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2007 DIGILAW 636 (DEL)

MAJOR GENERAL LAKHWINDER SINGH v. UNION OF INDIA

2007-03-22

G.S.SISTANI, SWATANTER KUMAR

body2007
SWATANTER KUMAR, J. ( 1 ) THE petitioner who was commissioned as a Second Lieutenant in the indian Army on 16. 12. 1967 became a Major General in the year 2001. He was recommended for promotion to the rank of Lieutenant General by two different but successive Special Selection Boards of the Indian Army. The Central Government did not approve the recommendation of the Special Selection Boards qua the petitioner. Thus, the petitioner was denied the rank of Lieutenant General. This action of the respondents is challenged by the petitioner in the present writ Petition on the ground that the non-approval for grant of the rank of lieutenant General to the petitioner is arbitrary, discriminatory, whimsical and, in fact, violative of the rules, established procedure of selection and offends principles stated in various judgments of this Court and the Supreme court of India. ( 2 ) THE necessary facts giving rise to the present Writ Petition are that the petitioner was commissioned in the Indian Army as a Second Lieutenant on 16. 12. 1967. According to the petitioner, he saw active combat in Indo-Pakistan war at Dera Baba Nanek in Punjab Sector and was recommended for the award of Vir chakra. He took part in various Operations including Operations relating to counter-insurgency. He took part in Operation Blue Star in Punjab in 1984, and in the year 1999 he was posted to command an Arty Brigade situated in the active counter-insurgency operations area in Kashmir. The Brigade under the command of the petitioner was mobilized and was deputed to fight the Kargil War "operation vijay" in Drass-Kargil Sector in the year 1999. The petitioner"s performance and contribution in these events earned him the award of "yudh Seva Medal" in august, 1999. ( 3 ) DURING his distinguished service career, the petitioner claims to have earned various awards, recommendations and appreciation by his seniors as well as others. In the year 2001, on the basis of his service profile, the petitioner was promoted to the rank of Major General and was posted as General officer Commanding, 40 Arty Division, the only Arty Division of the Indian Army at the relevant time and he led "operation Parakram" in the year 2002. In the year 2003, he was posted to Northern Command and participated in the "operational Command", responsible for the insurgency-ridden Jammu and Kashmir sector. In the year 2003, he was posted to Northern Command and participated in the "operational Command", responsible for the insurgency-ridden Jammu and Kashmir sector. ( 4 ) ALL the promotions above the rank of Colonels are done on the basis of selection and not length of service. The Competent Authority is stated to have provided guidelines for promotion to different ranks and the process of selection. According to the petitioner, he got all promotions at first consideration right from the rank of Colonel to Major General as his service profile on a comparative and competitive basis, was found to be better. The special Selection Board, particularly for promotion by selection from the rank of Major General to Lieutenant General, is constituted by Respondent No. 2 with reference to the power delegated to him under the authority of the President of india to constitute such a Board. This Board comprises the Chief of Army Staff, the Vice-Chief of Army Staff and six senior-most Lieutenant Generals, who make recommendations for promotion to the rank of Lieutenant General and the appointments are given after the recommendations are approved by the Ministry of defence and the other Competent Authority. ( 5 ) IT is the case of the petitioner that the Special Selection Boards are expert bodies as they consist of the highest ranking officers from different fields of Army including technical and non-technical members. A person who has been recommended by the Special Selection Board can hardly be ignored by the government, and more particularly, in an arbitrary or discriminatory manner. The first Board for selection was held on 27. 2. 2004 which unanimously recommended four names, the name of the petitioner and three others, namely, major General A. Vasudeva, Major General A. J. S. Sandhu and Major General A. S. Bhagat. The first Board for selection was held on 27. 2. 2004 which unanimously recommended four names, the name of the petitioner and three others, namely, major General A. Vasudeva, Major General A. J. S. Sandhu and Major General A. S. Bhagat. However, Major General A. J. S. Sandhu superannuated on 31st August, 2004 and Major General A. S. Bhagat unfortunately expired on 3rd September, 2004 The government without application of mind returned the recommendation of the Board on the ground that there were only three vacancies and four names have been recommended, when, in fact, at the relevant time, there were only two officers against three vacancies and only Major General A. Vasudeva was promoted as lieutenant General by the Central Government on approval of his name but the petitioner was not promoted and the result of the Board was declared after an inordinate delay of 10 months. According to the petitioner, he was the only officer amongst the General Officers recommended for promotion as Lieutenant generals in Staff Stream. Aggrieved by the result dated 10. 12. 2004, the petitioner filed a non-Statutory Complaint with the Respondent No. 2 on 17. 1. 2005. Despite the fact that such complaints under the rules are to be disposed of within 90 days, the same was not attended to. Again, a second board was held on 1. 4. 2005. This Board again recommended the name of the petitioner for promotion to the rank of Lieutenant General. According to the petitioner, both the Boards were headed by Chiefs of Army Staff. The second board recommended the names of five officers for promotion to the rank of lieutenant General including the petitioner whose name was shown at serial No. 1 of the recommended list. The result of the second Board was declared on 30th june, 2005 and to the shock and dismay of the petitioner, the petitioner was again superseded and not promoted to the rank of Lieutenant General. In other words, the recommendation of the second Board was not approved by the Central government. It is the case of the petitioner that Major General Utpal bhattacharya (as he was then) and Major General A. K. Saini (as he was then) were empanelled for promotion in the 2nd Board, which had recommended the petitioner"s name for promotion. In other words, the recommendation of the second Board was not approved by the Central government. It is the case of the petitioner that Major General Utpal bhattacharya (as he was then) and Major General A. K. Saini (as he was then) were empanelled for promotion in the 2nd Board, which had recommended the petitioner"s name for promotion. In ordinary circumstances, Major General U. Bhattacharya (Respondent No. 3) would have superannuated on 31st July, 2005 and ma. Gen. A. K. Saini (Respondent No. 4) would have superannuated on 31st August, 2005 and, therefore, in the vacancies arising on 1st February, 2006, only two officers, namely the petitioner and Major General Y. K. Jain (Respondent No. 5) would have been promoted. In order, however, to confer an undue favour to Major general A. K. Saini and Major General U. Bhattacharya, the Respondent Nos. 1 and 2, on the night of 29/30th July, 2005 (which is a Friday and a Saturday) created two vacancies and just before the retirement of Major General U. Bhattacharya conferred upon them the rank of Lieutenant General. These appointments were made even though there was no grave urgency for the same and neither were the posts to which they were appointed tenable by Lieutenant Generals. Articles were published in this regard in the Telegraph dated 1st August, 2005 and Times of india dated 2nd August, 2005. ( 6 ) IT is also the case of the petitioner that, as a matter of fact, the post to which the two Major Generals, respondent Nos. 3 and 4, were appointed, namely, DG, Environment, E-in-C's Branch and DG, Ex-servicemen Contributory health Scheme, Southern Command, do not exist in the list of substantive ranks of Lieutenant Generals. Aggrieved from the unreasonable and unwarranted attitude of the respondent, the petitioner filed a Statutory Complaint on 29. 8. 2005 with the Ministry of Defence challenging his supersession, which was rejected by the authorities by a cryptic order on 29. 12. 2005. Still, there were vacancies in the rank of Lieutenant General to which the petitioner was entitled to, however, the respondents were making all attempts to ensure that the available vacancies are not given to the petitioner as the petitioner is due to retire on 31. 5. 2006. 12. 2005. Still, there were vacancies in the rank of Lieutenant General to which the petitioner was entitled to, however, the respondents were making all attempts to ensure that the available vacancies are not given to the petitioner as the petitioner is due to retire on 31. 5. 2006. The grievance of the petitioner is that despite his excellent service profile and unblemished service to the nation for a period of 38 years and two successive recommendations for promotion, he has been ignored for promotion to the rank of Lieutenant General in a most arbitrary, unconventional and by a method which depicts total non-application of mind on the part of the respondents. ( 7 ) SEPARATE counter-affidavits have been filed on behalf of the respondent nos. 1 and 2, respondent No. 5, respondent No. 3 and respondent No. 4 respectively. In terms of the counter-affidavit filed on behalf of the respondent Nos. 1 and 2, the basic facts averred in the petition are not disputed but it is stated that the petitioner does not belong to General Cadre and as such, was entitled to be considered for promotion from the rank of Major general to Lieutenant General only in 'staff Stream' and within his Corps. It is stated that at any given point of time the number of officers not belonging to general Cadre to be promoted in the 'staff Stream,' cannot exceed six out of the total authorization of 68 Lieutenant Generals and all officers of a particular batch are considered together with all the relevant inputs. On the basis of individual profile of the officers, comparative merit within the Batch and its evaluation by the Competent Authority, the final decision for empanelment for promotion is arrived at. It is submitted that seniority in itself is not a decisive factor and the Selection Board and the Competent Authority takes into consideration a number of factors such as war/operational reports, courses report, ACR performance in Command and Staff appointments, honours and awards, comparative profile of the officer under consideration, etc. , and the promotion of an officer is based on an overall profile and comparative merit within the batch. ( 8 ) ACCORDING to the respondents, the petitioner was considered as a fresh case for promotion to the rank of Lieutenant General by the Special Selection board held on 27. 2. , and the promotion of an officer is based on an overall profile and comparative merit within the batch. ( 8 ) ACCORDING to the respondents, the petitioner was considered as a fresh case for promotion to the rank of Lieutenant General by the Special Selection board held on 27. 2. 2004 The Board recommended the name of the petitioner along with three other officers for promotion. A separate Special Selection Board held on 6. 10. 2004 considered the petitioner for promotion within the Artillery Corps. However, the Special Selection Board did not recommend the petitioner for promotion within the Corps. After the recommendations were examined by the authorities in consonance with the policy, the petitioner was not found fit for appointment to the post of Lieutenant General. Firstly, the matter is considered by the Ministry of Defence, then the recommendations are placed for consideration before the Appointments Committee of the Cabinet (ACC) for decision. The recommendations of the Special Selection Board are subject to examination at various stages by several authorities. The respondents have relied upon Para 108 of the Regulations for the Army, 1987 which reads as under: "108 Constitution and Duties of Selection Boards. Selection Boards (for officers other than Army Medical Corps, and military Nursing Service) are constituted as required under the order of the chief of the Army Staff. Their composition and duties are given below:- (a) Composition presiding Officer chief of the Army Staff or any other senior officers as directed by him according to the importance of the Selection Board. Members as directed by the Chief of Army Staff from time to time in accordance with the nature of their duties. Secretary ms/addlms/dy MS (b) Frequency of Meeting: As required by the Chief of the Army staff. (c) Duties: (i) Assessment of officer for promotion to Lt. Col and above in accordance with the criteria laid down for selection. (ii) Any other matter which the Chief of the Army Staff may direct the Board to consider. (d) The assessment of the Selection Board shall be recommendatory in nature and not binding until approved by the competent authority viz. the COAS or the Central Government as the case may be. (e) The Central Government or COAS have the inherent power to modify, review, approve with variation or repeal recommendations of the selection. " ( 9 ) VIDE Order dated 10. 12. the COAS or the Central Government as the case may be. (e) The Central Government or COAS have the inherent power to modify, review, approve with variation or repeal recommendations of the selection. " ( 9 ) VIDE Order dated 10. 12. 2004, the petitioner was informed that he was not approved by the Competent Authority for promotion against which he filed a non-Statutory Complaint which was rejected vide Order dated 12. 4. 2005. The petitioner was again considered by another Special Selection Board held on 1. 4. 2005 as a First Review Case for promotion in Staff Stream. He was again recommended along with four other officers but again the Competent Authority did not empanel the petitioner for promotion. The decision was communicated to the petitioner on 30th June, 2005. The Statutory Complaint against the second rejection also was considered by the Competent Authority and was rejected. The petitioner was still eligible for another consideration as a Final Review as per the policy. The respondents have also specifically averred in their counter- affidavit as under: "xii) It is submitted that the scope of judicial review is limited to the decision making process and not the decision itself and in view of the abovesaid submissions, the present Writ Petition is liable to be dismissed on this ground. xiii ). . . And from the broad base of the pyramid only those officers whose record of service merits promotion, could be selected for promotion to the higher rank. Keeping in mind the said pyramidical structure, the promotion policy in the Army is that upto the rank of Lieutenant Colonel, the promotions are by time scale, which are non-select ranks. But the promotions from the rank of Lieutenant Colonel to Colonel and above are done through Selection Boards subject to the approval by the Competent Authority. Therefore Colonels and above are select ranks. Accordingly, as one moves above in the rank the process of selection becomes hard, stringent and rigorous. Therefore, keeping in mind the abovesaid principle and the procedure followed, as has been set out hereinabove, the present petition lacks merit and is liable to be rejected. Therefore Colonels and above are select ranks. Accordingly, as one moves above in the rank the process of selection becomes hard, stringent and rigorous. Therefore, keeping in mind the abovesaid principle and the procedure followed, as has been set out hereinabove, the present petition lacks merit and is liable to be rejected. " ( 10 ) THE stand of the private respondents is that the allegations of favouritism qua them have been disputed and it has been stated that in fact the petitioner has not raised any challenge to the promotion of the answering respondents whose appointments in any case were on merits. According to respondent no. 4, he had a much better service profile and had done prestigious courses. It is his case that he had participated in Indo-Pak conflict in 1971 and was involved in operations at Siachen and Kargil. He even commanded 236 engineer Regiment during operation Rakshak; was a decorated Officer and no favouritism had been shown to him. The vacancies arose on 1. 2. 2006. The case of the petitioner that it is only the petitioner and respondent no. 5 who could have been promoted, is patently incorrect as the petitioner was never empanelled for promotion. ( 11 ) THESE respondents have also taken up a plea that respondent no. 5 was empanelled by the Government of India on 29. 6. 2005 to the rank of Lt. General because of distinguished record and he was posted to different important appointments. On promotion, he has been retained to the post of Director general Merit Accommodation Project as per the Military Secretary Branch to assume the charge of a regular post which was to fall vacant on 1. 2. 2006. According to these respondents, there are contradictions in the petition and no specific grievance has been raised in as much as the respondents have been empanelled on a better comparative merit. In regard to creation of posts, it is stated that the posts were not created to unduly favour the respondents and that the posts were created in accordance with law and no favouritism was shown to the concerned respondents. ( 12 ) AS is evident from the above narrated facts, the criteria of selection to these posts is hardly in dispute. In fact, in the various guidelines/instructions issued by the competent authority, the criteria of selection have been given. ( 12 ) AS is evident from the above narrated facts, the criteria of selection to these posts is hardly in dispute. In fact, in the various guidelines/instructions issued by the competent authority, the criteria of selection have been given. Reference can be made to the admitted criteria/factors which are to be considered for selection to such posts under the policy of the Government, the same being relevant and determinative for selection to the posts in question, which read as under :- (i)Annual Confidential Report Profile of the Officer in the relevant ranks. (ii)War Reports (iii)Battle Awards and Honours earned by the officers during his service. (iv)Professional courses done by the officer, his performance during the course and grading obtained therein. (v)Special Achievements. (vi)Appointments held by the officers including criteria command appointment. (vii)Employability and potential including consistent recommendations for promotion to the next higher rank. ( 13 ) THE cumulative effect of the above factors are to be taken into consideration while considering the selection to a higher post. The discretion of the Selection Board, thus, is controlled and guided by the above factors. ( 14 ) THE applicability of these principles had been discussed in great detail by this court in the case of Major Gen B. D. Wadhwa, AVSM v. UOI and others, WP (C) 10630/2006, decided on 17th October, 2006, where the court held as under:- 24. It is not a case where the petitioner has pleaded any personal malafide or even malafide in law. The entire case of the petitioner is based upon the action of the respondents being arbitrary, unfair and violative of the prescribed procedure of selection. In order to further examine the substance in this submission, useful reference can be made to the admitted criteria/factors which are to be considered for selection to such posts under the policy of the government. These criteria/factors are stated to be relevant and determinative for selection to the posts in question. The same reads as under :- (i)Annual Confidential Report Profile of the Officer in the relevant ranks. (ii)War Reports (iii)Battle Awards and Honours earned by the officers during his service. (iv) Professional courses done by the officer, his performance during the course and grading obtained therein. (v)Special Achievements. (vi)Appointments held by the officers including criteria command appointment. (vii)Employability and potential including consistent recommendations for promotion to the next higher rank. 29. . . . . . (ii)War Reports (iii)Battle Awards and Honours earned by the officers during his service. (iv) Professional courses done by the officer, his performance during the course and grading obtained therein. (v)Special Achievements. (vi)Appointments held by the officers including criteria command appointment. (vii)Employability and potential including consistent recommendations for promotion to the next higher rank. 29. . . . . . . . . . . . . Obviously, members of the Selection Board, who are Army commanders, are provided with the guidelines for the assessment of the officers, which is also mentioned in the Chairman"s address. They have the occasion to know all the officers and besides Member Data Sheet, the complete service profile is also available before them. The power of the Court to probe such process of selection has to be exercised with great circumscribe as the selection Board consists of highly placed officers, who make recommendation, which in turn is considered at the highest level in the Ministry and then is cleared by the AGC. In the present case, the note contained in the file of the ministry, placed emphasis on the fact that respondent No. 4 had a better overall profile on the basis of the courses, better ACR and that he had obtained more 9s'in criteria reports. It cannot be disputed that the profile of the petitioner (including the MDS) did not refer to all the courses done by him and his higher qualification of post-graduation in Engineering. But this would not necessarily follow that the authorities concerned would have taken a view different than the one taken by them, even if these facts were specifically pointed out. According to the respondents, this information was available in the complete Records available to the Members of the Board. 30. We have already noticed that learned counsel appearing for the petitioner with great vehemence has contended that Major General V. C. Jain was promoted to the rank of Lt. General only because he was given preference over others on the ground that he was having M. Tech qualification, which the petitioner was having in preference to respondent No. 4. 31. At the very outset, we may refer to decision of the Supreme Court in the case of Secy. (Health) Deptt. Of Health and F. W. and Another Vs. Dr. General only because he was given preference over others on the ground that he was having M. Tech qualification, which the petitioner was having in preference to respondent No. 4. 31. At the very outset, we may refer to decision of the Supreme Court in the case of Secy. (Health) Deptt. Of Health and F. W. and Another Vs. Dr. Anita puri and Others (1996) 6 SCC 282 where such an argument was not accepted and the supreme Court while discussing it held as under:- "". When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extracurricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M. D. S. qualified person like Respondent 1 was entitled to be selected and appointed when the government indicated in the advertisement that higher qualification person would get some preference. " 32. We had directed the respondents to produce the original file relating to the selection of Major General V. C. Jain to the rank of Lt. General. The said file was produced before us. " 32. We had directed the respondents to produce the original file relating to the selection of Major General V. C. Jain to the rank of Lt. General. The said file was produced before us. Perusal of the file shows that no preference was given to Major General V. C. Jain in relation to his higher qualification. His name was considered with four other officers and while one of them was deferred, other three were found unfit and Major General V. C. Jain alone was found fit for empanelment. In that case, when the matter was considered by the ministry, it was noticed that Major General M. G. Girish had six 9 points box grading in his report in the rank of Major General while Major General V. C. Jain had three 9s' in two reports. Major General Girish had done better courses but major General V. C. Jain had been awarded AVSM in 2003 and VSM twice in the year 1995 and 2001, thus, while referring to the better achievements in Award, he was given preference and declared fit for empanelment. There is no indication in the Selection Board Proceedings or in the file of the Ministry that higher technical qualification, in any way, was of great benefit to the said officer. 33. In view of the above explained principle of law seen in light of the facts and circumstances appearing from the original records, even this contention raised on behalf of the petitioner is void of substance. The policies framed, which were amended in the year 1991 and 1993 by competent authority, provide for selection process and criteria for selection to the post of Lt. General. Even if the preference indicated at Page 10 of the file, which has been reproduced above, is not the correct preference of courses, still it may not by itself sufficient to alter the view taken by the respondents. The petitioner had admittedly not performed better than respondent No. 4 and had chosen not to complete a course being aware of its adverse consequences in his service career. Some of the courses may be material while others may not. The petitioner had admittedly not performed better than respondent No. 4 and had chosen not to complete a course being aware of its adverse consequences in his service career. Some of the courses may be material while others may not. Which of the professional courses, mandatory courses or career courses would be consequential, would have a bearing and in what order of preference, are the matters, determination of which fall in the domain of the specialized bodies and so far any criteria, which is otherwise reasonable, is materially in consonance with the policy and is not ex-facie arbitrary or malafide exercise of power, would not vitiate the process of selection. As a result of this discussion we are unable to accept the contention of the petitioner that empanelment of respondent No. 4 and the entire process of selection suffers from the vice of arbitrariness, discrimination or is in violation of the Rules. ( 15 ) NOW, we would proceed to examine the merits of the present case. This cannot be disputed that the petitioner is amongst one of the distinct officers of the Indian Army. He has a good service profile and has participated in various operations, internal and external. The service profile of other officers who were recommended and even not recommended by the Staff Selection board had a high and a very distinct service career. We may refer to the service profile of various Major Generals who were considered on both the occasions along with the petitioner and were either not recommended or were recommended and approved by the Government, which is as under:- CONFIDENTIAL COMPARATIVE PROFILE CHART A. SSB HELD FOR STAFF STREAM (1967 Batch) ON 27 FEB 2004 S/no Name of the Offr ACR (9s in over all box grading in Maj Gen and Brig's rank) Honours and Awards Courses Remarks 01 Maj Gen A. Vasudeva 6x9s COAS CC (1998) VSM (2002) AVSM (2004) Staff College , Senior Command, Higher Command and NDC Approved and promoted 02 Maj Gen AJS Sandhu 11x9s COAS CC (1997) VSM (2000) Staff College , Senior Command, Higher Command and NDC Recommended by SSB but retired before finalization of results. 03 Maj Gen AS Bhagat 18x9s SM (2001) AVSM (2003) PVSM (2004) Staff College , Senior Command, Higher Command and NDC Recommended by SSB but Expired before finalization of results 04 Maj Gen Lakhwinder Singh Nil YSM (1999) Staff College , Senior Command, Higher Command and NDC Recommended by SSB but not approved by ACC due to comparative weak profile 05 Maj Gen AS Bajwa 20x9s VSM (2001) AVSM (2003) Staff College , LDMC and NDC Better profile as compared to petitioner but not recommended by SSB 06 Maj Gen KS Rao 8x9s SM (1978) SC (1987) Staff College , Senior Command, Higher Command and NDC Better profile as compared to petitioner but no recommended by SSB 07 Maj Gen VP Pawar 14x9s VSM (1992) Senior Command, Higher Command and NDC Better profile as compared to petitioner but no recommended by SSB 08 Maj Gen P. K. Janmya 5x9s AVSM (2004) Staff College , Senior Command, Higher Command and NDC Better profile as compared to petitioner but no recommended by SSB 09 Maj Gen K. Mukerjee 12x9s AVSM (2005) Better profile as compared to petitioner but no Staff College , Senior Command, Higher Command and NDC recommended by SSB CONFIDENTIAL COMPARATIVE PROFILE CHART A. SSB HELD FOR STAFF STREAM (1968 Batch) ON 1 APR 2005 S/no Name of the Offr ACR (9s in over all box grading in Maj Gen and Brig's rank) Honours and Awards Courses Remarks 01 Maj Gen A. K. Saini 26x9s SM (2000) COAS CC (1996 and 2003) AVSM (2005) Staff College , Senior Command and NDC Approved and Promoted 02 Maj Gen U Bhattacharya 9x9s AVSM (2004) COAS CC (1993) Staff College , Senior Command, LDMC and NDC Approved and Promoted 03 Maj Gen YK Jain 6x9s AVSM (2004) Staff College , Senior Command, Higher Command and NDC Approved and Promoted 04 Maj Gen I J Koshy 9x9s COAS CC (1997) Staff College , Senior Command, Higher Command and NDC Approved and Promoted 05 Maj Gen Lakhwinder Singh Nil YSM (1999) Staff College , Senior Command, Higher Command and NDC Recommended by SSB but not approved by ACC due to comparative weak profile by SSB. 06 Maj Gen RR Goswami 4x9s COAS CC (1984) Staff College , Higher Command and Comparable profile but no recommended NDC 07 Maj Gen SRS Bains 9x9s VSM (2005) Staff College , Senior Command, LDMC and NDC Better profile but no recommended 08 Maj Gen GK Nischal 18x9s VSM (2003) Staff College , Senior Command, Higher Command, LDMC and NDC Better profile but no recommended 09 Maj Gen Arvind Mahajan 8x9s COAS CC (1993 and 1994) VSM (1995 and 2002) AVSM (2001) Senior Command, Higher Command and NDC Better profile but no recommended ( 16 ) THERE is also no dispute to the fact that the petitioner was twice recommended but was not approved by the Government for the reasons stated by them. No doubt, a selection has to be made on the basis of comparative merit of the officers. This comparative consideration is relatable to the above ingredients. The purpose obviously is to minimise the exercise of discretion by any authorities. Arbitrariness in a state action is not permissible. The original records were produced before us including the file of the concerned ministry wherein the petitioner was not approved by the Government besides the fact that he was duly recommended by the Staff Selection Board. By a detailed note dated 27. 5. 2005 when the name of the petitioner was again recommended by the Army Headquarters, the Ministry while saying that the grading of the four officers recommended was in order but on comparative merit, they made the petitioner as unfit for promotion. In the detailed note, different reasons were given and it was stated that the officials of the MS Branch had agreed that the decision has to be taken on comparative merit and, thus, they in the meeting also agreed to the grading given to the petitioner and finally, the petitioner was not approved for promotion. Similarly for selection in the year 2004, the ministry had considered the case of the recommended officers and while considering for the acting rank of Lieutenant General, the grading of the petitioner was again changed vide note dated 27th April, 2004 onwards from fit to unfit. From the record, it appears that the decision not to approve the petitioner was taken by detailed reasoning and primarily on the basis of comparative record. From the record, it appears that the decision not to approve the petitioner was taken by detailed reasoning and primarily on the basis of comparative record. The scope of interference by the court while examining such matters is a very limited one and the court would not sit as an appellate authority to examine the merits or otherwise of such decisions unless they are arbitrary, specifically violative of rules and instructions or the decision is ex facie unreasonable. ( 17 ) IN order to avoid any doubts in regard to errors in the decision making process, we had not only asked for production of original files but also the annual confidential reports and service profile of the petitioner as well as the other officers. The profile of all officers, we must say is outstanding and each one of them have great credits to their service. Out of the various criteria noticed by us in the judgment above, there are two counts on which the petitioner, if not lacking behind, is certainly not having an edge over other officers. The box grading is the true reflection of different qualities of an officer. The Reporting Officer, Reviewing Officer and Senior Reviewing Officer after considering the quality based service profile of the officer, are required to give points against each quality mentioned in 'part-II - Personal Qualities and Demonstrated Performance' of the annual confidential reports and then to show the cumulative effect of the performance of the officer in all fields. The annual Confidential Report of the officer is governed by the box grading. The petitioner in his profile for both relevant years does not have the box grading of 9'. Besides examining the member data sheet, we had scrutinized the original Annual Confidential Reports of the petitioner but none of them reflect a box grading of 9' over the relevant period. In contrast to this, other officers have 6, 11, 18, 9 and even 26 9s' in their service profile. The other count on which the petitioner is at little disadvantageous situation is in regard to Honours and Awards. The petitioner received Yudh Seva Medal in the year 1999 while the other officers who were recommended and approved by the government or who even were not recommended, had better Awards than the petitioner in order of precedence as well as in number. In 2004, Major General a. Vasudeva had three Awards, Ma. The petitioner received Yudh Seva Medal in the year 1999 while the other officers who were recommended and approved by the government or who even were not recommended, had better Awards than the petitioner in order of precedence as well as in number. In 2004, Major General a. Vasudeva had three Awards, Ma. General AJS Sandhu had two Awards and Ma. General AS Bhagat had three Awards (who unfortunately died ). Even the persons who were not recommended at that time including Major General AS Bajwa and Major general KS Rao had better number of Awards than the petitioner but still they were not recommended even by the Army Headquarters. This is the entire crux of the matter resulting in non-approval of the petitioner by the Government. Certainly, the petitioner has a better profile than the others as far as the operation Awards are concerned and was complemented greatly by his senior officers. ( 18 ) IN the case of Dalpat Abasaheb Solunke Etc. v. B. S. Mahajan Etc. JT 1989 (4) SC 487, the Supreme Court had clearly stated the principle that decisions of a Selection Committee need not be interfered by the High Court as if it was sitting in appeal and the courts would not embark upon deciding the relative merits of the candidates as there must not be sufficient expertise with the courts. ( 19 ) REFERENCE can also be made to the judgment of the Supreme Court in the case of Union of India and others v. Lt. General Rajendra Singh Kadyan and another AIR 2000 SC 2513 , where the Supreme Court while setting aside the judgment of the High Court, held as under:- "29. . . . . . . . . . . . . . . . May be one may emphasize one aspect rather than the other but in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we cannot substitute our view to that of the authorities. It is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions has nexus to the facts on record, the same cannot be attacked on merits. It is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions has nexus to the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether process in reaching decision has been observed correctly and not the decision as such. In that view of the matter, we think there is no jurisdiction for the High Court to have interfered with the order made by the government. " ( 20 ) WE are unable to find element of arbitrariness or patent unreasonableness in the impugned action of the respondents. Wherever two views are possible and the expert bodies have taken a view, the court would normally not interfere with such a decision, particularly when it does not offend any of the settled principles of law governing the field in question. ( 21 ) DURING the hearing of the case, emphasis was also placed upon the principles of Wednesbury to contend that the respondents had taken irrelevant materials into consideration favourable to other officers while they had ignored relevant materials in the case of the petitioner to place him at a disadvantage position. This argument has no substance. As already noticed, we had directed the respondents to produce the original records in court and after having perused the records, we have no hesitation in coming to the conclusion that the decision taken by the respondents cannot be faulted with or called patently arbitrary or discriminatory. ( 22 ) FOR these reasons, we are unable to grant any relief to the petitioner. The writ petition is dismissed, while leaving the parties to bear their own costs.