Union of India & Ors Vs. Avtar Singh
& Ors [2001] Insc 439 (29 August 2001)
S. Rajendra
Babu & Shivaraj V. Patil Rajendra Babu, J.:
[With
SLP(C) No.20345/96]
Respondent
No.1 was holding a rank of Brigadier in Indian Army having been commissioned in
the service on June 13,
1963 in the Regiment
of Artillery. In the 1965 Indo-Pak war, he was fighting in a theatre on the
western front in which he sustained serious injuries to various parts of his
body and ultimately his right arm and the left index finger had to be amputated
later on. By international medical standards, he was classified as having 90%
disability. But on account of the policy adopted by the Government of India all
officers who had sustained such injuries or battle casualty officers should be retained
in service to avoid demoralisation by sending out young disabled officers from
service.
However,
that was only a poor consolation for no other relaxation was provided to them
for promotion in service or compensation for the disability. Such officers had
to compete with able-bodied officers to get their future promotions
notwithstanding of the injuries sustained by them.
For
the period between September 1990 to August 1991, ACRs of respondent No.1 were
recorded by respondent No.2 but the adverse comments made by him and
non-approval of the promotion to the rank of Major General in the selection
board to be held in October 1994 was set aside on appeal and for another period
from September 1991 to June 1992, the Chief of the Army Staff granted a limited
relief of expunging of those entries which had 5-point awarded in the relevant
column by the intimating officer and there is no need to grant any further
interview in regard to the same and thus he became eligible for consideration
to the post of Major General. He filed a writ petition challenging the adverse
entries made in the ACRs for the latter period.
In
that writ petition, second grievance made by respondent No.1 is that in the
selection board held in April 1995, he was empanelled but he was not actually
or physically promoted to the rank of Major General and he was due to retire on
December 31, 1995 in the rank of Brigadier. In other words, inasmuch as he has
been approved for promotion to the rank of Major General in the second
selection board along with another officer who picked up the rank of Major
General by the time the writ petition was filed, respondent No.1 was not able
to do so as no vacancy of Major General was available in the AOC and,
therefore, he had to retire as a Brigadier on December 31, 1995 without
availing the benefits and consequences of his approval for promotion as Major
General.
However,
it must be noticed that an interim order was passed by the High Court on
19.12.1993 that respondent No.1 shall not retire from service despite his
impending superannuation which stood affirmed on appeal subject to slight
modification in regard to posting. The resultant position is that respondent
No.1 continued to be in service even though in the rank of Brigadier despite
having reached the age of superannuation in that rank on December 31, 1995.
However, the High Court examined the original ACRs of the two relevant years as
had been recorded by respondent No.2 and noticed that in respect of the first ACRs
all the entries recorded by him stood expunged and insofar as the second entry
is concerned, he had been graded by giving him the three marks.
On
this aspect of the matter, the learned Single Judge of the High Court stated
that the superior officers have found respondent No.1 to be of outstanding and
exceptional eminence and did not approve the attitude of respondent No.2 in
under-rating and under-mining him and grading him lower in ACRs. However, the
High Court found that the ACRs recorded by respondent No.2 would not mean that
they are subjective, biased and prejudicial assessment and the Chief of the
Army Staff gave limited relief to him regarding the second ACR with the result
that the entries in the second ACR came to be considered by the selection board
when respondent No.1 was first considered for promotion in October 1994.
However, ultimately, the High Court found that on account of the fact that
respondent No.1s name stood approved in April, 1995, he was not inclined to
disturb the finding of the selection board held in October 1994 merely on the
ground that respondent No.1s second ACR was before the selection board entries
wherein are recorded by respondent No.2 though not fully supporting him and in
spite of which his case was considered and he was approved for empanelment. In
that view of the matter, to disturb the proceedings in which four other
officers had been approved would cause great prejudice and hardship to them
especially when respondent No.1 himself has now been approved for new
promotion.
In
that background, the learned Single Judge did not consider it fit to disturb
the ACRs recorded. Against that part of the order, a separate SLP has been
filed by respondent No.1 in SLP(C) No.20345/96, on which notice has been issued
and tagged on to the present appeal. In view of the fact the notings made in
ACRS have not affected him and as rightly noticed by the High Court, he having
been held to be fit for promotion to the rank of Major General, we do not think
it is necessary to open up the old wounds to examine as to how they occurred as
the same would also cause disturbance to many other events that have taken
place. In that view of the matter, we decline to exercise our jurisdiction
under Article 136 of the Constitution and refuse to grant leave to appeal and
reject this SLP.
So far
as the second aspect of the matter is concerned, the High Court rightly noticed
that the promotion of respondent No.1 as Major General would depend on the
availability of the vacancies before December 31, 1995 when he was to retire on
superannuation in the rank of Brigadier. If respondent No.1 was promoted as
Major General before December
31, 1995 his service
tenure would have been extended by two more years. Therefore, the entire case
turns upon the question whether any vacancy was available as on the date he retired
as Brigadier. The High Court, on this aspect of the matter, embarked upon an
investigation as to the number of vacancies of Major Generals that were
available in the various branches of the Army. After examining the various
statements and records that had been produced before the High Court took the
view that there was some misunderstanding on the part of the officers in the
interpretation of the communication dated August 25, 1992 read with the Government of India, Ministry
of Defences resolution dated 27.3.1991. According to the learned Single Judge
the two matters adverted in the two communications pertain to different areas
and both were independent of each other, mixing up of the membership of SSDC
and linking it with the unspecified vacancy as created by the communication
dated 25.8.1992 was an act which unnecessarily deprived the AOC of one vacancy
and created confusion regarding the actual number of vacancies available in the
AOC. It is because of this misunderstanding respondent No.1 became a victim.
Respondent No.1 averred that on March 27, 1991, SSDC was created by the Government of India and only a
Major General from Army Ordinance Corp had remained its member. If it has been
an unspecified vacancy this appointment would have been shared by a Major
General by any other Corp Arms particularly ASC, who has to share in
unspecified vacancy was with AOC upto October/November, 1993. That is with
effect from December 1,
1994, this vacancy had
to be released in favour of the AOC but till date the same has not been done
with the object of depriving him of that chance. They have pointed out that the
AOC remained without unspecified vacancy when its turn came on 31.12.1994 and
such appointment had been held by a Major General of Engineers without any right
or claim on the same. This stand has been stoutly denied by the appellants
before us. It has been pointed that the Union of India had produced the
position as available in August 1992 and as on the date when the matter was
dealt with by the High Court which are as under:
August
1992 As on Date
1. Prem
Sagar, ADG Org. Army HQ. [UNSPECIFIED]
2.
Maj. Genl. S.K.Bhatnagar ADG OS (CN&A), Army HQ [SPECIFIED]
3.
Maj. Genl. Mohinder Singh ADG OS (CV), Army HQ [SPECIFIED]
4.
Maj. Genl. S.K.Chopra ADG OS (TS) [SPECIFIED] Army HQ
5.
Maj. Genl. S. Verma MG AOC, Southern Command [SPECIFIED]
6.
Maj. Genl.G.Mitra MG AOC, Eastern Command [SPECIFIED]
7.
Maj. Genl. S. Talwar MG AOC, Western Command [SPECIFIED]
1.
Maj. Genl. B.N.Rao ADG OS (CN&A), Army HQ [SPECIFIED]
2.
Maj. Genl. T.J.S.Gill ADG OS (CV), Army HQ [SPECIFIED]
3.
Maj. Genl. Y.S.Teja ADG OS (TS) [SPECIFIED] Army HQ
4.
Maj. Genl. MS Bhinder MG AOC, Southern Command [SPECIFIED]
5.
Maj. Genl.DD Ghoshal MG AOC, Eastern Command [SPECIFIED]
6.
Maj. Genl. R.Mehta MG AOC, Western Command [SPECIFIED]
7.
Maj. Genl.V.K. Sareen MG AOC, Central Command [SPECIFIED]
8.
Maj. Genl.V.L. Vohra, MG AOC, Northern Command [SPECIFIED]
9.
Maj. Genl.Vijay Lall, Member, SSSDC [UNSPECIFIED]
10. Maj.Gen.AC
Sharma, Dy.Comdt. & CI, CMM [SPECIFIED]
The vacancies
in the rank of Major General among various Arms/Services is approved by the
Chief of the Army Staff like cadre strength of each arms/service, combat and
service requirements or conditions. Deputational appointments/ex-cadre
appointments are, therefore, calculated against the authorisation made for each
service in order that rational allocation of vacancies are made. In addition,
the Army Officers while on ex-cadre post or on deputation continue to hold
alternative appointment in the Army Cadre, which is directly related to their
age of retirement and they have to be absorbed in Army appointment immediately
on reversion. As per the allocation of vacancies authorised by the Army
Headquarter letter dated August 25, 1992, one unspecified appointment rotates
alternatively between ASO and AOC and because of organisational interest and
suitability, one specified appointment of Major General, namely, members of
SSDC was elected in July 1991. This organisation has been created temporarily
for specific purpose and would cease to be effective on 31.3.1996. Thus, the
vacancy of the Member at SSC was held by Major General Vijay Lall, which was
unspecified vacancy authorised for AOC and no other unspecified vacancy was due
for AOC and, therefore, in terms of para 7(a) of the Army HQ letter dated
25.8.1992 which specifically provided the first year with effect from the date
of issue of this letter will be treated as organisation period to cater for
adopting the changes envisaged due to implementation of new allotments.
Thereafter, the additional unspecified vacancy held as on 25.8.1992 by Major
General Prem Sagar ceased to exist on 26.11.1993. The said organisation period itself
ended on 26.11.1993. Thereafter AOC continued to hold one unspecified vacancy,
that is, Member, SSDC, as authorised in Army HQ letter dated 25.8.1992. Thus
the High Court in the matter of calculation added a vacancy which was not
available and, therefore, gave a direction to the appellants to promote
respondent No.1 to the rank of Major General against any available vacancy in
the Army notwithstanding the fact that he belongs to AOC or to create a vacancy
if none exists and to keep in service until he is promoted as Major General and
actually picks up the rank.
All these
directions could have been given only if vacancy position had been correctly
understood by the High Court. That having not understood correctly as explained
by us, we find the order made by the High Court cannot be sustained. The same
shall stand set aside to the extent indicated above. In other aspects in so far
as the denial of the claim made by respondent No.1 is concerned, the order made
by the High Court is maintained. Thus respondent No.1 having failed on the two
claims made by him his writ petition in the High Court shall stand dismissed.
This
appeal is allowed accordingly. No costs.
...J.
[ S.
RAJENDRA BABU ] ...J.
[SHIVARAJ
V. PATIL] AUGUST 29,
2001.
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