Full Judgment Text
2025 INSC 750
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4653 OF 2018
Lt. Col NK Ghai (Retd.) … Appellant
versus
Union of India and Another … Respondents
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL MATRIX
The appellant has taken an exception to the Judgment
1.
nd
and Order dated 02 November, 2017 of the Armed Forces
Tribunal, Principal Bench at New Delhi (for short ‘the
Tribunal’).
th
2. On 14 March, 1978, the appellant was commissioned
th
into the Territorial Army. On 14 March, 1991, he was
st
promoted to Time Scale Major. With effect from 21 March,
1996, he was promoted to Selection Grade Lieutenant
Colonel. He was considered by the Selection Board for
promotion on five occasions between 2000 to 2003, but was
not empanelled.
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.21
16:41:51 IST
Reason:
Civil Appeal No. 4653 of 2018 Page 1 of 8
3. The appellant filed several statutory and non-statutory
complaints. The first non-statutory complaint was against
the Annual Confidential Report (for short ‘ACR’) of 1998,
where redress was granted by GOC-in-C, Northern
Command. Non-statutory complaint against non-
empanelment for promotion to the post of Colonel in July,
2000 was treated as null and void. Statutory complaint
against non-empanelment for promotion to the rank of
Colonel in January, 2000 was rejected. A non-statutory
complaint against ACR of October, 2000 was pending when
the impugned Judgment was delivered. A non-statutory
complaint filed by the appellant against non-empanelment for
promotion to the rank of Colonel in December 2002 was
rejected.
Earlier, the appellant filed a writ petition before the
4.
Delhi High Court, which was disposed of by an order dated
20th February, 2006, where the respondent was directed to
dispose of the statutory complaint made by the appellant by
th
a reasoned order. Accordingly, on 28 April, 2006, the
statutory complaint was rejected by a detailed speaking
order. Being aggrieved by the said order, the appellant filed
Writ Petition (C) No. 8370 of 2006, which was later
transferred to the Tribunal. There were diverse prayers made
in the petition. The prayers are as under:
“(a) To promote the petitioner on
completion of 22 years of meritorious
Commissioned service with effect from
Civil Appeal No. 4653 of 2018 Page 2 of 8
14.03.2000 as substantive Colonel by
accepting statutory complaints dated
18.01.2002 and 07.12.2002 and as
substantive Brigadier with effect from
14.03.2003 with consequential
benefits including by treating in
continuous service with pay and
allowances.
(b) To accept TA Group Headquarter,
Western Command letter dated
20.01.2003 clarifying that the
petitioner was entitled to annual
confidential report 2000 - 2001 from
the Initiating officer on 30 days
embodiment (and not from the
reviewing and initiating officer) and
due to the inadequate knowledge
and/or non communication of same, it
has to be treated as invalid.
(c) To accept petitioner's non statutory
complaint dated 25.10.2002 against
premature annual confidential report
2002 - 2003 initiated/ forwarded on
25.08.2002.
(d) To set aside/clarify that Reproof
dated 24.06.1999 being contrary to
paras 317 and 820 of Defence Service
Regulation is invalid against which
statutory complaint dated 18.01.2002
was filed.
(e) To lay down promotion criteria for
selection grade Colonel /Brigadier
including threshold limit, mainly as for
Civil Appeal No. 4653 of 2018 Page 3 of 8
Time Scale Promotions to Colonel/
Brigadier in Regular Army (being
suitable for non unit command
functions of Regular Army and for
same reasons in non command TA,
with suitable weightage for TA
decoration; but no weightage for non
compulsory course.
(f) To not to grant commission in
Territorial Army, those already
Reservists of Regular Army upto
normal date of retirement and those
who are key appointment holders and
to decommission when they become so
or fail to attend for 75 % of the training
days.
(g) To conduct an high level enquiry to
bring out how respondent 2 was re-
commissioned, was shown on training,
his annual confidential reports
initiated and entered/waived and how
he was promoted.
(h) To promote the petitioner through
SMRB with effect from 16.12.2004 if
the Court does not deem fit to pass an
order as at (i) above.”
5. The transferred writ petition was contested before the
Tribunal. By impugned Judgment dated 02nd November,
2017, the Tribunal found no error with the act of not placing
the appellant in an acceptable grade for promotion to the
rank of Colonel.
Civil Appeal No. 4653 of 2018 Page 4 of 8
SUBMISSIONS
6. We have heard the appellant appearing in person. The
appellant has invited our attention to various documents on
record. He submitted that he has been victimized and denied
promotion to the post of Colonel. He pointed out several facts
leading to the filing of the present petition. The appellant,
appearing in person, submitted that all along, his ACRs have
been above average or near excellent. He relied on the
Territorial Army Regulations, 1948 (hereafter referred to as
the ‘TA Regulations’), which dealt with the promotion of
Territorial Army officers. He pointed out that as per Clause
(c) of Paragraph 38 of TA Regulations, Territorial Army
officers will be eligible for promotion by selection to the
substantive rank of Colonel against specific vacancies after
completion of 22 years of service.
The appellant appearing in person pointed out that the
7.
No. 3 Selection Board meeting was held in June 2000.
However, the appellant's case for promotion was rejected. He
made a statutory complaint against the same. His
submission is that the Army Headquarters replied that the
result of the No. 3 Selection Board has been nullified for
certain reasons. The submission of the appellant appearing
in person is that a favour was done to respondent No. 2 while
granting promotion. He, therefore, submitted that the case of
the appellant for promotion must be reconsidered.
Civil Appeal No. 4653 of 2018 Page 5 of 8
8. Learned Additional Solicitor General (ASG) appearing
for the respondents referred to Paragraph 108 (d) of Defence
Services Regulations for the Army, 1987 (for short ‘DSR’),
which provides that the competent authority may differ from
the recommendations of the Selection Board. She pointed out
that respondent No. 2 was not recommended for promotion
by the No. 3 Selection Board (Colonel Rank) held in June
2001. However, in terms of Paragraph 108 of DSR, the
competent authority empanelled respondent No. 2. She
pointed out that as provided in Paragraph 108 (d) of DSR,
the assessment of Selection Board is recommendatory in
nature and becomes binding only after it is approved by the
competent authority i.e. Chief of Army Staff (for short
‘COAS’). Moreover, clause (e) of Paragraph 108 of DSR
provides that the Central Government or the COAS has the
inherent power to modify, review, approve with variations, or
repeal the recommendations of the Selection Boards. Learned
ASG pointed out that the consideration of the case of
respondent No.2 was in terms of the policy.
9. Learned ASG produced for perusal of the Court in a
sealed envelope, the proceedings of No. 3 Selection Board of
July 2000, June 2001, December 2001, June 2002 and
February 2003. The proceedings have been kept in a sealed
cover. The gradings to be awarded for promotion to the
selective ranks are A, B, Z, D and W. ‘Z’ is unfit for promotion
to the next higher rank at present. She pointed out that in all
five proceedings, the gradation of the appellant was ‘Z’.
Civil Appeal No. 4653 of 2018 Page 6 of 8
CONSIDERATION
10. We have considered the arguments and perused the
documents on record. We find from the confidential
proceedings of the No. 3 Selection Board that an elaborate
selection process was conducted. In the proceedings of No. 3
Selection Board in July 2000, it is recorded that the
appellant’s case was considered along with respondent No. 2
and Lt. Colonel A. Singh. The name of respondent No. 2 was
deferred. In the June 2001 process, there were three
candidates, including the appellant, respondent No. 2, and
Col. N.K.V. Narayanan. Grading ‘B’ was given to respondent
No. 2 and Col. N. K. V. Narayanan, which means they were
found fit for promotion to the next higher rank. However, the
appellant was given grading ‘Z’ and therefore, the appellant
was not eligible. Even in the subsequent process of
December, 2001, the appellant was given grading ‘Z’ and
hence, he was held to be ineligible. Similarly, we find from the
proceedings of No. 3 Selection Board held in June 2002 and
February 2003 that the appellant was given grading ‘Z’.
11. Now, coming to the No.3 Selection Board of June, 2001,
it is mentioned in the record that grading of ‘Z’ was given to
respondent No. 2. The grading of respondent No. 2 has been
altered by the COAS by converting ‘Z’ into ‘B’. According to
the DSR, the final authority for granting promotions is the
COAS. We find that in the case of respondent No. 2, the
COAS reconsidered his case. However, that was not done in
Civil Appeal No. 4653 of 2018 Page 7 of 8
the case of the appellant. In our view, as the COAS has
reconsidered the case of respondent No. 2, the case of the
appellant for upgradation ought to have been considered.
12. Hence, we direct reconsideration of the grading given to
the appellant in the selection process of June 2001. No other
modification can be made to the impugned Judgment. We
direct that in the selection process of June 2001, the case of
the appellant for upgradation from category ‘Z’ shall be
considered by the COAS. An appropriate decision shall be
taken within a period of three months from today.
13. Subject to the modification made above, the impugned
Judgment is confirmed. Needless to add that if, ultimately,
grading ‘Z’ is upgraded, the case of the appellant for grant of
notional promotion shall be considered along with
consequential benefits.
14. Ordered accordingly. Appeal is partly allowed on the
above terms.
..…………………...J.
(Abhay S. Oka)
..…………………...J.
(Ujjal Bhuyan)
New Delhi;
May 21, 2025.
Civil Appeal No. 4653 of 2018 Page 8 of 8
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4653 OF 2018
Lt. Col NK Ghai (Retd.) … Appellant
versus
Union of India and Another … Respondents
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL MATRIX
The appellant has taken an exception to the Judgment
1.
nd
and Order dated 02 November, 2017 of the Armed Forces
Tribunal, Principal Bench at New Delhi (for short ‘the
Tribunal’).
th
2. On 14 March, 1978, the appellant was commissioned
th
into the Territorial Army. On 14 March, 1991, he was
st
promoted to Time Scale Major. With effect from 21 March,
1996, he was promoted to Selection Grade Lieutenant
Colonel. He was considered by the Selection Board for
promotion on five occasions between 2000 to 2003, but was
not empanelled.
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.21
16:41:51 IST
Reason:
Civil Appeal No. 4653 of 2018 Page 1 of 8
3. The appellant filed several statutory and non-statutory
complaints. The first non-statutory complaint was against
the Annual Confidential Report (for short ‘ACR’) of 1998,
where redress was granted by GOC-in-C, Northern
Command. Non-statutory complaint against non-
empanelment for promotion to the post of Colonel in July,
2000 was treated as null and void. Statutory complaint
against non-empanelment for promotion to the rank of
Colonel in January, 2000 was rejected. A non-statutory
complaint against ACR of October, 2000 was pending when
the impugned Judgment was delivered. A non-statutory
complaint filed by the appellant against non-empanelment for
promotion to the rank of Colonel in December 2002 was
rejected.
Earlier, the appellant filed a writ petition before the
4.
Delhi High Court, which was disposed of by an order dated
20th February, 2006, where the respondent was directed to
dispose of the statutory complaint made by the appellant by
th
a reasoned order. Accordingly, on 28 April, 2006, the
statutory complaint was rejected by a detailed speaking
order. Being aggrieved by the said order, the appellant filed
Writ Petition (C) No. 8370 of 2006, which was later
transferred to the Tribunal. There were diverse prayers made
in the petition. The prayers are as under:
“(a) To promote the petitioner on
completion of 22 years of meritorious
Commissioned service with effect from
Civil Appeal No. 4653 of 2018 Page 2 of 8
14.03.2000 as substantive Colonel by
accepting statutory complaints dated
18.01.2002 and 07.12.2002 and as
substantive Brigadier with effect from
14.03.2003 with consequential
benefits including by treating in
continuous service with pay and
allowances.
(b) To accept TA Group Headquarter,
Western Command letter dated
20.01.2003 clarifying that the
petitioner was entitled to annual
confidential report 2000 - 2001 from
the Initiating officer on 30 days
embodiment (and not from the
reviewing and initiating officer) and
due to the inadequate knowledge
and/or non communication of same, it
has to be treated as invalid.
(c) To accept petitioner's non statutory
complaint dated 25.10.2002 against
premature annual confidential report
2002 - 2003 initiated/ forwarded on
25.08.2002.
(d) To set aside/clarify that Reproof
dated 24.06.1999 being contrary to
paras 317 and 820 of Defence Service
Regulation is invalid against which
statutory complaint dated 18.01.2002
was filed.
(e) To lay down promotion criteria for
selection grade Colonel /Brigadier
including threshold limit, mainly as for
Civil Appeal No. 4653 of 2018 Page 3 of 8
Time Scale Promotions to Colonel/
Brigadier in Regular Army (being
suitable for non unit command
functions of Regular Army and for
same reasons in non command TA,
with suitable weightage for TA
decoration; but no weightage for non
compulsory course.
(f) To not to grant commission in
Territorial Army, those already
Reservists of Regular Army upto
normal date of retirement and those
who are key appointment holders and
to decommission when they become so
or fail to attend for 75 % of the training
days.
(g) To conduct an high level enquiry to
bring out how respondent 2 was re-
commissioned, was shown on training,
his annual confidential reports
initiated and entered/waived and how
he was promoted.
(h) To promote the petitioner through
SMRB with effect from 16.12.2004 if
the Court does not deem fit to pass an
order as at (i) above.”
5. The transferred writ petition was contested before the
Tribunal. By impugned Judgment dated 02nd November,
2017, the Tribunal found no error with the act of not placing
the appellant in an acceptable grade for promotion to the
rank of Colonel.
Civil Appeal No. 4653 of 2018 Page 4 of 8
SUBMISSIONS
6. We have heard the appellant appearing in person. The
appellant has invited our attention to various documents on
record. He submitted that he has been victimized and denied
promotion to the post of Colonel. He pointed out several facts
leading to the filing of the present petition. The appellant,
appearing in person, submitted that all along, his ACRs have
been above average or near excellent. He relied on the
Territorial Army Regulations, 1948 (hereafter referred to as
the ‘TA Regulations’), which dealt with the promotion of
Territorial Army officers. He pointed out that as per Clause
(c) of Paragraph 38 of TA Regulations, Territorial Army
officers will be eligible for promotion by selection to the
substantive rank of Colonel against specific vacancies after
completion of 22 years of service.
The appellant appearing in person pointed out that the
7.
No. 3 Selection Board meeting was held in June 2000.
However, the appellant's case for promotion was rejected. He
made a statutory complaint against the same. His
submission is that the Army Headquarters replied that the
result of the No. 3 Selection Board has been nullified for
certain reasons. The submission of the appellant appearing
in person is that a favour was done to respondent No. 2 while
granting promotion. He, therefore, submitted that the case of
the appellant for promotion must be reconsidered.
Civil Appeal No. 4653 of 2018 Page 5 of 8
8. Learned Additional Solicitor General (ASG) appearing
for the respondents referred to Paragraph 108 (d) of Defence
Services Regulations for the Army, 1987 (for short ‘DSR’),
which provides that the competent authority may differ from
the recommendations of the Selection Board. She pointed out
that respondent No. 2 was not recommended for promotion
by the No. 3 Selection Board (Colonel Rank) held in June
2001. However, in terms of Paragraph 108 of DSR, the
competent authority empanelled respondent No. 2. She
pointed out that as provided in Paragraph 108 (d) of DSR,
the assessment of Selection Board is recommendatory in
nature and becomes binding only after it is approved by the
competent authority i.e. Chief of Army Staff (for short
‘COAS’). Moreover, clause (e) of Paragraph 108 of DSR
provides that the Central Government or the COAS has the
inherent power to modify, review, approve with variations, or
repeal the recommendations of the Selection Boards. Learned
ASG pointed out that the consideration of the case of
respondent No.2 was in terms of the policy.
9. Learned ASG produced for perusal of the Court in a
sealed envelope, the proceedings of No. 3 Selection Board of
July 2000, June 2001, December 2001, June 2002 and
February 2003. The proceedings have been kept in a sealed
cover. The gradings to be awarded for promotion to the
selective ranks are A, B, Z, D and W. ‘Z’ is unfit for promotion
to the next higher rank at present. She pointed out that in all
five proceedings, the gradation of the appellant was ‘Z’.
Civil Appeal No. 4653 of 2018 Page 6 of 8
CONSIDERATION
10. We have considered the arguments and perused the
documents on record. We find from the confidential
proceedings of the No. 3 Selection Board that an elaborate
selection process was conducted. In the proceedings of No. 3
Selection Board in July 2000, it is recorded that the
appellant’s case was considered along with respondent No. 2
and Lt. Colonel A. Singh. The name of respondent No. 2 was
deferred. In the June 2001 process, there were three
candidates, including the appellant, respondent No. 2, and
Col. N.K.V. Narayanan. Grading ‘B’ was given to respondent
No. 2 and Col. N. K. V. Narayanan, which means they were
found fit for promotion to the next higher rank. However, the
appellant was given grading ‘Z’ and therefore, the appellant
was not eligible. Even in the subsequent process of
December, 2001, the appellant was given grading ‘Z’ and
hence, he was held to be ineligible. Similarly, we find from the
proceedings of No. 3 Selection Board held in June 2002 and
February 2003 that the appellant was given grading ‘Z’.
11. Now, coming to the No.3 Selection Board of June, 2001,
it is mentioned in the record that grading of ‘Z’ was given to
respondent No. 2. The grading of respondent No. 2 has been
altered by the COAS by converting ‘Z’ into ‘B’. According to
the DSR, the final authority for granting promotions is the
COAS. We find that in the case of respondent No. 2, the
COAS reconsidered his case. However, that was not done in
Civil Appeal No. 4653 of 2018 Page 7 of 8
the case of the appellant. In our view, as the COAS has
reconsidered the case of respondent No. 2, the case of the
appellant for upgradation ought to have been considered.
12. Hence, we direct reconsideration of the grading given to
the appellant in the selection process of June 2001. No other
modification can be made to the impugned Judgment. We
direct that in the selection process of June 2001, the case of
the appellant for upgradation from category ‘Z’ shall be
considered by the COAS. An appropriate decision shall be
taken within a period of three months from today.
13. Subject to the modification made above, the impugned
Judgment is confirmed. Needless to add that if, ultimately,
grading ‘Z’ is upgraded, the case of the appellant for grant of
notional promotion shall be considered along with
consequential benefits.
14. Ordered accordingly. Appeal is partly allowed on the
above terms.
..…………………...J.
(Abhay S. Oka)
..…………………...J.
(Ujjal Bhuyan)
New Delhi;
May 21, 2025.
Civil Appeal No. 4653 of 2018 Page 8 of 8