Ravindera
Sadashio Kshirsagar Vs. Union of India & Ors. [2009] INSC 529 (16 March
2009)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL No. OF 2009 (Arising out of SLP ( C )
No.24003 of 2007) Ravindera Sadashio Kshirsagar ...Appellant Versus Union of
India & Ors. ...Respondents
B.SUDERSHAN
REDDY, J.
1.
Leave granted.
2.
This appeal arises from the judgment and order dated 19.10.2007 of
the High Court of Judicature at Bombay dismissing the Writ Petition No. 1503 of
2006 filed by the appellant herein.
3.
Brief facts needed for disposal of this appeal are as under:
4.
The appellant joined the Indian Navy on 1.1.1978 as a Commissioned
Officer and is at present serving in the rank of Commander (Time Scale) w.e.f.
1.1.1999. In or about May, 2001 the Army Headquarters formulated certain
proposals and forwarded them to the Ministry of Defence drawing attention to
certain shortcomings and imbalances in the organizational structure of the
Officer Cadre. After examining the proposals so made, the Ministry of Defence
constituted a Committee in July, 2001 under the Chairmanship of the then
Secretary, Ministry of Non- Conventional Energy Sources, Shri Ajai Vikram Singh
(hereinafter referred to as "the AVS Committee") to examine the issues
and make recommendations within three months. However, the AVS Committee
submitted its report to the Ministry of Defence in January, 2003. The main
issue considered by the AVS Committee was Cadre stagnation and 3 mobility. The
AVS Committee after extensive deliberations inter alia recommended:- (a) to
grant time based rank of Lieutenant Colonel at 13 years of service as per the
criteria drawn by the Army Headquarters; (b) corresponding reduction in age
profile of junior officers through grant of substantive ranks of Captains and
Majors early to make it compatible with the overall aim of brining down the age
profile of officers. The Committee also recommended that the rank of Colonel
(Time Scale) be granted at 26 years of service. The Military Secretary Branch,
Army Headquarters, New Delhi issued guidelines for implementation of the
recommendations so made by the AVS Committee on 21.12.2004. The Army and Air
Force duly promoted all its Commissioned Officers who had completed 26 years
reckonable commissioned service as on 16.12.2004 in compliance of the
recommendations made by the AVS Committee.
5.
As regards the Navy, the Ministry of Defence, Government of India
vide its communication dated 11.3.2005 addressed to the Chief of Naval Staff
conveyed the sanction of the President of India for revision of the various
terms and conditions of service of Naval Officers, except Medical and Dental
Officers. The communication dealt with the details about substantive
promotions. In the said communication it was further stated that the detailed
criteria and procedure for grant of substantive rank of Captain (Time Scale) to
be notified by the Integrated Headquarters of Ministry of Defence (Navy).
6.
Thereafter, the Integrated Headquarters of Ministry of Defence
(Navy) vide its communication dated 14.3.2005 made a detailed scheme providing
promotions to non-select ranks. The Communication makes it clear that the
fundamental tenet for implementation of the scheme is to protect inter-se
seniority among officers as per Navy list.
The
objective sought to be achieved is to lay down the 5 modalities with minimum
impact on command and control structures and traditional naval ethos. It
further provides that in order to maintain existing inter-se seniority,
Commanders (Time Scale) and Lieutenant Commanders who have been finally
superseded will become eligible for promotion to Captain (Time Scale) only
after all erstwhile acting Commanders (Select List) had been promoted to
Captain (Select List)/Captain (Time Scale)/retired.
7.
Being aggrieved by the above said stipulation of the conditions
the appellant herein and as well as the other similarly situated Naval Officers
made several representations to the respondents pointing out that such
stipulation makes the Presidential Order null and void. The representations
were rejected. Thereafter the appellant herein challenged the policy decision
of the Integrated Headquarters of the Ministry of Defence (Navy) by filing the
writ petition No. 1503 of 2006 before the High Court raising several
contentions. The High Court vide the impugned 6 order dated 19.10.2007 came to
the conclusion that the petition has no merit and accordingly dismissed the
Writ Petition. Hence this appeal.
8.
We have heard the learned counsel for the appellant as well as the
respondents and perused the impugned judgment and the material made available
on record.
9.
Before adverting to the submissions made by the learned senior
counsel Shri L. Nageshwar Rao and as well as Shri. Gopal Subramanium, learned
Additional Solicitor General it is required to notice that the AVS report is
primarily focused on the restructuring of the officer cadre of the Army. It is
no doubt true, the report is made applicable in nearly equal measure to the
other two services also.
However,
the Navy and the Air Force are required to work out their service specific
requirements including the additional vacancies, which will be required at
various ranks on operational/functional grounds. The report makes it 7 clear
that the vacancies that may be necessary to meet service specific requirements
are to be pursued by the individual service Headquarters separately.
10.
Be that as it may, the Government of India/Ministry of Defence
vide its communication referred to herein above addressed to the Chief of Naval
Staff while conveying the sanction of the President of India for revision of
various terms and conditions of service of Naval Officers, except Medical and
Dental Officers which inter alia provides as under:
"2 -
Substantive Promotion: To reduce the age of profile and supersession levels in
the Navy, as also to improve vertical mobility, promotion to substantive ranks
will be made based on eligibility criteria indicated below:
Rank
Eligibility Criteria a) sub Lieutenant On commissioning b) Lieutenant 02 years
as SBT.
8 c)
Lieutenant 04 years from date of promotion to substantive Lt.
d)
Commander 11 years from date of promotion to substantive Lt.
e)
Captain (time 26 years of reckonable scale) commissioned service"
Clause 5
of the same provides as under:
"Those
serving in the rank of Commander (Time Scale) will now be eligible for grant of
substantive rank of commander. The existing rank of Commander (Selection) shall
remain applicable till the existing Commanders (Selection) are either promoted
to the rank of Captain (Selection) or Captain (Time Scale) or are retired. No
further promotions to Commander (Selection) shall be made."
11.
We must make it clear at the threshold that we are not impressed
by the contention that the Navy under the garb of `service specific
requirements' rendered the entire policy and the AVS report which was accepted
by the government of India nugatory. The report itself makes it explicitly
clear that its primary focus was on the restructuring of the officers' cadre of
the Army, while 9 making it applicable to the other two services including the
Navy which has to work out its service specific requirements including the
additional vacancies. The Government's directive dated 11.3.2005 and the
criteria and guidelines for grant of rank of Captain (Time Scale) dated
2.11.2005 were evolved by Integrated Headquarters, Ministry of Defence (Navy)
in the light of the observations so made in the AVS Report. In the criteria and
guidelines so evolved it has been noticed that immediate grant of promotion to
Commanders (Time Scale) with 26 years of commissioned service to the rank of
Captain (Time Scale) is untenable since it would have an impact on the sanctity
of the inter se seniority. The Navy Headquarter was conscious that the
implementation by the two other services has been based on mitigating
circumstances such as their geographical dispersion and selective placement.
The Indian Navy policy is practical and based on time tested, functional and
traditional norms followed even pre-AVS Committee. The guidelines clarified that
the new regulations do not preclude 10 promotion of erstwhile graded Lt.
Commanders (subsequently not placed on elect list for promotion to Captain) or
as to one Commanders (Time Scale) and Lt.
Commanders
(N graded) finally superseded to the rank of Captain (Time Scale), but only
appropriately deferred till such time the provisions of para 3 (c) of the
guidelines are complied with. Para 3 (c) of the guidelines reads as under:
"Erstwhile
R1/R2 graded Lt Cdrs. subsequently not placed on Select List for promotion to
Captain and erstwhile Cdrs. (Time scale) and Lt Cdrs. (N graded) (finally
superseded), will become eligible for promotion to Captain (Time Scale) only
after all erstwhile Ag. Cdrs. (Select List) (PB 3/04) have been promoted to
Capt. (Select List/Capt (Time Scale)/or have retired."
12.
It was further contended by the learned senior counsel for the
appellant that paragraph 3 of the communication dated 11.3.2005 cannot have the
effect of deferring the promotion of Commander ( Time Scale) who have already
completed 26 years of service. It was also submitted that if the impugned Naval
policy is implemented then no 11 Commander (Time Scale) could ever be
considered for his promotion to the rank of Captain (Time Scale) for a long
time as most of them will retire before they can be considered for promotion to
the rank of Captain (Time Scale).
13.
In reply, the learned Additional Solicitor General based on the
material made available on record submitted that if the Commanders (Time Scale)
are to be promoted to the rank of Captain (Times Scale) immediately as claimed
by the appellant, it would result in supersession of 1300 Commanders (Select
List) in a single stroke who were senior to the appellant. The learned
Additional Solicitor General highlighted that the terms and conditions of
service of the Indian Navy are different from the Army and the Air force. It
was also submitted that it is not as if the Commander ( Time Scale) has been
denied promotion to the rank of Captain (Time Scale) but it has only been
deferred.
14.
In our considered opinion, the High Court before whom the similar
submissions were made rightly rejected the same. There is no dispute about the
fact that as on the date of communication dated 11.3.2005 there were altogether
1300 Commanders (Select List) who were senior to the Commanders (Time Scale).
There is also no dispute that Commander (Select List) is always by selection
and the Commander (Time Scale) is automatic on completion of 26 years of
service subject to other requirements. The High Court is right in coming to the
conclusion that if the communication is to be read as suggested, it would
result in all, Commanders (Time Scale) though in the Navy list are juniors to
Commanders (Select List) or acting Commanders (Select) have to be considered
for promotion to the post of Captain(Time Scale). Precisely for that reason the
Headquarter (Navy) came to the conclusion that it would affect the command and
control structure in the Indian Navy. Obviously, that is not the object sought
to be achieved by implementing the AVS report.
15.
Whether the Communications dated 14.3.2005 and 2.11.2005 have the
effect of denying the chance of promotion to the Commander (Time Scale)?
Whether they are violative of Article 14 of the Constitution of India?
16.
It appears from the material on record that the appellant like
most other Commanders will retire before they can be considered for the
promotion to the rank of Captain (Time Scale). No Commander (Time Scale) will be
eligible for consideration till 2015 by which time most of them would have
retired. It is, however, explained that about 420 Officers (130 erstwhile
Commanders (Time Scale)) and 290 `N' graded Lt. Commanders (Lt.
Commanders
who have not been select listed for Commanders) would continue to be eligible
for promotion.
It is
further explained that para 3 (a) of the Government letter dated 11.3.2005 was
aimed to bring the implementation of the AVS Report in consonance with 14
Regulation 151 of Navy Regulations. The whole idea as is evident from para 3
(a) of the communication dated 11.3.2005 of the Government of India is to
protect the inter se seniority amongst officers as per Navy list. Regulation
151 (5) (d) of Regulations for Navy Part-III provides that Officers promoted by
time scale to the rank of Commander shall retain on the `non-selection' list
and their inter-se seniority as before their promotion. It is thus clear that
the Commander (Time Scale) will continue to be junior to all Commanders (Select)
including the acting Commander (Select). If the policy as suggested by the
appellant is to be implemented the rank structure in the Navy which determines
the command and control structure would get radically altered. The Naval list
provides that Commander (Select) and acting Commander would rank senior to
Commander (Time Scale) even if Commander (Time Scale) has put in more years of
service as Commander (Time Scale). If the guidelines and the policy dated
11.3.2005 are understood as suggested by the appellant the entire 15 protection
given to the Commander (Select List) in order to maintain inter-se seniority in
the naval list would get disturbed. In the circumstances, the High Court came
to the right conclusion to repel the submission based on Article 14 of the
Constitution of India.
No other
contention is urged.
17.
For the aforesaid reasons, we find no merit in this appeal and the
same is, accordingly dismissed.
..........................................J. ( Lokeshwar Singh
Panta)
..........................................J. ( B. Sudershan Reddy
)
New Delhi;
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