ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

O.A.NO. 106 of 2016

TUESDAY, THE 10TH DAY OF JANUARY, 2017/20TH POUSHA, 1938 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)

APPLICANT:

IC – 35284 N, MAJ GEN VIKAS JOSHI (RETD), S/O SHRI SP JOSHI, AGED 58 YEARS, G-21/1001 SANDEEP VIHAR AWHO, KANNAMANGALA, WHITEFIELD, BANGALORE, KARNATAKA – 560 067.

BY ADVS.M/S T.R.JAGADEESH & COL. S.VIJAYAN

VERSUS

RESPONDENTS:

1. UNION OF , THROUGH THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI – 110 011.

2. THE CHIEF OF ARMY STAFF, INTEGRATED HQ OF MOD (ARMY) DHQ PO, NEW DELHI – 110 011.

3. MILITARY SECRETARY, INTEGRATED HQ OF MOD (ARMY), DHQ P.O., NEW DELHI – 110 011.

4. LT GEN JOHN GEORGE A, VSM, COMMANDANT SCHOOL OF ARTILLERY, DEVLALI MAHARASHTRA – 422401.

BY ADV. SRI. C.B.SREEKUMAR, SENIOR PANEL COUNSEL COL. AJEEN KUMAR APPEARED. OA No 106 of 2016 : 2 :

O R D E R

VAdm.M.P.Muralidharan, Member (A):

1. The Original Application has been filed by

General Vikas Joshi, No.35284 (Retd) aggrieved at his non- empanelment to the rank of .

2. This is the second round of litigation by the applicant who had earlier filed OA.No.156 of 2015 on the same issue. This Tribunal observing that the applicant had not exhausted the statutory remedies available to him, had vide orders dated 16 November 2015 (Annexure A11) directed the applicant to prefer a statutory complaint and the respondents to take a decision on it within a period of three months. The statutory complaint preferred by the applicant had been examined and rejected by the respondents (Annexure A13) and hence this Original

Application. OA No 106 of 2016 : 3 :

3. Col S.Vijayan, the learned counsel for the applicant submitted that the applicant had been commissioned into the Regiment of Artillery of Army on 10 June 1978. The applicant was promoted to the rank of in May

2011 with effect from 09 May 2010. The applicant has served in various coveted and sensitive appointments in his career and the last appointment held by him was that of

Commandant, Selection Centre South, Bangalore. The learned counsel submitted that the respondents had modified the policy of promotions from January 2009 to that of quantification model, under which apart from other criteria, value judgment marks awarded by Members of the

Selection Board were also taken into account. It was further revised by a policy letter promulgated by MS Branch in January 2011 (Annexure A2). The learned counsel submitted that the applicant as well as Respondent No.4

(Lt Gen John George A) were promoted to the rank of Major OA No 106 of 2016 : 4 :

General in their respective batches. It was further submitted that in accordance with the existing policy on promotion to the rank of , officers belonging to the Regiment of

Artillery, can either opt for promotion in the general cadre or remain in regimental vacancies. The applicant and

Respondent No.4 were promoted in the regimental cadre.

There were earmarked vacancies in staff appointments in the rank of Lt General for officers who did not opt for general cadre. Promotion Board is held for an entire batch for selection to such vacancies which are called as Non-

General Cadre Staff Stream (NGCSS). An officer in the rank of Major General (Non General Cadre Stream) is considered for promotion to the rank of Lt General in the NGCSS along with officers of other Arms and Services. Further, an officer in the NGCSS even if holding the rank of Lt

General is also required to be considered for empanelment in his own /Regiment along with other eligible Major

Generals. OA No 106 of 2016 : 5 :

4. Respondent No.4 who is from 1977 batch, as considered with his batch for promotion to the rank of Lt

General in the NGCSS as well as against regimental vacancy, but was not empanelled. He was therefore reconsidered as a first review case along with 1978 batch, ie the batch of the applicant, was empanelled and promoted to the rank of Lt General. He was later considered for the

Corps/Regimental stream vacancy of Lt General along with the applicant by a Special Selection Board (SSB) held in

April 2015 (Annexure A3) for one vacancy in the Regiment of Artillery.

5. The learned counsel for the applicant further submitted that on completion of the SSB, the applicant learnt from reliable sources that he was recommended for empanelment and as per policy in vogue, Respondent No.4 may also have been deemed empanelled as he was already OA No 106 of 2016 : 6 :

holding the rank of Lt General. While the results of all other

SSBs were de-classified by the third week of August 2015, eventhough a vacancy was arising in the Regiment of

Artillery on 01 September 2015, the results for Artillery were not de-classified. The learned counsel also submitted that the applicant firmly believes that the result of SSB (Artillery) was delayed and manipulated to benefit some officers. The results of the SSB (Engineers) which was declared in August 2015 (Annexure A4) indicated that two officers holding rank of Lt General were empanelled to hold one vacancy in rank of Lt General in the Corps of Engineers, indicating that for officers already holding the rank of Lt

General in NGCSS, empanelment is not linked with the vacancy that exists in the Corps.

6. The applicant, apprehending that there were some moves to eliminate him from being promoted to the rank of

Lt General to benefit some others, wrote a letter to the OA No 106 of 2016 : 7 :

Chief of the Army Staff on the issue and also sought an interview with him (Annexure A5). The result of the

Selection Board for the Artillery Regimental vacancy was de-classified in September 2015 wherein Respondent No.4,

Lt Gen John George A was empanelled (Annexure A6). The learned counsel further submitted that in accordance with

Central Government (Transaction of Business) Rules, 1961 empanelment of officers to the post of Lt General requires approval of the Appointments Committee of the Cabinet

(ACC), (Annexure A7). However no such approval was taken prior to promulgation of the results of the SSB wherein Respondent No.4 was indicated as empanelled.

The applicant was informed that he had not been empanelled (Annexure A1). Based on the request made by the applicant for interview with the Chief of the Army Staff he was informed that the results of the SSB held in respect of 1978 batch of Artillery were de-classified (Annexure A8). OA No 106 of 2016 : 8 :

7. The learned counsel further submitted that the applicant again learnt through reliable sources that in the

SSB held in April 2015, the applicant's name had been recommended for empanelment to the rank of Lt Gen on relative merit. Respondent No.1 (Union of India) had changed the recommendations of the Selection Board without assigning any justifiable reasons. The applicant therefore sought another interview with the Chief of the

Amy Staff (Annexure A9) but was denied the same and was informed by the MS Branch that he could seek redressal of grievance under non-statutory/statutory complaints

(Annexure A9/2). Subsequently the applicant had filed

OA.No.156 of 2014 before this Tribunal and in compliance of the direction of the Tribunal (Annexure A11), the applicant had filed a statutory complaint (Annexure A12).

The complaint was considered and rejected by the

Respondents without responding to the issues raised by the OA No 106 of 2016 : 9 :

applicant, specifically on the grievance of the applicant that recommendation made by the SSB was overruled by the

Government.

8. The learned counsel further submitted that the

Hon'ble Apex Court in RS Mittal vs. Union of India, 1995

Supp (2) 230 had held that while a person on the select panel has no vested right to be appointed to the post for which he has been selected, he has a right to be considered for appointment and the appointing authority cannot ignore the select panel or decline to make appointment on its whims. Similarly in East Coast Railway vs. Mahadev

Appa Rao, (2010) 7 SCC 678, the Apex Court had held that candidates who were otherwise eligible for appointment were entitled to ensure that selection process was not allowed to be scuttled for malafide reasons. The learned counsel also submitted that in an identical matter pertaining to the Regiment of Artillery, the Kolkata Bench in OA No 106 of 2016 : 10 :

OA.No.85 of 2013 held that denial of promotion changing the recommendations of the Selection Board without assigning any reason is bad in law and the applicant therein had been granted relief and promoted to the rank of Major

General. Similarly the Hon'ble Apex Court in Maj Gen HM

Singh vs. Union of India & Anr, (2014) 3 SCC 670 granted promotion to the applicant therein to the rank of Lt

General, holding that reasons for rejection of the petitioner's claim was not valid and the ACC did not record any reasons to negate the merit and suitability of the petitioner.

9. The learned counsel further submitted that the

SSB is responsible for deciding comparative merit of candidates for empanelment and there are no marks either with the Ministry of Defence or the ACC and therefore no amendment to the merit can be carried out by any other agency other than the Selection Board. The learned counsel OA No 106 of 2016 : 11 :

therefore prayed that all records pertaining to the Selection

Board and its processing be scrutinised and non- empanelment of the applicant as Lt Gen be set aside.

Further, the respondents be directed to reinstate the applicant into service and promote him to the rank of Lt

Gen with all consequential benefits.

10. The respondents in their reply statement have submitted that the Army has a pyramidal structure and number of vacancies in higher ranks are limited. Therefore despite outstanding performance, Officers often miss out on promotion to higher ranks as selection is based on comparative merit. The respondents further submitted that it is upto the Selection Board to assess the suitability of an officer for promotion. However, the assessment of the

Selection Board, is recommendatory in nature and is subsequently approved by the competent authority viz.,

Chief of Army Staff or the Central Government. The OA No 106 of 2016 : 12 :

respondents also submitted that the Hon'ble Apex Court had in a number of judgments including in Union of India vs.

Lt Gen RS Kadyan, (2000) 6 SCC 698 and AVM SL

Chhabra vs. Union of India & Anr (1993) Supp 4 SCC

441 had held that Courts should not substitute the findings of Selection Boards by its own judgments.

11. The respondents further submitted that Selection

Boards are now conducted under the quantification system.

The SSB for NGCSS generally precedes the SSB for promotion to the rank of Lt Gen within the Corps Stream.

Therefore an officer who was empanelled to the rank of Lt

Gen in the NGCSS is also subsequently considered for appointment to the rank of Lt Gen in their own Corps.

Based on the overall merit as assessed by the Selection

Board, if merit of any of the Major General is above that of the Lt Gen in NGCSS, those Major Generals are considered as empanelled and the Lt Gens are also approved as deemed empanelled. In cases of deemed empanelment OA No 106 of 2016 : 13 :

even if there is only one vacancy in the Corps Stream, all the officers approved for promotion in NGCSS are also approved in the respective Corps stream. However if the merit of the Lt Gen is higher than that of the Major

Generals, only Lt General concerned is empanelled and there is no deemed empanelment for the Major Generals.

Further, in accordance with Reg 108 of Regulations for the

Army, assessment of a Selection Board is recommendatory in nature and not binding until approved by the competent authority which in the instant case is the Government.

While empanelment for making appointment to the post of

Lt General requires approval of the ACC, if an officer has already been empanelled in the rank of Lt Gen, then his subsequent appointment does not need approval of ACC.

12. The respondents also submitted that the Hon'ble

Apex Court had interpreted the powers of approving authority vis-a-vis recommendations of the Selection Boards OA No 106 of 2016 : 14 :

in Major General Lakhwinder Singh vs. Union of India

& Ors, (2008) 7 SCC 648 wherein it has been clearly held that the suggestions of the Selection Board are only recommendatory in nature and can be varied or interfered with by the appointing authority. Further, the Hon'ble Apex

Court in Union of India & Ors. vs. NP Dhamania, 1995

SCC Supp (1) 1, had specifically endorsed the power of the appointing authority and had also held that there is no need to communicate the reasons to the officer concerned, if the decision is challenged.

13. The respondents further submitted that the applicant who was from 1978 batch of the Corps of Artillery was considered by the SSB for NGCSS promotion in October

2013 as a fresh case, in April 2014 as a first review and in

September 2015 as final review case. The applicant was not empanelled in any of the three selections. He was considered as a fresh case for Corps Specific (Artillery) in OA No 106 of 2016 : 15 :

April 2015 but was once again not empanelled. Respondent

No.4, a 1977 batch officer was considered in April 2013 as a fresh case for promotion to the cadre of Lt Gen against

NGCSS vacancy as well as for Corps Specific vacancy but was not empanelled. However as a first review by the SSB in October 2015 he was empanelled to the rank of Lt

Gen under the NGCSS Stream. He was again considered as a first review by the SSB for the Corps Specific in April 2015 and based on the recommendations of SSB (Artillery), the competent authority assessed respondent No.4 fit for empanelment against the Artillery vacancy.

14. The respondents also submitted that in deference to the directives of this Tribunal in OA.No.156 of 2015, the statutory complaint preferred by the applicant against non-empanelment, was considered on merits and rejected.

The respondents further submitted that the facts differ in the cases cited by the applicant in support of his case, in OA No 106 of 2016 : 16 :

that in case of RS Mittal (supra) there existed a select panel. Therefore the applicant therein could not be denied the vacancy whereas the applicant was not empanelled in the instant case. Further in the case of East Coast

Railways (supra), the Hon'ble Apex Court has nowhere laid down that the competent approving authority cannot differ from the recommendations of the Selection Board. In case of Maj Gen HM Singh (supra) the Hon'ble Apex Court observing that the ground on which promotion was denied to the applicant therein was that he was on extended service, held that it was not a valid reason to deny him promotion.

As facts were different in the instant case, none of the decisions cited are of assistance to the applicant.

15. We have carefully considered the rival submissions and perused the records and materials, including the

Selection Board proceedings and file relating to empanelment from the Ministry of Defence. These were OA No 106 of 2016 : 17 :

placed before us by Col Ajeen Kumar of Army HQ who also assisted the learned Central Government Counsel for the respondents.

16. Essentially the applicant has contended that his non-empanelment to the rank of Lt General and rejection of his statutory complaints were unjust and arbitrary and has questioned the selection of Respondent No.4 over himself.

The main thrust of the applicant's contention is that the recommendations of the SSB were over-ruled by

Respondent No.1 and changed without assigning justifiable reasons for empanelment of Respondent No.4 at the cost of the applicant.

17. At the outset we would like to observe that proceedings of any Selection Board is classified information and only the results are de-classified after approval of the competent authority. How the applicant became aware that OA No 106 of 2016 : 18 :

he was merited No.1 by the Selection Board, which was over-ruled by the approving authority, has not clearly emerged from the proceedings. The applicant has only placed some conjectures based on briefings given to him at the Army HQ in support of his contention. Since the issue of how he became aware, is not one for consideration before us, we are not delving further into the matter but are only looking into the issue of whether the process of selection and empanelment was carried out in accordance with law.

18. At this juncture we would note that the respondents have cited a number of judgments of the

Hon'ble Apex Court to state that Courts should not substitute findings of Selection Boards with its own judgment. While we agree to the extent that the cases quoted by the respondents have held the view that judicial review should not substitute findings of Selection Boards, it OA No 106 of 2016 : 19 :

is also a settled norm that each case has to be considered on its own merit and facts. In this regard the Hon'ble Apex

Court in the case of Union of India and another v.Maj.

Bahadur Singh (2006) 1 SCC 368 has clearly held that the courts should not place reliance on decisions without discussing as to how the factual situation fits in with facts of the decision on which reliance is placed. The relevant observations of the Apex Court are given below:

“9. The courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they OA No 106 of 2016 : 20 :

do not interpret judgments . . . .

12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive......

19. Therefore, while each case has to be considered on its own facts, there is nothing like exclusion of judicial review in the matter. Reg 108 of Regulations for the Army specifies constitution and duties of Selection Boards and

Sub-paras (d) and (e) being relevant are quoted below: OA No 106 of 2016 : 21 :

“108. Constitution and Duties of Selection Boards.- Selection Boards (for officer other than Army Medical Corps, Army Dental Corps and ) are constituted as required under the order of the Chief of the Army Staff. Their composition and duties are given below:-

(a) . . . . (b) . . . . (c) . . . . .

(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 Govt 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 Boards.

20. Annexure II to the First Schedule of the

Government of India (Transaction of Business) Rules 1961 specifies empanelments requiring the approval of the

Appointments Committee of the Cabinet (Annexure A7). In

Annexure II Para 9 pertains to Armed Forces and being OA No 106 of 2016 : 22 :

relevant is re-produced below:

“9. Empanelment for making appointments to the posts of Lieutenant General in the and equivalent ranks in the , and the ; Director General of Armament Supply, Naval Armament Supply Officer (SAG) and Senior Director (Naval Stores) in Naval Head Quarter; and Additional Director General, Chief Engineer, Chief Architect and Chief Engineer (Quantity Surveying and Contract) in Military Engineer Services.”

21. The Regulations therefore specify that the assessment or selection made by the Selection Board is recommendatory in nature and is not binding until approved by the competent authority. It further clarifies that the

Central Government or Chief of the Army Staff have the inherent power to modify, review, approve with variation or repeal recommendations of the selection Boards. Further empanelment for appointments to the post of Lt OA No 106 of 2016 : 23 :

General/equivalent of the services requires approval of the

ACC.

22. As observed in the SSB held in April 2015,

Artillery had one Corps Specific vacancy, in the rank of Lt

General, and the 1978 batch, which included the applicant, were considered as Fresh Look, while Respondent No.4, who belongs to 1977 batch, was considered as a First

Review. The contention of the applicant is that the

Selection Board placed him higher in merit than

Respondent No.4, but Respondent No.1 modified the recommendations of the Selection Board and empanelled Respondent No.4. We examined the concerned records pertaining to the selection and approval, which were placed before us by the respondents. It is observed that against one Corps Specific vacancy, the SSB recommended two names for empanelment, that of the applicant and that of 4th respondent. The approving OA No 106 of 2016 : 24 :

authority viz., the Ministry of Defence, questioned as to how two officers have been recommended against one vacancy. Further, they also questioned the merit list prepared vis-a-vis the records of the officers. The response of the Army HQ was considered by the MoD and they approved the empanelment of respondent No.4 for the one vacancy.

23. As brought out earlier, in accordance with

Regulations for the Army, recommendations of a Selection

Board are subject to approval of the competent authority and the competent authority can modify the recommendations of the Selection Board. In the instant case, the empanelment of two officers against one vacancy was questioned by the approving authority, who then analysed the issue and justified empanelment of

Respondent No.4 based on the overall profiles and records of both the officers. At this juncture we would like to OA No 106 of 2016 : 25 :

observe that prior to the present Corps Specific SSB under consideration, the applicant and Respondent No.4 were considered together in October 2013 for empanelment in

NGCS Stream wherein the applicant was considered as a fresh case and Respondent No.4 was considered as a first review. Respondent No.4 was head and shoulders above the applicant in the order of merit and was empanelled.

Therefore how in the very next Board both the officers could be recommended for empanelment for the lone vacancy has been examined in depth by Respondent No.1. It is also observed that apart from recommendations of the Board, the profiles and records of both the officers were also examined in depth. In our view, therefore, the justification and reasoning of Respondent No.1 for empanelment of respondent No.4, has been logical and unbiased. It is also observed that since Respondent No.4 had already been promoted to the rank of Lt General, no further approval of the ACC was required to be taken. This was in keeping with OA No 106 of 2016 : 26 :

the Government of India (Transaction of Business) Rules, and Respondent No.1 informed the ACC about the empanelment of Respondent No.4 against the Corps

Specific vacancy. It is further observed that the proceedings have been approved by the Hon'ble Raksha Mantri.

24. It is also observed that a similar situation had been examined by the Hon'ble Apex Court in Lakhwinder

Singh (supra). The applicant therein had been twice recommended by the SSB, but on each occasion more candidates had been recommended than the existing vacancies. The applicant therein whose profile was weakest was not empanelled on both occasions by the approving authority. The Hon'ble Apex Court has held as follows:

“20. It was lastly submitted that Para 108 of the Regulations for the Army, 1987, which provides for the constitution and duties of Selection Boards, clearly indicates that the assessment of the Selection Board shall be OA No 106 of 2016 : 27 :

recommendatory in nature and not binding until approved by the competent authority, namely, the COAS or the Central Government as the case may be. The said Regulation also provides that both the Central Government and the COAS have an inherent power to modify, renew, approve with variation or repeal the recommendations of the Selection Board. It was urged that it was, therefore, evident that the recommendation of the Special Selection Board was not binding and had to be approved by the Central Government or the Chief of the Army Staff. In support of his aforesaid submission the learned counsel referred to the decision of this Court in Union of India v. Lt. Gen. Rajinder Singh Kadyan in which this Court, inter alia, held as follows: (SCC p.710, para 20).

“20. . . . Of course, considering the nature of rigorous standards adopted in the matter of selection of officers from the stage of Lt. onwards up to the stage of Lieutenant-General in the usual course it may be that the seniormost officer is selected as the Army . But that does not debar the Chief of the Army Staff or the Union of India from making the selection OA No 106 of 2016 : 28 :

of any other person for good reasons who fulfils the necessary criteria.”

22. It was urged that since the petitioner's case had been considered at the highest level of the appointing body, in which the COAS was also present, no interference was called for with the decision either of the said authority or the High Court.

24. It is no doubt true, that the name of the petitioner had been recommended on two occasions by two successive Special Selection Boards for promotion to the post of Lieutenant- General, but on each occasion, he was declared unfit, on account of the fact that there were lesser number of vacancies available than the number of candidates recommended and it was found on a comparative assessment that of all the recommended officers, he had the weakest profile. It is also no doubt true that the Special Selection Board consists of the highest-ranking officers of the Indian Army, but its suggestions are only recommendatory in nature and under the Army Regulations, can be varied or interfered with by the appointing authority, as has been done in the instant case. OA No 106 of 2016 : 29 :

25. It is unfortunate that the recommendations were made in excess of the vacancies available which necessitated a comparison to be made of the profiles of the recommended candidates in which process the petitioner got eliminated, but having gone through the official records, which were produced before us, we find that the entire question was considered and dealt with the Central Government in a manner which was completely free from bias and based on the service records of the different officers.”

25. The learned counsel for the applicant had also contended that applicant's statutory complaint was only cursorily looked at and all the issues raised were not examined. The Hon'ble Apex Court in Union of India and

Ors. vs. E.G.Nambudiri, (1991) 3 SCC 38 had held that no order of administrative authority communicating its decision is rendered illegal on the ground of absence of reasons and it is not open for the Courts to interfere in such orders on the ground of absence of reasons. The Hon'ble

Apex court had held that the administrative authority is at OA No 106 of 2016 : 30 :

liberty to pass orders without specifying reasons for the same. We are, therefore, of the view that no injustice has been done to the applicant by not giving him detailed reasons in rejecting his statutory complaint.

26. The Hon'ble Apex Court in Hardev Singh v.

Union of India & Anr. (2011) 10 SCC 121 while considering the case of promotions of Major Generals to

Lieutenant Generals had reiterated that no employee has a right to get promotion but only a right to be considered for promotion. The relevant observations of the Hon'ble Apex

Court is quoted below:

“17. It cannot be disputed that no employee has a right to get promotion; so the appellant had no right to get promotion to the rank of Lieutenant-General but he had a right to be considered for promotion to the rank of Lieutenant-General and if as per the prevailing policy, he was eligible to be promoted to the said rank, he ought to have been considered. In the instant case, there is no OA No 106 of 2016 : 31 :

dispute to the fact the appellant's case was duly considered by the SSB for his promotion to the rank of Lieutenant-General.”

27. Apart from the decisions referred to hereinabove which support the case of the respondents, various other decisions were also referred to on behalf of the parties, but the same are not really relevant for a decision in this case on the basis of the materials available to us. In our view, the result of any Selection Board becomes final only after it is duly approved by the competent authority. It is unfortunate that two officers were recommended for empanelment by the Selection Board against one existing vacancy. No doubt both the officers as also some others who were considered for empanelment were equally competent but in a hierarchical system only one person can be empanelled. The approving authority, in our view, rightly questioned the empanelment of two officers as against one vacancy and based on the profiles and records OA No 106 of 2016 : 32 :

of both the officers approved empanelment of one officer

ie, Respondent No.4. As held by the Apex Court, the

applicant had only a right to be considered for promotion

and he was duly considered but in comparative merit

Respondent No.4 was empanelled.

28. In view of the foregoing, we do not find any

reason to interfere in the decision of the competent

authority to empanel Respondent No.4 in preference to the

applicant. The Original Application is accordingly dismissed.

29. There will be no order as to costs.

30. Issue free copy to the parties.

Sd/- sd/- M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J) OA No 106 of 2016 : 33 :

31. After pronouncement of the order, learned counsel

for the applicant requested for leave to appeal to the

Supreme Court. In our opinion, no question of law of

general public importance is involved in the matter. Hence

leave requested for is refused.

Sd/- sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J)

an. (true copy)