TaxTMI 
TaxTMI 
2020 (2) TMI 1660
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....ajor 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of 2015 before the Armed Forces Tribunal, Regional Bench, Mumbai seeking the following relief: (a) Setting aside of the unpublished/unnotified policy of the Respondents, if any, whereby the service profile/quantified merit of a candidate for promotion is required to be compared with that of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 N....
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.... of the Appellant that his non-empanelment was vitiated by a malice in law, was not accepted by the Tribunal. The Tribunal drew a distinction between the Armed Forces personnel and persons holding civil posts under the State. The Tribunal observed that the decision of the Selection Board cannot be substituted by a court of law. 6. This appeal has been filed challenging the judgment of the Tribunal by which no relief was granted to the Appellant. 7. We have heard Mr. Dushyant Dave, learned Senior Counsel and Indra Sen Singh, advocate for the Appellants and Mr. R. Balasubramanian, learned Senior Counsel for the Respondents. 8. It was urged on behalf of the Appellant that his non-empanelment to the rank of Major General is arbitrary and violative of the instructions issued in terms of the promotion policy of the Respondents and hence contrary to Articles 14 and 16 of the Constitution of India. Mr. Dave submitted that the Appellant is entitled for empanelment to the rank of Major General in accordance with the promotion policy. He took us through the promotion policy of the Respondents from 1987 onwards to contend that the Respondents have breached the procedure prescribed in ....
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....ion system. Composition of the Selection Boards is dealt with in para 6 of the above instructions. No. 1 Selection Board pertains to promotion from Brigadier to Major General. The Selection Boards are duty bound in accordance with the instructions to assess all eligible officers of a batch who reckon seniority during one calendar year, to screen officers of earlier batch who have been placed on reviews for promotion to the next rank, to assess the suitability of officers who have been approved earlier to the next higher rank whilst in low medical classification and to ensure selection through objectivity, impartiality and in the best interest of the service in accordance with the guidelines laid down by the Chief of the Army Staff. According to the guidelines of assessment in the above Army instructions, selection is to be based on the overall profile of the officers with special stress on the performance in criteria command appointment. Due consideration should be given to officers who show consistency in overall performance and they are given preference over late starters. Another criteria taken into account is consistent recommendations for promotion to the next rank and credit ....
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....nd awards. 5 per cent marks will be kept for value judgment by the Selection Board Members for aspects that cannot be quantified out of a grand total of 100 marks. 91 marks are earmarked for CRs, 4 marks for courses and honours and awards. 5 marks are assigned for value judgment by the Selection Board. Primacy is given to the CRs by allocation of maximum marks of 91 out of a grand total of 100 marks. 5 per cent marks which have been set aside for value judgment by the Selection Board shall be allotted by following the parameters of performance, potential disciplinary awards/administrative actions, recommendations for promotion and degree of difficulty. 13. The revised policy for conduct of the Selection Boards of quantification system was issued on 04.01.2011. Primacy of the CRs vis-e-vis other criteria like performance of courses, honours and awards has been maintained. All CRs in reckonable profile were directed to be quantified. "Look-two-down" principle of taking into consideration of CRs earned in the present rank and previous rank, will continue for No. 3 Selection Board, No. 2 Selection Board and No. 1 Selection Board as before. 14. There was also a change in allocatio....
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....t he deserved to be empanelled on the basis of the promotion policy needs to be considered. The quantification system for promotion was introduced to ensure objectivity and impartiality in the matter of promotions to higher ranks in the Army. It is clear from the policy that primacy is given to the CRs. Admittedly, the Appellant secured 89.667 marks in the first selection held in April, 2015 and 90.469 marks in the review selection held in September, 2015. He was the only eligible officer in the rank of Brigadier in Intelligence Corps belonging to the 1981 batch who was considered for empanelment to the rank of Major General. Responding to a query, Mr. Balasubramanian, learned Senior Counsel submitted that the Appellant was found not fit for promotion on a fair evaluation of his suitability and employability in rank of Major General. Though, only 5 marks have been earmarked for value judgment by the Selection Board, Mr. Balasubramanian submitted that there is nothing wrong in the decision of the Selection Board in not recommending the Appellant for empanelment to the rank of Major General after examining the complete reckonable profile of the officer. He justified the recommendatio....