2020 (2) TMI 1660 - SC - Indian Laws

Empanelment for promotion - Whether the non-empanelment of the Appellant for promotion to the rank of Major General was contrary to the promotion policy? - HELD THAT - 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 empanelment. 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 unfounded. 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 - 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 only point that is considered is regarding the non-empanelment of the Appellant being in accordance with the promotion policy of the Respondent. 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 from today. Appeal allowed.

Summary

Issues Involved:
1. Whether the non-empanelment of the Appellant for promotion to the rank of Major General was contrary to the promotion policy.
2. Whether the action of the Respondents in not complying with the promotion policy was arbitrary and vitiated by malice in law.
3. Whether the Selection Board's decision to not recommend the Appellant for promotion was valid and fair.
4. Whether the judicial scrutiny of the Selection Board's decision is warranted.

Issue-wise Detailed Analysis:

1. Non-Empanelment Contrary to Promotion Policy:
The Appellant, commissioned in the Mechanised Infantry of the Indian Army in 1981 and later transferred to the Corps of Intelligence, was promoted to Brigadier in 2008. His case for promotion to Major General was considered by the Selection Board in April 2015 and again in September 2015, but he was not empanelled. The Appellant argued that his non-empanelment was contrary to the promotion policy, which mandates fair consideration based on a quantified system introduced in 2009 to ensure transparency and objectivity. The Tribunal found no illegality or irregularity in the Selection Board's procedure, but the Supreme Court scrutinized whether the Appellant was fairly considered per the promotion policy.

2. Arbitrary Action and Malice in Law:
The Appellant contended that his non-empanelment was arbitrary and violated Articles 14 and 16 of the Constitution, which guarantee equality of opportunity in matters of public employment. He argued that the Respondents breached the promotion policy by not following the prescribed procedure. The Respondents countered that the Selection Board followed the policy, considering the overall profile, including confidential reports, performance, and disciplinary background. The Supreme Court examined whether the Selection Board's decision was influenced by arbitrary or malicious considerations.

3. Validity and Fairness of the Selection Board's Decision:
The Selection Board's decision was based on a quantified system where 95% of the marks were for confidential reports, courses, and honors, and 5% for value judgment. The Appellant secured 89.667 marks in April 2015 and 90.469 in September 2015 but was not recommended for promotion. The Supreme Court noted that the Appellant was the only eligible Brigadier from his batch and should not have been deprived of empanelment based solely on value judgment. The Court emphasized that the selection process should be objective and impartial, adhering to the promotion policy.

4. Judicial Scrutiny of the Selection Board's Decision:
The Respondents argued that the Selection Board's discretion should be respected, given the seniority of its members. However, the Supreme Court asserted that judicial scrutiny is necessary to ensure decisions are made in accordance with constitutional principles and governing rules. The Court rejected the presumption that decisions by high-ranking officials are inherently valid, emphasizing that legality and validity must be examined regardless of the decision-maker's rank.

Conclusion:
The Supreme Court concluded that the Appellant's non-empanelment was contrary to the promotion policy, which prioritizes objective evaluation based on a quantified system. The Court directed a Review Selection Board to reconsider the Appellant's case within six months, ensuring compliance with the promotion policy. The judgment of the Tribunal was set aside, and the appeal was allowed.

Civil Appeal No. 5629 of 2017:
This appeal, involving similar facts, was also allowed in terms of the judgment in Civil Appeal No. 5751 of 2017. The Appellant, the only eligible Brigadier for promotion to Major General in 2015, was not empanelled despite securing 87.973 marks. The Supreme Court directed a reconsideration of his case by a Review Selection Board.