Wing Commander J. Kumar Vs. Union of
India & Ors [1982] INSC 34 (5 March 1982)
ERADI, V. BALAKRISHNA (J) ERADI, V.
BALAKRISHNA (J) KOSHAL, A.D.
MISRA, R.B. (J)
CITATION: 1982 AIR 1064 1982 SCR (3) 453 1982
SCC (2) 116 1982 SCALE (1)227
CITATOR INFO :
R 1987 SC1858 (20) R 1987 SC2291 (21)
ACT:
Defence Research and Development Organisation
and Government of India O.M. dated November 23, 1979, Rule 16- "Seniority
after permanent secondment"-R & D Cadre-Intake of service
officers-Seniority after 'permanent secondment'- Based upon seniority of
substantive rank held by the officer in the grade of major or equivalent
rank-Such principle for determination whether valid.
"Secondment" of an officer-Whether
constitutes a transfer.
Constitution of India 1950, Art, 309
proviso-Statutory rule covering seniority-Rule to take effect from date of
promulgation-Whether element of retroactivity involved in operation of rule.
Administrative Law-Principle of natural
justice- Applicability of-In promulgation of statutory rule governing
seniority.
HEADNOTE:
The Defence Research and Development
Organisation (R & D) was set up under the Ministry of Defence for carrying
out scientific and technological research and development work on projects of
vital importance to the defence forces. Its personnel consist of large number
of civilian scientists as well as a smaller number of service officers drawn
from the three wings of the Armed Forces who have operational experience of
weapon systems.
The policy followed in regard to the intake
of service officers was that they were initially taken on a tenure basis and
subsequently absorbed in the organisation on a permanent basis in the event of
being found suitable and willing. Since the Officers from the three services
came to the R & D cadre with different lengths of service and at different
levels, it became imperative to evolve a reasonable principle for the
determination of their inter-se seniority after their secondment to the
organisation.
In November 1979 in supersession of all previous
Rules and Orders on the subject, rules were made under the proviso to Art. 309
laying down the procedure for the intake of service officers in the R & D
organisation and the terms and conditions of service of those permanently
retained therein.
Rule 16 dealt with "Seniority after
permanent secondment" and provided that "seniority of all service
Officers permanently seconded to DRDO will continue to be based upon their
seniority of substantive rank of Major/Sqn. Ldr./Lt.
Cdr..........and the 454 seniority of
officers with substantive ranks higher than Major/Sqn. Ldr./Lt. Cdr. will after
their permanent secondment also reckon vis-a-vis other officers in the R &
D Cadre, for future promotion/confirmation, from the date of their substantive
rank of Major/Sqn. Ldr./Lt. Cdr.........
The appellant who was commissioned in the Air
Force was seconded to the service. In his writ petition he contended that the
principle for determination of seniority laid down in Rule 16 was arbitrary and
violative of Articles 14 and 16 of the Constitution, and as he had been
permanently seconded to the R & D Organisation in 1971 long prior to the
proclamation of the rule his rights regarding seniority and promotion could not
be affected by the provisions of this rule. By taking the date of substantive
appointment to the rank of Major/ equivalent as the basis for reckoning
seniority, officers who had obtained substantive promotions to higher ranks in
the parent service earlier than some of their seniors who were only subsequently
promoted to such higher ranks, suffer serious prejudice because the latter gain
over the earlier promotees and supersede them in the matter of seniority in the
R & D Organisation, and that subsequent inductees in the R & D
Organisation cannot be legally assigned seniority above those already borne on
the cadre, irrespective of the substantive rank held by them at the time of
their intake into the R & D.
The Single Judge rejected all the contentions
and declined to grant relief. The R & D Organisation was however directed
to issue the tentative seniority list drawn up in accordance with Rule 16. The
Letters Patent Appeal filed by the appellant was dismissed in limine.
Dismissing the appeal to this Court,
HELD: 1. Since officers from different sources
are taken into the R & D Organisation for meeting the discipline-wise
requirements arising therein from time to time and they are brought into a
common pool on such permanent secondment, a reasonable principle had to be
evolved for fixation of inter se seniority within the R & D cadre. The
principle adopted under Rule 4 of reckoning seniority with reference to the
date of attainment of the rank of substantive Major/equivalent strikes a
reasonable mean as it ensures to all the service officers in the R & D the
fixation of seniority in the integrated cadre giving full credit to the length
of service put in by them in their respective parent services. [466 C; 466 H;
467 A]
2. It is settled law that the service
conditions pertaining to seniority are liable to alteration by subsequent
changes that may be introduced in the rules and except to the extent of
protecting promotions that have already been earned under the previous rules,
the revised rules will operate to govern seniority and future promotion prospects.
There is, therefore, no substance in the argument advanced by the appellant
that it was not open to the Government of India to introduce a new principle of
seniority by promulgation of Rule 16 so as to affect his rights for future
promotion. [463 D-E]
3. A statement contained in the statute or
statutory rule of the factual background leading up to the enactment has
ordinarily to be accepted and acted upon by the court as wholly correct. [463
A] 455
4. Rule 16 contains a categorical declaration
that in the past also the seniority of service officers permanently seconded to
the R & D Organisation was being reckoned on the basis of their dates of
attainment of substantive rank of Major/Sqn. Ldr./Lt. Cdr. subject to any
penalty/loss of seniority that an officer might suffer subsequently. It is
therefore not possible to accept the contention of the appellant that prior to
the coming into force of the rule be had acquired a vested right to have his
seniority in the R & D reckoned with reference to the date of his permanent
secondment and to have all Officers joining the organisation on subsequent
dates ranked only below him. [462 G-H; 463 B- C]
5. The structure and composition of the
Organisation have necessarily to undergo rapid, qualitative and quantitative
changes in the light of the fast developments that take place in science
technology and international relations. The intake of service Officers is not
on the basis of any general selection from service cadres. As and when the
Organisation finds it necessary to obtain the service of officers with
operational experience in any particular weapon system or other scientific
discipline the parent service is requested to spare for deputation suitable
hands in the particular branch or speciality and initially they are taken on a
tenure basis. There is a selection only in a very limited sense that the
suitability of the concerned officer is adjudged before he is taken but the
claims or merits of others are not considered. The secondment of such officers
to the R & D Organisation is not therefore, effected on the basis of a
general selection.
Officers who are senior in the parent service
in relation to the person who is seconded and who may possess greater
experience and superior attainment might not have been considered for
secondment when their juniors in the service were seconded to the R & D
Organisation, because the parent service might not have been in the position at
the relevant point of time to spare the services of the former. [463 G-H; 464
A-E]
6. Where persons from different sources are
drafted to serve in a new service a just and wholesome principle commonly
applied is that the pre existing length of service in the parent department
should be respected and preserved by taking the same into account in determining
their ranking in the new service cadre. Such a provision does not involve any
discrimination violative of Article 16 of the Constitution. [470 E] R.S.
Makashi & Ors. v. I.M. Menon & Ors., [1982] 1 S.C.C. 379, referred to.
7. The secondment of an officer from his
parent service to the R & D is not a transfer to Central Service from a
subordinate service or from another department. [469 G]
8. Rule 16 being statutory in origin, its
validity cannot be affected by reason of any inconsistency with the provision
of a prior executive order issued by the Central Government i.e. Office
Memorandum dated July 22,1972. [469 H]
9. When a statutory rule governing seniority
is issued in respect of a service, the said rule would govern the personnel in
the service with effect from the date of its promulgation and in so giving
effect to the rule in future, no element of retroactivity is involved. [470
G-H] 456
10. The promulgation of a statutory rule
governing seniority is not a quasi-judicial function. It is the exercise of a
legislative power and in respect thereof the principles of natural justice have
no application at all.
[472 B]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1742 of 1980.
Appeal by special leave from the judgment and
order dated the 11th day of April, 1980 of the Delhi High Court in L.P.A. No.
53 of 1980.
WITH
Civil Misc. Petitions Nos. 69 and 5698 of 1981.
Wing Commander J. Kumar Appellant in Person.
P.A. Francis, Narayan Nettar and Miss A.
Subhashini, for the Respondent.
The Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. This appeal by special leave is directed against the
judgment of a Division Bench of the Delhi High Court dismissing in limine a
Letters Patent Appeal filed by the present appellant against the judgment of a
learned Single Judge of that Court whereby the contentions raised by the
appellant in Civil Writ Petition No. 1423 of 1979 were rejected and the said
writ petition was dismissed.
The appellant-Wing Commander J. Kumar-was
commissioned in the Indian Air Force on September 3, 1956 with antedated
seniority from December 10, 1955. He was permanently seconded to the Defence
Research Development and Inspection Organisation (for short, the L R D & I
Organisation) of the Ministry of Defence on October 14, 1971. On the
bifurcation of the LRL & I Organisation effected in July 1976 by the
separation of the Inspection Wing, the appellant was retained in the Defence
Research and Development Organisation, which will hereinafter be referred to as
the R & D Organisation. The Director-General of Defence Research and
Development, who is also the Secretary to Government of India, Defence
Research, is the controlling authority of the R & D cadre. The said cadre
has service officers drawn from all the three Wings of the Armed Forces,
namely, the Army, the Navy and the Air 457 Force, and in addition thereto a
large number of civilian employees are also borne on it.
In November 1979, in supersession of all
previous Rules and Orders on the subject, the President of India promulgated
under the proviso to Article 309 of the Constitution rules laying down the
procedure for the intake of service officers in the R & D Organisation and
the terms and conditions of service of those permanently retained therein.
Those rules were issued by the Ministry of Defence of the Government of India
in Office Memorandum No. Pers/18601/RD. Sel. Bd/7971/D (R&D) dated November
23, 1979.
The provisions of the said Memorandum will
hereinafter be referred to as the rules. Rule 16 deals with the subject of
"Seniority after permanent secondment". That rule is in the following
terms:
"As hithertofore seniority of all
service officers permanently seconded to DRDO will continue to be based upon
their seniority of substantive rank of Major/Sqn. Ldr./Lt. Cdr., subject to any
penalty/loss of seniority that an officer might suffer subsequently and the
seniority of officers with substantive ranks higher than Major/Sqn. Ldr./Lt.
Cdr. will after their permanent secondment, also reckon vis-a-vis other
officers in the R&D Cadre, for future promotion/confirmation, from the date
of their substantive rank of Major/Sqn. Ldr./Lt. Cdr., subject to any
penalty/loss of seniority that an officer might have suffered in his parent
Arm/Service." The principal contention advanced by the appellant before us
is that the principle for determination of seniority laid down in the above
rule is arbitrary and violative of Articles 14 and 16 of the Constitution.
Alternatively, it is contended by the
appellant that since he had been permanently seconded to the R&D
Organisation in 1971, long prior to the promulgation of the impugned rules, his
rights regarding seniority and promotions cannot, in any way, be effected by
the provisions of the new rule.
According to the appellant, he continues to
be governed by the principles that had been originally laid down in Government
of India (Ministry of Defence) Memorandum dated March 18, 1967, which were the
rules in force at the time of his secondment to the R&D Organisation. It is
the further case of the appellant that the R&D being an independent
Organisation, the seniority of the personnel absorbed therein has to be
reckoned only with reference to the dates on which they were 458 selected and
appointed in the said Organisation and subsequent entrants into the R&D in
any particular category or rank should, therefore, be placed only below all
those who had already joined the Organisation by virtue of permanent
secondment. The appellant also contends that by taking the date of substantive
appointment to the rank of Major/equivalent as the basis for reckoning
seniority, officers who had obtained substantive promotions to higher ranks in
the parent service earlier than some of their seniors who were only
subsequently promoted to such higher ranks, will suffer very serious prejudice
because the latter will gain a march over the earlier promotees and supersede
them in the matter of seniority in the R&D Organisation.
Elaborating this plea, it was urged on behalf
of the appellant that the result of the impugned rule would be to bring about
the anomalous situation where a person permanently seconded to the R&D and
holding substantively the rank of Lt.Col./equivalent can be superseded in
seniority in the said Organisation by a Major/equivalent of old vintage who had
been overlooked for promotion in his parent service and may have thereupon come
over to the R&D Organisation. Another objection strongly put forward by the
appellant was against the lateral induction of officers at levels higher than
that of substantive Major/equivalent. It was urged by the appellant that such
subsequent inductees into the R&D Organisation cannot be legally assigned
seniority above those already borne on the cadre, irrespective of the
substantive rank held by them at the time of their intake into the R&D. The
appellant has rested this contention on the premise that the intake of officers
into the R&D is by a selection based on merit and hence those selected
earlier must necessarily rank higher in the seniority list of the Organisation
in relation to those who are selected and appointed in the Organisation only on
later dates. The appellant has urged a further point before us that the
seniority of officers of the Navy, Army and Air Force holding equivalent ranks
who served in the Organisation is governed by the principle laid down in
Regulation No. 251 of the "Naval Ceramonials, Conditions of Service and
Miscellaneous Regulations, 1964", and the impugned rule in so far as it is
contrary to the principle laid down in the said Regulation has to be declared
as invalid and inoperative. Some other incidental pleas and grievances were
also put forward by the appellant before the High Court as well as before us
and we shall be dealing with them later on at the appropriate stage.
The learned Single Judge of the High Court
rejected all the aforesaid contentions advanced by the appellant and declined
to 459 grant any relief to him, except to the extent of directing the R&D
Organisation to issue the tentative seniority list drawn up in accordance with
the impugned rule within three months from the date of the judgment and to
record the Annual Confidential Reports on the appellant from April 1, 1976 to
March 31, 1979 within the same period. The Letters Patent Appeal filed by the
appellant against the said judgment having been dismissed in limine by a
Division Bench of the High Court, the appellant has preferred this appeal after
obtaining special leave from this Court.
The Defence Research and Development
Organisation (R&D) has been set up under the Ministry of Defence for
carrying on scientific and technological research and development work on
projects of vital importance to the defence forces of this country. The head of
the said Organisation is a civilian, namely, the Scientific Adviser to the Defence
Ministry and its personnel consist of a large number of civilian scientists and
a much smaller number of service officers drawn from the three defence
services. The service officers are initially taken on short tenure and are
later permanently seconded to the R&D Organisation if found suitable and
willing. Those service officers who were permanently seconded and absorbed in
the R&D cadre are thereafter governed by the terms and conditions of
service applicable to the officers of the said cadre.
Originally, the Defence Research and
Development Organisation (R&D) and the Director-General of Inspection (DGI)
had a combined cadre-Research Development and Inspection-and the terms and
conditions of service of the personnel borne on the said cadre were governed by
the provisions contained in Government of India (Ministry of Defence)
Memorandum No. 11/(5)/58/D-(R&D) dated March 18, 1967. But, those rules
which had also been issued by the President of India under the proviso to
Article 309 of the Constitution did not contain any provision laying down the
principles for determination of the seniority of the officers functioning in
the DRD&I Organisation. Those rules were in force at the time when the
appellant was permanently seconded to the DRD&I Organisation in 1971.
In the writ petition filed in the High Court,
the appellant had impleaded 8 officers of the R&D Organisation, namely,
respondents nos. 7 and 11 to 17 contending that they have been assigned
seniority and granted promotions in supersession of the appellants's legitimate
claims and in violation of the rules. In the appeal before 460 this Court, the
appellant had added several more service officers of the R&D as additional
respondents. The appellant argued his case in person and so did some of the
respondents whose promotions and seniority etc., have been challenged by the
appellant.
Arguments advanced by the parties appearing
in person were heard by us at considerable length and Shri P.A Francis, Senior
Advocate, appearing on behalf of Respondents Nos. 1 and 2, namely, the Union of
India and the Director- General, R&D Organisation, also addressed arguments
before us covering all the aspects.
As already noticed, the main contentions put
forward by the appellant are two-fold, namely, that the principles laid down in
rule 16 of the rules for determination of the seniority of officers permanently
seconded to the R&D are arbitrary and illegal, and that lateral induction
of officers holding ranks above substantive Major/equivalent and assigning of
seniority to such subsequent inductees by applying the provisions of rule 16
amounts to deprivation of the vested rights of persons-like the appellant-who
had joined the Organisation earlier and it is, therefore, illegal and
unwarranted.
After giving our best consideration to the
arguments advanced on both sides, we do not see any substance in either of the
aforesaid contentions advanced by the appellant, The Defence Research
Development and Inspection Organisation is a Specialised Technological
Organisation set up under the Ministry of Defence for carrying out research and
development work in weapons like guns, electronics, missiles, tanks etc. Its
personnel consist of a large number of civilian scientists (about 3,600) and
about 430 service officers drawn from all the three Wings of the Armed Forces
with operational experience of such weapon system to work with the scientists
in the research and development programme. The policy followed in regard to the
intake of service officers appears to have been to take them initially on a
tenure basis and subsequently to absorb them in the Organisation on a permanent
basis in the event of their being found suitable and willing. It is seen from
the affidavits and documents filed on behalf of the respondents that the
secondment of service officers depended upon the exigencies and the special
type of need of the Organisation at each relevant point of time so much so that
officers who could fill the bill by virtue of their qualification, experience,
aptitude and suitability in that particular branch of defence science for which
the need 461 for personnel had arisen and whose services could be spared by
their parent service were taken into the R&D Organisation from time to
time. Since the officers from the three services came to the R&D cadre with
different lengths of service and at different levels, it became imperative to
evolve a reasonable principle for determination of their inter se seniority
after their secondment to the R&D Organisation.
The case of the respondents is that right
from the beginning, the policy and practice followed by DRD&I Organisation
as well as by the bifurcated R&D Organisation was to assign seniority with
reference to the date on which the officers attained their rank of substantive
Major/equivalent. This was, however, strongly refuted by the appellant who
asserts that no such principle had been formulated or followed by the
Organisation prior to the promulgation of the impugned rules. The respondents
produced for our perusal various files pertaining to the determination of
seniority and grant of promotions in the Organisation during the period prior
to the issuance of the impugned rules. The appellant pointed out with reference
to those very files that there were quite a few instances where promotions had been
effected on a basis totally at variance with the principle propounded by the
respondents.
From a scrutiny of the files of the Ministry
of Defence-R&D Organisation-produced before us by the learned counsel
appearing on behalf of the Government of India, it has clearly emerged that,
excepting for a few stray instances, the practice followed in the R&D
Organisation was to reckon the seniority of the permanently seconded officers
with reference to the date of their attaining substantive rank of Major/equivalent.
The principle underlying the said practice was later formally incorporated in
the Minutes of the DRD&I Selection Board as a decision taken by the Board
at its meeting held in February 1974. The relevant paragraph of the Minutes
runs thus:
"Officers with substantive ranks higher
than Maj/Sqn Ldr/Lt Cdr who are offered permanent secondment will reckon their
substantive seniority in the R&D/Inspection Organisation for future
promotion/confirmation from the date they got their substantive ranks as Maj/Sqn
Ldr and subject to any penalties as regards loss of seniority that they might
have suffered in their Arm/Service thereafter. The 462 position as above should
be clarified to the officers concerned and their acceptance obtained before
issuing the orders of permanent secondment in such cases. These decisions will
apply to cases of permanent secondment approved by the RD&I Selection Board
from 2(74) meeting onwards." It is also seen from the files pertaining to
the period subsequent to February 1974 that the aforesaid principle was
thereafter consistently followed as a binding rule and when it was found that a
departure from the said principle had been erroneously made by placing three
Air Force officers in their substantive rank of Wing Commander, the authorities
concerned rectified the said mistake after clearly noting in the file that the
aforesaid principle went unnoticed by oversight during the processing of those
cases by HQ, R&D and the ranking of those officers was revised so as to
bring it into conformity with the aforesaid rule.
The relevant file leading up to the issuance
of the impugned rules was also carefully perused by us. This file contains the
Minutes of the Chief of Staff Committee recommending to the Government of India
that the draft rules may be finally accepted and issued expeditiously and the
noting therein also contains a clear statement that the principle incorporated
in the decision taken at the combined meeting of the DRD&I Selection Board
held in February 1974 was merely to incorporate "a rule which was
unwritten earlier but actually applied in practice". Thus, there is
sufficient material available on record to substantiate the plea put forward by
the respondents that the policy and practice followed in the DR&DI Organisation
and later in the R&D Organisation was to fix the seniority of permanently
seconded officers with reference to the date of attainment of the rank of
substantive Major/ equivalent.
Further, the impugned rules are statutory in
origin as they have been promulgated by the President of India under the
proviso to Article 309 of the Constitution. Rule 16 contains a categorial
declaration that in the past also the seniority of service officers permanently
seconded to the R&D Organisation was being reckoned on the basis of their
dates of attainment of substantive rank of Major/Sqn Ldr/Lt Cdr. subject to any
penalty/loss of seniority that an officer might suffer subsequently. The said
declaration is clearly implied in the opening words "As hithertofore"
occurring in rule 16 463 of the impugned rules. A statement contained in a
statute or statutory rule of the factual background leading up to the enactment
has ordinarily to be accepted and acted upon by the court as wholly correct;
nothing clinching has been brought to our notice by the appellant to justify
any departure from the said principle. We do not, therefore, find it possible
to accept the contention of the appellant that prior to the coming into force
of the impugned rule, he had acquired a vested right to have his seniority in
the R&D reckoned with reference to the date of his permanent secondment and
to have all officers joining the Organisation on subsequent dates ranked only
below him. The plea advanced by the appellant that the impugned rules have
illegally purported to divest him of his vested rights of seniority and
promotion in the R&D must, therefore, be rejected as devoid of merit.
Apart from what is stated above, it is
settled law that the service conditions pertaining to seniority are liable to
alteration by subsequent changes that may be introduced in the rules and except
to the extent of protecting promotions that have already been earned under the
previous rules, the revised rules will operate to govern the seniority and
future promotion prospects of all the persons in the concerned service. There
is, therefore, no substance in the argument advanced by the appellant that it
was not open to the Government of India to introduce a new principle of
seniority by promulgation of the impugned rules so as to affect his rights for
future promotion.
The next question to be considered is whether
the principle enunciated in rule 16 can be said to be unreasonable or
arbitrary, as contended by the appellant. It is in this context that the
specialised character of the R&D Organisation assumes importance. Its
personnel consist of civilian scientists and service officers of high
technological attainments in different disciplines who have been drawn to the
Organisation from time to time according to its exigencies and needs.
The structure and composition of the
Organisation have necessarily to undergo rapid qualitative and quantitative
changes in the light of the fast developments that take place in the field of
science and technology as well as in international relations. The research and
development work is carried on by the R&D in different systems of weapons
and equipments and a variety of disciplines like electronics, missiles, tanks,
telecommunication, rocketry, radars 464 etc. In addition to about 3,600
civilian scientists, the Organisation has about 160 permanently seconded
service officers and about 430 service officers taken on a tenure basis. The
intake of service officers is not on the basis of any general selection from
service cadres. As and when the Organisation finds it necessary to obtain the
services of officers with operational experience in any particular weapon
system or other scientific discipline, suitable hands with aptitude skill and
experience in that particular branch or speciality whom their parent service is
willing to spare for deputation are initially taken on a tenure basis. Thus,
there is a selection only in a very limited sense that the suitability of the
concerned officer is adjudged before he is taken. But what is important to note
is that in the intake of officers into R&D Organisation there is no
comparative evaluation of the merits of the other personnel occupying the same
rank or possessing like experience in the Defence Services. There is no process
of selection in which their claims or merits are considered. Thus, it is clear
that the secondment of officers to the R&D Organisation is not effected on
the basis of a general selection. There is, therefore, no substance in the
contention advanced by the appellant that the service officers who are seconded
to the R & on a later date must take rank only below all those who had
joined the Organisation earlier by virtue of their prior "selection".
Officers who are senior in the parent service in relation to the person who is
seconded and who may possess greater experience and superior attainments might
not have been considered for secondment when their juniors in the service were
seconded to the R & D Organisation, because the parent service might not
have been in the position at the relevant point of time to spare the services
of the former. Further, the discipline-wise requirement in the R & D at any
particular time will depend upon the nature of the project then taken on hand
and posting of a service officer to the R & D Organisation will be on the
consideration of his experience and aptitude for that particular type of
specialised work and not seniority in the parent service. It may well happen
that a junior officer who has experience and expertise in that special
discipline alone may be considered for secondment at that particular time.
Thus, the entry of a service officer into the R & D is to a large extent
dependant on fortuitous circumstances related to the exigencies and needs that
arise in the Organisation from time to time. It is certainly not based on the
result of any comparative evaluation of his merit, ability or suitability as
against those of his compeers in the concerned parent service. Such being the
factual situation, we are of the view that 465 it will not be reasonable, just
or fair to determine the seniority of the permanently seconded service
personnel merely on the basis of the date of their secondment to the
Organisation.
The next question to be considered is whether
the principle for determination of seniority laid down in the impugned rule 16
is just, fair and reasonable or whether it is arbitrary and violative of
Articles 14 and 16 of the Constitution, as contended by the appellant.
The R & D Organisation has in its cadre
service officers who were taken initially on tenure basis from the Army, the
Air Force and the Navy and were later on permanently seconded into the DRD
& I/ R & D cadre on their being found suitable and willing. The
contention of the appellant is that on such permanent secondment into the R
& D, the inter se seniority of the officers should be reckoned only with
reference to the dates of their selection for such permanent secondment. It is
the further plea of the appellant that since at the time of permanent
secondment the officer concerned has to certify in writing that he is
relinquishing all his claims of seniority etc., in his parent service, no
weightage can thereafter be given to the rank or seniority which the person
inducted had earned in his parent service prior to the date of his permanent
secondment. We do not find it possible to accept this contention. Officers from
the three Services holding different ranks are inducted into R & D
Organisation from time to time depending upon the needs of the Organisation,
and if the appellant's contention is to be accepted, it would lead to serious
anomalies and manifest injustice by upsetting the norms of seniority and rank
structure which is the basic fabric on which the Armed Forces of the country
are built. The unreasonable consequences that will flow from the acceptance of
the appellant's arguments will be clearly seen from the following simple
illustration:
Suppose, in the year 1974, on a particular
date, when two officers are working in the Air Force-one as a Wing Commander
and the other in the higher rank of Group Captain- the Wing Commander is
permanently seconded to the R & D Organisation and, later, the Group
Captain is also permanently seconded to the R & D in 1975. If the principle
advocated by the appellant is to be accepted, the Group Captain will become
junior to the Wing Commander by virtue of the latter's earlier induction into
the R & D despite the fact that he had not been even considered for
secondment to the R & D at the time when the Wing Commander was taken.
466 In view of our having already found that
the appellant's contention that the secondment to the R & D is based on a
"selection" is incorrect, the basic premise on which the appellant
has founded his plea that the date of secondment should be the determinative
factor for reckoning seniority in the R & D cadre, falls to the ground.
Since officers from different sources are
taken into the R & D for meeting the discipline-wise requirements arising
in the Organisation from time to time and they are brought into a common pool
on such permanent secondment, it is inevitable that a reasonable principle has
to be evolved for fixation of the their inter se seniority within the R & D
cadre. The fixation of the seniority on the basis of the ranks held by them in
the different branches of the Armed Forces would not be reasonable or fair,
because substantive ranks above Major/equivalent in the three Wings of the
Armed Forces are conferred by different Selection Boards at different times and
under varying circumstances and conditions depending upon the vacancies arising
at the different levels in the distinct services from time to time.
It is pointed out in the counter-affidavit
filed on behalf of the Union of India (Respondent No. 1) that the promotional
chances of officers belonging to the three distinct Wings of the Armed Forces
to posts above the rank of Major/equivalent vary widely and dependent upon
fortuitous circumstances which may obtain in relation to the distinct services
at any relevant point of time. We find there is force in this submission. In
all the three Services, the promotions up to and inclusive of the rank of
Major/equivalent are time-scale promotions based only on fixed length of
service. In the Air Force and the Army, the ranks of Major and Sqn. Leader,
respectively, are attained on an officer putting in 13 years' service. In the
Navy, the time-scale period for promotion to the equivalent rank of Lt.
Commander is said to vary between about 10 and 13 years.
But, what is important to notice is that the
promotion to the rank of Major/equivalent is based only on length of service
and not on any "selection". For posts higher than that of
Major/equivalent, promotions in all the three Services would depend upon the
occurrence of vacancies in the particular branch or group in the concerned Service,
the schemes of expansion that may be taken up from time to time in the
particular Service or branch and also the extent of stagnation that may be
caused to officers at lower levels by reason of the officers who are young in
age occupying posts in the immediate higher levels, etc. When due regard is had
to all the aspects and circumstances, narrated above, it will be seen that the
467 principle adopted under the impugned rule of reckoning seniority with
reference to a date of attainment of the rank of substantive Major/equivalent
strikes a reasonable mean as it ensures to all the service officers in the R
& D the fixation of seniority in the integrated cadre giving full credit to
the length of service put in by them in their respective parent services.
A similar seniority rule formulated by the
State of Maharashtra in a somewhat like situation, when an integrated cadre
consisting of personnel drawn from different sources was formed in the State of
Maharashtra for administering the Rationing Scheme, was recently upheld by this
Court in R.S.
Makashi & Ors. v. I.M. Menon &
Ors.(1) The following observations contained in that judgment are apposite in
the present context:
"When personnel drawn from different
sources are being absorbed and integrated in a new department, it is primarily
for the Government or the executive authority concerned to decide as a matter
of policy how the equation of posts should be effected. The courts will not
interfere with such a decision unless it is shown to be arbitrary, unreasonable
or unfair, and if no manifest unfairness or unreasonableness is made out, the
court will not sit in appeal and examine the propriety or wisdom of the
principle of equation of posts adopted by the Governments." In enunciating
the principle incorporated in the impugned rule, the rule-making authority has
adopted as the base for reckoning seniority the highest common factor
applicable in respect of time scale promotions in the three services, namely
the rank of Major/equivalent and thereby ensured to the service officers
seconded to the R & D Organisation a just and equitable treatment. The rule
provides for the reckoning of the seniority of the seconded officers by taking
into account the length of their service in the parent service, for which the
date of attainment of the rank of substantive Major/equivalent would furnish a
safe index. In our opinion, the said principle cannot be said to be arbitrary,
unjust or unreasonable and the contention to contrary put forward by the
appellant will, therefore, stand rejected.
468 It is no doubt true that in the Navy,
promotions to the rank of Lt. Commander which is equivalent to that of Major in
the Army may be attained by an officer within a slightly shorter period of
service, namely, between 10 and 13 years whereas, in the Army and the Air
Force, the promotion to the rank of Major/equivalent is given only on
completion of 13 years of service. The slight disparity in the promotion
prospects between the Navy and the other two Services will not, however, affect
the reasonableness of the impugned rule because it is impossible to achieve
perfect arithmetical precision in such matters where officers drawn from
different sources are to be integrated into one common cadre and a rule for
fixing their inter se seniority is formulated. Further, it is seen from the
counter-affidavits of Respondents 1 to 3 that out of about 160 permanently
seconded officers of the R & D Organisation, the large majority are from
the Army, a considerable section of the balance is from the Air Force and only
less than 10 officers have come from the Navy.
It is also relevant to notice in this context
that it is specifically provided in rule 4 of the impugned rule that the intake
of service officers to fill appointments in the R & D Organisation will
ordinarily be at Major/equivalent level. Under rule 5, officers in higher ranks
should be considered for permanent secondment only in exceptional cases and
when such a course is adopted, it will be subject to the condition that their
seniority in the R & D cadre will be fixed as stipulated in rule 16. The
incorporation of the aforesaid provisions which operate as a safeguard against
large scale induction of officers above the substantive rank of
Major/equivalent further fortifies the conclusion arrived at by us that the
adoption of the date of substantive Major/equivalent as the criterion for
fixing inter se seniority in the R & D cadre was logically fair, just and
reasonable.
The appellant sought to rely strongly on
Regulation 251 of the Naval Ceremonials, Conditions of Service and
Miscellaneous Regulations, 1954 and on the provisions contained in the Order
AO102/73. Regulation 251 provides that "the relative seniority of officers
of the Army, Navy and Air Force, holding equivalent ranks, who serve together
in an Inter-service Organisation will be regulated as follows." The latter
Order is in the following terms:
"(a) Officers holding equivalent
substantive rank (no acting rank) will rank according to their seniority in the
substantive rank; and 469 (b) Officers holding acting rank will rank after
officers holding corresponding substantive rank and in relation to each other,
they will rank according to their seniority in the substantive rank." In
our opinion, neither the Regulation aforementioned nor the Order, extracted
above, has any application to the present situation. The R & D Organisation
is not an Inter- service Organisation within the meaning of the expression as
used in the aforementioned Regulation and Order. It is predominantly a civil organisation
headed by a civilian Director-General and having a total strength of about
24,000 employees. The large majority of the personnel working in the R & D
Organisation are civilian scientists who are more than 3,000 in number, there
are also about 160 service officers permanently seconded to the R & D cadre
and about 240 service officers taken on tenure basis. But, merely because the R
& D Organisation has on its staff serving officers from the Army, Air Force
and Navy, it cannot be said to be an "Inter-service Organisation"
governed by the provisions of the aforesaid Regulation and Order. The topic
dealt with in the aforesaid Regulation and Order is only "seniority"
for purposes of command, precedence, discipline etc., for working purposes to
be allied in situations where officers from more than one service operate
together in one group as in times of war for carrying out any particular
mission or task.
Another argument advanced by the appellant
was that the impugned rule cannot be upheld as valid inasmuch as it is in
conflict with paragraph 7 of the Government of India Office Memorandum No. 9372
Estt(D), Cabinet Secretariat, Department of Personnel, dated July 22, 1972,
which is in the following terms:
"7. Transferees:-(i) The relative
seniority of persons appointed by transfer to Central Services from the
subordinate offices of the Central Government or other department shall be
determined in accordance with the order of their selection for such
transfer." We see no substance in this contention. The secondment of an
officer from his parent service to the R&D is not a transfer to Central
Service from a subordinate service or from another department. Further, the
impugned rule being statutory in origin, its validity cannot be affected by
reason of any inconsistency with the provisions of a prior executive order
issued by the Central Government.
470 An allegation has been put forward by the
appellant that "the letter dated November 23, 1979 was a fraud on rules
and the Constitution, played by respondent no. 5 who got the same issued to
obtain personal gain by misusing his official position, leading to colourable
exercise of power by the authority who actually issued that letter". To
put it mildly, we find that this is a reckless allegation devoid of any factual
basis. We have gone through the files leading up to the issuance of the
impugned rules and it is seen there from that the matter has been processed by
different authorities at different stages and before the draft rules were
ultimately submitted to the Government of India for approval, they had been
considered and approved at a joint meeting of the Chiefs of Staff also.
Equally untenable is the further plea
advanced by the appellant that since the R&D is an integrated cadre, there
cannot be any further classification of the officers comprised therein on the
basis of the length of service put in by them in their respective parent
services prior to their permanent secondment in the R&D. As pointed out by
this Court in the decision in R. S. Makashi v I. M. Menon (supra), it is a just
and wholesome principle commonly applied in such situations where persons from
different sources are drafted to serve in a new service that their pre-existing
length of service in the parent department should be respected and preserved by
taking the same into account in determining their ranking in the new service
cadre. Such a provision does not involve any discrimination violative of
Article 16 of the Constitution.
Yet, another argument advanced by the
appellant is that the impugned rule not having been specifically declared to be
retrospective in operation; its provisions cannot be applied to the appellant
inasmuch as he had been inducted into the R&D cadre on October 14, 1971
long prior to the promulgation of the new rules. We have already found that, as
a matter of fact, the practice generally followed in the R&D Organisation,
even prior to the promulgation of the impugned rules, was to reckon seniority
with reference to the date of attainment of the rank of substantive Major/equivalent.
Even otherwise, when a statutory rule governing seniority is issued in respect
of a service, the said rule would govern the personnel in the service with
effect from the date of its promulgation and in so giving effect to the rule in
future, there is no element of retroactivity involved. Of course, the rules
will not operate to deprive any person of promotions already earned in the
past, but, for purposes 471 of future promotions and seniority in the
department, the principles laid down in the impugned rule will necessarily
govern all the personnel alike. This contention of the appellant has also to
fail.
It was very strongly contended by the
appellant that the lateral induction of senior service officers holding ranks
above the substantive Major/equivalent level operates to deprive the existing
R&D personnel of their vested rights to promotions within the cadre and
hence, such inductions must be held to be illegal and void. This contention
ignores the fact that rule 5 specifically provides that in exceptional cases,
officers above the rank of Major/equivalent may be drafted into the R&D.
The contention of the appellant appears to us to be based on a fallacious
assumption that the R&D cadre exists for the sake of the personnel working
therein and not for effectuating the purpose underlying its constitution which
is of such vital importance to the Nation's safety. The Organisation has been
formed with a view to have a highly specialised cadre of technological and
scientific experts to design and develop military hardware etc., for the Armed
Forces of the country keeping abreast of the latest developments and advances
in the field of defence science. To effectuate this purpose, such an
Organisation by its very nature cannot remain static or stagnant, but has to be
constantly expanding qualitatively and quantitatively. The personnel
requirements of the Organisation are, therefore, bound to change from time to
time and to meet such changing needs, the services of qualified experts with
specialised knowledge, skill and experience will have to be enlisted from time
to time. A particular service officer in the Army, Air Force or Navy may be the
best person suited for being placed in charge of a specialised job newly taken
on hand, and in such a situation the Organisation must have the freedom to
indent for the services of the officer concerned irrespective of the rank that
he may be holding in his parent service. We do not find it possible to
recognise any right in the officers already working in the R&D to object to
the lateral induction of senior officers under such circumstances. The
contention put forward by the appellant that lateral inductions into the
R&D cadre constitute an illegal deprivation of the vested rights of persons
already working therein and are consequently illegal and void, cannot,
therefore, be accepted.
The next point urged by the appellant is that
since the impugned rules disturb the previously fixed seniority, it is
quasi-judicial in nature and they ought to have been issued only after 472
giving notice to all the affected persons. We have already found that no
alteration in the pre-existing policy relating to determination of seniority in
the R&D has been brought about by the impugned rules. Quite apart from
that, the promulgation of a statutory rule governing seniority is not a
quasi-judicial function. It is the exercise of a legislative power and in
respect thereof the principles of natural justice have no application at all.
Detailed facts pertaining to the history of
service of the various officers impleaded in the appeal as respondents were
referred to by the appellant during the course of his arguments and such of the
respondents who appeared in person countered those submissions by placing
before us, what, according to them, the correct facts are relating to their
service history. The challenge made by the appellant against the ranking and
seniority of the officers impleaded as respondents is based solely on his
contention that the seniority principle enunciated in rule 16 is arbitrary,
illegal and ultra vires and that, in any event, the said principle cannot be
applied to him. The said contention has been found by us to be untenable.
Hence, it is not necessary for us to refer to the details regarding the service
history of the appellant vis-a-vis those of the service officers who have been
impleaded as respondents in the appeal.
In the light of our foregoing discussion, it
follows that the High Court was perfectly right in upholding the validity of
the impugned rule and in rejecting the challenge raised by the
petitioner-appellant against the selections, inductions and promotions made in
the R&D Organisation on the basis of the said rule.
In the course of his submissions before this
Court, the appellant put forward a grievance that, notwithstanding the
directions issued by the High Court in its judgment under appeal, he has not
been given any posting or assignment.
Counsel appearing on behalf of the Union of
India and the Scientific Adviser to the Defence Minister made available for our
perusal the files relating to the appellant's posting to the DR&D
Laboratory at Hyderabad and the allotment of specific assignments therein to
the appellant from time to time. Having gone through the files, we have come to
the conclusion that there is no factual foundation for the grievance put
forward by the appellant, and hence no directions from this Court are called
for in regard to the said matter. We are purposefully refraining from dwelling
in greater detail on this aspect lest any observations that we may make should
prejudicially affect the future 473 service prospects of the appellant. We,
however, consider it necessary to observe that the appellant would do well to
rid himself of the obsession that all his official superiors are put to harass
or persecute him and open up a new chapter of devoting his high talents and
skills for advancing the effectiveness of the R&D Organisation.
The charges put forward by the appellant in
the Contempt Application (C.M.P. No. 5698 of 1981) and in C.M.P. No. 69 of 1981
filed by the appellant under Section 340(1), Code of Criminal Procedure are
bereft of merit and those applications will accordingly stand dismissed.
In the result, we dismiss this appeal but
direct the parties to bear their respective costs.
N.V.K. Appeal dismissed.
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