UNION OF INDIA Vs. SHYAM KUMAR

JUDGEMENT

(1.) These two appeals L.P.As. 172 and 134 of 1981) under Clause X of the Letters Patent are directed against the judgment dated May 29. 1981 of a learned Single Judge of this Court wherein an erroneous frame of the question for answer, namely, "the question of law for the determination is whether the Chief of the Army Staff, can in law, change the gradation for promotion made by the Selection Board (on which he presides) under Regulation 107 of the Defence Services Regulations, 1962. In other words, the question is whether the Chief of the Army Staff can declare a person unfit for promotion where the Selection Board has declared him fit", has resulted into miscarriage of justice.

(2.) Col. Shyam Kumar (respondent No. L.P.A. 172(81) was granted Commission by the President of India initially in the Sikh Regiment in the year 1954 and being a volunteer for Parachute Regiment was transferred to that Regiment in the year 1955. In due course, he was selected and promoted in various ranks from 2nd Lt. to Col. A Selection Board was constituted in May, 1976 under the orders of the Chief of the Army Staff (for short called the COAS) for assessment of officers for promotion to Col. and above. The case of Col. Kumar was also considered along with others. The Selection Board examined the record of service of the eligible officers including Col. Kumar and assessed Col. Kumar to Grade 'B' (fit for promotion in his turn to the next higher rank). This was later converted to grading 'R' (unfit for promotion to the next rank at present). Col. Kumar's name was not included in the list of promotees and as such he made a representation to the COAS. Col. Kumar was informed that COAS after examination was satisfied that the grading 'R' (unfit for promotion to the next rank at present) awarded to the officer was a result of the consideration of his case by No. 2 Selection Board in May, 1976 was correct and consistent with his record. The allegations of Col. Kumar are that the COAS has no authority, power, competence or jurisdiction to change the recommendations of the Selection Board and the change made by the COAS was in an arbitrary manner. The case of Col. Kumar was again considered by two subsequent Selection Boards in the years 1977 and 1979 and both the Selection Boards assessed his merit as Grade 'R'. After he had exhausted the remedy of a representation to the COAS and the statutory complaint under Section 27 of the Army Act, 1950 (hereinafter called the Act), Col. Kumar filed a petition in this Court under Article 226 of the Constitution of India. The relief claimed was for the issue of a writ 'a the nature of certiorari to quash the orders withholding Col. Kumar's promotion to the rank: of Brig. by converting Grade 'B' to Grade 'R' and also for the issue of a writ in the nature of mandamus directing promotion to the rank of Brig. from 1976 as recommended by the Selection Board No. 2 by awarding Grade 'B' with all retrospective benefits.

(3.) Major Surinder Nath Bakshi (respondent in L.P.A. 134181) was also granted Commission by the President of India in the Indian Army. He was selected and promoted in due course to the rank of Major. He was considered for promotion to the rank of Lt. Col. for the first time in the year 1972. The Selection Board No. 3 assessed the merit of major Bakshi as Grade 'B'. The COAS changed his gradation to 'R'. The Selection Board No. 3 thereafter assessed Major Bakshi in September, 1975 and again in September. 1976 and graded him as 'R' on both the selections. Major Bakshi filed a representation to the COAS and statutory complaint under Section 27 of the Act and after rejection. moved this Court for similar reliefs.