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 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 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]
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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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