UNION OF INDIA & OTHERS versus COL RAN SINGH DUDEE
[2018] 5 S.C.R. 93, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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UNION OF INDIA & OTHERS
v.
COL RAN SINGH DUDEE
(Civil Appeal No. 11009 of 2017)
JULY 03, 2018
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
Army Act, 1950 – ss. 83, 39(a) – Selection – Selection from
the post of Lt. Colonel to the rank of Colonel – On facts, findings
of General Court Martial against respondent-army officer quashed
– Reinstatement of respondent – Issuance of directions to the
Government for payment of all consequential benefit for the said
period – Thereafter, respondent promoted to the rank of Lt. Colonel
and, also granted time scale promotion as Colonel – However, officer
junior to respondent promoted to the rank of Brigadier –Respondent
challenged the same – Selection Board not find the respondent fit,
and was not empanelled – In a subsequent order, Selection Board
did not find respondent fit to be promoted by selection to the post of
Colonel – However, the tribunal found the assessment made by the
Selection Board to be perverse and issued directions to the
Government to constitute a fresh selection Board – Held: While
annulling the findings and effect of the 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 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 the promotions
which are strictly on the
basis of comparative merit and selection
must also stand conferred upon the officer – On facts, Selection
Board considered the matter on merits and found the respondent
unfit for selection as “Colonel” – Assessment was cumulative taking
into account the grading as against those six parameters – Action
on part of the Selection Board in relying upon the entry of reprimand
was consistent with Selection Policy and could not be characterized
as incorrect or illegal in any manner – Also there were other factors
which weighed with the Selection Board – Thus, the tribunal was
wholly unjustified in finding the assessment made by the Selection
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Board to be perverse –Judgments and orders passed by the tribunal
set aside.
Allowing the appeals, the Court
HELD: 1.1 While annulling the findings and effect of the
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. [Para
6][108-F-H; 109-A]
1.2 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 case. The tribunal therefore, completely erred in
passing the directions in its order.Since the opinion of the Law
Officer was not consistent with the provisions of the relevant
rules
and the law declared by this Court in K.D. Gupta case, the
Department was justified in expressing serious reservations and
in generating note. The tribunal, attached undue importance to
the opinion of the Law Officer.[Para 7][109-F-H; 110-A]
1.3 The matter was considered on merits by 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
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against indicia No.(vi) also put the case of the respondent in the
negative. [Para 8][110-A-C]
1.4 In terms of the Selection Policy 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. 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 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.”[Para 9][110-D-F]
1.5 The 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. 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.
The judgments and orders passed by the tribunal are set aside.
[Paras 10, 11, 13][110-G-H; 111-A-B, D]
UNION OF INDIA v. COL RAN SINGH DUDEE
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1.6 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.
[Para 12][111-C-D]
Union of India v. Lt. General Rajendra Singh Kadyan
(2000) 6 SCC 698 : [2000] 1 Suppl. SCR 722; Dalpat
Abasaheb Solunke v. B.S. Mahajan (1990) 3 SCC 305;
Air Vice Marshal S.L. Chhabra, VSM (Retd.) v. Union
of India (1993) Supp 4 SCC 441 : [1993] 3 SCR 669;
Surinder Shukla v. Union of India (2008) 2 SCC 649 :
[2008] 1 SCR 449; Lt. Col. K. D. Gupta v. Union of
India and Others (1989) Suppl 1 SCC 416 : [1989] 2
SCR 370 – referred to.
Case Law Reference
[2000] 1 Suppl. SCR 722
referred to
Para 4
(1990) 3 SCC 305
referred to
Para 5
[1993] 3 SCR 669
referred to
Para 5
[2008] 1 SCR 449
referred to
Para 5
[1989] 2 SCR 370
referred to
Para 6
CIVIL APPELLATE JURISDICTION: Civil appeal no. 11009 of
2017.
From the Judgment and Order dated 17.01.2017  in OA. No. 260
of 2016 of the Armed Forces Tribunal, Regional Bench, Lucknow.
WITH
C. A. No. 5973 of 2018.
Mr. Maninder Singh, ASG,  R. Balasubramanian, Prabhas Bajaj,
Akshay Amritanshu,
Ms. Aarti Sharma, Ms. Sakshi Kakkar, Mukesh
Kumar Maroria, Advs. for the Appellants.
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Respondent-in-person
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J. 1. These appeals question the
following judgments and orders passed by the Armed Forces Tribunal,
Regional Bench, Lucknow.
(a) Civil Appeal No.11009 of 2017 is directed against the Judgment
and Order dated 17.01.2017:
(b) Civil Appeal (Diary)  No.40312 of 2017 with an application
for leave to appeal is directed against the Judgment and Order dated
12.09.2017.  Leave to appeal granted.
2. The relevant facts in the present case are as under:-
(A) The respondent was initially enrolled in the Indian Army as
Sowar in 1981.  He cleared the examination conducted by Union Public
Service Commission in the year 1988 and got commissioned as an Officer
and was posted as Second Lieutenant in the Ordnance Corps of the
Army. During his career, he received some commendations and
appreciations.  However, the respondent was summarily tried under
Section 83 of the Army Act, 1950 (hereinafter referred to as the Act) by
Commander, 29 Artillery Brigade for the offence of ‘absenting himself
without leave’ for 03 days from 27.06.1991 to 29.06.1991.  The
Respondent pleaded guilty to the charge under Section 39(a) of the Army
Act and was sentenced to ‘Reprimand’.
(B) While the respondent was serving as Major in 2004-05, he
was tried by General Court Martial on four charges.  The first charge
was under Section 52 to the effect that while the respondent was posted
at Saugor between November 2000 and
May 2002, he pursued a case
for procurement of 8.64 hectares of land belonging to Government of
Madhya Pradesh for the purposes of building a War Memorial in the
memory of late Sepoy Hawa Singh, who was the elder brother of the
respondent.  The second charge was connected to the first one and was
to the effect that while performing duties as officiating Commanding
Officer he improperly wrote a Demi Official letter on 09.11.2000 to the
Collector, Saugor for allotment of the aforesaid land.  The third charge
was connected to the second one while according to the fourth charge
the respondent had failed to submit report about the acquisition of said
land in contravention of Army Order 3/S/98.
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(C) On 16.05.2005, he was found guilty of the first and third charges
but not guilty of the second and fourth charges and was sentenced to be
cashiered and to suffer rigorous imprisonment for three years.  On
21.10.2005, the competent disciplinary authority confirmed the findings
as regards the first, second and fourth charges but did not confirm the
finding on the third charge  The sentence awarded by the General Court
Martial was confirmed with remission of six months out of three years
rigorous imprisonment.  Though the Court of Inquiry relating to the matter
in issue was undertaken on 07.07.2001 the trial in respect of said charges
had commenced on 19.10.2004.
(D) The respondent being aggrieved,  preferred statutory complaint
under Section 165 of the Act.  During the pendency of said complaint,
selection for promotion to the rank of Colonel of 1988 Batch Officers
was undertaken in August 2006 and appropriate selections were made.
Since the respondent, by that time had stood punished in the General
Court Martial, his candidature was not considered.
(E) As his Statutory Complaint was not considered in due course,
the respondent filed a Writ Petition in the High Court of Delhi which
was later transferred to Armed Forces Tribunal, Calcutta.  In pursuance
of the directions issued at the interim stage by the Armed Forces Tribunal,
the consideration of the pending Statutory Complaint was taken up and
the matter was
referred to the learned Solicitor General of India for his
opinion.  As the opinion given by the learned Solicitor General on
01.11.2013 has been extensively quoted and relied upon in the Judgments
under appeal, the concluding part of the opinion is extracted hereunder:
“17. Since the first Court of Inquiry was ordered to be convened
on 07.07.2001, it can be said that the knowledge of the alleged
offence (i.e. fraudulent allotment of land) was gained on or before
such date.  The Applicant’s trial commenced from 19.10.2004,
which is 3 years beyond such date.  Thus, in my opinion, the
CGM proceedings are barred by limitation.
18.  Even on merits, the finding of the guilt by the CGM is not
tenable in view of the fact that even the Ministry is not clear in
whose name the land was allotted, as mentioned above in paragraph
12 and that the allotment was even otherwise valid in so far as the
MP Government was concerned, as dealt with in paragraph 15.
There has been no challenge to the findings arrived at by the
magisterial inquiry.
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19.  It is also an admitted fact that the purpose of the allotment
was only to build a war memorial, which has not been done by
virtue of surrender of the land to the Government.  I am also
unable to see any wrongful pecuniary gain.  From an overall
perspective, the intent of the Applicant cannot be said to be
something which is forbidden by law.  It was only to perpetuate
the memory of his brother.  Taking all these facts cumulatively, in
my opinion, the findings of the GCM appear to be unacceptable.
My view is also confirmed by Note 89 as would be evident from
the file of Mr. Praveen Kumar (Director AG-I”).”
(F) By Order dated 20.11.2013, the Central Government allowed
the Statutory Complaint preferred by the respondent and directed:-
“8.  Now, therefore, the Central Government, under the powers
conferred under section 165 of the Army Act, 1950 do hereby
annul the proceedings of the General Court Martial findings and
sentence dated 16th May, 2005 and confirmation order dated 21st
October, 2005 being illegal and unjust and allow the petition filed
by IC-47908F, Major Ran Singh Dudee, of 36 DOU.  Consequently,
the penalty imposed upon IC-47908F Ex Major Ran Singh Dudee
of 369 DOU stands quashed and he is entitled to all consequential
benefits as admissible under rules on the subject.”
(G) The respondent was thereafter reinstated in service on
13.01.2014 and paid all consequential benefits for the entire period.  On
16.08.2014, the respondent was promoted
to the rank of Lt. Colonel
with effect from 16.12.2004.  Sometime in January, 2015, an officer
who was junior to the respondent was promoted to the rank of Brigadier.
A representation was therefore made by the respondent for grant of all
“consequential benefits”. He was principally aggrieved by his non-
empanelment for promotion to the rank of Brigadier.  Around this time
on 30.06.2015, the respondent was granted Time Scale promotion as
Colonel, on completion of 26 years of service.
(H) As regards the grievance made by the respondent and his
representation in that behalf, the matter was again referred to the Law
Officer of the Government of India who in his opinion dated 30.12.2015
opined that the respondent could not be denied promotion to the rank his
batch mates and immediate juniors were promoted, that the Government
of India having directed in the Order dated 20.11.2013 that all
UNION OF INDIA v. COL RAN SINGH DUDEE
[UDAY UMESH LALIT, J.]
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consequential benefits be given to the respondent, the mandatory demands
under the relevant Rules would stand waived and that the respondent
should be granted the rank of a Brigadier. Serious reservation was
however expressed by the Department which was of the view that no
promotion to the rank of Brigadier could be granted except through the
modalities of selection by the Selection Board and an appropriate Note
was written in that behalf by the Additional Secretary in the Ministry of
Defence on 03.02.2016. No.3 Selection Board was thereafter constituted
and in the assessment made by said Selection Board on 26.04.2016, the
respondent was not found fit and as such was not empanelled.
(I) The respondent being aggrieved filed OA No. 260 of 2016 in
the Armed Forces Tribunal, Regional Bench, Lucknow questioning his
non-empanelment in the rank of Brigadier.  It was submitted, inter alia,
that:
(i) The respondent came from a family of soldiers.  Though enrolled
as Sowar in the year 1981 by sheer dint of hard work he got the
status of a Commissioned Officer in the year 1988.  In his posting
in Kargil he received COAS Commendation Card.  He also
received Letter of Appreciation from General Officer Commanding
36 Infantry Division and was recommended for Sena Medal in
2002.
(ii) In 1990 he had made complaints against his superiors citing
various irregularities.  Further, sensing threat to his life he had
reported the matter to
the Brigadier Commander.  Offended by
such reporting, the respondent was falsely implicated in a Court
of Enquiry which found nothing against him.  A first information
report was also lodged which was found to be stage managed.
On the contrary in the Court of Enquiry, the officers against whom
the respondent had complained, were found guilty and were suitably
punished.
(iii) In the year 1997 while he was posted at Jodhpur, he was a
member of the Tender Opening Board for Pokhran field firing
ranges.  He had lodged complaint to the superior authorities with
regard to mal-practices in auction proceedings pursuant to which
proceedings of auction were annulled.
(iv) Since he had reported about corrupt practices of the superiors,
the superiors in retaliation had forged the documents of Revenue
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Court ascribing motive to the respondent as regards allotment of
land.  Though initially he was visited with an order of punishment,
namely, “Recording of Displeasure”, said punishment was later
set aside.
(v) He was wrongly implicated in the General Court Martial.  In
any case his innocence stood established by reason of order dated
20.11.2013 which inter alia had directed that he was entitled to all
consequential benefits.
(vi) In his submission because of the pendency of General Court
Martial proceedings he was kept out of active service for nine
years. Relying on the opinion given by the Law Officer on
30.12.2015 he submitted that he was entitled to the rank of
Brigadier.
(J) On the other hand, it was contended on behalf of the appellants
that the respondent did not fulfill the required criteria in terms of policy
and had not put in requisite period of service while holding the rank of
Colonel.  It was further submitted that promotion to the post of Colonel
could either be purely on the basis of selection by the Board or could
simply be on the basis of length of service which is normally known as
time scale promotion.  The Selection Board in question, namely, No.3
Selection Board had not found the respondent fit to be promoted by
“Selection”.
(K) The Armed Forces Tribunal principally relied on the opinion
dated 01.11.2013 of the learned Solicitor General and the order dated
20.11.2013 to come to the conclusion that the respondent was framed
by certain
persons on unfounded grounds.  It further held that the order
dated 20.11.2013 was clear that the respondent was entitled to all
“consequential benefits” and as opined by the Law Officer in his opinion
dated 30.12.2015 the respondent ought to have been promoted as
Brigadier.  The Armed Forces Tribunal found that the Department was
not justified in ignoring the opinion of the Law Officer and in generating
the Note dated 03.02.2016.  It concluded:
“There is no room for doubt that ordinarily, right to consider is a
fundamental right and in case, the case is considered and
incumbent does not qualify because of lack of criteria, he cannot
lay claim for promotion.  However, the fact remains where in the
facts and circumstances as in the present, because of grant of
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[UDAY UMESH LALIT, J.]
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consequential benefits and loss of promotional avenues by virtue
of pendency of General Court Martial (supra) and having
suspended service period on account of such proceeding which
has been held to be based on unfounded facts and allegations,
rights that accrue to the Applicant on account of setting aside of
punishment order, include the right to seek promotion to the higher
rank from the date his juniors have been promoted keeping in
view the facts and circumstances of the present case.”
(L) The Armed Forces Tribunal thus by its judgment and order
dated 17.01.2017 directed that a final decision be taken by the appellants
keeping in view the opinion expressed by the Law Officer for promotion
of the respondent to the rank of Brigadier “Selection Grade”.
(M) The appellants being aggrieved approached this Court by
filing Civil Appeal No.11009 of 2017.  While issuing notice, this Court
passed the following direction on 01.02.2017:
“In the meantime, there will be stay of operation of the impugned
judgment on the condition that the appellants shall take a decision
on the promotion of the respondent to the rank of Colonel, within
a period of two weeks from today, in accordance with law.”
(N) No.3 Selection Board was, therefore, constituted on 3.02.2017
which considered the candidature of the respondent and the question
whether he was fit to be promoted by selection to the rank of Colonel.
The proceedings dated 13.02.2017
indicate that the Board considered
the profile of the respondent alongwith three other officers (Two of
them being empanelled officers - the second being the lowest empanelled
officer and the third being one who was not empanelled).  As per record,
the matter was considered on the basis of six indicia  namely (i) Overall
C.R. Profile, (ii) Lowest C.R. Assessment, (iii) Recommendations for
promotions, (iv) Course Profile, (v) Lowest Course grading and (vi)
Discipline Profile. As against the candidates who were empanelled and
the one who was not empanelled, the respondent’s profile was found to
be lower than all three of them in terms of aforesaid Indicia Nos.(ii), (iv)
and (v).  Further as against Indicia No.(vi), where all those three officers
had “NIL” entry the profile of the respondent indicated “reprimand”
which was issued in 1991. It may be noted that only one out of those
three officers who was empanelled had “Average CR Profile” graded
as “Above Average to Outstanding” which was the same as the
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respondent. Considering the comparative profile of the respondent and
those three officers, it was found that the respondent was not fit to be
promoted by selection to the post of Colonel.
The assessment made by the aforesaid No.3 Selection Board was
approved by Chief of Army Staff.
(O) The Comparative Chart regarding profile of those three
officers and the respondent is extracted hereunder. We have however
not disclosed the names of those three officers.
Comparative Profile
(P) The respondent challenged the decision of No.3 Selection
Board by filing OA No.104 of 2017 before the Armed Forces Tribunal,
Regional Bench, Lucknow. When Civil Appeal No.11009 of 2017 was
taken up, this Court recorded the fact that the Selection Board had found
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[UDAY UMESH LALIT, J.]
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the respondent unfit to be promoted as Colonel against which decision
challenge was pending before the Armed Forces Tribunal.  The appeal
was, therefore, adjourned to await the decision of the Armed Forces
Tribunal while continuing the interim order passed earlier.
(Q) The Tribunal reproduced the  Comparative Chart which was
part of the record including names of the officers concerned.  According
to the Tribunal the entry of “Reprimand” which was of the year 1991
could not and ought not to have been taken into account, more particularly
when a clear opinion was expressed by the Law Officer on 30.12.2015.
It did not consider the fact that on Indicia Nos.(ii), (iv) and (v) the
respondent was definitely found lower than other three officers but relied
upon the fact that the overall C.R. Profile was adjudged “Above Average
to Outstanding” whereas the lowest empanelled officer was actually
graded as “Above Average”.  The Tribunal observed:
“31. We have noticed that over all profile of the empanelled officer
is above average whereas the applicant’s over all profile is above
average to outstanding.  How the applicant’s over all profile has
been adjudged to be lower than the last selectee is not
comprehensible.
32. We thus feel that the Selection Board has not acted fairly and
justly after applying mind to the original records and seems to
have considered the applicant’s case with pre-disposed mind.”
(R) The Tribunal thus
found the analysis and assessment made
by No.3 Selection Board to be perverse.  While allowing Original
Application No.104 of 2017 vide its judgment and order dated 12.09.2017,
the Tribunal directed the appellants to constitute a fresh Selection Board
and reconsider the case of the respondent in the light of the judgment of
the Tribunal.  The Tribunal also awarded costs to the respondent which
were quantified at Rs.5 lakhs.
(S) The appellants thereafter approached the Armed Forces
Tribunal under Section 31 of the Armed Forces Tribunal Act, 2007 seeking
leave to appeal to this Court. The application was however rejected on
13.11.2017, whereafter Civil Appeal (Diary) No.40312 of 2017 was
preferred by the appellant alongwith an application for leave to appeal.
3. Both these appeals being inter-connected and between the same
parties, were taken up for hearing together. We heard Mr. Maninder
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Singh, learned Additional Solicitor General who appeared for the
appellants while Colonel (TS) RS Dudee(Retd.) appeared in-person and
made his submissions.
4. The hierarchy in the Army and the method of selection and
promotion was considered by this Court in Union of India v. Lt. General
Rajendra Singh Kadyan1 as under:
“11. The hierarchy in the Army and the method of selection and
promotion to various posts starting from the post of Lieutenant
and going up to the post of the Chief of the Army Staff will clearly
indicate that the posts of Lieutenant, Captain and Major are
automatic promotion posts on passing the promotion examination
irrespective of inter se merit, whereas the posts from Major to Lt.
Colonel, Lt. Colonel to Colonel, Colonel to Brigadier, Brigadier to
Major General and Major General to Lt. General are all selection
posts filled up by promotion on the basis of relative merit assessed
by the designated Selection Boards…..”
Since the aforesaid decision, there has been an amendement and
as the situation presently stands2, all promotions upto the rank of Lt.
Colonel are time-bound promotions without involvement of any selection
process and it is only for the promotion from the post of Lt. Colonel to
Colonel and upwards that Selection Boards are constituted. The
composition of relevant Selection Boards in terms of Selection System
is as under:-
 “Composition of Selection Boards
1. Special Selection Board
(a) Function: To screen officers for
promotion from Maj Gen. to
Lt. Gen.
(b) Composition:
(i) Chairman
    - COAS
(ii) Members     - Army Cdrs (5) VCOAS
(iii) Secretary     - MS
 1 2000 (6) SCC 698
 2 Ref.: Para 3 of Written Submissions of the appellants
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[UDAY UMESH LALIT, J.]
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2. No. 1 Selection Board
(a) Function:  To screen Brig for promotion to the rank of Maj.Gen.
(b) Composition
(i) Chairman
    - COAS
(ii) Members     - Army Cdrs (5) VCOAS/PSO (1)
(iii) Secretary     - MS
3. No. 2 Selection Board
(a) Function:  To screen Col. for promotion to the rank of Brig.
(b) Composition
(i) Chairman
    - Army Cdr (1)
(ii) Members     - Corps Cdr (1)
                            Lt. Gen. of Staff
                            [Should have commanded a Div.(1)]
                            Maj. Gen. (GOC Div) (1)
                            Maj. Gen. (Staff) (1)
(iii)Secretary       - Addl.MS (B)
(iv)In attendance - Respective Heads of Arm/Services
4. No. 3 Selection Board
(a) Function:  To screen Lt. Cols to the rank of Col.
(b) Composition
(i)Chairman
     - Corps Cdr or Lt. Gen. who has
                   commanded a Corps(1)
(ii)Members
     - Div. Cdr (2), Maj Gens on Staff (2)
(iii)Secretary      - Dy. MS(B)
(iv)In Attendance - Respective Heads of Arm/Services.”
5. We are presently concerned with selection from the post of Lt.
Colonel to the rank of Colonel and the appropriate Selection Board would
therefore be No.3 Selection Board with Officer of the rank of Lt. General
as Chairperson, two members of the rank of Major General and two
Div. Commanders.  On few occasions this Court has considered the
cases where the assessment and analysis made by such Selection Boards
were directly put in
question.  Some of the observations of this Court are
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extremely relevant for the present purposes:
(a) In Dalpat Abasaheb Solunke v. B.S. Mahajan3 this Court
observed:
“……..It is needless to emphasise that it is not the function of the
court to hear appeals over the decisions of the Selection
Committees and to scrutinize the relative merits of the candidates.
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. The court has no such expertise.
The decision of the Selection Committee can be interfered with
only on limited grounds, such as illegality or patent material
irregularity in the constitution of the Committee or its procedure
vitiating the selection, or proved mala fides affecting the selection
etc. ……”
(b) In Air Vice Marshal S.L. Chhabra, VSM (Retd.) v. Union
of India4, this Court observed:
“……No oblique motive has been suggested on behalf of the
appellant against any of the members of the Selection Board and
there is no reason or occasion for us to infer such motive on the
part of the members of the Selection Board for denying the
promotion to the appellant with reference to the year 1987. Public
interest should be the primary consideration of all Selection Boards,
constituted for selecting candidates, for promotion to the higher
posts, but it is all the more important in respect of Selection Boards,
meant for selecting officers for higher posts in the Indian Air Force.
The court cannot encroach
over this power, by substituting its
own view and opinion…..”
(c) In Union of India v. Lt. General Rajendra Singh Kadyan
(Supra), this Court observed:
“…..Critical analysis or appraisal of the file by the Court may
neither be conducive to the interests of the officers concerned or
for the morale of the entire force. Maybe one may emphasize
one aspect rather than the other but in the appraisal of the total
profile, the entire service profile has been taken care of by the
authorities concerned and we cannot substitute our view to that
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 4 1993 Supp (4) SCC 441
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of the authorities. It is a well-known principle of administrative
law that when relevant considerations have been taken note of
and irrelevant aspects have been eschewed from consideration
and that no relevant aspect has been ignored and the administrative
decisions have nexus with the facts on record, the same cannot
be attacked on merits. Judicial review is permissible only to the
extent of finding whether the process in reaching decision has
been observed correctly and not the decision as such…..”
(d) Further, in Surinder Shukla v. Union of India5, it was
observed:
“11. Considering the comparative batch merit, if the Selection
Board did not recommend the name of the appellant for promotion
to the rank of Colonel which appears to have been approved by
the Chief of Army Staff, it is not for the court exercising power of
judicial review to enter into the merit of the decision. The Selection
Board was constituted by senior officers presided over by an
officer of the rank of Lt. General. It has been contended before
us that the Selection Board was not even aware of the identity of
the candidates considered by them because only in the member
data sheet all the informations of the candidates required to be
considered by the Selection Board are stated, but the identity of
the officers is not disclosed. The appellant moreover did not allege
any mala fide against the members of the Selection Board…..”
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
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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 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 Others6 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 petitioner’s
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 petitioner’s 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
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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
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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.
13. We therefore allow both the appeals and set aside Judgments
and Orders dated 17.01.2017 and 12.09.2017 passed by the Armed
Forces Tribunal, Regional Bench, Lucknow.
14. No order as to costs.
Nidhi Jain
Appeals allowed.
UNION OF INDIA v. COL RAN SINGH DUDEE
[UDAY UMESH LALIT, J.]