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Nalin Kumar Bhatia Vs. Union of India (UOI) and Ors. - (Supreme Court) (11 Feb 2020)

There is no presumption that a decision taken by persons occupying high posts is valid

MANU/SC/0161/2020

Service

The Appellant was commissioned in the Mechanised Infantry of Indian Army on 13th June, 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 24th April, 2015. On 31st July, 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 (OA) before the Armed Forces Tribunal.

The Tribunal dismissed the OA 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.

Article 16 of the Constitution of India, 1950 confers a right to be considered for promotion. There is no right for promotion, but the right that is conferred by Article 16 is to be considered for promotion fairly and in accordance with the extant Rules or Regulations governing promotions. Violation of rules/Regulations or the policy governing promotions would entail in violation of Article 16 of the Constitution of India. The contention of the Appellant that he deserved to be empanelled on the basis of the promotion policy needs to be considered.

The 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 General.

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 4th January, 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.

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 Board.

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 difference.

The non-empanelment of the Appellant for promotion as Major General is contrary to the promotion policy. He is entitled for reconsideration for empanelment by a Review Selection Board strictly in accordance with the promotion policy by keeping in mind the observations in this judgment. The Respondents are directed to complete this exercise within a period of six months. The judgment of the Tribunal is set aside and the Appeal is allowed.

Tags : PROMOTION   NON-EMPANELMENT   LEGALITY  

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