UNION OF INDIA & OTHERSversusCOL RAN SINGH DUDEE

                         [2018] 5 S.C.R. 93                              93


                  UNION OF INDIA & OTHERS                                A
                                  v.
                    COL RAN SINGH DUDEE
                  (Civil Appeal No. 11009 of 2017)
                           JULY 03, 2018                                 B
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
       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
                                                                         C
– 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,       D
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
                                                                         E
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          F
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
                                                                         G
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
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                                 93
94           SUPREME COURT REPORTS                      [2018] 5 S.C.R.


A    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
B    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
C    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
D    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
E    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
F    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
G
     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
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         UNION OF INDIA v. COL RAN SINGH DUDEE                          95


against indicia No.(vi) also put the case of the respondent in the      A
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          B
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        C
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.      D
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
                                                                        E
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        F
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
                                                                        G
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]                                 H
96             SUPREME COURT REPORTS                        [2018] 5 S.C.R.


A          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
B
     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
C            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
D            India and Others (1989) Suppl 1 SCC 416 : [1989] 2
             SCR 370 – referred to.
                              Case Law Reference
             [2000] 1 Suppl. SCR 722          referred to     Para 4

E            (1990) 3 SCC 305                 referred to     Para 5
             [1993] 3 SCR 669                 referred to     Para 5
             [2008] 1 SCR 449                 referred to     Para 5
             [1989] 2 SCR 370                 referred to     Para 6
F            CIVIL APPELLATE JURISDICTION: Civil appeal no. 11009 of
     2017.
           From the Judgment and Order dated 17.01.2017 in OA. No. 260
     of 2016 of the Armed Forces Tribunal, Regional Bench, Lucknow.
                                       WITH
G
             C. A. No. 5973 of 2018.
          Mr. Maninder Singh, ASG, R. Balasubramanian, Prabhas Bajaj,
     Akshay Amritanshu, Ms. Aarti Sharma, Ms. Sakshi Kakkar, Mukesh
     Kumar Maroria, Advs. for the Appellants.
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         UNION OF INDIA v. COL RAN SINGH DUDEE                             97


      Respondent-in-person                                                 A
      The Judgment of the Court was delivered by
      UDAY UMESH LALIT, J. 1. These appeals question the
following judgments and orders passed by the Armed Forces Tribunal,
Regional Bench, Lucknow.
                                                                           B
      (a) Civil Appeal No.11009 of 2017 is directed against the Judgment
and Order dated 17.01.2017:
       (b) Civil Appeal (Diary) No.40312 of 2017 with an application
for leave to appeal is directed against the Judgment and Order dated
12.09.2017. Leave to appeal granted.                                       C
      2. The relevant facts in the present case are as under:-
      (A) The respondent was initially enrolled in the Indian Army as
Sowar in 1981. He cleared the examination conducted by Union Public
Service Commission in the year 1988 and got commissioned as an Officer
and was posted as Second Lieutenant in the Ordnance Corps of the           D
Army. During his career, he received some commendations and
appreciations. However, the respondent was summarily tried under
Section 83 of the Army Act, 1950 (hereinafter referred to as the Act) by
Commander, 29 Artillery Brigade for the offence of ‘absenting himself
without leave’ for 03 days from 27.06.1991 to 29.06.1991. The
                                                                           E
Respondent pleaded guilty to the charge under Section 39(a) of the Army
Act and was sentenced to ‘Reprimand’.
       (B) While the respondent was serving as Major in 2004-05, he
was tried by General Court Martial on four charges. The first charge
was under Section 52 to the effect that while the respondent was posted
                                                                           F
at Saugor between November 2000 and May 2002, he pursued a case
for procurement of 8.64 hectares of land belonging to Government of
Madhya Pradesh for the purposes of building a War Memorial in the
memory of late Sepoy Hawa Singh, who was the elder brother of the
respondent. The second charge was connected to the first one and was
to the effect that while performing duties as officiating Commanding       G
Officer he improperly wrote a Demi Official letter on 09.11.2000 to the
Collector, Saugor for allotment of the aforesaid land. The third charge
was connected to the second one while according to the fourth charge
the respondent had failed to submit report about the acquisition of said
land in contravention of Army Order 3/S/98.
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98             SUPREME COURT REPORTS                           [2018] 5 S.C.R.


A           (C) On 16.05.2005, he was found guilty of the first and third charges
     but not guilty of the second and fourth charges and was sentenced to be
     cashiered and to suffer rigorous imprisonment for three years. On
     21.10.2005, the competent disciplinary authority confirmed the findings
     as regards the first, second and fourth charges but did not confirm the
     finding on the third charge The sentence awarded by the General Court
B
     Martial was confirmed with remission of six months out of three years
     rigorous imprisonment. Though the Court of Inquiry relating to the matter
     in issue was undertaken on 07.07.2001 the trial in respect of said charges
     had commenced on 19.10.2004.
            (D) The respondent being aggrieved, preferred statutory complaint
C    under Section 165 of the Act. During the pendency of said complaint,
     selection for promotion to the rank of Colonel of 1988 Batch Officers
     was undertaken in August 2006 and appropriate selections were made.
     Since the respondent, by that time had stood punished in the General
     Court Martial, his candidature was not considered.
D           (E) As his Statutory Complaint was not considered in due course,
     the respondent filed a Writ Petition in the High Court of Delhi which
     was later transferred to Armed Forces Tribunal, Calcutta. In pursuance
     of the directions issued at the interim stage by the Armed Forces Tribunal,
     the consideration of the pending Statutory Complaint was taken up and
E    the matter was referred to the learned Solicitor General of India for his
     opinion. As the opinion given by the learned Solicitor General on
     01.11.2013 has been extensively quoted and relied upon in the Judgments
     under appeal, the concluding part of the opinion is extracted hereunder:
           “17. Since the first Court of Inquiry was ordered to be convened
F          on 07.07.2001, it can be said that the knowledge of the alleged
           offence (i.e. fraudulent allotment of land) was gained on or before
           such date. The Applicant’s trial commenced from 19.10.2004,
           which is 3 years beyond such date. Thus, in my opinion, the
           CGM proceedings are barred by limitation.

G          18. Even on merits, the finding of the guilt by the CGM is not
           tenable in view of the fact that even the Ministry is not clear in
           whose name the land was allotted, as mentioned above in paragraph
           12 and that the allotment was even otherwise valid in so far as the
           MP Government was concerned, as dealt with in paragraph 15.
           There has been no challenge to the findings arrived at by the
H          magisterial inquiry.
         UNION OF INDIA v. COL RAN SINGH DUDEE                              99
                 [UDAY UMESH LALIT, J.]

      19. It is also an admitted fact that the purpose of the allotment     A
      was only to build a war memorial, which has not been done by
      virtue of surrender of the land to the Government. I am also
      unable to see any wrongful pecuniary gain. From an overall
      perspective, the intent of the Applicant cannot be said to be
      something which is forbidden by law. It was only to perpetuate
                                                                            B
      the memory of his brother. Taking all these facts cumulatively, in
      my opinion, the findings of the GCM appear to be unacceptable.
      My view is also confirmed by Note 89 as would be evident from
      the file of Mr. Praveen Kumar (Director AG-I”).”
       (F) By Order dated 20.11.2013, the Central Government allowed
the Statutory Complaint preferred by the respondent and directed:-          C

      “8. Now, therefore, the Central Government, under the powers
      conferred under section 165 of the Army Act, 1950 do hereby
      annul the proceedings of the General Court Martial findings and
      sentence dated 16th May, 2005 and confirmation order dated 21st
      October, 2005 being illegal and unjust and allow the petition filed   D
      by IC-47908F, Major Ran Singh Dudee, of 36 DOU. Consequently,
      the penalty imposed upon IC-47908F Ex Major Ran Singh Dudee
      of 369 DOU stands quashed and he is entitled to all consequential
      benefits as admissible under rules on the subject.”
      (G) The respondent was thereafter reinstated in service on            E
13.01.2014 and paid all consequential benefits for the entire period. On
16.08.2014, the respondent was promoted to the rank of Lt. Colonel
with effect from 16.12.2004. Sometime in January, 2015, an officer
who was junior to the respondent was promoted to the rank of Brigadier.
A representation was therefore made by the respondent for grant of all      F
“consequential benefits”. He was principally aggrieved by his non-
empanelment for promotion to the rank of Brigadier. Around this time
on 30.06.2015, the respondent was granted Time Scale promotion as
Colonel, on completion of 26 years of service.
      (H) As regards the grievance made by the respondent and his           G
representation in that behalf, the matter was again referred to the Law
Officer of the Government of India who in his opinion dated 30.12.2015
opined that the respondent could not be denied promotion to the rank his
batch mates and immediate juniors were promoted, that the Government
of India having directed in the Order dated 20.11.2013 that all
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100            SUPREME COURT REPORTS                          [2018] 5 S.C.R.


A     consequential benefits be given to the respondent, the mandatory demands
      under the relevant Rules would stand waived and that the respondent
      should be granted the rank of a Brigadier. Serious reservation was
      however expressed by the Department which was of the view that no
      promotion to the rank of Brigadier could be granted except through the
      modalities of selection by the Selection Board and an appropriate Note
B
      was written in that behalf by the Additional Secretary in the Ministry of
      Defence on 03.02.2016. No.3 Selection Board was thereafter constituted
      and in the assessment made by said Selection Board on 26.04.2016, the
      respondent was not found fit and as such was not empanelled.
            (I) The respondent being aggrieved filed OA No. 260 of 2016 in
C     the Armed Forces Tribunal, Regional Bench, Lucknow questioning his
      non-empanelment in the rank of Brigadier. It was submitted, inter alia,
      that:
            (i) The respondent came from a family of soldiers. Though enrolled
            as Sowar in the year 1981 by sheer dint of hard work he got the
D           status of a Commissioned Officer in the year 1988. In his posting
            in Kargil he received COAS Commendation Card. He also
            received Letter of Appreciation from General Officer Commanding
            36 Infantry Division and was recommended for Sena Medal in
            2002.
E           (ii) In 1990 he had made complaints against his superiors citing
            various irregularities. Further, sensing threat to his life he had
            reported the matter to the Brigadier Commander. Offended by
            such reporting, the respondent was falsely implicated in a Court
            of Enquiry which found nothing against him. A first information
F           report was also lodged which was found to be stage managed.
            On the contrary in the Court of Enquiry, the officers against whom
            the respondent had complained, were found guilty and were suitably
            punished.
            (iii) In the year 1997 while he was posted at Jodhpur, he was a
G           member of the Tender Opening Board for Pokhran field firing
            ranges. He had lodged complaint to the superior authorities with
            regard to mal-practices in auction proceedings pursuant to which
            proceedings of auction were annulled.
            (iv) Since he had reported about corrupt practices of the superiors,
            the superiors in retaliation had forged the documents of Revenue
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         UNION OF INDIA v. COL RAN SINGH DUDEE                                 101
                 [UDAY UMESH LALIT, J.]

      Court ascribing motive to the respondent as regards allotment of         A
      land. Though initially he was visited with an order of punishment,
      namely, “Recording of Displeasure”, said punishment was later
      set aside.
      (v) He was wrongly implicated in the General Court Martial. In
      any case his innocence stood established by reason of order dated        B
      20.11.2013 which inter alia had directed that he was entitled to all
      consequential benefits.
      (vi) In his submission because of the pendency of General Court
      Martial proceedings he was kept out of active service for nine
      years. Relying on the opinion given by the Law Officer on                C
      30.12.2015 he submitted that he was entitled to the rank of
      Brigadier.
       (J) On the other hand, it was contended on behalf of the appellants
that the respondent did not fulfill the required criteria in terms of policy
and had not put in requisite period of service while holding the rank of       D
Colonel. It was further submitted that promotion to the post of Colonel
could either be purely on the basis of selection by the Board or could
simply be on the basis of length of service which is normally known as
time scale promotion. The Selection Board in question, namely, No.3
Selection Board had not found the respondent fit to be promoted by
“Selection”.                                                                   E

       (K) The Armed Forces Tribunal principally relied on the opinion
dated 01.11.2013 of the learned Solicitor General and the order dated
20.11.2013 to come to the conclusion that the respondent was framed
by certain persons on unfounded grounds. It further held that the order
dated 20.11.2013 was clear that the respondent was entitled to all             F
“consequential benefits” and as opined by the Law Officer in his opinion
dated 30.12.2015 the respondent ought to have been promoted as
Brigadier. The Armed Forces Tribunal found that the Department was
not justified in ignoring the opinion of the Law Officer and in generating
the Note dated 03.02.2016. It concluded:                                       G
      “There is no room for doubt that ordinarily, right to consider is a
      fundamental right and in case, the case is considered and
      incumbent does not qualify because of lack of criteria, he cannot
      lay claim for promotion. However, the fact remains where in the
      facts and circumstances as in the present, because of grant of
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102             SUPREME COURT REPORTS                           [2018] 5 S.C.R.


A           consequential benefits and loss of promotional avenues by virtue
            of pendency of General Court Martial (supra) and having
            suspended service period on account of such proceeding which
            has been held to be based on unfounded facts and allegations,
            rights that accrue to the Applicant on account of setting aside of
            punishment order, include the right to seek promotion to the higher
B
            rank from the date his juniors have been promoted keeping in
            view the facts and circumstances of the present case.”
             (L) The Armed Forces Tribunal thus by its judgment and order
      dated 17.01.2017 directed that a final decision be taken by the appellants
      keeping in view the opinion expressed by the Law Officer for promotion
C     of the respondent to the rank of Brigadier “Selection Grade”.
             (M) The appellants being aggrieved approached this Court by
      filing Civil Appeal No.11009 of 2017. While issuing notice, this Court
      passed the following direction on 01.02.2017:
D           “In the meantime, there will be stay of operation of the impugned
            judgment on the condition that the appellants shall take a decision
            on the promotion of the respondent to the rank of Colonel, within
            a period of two weeks from today, in accordance with law.”
             (N) No.3 Selection Board was, therefore, constituted on 3.02.2017
E     which considered the candidature of the respondent and the question
      whether he was fit to be promoted by selection to the rank of Colonel.
      The proceedings dated 13.02.2017 indicate that the Board considered
      the profile of the respondent alongwith three other officers (Two of
      them being empanelled officers - the second being the lowest empanelled
      officer and the third being one who was not empanelled). As per record,
F     the matter was considered on the basis of six indicia namely (i) Overall
      C.R. Profile, (ii) Lowest C.R. Assessment, (iii) Recommendations for
      promotions, (iv) Course Profile, (v) Lowest Course grading and (vi)
      Discipline Profile. As against the candidates who were empanelled and
      the one who was not empanelled, the respondent’s profile was found to
G     be lower than all three of them in terms of aforesaid Indicia Nos.(ii), (iv)
      and (v). Further as against Indicia No.(vi), where all those three officers
      had “NIL” entry the profile of the respondent indicated “reprimand”
      which was issued in 1991. It may be noted that only one out of those
      three officers who was empanelled had “Average CR Profile” graded
      as “Above Average to Outstanding” which was the same as the
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         UNION OF INDIA v. COL RAN SINGH DUDEE                              103
                 [UDAY UMESH LALIT, J.]

respondent. Considering the comparative profile of the respondent and       A
those three officers, it was found that the respondent was not fit to be
promoted by selection to the post of Colonel.
      The assessment made by the aforesaid No.3 Selection Board was
approved by Chief of Army Staff.
       (O) The Comparative Chart regarding profile of those three           B
officers and the respondent is extracted hereunder. We have however
not disclosed the names of those three officers.
                         Comparative Profile

                                                                            C




                                                                            D




                                                                            E




                                                                            F




                                                                            G

      (P) The respondent challenged the decision of No.3 Selection
Board by filing OA No.104 of 2017 before the Armed Forces Tribunal,
Regional Bench, Lucknow. When Civil Appeal No.11009 of 2017 was
taken up, this Court recorded the fact that the Selection Board had found
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104            SUPREME COURT REPORTS                          [2018] 5 S.C.R.


A     the respondent unfit to be promoted as Colonel against which decision
      challenge was pending before the Armed Forces Tribunal. The appeal
      was, therefore, adjourned to await the decision of the Armed Forces
      Tribunal while continuing the interim order passed earlier.
             (Q) The Tribunal reproduced the Comparative Chart which was
B     part of the record including names of the officers concerned. According
      to the Tribunal the entry of “Reprimand” which was of the year 1991
      could not and ought not to have been taken into account, more particularly
      when a clear opinion was expressed by the Law Officer on 30.12.2015.
      It did not consider the fact that on Indicia Nos.(ii), (iv) and (v) the
      respondent was definitely found lower than other three officers but relied
C     upon the fact that the overall C.R. Profile was adjudged “Above Average
      to Outstanding” whereas the lowest empanelled officer was actually
      graded as “Above Average”. The Tribunal observed:
            “31. We have noticed that over all profile of the empanelled officer
            is above average whereas the applicant’s over all profile is above
D           average to outstanding. How the applicant’s over all profile has
            been adjudged to be lower than the last selectee is not
            comprehensible.
            32. We thus feel that the Selection Board has not acted fairly and
            justly after applying mind to the original records and seems to
E           have considered the applicant’s case with pre-disposed mind.”
             (R) The Tribunal thus found the analysis and assessment made
      by No.3 Selection Board to be perverse. While allowing Original
      Application No.104 of 2017 vide its judgment and order dated 12.09.2017,
      the Tribunal directed the appellants to constitute a fresh Selection Board
F     and reconsider the case of the respondent in the light of the judgment of
      the Tribunal. The Tribunal also awarded costs to the respondent which
      were quantified at Rs.5 lakhs.
             (S) The appellants thereafter approached the Armed Forces
      Tribunal under Section 31 of the Armed Forces Tribunal Act, 2007 seeking
G     leave to appeal to this Court. The application was however rejected on
      13.11.2017, whereafter Civil Appeal (Diary) No.40312 of 2017 was
      preferred by the appellant alongwith an application for leave to appeal.
             3. Both these appeals being inter-connected and between the same
      parties, were taken up for hearing together. We heard Mr. Maninder
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             UNION OF INDIA v. COL RAN SINGH DUDEE                              105
                     [UDAY UMESH LALIT, J.]

Singh, learned Additional Solicitor General who appeared for the                A
appellants while Colonel (TS) RS Dudee(Retd.) appeared in-person and
made his submissions.
     4. The hierarchy in the Army and the method of selection and
promotion was considered by this Court in Union of India v. Lt. General
Rajendra Singh Kadyan1 as under:                                                B
         “11. The hierarchy in the Army and the method of selection and
         promotion to various posts starting from the post of Lieutenant
         and going up to the post of the Chief of the Army Staff will clearly
         indicate that the posts of Lieutenant, Captain and Major are
         automatic promotion posts on passing the promotion examination         C
         irrespective of inter se merit, whereas the posts from Major to Lt.
         Colonel, Lt. Colonel to Colonel, Colonel to Brigadier, Brigadier to
         Major General and Major General to Lt. General are all selection
         posts filled up by promotion on the basis of relative merit assessed
         by the designated Selection Boards…..”
                                                                                D
       Since the aforesaid decision, there has been an amendement and
as the situation presently stands2, all promotions upto the rank of Lt.
Colonel are time-bound promotions without involvement of any selection
process and it is only for the promotion from the post of Lt. Colonel to
Colonel and upwards that Selection Boards are constituted. The
                                                                                E
composition of relevant Selection Boards in terms of Selection System
is as under:-
                      “Composition of Selection Boards
         1. Special Selection Board
                                                                                F
         (a) Function: To screen officers for promotion from Maj Gen. to
             Lt. Gen.
         (b) Composition:
             (i) Chairman         - COAS
                                                                                G
             (ii) Members         - Army Cdrs (5) VCOAS
             (iii) Secretary      - MS

1
    2000 (6) SCC 698
2
    Ref.: Para 3 of Written Submissions of the appellants                       H
106            SUPREME COURT REPORTS                          [2018] 5 S.C.R.


A           2. No. 1 Selection Board
            (a) Function: To screen Brig for promotion to the rank of Maj.Gen.
            (b) Composition
               (i) Chairman       - COAS
B              (ii) Members       - Army Cdrs (5) VCOAS/PSO (1)
               (iii) Secretary    - MS
            3. No. 2 Selection Board
            (a) Function: To screen Col. for promotion to the rank of Brig.
C
            (b) Composition
               (i) Chairman       - Army Cdr (1)
               (ii) Members       - Corps Cdr (1)
                                     Lt. Gen. of Staff
                                    [Should have commanded a Div.(1)]
D
                                    Maj. Gen. (GOC Div) (1)
                                    Maj. Gen. (Staff) (1)
               (iii)Secretary     - Addl.MS (B)
               (iv)In attendance - Respective Heads of Arm/Services
E           4. No. 3 Selection Board
            (a) Function: To screen Lt. Cols to the rank of Col.
            (b) Composition
                (i)Chairman       - Corps Cdr or Lt. Gen. who has
F                                   commanded a Corps(1)
               (ii)Members        - Div. Cdr (2), Maj Gens on Staff (2)
               (iii)Secretary      - Dy. MS(B)
               (iv)In Attendance - Respective Heads of Arm/Services.”

G            5. We are presently concerned with selection from the post of Lt.
      Colonel to the rank of Colonel and the appropriate Selection Board would
      therefore be No.3 Selection Board with Officer of the rank of Lt. General
      as Chairperson, two members of the rank of Major General and two
      Div. Commanders. On few occasions this Court has considered the
      cases where the assessment and analysis made by such Selection Boards
H     were directly put in question. Some of the observations of this Court are
            UNION OF INDIA v. COL RAN SINGH DUDEE                                  107
                    [UDAY UMESH LALIT, J.]

extremely relevant for the present purposes:                                       A
                                                                  3
      (a) In Dalpat Abasaheb Solunke v. B.S. Mahajan this Court
observed:
         “……..It is needless to emphasise that it is not the function of the
         court to hear appeals over the decisions of the Selection
         Committees and to scrutinize the relative merits of the candidates.       B
         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. The court has no such expertise.
         The decision of the Selection Committee can be interfered with
         only on limited grounds, such as illegality or patent material            C
         irregularity in the constitution of the Committee or its procedure
         vitiating the selection, or proved mala fides affecting the selection
         etc. ……”
      (b) In Air Vice Marshal S.L. Chhabra, VSM (Retd.) v. Union
of India4, this Court observed:                                                    D
         “……No oblique motive has been suggested on behalf of the
         appellant against any of the members of the Selection Board and
         there is no reason or occasion for us to infer such motive on the
         part of the members of the Selection Board for denying the
         promotion to the appellant with reference to the year 1987. Public        E
         interest should be the primary consideration of all Selection Boards,
         constituted for selecting candidates, for promotion to the higher
         posts, but it is all the more important in respect of Selection Boards,
         meant for selecting officers for higher posts in the Indian Air Force.
         The court cannot encroach over this power, by substituting its
         own view and opinion…..”                                                  F
      (c) In Union of India v. Lt. General Rajendra Singh Kadyan
(Supra), this Court observed:
           “…..Critical analysis or appraisal of the file by the Court may
         neither be conducive to the interests of the officers concerned or
                                                                                   G
         for the morale of the entire force. Maybe one may emphasize
         one aspect rather than the other but in the appraisal of the total
         profile, the entire service profile has been taken care of by the
         authorities concerned and we cannot substitute our view to that
3
    1990 (3) SCC 305
4
    1993 Supp (4) SCC 441                                                          H
108               SUPREME COURT REPORTS                           [2018] 5 S.C.R.


A             of the authorities. It is a well-known principle of administrative
              law that when relevant considerations have been taken note of
              and irrelevant aspects have been eschewed from consideration
              and that no relevant aspect has been ignored and the administrative
              decisions have nexus with the facts on record, the same cannot
              be attacked on merits. Judicial review is permissible only to the
B
              extent of finding whether the process in reaching decision has
              been observed correctly and not the decision as such…..”
            (d) Further, in Surinder Shukla v. Union of India5, it was
      observed:
C             “11. Considering the comparative batch merit, if the Selection
              Board did not recommend the name of the appellant for promotion
              to the rank of Colonel which appears to have been approved by
              the Chief of Army Staff, it is not for the court exercising power of
              judicial review to enter into the merit of the decision. The Selection
              Board was constituted by senior officers presided over by an
D             officer of the rank of Lt. General. It has been contended before
              us that the Selection Board was not even aware of the identity of
              the candidates considered by them because only in the member
              data sheet all the informations of the candidates required to be
              considered by the Selection Board are stated, but the identity of
E             the officers is not disclosed. The appellant moreover did not allege
              any mala fide against the members of the Selection Board…..”
             6. The first question that arises is regarding the significance of
      the expression “consequential benefits” as used in the order dated
      20.11.2013. The matter which was directly in issue and under
F     consideration was the correctness and validity of General Court Martial
      proceedings. While annulling the findings and effect of such 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
G     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
      5
          (2008) 2 SCC 649
H
            UNION OF INDIA v. COL RAN SINGH DUDEE                               109
                    [UDAY UMESH LALIT, J.]

profile would show inadequacy to a certain extent. On the other hand            A
the Department was also denied of proper assessment of the profile of
the respondent for those years. The correct approach in the matter is
the one which was considered by this Court in Lt. Col. K. D. Gupta v.
Union of India and Others6 as under:-
         “8. The respondents have maintained that the petitioner has not        B
         served in the appropriate grades for the requisite period and has
         not possessed the necessary experience and training and
         consequential assessment of ability which are a precondition for
         promotion. The defence services have their own peculiarities and
         special requirements. The considerations which apply to other
         government servants in the matter of promotion cannot as a matter      C
         of course be applied to defence personnel of the petitioner’s
         category and rank. Requisite experience, consequent exposure
         and appropriate review are indispensable for according promotion
         and the petitioner, therefore, cannot be given promotions as claimed
         by him on the basis that his batchmates have earned such               D
         promotions. Individual capacity and special qualities on the basis
         of assessment have to be found but in the case of the petitioner
         these are not available. We find force in the stand of the
         respondents and do not accept the petitioner’s contention that he
         can be granted promotion to the higher ranks as claimed by him
         by adopting the promotions obtained by his batchmates as the           E
         measure.”
       7. The opinion of the learned Solicitor General dated 01.11.2013
and the consequential order dated 20.11.2013 must be confined to the
question of validity and correctness of the General Court Martial
proceedings and the benefits which respondent stood denied purely as a          F
result thereof. 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 (supra). The
Tribunal therefore completely erred in passing the directions in its order      G
dated 17.01.2017. Since the opinion of the Law Officer dated 30.12.2015
was not consistent with the provisions of the relevant rules and the law
declared by this Court in K.D. Gupta (supra), the Department was
justified in expressing serious reservations and in generating note dated
6
    1989 Suppl (1) SCC 416
                                                                                H
110             SUPREME COURT REPORTS                            [2018] 5 S.C.R.


A     03.02.2016. The Tribunal, in our considered view, attached undue
      importance to the opinion of the Law Officer dated 30.12.2015.
             8. Be that as it may, the matter was considered on merits by No.3
      Selection Board which found the respondent unfit for selection as
      “Colonel”. The matter was analyzed by the Board on six indicia or
B     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. At this stage we may consider
C     whether the entry of reprimand of the year 1991 was rightly or wrongly
      taken into account.
             9. In terms of Paragraph 10 (f) of the Selection Policy dated
      06.05.1987 which has been placed on record by the appellants, disciplinary
      award forms part of the overall profile of an Officer. Said provision in
D     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
E     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. It is relevant to note at this
      juncture that even though one out of those three Officers had fared
      better than the respondent on those three indicia and also did not have
F     any entry or reprimand, he was not an empanelled Officer. It is precisely
      for this reason that the law as laid down by this Court is, “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.”
             10. It is true that overall CR profile of the respondent was better
G     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
H     irrelevant factors have been taken into account or relevant factors have
             UNION OF INDIA v. COL RAN SINGH DUDEE                            111
                     [UDAY UMESH LALIT, J.]

been missed out or eliminated from consideration. The Selection Board         A
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.
       11. Having considered the matter in its entirety, we cannot support    B
the view taken by the Tribunal. According to us, 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.
       12. It may be that the respondent was wrongly proceeded against        C
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.      D

      13. We therefore allow both the appeals and set aside Judgments
and Orders dated 17.01.2017 and 12.09.2017 passed by the Armed
Forces Tribunal, Regional Bench, Lucknow.
        14. No order as to costs.                                             E


Nidhi Jain                                                 Appeals allowed.



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