Lakhwinder Singh Vs.
Union of India & Ors.  INSC 1083 (10 July 2008)
JURISDICTION SPECIAL LEAVE PETITION(CIVIL) NO.8501 OF 2007 Lakhwinder Singh ...
Petitioner Union of
India & Ors. ...Respondents
Special Leave Petition is directed 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 decision of the Central
Government, to reject the recommendation made by two Special Selection Boards
for promoting the petitioner to the rank of Lieutenant General.
petitioner, who was commissioned as a Second Lieutenant in the Indian Army on
16th December, 1967, was promoted to the rank of Major General in the year
2001. Two successive Special Selection Boards of the Indian Army recommended
the petitioner for promotion to the rank of Lt. General, but the Central
Government did not approve the said recommendations. General. The said decision
of the Central Government was challenged by the petitioner in the aforesaid
Writ Petition on the ground that such denial of promotion to the petitioner to
the rank of Lt. General was arbitrary, discriminatory, whimsical and in
violation of the rules and the established procedure of selection and it also
offended the principles laid down in various judicial pronouncements both by
the High Courts as well as this Court.
to the case made out by the petitioner, he was engaged in active combat at Dera
Baba Nanek in the Punjab Sector during 3 the Indo-Pakistan War and was
recommended for Vir Chakra award. He also took part in various operations,
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 insurgency area in Kashmir. The Brigade under the petitioner's
command was mobilized to fight the Kargil War/Operation Vijay in Drass-Kargil
Sector in 1999. For the petitioner's participation in the Kargil War he was
awarded the Yudh Sewa Medal in August, 1999.
account of his service profile, the petitioner was promoted 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 Command, which was
responsible for 4 the insurgency-affected Jammu and Kashmir Sector.
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 petitioner's case that he was promoted on first
consideration right from the rank of Colonel to Major General on a competitive
basis. For selection, from the rank of Major General to Lt. General, a Special
Selection Board is constituted by the Chief of the Army Staff, hereinafter
referred to as "COAS", under powers 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 approved by the Ministry of Defence and other
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 Corp-Commanders
representing different fields/ branches of the Army, including officers from
technical and non- technical fields. According to the petitioner, a person who
has been recommended by the Special Selection Board can hardly be ignored by
the Government for promotion.
far as the petitioner is concerned, the first Board for Selection was held on
27th of February, 2004, in which four names were unanimously recommended,
including the name of the petitioner. Before promotions could be given in terms
of the recommendations made, one of the four candidates superannuated on 31st
August, 2004 and one of the others expired on 3rd September, 2004. According to
the petitioner, without, however, applying its mind to the aforesaid facts, the
Government returned the recommendations of the Board on 6 the ground that four
names had been recommended when there were only three vacancies, though, at the
relevant time, there were only two officers left against three vacancies.
Despite the above, only one of the recommended candidates, Major General A.
Vasudeva was promoted to the post of Lt. General by the Central Government but
the petitioner's case for promotion was rejected and the said decision was
declared after a period of 10 months. The petitioner has contended that he was
the only officer amongst the General Officers recommended for promotion as Lt.
General in the Staff Stream.
by his non-selection to the post of Lt. General, the petitioner filed a non-
statutory complaint with the COAS on 17th January, 2005. The same remained
unattended to and ultimately on 1st April, 2005, a second Board was held. Once
again, the Board recommended the name of the petitioner for promotion to the
rank of Lt. General. It has 7 been emphasised by the petitioner that both the
Boards were headed by the functioning Chiefs of Army Staff. In the list
recommending the names 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 petitioner found that he had
once again been superseded and the recommendation of the second Board, as far
as he was concerned, was not approved by the Central Government.
is also the case of the petitioner that two of the recommended candidates,
Major General Utpal Bhattacharya and Major General A.K. Saini, were to
superannuate on 1st July, 2005 and 31st August, 2005, respectively, and
consequently in the vacancy arising on 1st February, 2006 only two officers,
namely, the petitioner and Major General Y.K.Jain should have been promoted.
However, on 29th/30th July, 2005, two vacancies were created and just 8 before
the retirement of Major General U. Bhattacharya, the rank of Lt. General was
conferred on them.
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 December, 2005. It is the petitioner's case that although there were
vacancies in the rank of Lt. General to which the petitioner was entitled to be
promoted, the respondents did not fill up the available vacancies as the
petitioner was due to retire on 31st May, 2006.
grievance made out by the petitioner in his Writ Petition is that despite his
excellent service profile and unblemished service for a period of 38 years and
two successive recommendations for promotion, he was denied promotion to the
rank of Lt. 9 General in an arbitrary and high-handed manner.
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 despite the recommendation of two Special Selection
Boards, consisting of the COAS, the Vice-Chief of Army Staff and the six senior
Lt. Colonels 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 submitted that the senior-most officers of the Indian Army, who
were acquainted with the qualities of the officers under consideration, had
made the recommendations for promotion of the petitioner to the post of Lt.
General, and accordingly, such recommendation by two successive Boards, should
not have been rejected. It was submitted that except for indicating that in
comparison to the other 10 recommended candidates, the petitioner had a weak
profile, no other satisfactory reason had been given by the respondents for
rejecting the recommendation made by the Special Selection Boards in the
Patwalia urged that while the petitioner may not have obtained the grading of 9
in the box grading, for the purpose of promotion, of the recommendees, he was
the only officer who had seen active combat during the Kargil War and had been
decorated for the same. Mr. Patwalia urged that despite the fact that the
petitioner did not possess any Box Grading of "9", the Special
Selection Boards still recommended him 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. General, in terms 11 of
the policy devised by the Central Government, 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 Special
Selection Board to promote the petitioner to the rank of Lt. General. He
pointed out that one of the 7 criteria was consistent 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 the petitioner either before
the High Court or before this Court, it was submitted that despite the fact
that the petitioner's case for promotion was rejected, two posts were created
to accommodate two officers as a special favour to promote them to the rank of
Lt. General 12 just before they retired from service. Accepting the position
that promotion was not a matter of right, Mr. Patwalia concluded by urging that
an officer who had been selected 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.
for the respondents, learned senior counsel, Mr. Doabia, submitted that the
petitioner was first recommended for promotion to the rank of Lt. General,
along with three other officers, by the Special Selection Board on 27th
February, 2004, but when the said recommendation was taken up for consideration
by the Central Government, it was discovered that the Special Selection Board
had presumed four vacancies when only three vacancies were available.
Thereafter, on a comparison of the profiles of all the officers, the petitioner
was found to have the weakest profile and was 13 graded "unfit" for
promotion. Even when the second recommendation was made by the Special
Selection 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 petitioner "unfit" in comparison to the others
recommended officer, was a decision taken not by the COAS alone, in his
individual capacity, but by the Ministry of Defence in a representive capacity,
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 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 14 the concerned officers, but
since from the records the petitioner was found to have the weakest profile, he
had been graded as "unfit" since only three vacancies were available
while five names had been recommended for promotion.
was lastly submitted that Para 108 of the Regulations for the Army, 1987, which
provides for the constitution and duties of Selection Boards, clearly indicates
that the assessment of the Selection Board shall be recommendatory in nature
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 Government and the COAS have an inherent power to modify,
renew, 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 binding and had to be approved by the Central
15 Government or the Chief of the Army Staff. In support of his aforesaid
submission learned counsel referred to the decision of this Court Rajinder
Singh Kadyan [2000 (6) SCC 698] in which this Court, inter alia, held as
follows:- "Of course, considering the nature of rigorous standards 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 making the selection of any other
person for good reasons who fulfils the necessary criteria."
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 assessment of the Selection Board is purely recommendatory in
character and that the power of the appointing authority to accept or even 16
vary the recommendation of the Selection Board is implicit.
was urged that since the petitioner's case had been considered at the highest
level of the appointing body, in which the COAS was also present, no
interference was called for with the decision either of the said authority or
the High Court.
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
is no doubt true, that the name of the petitioner had been 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 of vacancies available than the number of
candidates recommended and it was found on a comparative assessment that of all
the recommended officers, he had the weakest 17 profile. It is also no doubt
true that the Special Selection Board consists of the highest-ranking officers
of the Indian Army, but its suggestions are only recommendatory in nature and
under the Army Regulations, can be varied or interfered 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
necessitated a comparison to be made of the profiles of the recommended
candidates in which process the petitioner got eliminated, but having gone
through the official records, which were produced before us, we find that the
entire question was considered 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 during War and Battle Awards and Honours earned during such action,
is one of the several factors to 18 be taken into consideration by the Special
Selection Board in recommending promotion from the post of Major General to Lt.
While the petitioner
may have better records in the said category, the Board has also to take into
consideration various other categories 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 is prepared and had been so
prepared in the instant case where a comparison had to be made in filling up
the available vacancies.
from the two decisions referred to hereinabove which support the case of the
respondents, various other decisions were also referred to on behalf of the
parties, but the same are not really relevant for a decision in this case,
having regard to the view taken by us on the basis of the materials available
the circumstances indicated hereinabove, no interference is called for with the
impugned judgment of the High Court and the Special Leave Petition is,
will be no order as to costs.