# IC No.39255 Major Surendra Singh Sajwan v. Union of India and others

- **Citation:** (2003) 1 ILRA 148
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-05-11
- **Case number:** Civil Misc. Writ Petition No. 3694 of 2000
- **Bench:** M. Katju, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ic-no-39255-major-surendra-singh-sajwan-v-union-of-india-and-others-39911
- **Pages:** 3

## Headnote

Constitution of India, Article 226- Army
Service- Promotion Rule 6 of Army Act-
provides Constitution selection board-
http://www.allahabadhighcourt.nic.in
1All] IC No.39255 Major Surendra Singh Sajwan V. Union of India and others 149
for promotion on the post of Lt. Col.-
Instead of petitioner some other officer
recommended for promotion- service
Dossier of Petitioner found excellent but
even then can not be promoted on higher
post because of shortage of vacancy-
Army Organization and hereby like a
pyramid which goes narrower- High
Court can not sit as appellate authority
upon the decision of Board- No flagrant
violation of Rules or arbitrainess shown
- court declined to interfere.

Held - Para 6

Thus
while
it
is
evident
that
the
petitioner is a good officer and there is
no adverse material against him, the
Selection Board has found other Officers
having better record and hence those
officers have been promoted, while
petitioner could not make the grade on
his overall profile as stated in the
impugned order dated 10.6.99 Annexure
20 to the writ petition. This Court is
normally reluctant to interfere in Army
matters, as that would be bad for the
morale of the Army. This does not of
course mean that the Court can never
interfere in Army matters but it shall do
so when there is clear flagrant violation
of
the
Rules
or
there
is
extreme
arbitrariness, which is not found in this
case.

## Text

http://www.allahabadhighcourt.nic.in
148 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
public. No attempt has been made in the
counter affidavit in any manner that as
against the fee sought to be levied and
recovered, the Zila Panchayat is going to
render any special service to the persons
from whom the fee is being realized. It
has been stated in the counter affidavit
that it is incurring a loss of Rs.50,000/-
per day on account of the stay order
granted by this Court, but in the counter
affidavit the Zila Panchayat has not given
the details of any special services
provided to the persons from whom the
fee was realized . The power to impose
tax under the Act has been given under
section 23. It also provides that a
preliminary proposal for imposition of tax
shall be framed which shall be passed by
a special resolution. The Zila Panchayat
in its counter affidavit has sought to
justify the action with reference to
sections 142 to 145. The counter affidavit
is silent as to under which section the
aforesaid by laws were framed. The
impugned fee does not come within the
ambit of sections 142 to 145 of the Act.
To provide drinking water and first aid or
medical facility is a statutory duty of Zila
Panchayat as indicated above. Hence no
separate bye laws can be framed and no
separate fee can be charged for providing
drinking water or medical facilities to the
public at large. The respondents have
realized fee till October, 2002 meaning
thereby a sum of about Rs.90,00,000/- has
been realized by them. It is strange that
out of this huge sum the Kshettra
Panchayat has not been able to show that
it has done some special service to the
persons from whom money was realized.
Along with counter affidavit a bill of
Rs.10,000/- and odd, showing purchase of
some medicines, has been filed. The
petitioners
have
disputed
the
said
purchase as the bill is not in the name of
Zila Panchayat or its officers/officials.

12. Thus, the Zila Panchayat has
failed to establish that it is providing any
service either directly or remotely to the
persons from whom it is realizing the
impugned fee. There is total lack of
element of quid pro quo. Hence the levy
in question is not a fee but tax in nature.

13. In view of the above, the
impugned bye laws, a copy of which has
been filed as Annexure 2 to the writ
petition, published in the official Gazette
dated 11.5.2002 is quashed. The writ
petition is allowed. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 3.2.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 3694 of 2000

IC No.39255W Major Surendra Singh
Sajwan

...Petitioner
Versus
The Union of India and others

 ...Respondents

Counsel for the Petitioner:
Sri Yogesh Agarwal
Sri G.D. Mukerji
Sri Satyajit Mukerji
Sri S.K. Singh

Counsel for the Respondents:
Sri S.K. Rai
Sri Subartee Banerjee
S.C.

Constitution of India, Article 226- Army
Service- Promotion Rule 6 of Army Act-
provides Constitution selection board-
http://www.allahabadhighcourt.nic.in
1All] IC No.39255 Major Surendra Singh Sajwan V. Union of India and others 149
for promotion on the post of Lt. Col.-
Instead of petitioner some other officer
recommended for promotion- service
Dossier of Petitioner found excellent but
even then can not be promoted on higher
post because of shortage of vacancy-
Army Organization and hereby like a
pyramid which goes narrower- High
Court can not sit as appellate authority
upon the decision of Board- No flagrant
violation of Rules or arbitrainess shown
- court declined to interfere.

Held - Para 6

Thus
while
it
is
evident
that
the
petitioner is a good officer and there is
no adverse material against him, the
Selection Board has found other Officers
having better record and hence those
officers have been promoted, while
petitioner could not make the grade on
his overall profile as stated in the
impugned order dated 10.6.99 Annexure
20 to the writ petition. This Court is
normally reluctant to interfere in Army
matters, as that would be bad for the
morale of the Army. This does not of
course mean that the Court can never
interfere in Army matters but it shall do
so when there is clear flagrant violation
of
the
Rules
or
there
is
extreme
arbitrariness, which is not found in this
case.

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
parties. The petitioner is a major in the
Indian Army.

2. The petitioner is challenging the
impugned order dated 10.6.99 Annexure
20 to the writ petition and also the
communication to the petitioner that he
has not been approved for promotion to
the rank of Acting Lt. Col. Vide letter
dated 7.9.99 Annexure 18 to the writ
petition. The petitioner has prayed that he
should be promoted as Acting Lt. Col.
3. We have carefully perused the
petition and the counter affidavit and we
have also perused the Service Dossier of
the petitioner, and Selection Board
proceedings, which were produced before
us. The petitioner appears to have a
misapprehension that he has been passed
over for promotion because there is
adverse material against him on his
dossier. We have perused the dossier and
we find nothing against him. However, it
often happens in the Army that even good
Officers cannot be promoted because
there is no vacancy on the higher post.
The Army Organisation and hierarchy is
like a pyramid, and the higher one goes
the narrower becomes the pyramid. Hence
merely because one has been passed over
it does not mean that one is not a good
officer, but it means that in evaluation by
Selection Board other officers have been
found to be better.

4. Under the Selection System dated
6.5.87, copy of which has been produced
before us, it is mentioned in Rule 6 that
there is a Selection Board for selecting
Majors to be promoted to the rank of
Acting Lt. Col. We are informed that this
Selection Board consists of five members,
the Chairman being Lt. General, who is a
Core Commander, and the other four
members are two Major Generals and two
Brigadiers. Thus Selection Board consists
of very senior officers and in our opinion
due deference should be given to their
judgment.

5. This Court cannot sit as a court of
appeal over the decision of the Selection
Board. It can only interfere in rare cases
where it is clearly evident that there is
flagrant violation of the Rules or there is
extreme arbitrariness. This is not a case of
that nature.
http://www.allahabadhighcourt.nic.in
150 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
6. Thus while it is evident that the
petitioner is a good officer and there is no
adverse
material
against
him,
the
Selection Board has found other officers
having a better record and hence those
officers have been promoted, while
petitioner could not make the grade on his
overall profile as stated in the impugned
order dated 10.6.99 Annexure 20 to the
writ petition. This Court is normally
reluctant to interfere in Army matters, as
that would be bad for the morale of the
Army. This does not of course mean that
this Court can never interfere in Army
matters, but it shall do so only when there
is clear flagrant violation of the Rule or
there is some extreme arbitrariness, which
is not found in this case.

The petition is therefore, dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.2.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Income Tax Appeal No. 37 of 2000

Commissioner
of
Income
Tax
and
another

...Appellants
Versus
Sri Shyama Charan Gupta ...Respondent

Counsel for the Appellants:
Sri A.N. Mahajan, S.C.

Counsel for the Respondent:

Income
Tax
Act-
Section
155
(i)-
Reassement of firm- assessing officer
can modify the assessment, but can not
take recourse of section 148.

Held - Para 8

In case of reassessment of a firm the
assessing
officer
has
not
only
to
determine the assessable income of the
firm
but
has
also
to
amend
the
assessment
order
of
the
partners
accordingly. Hence in our opinion the
Tribunal has correctly held that t he
assessing
officer
could
only
take
recourse to Section 155 to modify the
assessment of the assessee and he could
not take recourse to Section 148 of the
Income Tax Act. The Tribunal has also
held that the revenue can revise the
shares of the appellants in the firm by
invoking the provisions of Section 155
(1), if the law so permits.

(Delivered by Hon'ble M. Katju, J.)

1. This is an appeal under Section
260 A of the Income Tax Act by which
the impugned order of the Income Tax
Appellate
Tribunal
dated
26.8.1999
Annexure 3 to the appeal has been
challenged.

2. We have heard the learned
counsel for the Department as well as of
the assessee and have perused the
impugned order and find no illegality in
the same.

3. The respondent assessee is a
partner in a firm M/s Shyam Bidi Works.
The Original assessment of the firm as
well as of the partners was completed.
Subsequently there was a search under
Section 132 of the Income Tax Act in
connection with the firm, its partners and
Directors of the Company of this group in
November 1998. As a result of this search
the firm filed a revised return on 27..1989
disclosing an income of Rs. 900890/- as
declared in the revised return. Consequent
to the revised assessment of the firm the
assessments of the partners were also
sought to be revised by revision of their