Union of India &
Ors. Vs. Narinderjit Singh Sindhu [2010] INSC 811 (29 September 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 80 OF 2003 Union of
India and others ... Appellants Versus Narinderjit Singh Sidhu ... Respondent
J.M. Panchal, J.
1.
This
appeal is directed against judgment dated October 10, 2002, rendered by the
Division Bench of High Court of Punjab and Haryana at Chandigarh in CWP No.
10037 of 2002, by which the appellants are directed to consider the case of the
respondent for promotion to the rank of Major General in accordance with the Rules
and his service profile in the Army Aviation Corps.
2.
The
relevant facts emerging from the record of the case are as under:
The respondent was
commissioned in the Indian Army in the Regiment of Artillery on June 23, 1968
in the rank of Second Lieutenant. After grant of Commission, the seniority of
the respondent was re-fixed with effect from August 21, 1969. Thus, for the
purpose of promotion and career advancement, he became an officer of 1969
Batch. The Government of India, Ministry of Defence, sanctioned formation of a
nucleus Additional Directorate General Army Aviation at Army Head Quarters by
order dated October 29, 1986. The selection grade vacancies including the post
of Major General were to be from within the sanctioned cadre of the Army and
were to remain unfilled for a period of one year till the post of Additional
Director General Army Aviation was sanctioned by the Government of India. The
Chief of 3 Army Staff approved the establishment of a permanent cadre of
officers for the Army Aviation Corps by an order dated April 17, 1997. In the
said order/letter, it was mentioned that the cadre initially would have 15%
permanent officers and 85% would be borrowed from the other cadres and would be
built up in a graduated manner to 100% permanent cadre. By the said letter,
cadre structure was formulated. Regarding allocation of vacancy in the rank of
Major General to permanent cadre, it was mentioned that it would be decided
later.
The initial induction
was to be on voluntary basis with an irrevocable one time option. It was also
provided by the said order that Aviation Corps Officers would be eligible for
induction into general cadre on the lines as officers of supporting Arms, i.e.,
after selection based on positive recommendation in designated Command and
staff assignment.
In May, 1997 the
respondent was promoted to the rank of Brigadier in the Regiment of Artillery.
On September 1, 1997 a letter was issued by Army Head 4 Quarters seeking
application from volunteers for transfer to Army Aviation as per the terms and
conditions set out in the letter/order dated April 17, 1997 passed by the Chief
of Army Staff. The record shows that the President of India approved following
Peace Establishments of Army Aviation: - a) Additional Directorate General Army
Aviation, at Army Head Quarters.
b) Command (Aviation)
Branch at Eastern, Western and Northern Commands.
c) Command (Aviation)
Branch Southern and Central Commands.
The President also
sanctioned selection grade ranks as under: - (a) Major General - 1 (Offset
provided Ex Pay Commission Cell).
(b) Brigadiers - 7
........................
It was also mentioned
in the said order that three selection grade ranks of Brigadiers for which
offsets have 5 not been identified would remain suppressed till suitable
offsets were identified by the SD Directorate and removal of this suppression
would be carried out in consultation with MOD (Fin.). The decision of the
President was communicated by the Government of India, Ministry of Defence, New
Delhi vide communication dated November 27, 1997 to the Chief of the Army
Staff. Along with the communication dated November 27, 1997, appendix A was
also sent which was in the following terms: - "Appendix A to Government of
India, Ministry of Defence letter No. 00659/PE/Misc./AA-5/ 1875/DO-1/D(GS-I)
Dated 27 Nov., 1997.
(The information
given in this document is not to be communicated decision directly or
indirectly to the press or to any person not authorized to receive it) PE No.
00659/PE/Misc.AA-5/ 1975/DO-1/D(GS-1) Dt. 27th Nov., 1997 (Three pages)
ADDITIONAL DIRECTORATE GENERAL ARMY AVIATION ARMY HEAD QUARTERS PEACE
ESTABLISHMENT 6 SUMMARY Personnel Officers Army - 25 JCO - 2 Other Ranks - 44
Total - 71 Transport Car Ambassador - 1 Gypsy - 2 Motor Cycle - 2 Total - 5
---------------------------------------------------------- Details Number Notes
----------------------------------------------------------
1.
Personnel
Officers Additional Director General (Maj. Gen.) (a) 1 Deputy Director General
(Brig) (a) and (i) 2 Directorate (Col) (a) 6 AMS (Lt. Col) (a) (b) 1 7 General
Staff Officers (Lt. Col.) (a) (h) 8 General Staff Officers (Maj) (a) (h) 7
Total 25 Junior Commissioned Officer (b) JCO (Clerk) (c) (d) (e) 2 Other Ranks
Personal Assistant 9 Clerk (GD) (c) (d) (f) 15 Drivers (c) (f) 3 Driver Motor
Cycle (c) (f) 2 Draughtsman (c) (d) (g) 2 Jetliner Operator (c) (g) 1 Runner 11
Despatcher 1 Total other tanks 44
2.
Transport
Motor Cycle 2 Car Ambassador 1 Gypsy 2 Total transport 5 GENERAL NOTES (a)
Officer to be trained aviator (b) To function under MS-6 8 (c) Rank as per
Corps roster (d) To be computer qualified (e) One JCO to function under MS-6
(f) To be provided by Regiment of Artillery (g) To be provided by Corps of
Engineers (h) Two officers to be qualified on computer (i) Appointment of One
Deputy Director General will be kept suppressed till offset is identified by SD
Directorate. The removal of suppression would be carried out in consultation
with MOD (Fin.)."
On December 14, 1997,
the respondent voluntarily applied for permanent transfer from the Regiment of
Artillery to Army Aviation Corps. By a communication dated November 6, 1998,
the transfer of the respondent to Army Aviation Corps was approved with
immediate effect by the Army Head Quarters. Between the year 1997 and 1999, the
respondent commanded 373(I) Artillery Brigade in the Regiment of Artillery. The
respondent assumed the appointment of Brigadier (Aviation) Head Quarters
Western Command at Chandimandir on June 24, 1999. On December 22, 2001, the respondent
submitted a non-statutory 9 complaint to the Chief of Army Staff against non-
consideration of his name for promotion to the next rank of Major General in
the Army Aviation Corps, since he was the senior most Brigadier in the Army
Aviation Corps (Permanent Cadre). The complaint of the respondent was
considered by the Chief of Army Staff but was rejected on June 10, 2002 on the
ground that no appointment of Major General was authorized to Army Aviation
Corps (Permanent Cadre). By the said communication the respondent was informed
that if he so wished, he should seek reversion to the Regiment of Artillery.
3.
Feeling
aggrieved, the respondent filed CWP No. 10037 of 2002 before the High Court of
Punjab and Haryana at Chandigarh praying, inter alia, to direct the appellants
to consider his case for promotion to the rank of Major General in Army
Aviation Corps.
He also prayed that
the appellants be restrained from posting an ex-cadre officer to the Post of
Additional Director General Army Aviation, Army Head Quarters. The petition
filed by the respondent was contested by the appellants. The High Court, by the
impugned judgment, has directed the appellants to consider the case of the
respondent for promotion to the rank of Major General in Army Aviation Corps,
giving rise to the instant appeal.
4.
This
Court has heard the learned counsel for the parties at length and in great
detail. This Court has also considered the documents forming part of the
appeal.
5.
The
fact, the respondent had a reasonably good service profile and was awarded
various distinctions, as mentioned in the impugned judgment, is not in dispute.
The respondent was promoted on selection to the post of Brigadier in the
Regiment of Artillery in the year 1997. The appellants had invited applications
for conversion to Army Aviation Corps and in response thereto the respondent
had submitted application on December 11 14, 1997. The respondent was
permanently converted to the Army Aviation Corps on November 6, 1998. It is
relevant to notice that the respondent, having opted for conversion from
Regiment of Artillery to Army Aviation Corps, he was precluded from again
opting for Regiment of Artillery. This is so in view of the letter/order dated
April 17, 1997, referred to earlier. As per the guidelines mentioned in the
said communication, Aviation Officers were to be groomed in stipulated criteria
appointments and due career protection was to be given to those posted in
"hi-tech" appointments like test Pilots.
On the basis of these
clear terms, the respondent had applied for conversion to the Aviation Corps on
permanent basis. The respondent left his permanent Corps after considering
various aspects including the chances of future promotion in the Aviation
Corps. Initially, the allocation of vacancy in the rank of Major General in the
Aviation Corps was not decided. However, the process of exercising 12 an
option was irreversible one and the officer was left with no option to revert
back to his parent Corps. The respondent had made a non-statutory complaint as
his name for promotion to the next rank of Major General was not considered. It
was rejected vide letter dated June 10, 2002. The only reason mentioned for
rejecting the claim of the respondent was that the appointment of Major General
was not authorized for Army Aviation Corps, Permanent Cadre and holding of
selection for the said rank was not possible. This Court finds that the reason
given by the Chief of Army Staff for turning down the request made by the
respondent to consider his case for promotion to the post of Major General, was
totally erroneous and contrary to the record.
6.
As
observed earlier, one post of Major General was allocated to the Army Aviation
Corps, which is evident from the communication dated November 13 27, 1997.
While providing a post for Major General in Army Aviation Corps, one post of
Major General provided in Pay Commission Cell was Offset. The claim made by the
appellants that the provision of post of Major General, made in Army Aviation
Corps was mere allocation of vacancy by the Chief of Army Staff and not for
release of vacancy for Army Aviation Corps, cannot be accepted in view of the
contents of the communication dated November 27, 1997 nor the contention that
the issue of allotment of specified and unspecified vacancies was required to
be determined by Chief of Army Staff can be appreciated. Though the order
rejecting the complaint of the respondent does not mention so, a stand was
taken by the learned counsel for the appellants before this Court that at the
time when the complaint was made by the respondent, the post of Major General
in Army Aviation Corps was being manned by a Major General, who was brought
from Artillery Corps. On question being asked as to 14 whether the Major
General, who was brought from Artillery Corps and was manning the post of Major
General in Army Aviation Corps, had voluntarily applied as contemplated by the
Scheme for being absorbed in Army Aviation Corps, the learned counsel could not
give any reply. Nor the learned counsel could give reply to the question
whether condition that once an officer opts for Army Aviation Corps would not
be entitled to revert back to his parent Corps, was made applicable to the
Major General, who was brought from Artillery Corps and was manning the post of
Major General in Army Aviation Corps. There is no manner of doubt that bringing
a Major General from different cadre to man the post of Major General in Army
Aviation Corps was illegal and contrary to the guidelines laid down by the
appellants themselves. The record would show that after sanction to the
formation of the nucleus Additional Directorate General Army Aviation at Army
Head Quarters vide order dated 15 October 29, 1986, a permanent and regular
cadre was established for the Army Aviation Corps vide order dated April 17,
1997 passed by the Chief of Army Staff. Having sanctioned the cadre structure
by the order dated April 17, 1997, Selection Grade ranks were provided by
communication dated November 27, 1997 under which the post of Major General was
sanctioned after offsetting the post of Major General provided in Ex Pay
Commission Cell.
Under the
circumstances, this Court is of the firm opinion that no other Major General
could have been brought to Army Aviation Corps for manning the post of Major
General sanctioned for the said establishment.
7.
A
conjoint and purposeful reading of the documents produced on record of the case
by the parties makes it evident that the post of Major General had already been
earmarked and specified for Army Aviation Corps to which sanction of the
President of India was granted and conveyed. The language of the documents on
record do not in any manner suggest that Army Aviation Corps had no specified
vacancy in the rank of Major General. After creating a permanent cadre and
specifying the post of Major General in the Army Aviation Corps, the appellants
were treating the same as an unspecified vacancy to be manned by an officer to
be brought from the other Corps, which was erroneous and not justified at all.
The High Court has rightly observed that the inevitable effect of filling up
the post of Major General sanctioned in Army Aviation Corps by bringing Major
General from other Corps had the adverse effect of marring the chances of
promotion of the officers belonging to Army Aviation Corps.
8.
On
the facts and in the circumstances of the case, this Court is of the opinion
that a just direction is given to the appellants to consider the case of the
respondent for promotion to the post of Major 17 General in Army Aviation
Corps and no case is made out for interfering with the same in the instant
appeal. The appeal, which lacks merit, therefore, deserves to be dismissed.
9.
For
the foregoing reasons, the appeal fails and is dismissed. There shall be no
order as to costs.
.....................................J.
[J.M. Panchal]
.....................................J.
[Gyan Sudha Mishra]
New
Delhi;
September
29, 2010.
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