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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   192          OF 2014 (Arising out of SLP (C) No. 2008 of 2010)

Major General H.M. Singh, VSM … Appellant

Versus

Union of India and Anr. … Respondents

J U D G M E N T

Jagdish Singh Khehar, J.

1. The appellant was commissioned as Second Lieutenant in the Indian  

Army on 15.6.1969.  His initial induction was into the Armoured Corps.  On  

25.5.1983 the appellant changed his cadre.  He permanently moved into  

the Defence Research and Development Organisation (hereinafter referred  

to  as  ‘the  DRDO’).   Having  gone  through  decades  of  rigorous  military  

service and having consistently earned onward promotions to higher ranks,  

as were due to him from time to time, he was granted acting rank of Major  

General on 1.6.2004, after he had been approved for promotion to the rank  

of Major General by a duly constituted Selection Board.

2. On 31.3.2005 Lieutenant General Ravinder Nath retired from service.  

Resultantly a vacancy in the rank of Lieutenant General became available.  

On  1.1.2006  the  appellant  claims  to  have  become  eligible  for  the

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consideration for promotion to the above vacancy.  It would be relevant to  

mention, that at that juncture, in the cadre of Major Generals, the appellant  

was the senior most serving officer (as per seniority list dated 29.12.2006)  

eligible for promotion to the rank of Lieutenant General.  In the Government  

of  India  gazette  (published  on  6.12.2007)  the  appellant  was  shown  as  

having  been  promoted  as  substantive  Major  General  with  effect  from  

7.1.2004.   It  would  also  be  relevant  to  mention,  that  the  name  of  the  

appellant was included in the name announced by the President of India for  

the award of the Vishist Seva Medal on 26.1.2007.  The said award was  

sought  to  be  bestowed upon  the  appellant,  for  his  having  rendered  

distinguished service of an exceptional order to the nation.  It is therefore,   

that the appellant was desirous, that his claim be considered for onward  

promotion to the rank of Lieutenant General.  At that juncture, the appellant  

had not only held the rank of Major General for more 18 months, he had  

also earned two confidential reports in the said rank.  The record appended  

to  the  pleadings  indicates,  that  he  had  also  been  granted  vigilance  

clearance.  Despite the above, the appellant was not considered eligible for  

promotion to the rank of Lieutenant General as he had not completed two  

years’ service in the rank of Major General at that time.

3. Under the circumstances mentioned in the foregoing paragraph, AVM  

R. Yadav, an officer from the Indian Air Force was inducted into the DRDO  

on  29.12.2005,  against  the  vacancy  in  the  rank  of  Lieutenant  General  

created by Lieutenant General Ravinder Nath.  AVM R. Yadav retired from

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service with effect from 31.12.2006.  As such, a vacancy in the rank of  

Lieutenant General became available with effect from 1.1.2007.

4. On  30.4.2007,  the  appellant  addressed  a  representation  to  the  

Director  General  DRDO  asserting,  that  he  was  eligible  for  promotion  

against the existing vacancy of Lieutenant General, as he fulfilled the laid  

down criteria.  He expressly pointed out in his above representation, that in  

the event of his promotion to the rank of Lieutenant General his age of  

retirement would stand extended.  As Major General he would retire at the  

age of 59 years, on 29.2.2008 (as the appellant date of birth is 2.2.1949).  

On his promotion to the rank of Lieutenant General his age of retirement  

would  stand  extended  to  28.2.2009  i.e.,  to  60  years.   The  appellant  

therefore requested the authorities, to immediately constitute and convene  

a  meeting  of  the Selection Board,  for  considering his  claim for  onward  

promotion to the rank of Lieutenant General.  For the above purpose, the  

appellant also met various higher authorities.  On all such occasions he  

was informed, that the action to convene a meeting of the Selection Board  

was under process.  In fact, in November, 2007 the appellant was assured,  

that the meeting of Selection Board would be held in December, 2007.  He  

was also assured, that in the event of his being considered suitable for  

promotion by the Selection Board, he will actually be promoted to the rank  

of  Lieutenant  General,  before  the date  of  his  retirement  (29.2.2008)  as  

Major General.

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5. Since  the  date  of  appellant’s  retirement  –  29.2.2008  was  fast-

approaching,  and because it  seemed to  the appellant  that  nothing  was  

moving, the appellant submitted his grievance to the authorities in writing,  

praying for immediate action in the matter.  In this behalf he also sought  

personal hearing, to present his case.  These pleas were raised by the  

appellant through separate communications dated 26.12.2007 (to the SA to  

the Defence Minister, and to the DRDO).  On 28.2.2008 he addressed a  

letter  for  the  same purpose,  to  the  Personal  Secretary  to  the  Defence  

Minister.

6. Two  days  prior  to  the  appellant’s  retirement  on  superannuation  

(29.2.2008, as Major General),  on 27.2.2008 a meeting of the Selection  

Board for promotion to the rank of Lieutenant General was convened.  The  

Selection  Board  cleared  the  appellant  for  promotion  to  the  rank  of  

Lieutenant General.   The Selection Board cleared only the name of the  

appellant for the above promotion, from out of a panel of 4 names.

7. In order to ensure that the appellant’s claim for promotion to the rank  

of Lieutenant General is not frustrated, the President of India by an order  

dated 29.2.2008, was pleased to grant the appellant extension of service,  

for a period of three months.  A relevant extract of the above order is being  

reproduced hereinunder:

“I am directed to convey  the sanction of the President to the  grant of extension in service to IC-23289 Maj Gen H.M. Singh,  VSM, AC, CVRDE,  Avadi a permanently  seconded officer  of

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Defence Research & Development Organisation, for a period of  three months with effect from 01 Mar 2008 or till the approval of  ACC, whichever is earlier.

This issues with the concurrence of MOD/Fin(R&D) vide their  Dy No. 582/Fin (R&D) dated 29 Feb 2008.”

(emphasis is ours)

A perusal of the above communication reveals, that the aforesaid extension  

of  service  was  granted  to  the  appellant,  to  await  the  approval  of  the  

Appointments Committee of the Cabinet.  In this behalf it would be relevant  

to mention, that in the process of consideration for promotion to the rank of  

Lieutenant  General,  the  recommendation  made  by  the  Selection  Board  

requires  the  approval  of  the  Appointments  Committee  of  the  Cabinet,  

before it is given effect to.  It is apparent that the Appointments Committee  

of the Cabinet, could not finalise the matter during the appellant’s extended  

tenure of three months.  As such, for the same reasons, the President of  

India was pleased to grant the appellant a further extension in service (as  

Major General) for a period of one month i.e., up to 30.6.2008 or till  the  

approval of the Appointments Committee of the Cabinet,  whichever was  

earlier.

8. On 2.6.2008, the Secretariat of the Appointments Committee of the  

Cabinet  (Ministry  of  Personnel,  Public  Grievances  and  Pensions,  

Department of Personnel and Training) issued a communication with the  

following observations:

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“2.  The  Appointments  Committee  of  the  Cabinet  has  not  approved the promotion of  IC-23289 Maj Gen H.M. Singh, a  permanently  seconded  officer  of  DRDO,  to  the  rank  of  Lieutenant General.”

In  consonance with  the  order  granting  extension  in  service,  the  DRDO  

issued an  order  dated  3.6.2008,  retiring  the  appellant  from the  rank  of  

Major General  with immediate effect.   The appellant assailed the above  

order  dated  2.6.2008  (denying  the  appellant  promotion  to  the  rank  of  

Lieutenant General), and the order dated 3.6.2008 (by which the appellant   

was retired from service) by filing Writ Petition No. 15508 of 2008 before  

the High Court of Judicature at Madras (hereinafter referred to as ‘the High  

Court’).  Convening a meeting of the Selection Board on 27.2.2008 i.e., just  

two  days  before  the  appellant  was  to  retire  on  attaining  the  age  of  

superannuation, as also, the consideration of the recommendation made by  

the Selection Board at the hands of the Appointments Committee of the  

Cabinet,  more than three months after  the date on which the appellant  

would retire from service, were vigorously referred to, to demonstrate the  

apathy at the hands of the authorities, which according to the appellant,  

had resulted in denial of promotion to him.

9. In  response to  the  alleged delay  in  the  matter  of  considering  the  

appellant’s claim for promotion, it was pointed out that the DRDO had a  

large  number  of  high  value  projects  viz.  design,  development  and  

production  of  Light  Combat  Aircraft,  design  and  development  of  Kaveri  

Engine, design and development of Airborne Early Warning System and a

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number  of  projects  related  to  upgradation  of  avionics  and  electronics  

warfare  system,  Sukhoi,  MIG-27  and  LCA;  accordingly  a  decision  was  

taken by the DRDO i.e., the appellant’s controlling authority, to earmark the  

vacancy of Lieutenant General (against which the appellant was claiming  

consideration), for an officer of equivalent rank from the Indian Air Force,  

who would be in a position to oversee, provide guidance and coordinate all   

the  abovementioned highly  sensitive  and  intricate  projects.   The  above  

tentative determination for filling up the vacancy of Lieutenant General from  

the Indian Air Force was, however, subsequently reviewed in consultation  

with  the  Government  of  India.   The Government  of  India  on 14.2.2008  

finally decided to fill up the vacancy of Lieutenant General by promotion of  

a permanently  seconded service officer  of  the DRDO.  It  was therefore  

asserted, that non-holding of the meeting of the Selection Board, and the  

non-finalisation of the consideration of the appellant’s claim for promotion  

to the rank of Lieutenant General, could not be described as a deliberate  

and intentional attempt by the authorities to deprive the appellant of his  

promotional opportunity.

10. In  its  pleadings  the  Union  of  India  adopt  a  clear  stand,  that  the  

appellant having attained the age of superannuation on 29.2.2008, could  

not be promoted as Lieutenant General “while he was on extension”.  It  

was also the contention of the Union of India, that since the Appointments  

Committee of the Cabinet had not approved the appellant’s promotion to

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the rank of Lieutenant General, the same could not be challenged specially  

because  the  Appointments  Committee  of  the  Cabinet  had  given  valid  

reasons  to  defer  the  recommendation  of  the  Selection  Board  /  

Departmental Promotion Committee.  The Union of India acknowledged,  

that  the  Appointments  Committee  of  the  Cabinet  was  the  competent  

authority  to  approve  the  recommendation  for  promotion  to  the  rank  of  

Lieutenant General (made by the Selection Board).  It was admitted, that  

the Selection Board in its meeting held on 27.2.2008 had recommended  

the appellant for  promotion to the rank of  Lieutenant General.   Pending  

approval of the Appointments Committee of the Cabinet, the appellant had  

crossed the age of his retirement on superannuation (in the rank of Major  

General, on 29.2.2008).  Thereafter, the appellant was granted extension in  

service beyond the period of his retirement up to 30.6.2008.

11. Having  considered  the  contentions  and  prayers  made  by  the  

appellant,  a Single Bench of the High Court  while disposing of the Writ  

Petition No. 15508 of 2008, recorded the following observations:

“40. When the petitioner’s extension of service was not on the  ground of exigency, DRDO being mainly civilian, Rules do not  permit promotion on extension.  ACC’s action in not granting  approval to the recommendation made by Selection Board is in  accordance with the Rules and the same cannot be assailed.  Petitioner cannot contend that he has been discriminated in not  granting promotion while on extension.

41. There is no substance in the contention that the Petitioner  having  been  extended  his  service,  he  ought  to  have  been  granted promotion.  Extension of service does not give rise the  legitimate expectation for promotion.  The extensions in tenure

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were given to the petitioner to ensure that procedure relating to  approval  of  competent  authority  on  the  recommendation  of  Selection  Board  was  completed  in  an  objective  manner  by  following prescribed process.  On culmination of process, ACC  is the competent authority came to the decision not to promote  the  petitioner.   As  such  there  is  not  incoherence  and  arbitrariness  in  the  decision  warranting  exercise  of  judicial  review.”

In the light of the above observations Writ Petition No. 15508 of 2008 was  

dismissed on 5.5.2009.

12. Dissatisfied with the dismissal of Writ Petition No. 15508 of 2008, the  

appellant filed an intra court Writ Appeal No. 779 of 2009.  In the process of  

adjudicating  upon  the  controversy  raised  in  the  abovementioned  Writ  

Appeal, a Division Bench of the High Court framed two questions for its  

consideration.  Firstly, whether the appellant Major General H.M. Singh had  

any  fundamental  right  for  promotion  solely  on  the  basis  of  the  

recommendation  of  the  Selection  Board.   And  secondly,  whether  

Appointments  Committee  of  the  Cabinet  was  liable  to  accept  the  

recommendation made by the Selection Board in favour of the appellant,  

and consequently, order the appellant’s promotion to the rank of Lieutenant  

General.   Relying  on  paragraph  108  of  the  Regulation  of  Army  which  

delineates the constitution and duties of the Selection Board, the Division  

Bench concluded that the recommendations of the Selection Board were  

merely  recommendatory  in  nature,  and  therefore,  answered  the  first  

question in the negative.  The Division Bench further held, that a legitimate

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claim for the promotion would arise, only if a recommendation made by the  

Selection Board gets the approval of the Appointments Committee of the  

Cabinet.   Relying  on  the  judgments  rendered  by  this  Court  in  Dr.  H.  

Mukherjee Vs. Union of India and others, 1994 Supp. (1) SCC 250, Union  

of India and others Vs. N.P. Dhamania and others, 1995 Supp. (1) SCC 1,  

and Food Corporation of India and others Vs. Parashotam Das Bansal and  

others, (2008) 5 SCC 100, the Division Bench of the High Court further  

concluded, that the Appointments Committee of the Cabinet was not bound  

by the recommendation of the Selection Board.  It accordingly held, that for  

justifiable reasons, the Appointments Committee of  the Cabinet  had the  

right to either accept,  or to refuse the recommendation of  the Selection  

Board.  In sum and substance it came to be concluded, that unless it was  

shown  that  the  determination  of  the  Appointments  Committee  of  the  

Cabinet suffered from arbitrariness or malafides and capriciousness, the  

same could not be interfered with.  The Division Bench of the High Court  

having found none of the above noted vices in the determination of the  

Appointments Committee of  the Cabinet,  answered the second question  

also in the negative.   

13. Based on its aforementioned determination, the High Court dismissed  

Writ  Appeal No. 779 of 2009, on 21.7.2009.  Dissatisfied with the order  

dated 5.5.2009 (passed by the Single Judge of the High Court, dismissing  

Writ Petition No. 15508 of 2009), and the order dated 21.7.2009 (passed by

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the Division Bench of the High Court dismissing Writ Appeal No. 779 of  

2009),  the appellant  approached this  Court  by filing Petition for  Special  

Leave to Appeal (C) No. 2008 of 2010.  On 11.1.2010 this Court issued  

notice in this matter.  On completion of pleadings the matter was listed for  

final disposal.

14. Leave granted.

15. On  29.8.2013  while  hearing  the  matter  this  Court  passed  the  

following order:

“Before we proceed for further hearing in the matter, we would  like  to  go  through  the  deliberations  of  the  Appointments  Committee of  the Cabinet  [for  short  ‘the ACC’]  by which the  recommendations of the Selection Board was not accepted in  the case of the petitioner.

Hence the records of the Selection Board and the final orders  passed therein in the case of the petitioner be placed before the  Court on the next date of hearing, i.e., 10th September, 2013.”

Thereafter on 12.9.2013 this Court passed the following order:

“We have perused the record produced before us and we have  also  heard  the  arguments  of  learned  Additional  Solicitor  General”

Ld. A.S.G. has sought time to seek instructions.

On the next date, Ld. A.S.G. will ensure that a copy of the note  put up to the A.C.C. and the decision of A.C.C. as well as a  copy of the recommendation dated 27th February, 2008 of the  Selection Board are made available to the Court

List this matter on 23rd September, 2013.”

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The  summoning  of  the  record  referred  to  in  the  orders  extracted  

hereinabove, had become essential for two reasons.  Firstly, the appellant  

did not contest the findings recorded by the Division Bench of the High  

Court on the two questions framed by the High Court, for the disposal of  

Writ Appeal No. 779 of 2009.  Having given our thoughtful consideration to  

the determination rendered by the High Court, on the two questions framed  

by  it,  we  must  acknowledge  that  the  High  Court  was  fully  justified  in  

drawing its conclusions.   We therefore hereby affirm the above findings  

recorded by the High Court.  According to the appellant, the High Court had  

misdirected itself in its above determination.  It was the submission of the  

appellant,  that  the determination of  the Appointments  Committee of  the  

Cabinet, was not supported by justifiable reasons.  It was asserted, that the  

determination of the Appointments Committee of the Cabinet was arbitrary,  

and based on extraneous consideration.  Insofar as the instant aspect of  

the matter is concerned, it was the vehement submission of the appellant,  

that the High Court had not addressed the issue at all.   

16. The solitary contention advanced at the hands of the appellant, was  

based on the recommendation made by the Selection Board on 27.2.2008,  

and the consideration of the above recommendation by the Appointments  

Committee of the Cabinet (leading to the rejection of the appellant’s claim  

for  the  promotion  to  the  rank  of  Lieutenant  General).   For  effectively  

understanding and determining the solitary contention at the hands of the  

appellant,  it  is  essential  to  extract  the  minutes  of  the  meeting  of  the

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Selection  Board  dated  27.2.2008,  as  also,  the  proceedings  of  the  

Appointments Committee of the Cabinet.  Without understanding the tenor  

and effect of the above deliberations, it would not be possible to express  

our  findings  and  the  reasons.   Had  the  above  proceedings  revealed  

sensitive  material,  improper  for  public  consumption,  or  detrimental  to  

national  interest,  we  would  have  chosen  to  tread  cautiously.   The  

deliberations which resulted in denial of promotion to the appellant (to the  

rank of Lieutenant General), however, have no such misgivings.  We have  

therefore  no  hesitation  in  extracting  the  minutes  of  the  meeting  of  the  

Selection  Board  dated  27.2.2008.   The  same  are  being  reproduced  

hereinunder:-

“MINUTES OF (1/2008) DRDO SELECTION BOARD MEETING HELD ON 27 FEB 2008

The Selection Board comprising the following, met on 27  Feb 08 in the office of the Scientific Advisor to Raksha Mantri,  Room No. 532, DRDO Bhawan, New Delhi:-

(a) Shri M. Natarajan, SA to RM     - Chairman (b) Shri Pradeep Kumar, Secretary (DP) - Member (c) Lt. Gen. M.L. Naidu,  

PVSM, AVSM, YSM, VCOAS     - Member (d) Dr. D. Banerjee,  

DS & CC R&D (AMS)    - Member Secretary

2. Defence  Secretary  did  not  attend  the  meeting  due  to  other prior commitments.

3. SA to RM briefed the Board to say that only one vacancy  in  the rank of  Lt.  Gen exists.   The other  vacancy in  lieu  of  Scientist  ‘H’  has  been  referred  back  to  the  RM  for  reconsideration and therefore will  be considered only after  a  decision.

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4. The  Board  considered  the  following  04  officers  for  promotion to the acting rank of Lt. Gen:-

Ser No. IC No., Rank, Name & Corps (i) MR-03539 Maj Gen J.K. Bansal, AMC (ii) IC-23289 Maj Gen H.M. Singh, VSM, AC (iii) IC-23850 Maj Gen S.S. Dahiya, AVSM, VSM EME (iv) IC-24631 Maj Gen Umang Kapoor, EME

5.  Based  on  deliberations  and  record  of  service,  past  performance, qualities of leadership as well as vision, the Board  recommends  IC-23289  Maj  Gen  HM  Singh,  VSM,  AC  for  promotion.

Sd/- Sd/- DS&CC R&D (AMS) VCOAS Member Secretary Member”

(emphasis is ours)

The proceedings recorded by the Appointments Committee of the Cabinet  

while rejecting the appellant’s claim for promotion to the rank of Lieutenant  

General are also being set out below:-

“The Ministry of Defence has, with the approval of the Raksha  Mantri proposed the promotion of IC-23289 Maj Gen HM Singh,  a permanently seconded officer  of the DRDO, to the rank of  Lieutenant General.

2. Maj  Gen  HM  Singh  (dob:  02.02.1949)  was  due  for  superannuation on 29th February, 2008 on attaining the age of  59 years which is the age of superannuation for officers of the  rank of Major Generals who are permanently seconded to the  DRDO.  A Selection Board which met on 27th February, 2008 to  consider  eligible  officers  of  the  rank  of  Major  General  permanently seconded to the DRDO for promotion to the rank  of Lieutenant General, recommended Major General Singh for  promotion.   As  the  officer  was  due  for  retirement  on  29 th  February, 2008 approval of the Raksha Mantri was obtained for  giving him extension of service of three months in the rank of  Major  General  or  till  the  approval  of  the  Appointments  Committee  of  the  Cabinet  to  his  promotion  to  the  rank  of  Lieutenant General, whichever is earlier.  Officers in the rank of  Lieutenant General retire on attaining the age of 60 years.

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3. The propriety of grant  of  extension to the officer  at  the  verge of his superannuation and also, that of grant of promotion  to  the  officer  while  on  extension  has  been  examined.   The  matter has been discussed, separately, with officers from the  Department of  Personnel and Training;  the DRDO, and also,  the  Ministry  of  Defence  (Military  Secretary’s  Branch).   This  apart, a legal notice has been received alleging perjury on the  basis of information secured from the Ministry of Defence under  the Right to Information Act.  A representation has also been  received  from  an  officer,  Maj  Gen  PP  Das,  alleging  discrimination.

4. In terms of the provisions of Section 16A(4) of the Army  Act an officer who has attained the age of retirement or has  become due for such retirement on completion of his tenure,  may  be  retained  in  the  service  for  a  further  period  by  the  Central Government, if the exigencies of the service so require.

5.  It  is  evident  from  the  above  provisions  that  for  grant  of  extension in service, the requirement to be fulfilled, primarily, is  the exigencies of service.  In the note which was put up to the  Raksha Mantri soliciting approval to the proposal for grant of  extension, no such exigency has been cited.  The only issue  that  was mentioned in  support  of  the proposal  for  extension  was that the officer had been recommended for promotion to  the rank of Lieutenant General.  This in the background of the  provisions of the Act mentioned above, is no sufficient ground  for extension.

6. The Chief Controller Research & Development with whom  the matter was discussed has provided copies of orders issued  in the years 1995 and 1996 when officers of the rank of Major  General were granted extensions.  Extensions in service were  granted with the approval of the Integrated Finance Division in  the Ministry of Defence though approval of the finance angle is  not strictly relevant to the grant of extensions.  The other two  instances  cited  are  of  Shri  P.  Venugopalan,  Outstanding  Scientist in the DRDL, Hyderabad who was granted extension  pending  a  decision  on  the  question  of  his  regular  extension  under  FR.56  as  a  Scientist;  and  of  the  post  retirement  appointment of Vice Admiral PC Bhasin on contract basis in the  ATVP. These two cases are not relevant to the case of Maj Gen  Singh, present under consideration.

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7. An  instance  has  been  cited,  during  discussions,  of  extension of service granted in the year 1997 or thereabouts to  Major General Malik who was due for superannuation, and his  promotion to the rank of Lt. Gen while on extension.

8.   The  orders  issued by  the  Department  of  Personnel  and  Training  lay  down  that  while  extension  could  be  granted  in  exceptional circumstances, there can be no promotion during  the period of such extension.  These orders apply to the civilian  establishment.   The  instructions  which  apply  to  the  Defence  forces  permit  extension  in  service  only  if  the  exigencies  so  demand.  DRDO is mainly civilian, and the Rules, as mentioned  above, do not permit promotion on extension.

9.  The above apart, the plea taken the representation of Maj  Gen P.P. Das, and also the legal notice needs to be kept in  view.   Instances of  officers in  the Armed Forces retiring just  before  the  vacancies  coming  their  way  and  being  denied  empanelment  are  not  uncommon.   Extensions  motivated  by  reasons  of  promotion  being  close  at  hand  can  have  repercussions.

10. The above part, the ACR format which is followed for the  officers of this rank, seconded to the DRDO, which has been  applied for recording of ACRs in the present case reveal that  fitness for promotion should be specifically recorded in the ACr.  A perusal of the ACR of Maj Gen Singh reveals that specific  record of fitness for promotion has not been made.

11.  More pointedly, two questions stand out, firstly, the doubtful  authority  and  grounds  for  granting  extensions,  taking  into  account that there was no exigency and, secondly, extensions,  motivated  by  a  promotion  in  the  offing  during  the  extension  period cannot be allowed.  It cannot be ignored also that such  situations  trigger  litigation,  which  should  best  be  avoided  in  such instances.

12.  Under the above circumstances, it  would be appropriate  not to approve the promotion of Maj Gen H.M. Singh to the rank  of Lieutenant General.

Sd/- Cabinet Secretary

22.5.2008

Page 17

HOME MINISTER Sd/- 28.5.2008

PRIME  MINISTER has  approved  Para  12  above  with  the  direction  that  the  observation  in  Paras  5  and  8  may  be  communicated to the MOD for the future.

Sd/- 30.5.2008

Sd/- Director Cabinet Secretary Prime Minister’s Office 2.6.2008 New Delhi”

(emphasis is ours)

17. The appellant points out, that the determination of the Appointments  

Committee of  the Cabinet,  overlooked the factual  position stated in  the  

counter  affidavit,  filed  jointly  on  behalf  of  respondent  nos.  1  and  2  

(respondent  no.1  –  the  Union  of  India,  through  Secretariat  of  the  

Appointments  Committee  of  the  Cabinet;  and  respondent  no.  2  –  the  

DRDO through its Director General).  In this behalf our attention was drawn  

to paragraphs 3 (xvii) and 3 (xviii) which are being extracted below:

“3  (xvii)  A  meeting  of  the  Selection  Board  was  held  on  27.2.2008 and the Selection Board recommended the name of  the petitioner for promotion to the rank of Lieutenant General.  The post of Lieutenant General then carried the pay scale of  Rs.22400-525-24500.   Any  appointment  against  this  post  requires  the  approval  of  Appointments  Committee  of  the  Cabinet (ACC) (Respondent No.1), which is a high power body  consisting of the Hon’ble Prime Minister of India, Hon’ble Union  Home  Minister,  Hon’ble  Union  Minister  of  Department  of  Personnel and Hon’ble Union Defence Minister.  As such, the  recommendation of the Selection Board were sent to ACC.  In  DRDO,  the  retirement  age  of  an  officer  of  the  rank  of  Maj  Gen/equivalent  which  the  petitioner  held  at  that  time  is  59  years.   The  petitioner  was  due  to  retire  from  service  w.e.f  29.2.2008.   Under  these  circumstances,  he  was  given  an

Page 18

extension  of  service  for  a  period  of  three  months  or  till  the  decision of ACC was received whichever was earlier.  As the  decision of ACC was not received till 31.5.2008, his service was  extended further for a period of one month w.e.f 1.6.2008 on  the same terms and conditions.

3 (xviii) The decision of ACC (Respondent No.1) regarding non- approval of promotion of the petitioner to the rank of Lieutenant  General communicated vide letter dated 2.6.2008 was received  by respondent no. 2 on 3.6.2008 and the latter had to issue  orders of the petitioner’s retirement from service from 3.6.2008.”

(emphasis is ours)

18. Referring to the factual position depicted in the joint counter affidavit  

filed  on  behalf  of  the  respondent  nos.  1  and  2,  it  was  the  vehement  

submission  of  the  appellant,  that  the  Appointments  Committee  of  the  

Cabinet exceeded its jurisdiction in examining the validity of the orders by  

which  the  appellant  was  granted  extension  in  service.   It  was  the  

submission of the appellant, that the only question before the Appointments  

Committee of the Cabinet, consequent upon the recommendations made  

by the Selection Board on 27.2.2008, was in connection with the merits of  

the claim of the appellant, for promotion to the rank of Lieutenant General.  

Adding to the above contention, it was also the submission of the appellant,   

that  the  Selection  Board,  consequent  upon  its  deliberations  held  on  

27.2.2008, arrived at its findings based on the appellant’s service record,  

past  performance,  qualities  of  leadership,  as  well  as,  vision,  that  the  

appellant was worthy of promotion to the rank of Lieutenant General.  The  

Appointments  Committee  of  the  Cabinet,  during  the  course  of  its  

deliberations,  did not  find fault  with the above conclusion drawn by the

Page 19

Selection Board.   As such, it  was sought to be asserted,  that  even the  

Appointments  Committee  of  the  Cabinet  must  be  deemed  to  have  

endorsed the merit and suitability of the appellant, for promotion to the rank  

of Lieutenant General.

19. In order to contest  the submissions advanced at  the hands of  the  

appellant, learned senior counsel representing (respondent nos. 1 and 2)  

emphatically relied upon the proceedings of the Appointments Committee  

of the Cabinet.  The proceedings under reference have been extracted by  

us  hereinabove.   Referring  to  the  above  proceedings,  learned  senior  

counsel  for  the  respondents  laid  great  emphasis  on  the  observations  

recorded in paragraphs 8 and 9 thereof.  It was pointed out, that in terms of  

the orders issued by the Department of Personnel and Training, promotion  

during the period of extension was unquestionably barred.  In this behalf it   

was the contention of the learned senior counsel for the respondents, that  

with  effect  from  1.3.2008,  the  appellant  (who  had  attained  the  age  of  

retirement on superannuation on 29.2.2008), was on extension in service.  

There was, therefore, no question of his being considered for promotion  

during the period of such extension.  In addition to the aforesaid categoric  

stand adopted by the learned senior counsel for the respondents, it was  

sought to be reiterated, that the orders dated 29.2.2008 and 30.5.2008, by  

which the appellant was granted extension in service, for periods of three  

months and one month respectively, were not sustainable in law, inasmuch  

as, they were in violation of Rule 16A of the Army Rules which postulates,

Page 20

that an officers who has attained the age of retirement or has become due  

for such retirement on completion of his tenure, may be retained in service  

for a further period by the Central Government, only if the exigencies of  

service so require.  It was the submission of learned senior counsel for the  

respondents, that retention in service of the appellant was not on account  

of any exigency of service.

20. We  have  given  our  thoughtful  consideration  to  the  submissions  

advanced at the hands of the learned counsel for the rival parties.  First  

and foremost, we have no hesitation in endorsing the submission advanced  

at  the  hands of  the appellant,  that  the  Appointments  Committee of  the  

Cabinet did not in any manner upset the finding recorded by the Selection  

Board, in respect of the merit and suitability of the appellant for promotion  

to the rank of Lieutenant General.  On the instant aspect of the matter, the  

Appointments Committee of the Cabinet has maintained a sullen silence.  

Even in the pleadings filed on behalf of the respondents, there is an ironic  

quiescence.   Therefore,  all  other  issues  apart,  the  appellant  must  be  

deemed to have been found suitable for promotion to the rank of Lieutenant  

General, even by the Appointments Committee of the Cabinet.   

21. We have extracted hereinabove the factual position noticed by the  

respondents in paragraphs 3(xvii) and 3(xviii) of their counter affidavit.  If  

the aforesaid averments are read in conjunction to the factual position, that  

the vacancy against which the claim of the appellant was considered, had

Page 21

arisen on 1.1.2007, it clearly emerges, that the appellant was the senior  

most eligible officer holding the rank of Major General whose name fell in  

the  zone  of  consideration  for  promotion.   The  Selection  Board  having  

conducted its deliberations singularly chose the name of the appellant from  

the panel of four names before it.  The proceedings of the Selection Board  

reveal,  that  its recommendations were based on record of  service,  past  

performance, qualities of leadership, as well  as, vision.  No other name  

besides the appellant’s name was recommended for promotion.  Having  

been so recommended, the President of India, in the first instance, by an  

order dated 29.2.2008, extended the service of the appellant, for the period  

of three months with effect from 1.3.2008 “or till the approval of the ACC  

whichever is earlier”.  Since the Appointments Committee of the Cabinet  

did not render its determination within the extended period expressed in the  

order dated 29.2.2008, yet another order to the same effect was issued by  

the President of India on 30.5.2008 extending the service of the appellant  

for  a  further  period  of  one  month  with  effect  from 1.6.2008  “or  till  the  

approval  of  the  ACC  whichever  is  earlier”.   The  President  of  India,  

therefore, was conscious of the fact while granting extension in service to  

the appellant,  the appellant’s  case for  onward promotion to  the rank of  

Lieutenant General was under consideration.  Therefore, to ensure that the  

aforesaid  consideration  fructified  into  a  result  one  way  or  the  other,  

extensions  were  granted  to  the  appellant  twice  over.   The  aforesaid  

determination at the hands of the President of India in granting extension in

Page 22

service to the appellant, stands noticed in the factual position expressed in  

paragraphs 3(xvii) and 3(xviii) of the counter affidavit filed on behalf of the  

respondents 1 and 2.  It is not possible for us to accept, that the aforesaid  

determination  in  allowing  extension  in  service  to  the  appellant  can  be  

described as being in violation of the norms stipulated in Rule 16A of the  

Army  Rules.   It  is  necessary  in  this  behalf,  for  us  to  test  the  above  

conclusion drawn by us, on the touchstone of Articles 14 and 16 of the  

Constitution of India.  It is not a matter of dispute, that the appellant was  

promoted  to  the  rank  of  substantive  Major  General  with  effect  from  

7.1.2004.  It is also not a matter of dispute, that the substantive vacancy in  

the rank of Lieutenant General, against which the appellant was eligible for  

consideration, became available with effect from 1.1.2007.  Even though  

the appellant  had nearly  14 months of  military service remaining at  the  

aforesaid juncture, the procedure contemplated for making promotions to  

the rank of the Lieutenant General was initiated for the first time just two  

days before the date of retirement of the appellant, on 27.2.2008.  Although  

it is the contention of the learned senior counsel for the respondents, that  

the delay in convening the Selection Board and conducting its proceedings  

was not deliberate or malafide, yet there can be no doubt about the fact,  

that the appellant was not responsible for such delay.  For all intents and  

purposes,  he was repeatedly  seeking consideration orally  as  well  as  in  

writing.   He  had  been  repeatedly  informing  the  authorities  about  the  

approaching date of his retirement.  In response, he was always assured,

Page 23

that if found suitable, he would be actually promoted prior to the date of his  

retirement.   It  was  for  the  respondents  to  convene  the  meeting  of  the  

Selection Board.  Since the Selection Board came to be convened for the  

vacancy which had arisen on 1.1.2007 only on 27.2.2008, the respondents  

must squarely shoulder the blame and responsibility of the above delay.   

22. The  question  that  arises  for  consideration  is,  whether  the  non-

consideration of the claim of the appellant would violate the fundamental  

rights vested in him under Articles 14 and 16 of the Constitution of India.  

The answer to the aforesaid query would be in the affirmative, subject to  

the condition, that the respondents were desirous of filling the vacancy of  

Lieutenant General, when it  became available on 1.1.2007.  The factual  

position  depicted  in  the  counter  affidavit  reveals,  that  the  respondents  

indeed were desirous of filling up the said vacancy.  In the above view of  

the matter,  if  the appellant  was the senior  most  serving Major  General  

eligible for consideration (which he undoubtedly was), he most definitely  

had the fundamental right of being considered against the above vacancy,  

and  also  the  fundamental  right  of  being  promoted  if  he  was  adjudged  

suitable.  Failing which, he would be deprived of his fundamental right of   

equality  before  the  law,  and  equal  protection  of  the  laws,  extended by  

Article 14 of the Constitution of India.  We are of the view, that it was in  

order to extend the benefit of the fundamental right enshrined under Article  

14 of the Constitution of India, that he was allowed extension in service on  

two  occasions,  firstly  by  the  Presidential  order  dated  29.2.2008,  and

Page 24

thereafter,  by  a  further  Presidential  order  dated  30.5.2008.   The above  

orders clearly depict, that the aforesaid extension in service was granted to  

the appellant for a period of three months (and for a further period of one  

month),  or  till  the  approval  of  the  ACC,  whichever  is  earlier.   By  the  

aforesaid orders, the respondents desired to treat the appellant justly, so as  

to enable him to acquire the honour of promotion to the rank of Lieutenant  

General, (in case the recommendation made in his favour by the Selection  

Board  was  approved  by  the  Appointments  Committee  of  the  Cabinet),  

stands affirmed.  The action of the authorities in depriving the appellant due  

consideration for promotion to the rank of the Lieutenant General, would  

have resulted in violation of his fundamental right under Article 14 of the  

Constitution of  India.   Such an action at  the hands of  the respondents  

would unquestionably have been arbitrary.  We are therefore of the view,  

firstly,  that the order allowing extension in service of the appellant for a  

period of  three months,  dated 29.2.2008,  and the order allowing further  

extension in service by one month to the appellant, dated 30.5.2008, so as  

to enable his claim to be considered for onward promotion to the rank of  

Lieutenant  General,  cannot  be  held  to  be  in  violation  of  the  statutory  

provisions.  Rule 16A of the Army Rules, postulates extension in service, if  

the exigencies of service so require.  The said parameter must have been  

duly taken into consideration when the Presidential Orders dated 29.2.2008  

and 30.5.2008 were passed.  The respondents have neither revoked, nor  

sought revocation of the above orders.  Therefore, it  does not lie in the

Page 25

mouth of the respondents to question the veracity of the above orders.  The  

above orders were passed to ensure due consideration of the appellant’s  

claim for promotion to the rank of Lieutenant General.  Without rejecting the  

above claim on merits, the appellant was deprived of promotion to the rank  

of Lieutenant General.  Besides the above, we are also of the considered  

view, that consideration of the promotional claim of the senior most eligible  

officer, would also fall in the parameters of the rule providing for extension,  

if the exigencies of service so require.  It would be a sad day if the armed  

forces decline to give effect to the legitimate expectations of the highest  

ranked armed forces personnel.   Specially when, blame for delay in such  

consideration,  rests  squarely  on  the  shoulders  of  the  authorities  

themselves.   This  would  lead  to  individual  resentment,  bitterness,  

displeasure and indignation.  This could also undoubtedly lead to, outrage  

at the highest level of the armed forces.  Surely, extension of service, for  

the purpose granted to the appellant, would most definitely fall within the  

realm  of  Rule  16A  of  the  Army  Rules,  unless  of  course,  individual  

resentment, bitterness, displeasure and indignation, of army personnel at  

the highest level is of no concern to the authorities.  Or alternatively, the  

authorities would like to risk outrage at the highest level, rather than doing  

justice  to  a  deserving  officer.   Reliance  on  Rule  16A,  to  deprive  the  

appellant of promotion, to our mind, is just a lame excuse.  Accordingly,  

extension in service granted to the appellant, for all intents and purposes,

Page 26

in  our  considered  view,  will  be  deemed  to  satisfy  the  parameters  of  

exigency of service, stipulated in Rule 16A of the Army Rules.

23. While dealing with the issue of consideration of the appellant’s claim  

for onward promotion to the rank of Lieutenant General, it is necessary for  

us to also conclude by observing, that had the claim of the appellant not  

been  duly  considered  against  the  vacancy  for  the  post  of  Lieutenant  

General, which became available with effect from 1.1.2007, we would have  

had to hold, that the action was discriminatory.  This because, of denial of   

due  consideration  to  the  appellant,  who  was  the  senior  most  eligible  

serving Major General, as against the claim of others who were junior to  

him.   And  specially  when,  the  respondents  desired  to  fill  up  the  said  

vacancy, and also because, the vacancy had arisen when the appellant still  

had 14 months of remaining Army service.  Surely it cannot be over looked,  

that  the Selection  Board had singularly  recommended the  name of  the  

appellant  for  promotion,  out  of  a  panel  of  four  names.   In  such  an  

eventuality,  we  would  have  no  other  alternative  but  to  strike  down the  

action of the authorities as being discriminatory and violative of Article 16 of  

the Constitution of India.

24. The  deliberations  recorded  by  us  hereinabove  are  incomplete,  

inasmuch as, we have not answered the pointed objection raised by the  

learned senior counsel for the respondent nos. 1 and 2, namely, that an  

officer is not entitled to promotion during the period of extension in service.

Page 27

For  the  instant  objection  raised  at  the  hands  of  the  respondents,  it  is  

necessary to refer to the deliberations of the Appointments Committee of  

the Cabinet, and specially paragraphs 8 and 9 thereof.  A collective reading  

of the paragraphs 8 and 9 reveals an extremely relevant objective, namely,  

situations wherein  an officer  attains  the age of  retirement  without  there  

being a vacancy for his consideration to a higher rank, even though he is  

eligible for the same.  Such an officer who is granted extension in service,  

cannot  claim consideration  for  promotion,  against  a  vacancy  which  has  

become available during the period of his extension in service.  The above  

conclusion drawn by us is clearly apparent from the paragraph 9 of the  

proceedings of the Appointments Committee of the Cabinet.  In fact in the  

operative part of the proceedings recorded in paragraph 11, it has been  

noticed, that .”…extensions motivated by a promotion in the offing during  

the  extension  period  cannot  be  allowed…”   We  can  derive  only  one  

meaning from the above observations, namely, extension being granted for  

promotion against  a  vacancy in  the offing.   That  is  to  say,  retention in  

service, so as to consider an officer for a vacancy which has not become  

available prior to his retirement, but is in the offing.  The above reason  

recorded  in  the  operative  part  of  the  proceedings  of  the  Appointments  

Committee of the Cabinet,  is laudible and legal.   Insofar as the present  

controversy  is  concerned,  there  is  no  doubt  whatsoever,  that  a  clear  

vacancy  against  the  rank  of  Lieutenant  General  became available  with  

effect  from 1.1.2007.   At  that  juncture,  the appellant  had 14 months of

Page 28

service remaining.  It is not as if the vacancy came into existence after the  

appellant  had  reached  the  age  of  retirement  on  superannuation.   The  

present case is therefore, not covered by the technical plea canvassed at  

the hands of the learned senior counsel for the respondents.  The denial of  

promotion to the appellant mainly for the reason, that the appellant was on  

extension in service, to our mind, is unsustainable besides being arbitrary,  

specially in the light of the fact, that the vacancy for which the appellant  

was clamouring consideration, became available, well before the date of  

his  retirement  on superannuation.   We have,  therefore,  no hesitation in  

rejecting the basis on which the claim of the appellant for onward promotion  

to  the  rank  of  Lieutenant  General  was  declined,  by  the  Appointments  

Committee of the Cabinet.

25. In view of the fact, that we have found the order of rejection of the  

appellant’s claim for promotion to the rank of Lieutenant General, on the  

ground that he was on extended service to be invalid, we hereby set aside  

the  operative  part  of  the  order  of  the  Appointments  Committee  of  the  

Cabinet.  It is also apparent, that the Selection Board had recommended  

the promotion of the appellant on the basis of his record of service, past  

performance, qualities of leadership, as well as, vision, out of a panel of  

four  names.   In  its  deliberations  the  Appointments  Committee  of  the  

Cabinet, did not record any reason to negate the aforesaid interference,  

relating to the merit and suitability of the appellant.  We are therefore of the  

view,  that  the  appellant  deserves  promotion  to  the  rank  of  Lieutenant

Page 29

General, from the date due to him.  Ordered accordingly.  On account of his  

promotion to the post of Lieutenant General, the appellant would also be  

entitled  to  continuation  in  service  till  the  age  of  retirement  on  

superannuation  stipulated  for  Lieutenant  Generals,  i.e.,  till  his  having  

attained the age of 60 years.  As such, the appellant shall be deemed to  

have been in service against the rank of Lieutenant General till 28.2.2009.  

Needless to mention, that the appellant would be entitled to all monetary  

benefits which would have been due to him, on account of his promotion to  

the rank of  Lieutenant  General  till  his  retirement  on superannuation,  as  

also,  to  revised  retiral  benefits  which  would  have  accrued  to  him  on  

account of such promotion.  The above monetary benefits shall be released  

to the appellant within three months from the date a certified copy of this  

order becomes available with the respondents.

26. Allowed in the aforesaid terms.

…..…………………………….J.       (A.K. Patnaik)

…..…………………………….J.       (Jagdish Singh Khehar)

New Delhi; January 9, 2014.