Service matter Army- Rule 16A of the Army Rules, - Promotion to the rank of Lieutenant General - before retirement post fell vacant - selection board recommended the petitioner -sent for approval of ACC - Appointments Committee of the Cabinet, - delay in approving the promotion - pending approval - retirement time was extended two times by President of India - of lately ACC rejected on the ground that no promotion be given on extention - High court of Madaras and DB of high court dismissed the writ petition - Apex court set aside the orders of ACC and high courts and allowed the writ =
whether the non-consideration of the claim of the appellant would violate the fundamental
rights vested in him under Articles 14 and 16 of the Constitution of India.
We are therefore
of the view, firstly, that the order allowing extension in service of the
appellant for a period of three months, dated 29.2.2008, and the order
allowing further extension in service by one month to the appellant, dated
30.5.2008, so as to enable his claim to be considered for onward promotion
to the rank of Lieutenant General, cannot be held to be in violation of the
statutory provisions. Rule 16A of the Army Rules, postulates extension in
service, if the exigencies of service so require.
The said parameter must
have been duly taken into consideration when the Presidential Orders dated 29.2.2008 and 30.5.2008 were passed.
The respondents have neither revoked,
nor sought revocation of the above orders. Therefore, it does not lie in
the mouth of the respondents to question the veracity of the above orders.
The above orders were passed to ensure due consideration of the appellant’s
claim for promotion to the rank of Lieutenant General. Without rejecting
the above claim on merits, the appellant was deprived of promotion to the
rank of Lieutenant General. Besides the above, we are also of the
considered view, that consideration of the promotional claim of the senior
most eligible officer, would also fall in the parameters of the rule
providing for extension, if the exigencies of service so require. It would
be a sad day if the armed forces decline to give effect to the legitimate
expectations of the highest ranked armed forces personnel.
Specially
when, blame for delay in such consideration, rests squarely on the
shoulders of the authorities themselves. This would lead to individual
resentment, bitterness, displeasure and indignation. This could also
undoubtedly lead to, outrage at the highest level of the armed forces.
Surely, extension of service, for the purpose granted to the appellant,
would most definitely fall within the realm of Rule 16A of the Army Rules,
unless of course, individual resentment, bitterness, displeasure and
indignation, of army personnel at the highest level is of no concern to the
authorities. Or alternatively, the authorities would like to risk outrage
at the highest level, rather than doing justice to a deserving officer.
Reliance on Rule 16A, to deprive the appellant of promotion, to our mind,
is just a lame excuse. Accordingly, extension in service granted to the
appellant, for all intents and purposes, in our considered view, will be
deemed to satisfy the parameters of exigency of service, stipulated in Rule
16A of the Army Rules.
The denial of promotion to the appellant
mainly for the reason, that the appellant was on extension in service, to
our mind, is unsustainable besides being arbitrary, specially in the light
of the fact, that the vacancy for which the appellant was clamouring
consideration, became available, well before the date of his retirement on
superannuation. We have, therefore, no hesitation in rejecting the basis
on which the claim of the appellant for onward promotion to the rank of
Lieutenant General was declined, by the Appointments Committee of the
Cabinet.
In view of the fact, that we have found the order of rejection of the
appellant’s claim for promotion to the rank of Lieutenant General, on the
ground that he was on extended service to be invalid, we hereby set aside
the operative part of the order of the Appointments Committee of the
Cabinet. It is also apparent, that the Selection Board had recommended the
promotion of the appellant on the basis of his record of service, past
performance, qualities of leadership, as well as, vision, out of a panel of
four names. In its deliberations the Appointments Committee of the
Cabinet, did not record any reason to negate the aforesaid interference,
relating to the merit and suitability of the appellant. We are therefore
of the view, that the appellant deserves promotion to the rank of
Lieutenant General, from the date due to him. Ordered accordingly. On
account of his promotion to the post of Lieutenant General, the appellant
would also be entitled to continuation in service till the age of
retirement on superannuation stipulated for Lieutenant Generals, i.e., till
his having attained the age of 60 years. As such, the appellant shall be
deemed to have been in service against the rank of Lieutenant General till
28.2.2009. Needless to mention, that the appellant would be entitled to
all monetary benefits which would have been due to him, on account of his
promotion to the rank of Lieutenant General till his retirement on
superannuation, as also, to revised retiral benefits which would have
accrued to him on account of such promotion. The above monetary benefits
shall be released to the appellant within three months from the date a
certified copy of this order becomes available with the respondents.
26. Allowed in the aforesaid terms.
2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41142
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 192 OF 2014
(Arising out of SLP (C) No. 2008 of 2010)
Major General H.M. Singh, VSM … Appellant
Versus
Union of India and Anr. … Respondents
J U D G M E N T
Jagdish Singh Khehar, J.
1. The appellant was commissioned as Second Lieutenant in the Indian
Army on 15.6.1969. His initial induction was into the Armoured Corps. On
25.5.1983 the appellant changed his cadre. He permanently moved into the
Defence Research and Development Organisation (hereinafter referred to as
‘the DRDO’). Having gone through decades of rigorous military service and
having consistently earned onward promotions to higher ranks, as were due
to him from time to time, he was granted acting rank of Major General on
1.6.2004, after he had been approved for promotion to the rank of Major
General by a duly constituted Selection Board.
2. On 31.3.2005 Lieutenant General Ravinder Nath retired from service.
Resultantly a vacancy in the rank of Lieutenant General became available.
On 1.1.2006 the appellant claims to have become eligible for the
consideration for promotion to the above vacancy. It would be relevant to
mention, that at that juncture, in the cadre of Major Generals, the
appellant was the senior most serving officer (as per seniority list dated
29.12.2006) eligible for promotion to the rank of Lieutenant General. In
the Government of India gazette (published on 6.12.2007) the appellant was
shown as having been promoted as substantive Major General with effect from
7.1.2004. It would also be relevant to mention, that the name of the
appellant was included in the name announced by the President of India for
the award of the Vishist Seva Medal on 26.1.2007. The said award was
sought to be bestowed upon the appellant, for his having rendered
distinguished service of an exceptional order to the nation. It is
therefore, that the appellant was desirous, that his claim be considered
for onward promotion to the rank of Lieutenant General. At that juncture,
the appellant had not only held the rank of Major General for more 18
months, he had also earned two confidential reports in the said rank. The
record appended to the pleadings indicates, that he had also been granted
vigilance clearance.
Despite the above, the appellant was not considered
eligible for promotion to the rank of Lieutenant General as he had not
completed two years’ service in the rank of Major General at that time.
3. Under the circumstances mentioned in the foregoing paragraph, AVM R.
Yadav, an officer from the Indian Air Force was inducted into the DRDO on
29.12.2005, against the vacancy in the rank of Lieutenant General created
by Lieutenant General Ravinder Nath. AVM R. Yadav retired from service
with effect from 31.12.2006. As such, a vacancy in the rank of Lieutenant
General became available with effect from 1.1.2007.
4. On 30.4.2007, the appellant addressed a representation to the
Director General DRDO asserting, that he was eligible for promotion against
the existing vacancy of Lieutenant General, as he fulfilled the laid down
criteria. He expressly pointed out in his above representation, that in
the event of his promotion to the rank of Lieutenant General his age of
retirement would stand extended. As Major General he would retire at the
age of 59 years, on 29.2.2008 (as the appellant date of birth is 2.2.1949).
On his promotion to the rank of Lieutenant General his age of retirement
would stand extended to 28.2.2009 i.e., to 60 years. The appellant
therefore requested the authorities, to immediately constitute and convene
a meeting of the Selection Board, for considering his claim for onward
promotion to the rank of Lieutenant General. For the above purpose, the
appellant also met various higher authorities. On all such occasions he
was informed, that the action to convene a meeting of the Selection Board
was under process. In fact, in November, 2007 the appellant was assured,
that the meeting of Selection Board would be held in December, 2007. He
was also assured, that in the event of his being considered suitable for
promotion by the Selection Board, he will actually be promoted to the rank
of Lieutenant General, before the date of his retirement (29.2.2008) as
Major General.
5. Since the date of appellant’s retirement – 29.2.2008 was fast-
approaching, and because it seemed to the appellant that nothing was
moving, the appellant submitted his grievance to the authorities in
writing, praying for immediate action in the matter.
In this behalf he
also sought personal hearing, to present his case.
These pleas were raised
by the appellant through separate communications dated 26.12.2007 (to the
SA to the Defence Minister, and to the DRDO). On 28.2.2008 he addressed a
letter for the same purpose, to the Personal Secretary to the Defence
Minister.
6. Two days prior to the appellant’s retirement on superannuation
(29.2.2008, as Major General), on 27.2.2008 a meeting of the Selection
Board for promotion to the rank of Lieutenant General was convened. The
Selection Board cleared the appellant for promotion to the rank of
Lieutenant General. The Selection Board cleared only the name of the
appellant for the above promotion, from out of a panel of 4 names.
7. In order to ensure that the appellant’s claim for promotion to the
rank of Lieutenant General is not frustrated, the President of India by an
order dated 29.2.2008, was pleased to grant the appellant extension of
service, for a period of three months.
A relevant extract of the above
order is being reproduced hereinunder:
“I am directed to convey the sanction of the President to the
grant of extension in service to IC-23289 Maj Gen H.M. Singh,
VSM, AC, CVRDE, Avadi a permanently seconded officer of Defence
Research & Development Organisation, for a period of three
months with effect from 01 Mar 2008 or till the approval of ACC,
whichever is earlier.
This issues with the concurrence of MOD/Fin(R&D) vide their Dy
No. 582/Fin (R&D) dated 29 Feb 2008.”
(emphasis is ours)
A perusal of the above communication reveals, that the aforesaid extension
of service was granted to the appellant, to await the approval of the
Appointments Committee of the Cabinet. In this behalf it would be relevant
to mention, that in the process of consideration for promotion to the rank
of Lieutenant General, the recommendation made by the Selection Board
requires the approval of the Appointments Committee of the Cabinet, before
it is given effect to. It is apparent that the Appointments Committee of
the Cabinet, could not finalise the matter during the appellant’s extended
tenure of three months. As such, for the same reasons, the President of
India was pleased to grant the appellant a further extension in service (as
Major General) for a period of one month i.e., up to 30.6.2008 or till the
approval of the Appointments Committee of the Cabinet, whichever was
earlier.
8. On 2.6.2008, the Secretariat of the Appointments Committee of the
Cabinet (Ministry of Personnel, Public Grievances and Pensions, Department
of Personnel and Training) issued a communication with the following
observations:
“2. The Appointments Committee of the Cabinet has not approved
the promotion of IC-23289 Maj Gen H.M. Singh, a permanently
seconded officer of DRDO, to the rank of Lieutenant General.”
In consonance with the order granting extension in service, the DRDO issued
an order dated 3.6.2008, retiring the appellant from the rank of Major
General with immediate effect.
The appellant assailed the above order
dated 2.6.2008 (denying the appellant promotion to the rank of Lieutenant
General), and the order dated 3.6.2008 (by which the appellant was retired
from service) by filing Writ Petition No. 15508 of 2008 before the High
Court of Judicature at Madras (hereinafter referred to as ‘the High
Court’).
Convening a meeting of the Selection Board on 27.2.2008 i.e.,
just two days before the appellant was to retire on attaining the age of
superannuation, as also, the consideration of the recommendation made by
the Selection Board at the hands of the Appointments Committee of the
Cabinet, more than three months after the date on which the appellant would
retire from service, were vigorously referred to, to demonstrate the apathy
at the hands of the authorities, which according to the appellant, had
resulted in denial of promotion to him.
9. In response to the alleged delay in the matter of considering the
appellant’s claim for promotion, it was pointed out that the DRDO had a
large number of high value projects viz. design, development and production
of Light Combat Aircraft, design and development of Kaveri Engine, design
and development of Airborne Early Warning System and a number of projects
related to upgradation of avionics and electronics warfare system, Sukhoi,
MIG-27 and LCA; accordingly a decision was taken by the DRDO i.e., the
appellant’s controlling authority, to earmark the vacancy of Lieutenant
General (against which the appellant was claiming consideration), for an
officer of equivalent rank from the Indian Air Force, who would be in a
position to oversee, provide guidance and coordinate all the abovementioned
highly sensitive and intricate projects. The above tentative determination
for filling up the vacancy of Lieutenant General from the Indian Air Force
was, however, subsequently reviewed in consultation with the Government of
India. The Government of India on 14.2.2008 finally decided to fill up the
vacancy of Lieutenant General by promotion of a permanently seconded
service officer of the DRDO. It was therefore asserted, that non-holding
of the meeting of the Selection Board, and the non-finalisation of the
consideration of the appellant’s claim for promotion to the rank of
Lieutenant General, could not be described as a deliberate and intentional
attempt by the authorities to deprive the appellant of his promotional
opportunity.
10. In its pleadings the Union of India adopt a clear stand, that the
appellant having attained the age of superannuation on 29.2.2008, could not
be promoted as Lieutenant General “while he was on extension”.
It was also
the contention of the Union of India, that since the Appointments Committee
of the Cabinet had not approved the appellant’s promotion to the rank of
Lieutenant General, the same could not be challenged specially because the
Appointments Committee of the Cabinet had given valid reasons to defer the
recommendation of the Selection Board / Departmental Promotion Committee.
The Union of India acknowledged, that the Appointments Committee of the
Cabinet was the competent authority to approve the recommendation for
promotion to the rank of Lieutenant General (made by the Selection Board).
It was admitted, that the Selection Board in its meeting held on 27.2.2008
had recommended the appellant for promotion to the rank of Lieutenant
General. Pending approval of the Appointments Committee of the Cabinet,
the appellant had crossed the age of his retirement on superannuation (in
the rank of Major General, on 29.2.2008). Thereafter, the appellant was
granted extension in service beyond the period of his retirement up to
30.6.2008.
11. Having considered the contentions and prayers made by the appellant,
a Single Bench of the High Court while disposing of the Writ Petition No.
15508 of 2008, recorded the following observations:
“40. When the petitioner’s extension of service was not on the
ground of exigency, DRDO being mainly civilian, Rules do not
permit promotion on extension. ACC’s action in not granting
approval to the recommendation made by Selection Board is in
accordance with the Rules and the same cannot be assailed.
Petitioner cannot contend that he has been discriminated in not
granting promotion while on extension.
41. There is no substance in the contention that the Petitioner
having been extended his service, he ought to have been granted
promotion. Extension of service does not give rise the
legitimate expectation for promotion. The extensions in tenure
were given to the petitioner to ensure that procedure relating
to approval of competent authority on the recommendation of
Selection Board was completed in an objective manner by
following prescribed process. On culmination of process, ACC is
the competent authority came to the decision not to promote the
petitioner. As such there is not incoherence and arbitrariness
in the decision warranting exercise of judicial review.”
In the light of the above observations Writ Petition No. 15508 of 2008 was
dismissed on 5.5.2009.
12. Dissatisfied with the dismissal of Writ Petition No. 15508 of 2008,
the appellant filed an intra court Writ Appeal No. 779 of 2009. In the
process of adjudicating upon the controversy raised in the abovementioned
Writ Appeal, a Division Bench of the High Court framed two questions for
its consideration.
Firstly,
whether the appellant Major General H.M. Singh
had any fundamental right for promotion solely on the basis of the
recommendation of the Selection Board.
And secondly,
whether Appointments
Committee of the Cabinet was liable to accept the recommendation made by
the Selection Board in favour of the appellant, and consequently, order the
appellant’s promotion to the rank of Lieutenant General. Relying on
paragraph 108 of the Regulation of Army which delineates the constitution
and duties of the Selection Board, the Division Bench concluded that the
recommendations of the Selection Board were merely recommendatory in
nature, and therefore, answered the first question in the negative. The
Division Bench further held, that a legitimate claim for the promotion
would arise, only if a recommendation made by the Selection Board gets the
approval of the Appointments Committee of the Cabinet. Relying on the
judgments rendered by this Court in Dr. H. Mukherjee Vs. Union of India and
others, 1994 Supp. (1) SCC 250, Union of India and others Vs. N.P. Dhamania
and others, 1995 Supp. (1) SCC 1, and Food Corporation of India and others
Vs. Parashotam Das Bansal and others, (2008) 5 SCC 100, the Division Bench
of the High Court further concluded, that the Appointments Committee of the
Cabinet was not bound by the recommendation of the Selection Board. It
accordingly held, that for justifiable reasons, the Appointments Committee
of the Cabinet had the right to either accept, or to refuse the
recommendation of the Selection Board. In sum and substance it came to be
concluded, that unless it was shown that the determination of the
Appointments Committee of the Cabinet suffered from arbitrariness or
malafides and capriciousness, the same could not be interfered with. The
Division Bench of the High Court having found none of the above noted vices
in the determination of the Appointments Committee of the Cabinet, answered
the second question also in the negative.
13. Based on its aforementioned determination, the High Court dismissed
Writ Appeal No. 779 of 2009, on 21.7.2009. Dissatisfied with the order
dated 5.5.2009 (passed by the Single Judge of the High Court, dismissing
Writ Petition No. 15508 of 2009), and the order dated 21.7.2009 (passed by
the Division Bench of the High Court dismissing Writ Appeal No. 779 of
2009), the appellant approached this Court by filing Petition for Special
Leave to Appeal (C) No. 2008 of 2010. On 11.1.2010 this Court issued
notice in this matter. On completion of pleadings the matter was listed
for final disposal.
14. Leave granted.
15. On 29.8.2013 while hearing the matter this Court passed the following
order:
“Before we proceed for further hearing in the matter, we would
like to go through the deliberations of the Appointments
Committee of the Cabinet [for short ‘the ACC’] by which the
recommendations of the Selection Board was not accepted in the
case of the petitioner.
Hence the records of the Selection Board and the final orders
passed therein in the case of the petitioner be placed before
the Court on the next date of hearing, i.e., 10th September,
2013.”
Thereafter on 12.9.2013 this Court passed the following order:
“We have perused the record produced before us and we have also
heard the arguments of learned Additional Solicitor General”
Ld. A.S.G. has sought time to seek instructions.
On the next date, Ld. A.S.G. will ensure that a copy of the note
put up to the A.C.C. and the decision of A.C.C. as well as a
copy of the recommendation dated 27th February, 2008 of the
Selection Board are made available to the Court
List this matter on 23rd September, 2013.”
The summoning of the record referred to in the orders extracted
hereinabove, had become essential for two reasons. Firstly, the appellant
did not contest the findings recorded by the Division Bench of the High
Court on the two questions framed by the High Court, for the disposal of
Writ Appeal No. 779 of 2009. Having given our thoughtful consideration to
the determination rendered by the High Court, on the two questions framed
by it, we must acknowledge that the High Court was fully justified in
drawing its conclusions. We therefore hereby affirm the above findings
recorded by the High Court. According to the appellant, the High Court had
misdirected itself in its above determination. It was the submission of
the appellant, that the determination of the Appointments Committee of the
Cabinet, was not supported by justifiable reasons. It was asserted, that
the determination of the Appointments Committee of the Cabinet was
arbitrary, and based on extraneous consideration. Insofar as the instant
aspect of the matter is concerned, it was the vehement submission of the
appellant, that the High Court had not addressed the issue at all.
16. The solitary contention advanced at the hands of the appellant, was
based on the recommendation made by the Selection Board on 27.2.2008, and
the consideration of the above recommendation by the Appointments Committee
of the Cabinet (leading to the rejection of the appellant’s claim for the
promotion to the rank of Lieutenant General). For effectively
understanding and determining the solitary contention at the hands of the
appellant, it is essential to extract the minutes of the meeting of the
Selection Board dated 27.2.2008, as also, the proceedings of the
Appointments Committee of the Cabinet. Without understanding the tenor and
effect of the above deliberations, it would not be possible to express our
findings and the reasons. Had the above proceedings revealed sensitive
material, improper for public consumption, or detrimental to national
interest, we would have chosen to tread cautiously. The deliberations
which resulted in denial of promotion to the appellant (to the rank of
Lieutenant General), however, have no such misgivings. We have therefore
no hesitation in extracting the minutes of the meeting of the Selection
Board dated 27.2.2008. The same are being reproduced hereinunder:-
“MINUTES OF (1/2008) DRDO SELECTION BOARD
MEETING HELD ON 27 FEB 2008
The Selection Board comprising the following, met on 27
Feb 08 in the office of the Scientific Advisor to Raksha Mantri,
Room No. 532, DRDO Bhawan, New Delhi:-
(a) Shri M. Natarajan, SA to RM - Chairman
(b) Shri Pradeep Kumar, Secretary (DP) - Member
(c) Lt. Gen. M.L. Naidu,
PVSM, AVSM, YSM, VCOAS - Member
(d) Dr. D. Banerjee,
DS & CC R&D (AMS) - Member
Secretary
2. Defence Secretary did not attend the meeting due to other
prior commitments.
3. SA to RM briefed the Board to say that only one vacancy in
the rank of Lt. Gen exists. The other vacancy in lieu of
Scientist ‘H’ has been referred back to the RM for
reconsideration and therefore will be considered only after a
decision.
4. The Board considered the following 04 officers for
promotion to the acting rank of Lt. Gen:-
|Ser No. |IC No., Rank, Name & Corps |
|(i) |MR-03539 Maj Gen J.K. Bansal, AMC |
|(ii) |IC-23289 Maj Gen H.M. Singh, VSM, AC |
|(iii) |IC-23850 Maj Gen S.S. Dahiya, AVSM, VSM EME |
|(iv) |IC-24631 Maj Gen Umang Kapoor, EME |
5. Based on deliberations and record of service, past
performance, qualities of leadership as well as vision, the
Board recommends IC-23289 Maj Gen HM Singh, VSM, AC for
promotion.
Sd/- Sd/-
DS&CC R&D (AMS) VCOAS
Member Secretary Member”
(emphasis is ours)
The proceedings recorded by the Appointments Committee of the Cabinet while
rejecting the appellant’s claim for promotion to the rank of Lieutenant
General are also being set out below:-
“The Ministry of Defence has, with the approval of the Raksha
Mantri proposed the promotion of IC-23289 Maj Gen HM Singh, a
permanently seconded officer of the DRDO, to the rank of
Lieutenant General.
2. Maj Gen HM Singh (dob: 02.02.1949) was due for
superannuation on 29th February, 2008 on attaining the age of 59
years which is the age of superannuation for officers of the
rank of Major Generals who are permanently seconded to the DRDO.
A Selection Board which met on 27th February, 2008 to consider
eligible officers of the rank of Major General permanently
seconded to the DRDO for promotion to the rank of Lieutenant
General, recommended Major General Singh for promotion. As the
officer was due for retirement on 29th February, 2008 approval
of the Raksha Mantri was obtained for giving him extension of
service of three months in the rank of Major General or till the
approval of the Appointments Committee of the Cabinet to his
promotion to the rank of Lieutenant General, whichever is
earlier. Officers in the rank of Lieutenant General retire on
attaining the age of 60 years.
3. The propriety of grant of extension to the officer at the
verge of his superannuation and also, that of grant of promotion
to the officer while on extension has been examined. The matter
has been discussed, separately, with officers from the
Department of Personnel and Training; the DRDO, and also, the
Ministry of Defence (Military Secretary’s Branch). This apart,
a legal notice has been received alleging perjury on the basis
of information secured from the Ministry of Defence under the
Right to Information Act. A representation has also been
received from an officer, Maj Gen PP Das, alleging
discrimination.
4. In terms of the provisions of Section 16A(4) of the Army
Act an officer who has attained the age of retirement or has
become due for such retirement on completion of his tenure, may
be retained in the service for a further period by the Central
Government, if the exigencies of the service so require.
5. It is evident from the above provisions that for grant of
extension in service, the requirement to be fulfilled,
primarily, is the exigencies of service. In the note which was
put up to the Raksha Mantri soliciting approval to the proposal
for grant of extension, no such exigency has been cited. The
only issue that was mentioned in support of the proposal for
extension was that the officer had been recommended for
promotion to the rank of Lieutenant General. This in the
background of the provisions of the Act mentioned above, is no
sufficient ground for extension.
6. The Chief Controller Research & Development with whom the
matter was discussed has provided copies of orders issued in the
years 1995 and 1996 when officers of the rank of Major General
were granted extensions. Extensions in service were granted
with the approval of the Integrated Finance Division in the
Ministry of Defence though approval of the finance angle is not
strictly relevant to the grant of extensions. The other two
instances cited are of Shri P. Venugopalan, Outstanding
Scientist in the DRDL, Hyderabad who was granted extension
pending a decision on the question of his regular extension
under FR.56 as a Scientist; and of the post retirement
appointment of Vice Admiral PC Bhasin on contract basis in the
ATVP. These two cases are not relevant to the case of Maj Gen
Singh, present under consideration.
7. An instance has been cited, during discussions, of
extension of service granted in the year 1997 or thereabouts to
Major General Malik who was due for superannuation, and his
promotion to the rank of Lt. Gen while on extension.
8. The orders issued by the Department of Personnel and
Training lay down that while extension could be granted in
exceptional circumstances, there can be no promotion during the
period of such extension. These orders apply to the civilian
establishment. The instructions which apply to the Defence
forces permit extension in service only if the exigencies so
demand. DRDO is mainly civilian, and the Rules, as mentioned
above, do not permit promotion on extension.
9. The above apart, the plea taken the representation of Maj
Gen P.P. Das, and also the legal notice needs to be kept in
view. Instances of officers in the Armed Forces retiring just
before the vacancies coming their way and being denied
empanelment are not uncommon. Extensions motivated by reasons
of promotion being close at hand can have repercussions.
10. The above part, the ACR format which is followed for the
officers of this rank, seconded to the DRDO, which has been
applied for recording of ACRs in the present case reveal that
fitness for promotion should be specifically recorded in the
ACr. A perusal of the ACR of Maj Gen Singh reveals that
specific record of fitness for promotion has not been made.
11. More pointedly, two questions stand out, firstly, the
doubtful authority and grounds for granting extensions, taking
into account that there was no exigency and, secondly,
extensions, motivated by a promotion in the offing during the
extension period cannot be allowed. It cannot be ignored also
that such situations trigger litigation, which should best be
avoided in such instances.
12. Under the above circumstances, it would be appropriate not
to approve the promotion of Maj Gen H.M. Singh to the rank of
Lieutenant General.
Sd/-
Cabinet Secretary
22.5.2008
HOME MINISTER Sd/-
28.5.2008
PRIME MINISTER has approved Para 12 above with the direction
that the observation in Paras 5 and 8 may be communicated to the
MOD for the future.
Sd/-
30.5.2008
Sd/- Director
Cabinet Secretary Prime Minister’s Office
2.6.2008 New Delhi”
(emphasis is ours)
17. The appellant points out, that the determination of the Appointments
Committee of the Cabinet, overlooked the factual position stated in the
counter affidavit, filed jointly on behalf of respondent nos. 1 and 2
(respondent no.1 – the Union of India, through Secretariat of the
Appointments Committee of the Cabinet; and respondent no. 2 – the DRDO
through its Director General). In this behalf our attention was drawn to
paragraphs 3 (xvii) and 3 (xviii) which are being extracted below:
“3 (xvii) A meeting of the Selection Board was held on 27.2.2008
and the Selection Board recommended the name of the petitioner
for promotion to the rank of Lieutenant General. The post of
Lieutenant General then carried the pay scale of Rs.22400-525-
24500. Any appointment against this post requires the approval
of Appointments Committee of the Cabinet (ACC) (Respondent
No.1), which is a high power body consisting of the Hon’ble
Prime Minister of India, Hon’ble Union Home Minister, Hon’ble
Union Minister of Department of Personnel and Hon’ble Union
Defence Minister. As such, the recommendation of the Selection
Board were sent to ACC. In DRDO, the retirement age of an
officer of the rank of Maj Gen/equivalent which the petitioner
held at that time is 59 years. The petitioner was due to retire
from service w.e.f 29.2.2008. Under these circumstances, he was
given an extension of service for a period of three months or
till the decision of ACC was received whichever was earlier. As
the decision of ACC was not received till 31.5.2008, his service
was extended further for a period of one month w.e.f 1.6.2008 on
the same terms and conditions.
3 (xviii) The decision of ACC (Respondent No.1) regarding non-
approval of promotion of the petitioner to the rank of
Lieutenant General communicated vide letter dated 2.6.2008 was
received by respondent no. 2 on 3.6.2008 and the latter had to
issue orders of the petitioner’s retirement from service from
3.6.2008.”
(emphasis is ours)
18. Referring to the factual position depicted in the joint counter
affidavit filed on behalf of the respondent nos. 1 and 2, it was the
vehement submission of the appellant, that the Appointments Committee of
the Cabinet exceeded its jurisdiction in examining the validity of the
orders by which the appellant was granted extension in service. It was the
submission of the appellant, that the only question before the Appointments
Committee of the Cabinet, consequent upon the recommendations made by the
Selection Board on 27.2.2008, was in connection with the merits of the
claim of the appellant, for promotion to the rank of Lieutenant General.
Adding to the above contention, it was also the submission of the
appellant, that the Selection Board, consequent upon its deliberations held
on 27.2.2008, arrived at its findings based on the appellant’s service
record, past performance, qualities of leadership, as well as, vision, that
the appellant was worthy of promotion to the rank of Lieutenant General.
The Appointments Committee of the Cabinet, during the course of its
deliberations, did not find fault with the above conclusion drawn by the
Selection Board. As such, it was sought to be asserted, that even the
Appointments Committee of the Cabinet must be deemed to have endorsed the
merit and suitability of the appellant, for promotion to the rank of
Lieutenant General.
19. In order to contest the submissions advanced at the hands of the
appellant, learned senior counsel representing (respondent nos. 1 and 2)
emphatically relied upon the proceedings of the Appointments Committee of
the Cabinet. The proceedings under reference have been extracted by us
hereinabove. Referring to the above proceedings, learned senior counsel
for the respondents laid great emphasis on the observations recorded in
paragraphs 8 and 9 thereof. It was pointed out, that in terms of the
orders issued by the Department of Personnel and Training, promotion during
the period of extension was unquestionably barred. In this behalf it was
the contention of the learned senior counsel for the respondents, that with
effect from 1.3.2008, the appellant (who had attained the age of retirement
on superannuation on 29.2.2008), was on extension in service. There was,
therefore, no question of his being considered for promotion during the
period of such extension. In addition to the aforesaid categoric stand
adopted by the learned senior counsel for the respondents, it was sought to
be reiterated, that the orders dated 29.2.2008 and 30.5.2008, by which the
appellant was granted extension in service, for periods of three months and
one month respectively, were not sustainable in law, inasmuch as, they were
in violation of Rule 16A of the Army Rules which postulates, that an
officers who has attained the age of retirement or has become due for such
retirement on completion of his tenure, may be retained in service for a
further period by the Central Government, only if the exigencies of service
so require. It was the submission of learned senior counsel for the
respondents, that retention in service of the appellant was not on account
of any exigency of service.
20. We have given our thoughtful consideration to the submissions
advanced at the hands of the learned counsel for the rival parties. First
and foremost, we have no hesitation in endorsing the submission advanced at
the hands of the appellant, that the Appointments Committee of the Cabinet
did not in any manner upset the finding recorded by the Selection Board, in
respect of the merit and suitability of the appellant for promotion to the
rank of Lieutenant General. On the instant aspect of the matter, the
Appointments Committee of the Cabinet has maintained a sullen silence.
Even in the pleadings filed on behalf of the respondents, there is an
ironic quiescence. Therefore, all other issues apart, the appellant must
be deemed to have been found suitable for promotion to the rank of
Lieutenant General, even by the Appointments Committee of the Cabinet.
21. We have extracted hereinabove the factual position noticed by the
respondents in paragraphs 3(xvii) and 3(xviii) of their counter affidavit.
If the aforesaid averments are read in conjunction to the factual position,
that the vacancy against which the claim of the appellant was considered,
had arisen on 1.1.2007, it clearly emerges, that the appellant was the
senior most eligible officer holding the rank of Major General whose name
fell in the zone of consideration for promotion. The Selection Board
having conducted its deliberations singularly chose the name of the
appellant from the panel of four names before it. The proceedings of the
Selection Board reveal, that its recommendations were based on record of
service, past performance, qualities of leadership, as well as, vision. No
other name besides the appellant’s name was recommended for promotion.
Having been so recommended, the President of India, in the first instance,
by an order dated 29.2.2008, extended the service of the appellant, for the
period of three months with effect from 1.3.2008 “or till the approval of
the ACC whichever is earlier”. Since the Appointments Committee of the
Cabinet did not render its determination within the extended period
expressed in the order dated 29.2.2008, yet another order to the same
effect was issued by the President of India on 30.5.2008 extending the
service of the appellant for a further period of one month with effect from
1.6.2008 “or till the approval of the ACC whichever is earlier”. The
President of India, therefore, was conscious of the fact while granting
extension in service to the appellant, the appellant’s case for onward
promotion to the rank of Lieutenant General was under consideration.
Therefore, to ensure that the aforesaid consideration fructified into a
result one way or the other, extensions were granted to the appellant twice
over. The aforesaid determination at the hands of the President of India
in granting extension in service to the appellant, stands noticed in the
factual position expressed in paragraphs 3(xvii) and 3(xviii) of the
counter affidavit filed on behalf of the respondents 1 and 2. It is not
possible for us to accept, that the aforesaid determination in allowing
extension in service to the appellant can be described as being in
violation of the norms stipulated in Rule 16A of the Army Rules. It is
necessary in this behalf, for us to test the above conclusion drawn by us,
on the touchstone of Articles 14 and 16 of the Constitution of India. It
is not a matter of dispute, that the appellant was promoted to the rank of
substantive Major General with effect from 7.1.2004. It is also not a
matter of dispute, that the substantive vacancy in the rank of Lieutenant
General, against which the appellant was eligible for consideration, became
available with effect from 1.1.2007. Even though the appellant had nearly
14 months of military service remaining at the aforesaid juncture, the
procedure contemplated for making promotions to the rank of the Lieutenant
General was initiated for the first time just two days before the date of
retirement of the appellant, on 27.2.2008. Although it is the contention
of the learned senior counsel for the respondents, that the delay in
convening the Selection Board and conducting its proceedings was not
deliberate or malafide, yet there can be no doubt about the fact, that the
appellant was not responsible for such delay. For all intents and
purposes, he was repeatedly seeking consideration orally as well as in
writing. He had been repeatedly informing the authorities about the
approaching date of his retirement. In response, he was always assured,
that if found suitable, he would be actually promoted prior to the date of
his retirement. It was for the respondents to convene the meeting of the
Selection Board. Since the Selection Board came to be convened for the
vacancy which had arisen on 1.1.2007 only on 27.2.2008, the respondents
must squarely shoulder the blame and responsibility of the above delay.
22. The question that arises for consideration is, whether the non-
consideration of the claim of the appellant would violate the fundamental
rights vested in him under Articles 14 and 16 of the Constitution of India.
The answer to the aforesaid query would be in the affirmative, subject to
the condition, that the respondents were desirous of filling the vacancy of
Lieutenant General, when it became available on 1.1.2007.
The factual
position depicted in the counter affidavit reveals, that the respondents
indeed were desirous of filling up the said vacancy.
In the above view of
the matter, if the appellant was the senior most serving Major General
eligible for consideration (which he undoubtedly was), he most definitely
had the fundamental right of being considered against the above vacancy,
and also the fundamental right of being promoted if he was adjudged
suitable.
Failing which, he would be deprived of his fundamental right of
equality before the law, and equal protection of the laws, extended by
Article 14 of the Constitution of India.
We are of the view, that it was
in order to extend the benefit of the fundamental right enshrined under
Article 14 of the Constitution of India, that he was allowed extension in
service on two occasions, firstly by the Presidential order dated
29.2.2008, and thereafter, by a further Presidential order dated 30.5.2008.
The above orders clearly depict, that the aforesaid extension in service
was granted to the appellant for a period of three months (and for a
further period of one month), or till the approval of the ACC, whichever is
earlier.
By the aforesaid orders, the respondents desired to treat the
appellant justly, so as to enable him to acquire the honour of promotion to
the rank of Lieutenant General, (in case the recommendation made in his
favour by the Selection Board was approved by the Appointments Committee of
the Cabinet), stands affirmed.
The action of the authorities in depriving
the appellant due consideration for promotion to the rank of the Lieutenant
General, would have resulted in violation of his fundamental right under
Article 14 of the Constitution of India.
Such an action at the hands of
the respondents would unquestionably have been arbitrary.
We are therefore
of the view, firstly, that the order allowing extension in service of the
appellant for a period of three months, dated 29.2.2008, and the order
allowing further extension in service by one month to the appellant, dated
30.5.2008, so as to enable his claim to be considered for onward promotion
to the rank of Lieutenant General, cannot be held to be in violation of the
statutory provisions. Rule 16A of the Army Rules, postulates extension in
service, if the exigencies of service so require.
The said parameter must
have been duly taken into consideration when the Presidential Orders dated 29.2.2008 and 30.5.2008 were passed.
The respondents have neither revoked,
nor sought revocation of the above orders. Therefore, it does not lie in
the mouth of the respondents to question the veracity of the above orders.
The above orders were passed to ensure due consideration of the appellant’s
claim for promotion to the rank of Lieutenant General. Without rejecting
the above claim on merits, the appellant was deprived of promotion to the
rank of Lieutenant General. Besides the above, we are also of the
considered view, that consideration of the promotional claim of the senior
most eligible officer, would also fall in the parameters of the rule
providing for extension, if the exigencies of service so require. It would
be a sad day if the armed forces decline to give effect to the legitimate
expectations of the highest ranked armed forces personnel.
Specially
when, blame for delay in such consideration, rests squarely on the
shoulders of the authorities themselves. This would lead to individual
resentment, bitterness, displeasure and indignation. This could also
undoubtedly lead to, outrage at the highest level of the armed forces.
Surely, extension of service, for the purpose granted to the appellant,
would most definitely fall within the realm of Rule 16A of the Army Rules,
unless of course, individual resentment, bitterness, displeasure and
indignation, of army personnel at the highest level is of no concern to the
authorities. Or alternatively, the authorities would like to risk outrage
at the highest level, rather than doing justice to a deserving officer.
Reliance on Rule 16A, to deprive the appellant of promotion, to our mind,
is just a lame excuse. Accordingly, extension in service granted to the
appellant, for all intents and purposes, in our considered view, will be
deemed to satisfy the parameters of exigency of service, stipulated in Rule
16A of the Army Rules.
23. While dealing with the issue of consideration of the appellant’s
claim for onward promotion to the rank of Lieutenant General, it is
necessary for us to also conclude by observing, that had the claim of the
appellant not been duly considered against the vacancy for the post of
Lieutenant General, which became available with effect from 1.1.2007, we
would have had to hold, that the action was discriminatory. This because,
of denial of due consideration to the appellant, who was the senior most
eligible serving Major General, as against the claim of others who were
junior to him. And specially when, the respondents desired to fill up the
said vacancy, and also because, the vacancy had arisen when the appellant
still had 14 months of remaining Army service. Surely it cannot be over
looked, that the Selection Board had singularly recommended the name of the
appellant for promotion, out of a panel of four names. In such an
eventuality, we would have no other alternative but to strike down the
action of the authorities as being discriminatory and violative of Article
16 of the Constitution of India.
24. The deliberations recorded by us hereinabove are incomplete, inasmuch
as, we have not answered the pointed objection raised by the learned senior
counsel for the respondent nos. 1 and 2, namely, that an officer is not
entitled to promotion during the period of extension in service. For the
instant objection raised at the hands of the respondents, it is necessary
to refer to the deliberations of the Appointments Committee of the Cabinet,
and specially paragraphs 8 and 9 thereof. A collective reading of the
paragraphs 8 and 9 reveals an extremely relevant objective, namely,
situations wherein an officer attains the age of retirement without there
being a vacancy for his consideration to a higher rank, even though he is
eligible for the same. Such an officer who is granted extension in
service, cannot claim consideration for promotion, against a vacancy which
has become available during the period of his extension in service. The
above conclusion drawn by us is clearly apparent from the paragraph 9 of
the proceedings of the Appointments Committee of the Cabinet. In fact in
the operative part of the proceedings recorded in paragraph 11, it has been
noticed, that .”…extensions motivated by a promotion in the offing during
the extension period cannot be allowed…” We can derive only one meaning
from the above observations, namely, extension being granted for promotion
against a vacancy in the offing. That is to say, retention in service, so
as to consider an officer for a vacancy which has not become available
prior to his retirement, but is in the offing. The above reason recorded
in the operative part of the proceedings of the Appointments Committee of
the Cabinet, is laudible and legal. Insofar as the present controversy is
concerned, there is no doubt whatsoever, that a clear vacancy against the
rank of Lieutenant General became available with effect from 1.1.2007. At
that juncture, the appellant had 14 months of service remaining. It is not
as if the vacancy came into existence after the appellant had reached the
age of retirement on superannuation. The present case is therefore, not
covered by the technical plea canvassed at the hands of the learned senior
counsel for the respondents. The denial of promotion to the appellant
mainly for the reason, that the appellant was on extension in service, to
our mind, is unsustainable besides being arbitrary, specially in the light
of the fact, that the vacancy for which the appellant was clamouring
consideration, became available, well before the date of his retirement on
superannuation. We have, therefore, no hesitation in rejecting the basis
on which the claim of the appellant for onward promotion to the rank of
Lieutenant General was declined, by the Appointments Committee of the
Cabinet.
25. In view of the fact, that we have found the order of rejection of the
appellant’s claim for promotion to the rank of Lieutenant General, on the
ground that he was on extended service to be invalid, we hereby set aside
the operative part of the order of the Appointments Committee of the
Cabinet. It is also apparent, that the Selection Board had recommended the
promotion of the appellant on the basis of his record of service, past
performance, qualities of leadership, as well as, vision, out of a panel of
four names. In its deliberations the Appointments Committee of the
Cabinet, did not record any reason to negate the aforesaid interference,
relating to the merit and suitability of the appellant. We are therefore
of the view, that the appellant deserves promotion to the rank of
Lieutenant General, from the date due to him. Ordered accordingly. On
account of his promotion to the post of Lieutenant General, the appellant
would also be entitled to continuation in service till the age of
retirement on superannuation stipulated for Lieutenant Generals, i.e., till
his having attained the age of 60 years. As such, the appellant shall be
deemed to have been in service against the rank of Lieutenant General till
28.2.2009. Needless to mention, that the appellant would be entitled to
all monetary benefits which would have been due to him, on account of his
promotion to the rank of Lieutenant General till his retirement on
superannuation, as also, to revised retiral benefits which would have
accrued to him on account of such promotion. The above monetary benefits
shall be released to the appellant within three months from the date a
certified copy of this order becomes available with the respondents.
26. Allowed in the aforesaid terms.
…..…………………………….J.
(A.K. Patnaik)
…..…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 9, 2014.
