Case: BRIG. NALIN KUMAR BHATIA Vs. UNION OF INDIA AND ORS

04.01.2011 superseded all earlier policies on the conduct by selection boards of quantification system. 15.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 (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 non-empanelment of the Appellant being in accordance with the promotion policy of the Respondent.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 empanelment16. 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 unfoundedThe 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 General18. 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 Board20. 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 diferenceWe are not relying upon any judgment in favour of public servants in Government service for adjudicating the dispute in this case. The only point that is considered by us is regarding the non-empanelment of the Appellant being in accordance with the promotion policy of the RespondentCivil Appeal No.5629 of 2017The 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.