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CASE NO.:

Appeal (civil) 7698 of 1996

PETITIONER:

UNION OF INDIA & ORS.

Vs.

RESPONDENT:

AVTAR SINGH & ORS.

DATE OF JUDGMENT: 29/08/2001

BENCH:

S. Rajendra Babu & Shivaraj V. Patil

JUDGMENT:

[With SLP(C) No.20345/96]

J U D G M E N T

RAJENDRA BABU, J.:

Respondent No.1 was holding a rank of Brigadier in Indian Army

having been commissioned in the service on June 13, 1963 in the

Regiment of Artillery. In the 1965 Indo-Pak war, he was fighting in a

theatre on the western front in which he sustained serious injuries to

various parts of his body and ultimately his right arm and the left index

finger had to be amputated later on. By international medical standards,

he was classified as having 90% disability. But on account of the policy

adopted by the Government of India all officers who had sustained such

injuries or battle casualty officers should be retained in service to avoid

demoralisation by sending out young disabled officers from service.

However, that was only a poor consolation for no other relaxation was

provided to them for promotion in service or compensation for the

disability. Such officers had to compete with able-bodied officers to get

their future promotions notwithstanding of the injuries sustained by

them.

For the period between September 1990 to August 1991, ACRs of

respondent No.1 were recorded by respondent No.2 but the adverse

comments made by him and non-approval of the promotion to the rank

of Major General in the selection board to be held in October 1994 was

set aside on appeal and for another period from September 1991 to June

1992, the Chief of the Army Staff granted a limited relief of expunging of

those entries which had 5-point awarded in the relevant column by the

intimating officer and there is no need to grant any further interview in

regard to the same and thus he became eligible for consideration to the

post of Major General. He filed a writ petition challenging the adverse

entries made in the ACRs for the latter period.

In that writ petition, second grievance made by respondent No.1 is

that in the selection board held in April 1995, he was empanelled but he

was not actually or physically promoted to the rank of Major General and

he was due to retire on December 31, 1995 in the rank of Brigadier. In

other words, inasmuch as he has been approved for promotion to the

rank of Major General in the second selection board along with another

officer who picked up the rank of Major General by the time the writ

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petition was filed, respondent No.1 was not able to do so as no vacancy

of Major General was available in the AOC and, therefore, he had to

retire as a Brigadier on December 31, 1995 without availing the benefits

and consequences of his approval for promotion as Major General.

However, it must be noticed that an interim order was passed by the

High Court on 19.12.1993 that respondent No.1 shall not retire from

service despite his impending superannuation which stood affirmed on

appeal subject to slight modification in regard to posting. The resultant

position is that respondent No.1 continued to be in service even though

in the rank of Brigadier despite having reached the age of

superannuation in that rank on December 31, 1995. However, the High

Court examined the original ACRs of the two relevant years as had been

recorded by respondent No.2 and noticed that in respect of the first ACRs

all the entries recorded by him stood expunged and insofar as the second

entry is concerned, he had been graded by giving him the three marks.

On this aspect of the matter, the learned Single Judge of the High Court

stated that the superior officers have found respondent No.1 to be of

outstanding and exceptional eminence and did not approve the attitude

of respondent No.2 in under-rating and under-mining him and grading

him lower in ACRs. However, the High Court found that the ACRs

recorded by respondent No.2 would not mean that they are subjective,

biased and prejudicial assessment and the Chief of the Army Staff gave

limited relief to him regarding the second ACR with the result that the

entries in the second ACR came to be considered by the selection board

when respondent No.1 was first considered for promotion in October

1994. However, ultimately, the High Court found that on account of the

fact that respondent No.1s name stood approved in April, 1995, he was

not inclined to disturb the finding of the selection board held in October

1994 merely on the ground that respondent No.1s second ACR was

before the selection board entries wherein are recorded by respondent

No.2 though not fully supporting him and in spite of which his case was

considered and he was approved for empanelment. In that view of the

matter, to disturb the proceedings in which four other officers had been

approved would cause great prejudice and hardship to them especially

when respondent No.1 himself has now been approved for new

promotion.

In that background, the learned Single Judge did not consider it fit

to disturb the ACRs recorded. Against that part of the order, a separate

SLP has been filed by respondent No.1 in SLP(C) No.20345/96, on which

notice has been issued and tagged on to the present appeal. In view of

the fact the notings made in ACRS have not affected him and as rightly

noticed by the High Court, he having been held to be fit for promotion to

the rank of Major General, we do not think it is necessary to open up the

old wounds to examine as to how they occurred as the same would also

cause disturbance to many other events that have taken place. In that

view of the matter, we decline to exercise our jurisdiction under Article

136 of the Constitution and refuse to grant leave to appeal and reject this

SLP.

So far as the second aspect of the matter is concerned, the High

Court rightly noticed that the promotion of respondent No.1 as Major

General would depend on the availability of the vacancies before

December 31, 1995 when he was to retire on superannuation in the rank

of Brigadier. If respondent No.1 was promoted as Major General before

December 31, 1995 his service tenure would have been extended by two

more years. Therefore, the entire case turns upon the question whether

any vacancy was available as on the date he retired as Brigadier. The

High Court, on this aspect of the matter, embarked upon an investigation

as to the number of vacancies of Major Generals that were available in

the various branches of the Army. After examining the various

statements and records that had been produced before the High Court

took the view that there was some misunderstanding on the part of the

officers in the interpretation of the communication dated August 25,

1992 read with the Government of India, Ministry of Defences resolution

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dated 27.3.1991. According to the learned Single Judge the two matters

adverted in the two communications pertain to different areas and both

were independent of each other, mixing up of the membership of SSDC

and linking it with the unspecified vacancy as created by the

communication dated 25.8.1992 was an act which unnecessarily

deprived the AOC of one vacancy and created confusion regarding the

actual number of vacancies available in the AOC. It is because of this

misunderstanding respondent No.1 became a victim. Respondent No.1

averred that on March 27, 1991, SSDC was created by the Government

of India and only a Major General from Army Ordinance Corp had

remained its member. If it has been an unspecified vacancy this

appointment would have been shared by a Major General by any other

Corp Arms particularly ASC, who has to share in unspecified vacancy

was with AOC upto October/November, 1993. That is with effect from

December 1, 1994, this vacancy had to be released in favour of the AOC

but till date the same has not been done with the object of depriving him

of that chance. They have pointed out that the AOC remained without

unspecified vacancy when its turn came on 31.12.1994 and such

appointment had been held by a Major General of Engineers without any

right or claim on the same. This stand has been stoutly denied by the

appellants before us. It has been pointed that the Union of India had

produced the position as available in August 1992 and as on the date

when the matter was dealt with by the High Court which are as under:

August 1992

As on Date

1. Prem Sagar,

ADG Org. Army HQ. [UNSPECIFIED]

2. Maj. Genl. S.K.Bhatnagar

ADG OS (CN&A), Army HQ [SPECIFIED]

3. Maj. Genl. Mohinder Singh

ADG OS (CV), Army HQ [SPECIFIED]

4. Maj. Genl. S.K.Chopra

ADG OS (TS) [SPECIFIED] Army HQ

5. Maj. Genl. S. Verma

MG AOC, Southern Command

[SPECIFIED]

6. Maj. Genl.G.Mitra

MG AOC, Eastern Command

[SPECIFIED]

7. Maj. Genl. S. Talwar

MG AOC, Western Command

[SPECIFIED]

1. Maj. Genl. B.N.Rao

ADG OS (CN&A), Army HQ [SPECIFIED]

2. Maj. Genl. T.J.S.Gill

ADG OS (CV), Army HQ [SPECIFIED]

3. Maj. Genl. Y.S.Teja

ADG OS (TS) [SPECIFIED] Army HQ

4. Maj. Genl. MS Bhinder

MG AOC, Southern Command

[SPECIFIED]

5. Maj. Genl.DD Ghoshal

MG AOC, Eastern Command

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[SPECIFIED]

6. Maj. Genl. R.Mehta

MG AOC, Western Command

[SPECIFIED]

7. Maj. Genl.V.K. Sareen

MG AOC, Central Command

[SPECIFIED]

8. Maj. Genl.V.L. Vohra, MG AOC,

Northern Command [SPECIFIED]

9. Maj. Genl.Vijay Lall, Member, SSSDC

[UNSPECIFIED]

10. Maj.Gen.AC Sharma, Dy.Comdt. & CI,

CMM [SPECIFIED]

The vacancies in the rank of Major General among various

Arms/Services is approved by the Chief of the Army Staff like cadre

strength of each arms/service, combat and service requirements or

conditions. Deputational appointments/ex-cadre appointments are,

therefore, calculated against the authorisation made for each service in

order that rational allocation of vacancies are made. In addition, the

Army Officers while on ex-cadre post or on deputation continue to hold

alternative appointment in the Army Cadre, which is directly related to

their age of retirement and they have to be absorbed in Army

appointment immediately on reversion. As per the allocation of

vacancies authorised by the Army Headquarter letter dated August 25,

1992, one unspecified appointment rotates alternatively between ASO

and AOC and because of organisational interest and suitability, one

specified appointment of Major General, namely, members of SSDC was

elected in July 1991. This organisation has been created temporarily for

specific purpose and would cease to be effective on 31.3.1996. Thus, the

vacancy of the Member at SSC was held by Major General Vijay Lall,

which was unspecified vacancy authorised for AOC and no other

unspecified vacancy was due for AOC and, therefore, in terms of para

7(a) of the Army HQ letter dated 25.8.1992 which specifically provided

the first year with effect from the date of issue of this letter will be treated

as organisation period to cater for adopting the changes envisaged due to

implementation of new allotments. Thereafter, the additional unspecified

vacancy held as on 25.8.1992 by Major General Prem Sagar ceased to

exist on 26.11.1993. The said organisation period itself ended on

26.11.1993. Thereafter AOC continued to hold one unspecified vacancy,

that is, Member, SSDC, as authorised in Army HQ letter dated

25.8.1992. Thus the High Court in the matter of calculation added a

vacancy which was not available and, therefore, gave a direction to the

appellants to promote respondent No.1 to the rank of Major General

against any available vacancy in the Army notwithstanding the fact that

he belongs to AOC or to create a vacancy if none exists and to keep in

service until he is promoted as Major General and actually picks up the

rank.

All these directions could have been given only if vacancy position

had been correctly understood by the High Court. That having not

understood correctly as explained by us, we find the order made by the

High Court cannot be sustained. The same shall stand set aside to the

extent indicated above. In other aspects in so far as the denial of the

claim made by respondent No.1 is concerned, the order made by the

High Court is maintained. Thus respondent No.1 having failed on the

two claims made by him his writ petition in the High Court shall stand

dismissed.

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This appeal is allowed accordingly. No costs.

...J.

[ S. RAJENDRA BABU ]

...J.

[SHIVARAJ V. PATIL]

AUGUST 29, 2001.