IMPORTANT POINTS
No person has a right to promotion but only a right to be considered for promotion fairly.
A person cannot be deprived of promotion only on basis of an item carrying only 5 marks out of 100.
There is no presumption about validity of a decision taken by persons occupying high posts.

JUDGMENT :

L. NAGESWARA RAO, J.

1. Whether the non-empanelment of the Appellant for promotion to the rank of Major General was contrary to the promotion policy is the question that arises for consideration in the above Appeal.

2. The Appellant was commissioned in the Mechanised Infantry of Indian Army on 13.06.1981 and was subsequently transferred to the Corps of Intelligence in May, 1991. He was promoted as a Brigadier in September, 2008. His empanelment for promotion to the rank of Major General was placed before the Members of Selection Board on 24.04.2015. On 31.07.2015, he was declared as having not been empanelled for promotion to the rank of Major General. Being aggrieved by his non-empanelment, he filed Original Application No.64 of 2015 before the Armed Forces Tribunal, Regional Bench, Mumbai seeking the following relief:

“(a) Setting aside of the unpublished/unnotified policy of the respondents, if any, whereby the service profile/quantified merit of a candidate for promotion is required to be compared with that of the previous/earlier batch;

(b) Direction commanding the respondents to review their decision with regard to non-empanelment of the applicant for the said promotion and to empanel him for the promotion in accordance with the extant policy of batch wise consideration;

(c) Direction requiring the respondents to ignore and not to act upon, while so reviewing the applicant’s case, any adverse/advisory remarks or any non-recommendation for promotion endorsed in any of his CRs, which have remained uncommunicated to him and forming ground to deny him the promotion;

(e) Setting aside of any adverse/advisory remarks or any non-recommendation for promotion endorsed in any of his CRs, which have remained uncommunicated to the applicant;

(f) Setting aside of the order No. A/46001/584/MS (X) dated 28th November, 2014 retiring the applicant from service w.e.f. 30.09.2015 (A/N);

(g) Direction requiring the respondents not to hold the Number 1 Selection Board in respect of Intelligence Corps 1982 Batch tentatively scheduled to be held in September, 2015.”

3. It was contended on his behalf before the Tribunal that the Appellant has an excellent record of service. Being the only eligible candidate for empanelment for promotion to the rank of Major General, he ought not to have been ignored. The Appellant complained of arbitrary action on the part of the Respondents in comparing his service profile with persons belonging to the 1980 batch. It is relevant to mention that the Appellant belongs to the 1981 batch. According to the Appellant, his non-empanelment for promotion to the rank of Major General was a result of the arbitrary exercise of power on the part of the Respondents. The Appellant relied upon the guidelines issued pursuant to a policy decision dated 06.05.1997 which were not followed while considering him for empanelment.

4. On behalf of the Respondents it was contended before the Tribunal that empanelment of officers for promotion to higher ranks is governed by detailed instructions issued by the Army Headquarters in the Policy dated 06.05.1997. It was submitted before the Tribunal that quantified system was introduced w.e.f. 01.01.2009 to bring greater transparency and objectivity in the matter of selection for promotions. The Respondents submitted before the Tribunal that the Selection Board takes into account several factors such as War/Operational Reports, Course Reports, Annual Confidential Reports’, performance in Command and Staff appointments, honours and awards and disciplinary background. Respondent further submitted that selection is based upon the overall reckonable profile of an officer in comparative merit within the batch as evaluated by the Selection Board.

5. The Tribunal dismissed the O.A. filed by the Appellant by holding that there is no illegality or patent material irregularity in the constitution of the Selection Board or the procedure followed by the Selection Board. The Tribunal was convinced that