Union of India Vs Lt Col P.K. Choudhary .

Page 1

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3208 OF 2015

UNION OF INDIA AND ANR. …APPELLANTS

VERSUS

LT. COL. P.K. CHOUDHARY AND ORS. …RESPONDENTS

WITH

CIVIL APPEAL NO. D.11682 OF 2015

UNION OF INDIA AND ANR. …APPELLANTS

VERSUS

IC 55047L LT. COL. RAY GAUTAM PRASAD (RETD.) & ORS. …RESPONDENTS

WITH

CIVIL APPEAL NO. D.10623 OF 2015

UNION OF INDIA AND ANR. …APPELLANTS

VERSUS

IC 54169H LT. COL. FARAN SIDIQUI & ORS. …RESPONDENTS

J U D G M E N T

T.S. THAKUR, CJI.

1. These appeals under Section 31 of the Armed Forces Tribunal

Act, 2007 are directed against a judgment and order dated 2nd

March, 2015 passed by the Armed Forces Tribunal, Principal

1

Page 2

Bench, New Delhi, whereby Original Application No. 430/2012 filed

by the Respondents has been allowed and policy circular dated 20 th

January, 2009 issued by the Government of India quashed with a

direction to the Appellant-Union of India to consider the

Respondents for promotion to the rank of Colonel by creating

supernumerary posts with effect from the date the said

Respondents were eligible for such promotion. Facts giving rise to

the proceedings before the Tribunal and the present appeals may be

summarized as under:

2. The Respondents were commissioned into various

Corps/streams of the Indian Army after they successfully passed

out from the Indian Military Academy/Officers Training Academy.

The initial allocation of the respondents to different Corps was

based on parameters prescribed for that purpose depending inter

alia upon the number of actual vacancies in Arms, Arms Support or

Services, operational commitments and requirements arising from

new raisings. Merit of the candidates, the need for an equal

distribution of vacancies applying what is described as ‘Black

Method’ and the individual choice expressed by the cadets were also

2

Page 3

some of the major factors that were taken into consideration while

making allocations.

3. It is common ground that there was no challenge to the

allocation of cadets to Arms, Arms Support or Services at any point

of time. It is also not in dispute that four out of the five

Respondents viz. Lt. Col. P.K. Choudhary, Lt. Col. G.S. Dhillon, Lt.

Col. A.K. Pandey and Lt. Col. R.M.S. Pundir had opted for

commission into Army Service Corps (AMC) and none of them had

opted either for Combat Arms or Arms Support. Similarly, Lt. Col.

Ajay Chawla-Respondent No.5 in this appeal had given Army

Service Corps as one of the options of his choice. The respondents

were accordingly allocated and have served in their respective Corps

and Raisings as Lt. Colonels, which rank they held at the time of

filing Original Application No.430 of 2012 in the Tribunal and

continue to do so at present.

4. Post-Kargil War, the Government of India constituted what

was called Kargil Review Committee which was followed by a

Committee headed by Shri Ajay Vikram Singh (‘the AVSC’, for short)

with a view to explore ways and means for enhancing the

3

Page 4

operational preparedness of the Indian Army in its fighting

capabilities especially in Combat Arms. The Committee comprised,

apart from Shri Ajay Vikram Singh, a representative of the Ministry

of Defence (Finance), Director General (MP&PS), Army

Headquarters, Joint Secretary (G), Ministry of Defence and several

senior officers of the Indian Army including Adjutant General, Army

Headquarters, Chief of Personnel, Naval Headquarters and Air

Officer-in-Charge Personnel, Air Headquarters. The Committee

appears to have conducted extensive deliberations and submitted a

report suggesting both short term and long term measures that

were, in its opinion, necessary for restructuring of the Officers’

Cadre of the Army. The Committee recommended that although the

report primarily focused on the restructuring of the Officers’ Cadre

of the Army, the same will be applicable in an equal measure to the

Navy and the Air Force who could work out their service specific

requirements including additional vacancies required at various

ranks on operational/functional grounds. While we shall deal with

the recommendations made by the Committee in greater detail in

the later part of this judgment, we may point out that one of the

significant recommendations which the Committee made to the

4

Page 5

Government was about the lowering of age profile of the Officers in

the Indian Army. For instance, instead of existing age profile of 41-

42 years for Colonels the Committee recommended lowering of the

age profile to 36-37 years. Similarly, for Brigadiers the Committee

recommended an age profile of 44-45 years instead of 50-51 years

at present. The age of Major Generals was profiled at 51-52 years as

against 54-55 years under the existing system. The age of

Lieutenant Generals was, according to the Report, profiled at 55-56

years instead of 56-57 years under the existing system. The

lowering of age profile was considered by the Committee to be

necessary for enhancing the optimal combat effectiveness of the

Army. To achieve that objective, the Committee recommended

creation of 1484 additional vacancies in the ranks of Colonel out of

which 400 vacancies were to be released in the first year while the

another 300 vacancies were to be released in the second year after

an annual review. The implementation of the recommendations had

to be progressive, coordinated and corroborated for the desired

results to flow for the benefit of the Army.

5

Page 6

5. The appellants’ case is that the recommendations made by the

AVS Committee were accepted by the Government and 1484

additional vacancies in the rank of Colonel were sanctioned with a

view to lowering the age of Commanding Officers in combat and

combat support arms resulting in an increased upward mobility of

the Officers Cadre. The additional vacancies were to be released in

two phases spread over a period of four years from 2004 to 2008.

6. It is common ground that in the first phase, the Government

released 750 vacancies, out of the newly created 1484 vacancies, in

the rank of Colonel by an order dated 21st December, 2004. These

vacancies were sanctioned by upgradation of appointments in the

rank of Lt. Colonel to Colonel in a phased manner spread over a

period of two years i.e. 2004-2005 and were distributed amongst

Arms, Arms Support and Services on a pro-rata basis. The result

was that not only did the additional vacancies become available to

Arms and Arms Support but the same were allocated even to those

serving in Services like ASC, AOC and EME. Thus far, there was no

difficulty as officers serving in Arms, Arms Support and Services in

different Corps of the Army were all equally benefitted by the fresh

6

Page 7

creation. The problem started with the release of another 734

vacancies in the second phase by an order dated 3rd November,

2008. These additional vacancies were sanctioned by effecting

upgradation in a phased manner spread over a period of five years

and were directed to be allocated on what is described as

“Command Exit Model” which the Government of India claimed was

in consonance with the functional and operational requirements of

the Army.

7. Aggrieved by the denial of a pro-rata share in the 2nd tranche of

the additional vacancies released by the Government, officers like

the respondents who are serving in the Arms Support and Service

Corps of the Army, filed Original Applications No. 430 of 2012, 77 of

2014 and 147 of 2015 before the Armed Forces Tribunal, Principal

Bench, New Delhi to challenge the Government’s policy dated 29th

January, 2009 on the ground that the same was discriminatory,

arbitrary and violative of fundamental rights guaranteed to them.

They prayed for quashing of the policy besides a direction to the

Government of India to allocate vacancies in the rank of Colonel to

each Corps on pro rata basis and convene Special Boards for

7

Page 8

promotion of the eligible Officers to such posts. The respondents

also prayed for a direction to the Union of India to grant to them

‘Ante-Date’ seniority and arrears of pay and allowances from the

date an officer immediately junior to the said respondents in the

rank of Lt. Colonel serving in Arms and Arms Support Units was

granted his promotion.

8. The Appellant-Union of India contested the claim made by the

respondents and argued that the recommendations made by the

AVS Committee were limited to Officers serving in the Arms and

Arms Support and specifically left out services from their purview.

It was also argued that the Government of India had approved and

accepted the recommendations made by the AVS Committee and

sanctioned 1484 additional vacancies specially created for

allocation on “Command Exit Model” to Arms and Arms Support

Units for whose benefit such new vacancies were created. The

allegation that the policy formulated by the Government or the

“Command Exit Model” for allocation of vacancies was

discriminatory and/or arbitrary was stoutly denied.

8

Page 9

9. By its order dated 2nd March, 2015 the Armed Forces Tribunal,

Principal Bench, New Delhi has allowed the Original Application(s)

filed by the respondents and quashed Government of India policy

dated 21st January, 2009 with the direction that the Government of

India shall create supernumerary posts so that the additional

vacancies so created are allocated to all the three streams on a pro

rata basis. The present appeal under Section 31 of the Armed

Forces Tribunal Act, 2007 calls in question the correctness of the

judgment and order as already noticed above.

10. We have heard learned counsel for the parties at considerable

length who have taken us through the judgment and order passed

by the Tribunal and the documents placed on record in support of

their respective versions. The following questions fall for our

determination.

1. Did the AV Singh Committee recommend lowering of

age profile and consequent creation of additional

vacancies for all the three streams viz. Arms, Arms

Support and Services or were the recommendations

limited to Arms and Arms Support only?

9

Page 10

2. Were the recommendations made by the AV Singh

Committee regarding the need for creation of

additional vacancies and their allocation on “Command

Exit Model” accepted by the Central Government? If

so, what is the effect of allocation of the first tranche

of 750 vacancies by the Army Headquarters on pro rata

basis among all the three streams?

3. Whether there was any illegality, irregularity or

unfairness in the matter of allocation of vacancies to

Arms Support on “Command Exit Model” principle?

4. Do Officers serving in Arms, Arms Support and Services

constitute a single cadre?

5. In case the answer to the question No. 4 is in negative,

is there any legitimate expectation for officers

commissioned into the Indian Army in a given batch

that in the matters of their future promotion the

Government will maintain batch parity among officers

allocated to Arms, Arms Support and Services.

10

Page 11

Re.: Question No. 1

11. On behalf of the respondents it was argued by Ms. Meenakshi

Lekhi, Advocate that the recommendations made by the AVS

Committee were applicable to officers serving in all the three

streams of the Army viz. Arms, Arms Support and Services and that

the creation of 1484 additional vacancies of Colonels was meant to

benefit all such officers regardless of the Corps in which they were

commissioned. Support for that submission was largely drawn by

learned counsel from the AVS Committee report and the fact that

the 750 vacancies sanctioned and released in the first tranche were

distributed pro-rata among all the formations. It was urged that

having given to officers serving in Arms Support and Services, their

share of the newly created vacancies on a pro-rata basis and denial

of a similar share out of vacancies sanctioned in the second phase

was unjustified and discriminatory.

12. On behalf of the Appellant-Union of India it was contended by

Mr. Maninder Singh, ASG, that the recommendations made by the

AVS Committee favoured creation of additional vacancies only for

Arms and Arms Support leaving out ‘Services’ like ASC, AOC and

11

Page 12

EME. It was argued that the recommendations were accepted and

the vacancies sanctioned for being filled-up on ‘Command Exit

Model’ which model constituted the very basis of the report

submitted by the Committee. The fact that 750 vacancies created in

the first phase were distributed among Arms, Arms Support and

Services on a pro-rata basis did not, according to Mr. Singh, by

itself entitle officers serving in ‘Services’ to claim a pro-rata share in

the second tranche of vacancies created by the Government. If the

pro-rata allocation to services was not in tune with the

recommendations made by the Committee and the decision taken

by the Government, the same could not create any right or

equitable claim in favour of those who had benefitted from the

mistake earlier committed argued the learned counsel.

13. The entitlement to a share in the newly created vacancies

depends upon whether the Committee had recommended lowering

of age profile for officers serving in the ‘Services’ stream of the Army

that is because the creation of additional vacancies was meant to

achieve a purpose – viz. lowering of age profile of the Commanding

Officers.

12

Page 13

14. The answer to the question whether the Committee

recommended lowering of age profile and creation of additional

vacancies for Arms, Arms Support and Services, can in turn, be

answered only by reference to the report of the Committee. We have

been taken through the report over and over again by learned

counsel for the parties, but, we find it difficult to accept the

submission made by Ms. Lekhi that the recommendations were for

the benefit of all officers and streams across the board. A careful

reading of the report would show that the Army Headquarters had

made its presentations to the Committee followed by a series of

meetings to discuss and deliberate upon each one of the issues

referred for examination to the Committee. The report made a

reference to the Army Headquarters Paper on Restructuring of the

Officer Cadre, which, in turn, dealt with the issue of organisational

imbalances arising out of steep pyramidical structure of the cadre

and the issues relating to individual aspirations left unfulfilled due

to inadequate career progression, disparity with Class-A civil

services and harsh service conditions. The paper presented by the

Army Headquarters also suggested some measures for resolving the

13

Page 14

issues which included reducing the large base in the cadre

structure by making a dual-stream officer cadre one having a lean

regular cadre and the other a support cadre of Short Service

Commission Officers, reduction in the ages of Battalion and Brigade

Commanders through early promotion by increasing the cadre

strength, upgradation of Sub Unit Commanders to the rank of Lt.

Colonel. The Army Headquarters also proposed grant of early

promotions in the first three ranks viz. Captain, Major and Lt.

Colonel, promotion to the grade of Colonel on time-scale basis after

23 years of service for superseded officers and grant of Brigadier’s

pay to all Colonels in the last year of their service to entitle them to

Brigadier’s pension. The report submitted by the committee

outlined the issues raised before it and identified two inter-related

issues which were, in its opinion, at the core of the whole problem

viz., high age profile and cadre stagnation.

15. The Committee also took note of the recommendation made by

the Kargil Review Committee, for lowering the age profile of

command elements. The Committee noted that in comparison to

other Armies like those of Pakistan, China, UK, Germany and

14

Page 15

Israel, the Indian Army had a higher age profile which adversely

affected their physical alertness and operational preparedness. The

Committee noted that Officers beyond the age of 50 years find it

difficult to sustain mental and physical alertness at high altitude

and hazardous and hostile topography along the Line of Control

where a Brigade Commander is required to serve for effective

command and control. This was true even about Battalion

Commanders who are required to move during operations with their

units for effective command and control. The Committee noted that

for Battalion Commanders even a higher degree of physical fitness

and alertness is required which is difficult since Indian Army

Officers assume command at the age of 41-42 years and continue

till 44-45 years of age in comparison to those in Pakistan and

Chinese Armies where the age of the Battalion Commander, on an

average, is about 35 and 40 years respectively. The Committee,

therefore, took the view that the officers of Combat Arms should

assume command at the age of 36-37 years by which time they

would have attained the requisite experience and the ability to

finish their command tenure before attaining 40 years of age. The

Committee, then, took stock of the total Units commanded by

15

Page 16

Colonels in the Indian Army and the desirable tenure for each type

of Unit considered necessary to maintain optimum operational

effectiveness. The Committee, at the same time, noted the

possibility of re-command in respect of certain Arms and Services

which have some Units permanently located in peace areas or

where the Unit Commanders are not physically required to operate

in combat/difficult terrain. Taking note of the structures, the

Committee determined that the approximate number of Colonels

that would be required every year is 406. The details are set out in

a chart forming part of the report which may be gainfully extracted

at this stage:

Srl. No.

Arm/Service Number of Units

Desire d Tenure (Years)

Period officer in command (Years)

Number of Colonel

required per year

(a) Armoured Corps 62

103 8

3 3 No re- command

21

354

(b) Infantry 448 2.5 2.5 -do- 179 (c) Mechanised

Infantry 39 3 3 -do- 13

(d) Artillery 210 3 3 -do- 70 (e) AD 50 2-3 4 Possibility

of re- command

13

(f) Engineers 132 2-3 4 -do- 33 (g) Signals 97 2-3 4 -do- 25 (h) ASC 87 2-3 5 -do- 17 (i) AOC 60 2-3 5 -do- 12 (j) EME 114 2-3 5 -do- 23

Total 1299 406

16

Page 17

16. The Committee, then, picked-up 354 Colonels for Armoured

Corps, Infantry, Mechanised Infantry, Field Artillery, Air Defence

Artillery, Engineers and Signals, which were described by the

Committee as operational formations and which, in the opinion of

the Committee, called for reduction in the age profile for the Unit

Commanders. Para 20 of the report makes the Committee’s

intention manifest when it says:

“20. Out of the overall requirement of 406 Colonels every year as per the table above, there would be a need of 354 Colonels for Armoured Corps, Infantry, Mechanised Infantry, Field Artillery, Air Defence Artillery, Engineers and Signals, which are operational formations, keeping in view that the need to bring down age profile of unit commanders is primarily for the operational units. In the above table, for the arms listed for Ser (a) to (d) it is desirable that the officers’ have one command tenure, as a younger age profile is required in consonance with the operational needs. The rest could get more than one tenure for command in the Colonels rank.”

(Emphasis supplied)

17. The Committee, then, examined the number of vacancies

required in the rank of Colonels and Brigadiers and came to the

conclusion that a total of 374 Colonels and 143 Brigadiers

vacancies were available every year exclusively in the Arms,

whereas, there was a requirement of vacancies for 354 Colonels and

129 Brigadiers for the Arms. These vacancies were found to be

17

Page 18

adequate to keep the whole cadre structure in a state of

equilibrium, but, that equilibrium will be at the current high age

profile. The Committee said:

“… … … If we look only at the Arms, which form a subset of the whole cadre, and towards which the age reduction exercise is principally directed, we find that approximately 143 Colonels and 31 Brigadiers are promoted to the next higher rank every year and 241 and 112 respectively exit each year on retirement. Thus, a total of 374 Colonel’s and 143 Brigadier’s vacancies are available every year exclusively in the Arms, whereas there is a requirement of vacancies for 354 Colonels and 129 Brigadiers for the Arms as per table at paras 17 and 19. These vacancies are adequate to keep the whole cadre structure in a state of equilibrium, but that equilibrium will be at the current high age profile. Therefore, a mechanism needs to be found to bring the cadre structure, especially of the Arms, to the lower age profile as recommended in Para 13.”

18. The Committee, then, proposed short-term and long-term

measures. Applying the parameters for short term and long term

measures proposed by the Committee, the Committee, in para 36 of

its report, worked out the vacancies required for Colonels in

Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD,

Engineers and Signals and Brigadiers in the General Cadre, Field

Artillery and Engineers.

“36. Based on these parameters, vacancies that would be required for Colonels in Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD, Engineers and Signals and Brigadiers in the General Cadre, Field Artillery and

18

Page 19

Engineers, if age profile is to be brought down as per para 13 are given in the table below. The figures reflected in the table do not include vacancies for Colonels in ASC, AOC, EME and other Minor Corps whose age profile can be higher than that required to operate under combat conditions.

Service Age Colonel Brigadier Major General

Lieutenant General

15 37 354

2832

- - - 16 38 354 - - - 17 39 354 - - - 18 40 354 - - - 19 41 354 - - - 20 42 354 - - - 21 43 354 - - - 22 44 354 - - - 23 45 225

2025

129

774

- - 24 46 225 129 - - 25 47 225 129 - - 26 48 225 129 - - 27 49 225 129 - - 28 50 225 129 - - 29 51 225 77

385

52

260

- 30 52 225 77 52 - 31 53 225 77 52 - 32 54 - 77 52 - 33 55 - 77 52 - 34 56 - - 31 62 21 35 57 - - 31 21 36 58 - - 21 37 59 - - - - 21 38 60 - - - Total in

each rank 4857 1159 322 84 “

(Emphasis supplied)

19

Page 20

19. The Committee finally concluded that out of the requirement

of vacancies projected by Army Headquarters, the Government

could release in the first two years 700 vacancies as against 1484

recommended by it. The additional vacancies recommended for

creation without Peel Factor and those with Peel Factor over a

period of 5 years were indicated by the Committee in the chart

which is as under:

Sl.No Rank Additional vacancies required

(without Peel Factor) to bring down age profile as recommended

by AHQ

Release of vacancies over five

years with Peel Factor as projected

by AHQ

Vacancies recommended

by the Committee for release in 1st

year

Vacancies recommended by the Committee

for release in the 2nd year at

annual review

(a) Lieutenant General

29 20 05 03

(b) Major General

159 75 10 08

(c) Brigadier 496 222 75 35 (d) Colonel 2202 1484 400 300

20. A careful reading of the report especially paras 20 and 36

extracted above leaves no manner of doubt that the Committee

emphasized the need for bringing down the age profile of Unit

Commanders in Operational Units only. The Committee recognized

Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD,

Engineers and signals as operational formations leaving out ASC,

20

Page 21

AOC, EME and other Minor Corps. The report clearly suggests that

the additional creation of 1484 vacancies in the rank of Colonels did

not take into account vacancies for Colonels in ASC, AOC, EME and

other Minor Corps. As a matter of fact, the report very clearly states

that the age profile of such Service formations for Minor Corps

could be higher than that required to operate in the combat

conditions. We have, in that view, no hesitation in holding that

there was neither any recommendation regarding reduction in age

profile of Unit Commanders in ASC, AOC and EME nor was there

any recommendation for creation of additional vacancies to benefit

officers serving in those formations. The argument that the

Committee had recommended creation of 1484 vacancies for the

benefit of Officers serving in all formations is, therefore, without any

basis and is accordingly rejected. Additional vacancies were

specifically recommended for the operational formations mentioned

above and were meant to be allocated to those formations

depending upon the recommended tenure of the Commissioning

Officers in those formations and the possibility of re-command.

Inasmuch as ASC, AOC, EME Officers did not benefit from the

creation of additional vacancies, there was neither any violation of

21

Page 22

the recommendations made by the AV Singh Committee nor was

the distribution of the additional vacancies discriminatory as

alleged. Question No. 1 is answered accordingly.

Re: Question No.2

21. The aggrieved officers appear to have argued before the

Tribunal that the recommendations made by AV Singh Committee

regarding creation of additional vacancies for allocation on

“Command Exit Model” were never accepted by the Central

Government. In support of that submission they have largely relied

upon the fact that the first tranche of 750 vacancies released by the

Government were allocated by the Army Headquarters to Arms,

Arms Support and Services on a pro-rata basis. This, they

contended, would not have been possible if the Government had

actually accepted the “Command Exit Model” for allocation of the

newly created additional vacancies. The inference, according to

them, is that “Command Exit Model” was never accepted as a

principle by the Government for allocation of additional vacancies

22

Page 23

created pursuant to the recommendations made by the AV Singh

Committee.

22. On behalf of Government of India it is, per contra, contended

by Mr. Maninder Singh that the Government had unequivocally

accepted the recommendations of the Committee including the

“Command Exit Model” for allocation of the newly created vacancies.

Reliance in support of that contention was placed by Mr. Maninder

Singh upon the relevant official record which was produced before

us for perusal. Reliance was also placed by him upon an affidavit

filed by the Government pursuant to our order dated 22nd April,

2015 in which this Court demanded a specific answer from the

Government as to whether the “Command Exit Model” for allocation

suggested by AV Singh Committee had been accepted by it. We

have, in light of official record produced before us and the specific

assertions made by the Government in the affidavit filed on its

behalf, no hesitation in holding that the recommendations of the

AVS Committee regarding allocation of newly created vacancies

being made on “Command Exit Model” was accepted by the

Government. It is trite that the Government and the Government

23

Page 24

alone could say whether the recommendations of the Committee

were accepted by it. The Government have answered that question

in the affirmative not only on the basis of a statement made at the

bar but also on the basis of contemporaneous official record and

the affidavit filed by a responsible officer acting for and on behalf of

the Government. The first part of the question viz., whether the

recommendations regarding “Command Exit Model” for allocation of

vacancies was accepted by the Government does not, therefore,

detain us any further.

23. The second part of the question, however, calls for some

examination. In the course of hearing and in our order dated 22nd

April, 2015 we had specifically invited the response of the

Government as to the reasons for allocation of the vacancies on pro

rata basis if the Government had accepted “Command Exit Model”

as the basis for such allocation. We had also asked the Government

to explain whether any action had been taken by the Government

for breach of the said principle by the Army Headquarters while

making the allocations. Mr. Maninder Singh fairly conceded that

the allocation of 750 vacancies comprising the first tranche was

24

Page 25

made by the Army Headquarters in breach of “Command Exit

Model”. But such breach did not either call for any action or

withdrawal of the benefits drawn by the officers who were

beneficiaries of such allocation. Mr. Maninder Singh contended that

since the allocation stood made and the officers found eligible for

promotion stood promoted, it was neither advisable nor feasible to

withdraw the benefit so availed by the officers by reversing the

process for a fresh allocation. One of the reasons which, according

to Mr. Singh, made the breach inconsequential, was the fact that

the imbalance, if any, could be corrected partly if not wholly when

the second tranche of 734 vacancies were released for allocation on

“Command Exit Model”. It was also contended by Mr. Maninder

Singh that the Government had actually set off the excess allocation

made in the first tranche while allocating the second tranche of 734

vacancies on “Command Exit Model”. This adjustment/set off may

have remained confined to Arms/Arms Support only but the

mischief that had occurred earlier had been corrected no matter

qua those two streams only. Allocation made on pro rata basis to

services was not, however, withdrawn according to Mr. Maninder

Singh, but no further allocations were made in the second tranche

25

Page 26

of vacancies as the recommendations made by the Committee never

intended to benefit the services either in the matter of reducing the

age profile of Commanding Officers or in the matter of creation of

additional vacancies for them.

24. That 750 vacancies comprising the first tranche released by

the Government were allocated on a pro rata basis contrary to the

recommendations and the decision of the Government cannot be

and has not been denied. The question is whether the said

allocation would by itself undo either the recommendations made

by the Committee or the decision taken by the Government to

allocate the newly created vacancies on “Command Exit Model”

principle. Our answer to that question is in the negative. Just

because allocation of vacancies in the first tranche was made by the

Army Headquarters ignoring the recommendations of the

Committee and the Government decision cannot possibly result in

the reversal of the Government decision nor can it negate the

Command Exit Model. So also, simply because the earlier allocation

was not reversed as the officers had picked up their ranks does not

26

Page 27

affect the binding nature of the Government decision that the

allocation should be on “Command Exit Model”.

25. Having said that, the adjustment/set off of the vacancies so

allocated against the entitlement of the arms and arms support in

the second tranche does not appear to be justified. If the Army

Headquarters committed a mistake in allocating vacancies on a pro

rata basis contrary to the recommendations and decision of the

Government, any such error cannot adversely affect officers serving

in arms and arms support who may have been entitled to a higher

number of vacancies in the second tranche but who were deprived

of such allocation on account of the error in the previous allocation

made on pro rata basis. We pointed out this aspect to Mr.

Maninder Singh and asked him to take instructions whether the

Government was willing to correct the mistake arising out of such

adjustment/set off or justify the same on any juristic principle. To

the credit of Mr. Maninder Singh we must mention that he has on

instructions fairly conceded that the second tranche of 734

vacancies could and ought to have been allocated on “Command

Exit Model” principle without taking into consideration the excess, if

27

Page 28

any, allocated to the arms and the arms support on pro rata basis

in the first tranche. Mr. Maninder Singh on that basis also took

instructions to file before us a statement showing the number of

vacancies that would have ordinary fallen to the share of arms

support corps if the second tranche of 734 vacancies were allocated

without making any adjustment of vacancies previously allocated.

We shall turn to that statement when we take-up Question No. 3 for

discussion, but, before we do so we need to conclude Question No.2

by holding that the recommendations of the AVS Committee

regarding allocation of additional vacancies on “Command Exit

Model” basis had been accepted by the Government and that

allocation of the first tranche of 750 vacancies by the Army

Headquarters on pro rata basis contrary to the Government decision

and the recommendations of the Committee did not affect the

validity of the decision nor did it amount to reversal of the said

decision or its dilution in any manner. Question No.2 is answered

accordingly.

Re: Question No.3

28

Page 29

26. A two-fold argument was advanced on behalf of the

respondents on the question of unfairness in the matter of

allocation of vacancies. In the first place, it was contended that

while allocating vacancies to arms support, the Government had set

off/adjusted the vacancies which were allocated no matter

erroneously to arms support on a pro rata basis. This adjustment

was uncalled for as the excess allocated to arms support on pro

rata principle was because of an error committed by the

Government or the Army Headquarters which could not prejudice

the officers who are otherwise eligible for promotion against the

vacancies, due on Command Exit principle. In other words,

allocation of 734 vacancies comprising the 2nd tranche should have

been made without any adjustment based on the earlier pro rata

allotment, meaning thereby that the deficit proportionate to the

number that has been set off/adjusted should be made up by fresh

creation.

27. The second limb of the challenge is whether the Government

was justified in prescribing a command tenure of four years for

Arms Support officers. The argument was that if the command

29

Page 30

tenure is reduced to two years as in the case of ‘arms’, the number

of vacancies required by arms support would increase. We shall

deal with the two aspects ad seriatim.

28. The allocation of 734 vacancies, comprising the second

tranche, when made on standalone basis, (without any adjustment

of the excess allocated in the first tranche) is the only right method

for allocation in our opinion. The excess allocated in the first

tranche, against which officers who may not have otherwise picked

up the higher rank were promoted, cannot possibly deny the

rightful due to those who would be entitled to claim promotion

against the vacancies in the second tranche. The respondents are,

therefore, right in arguing that the second tranche should be

allocated on a standalone basis. This exercise has been done by the

appellant and the result thereof filed by Mr. Maninder Singh in the

form of a statement to which we shall presently advert. But before

we do so, we may as well deal with the second aspect of the matter,

namely whether the stipulation of a command tenure of four years

for Arms Support officers can be said to be so arbitrary as to call for

interference by a court or tribunal in exercise of their power of

30

Page 31

judicial review. We must, at the outset, say that command tenure

is a policy matter on which the scope of judicial review is extremely

limited. What should be the tenure of a commanding officer for

Arms or Arms Support is for defence experts or for the Government

to determine on expert advice having regard to a variety of factors.

It is neither necessary nor proper for any court or tribunal to sit in

judgment over any such decision leave alone, substitute the same

by its own decision. If the Government has upon consideration of

the nature of duties and the need for battle preparedness of the

force has taken a decision to prescribe a tenure of upto four years

for officers serving in Arms Support, it will be difficult to fault the

same in the absence of any patent perversity in any such decision

especially when no breach of any fundamental or other right of any

one complaining against the prescription of such a tenure is

demonstrated. No such infirmity has been pointed out to us in the

case at hand. Having said that, we must add to the credit of the

appellant and their counsel that the question of a shorter tenure

was considered by them favourably at our suggestion only to avoid

any frustration or disgruntlement among officers serving in arms

support. Mr. Maninder Singh, on instructions, submitted that the

31

Page 32

tenure of commanding officers in arms support shall for purpose of

creation/allocation of vacancies, be taken as three years instead of

four years. The Government has on that basis calculated the

number of vacancies that would be additionally due to arms

support on Command Exit Model as under:

Number of vacancies due to 1. AAD, 2. Engineers, 3. Signals out of II tranche of 734 posts taking the tenure to be 3 years instead of 4 years

Actual distribution made in 2009 with tenure taken to be 4 years

Deficit

AAD 31 7 24

Engineers 79 17 62 Signal 66 11 55

Total 141

29. It follows from the above that to the extent of a deficit of 141

vacancies in the cadres of Colonel to Arms Support (Artillery, AAD,

Engineers and signals) an unfair distribution of the vacancies from

out of the second tranche were released by the Government. It is,

at the same time, heartening to note that the Government have not

taken an adversial stand nor have the Government opposed the

undoing of the injustice caused to officers who were eligible for

promotion in the year 2009 but were not promoted on account of

lesser number of vacancies allocated to Arms Support. On the

32

Page 33

contrary Mr. Maninder Singh appearing for the Union submitted

that the Government would do anything to prevent any frustration

or disenchantment among the officers serving in the army by

creating 141 additional posts in the cadre of Colonel for allocation

to Arms Support so that the same are utilized appropriately for

promoting officers eligible for such promotion. Mr. Singh, however,

suggested a method of utilization of the posts so created over a

period of ten years to avoid an inequitable distribution and also to

minimize the scope of any of the batches getting any undue benefit

at the cost of other batches. Mr. Maninder Singh has also

highlighted problems of implementation like managing of the cadre

in case the utilization of the additional vacancies is to be done

within a shorter time frame of say five years. Having given our

anxious consideration to the submissions made at the bar, we are

of the view that the additional 141 vacancies which ought to have

been allocated to Arms Support in the year 2009 were unfairly

denied to them. It has taken the aggrieved officers and legal

process considerable time to have the said unfairness and injustice

reversed by creation of additional vacancies. These vacancies shall,

therefore, be taken to have been created as in the year 2009 and

33

Page 34

promotions against the same made from out of officers who were

eligible for such promotion as in that year. It is not in dispute that

the Selection Board that deals with such promotions has

empanelled officers based on their inter se merit and suitability. All

that is, therefore, required is to operate the said merit list for

utilization of the additional vacancies now being created. In other

words, the additional creation shall, for all intents and purposes, be

deemed to have been available for being filled-up as in the year

2009 but to be actually filled-up in 5 years between 2009-2014.

Those who pick-up the next rank against the said vacancies shall

have the benefit of retrospective seniority as is the practice in the

Army but such seniority on appointment shall not entitle them to

the benefit of higher pay-scale or arrears against the post to which

they are promoted. In other words, financial benefits shall accrue

to officers promoted pursuant to the creation of additional

vacancies only with effect from the date they are actually promoted.

Question No.3 is answered accordingly.

Re: Question No.4

34

Page 35

30. We have while dealing with question No.1 already held that AV

Singh’s Committee did not have officers serving in the “services

stream” namely (ASC, AOC & EME) in view while it recommended

lowering of the age profile of Commanding Officers and creation of

additional vacancies. The recommendations were limited to Arms

and Arms Support only. Even so the question is whether the

creation of such additional vacancies would ensure the benefit for

officers serving in the services on account of what such officers

claim to be ‘one cadre’ principle. The contention urged on behalf of

the respondents was that no matter some of the respondents belong

to services, they are a part of the same cadre and were, therefore,

entitled to a pro rata share out of the newly created vacancies at

par with those serving in Arms and Arms Support. Reliance in

support of that contention was placed upon a circular dated 12 th

November, 1987 issued by the Military Secretary’s Branch. There

is, in our view, no merit in the submission urged on behalf of the

respondents that officers allocated to Arms and Arms Support and

Services comprise a single cadre for purposes of promotion. We say

so because transferability which is one of the essential attributes of

posts comprising a single cadre is absent in the case of service

35

Page 36

officers on the one hand and those serving in Arms and Arms

Support on the other. This Court has in several decisions examined

what would constitute a common cadre, and held that merely

because the incumbents of two posts are placed in the same scale

of pay does not determine whether such posts constitute a cadre

(see) K. S. Srinivasan vs. Union of India (UOI) AIR 1958 SC 419.

In Chakradhar Paswan vs. State of Bihar & Ors. 1988 (2) SCC

214, this Court declared that the term cadre has a definite legal

connotation in service jurisprudence and that interchangeability of

the incumbents is one of the attributes of a cadre just as similarity

of the responsibilities and pay may be indicative of all posts being in

the same cadre. This Court observed:

“8. … …In service jurisprudence, the term “cadre” has a definite legal connotation. In the legal sense, the word “cadre” is not synonymous with ‘service’. Fundamental Rule 9(4) defines the word “cadre” to mean the strength of a service or part of a service sanctioned as a separate unit. The post of the Director which is the highest post in the Directorate, is carried on a higher grade or scale, while the posts of Deputy Directors are borne in a lower grade or scale and therefore constitute two distinct cadres or grades. It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency and it cannot be said that the establishment of the Directorate constituted the formation of a joint cadre of the Director and the Deputy Directors because the posts are not interchangeable and the incumbents do not perform the same duties, carry the same responsibilities or draw the same pay.

36

Page 37

The conclusion is irresistible that the posts of the Director and those of the Deputy Directors constitute different cadres of the Service….”

(Emphasis supplied)

31. So also in M. Hara Bhupal vs. Union of India and Others

(1997) 3 SCC 561, this Court found that interchangeability is a

necessary element of the posts being in the same cadre. In S. I.

Rooplal and Another vs. Lt. Governor through Chief Secretary,

Delhi and others (2000) 1 SCC 644, this Court was dealing with

“equivalence of posts” and held that equivalence of two posts is not

judged by the sole factor of equal pay and identified four factors in

that regard namely (i) the nature and duties of the post, (ii) the

responsibilities and powers exercised by the officer holding a post;

the extent of territorial or other charge held or responsibilities

discharged; (iii) the minimum qualifications, if any, prescribed for

recruitment to the post; and (iv) the salary of the post. In State of

U.P. & Ors. vs. Bharat Singh & Ors., (2011) 4 SCC 120, this

Court speaking through one of us (Thakur, J.) held that

transferability or interchangeability of one incumbent to another in

the cadre are essential attributes of a common cadre.

37

Page 38

32. Applying the above test to the case at hand we have no

hesitation in holding that officers serving in the Service stream of

the Army do not constitute a single cadre with officers serving in

Arms and Arms Support, no matter they may all be drawing the

same salary, holding the same rank, wearing the same uniform and

serving the same employer with similar service benefits. The true

position is that allocation of officers to different Arms and Services

puts them in distinct cadres, with the result that those comprising

a particular cadre will have his or her promotional avenues

available against the posts comprising that cadre alone

notwithstanding the fact that the Government of India may, as a

policy, attempt to ensure as far as possible that officers of a given

batch pick up their ranks around the same time or within a

reasonable span of their counterparts in other cadres or that the

disparity in the time frame for promotion is removed by making

promotions retrospective from the dates officers in the other cadre

have been promoted. Reliance by the respondents upon Circular

dated 12th November, 1987, is in our view misplaced. That circular,

it is evident, from a reading of the same was issued in connection

38

Page 39

with the implementation of the Fourth Pay Commission to remove a

certain doubt regarding the interpretation of the term “cadre” as

applicable to army officers. It was in that context that the

expression “cadre” has been explained in the circular by reference

to the method of allocation to Arms and Services, and similarity of

other conditions of service. The circular, it is evident, does not

constitute a statement of law much less can the exposition of the

term ‘cadre’ as given therein operate as estoppel against the union.

The circular it is evident is an internal communication and has

been issued in a totally different context. We, therefore, have no

difficulty in answering question No.4 in the negative and holding

that officers in service streams do not constitute a single cadre with

those serving in Arms and Arms Support for purposes of allocation

of additional vacancies created pursuant to the recommendations

made to the Government by AV Singh Committee.

Re: question No. 5

33. We have, while answering question No. 4 above, already held

that officers in different streams constitute different cadres. Since

however, the argument based on legitimate expectation is pitched

39

Page 40

on a broader principle, we need to recapitulate on the risk of

repetition that the Indian Army comprises the following 11 major

streams: (1) Armoured Corps, (2) Infantry, (3) Mechanised Infantry,

(4) Artillery (5) Air Defence (AD) (6) Engineers, (7) Signals (8) Army

Service Corps (9) Army Ordnance Corps (10) Electronical and

Mechanical Engineers and (11) Other Corps including Intelligence,

Aviation and other Minor Corps. The first of these three streams

namely Armoured Corps, Infantry, Mechanised Infantry are called

as ‘Combat Arms’ which participate in direct tactical land combat in

a war with requisite weaponary. The next four namely Artillery, Air

Defence (AD), Engineers, and Signals are commonly known as

‘Combat Support Arms’ while Army Service Corps (ASC), Army

Ordnance Corps (AOC), Electronical and Mechanical Engineers

(EME) and other minor corps are known as ‘Services’. As noticed in

the beginning of the judgment, the newly selected Gentlemen

Cadets get inducted as Commissioned Officers on successful

completion of their training from the training academy. The Defence

Service Regulations, Regulations for the Army govern the first

appointment of the Commissioned Officers. Para 63 of the said

Regulations reads:

40

Page 41

“…. 63. First Appoinment – (a) On first appointment to a permanent commission in the Regular Army, officers will be allocated to different corps. They will be required to do such basic training or attachment as may be prescribed from time to time for each corps, by Army HQ.

An officer has no claim to a particular corps or to a particular unit of the corps. However, an officer may submit an application in writing to serve with a particular corps or a unit, which will be given due consideration subject to the requirements of the service……”

34. The choice of the cadet plays an important role in his

allocation and induction in the 11 streams mentioned above. That

is precisely why towards the completion of pre-commission training

each cadet is required to submit his’/her choice of induction into

any of the abovementioned 11 streams. Policy guidelines in this

regard have been issued from time to time by the Adjutant

General’s Branch which lay down the procedure by which cadets

are allocated to different Arms, Combat Support Arms and Services.

The broad allocation policy as stipulated in Adjutant General’s

Branch Circular dated 4th August, 2006 issued to the Indian

Military Academy, Dehradun lays down the working parameters to

ensure equitable distribution of GCs/LCs to Arms/Services through

consideration of several factors stipulated in the same. Merit and

caliber spread is one of the factors taken into consideration. The

41

Page 42

policy envisages that first 1% GCs (in order of merit) would

constitute the “Super Block” and will be allotted to the

Army/Service of their choice irrespective of other factors. It also

provides for dividing GCs into blocks consisting of 25 to 35 GCs to

ensure an even distribution of caliber to all Arms and Services.

Parental claims are also taken into consideration while making

such allocation just as the choice of General Cadet is one such

factor that is taken into consideration. The policy envisages the

following factors to be kept in mind while exercising the choice by

the cadets:

(a) Super Block GCs opting for Arms will be permitted to give choice of a particular Regiment/Battalion.

(b) GCs/LCs exercising Parental Claims will be permitted to give choice of particular Regt/Bn/Gp.

(c) GCs can offer three choices in their order of preference.

(d) GCs can opt for Arms only or Arms/Services in their three choices.

(e) GCs can however opt for only one Service in their three choices.

(f) Optees for the Parachute Regiment can indicate choice of five PARA (SF), units (1,2,3,4,9, 10 & 21) in order of preference. Volunteer for Para (SF) will be deemed to have volunteered for Para Battalion also.

42

Page 43

(g) GCs opting for Artillery will be permitted to specify choice of Fd/Med/SATA/Msl Gps.

(h) GC opting for AD Arty will be deemed to have opted forArtillery.

(j) Science Stream GCs will be preferred for allocation to AAD. If however, such GCs are not available, non- science GCs, preferably those who have studied Maths and Physics at 10+2 stage will also be inducted. Parental claims of non-science GCs in AAD will however, be honoured.

(k) GCs opting for Armd Regt/Mech Inf will be permitted to specify choice of Armd Regt/Mech Inf/Guards Bns.

(l) GCs opting for Armoured Corps or Mechanised Infantry will be deemed to have opted for Infantry.

(m) GCs opting for Inf will give choice of three Regts (in order of preference)

(n) GCs/LCs opting for Corps of Engrs will give the preference of Gps: Madras/Bengal/Bombay.”

35. Para 19(e) of the policy guidelines, inter alia, provides that as

far as possible, efforts shall be made not to allot Arms/Services to

any GC who has not opted for it as one of his choices. It is

noteworthy that out of a total of 30 officers who had filed three

original applications before the Tribunal, 26 officers were allotted to

the streams of their first choice, 2 were allotted to the streams of

their second choice while only one got allotted to the stream of his

43

Page 44

3rd choice. One can, therefore, visualize that choice made by the

officers prevails as has happened in the case at hand where an

overwhelming number of 26 out of 30 officers have been given their

first option while 2 out of 30 only were given their 2nd choice. There

is no denying the fact that GCs who made their choices are

presumed to be fully aware of the functional and operational

requirements of the obligations of the streams for which they had

opted as also their future career prospects for the same.

36. It was argued on behalf of the respondents that the officers

although allotted to different streams had a legitimate expectation

in the matter of their promotion to higher ranks that the

Government shall maintain parity among officers who passed out in

the same batch but who were allotted to different streams like

Arms, Arms Support and Services. On behalf of the appellant,

Union of India, it was per contra contended that ‘batch parity’

simply refers to the time frame for the conduct of same level of

selection by the selection board for the same batch officers allocated

to different Arms/Services. It was also contended that having regard

to Deprivation Risk (DRI) factor Arms were getting additional posts

44

Page 45

because of surrender of such vacancies from Services. This

surrender was to the extent of 20%. That position was, according to

the appellant, accepted by the respondents before the Tribunal and

so also before this Court. That apart, various committees

constituted over a period of time had according to the appellants,

acknowledged a higher requirement of Combat Arms which over a

period of time resulted in a disparity in the time frame for

consideration of same batch officers allocated to Arms and Services.

It was submitted that the time lag came to be known as 0-1-2

scenario. This differential scenario is according to the appellants

necessitated by the operational role of Arms and the resultant

requirement of a lower age profile of COs unlike their counterparts

in Combat Arms Support and Services. The Appellants contended

that officers are at any rate considered for promotion within their

own verticals in terms of para 70 of DSR RA which reads as under:

“…..70. Claims for Promotion – Officers will normally be considered for promotion in the order of seniority in their Corps but an officer whose early advancement is in the interest of service may be specially selected for promotion to fill a vacancy whatever his seniority in the rank at the time. The cases of officers who are superseded for promotion will be kept under review in accordance with the existing instructions….”

45

Page 46

37. It was submitted that recommendations made by the Kargil

War Committee and AVS Committee have favoured an upward

revision of 20% extra for Combat Arms to a level where the objective

of inducting a Col. of Combat Arms for commanding a battalion is

at the age of 37 years is achieved and the officer exits from

command after 2½ to 3 years to be adjusted in another available

position before he is considered/selected for a higher rank. The

recommendations of AVS committee, it was argued, were only with

a view to enhancing and increasing the number of posts at the level

of Col. for the streams constituting the broad classification of

Combat Arms and Arms Support.

38. It was further submitted that the time edge of 0-1-2 was

always in existence which in essence only meant that officers of

combat arms of 1990 batch were considered by the Selection Board

along with officers of the 1989 batch of ‘Combat Arms Support’ and

officers of 1988 batch of ‘Services’. This was on facts demonstrated

by reference to the case of respondent Lt. Col. P K Chaudhary of the

1994 batch of the ASC who was for the first time considered by

Selection Board No. 3 for promotion to the rank in 2012 by which

46

Page 47

time officers belonging to Infantry and Artillery of 1994 had already

been considered by Selection Board 3 in the year 2009 i.e., 2½

years prior to the consideration of the Respondent – Lt. Col. P K

Choudhary. No grievance was, however made by Lt. Col. P K

Chaudhary in December 2012 as to why he was not considered for

such promotion in the year 2009 itself when officers from his batch

allocated to Artillery and Infantry were considered for such

promotion. This implied that the Respondent Lt. Col. P K

Chaudhary and others similarly situate clearly understood that

batch parity did not mean consideration of commissioned army

officers of the same batch at the same point of time nor was any

grievance against their non-consideration ever made at any time

when their batch mates serving in other streams were considered

for promotion. It was submitted that Para 68 of DSR RA protected

officers in the matter of their seniority by relating back their

promotion to the date when officers in the same batch working in

other streams were promoted. Para 68 reads as under:

“….68. Effective Date of Substantive Promotion – Substantive promotion to the rank of Colonel and above, and of Lt Col by selection, will be from the date an officer was passed fit in all respects for such promotion, provided a vacancy existed in the substantive cadre of that rank on that date. Should the date

47

Page 48

of assumption of the higher appointment be later than the former date of actual assumption of appointment will reckon for pay, pension and tenures But for purposes of seniority the date will be as notified in the Gazette…”

39. It was contended that the policy decision taken by

Government of India was in the larger interest of national security

and for making the Army more efficient and that the same did not

violate any right of the respondents much less any fundamental

right. The plea of legitimate expectation raised on their behalf was

in that view futile for there was neither any basis for such a plea in

the pleadings nor was the plea tenable in law especially when the

policy change was in public interest.

40. Halsbury’s Laws of England, Fourth Edition, Volume I(I) 151

explains the meaning of “Legitimate Expectation” in the following

words:

“81. Legitimate expectations.— A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice.

The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review; it may mean that the

48

Page 49

authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat a person’s legitimate expectation, it must afford him an opportunity to make representations on the matter. The courts also distinguish, for example in licensing cases, between original applications, applications to renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant.”

41. Legitimate expectation as a concept has engaged the attention

of this Court in several earlier decisions to which we shall presently

refer. But before we do so we need only to say that the concept

arises out of what may be described as a reasonable expectation of

being treated in a certain way by an administrative authority even

though the person who has such an expectation has no right in law

to receive the benefit expected by him. Any such expectation can

arise from an “express promise” or a “consistent course of practice

or procedure” which the person claiming the benefit may reasonably

expect to continue. The question of redress which the person in

whom the legitimate expectation arises can seek and the approach

to be adopted while resolving a conflict between any such

expectation, on the one hand, and a public policy in general public

49

Page 50

interest on the other, present distinct dimensions every time the

plea of legitimate expectation is raised in a case.

42. In Food Corporation of India v. Kamdhenu Cattle Feed

Industries (1993) 1 SCC 71 one of the earlier cases on the subject

this Court considered the question whether Legitimate Expectation

of a citizen can by itself create a distinct enforceable right. Rejecting

the argument that a mere reasonable and legitimate expectation

can give rise to a distinct and enforceable right, this Court

observed:

“8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.”

(emphasis supplied)

50

Page 51

43. To the same effect is the decision of this Court in Union of

India v. Hindustan Development Corporation and Ors. (1993) 3

SCC 499, where this Court summed up the legal position as under:

“28….. For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.”

33. On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a person’s legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would

51

Page 52

arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made out then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors.”

(emphasis supplied)

44. Reference may also be made to the decision of this Court in

Punjab Communications Ltd. v. Union of India and Ors. (1999)

4 SCC 727, where this Court held that a change in policy can

defeat a substantive legitimate expectation if it can be justified on

“Wednesbury reasonableness.” The choice of policy is for the

decision-maker and not the Court. The legitimate substantive

expectation merely permits the Court to find out if the change of

policy which is the cause for defeating the legitimate expectation is

52

Page 53

irrational or perverse or one which no reasonable person could have

made. A claim based merely on legitimate expectation without

anything more cannot ipso facto give a right. Similarly in Dr.

Chanchal Goyal (Mrs.) v. State of Rajasthan (2003) 3 SCC 485,

this Court declined relief on the plea of legitimate expectation on

the ground that the appellants had not shown as to how any act

was done by the authorities which created an impression that the

conditions attached to the original appointment order were waived.

No legitimate expectation could be, declared this Court, claimed on

such unfounded impression especially when it was not clear as to

who and what authority had created any such impression. The

decisions of this Court in Ram Pravesh Singh v. State of Bihar

(2006) 8 SCC 381, Sethi Auto Service Station and Anr. v. Delhi

Development Authority and Ors. (2009) 1 SCC 180,

Confederation of Ex-servicemen Association v. Union of India

(2006) 8 SCC 399, and State of Bihar and Ors. v. Kalyanpur

Cements Ltd. (2010) 3 SCC 274, reiterate the legal position stated

in the decisions earlier mentioned. In Monnet Ispat and Energy

Ltd. v. Union of India and Ors. (2012) 11 SCC 1, this Court

reviewed the case law on the subject and quoted with approval the

53

Page 54

following passage in Attorney General for New South Wales

(1990) 64 Aus LJR 327:

“To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords law.”

45. This Court went on to hold that if denial of legitimate

expectation in a given case amounts to denial of a right that is

guaranteed or is arbitrary, discriminatory, unfair or biased, gross

abuse of power or in violation of principles of natural justice the

same can be questioned on the well-known grounds attracting

Article 14 of the Constitution but a claim based on mere legitimate

expectation without anything more cannot ipso facto give a right to

invoke these principles.

46. Coming to the case in hand, the plea of legitimate expectation

does not appear to be of any assistance to the respondents for two

precise reasons. Firstly, there is no real basis for the respondents

to argue that the Government of India had either by representation

or by any sustained course of conduct created an impression in the

54

Page 55

minds of the respondents that any additional vacancies created to

the lower age profile of commanding officers serving in Combat

Arms or Combat Arms Support shall also benefit those serving in

the Service Streams of the Army. There is no factual basis laid by

the respondents in the pleadings before the tribunal to suggest that

any such impression was gathered by officers serving in the Service

Streams. There is also no basis for the contention that a legitimate

expectation arose in the minds of the respondents that they shall be

promoted to the next rank simultaneously with the officers serving

in Combat Arms or Combat Arms Support. As a matter of fact, the

provisions of para (68) of the Regulations for the Army extracted

earlier itself envisages the grant of promotion to officers from

different streams at different points of time depending upon several

factors which bring about the time lag for such considerations.

Conscious of the fact that such officers serving in different streams

may pick up the next rank at different points of time, the

Regulations provide for grant of retrospectivity to the promotions so

granted to restore inter se batch parity to such officers. There is no

denying the fact that the said Regulation continues to be operative

and regardless of the date when the officer is promoted, his

55

Page 56

promotion is so related back as to protect his seniority vis-à-vis his

colleagues from the batch serving in other streams. Far from

creating any impression or any expectation that promotions shall be

simultaneous, the Regulations clearly provide for grant of

retrospective effect to the promotions only with a view to restore

seniority. This clearly implies that in the very nature of things the

promotions could be granted to officers at different points of time

and time lag could additionally be in the 0-1-2 scenario. We have,

therefore, no hesitation in rejecting the contention that the

legitimate expectation did arise in the factual situation before us.

47. That apart, legitimate expectation as an argument cannot

prevail over a policy introduced by the Government which does not

suffer from any perversity, unfairness or unreasonableness or

which does not violate any fundamental or other enforceable rights

vested in the respondents. In the case in hand, the Government

has, as a matter of policy, decided to lower the age profile of officers

serving in Combat Arms and Combat Arms Support pursuant to the

recommendations made by the Expert Committees. We have in the

earlier part of the judgment dealt with the recommendations made

56

Page 57

by the Committees and the objectives sought to be achieved by the

policy decisions of the Government. There is nothing perverse,

unreasonable or unfair about the policy that the age of officers

serving in Combat Arms and Combat Arms Support will be lowered

by creating additional vacancies to be allotted on Command Exit

Model. In the absence of any perversity, unreasonableness or

unfairness in the policy so introduced, we see no reason to allow

the argument based on legitimate expectation to unsettle or undo

the policy which is otherwise laudable and intended to render the

Indian Army more efficient and better equipped for combat

situations. It also is not a case where no reasonable person could

have taken the decision which the Government have taken as

regards the need for lowering the age profile of the Commanding

Officers or their exit after 2-1/2 to 3 years to occupy positions

which the Government have created for the officers to occupy till

they are considered for promotion to the next higher rank. All told,

the arguments based on legitimate expectation has not appealed to

us. We have, therefore, no difficulty in rejecting the contention

based on that principle. Question No. 5 is accordingly answered in

the negative.

57

Page 58

48. In the result, we partly allow these appeals and while setting

aside the order passed by the Tribunal direct that the appellants

shall create 141 additional posts of Colonel to be allocated to

‘Combat Support’ stream for being utilized by appointing officers

who are eligible for promotions against the same as in the year

2009 over a period of 5 years till 2014.

49. In the peculiar facts and circumstances of the case, we leave

the parties to bear their own costs.

................................CJI (T.S. THAKUR)

…………………….…..…J. (KURIAN JOSEPH)

NEW DELHI; FEBRUARY 15, 2016.

58

UNION OF INDIA Vs LT COL P.K. CHOUDHARY .

UNION OF INDIA Vs LT COL P.K. CHOUDHARY .