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

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 non-empanelment, 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of 2015 before the Armed Forces Tribunal, Regional Bench, Mumbai seeking the following relief:(a) Setting aside of the unpublished / unnotified policy of the respondents, if any, whereby the service profile / quantified merit of a candidate for promotion is required to be compared with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 applicants 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 28 th 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, 20153. 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 empanelment4. 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 Staf 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 Board5. 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 law6. This appeal has been filed challenging the judgment of the Tribunal by which no relief was granted to the AppellantCivil Appeal No.5629 of 201723. 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.

Reasoning:
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.