+ .+ IN THE HIGH COURT OF DELHI W.P.(C) No. 1O63O/2OO6 % ludgment resetved on : August 29, 2006 Judgment delivered on : October L7, 2006 # Major Gen B.D. Wadhwa, AVSM ....Petitioner, through: Mr.R.K. Anand, Sr. Advocate, with Ms. Shivani Lal, Mr. Manoj Ohri, Mr. Bhagwan Sharma, Mr. Chetanya Anand & Mr. D. Das, Advocates, Versus $ Union of India and Ors. .... Respondents through : Mr. Rajeev Mehra with Mr. Aruind Sharma, Advocate, for the respondent no, I to 3/Union of India. Mr. Ashim Vacher with Mr. Achal Gupta, Advocates, for the respondent no.4. CORAM : HON'BLE MR. JUSTTCE SWATANTER KUMAR . HON'BLE MR. IUSTICE G.S. SISTANI L. Whether reporters of local paper may be allowed to see judgment? 2. To be referred to the reporter or not? 3. Whbther the judgment should be referred in the Digest? SWATANTER KUMAR, J. L. In the year 1965, the petitioner joined the National W.P.(C| No. 1. O63O l2OOG Page NO. 7 of 44 ,P' & Digitally Signed By:AMULYA Signing Date:18.10.2023 10:43 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified \\ Defence Academy at Khadakwasla, Pune. He passed out from the said Academy and on 15.6.1969 was commissioned in the Indlan Army in the Corps of EME, a technical division of the Indian Army. The petitioner claims to have attended and cleared various courses including YO's course, Long Technical Advance Course in Armament Technology, Six m.onths foreign course in USSR in guided weapon system and Company Commanders Course. 2. ln the year 1982, the petitioner claims to have been awarded the Commandant's Medal for securing first position in COY Company Commanders Course of the EME. As a result of his distinguished service profile and hard work, the petitioner picked up his rank as Lt. Colonel and Colonel. In addition to pursuing his professionat courses, the petitioner obtained a Master's Degree in Mechanical Engineering (Production Technology) from M.S. University, Baroda. The petitioner was deputed to do one of the Army's most distinguished courses, the Long Defence Management Course. The petitioner was selected for the said course along with respondent no.4 and while the petitioner was retained as a "directing staff" on account of his high position in merits, respondent no.4 proceeded on "staff". Finally,'the petitioner was approved for promotion to the rank of Brigadier in the year 1999' and he led the Inter-Service Defence Technical Delegation to France to view and study the French Defence Industry in the year 2002. W.P.(C| No. LO63OL2OOG Page NO. 2 of 44 1P t' The petitioner was appointed as Technical Secretary to the Indo-US Technical Working Group (DRDO), Washington, USA in the year 2003. With his illustrious service carrier, the petitioner was approved for promotion to the next rank of Major General in the year 2000, the rank which he picked up subsequently. On 26.L.2006, the petitioner was awarded AVSM (Ati Vishisht Seya Medal) and the same was conferred by the President on 31.L.2006. The petitioner became due and was to be considered for promotion to the next higher rank of Lt. Generat by the Special Selection Board, which was to be held in April 2006. The petitioner, along with others including respondent no.4, was considered, but on 16.6.2006 the name of respondent no.4 was approved and he was empanelled to the rank of Lt. General in the Corps of EME while the petitioner was rejected by the Board. Rggrieved from this action of the respondents, the petitioner has approached this Court under Article 226 of the Constitution of India praying that the Court may quash the letter dated L6.6.2006 empanelling the name of respondent no.4 as well as the letter dated 26.6.2006 rejecting the empanelment of the petitioner for promotion to the next higher rank of Lt. General and they be directed to empanel the petitioner and give him his due seniority and all other benefits in that rank. 3. The principal ground taken by the petitioner is that action of the respondents is entirely arbitrary and discriminatory. lt is not W,P.(C| No. 7O63OL2OOG Page NO. 3 of 44 cy\ only that the ACR profile of the petitioner is better than the respondent no.4, but he is better qualified and is a more decorated officer than the said respondent. More so, the award of AVSM is awarded for distinguished service of very high order rendered to the Nation. lt is also the ground of challenge by the petitioner that the Master Data Sheet was not portrayed correctly exhibiting the service profile of the petitioner along with courses, awards etc. and thus, the empanelment of the respondent no.4 is based upon taking into consideration all irrelevant material, while ignoring relevant materials in favour of the petitioner and the selection has been made in a manner which is not supported by the rules and regulations and practice of the Army Headquarters. The petitioner has specifically taken the ground by mentioning that Major General V.C. Jain, who was junior to one Major General M.G. Girish was empanelled and he picked up the rank of Major General primarily on the ground that he was technically more qualified and had done post graduate course in Engineering and a Course at USSR. Applying the same principle, the petitioner was entitled to receive preference over and above respondent no.4. The petitioner claims that he is not only senior to respondent no.4 but has a better grading in the ACRs and is technically more qualified and better suited for holding the post of Lt. General in the Directorate of EME. 4. Separate counter affidavits were filed on behalf of the W.P.EI No. 7O63O|2OOG Page NO. 4 of 44 <v "Y respondents no.L to 3 and 4 respectively. The stand of the Union of India, respondents no.L to 3 is that the present petition before this Court is incompetent in as much as the petitioner has been considered by a duly constituted Special Selection Board in accordance with the parameters and provided criteria. The post of Lt. General, being a selection post, the Selection Board, on comparative better merit of respondent No.4 empanelled him while the petitioner could not make the grading to be empanelled for the promotion post. According to the respondents, the petitioner does not belong to the general category and is eligible for consideration for promotion from Major General to Lt. General only in the 'Staff Stream' and within his Corp. The issue of promotion under the 'Staff Stream' does not arise as the L969 batch of EME has not yet come up for consideration for promotion in the 'Staff Stream' to the rank of Lt. General. The basic facet of pyramidcal rank structure of the Army is such that as the rank increases, the number of vacancies in the higher rank decreases. Furthermore, only those officers whose record of service merits promotion, are short-listed for promotion to the higher rank based on their overall profile and comparative merlt. 5. The Selection Board and the competent authority, according to the respondents, take into consideration number of factors such as war/operational reports, course reports, ACR, performance in command and staff appointments, Honours and W.P.(C| No. 7O63O[2OOG Page NO. 5 of 44 u 'vl Awards, comparative profile of officers under consideration etc. Thus, the decision of the empanelment is based upon overall profile of an Officer and comparative merit with his batch. The petitioner was considered along with other eligible Major Generals of EME including respondent no.4 by a Special Selection Board held on 7.4.2006 for promotion to the rank of Lt. General. This was done with the aim to fill vacancy within EME arising on 5.9.2006. Recommendations of the Selection Board were examined by various authorities in the Army Headquarters as well as in the Ministry, and respondent no.L, after considering the recommendations of the Special Selection Board did not find the petitioner fit for promotion within the Corp based upon his overall profile and comparative merit. As a result, the petitioner was not empanelled for the rank of Lt. General. Reliance was placed on para 108 of the Regulations for the Army, 1987 , which reads as under:- 'L08 Constitution and Dutles of Selection Boards. S Army Medical Corps, and Military Nursing Seruice) are constituted as required under the order of the Chief of the Army Staff. Their composition and duties are given below:- (a) Composition Presiding Officer ..Chief of the Army Staff or any other senior officers as directed by him according to the importance of the Selection Board. Members - As directed by the Chief of Army Staff from time to time in accordance with the W.P.EI No. 7O63O12OO6 Paae NO. 6 of 44 {\ Secretary - (b) (c) nature of their duties. MS/AddlMS/Dy MS Frequency of Meeting :- As required by the Chief of the Army Staff. Duties (i) Assessment of officer for promotion to Lt. Col. and above in accordance with the criterla laid down for selection. (ii) Any other matter which the Chief of the Army Staff may direct the Board to consider. (d) The assessment of the Selection Board shall be recommendatory in nature and not binding until approved by the competent authority viz the COAS or the Central Government as the case may be. (e) The Central Government or COAS have the inherent power to modify, review, approve with variation or repeal recommendations of the Selection Boards." (emphasis supplied)" 6. In regard to the comparative merit of the petitioner and respondent no. 4, respondents no.L to 3 have taken the stand that "Workshop of Company Commander's Course" done in the rank of Captain way back in the year 1,982, is not at all an All Arms Course . The attempt to draw a comparison with respondent no.4 on this basis, thus, is not relevant. In fact, the petitioner and two others including the respondent no.4 were awarded A1 grading,.thus they were at parity in regard to this course. As far as the Long Defence W.P.O| No. 7O63OL2OO6 Paoe NO. 7 of 44 qr6 t Management Course was concerned, it is not disputed that the petitioner was awarded Instructor grading with above average performance . The respondent no.4 as per records had qualified in five 'All Arms Courses' i.e. Junior Command, Senior Command, Staff Course, Long Defence Management Course and Electronic Warfare Course. The term "retained in CDM"after doing LMC as stated by the petitioner is misleading. In fact, the Instructor in CDM is posted by MS Branch in accordance with the organizatlonal requirements. The posting to LDMC as Instructor in no way gives him edge over others in the matter of promotion as all Officers after completion of the LDMC Course are given important appointments. Respondent no.4 was posted to the MS Branch based on the organizational requirements while the petitioner was retained at CDM for Instructor's duties. Respondent no.4 was also graded with 'lnstructor' grading and credited with outstanding performance in the said course. As regards the grading given by the Osmania University leading to award of MMS Degree, it is stated that respondent no.4 qualified the same in 1st class with distinction securing 10th place out of 72, while the petitioner secured 1st class but was placed at 48th place out of the 72 persons. lt has been specifically disputed that Major General V.C. Jain was empanelled in preference to Major General M.G. Girish on the basis of higher educational qualification (M.Tech). It is argued that he was W.P.(C| No. 7O63O[2OOG Page NO. 8 of 44 ]F preferred (despite the fact that both of them belonged to different batches) on the basis of the entire service record and better comparative merit. 7. At this stage it may be relevant to notice that in paragraph 11 of the petition, the petitioner had made averments with regard to the criteria which the authorities are expected to take into consideration, in reply to which the respondents have stated as under:- "That the contents of answering para save to the extent being matter of record are wrong and denied. In reply to this para it'is submitted that Annual Confidential Reports profile, Courses, Honours and Awards, Appointment held, sustained good performance, employability (to be judged by the All Arms Courses and career courses) in higher rank, military standing, discipline background, if any etc., are all taken into account by Special Selection Board in judging fitness or othenrvise of an officer for promotion. The Special Selection Board comprises of the COAS, the VCOAS and the Army Commanders who apply all relevant parameters and yardsticks to evaluate comparative merit of the officer under consideration for promotion. To the rank of Lt. Gen. And while assessing ACR profile all reports earned in the rank of Brigadier and reports in the rank of Manor General (up to cut off ACR), War Reports and Battle Performance Reports earned in any rank are taken into consideration alongwith other inputs forming part of over all profile of an officer. lt is before the Selection Board and it is not the sole criteria for selection. Contents of the paras herein above are reiterated and reaffirmed herein." 8. In addition to meeting the case of the petitioner on W.P.(C| No. LO63OL2OOG Page NO. I of 44 r{ vu merits, the respondents have taken a specific objection that the petitioner is not privy to the record of other officers which are confidential in nature and reference by the petitioner to his Confidential Record as well as that of others, itself is a ground on which this Court should decline to grant relief to the petitioner. 9. The respondent No.4 who filed a separate counter affidavit has not disputed the basic facts in relation to appointment and picking up of ranks by the petitioner but has seriously disputed that the petitioner in any way has a better seruice profile, ACRs or service career which on comparison can be said to be, in any way, better than that of respondent No.4. According to this respondent, the petitioner and he both are of L969 Batch and he passed out from Officers Training School, now called Officers Training Academy, in the year L97I with ante date seniority of 2 years being a Technical Graduate and as such the petitioner is not senior to him. In regard to various courses stated to have been completed by the petitioner, case of respondent No.4 is that he has done the Company Commander Course, EME, in the year 1982 and was awarded 'A' Instructors Grading. He has also completed Advance Course in Electronics Engineering (Communication) and was graded 'A' in the said Course and he is M.Sc. in Defence Studies from University of Madras and MBA from Faculty of Management Studles, University of Delhi, as such he is no way less in academic profile W,P,(C| No. LO63O12OO6 Page NO. 7O of 44 than the petitioner. The said respondent also submits that he has done his Masters Degree in Management from Osmania University in the same year as has been done by the petitioner and he was placed at a higher ranking. In addition to all this, the said respondent claims that he has done the following important courses: "a. Officers Radio Equipment Courses with "Distinguished" grade. b. Junior Command Course from College of Combat, Mhow, now known as Army War College, Mhow. c. Senior Command Course from College of Combat, Mhow, now known as Army War College, Mhow. d. ArmY Staff Course where he was awarded"psc" which the Respondent No.4 did from Defence Service Staff College, Wellington. e. Electronic Warfare Course at Military College of Telecommunications (MCTE) at Mhow, which is a Premier tnstitution of the Corps of Signals. f. Army Scientifrc Orientation Course at the lnstitute of Armament Technology at Pune under Defence Research & Development Organization (DRDO), now a deemed UniversitY. g. Senior Officers (EquiPment_ Management) Course at Military College of EME (MCEME), Secunderabad. 10. Respondent No.4 also claimed that in addition to the W.P,@l No. 7O63O12OO6 Page NO. 77 of 44 .1, other academic and professional courses, he held various important appointments in his illustrious Army career including Commandant Independent EME detachment in captured Pakistan Territory, Joint Director EME, (Ops & Plan) at Army Headquarters, Colonel 'Q', Brigadier Operational Logistics at Headquarters Norther Command 0&K). 11. To sum up, the case of respondent No.4 is that he is not only more qualified than the petitioner but has also held much more significant appointments in his career. The Special Selection Board after taking into consideration all aspects of service have empanelled the said respondent in preference to petitioner and this decision cannot be gone into by the Court on merits. This respondent has also denied that Major General V. C. Jain was promoted to the rank of Lieutenant General being an M.Tech. In fact, out of a' number of officers who have held the post of Commandant, Military College of EME, only Lieutenant General V.C. Jain was having the degree of M.Tech and none of the other officers.. were having that pegree. On the contrary, out of 11 officers, at least, three officers, namely, Lieutenant General M.R. Kochhar, Lieutenant General D.B. Singh, and Lieutenant General R.K. Mehta have done their Staff College Course and they held the appointment of Commandant, Military College of EME. lt is further stated that right from the inception of the EME Corps in the year 1943, 24 W.P.@t No. 7O63O|2OOG Page NO. 72 of 44 ctP officers have held the Corps of EME and have held the post of Director General of EME. Out of these 24 officers, the data is available with regard to officers from 1956 till date. Out of such officers, only three officers have M.Tech degree or equivalent thereto while the rest of them were promoted without such a Degree clearly demonstrating that it is not a pre-condition to promotion to the rank of Lieutenant General that such a Degree should be possessed by the candidate. lt is also disputed that the Special Selection Board overlooked the ACRs of the petitioner. In fact, on a comparative merit, respondent No.4 has been found to be having better distinguished service career and has rightly been empanelled. According to this respondent, the action of the Competent Authority is neither arbitrary nor discriminatory. lt does not violate any rule/regulation or established practice. 12. At this stage, it may be appropriate to note that during the course of hearing the petitioner had filed a table showing comparison between himself and the respondent No.4 in relation to various factors which, according to him, are to be considered by the Selection Board for empanelment. TECHNICAL COURSES W,P.EI No. 7O63O12OO8 Page NO. 73 of 44 Petitioner Respondent No.4 Remarks S.No Course Gradino Course Gradinq L, YO Course B YTO Course B Petitioner stood first on the course A 2 Officers Armament and Instrument Equipment Short Course B Officers Radio Equipment Short Course Distinguished 3 officers Advance Armament Engineering Course A (TNSTRUCTOR) orrcers Advance Electronics Engineering Course A Petitioner awarded Instructor Grade 4 Workshop Company Commanders Course A (TNSTRUCTOR) worKshop Company Commander s Course A (TNSTRUCTOR) (a) Petitioner stood first on the Course (b) Petitioner Awarded Commandant's Medal for BEST ALL ROUND PERFORMANCE 5 Specialisation Course Abroad in USSR Qualified Respondent No.4 has hot done any course abroad. 6 so (EME) Course SO (EME) Course Qualified Petitioner detailed but could not attend due to exiqencies 7 M, Tech (Mechanical Engineering - Specialisation in Production Technoloqv) Honours Grade with Distinction Respondent No.4 is not a Post Graduate in any Engineering Discipline I B,E. (Mechnical Enqineerinq) 1st Division (6s%) B.E. (Electrical Enoineerinq) l-st Division (6Lo/o) 9 Officers Equipment Management Course Qualified Senior Officers Equipment Management Course Qualified t ALL ARMS COURSES PROFILE w.P.Gl No. 7O63O/2OO6 Page NO. 14 of 44 Petitioner Respondent No.4 Remarks S.No Course Course a7 ," 1. Long Defence Management Course Long Defence Management Course (a) Both Officers awarded Instructor Grade. (b) Petitioner posted to College of Defence Management as Directing Faculty (A General Cadre Appointment). (c) Respondent No.4 posted as Col MS (EME) a non graded apoointment. 2 (a) Army Staff Course (a) Respondent No.4 did a Staff Course in 1983. (b) Junior Command Course (2 (b) was compulsory for Officers appearing in Staff Course or Qualified for Entrance in Staff Course). This was not a compulsory Course for EME Officers till 2005. (c) Army Scientific Orientation Course is not a separate course but only an adjunct to the Army Staff Course. This was also compulsory likewise for Officers who qualified in Army Staff Course. Aim was to orient Officers from Non Technical Arms and Seruices towards basic Technologies, conducted at lAT, Pune. Since discontinued wef L993.This capsule was of little/no relevance to Technical Officers 2 (b) Junior Commandant Course 2 (c\ Army Scientific Orientation Course 3 Electronics Warfare Course This is not a Course by detailment by MS Branch. Vacancies are distributed by MT Dte, by numbers, to the Line Dtes and Command HQt. Nomination is not by any selection process. 4 Senior Command Course W.P.GI No. LO63O|2OO6 Pase NO. 75 of 44 f, It may be noted that Corps of Electronics and Mechanical Engineers is not an Arm but a Technical Seruice. Therefore emphasis on All Arms Courses being laid is not understood. For selection of L966 batch from Maj Gen to Lt Gen in the year 2002-03 Maj Gen MG Girish was overlooked for promotion by Maj Gen VC Jain, although Maj Gen MG Girish had done seven All Arms Courses (NDC, LDMC, PWO, SC, PTSC, JC and PARA) as compared to Maj Gen VC Jain who had done only two (NDC and LDMC). PROFILE AS AN INSTRUCTOR S.No Petitioner Respondent No.4 Remarks L. Instructor EME School, Baroda, 2 Directing Faculty College of Defence Manaoement. 3 Instructor College of Military Engineering (CME) AWARDS - A COMPARISON W.P.Q| No. LO63O(2OOG Page NO. 16 of 44 S.No. Petitioner Respondent No.4 Remarks 1. Commandant's Medal for Best All Round Performance 2 AVSM AVSM Respondent No.4 was recommended for VSM only by the Initiating Officer, Lt. Gen VK Dhir, PVSM, AVSM (Retd.) G\ 2005 Meerut Ratan Intellectuals Honour Award The award conferred on the Petitioner was not accepted in person, pending -h clearance from the AHQ. COMPARISON OF APPOINTMENTS :BRIG AND MAIOR GENERAL Respondent No.4 Petitioner Maj Gen 1.3. tn addition to the above, according to the petitioner, he performed better in the rank of Major General than respondent No.4 as he had received 35 '9s' while the respondent No.4 received only 26 '9s' and his general ACR profile was much better than the said W.P.E| No. LO63OL2OOG Page NO. 77 of 44 (a) Commanded an EME Training Centre, one of the only 'two of Corps of EME. (Strength of training recruits 7000 as against the capacity of 2800). Commanded 2 Army Base Wksps. (Strength of 1200-1,500 each) Brig OL HQ Northern Command (for one year) Deputy Assistant Chlef (HQ lntegrated Defence Staff) for 2 06 Months (c) Cdr. Technical Group, as a Major General. (Strength of Technical Group) Brigadiers :04 Other Officers :50 Military Personnel :350 and Civilians Cdr Base Workshop Group, a Major General (Strength Base Workshop Group) Brigadiers :08 Other Officers :196 Mifitary Personnel :2200 Civs Personnel :13300 AS of ,+ 'l respondent which clearly establishes his plea. 14. The main line of arguments raised on behalf of the petitioner is that the Court is entitled to investigate the action of the authorities with a view to see. whether it has taken into account matters which ought not to have been taken into account or conversely has refused or neglected to take into account the matters which it ought to take into account. lt is also contended that no promotion board or authority can exercise unfettered discretion. The process of selection should essentially be in conformity with the basic rule and should not be arbitrary, discriminatory in its form and conclusion. In support of his contention, he relied upon the judgments of Associated Provincial Picture Houses. Ltd. vs.