PETITIONER:
UNION OF INDIA AND ANR.
Vs.
RESPONDENT:
MAJ. GEN. DAYANAND KHURANA
DATE OF JUDGMENT06/08/1991
BENCH:
YOGESHWAR DAYAL (J)
SHETTY, K.J. (J)
RAMASWAMI, V. (J) II
CITATION:
1991 AIR 1955 1991 SCR (3) 350
1991 SCC Supl. (2) 478 JT 1991 (3) 381
1991 SCALE (2)242
ACT
Service Law--Army Officers--Promotion--Major General to Lt. General--Adoption of two stream concept viz. ’Command and Staff Siream’ and ’Staff Only’ Stream--Fixation of inter-se seniority after adoption of two stream concept--Officers approved in ’Command and Staff’ Stream of the same batch ’---Whether senior to officers approved in Staff Only Stream.
HEADNOTE
On 31st May, 1986 the Government of India approved, in principle, the ’Two Stream’ concept of career management of Army Officers which envisaged that officers on promotion to Major General and Lt. General will be bifurcated into the ’Command and Staff’ and the ’Staff Only’ Stream. By an order dated 9th September, 1986 issued by Military Secretary, Army Headquarters, the modalities of the concept, were worked out and it was inter-alia provided that for the purpose of seniority, officers of the ’Staff Only’ Stream will be junior to officers of the ’Command and Staff" Stream.
While adopting the methodology for implementation of the ’Two Stream Concept’, in its note dated 22nd September, 1986 the Military Secretary stated that two options are available for fixing the sequence of promotion under the ’Stream Concept’. Under option ’A’ the existing sequence of promotion is maintained and in that officers are to be promoted as per their inter-se seniority, irrespective of the stream. In the case of Option ’B’, whereas the existing sequence of promotion is maintained, but promotion is to be effected in accordance with the stream in which an officer is being promoted. After giving advantages and disadvantages of the two options, the said note recommended that option ’B’ should be adopted. The Military Secretary’s note was approved by Vice Chief of Army Staff and the Chief of Army Staff.
By a communication dated 1st June, 1987 the Military Secretary clarified its earlier note dated 22nd September, 1986 explaining that officers of the General Cadre of a particular batch seniority approved in the ’Command and staff’ Stream will be en-block senior to those 351 officers of the same batch approved on the ’Staff Only’ Stream. However, an officer of an earlier batch approved on the ’Staff Only’ Stream will be senior to an officer of subsequent batch approved on the ’Command and Staff Stream.
Under the promotion policy of Army every officer is given three chances for consideration for promotion. The first opportunity is called "fresh cases". The second opportunity is called "first review cases" and the third opportunity is called "final review cases". An officer not approved for promotion loses one year on seniority and slides into the batch of the next year.
The respondent, commissioned in the army in 1954, while acting as Brigadier, was selected as Major General in 1956 batch. Accordingly, his seniority was fixed alongwith 1956 batch. While working as Major General he was considered for promotion to the rank of Lt. General in 1989 but was disapproved. He thus lost seniority of 1956 batch. He was then considered as a first review case in 1990 alongwith 1957 batch-comprising of final review case of 1955 batch, first review case of 1956 batch and fresh case of 1957 batch-and was approved for selection for ’Staff Only’ Stream. Since he was approved only for ’Staff Only’ Stream, in the select panel dated 26th October, 1990 he was placed below all other Major Generals who were approved for selection in the Stream of ’Command and Staff.
Aggrieved by his placement below the officers who were approved for ’Command and Staff’ Stream, he filed a writ petition in the High Court which directed the Union of India to treat the respondent senior to all the other Major Generals who were promoted to the acting rank of Lt. General in the ’Command and Staff’ stream and to expeditiously promote him ahead of the 1957 batch. Against the decision of the Division Bench of the High Court the Union of India filed an appeal in this Court.
Setting aside the order of the High Court, this Court,
HELD: 1. The Division Bench of the High Court totally misunderstood the note of the Military Secretary dated 22nd September, 1986 as well as the note of the Vice Chief of Army Staff. In the note of the Military Secretary dated 22nd September, 1986, Option ’A’ which was prevalent practice was substituted by option ’B’ which was recommended for future and which was accepted both by Vice Chief of Army Staff as well as Chief of Army Staff. [369H-370E] 352
2. It is clear from option ’B’ which was adopted for working out the ’Two Stream Concept’ that the seniority will first be given to the ’Command and Staff’ stream selected from any of the earlier batches and after the ’Command and Staff’ stream has been accorded the seniority, the three streams of ’Staff Only’ will be given seniority and that the final review, the first review or fresh stream of ’Staff Only’ rank below the similar three streams of’Command and Staff’. [362B-C]
3. It is also clear from the Scheme that the Officer who Were approved for ’Command and Staff’ Stream can be appointed both for ’Command’ as well as ’Staff’ vacancies whereas the officers who were approved only for stream of ’Staff Only’ can only be appointed to the vacancies relating to ’Staff’ and cannot be appointed relating to vacancies for ’Command’. The expression ’same batch’ referred to in paragraph 9 of the Military Secretary’s letter dated 1st June, 1987 is for the officers who were considered for selection at one time and not the individual batch of the Major General. [370B]
4. Option ’B’ has not been reviewed till date. There can be no doubt that if option ’A’ was available for preparation of select list the respondent would have been senior to other persons who were recommended for ’Command and Staff’ Stream. But option ’A’ was given up and option ’B’ was recommended for approval. Since option ’B’ has been adopted and accepted the seniority of the respondent placed in the panel dated 26th October, 1990 is unexceptionable. [370F-G]
5. The respondent cannot take advantage for being promoted earlier than the officers selected for the ’Command and Staff’ Stream. [374B1
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2574 of 199 1.
From the Judgment and Order dated 30.4.1991 of the Delhi High Court in C.W.P. No. 812 of 1991.
Altar Ahmed, Additional Solicitor General, V.C. Mahajan, A.K. Srivastava, S.N. TerdaI and Vijay Kumar Verma for the Appellant.
P.C. Jain, Ashim Vachher and Ms. Bharti Anand for the Respondent.
The Judgment of the Court was delivered by 353
YOGESHWAR DAYAL, J. This appeal by Special Leave is directed against the judgment of the High Court of Delhi dated 30th April, 199 1 on behalf of the Union of India and the Chief of the Army Staff against Major General Dayanand Khurana.
By the impugned judgment the Division Bench of the High Court directed the issue of writ of mandamus modifying an order dated 26th October, 1990 and thereby directing the appellants herein to treat Major General D.N. Khurana, who was approved for promotion to the acting rank of Lt. General for ’Staff Only’ Stream, senior to all the other Major Generals who were promoted to the acting rank of Lt. General in the ’Command and Staff’ Stream, and also issued further writ of mandamus directing the appellants to expeditiously promote the respondent herein, ahead of the 1957 batch, to a Staff post which has occurred between 26th October, 1990 and 31st May, 1991 keeping in view the existing policy of the Government and in the light of the observations made in the judgment.
The brief facts which give rise to the filing of the writ petition in the High Court and the appeal before us may be noticed.
The respondent was commissioned in the army in the year 1954, therefore, his original seniority reckons from the year 1954. As per the policy and procedure adopted in this connection every officer is given three chances for consideration for promotion. If an officer is not approved for promotion during the first consideration, he loses one year of seniority and slides into the batch of the next year. In the eventuality of his not being approved for promotion even in the second consideration, he loses one more year of seniority and slides further into the next batch. Thereafter, the officer is considered for the last time for promotion in the third chance and if he is not approved even in the third chance, he is not given any further consideration and is finally regarded as a superseded officer. In pursuance of this policy, the respondent herein while he was acting as a Brigadier was first considered for promotion to the rank of Major General in the year 1983 but was not approved, and, therefore, he became part of 1955 batch instead of 1954 batch. Thereafter he was superseded again and ultimately got selected as a Major General in the 1956 batch. As per the existing policy at that time his seniority in the rank of Major General was re-fixed alongwith the officers of 1956 batch as per the following sequence of selection: 354
1956 Batch:
(a) Final review case of 1954 batch.
(b) First review case of 1955 batch.
(c) Fresh case of 1956 batch.
The respondent while working as Major General was considered for promotion to the rank of Lt. General in July, 1989 but was rejected by the Government. He thus once again lost seniority of 1956 batch. He was then considered as a first review case in July, 1990 alongwith 1957 batch and was approved for selection for ’Staff Only’ Stream in the following sequence of consideration:
"(a) Final review case of 1955 batch.
(b) First review case of 1956 batch.
(c) Fresh case of 1957 batch. Since the respondent was approved only for ’Staff Only’ Stream he was placed below all other Major Generals who were approved for selection in the Stream of ’Command and Staff. The respondent was aggrieved by his placement below the officers who were approved for ’Command and Staff’ Stream, though he had been approved only for ’Staff Only’ Stream.
On 31st May, 1986 the Government of India approved, in principle, the ’Two Stream’ concept of career management of Army Officers of the ranks of Major General and Lt. General subject to the following stipulations:
"(a) The modalities for implementation of ’Two
Stream’ concept will be worked out by the Army
Headquarters and submitted to Government for
information. This will include identification
of appointments to be manned by officers
belonging to the ’Staff Only’ Stream.
(b) The criteria and the QRs formulated by the
Army HQrs and submitted to Government vide
Army HQrs Note No. PC-01102/ MS 9B dated 7th
February, 1986 will be applied for screening
officers for promotion to the two streams. It
will be ensured that
355
the QRs prescribed for promotion to the
’Command and Staff stream are stricter than
those prescribed for the ’Staff Only’ stream.
(c) A comprehensive review of the working of
the concept will be done in 1987 and such
amendments, as may be necessary, will be put
up to Government for approval.
This approval of the Government was preceded by the approval of the Prime Minister on 26th May, 1986. The reason for adoption of ’Two Stream Concept’ of career management for Army Officers is that the Army is highly command oriented with the system itself providing a distinct edge for proven command performance. This orientation, especially in higher ranks, has helped to maintain the fighting efficiency of the Army and has stood to the test of time, besides being in the over all interests of the Service and the Nation. In order to be able to develop command potential, it was thought necessary that officers are allowed to hold command appointments for adequate periods.
Thereafter the modalities for above ’Two Stream Concept’ were worked out by the Army Headquarters and an office order was issued by Military Secretary’s Branch, Army Headquarters, dated 9th September, 1986. The relevant paragraphs are 1 to 3, 5 and 9 which read as under:
"1. The upgradations in senior ranks in the
Cadre Reviews have been sanctioned only in the
Staff and ERE appointments. This has caused
serious imbalances in the existing ratio
between the Command, Staff and ERE appoint-
ments. Whereas, earlier senior officers could
be given a proper command tenure before their
turn came up for the next promotion, it is not
now feasible in all cases after the upgrada-
tions are fully implemented.
2. Ours is a Command oriented Army
and successful performance in a command must
continue to be mandatory for promotion to
higher ranks. It is not desirable to truncate
command tenures, if we have to maintain our
fighting efficiency. It is to this and, that
it has been decided to adopt the ’Two Stream
Concept’ for officers of the rank of Brig. and
above. The details of the concept are given in
the succeeding paras.
356
Concept
3. The concept envisages that officers on
promotion to Maj. General and Lt. General will
be bifurcated into the ’Command and Staff’ and
the ’Staff Only’ streams as per details given
below:
(a) ’Command and Staff Stream. Very high
calibre officers based on their merit will be
promoted to this Stream. They will hold com-
mand appointments in the Higher rank and
thereafter be given exposure to Staff and ERE
appointments as necessary. They will be eligi-
ble for further promotion as per the existing
criteria.
(b) ’Staff Only’ Stream. Officers promot-
ed to this Stream will hold only staff ap-
pointments, in the higher rank and will pro-
ceed on superannuation thereafter. These
officers will not be eligible for further
promotion.
4. ....... ........... .........
Applicability
5. The ’Two Stream’ concept generally will be
applicable to the officers of the General
Cadre. However, non-General Cadre officers
will also be considered for the ’Staff Only’
Stream in the rank of Lt. General.
6-8 ...... .............. ........
Inter se Seniority
9. Officers selected for the ’Command and
Staff Stream, will be promoted first, be it on
a Command or Staff appointment. Thereafter,
officer of the same batch who are selected
for the ’Staff Only’ Stream will be promoted.
Therefore, for the purpose of seniority,
officers of the ’Staff Only’ Stream will be
Junior to officers of the ’Command and Staff
Stream. After placing the officers of the
’Staff Only’ Stream in suitable appointments,
review selectees of the ’Command and Staff
Stream of the next batch will be promoted. Again in adopting the methodology for implementation of the 357 ’Two Stream Concept’ the following note dated 22nd September, 1986 was put up by the Military Secretary to the Chief of the Army Staff.
1. This note pertains to the sequence of
promotion in respect of officers who are
approved for promotion under the Two Stream
concept.
2. The existing sequence of promo-
tion is laid down vide our policy letter No.
38360/MS 5 B dt. 29 May 84, placed opposite.
3. With our command orientation,
viable tenures in command assignment are
mandatory to increase the fighting efficiency
of the Army. It is, to this end that the Two
Stream Concept has been adopted.
4. With the introduction of the two
stream concept in the ranks of Maj. Generals
and Lt. Generals, the sequence of promotion
into the streams needs to be formalised. In so
doing, the main reasons for the introduction
of the two stream concept, have to be the
guiding principle.
5. The two stream concept was intro-
duced to promote younger high calibre officers
early, so that they get viable tenures in
command. It is also well known that by and
large an officer who is approved as a fresh
case is of a higher calibre as compared to the
ones approved for promotion as review cases.
Thus it would be logical to promote the former
category of officers approved in the ’Command
and Staff stream, earlier than the latter
category of officers approved in the ’Staff
only’ stream.
6. Two options are available for
fixing the sequence of promotion under the
’Stream Concept’. These are given in subse-
quent paras with the help of the following
illustrations--
(a) Batches considered at the Screening Board.
(i) Final Review 1956
(ii) First Review 1957
358
(iii) Fresh Cases 1958.
(b) Officers Approved for Promotion
(i) Final Review 1956
(aa) Command and Staff Stream -- One
(ab) Staff only Stream -- One
(ii) First Review- 1957
(aa) Command and Staff Stream -- One
(ab) Staff Only Stream -- One
(iii) Fresh Cases- 1958
(aa) Command and Staff -- ten
Stream
(ab) Staff only stream -- five 7. Whatever sequence is followed, the IC number seniority within that stream of that batch needs to be maintained. The sequence of promotion could follow the undermentioned options: (a) Option A. To follow the existing sequence of promotion: (i) Final review Command and Staff stream--1956 batch. (ii) Final review Staff only stream--1956 batch. (iii) First review Command and Staff stream--1957 batch. (iv) First review Staff only stream-- 1957 batch. (v) Fresh Command and Staff stream--1958 batch. 359 (vi) Fresh Staff only stream--1958 batch. (b) Option B. The sequence of promotion to be: (i) Final review Command and Staff stream--1956 batch. (ii) First review Command and Staff stream--1957 batch. (iii) Fresh Command and Staff stream--1958 batch. (iv) Final review Staff only stream--1956 batch. (v) First review Staff only stream--1957 batch. (vi) Fresh Staff only stream--1958 batch.
(The officers of 1959 batch, approved even in
the Command and Staff stream, will be promoted
after absorbing the Fresh ’Staff Only’ stream
of 1958 batch.)
8. The advantages of Option A will be the
disadvantages of Option B. The advantages and
disadvantages of Option A are discussed below:
(a) Advantages.
(i) Those approved for promotion as review
cases, will still get their promotion and also
have a reasonably viable tenure. The chances
of any proved’ officer retiring without get-
ting his promotion, are remote.
(ii) The existence of dissatisfied officers
among those approved for promotion, is unlike-
ly.
(b) Disadvantages.
(i) The basic principle behind the intro-
duction of the two stream concept gets defeat-
ed.
(ii) Tenure of Command. Delay in the
promo-
360
tion of fresh cases of the Command and Staff
stream, will give them lesser tenure, possibly
affecting their chances of further promotion,
thus having an overall detrimental effect.
(iii) The principle of promoting really high
calibre and the best officers early, is vio-
lated.
9. Analysis. It would be noticed that the
difference in the two options are minimal. In
the case of Option A, the existing sequence of
promotion has been maintained in that officers
are being promoted as per their inter-se
seniority, irrespective of the stream. In the
case of Option B, whereas the existing se-
quence of promotion is still being maintained,
but promotion is being affected in accordance
with the stream in which an officer is being
promoted.
10. Since officers of the ’Command
and Staff are of higher calibre, promoting
them over the ’Staff Only’ stream is logical
and has been accepted in principle. Hence
adoption of Option B, is recommended.
11. For approval please. Once ap-
proved, Ministry of Defence will be informed
accordingly.
Sd/-
(A.K. Chatterjee)
Lt. Genl
Sena Sachiv/
Military Secretary
22 Sep. 86
COAS
through
VCOAS
The above note of the Military Secretary was considered by the Vice Chief of Army Staff and vide note dated 24th September, 1986 in which he has observed as under:
"1. As I see it, in the ultimate, promotions
in ’Command
361
and Staff’ stream and ’Staff stream should be
independent of each other based on identified
slots in each stream. The differential in
terms of time between the two may be as much
as two to three years, the exact period vary-
ing from time to time. It is only then that we
would be able to have viable tenures for
’Command and Staff’ Stream officers, both in
the rank of Maj. Gen. and Lt. Gen. Thus, our
aim should be to promote a ’Command and Staff’
stream officer to Maj. Gen. at the age of 48
years or so and to Lt. Gen. at the age of 52
to 53 years. On the other hand, it would be
acceptable if a staff stream officer is pro-
moted to Maj. Gen. at the age of 51 years or
so and to Lt. Gen. at the, age of 54 or 55
years.
2. In the light of the above, the propos-
al putforward by the MS cannot be a long term:
proposal. However, we have perhaps no option
but to adopt this for the short term, as the
ages at which the officers are currently being
approved for higher promotions are compara-
tively higher, and there would be imbalances
if we increase the differential suddenly. MS
proposal must, therefore, be seen as a valid
one for the transitionary phase only. To
that extent, I am in agreement with his recom-
mendation.
Sd/-
24 Sep. 86
COAS
The note of the Military Secretary alongwith the note of the Vice Chief of Army Staff was put up before the Chief of Army Staff, who, on 8th October, 1986 approved the note of the Vice Chief of Army Staff. The file was again put up to JDMS through the Military Secretary and the matter was discussed.
Paragraph 7(a) of the note of the Military Secretary dated 22nd September, 1986 mentions Option ’A’ which was the existing sequence of promotion prior to September, 1986 and recommended in subparagraph (b) of paragraph 7 the sequence of promotion which was to be followed. In paragraph 8 the Military Secretary discussed the advantages and disadvantages of Option ’A’ and Option ’B’. In paragraph 10 he recommended adoption of Option ’B’. He also mentioned in his note that if the note is approved, the Ministry of Defence will be informed accordingly. 362
It is clear that the Vice Chief of Army Staff adopted the proposal as recommended in the note of Military Secretary in paragraph 10 which was again agreed to by the Chief of Army Staff. The matter was again sent to the Military Secretary who discussed it with the officers of Ministry of Defence. It is clear from Option ’B’, which was adopted for working out the ’Two Stream Concept’, that the seniority will first be given to the Command and Staff’ Stream selected from any of the earlier batches and after the ’Command and Staff’ stream has been accorded the seniority, the three streams of ’Staff Only’, mention at Sl. Nos. (iv), (v) and (vi) will be given seniority. It is also clear that the final review, the first review or fresh stream of ’Staff Only’ rank below the similar three streams of ’Command and Staff’ trained.
The substance of this note is again conveyed by the Military Secretary in its communication dated 1st June, 1987 by way of further amplifying the methodology for implementation of the ’Two Stream Concept’. The letter reads:
"COMMAND AND STAFF STREAM
1. Further to this Headquarters letter No.
00476/MS 9B dated 09 Sep 86.
2. Certain doubts have been expressed by
officers regarding the ’Two Stream Concept’.
This letter seeks to clarify the important
issues with particular reference to:
(a) Necessity of the Stream Concept.
(b) Ages of superannuation.
(c) Inter-se seniority.
Necessity
3. The upgradations which were sanctioned in
the Second Cadre Review, were mainly on the
Staff and ERE. This resulted in an imbalance
in the Command and Staff ratio. Tenures in
senior ranks in Command consequently became
truncated which in a Command oriented Army
like ours, is not acceptable. Hence the ’Two
Stream’ Concept was intro-
363
duced with the due approval of the Govern-
ment.
Ages of Superannuation
4. As per the current rules officers of the
’Staff Only’ Stream are to superannuate one
year earlier ’than the officers of the ’Com-
mand and Staff Stream. This rule is applicable
both to the General Cadre and officers from
other Arms and Services. However, in the case
of officers of other Arms and Services certain
other clarifications given in the succeeding
paras will also be applicable.
5. Maj. Gens. In the case of Maj Gens from
other Arms and services, the screening is done
primarily to permit the officers to be promot-
ed to un-specified appointments outside their
Corps on first promotion and if required ahead
of officers not so selected. The ages of
superannuation in their respect will remain
unchanged and they shall superannuate at an
age corresponding to the officers of the
Command and Staff in the rank of Maj Gen.
6. Lt. Gens. Each other Arm/Service is autho-
rised two appointments specific to the Corps
in the rank of Lt. Gen. Notwithstanding the
proposal to downgrade the schools of Instruc-
tion, a second appointment in the rank of Lt.
Gen. will invariably be made available to them
to ensure that their promotional prospects do
not lag behind. Officers holding these two
assured appointments will superannuate at 58
years. Other officers from a particular
Arm/Service in the ’Staff Only Stream’ over
and above the two assured appointments will
superannuate at 57 years as is applicable to
officers of the General Cadre. However, if an
appointment within the Corps falls vacant,
such officer will be screened to assess his
fitness for holding the specific vacancy
within the Corps. If selected to hold the
authorised vacancy, he will superannuate at an
age corresponding to the age of Command and
Staff Stream, i.e. 58 years. If in case, no
vacancy is available, the officers of this
Stream continue to superannuate at 57 years as
mentioned earlier.
Inter-se seniority
7. The ’Two Stream Concept’ envisages that
officers of the
364
General Cadre of a particular batch seniority
approved in the ’Command and Staff’ Stream
will be e.n-block senior to those officers of
the same batch approved on the ’Staff Only’
Stream.
8. In so far as non-General Cadre officers are
concerned, the order of passing out is the
determining factor to decide the inter-se
seniority amongst them subject to readjustment
based on the sequence of selection.
9. Doubts have also been raised regarding the
inter-se seniority between the officers of
other Arms and Services approved on the ’Staff
Only’ Stream vis-a-vis officers of the General
Cadre approved in the ’Command and Staff’
Stream as well as ’Staff Only’ Stream. It is
clarified, that as regards the seniority
within the same batch is concerned, officers
approved on the ’Command and Staff’ Stream
continue to be senior to officers approved in
the ’Staff Only’ Stream. However, an officer
of an earlier batch approved on the ’Staff
Only’ Stream will be senior to an officer of
subsequent batch approved on the ’Command and
Staff’ Stream.
10. It will, therefore, be noticed from the
above that while promoting officers in either
the ’Command and Staff’ Stream or ’Staff Only’
Stream, concept of batch seniority as hither-
tofore applicable has in all cases been main-
tained.
11. It is reiterated that the ’Stream Concept’
has been introduced to ensure that the best
available talent and expertise available in
the service is utilised.
12. Content of this letter be widely dissemi-
nated.
sd/
(Vijay Kumar)
Lt. Gen
Sena Sachiv/
Military Secretary"
Before adverting to the submissions of the parties we may also refer to another letter dated 29th May, 1984 filed as Annexure P-2 to the writ petition in the High Court (page 306 of the paper book filed on
365 behalf of the respondents alongwith the counter-affidavit). The letter dated 29th May, 1984 reads as under:-
"SEQUENCE OF SELECTION FOR SELEC-
TIVE RANKS
1. Reference MS Branch Liaison Letter No. 1/80
forwarded vide this Headquarters Letter No.
OO170/MS9A dated 02 Aug 80.
2. Paras 26 and 27 of the above quoted Liaison
Letter deal with the revised sequence of
selection for promotion to the rank of A/Lt.
Col. However, the example given in Para 26 has
raised certain doubts in the minds of the
officers. According to this example, the
revised sequence of selection was to be in the
following order:-
(a) Final Review -- (Say) 1960 Batch
(b) First Review -- 1961 Batch
(c) Fresh Selectees 1962 Batch
3. Prior to Feb., 1980 two different sequences
of selection were being followed for promotion
to the rank of A/Lt Col and A/Col, illustrated
by the following examples:
(a) for promotion to the rank of A/Lt Col
(i) Fresh SeLEctees -- (Say) 1959 Batch
(ii) Final Review -- 1957 Batch
(iii) First Review -- 1958 Batch
(b) for promotion to the rank of A/Col and above
(i) Final Review -- 1954 Batch
(ii) First Review -- 1955 Batch
(iii) Fresh selectees -- 1956 Batch 366
4. In Feb 1980, it was decided to bring the
sequence of selection in the rank of A/Lt Col
in line with the sequence being followed for
promotion to the ranks of A/CoI and above. The
changed sequence of selection which is being
presently followed is illustrated by the
following examples:
(a) Final Review -- 196 1 Batch
(b) First Review -- 1962 Batch
(c) Fresh selectees -- 1963 Batch
5. This new sequence was to be applied com-
mencing with the fresh selectees of 1963 as
illustrated in para 4 above. Fresh selectees
officers of 1962 and earlier seniority were to
be treated by the old criterion as given in
para 3(a) above. It was also decided that past
cases would not be opened up for the revision
of seniority.
6. In view of above, para 26 of above men-
tioned Liaison Letter may please be treated as
cancelled.
7. This letter may please be given wide
publicity.
Sd/
(HB Kala)
Col.
Col MS 5
for Military Secretary"
Learned counsels also brought to our notice paragraph 169 of Annexure P-3 filed in the writ petition (page 307 to 309 of the paper book) which reads as under:
"169. A’ Batch for consideration for promotion
to select rank is defined as "all officers who
reckon seniority in a particular calender
year". This has been done for the following
reasons:
(a) Officers are commissioned from IMA in Jan.
and Dec. each year.
367
(b) Officers commissioned from OTS on grant of
permanent commission lose seniority as per
existing rules and they reckon seniority in
Mar. and Sep. of each year.
(c) Officers who forefeit service as a result
of disciplinary awards reckon fresh seniority
on any date in the calender year.
(d) Officers passing promotion examinations
late also reckon seniority corresponding to
the date of the examination on which they
finally passed."
It will be noticed that both these communications are before the ’Two Stream Concept’ which was accepted by the Government on 3 1st May, 1986 and its modalities being worked out thereafter. However, we will deal with these two communications little later.
The Division Bench of the High Court considered the note of Military Secretary dated 22nd September, 1986, referred to above, as well as the note of the Vice Chief of Army Staff dated 24th September, 1986 as also the note of the Chief of Army Staff and took the view that if the sequence of promotion which was being followed was for Option ’A’ the writ petitioner would be entitled to be placed above the fresh Command and Staff’ Stream cases belonging to 1957 batch. The learned Judges further observed:
"In our opinion it is the sequence which is
referred to in the Option ’A’ which has to be
followed for making promotion to the next
higher rank of Lt. General. The reason for
this is obvious. It is true that the Military
Secretary had recommended in the note dated
22nd September, 1986 that Option ’B’ (supra)
should be adopted. The Vice Chief of Army
Staff, however, has stated that the proposal
of the Military Secretary cannot be a long
term proposal. He further recommended that the
proposal of accepting Option ’B’ could be
adopted for a short term only.
"as the ages at which the officers
are currently being approved for higher promo-
tions are comparatively higher".
The Vice Chief of Army Staff then (emphasis
added) recommended that Option ’B’ should be
regarded as being
368
followed "for a transitionary phase only".
It is clear from the aforesaid note
of the VCOAS that option ’B’ was recommended
for being approved only by way of temporary
measure and with regard to those officers who
were being considered for promotion at that
time. The use of the expression ’Currently
being approved’ must lead to only one conclu-
sion that it referred to those officers who
were being considered for promotion on or
about September, 1986. What is of greater
importance is that the VCOAS was emphatic in
observing that Option ’B’ could not be fa-
voured as a long term proposal. The Chief of
Army Staff agreed with the recommendation of
the Vice Chief of Army Staff. The effect of
this must be that the recommendation of the
Military Secretary to adopt Option ’B’ as a
sequence of promotion was not accepted. The
existing sequence of promotion which was being
followed was recommended to be continued."
Again the Division Bench observed:
"It is pertinent to note that notwithstanding
the note dated 22nd September, 1986, and the
subsequent opinion of the Vice Chief of Army
Staff and the Chief of Army Staff, no letter
of the type which was issued on 9th September,
1986, was ever issued by the Military Secre-
tary’s branch. Whereas the letter of 9th
September, 1986, was issued to all the Command
Headquarters, there is no format document
which was issued or made known to the offi-
cers, purporting to give effect to Option ’B’
suggested by the Military Secretary vide his
note dated 22nd September, 1986. On the con-
trary, the letter dated 1st June, 1987 issued
by the Military Secretary’s Branch, referred
to hereinabove, is clearly at variance with
the suggestion of the Military Secretary
contained in his note of 22nd September, 1986.
If Option ’B’ had been accepted, then that
would have been mentioned in the letter’ of
1st June, 1987."
Again in relation to the communication dated 1st June, 1987 the Division Bench observed as under:-
"Reverting to the letter of 1st June, 1987, we
find that
369
towards the end of paragraph 9, it has been
categorically stated that:
"However, an officer of an earlier batch
approved on the Staff Only Stream’ will be
senior to an officer of subsequent batch
approved on the ’Command and Staff’ stream".
This is then emphasised by the contents of
paragraph 10 of that very letter which reiter-
ates that:
"The concept of batch seniority as
hithertofore applicable has in all cases been
maintained."
The anxiety of the Military Secretary’s branch
apparently was that the batch seniority had to
be maintained. If the argument of Mr. Vazey is
accepted, the batch seniority cannot be main-
tained if the fresh cases of 1957 batch are to
be promoted earlier than the petitioner, which
is a first review case of 1956 batch, then the
effect would be that officers belonging to the
1957 batch would be senior to the petitioner
who belongs to the 1956 batch. Notwithstanding
the note dated 22nd September, 1986 of the
Military Secretary, the letter dated 1st June,
1987 of the Military Secretary’s branch makes
it clear that the batch seniority shall always
be maintained. Notwithstanding the fact that
the fresh cases of 1957 batch have been ap-
proved for command and Staff stream, they
would, nevertheless, come in sequence after
the petitioner who belongs to the 1956 batch
though selected in the Staff only Stream. It
may happen that notwithstanding that the
petitioner is placed at the head of the penal,
no staff vacancy may occur and a vacancy may
occur only for a command post to which the
petitioner has not been selected but we are
not concerned with such a case here. It is the
admitted case before us that out of the penal
of officers who were selected as per the
letter dated 26th October, 1990, Major Gen.
S.A. Singh and S. Roy Choudhary have been, on
promotion, posted to posts which are non-
Command posts.
It appears to us that the Division Bench totally misunderstood the note of the Military Secretary dated 22nd September, 1986 as well as the note of the Vice Chief of Army Staff dated 24th September, 1986. 370
It is in the select panel prepared dated 26th October, 1990 that the officers mentioned at (a) are the officers who were selected for ’Command and Staff’ stream whereas the respondent was selected for the stream of ’Staff Only.’ It is clear from the Scheme that the officers who were approved for ’Command and Staff’ stream can be appointed both for ’Command’ as well as ’Staff’ vacancies whereas the officers who were approved only for stream of ’Staff Only’ can only be appointed to the vacancies relating to ’Staff’ and cannot be appointed relating to vacancies for ’Command’. The expression ’same batch’ which is referred to in paragraph 9 of the letter dated 1st June, 1987 is for the officers who were considered for selection at one time and not the individual batch of the Major General. In the batch in which the respondent was considered for promotion included (a) fresh cases of 1957, (b) first review case of 1956 and (c) final review cases of 1955. It is that batch which is being referred to as the ’same batch’ and it is specifically mentioned in paragraph 9 that for the purpose of seniority. officers of the ’Staff Only’ stream will be junior to the officers of the ’Command and Staff’ stream. It is again specifically mentioned that after placing the officers of the ’Staff Only’ stream, review selectees of the ’Command and Staff’ stream of the next batch to be promoted. This concept was further explained in the note of the Military Secretary dated 22nd September, 1986 which was approved by the Chief of Army Staff as well as duly informed to the Government as required by the communication dated 3 1st May, 1986, noticed by us earlier. In the note of the Military Secretary dated 22nd September, 1986 Option ’A’ which was prevalent practice was substituted by Option ’B’ which was recommended for future and which was accepted both by Vice Chief of Army Staff as well as the Chief of Army Staff. Option ’A’ was never put up as a proposal for acceptance or rejection to the Chief of Army Staff. Vice Chief of Army Staff only considered the proposal as recommended by Military Secretary in his note dated 22nd September, 1986 and Vice Chief of Army Staff accepted it-and the same was adopted by the Chief of Army Staff. This Option ’B’ has not been reviewed till date. There can be no doubt that if Option ’A’ was available for preparation of select list the respondent would have been senior to other persons who were recommended for ’Command and Staff’ stream. But Option ’A’ was given up and Option ’B’ was recommended for approval. If Option ’B’ has been adopted and accepted, as is clear, the seniority of the respondent placed in the panel dated 26th October, 1990 is unexceptionable. It is again clear that the recommendation of the Military Secretary dated 22nd September, 1986 approved by the Chief of Army Staff was fully stated in paragraphs 7, 9 and 10 of the communication dated 1st June, 1987. Merely because no reference
371 is made to the note of the Military Secretary dated 22nd September, 1986 in the communication dated 1st June, 1987 it does not mean that the note has to be ignored. It will be noticed from the communication dated 31st May, 1986 that after the Government had approved the concept of ’Two Stream’, it was left to the Army Headquarters to work out the modalities and merely inform the Government. In fact, the select panel, even after being prepared, has to be approved by the Government and has been so approved which show that the Government has accepted the modalities worked out by the Army Headquarters of the ’Two Stream’. It is clear from the noting of the Military Secretary which was accepted by the Chief of Army Staff that the same was intimated to the Government and that the matter was also discussed with the Government by the Military Secretary. Nothing further was required to be done and those decisions find place in paragraphs 7, 9 and 10 of the letter dated 1st June, 1987 by way of working out modalities. It is mentioned, even at the expense of repetition, in paragraph 7 of the aforesaid communication dated 1st June, 1987 that the ’Two Stream Concept’ envisages that the officers approved in the ’Command and Staff’ stream will be en-block senior to the officers of the same batch approved in the ’Staff Only’ Stream. The same batch here refers to the three types of officers who were considered for promotion in the 1957 batch. Again in paragraph 9 it was’repeated "it is clarified, that as regards the seniority within the same batch is concerned, officers approved on the ’Command and Staff’ Stream continue to be senior to officers approved in the "Staff Only’ Stream. It was further clarified that "however, an officer of an earlier batch approved on the ’Staff Only’ Stream will be senior to an officer of subsequent batch approved on the ’Command and Staff’ Stream. Here the ’subsequent batch’ means the next batch of promotion. The expression ’same batch’ in the communications of 22nd September, 1986 and 1st June, 1987 took colour from the context and not from the definition of ’batch’ given in paragraph 169 noticed earlier. Nor does the sequence of selection to be considered as was prevailing before the communication dated 22nd September, 1986 relevant. It was only the sequence of selection as proposed in Option ’B’ which was adopted.
Again the observation of the Division Bench that the note of the Military Secretary dated 22nd September, 1986 is contrary to or at variance with the letter dated 1st June, 1987 is not correct. The letter of 1st June, 1987 is again for working out further modalities of ’Two Stream Concept’ vis-a-vis seniority in the light of the note of the Military Secretary dated 22nd September, 1986. 372
The Government has been very fair in placing before the results of the select panel prepared since the introduction of ’Two Stream Concept’. The first Special Selection Board, after September, 1986, for promotion to the rank of Lt. General was held in October, 1986. It was 1954 batch comprising or--(a) Final Review of 1952, (b) First Review of 1953 and (c) Fresh 1954 and the officers who were selected to the Stream of ’Command and Staff’ were of 1954 batch and were placed en-block senior to officers selected for ’Staff Only’ Stream who were again Fresh 1954. Again the same policy was followed in the case of the respondent. It was called 1957 batch comprising (a) Final Review of 1955, (b) First Review of 1956 and (c) Fresh 1957. Since the respondent was approved only for ’Staff Only’ Stream, though he was first review case of 1956, he was placed below the officers who were approved for ’Command and Staff’ Stream and were Fresh 1957. Since there was no vacancy which could fall to the share of the respondent in his turn as per the seniority till he was superannuated on 3 1st May, 1991, the respondent could not take advantage of his approved promotion.
The note dated 22nd September, 1986 amending the sequence of promotion and after giving advantage and disadvantages of the two options i.e. Option ’A’ and Option ’B’ had, thereafter, recommended that Option ’B’ should be adopted.
It may not be accurate for the High Court to apply Option ’A’ which has never been recommended and which was superseded by Option ’B’ which was accepted at the highest level. Fact remains that even the select panel prepared by the army authorities was approved by the Government before it was released.
Learned counsel for the respondent referred to the case of Major General R.K. Gaur as mentioned in paragraph 49 of the writ petition. The averment in paragraph 49 of the writ petition is that Major General Gaur was a case of 1954 batch-first review, and was approved on 26th August, 1988 for ’Staff Only’ Stream. Sometime in October, 1987 fresh cases of 1955 batch were also approved for promotion to the rank of Lt. General in which Major General V.K. Singh and Major General Hatvans Singh, in addition to many others, were approved for ’Command and Staff’ stream. By the time Major General Gaur was approved in its first review on 26th 2August, 1988 various officers of 1955 fresh cases were promoted except Major General V.K. Singh and Major General Harvans Singh. Between 26th August, 1988 on which date Major General Gaur was approved in ’Staff Only’ Stream 373 and 26th October, 1988 no promotions were made to the rank of Lt. General and on 26th October, 1988 Major General Gaur was ordered to be promoted and in his order it is mentioned that the general officer i.e. Major General Gaur will report for his new appointment forthwith. Since the order has come on 26th October, 1988 itself and the order was to report forthwith he could have picked up the rank the same day but incidentally he was out of station and returned only on 31st October, 1988 and he could pick up the rank only on 1st November, 1988. The orders of promotion of Major General V.K. Singh and Major General Hatvans Singh were issued on 27th October, 1988 which clearly indicate that the order of promotion of Major General Gaur was issued ahead of both the aforesaid officers. This would clearly indicate that in the case of Major General Gaur who was a 1954 batch first review case was promoted ahead of Major General V.K. Singh and Major General Harvans Singh who were approved in ’Command and Staff’ Stream as fresh cases of 1955 batch. The intention of issuance of such order promoting Major General Gaur on 26th October, 1988 clearly indicates that he was to be promoted ahead of those two officers.
In reply to the submissions made in paragraph 49, it is pleaded on behalf of the Government that it was clearly mentioned that Major General Gaur, being a list review selectee of 1954 batch in ’Staff Only’ stream, reckoned seniority below the Fresh Selectee ’Command and Staff’ stream of 1955 batch. In the Army, the seniority is decided by the date of substantive promotion and not by the date, the officer picks. up his acting promotion. In many cases officers due to various administrative reasons, who are otherwise seniors, pick up their acting rank due to late assumption of higher officer later than their juniors. However, in such cases it is ensured that while granting substantive rank the panel seniority is maintained. It is a well known principle practised in almost all services and the writ petitioner is trying to confuse the issue with the letter relating to posting and promotion of senior officers which was issued one day later than his junior. It was contended that even in those promotion it was ensured that the seniors were at a liberty to assume their higher appointment in acting rank alongwith Major General Gaur. It was averred that it has been conveniently overlooked by the writ petitioner that promotion orders of several others of his senior were issued earlier. Moreover Lt. General Gaur was given substantive promotion at a date later than the other two officers mentioned by the writ petitioner. Under no circumstances a junior is promoted ahead of the senior. It was stated that Lt. General 374 Gaur was given substantive rank w.e.f. 1.11. 1988 whereas Lt. General Harvans-Singh and Lt. General V.K. Singh, both seniors to Lt. General Gaur, were given substantive promotion w.e.f. 27th October, 1988.
We find that in view of this reply the petitioner cannot take advantage for being, promoted earlier than the officers selected for the ’Command and Staff’ Stream.
We, thus, accept this appeal, set aside the order of the High Court dated 30th April, 1991 and dismiss the writ petition filed by the respondent. However, on the facts of the case, parties are left to bear their own costs throughout. T.N.A. Appeal allowed. 375