Supreme Court of India
LAKHWINDER SINGHversusUNION OF INDIA & ORS.
- Citation
- 2008 INSC 804
- Decided
- 10 July 2008
- Disposal
- Dismissed
- Bench
- ALTAMAS KABIR
Holding
The Special Selection Board's recommendations are recommendatory and may be varied or rejected by the appointing authority; the government's decision to deem the petitioner unfit was lawful.
Summary
Lt. General Lakhwinder Singh, an Indian Army officer, was recommended twice by Special Selection Boards for promotion to the rank of Lieutenant General. The Central Government, acting as the appointing authority, rejected the recommendations, deeming him "unfit" because his profile was the weakest among the candidates and there were fewer vacancies than names recommended. Singh challenged the decision in the Delhi High Court, which dismissed his writ petition. He then filed a Special Leave Petition before the Supreme Court. The Court held that the Special Selection Board's recommendations are merely recommendatory and may be varied or rejected by the appointing authority under the Army Regulations. Finding the government's decision based on a comparative assessment and free from bias, the Court dismissed the SLP, upholding the High Court's order.
Issues considered
- Whether the recommendation of a Special Selection Board for promotion in the Indian Army is binding on the appointing authority.
- Whether the denial of promotion despite such recommendation violates principles of natural justice, arbitrariness, or service law.
- Whether the High Court's dismissal of the writ petition can be interfered with by the Supreme Court.
Legislation cited
- The Army Regulations, 1987s. para 108
Subjects
military promotionSpecial Selection Boardrecommendatory decisionappointing authorityservice lawarbitrarinessIndian Army
Judgment
[2008] 10 S.C.R. 730
~
t I
A LAKHWINDER SINGH
v.
UNION OF INDIA & ORS.
(Special Leave Pe~ition (Civil) No.8501 of 2007) ,'
JULY 10, 2008
B
[ALTAMAS KABIR AND V.S. SIRPURKAR, JJ]
Service Law:
Army - Promotion to post of Lt. General - Recommen-
c dations by two successive Special Selection Boards for pro-
motion of petitioner- Not accepted by competent authority -
High Court dismissing candidate's writ petition - HELD: Sug-
gestion by Special Selection Board being recommendatory,
can be varied or interfered with by Appointing Authority - On
D comparison of profiles, petitioner graded unfit - No interfer- _.
ence called for with judgment of High Court.
The petitioner filed a writ petition before the High Court
r
I
challenging the decision of the respondents not to promote
him to the post of Lt. General. The case of the petitioner was
E that despite his excellent service profile and two succes-
sive recommendations for promotion to the rank of Lt. Gen-
eral made by Special Selection Board, consisting of Chief
of Army Staff (COAS), Vice-Chief of Army Staff and six se-
nior Lt. Generals in the Army, the respondents wrongly with-
F held promotion to the petitioner. The stand of the respon- ~
dents was that on both the occasions, on a comparison of
profiles of the recommended candidates, the petitioner was
found to have the weakest profile and was graded "unfit"
for promotion. It was submitted that the assessment by the
G Selection Board was recommendatory and the competent
authority, namely the COAS or the Central Government, had ~
,,,.
--;.
an inherent power to modify the recommendation. The peti-
tioner, having failed in the writ petition before the High Court,
filed the instant petition for special leave to appeal.
H 730
.
~-
LAKHWINDER SINGH v. UNION OF INDIA & 731
ORS.
r
Dismissing the petition, the Court A
HELD: 1.1 It is no doubt true that the name of the·
petitioner was recommended on two occasions by two
successive Special Selection Boards for promotion to the
post of Lt. General, but on each occasion he was declared
-< unfit on account of the fact that there were lesser number B
of vacancies available than the number of candidates rec-
ommended and it was found on a comparative assess-
ment that of all the recommended officers, he had the
weakest profile. [para 19] [739-B-C]
c
Union of India and Ors. Vs. Lt. General Rajinder Singh
Kadyan 2000 (6) SCC 698; and Union of India vs. Col. Shyam
Kumar 1982 (3) DRJ 225 - referred to.
1.2 Although the Special Selection Board consists
of the highest-ranking officers of the Indian Army, yet its D
suggestions are only recommendatory in nature and un-
der the Army Regulations can be varied or interfered with
by the Appointing Authority, as has been done in the in-
stant case. [para 19] [739-C & D]
1.3 Besides the active service of an officer during War E
and Battle Awards and Honours earned during such ac-
tion, there are several other factors to be taken into con-
sideration by the Special Selection Board in recommend-
ing promotion from the post of Major General to Lt. Gen-
1" eral. While the petitioner may have better records in the F
said category, the Board has also to take into consider-
ation various other categories which have been set out
in the judgment of the High Court. It is only on an overall
assessment that the profile of an officer is prepared and
was so prepared in the instant case where a comparison G
had to be made in filling up the available vacancies. [para
l. 19] [739-F,G,H; 740-A]
2. The Central Government, having gone through the
official records, which were also produced before this
H
I,-
I
732 SUPREME COURT REPORTS [2008] 10 S.C.R.
.(
A Court, considered and dealt with the entire question in a ' l
manner which was completely free from bias and based
on the service records of the· different officers. In the cir-
cumstances, no interference is called for with the judgment
of the High Court. [para 19 and 21] (739-E&F; 740-B&C]
B CIVIL APPELLATE JURISDICTION: Special Leave Peti~
tion (Civil) No. 8501 of 2007
"
t
From the Judgment and Order dated 22.3:2007 of the High
Court of Delhi at New Delhi in W.P. (C)
. No. 899/2006
.
c P.S. Patwalia, Shishir Sharma, Amit Dhiilgra and Sim ram
(for M/s. Dua Associates) for the Appellant.
T.S. Doabia, Rashmi malhotra and D.S. Mahra for the
Respondents.
D The Judgment of the Court was delivered by ~
ALTAMAS KABIR,J. 1. This Special Leave Petition is di-
rected against the judgment and order dated 22nd March, 2007
passed by the Delhi High Court dismissing Writ Petition No.
899 of 2006 filed by the petitioner herein challenging the deci-
E sion of the Central Government, to reject the recommendation
made by two Special Selection Boards f9r promoting the peti-
tioner to the rank of Lieutenant General.
2. The petitioner, who was commissioned as a Second
F Lieutenant in the Indian Army on 161h December, 1967, was pro-
"\
mated to the rank of Major General in the year 2001. Two sue-
cessive Special Selection Boards of the Indian Army recom-
mended the petitioner for promotion to the rank of Lt. General,
but the Central Government did not approve the said recom-
mendations. General. The said decision of the Central Govern-
G
ment was challenged by the petitioner in the aforesaid Writ
Petition on the ground that such denial of promotion to the peti- .__
tioher to the rank of Lt. General was arbitrary, discriminatory, -J.
whimsical and in violation of the rules and the established pro-
cedure of selection and it also offended the principles laid down
H
t
LAKHWINDER flNGH v. UNION OF INDIA & 733
ORS. [ALTAMAS KABIR,J.]
I
in various judicial pronouncements both by the High Courts as A
well as this Court.
3. According to the case made out by the petitioner, he
was engaged in active combat at Dera Baba Nanek in the
Punjab Sector during the lndo-Pakistan War and .was recom-
mended for Vir Chakra award. He also took part in various op- 8
erations, including operations relating to counter-insurgency,
such as operation Blue Star, in Punjab in 1984. In 1999, he was
posted to command an Artillery Brigade in the active insurgeney
area in Kashmir. The Brigade under the petitioner's command
was mobilized to fight the Kargil War/Operation Vijay in Drass- C
Kargil Sector in 1999. For the petitioner's participation in the
Kargil War he was awarded the Yudh Sewa Medal in August,
1999.
4. On account of his service profile, the petitioner was pro-
0
moted to the rank of Major General and was posted as General
Officer Commanding 40 Artillery Division, which was the only
Artillery Division of the Indian Army at the relevant time and he
led Operation Parakram in 2002. In 2003 he was posted to the
Northern Command and participated in the Operational Com- E
mand, which was responsible for the insurgency-affected
Jammu and Kashmir Sector.
5. It is the further case of the petitioner that all promotions
above the rank of Colonel are made not on the length of service
put in by an officer but on the basis of selection. It is the F
petitioner's case that he was promoted on first consideration
right from the rank of Colonel to Major General on a comretitive
basis. For selection, from the rank of Major General to Lt. Gen-
eral, a Special Selection Board is constituted by the Chief of
the Army Staff, hereinafter referred to as "COAS", under pow- G
ers delegated to him under the authority of the President. The
said Board comprises the Chief of Army Staff, the Vice-Chief
of Army Staff and the six senior-most Lt. Generals, who make
recommendations for promotion to the rank of Lt. General and
appointments are made after the recommendations are ap- H
734 SUPREME COURT REPORTS . [2008] 10 S.C.R.
A proved by the Ministry of Defence and other competent authori-
ties .
'
.6. It is the petitioner's case that the Special Selection
Boards are expert bodies which consist of the COAS, the Vice-
Chief of Army Staff and the six Gorp:..Commanders represent-
B ·ing different fields/ branches of the Army, including officers from ~
techhical and non-technical fields. According to the petitioner, a
person who has been recommended by the Special Selection
Board ca.n hardly be ignored by the Government for promotion.
c 7, As far.as the petitioner is concerned, the first Board for
SeJection was held on 271h of February, 2004, in which four names .
were unanimously recommended, including the name ~f the
petitioner. Before promotions could be given in terms of the
recommendations made, one of the four candidates superan-
nuated on 31st August, 2004 and one of the others expired on
D
3rct September, 2004. According to the petitioner, without, how- t ~
r
ever, applying its mind to the aforesaid facts, the Government
returned the recommendations of the Board on the ground that
four names had been recommended when there were only three
vacancies, though, at the relevant time, there were only two of-
E ficers left against three vacancies. Despite the above, only-0ne
of the recommended candidates, Major General A. Vasudeva
was promoted to the post of Lt . .General by the Central Govern-
ment but the petitioner's case for promotion was rejected and
the said detision was declared after. a period of 10 months.
F The petitioner has contended that he was the only officer amongst
the General Officers recommended for promotion as Lt. Gen-
eral in the Staff Stream.
8. Aggrieved by his non-selection to the post of Lt. Gen-
era I, the petitioner filed a non-statutory complaint with the COAS
G
on 17th January, 2005. The same remained unattended to and
Ultimately on 1st April, 2005, a second Board was held. Once
..f
again, the Board recommended the name of the petitioner for
promotion to the rank of Lt. General. It has been emphasised
by the petitioner that both the Boards were headed by the func- }
H
LAKHWINDER SINGH v. UNION OF INDIA & 735
ORS. [AlTAMAS KABIR,J.]
"
' tioning Chiefs of Army Staff. In the list recommending the names A
of five officers for promotion to the rank of Lt. General, the
petitioner's name was shown at serial No.1. When the result of
the second Board was declared on 30th June, 2005, the peti-
tioner found that he had once again been superseded and the
-J. recommendation of the second Board, as far as he was con:. B
cerned, was not approved by the Central Government.
9. It is also the case of the petitioner that two of the recom ..
mended candidates, Major General Utpal Bhattacharya and
Major General AK. Saini, were to superannuate on 1st July, 2005
and 31st August, .2005, respectively, and consequently in the c
vacancy arising on 1st February, 2006 only two officers, namely,
the petitioner and Major General Y.K.Jain should have been pro-
meted. However, on 291h/30th July, 2005, two vacancies were
created and just before the retirement of Major General U.
Bhattacharya, the rank of Lt. General was conferred on them. D
10. Aggrieved by the aforesaid action of the respondent,
the petitioner filed another statutory complaint on 29th August,
2005 with the Ministry of Defence challenging his supersession,
but the same was rejected by a cryptic order on 29th Decem-
ber, 2005. It is the petitioner's case that although there were E
vacancies in the rank of Lt. General to which the petitioner was
entitled to be promoted, the respondents did not fill up the avail-
able vacancies as the petitioner was due to retire on 31st May,
2006.
F
11. The grievance made out by the petitioner in his Writ
Petition is that despite his excellent service profile and unblem-
ished service for a period of 38 years and two successive rec-
ommendations for promotion, he was denied promotion to the
rank of Lt. General in an arbitrary and high-handed manner. G
12. Appearing for the petitioner, learned senior counsel,
\- Mr..Patwalia, repeated and reiterated the case made out by the
petitioner in his Writ Petition and emphasised the fact that de-
spite the recommendation of two Special Selection Boards,
consisting of the COAS, the Vice-Chief of Army Staff and the H
736 SUPREME COURT REPORTS [2008] 10 S.C.R.
\
A six senior Lt. Generals in the Army, the Central Government had
wrongly withheld promotion to the petitioner from the rank of
Major General to the rank of Lt. General. Mr. Patwalia submit-
ted that the senior-most officers of the Indian Army, who were
acquainted with the qualities of the officers under consideration,
B had made the recommendations for promotion of the petitioner ~
to the post of Lt. Generals, and accordingly, such recommen-
dation by two successive Boards, should not have been rejected. '
v'
It was submitted that except for indicating that in comparison to
the other recommended candidates, the petitioner had a weak
c profile, no other satisfactory reason had been given by the re-
spondents for rejecting the recommendation made by the Spe-
cial Selection Boards in the petitioner's favour.
13. Mr. Patwalia urged that while the petitioner may not
have obtained the grading of 9 in the box grading, for the pur-
D pose of promotion, of the recommendees, he was the only of- .t
ficer who had seen active combat during the Kargil War and
had been decorated for the same. Mr. Patwalia urged that de-
spite the fact that the petitioner did not possess any Box Grad-
ing of "9", the Special Selection Boards still recommended him
E for promotion to the rank of Lt. General, not once, but on two
occasions, which surely reflected the fact that Box Grading of
"9" was not of such significance as to deny promotion to the
petitioner to the rank of Lt. General. Referring to the criteria/
factors, which are considered for selection to the post of Lt.
F General, in terms of the policy devised by the Central Govern- -\-
ment, Mr. Patwalia submitted that only the Annual Confidential
Report profile of the officer appears to have been taken into
consideration while rejecting the recommendation of the Spe-
cial Selection Board to promote the petitioner to the rank of Lt.
General.. He pointed out that one of the 7 criteria was consis-
G
tent recommendations for promotion to the next higher rank. It
was submitted that such criteria appears to have not been given ·(
due importance by the Central Government while rejecting the
successive recommendations made in the petitioner's favour.
Although, no case of malafides had been made out on behalf of
H
LAKHWINDER SINGH v. UNION OF INDIA & 737
ORS. [ALTAMAS KABIR,J.]
the petitioner either before the High Court or before this Court, A
it was submitted that despite the fact that the petitioner's case
for promotion was rejected, two posts were created to ac-
commodate two officers as a special favour to promote them to
the rank of Lt. General just before they retired from service. Ac-
--! cepting the position that promotion was not a matter of right, Mr. B
Patwalia concluded by urging that an officer who had been se-
lected by the Special Selection Board consisting of the highest
officers in the Indian Army was entitled to request the Court to
look into the records to ascertain the reason for such rejection.
14. Appearing for the respondents, learned senior coun- c
sel, Mr. Doabia, submitted that the petitioner was first recom-
mended for promotion to the rank of Lt. General, along with three
other officers, by the Special Selection Board on 271h February,
2004, but when the said recommendation was taken up for con-
sideration by the Central Government, it was discovered that D
the Special Selection Board had presumed four vacancies when
only three vacancies were available. Thereafter, on a compari-
son of the profiles of all the officers, the petitioner was found to
have the weakest profile and was graded "unfit" for promotion.
Even when the second recommendation was made by the Spe- E
cial Seiection Board on 1st April, 2005, on a comparison of the
profiles of the officers recommended, the petitioner was once
again found to have the weakest profile and accordingly graded
"unfit". It was submitted that such consideration to hold the pe-
-I
titioner "unfit" in comparison to the others recommended officer, F
was a decision taken not by the COAS alone, in his individual
capacity, but by the Ministry of Defence in a representive ca-
pacity, which also included the COAS. In fact, it was submitted
that as names of five officers had been recommended against
three vacancies, the cases of all the officers were considered
on a comparative basis and since the petitioner was found to
G
have the weakest profile amongst all the officers recommended,
~
he was .once again. graded as "unfit". It was submitted that no
undue preference had been shown or given to any of the con-
cerned officers, but since from the records the petitioner was
H
---~
-t.
738 SUPREME COU.RT'REPORTS [2008] 10 S.C.R.
~
A found to have the weakest profile, he had been graded as "un-
fit" since only three vacancies were available while five names
had been recommended for promotion.
15. It was lastly submitted that Para 108 of the Regula-
tions for the Army, 1987, which provides for the constitution and ~·
B duties of Selection Boards, clearly indicates that the assess-
ment of the Selection Board shall be recommendatory in na- ,__
ture and not binding until approved by the Competent Authority
namely, the COAS or the Central Government as the case may
be. The said Regulation also provides that both the Central Gov-
c ernment and the COAS have an inherent power to modify, re-
new, approve with variation or repeal the recommendations of
the Selection. It was urged that it was, therefore, evident that the
recommendation of the Special Selection Board was not bind-
ing and had to be approved by the Central Government or the
D Chief of the Army Staff. In support of his aforesaid submission t
learned counsel referred to the decision of this Court in Union of
· 1ndia and Ors. Vs. Lt. General Rajinder Singh Kadyan [2000 (6)
SCC 698] in which this Court, inter alia, held as follows:-
"Of course, considering the nature of rigorous standards
E adopted in the matter of selection of officers from the
stage of Lt. Colonel onwards up to the stage of Lt. General,
in the usual course it may be that the senior-most officer
is selected as the Army Commander. But that does not
debar the Chief of the Army Staff or the Union of India from -\.-
F making the selection of any other person for good reasons
who fulfils the necessary criteria."
16. Reliance was also placed on another decision of the
Delhi High Court in the case of Union of India vs. Col. Shyam
Kumar, 1982 (3) DRJ 225, in which it was held that the assess-
G
ment of the Selection Board is purely recommendatory in char-
acter and that the power of the appointing authority to accept or r.
even vary the recommendation of the Selection Board is implicit.
17. It was urged that since the petitioner's case had been ?
H considered at the highest level of the appointing body; in which •
,
'
-~
LAKHWINDER SINGH v. UNION OF INDIA & 739
ORS. [AlTAMAS KABIR,J.]
l
the COAS was also present, no interference was called for with A
the decision either of ~he said authority or the High Court.
18. Having considered the submissions made on behalf
of the respective parties, we are not inclined to interfere with
the decision of the High Court impugned in this proceeding .
B
19. It is no doubt true, that the name of the petitioner had
been recommended on two occasions by two successive Spe-
cial Selection Boards for promotion to the post of Lt. General,
but on each occasion, he was declared unfit, on account of the
fact that there were lesser number of vacancies available than c
the number of candidates recommended and it was found on a
comparative assessment that of all the recommended officers,
he had the weakest profile. It is also no doubt true that the Spe-
cial Selection Board consists of the highest-ranking officers of
the Indian Army, but its suggestions are only recommendatory
0
in nature and under the Army Regulations, can be varied or in-
terfered with by the Appointing Authority, as has been done in
the instant case. It is unfortunate that the recommendations
were made in excess of the vacancies available which neces-
sitated a comparison to be made of the profiles of the recom-
mended candidates in which process the petitioner got elimi· E
nated, but having gone through the official records, which were
produced before us, we find that the entire question was con-
sidered and dealt with by the Central Government in a manner
which was completely free from bias and based on the service
records of the different officers. The active service of an officer F
during War and Battle Awards and Honours earned during such·
action, is one of the several factors to be taken into consider-
ation by the Special Selection Board in recommending promo-
tion from the post of Major General to Lt. General. While the
petitioner may have better records in the said category, the G
Board has also to take into consideration various other cat-
egories which have been set out in the judgment of the High
Court impugned in this Special Leave Petition. It is only on an
overall assessment that the profile of an officer ts prepared and
had been so prepared in the instant case where a comparison H
740 SUPREME COURT REPORTS [2008] 10 S.C.R.
A had to be made in filling up the available vacancies.
20. Apart from the two decisions referred to hereinabove
which support the case of the respondents .. various other deci-
sions were also referred to on behalf of the parties, but the same
are not really relevant for a decision in this case, having regard ~
8 to the view taken by us on the basis of the materials ~vailable
to us.
21. In the circumstances indicated hereinabove, no inter-
ference is called for with the impugned judgment of the High
c Courtand the Special Leave Petition is, accordingly, dismissed.
22. There will be no order as to costs.
R.P. SLP Dismissed.
r
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