  said  reason,  necessary  exercise  for  

collecting the data and putting it in a proper form was done in 2008  

11

but, in fact,  the said data was considered by the SSB only when it  

convened its meeting in January, 2009, i.e. after the new policy had  

come into force.

21. The  above  facts  would  make  it  clear  that  the  cases  of  the  

appellant and others were never considered by the SSB in 2008 or  

prior to 1st January, 2009.  It means that the cases were considered as  

per the new policy and, therefore, all submissions made on behalf of  

the appellant that the policy was changed after the process of selection  

had  been  started  are  not  correct  and,  therefore,  they  are  to  be  

discarded.

22. The  grievance  made  by  the  appellant  with  regard  to  non-

consideration  of  award  of  ‘Kirti  Chakra’  is  also  not  having  any  

substance for the reason that as per the new policy, the grant of such  

an award/honour is to be considered only twice.  In 1985, when the  

appellant was in the rank of Major, he was awarded ‘Kirti Chakra’  

and the said fact was duly considered till he got promotion to the rank  

of Major General.  As per the new policy, this honour, which he had  

secured in 1985 could not have been considered again and, therefore,  

it was rightly not taken into account.  We also find substance in the  

12

policy  that  if  a  person  has  performed  his  duty  excellently  at  a  

particular  stage  in  his  career,  then  that  performance  of  excellence  

cannot be considered for the entire life.  When an officer has to get his  

promotion strictly on merits, his performance should be commendable  

throughout  and  especially  during  last  few years.   The  case  of  the  

appellant  was considered in 2009 for his promotion to the rank of  

Lieutenant General and, therefore, the achievements of the appellant  

in 1985 could not have been ordinarily considered by the SSB.  In the  

circumstances,  the  submissions  relating  to  not  considering  ‘Kirti  

Chakra’ award would not help the appellant.

23. The  appellant  has  tried  to  evaluate  his  qualities  and  

competence.   Though,  he  believed  himself  to  be  an  ‘outstanding’  

officer,  it  is stated that most of the time he was considered ‘above  

average’.  He was hardly considered as an ‘outstanding’ officer.  We  

are in complete agreement with the view expressed by this court in the  

case of  Air Vice Marshal  S.L.  Chhabra,  VSM (Retd.) v.  U.O.I.  

[1993 Supp (4) SCC 441] wherein it has been held in para 13 that:

“According  to  us,  neither  the  High  Court  nor  this  Court can moderate, the appraisal and the grading of  the appellant for a particular year.  While exercising  the power of judicial review, a Court shall not venture  

13

to assess and appraise the merit or the grading of an  officer.   If  the  Appraisal  Report  of  the  year  1987  giving the appellant ‘5.3’ stands, then according to the  criteria fixed, the case of the appellant could not have  been considered for extension.”

The entire relevant service record of the appellant was placed before  

the  SSB  on  two  different  occasions,  in  January,  2009  and  in  

December, 2009.  On both the occasions, the appellant failed to get  

himself empanelled in the list of selected officers for the reason that  

there  were  better  officers  available  for  limited  number  of  posts  

available in the higher rank.   

24. In  absence  of  any  allegation  with  regard  to  mala  fides,  we  

would not like to look into the assessment of the SSB   in relation to  

the appellant’s performance.

25. In our opinion, it is always open to an employer to change its  

policy in relation to giving promotion to the employees.  This court  

would normally not interfere in such policy decisions.

26. We would like to quote the decision of this Court in the case of  

Virender S. Hooda & Ors. v.  State of Haryana and Anr.  

14

[(1999)  3  SCC  696] where  this  Court  had  held  in  para  4  of  the  

judgment that:

“……..When a policy has been declared by the  

State as to the manner of filling up the post and that  

policy is declared in terms of rules and instructions  

issued to the Public Service Commission from time to  

time and so long as these instructions are not contrary  

to  the  rules,  the  respondents  ought  to  follow  the  

same.”

Similarly,  in  the  case  of  Balco  Employees’  Union    (Regd.)   v.  

Union of India and Others [(2002) 2 SCC 333], it has been held  

that  a  court  cannot  strike  down  a  policy  decision  taken  by  the  

Government merely because it feels that another policy would have  

been fairer or wiser or more scientific or logical.  It is not within the  

domain of the court to weigh the pros and cons of the policy or to test  

the degree of its beneficial or equitable disposition.

27. For the aforestated reasons, we are of the view that no injustice  

had been caused to the appellant as his case was duly considered for  

promotion to the rank of Lieutenant General by the SSB twice but as  

other officers were found better than the appellant, he could not be  

15

promoted.  In the circumstances, we do not find any substance in the  

appeal and, therefore, the appeal deserves to be dismissed.

28. The appeal is dismissed  with no order as to costs.   

              …..……………...........................J.                (Dr. MUKUNDAKAM SHARMA)

              …….…………...........................J. (ANIL R. DAVE)

New Delhi September 14,  2011.  

16