Union Of India (Uoi) And Ors. vs K.K. Sood

1. This appeal by the union of India is directed against the judgment of the Madhya Pradesh High Court wherein, the respondent who had approached the High Court against his non-promotion to the post of major general from the rank

of brigadier, was the subject matter for consideration. The respondent was approved for promotion to the rank of brigadier from the post of colonel in the year 1986. On 30th June, 1987 he was given the promotion to the post of acting brigadier. During the year 1987, 1988 and 1989, certain entries/remarks appear to have been made in his character roll and he was censured by the employer. Pursuant to an order of the court, the court being approached by the respondent, the order of censure was quashed. In the year 1991, he was appointed as a substantive brigadier. The next rank of promotion is the rank of Major General. In October, 1992 he was considered for the post of major general, but, was not selected. There was again a review of selection in September, 1993, but, yet he was not selected. He, therefore, approached the High Court alleging that his non-promotion to the post of major general is on account of finding him unsuitable and such finding is on account of so-called entries in the year 1987, 1988 and 1989. According to the respondent, he having been promoted to the post of brigadier on substantive post in the year 1991, the selection board could not have taken into account the so-called entry prior to 1991 and on that basis, could not have made him unsuitable. A counter affidavit was filed by the union of Indian before the High Court which is reflected in paragraph 3 of the impugned judgment. The union of India took the stand, that the entire service record of the government servant including the annual confidential report for the year 1987, 1988 and 1989 were taken into consideration by the selection board and he was found unfit for promotion on that basis. It is because of this stand taken in the counter affidavit, the High Court was persuaded to take the view that the selection board committed an error in taking the aforesaid entries into consideration and accordingly, called upon the selection board to reconsider his case for promotion to the post of major general after excluding the adverse entries of the aforesaid three years from consideration.

2. Mr. P.P. Malhotra, learned senior counsel appearing for the union of India contended that while approving the respondent for the post of brigadier, only character roll and comparative roll upto the year 1985 have been taken into account and the subsequent entry in the year 1987, 1988 and 1989 had not been taken into account. That being the position, while considering the question of promotion to the higher rank of major general, the selection board was entitled to consider those entries and therefore, there has been no error committed by the selection board in taking those entries into consideration. Mr. Malhotra further submitted that the selection to the post of major general is made by different board and the board which considered the case of selection for the post of brigadier is different. The relative merit and suitability is the basis for consideration and when the comparative merit has been adjudged by the selection board consisting of very high officers, it is not open to the court to sit in an appeal over the assessment made and in that view of the matter, the impugned judgment is

erroneous. The respondent, though has been noticed, but none is appearing on his behalf possibly because the respondent in the meantime has retired on superannuation in April, 1996. Be that as it may, for appreciating the contention of Mr. Malhotra that for the purpose of promotion to the post of brigadier the entries of the respondent in relation to the year 1987, 1988 and 1989 had not been taken into account and it is only the entries upto 1986 had been taken into account, we do not have the basic materials, i.e., the counter affidavit that was filed before the High Court. The judgment under challenge does not indicate that such stand has been taken by the union government in resisting the writ petition filed by the respondent.

3. In this view of the matter, on the facts as narrated in the impugned judgment, we see no infirmity with the conclusion arrived at.

We are not in a position to examine and find out the correctness of the submission made by Mr. Malhotra that while assessing the suitability for promotion to the rank of brigadier, only the character roll of 1985 was taken into account and not aforesaid facts and circumstances of the present case. We do not think any case has been made out by the union government for interfering with the impugned judgment of the High Court.

4. Mr. Malhotra also further stated that even subsequent to the judgment of the High Court, the case of the respondent has been considered in accordance with the directions of the High Court and yet

he was found unsuitable. We are not required to express any opinion on the same and in the event he was actually considered, there would be no case of contempt.

5. The appeal is, accordingly, dismissed with the aforesaid observations.