http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  250 of 2008

PETITIONER: Surinder Shukla

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 09/01/2008

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  [Arising out of  SLP (Civil) No. 8303 of 2007]

S.B. SINHA, J :          1.      Leave granted. 2.      Appellant herein was granted commission in Army Education Core.   He at the material time was holding the post of Lt. Colonel.  He was  considered for promotion to the post of Colonel but was not selected.  He  filed a non-statutory complaint which was rejected by the competent  authority by an order dated 10.11.1997.  First review for promotion was  conducted in December, 1998 but he was again not promoted.  His statutory  complaint was rejected summarily.   

       Yet again in December, 2000, his case was considered for promotion  but he was not found fit therefor.  He thereafter filed a number of statutory  complaints.  By an order dated 6.07.2004, his statutory complaint dated  16.02.2004 was rejected, stating: \023Statutory Complaint dated 16 Feb 2004 against  non-empanelment for promotion submitted by IC- 30957 N Lt. Col. Surender Shukla, AEC has been  perused alongwith other relevant document  regarding his complaints available at this HQ.  It is  observed that the instant complaint is the second  one against the same SBs without any fresh facts  meriting reconsideration of the case.  Further, the  order dated 17 Jul 2003 of the Hon\022ble High Court  of MP in WP No. 2229 of 2003 of Brig. J.K.  Nagpal Vs. Union of India and ors., quoted by the  officer in his complaint as fresh facts is not  applicable in the officer\022s case, as per legal  opinion obtained by this HQ.

3.      In view of the above, the Statutory  Complaint dated 16 Feb 2004 is declared  untenable and will not be acted upon at this HQ.   The officer may please to inform accordingly.\024

3.      Aggrieved by and dissatisfied with the said order, he filed a writ  petition before the Delhi High Court which by reason of the impugned  judgment has been dismissed.   4.      A Bench of this Court noticing the following averments made in the  writ petition of the appellant, directed issuance of notice:

\023G. Because the career profile of the Petitioner is  unblemished and better than that of his colleagues  who superseded the Petitioner.  Two of such  officers are:-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

Name                                    Service No. Col. A.P.S. Panwar              IC30661-P (one above the petitioner)       

Col. V.K. Sinha                 IC30972-H (one below the petitioner)

       Hence it is submitted that the comparative  study of the Career Profiles of these officers with  that of the petitioner can be of much help for  deciding the present Writ Petition.\024

5.      The Union of India in its counter-affidavit inter alia contended: \0232.  The assessment of officers in ACR was  regulated by SAO 3/S/89 (which has now been  replaced by Army Order 45/2001) and other  relevant policies at any given time.  The gradings  are numerical from 1 to 9 (overall as well as in  personal qualities and performance variables in  different qualities) and in the form of pen picture  also.  The entire assessment of an officer in any  ACR consists of assessment of three different  reporting officers whose assessments are  independent of each other. 3.      While considering an officer for promotion  to a selection rank the Selection Board takes into  consideration a number of factors such as war/  operational reports, course reports, ACR  performance in command and staff appointments,  honors and awards, disciplinary background, and  not only the ACR or one/ few ACRs etc.   Selection/ rejection is based upon the overall  profile of an officer and comparative merit within  the Batch as evaluated by Selection Board.  The  petitioner did not make the grade based on his  overall profile as evaluated by the Selection Board.   It was upto the Selection Boards to assess the  suitability of the petitioner for promotion to the  rank of Col...\024

       It was further averred: \0234. In the instant case the petitioner was  considered for promotion from the rank of Lt Col  to the rank of Col by No 3 Selection Board as  follows:- Look                    Year            Result (i)  Fresh Case Jun 97   \021Z\022 Non-empanelled (ii) First Review       Dec 97  Withdrawn (iii) Final Review      Jun 98  Withdrawn (iv) First Review       Dec 98  \021Z\022 Non-empanelled (v) Final Review        Dec 2000        -do-\023

6.      Appellant appearing in person inter alia submitted that his service  records being better than that of his batchmates, viz., Col. A.P.S. Panwar and  Col. V.K. Sinha, he should have been promoted. 7.      Before us, the Union of India has placed the service records of the  said three officers.  We have gone through them.   8.      Although service records of the appellant appears to be better than  those of Col. A.P.S. Panwar and Col. V.K. Sinha, the question which arises  for consideration is as to whether the High Court could have exercised its  discretionary jurisdiction under Article 226 of the Constitution of India for  granting the relief(s) prayed for by him.           We may notice that before the High Court another contention by the  appellant was raised, viz., that adverse remarks, if any, were not  communicated to him.  The High Court opined that merely because he was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

not selected to the post, the same did not mean that he had been  downgraded.           We have, however, noticed hereinbefore that the notice was issued by  this Court on limited ground. 9.      The post of  \021Colonel\022 is a selection post.  A large number of factors  are required to be taken into consideration therefor, viz.: (i)     Annual Confidential Reports profile of the officer in the relevant  ranks. (ii)    War Reports (iii)   Battle Awards and Honours earned by the officers during his  service. (iv)    Professional courses done by the officer, his performance during  the course and grading obtained therein. (v)     Special Achievements and weaknesses. (vi)    Appointments held by the officers including criteria command/  staff appointments. (vii)   Disciplinary background and punishments. (viii)  Employability and potential including consistent recommendations  for promotion to the next higher rank. 10.     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 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 the officers is not disclosed.           Appellant moreover did not allege any mala fide against the members  of the Selection Board.  What impelled the selection board not to  recommend his case but the names of other two officers is not known.   11.     The said Col. A.P.S. Panwar and Col. V.K. Sinha were furthermore  not impleaded as parties in the writ petition.  In their absence, the writ  petition could not have been effectively adjudicated upon. 12.     In Union of India and Others v. Lt. Gen. Rajendra Singh Kadyan and  Another [2000 (5) SCALE 327 : (2000) 6 SCC 698], it was held: \023\005It 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 extent of finding whether  the process in reaching decision has been observed  correctly and not the decision as such. In that view  of the matter, we think there is no justification for  the High Court to have interfered with the order  made by the Government.\024  

13.     The said views have been reiterated in Amrik Singh v. Union of India  and Others [(2001) 10 SCC 424] . 14.     The peculiarities of special requirements of defence services in a case  of this nature must also be kept in view.  The considerations which apply to  other government servants in the matter of promotion may not be held to be  applicable in the army services.  [See Lt. Col. K.D. Gupta v. Union of India  and others, AIR 1989 SC 1393 : 1989 Supp (1) SCC 416] 15.     For the reasons aforementioned, there is no merit in this appeal which  is dismissed accordingly.  In the facts and circumstances of this case,  however, there shall be no order as to costs.