Top
Begin typing your search above and press return to search.
Top Stories

No Presumption That A Decision Taken By Persons Occupying High Posts Is Valid: SC [Read Judgment]

Ashok Kini
11 Feb 2020 1:06 PM GMT
No Presumption That A Decision Taken By Persons Occupying High Posts Is Valid: SC [Read Judgment]
x
"The judicial scrutiny of a decision does not depend on the rank or position held by the decision maker."

There is no presumption that a decision taken by persons occupying high posts is valid, remarked the Apex Court in a judgment delivered on Tuesday. The bench of Justice L. Nageswara Rao and Justice Hemant Gupta was concerned with an appeal filed by a Brigadier against his non-empanelment for promotion to the rank of Major General. One of the contentions raised by Senior Advocate...

Your free access to Live Law has expired
To read the article, get a premium account.
    Your Subscription Supports Independent Journalism
Subscription starts from
599+GST
(For 6 Months)
Premium account gives you:
  • Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.
  • Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.
Already a subscriber?

There is no presumption that a decision taken by persons occupying high posts is valid, remarked the Apex Court in a judgment delivered on Tuesday.

The bench of Justice L. Nageswara Rao and Justice Hemant Gupta was concerned with an appeal filed by a Brigadier against his non-empanelment for promotion to the rank of Major General.

One of the contentions raised by Senior Advocate R. Balasubramanian, for Union of India, was that the Selection Board consists of senior officers of the Army and deference has to be shown to the discretion exercised by them in the matter of promotion. It was contended that Selection Board consisting of senior officers considered the overall reckonable profile of the Brigadier and found that he was not fit to be empanelled.

In this context, the bench observed:

"There is no presumption that a decision taken by persons occupying high posts is valid. All power vested in the authorities has to be discharged in accordance with the principles laid down by the Constitution and the other Statutes or Rules/Regulations governing the field. The judicial scrutiny of a decision does not depend on the rank or position held by the decision maker. The Court is concerned with the legality and validity of the decision and the rank of the decision maker does not make any difference."

The bench also quoted Lord Acton (from his letter to Bishop Mandell), in this regard:

"I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way against holders of power, increasing as the power increases."

Taking note of the facts of the case, the bench held that the non-empanelment of the Brigadier for promotion as Major General is contrary to the promotion policy. In this context, the bench said:

"Article 16 of the Constitution of India confers a right to be considered for promotion. There is no right for promotion, but the right that is conferred by Article 16 is to be considered for promotion fairly and in accordance with the extant rules or regulations governing promotions. Violation of rules/regulations or the policy governing promotions would entail in violation of Article 16 of the Constitution of India. " 
Case name: BRIG. NALIN KUMAR BHATIA  vs. UNION OF INDIA
Case no.: Civil Appeal No .5751 of 2017
Coram: Justice L. Nageswara Rao and Justice Hemant Gupta 
Counsel:  Senior Advocates Dushyant Dave and R. Balasubramanian 

Click here to Read/Download Judgment

Read Judgment



Next Story
Share it