Case: Union of India and Ors Vs. Ran Singh Dudee

assessment of the profile of the respondent for those years. The correct approach in the matter is the one which was considered by this Court in Lt. Col. K. D. Gupta v. Union of India and Others 1989 Suppl (1) SCC 416 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 petitioners 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 petitioners 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 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 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 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.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]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 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 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.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.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 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.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 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.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.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.