IMPORTANT POINT
If a person has performed his duty excellently at a particular stage in his career, then that performance of excellence cannot be considered for entire life.

Headnote:Service Law – Promotion – Para 9 of Promotion Policy dated 04.11.2011 – Denial of promotion to post of Brigadier – If an incumbent had already been given benefit that many number of times which has been stipulated in subsequent policies, he cannot claim it as a right on the basis of subsequent policy on foundation that restriction had come into play later and, therefore, that should be counted from that stage – Gallantry awards can be given weightage only for two Selection Boards after award – Respondent’s case if accepted would require weightage for more than two Selection Boards and that is clearly not permissible – If a person has performed his duty excellently at a particular stage in his career, then that performance of excellence cannot be considered for entire life – Judgment and order passed by High Court set aside. (Paras 19, 20 and 21)
       Facts of Case:
       Respondent knocked at the doors of the Armed Forces Tribunal, Regional Bench at Chandigarh for setting aside order passed by the Ministry of Defence of Government of India dismissing the statutory complaint preferred by him and further for quashing Para 9 of the Promotion Policy dated 04.11.2011 which postulates that gallantry award will be given weightage for two selection boards after the award. Additionally, the petitioner also prayed for quashing of the promotion policy dated 04.11.2011 in entirety as arbitrary and discriminatory and further to command the respondents therein to grant weightage for gallantry award, namely, Sena Medal (Gallantry) and Vir Chakra and consider his case afresh for promotion to the post of Brigadier.
       Findings of Court:
       A policy has to be understood in its proper perspective. It has to be appositely interpreted, regard being had to the concept of permissible and acceptable parameters. A change of criterion in a promotional policy and more so with added restriction, as noted above, according to the High Court, would not affect the future prospects of an incumbent even if he had already availed the permissible benefit under the earlier policy. In our considered opinion, such an interpretation is indubitably fallacious. The clear language of Paragraph 7 of the new Policy has no scope for interpretation. Gallantry awards can be given weightage only for two Selection Boards after the award. Respondent’s case if accepted would require weightage for more than two Selection Boards and that is clearly not permissible. Therefore, we have no hesitation in holding that the High Court has not appropriately appreciated the ratio of the authority in Hardev Singh (supra), the relevant clauses in the policy and has committed an illegality and, therefore, the judgment and order passed by the High Court are bound to be set aside and we so do.
       Result : Appeals allowed.

ORDER

Dipak Misra, J.

Leave granted in both the special leave petitions.

2. The respondent knocked at the doors of the Armed Forces Tribunal, Regional Bench at Chandigarh (for short, 'the tribunal') in OA No.1334 of 2012 for setting aside the order dated 13.12.2011 passed by the Ministry of Defence of the Government of India dismissing the statutory complaint preferred by him and further for quashing Para 9 of the Promotion Policy dated 04.11.2011 which postulates that the gallantry award will be given weightage for two selection boards after the award. Additionally, the petitioner also prayed for quashing of the promotion policy dated 04.11.2011 in entirety as arbitrary and discriminatory and further to command the respondents therein to grant weightage for gallantry award, namely, Sena Medal (Gallantry) and Vir Chakra and consider his case afresh for promotion to the post of Brigadier. Be it stated, certain other reliefs were sought but they are not necessary to be referred to for adjudication of the present appeals.

3. The facts which are essential to be stated are that the respondent was commissioned in the Indian Army on 18.06.1983 and on 26.01.1986, he was conferred the award, Sena Medal (Gallantry) by the President of India, regard being had to his exceptional devotion to duty, and courage. He was awarded Vir Chakra on 26.01.1991 for his bravery and conduct during the Indian Peace Keeping Force operation in Sri Lanka. Thereafter, the question of promotion of the respondent to the post of Lt. Colonel came for consideration in May 1999 and he was promoted. While he was holding the post of Lt. Colonel, his case was considered for promotion to the rank of Colonel by the Selection Board in July/August, 2001 and he was cleared for the said rank on 21.08.2002.

4. At this stage, it is apt to note that a policy had been framed by the Army Headquarters with approval of the Union of India in the year 1987. It pertains to selection system. Clause 10 deals with guidelines of assessment. For the purpose of completeness, the said clause is reproduced below :

“Guidelines of Assessment

10. These directives are approved by the COAS for each rank and are comprehensive by themselves. The salient features of the guidelines are as follows:-

(a) Selection is to be based on the overall profile of the officer with special stress on the performance in criteria command appointment.

(b) Due consideration is given to officer who show consistency in overall performance and they are given preference over late starters.

(c) The officer should have been consistently recommended for to the next rank. Credit is given to those officers who gave earned positive recommendations for promotion in their very first report in command.

(d) The officer should have done psc/ptsc/post graduate courses and/or worked well in Staff/ERE/Instructional Appt. However, qualification of psc,ptsc or HC is neither as substitute for mediocre performance in command nor a license for promotion.

(e) Officers should have the potential for being employed or being rotated in Staff, instructional or ERE appointments.

(f) Character Qualities Disciplinary background and decorations form an important input of the overall profile of the officer and due consideration should be given while assessing borderline cases.

(g) While assessing officers with disciplinary background gravity and nature of the offence and the service level at which the offence was committed should be taken into consideration.

(h) Cases involving moral turpitude, gross negligence, acts of cowardice, or un-officer like behaviour which reflects on the moral fibre of an officer will not be recommended for promotion.

(j) Performance during war forms an important fact of the overall record of the officer.

(k) Cautionary Notes by the COAS

(i) Element of magnanimity on the part of the reporting officers leading, to sudden elevation in figurative rating especially in the case of officers who have been superseded earlier or on the

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2016 Supreme(SC) 23

SUPREME COURT OF INDIADipak Misra, Shiva Kirti Singh, JJ.Union of India & Ors. – AppellantsVERSUS Col. Chander Ballabh Sharma – RespondentCIVIL APPEAL NOS. 29-30 OF 2016 (Arising out of SLP (C) Nos.5436-5437 of 2015) Decided On : 06-01-2016

IMPORTANT POINTIf a person has performed his duty excellently at a particular stage in his career, then that performance of excellence cannot be considered for entire life.

Cases Referred (1)

SUPREME COURT OF INDIA
Dipak Misra, Shiva Kirti Singh, JJ.
Union of India & Ors. – Appellants
VERSUS
Col. Chander Ballabh Sharma – Respondent
CIVIL APPEAL NOS. 29-30 OF 2016 (Arising out of SLP (C) Nos.5436-5437 of 2015)
Decided On : 06-01-2016

IMPORTANT POINT
If a person has performed his duty excellently at a particular stage in his career, then that performance of excellence cannot be considered for entire life.