UNION OF INDIA AND ANR. Vs. LT COL P.K. CHOUDHARY AND ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 3208 of 2015, Judgment Date: Feb 15, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3208 OF 2015
UNION OF INDIA AND ANR. …APPELLANTS
VERSUS
LT. COL. P.K. CHOUDHARY AND ORS. …RESPONDENTS
WITH
CIVIL APPEAL NO. D.11682 OF 2015
UNION OF INDIA AND ANR. …APPELLANTS
VERSUS
IC 55047L LT. COL. RAY GAUTAM
PRASAD (RETD.) & ORS. …RESPONDENTS
WITH
CIVIL APPEAL NO. D.10623 OF 2015
UNION OF INDIA AND ANR. …APPELLANTS
VERSUS
IC 54169H LT. COL. FARAN SIDIQUI & ORS. …RESPONDENTS
J U D G M E N T
T.S. THAKUR, CJI.
1. These appeals under Section 31 of the Armed Forces Tribunal Act, 2007
are directed against a judgment and order dated 2nd March, 2015 passed by
the Armed Forces Tribunal, Principal Bench, New Delhi, whereby Original
Application No. 430/2012 filed by the Respondents has been allowed and
policy circular dated 20th January, 2009 issued by the Government of India
quashed with a direction to the Appellant-Union of India to consider the
Respondents for promotion to the rank of Colonel by creating supernumerary
posts with effect from the date the said Respondents were eligible for such
promotion. Facts giving rise to the proceedings before the Tribunal and the
present appeals may be summarized as under:
2. The Respondents were commissioned into various Corps/streams of the
Indian Army after they successfully passed out from the Indian Military
Academy/Officers Training Academy. The initial allocation of the
respondents to different Corps was based on parameters prescribed for that
purpose depending inter alia upon the number of actual vacancies in Arms,
Arms Support or Services, operational commitments and requirements arising
from new raisings. Merit of the candidates, the need for an equal
distribution of vacancies applying what is described as ‘Black Method’ and
the individual choice expressed by the cadets were also some of the major
factors that were taken into consideration while making allocations.
3. It is common ground that there was no challenge to the allocation of
cadets to Arms, Arms Support or Services at any point of time. It is also
not in dispute that four out of the five Respondents viz. Lt. Col. P.K.
Choudhary, Lt. Col. G.S. Dhillon, Lt. Col. A.K. Pandey and Lt. Col. R.M.S.
Pundir had opted for commission into Army Service Corps (AMC) and none of
them had opted either for Combat Arms or Arms Support. Similarly, Lt. Col.
Ajay Chawla-Respondent No.5 in this appeal had given Army Service Corps as
one of the options of his choice. The respondents were accordingly
allocated and have served in their respective Corps and Raisings as Lt.
Colonels, which rank they held at the time of filing Original Application
No.430 of 2012 in the Tribunal and continue to do so at present.
4. Post-Kargil War, the Government of India constituted what was called
Kargil Review Committee which was followed by a Committee headed by Shri
Ajay Vikram Singh (‘the AVSC’, for short) with a view to explore ways and
means for enhancing the operational preparedness of the Indian Army in its
fighting capabilities especially in Combat Arms. The Committee comprised,
apart from Shri Ajay Vikram Singh, a representative of the Ministry of
Defence (Finance), Director General (MP&PS), Army Headquarters, Joint
Secretary (G), Ministry of Defence and several senior officers of the
Indian Army including Adjutant General, Army Headquarters, Chief of
Personnel, Naval Headquarters and Air Officer-in-Charge Personnel, Air
Headquarters. The Committee appears to have conducted extensive
deliberations and submitted a report suggesting both short term and long
term measures that were, in its opinion, necessary for restructuring of the
Officers’ Cadre of the Army. The Committee recommended that although the
report primarily focused on the restructuring of the Officers’ Cadre of the
Army, the same will be applicable in an equal measure to the Navy and the
Air Force who could work out their service specific requirements including
additional vacancies required at various ranks on operational/functional
grounds. While we shall deal with the recommendations made by the Committee
in greater detail in the later part of this judgment, we may point out that
one of the significant recommendations which the Committee made to the
Government was about the lowering of age profile of the Officers in the
Indian Army. For instance, instead of existing age profile of 41-42 years
for Colonels the Committee recommended lowering of the age profile to 36-37
years. Similarly, for Brigadiers the Committee recommended an age profile
of 44-45 years instead of 50-51 years at present. The age of Major Generals
was profiled at 51-52 years as against 54-55 years under the existing
system. The age of Lieutenant Generals was, according to the Report,
profiled at 55-56 years instead of 56-57 years under the existing system.
The lowering of age profile was considered by the Committee to be necessary
for enhancing the optimal combat effectiveness of the Army. To achieve that
objective, the Committee recommended creation of 1484 additional vacancies
in the ranks of Colonel out of which 400 vacancies were to be released in
the first year while the another 300 vacancies were to be released in the
second year after an annual review. The implementation of the
recommendations had to be progressive, coordinated and corroborated for the
desired results to flow for the benefit of the Army.
5. The appellants’ case is that the recommendations made by the AVS
Committee were accepted by the Government and 1484 additional vacancies in
the rank of Colonel were sanctioned with a view to lowering the age of
Commanding Officers in combat and combat support arms resulting in an
increased upward mobility of the Officers Cadre. The additional vacancies
were to be released in two phases spread over a period of four years from
2004 to 2008.
6. It is common ground that in the first phase, the Government released
750 vacancies, out of the newly created 1484 vacancies, in the rank of
Colonel by an order dated 21st December, 2004. These vacancies were
sanctioned by upgradation of appointments in the rank of Lt. Colonel to
Colonel in a phased manner spread over a period of two years i.e. 2004-2005
and were distributed amongst Arms, Arms Support and Services on a pro-rata
basis. The result was that not only did the additional vacancies become
available to Arms and Arms Support but the same were allocated even to
those serving in Services like ASC, AOC and EME. Thus far, there was no
difficulty as officers serving in Arms, Arms Support and Services in
different Corps of the Army were all equally benefitted by the fresh
creation. The problem started with the release of another 734 vacancies in
the second phase by an order dated 3rd November, 2008. These additional
vacancies were sanctioned by effecting upgradation in a phased manner
spread over a period of five years and were directed to be allocated on
what is described as “Command Exit Model” which the Government of India
claimed was in consonance with the functional and operational requirements
of the Army.
7. Aggrieved by the denial of a pro-rata share in the 2nd tranche of the
additional vacancies released by the Government, officers like the
respondents who are serving in the Arms Support and Service Corps of the
Army, filed Original Applications No. 430 of 2012, 77 of 2014 and 147 of
2015 before the Armed Forces Tribunal, Principal Bench, New Delhi to
challenge the Government’s policy dated 29th January, 2009 on the ground
that the same was discriminatory, arbitrary and violative of fundamental
rights guaranteed to them. They prayed for quashing of the policy besides
a direction to the Government of India to allocate vacancies in the rank of
Colonel to each Corps on pro rata basis and convene Special Boards for
promotion of the eligible Officers to such posts. The respondents also
prayed for a direction to the Union of India to grant to them ‘Ante-Date’
seniority and arrears of pay and allowances from the date an officer
immediately junior to the said respondents in the rank of Lt. Colonel
serving in Arms and Arms Support Units was granted his promotion.
8. The Appellant-Union of India contested the claim made by the
respondents and argued that the recommendations made by the AVS Committee
were limited to Officers serving in the Arms and Arms Support and
specifically left out services from their purview. It was also argued that
the Government of India had approved and accepted the recommendations made
by the AVS Committee and sanctioned 1484 additional vacancies specially
created for allocation on “Command Exit Model” to Arms and Arms Support
Units for whose benefit such new vacancies were created. The allegation
that the policy formulated by the Government or the “Command Exit Model”
for allocation of vacancies was discriminatory and/or arbitrary was stoutly
denied.
9. By its order dated 2nd March, 2015 the Armed Forces Tribunal,
Principal Bench, New Delhi has allowed the Original Application(s) filed by
the respondents and quashed Government of India policy dated 21st January,
2009 with the direction that the Government of India shall create
supernumerary posts so that the additional vacancies so created are
allocated to all the three streams on a pro rata basis. The present appeal
under Section 31 of the Armed Forces Tribunal Act, 2007 calls in question
the correctness of the judgment and order as already noticed above.
10. We have heard learned counsel for the parties at considerable length
who have taken us through the judgment and order passed by the Tribunal and
the documents placed on record in support of their respective versions. The
following questions fall for our determination.
Did the AV Singh Committee recommend lowering of age profile and consequent
creation of additional vacancies for all the three streams viz. Arms, Arms
Support and Services or were the recommendations limited to Arms and Arms
Support only?
Were the recommendations made by the AV Singh Committee regarding the need
for creation of additional vacancies and their allocation on “Command Exit
Model” accepted by the Central Government? If so, what is the effect of
allocation of the first tranche of 750 vacancies by the Army Headquarters
on pro rata basis among all the three streams?
Whether there was any illegality, irregularity or unfairness in the matter
of allocation of vacancies to Arms Support on “Command Exit Model”
principle?
Do Officers serving in Arms, Arms Support and Services constitute a single
cadre?
In case the answer to the question No. 4 is in negative, is there any
legitimate expectation for officers commissioned into the Indian Army in a
given batch that in the matters of their future promotion the Government
will maintain batch parity among officers allocated to Arms, Arms Support
and Services.
Re.: Question No. 1
11. On behalf of the respondents it was argued by Ms. Meenakshi Lekhi,
Advocate that the recommendations made by the AVS Committee were applicable
to officers serving in all the three streams of the Army viz. Arms, Arms
Support and Services and that the creation of 1484 additional vacancies of
Colonels was meant to benefit all such officers regardless of the Corps in
which they were commissioned. Support for that submission was largely
drawn by learned counsel from the AVS Committee report and the fact that
the 750 vacancies sanctioned and released in the first tranche were
distributed pro-rata among all the formations. It was urged that having
given to officers serving in Arms Support and Services, their share of the
newly created vacancies on a pro-rata basis and denial of a similar share
out of vacancies sanctioned in the second phase was unjustified and
discriminatory.
12. On behalf of the Appellant-Union of India it was contended by Mr.
Maninder Singh, ASG, that the recommendations made by the AVS Committee
favoured creation of additional vacancies only for Arms and Arms Support
leaving out ‘Services’ like ASC, AOC and EME. It was argued that the
recommendations were accepted and the vacancies sanctioned for being filled-
up on ‘Command Exit Model’ which model constituted the very basis of the
report submitted by the Committee. The fact that 750 vacancies created in
the first phase were distributed among Arms, Arms Support and Services on a
pro-rata basis did not, according to Mr. Singh, by itself entitle officers
serving in ‘Services’ to claim a pro-rata share in the second tranche of
vacancies created by the Government. If the pro-rata allocation to
services was not in tune with the recommendations made by the Committee and
the decision taken by the Government, the same could not create any right
or equitable claim in favour of those who had benefitted from the mistake
earlier committed argued the learned counsel.
13. The entitlement to a share in the newly created vacancies depends
upon whether the Committee had recommended lowering of age profile for
officers serving in the ‘Services’ stream of the Army that is because the
creation of additional vacancies was meant to achieve a purpose – viz.
lowering of age profile of the Commanding Officers.
14. The answer to the question whether the Committee recommended lowering
of age profile and creation of additional vacancies for Arms, Arms Support
and Services, can in turn, be answered only by reference to the report of
the Committee. We have been taken through the report over and over again
by learned counsel for the parties, but, we find it difficult to accept the
submission made by Ms. Lekhi that the recommendations were for the benefit
of all officers and streams across the board. A careful reading of the
report would show that the Army Headquarters had made its presentations to
the Committee followed by a series of meetings to discuss and deliberate
upon each one of the issues referred for examination to the Committee. The
report made a reference to the Army Headquarters Paper on Restructuring of
the Officer Cadre, which, in turn, dealt with the issue of organisational
imbalances arising out of steep pyramidical structure of the cadre and the
issues relating to individual aspirations left unfulfilled due to
inadequate career progression, disparity with Class-A civil services and
harsh service conditions. The paper presented by the Army Headquarters also
suggested some measures for resolving the issues which included reducing
the large base in the cadre structure by making a dual-stream officer cadre
one having a lean regular cadre and the other a support cadre of Short
Service Commission Officers, reduction in the ages of Battalion and Brigade
Commanders through early promotion by increasing the cadre strength,
upgradation of Sub Unit Commanders to the rank of Lt. Colonel. The Army
Headquarters also proposed grant of early promotions in the first three
ranks viz. Captain, Major and Lt. Colonel, promotion to the grade of
Colonel on time-scale basis after 23 years of service for superseded
officers and grant of Brigadier’s pay to all Colonels in the last year of
their service to entitle them to Brigadier’s pension. The report submitted
by the committee outlined the issues raised before it and identified two
inter-related issues which were, in its opinion, at the core of the whole
problem viz., high age profile and cadre stagnation.
15. The Committee also took note of the recommendation made by the Kargil
Review Committee, for lowering the age profile of command elements. The
Committee noted that in comparison to other Armies like those of Pakistan,
China, UK, Germany and Israel, the Indian Army had a higher age profile
which adversely affected their physical alertness and operational
preparedness. The Committee noted that Officers beyond the age of 50 years
find it difficult to sustain mental and physical alertness at high altitude
and hazardous and hostile topography along the Line of Control where a
Brigade Commander is required to serve for effective command and control.
This was true even about Battalion Commanders who are required to move
during operations with their units for effective command and control. The
Committee noted that for Battalion Commanders even a higher degree of
physical fitness and alertness is required which is difficult since Indian
Army Officers assume command at the age of 41-42 years and continue till 44-
45 years of age in comparison to those in Pakistan and Chinese Armies where
the age of the Battalion Commander, on an average, is about 35 and 40 years
respectively. The Committee, therefore, took the view that the officers of
Combat Arms should assume command at the age of 36-37 years by which time
they would have attained the requisite experience and the ability to finish
their command tenure before attaining 40 years of age. The Committee, then,
took stock of the total Units commanded by Colonels in the Indian Army and
the desirable tenure for each type of Unit considered necessary to maintain
optimum operational effectiveness. The Committee, at the same time, noted
the possibility of re-command in respect of certain Arms and Services which
have some Units permanently located in peace areas or where the Unit
Commanders are not physically required to operate in combat/difficult
terrain. Taking note of the structures, the Committee determined that the
approximate number of Colonels that would be required every year is 406.
The details are set out in a chart forming part of the report which may be
gainfully extracted at this stage:
|Srl. |Arm/Service |Number of |Desired|Period officer in|Number of |
|No. | |Units |Tenure |command (Years) |Colonel |
| | | |(Years)| |required per |
| | | | | |year |
|(a) |Armoured Corps |62 | |3 |3 |No |21 | |
| | | | | | |re-command| | |
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
| | | |1038 | | | | |354 |
|(b) |Infantry |448 | |2.5 |2.5 |-do- |179 | |
|(c) |Mechanised |39 | |3 |3 |-do- |13 | |
| |Infantry | | | | | | | |
|(d) |Artillery |210 | |3 |3 |-do- |70 | |
|(e) |AD |50 | |2-3 |4 |Possibilit|13 | |
| | | | | | |y of | | |
| | | | | | |re-command| | |
|(f) |Engineers |132 | |2-3 |4 |-do- |33 | |
|(g) |Signals |97 | |2-3 |4 |-do- |25 | |
|(h) |ASC |87 |2-3 |5 |-do- |17 | |
|(i) |AOC |60 |2-3 |5 |-do- |12 | |
|(j) |EME |114 |2-3 |5 |-do- |23 | |
| |Total |1299 | |406 |
16. The Committee, then, picked-up 354 Colonels for Armoured Corps,
Infantry, Mechanised Infantry, Field Artillery, Air Defence Artillery,
Engineers and Signals, which were described by the Committee as operational
formations and which, in the opinion of the Committee, called for reduction
in the age profile for the Unit Commanders. Para 20 of the report makes
the Committee’s intention manifest when it says:
“20. Out of the overall requirement of 406 Colonels every year as per the
table above, there would be a need of 354 Colonels for Armoured Corps,
Infantry, Mechanised Infantry, Field Artillery, Air Defence Artillery,
Engineers and Signals, which are operational formations, keeping in view
that the need to bring down age profile of unit commanders is primarily for
the operational units. In the above table, for the arms listed for Ser (a)
to (d) it is desirable that the officers’ have one command tenure, as a
younger age profile is required in consonance with the operational needs.
The rest could get more than one tenure for command in the Colonels rank.”
(Emphasis supplied)
17. The Committee, then, examined the number of vacancies required in the
rank of Colonels and Brigadiers and came to the conclusion that a total of
374 Colonels and 143 Brigadiers vacancies were available every year
exclusively in the Arms, whereas, there was a requirement of vacancies for
354 Colonels and 129 Brigadiers for the Arms. These vacancies were found to
be adequate to keep the whole cadre structure in a state of equilibrium,
but, that equilibrium will be at the current high age profile. The
Committee said:
“… … … If we look only at the Arms, which form a subset of the whole cadre,
and towards which the age reduction exercise is principally directed, we
find that approximately 143 Colonels and 31 Brigadiers are promoted to the
next higher rank every year and 241 and 112 respectively exit each year on
retirement. Thus, a total of 374 Colonel’s and 143 Brigadier’s vacancies
are available every year exclusively in the Arms, whereas there is a
requirement of vacancies for 354 Colonels and 129 Brigadiers for the Arms
as per table at paras 17 and 19. These vacancies are adequate to keep the
whole cadre structure in a state of equilibrium, but that equilibrium will
be at the current high age profile. Therefore, a mechanism needs to be
found to bring the cadre structure, especially of the Arms, to the lower
age profile as recommended in Para 13.”
18. The Committee, then, proposed short-term and long-term measures.
Applying the parameters for short term and long term measures proposed by
the Committee, the Committee, in para 36 of its report, worked out the
vacancies required for Colonels in Armoured Corps, Infantry, Mechanised
Infantry, Artillery, AD, Engineers and Signals and Brigadiers in the
General Cadre, Field Artillery and Engineers.
“36. Based on these parameters, vacancies that would be required for
Colonels in Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD,
Engineers and Signals and Brigadiers in the General Cadre, Field Artillery
and Engineers, if age profile is to be brought down as per para 13 are
given in the table below. The figures reflected in the table do not
include vacancies for Colonels in ASC, AOC, EME and other Minor Corps whose
age profile can be higher than that required to operate under combat
conditions.
|Service |Age |Colonel |Brigadier | |Major | |Lieutenant |
| | | | | |General | |General |
|15 |37 |354 | |- | |- | |- |
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
| | | |2832 | | | | | |
|16 |38 |354 | |- | |- | |- |
|17 |39 |354 | |- | |- | |- |
|18 |40 |354 | |- | |- | |- |
|19 |41 |354 | |- | |- | |- |
|20 |42 |354 | |- | |- | |- |
|21 |43 |354 | |- | |- | |- |
|22 |44 |354 | |- | |- | |- |
|23 |45 |225 | |129 | |- | |- |
| | | | | | | | | |
| | | | | |774 | | | |
| | | | | | | | | |
| | | |2025 | | | | | |
|24 |46 |225 | |129 | |- | |- |
|25 |47 |225 | |129 | |- | |- |
|26 |48 |225 | |129 | |- | |- |
|27 |49 |225 | |129 | |- | |- |
|28 |50 |225 | |129 | |- | |- |
|29 |51 |225 | |77 | |52 | |- |
| | | | | | | | | |
| | | | | |385 | |260 | |
|30 |52 |225 | |77 | |52 | |- |
|31 |53 |225 | |77 | |52 | |- |
|32 |54 |- | |77 | |52 | |- |
|33 |55 |- | |77 | |52 | |- |
|34 |56 |- | |- | |31 |62 |21 |
|35 |57 |- | |- | |31 | |21 |
|36 |58 |- |- | | | | |21 |
|37 |59 |- |- |- | |- | |21 |
|38 |60 |- |- |- | | | | |
|Total in each|4857 |1159 |322 |84 |“ |
|rank | | | | | |
(Emphasis supplied)
19. The Committee finally concluded that out of the requirement of
vacancies projected by Army Headquarters, the Government could release in
the first two years 700 vacancies as against 1484 recommended by it. The
additional vacancies recommended for creation without Peel Factor and those
with Peel Factor over a period of 5 years were indicated by the Committee
in the chart which is as under:
|Sl.No |Rank |Additional |Release of|Vacancies |Vacancies |
| | |vacancies |vacancies |recommended |recommended |
| | |required |over five |by the |by the |
| | |(without Peel|years with|Committee for|Committee for|
| | |Factor) to |Peel |release in |release in |
| | |bring down |Factor as |1st year |the 2nd year |
| | |age profile |projected | |at annual |
| | |as |by AHQ | |review |
| | |recommended | | | |
| | |by AHQ | | | |
|(a) |Lieutenant |29 |20 |05 |03 |
| |General | | | | |
|(b) |Major |159 |75 |10 |08 |
| |General | | | | |
|(c) |Brigadier |496 |222 |75 |35 |
|(d) |Colonel |2202 |1484 |400 |300 |
20. A careful reading of the report especially paras 20 and 36 extracted
above leaves no manner of doubt that the Committee emphasized the need for
bringing down the age profile of Unit Commanders in Operational Units only.
The Committee recognized Armoured Corps, Infantry, Mechanised Infantry,
Artillery, AD, Engineers and signals as operational formations leaving out
ASC, AOC, EME and other Minor Corps. The report clearly suggests that the
additional creation of 1484 vacancies in the rank of Colonels did not take
into account vacancies for Colonels in ASC, AOC, EME and other Minor Corps.
As a matter of fact, the report very clearly states that the age profile of
such Service formations for Minor Corps could be higher than that required
to operate in the combat conditions. We have, in that view, no hesitation
in holding that there was neither any recommendation regarding reduction in
age profile of Unit Commanders in ASC, AOC and EME nor was there any
recommendation for creation of additional vacancies to benefit officers
serving in those formations. The argument that the Committee had
recommended creation of 1484 vacancies for the benefit of Officers serving
in all formations is, therefore, without any basis and is accordingly
rejected. Additional vacancies were specifically recommended for the
operational formations mentioned above and were meant to be allocated to
those formations depending upon the recommended tenure of the Commissioning
Officers in those formations and the possibility of re-command. Inasmuch as
ASC, AOC, EME Officers did not benefit from the creation of additional
vacancies, there was neither any violation of the recommendations made by
the AV Singh Committee nor was the distribution of the additional vacancies
discriminatory as alleged. Question No. 1 is answered accordingly.
Re: Question No.2
21. The aggrieved officers appear to have argued before the Tribunal that
the recommendations made by AV Singh Committee regarding creation of
additional vacancies for allocation on “Command Exit Model” were never
accepted by the Central Government. In support of that submission they have
largely relied upon the fact that the first tranche of 750 vacancies
released by the Government were allocated by the Army Headquarters to Arms,
Arms Support and Services on a pro-rata basis. This, they contended, would
not have been possible if the Government had actually accepted the “Command
Exit Model” for allocation of the newly created additional vacancies. The
inference, according to them, is that “Command Exit Model” was never
accepted as a principle by the Government for allocation of additional
vacancies created pursuant to the recommendations made by the AV Singh
Committee.
22. On behalf of Government of India it is, per contra, contended by Mr.
Maninder Singh that the Government had unequivocally accepted the
recommendations of the Committee including the “Command Exit Model” for
allocation of the newly created vacancies. Reliance in support of that
contention was placed by Mr. Maninder Singh upon the relevant official
record which was produced before us for perusal. Reliance was also placed
by him upon an affidavit filed by the Government pursuant to our order
dated 22nd April, 2015 in which this Court demanded a specific answer from
the Government as to whether the “Command Exit Model” for allocation
suggested by AV Singh Committee had been accepted by it. We have, in light
of official record produced before us and the specific assertions made by
the Government in the affidavit filed on its behalf, no hesitation in
holding that the recommendations of the AVS Committee regarding allocation
of newly created vacancies being made on “Command Exit Model” was accepted
by the Government. It is trite that the Government and the Government
alone could say whether the recommendations of the Committee were accepted
by it. The Government have answered that question in the affirmative not
only on the basis of a statement made at the bar but also on the basis of
contemporaneous official record and the affidavit filed by a responsible
officer acting for and on behalf of the Government. The first part of the
question viz., whether the recommendations regarding “Command Exit Model”
for allocation of vacancies was accepted by the Government does not,
therefore, detain us any further.
23. The second part of the question, however, calls for some examination.
In the course of hearing and in our order dated 22nd April, 2015 we had
specifically invited the response of the Government as to the reasons for
allocation of the vacancies on pro rata basis if the Government had
accepted “Command Exit Model” as the basis for such allocation. We had also
asked the Government to explain whether any action had been taken by the
Government for breach of the said principle by the Army Headquarters while
making the allocations. Mr. Maninder Singh fairly conceded that the
allocation of 750 vacancies comprising the first tranche was made by the
Army Headquarters in breach of “Command Exit Model”. But such breach did
not either call for any action or withdrawal of the benefits drawn by the
officers who were beneficiaries of such allocation. Mr. Maninder Singh
contended that since the allocation stood made and the officers found
eligible for promotion stood promoted, it was neither advisable nor
feasible to withdraw the benefit so availed by the officers by reversing
the process for a fresh allocation. One of the reasons which, according to
Mr. Singh, made the breach inconsequential, was the fact that the
imbalance, if any, could be corrected partly if not wholly when the second
tranche of 734 vacancies were released for allocation on “Command Exit
Model”. It was also contended by Mr. Maninder Singh that the Government
had actually set off the excess allocation made in the first tranche while
allocating the second tranche of 734 vacancies on “Command Exit Model”.
This adjustment/set off may have remained confined to Arms/Arms Support
only but the mischief that had occurred earlier had been corrected no
matter qua those two streams only. Allocation made on pro rata basis to
services was not, however, withdrawn according to Mr. Maninder Singh, but
no further allocations were made in the second tranche of vacancies as the
recommendations made by the Committee never intended to benefit the
services either in the matter of reducing the age profile of Commanding
Officers or in the matter of creation of additional vacancies for them.
24. That 750 vacancies comprising the first tranche released by the
Government were allocated on a pro rata basis contrary to the
recommendations and the decision of the Government cannot be and has not
been denied. The question is whether the said allocation would by itself
undo either the recommendations made by the Committee or the decision taken
by the Government to allocate the newly created vacancies on “Command Exit
Model” principle. Our answer to that question is in the negative. Just
because allocation of vacancies in the first tranche was made by the Army
Headquarters ignoring the recommendations of the Committee and the
Government decision cannot possibly result in the reversal of the
Government decision nor can it negate the Command Exit Model. So also,
simply because the earlier allocation was not reversed as the officers had
picked up their ranks does not affect the binding nature of the Government
decision that the allocation should be on “Command Exit Model”.
25. Having said that, the adjustment/set off of the vacancies so
allocated against the entitlement of the arms and arms support in the
second tranche does not appear to be justified. If the Army Headquarters
committed a mistake in allocating vacancies on a pro rata basis contrary to
the recommendations and decision of the Government, any such error cannot
adversely affect officers serving in arms and arms support who may have
been entitled to a higher number of vacancies in the second tranche but who
were deprived of such allocation on account of the error in the previous
allocation made on pro rata basis. We pointed out this aspect to Mr.
Maninder Singh and asked him to take instructions whether the Government
was willing to correct the mistake arising out of such adjustment/set off
or justify the same on any juristic principle. To the credit of Mr.
Maninder Singh we must mention that he has on instructions fairly conceded
that the second tranche of 734 vacancies could and ought to have been
allocated on “Command Exit Model” principle without taking into
consideration the excess, if any, allocated to the arms and the arms
support on pro rata basis in the first tranche. Mr. Maninder Singh on that
basis also took instructions to file before us a statement showing the
number of vacancies that would have ordinary fallen to the share of arms
support corps if the second tranche of 734 vacancies were allocated without
making any adjustment of vacancies previously allocated. We shall turn to
that statement when we take-up Question No. 3 for discussion, but, before
we do so we need to conclude Question No.2 by holding that the
recommendations of the AVS Committee regarding allocation of additional
vacancies on “Command Exit Model” basis had been accepted by the
Government and that allocation of the first tranche of 750 vacancies by the
Army Headquarters on pro rata basis contrary to the Government decision and
the recommendations of the Committee did not affect the validity of the
decision nor did it amount to reversal of the said decision or its dilution
in any manner. Question No.2 is answered accordingly.
Re: Question No.3
26. A two-fold argument was advanced on behalf of the respondents on the
question of unfairness in the matter of allocation of vacancies. In the
first place, it was contended that while allocating vacancies to arms
support, the Government had set off/adjusted the vacancies which were
allocated no matter erroneously to arms support on a pro rata basis. This
adjustment was uncalled for as the excess allocated to arms support on pro
rata principle was because of an error committed by the Government or the
Army Headquarters which could not prejudice the officers who are otherwise
eligible for promotion against the vacancies, due on Command Exit
principle. In other words, allocation of 734 vacancies comprising the 2nd
tranche should have been made without any adjustment based on the earlier
pro rata allotment, meaning thereby that the deficit proportionate to the
number that has been set off/adjusted should be made up by fresh creation.
27. The second limb of the challenge is whether the Government was
justified in prescribing a command tenure of four years for Arms Support
officers. The argument was that if the command tenure is reduced to two
years as in the case of ‘arms’, the number of vacancies required by arms
support would increase. We shall deal with the two aspects ad seriatim.
28. The allocation of 734 vacancies, comprising the second tranche, when
made on standalone basis, (without any adjustment of the excess allocated
in the first tranche) is the only right method for allocation in our
opinion. The excess allocated in the first tranche, against which officers
who may not have otherwise picked up the higher rank were promoted, cannot
possibly deny the rightful due to those who would be entitled to claim
promotion against the vacancies in the second tranche. The respondents are,
therefore, right in arguing that the second tranche should be allocated on
a standalone basis. This exercise has been done by the appellant and the
result thereof filed by Mr. Maninder Singh in the form of a statement to
which we shall presently advert. But before we do so, we may as well deal
with the second aspect of the matter, namely whether the stipulation of a
command tenure of four years for Arms Support officers can be said to be so
arbitrary as to call for interference by a court or tribunal in exercise of
their power of judicial review. We must, at the outset, say that command
tenure is a policy matter on which the scope of judicial review is
extremely limited. What should be the tenure of a commanding officer for
Arms or Arms Support is for defence experts or for the Government to
determine on expert advice having regard to a variety of factors. It is
neither necessary nor proper for any court or tribunal to sit in judgment
over any such decision leave alone, substitute the same by its own
decision. If the Government has upon consideration of the nature of duties
and the need for battle preparedness of the force has taken a decision to
prescribe a tenure of upto four years for officers serving in Arms Support,
it will be difficult to fault the same in the absence of any patent
perversity in any such decision especially when no breach of any
fundamental or other right of any one complaining against the prescription
of such a tenure is demonstrated. No such infirmity has been pointed out
to us in the case at hand. Having said that, we must add to the credit of
the appellant and their counsel that the question of a shorter tenure was
considered by them favourably at our suggestion only to avoid any
frustration or disgruntlement among officers serving in arms support. Mr.
Maninder Singh, on instructions, submitted that the tenure of commanding
officers in arms support shall for purpose of creation/allocation of
vacancies, be taken as three years instead of four years. The Government
has on that basis calculated the number of vacancies that would be
additionally due to arms support on Command Exit Model as under:
| |Number of vacancies due to|Actual |Deficit |
| |1. AAD, 2. Engineers, 3. |distribution made| |
| |Signals out of II tranche |in 2009 with | |
| |of 734 posts taking the |tenure taken to | |
| |tenure to be 3 years |be 4 years | |
| |instead of 4 years | | |
|AAD |31 |7 |24 |
|Engineers |79 |17 |62 |
|Signal |66 |11 |55 |
|Total | | |141 |
29. It follows from the above that to the extent of a deficit of 141
vacancies in the cadres of Colonel to Arms Support (Artillery, AAD,
Engineers and signals) an unfair distribution of the vacancies from out of
the second tranche were released by the Government. It is, at the same
time, heartening to note that the Government have not taken an adversial
stand nor have the Government opposed the undoing of the injustice caused
to officers who were eligible for promotion in the year 2009 but were not
promoted on account of lesser number of vacancies allocated to Arms
Support. On the contrary Mr. Maninder Singh appearing for the Union
submitted that the Government would do anything to prevent any frustration
or disenchantment among the officers serving in the army by creating 141
additional posts in the cadre of Colonel for allocation to Arms Support so
that the same are utilized appropriately for promoting officers eligible
for such promotion. Mr. Singh, however, suggested a method of utilization
of the posts so created over a period of ten years to avoid an inequitable
distribution and also to minimize the scope of any of the batches getting
any undue benefit at the cost of other batches. Mr. Maninder Singh has also
highlighted problems of implementation like managing of the cadre in case
the utilization of the additional vacancies is to be done within a shorter
time frame of say five years. Having given our anxious consideration to
the submissions made at the bar, we are of the view that the additional 141
vacancies which ought to have been allocated to Arms Support in the year
2009 were unfairly denied to them. It has taken the aggrieved officers and
legal process considerable time to have the said unfairness and injustice
reversed by creation of additional vacancies. These vacancies shall,
therefore, be taken to have been created as in the year 2009 and promotions
against the same made from out of officers who were eligible for such
promotion as in that year. It is not in dispute that the Selection Board
that deals with such promotions has empanelled officers based on their
inter se merit and suitability. All that is, therefore, required is to
operate the said merit list for utilization of the additional vacancies now
being created. In other words, the additional creation shall, for all
intents and purposes, be deemed to have been available for being filled-up
as in the year 2009 but to be actually filled-up in 5 years between 2009-
2014. Those who pick-up the next rank against the said vacancies shall have
the benefit of retrospective seniority as is the practice in the Army but
such seniority on appointment shall not entitle them to the benefit of
higher pay-scale or arrears against the post to which they are promoted.
In other words, financial benefits shall accrue to officers promoted
pursuant to the creation of additional vacancies only with effect from the
date they are actually promoted.
Question No.3 is answered accordingly.
Re: Question No.4
30. We have while dealing with question No.1 already held that AV Singh’s
Committee did not have officers serving in the “services stream” namely
(ASC, AOC & EME) in view while it recommended lowering of the age profile
of Commanding Officers and creation of additional vacancies. The
recommendations were limited to Arms and Arms Support only. Even so the
question is whether the creation of such additional vacancies would ensure
the benefit for officers serving in the services on account of what such
officers claim to be ‘one cadre’ principle. The contention urged on behalf
of the respondents was that no matter some of the respondents belong to
services, they are a part of the same cadre and were, therefore, entitled
to a pro rata share out of the newly created vacancies at par with those
serving in Arms and Arms Support. Reliance in support of that contention
was placed upon a circular dated 12th November, 1987 issued by the Military
Secretary’s Branch. There is, in our view, no merit in the submission
urged on behalf of the respondents that officers allocated to Arms and Arms
Support and Services comprise a single cadre for purposes of promotion. We
say so because transferability which is one of the essential attributes of
posts comprising a single cadre is absent in the case of service officers
on the one hand and those serving in Arms and Arms Support on the other.
This Court has in several decisions examined what would constitute a common
cadre, and held that merely because the incumbents of two posts are placed
in the same scale of pay does not determine whether such posts constitute a
cadre (see) K. S. Srinivasan vs. Union of India (UOI) AIR 1958 SC 419. In
Chakradhar Paswan vs. State of Bihar & Ors. 1988 (2) SCC 214, this Court
declared that the term cadre has a definite legal connotation in service
jurisprudence and that interchangeability of the incumbents is one of the
attributes of a cadre just as similarity of the responsibilities and pay
may be indicative of all posts being in the same cadre. This Court
observed:
“8. … …In service jurisprudence, the term “cadre” has a definite legal
connotation. In the legal sense, the word “cadre” is not synonymous with
‘service’. Fundamental Rule 9(4) defines the word “cadre” to mean the
strength of a service or part of a service sanctioned as a separate unit.
The post of the Director which is the highest post in the Directorate, is
carried on a higher grade or scale, while the posts of Deputy Directors are
borne in a lower grade or scale and therefore constitute two distinct
cadres or grades. It is open to the Government to constitute as many cadres
in any particular service as it may choose according to the administrative
convenience and expediency and it cannot be said that the establishment of
the Directorate constituted the formation of a joint cadre of the Director
and the Deputy Directors because the posts are not interchangeable and the
incumbents do not perform the same duties, carry the same responsibilities
or draw the same pay. The conclusion is irresistible that the posts of the
Director and those of the Deputy Directors constitute different cadres of
the Service….”
(Emphasis supplied)
31. So also in M. Hara Bhupal vs. Union of India and Others (1997) 3 SCC
561, this Court found that interchangeability is a necessary element of the
posts being in the same cadre. In S. I. Rooplal and Another vs. Lt.
Governor through Chief Secretary, Delhi and others (2000) 1 SCC 644, this
Court was dealing with “equivalence of posts” and held that equivalence of
two posts is not judged by the sole factor of equal pay and identified four
factors in that regard namely (i) the nature and duties of the post, (ii)
the responsibilities and powers exercised by the officer holding a post;
the extent of territorial or other charge held or responsibilities
discharged; (iii) the minimum qualifications, if any, prescribed for
recruitment to the post; and (iv) the salary of the post. In State of U.P.
& Ors. vs. Bharat Singh & Ors., (2011) 4 SCC 120, this Court speaking
through one of us (Thakur, J.) held that transferability or
interchangeability of one incumbent to another in the cadre are essential
attributes of a common cadre.
32. Applying the above test to the case at hand we have no hesitation in
holding that officers serving in the Service stream of the Army do not
constitute a single cadre with officers serving in Arms and Arms Support,
no matter they may all be drawing the same salary, holding the same rank,
wearing the same uniform and serving the same employer with similar service
benefits. The true position is that allocation of officers to different
Arms and Services puts them in distinct cadres, with the result that those
comprising a particular cadre will have his or her promotional avenues
available against the posts comprising that cadre alone notwithstanding the
fact that the Government of India may, as a policy, attempt to ensure as
far as possible that officers of a given batch pick up their ranks around
the same time or within a reasonable span of their counterparts in other
cadres or that the disparity in the time frame for promotion is removed by
making promotions retrospective from the dates officers in the other cadre
have been promoted. Reliance by the respondents upon Circular dated 12th
November, 1987, is in our view misplaced. That circular, it is evident,
from a reading of the same was issued in connection with the implementation
of the Fourth Pay Commission to remove a certain doubt regarding the
interpretation of the term “cadre” as applicable to army officers. It was
in that context that the expression “cadre” has been explained in the
circular by reference to the method of allocation to Arms and Services, and
similarity of other conditions of service. The circular, it is evident,
does not constitute a statement of law much less can the exposition of the
term ‘cadre’ as given therein operate as estoppel against the union. The
circular it is evident is an internal communication and has been issued in
a totally different context. We, therefore, have no difficulty in answering
question No.4 in the negative and holding that officers in service streams
do not constitute a single cadre with those serving in Arms and Arms
Support for purposes of allocation of additional vacancies created pursuant
to the recommendations made to the Government by AV Singh Committee.
Re: question No. 5
33. We have, while answering question No. 4 above, already held that
officers in different streams constitute different cadres. Since however,
the argument based on legitimate expectation is pitched on a broader
principle, we need to recapitulate on the risk of repetition that the
Indian Army comprises the following 11 major streams: (1) Armoured Corps,
(2) Infantry, (3) Mechanised Infantry, (4) Artillery (5) Air Defence (AD)
(6) Engineers, (7) Signals (8) Army Service Corps (9) Army Ordnance Corps
(10) Electronical and Mechanical Engineers and (11) Other Corps including
Intelligence, Aviation and other Minor Corps. The first of these three
streams namely Armoured Corps, Infantry, Mechanised Infantry are called as
‘Combat Arms’ which participate in direct tactical land combat in a war
with requisite weaponary. The next four namely Artillery, Air Defence
(AD), Engineers, and Signals are commonly known as ‘Combat Support Arms’
while Army Service Corps (ASC), Army Ordnance Corps (AOC), Electronical and
Mechanical Engineers (EME) and other minor corps are known as ‘Services’.
As noticed in the beginning of the judgment, the newly selected Gentlemen
Cadets get inducted as Commissioned Officers on successful completion of
their training from the training academy. The Defence Service Regulations,
Regulations for the Army govern the first appointment of the Commissioned
Officers. Para 63 of the said Regulations reads:
“…. 63. First Appoinment – (a) On first appointment to a permanent
commission in the Regular Army, officers will be allocated to different
corps. They will be required to do such basic training or attachment as
may be prescribed from time to time for each corps, by Army HQ.
An officer has no claim to a particular corps or to a particular unit of
the corps. However, an officer may submit an application in writing to
serve with a particular corps or a unit, which will be given due
consideration subject to the requirements of the service……”
34. The choice of the cadet plays an important role in his allocation and
induction in the 11 streams mentioned above. That is precisely why towards
the completion of pre-commission training each cadet is required to submit
his’/her choice of induction into any of the abovementioned 11 streams.
Policy guidelines in this regard have been issued from time to time by the
Adjutant General’s Branch which lay down the procedure by which cadets are
allocated to different Arms, Combat Support Arms and Services. The broad
allocation policy as stipulated in Adjutant General’s Branch Circular dated
4th August, 2006 issued to the Indian Military Academy, Dehradun lays down
the working parameters to ensure equitable distribution of GCs/LCs to
Arms/Services through consideration of several factors stipulated in the
same. Merit and caliber spread is one of the factors taken into
consideration. The policy envisages that first 1% GCs (in order of merit)
would constitute the “Super Block” and will be allotted to the Army/Service
of their choice irrespective of other factors. It also provides for
dividing GCs into blocks consisting of 25 to 35 GCs to ensure an even
distribution of caliber to all Arms and Services. Parental claims are also
taken into consideration while making such allocation just as the choice of
General Cadet is one such factor that is taken into consideration. The
policy envisages the following factors to be kept in mind while exercising
the choice by the cadets:
Super Block GCs opting for Arms will be permitted to give choice of a
particular Regiment/Battalion.
GCs/LCs exercising Parental Claims will be permitted to give choice of
particular Regt/Bn/Gp.
GCs can offer three choices in their order of preference.
GCs can opt for Arms only or Arms/Services in their three choices.
GCs can however opt for only one Service in their three choices.
Optees for the Parachute Regiment can indicate choice of five PARA (SF),
units (1,2,3,4,9, 10 & 21) in order of preference. Volunteer for Para (SF)
will be deemed to have volunteered for Para Battalion also.
GCs opting for Artillery will be permitted to specify choice of
Fd/Med/SATA/Msl Gps.
GC opting for AD Arty will be deemed to have opted forArtillery.
Science Stream GCs will be preferred for allocation to AAD. If however,
such GCs are not available, non-science GCs, preferably those who have
studied Maths and Physics at 10+2 stage will also be inducted. Parental
claims of non-science GCs in AAD will however, be honoured.
GCs opting for Armd Regt/Mech Inf will be permitted to specify choice of
Armd Regt/Mech Inf/Guards Bns.
GCs opting for Armoured Corps or Mechanised Infantry will be deemed to have
opted for Infantry.
GCs opting for Inf will give choice of three Regts (in order of preference)
GCs/LCs opting for Corps of Engrs will give the preference of Gps:
Madras/Bengal/Bombay.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3208 OF 2015
UNION OF INDIA AND ANR. …APPELLANTS
VERSUS
LT. COL. P.K. CHOUDHARY AND ORS. …RESPONDENTS
WITH
CIVIL APPEAL NO. D.11682 OF 2015
UNION OF INDIA AND ANR. …APPELLANTS
VERSUS
IC 55047L LT. COL. RAY GAUTAM
PRASAD (RETD.) & ORS. …RESPONDENTS
WITH
CIVIL APPEAL NO. D.10623 OF 2015
UNION OF INDIA AND ANR. …APPELLANTS
VERSUS
IC 54169H LT. COL. FARAN SIDIQUI & ORS. …RESPONDENTS
J U D G M E N T
T.S. THAKUR, CJI.
1. These appeals under Section 31 of the Armed Forces Tribunal Act, 2007
are directed against a judgment and order dated 2nd March, 2015 passed by
the Armed Forces Tribunal, Principal Bench, New Delhi, whereby Original
Application No. 430/2012 filed by the Respondents has been allowed and
policy circular dated 20th January, 2009 issued by the Government of India
quashed with a direction to the Appellant-Union of India to consider the
Respondents for promotion to the rank of Colonel by creating supernumerary
posts with effect from the date the said Respondents were eligible for such
promotion. Facts giving rise to the proceedings before the Tribunal and the
present appeals may be summarized as under:
2. The Respondents were commissioned into various Corps/streams of the
Indian Army after they successfully passed out from the Indian Military
Academy/Officers Training Academy. The initial allocation of the
respondents to different Corps was based on parameters prescribed for that
purpose depending inter alia upon the number of actual vacancies in Arms,
Arms Support or Services, operational commitments and requirements arising
from new raisings. Merit of the candidates, the need for an equal
distribution of vacancies applying what is described as ‘Black Method’ and
the individual choice expressed by the cadets were also some of the major
factors that were taken into consideration while making allocations.
3. It is common ground that there was no challenge to the allocation of
cadets to Arms, Arms Support or Services at any point of time. It is also
not in dispute that four out of the five Respondents viz. Lt. Col. P.K.
Choudhary, Lt. Col. G.S. Dhillon, Lt. Col. A.K. Pandey and Lt. Col. R.M.S.
Pundir had opted for commission into Army Service Corps (AMC) and none of
them had opted either for Combat Arms or Arms Support. Similarly, Lt. Col.
Ajay Chawla-Respondent No.5 in this appeal had given Army Service Corps as
one of the options of his choice. The respondents were accordingly
allocated and have served in their respective Corps and Raisings as Lt.
Colonels, which rank they held at the time of filing Original Application
No.430 of 2012 in the Tribunal and continue to do so at present.
4. Post-Kargil War, the Government of India constituted what was called
Kargil Review Committee which was followed by a Committee headed by Shri
Ajay Vikram Singh (‘the AVSC’, for short) with a view to explore ways and
means for enhancing the operational preparedness of the Indian Army in its
fighting capabilities especially in Combat Arms. The Committee comprised,
apart from Shri Ajay Vikram Singh, a representative of the Ministry of
Defence (Finance), Director General (MP&PS), Army Headquarters, Joint
Secretary (G), Ministry of Defence and several senior officers of the
Indian Army including Adjutant General, Army Headquarters, Chief of
Personnel, Naval Headquarters and Air Officer-in-Charge Personnel, Air
Headquarters. The Committee appears to have conducted extensive
deliberations and submitted a report suggesting both short term and long
term measures that were, in its opinion, necessary for restructuring of the
Officers’ Cadre of the Army. The Committee recommended that although the
report primarily focused on the restructuring of the Officers’ Cadre of the
Army, the same will be applicable in an equal measure to the Navy and the
Air Force who could work out their service specific requirements including
additional vacancies required at various ranks on operational/functional
grounds. While we shall deal with the recommendations made by the Committee
in greater detail in the later part of this judgment, we may point out that
one of the significant recommendations which the Committee made to the
Government was about the lowering of age profile of the Officers in the
Indian Army. For instance, instead of existing age profile of 41-42 years
for Colonels the Committee recommended lowering of the age profile to 36-37
years. Similarly, for Brigadiers the Committee recommended an age profile
of 44-45 years instead of 50-51 years at present. The age of Major Generals
was profiled at 51-52 years as against 54-55 years under the existing
system. The age of Lieutenant Generals was, according to the Report,
profiled at 55-56 years instead of 56-57 years under the existing system.
The lowering of age profile was considered by the Committee to be necessary
for enhancing the optimal combat effectiveness of the Army. To achieve that
objective, the Committee recommended creation of 1484 additional vacancies
in the ranks of Colonel out of which 400 vacancies were to be released in
the first year while the another 300 vacancies were to be released in the
second year after an annual review. The implementation of the
recommendations had to be progressive, coordinated and corroborated for the
desired results to flow for the benefit of the Army.
5. The appellants’ case is that the recommendations made by the AVS
Committee were accepted by the Government and 1484 additional vacancies in
the rank of Colonel were sanctioned with a view to lowering the age of
Commanding Officers in combat and combat support arms resulting in an
increased upward mobility of the Officers Cadre. The additional vacancies
were to be released in two phases spread over a period of four years from
2004 to 2008.
6. It is common ground that in the first phase, the Government released
750 vacancies, out of the newly created 1484 vacancies, in the rank of
Colonel by an order dated 21st December, 2004. These vacancies were
sanctioned by upgradation of appointments in the rank of Lt. Colonel to
Colonel in a phased manner spread over a period of two years i.e. 2004-2005
and were distributed amongst Arms, Arms Support and Services on a pro-rata
basis. The result was that not only did the additional vacancies become
available to Arms and Arms Support but the same were allocated even to
those serving in Services like ASC, AOC and EME. Thus far, there was no
difficulty as officers serving in Arms, Arms Support and Services in
different Corps of the Army were all equally benefitted by the fresh
creation. The problem started with the release of another 734 vacancies in
the second phase by an order dated 3rd November, 2008. These additional
vacancies were sanctioned by effecting upgradation in a phased manner
spread over a period of five years and were directed to be allocated on
what is described as “Command Exit Model” which the Government of India
claimed was in consonance with the functional and operational requirements
of the Army.
7. Aggrieved by the denial of a pro-rata share in the 2nd tranche of the
additional vacancies released by the Government, officers like the
respondents who are serving in the Arms Support and Service Corps of the
Army, filed Original Applications No. 430 of 2012, 77 of 2014 and 147 of
2015 before the Armed Forces Tribunal, Principal Bench, New Delhi to
challenge the Government’s policy dated 29th January, 2009 on the ground
that the same was discriminatory, arbitrary and violative of fundamental
rights guaranteed to them. They prayed for quashing of the policy besides
a direction to the Government of India to allocate vacancies in the rank of
Colonel to each Corps on pro rata basis and convene Special Boards for
promotion of the eligible Officers to such posts. The respondents also
prayed for a direction to the Union of India to grant to them ‘Ante-Date’
seniority and arrears of pay and allowances from the date an officer
immediately junior to the said respondents in the rank of Lt. Colonel
serving in Arms and Arms Support Units was granted his promotion.
8. The Appellant-Union of India contested the claim made by the
respondents and argued that the recommendations made by the AVS Committee
were limited to Officers serving in the Arms and Arms Support and
specifically left out services from their purview. It was also argued that
the Government of India had approved and accepted the recommendations made
by the AVS Committee and sanctioned 1484 additional vacancies specially
created for allocation on “Command Exit Model” to Arms and Arms Support
Units for whose benefit such new vacancies were created. The allegation
that the policy formulated by the Government or the “Command Exit Model”
for allocation of vacancies was discriminatory and/or arbitrary was stoutly
denied.
9. By its order dated 2nd March, 2015 the Armed Forces Tribunal,
Principal Bench, New Delhi has allowed the Original Application(s) filed by
the respondents and quashed Government of India policy dated 21st January,
2009 with the direction that the Government of India shall create
supernumerary posts so that the additional vacancies so created are
allocated to all the three streams on a pro rata basis. The present appeal
under Section 31 of the Armed Forces Tribunal Act, 2007 calls in question
the correctness of the judgment and order as already noticed above.
10. We have heard learned counsel for the parties at considerable length
who have taken us through the judgment and order passed by the Tribunal and
the documents placed on record in support of their respective versions. The
following questions fall for our determination.
Did the AV Singh Committee recommend lowering of age profile and consequent
creation of additional vacancies for all the three streams viz. Arms, Arms
Support and Services or were the recommendations limited to Arms and Arms
Support only?
Were the recommendations made by the AV Singh Committee regarding the need
for creation of additional vacancies and their allocation on “Command Exit
Model” accepted by the Central Government? If so, what is the effect of
allocation of the first tranche of 750 vacancies by the Army Headquarters
on pro rata basis among all the three streams?
Whether there was any illegality, irregularity or unfairness in the matter
of allocation of vacancies to Arms Support on “Command Exit Model”
principle?
Do Officers serving in Arms, Arms Support and Services constitute a single
cadre?
In case the answer to the question No. 4 is in negative, is there any
legitimate expectation for officers commissioned into the Indian Army in a
given batch that in the matters of their future promotion the Government
will maintain batch parity among officers allocated to Arms, Arms Support
and Services.
Re.: Question No. 1
11. On behalf of the respondents it was argued by Ms. Meenakshi Lekhi,
Advocate that the recommendations made by the AVS Committee were applicable
to officers serving in all the three streams of the Army viz. Arms, Arms
Support and Services and that the creation of 1484 additional vacancies of
Colonels was meant to benefit all such officers regardless of the Corps in
which they were commissioned. Support for that submission was largely
drawn by learned counsel from the AVS Committee report and the fact that
the 750 vacancies sanctioned and released in the first tranche were
distributed pro-rata among all the formations. It was urged that having
given to officers serving in Arms Support and Services, their share of the
newly created vacancies on a pro-rata basis and denial of a similar share
out of vacancies sanctioned in the second phase was unjustified and
discriminatory.
12. On behalf of the Appellant-Union of India it was contended by Mr.
Maninder Singh, ASG, that the recommendations made by the AVS Committee
favoured creation of additional vacancies only for Arms and Arms Support
leaving out ‘Services’ like ASC, AOC and EME. It was argued that the
recommendations were accepted and the vacancies sanctioned for being filled-
up on ‘Command Exit Model’ which model constituted the very basis of the
report submitted by the Committee. The fact that 750 vacancies created in
the first phase were distributed among Arms, Arms Support and Services on a
pro-rata basis did not, according to Mr. Singh, by itself entitle officers
serving in ‘Services’ to claim a pro-rata share in the second tranche of
vacancies created by the Government. If the pro-rata allocation to
services was not in tune with the recommendations made by the Committee and
the decision taken by the Government, the same could not create any right
or equitable claim in favour of those who had benefitted from the mistake
earlier committed argued the learned counsel.
13. The entitlement to a share in the newly created vacancies depends
upon whether the Committee had recommended lowering of age profile for
officers serving in the ‘Services’ stream of the Army that is because the
creation of additional vacancies was meant to achieve a purpose – viz.
lowering of age profile of the Commanding Officers.
14. The answer to the question whether the Committee recommended lowering
of age profile and creation of additional vacancies for Arms, Arms Support
and Services, can in turn, be answered only by reference to the report of
the Committee. We have been taken through the report over and over again
by learned counsel for the parties, but, we find it difficult to accept the
submission made by Ms. Lekhi that the recommendations were for the benefit
of all officers and streams across the board. A careful reading of the
report would show that the Army Headquarters had made its presentations to
the Committee followed by a series of meetings to discuss and deliberate
upon each one of the issues referred for examination to the Committee. The
report made a reference to the Army Headquarters Paper on Restructuring of
the Officer Cadre, which, in turn, dealt with the issue of organisational
imbalances arising out of steep pyramidical structure of the cadre and the
issues relating to individual aspirations left unfulfilled due to
inadequate career progression, disparity with Class-A civil services and
harsh service conditions. The paper presented by the Army Headquarters also
suggested some measures for resolving the issues which included reducing
the large base in the cadre structure by making a dual-stream officer cadre
one having a lean regular cadre and the other a support cadre of Short
Service Commission Officers, reduction in the ages of Battalion and Brigade
Commanders through early promotion by increasing the cadre strength,
upgradation of Sub Unit Commanders to the rank of Lt. Colonel. The Army
Headquarters also proposed grant of early promotions in the first three
ranks viz. Captain, Major and Lt. Colonel, promotion to the grade of
Colonel on time-scale basis after 23 years of service for superseded
officers and grant of Brigadier’s pay to all Colonels in the last year of
their service to entitle them to Brigadier’s pension. The report submitted
by the committee outlined the issues raised before it and identified two
inter-related issues which were, in its opinion, at the core of the whole
problem viz., high age profile and cadre stagnation.
15. The Committee also took note of the recommendation made by the Kargil
Review Committee, for lowering the age profile of command elements. The
Committee noted that in comparison to other Armies like those of Pakistan,
China, UK, Germany and Israel, the Indian Army had a higher age profile
which adversely affected their physical alertness and operational
preparedness. The Committee noted that Officers beyond the age of 50 years
find it difficult to sustain mental and physical alertness at high altitude
and hazardous and hostile topography along the Line of Control where a
Brigade Commander is required to serve for effective command and control.
This was true even about Battalion Commanders who are required to move
during operations with their units for effective command and control. The
Committee noted that for Battalion Commanders even a higher degree of
physical fitness and alertness is required which is difficult since Indian
Army Officers assume command at the age of 41-42 years and continue till 44-
45 years of age in comparison to those in Pakistan and Chinese Armies where
the age of the Battalion Commander, on an average, is about 35 and 40 years
respectively. The Committee, therefore, took the view that the officers of
Combat Arms should assume command at the age of 36-37 years by which time
they would have attained the requisite experience and the ability to finish
their command tenure before attaining 40 years of age. The Committee, then,
took stock of the total Units commanded by Colonels in the Indian Army and
the desirable tenure for each type of Unit considered necessary to maintain
optimum operational effectiveness. The Committee, at the same time, noted
the possibility of re-command in respect of certain Arms and Services which
have some Units permanently located in peace areas or where the Unit
Commanders are not physically required to operate in combat/difficult
terrain. Taking note of the structures, the Committee determined that the
approximate number of Colonels that would be required every year is 406.
The details are set out in a chart forming part of the report which may be
gainfully extracted at this stage:
|Srl. |Arm/Service |Number of |Desired|Period officer in|Number of |
|No. | |Units |Tenure |command (Years) |Colonel |
| | | |(Years)| |required per |
| | | | | |year |
|(a) |Armoured Corps |62 | |3 |3 |No |21 | |
| | | | | | |re-command| | |
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
| | | |1038 | | | | |354 |
|(b) |Infantry |448 | |2.5 |2.5 |-do- |179 | |
|(c) |Mechanised |39 | |3 |3 |-do- |13 | |
| |Infantry | | | | | | | |
|(d) |Artillery |210 | |3 |3 |-do- |70 | |
|(e) |AD |50 | |2-3 |4 |Possibilit|13 | |
| | | | | | |y of | | |
| | | | | | |re-command| | |
|(f) |Engineers |132 | |2-3 |4 |-do- |33 | |
|(g) |Signals |97 | |2-3 |4 |-do- |25 | |
|(h) |ASC |87 |2-3 |5 |-do- |17 | |
|(i) |AOC |60 |2-3 |5 |-do- |12 | |
|(j) |EME |114 |2-3 |5 |-do- |23 | |
| |Total |1299 | |406 |
16. The Committee, then, picked-up 354 Colonels for Armoured Corps,
Infantry, Mechanised Infantry, Field Artillery, Air Defence Artillery,
Engineers and Signals, which were described by the Committee as operational
formations and which, in the opinion of the Committee, called for reduction
in the age profile for the Unit Commanders. Para 20 of the report makes
the Committee’s intention manifest when it says:
“20. Out of the overall requirement of 406 Colonels every year as per the
table above, there would be a need of 354 Colonels for Armoured Corps,
Infantry, Mechanised Infantry, Field Artillery, Air Defence Artillery,
Engineers and Signals, which are operational formations, keeping in view
that the need to bring down age profile of unit commanders is primarily for
the operational units. In the above table, for the arms listed for Ser (a)
to (d) it is desirable that the officers’ have one command tenure, as a
younger age profile is required in consonance with the operational needs.
The rest could get more than one tenure for command in the Colonels rank.”
(Emphasis supplied)
17. The Committee, then, examined the number of vacancies required in the
rank of Colonels and Brigadiers and came to the conclusion that a total of
374 Colonels and 143 Brigadiers vacancies were available every year
exclusively in the Arms, whereas, there was a requirement of vacancies for
354 Colonels and 129 Brigadiers for the Arms. These vacancies were found to
be adequate to keep the whole cadre structure in a state of equilibrium,
but, that equilibrium will be at the current high age profile. The
Committee said:
“… … … If we look only at the Arms, which form a subset of the whole cadre,
and towards which the age reduction exercise is principally directed, we
find that approximately 143 Colonels and 31 Brigadiers are promoted to the
next higher rank every year and 241 and 112 respectively exit each year on
retirement. Thus, a total of 374 Colonel’s and 143 Brigadier’s vacancies
are available every year exclusively in the Arms, whereas there is a
requirement of vacancies for 354 Colonels and 129 Brigadiers for the Arms
as per table at paras 17 and 19. These vacancies are adequate to keep the
whole cadre structure in a state of equilibrium, but that equilibrium will
be at the current high age profile. Therefore, a mechanism needs to be
found to bring the cadre structure, especially of the Arms, to the lower
age profile as recommended in Para 13.”
18. The Committee, then, proposed short-term and long-term measures.
Applying the parameters for short term and long term measures proposed by
the Committee, the Committee, in para 36 of its report, worked out the
vacancies required for Colonels in Armoured Corps, Infantry, Mechanised
Infantry, Artillery, AD, Engineers and Signals and Brigadiers in the
General Cadre, Field Artillery and Engineers.
“36. Based on these parameters, vacancies that would be required for
Colonels in Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD,
Engineers and Signals and Brigadiers in the General Cadre, Field Artillery
and Engineers, if age profile is to be brought down as per para 13 are
given in the table below. The figures reflected in the table do not
include vacancies for Colonels in ASC, AOC, EME and other Minor Corps whose
age profile can be higher than that required to operate under combat
conditions.
|Service |Age |Colonel |Brigadier | |Major | |Lieutenant |
| | | | | |General | |General |
|15 |37 |354 | |- | |- | |- |
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
| | | |2832 | | | | | |
|16 |38 |354 | |- | |- | |- |
|17 |39 |354 | |- | |- | |- |
|18 |40 |354 | |- | |- | |- |
|19 |41 |354 | |- | |- | |- |
|20 |42 |354 | |- | |- | |- |
|21 |43 |354 | |- | |- | |- |
|22 |44 |354 | |- | |- | |- |
|23 |45 |225 | |129 | |- | |- |
| | | | | | | | | |
| | | | | |774 | | | |
| | | | | | | | | |
| | | |2025 | | | | | |
|24 |46 |225 | |129 | |- | |- |
|25 |47 |225 | |129 | |- | |- |
|26 |48 |225 | |129 | |- | |- |
|27 |49 |225 | |129 | |- | |- |
|28 |50 |225 | |129 | |- | |- |
|29 |51 |225 | |77 | |52 | |- |
| | | | | | | | | |
| | | | | |385 | |260 | |
|30 |52 |225 | |77 | |52 | |- |
|31 |53 |225 | |77 | |52 | |- |
|32 |54 |- | |77 | |52 | |- |
|33 |55 |- | |77 | |52 | |- |
|34 |56 |- | |- | |31 |62 |21 |
|35 |57 |- | |- | |31 | |21 |
|36 |58 |- |- | | | | |21 |
|37 |59 |- |- |- | |- | |21 |
|38 |60 |- |- |- | | | | |
|Total in each|4857 |1159 |322 |84 |“ |
|rank | | | | | |
(Emphasis supplied)
19. The Committee finally concluded that out of the requirement of
vacancies projected by Army Headquarters, the Government could release in
the first two years 700 vacancies as against 1484 recommended by it. The
additional vacancies recommended for creation without Peel Factor and those
with Peel Factor over a period of 5 years were indicated by the Committee
in the chart which is as under:
|Sl.No |Rank |Additional |Release of|Vacancies |Vacancies |
| | |vacancies |vacancies |recommended |recommended |
| | |required |over five |by the |by the |
| | |(without Peel|years with|Committee for|Committee for|
| | |Factor) to |Peel |release in |release in |
| | |bring down |Factor as |1st year |the 2nd year |
| | |age profile |projected | |at annual |
| | |as |by AHQ | |review |
| | |recommended | | | |
| | |by AHQ | | | |
|(a) |Lieutenant |29 |20 |05 |03 |
| |General | | | | |
|(b) |Major |159 |75 |10 |08 |
| |General | | | | |
|(c) |Brigadier |496 |222 |75 |35 |
|(d) |Colonel |2202 |1484 |400 |300 |
20. A careful reading of the report especially paras 20 and 36 extracted
above leaves no manner of doubt that the Committee emphasized the need for
bringing down the age profile of Unit Commanders in Operational Units only.
The Committee recognized Armoured Corps, Infantry, Mechanised Infantry,
Artillery, AD, Engineers and signals as operational formations leaving out
ASC, AOC, EME and other Minor Corps. The report clearly suggests that the
additional creation of 1484 vacancies in the rank of Colonels did not take
into account vacancies for Colonels in ASC, AOC, EME and other Minor Corps.
As a matter of fact, the report very clearly states that the age profile of
such Service formations for Minor Corps could be higher than that required
to operate in the combat conditions. We have, in that view, no hesitation
in holding that there was neither any recommendation regarding reduction in
age profile of Unit Commanders in ASC, AOC and EME nor was there any
recommendation for creation of additional vacancies to benefit officers
serving in those formations. The argument that the Committee had
recommended creation of 1484 vacancies for the benefit of Officers serving
in all formations is, therefore, without any basis and is accordingly
rejected. Additional vacancies were specifically recommended for the
operational formations mentioned above and were meant to be allocated to
those formations depending upon the recommended tenure of the Commissioning
Officers in those formations and the possibility of re-command. Inasmuch as
ASC, AOC, EME Officers did not benefit from the creation of additional
vacancies, there was neither any violation of the recommendations made by
the AV Singh Committee nor was the distribution of the additional vacancies
discriminatory as alleged. Question No. 1 is answered accordingly.
Re: Question No.2
21. The aggrieved officers appear to have argued before the Tribunal that
the recommendations made by AV Singh Committee regarding creation of
additional vacancies for allocation on “Command Exit Model” were never
accepted by the Central Government. In support of that submission they have
largely relied upon the fact that the first tranche of 750 vacancies
released by the Government were allocated by the Army Headquarters to Arms,
Arms Support and Services on a pro-rata basis. This, they contended, would
not have been possible if the Government had actually accepted the “Command
Exit Model” for allocation of the newly created additional vacancies. The
inference, according to them, is that “Command Exit Model” was never
accepted as a principle by the Government for allocation of additional
vacancies created pursuant to the recommendations made by the AV Singh
Committee.
22. On behalf of Government of India it is, per contra, contended by Mr.
Maninder Singh that the Government had unequivocally accepted the
recommendations of the Committee including the “Command Exit Model” for
allocation of the newly created vacancies. Reliance in support of that
contention was placed by Mr. Maninder Singh upon the relevant official
record which was produced before us for perusal. Reliance was also placed
by him upon an affidavit filed by the Government pursuant to our order
dated 22nd April, 2015 in which this Court demanded a specific answer from
the Government as to whether the “Command Exit Model” for allocation
suggested by AV Singh Committee had been accepted by it. We have, in light
of official record produced before us and the specific assertions made by
the Government in the affidavit filed on its behalf, no hesitation in
holding that the recommendations of the AVS Committee regarding allocation
of newly created vacancies being made on “Command Exit Model” was accepted
by the Government. It is trite that the Government and the Government
alone could say whether the recommendations of the Committee were accepted
by it. The Government have answered that question in the affirmative not
only on the basis of a statement made at the bar but also on the basis of
contemporaneous official record and the affidavit filed by a responsible
officer acting for and on behalf of the Government. The first part of the
question viz., whether the recommendations regarding “Command Exit Model”
for allocation of vacancies was accepted by the Government does not,
therefore, detain us any further.
23. The second part of the question, however, calls for some examination.
In the course of hearing and in our order dated 22nd April, 2015 we had
specifically invited the response of the Government as to the reasons for
allocation of the vacancies on pro rata basis if the Government had
accepted “Command Exit Model” as the basis for such allocation. We had also
asked the Government to explain whether any action had been taken by the
Government for breach of the said principle by the Army Headquarters while
making the allocations. Mr. Maninder Singh fairly conceded that the
allocation of 750 vacancies comprising the first tranche was made by the
Army Headquarters in breach of “Command Exit Model”. But such breach did
not either call for any action or withdrawal of the benefits drawn by the
officers who were beneficiaries of such allocation. Mr. Maninder Singh
contended that since the allocation stood made and the officers found
eligible for promotion stood promoted, it was neither advisable nor
feasible to withdraw the benefit so availed by the officers by reversing
the process for a fresh allocation. One of the reasons which, according to
Mr. Singh, made the breach inconsequential, was the fact that the
imbalance, if any, could be corrected partly if not wholly when the second
tranche of 734 vacancies were released for allocation on “Command Exit
Model”. It was also contended by Mr. Maninder Singh that the Government
had actually set off the excess allocation made in the first tranche while
allocating the second tranche of 734 vacancies on “Command Exit Model”.
This adjustment/set off may have remained confined to Arms/Arms Support
only but the mischief that had occurred earlier had been corrected no
matter qua those two streams only. Allocation made on pro rata basis to
services was not, however, withdrawn according to Mr. Maninder Singh, but
no further allocations were made in the second tranche of vacancies as the
recommendations made by the Committee never intended to benefit the
services either in the matter of reducing the age profile of Commanding
Officers or in the matter of creation of additional vacancies for them.
24. That 750 vacancies comprising the first tranche released by the
Government were allocated on a pro rata basis contrary to the
recommendations and the decision of the Government cannot be and has not
been denied. The question is whether the said allocation would by itself
undo either the recommendations made by the Committee or the decision taken
by the Government to allocate the newly created vacancies on “Command Exit
Model” principle. Our answer to that question is in the negative. Just
because allocation of vacancies in the first tranche was made by the Army
Headquarters ignoring the recommendations of the Committee and the
Government decision cannot possibly result in the reversal of the
Government decision nor can it negate the Command Exit Model. So also,
simply because the earlier allocation was not reversed as the officers had
picked up their ranks does not affect the binding nature of the Government
decision that the allocation should be on “Command Exit Model”.
25. Having said that, the adjustment/set off of the vacancies so
allocated against the entitlement of the arms and arms support in the
second tranche does not appear to be justified. If the Army Headquarters
committed a mistake in allocating vacancies on a pro rata basis contrary to
the recommendations and decision of the Government, any such error cannot
adversely affect officers serving in arms and arms support who may have
been entitled to a higher number of vacancies in the second tranche but who
were deprived of such allocation on account of the error in the previous
allocation made on pro rata basis. We pointed out this aspect to Mr.
Maninder Singh and asked him to take instructions whether the Government
was willing to correct the mistake arising out of such adjustment/set off
or justify the same on any juristic principle. To the credit of Mr.
Maninder Singh we must mention that he has on instructions fairly conceded
that the second tranche of 734 vacancies could and ought to have been
allocated on “Command Exit Model” principle without taking into
consideration the excess, if any, allocated to the arms and the arms
support on pro rata basis in the first tranche. Mr. Maninder Singh on that
basis also took instructions to file before us a statement showing the
number of vacancies that would have ordinary fallen to the share of arms
support corps if the second tranche of 734 vacancies were allocated without
making any adjustment of vacancies previously allocated. We shall turn to
that statement when we take-up Question No. 3 for discussion, but, before
we do so we need to conclude Question No.2 by holding that the
recommendations of the AVS Committee regarding allocation of additional
vacancies on “Command Exit Model” basis had been accepted by the
Government and that allocation of the first tranche of 750 vacancies by the
Army Headquarters on pro rata basis contrary to the Government decision and
the recommendations of the Committee did not affect the validity of the
decision nor did it amount to reversal of the said decision or its dilution
in any manner. Question No.2 is answered accordingly.
Re: Question No.3
26. A two-fold argument was advanced on behalf of the respondents on the
question of unfairness in the matter of allocation of vacancies. In the
first place, it was contended that while allocating vacancies to arms
support, the Government had set off/adjusted the vacancies which were
allocated no matter erroneously to arms support on a pro rata basis. This
adjustment was uncalled for as the excess allocated to arms support on pro
rata principle was because of an error committed by the Government or the
Army Headquarters which could not prejudice the officers who are otherwise
eligible for promotion against the vacancies, due on Command Exit
principle. In other words, allocation of 734 vacancies comprising the 2nd
tranche should have been made without any adjustment based on the earlier
pro rata allotment, meaning thereby that the deficit proportionate to the
number that has been set off/adjusted should be made up by fresh creation.
27. The second limb of the challenge is whether the Government was
justified in prescribing a command tenure of four years for Arms Support
officers. The argument was that if the command tenure is reduced to two
years as in the case of ‘arms’, the number of vacancies required by arms
support would increase. We shall deal with the two aspects ad seriatim.
28. The allocation of 734 vacancies, comprising the second tranche, when
made on standalone basis, (without any adjustment of the excess allocated
in the first tranche) is the only right method for allocation in our
opinion. The excess allocated in the first tranche, against which officers
who may not have otherwise picked up the higher rank were promoted, cannot
possibly deny the rightful due to those who would be entitled to claim
promotion against the vacancies in the second tranche. The respondents are,
therefore, right in arguing that the second tranche should be allocated on
a standalone basis. This exercise has been done by the appellant and the
result thereof filed by Mr. Maninder Singh in the form of a statement to
which we shall presently advert. But before we do so, we may as well deal
with the second aspect of the matter, namely whether the stipulation of a
command tenure of four years for Arms Support officers can be said to be so
arbitrary as to call for interference by a court or tribunal in exercise of
their power of judicial review. We must, at the outset, say that command
tenure is a policy matter on which the scope of judicial review is
extremely limited. What should be the tenure of a commanding officer for
Arms or Arms Support is for defence experts or for the Government to
determine on expert advice having regard to a variety of factors. It is
neither necessary nor proper for any court or tribunal to sit in judgment
over any such decision leave alone, substitute the same by its own
decision. If the Government has upon consideration of the nature of duties
and the need for battle preparedness of the force has taken a decision to
prescribe a tenure of upto four years for officers serving in Arms Support,
it will be difficult to fault the same in the absence of any patent
perversity in any such decision especially when no breach of any
fundamental or other right of any one complaining against the prescription
of such a tenure is demonstrated. No such infirmity has been pointed out
to us in the case at hand. Having said that, we must add to the credit of
the appellant and their counsel that the question of a shorter tenure was
considered by them favourably at our suggestion only to avoid any
frustration or disgruntlement among officers serving in arms support. Mr.
Maninder Singh, on instructions, submitted that the tenure of commanding
officers in arms support shall for purpose of creation/allocation of
vacancies, be taken as three years instead of four years. The Government
has on that basis calculated the number of vacancies that would be
additionally due to arms support on Command Exit Model as under:
| |Number of vacancies due to|Actual |Deficit |
| |1. AAD, 2. Engineers, 3. |distribution made| |
| |Signals out of II tranche |in 2009 with | |
| |of 734 posts taking the |tenure taken to | |
| |tenure to be 3 years |be 4 years | |
| |instead of 4 years | | |
|AAD |31 |7 |24 |
|Engineers |79 |17 |62 |
|Signal |66 |11 |55 |
|Total | | |141 |
29. It follows from the above that to the extent of a deficit of 141
vacancies in the cadres of Colonel to Arms Support (Artillery, AAD,
Engineers and signals) an unfair distribution of the vacancies from out of
the second tranche were released by the Government. It is, at the same
time, heartening to note that the Government have not taken an adversial
stand nor have the Government opposed the undoing of the injustice caused
to officers who were eligible for promotion in the year 2009 but were not
promoted on account of lesser number of vacancies allocated to Arms
Support. On the contrary Mr. Maninder Singh appearing for the Union
submitted that the Government would do anything to prevent any frustration
or disenchantment among the officers serving in the army by creating 141
additional posts in the cadre of Colonel for allocation to Arms Support so
that the same are utilized appropriately for promoting officers eligible
for such promotion. Mr. Singh, however, suggested a method of utilization
of the posts so created over a period of ten years to avoid an inequitable
distribution and also to minimize the scope of any of the batches getting
any undue benefit at the cost of other batches. Mr. Maninder Singh has also
highlighted problems of implementation like managing of the cadre in case
the utilization of the additional vacancies is to be done within a shorter
time frame of say five years. Having given our anxious consideration to
the submissions made at the bar, we are of the view that the additional 141
vacancies which ought to have been allocated to Arms Support in the year
2009 were unfairly denied to them. It has taken the aggrieved officers and
legal process considerable time to have the said unfairness and injustice
reversed by creation of additional vacancies. These vacancies shall,
therefore, be taken to have been created as in the year 2009 and promotions
against the same made from out of officers who were eligible for such
promotion as in that year. It is not in dispute that the Selection Board
that deals with such promotions has empanelled officers based on their
inter se merit and suitability. All that is, therefore, required is to
operate the said merit list for utilization of the additional vacancies now
being created. In other words, the additional creation shall, for all
intents and purposes, be deemed to have been available for being filled-up
as in the year 2009 but to be actually filled-up in 5 years between 2009-
2014. Those who pick-up the next rank against the said vacancies shall have
the benefit of retrospective seniority as is the practice in the Army but
such seniority on appointment shall not entitle them to the benefit of
higher pay-scale or arrears against the post to which they are promoted.
In other words, financial benefits shall accrue to officers promoted
pursuant to the creation of additional vacancies only with effect from the
date they are actually promoted.
Question No.3 is answered accordingly.
Re: Question No.4
30. We have while dealing with question No.1 already held that AV Singh’s
Committee did not have officers serving in the “services stream” namely
(ASC, AOC & EME) in view while it recommended lowering of the age profile
of Commanding Officers and creation of additional vacancies. The
recommendations were limited to Arms and Arms Support only. Even so the
question is whether the creation of such additional vacancies would ensure
the benefit for officers serving in the services on account of what such
officers claim to be ‘one cadre’ principle. The contention urged on behalf
of the respondents was that no matter some of the respondents belong to
services, they are a part of the same cadre and were, therefore, entitled
to a pro rata share out of the newly created vacancies at par with those
serving in Arms and Arms Support. Reliance in support of that contention
was placed upon a circular dated 12th November, 1987 issued by the Military
Secretary’s Branch. There is, in our view, no merit in the submission
urged on behalf of the respondents that officers allocated to Arms and Arms
Support and Services comprise a single cadre for purposes of promotion. We
say so because transferability which is one of the essential attributes of
posts comprising a single cadre is absent in the case of service officers
on the one hand and those serving in Arms and Arms Support on the other.
This Court has in several decisions examined what would constitute a common
cadre, and held that merely because the incumbents of two posts are placed
in the same scale of pay does not determine whether such posts constitute a
cadre (see) K. S. Srinivasan vs. Union of India (UOI) AIR 1958 SC 419. In
Chakradhar Paswan vs. State of Bihar & Ors. 1988 (2) SCC 214, this Court
declared that the term cadre has a definite legal connotation in service
jurisprudence and that interchangeability of the incumbents is one of the
attributes of a cadre just as similarity of the responsibilities and pay
may be indicative of all posts being in the same cadre. This Court
observed:
“8. … …In service jurisprudence, the term “cadre” has a definite legal
connotation. In the legal sense, the word “cadre” is not synonymous with
‘service’. Fundamental Rule 9(4) defines the word “cadre” to mean the
strength of a service or part of a service sanctioned as a separate unit.
The post of the Director which is the highest post in the Directorate, is
carried on a higher grade or scale, while the posts of Deputy Directors are
borne in a lower grade or scale and therefore constitute two distinct
cadres or grades. It is open to the Government to constitute as many cadres
in any particular service as it may choose according to the administrative
convenience and expediency and it cannot be said that the establishment of
the Directorate constituted the formation of a joint cadre of the Director
and the Deputy Directors because the posts are not interchangeable and the
incumbents do not perform the same duties, carry the same responsibilities
or draw the same pay. The conclusion is irresistible that the posts of the
Director and those of the Deputy Directors constitute different cadres of
the Service….”
(Emphasis supplied)
31. So also in M. Hara Bhupal vs. Union of India and Others (1997) 3 SCC
561, this Court found that interchangeability is a necessary element of the
posts being in the same cadre. In S. I. Rooplal and Another vs. Lt.
Governor through Chief Secretary, Delhi and others (2000) 1 SCC 644, this
Court was dealing with “equivalence of posts” and held that equivalence of
two posts is not judged by the sole factor of equal pay and identified four
factors in that regard namely (i) the nature and duties of the post, (ii)
the responsibilities and powers exercised by the officer holding a post;
the extent of territorial or other charge held or responsibilities
discharged; (iii) the minimum qualifications, if any, prescribed for
recruitment to the post; and (iv) the salary of the post. In State of U.P.
& Ors. vs. Bharat Singh & Ors., (2011) 4 SCC 120, this Court speaking
through one of us (Thakur, J.) held that transferability or
interchangeability of one incumbent to another in the cadre are essential
attributes of a common cadre.
32. Applying the above test to the case at hand we have no hesitation in
holding that officers serving in the Service stream of the Army do not
constitute a single cadre with officers serving in Arms and Arms Support,
no matter they may all be drawing the same salary, holding the same rank,
wearing the same uniform and serving the same employer with similar service
benefits. The true position is that allocation of officers to different
Arms and Services puts them in distinct cadres, with the result that those
comprising a particular cadre will have his or her promotional avenues
available against the posts comprising that cadre alone notwithstanding the
fact that the Government of India may, as a policy, attempt to ensure as
far as possible that officers of a given batch pick up their ranks around
the same time or within a reasonable span of their counterparts in other
cadres or that the disparity in the time frame for promotion is removed by
making promotions retrospective from the dates officers in the other cadre
have been promoted. Reliance by the respondents upon Circular dated 12th
November, 1987, is in our view misplaced. That circular, it is evident,
from a reading of the same was issued in connection with the implementation
of the Fourth Pay Commission to remove a certain doubt regarding the
interpretation of the term “cadre” as applicable to army officers. It was
in that context that the expression “cadre” has been explained in the
circular by reference to the method of allocation to Arms and Services, and
similarity of other conditions of service. The circular, it is evident,
does not constitute a statement of law much less can the exposition of the
term ‘cadre’ as given therein operate as estoppel against the union. The
circular it is evident is an internal communication and has been issued in
a totally different context. We, therefore, have no difficulty in answering
question No.4 in the negative and holding that officers in service streams
do not constitute a single cadre with those serving in Arms and Arms
Support for purposes of allocation of additional vacancies created pursuant
to the recommendations made to the Government by AV Singh Committee.
Re: question No. 5
33. We have, while answering question No. 4 above, already held that
officers in different streams constitute different cadres. Since however,
the argument based on legitimate expectation is pitched on a broader
principle, we need to recapitulate on the risk of repetition that the
Indian Army comprises the following 11 major streams: (1) Armoured Corps,
(2) Infantry, (3) Mechanised Infantry, (4) Artillery (5) Air Defence (AD)
(6) Engineers, (7) Signals (8) Army Service Corps (9) Army Ordnance Corps
(10) Electronical and Mechanical Engineers and (11) Other Corps including
Intelligence, Aviation and other Minor Corps. The first of these three
streams namely Armoured Corps, Infantry, Mechanised Infantry are called as
‘Combat Arms’ which participate in direct tactical land combat in a war
with requisite weaponary. The next four namely Artillery, Air Defence
(AD), Engineers, and Signals are commonly known as ‘Combat Support Arms’
while Army Service Corps (ASC), Army Ordnance Corps (AOC), Electronical and
Mechanical Engineers (EME) and other minor corps are known as ‘Services’.
As noticed in the beginning of the judgment, the newly selected Gentlemen
Cadets get inducted as Commissioned Officers on successful completion of
their training from the training academy. The Defence Service Regulations,
Regulations for the Army govern the first appointment of the Commissioned
Officers. Para 63 of the said Regulations reads:
“…. 63. First Appoinment – (a) On first appointment to a permanent
commission in the Regular Army, officers will be allocated to different
corps. They will be required to do such basic training or attachment as
may be prescribed from time to time for each corps, by Army HQ.
An officer has no claim to a particular corps or to a particular unit of
the corps. However, an officer may submit an application in writing to
serve with a particular corps or a unit, which will be given due
consideration subject to the requirements of the service……”
34. The choice of the cadet plays an important role in his allocation and
induction in the 11 streams mentioned above. That is precisely why towards
the completion of pre-commission training each cadet is required to submit
his’/her choice of induction into any of the abovementioned 11 streams.
Policy guidelines in this regard have been issued from time to time by the
Adjutant General’s Branch which lay down the procedure by which cadets are
allocated to different Arms, Combat Support Arms and Services. The broad
allocation policy as stipulated in Adjutant General’s Branch Circular dated
4th August, 2006 issued to the Indian Military Academy, Dehradun lays down
the working parameters to ensure equitable distribution of GCs/LCs to
Arms/Services through consideration of several factors stipulated in the
same. Merit and caliber spread is one of the factors taken into
consideration. The policy envisages that first 1% GCs (in order of merit)
would constitute the “Super Block” and will be allotted to the Army/Service
of their choice irrespective of other factors. It also provides for
dividing GCs into blocks consisting of 25 to 35 GCs to ensure an even
distribution of caliber to all Arms and Services. Parental claims are also
taken into consideration while making such allocation just as the choice of
General Cadet is one such factor that is taken into consideration. The
policy envisages the following factors to be kept in mind while exercising
the choice by the cadets:
Super Block GCs opting for Arms will be permitted to give choice of a
particular Regiment/Battalion.
GCs/LCs exercising Parental Claims will be permitted to give choice of
particular Regt/Bn/Gp.
GCs can offer three choices in their order of preference.
GCs can opt for Arms only or Arms/Services in their three choices.
GCs can however opt for only one Service in their three choices.
Optees for the Parachute Regiment can indicate choice of five PARA (SF),
units (1,2,3,4,9, 10 & 21) in order of preference. Volunteer for Para (SF)
will be deemed to have volunteered for Para Battalion also.
GCs opting for Artillery will be permitted to specify choice of
Fd/Med/SATA/Msl Gps.
GC opting for AD Arty will be deemed to have opted forArtillery.
Science Stream GCs will be preferred for allocation to AAD. If however,
such GCs are not available, non-science GCs, preferably those who have
studied Maths and Physics at 10+2 stage will also be inducted. Parental
claims of non-science GCs in AAD will however, be honoured.
GCs opting for Armd Regt/Mech Inf will be permitted to specify choice of
Armd Regt/Mech Inf/Guards Bns.
GCs opting for Armoured Corps or Mechanised Infantry will be deemed to have
opted for Infantry.
GCs opting for Inf will give choice of three Regts (in order of preference)
GCs/LCs opting for Corps of Engrs will give the preference of Gps:
Madras/Bengal/Bombay.”
35. Para 19(e) of the policy guidelines, inter alia, provides that as far
as possible, efforts shall be made not to allot Arms/Services to any GC who
has not opted for it as one of his choices. It is noteworthy that out of a
total of 30 officers who had filed three original applications before the
Tribunal, 26 officers were allotted to the streams of their first choice, 2
were allotted to the streams of their second choice while only one got
allotted to the stream of his 3rd choice. One can, therefore, visualize
that choice made by the officers prevails as has happened in the case at
hand where an overwhelming number of 26 out of 30 officers have been given
their first option while 2 out of 30 only were given their 2nd choice.
There is no denying the fact that GCs who made their choices are presumed
to be fully aware of the functional and operational requirements of the
obligations of the streams for which they had opted as also their future
career prospects for the same.
36. It was argued on behalf of the respondents that the officers although
allotted to different streams had a legitimate expectation in the matter of
their promotion to higher ranks that the Government shall maintain parity
among officers who passed out in the same batch but who were allotted to
different streams like Arms, Arms Support and Services. On behalf of the
appellant, Union of India, it was per contra contended that ‘batch parity’
simply refers to the time frame for the conduct of same level of selection
by the selection board for the same batch officers allocated to different
Arms/Services. It was also contended that having regard to Deprivation Risk
(DRI) factor Arms were getting additional posts because of surrender of
such vacancies from Services. This surrender was to the extent of 20%.
That position was, according to the appellant, accepted by the respondents
before the Tribunal and so also before this Court. That apart, various
committees constituted over a period of time had according to the
appellants, acknowledged a higher requirement of Combat Arms which over a
period of time resulted in a disparity in the time frame for consideration
of same batch officers allocated to Arms and Services. It was submitted
that the time lag came to be known as 0-1-2 scenario. This differential
scenario is according to the appellants necessitated by the operational
role of Arms and the resultant requirement of a lower age profile of COs
unlike their counterparts in Combat Arms Support and Services. The
Appellants contended that officers are at any rate considered for promotion
within their own verticals in terms of para 70 of DSR RA which reads as
under:
“…..70. Claims for Promotion – Officers will normally be considered for
promotion in the order of seniority in their Corps but an officer whose
early advancement is in the interest of service may be specially selected
for promotion to fill a vacancy whatever his seniority in the rank at the
time. The cases of officers who are superseded for promotion will be kept
under review in accordance with the existing instructions….”
37. It was submitted that recommendations made by the Kargil War
Committee and AVS Committee have favoured an upward revision of 20% extra
for Combat Arms to a level where the objective of inducting a Col. of
Combat Arms for commanding a battalion is at the age of 37 years is
achieved and the officer exits from command after 2½ to 3 years to be
adjusted in another available position before he is considered/selected for
a higher rank. The recommendations of AVS committee, it was argued, were
only with a view to enhancing and increasing the number of posts at the
level of Col. for the streams constituting the broad classification of
Combat Arms and Arms Support.
38. It was further submitted that the time edge of 0-1-2 was always in
existence which in essence only meant that officers of combat arms of 1990
batch were considered by the Selection Board along with officers of the
1989 batch of ‘Combat Arms Support’ and officers of 1988 batch of
‘Services’. This was on facts demonstrated by reference to the case of
respondent Lt. Col. P K Chaudhary of the 1994 batch of the ASC who was for
the first time considered by Selection Board No. 3 for promotion to the
rank in 2012 by which time officers belonging to Infantry and Artillery of
1994 had already been considered by Selection Board 3 in the year 2009
i.e., 2½ years prior to the consideration of the Respondent – Lt. Col. P K
Choudhary. No grievance was, however made by Lt. Col. P K Chaudhary in
December 2012 as to why he was not considered for such promotion in the
year 2009 itself when officers from his batch allocated to Artillery and
Infantry were considered for such promotion. This implied that the
Respondent Lt. Col. P K Chaudhary and others similarly situate clearly
understood that batch parity did not mean consideration of commissioned
army officers of the same batch at the same point of time nor was any
grievance against their non-consideration ever made at any time when their
batch mates serving in other streams were considered for promotion. It was
submitted that Para 68 of DSR RA protected officers in the matter of their
seniority by relating back their promotion to the date when officers in the
same batch working in other streams were promoted. Para 68 reads as under:
“….68. Effective Date of Substantive Promotion – Substantive promotion to
the rank of Colonel and above, and of Lt Col by selection, will be from the
date an officer was passed fit in all respects for such promotion, provided
a vacancy existed in the substantive cadre of that rank on that date.
Should the date of assumption of the higher appointment be later than the
former date of actual assumption of appointment will reckon for pay,
pension and tenures But for purposes of seniority the date will be as
notified in the Gazette…”
39. It was contended that the policy decision taken by Government of
India was in the larger interest of national security and for making the
Army more efficient and that the same did not violate any right of the
respondents much less any fundamental right. The plea of legitimate
expectation raised on their behalf was in that view futile for there was
neither any basis for such a plea in the pleadings nor was the plea tenable
in law especially when the policy change was in public interest.
40. Halsbury’s Laws of England, Fourth Edition, Volume I(I) 151 explains
the meaning of “Legitimate Expectation” in the following words:
“81. Legitimate expectations.— A person may have a legitimate expectation
of being treated in a certain way by an administrative authority even
though he has no legal right in private law to receive such treatment. The
expectation may arise either from a representation or promise made by the
authority, including an implied representation, or from consistent past
practice.
The existence of a legitimate expectation may have a number of different
consequences; it may give locus standi to seek leave to apply for judicial
review; it may mean that the authority ought not to act so as to defeat the
expectation without some overriding reason of public policy to justify its
doing so; or it may mean that, if the authority proposes to defeat a
person’s legitimate expectation, it must afford him an opportunity to make
representations on the matter. The courts also distinguish, for example in
licensing cases, between original applications, applications to renew and
revocations; a party who has been granted a licence may have a legitimate
expectation that it will be renewed unless there is some good reason not to
do so, and may therefore be entitled to greater procedural protection than
a mere applicant for a grant.”
41. Legitimate expectation as a concept has engaged the attention of this
Court in several earlier decisions to which we shall presently refer. But
before we do so we need only to say that the concept arises out of what may
be described as a reasonable expectation of being treated in a certain way
by an administrative authority even though the person who has such an
expectation has no right in law to receive the benefit expected by him. Any
such expectation can arise from an “express promise” or a “consistent
course of practice or procedure” which the person claiming the benefit may
reasonably expect to continue. The question of redress which the person in
whom the legitimate expectation arises can seek and the approach to be
adopted while resolving a conflict between any such expectation, on the one
hand, and a public policy in general public interest on the other, present
distinct dimensions every time the plea of legitimate expectation is raised
in a case.
42. In Food Corporation of India v. Kamdhenu Cattle Feed Industries
(1993) 1 SCC 71 one of the earlier cases on the subject this Court
considered the question whether Legitimate Expectation of a citizen can by
itself create a distinct enforceable right. Rejecting the argument that a
mere reasonable and legitimate expectation can give rise to a distinct and
enforceable right, this Court observed:
“8. The mere reasonable or legitimate expectation of a citizen, in such a
situation, may not by itself be a distinct enforceable right, but failure
to consider and give due weight to it may render the decision arbitrary,
and this is how the requirement of due consideration of a legitimate
expectation forms part of the principle of non-arbitrariness, a necessary
concomitant of the rule of law. Every legitimate expectation is a relevant
factor requiring due consideration in a fair decision-making process.
Whether the expectation of the claimant is reasonable or legitimate in the
context is a question of fact in each case. Whenever the question arises,
it is to be determined not according to the claimant’s perception but in
larger public interest wherein other more important considerations may
outweigh what would otherwise have been the legitimate expectation of the
claimant. A bona fide decision of the public authority reached in this
manner would satisfy the requirement of non-arbitrariness and withstand
judicial scrutiny. The doctrine of legitimate expectation gets assimilated
in the rule of law and operates in our legal system in this manner and to
this extent.”
(emphasis
supplied)
43. To the same effect is the decision of this Court in Union of India v.
Hindustan Development Corporation and Ors. (1993) 3 SCC 499, where this
Court summed up the legal position as under:
“28….. For legal purposes, the expectation cannot be the same as
anticipation. It is different from a wish, a desire or a hope nor can it
amount to a claim or demand on the ground of a right. However earnest and
sincere a wish, a desire or a hope may be and however confidently one may
look to them to be fulfilled, they by themselves cannot amount to an
assertable expectation and a mere disappointment does not attract legal
consequences. A pious hope even leading to a moral obligation cannot amount
to a legitimate expectation. The legitimacy of an expectation can be
inferred only if it is founded on the sanction of law or custom or an
established procedure followed in regular and natural sequence. Again it is
distinguishable from a genuine expectation. Such expectation should be
justifiably legitimate and protectable. Every such legitimate expectation
does not by itself fructify into a right and therefore it does not amount
to a right in the conventional sense.”
33. On examination of some of these important decisions it is generally
agreed that legitimate expectation gives the applicant sufficient locus
standi for judicial review and that the doctrine of legitimate expectation
is to be confined mostly to right of a fair hearing before a decision which
results in negativing a promise or withdrawing an undertaking is taken. The
doctrine does not give scope to claim relief straightaway from the
administrative authorities as no crystallised right as such is involved.
The protection of such legitimate expectation does not require the
fulfilment of the expectation where an overriding public interest requires
otherwise. In other words where a person’s legitimate expectation is not
fulfilled by taking a particular decision then decision-maker should
justify the denial of such expectation by showing some overriding public
interest. Therefore even if substantive protection of such expectation is
contemplated that does not grant an absolute right to a particular person.
It simply ensures the circumstances in which that expectation may be denied
or restricted. A case of legitimate expectation would arise when a body by
representation or by past practice aroused expectation which it would be
within its powers to fulfil. The protection is limited to that extent and a
judicial review can be within those limits. But as discussed above a person
who bases his claim on the doctrine of legitimate expectation, in the first
instance, must satisfy that there is a foundation and thus has locus standi
to make such a claim. In considering the same several factors which give
rise to such legitimate expectation must be present. The decision taken by
the authority must be found to be arbitrary, unreasonable and not taken in
public interest. If it is a question of policy, even by way of change of
old policy, the courts cannot interfere with a decision. In a given case
whether there are such facts and circumstances giving rise to a legitimate
expectation, it would primarily be a question of fact. If these tests are
satisfied and if the court is satisfied that a case of legitimate
expectation is made out then the next question would be whether failure to
give an opportunity of hearing before the decision affecting such
legitimate expectation is taken, has resulted in failure of justice and
whether on that ground the decision should be quashed. If that be so then
what should be the relief is again a matter which depends on several
factors.”
(emphasis supplied)
44. Reference may also be made to the decision of this Court in Punjab
Communications Ltd. v. Union of India and Ors. (1999) 4 SCC 727, where this
Court held that a change in policy can defeat a substantive legitimate
expectation if it can be justified on “Wednesbury reasonableness.” The
choice of policy is for the decision-maker and not the Court. The
legitimate substantive expectation merely permits the Court to find out if
the change of policy which is the cause for defeating the legitimate
expectation is irrational or perverse or one which no reasonable person
could have made. A claim based merely on legitimate expectation without
anything more cannot ipso facto give a right. Similarly in Dr. Chanchal
Goyal (Mrs.) v. State of Rajasthan (2003) 3 SCC 485, this Court declined
relief on the plea of legitimate expectation on the ground that the
appellants had not shown as to how any act was done by the authorities
which created an impression that the conditions attached to the original
appointment order were waived. No legitimate expectation could be,
declared this Court, claimed on such unfounded impression especially when
it was not clear as to who and what authority had created any such
impression. The decisions of this Court in Ram Pravesh Singh v. State of
Bihar (2006) 8 SCC 381, Sethi Auto Service Station and Anr. v. Delhi
Development Authority and Ors. (2009) 1 SCC 180, Confederation of Ex-
servicemen Association v. Union of India (2006) 8 SCC 399, and State of
Bihar and Ors. v. Kalyanpur Cements Ltd. (2010) 3 SCC 274, reiterate the
legal position stated in the decisions earlier mentioned. In Monnet Ispat
and Energy Ltd. v. Union of India and Ors. (2012) 11 SCC 1, this Court
reviewed the case law on the subject and quoted with approval the following
passage in Attorney General for New South Wales (1990) 64 Aus LJR 327:
“To strike down the exercise of administrative power solely on the ground
of avoiding the disappointment of the legitimate expectations of an
individual would be set the courts adrift on a featureless sea of
pragmatism. Moreover, the notion of a legitimate expectation (falling
short of a legal right) is too nebulous to form a basis for invalidating
the exercise of a power when its exercise otherwise accords law.”
45. This Court went on to hold that if denial of legitimate expectation
in a given case amounts to denial of a right that is guaranteed or is
arbitrary, discriminatory, unfair or biased, gross abuse of power or in
violation of principles of natural justice the same can be questioned on
the well-known grounds attracting Article 14 of the Constitution but a
claim based on mere legitimate expectation without anything more cannot
ipso facto give a right to invoke these principles.
46. Coming to the case in hand, the plea of legitimate expectation does
not appear to be of any assistance to the respondents for two precise
reasons. Firstly, there is no real basis for the respondents to argue
that the Government of India had either by representation or by any
sustained course of conduct created an impression in the minds of the
respondents that any additional vacancies created to the lower age profile
of commanding officers serving in Combat Arms or Combat Arms Support shall
also benefit those serving in the Service Streams of the Army. There is no
factual basis laid by the respondents in the pleadings before the tribunal
to suggest that any such impression was gathered by officers serving in the
Service Streams. There is also no basis for the contention that a
legitimate expectation arose in the minds of the respondents that they
shall be promoted to the next rank simultaneously with the officers serving
in Combat Arms or Combat Arms Support. As a matter of fact, the provisions
of para (68) of the Regulations for the Army extracted earlier itself
envisages the grant of promotion to officers from different streams at
different points of time depending upon several factors which bring about
the time lag for such considerations. Conscious of the fact that such
officers serving in different streams may pick up the next rank at
different points of time, the Regulations provide for grant of
retrospectivity to the promotions so granted to restore inter se batch
parity to such officers. There is no denying the fact that the said
Regulation continues to be operative and regardless of the date when the
officer is promoted, his promotion is so related back as to protect his
seniority vis-à-vis his colleagues from the batch serving in other streams.
Far from creating any impression or any expectation that promotions shall
be simultaneous, the Regulations clearly provide for grant of retrospective
effect to the promotions only with a view to restore seniority. This
clearly implies that in the very nature of things the promotions could be
granted to officers at different points of time and time lag could
additionally be in the 0-1-2 scenario. We have, therefore, no hesitation
in rejecting the contention that the legitimate expectation did arise in
the factual situation before us.
47. That apart, legitimate expectation as an argument cannot prevail over
a policy introduced by the Government which does not suffer from any
perversity, unfairness or unreasonableness or which does not violate any
fundamental or other enforceable rights vested in the respondents. In the
case in hand, the Government has, as a matter of policy, decided to lower
the age profile of officers serving in Combat Arms and Combat Arms Support
pursuant to the recommendations made by the Expert Committees. We have in
the earlier part of the judgment dealt with the recommendations made by the
Committees and the objectives sought to be achieved by the policy decisions
of the Government. There is nothing perverse, unreasonable or unfair about
the policy that the age of officers serving in Combat Arms and Combat
Arms Support will be lowered by creating additional vacancies to be
allotted on Command Exit Model. In the absence of any perversity,
unreasonableness or unfairness in the policy so introduced, we see no
reason to allow the argument based on legitimate expectation to unsettle or
undo the policy which is otherwise laudable and intended to render the
Indian Army more efficient and better equipped for combat situations. It
also is not a case where no reasonable person could have taken the decision
which the Government have taken as regards the need for lowering the age
profile of the Commanding Officers or their exit after 2-1/2 to 3 years to
occupy positions which the Government have created for the officers to
occupy till they are considered for promotion to the next higher rank. All
told, the arguments based on legitimate expectation has not appealed to us.
We have, therefore, no difficulty in rejecting the contention based on
that principle. Question No. 5 is accordingly answered in the negative.
48. In the result, we partly allow these appeals and while setting aside
the order passed by the Tribunal direct that the appellants shall create
141 additional posts of Colonel to be allocated to ‘Combat Support’ stream
for being utilized by appointing officers who are eligible for promotions
against the same as in the year 2009 over a period of 5 years till 2014.
49. In the peculiar facts and circumstances of the case, we leave the
parties to bear their own costs.
................................CJI
(T.S. THAKUR)
…………………….…..…J.
(KURIAN JOSEPH)
New Delhi;
FEBRUARY 15, 2016.
For the Latest Updates
Join Now