Holding

The Supreme Court held that the selection board's decision on promotion to Colonel is not subject to judicial review on merits and the High Court erred in interfering.

Summary

Lt. Colonel Surinder Shukla, an Army Education Corps officer, was repeatedly considered for promotion to Colonel but was never selected. He filed statutory complaints and a writ petition alleging that his service record was superior to those of two colleagues who were promoted. The Delhi High Court dismissed his petition. On appeal, the Supreme Court examined whether the court could review the merits of a selection board's decision for a defence service promotion, whether the lack of impleading the promoted officers barred adjudication, and whether the special nature of armed forces promotions precludes application of general administrative law principles. The Court held that promotion to Colonel is a selection post involving multiple criteria, and the selection board’s decision, approved by the Chief of Army Staff, is not amenable to judicial review on merits absent any allegation of mala fide. Consequently, the appeal was dismissed.

Issues considered

Whether a court exercising jurisdiction under Article 226 can intervene in the promotion of an officer to a selection post in the armed forces.
Whether the merits of the selection board's decision can be reviewed by the judiciary.
Whether the failure to implead the officers who were promoted bars effective adjudication of the writ petition.
Whether the special requirements of defence services affect the applicability of general promotion principles.
Whether any procedural irregularity or mala fide conduct by the selection board was alleged.

Subjects

promotionarmed forcesselection boardjudicial reviewservice lawadministrative lawdefence servicesArticle 226selection postmerit

Judgment

[2008] 1 S.C.R. 449

~-+
,. SURINDER SHUKLA A
v.
.:
UNION OF INDIA
(C.A. No. 250 of 2008)
JANUARY 9, 2008
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.] .

- --(
Armed Forces:
Promotion - Appellant-Lt. Colonel, considerecffor
promotion to rank of Colonel a number of times'- Not selected c
on all such occasions ~ Complaints filed by him rejected .....
Writ petition by Appellant praying entitlement for promotion
on ground that his service record was better than that of his
colleagues superseding him - Dismissed - Justification of'--
Held: Justified - Selection board had not recommended name D
of Appellant for promotion, which was approved by. the Chief
~
of Army Staff - Court cannot exercise power of judicial;r:eview
to enter into merit of the decision - Moreover, there was no
allegation of mala fide against members of Selection Soard -
Colleagues ofAppellant who superseded him were furthermore E
not impleaded as parties in the writ petition - In their absence,
the writ petition could not have been effectively adjudicated
upon - Considerations applicable to other Government
servants in matter of promotion may not be applicable in ?Jrmy
services -Administrative Law- Judicial Review- Constitution F
+ of/ndia, 1950 -Art. 226 - Service Law.
Appellant, Lt. Colonel, was considered for promotion
to the rank of Colonel a number of times but not selected
on all such occasions. Complaihts filed by him were
rejected by the Competent authority. Appellant filed writ G
i petition contending that he should have been promoted
as he had a better service record than that of his
colleagues who superseded him. High Court dismissed
.
the writ petition. Hence the present.appeal.
449 H
450 SUPREME COURT REPORTS [2008] 1 S.C.R.

A Dismissing the appeal, the Court
HELD: 1.1. The post of 'Colonel' is a selection post.
A large number of factors are required to be taken into
consideration therefor, viz.: i) Annual Confidential Reports
profile of the officer in the relevant ranks; ii) War Reports;
8 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 and
weaknesses; vi) Appointments held by the officers
C including criteria command/staff appointments; vii)
Disciplinary background and punishments and viii)
Employability and potential including consistent
recommendations for promotion to the next higher rank.
[Para 9] [454-E, F, G, H; 455-A, B]
D
1.2. Considering the comparative batch merit, if the
selection board did not recommend the name of the
appellant for promotion to the rank of Colonel which
appears to have been approved by the Chief of Army Staff,
E it is not for the court exercising power of judicial review
to enter into the merit of the decision. The selection board
was constituted by senior officers presided over by an
officer of the rank of Lt. General. [Para 10] [455-B, C]
1.3. Appellant moreover did not allege any mala fide
F against the members of the Selection Board. What
impelled the selection board not to recommend his case ~
but the names of other two officers is not known.
[Para 10) [455-D, E]
1.4. The colleagues of Appellant who superseded
G him were furthermore not impleaded as parties in the writ
petition. In their absence, the writ petition could not have
been effectively adjudicated upon. [Para 11] [455-E, F]
Union of India and Ors. v Lt. Gen. Rajendra Singh Kadyan
H and Anr (2000) 5 SCALE 327 and Amrik Singh v Union of
SURINDER SHUKLA v. UNION OF INDIA 451
[S.B. SINHA, J]
r-+ India and Ors. (2001) 10 sec 424 - relied on. A
2. The peculiarities of special requirements of
defence services in a case of this nature must also be
kept in view. The considerations which apply to other
Government servants in the matter of promotion may not
be held to be applicable in the army services. [Para 14] B
[456-C]
~
~
Lt. Col. K.D. Gupta v. Union of India and others, AIR 1989
sc 1393 : 1989 Supp (1) sec 416)- relied on.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 250 c
of 2008.
From the final Judgment and Order dated 11.1 ;2007 of
the High Court of Delhi at New Delhi, in C.W.P. No. 3639/2005.
Surinder Shukla, Appellant-In-Person. D
Kiran Bhardwaj and B.K. Prasad (for D.S. Mehra) for the
...i Respondents .
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted. E

2. Appellant herein was granted commission in Army
Education Core. He at the material time was holding the post of
Lt. Colonel. He was considered for promotion to the post of
Colonel but was not selected. He filed a non-statutory complaint
F
j. Which was rejected by the competent authority by an order dated
10.11.1997. First review for promotion was conducted in
December, 1998 but he was again not promoted. His statutory
complaint was rejected summarily.
Yet again in December, 2000, his case was considered G
for promotion but he was not found fit therefor. He thereafter
~
filed a number of statutory complaints. By an order dated
6.07.2004, his statutory complaint dated 16.02.2004 was
rejected, stating:
"Statutory Complaint dated 16 Feb 2004 against non- H
452 SUPREME COURT REPORTS [2008] 1 S.C.R.

A empanelment for promotion submitted by IC-30957 N Lt. +- ....
Col. Surender Shukla, AEC has been perused alongwith "'
other relevant document regarding his complaints available ~
at this HQ. It is observed that the instant complaint is the
second one against the same SBs without any fresh facts
B meriting reconsideration of the case. Further, the order
dated 17 Jul 2003 of the Hon'ble High Court of MP in WP
No. 2229 of 2003 of Brig. J.K. Nagpal Vs. Union of India )..
and ors., quoted by the officer in his complaint as fresh
facts is not applicable in the officer's case, as per legal
c opinion obtained by this HQ.

3. In view of the above, the Statutory Complaint dated 16
Feb 2004 is declared untenable and will nofbe acted
upon at this HQ. The officer may please to inform
accordingly."
D
3. Aggrieved by and dissatisfied with the said order, he
filed a writ petition before the Delhi High Court which by reason
of the impugned judgment has been dismissed.

4. A Bench of this Court noticing the following averments
E made in the writ petition of the appellant, directed issuance of
notice:
"G. Because the career profile of the Petitioner is
unblemished and better than that of his colleagues who
superseded the Petitioner. Two of such officers are:-
F
Name Service No. -\
Col. A.P.S. Panwar IC30661-P
(one above the petitioner)

Col. V.K. Sinha IC30972-H
G
(one below the petitioner)
Hence it is submitted that the comparative study of
the Career Profiles of these officers with that of the
petitioner can be of much help for deciding the present
H Writ Petition."
SURINDER SHUKLA v. UNION OF INDIA 453
[S.B. SINHA, J]
_,
·'I • -+ 5. The Union of India in its counter-affidavit inter alia A
"'1.
contended:
"2. The assessment of officers in ACR was regulated by
SAO 3/S/89 (which has now been replaced by Army Order
45/2001) and other relevant policies at any given time.
The gradings are numerical from 1 to 9 (overall as well as B
in personal qualities and performance variables in different

" qualities) and in the form of pen picture also. The entire
assessment of an officer in any ACR consists of
assessment of three different reporting officers whose
assessments are independent of each other. c
3. While considering an officer for promotion to a selection
rank the Selection Board takes into consideration a number
of factors such as war/ operational reports, course reports,
ACR performance in command and staff appointments,
D
honors and awards, disciplinary background, and not only
the ACR or one/ few ACRs etc. Selection/ rejection is
based upon 'the overall profile of an officer and comparative
merit within the Batch as evaluated by Selection Board.
The petitioner did not make the grade based on his overall
profile as evaluated by the Selection Board. It was upto E
the Selection Boards to a&sess the suitability of the
petitioner for promotion to the rank of Col. .. "
It was further averred:
"4. In the instant case the petitioner was considered for F
.1- promotion from the rank of Lt Col to the rank of Col by No
3 Selection Board as follows:-
Look Year Result
(i) Fresh Case Jun 97 'Z' Non-empanelled G
•-y (ii) First Review Dec 97 Withdrawn
(iii)· Final Review Jun 98 Withdrawn
(iv) First Review Dec 98 'Z' Non-empanelled
(v) Final Review Dec 2000 -do-" H
454 SUPREME COURT REPORTS [2008] 1 S.C.R.

A 6. Appellant appearing in person inter alia submitted that ._ ~ •
\.'
his service records being better than that of his batchmates,
viz., Col. A.P.S. Panwar and Col. V.K: Sinha, he shou"ld have
been promoted.
7. Before us, the Union of India has placed the service
B records of the said three officers. We have gone through them.

8. Although service records of the appellant appears to be
better than those of Col. A.P.S. Panwar and Col. V.K. Sinha, the •
question which arises for consideration is as to whether the High
c Court could have exercised its discretionary jurisdiction under
Article 226 of the Constitution of India for granting the relief(s) I=
prayed for by him.
We may notice that before the High Court another
contention by the appellant was raised, viz., that adverse
D remarks, if any, were not communicated to him. The High Court
opined that merely because he was not selected to the post,
the same did not mean that he had been downgraded. _...
We have, however, noticed hereinbefore that the notice
was issued by this Court on limited ground.
E
9. The post of 'Colonel' is a selection post. A large number
of factors are required to be taken into consideration therefor,
viz.:
(i) Annual Confidential Reports profile of the officer in
F the relevant ranks.
~
(ii) War Reports
(iii) Battle Awards and Honours earned by the officers
during his service.
G
(iv) Professional courses done by the officer, his
y•
performance during the course and grading obtained
therein.
(v) Special Achievements and weaknesses. •
H
SURINDER SHUKLA v. UNION OF INDIA 455
llili.
[S.B. SINHA, J]

• -l (vi) Appointments held by the officers including criteria A
command/ staff appointments.
(vii) Disciplinary background and punishments.
(viii) Employability and potential including consistent
recommendations for promotion to the next higher B
rank.
--\ 10. Considering the comparative batch merit, if the
... selection board did not recommend the name of the appellant
for promotion to the rank of Colonel which appears to have been
approved by the Chief of Army Staff, it is not for the court c
exercising power of judicial review to enter into the. merit
. of the
decision. The selection board was constituted by senior officers
presided over by an officer of the rank of Lt. General. It has
been contended before us that the selection board was not even
aware of the identity of the candidates considered by them D
because only in the Member Data Sheet all the informations of
the candidates required to be considered by the selection board
are stated, but the identity of the officers is not disclosed.
Appellant moreover did not allege any mala fide against
the members of the Selection Board. What impelled the selection E
board not to recommend his case but the names of other two
;. officers is not known.
11. The said Col. A.P.S. Panwar and Col. V.K. Sinha were
furthermore not impleaded as parties in the writ petition. In their F
absence, the writ petition could not have been effectively
adjudicated upon.
12. In Union of India and Others v. Lt. Gen. Rajendra Singh
Kadyan and Another [2000 (5) SCALE 327.: (2000) 6 SCC
698], it was held: G

"... 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
H
456 SUPREME COURT REPORTS [2008] 1 S.C.R. ...
A ignored and the administrative decisions have nexus with
the facts on record, the same cannot be attacked on merits.
Judicial review is permissible only to the extent of finding
whether the process in reaching decision has been
observed correctly and not the decision as such. In that
B view of the matter, we think there is no justification for the
High Court to have interfered with the order made by the
Government."
13. The said views have been reiterated in Amrik Singh v. ....
Union of India and Others [(2001) 10 SCC 424] .
c
14. The peculiarities of special requirements of defence
services in a case of this nature must also be kept in view. The
considerations which apply to other government servants in the
matter of promotion may not be held to be applicable in the
army services. [See Lt. Col. K. D. Gupta v. Union of India and
0
others, AIR 1989 SC 1393: 1989 Supp (1) SCC 416]
15. For the reasons aforementioned, there is no merit in
this appeal which is dismissed accordingly. In the facts and -..,
circumstances of this case, however, there shall be no order as
E to costs.
B.B.B. Appeal dismissed.