The Supreme Court has said that an eligible candidate has fundamental right to be considered for promotion against the available vacancy and promoted if adjudged suitable.
The ruling from a bench of Justice A.K.Patnailk and Justice Jagdish Singh Khehar came as they set aside as "invalid" the order of the cabinet's appointment committee not accepting the recommendation of a selection board to promote Maj. Gen. H.M.Singh as Lt. Gen.
"..., if the appellant was the senior most serving major general eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable," said the bench in a judgment delivered Thursday.
"Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by article 14 of the constitution of India," said Justice Khehar speaking for the court.
The court was addressing the question whether the non-consideration of Maj.Gen. Singh's claim would "violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India".
"It would be a sad day if the armed forces decline to give effect to the legitimate expectations of the highest ranked armed forces personnel. Specially when blame for delay in such consideration, rests squarely on the shoulders of the authorities themselves.
"This would lead to individual resentment, bitterness, displeasure and indignation. This could also undoubtedly lead to, outrage at the highest level of the armed forces," the court said taking exception to the way the case was dealt with.
Answering its query in affirmative, with a rider that it was subject to authorities being desirous of filling the vacancy of a Lt. Gen.'s post when it became available on Jan 1, 2007, the court said, noting that in the case of Maj. Gen. Singh, the authorities were desirous of filling up the said vacancy in the Defence Research and Development Organisation (DRDO).
The court rejected the government's plea that at the time of considering Maj.Gen. Singh for promotion, he was on extension of service.
"The denial of promotion to the appellant (Maj. Gen. Singh) mainly for the reason that the appellant was on extension in service, to our mind, is unsustainable besides being arbitrary, specially in the light of the fact, that the vacancy for which the appellant was clamouring consideration, became available well before the date of his retirement on superannuation."
"We have, therefore, no hesitation in rejecting the basis on which the claim of the appellant for onward promotion to the rank of Lt. Gen. was declined by the Appointments Committee of the Cabinet."
"Surely, extension of service, for the purpose granted to the appellant, would most definitely fall within the realm of Rule 16A of the Army Rules, unless of course, individual resentment, bitterness, displeasure and indignation of army personnel at the highest level is of no concern to the authorities.
"Or alternatively, the authorities would like to risk outrage at the highest level, rather than doing justice to a deserving officer," the court said.
Granting promotion to Maj.Gen. Singh as Lt. Gen. from the date due to him, the court said that he would be treated as being on service till Feb 28, 2009 when he would have attained the age of 60 years, and would be entitled to "all monetary benefits which would have been due to him, on account of his promotion to the rank of Lt. Gen. till his retirement on superannuation, as also, to revised retirement benefits which would have accrued to him on account of such promotion".
The court directed the government to release the monetary benefits to Maj. Gen. Singh within three months from the date of the receipt of the certified copy of its judgment.
