IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(CIVIL) NO.8501 OF 2007

Lakhwinder Singh ... Petitioner

Vs.

Union of India & Ors. ...Respondents

J U D G M E N T

ALTAMAS KABIR,J.

1. This  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.

2. The  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.

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

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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.

4. On  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

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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 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 competent authorities.

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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 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.

7. As 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

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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.   8. Aggrieved 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

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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. 9. It 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

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before  the  retirement  of  Major  General  U.

Bhattacharya,  the  rank  of  Lt.  General  was

conferred on them. 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 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.   

11. The 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.

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General  in  an  arbitrary  and  high-handed

manner.

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

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

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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 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 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

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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

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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.

14. Appearing 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

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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 wee 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

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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.

15. It 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

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Government or the Chief of the Army Staff.  In

support  of  his aforesaid submission learned

counsel referred to the decision of this Court

in Union of India 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 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.”   

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 assessment

of  the  Selection  Board  is  purely

recommendatory in character and that the power

of the appointing authority to accept or even

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vary the recommendation of the Selection Board

is implicit.

17. It 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.

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.

19. It 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

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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

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be  taken  into  consideration  by  the  Special

Selection Board in recommending promotion from

the  post  of  Major  General  to  Lt.  General.

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.

20. Apart  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 to

us.

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21. In the circumstances indicated hereinabove, no

interference is called for with the impugned

judgment of the High Court and the Special

Leave Petition is, accordingly, dismissed.

22. There will be no order as to costs.     

………………………………………J. (Altamas Kabir)

………………………………………J. (V.S.Sirpurkar)

New Delhi Dated: July 10,2008

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