Does the right to be considered for promotion under Article 16 of the Indian Constitution include the right for promotion?

Falgu Mukati | Pravin Gandhi College of Law | 18th February 2020

Brig. Nalin Kumar Bhatia vs Union of India and Ors, Civil Appeal No. 5751 of 2017

Matter 

 Nalin Kumar Bhatia was transferred from Mechanised Infantry of Indian Army to Corps of Intelligence and subsequently promoted as a Brigadier. His empanelment for promotion to the rank of Major General was placed before the Selection Board. However, the proposal to select him as Major General was rejected. He was declared as having not been empanelled for promotion to the rank of Major General. Being aggrieved by his non-empanelment, he filed Original Application in the Armed Forces Tribunal.  

Appellant’s Contention 

• It was alleged that the he (i.e. appellant) has an excellent record of service, and since he was the only eligible candidate to be considered for the promotion for the post of Major General, he should have been rejected. 
• The Respondents had arbitrarily used its powers, and acted against him. 
• The Respondents had arbitrarily compared his service profile with the batch of 1980, whereas the appellant belonged to the 1981 batch. 
• It alleged that during the time for considering him for the empanelment for the post of Major General the guidelines dated 06/05/1997 were not followed. 
• The non-empanelment of the appellant by the respondent was vitiated by a malice in law. 
• It was stated that his non-empanelment to the rank of Major General is arbitrary and violative of the instructions issued in terms of the promotion policy of the Respondents and hence contrary to Articles 14 and 16 of the Constitution of India.

Respondent’s Contention 

• The empanelment of the officers for promotion to higher ranks is done in accordance with the strict guidelines issued by the Army Headquarters dated 06/05/1997. 
• It submitted that the Selection Committee takes into account various factors such as War/ Operational Reports, Course Reports, Annual Confidential Reports’, performance in Command and Staff appointments, honours and awards and disciplinary background.
• The selection of a candidate is done on the basis of overall reckonable profile of an officer in comparative merit within the batch as evaluated by the Selection Board. 
• The empanelment of the appellant to the post of the Major General was considered by the First Board and subsequently by the Review Board. The procedure prescribed by the Army Headquarters was followed. The Selection Board consisted of various senior members who reviewed the profile of the appellant and found him not fit for the post. 
• It submitted that no right to promotion inheres in any person, and that the only right that is conferred by Articles 14 and 16 of the Constitution of India is the right to be considered.
• The Appellant was found not fit for promotion on a fair evaluation of his suitability and employability in rank of Major General. 

Held 

• The non-empanelment of the Appellant for promotion as Major General is contrary to the promotion policy.  He is entitled for reconsideration for empanelment by a Review Selection Board strictly in accordance with the promotion policy by keeping in mind the observations in this judgment. The Respondents are directed to complete this exercise within a period of six months from today.  
• The judgment of the Tribunal is set aside and the Appeal is allowed.