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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11009 of 2017

Union of India & Others         ………Appellants

VERSUS

Col Ran Singh Dudee                  ....…. Respondent

AND

CIVIL APPEAL (Diary No.40312/2017) No. 5973  of 2018

JUDGMENT

Uday Umesh Lalit, J.

These appeals question the following judgments and orders passed by  

the Armed Forces Tribunal, Regional Bench, Lucknow.

(a) Civil Appeal No.11009 of 2017 is directed against the Judgment and

Order dated 17.01.2017:

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(b) Civil Appeal (Diary)  No.40312 of 2017 with an application for leave

to  appeal  is  directed  against  the  Judgment  and  Order  dated  12.09.2017.

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 as

Sowar in 1981.  He cleared the examination conducted by Union Public

Service Commission in the year 1988 and got commissioned as an Officer

and was posted as Second Lieutenant in the Ordnance Corps of the Army.

During  his  career,  he  received  some  commendations  and  appreciations.

However, the respondent was summarily tried under Section 83 of the Army

Act, 1950 (hereinafter referred to as the Act) by Commander, 29 Artillery

Brigade for  the offence of  ‘absenting himself  without leave’ for  03 days

from  27.06.1991  to  29.06.1991.   The  Respondent  pleaded  guilty  to  the

charge  under  Section  39(a)  of  the  Army  Act  and  was  sentenced  to

‘Reprimand’.

(B) While the respondent was serving as Major in 2004-05, he was

tried by General Court Martial on four charges.  The first charge was under

Section  52 to  the effect  that  while  the respondent  was  posted  at  Saugor

between November 2000 and May 2002, he pursued a case for procurement

of 8.64 hectares of land belonging to Government of Madhya Pradesh for the

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purposes of building a War Memorial in the memory of late Sepoy Hawa

Singh, who was the elder brother of the respondent.  The second charge was

connected to the first one and was to the effect that while performing duties

as  officiating  Commanding Officer  he  improperly  wrote  a  Demi Official

letter on 09.11.2000 to the Collector, Saugor for allotment of the aforesaid

land.  The third charge was connected to the second one while according to

the  fourth  charge  the  respondent  had  failed  to  submit  report  about  the

acquisition of said land in contravention of Army Order 3/S/98.

(C) On  16.05.2005,  he  was  found  guilty  of  the  first  and  third

charges but not guilty of the second and fourth charges and was sentenced to

be  cashiered  and  to  suffer  rigorous  imprisonment  for  three  years.   On

21.10.2005, the competent disciplinary authority confirmed the findings as

regards the first, second and fourth charges but did not confirm the finding

on the third charge  The sentence awarded by the General Court Martial was

confirmed  with  remission  of  six  months  out  of  three  years  rigorous

imprisonment.  Though the Court of Inquiry relating to the matter in issue

was  undertaken  on  07.07.2001  the  trial  in  respect  of  said  charges  had

commenced on 19.10.2004.   

(D) The respondent being aggrieved,  preferred statutory complaint

under  Section  165  of  the  Act.   During  the  pendency  of  said  complaint,

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selection for promotion to the rank of Colonel of 1988 Batch Officers was

undertaken in August 2006 and appropriate selections were made.  Since the

respondent, by that time had stood punished in the General Court Martial,

his candidature was not considered.     

(E) As his Statutory Complaint was not considered in due course,

the respondent filed a Writ Petition in the High Court of Delhi which was

later transferred to Armed Forces Tribunal, Calcutta.  In pursuance of the

directions  issued at  the interim stage  by the Armed Forces  Tribunal,  the

consideration  of  the  pending  Statutory  Complaint  was  taken  up  and  the

matter was referred to the learned Solicitor General of India for his opinion.

As the opinion given by the learned Solicitor General on 01.11.2013 has

been extensively quoted and relied upon in the Judgments under appeal, the

concluding part of the opinion is extracted hereunder:

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

18.  Even on merits, the finding of the guilt by the CGM is not tenable in view of the fact that even the Ministry is not clear in whose  name  the  land  was  allotted,  as  mentioned  above  in paragraph 12 and that the allotment was even otherwise valid in so far as the MP Government was concerned, as dealt with in

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paragraph  15.   There  has  been  no  challenge  to  the  findings arrived at by the magisterial inquiry.

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

(F) By Order dated 20.11.2013, the Central Government allowed  

the Statutory Complaint preferred by the respondent and directed:-

“8.  Now, therefore, the Central Government, under the powers conferred under section 165 of the Army Act, 1950 do hereby annul the proceedings of the General Court Martial findings and sentence dated 16th May, 2005 and confirmation order dated 21st October, 2005 being illegal and unjust and allow the petition filed  by  IC-47908F,  Major  Ran  Singh  Dudee,  of  36  DOU. Consequently, the penalty imposed upon IC-47908F Ex Major Ran Singh Dudee of 369 DOU stands quashed and he is entitled to all consequential benefits as admissible under rules on the subject.”

(G) The  respondent  was  thereafter  reinstated  in  service  on

13.01.2014 and paid all  consequential  benefits for  the entire period.   On

16.08.2014, the respondent was promoted to the rank of Lt. Colonel with

effect from 16.12.2004.  Sometime in January, 2015, an officer who was

junior  to  the  respondent  was  promoted  to  the  rank  of  Brigadier.   A

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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 time on

30.06.2015, the respondent was granted Time Scale promotion as Colonel,

on completion of 26 years of service.

(H) As  regards  the  grievance  made  by  the  respondent  and  his

representation  in  that  behalf,  the  matter  was  again  referred  to  the  Law

Officer of the Government of India who in his opinion dated 30.12.2015

opined that the respondent could not be denied promotion to the rank his

batch mates and immediate juniors were promoted, that the Government of

India having directed in the Order dated 20.11.2013 that all consequential

benefits  be  given  to  the  respondent,  the  mandatory  demands  under  the

relevant  Rules  would  stand  waived  and  that  the  respondent  should  be

granted the rank of a Brigadier. Serious reservation was however expressed

by the Department which was of the view that no promotion to the rank of

Brigadier could be granted except through the modalities of selection by the

Selection Board and an appropriate Note was written in that behalf by the

Additional  Secretary  in  the  Ministry  of  Defence  on  03.02.2016.  No.3

Selection Board was thereafter constituted and in the assessment made by

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said Selection Board on 26.04.2016, the respondent was not found fit and as

such was not empanelled.  

(I) The respondent being aggrieved filed OA No. 260 of 2016 in

the Armed Forces Tribunal, Regional Bench, Lucknow questioning his non-

empanelment in the rank of Brigadier.  It was submitted, inter alia, that:

(i) The  respondent  came  from  a  family  of  soldiers.   Though

enrolled as Sowar in the year 1981 by sheer dint of hard work he got

the status of a Commissioned Officer in the year 1988.  In his posting

in Kargil he received COAS Commendation Card.  He also received

Letter of Appreciation from General Officer Commanding 36 Infantry

Division and was recommended for Sena Medal in 2002.   

(ii) In 1990 he had made complaints  against  his  superiors  citing

various  irregularities.   Further,  sensing  threat  to  his  life  he  had

reported the matter to the Brigadier Commander.  Offended by such

reporting, the respondent was falsely implicated in a Court of Enquiry

which found nothing against him.  A first information report was also

lodged which was found to be stage managed.  On the contrary in the

Court  of  Enquiry,  the  officers  against  whom  the  respondent  had

complained, were found guilty and were suitably punished.

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(iii) In the year  1997 while  he  was posted  at  Jodhpur,  he  was a

member of the Tender Opening Board for Pokhran field firing ranges.

He had lodged complaint  to the superior authorities with regard to

mal-practices in auction proceedings pursuant to which proceedings of

auction were annulled.

(iv) Since he had reported about corrupt practices of the superiors,

the  superiors  in  retaliation  had  forged  the  documents  of  Revenue

Court ascribing motive to the respondent as regards allotment of land.

Though initially he was visited with an order of punishment, namely,

“Recording of Displeasure”, said punishment was later set aside.

(v) He was wrongly implicated in the General Court Martial.  In

any case  his  innocence  stood established by reason of  order  dated

20.11.2013 which inter alia had directed that he was entitled to all

consequential benefits.

(vi) In his submission because of  the pendency of General  Court

Martial proceedings he was kept out of active service for nine years.

Relying on the opinion given by the Law Officer on 30.12.2015 he

submitted that he was entitled to the rank of Brigadier.

(J) On the other hand, it was contended on behalf of the appellants

that the respondent did not fulfill the required criteria in terms of policy and

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had not put in requisite period of service while holding the rank of Colonel.

It was further submitted that promotion to the post of Colonel could either

be purely on the basis of selection by the Board or could simply be on the

basis of length of service which is normally known as time scale promotion.

The Selection  Board  in  question,  namely,  No.3  Selection  Board  had  not

found the respondent fit to be promoted by “Selection”.

(K) The Armed Forces Tribunal  principally relied on the opinion

dated  01.11.2013  of  the  learned  Solicitor  General  and  the  order  dated

20.11.2013 to come to the conclusion that the respondent was framed by

certain persons on unfounded grounds.  It further held that the order dated

20.11.2013 was clear that the respondent was entitled to all “consequential

benefits” and as opined by the Law Officer in his opinion dated 30.12.2015

the  respondent  ought  to  have  been  promoted  as  Brigadier.   The  Armed

Forces Tribunal found that the Department was not justified in ignoring the

opinion of the Law Officer and in generating the Note dated 03.02.2016.  It

concluded:

“There is no room for doubt that ordinarily, right to consider is a  fundamental  right  and  in  case,  the  case  is  considered  and incumbent  does  not  qualify  because  of  lack  of  criteria,  he cannot  lay  claim for  promotion.   However,  the  fact  remains where in the facts and circumstances as in the present, because of  grant  of  consequential  benefits  and  loss  of  promotional avenues by virtue of pendency of General Court Martial (supra) and  having  suspended  service  period  on  account  of  such

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proceeding which has been held to be based on unfounded facts and allegations, rights that accrue to the Applicant on account of setting aside of punishment order, include the right to seek promotion to  the  higher  rank from the date  his  juniors  have been promoted keeping in view the facts and circumstances of the present case.”

(L) The  Armed  Forces  Tribunal  thus  by  its  judgment  and  order

dated 17.01.2017 directed that a final decision be taken by the appellants

keeping in view the opinion expressed by the Law Officer for promotion of

the respondent to the rank of Brigadier “Selection Grade”.

(M) The appellants being aggrieved approached this Court by filing

Civil Appeal No.11009 of 2017.  While issuing notice, this Court passed the

following direction on 01.02.2017:

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

(N) No.3 Selection Board was, therefore, constituted on 3.02.2017

which  considered  the  candidature  of  the  respondent  and  the  question

whether he was fit to be promoted by selection to the rank of Colonel. The

proceedings dated 13.02.2017 indicate that the Board considered the profile

of  the  respondent  alongwith  three  other  officers  (Two  of  them  being

empanelled officers - the second being the lowest empanelled officer and the

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third being one who was not empanelled).  As per record, the matter was

considered on the basis of six indicia  namely (i) Overall C.R. Profile, (ii)

Lowest  C.R.  Assessment,  (iii)  Recommendations  for  promotions,  (iv)

Course Profile, (v) Lowest Course grading and (vi) Discipline Profile. As

against  the  candidates  who  were  empanelled  and  the  one  who  was  not

empanelled, the respondent’s profile was found to be 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 officers had “NIL” entry the profile of

the respondent indicated “reprimand” which was issued in 1991. It may be

noted that  only one out  of  those three officers  who was empanelled had

“Average CR Profile” graded as “Above Average to Outstanding” which was

the  same  as  the  respondent.  Considering  the  comparative  profile  of  the

respondent and those three officers, it was found that the respondent was not

fit to be promoted by selection to the post of Colonel.   

The  assessment  made  by  the  aforesaid  No.3  Selection  Board  was

approved by Chief of Army Staff.

(O) The Comparative Chart regarding profile of those three officers

and the respondent is extracted hereunder. We have however not disclosed

the names of those three officers.

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Comparative Profile

Last Empanelled Officer

Officer  not Empanelled

Officer Empanelled

Respondent

Name Lt. Col x Lt. Col y Lt. Col z Col (TS) RS Dudee

Overall CR  Profile

Above Average

Above Average

Above  Average to  Outstanding

Above  Average to  Outstanding

Lowest CR  assessment

8 8 8 7

Recommendations for promotion

Should promote

Should promote

Should promote

01x May  promote

Course Profile Average to  above  Average

Average to  above  Average

Average to  above  Average

Below Average  to Average

Lowest  Course Grading

C C C E

Discipline Profile

Nil Nil Nil Reprimand  Dec 91  Army Act  Section 39  (Absence  without  Leave)

(P) The  respondent  challenged  the  decision  of  No.3  Selection

Board  by filing  OA No.104  of  2017 before  the  Armed Forces  Tribunal,

Regional Bench, Lucknow. When Civil Appeal No.11009 of 2017 was taken

up,  this  Court  recorded  the  fact  that  the  Selection  Board  had  found  the

respondent unfit to be promoted as Colonel against which decision challenge

was pending before the Armed Forces Tribunal.  The appeal was, therefore,

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adjourned  to  await  the  decision  of  the  Armed  Forces  Tribunal  while

continuing the interim order passed earlier.   

(Q) The Tribunal  reproduced the   Comparative  Chart  which was

part of the record including names of the officers concerned.  According to

the Tribunal the entry of “Reprimand” which was of the year 1991 could not

and ought not to have been taken into account, more particularly when 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) the respondent was

definitely found lower than other three officers but relied upon the fact that

the  overall  C.R.  Profile  was  adjudged  “Above  Average  to  Outstanding”

whereas  the  lowest  empanelled  officer  was  actually  graded  as  “Above

Average”.  The Tribunal observed:

“31. We  have  noticed  that  over  all  profile  of  the empanelled  officer  is  above  average  whereas  the  applicant’s over  all  profile  is  above  average  to  outstanding.   How  the applicant’s over all profile has been adjudged to be lower than the last selectee is not comprehensible.

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

(R) The Tribunal thus found the analysis and assessment made by

No.3 Selection Board to be perverse.  While allowing Original Application

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No.104 of 2017 vide its judgment and order dated 12.09.2017,  the Tribunal

directed the appellants to constitute a fresh Selection Board and reconsider

the case of the respondent in the light of the judgment of the Tribunal.  The

Tribunal also awarded costs to the respondent which were quantified at Rs.5

lakhs.   

(S) The  appellants  thereafter  approached  the  Armed  Forces

Tribunal under Section 31 of the Armed Forces Tribunal Act, 2007 seeking

leave  to  appeal  to  this  Court.  The  application  was  however  rejected  on

13.11.2017,  whereafter  Civil  Appeal  (Diary)  No.40312  of  2017  was

preferred by the appellant alongwith an application for leave to appeal.

3. Both  these  appeals  being  inter-connected  and  between  the  same

parties, were taken up for hearing together. We heard Mr. Maninder Singh,

learned Additional Solicitor General who appeared for the appellants while

Colonel  (TS)  RS  Dudee(Retd.)  appeared  in-person  and  made  his

submissions.

4. The hierarchy in the Army and the method of selection and promotion

was considered by this Court in  Union of India  v.  Lt. General Rajendra

Singh Kadyan1 as under:

1 2000 (6) SCC 698

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“11. The  hierarchy  in  the  Army  and  the  method  of selection and promotion to various posts starting from the post of Lieutenant and going up to the post of the Chief of the Army Staff will clearly indicate that the posts of Lieutenant, Captain and  Major  are  automatic  promotion  posts  on  passing  the promotion examination irrespective of inter se merit, whereas the posts from Major to Lt.  Colonel,  Lt.  Colonel to Colonel, Colonel  to  Brigadier,  Brigadier  to  Major  General  and Major General  to  Lt.  General  are  all  selection  posts  filled  up  by promotion  on  the  basis  of  relative  merit  assessed  by  the designated Selection Boards…..”  

Since the aforesaid decision, there has been an amendement and as the

situation presently stands2, all promotions upto the rank of Lt. Colonel are

time-bound promotions without involvement of any selection process and it

is  only  for  the  promotion  from  the  post  of  Lt.  Colonel  to  Colonel  and

upwards that Selection Boards are constituted. The composition of relevant

Selection Boards in terms of Selection System is as under:-  

“Composition of Selection Boards

1. Special Selection Board

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

(b)Composition: (i) Chairman - COAS (ii)Members          - Army Cdrs (5) VCOAS (iii)Secretary -MS

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

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2. No. 1 Selection Board

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

(b)Composition (i)Chairman  - COAS (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.

(b)Composition (i)Chairman           - Army Cdr (1) (ii)Members           - Corps Cdr (1)                                  Lt. Gen. of Staff                                  [Should have commanded a Div.(1)]                                  Maj. Gen. (GOC Div) (1)                                  Maj. Gen. (Staff) (1)   

     (iii)Secretary        - Addl.MS (B)       (iv)In attendance  - Respective Heads of Arm/Services       

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

     (iii)Secretary  -Dy. MS(B)       (iv)In Attendance  - Respective Heads of Arm/Services.”

5. We  are  presently  concerned  with  selection  from  the  post  of  Lt.

Colonel to the rank of Colonel and the appropriate Selection Board would

therefore be No.3 Selection Board with Officer of the rank of Lt. General as

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Chairperson,  two  members  of  the  rank  of  Major  General  and  two  Div.

Commanders.  On few occasions this Court has considered the cases where

the assessment and analysis made by such Selection Boards were directly

put  in  question.   Some  of  the  observations  of  this  Court  are  extremely

relevant for the present purposes:

(a) In  Dalpat  Abasaheb  Solunke  v.  B.S.  Mahajan3  this  Court

observed:

“……..It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees  and  to  scrutinize  the  relative  merits  of  the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise.  The  decision  of  the  Selection  Committee  can  be interfered with only on limited grounds,  such as illegality or patent material irregularity in the constitution of the Committee or  its  procedure vitiating the selection,  or  proved mala fides affecting the selection etc. ……”

(b)  In Air Vice Marshal S.L. Chhabra, VSM (Retd.) v. Union of  

India4,  this Court observed:

“……No oblique motive has been suggested on behalf of the appellant  against  any of the members of the Selection Board and there is no reason or occasion for us to infer such motive on the part of the members of the Selection Board for denying the promotion  to  the  appellant  with  reference  to  the  year  1987. Public  interest  should  be  the  primary  consideration  of  all Selection  Boards,  constituted  for  selecting  candidates,  for

3 1990 (3) SCC 305 41993 Supp (4) SCC 441

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promotion to the higher posts, 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 its own 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 may  neither  be  conducive  to  the  interests  of  the  officers concerned or for the morale of the entire force. Maybe one may emphasize one aspect rather than the other but in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we cannot substitute our view to that of the authorities. It is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the  administrative  decisions  have  nexus  with  the  facts  on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such…..”  

(d) Further,  in  Surinder  Shukla  v.  Union  of  India5, it  was

observed:

“11. Considering  the  comparative  batch  merit,  if  the Selection Board did not recommend the name of the appellant for  promotion to the rank of  Colonel  which appears to  have been approved by the Chief of Army Staff, it is not for the court exercising power of judicial review to enter into the merit of the decision. The Selection Board was constituted by senior officers presided over by an officer of the rank of Lt. General. It has been contended before us that the Selection Board was not even aware  of  the  identity  of  the  candidates  considered  by  them because only in the member data sheet all the informations of

5 (2008) 2 SCC 649

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the candidates required to be considered by the Selection Board are stated, but the identity of the officers is not disclosed. The appellant  moreover  did  not  allege  any mala  fide  against  the members of the Selection Board…..”

6. The  first  question  that  arises  is  regarding  the  significance  of  the

expression “consequential benefits” as used in the order dated 20.11.2013.

The matter  which was directly  in  issue  and under  consideration  was the

correctness  and  validity  of  General  Court  Martial  proceedings.   While

annulling the findings and effect of such General Court Martial proceedings,

the idea was to confer those benefits which the officer stood denied directly

as a result of pendency of such proceedings.  Such benefits would therefore

be those which are easily quantifiable namely those in the nature of loss of

salary,  emoluments  and  other  benefits.   But  the  expression  cannot  be

construed to mean that even promotions which are strictly on the basis of

comparative merit and selection must also stand conferred upon the officer.

It  is  true  that  as  a  result  of  pendency  of  the  General  Court  Martial

proceedings the respondent was kept out of service for nearly nine years and

as such his profile would show inadequacy to a certain extent.  On the other

hand the Department was also denied of proper assessment of the profile of

the respondent for those years.  The correct approach in the matter is the one

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which was considered by this Court in  Lt. Col. K. D. Gupta  v. Union of

India and Others6 as under:-

“8. The respondents have maintained that the petitioner has not served in the appropriate grades for the requisite period and has  not  possessed the  necessary  experience  and training and consequential assessment of ability which are a precondition for promotion.  The defence services have their  own peculiarities and special  requirements.  The considerations  which apply  to other government servants in the matter of promotion cannot as a  matter  of  course  be  applied  to  defence  personnel  of  the petitioner’s  category  and  rank.  Requisite  experience, consequent exposure and appropriate review are indispensable for according promotion and the petitioner, therefore, cannot be given  promotions  as  claimed  by  him  on  the  basis  that  his batchmates have earned such promotions.  Individual capacity and  special  qualities  on  the  basis  of  assessment  have  to  be found but in the case of the petitioner these are not available. We find force in the stand of the respondents and do not accept the petitioner’s contention that he can be granted promotion to the higher ranks as claimed by him by adopting the promotions obtained by his batchmates as the measure.”

7. The opinion of the learned Solicitor General dated 01.11.2013 and the

consequential order dated 20.11.2013 must be confined to the question of

validity and correctness of the General Court Martial proceedings and the

benefits  which  respondent  stood  denied  purely  as  a  result  thereof.   The

concept that he must be granted those promotions which his batchmates or

juniors received and the idea that he must also be considered for promotions

which are strictly based on “selection” basis have not been accepted by this

61989 Suppl (1) SCC 416

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Court in  K.D. Gupta (supra).  The Tribunal therefore completely erred in

passing the directions in its order dated 17.01.2017.  Since the opinion of the

Law Officer dated 30.12.2015 was not consistent with the provisions of the

relevant rules and the law declared by this Court in K.D. Gupta (supra), the

Department  was  justified  in  expressing  serious  reservations  and  in

generating note dated 03.02.2016.  The Tribunal,  in our considered view,

attached  undue  importance  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.3

Selection Board which found the respondent unfit for selection as “Colonel”.

The matter was analyzed by the Board on six indicia or parameters.  The

assessment was cumulative taking into account 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 was not empanelled at all.  Apart  therefrom, the entry of reprimand as

against indicia No.(vi) also put the case of the respondent in the negative.  At

this stage we may consider whether the entry of reprimand of the year 1991

was rightly or wrongly taken into account.   

9. In terms of Paragraph 10 (f) of the Selection Policy dated 06.05.1987

which has been placed on record by the appellants, disciplinary award forms

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part of the overall profile of an Officer.  Said provision in fact lays down,

“character,  qualities,  disciplinary  background  and  decorations  form  an

important input to the overall profile of an Officer and due consideration

should be given while assessing border line cases.”  The action on part of the

Selection Board in relying upon the entry of reprimand was thus consistent

with Selection Policy and could not be characterized as incorrect or illegal in

any manner.  In any case that was not the only pointer which weighed with

the Selection Board.  Even eschewing such entry, the respondent was still

found to be lower  as  against  three Officers  on other  three indicia.   It  is

relevant  to  note  at  this  juncture that  even though one out  of  those  three

Officers had fared better than the respondent on those three indicia and also

did not have any entry or reprimand, he was not an empanelled Officer.  It is

precisely for this reason that the law as laid down by this Court is, “whether

a candidate is fit for a particular post or not has to be decided by the duly

constituted Selection Committee which has the expertise on the subject.”   

10. It is true that overall CR profile of the respondent was better than the

last empanelled officer.  But the respondent was certainly lower on other

three  indicia  or  parameters.   It  is  the  cumulative  assessment  which  the

Selection Board was expected to and did undertake.  Going by the law laid

down by this Court, it cannot be said that the assessment of the Selection

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Board suffered on any count.  This case is not where irrelevant factors have

been  taken  into  account  or  relevant  factors  have  been  missed  out  or

eliminated  from  consideration.   The  Selection  Board  comprised  of  high

ranked officials from Indian Army.  No malafides have been and could be

attributed to the actions on part of the members of the Selection Board.  The

Tribunal was thus wholly unjustified in finding the assessment made by the

Selection Board to be perverse.   

11. Having considered the matter in its  entirety, we cannot support the

view taken by the Tribunal.  According to us, the approach of the Tribunal

and the assessment made by it were completely erroneous. The Tribunal was

also not justified in awarding costs of Rupees five lakhs to the respondent.   

12. It  may be  that  the  respondent  was  wrongly  proceeded against  and

punished  by  General  Court  Martial.   He  was  also  awarded  sentence  of

imprisonment  and lost  out  nine  years  of  service.   The prejudice is  quite

apparent.  However sympathy cannot outweigh the considerations on merit.

He has received time scale promotion to the rank of Colonel after having put

in  26  years  of  regular  service.   But  if  he  was  not  found  suitable  for

empanelment by way of selection, the matter must end there.  

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13. We therefore  allow both  the  appeals  and  set  aside  Judgments  and

Orders  dated  17.01.2017  and  12.09.2017  passed  by  the  Armed  Forces

Tribunal, Regional Bench, Lucknow.

14. No order as to costs.   

………………………J. (Adarsh Kumar Goel)

………………..……J. (Uday Umesh Lalit)

New Delhi, July 3, 2018