Skip to content


Union of India and ors. Vs. Shyam Kumar - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal Nos. 172 and 134 of 1981
Judge
Reported in1982(3)DRJ225b; ILR1982Delhi927
Actsdefense Services Regulations, 1962 - Regulations 4
AppellantUnion of India and ors.
RespondentShyam Kumar
Advocates: D.P. Wadhawa,; Yogeshwar Prasad and; Balram Sangal, Adv
Cases ReferredShamsher Singh v. State of Punjab
Excerpt:
defense services regulations, 1962 - regulations 4 & 107--scope and interpretation.; the question for consideration before the court in the present appeal was whether the selection made by a selection board is final and binding and whether the chief of army staff can express an opinion contrary to the opinion expressed by the selection board, for the decision of the government who is the competent authority. ; 1. regulation 4 of the defense services regulations, 1962 entrusts the chief of the army staff with the responsibility for recruitment, organisation and administration of the army and this includes the making of promotions. the chief of the army staff can make his own assessment and make a recommendation to the president through the central government. the chief of the army.....s.s. chadha, j.(1) these two appeals l.p.as. 172 and 134 of 1981) under clause x of the letters patent are directed against the judgment dated may 29. 1981 of a learned single judge of this court wherein an erroneous frame of the question for answer, namely, 'the question of law for the determination is whether the chief of the army staff, can in law, change the gradiation for promotion made by the selection board (on which he presides) under regulation 107 of the defense services regulations, 1962. in other words, the question is whether the chief of the army staff can declare a person unfit for promotion where the selection board has declared him fit', has resulted into miscarriage of justice. (2) col. shyam kumar (respondent no. l.p.a. 172(81) was granted commission by the president of.....
Judgment:

S.S. Chadha, J.

(1) These two appeals L.P.As. 172 and 134 of 1981) under Clause X of the Letters Patent are directed against the judgment dated May 29. 1981 of a learned Single Judge of this Court wherein an erroneous frame of the question for answer, namely, 'the question of law for the determination is whether the Chief of the Army Staff, can in law, change the gradiation for promotion made by the Selection Board (on which he presides) under Regulation 107 of the defense Services Regulations, 1962. In other words, the question is whether the Chief of the Army Staff can declare a person unfit for promotion where the Selection Board has declared him fit', has resulted into miscarriage of justice.

(2) COL. Shyam Kumar (respondent No. L.P.A. 172(81) was granted Commission by the President of India initially in the Sikh Regiment in the year 1954 and being a volunteer for Parachute Regiment was transferred to that Regiment in the year 1955. In due course, he was selected and promoted in various ranks from 2nd Lt. to Col. A Selection Board was constituted in May, 1976 under the orders of the Chief of the Army Staff (for short called the COAS) for assessment of officers for promotion to Col. and above. The case of Col. Kumar was also considered along with others. The Selection Board examined the record of service of the eligible officers including Col. Kumar and assessed Col. Kumar to Grade 'B' (fit for promotion in his turn to the next higher rank). This was later converted to grading 'R' (unfit for promotion to the next rank at present). Col. Kumar's name was not included in the list of promotees and as such he made a representation to the COAS. Col. Kumar was informed that Coas after examination was satisfied that the grading 'R' (unfit for promotion to the next rank at present) awarded to the officer was a result of the consideration of his case by No. 2 Selection Board in May, 1976 was correct and consistent with his record. The allegations of Col. Kumar are that the Coas has no authority, power, competence or jurisdiction to change the recommendations of the Selection Board and the change made by the Coas was in an arbitrary manner. The case of Col. Kumar was again considered by two subsequent Selection Boards in the years 1977 and 1979 and both the Selection Boards assessed his merit as Grade 'R'. After he had exhausted the remedy of a representation to the Coas and the statutory complaint under Section 27 of the Army Act, 1950 (hereinafter called the Act), Col. Kumar filed a petition in this Court under Article 226 of the Constitution of India. The relief claimed was for the issue of a writ 'a the nature of certiorari to quash the orders withholding Col. Kumar's promotion to the rank: of Brig. by converting Grade 'B' to Grade 'R' and also for the issue of a writ in the nature of mandamus directing promotion to the rank of Brig. from 1976 as recommended by the Selection Board No. 2 by awarding Grade 'B' with all retrospective benefits.

(3) Major Surinder Nath Bakshi (respondent in L.P.A. 134181) was also granted Commission by the President of India in the Indian Army. He was selected and promoted in due course to the rank of Major. He was considered for promotion to the rank of Lt. Col. for the first time in the year 1972. The Selection Board No. 3 assessed the merit of major Bakshi as Grade 'B'. The Coas changed his gradiation to 'R'. The Selection Board No. 3 thereafter assessed Major Bakshi in September, 1975 and again in September. 1976 and graded him as 'R' on both the selections. Major Bakshi filed a representation to the Coas and statutory complaint under Section 27 of the Act and after rejection. moved this Court for similar reliefs.

(4) In the affidavit in opposition to the writ petitions. the stand of the Government is that under para 107 of the Regulations for the Army, 1962, the power to constitute Selection Boards, as required, for assessing fitness of officers for promotion to the selection ranks is vested in the COAS. The Selection Boards examine the record of service of the eligible officers and recommend them to be placed in one of the following grades : 'A' Fit for accelerated promotion to the next higher rank 'B' Fit for promotion in his turn to the next higher rank 'D' Defer consideration of the case till the next assessment by the Board 'R' Unfit for promotion to the next higher rank at present. The gradings awarded by the Selection Boards which are essentially in the nature of the recommendations, are submitted to the COAS. While normally the recommendations of the Selection Board are accepted by the Coas, he may disagree with a particular recommendation where he feels that the Selection Board has erred in their judgment. Whereas the Coas is himself the competent authority to approve promotions to the rank of Lt. Col., promotions lo higher ranks, i.e., Col. and above, are approved by the Government (defense Minister) on the recommendations of the COAS. The Coas makes his recommendations on the basis of those of the respective Selection Boards and when he does not agree with the Selection Board's assessment in a particular case, he informs the Government of the recommendation of the Selection Board and his own reasons for disagreement. The Government who is the final competent authority examines each case on merits taking into account the recommendations of the Selection Board and the Coas before arriving at its own conclusion. In the case of Col. Kumar. the Selection Board recommended Grade 'B'. but the COAS. however, did not agree with that assessment and he made a recommendation to the defense Minister, supported by valid reasons that the grading be revised to 'R' This recommendation was accepted by the defense Minister. In the case of Major Bakshi the Coas did not area with the assessment of the Selection Board and. thereforee, did not recommend the. case for promotion of Major Bakshi.

(5) In the face of this stand of the Government in the counter-affidavit, the frame of the question of law for detcrmination by the learned Single Judge has resulted in a wrong approach to the entire controversy raised in the writ petitions. This has also resulted in not properly appreciating the original records produced by the Government at the time of hearing. The two writ petitions were allowed by the learned Single Judge on May 29, 1981. The learned Single Judge held that the power claimed by Coas was contrary to para 107 of the Regulations fur the Army, 1962 and that in the absence of any specifie. provision in the Regulations or administrative instructions, the Coas was not legally competent to review the decisions of the Selection Boards. It was further held that such authority was also administratively not necessary as the collective decision of the Selection Board took into account the views of the Coas who either personally or through his representative participates in the deliberations of the Selection Board. The collective decision of the Selection Board is ruled as the declaration of the officers as fit for promotion and thereafter only ministerial orders being passed as and when a vacancy occurs. It was also observed that the Army is reqired to be in the permanent state of preparedness, that it calls: for high degree of initiative, drive, imagination and technical capability that grading an officer 'P.' is to declare him unfit for promotion and that this is in the nature of a sigma or a slur on an officer who is rejected. In the result, the Un!on of India was directed to decide the question of promotion of the two officers afresh on the original recommendation of the Selection Boards without a change in the gradiation made by the COAS. Being aggrieved, the Union of India has filed these two appeals.

(6) The Army Act. 1950 was paused by the Parliament to consolidate and amend the law relating to the gpvernment of the regular Army. The persons who are subject to the Act wherever they may be are, inter alia. officer , junior commissioned officers and varrant dicers of the regular Army. The conditions of service are contained in Chapter IV. (Sections 18 to 24). Section 18 provides that every person subject to the Act shall hold office during the pleasure of the President. Section 18 is enacted ex majori cautela since Article 310 of the Constitution lays down that except as expressly provided by the Constitution, every person Who is a member of a defense service or of a civil service of the Union or of an all-India service or holds any post connected with defense or any civil post under the Union, holds office during the pleasure of the President, and' every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. Section 18 merely reiterates the constitutional provision contained Article 310(1) of the Constitution. We may also express here that the President exercises his functions conferred on him under the Act with the aid and advice of the Council of Ministers. The President has made Rules for convenient transaction of the business of the Government of India and allocated among his Ministers the said business in accordance with Article 77(3) of the Constitution. The administration of the Act is allocated to the Raksha Mantry. Whenever the Constitution requires the satisfaction of the President for the exercise by the President of any power or function, the satisfaction of the President is in the constitutional sease in the Cabinet system of Government (See 'Shamsher Singh v. State of Punjab'. : (1974)IILLJ465SC ). The decision of the Raksha Mantry would be the decision of the President. Then Section 19 provides that such to the provisions of the Act and the rules and -filiations made there under, the Central Government may dismiss, or remove from the service, any person subject to the Act. Section 20 provides that the Co As may dismiss or remove from the service any person subject to the Act other than an officer. Section 21 provides the power to modify certain fundamental rights in their application to persons subject to the Act. Section 22 provides that any person subject to the Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed. Section 23 merely deals with the certificate on termination of service and Section 24 with discharge or dismissal of person serving out of India. Power to make the rules is conferred by Section 191 of the Act. Without prejudice to the generality of the power conferred by sub-section (1), the rules made there under may provide for, inter alia, the removal, retirement, release or discharge from the service of persons subject to the Act. The Army Rules, 1954 (hereinafter referred to as the Rules) have been framed in exercise of those powers. Chapter Iii of the Rules deals with the dismissal, discharge, termination of service of an officer on account of his failure to qualify at an examination or course, dismissal on account of misconduct and on grounds other than misconduct, release on medical grounds, release implicate and dismissal or discharge by COAS. The Rules do not provide for conditions of service in relation to the method and manner of promotions. Section 192 empowers the Central Government to make regulations for all or any of the purposes of the Act other than those specified in Section 191. All rules and regulations made under the Act have to be published in the Official Gazette and on such publication, shall have effect as if enacted in the Act. It is common case of the parties that no regulations have been framed under Section 192 of the Act. The learned Single Judge has made reference to some reports of the Committee on Subordinate Legislation and the need or otherwise of a unified code which will cover all the provisions in the Army and Air Force Acts. We can only express and hope that the question may be examined in a proper perspective.

(7) The procedure for promotion has not been laid down in the Act, Rules or Statutory Regulations. it is. thereforee, competent for the Government to issue administrative or executive instructions in the absence of statutory rules and regulations. We may notice them. Regulations for the Army in India were issued in the year 1945 and para 81 provided for the constitution of the Selection Boards and its duties. The Selection Board was to consist of H.E. The C-in-C as President; all G.Os. C-in-C commands and the C.G.S., the A.G., the Q.M.G. and the M.G.O. as members, and the M.S. as Secretary. The duties to select officers was entrusted to the Selection Boards for specified purposes which included the promotion to higher ranks. The names of all Lt. Cols. and above had to be considered by the Selection Board in respect of their qualifications for promotion and further employment. It was also provided therein that 'after each meeting of the Selection Board, the decision of H.E. the C-in-C, on the recommendations of the Board, both favorable and unfavorable, would be communicated to the officers concerned'. This clearly shows that H. E. the C-in-C was vested with the power to take a decision, on the recommendations of the Selection Board and could vary the recommendations even though he was the President of the Selection Board. After independence, H.E. the C-in-C ceased to be a member of the Union Government, and the authority came to be vested in his place in the defense Minister. Formal orders of the Government were, however, issued in 1953. The Government of India by a memorandum issued on April 10, 1953 clarified this position on the subject of promotions of officers to the rank of Col. (Army), Commander (I.N.) and Wing Commander (I.A.F.) and above and their postings and transfers. A statement of fact was made that all promotions of officers to the rank of Col. (Army) and equivalent and above are required, to be made with the prior approval of the defense Minister and that procedure was being followed in all the Services but the practice regarding postings and transfers was not uniform. It was decided that all proposals for the postings and transfers of the officers of the rank of Col. in the Army and equivalent and above should be submitted to the defense Minister through the Joint Secretary and Secretary. Further, the dossiers of the officers recommended for promotion and of those passed over, if any, and the reasons for it had to accompany the proposal. It was further reiterated that in no case should such promotions/postings be announced until the Minister's approval has been obtained and communicated. In the absence of statutory regulations, the Government could issue administrative instructions regarding the criteria for promotion, the method and the principles to be followed for promotion. The final decision to accept or to vary the recommendations of the Selection Board or the Coas in case of Col. and above vested with the defense Minister under the executive instructions.

(8) These administrative instructions governed the promotions when the compilation of defense Service Regulations was issued under the authority of the Government of India under signature of Shri P. V. R. Rao, Secretary to the Government of India, Ministry of defense on December 6, 1962. Regulations for the Army, 1945 were superseded. It was stated in the Preface that these Regulations did not supersede or cancel any administrative and departmental regulations, orders and instructions which were in force and which governed certain special categories of officers and men or else contained special provisions of a purely administrative nature and were, thereforee, not repugnant to the spirit of these Regulations. Such orders and instructions were stated to be supplementary to and to further the implementation of these Regulations. As we will show these regulations did not provide differently to the administrative instructions operating in the field. Regulation 4 reads as under:

'CONTROL(a) The supreme command of the Armed Forces (of which the Army is a component) is vested in the President of India. (b) The Chief of the Army Staff is responsible to the President through the Central Government for the command, discipline, recruitment, training, organisation, administration and preparations for war of the Army.'

In our opinion, the responsibility entrusted to the Coas for 'recruitment' 'organisation' and 'administration' would include the promotions. The Coas could make his own assessment and make a recommendation to the President through the Central Government that the grading awarded by the Selection Board was not jusified. The Coas is a person of high ability with varied experience. He is further assisted by experts on the subject when he tenders his advice to the Government. The responsibility would, thereforee, include to advise to have brilliant and effective officers in the higher echelons of the Army service. If anyone is not of the desired standards, then the Coas would be failing in his duty while tendering his advice, if he does not express himself. The learned Single Judge rightly puts it that the Army is required to be in the permanent state of preparedness and it calls for high degree of initiative, drive, imagination and technical capability in each of its officers and exceedingly high in case of senior officers. This calls for the requirement of examination of the suit- ability at all levels, including the Coas who is responsible to the President. The function of the Coas also includes the administration of the Army. 'Administration' is a term of wide amplitude and would include the administration of the officer cadre. It is the duty of the Coas to advise the Government as to by which persons the officer cadre should be manned. The Coas as the principal advisor to the President through the Central Government is competent to advise in case the Coas is of the opinion that the assessment made by the Selection Board was not in order. Then, Regulation 66 provides that substantive promotion to the rank: of Col. and above and of Lt. Col. (except as provided in para 65) would be by selection to fill vacancies in the substantive cadre and subject to the officer having to his credit the specified minimum periods of reckonable commissioned service. Regulation 69 provides that officers would normally be considered for promotion in order of seniority in their corps but an officer whose early advancement is in the interest of service may be specially selected for promotion to fill a vacancy whatever his seniority in the rank at the time, but the cases of officers who were superseded for promotion would be kept under review. Regulation 107 reads as under: 'CONSTITUTION And Duties Of Selection BOARDS. Selection boards (for officers other than Army Medical Corps, Army Dental Corps and Military Nursing Service) are constituted as required under the order of the Chief of the Army Staff. Their composition and duties are given below: (a) Composition Presiding Officer Chief of the Army Staff or any other senior officer as directed by him according to the importance of the Selection Board. Members. As directed by the Chief of the Army Staff from time to time in accordance with the nature of their duties. Secretary. Ms !DY Ms (b) Frequency of meetings : As required by the Chief of the Army Staff. (c) Duties (i) Assessment of officers for promotion to Lt. Col. and above. (ii) Grant of tenures. (iii) Consideration of cases of officers requesting transfer on compassionate grounds. (iv) Any other matter which the Chief of the Army Staff may direct the board to consider.' We find that the constitution of the Selection Board is for assessing fitness of officers for promotion to the selection ranks. It is a misconception that the assessment made by the Selection Board tantamounts to 'collective decision', for the promotion of the officers. The functions and duties of the Selection Board is merely to make an assessment of the service records with a view to find out the suitability of officers for promotion, but the appointing authority is the President. It is an undoubted position that an authority, which has the power to promote, has also power not to promote. The authority may be guided by the recommendations of the Selection Board or the advice of the COAS. These are purely recommendatory in character, and it is for the authority to reach just and fair decision by approving one or the other. The power or the authority to accept or even vary the recommendations of the Selection Board is implicit. We are unable to pursuade ourselves to agree that the Selection Board constituted under Para 107 is an independent body that takes collective decision which is final, conclusive and binding on the Coas or the Government or the President. Thre is no warrant to hold that after the Selection Board selects, the promotion is automatically made as and when the promotional post falls vacant.

(9) There is also an extract of a minute dated July 20, 1964 by the same defense Secretary Shri P.V.R. Rao on file No. 34374/B/MS(X) to which reference may be made, reading as under:

'Inotice from End 25A (COAS's note dated 13 Jul 64 referred to in paras 19 and 25 of the impugned judgment) that the gradings given as gradings of the Selection Board are gradings modified by the Chief of the Army Staff in Certain cases. While there can be no dispute about the Chief of the Army Staff's right to advise the Government regarding suitability of individual officers for promotion, the purpose of constituting Selection Boards by the Government is to have the recommendations of the Selection Boards. The Selection Board's recommendations come to Government through the Chief of the Army Staff who in cases where he considers that the recommendation of the Board should be modified, can make his recommendations accordingly with reasons thereof in brief. In future, in forwarding the recommendations, the above procedure may be followed.'

(10) Government of India has also issued administrative instructions in the memorandum dated July 30, 1979 on the subject of promotions to the rank of acting Lt. Col. Reference was made to the Ministry of defense Memorandum dated April 10, 1963 and para 107 of the Regulations for the Army, 1962 and the procedure hitherto followed for approving or varying the recommendations of the Selection Board in respect of Majors for promotion to the rank of Lt. Col. and it was stated that it would continue to be followed in future. The Coas would continue to be the authority competent to approve or vary the recommendations of the concerned Selection Board and the cases for grant of substantive rank to acting Lt. Col. and above would continue to be submitted to Central Government for approval.

(11) From what has been stated above, it is our considered opinion that the Selection Boards are merely to assess the merit of the officers for promotion to the selection rank. The assessment made is of a recommendatory nature. It is made to the Coas who is duty bound to advise the Government correctly and that necessarily involves the varying of the recommendations, if so considered in a given case, for an ultimate decision by the Government. The function of the Selection Board in the Army is a kin to a Departmental Promotion Committee whose duties are fairly understood in the Civil Service. Both are recommendatory bodies and assessment made by them are essentially in the nature of recommendations subject to approval by the competent authority. The policy underlying the establishment of the Selection Board or D. P. C. is to ensure the selection of the best available officers for promotions. The constitution of the Selection Board suggests that the desire is to have it manned by officers of high calibre and expertise. The selection process by those officers would avoid the possibility of arbitrariness and nepotism in the matter of promotions. Ordinarily the assessment thus made by the Selection Board would not be departed from unless special circumstances exist. But that is different than saying that the collective decision of the Selection Board is final or conclusive. The power is clearly read by us in the Coas to make different recommendations than those given by the Selection Board, for an ultimate decision by the Government in case of Col. and above. The competent authority to approve promotions to the rank of Lt. Col. is the Coas who expressed the opinion that certain important factors having a bearing on Major Bakshi's fitness for advancement were not given due consideration by the Selection Board in its assessment and for this reason revised the grading to 'R'.

(12) We may now refer to the original records produced at the time of hearing before the learned Single Judge and again before us. The learned Single Judge has clearly erred in appreciating the factual position disclosed by the original records No. 2 Selection Board was constituted under the orders of the COAS. The Chairman of No. 2 Selection Board of May, 1976 was GOC-in-C, Northern Command. It had four Lt. Generals as its members. The Military Secretary was the Secretary of No. 2 Selection Board. Two other Lt. Generals attended the meeting in an advisory capacity when cases of officers of their respective Corps were considered. Reference by the learned Single Judge that the Coas presided over the meeting of the Selection Board is, thereforee, misplaced. The Coas could preside over the meetings of Selection Boards Nos. 2 and 3, but in practice he presides only over Selection Board No. I which assesses officers for promotion to the ranks of Maj. General and Lt. General. The Coas, thereforee, did not participate in the collective deliberations of Selection Boards Nos. 2 and 3 when the cases of these two officers were considered for the assessment of suitability for promotion to the higher ranks. The record shows that the Selection Board held its meetings on 4th to 7th May, 1976 when it considered the cases of the named officers for promotion to the rank of Brig. and graded them as indicated against each name in the minutes of the proceedings. The grading given by No. 2 Selection Board to Col. Kumar was 'B'. The Military Secretary later in a different file examined the gradings awarded by the Selection Board and brought it to the notice of the Coas certain cases in which, in his opinion, the overall record of the officers concerned did not fully justify the grading awarded. In the case of Col. Kumar, the Selection Board gave a unanimous grading 'B' and for various reasons recorded in the noting portion, the Military Secretary opined that the grading of Col. Kumar should appropriately be 'R'. The reasons are not being disclosed here but it shows that the Military Secretary carried out a detailed study of the C. R. Dossier of the officer and recorded justification for modification of the Selection Board's grading. We are only mentioning it as an argument was raised before the learned Single Judge that the change of gradiation for promotion made by the Coas is arbitrary and also vocative of Articles 14 and 16 of the Constitution. The learned Single Judge did not go into the question as according to him it was a case of lack of legal competence and not of mere exercise of discretion. The learned counsel for the respondents did not address us on the arbitrariness of the decision to support the grant of the writ. We may say no more. An opinion was also expressed by the Military Secretary in respect of eleven other officers. The Coas desired a discussion with the Military Secretary before approving the recommendations. After discussion, the Coas agreed with the opinion of the Military Secretary in some cases but differed in others but in case of Col. Kumar the Coas agreed with the opinion of the Military Secretary. This reveals the conscious application of the mind by the Coas on the relevant material contained in the C. R. Dossier for differing with the assessment of the Selection Board. The Military Secretary then made another note relating to the promotion to the acting rank of Brig. of general cadre officers of 1954 for submission to the Government. It was stated that the Coas agreed with the gradings awarded by the Selection Board to the officers mentioned in enclosure I A except in respect of some officers. In case of Col. Kumar. it was recorded in the note, after giving brief reasons for the disagreement with the recommendations of the Selection Board that 'The Chief of the Army Staff does not consider that graiding 'B' is justified in his case' and it should be revised to 'R'. The C. R. Dossiers of the officers mentioned in the list at enclosure 1A were placed below along with the note. The Joint Secretary was requested to obtain the approval of the Raksha Mantry to the recommendations made. The note along with C. R. Dossiers of the officers was sent to the Ministry of defense.

(13) In the Ministry of defense, the Deputy Secretary examined in another file the case of the officers of 1954 seniority who were assessed by No. 2 Selection Board at their meeting held from 4th to 7th May, 1976 as regards their fitness for promotion to the acting rank of Brig. The recommendations of the Selection Board as well as the Chief of the Army Staff were noticed. In case of Col. Kumar and others, it was expressed for reasons recorded therein that 'the revision of the grading from 'B' to 'R'. thereforee, appears to be justified'. The Joint Secretary again examined the record and the C. R. Dossiers and expressed that the recommendations with reference to the service records of the officers have been considered and found in order. Raksha Mantry was requested to approve the grading of the officers as recommended to be modified by the COAS. The Raksha Mantry then accorded his approval. The Government has the power and authority to modify and vary the recommendations of the Selection Board or in other words accept the recommendations of the COAS. It was also open in law to the Raksha Mantry in exceptional circumstances to depart from the recommendations of both. The Raksha Mantry, however, accordad approval of the grading of the officers as opined by the COAS. The decision to modify is of the Government and not of the Coas in the case of Col. Kumar. It is thereafter that in the original minutes of No. 2 Selection Board it was recorded against the name of Col. Kumar that No. 2 Selection Board grading was 'B' and 'revised to 'R' by COAS'. This completion of the records of the Selection Board mentioning the revision to 'R' by the Coas has been misconstrued and weighed with the learned Single Judge as change of the grading of the Selection Board by the COAS. The Coas only did not consider that graidng 'B' was justified in the case of Col. Kumar, and thereforee, gave his advice to the Raksha Mantry.

(14) In the case of Major Bakshi, the original record shows that the Coas constituted No. 3 Selection Board which held its meetings from 23rd to 27th September, 1975. The Deputy Chief of the Army Staff was made as a chairman and other members as mentioned therein. Major Bakshi was graded by the Selection Board as 'B', and proceedings of the minutes were recorded accordingly. For several reasons recorded in the office note, it was opined that the officer was not likely to make an effective Officer Commanding of an active regular battalion in field and, thereforee, the recommendations were made to the Coas to revise grade 'B' to 'R'. The Coas agreed with the recommendations and approved the same with the result that the grading of Major Bakshi was revised to 'R'. The competent authority to order promotions from Maj. to Lt. Col. is the Coas who has the power to accept, modify or alter the assessment of the Selection Board.

(15) The learned counsel for the respondents invited our attention to Regulation 51, 63, 85, 95, 98 and 109 to urge that powers have been specifically vested by these Regulations in the Coas or other specified officers to vary or amend or review the orders when it was so required or desired but not in Regulation 107. It is no doubt true that in some of these provisions, the power of acceptance has been specifically conferred but that does not reflect the absence of the power in Regulation 107 when it is read with Regulation 4. The duties which have been assigned to the Selection Boards under Regulation 107 is of 'assessment of officers for promotion to Lt. Col. and above' besides other duties. No finality has been attached to the assessment of the Selection Board. For the reasons already recorded, the power of acceptance of the assessment always vests with the competent authority.

(16) Cannot construe that the grading of an officer as 'R' is to declare him unfit for promotion or that this is in the nature of a stigma or a slur on an officer who is rejected. No Rule, Regulation or even administrative instruction has been brought to our notice which confers a legal right of actual promotion on the respondents or any officer similarly situated. The only right is to be considered for promotion by selection along with other eligible officers. Under Regulation 69, officers would normally be considered for promotion in the order of seniority in their Corps. Under Rule 66, substantive promotion to the rank of Col. and above and of Lt. Col. is by selection to fill vacancies in the substantive cadre. Article 16 of the Consitution also requires consideration turn promotion of all eligible officers, it an officer has been duly considered but superseded in promotion by his juniors, there would be no violation of Article 16 of the Constitution. There is also no violation of any provision in the Regulations. It is well-settled that mere chances of promotion are not conditions of service of any officer. In the process of selection prescribed under the Regulations, various factors for assessing the merit of the officers come into play. The assessment is based on the overall record of the service of the officer as contained in the C. R. Dossiers and the comparative merit. The members of the Selection Board are nominated by the Coas and they are vastly experienced in all facets of solidering and competent to assess the comparative merit of the officers for their suitability for promotion. While determining an officer's fitness for promotion, his overall record of service is examined, his performance in the existing command and recommendations given on him by various reporting officers, his potentialities for higher command are some of the factors which are considered by the Selection Board. The selection is on merit which is the sum total of good qualities and attributes of an officer for a higher command. In any selection system, certain number of officers are bound to be placed in an unacceptable grade and that cannot be termed as a stigma for redress of grievance in a Court of law.

(17) A reference in the passing was made by the learned Single Judge to the selections being made by the Computer unaffected by any human failing but the Computer process was only assisting the process of evaluation of officers performance for selection in September, 1975 when the case of Major Bakshi was considered. The Computer system was not prevalent at the time of selection of Major Bakshi. It was being adopted as an additional method of selection. Even the Computer's assessment was not favorable to Major Bakshi.

(18) The result of the above discussion is that the Letters Patent Appeals succeed and are allowed. The judgment of the learned Single Judge dated May 29 3981 is set aside. The writ petitions are dismissed. On the facts and circumstances of the case, we make no order as to costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //