S.K. Chattopadhayaya, J.
1. In this writ application the petitioner has prayed for quashing the order dated 11.1.94 as contained in annexure 7 by reason of which statutory complaint of the petitioner under Section 27 of the Army Act, 1950 has been rejected. A prayer has also been made to direct the respondents to re-consider the case of the petitioner for promotion.
2. That facts of the case lies in a narrow compass : The petitioner joined as Second Lieutenant in the Corps of Signals in the year, 1963 and got commission in the Army Service Corps. Subsequently he was promoted to the post of Major on 21.8.82 and in 1988 to the post of Lt. Colonel. In 1971 he was assigned the duties of war time operations. He also served in Jammu and Kashmir dining the years 1975-77, He imparted training as Instructor in Tank Transporter Officers course and commanded different three units as independent charge including the present one as Commanding Officer. The petitioner was bestowed with some laurels and earned good annual confidential remarks. During the year, 1984-85 to 1988-89 'close appraisal system' was held and the remarks in grading were not informed to any one. In October, 1990 he was intimated that his case was considered as a fresh case and was not found an acceptable grade. Petitioner's non-statutory complaint against the said order was rejected on 20.6.91 and in November, 1991 his case Was again considered for promotion and -ultimately in November, 1992 as final review, petitioner's case was considered for promotion but without any result.
3. By order dated 3.5.93 the petitioner was informed that as his case was considered thrice, he is no longer eligible for further consideration under the existing rules. Being aggrieved, the petitioner submitted statutory complaint stating his history regarding service career in detail but by order dated 11.1.94 the same was rejected.
4. Mr. Ugha, learned Counsel for the petitioner has submitted that the petitioner who was promoted upto the post of Lt. Col. without any hindrance, was not found fit by the Selection Board for further promotion to the post of Coloner without there being any reason. He submits that the petitioner has an unblemished service career and there is nothing on record to show that the petitioner was ever involved in any departmental proceeding for which he was not found fit for promotion. Referring to the guidelines it is submitted that the promotion to the higher post is based on overall profile of an officer and his comparative merit. The impugned order rejecting his promotion does not reveal that overall profile of the petitioner was in any manner inferior for not being promoted.
5. The stand of the respondents is that even though petitioner's service record was good and unblemished but for the promotion to the post of Colonel remarks of C.Rs. were not the only criteria. It is admitted that as a Lieutenant Colonel the petitioner commanded be 3 Andhra Girls Battalion National Cadet Corpus as Officer commanding, 336 Company ASC (Supply) as Commanding Officer and 523 ASC Battalion as officiating commanding officer. However, it is stated that inspection report of the whole unit is no substitute of an officer's own performance appraisal by the designated superiors. It is the case of the respondents that practice of providing overall performance to officers has been discontinued and when this over all performance was being provided it pertained to last five years ACRs only. According to the respondents the Selection Board do not draw any over all performance of the officers under consideration or carry out any mathematical exercise. But the selection is done on the basis of the officers' over all profile, as that may be. In the year, 1969-70, 1970 and 1977 advisory remarks were given in the petitioner's C.R. which was communicated to him accordingly. While; admitting the petitioner's profile during the closed system of appraisal, it is stated that the petitioner's case was considered through a fair system, of selection but he was not found it for promotion on the basis of his over ail profile and personality.
In support of his connection Mr. Ughal has relied on the decisions reported in AIR 1990 (Sup) SCC 771, 1994 (1} PLJR, 748, 1994 Lab I.C 1150 and 1986 (2) SCC 373.
6. Relying on the selection system annexed as annexure A. Mr. Rajeev Ranjan, learned JC to SCOG submits that the case of the petitioner was considered in the light of the guidelines mentioned therein and, as such, the petitioner cannot have any grievance. Mr. Rajeev Ranjan further submits that in view of the decision reported in AIR 1973 SC 1138 absence of adverse remark is no criteria and indication of quality of an officer. In this case, it is urged, even though the petitioner had no adverse entry in C.R. his over all profile was considered and lie was not found fit. Mr. Rajeev Ranjan has relied on decisions reported in 1987 SC 189, 1996 SC 665 and 1995 (3) SCC 383.
7. It is well settled that an employee cannot claim promotion as a matter of right. He has right only to he considered for promotion in accordance with law. In the instant case main object of the selection system has been enumerated in annexure-A. According to this, the basic facet of the pyramidical rank structure of any organisation entails that as the rank increases the number of vacancies in higher rank decrease. From the broad base of the pyramid, only those officers whose record of service merits promotion within a particular batch, are selected to fill up the vacancies available in higher ranks. It is also clarified that promotion to the rank of Substantive Major is carried out based upon the length of service provided the officer fulfills the mandatory requirements of such a promotion. However, promotion above the rank of Major are done through a process of selection.
8. From the aforesaid introduction one thing is clear that promotion to the post of Colonel from the post of Lt. Col. is by way of selection which is not automatic. Guidelines have been enumerated in para 10 of the selection system which, inter alia, suggest that selection is to be based on the overall profile of the officers with special stress on the performance in criteria command appointment. Due consideration is given to the offices who show consistency in overall performance and they are given preference. Credit is given to those officers who have earned positive recommendations for promotion in their very first report in command, Character qualities, disciplinary background and decoration form an important input to the overall profile of the officer and due consideration should be given while considering border line cases. Two striking guidelines are (g) and (h). Guidelines No. (g) says as follows:
While assessing officers with disciplinary background the gravity and nature of the offence and the service level at which the offence was committed should be taken into consideration.
Similarly Clause (h) reads thus:
Cases involving normal 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.
9. Further, the note of COAS has been given by stating that elements of magnanimity on the part of the reporting officers leading to sudden elevation in figurative ratings especially in the case of officers who have been superseded earlier or on the eye of the selection or on the eye of the reporting officer's retirement. One of the guidelines is comparative merit of officers in Staff/ERE Vis-a-vis an officer in command in the same rank and assessment of the officers are based on the comparative merit of the overall profile of the officers within his own batch. Grading of the board is to be assessed from the material placed before the board and not from personal knowledge, if any.
10. In the light of these guidelines one has to look to the case of the petitioner. It is not in dispute that the petitioner was promoted to the post of Major, and, thereafter, Lt. Col. without any hindrance. Though it is urged on behalf of the respondents that promotion to the post of Major is automatic considering the length of service but the selection system reveals that though the promotion to the post of Major is carried out based upon the length of service provided the officer fulfills the mandatory requirement of such promotion. Under this circumstances, it cannot be said that for promotion to the post of Major remarks in service records are not considered. The petitioner was promoted to the post of Major in August, 1982 and, as such, last five years ACR must have been considered by the authority for giving such promotion. In 1988 he was promoted to the post of Lt. Col. It is not the case of the respondents that for promotion to the post of Lt. Col only the length of service is the criteria. Thus even if the petitioner received some adverse remarks in CR in 1969, 1970 and 1977. All these must have been considered by the authority while granting his promotion in the year 1982 and 1988 respectively. It is true that promotion to the post of Colonel is by way of selection and the Selection Board is required to consider overall profile of a candidate. Except the rejection order of statutory appeal the respondents have not come out with positive fact which can reveal that is spite of no adverse entry in the C.R. the petitioner, was not found fit for promotion for certain obvious reason. Counter affidavit is silent about this fact which led to the Selection Board to reject the case of the petitioner for promotion.
11. In the case of Brig. Kranti Kumar Sood v. Union of India and Anr. reported in 1994 Lab I.C. 1150. A Division Bench of Madhya Pradesh High Court has the occasion to consider the case of similar nature. In that case the petitioner, Sood, was though promoted to the rank of Brigadier but defined promotion to the rank of Major General. Confidential reports from the year 1987-88 and 1988-89 were taken into account by the authority deciding promotion. The petitioner contended before the High Court that the remarks of displeasure recorded by the G.O.C. having been quashed by the High Court, those remarks could not have been taken into account. Secondly, it was contended that when on the basis of the same remarks Sood was found fit to hold the rank of Brigadier, his promotion to the rank of Major General could not have been withheld taking into consideration the remarks of those three years. On behalf of the respondents it was contended that consideration for promotion to the rank of Brigades is not the same as is the consideration for promotion to the rank of Major General and, therefore, on the basis of some remark, an officer can be found fit for holding the rank of Brigadier but may not be found fit for holding the rank of Major General, Rejecting the arguments of the respondents the Division Bench, inter alia, held that:
Moreover, in absence of specific reasons and data, it is difficult to accept the respondents' connection that on the basis of the same record a person could be found fit for holding the rank of Brigadier but not that of Major General. If the petitioner had been found to be deficient in the standards required for holding the rank of Major General though being fit to hold the rank of Brigadier, it was understandable, but if he is found to be unfit for promotion to the rank of Major General on the basis of the same record on the basis of which he was found fit for the rank of Brigadier, there is reason for raising eye-brows.
There lordships further continued by observing that:
It was for the respondents to have satisfied this Court by putting specific materials on record to show that the Selection Board had sufficient material before it to hold the petitioner unfit for the rank of Major General although he possessed qualities required for holding the rank of Brigadier. The respondents had also to satisfy this Court that certain special qualities or standard or efficiency is required for holding the rank of Major General which, in the opinion of the Selection Board, the petitioner did not hold.
Under this circumstances the High Court set aside the decision of the Selection Board and directed the respondents to reconsider the petitioner's case for promotion.
12. In the instant case I have already noticed that though the respondents have admitted that the petitioner had unblemished career as far as his C.R. is concerned, but he was put found fit for promotion by the Selection Board of consideration of overall profile. If the petitioner was found fit for promotion upto the rank of Lt. Col. on the basis of the same C.R., I fail to understand as to what prevented the Selection Board to promote the petitioner to the rank of Colonel. There is no material to show that for promotion to the rank of Colonel some other qualification is required. Guidelines not iced above, do not reveal that. In absence of any such material, it would be reasonable to believe petitioner's apprehension that he has been found unfit for holding the rank of Colonel without any basis on which he was found fit for holding the rank of Lt. Col.
13. In the case of Major Amrik Singh v. Union of India and Ors. reported in 1994 (1) PLJR 748, a Division Bench of this Court found on the facts and circumstances that the promotion policy was not followed by the Selection Board and, as such, quashed the order refusing to promote Major Amrik Singh. It was also held that the competent authority must adhere to the promotion policy and follow the guidelines. It was further held that where an Army officer has been denied promotion arbitrarily and illegally, the impugned order cannot be sustained.
14. The case of Major General I.P.S. Dewan v. Union of India and Ors. reported in 1995 (3) SC 383 on which strong reliance has been placed by Mr. Rajeev Ranjan may be easily distinguished from the facts and circumstances of the instant case. In that case adverse remarks were made against the appellant in his C.R. The Supreme Court perused the worksheet relating to other four offices along with him and the case of the appellant was considered. The Supreme Court perused the records and found comparative remarks of the person considered for promotion. Their lordships were also satisfied on perusal of the relevant records of adverse remarks made by the Chief of the Army Staff against the appellant which were based upon consistent report of the court of enquiry regarding the responsibility and the role played by the appellant in professing some cases. On the other hand, it is admitted fact that there is nothing against the petitioner in his service; records.
15. In such view of the matter in my considered opinion, the impugned order dated 11.1.94 as contained in annexure-7 cannot be sustained and must be set aside.
16. In the result, this application is allowed and the order dated 11.1.94 as contained in annexure-7 is hereby quashed. The respondents are directed to reconsider the case of the petitioner for promotion to the rank of Colonel. I am informed that the petitioner is going to retire in the month of October, 1996. As such, I expect that the respondents will decide the promotion mater of the petitioner within a period of two months from the date of receipt production of a certificate copy of this order.