Full Judgment Text
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CASE NO.:
Appeal (civil) 4619 of 2006
PETITIONER:
Major General R.S. Balyan
RESPONDENT:
The Secretary, Ministry of Defence,Government of India, & Ors
DATE OF JUDGMENT: 31/10/2006
BENCH:
Arijit Pasayat & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
[Arising out of S. L. P. (C) No.10045 of 2006]
Lokeshwar Singh Panta, J.
Leave granted.
The challenge in this appeal by special leave is to the
final judgment and order dated 29.05.2006 of the High Court
of Delhi, whereby the Writ Petition No.5214/2005 filed by Maj.
Gen. R. S. Balyan-appellant herein came to be dismissed. By
the order coming under challenge, the High Court held that
seniority of the appellant and Maj. Gen. Rakesh Puri
(Respondent No.5) and Maj. Gen. P.K. Mago (Respondent No.6)
ought to be determined according to Para 2 of the Government
of India O.M. No.2(4)/92/D(Inspection) dated 04.05.1993, as
amended vide O. M. No.21(4)/92/D(Inspection) dated
22.12.1993 and not by Para 68 of the Regulations for the
Army, 1962 (revised edition 1987).
Briefly stated, the facts are as follows.
The appellant was commissioned in the Army on
09.06.1968 whereas the Respondent No.5 was commissioned
in the Corps of Engineering on 25.12.1966 as Second
Lieutenants. In the common seniority list of Second
Lieutenants, respondent No.5 was senior to the appellant. The
appellant was promoted to the rank of Substantive Major on
09.06.1981 and the respondent No.5 was promoted to the
rank of Substantive Major on 25.12.1979 in the Directorate
General of Quality Assurance (DGQA). The DGQA has
following four disciplines:
(1) Armament
(2) Vehicle & Engineering
(3) Electronics
(4) Stores
The appellant joined the Armament discipline while the
respondent joined the Vehicle & Engineering discipline. The
name of the appellant was at Sl. No. 49 in the Gradation list of
1988 whereas the name of respondent No.5 was at Sl. No.45
being senior to the appellant. The appellant superseded three
officers who were senior to him in Armament discipline, whose
names were held at Sl. Nos. 28, 38 and 46. According to the
appellant, an officer who gets ’A’ Grade (Outstanding) would
get accelerated and out-of-turn promotion over his seniors
who got only ’B’ Grade. If only one vacancy is available, the
officer who gets ’A’ Grade alone would be promoted ignoring
his seniors who get only ’B’ Grade. As the appellant was given
’A’ Grade, he got accelerated promotion to the available
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vacancy in the Armament discipline as Brigadier on
07.11.2000 but the respondent No.5, who got only ’B’ Grade,
could not be promoted to the rank of Brigadier for want of
vacancy in his discipline and he was promoted as Brigadier
only on 11.02.2000. The appellant was again considered for
promotion as Major General and he was given the substantive
rank of Major General w.e.f. 25.05.2002 in accordance with
para 68 of the Regulations for the Army, 1962. The
respondent No. 5 was granted substantive rank of Brigadier
w.e.f. 11.2.2002 and substantive rank of Major General w.e.f
1.10.2004.
After 1998, seniority in the DGQA had never been
published, accordingly the other officers, who were adversely
affected by the wrong conferment of seniority to the appellant,
were not aware as to how the same had been done. It was
only on 18.08.2004 when the seniority list was published that
the officers adversely affected became aware about the wrong
conferment of seniority to the appellant. Major General S. C.
Gulati made a representation objecting to the placement of the
appellant in the seniority list contrary to the instructions
governing the DGQA. At that stage, a complete review of
seniority within the DGQA was carried out and in such review,
it was decided that the appellant should be given substantive
rank of Brigadier w.e.f. 05.04.2002 and that on that basis he
was considered for further promotion to the rank of Major
General along with eight other officers viz., Brig. R. Khosla,
Brig. M. Kashyap, Brig. R. Puri (respondent No. 5), Brig. T. S.
Rao, Brig. P. K. Mago (respondent No. 6), Brig. B. V. Murthy,
Brig. K. P. Sinha and Brig. J. D. Sapatnekar. In the said
consideration, the appellant is given ’B’ grading, i.e. "fit for
promotion", which is the same grade as was given to
respondent Nos. 5 and 6 respectively. On the basis of the
assessment of the grading of the appellant and respondent
Nos. 5 and 6, the Board conferred seniority to respondent No.5
w.e.f. 01.10.2004, respondent No.6 w.e.f. 31.01.2005 and the
appellant w.e.f. 01.03.2005 respectively as Major Generals.
The respondent-authorities issued a revised seniority list
dated 16.03.2005 whereby the appellant was demoted as a
Brigadier and was made junior to the respondent No. 5.
The appellant filed the above-said Writ Petition in the
High Court of Delhi which came to be decided on 29.05.2006
holding that the appellant was junior to respondent No. 5 in
the substantive rank of Major, therefore, his claim for seniority
over respondent No.5 founded merely on the Gazette
Notification cannot be sustained in view of the interpretation
put by the Court on the respective effects of Para 68 and O. M.
dated 04.05.1993 as amended by O. M. dated 22.12.1993.
The Division Bench further said, "Since both the petitioner
and the respondent No.5 were slated for retirement by the end
of June 2006, the plea for promotion to the rank of Lt. General
in accordance with this judgment should be considered
expeditiously and not later than 20th June, 2006. Even if
there is any procedural delay in considering the case of the
petitioner and respondents No. 5 and 6 in accordance with the
law laid down by this judgment, then notwithstanding the fact
that any of the protagonists retires in the meanwhile, the
consideration for the post of Lt. General shall be done and if
any candidate is found fit for promotion, such promotion shall
be granted with effect from 1st June, 2006." Consequently,
the Writ Petition was dismissed and stood disposed of
accordingly.
Feeling aggrieved and dissatisfied by the judgment and
order of the High Court, the appellant has filed this appeal.
We have heard learned counsel for the parties and with
their assistance examined the entire material on record.
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Mr. V. Sivasubramanian, learned counsel appearing on
behalf of the appellant, contended the following three-fold
submissions.
(1) The appellant had superseded respondent Nos. 5 and
6 due to the appellant having been graded ’A’ twice by
the two QASBs in the years 2000 and 2002, even
though at the time of their permanent secondment in
the DGQA, the appellant as well as the respondent
Nos. 5 and 6 were inducted with their original
seniority in the Army;
(2) When the appellant was promoted as Major General
on 30.01.2002 he superseded other Brigadiers, who
were senior to respondent No. 5, who was still only a
Colonel; and
(3) The High Court has erred in ignoring the applicability
and consideration of the Army Headquarters’ letter
dated 09.03.1965 where a limited protection is given
to an officer who is senior in the lower rank, but who
could not be promoted because of want of vacancy in
his discipline while his junior was given promotion
who was fortunate to have a vacancy in his discipline
in the higher rank. The appellant was given
promotion to the rank of Major in his own discipline
over and above the respondent No.5, who was in other
discipline on the basis of his grading ’A’, the
appellant’s promotion as substantive Brigadier as
notified by the Gazette Notification dated 18.05.2001
and subsequent substantive Major General notified by
the Gazette Notification dated 03.01.2004, could not
be cancelled by the respondent-authorities without
consulting the Appointments Committee of the
Cabinet and issuing notice to the appellant as per
Para 68 of the Regulations of the Army.
Per contra, the learned counsel appearing for the
respondents contended that the appellant erroneously was
given seniority over 16 other officers holding the rank of
Brigadiers belonging to other disciplines including respondent
No.5, who was at Sl. No. 45 whereas the appellant was at Sl.
No.49 in the Gradation List of 1998. They stated that the
appellant could not claim accelerated promotion to place him
above respondent No.5, who admittedly was senior as Major
and was never considered for promotion along with the
appellant in terms of policy contained in O. M. dated
04.05.1993 (Annexure P-4) and Gradation List of 1998 as well.
The admitted facts are that the appellant was
commissioned in the Armament discipline on 09.06.1968
whereas the respondent No.5 was commissioned in the
Engineering discipline on 25.12.1966. The consideration for
promotion up to the rank of Brigadier as a rule was held
within its own discipline of the appellant (Armament) with
officers of the same discipline, the appellant superceded three
officers whose names were held at serial Nos. 28, 38 and 46.
The appellant was placed above serial No. 28 ( Col. R. E.
Chawan) thereby erroneously gaining seniority over 16 officers
of other disciplines, including Respondent No. 5 who was at
serial No. 45 of the Gradation List dated 20.07.1998
(Annexure R \026 6) in respect of service officers permanently
seconded to DGQA organization as on 30.06.1998. The
respondent No. 5 and other 15 senior officers were never
considered with the appellant at the time of granting
substantive rank of Brigadier to him and later on as Major
General earlier than respondent No. 5 as his seniority was
reckoned ahead of serial No. 28 of 1998 seniority list.
The stand of respondent \026 Union of India in its counter
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affidavit is that, the seniority conferred upon the appellant to
the substantive rank of Brigadier was erroneous and it was
only on 18.08.2004 when the seniority list was published that
officers adversely affected became aware of the wrong
conferment of the seniority to the appellant. The respondent
authorities after 1998 had never published seniority list in the
DGQA. Maj. Gen. S. C. Gulati made a representation objecting
to the placement of the appellant in the seniority list contrary
to the instructions governing the DGQA organisation. A
complete review of seniority within the DGQA was carried out
and in such review it was decided that the appellant should be
given substantive rank of Brigadier w.e.f. 05.04.2002 and that
on that basis he was considered for further promotion to the
rank of Major General along with 8 other officers, namely,
Brig. R. Khosla, Brig. M. Kashyap, Brig. R. Puri (respondent
No. 5), Brig. T. S. Rao, Brig. P. K. Mago(respondent No. 6),
Brig. B. V. Murthy, Brig. K. P. Sinha and Brig. J. D.
Sapatnekar. On reconsideration at the stage of complete
review of seniority list, the appellant is given ’B’ grading, i.e.,
"fit for promotion", which is the same grade given to
respondent Nos. 5 & 6. On the basis of the fresh assessment,
the Board conferred seniority to respondent No. 5 w.e.f.
01.10.2004, respondent No. 6 w.e.f. 31.01.2005 and the
appellant w.e.f. 01.03.2005 as Major General. As a result of
review of seniority list, we find from the record that one higher
rank which had been conferred upon the appellant earlier and
which had remained unnoticed because of non-publication of
seniority list was corrected by the Union of India at the first
available opportunity when the seniority list was published on
18.08.2004 in the DGQA cadre and when the irregularity in
the seniority list was noticed by the affected officers, who
made representations against the irregularity, committed in
the seniority list giving promotion to the appellant over and
above them. In DGQA organization, officers due for
promotion, who may not be from the same batch, are
considered within their disciplines only and promoted as per
their inter se seniority in the substantive rank of Major as has
been laid down in O. M. No.21(4)/92/D (inspection),
Government of India, Ministry of Defence, dated 04.05.1993
(Annexure P-4) on the subject "GUIDELINES FOR
PERMANENT SECONDMENT OF SERVICE OFFICERS OF THE
RANK OF MAJOR AND LT. COL. IN THE DGQA
ORGANIZATION". As per the said O.M., it was decided by the
Government of India, Ministry of Defence, D.D.P.S., that the
criteria as contained in the said O.M. should be adopted for
permanent secondment of the officers of the rank of Lt.
Colonel (including Lt. Col./TS) and Majors. Clause 2 of the
Memorandum emphasizes that final orders for Permanent
Secondment shall be issued only after the selected officers’
willingness has been obtained in writing. The officers once
permanently seconded will continue in the organization till
their retirement and shall be included in the Cadre Seniority
List of Permanently Seconded Service Officers as per their
dates of seniority as substantive Major, as modified based on
the penalties/loss of seniority in the parent Corps and shall
come up for consideration for promotion to higher ranks based
on availability of vacancies in respective disciplines. In the
teeth of this specific criteria laid down in the above referred to
Memorandum, we are of the view that letter No. 30386/MS/(X)
Army Headquarters, dated 09.03.1965 (Annexure P-1) dealing
with the subject of system of grading officers (excluding MC,
Dental Corps and those permanently transferred to RD & P/I
organization) for promotion to the rank of Lt. Col. and above
relief upon by the appellant has no application in the DGQA
organization. Para 2 of O.M. dated 04.05.1993 (Annexure P-
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4) is self-explanatory. It is applicable through out the service
career of an officer from the time of his permanent
secondment to the DGQA organization till the retirement of the
officer. Therefore, the contention of the learned counsel for
the appellant that the High Court has gravely erred in not
applying the policy instructions dated 09.03.1965 (Annexure
P-1) does not merit acceptance, as Annexure P-1 deals with
system of giving grading to officers belonging to regular Army
only and those instructions as such have no application to the
Army officers permanently seconded to the DGQA
organization.
Para 68 of the Regulations for the Army deals with the
effective date of substantive promotion. It does not deal with
the grant of seniority. The appellant was promoted to the
acting rank of Brigadier on 07.11.2000 in the Armament
discipline because of the availability of the vacancy in the said
discipline, whereas the respondent No. 5 was promoted to
such rank in the Engineering discipline on 11.02.2002 on the
then availability of the vacancy in that discipline. However,
the appellant being junior in the substantive rank of Colonel
as per seniority list as on 30.06.1998, continued to remain
junior to respondent No. 5 in the substantive rank and that is
why the substantive rank of Brigadier was rightly granted to
respondent No. 5 w.e.f. 01.10.2004 and to the appellant only
w.e.f. 01.03.2005, in the seniority list as on 01.03.2005
impugned before the High Court. The appellant has not
placed on record any proof to substantiate his claim that he
was granted accelerated promotions to the ranks of Brigadier
and Major General. Thus, it is clear that due to the
availability of the vacancy in the Armament discipline to which
the appellant belonged, he was promoted to the acting rank of
Brigadier on 07.11.2000, whereas the respondent No. 5, who
was in the Engineering discipline, was promoted to the acting
rank of Brigadier on 11.02.2002 due to the availability of the
vacancy in the Engineering discipline. The prior promotion of
the appellant to the acting rank of Brigadier in contrast to the
respondent No. 5 in his respective discipline does not make
the appellant senior to the respondent No. 5 since the
substantive rank of Brigadier was granted to the appellant
w.e.f. 01.03.2005 and to the respondent No. 5 w.e.f.
01.10.2004 in terms of Para 2 of the Govt. of India O.M. No.
21(4)/92/D(inspection) dated 04.05.1993 as amended vide
O.M. No. 21(4)/92/D(inspection) dated 22.12.1993.
The High Court has rightly observed that Para 68 of the
Army Regulations does not qualify as a general rule for
determining the seniority. On a plain reading of Para 68 of the
Army Regulations extracted by the High Court in Para 12 of
the impugned judgment, it simply says that if an officer is fit
for promotion to the rank of Colonel and above on a particular
date but assumes office later, then for purposes of seniority it
will be the date when the officer was found fit and notified in
the Gazette, which shall be the relevant date for counting
seniority notwithstanding the assumption of office on a date
later than the date of assumption of office. The High Court, in
our view, has rightly concluded that the seniority of the
appellant and respondent No. 5 is to be determined in terms of
Para 2 of the Govt. of India O.M. No. 21(4)/92/D(inspection)
dated 04.05.1993 as amended vide O.M. No.
21(4)/92/D(inspection) dated 22.12.1993 and not on the basis
of the interpretation of the impact of Para 68 of the Army
Regulations as relied upon by the appellant. The Union of
India is competent to correct the mistake of ranking the
appellant senior to respondent No.5 in the substantive rank of
Brigadier when such mistake or irregularity has come to its
knowledge through representation having been made by the
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affected Army Officers in 2004.
We, therefore, find no infirmity or perversity in the order
of the High Court impugned in this appeal. Therefore, the
contentions noticed above raised by the learned counsel for
the appellant cannot be sustained.
For the reasons aforementioned, we find no merit in this
appeal, which is dismissed accordingly. However, parties are
left to bear their own costs.