Maj. Gen. S. Bindra vs Union Of India And Ors.
2008 Latest Caselaw 1862 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI


+      WP (C) No. 6297/2003


%                                  Date of decision: 21.10.2008


       MAJ. GEN S. BINDRA          ...PETITIONER
                       Through:    Petitioner in person along
                                   With Mr.Ankur Chibber, Adv.



                                Versus



       UNION OF INDIA & Ors.       ...RESPONDENTS
                     Through:      Ms. Preeti Dalal for Ms. Maneesha
                                   Dhir, Adv.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?         No

2.     To be referred to Reporter or not?          No

3.     Whether the judgment should be              No
       reported in the Digest?

SANJAY KISHAN KAUL, J. (ORAL)

1. The petitioner is a Commissioned Officer in the Army in

Ordnance Corps (for short „AOC‟). He rose in his rank to the level of

Major General. During his tenure the petitioner was assigned various

responsibilities including staff assignment. The petitioner had

immense exposure of working in Inventory holding establishment at

each rank including Command of Ordnance Depot in the rank of

Brigadier. The petitioner was also selected for and underwent

various courses viz. Higher Command and National Defence College

Course. The Confidential Reports earned by the petitioner have

throughout been with consistent praise of exceptional contribution.

Qualification wise, the petitioner has three Post Graduate Master

Degrees to his credit. Above all, the petitioner was also awarded the

Vishisht Seva Medal, on Republic Day 2003, for his distinguished

service rendered in the rank of Major General.

2. It is the case of the petitioner that he was eligible for being

considered to the next promotional post of Lt. General by the Special

Selection Board (for short "SSB") which was held on 23.10.2002.

However, the Selection Board did not empanel him rather

empanelled respondent No. 4 whose career graph was not superior

to that of the petitioner and had several deficiencies in comparison

to the career graph of the petitioner. Thus the said action of the

respondents has been assailed by the petitioner in this petition.

3. It has been submitted that the said respondent No.4 namely

Major General TA D‟ Cunha was also commissioned in „AOC‟. He held

mostly departmental appointments with no exposure on staff

appointment. In the rank of Major General he assumed appointment

of Additional DGOS (CV) at Army Headquarters in 1997 and had been

Major General „AOC‟, Western Command, since 1999. In both

appointments there are reported instances of financial irregularities

in his subordinate units. In two cases, the inquiries have even been

finalized and he has even recently been punished with a non-

recordable disciplinary award for offences committed in the high

rank of Major General. In fact, DV ban was also imposed on him for

his connivance in a case of financial irregularity by subordinates. The

charges were so serious that disciplinary action was contemplated.

Annual Confidential Reports of Respondent No. 4 have been mostly

above average, however in the rank of Brigadier there are

adverse/advisory comments due to poor management of troops. In

fact due to lower average profile, he was not selected for Higher

Command or National Defence College, either with his own batch or

the next batch whereas the petitioner who is of 1966 batch was

selected over him. It was, thus, submitted that the selection of the

said respondent ignoring the petitioner for the next promotion by the

SSB needs to be quashed and direction be given to the said Board to

empanel the petitioner to the rank of Lt. General. The petitioner

before approaching this Court also made statutory complaints to the

authorities but the statutory complaints were rejected.

4. The respondents have denied the allegations made by the

petitioner. According to them, the "SSB" has appointed the most fit

person from amongst the eligible candidates for empanelment to the

post of Lt. General.

5. With a view to satisfy ourselves as to the service profile of the

petitioner as well as that of the fourth respondent, we had called for

the original records of the "SSB" held on 23.10.2002.

6. A perusal of the records show that the profile of the appellant

and others were considered and it was opined:

AOC

RESULT-SPECIAL SELECTION BOARD

HELD ON 23 OCT 2002

A No. ICNO RANK NAME ARM GRADING REMARKS

FRESH CASES-1966 BATCH

1 IC-16437 MAJ GEN S. MEDIRATTA AOC Z UNFIT

2 IC-16829 MAJ GEN S BINDRA AOC Z UNFIT

FIRST REV CASE - 1965 BATCH

3 IC-16257 MAJ GEN MS AHLUWALIA AOC Z UNFIT

4 IC-16309 MAJ GEN TA D'CUNHA AOC B FIT

5 IC-16328 MAJ GEN DK SENGUPTA AOC Z UNFIT

6 IC-16390 MAJ GEN GS KOHLI, VSM AOC Z UNFIT

7. The record shows that out of the persons considered for

selection to the next rank of Lt. General, none of the fresh cases of

1966 batch, which includes the petitioner and three officers from the

1965 batch, were found „Fit‟. The only candidate found fit was IC-

616309 Maj. General TA D‟ Cunha, „AOC‟ arrayed as respondent

No.4.

8. It may also be relevant to take note of service profile as

examined by the "SSB" in respect of the petitioner and others

including the fourth respondent. In this regard, following

observations made by the COAS while endorsing the Board‟s

gradings become relevant;

4. The Board‟s gradings have been examined in MOD based on the input given in MDS, which is placed in the linked file of AHQ.

Agenda No. 4, Maj. Gen TA D'Cunha (IC 16309) has been graded "B" (Fit) by the Board. The officer has „ Above Average‟ to „ Outstanding‟ profile in the rank of Maj Gen, without any „7‟ point award either in box or in PQs/DP/QsAP. In rank of Brig also, his profile is „Above Average‟ to „Outstanding‟ which is free from „7‟ pt award. He has one criteria CR in the old scale of rating which is also „Above Average‟. He is SC qualified and is a recipient of CC (1978). The grading „B‟ (Fit) awarded by the Board in his case appears to be justified.

5. The record profiles of the remaining Five General officers who have been graded ‟Z‟ (unfit) by the Board is discussed in brief as below:

(i) Agenda No. 1- Maj. Gen S. Mediratta (IC 16437):- In the rank of Maj Gen, the officer has „Above Average‟ profile which is free from „7‟ point award. In the rank of Brig, the officer has „Above Average‟ to „Outstanding‟ profile with 3x „7‟ pt awards in box in two criteria reports and 4x „7‟ pt awards in PQs/DP in two other criteria reports. He has not done any All Arm Course and also has no Hons/Awards to his credit. The grading „Z‟ (Unfit) awarded by the Board inhis case appears to be justified.

(ii)Agenda No.2- Maj. Gen S. Bindra (IC 16829):-

In the rank of Maj. Gen, the officer has „ Above Average‟ profile which is free from „7‟ pt. award. In the rank of Brig, his profile ranges between „Above Average‟ to „Outstanding‟ without any „7‟ pt award in the box, but has earned 8x „7‟ pt awards in PQs/DP in two criteria reports. He is SC, HC and NDC qualified and has no Hons/Awards to his credit. The grading „Z‟ (Unfit) awarded by the Board in his case appears to be justified.

(iii)Agenda No.3-Maj. Gen MS Ahluwalia (IC 16257):-

In the rank of Maj Gen, the officer has „Above Average‟ to „Outstanding‟ profile which is free from „7‟ pt award. In the rank Brig also, his profile ranges between „Above Average‟ to „Outstanding‟ with 1x „7‟ pt award in box and 1x „7‟ pt award in PQs/DP in CR 7/92-6/93 which is a criteria report. In the rank of Brig, he has one CR in the old scale of rating which is also „Above Average‟. He is PSC, HC and NDC qualified, but has no Hons/Awards to his credit. The grading „Z‟ (Unfit) awarded by the Board in his case appears to be justified.

(iv)Agenda No.5 - Maj Gen DK Sengupta (IC 16328):-

The officer has „Above Average‟ to „Outstanding profile in the rank of Maj Gen without „7‟ pt award in box, but has been awarded 8x „7‟ pt award in PQs/DP/QsAP. In the latest report, IO has given him „May promote‟ against the column PPMN(Potential for promotion). In the rank of Brig. Also, his profile is „Above Average‟. He is SC and LDM qualified. He has no Hons/Awards to his credit. The Grading „Z‟ (Unfit) awarded by the Board in his case appears to be justified.

(V) Agenda No.6 - Maj Gen GS Kohli (IC 16390):- The profile of the officer in the rank of Maj Gen ranges between „Above Average‟ to „Outstanding‟ profile without any „7‟ pt in PQs/DP/QsAP. In CRs 4/01-6/01 and 7/01-6/02, IO has given him „May promote‟ against the column PPMN (Potential for promotion). In the rank of Brig also, his profile is „Above Average‟ to „Outstanding‟ with 2x „7‟ point awards in PQs/DP. He has done LDM course and is a recipient of VSM (1991). The grading ‟Z‟ (Unfit) awarded by the board in his case appears to be justified.

9. The comparative profile is as under:

Special Selection Board held in 23.10.2002, AOC

Na Performance in Maj Gen Performance in Brig Hon Cou Performa me s/A rses nce in of war Brig Old Maj Criteria Other Reports Criteria Other Reports ds Scale . Reports Reports Gen

Box PQs/ Box PQs/ Box PQs/ Box PQs/D DP DP DP P

9 7 6 7 6 9 7 6 7 6 9 7 6 7 6 9 7 6 7 6

'B' Fit

4. TA 8 - - - - - - - - - 2 - - - - 1 - - - - CC( SC One D'C 0 78) Criteria unha report is 'Above Average)

'Z' (Unfit)

1. S - - - - - - - - - - 4 3 - 4 -

.Me dira tta

2. S. - - - - - - - - - - 3 - - 8 - 2 - - - - ----- SC, Bin ----- HC dra - & ND C

3. M. 3 - - - - - - - - - 2 1 - 1 - 5 - - - - PSC One S. , HC Criteria Ahl & report is uwa ND 'Above lia C Average'

5. DK 4 - - 8 - - - - - - - - - - - 7 - - - - SC One Sen & Criteria gupt LD report is a M 'Above Average'

6. G.S. 1 - - 1 - - - - - 8 - - 2 - - - - - - - VS LD

Koh 1 M M li (91)

10. Having gone through the comparative profile of the petitioner

and that of the selected candidates, we are satisfied that while the

petitioner had eight "seven" in his overall profile, the selected

candidate had none. Similarly, the petitioner had only two "Nine",

while the selected candidate had "Ten".

11. Now coming to the punishment of non-recordable censure

relied upon by the petitioner as a disqualification for respondent

No.4 had come simply by observation that as per Rule 23 of the

Army Rules, such punishment is not a disqualification. Relevant

provision is reproduced as hereunder:

Effect of Censure on Promotion

23 The award of a censure does not debar an officer from being considered for promotion and may not by itself affect his promotion. However, while it is operative, it is taken cognizance of as part of the officer‟s overall record of service in assessing his performance for such promotion. The effect of a recordable censure on promotion would be considered in its totality on the overall performance. A censure ceases to have any effect on promotion once it is inoperative.

12. Thus, having examined the relevant material placed before us

and being satisfied that in a pyramidical system, it is always possible

that even on account of marginal difference in the overall profile of

an incumbent which may be found lower than the selected

candidate, there is always a possibility of the incumbent being not

empanelled for the next promotional avenue. It needs to be

emphasized that this Court will not sit as a Court of appeal over the

findings of the Selection Board. We are conscious of the fact that

apart from the box gradings, certain other factors are also taken into

account including the postings and qualifications. However these

are matters to be looked into by the Selection Board which on

examination of the comparative merit has found in favour of the

selected candidate. This does not reflect on the performance of the

other persons since there was only one vacancy.

13. Thus, we do not find any reason to interfere with the selection

of the fourth respondent specially when there are no allegations of

bias against any of the members of the Selection Board in having

empanelled fourth respondent for the next rank. Consequently, we

dismiss the writ petition leaving the parties to bear their own costs.

SANJAY KISHAN KAUL, J.

OCTOBER 21, 2008                         MOOL CHAND GARG, J.
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