ORDER
Gulab C. Gupta, J.
1. The petitioner, holding the rank of a Major in Corps of Signals since 1983, has been denied promotion to the rank of Lt. Col. as a result of which several juniors to him have superseded him. Feeling aggrieved by the aforesaid supersession, he has approached this Court invoking its extraordinary writ jurisdiction under Article 226 of the Constitution challenging the legality and validity of the said supersession.
2. The petitioner was commissioned in December, 1970 and given the rank of 2nd Lt. in the Corps of Signals in the Indian Army. He was promoted as Lieutenant in 1972, Captain in 1973 and Major in 1983. All the aforesaid promotions were given to him in his turn and in normal course. According to the petitioner, he has performed his duties to the best of his ability and capability to the entire satisfaction of his seniors and, therefore, there is no justification for his supersession. He further submits that he has also done extraordinary work as a trainer of Despatch Rider Team in Golden Arrow Division. In the year 1989, the petitioner claims to have been considered as “the only officer in the Unit who could do well in operations” and was for that reason, appointed Communication Company Commander. According to the petitioner, he was always awarded above average grading (7 or 8 points out of 9) in all annual confidential reports except 1985-86 and 1986-87 and, therefore, claims to be a disciplined, sincere and dedicated soldier. He also claims that his work during the floods in Ferozpur city in 1988-89 was highly appreciated and he was recommended for award of Vishisht Sewa Medal. He, therefore, submits that he has been arbitrarily superseded, denying his valuable right to be fairly and properly considered for promotion under Articles 14 and 16 of the Constitution.
3. On being noticed, the respondents filed their counter affidavit to the petition. The respondents submit that promotions in the Army are based on merits which is assessed by Selection Boards on well established and known factors, viz., (i) War reports; (ii) confidential Reports; (iii) Professional course grading; (iv) Honours and Awards; (v) Disciplinary punishments, if any; (vi) Special Achievements and weaknesses; (vii) Service in High Altitude/Field Areas etc.; and (viii) Employability and potential including consistent recommendation for promotion. It is also submitted that an officer is judged as aforesaid not only once but thrice. If the officer is not found fit for promotion even in these three considerations, he is considered unfit. As regards the petitioner, it is submitted that the Selection Board No. 4 which is authorised to recommend promotion of Majors to the acting rank of Lt. Col., has considered his case in May, 1988 and found him unfit for the purpose. The petitioner’s case was first reviewed in May, 1989 by the Board consisting of different personnel but the said Board again found him unfit. The final review of the petitioner’s performance was done in May, 1990 by the Selection Board consisting of altogether different personnel, but unfortunately the said Board also found the petitioner unfit. It is, therefore, submitted that the petitioner’s case has been considered impartially not only by one but three separate and independent Boards and found him unfit for promotion. It is also submitted that the selection system in the Army is detailed and objective and ensures fair selection. It is, therefore submitted that the petitioner cannot make any legitimate grievance in the matter. It is, therefore, prayed that the petition be dismissed.
4. Papers relating to consideration of the petitioner by various Boards were made available to this Court for its perusal. Though the respondents orally submitted that these papers should not be shown to the petitioner or his counsel, no such objection was submitted in writing. The learned counsel for the respondents on being persuaded by this Court, has however, shown these papers to the petitioner and his counsel who have after perusal submitted a written brief on 19-1-1994. The documents show that a Selection Board under the Chairmanship of Lt. General, K. S. Brar met between 23rd May to 26th May, 1988 and considered 507 officers for promotion. As regards Corps of Signals, 217 officers were considered out of which 71 were found fit. As regards the petitioner he was graded as “R” meaning “unfit for promotion to the next higher rank”. It appears that out of the five members of the Selection Board, three held that the petitioner was unfit while two held that he was fit. The records further show that the petitioner’s case was again considered by the Selection Board between 1st May to 8th May, 1989. This time, the Board was presided over by Lt. General K. S. Randhawa and all the members of this Board were different than the earlier Board. The proceedings indicate that this Board graded the petitioner as “Z” or “unfit”. The proceedings indicate that all the members of the Board were unanimous in this grading. Records further show that the petitioner’s case was again considered by yet, another Selection Board between 21st May to 31st May, 1990. This time, the Board was presided over by Lt. General M. K. Lahiri. The members of the Board were different than the earlier two Boards. This Board also considered the petitioner’s case and put him in “Z” or “unfit” category. Proceedings indicate that three members of the Board found him unfit whereas two found him fit. The Selection system followed in the instant case has been laid down in army Head quarter communication dated 6th May, 1987 which contains not only the composition of the Selection Board but also guidelines of assessment which, in our opinion, are detailed. The guidelines for the conduct of the Selection Board have also been laid down and stress is on objectivity. The Board has not recorded their reasons in each and every case. Though such reasons are recorded in special review cases, and yet, grading by members of the Board has been properly recorded. The grievance of the petitioner appears to be that the policy laid down by the Army Headquarter in the year 1987 regarding Selection was not made available to the officers initiating annual confidential reports. It is also submitted that annual confidential reports of the petitioner were not written in the context of these guidelines and, therefore, it is not fair to apply these guidelines on the petitioner and thereby denying him his promotion.
5. Yet another complaint of the petitioner is that being aggrieved by his supersession as aforesaid, he submitted a statutory complaint for consideration of the respondent Central Government as per document No. 3 but the said complaint was rejected by the Central Government on 9th June 1992 (Annexure D5) without assigning any reason. It is submitted that the complaint being statutory required consideration objectively. It is, therefore, submitted that the respondent Central Government has failed to perform its statutory functions fairly and in accordance with Articles 14 and 16 of the Constitution. The respondents admit that the statutory complaint was submitted by the petitioner. They also admit that the same was rejected by the Central Government by order dated 9th June, 1992 (Annexure D5). The respondents, however, have not stated anything in their counter affidavit to show that any order containing reasons for dismissal of the statutory complaint was passed by the Central Government. A perusal of the order Annexure D5 would indicate that the Government having perused the relevant record was satisfied that no injustice has been done to the petitioner. None of the submissions contained in the petitioner’s complaint seem to have received attention/consideration of the Central Government.
6. Having heard the learned counsel for the parties, this Court prima facie finds no justification for the grievance that the Selection Board have arbitrarily superseded the petitioner. Selection Boards were constituted with different Chairman and Members and, therefore, it is obvious that the petitioner’s case had received attention of three different Boards. It is unfortunate that all these Boards have not found the petitioner fit for promotion. But the Boards are not expected to declare every officer fit for promotion. Simply because these Boards have not found the petitioner fit, it cannot be assumed that they have acted arbitrarily against the petitioner. There is no reason also to doubt that the Boards have acted in accordance with the guidelines laid down by the Army Headquarters for the purpose. It is petitioner’s own case that his confidential reports for the year 1985-86 and 1986-87 were not favourable and that was the reason why he had filed his statutory complaint for consideration of the respondent-Central Government. Selection Boards could not have changed those confidential reports nor could they have ignored them. Under the circumstances, there is material on record, even on the petitioner’s own showing, to justify Board’s grading of his performance. This Court would, therefore, not find any substance in the complaint that the petitioner has been arbitrarily superseded.
7. It is, however, obvious that the confidential reports for the years 1985-86 and 1986-87 have also been taken into consideration by the Selection Boards. If the petitioner’s grievance about these confidential reports had been redressed on consideration of his statutory complaint, the opinion of the Boards might have been different. Under the circumstances, consideration of his statutory complaint assumes importance and, therefore it requires consideration of this Court whether the respondent-Central Government has acted in accordance with law while rejecting the aforesaid statutory complaint? It cannot be seriously disputed that the respondents are under constitutional obligation to act reasonably and not arbitrarily. Their orders in the context of Article 14 of the Constitution have to be right, just and fair, not fanciful or oppressive. Indeed, fair play in action is in our jurisprudence, the basic requirement of exercise of power. In this connection, the decisions of the Supreme Court in E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597 and Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, deserve attention. The requirement of absence of arbitrariness has the effect of introducing objectivity and attracts application of principles of natural justice in exercise of discretion even in administrative matters. Rule of discretion amounts to shifting the foundations of freedom from the rock to the sand, as observed by the Supreme Court in Union Carbide Corpn. v. Union of India, AIR 1992 SC 248 (Para 79). “Rule of law” and not the “rule of discretion” is, therefore, our constitutional creed. Objectivity and not subjectivity is an important part of this constitutional culture. It is true that the petitioner is employed in Army and Article 33 permits curtailment or abrogation of fundamental rights of the petitioner but as long as these rights are not curtailed or abrogated as per Article 33, the petitioner even as an officer of the Army, would be entitled to the protection of Articles 14 and 16 of the Constitution. Since nothing has been brought to our notice affecting these rights, there is no justification for subjecting the petitioner to the rule of discretion. He is as much entitled to the protection of “rule of law” as any other person in the country. A perusal of the order of the Central Government (Annexure D5) indicates that the grievances of the petitioner stated in his statutory complaint have not received consideration. The order only indicates that the Central Government was satisfied that no injustice was done to the petitioner and the said satisfaction was based on perusal of the record. There is nothing to indicate that while perusing the record, the Central Government had kept the particular grievances of the petitioner in view and has examined their validity with reference to facts found on record. Apparently, therefore, it is a case where subjective satisfaction of the Central Government not about the correctness of petitioner’s supersession or adverse CRs but of the fact that no injustice was done to him has resulted in dismissal of the petitioner’s statutory complaint. Apparently, the petitioner’s complaints have not received any objective consideration. This, in the opinion of this Court, is contrary to the rule of law. It is our considered view that the respondent Central Government was under the constitutional obligation to consider the petitioner’s grievance objectively and dispose the same of by a reasoned order. It may be that while so doing, the Central Government is not required to write a detailed judgment and yet, the obligation to indicate reasons for rejecting the complaint should have been recorded though briefly. Such an obligation, in our opinion is there even while taking administrative decisions and assumes importance in the context of our rule of law while dealing with a statutory complaint. We are, therefore, of the view that injustice has been done to the petitioner by not disposing of his statutory complaint by passing a speaking order. In this connection, decision of the Supreme Court in State of West Bengal v. Atul Krishna Shaw, AIR 1990 SC 2205, may be referred to wherein, it has been laid down that reasoned decision is not only for the purpose of showing that the citizen is receiving justice but also a valid discipline in any quasi-judicial order. This aspect of the matter is of little more than ordinary importance in army whose satisfaction as contrasted with frustration is directly connected with security of the country. In this view of the matter, the order of the Central Government dismissing the petitioner’s statutory complaint (Ann. D5) must be held to be illegal and invalid.
8. In view of the discussion aforesaid, the petition succeeds in part and is allowed by quashing the order Annexure D5. The respondent-Central Government is directed by a writ in the nature of mandamus to reconsider the petitioner’s statutory complaint and dispose the same of by passing a reasoned order. If, as a consequence of the aforesaid, the petitioner’s C. Rs. are reviewed, he would be entitled to approach the authorities for special review of his promotion in accordance with law. Parties to bear their own costs.