Sunday 16 April 2023

Can the court presume that decisions taken by persons occupying high posts are valid?

 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 increases[1*].

[1* Letter to Mandell (later, Bishop) Creighton, April 5, 1887 Historical Essays and Studies, 1907.] {Para 19}

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 with the legality and validity of the decision and the rank of the decision maker does not make any diference.

SUPREME COURT OF INDIA

Civil Appeal No.5751 of 2017.

 BRIG. NALIN KUMAR BHATIA vs. UNION OF

INDIA

Before :- L. Nageswara Rao and Hemant Gupta, JJ.

 Date : 11 Feb, 2020


L. Nageswara Rao, J. - 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

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 nonempanelment,

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"(a) Setting aside of the unpublished / unnotified policy of the respondents, if any, whereby the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;

(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.

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 Staff 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

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 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 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 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 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 Staff/ERE/Instructional appointments. A

cautionary note given by the Chief of the Army Staff 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, 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 Staff

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 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-twodown"

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.

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

staff/Instr./others (Cols), 46 for Brigadier, 18 for Staff/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 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. 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 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 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 increases[1*].

[1* Letter to Mandell (later, Bishop) Creighton, April 5, 1887 Historical Essays and Studies, 1907.]

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 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 nonempanelment

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.

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.


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