Amrik Singh v. Union Of India — 1997 DIGILAW 138 (PAT)

Judgment D. R Wadhwa and j. JJ. 1. The petitioner, who is Lieutenant Colonel (in short, lt. Col. )in the Indian Army in the time scale has filed this writ application under Articles 226 and 227 of the constitution of India praying for a writ of certiorari quashing the result of Selecti on Board No.4 held from July 5, 1994 to July 15, 1994, in which the petitioner was found unfit for promotion to the rank of Lt. Col. by selection. Though the petitioner is presently Lt. Col. but only in the time scale under certain regulation of the Army but holding the substantive rank of Major. Then there is a prayer in this writ application that the respondents be directed to consider the case of promotion of the petitioner de novo with effect from June, 1990 and to the rank of Col. with effect from december, 1992 while restoring his original seniority with his batchmates who have been selected to those ranks which were denied to the petitioner. The petitioner then claimed certain consequential reliefs. 2. This, in fact, was the second round of litigation; the petitioner first filled writ application (C. W. J. C. No.175 of 1992) earlier when he was found unfit and was not selected to the rank of Lt. Col. by the Selection Board. At that time he was communicated the orders of his non-selection on May 15, 1990 and april 30, 1991. He had contended that his case was not considered in terms of the Army Headquarters Instructions dated January 21, 1985 and January 28, 1988. These two documents were annexed as Annexures 10/a and 10/b to the earlier writ application. That writ application was allowed by a Bench of this Court by Judgment dated March 25, 1994. The Court had observed that it was not denied that the guidelines as contained in Annexures 10/a and 10/b were not followed while considering the case of the petitioner. The Court, therefore, directed that the authority concerned should reconsider de novo the case of the petitioner for promotion in accordance with the guidelines. This, in short, in my view, was the issue decided by the Court while allowing the first writ application. 3. The respondents, it would appear, reconsidered the case of the petitioner after the judgment dated march 25, 1994 in the earlier writ application (C. W. J. C. No.175 of 1992 ). This, in short, in my view, was the issue decided by the Court while allowing the first writ application. 3. The respondents, it would appear, reconsidered the case of the petitioner after the judgment dated march 25, 1994 in the earlier writ application (C. W. J. C. No.175 of 1992 ). Again the Selection Board found him unfit and this decision was communicated to the petitioner. It is this result of the proceeding of the Selection Board no.4 which held its sittings from July 5 to July 15,1994, that is being challenged by the petitioner. 4. The petitioner has now contended before us that the order finding him unfit and rejecting his claim for selection to the rank of Lt. Col. is not in terms of the judgment dated March 25, 1994 and Annexures 10/a and 10/b referred to in the judgment and that right to equality had been infringed inasmuch as the persons inferior and junior to the petitioner have been selected to the rank of Lt. Col. The respondents have, however, denied these pleas of the petitioner and stated that their action was strictly in accordance with law and in terms of the earlier judgment. 5. To understand the rival contentions of the parties, I may refer to the procedure as to how selection has to be made from the rank of Major to that of lt. Col. in the Army. It may, however, be noticed that in the Army an officer picks up the higher rank only when he is promoted to that rank on the vacancy occurring in that rank and a mere selection does not confer that rank though he may be found fit for that rank. 6. By letter dated May 6, 1987 of army Headquarters issued to all the five commands it was informed as to how selection system was being followed in the Military Secretarys Branch. Army headquarters for selection of officers to the rank of Lt. Col. and above. It was pointed out that the Army had pyramidical rank structure and that as the rank increases the number of vacancies in higher rank decreases and that 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 the higher ranks. It was pointed out that the Army had pyramidical rank structure and that as the rank increases the number of vacancies in higher rank decreases and that 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 the higher ranks. It was further pointed out that the promotion upto the ranks of substantive major is carried out based upon the length of service, provided the officers fulfils the mandatory requirements of such a promotion and that promotions above the rank of Major are done through a process of selection. For this purpose, Selection Boards are constituted. These Selection Boards are constituted by the Chief of Army Staff under the authority of the President of india. There are five Selection Boards arid Selection Board No.4 screens the case for promotion to the rank of Lt. Col. Its composition is as under:- " (i) Chairman : Corps Cdr. or Lt. Gen on Staff who has commanded a Div. (ii) Members : Div Cdr. (1) Maj Gen on Staff (1) Bde Cdr (1)Brig on Staff (1) Outside Army HQ. (iii) Secretary: Dy MS (B) (iv) In attendance : Respective heads of Arm/service" Appendix to the letter dated May 6, 1987 gives all the details as to the aim of selection system, aim of the selection Board, Composition of the selection Board, Guidelines of Assessment, conduct of Selection Board and various factors which are to be taken into account while screening the case of the officers for promotion from one rank to another. 7. Relevant extracts of the Army headquarters letter dated January 21, 1985 and January 28, 1988 which were respectively Annexures 10/a and 10/b to the earlier writ application are as under:- Annexure 10/a : PROMOTION: OFFICERS "1. An impression generally seems to be prevailing in the minds of the officers that good performance of their present rank or being given an award makes them automatically fit for further promotion. 2. It is clarified that while the above aspects are given due consideration while screening officers for promotion, these are certainly not the over-riding or only factors. Selection for further promotion are essentially based on the overall profile of the officer with special stress on his performance in criteria command appointment and war reports. 2. It is clarified that while the above aspects are given due consideration while screening officers for promotion, these are certainly not the over-riding or only factors. Selection for further promotion are essentially based on the overall profile of the officer with special stress on his performance in criteria command appointment and war reports. Due consideration is also given to consistency of performance, performance on courses and diversity of appointments held which increase or limit employability. Potentiality of the officer to handle higher command appointments, his character qualities and discipline are also taken into account while considering officers for further promotion". Annexure 10/b: "1. The existing policy on applicability of mandatory courses/technical qualifications for promotion to the rank of a/lt. Col. by selection has been re-examined in its entirety. It has been decided to issue a fresh up-to-date list of these mandatory courses/technical qualifications for each Arm/service. The same is issued as Appendix to this letter. 2. An officer must qualify on the mandatory course/technical qualification of his Arm/service to be eligible for promotion to the rank of A/lt. Col. by selection. An officer who has not done the mandatory course or does not have the mandatory technical qualification applicable to his Arm/service will be given a definite grading r (Unfit) irrespective of his overall profile at the time of his consideration for promotion to the rank of a/lt/by No.4 Selection Board. " 8. As per Army Regulation, an officer is given three consideration for each selection grade promotion to the next higher rank. These are called : (i)Fresh consideration (ii) First review and (iii) Final review. After the judgment dated March 25, 1994, the case of the petitioner was first considered in July, 1994, when the Selection Board rated him unfit for promotion to the post of lt. Col. When this decision was communicated to the petitioner, he filed the present writ application on September 20, 1994. During the pendency of this writ application, first review in the case of the petitioner was held in November 1994 when he was again found unfit and then in February, 1995 final review was held when also the petitioner was found unfit for promotion to the rank of Lt. Col. The petitioner filed an application on July 25,1995 after the first review and the final review in the present proceeding had been held after filing of the present writ application. Col. The petitioner filed an application on July 25,1995 after the first review and the final review in the present proceeding had been held after filing of the present writ application. He, therefore, sought amendment of the writ application but no order was passed on this application. However, the argument challenging the first consideration of the judgment dated March 25, 1994 would be same for fresh review and final review. This aspect of the matter, therefore, need not detain us. 9. It may also be noticed that the petitioner filed a petition for taking contempt proceeding against the respondents on the ground that they acted contrary to the judgment dated march 25, 1994 and that, in fact, they flouted the judgment. This was registered as M. J. C. No.1520 of 1994 but was dismissed by order dated August 16, 1995. The Court found that there had been no deliberate violation of the courts order so as to initiate the contempt proceeding. The Court, however, noticed that the order of the concerned authority denying the petitioners promotion has been challenged by way of present writ application wherein the petitioner has taken all the grounds challenging his non-selection. It was also observed that dropping of the contempi proceeding would not stand in the way of the petitioner for getting relief in the present writ application. 10. The principal attack of the petitioner on the decision of the authority to declare him unfit is that guideline and instructions as prescribed have not been kept in view. It has also been contended that less meritorious officers than the petitioner have been selected. As far as the second limb of argument is concerned, it is difficult to appreciate as to how the petitioner could know that the other officers, who have been selected were less meritorious than the petitioner. Various aspects have to be kept in view for selection to the higher rank. It is not for this court to examine the comparative merit of the officers for their selection to the higher rank. In pursuance to our direction the respondents produced before us Military profile of the petitioner placed before the three consecutive selection Boards (No.4) proceedings which were held in July, 1994 November to December 1994 and February, 1995. Member Data Sheet (MDS) of an officer contains various factors which have to be taken into account while examining his case for selection. In pursuance to our direction the respondents produced before us Military profile of the petitioner placed before the three consecutive selection Boards (No.4) proceedings which were held in July, 1994 November to December 1994 and February, 1995. Member Data Sheet (MDS) of an officer contains various factors which have to be taken into account while examining his case for selection. This MDS in the case of the petitioner has also been shown to us. These factors were also considered in the case of other officers. No.4 Selection Boards which examined the ease of the petitioner were composed of different officers with each board having Lt. General as Chairman and four members of the rank of Major general. No bais has been alleged against any of these officers. There are no allegations of arbitrariness in the conduct of proceedings by the Selection board. The petitioner has also made a grievance that his case has not been considered de novo as per direction of the earlier judgment. I do not think the petitioner is quite right in his submission. If it was not de novo consideration, there was no consideration of having the first review and the final review. Merely calling it Special Review (Extraordinary)- 1972 batch to which the petitioner belongs would not mean that it was not a de novo consideration in the case of the petitioner. In my view, the petitioner has been given fair consideration and in accordance with the guidelines and direction issued by this court in its earlier judgment. The respondents stated that the case of the petitioner was considered as a fresh case and seniority of 1972 batch officers was kept intact while considering his case for promotion for selection to the post of Lt. Col. 11. Yet another argument advanced on behalf of the petitioner was that No.4 Selection Board could not be the authority concerned to whom direction had been issued to reconsider the case of the petitioner de novo. I think, it is rather a specious argument. Authority concerned would be what is as per procedure prescribed. It is not disputed that for selection to the rank of lt. Col. the Chief of Army Staff is the final authority before whom the proceeding of the No.4 Selection Board is placed for approval. I think, it is rather a specious argument. Authority concerned would be what is as per procedure prescribed. It is not disputed that for selection to the rank of lt. Col. the Chief of Army Staff is the final authority before whom the proceeding of the No.4 Selection Board is placed for approval. This having been done there is no force in the argument of the petitioner that the direction of this Court has not been followed. Record produced before us clearly shows that proceedings of No.4 Selection board in the case of the petitioner were approved by the Chief of Army staff, the competent authority for promotion to the rank of Lt. Col. As a matter of fact, nothing was said by the petitioner that the Board was not validly constituted or the proceedings were not approved by the Chief of Army Staff. The respondents have further explained the procedure adopted by the Members of the Selection Board for considering the case of the individual officer. Guidelines of assessment and system of grading is placed before each Member. The Members then go through the cases and formulate independent view on the standards of the selections within batch merit. For concealment of the identity of the officers being considered by the members of the Board, the Member data Sheet (MDS) placed before the members of the Board does not contain the officers particulars like date of birth, name of the reporting officer of the Unit the officer has served. No member is allowed to express his comments. Gradings awarded by each member is not known to the other and, therefore, cannot evaluate the voting pattern of the other members of the same Board. The independent gradlings are then compiled by the Secretary to the Selection Board and the average of the grading is computed to be the Board gradings awarded to the officers. The final grading awarded by each member is recorded in the Master grading sheet and the over all grading obtained by officers is countersigned by the Chairman who himself is the Grading Officer. Gradings are based on the comparative merit of over all profile of the officer within his own batch. To be more objective, the verdict of the Selection Board is then placed before the Chief of Army staff to take a final decision in the matter. Gradings are based on the comparative merit of over all profile of the officer within his own batch. To be more objective, the verdict of the Selection Board is then placed before the Chief of Army staff to take a final decision in the matter. It is stated that aim of the selection system is to ensure objectivity and impartiality in selection so as to give fair consideration to every officer, who is eligible for promotion and to select a person, who is competent to shoulder the responsibility of higher rank. No reasons are given by the Selection board while finding a person unfit or fit for promotion to the higher rank. The members of the Selection Board give a decision on the basis of over all profile of an officer in accordance with the guidelines and instructions and award a definite grading. Regulations of the Army do not require that the selection Board is to record reasons why they are not selecting a particular person and/or why they are selecting a particular person, as the case may be. It was. therefore, not necessary for the members of the Selection Board to give any reasons (Major General IPS. Dew v. Union of India, (1995) 3 SCC 383 . is submitted that while the case of t petitioner was considered de novo as p the procedure prescribed, he was four unfit and while giving consideration the petitioners case the base year a; cut off year was the same as that of initial consideration. It is specificai averred that the case of the petition was considered as a fresh case of 19 batch. It has not been possible for me find any flaw in the procedure adoptc by the respondents and I am not in pressed with the argument of the petitioner that the order of this Com has been flouted by the respondents any way. It may also be noticed that was offered the petitioner to examine the record which was produced before use but he declined to do so. Mr. Narenda prasad, learned Counsel for the petitioner had three objections as to why the petitioner did not want to see the record. He said hat the records being produced were not complete as the records would not show if any person having less marks and having low profile than the petitioner was selected. Mr. Narenda prasad, learned Counsel for the petitioner had three objections as to why the petitioner did not want to see the record. He said hat the records being produced were not complete as the records would not show if any person having less marks and having low profile than the petitioner was selected. He also said that the records did not give reason for non-selection of the petitioner and that it was incumbent upon the authority to record reasons which, according to Mr: Prasad, was the mandate of the judgment dated March 25, 1994. I, however, did not find any merit in these submissions. In spite of all these arguments, the hesitancy on the part of the petitioner in not examining the record was obvious inasmuch as not fault could be found in the MDS of the petitioner and the proceedings of no.4 Selection Board. 12. In most part the argument advanced on behalf of the petitioner appeared to me to be repetitive as the same agruments appear to have been advanced in the earlier writ application. Nevertheless we heard the petitioner at considerable detail to see if the consideration by the respondents of the case of the petitioner was against the direction of the Court and was not in terms of the procedure prescribed. I have been unable to find any error in the three different proceedings of the no.4 Selection Board for me to hold that the case of the petitioner was not properly considered and that he was declared unfit for holding higher rank against the procedure prescribed. The challenge of the petitioner must, therefore, fail. This writ application is, accordingly, dismissed. Rule is discharged. Radha Mohan Prasad, J. 13. With all reverence, I am unable to agree with the views expressed by Hon ble the Chief Justice in his lordships judgment. By now it is well settled that it is in public interest and to avoid arbitrary or extraneous exercise of discretion by the Selection Board and to prevent any hostile discrimination that the requirement for giving reasons has been enjoined for the purpose of proving that the Selection Board is not only satisfied but has given grounds for its satisfaction so as to exclude the possibility of any oblique or extraneous consideration. 14. 14. The Supreme Court in the case of Union of India V/s. H. P Chothia ( AIR 1978 SC 1214 ) upheld Regulation 5 (2) (b) of the Indian Forests Service (Initial Recruitment) Regulations, 1966 under which the requirement for giving reasons has been assigned. The supreme Court held the said provisions to be in public interest and made with a view to avoid arbitrary or extraneous exercise of discretion by the Board and to prevent any hostile discrimination and also that the requirement for giving sasons has been enjoined for the purpose of proving that the Board was not only satisfied but has given grounds for its satisfaction so as to exclude the possibility of any oblique or extraneous consideration. According to the supreme Court, another purpose served by the said provision is that the Commission would be in a position to know the views of the Selection Board and the reasons given by it for excluding a particular candidate so that it may verify the correctness of the reasons given by the Board with the record forwarded by the Board. 15. In the case of State Bank of india V/s. Kashinath Kher AIR 1996 S. C. , 1328 Paragraph 16) the Supreme Court held that the committee for promotion has to independently assess the merit and ability of each candidate from the reports and the record etc. consistent with the weightage prescribed in the rules and then to determine the relative merit and ability of Officers and then to arrange order of merit of the Officers for promotion. It was also held by the supreme Court that the selection record also must indicate reasons, however, brief they may be, so that when tested by judicial review, the Court would be better assisted by such record to reach correct decision in law. In the same judgment a desire was expressed by the Supreme Court to prepare a columnar statement with all relevant columns and directed for preserving the c. Rs. and other relevant records should be preserved and the matters considered by the Promotion Committee should also be preserved. 16. In the same judgment a desire was expressed by the Supreme Court to prepare a columnar statement with all relevant columns and directed for preserving the c. Rs. and other relevant records should be preserved and the matters considered by the Promotion Committee should also be preserved. 16. A Division Bench of this Court in its earlier judgment in C. W. J. C. No.175 of 1992, filed by the petitioner held that while considering the case of the petitioner the author concerned did not follow the guidelines of their own and the whole decision of rejecting the case of the petitioner for promotion is tainted with bias and that it is well settled principle that justice should not only to be done but seems to have been done. The Court, being satisfied that the guiding principle for promotion was not followed while considering the case of the petitioner, held that the petitioner had been denied justice arbitrarily and illegally and, accordingly, allowed the writ petition and quashed the orders by which the petitioner was denied promotion to the rank of Lt. Col. The Court directed the authority concerned to reconsider de novo the case of the petitioner for promotion in accordance with the guidelines. 17. After the passing of the impugned order the petitioner besides filing of the present writ petition also filed MJ. C. No.1520 of 1994 for initiating a contempt proceeding against the respondents alleging that they acted contrary to the aforementioned judgment of this Court. In the contempt matter the Division Bench did not accept the allegation of the petitioner against the respondents for wilfully violating the direction of this Court. However, their Lordships passed order that the appropriate Court while considering the matter will naturally go into all the questions in the writ case on the facts averred and the material produced before it and that the dropping of contempt proceeding will not stand in the way of the petitioner for getting relief in the writ application. 18. In the counter affidavit, which has been sworn by the Officer Commanding, CHQ, BRC, Danapur Cantt. 18. In the counter affidavit, which has been sworn by the Officer Commanding, CHQ, BRC, Danapur Cantt. claiming to be under the authority of the respondents, nothing specific has been mentioned for denying promotion to the petitioner, except that in pursuance of the order of this Court, the case of the petitioner has been considered de novo in accordance with the guidelines and that the petitioner has, however, not been found fit on the basis of his overall profile and batch merits. Further, it is stated that while the petitioner was considered as a fresh case of 1972 batch, i. e. his original batch, by the time the said consideration was given to the petitioner in July, 1994, the officers of 1977 batch had also come up for consideration and that the petitioners seniority with 1972 batch officers was kept intact while considering his case for promotion to the selection rank of Lt. Col. in accordance with the order of this Court. 19. Learned Counsel for the petitioner vehemently argued before us that the said direction of this Court was violated inasmuch as the guidelines dated January 21, 1985 and January 28, 1988, which were Annexures 10a and 10b to the earlier writ application, have not been followed in considering the case of the petitioner de novo nor any reason has been assigned in the impugned order for finding the petitioned unfit for promotion to the rank of Lt. Col. by selection. On the said submission this Court, while expressing the desire to see the proceedings of No.4 selection Board, vide order dated 5th november, 1996, directed for production of the record on the next date of hearing as it was claimed by the respondents that the proceedings were undertaken and the impugned order was passed pursuant with earlier judgment of this Court, 20. Learned Additional Standing counsel appearing for the Union of india has produced Member Data sheets dated 15-6-1994, 31-10- 1994 and 19-1-1995, in a sealed cover. The said member Data Sheets are accompanied with two pages so-called proceedings of the respective meetings of No.4 Selection board held from 5th to 15th July, 1994, 22nd November to 2nd December, 1994 and 14th February to 24th february, 1995. The said member Data Sheets are accompanied with two pages so-called proceedings of the respective meetings of No.4 Selection board held from 5th to 15th July, 1994, 22nd November to 2nd December, 1994 and 14th February to 24th february, 1995. From a perusal of the said documents it is difficult to hold that the case of the petitioner has been reconsidered de novo for promotion in accordance with the guidelines as aforesaid. 21. The Supreme Court in the case of State Bank of India V/s. Kashinath Kher (supra) held that each case must be examined in the light of the record of each officer. Their Lordships also expressed a desire to prepare a columnar statement with all relevant columns and directed for preserving the C. Rs and other relevant records, including the matters considered by the Promotion committee. In the present case, nothing has been brought on the record nor produced before us despite the aforementioned direction to show that the petitioner who was, admittedly, senior to many of 1972 batch promoted in the selection rank of Lt. Col. was inferior in any manner than those promoted Officers. In fact, this Court in its earlier judgment took notice of the pleadings in the counter affidavit filed on behalf of the respondents wherein it had been, inter alia, stated that from 1987-88 to 1990-91 the petitioner had been overall assessed as "above average" by the reporting Officer and that he had been awarded 5/6 points in a number of personal qualities and variable of demonstrated performance and also the fact that there was no disciplinary award against the petitioner. After perusing the averments made in the first counter affidavit the court held that there was no specific denial made of the fect that the case of the petitioner for promotion was not considered in acc6rdance with the guidelines. After perusing the averments made in the first counter affidavit the court held that there was no specific denial made of the fect that the case of the petitioner for promotion was not considered in acc6rdance with the guidelines. The nondenial of the facts stated by the petitioner that he was promoted to the rank of Acting Major in 1983 and was awarded 9 and 20 medals in recognition of his unblemished service in 1975-86 as also the fact that the guidelines were not followed while considering the case of the petitioner which, according to the court, was clear from Annexure 11 itself which revealed consideration of only A. C. R. of 1988-89, held that while considering the case of the petitioner the authority concerned did not follow the guidelines of their own and the whole decision of rejecting the case of be petitioner for promotion is tainted with bias. The respondents did not go up in appeal and, thus, the said judgment became final. 22. Under the rule, which has also been noticed in paragraph 6 of the judgment of Hon ble the Chief Justice, the officers whose records of service merits promotion within a particular batch are selected to fill up the vacancies available in the higher rank through process of selection. Neither in the impugned order nor in the counter affidavit it is mentioned that there was anything against the petitioner in his service record on account of which he was/is not entitled for promotion. Only aforementioned assertion has been made in paragraph 9 of the counter affidavit that the petitioner has not been found fit on the basis of his overall profile and batch merits. Even in the so called proceedings of the Selection board produced before us. there is nothing initiated as to why the petitioner has not been found fit for promotion and/or that he was inferior to others of 1972 batch who though junior to him were promoted in the higher rank in preference to the petitioner. The Member Data Sheet produced before us also does not contain the details about other Officers of 1972 batch who were selected for promotion. 23. The Member Data Sheet produced before us also does not contain the details about other Officers of 1972 batch who were selected for promotion. 23. The Supreme Court in the case of Union of India V/s. M. L. Capoor (AIR 1974 S. C.87) dealing with selection of indian Administrative Service/indian police Service, held that "it is incumbent on the Selection Committee to state reasons in a manner which would disclose how the record of each superseded officer stood in relation to records of others who were to be preferred. This is in the context of the effect upon the rights of aggrieved persons who are entitled to protection under Article 14 and 16 of the Constitution and particularly this is the only remaining visible safeguard against possible injustice and arbitrariness in making selection. 24. According to the Army headquarters letter dated 6th May, 1987 (Annexure A to the counter affidavit )on which the respondents have placed reliance dealing with the selection system being followed in the M. S. Branch Army Headquarters for selection of Officers to the rank of A/lt. Col. and above, the assessments of Officers are to be based on the comparative merit of the overall profile of the Officers within his own batch. The grading of the Board is to be assessed from the material placed before the Board and not from the personal knowledge, if any. Paragraph 11 of the said Circular provides as to how the Selection Board has to conduct the proceedings, the sequence of events, which take place are (a) Preparation of evenda, (b) Drawing of Master/member Data Sheets, (c)Internal assessment, (d) Convening of the selection Board, (e) Conduct of the board, (f) Preparation of Boards proceedings for approval of the competent authority, (g) Answering queries on observation raised by Min. of Def. on the Boards proceedings, and (h) Issue of results. Obviously, thus, if the case of the petitioner was considered de novo as directed by this Court, the above sequence of events were to be followed by the Selection Board and all the papers in support thereof should have been produced. But this having not been done at least creates doubt in the matter of fair consideration of the case of the petitioner de novo. 25. Paragraph 67 of the Regulation deals with substantive promotion by selection. But this having not been done at least creates doubt in the matter of fair consideration of the case of the petitioner de novo. 25. Paragraph 67 of the Regulation deals with substantive promotion by selection. Sub-paragraph (a) of the said regulation provides that substantive promotion to the rank of Lt. Col (by selection) and above will be made to fill up vacancies in the substantive cadre, provided the officer has to his credit the following minimum period of reckonable commissioned service and satisfies the conditions of medical fitness as laid therein. For Lt. Col. s rank 16 years minimum period of reckonable commissioned service is required under the said regulation. Under Regulation 70 Officers are normally to be considered for promotion in the order of seniority in their Corps, i. e. seniority-cum-merit and not merit-cum-seniority and the cases of Officers superseded for promotion are to be kept under review in accordance with the existing instructions. Under Regulation 72, however, an officer whose early advancement is in the interest of service can be specially selected for promotion to fill a vacancy whatever his seniority in the rank at the time may be. But it is not the case of the respondents that the petitioner has been superseded by his juniors selected for their early advancement required in the interest of service. 26. It is true that as per Annexure 10a, the selection for promotion of the lt. Col. and above rank is based on the overall profile of the Officers, but under annexure 10b the Officer is required to qualify in the mandatory course and he can be found unfit if not done the mandatory course irrespective of his overall profile at the time of his consideration for promotion to the aforesaid rank. Even the overall profile has to be tested and judged with reference to the materials on record of the Officers of the same batch who are being considered for promotion. The overall profile cannot be tested in abstract as was also reiterated in Army headquarters letter dated 6th May, 1987, contained in Annexure A to the counter affidavit, which provides that the grading of the Board is to be assessed from the material placed before the Board and not from the personal knowledge. 27. In this case, it is not disputed that the petitioner does possess the requisite qualification. 27. In this case, it is not disputed that the petitioner does possess the requisite qualification. It is neither disputed that the persons junior to him and not fulfilling the P. S. C. qualification were promoted nor anything has been brought on the record or even produced before us to show that the overall profile of the petitioner was in any manner inferior to those who though junior to him were promoted to the rank of Lt. Col. whereas the petitioner has been denied of the said promotion. Qualifications which the petitioner possessed included 18 years of reckonable serviced on the date of first meeting of the Selection Board held for 1972 batch beside other mandatory courses, like, P. S. C. and instructors rating on Junior Command course are also to his credit. War reports (Insurgency Reports) for 1984-85, 1985-86 and 1989-90 and Command criteria Reports for 1984-85 to 1986-87 and 1989-90 to 1995-96 and diversity of staff appointments Grade II and III, besides appointments in unit during 1981 to 1983 and 1987 to June 1989 are "above Average". So far the discipline is concerned, it is not alleged that he has blemished service record. Thus, in my opinion, it was all the more obligatory on the part of the respondents to come 28. In the case of Major General i. P. S. Dewan V/s. Union of India, (1995) 2 SCC 383, the Supreme Court, in the facts of that case, held that the principle for containing reasons in the administrative orders affecting the rights of citizens cannot be extended to matters of selection unless the rules so require, but not that the judicial review to verify the correctness of the decision of the Selection Board is impermissible nor have upset the law laid down in the case of Union of India V/s. H. P. Chothia (Supra ). The Apex Court, however, on consideration of the facts that there was no specific allegation of arbitrary conduct on the part of the Selection Board and that the statutory complaint preferred by the appellant against the remarks had been rejected by the central Government though subsequent to the said consideration, held that it cannot sit as an appellate authority over the acts and proceedings of the Selection Board. 29. 29. In the instant case, the case of the petitioner has been rejected in the first review and the final review and the recommendation of the Selection Board has also been approved by the competent authority under sub-clause (d) of regulation 108, namely, Chief of the army Staff. As such, I do not feel persuaded to interfere with it by sitting as an appellate authority over the said decision. Accordingly, I do agree with Hon ble the Chief Justice that the writ petition does not warrant any interference and the same be dismissed. Petition Dismissed.