MAJOR GENERAL H.M. SINGH, VSMversusUNION OF INDIA AND ANR.

                        [2014] 1 S.C.R. 270


A             MAJOR GENERAL H.M. SINGH, VSM
                                 v.
                   UNION OF INDIA AND ANR.
                  (Civil Appeal No. 192 of 2014)
                        JANUARY 9, 2014
B
     [A.K. PATNAIK AND JAGDISH SINGH KHEHAR, JJ.]

        Army Rules:

c      r.16-A - Extension of service in 'exigency of service' -
  Senior most Major General in DRDO recommended by
  Selection Board for promotion as Lieutenant General -
  Extension of service granted by Presidential orders - Held:
  President of India was conscious of the fact while granting
0 extension in service to appellant that his case for promotion
  as Lieutenant General was under consideration - Orders
  allowing extension of service to appellant so as to enable his
  claim to be considered for promotion as Lieutenant General,
  cannot be held to be in violation of statutory provisions -
E Extension of service granted to the senior most eligible officer
  for the purpose of consideration of his promotional claim, for
  all intents and purposes will be deemed to satisfy the
  parameters of exigency of service, stipulated in r. 16A -
  Administrative law - Legitimate expectation.

F       Service Law:

       Promotion - Major General in DRDO - Recommended
  by Selection Board for promotion as Lieutenant General -
  Granted extensions to enable his case for promotion to be
G considered by Appointment Committee of the Cabinet - ACC
  not granting approval to recommendations, as rules would not
  permit promotion on extension - Held: Selection Board, out
  of a panel of four names, had recommended promotion of
  appellant as Lieutenant General on the basis of his record of
H                                270
 MAJOR GENERAL H.M. SINGH, VSM v. UNION OF                  271
                  INDIA
service, past performance, qualities of leadership, as well as      A
vision- ACC did not in any manner upset the finding recorded
by Selection Board nor did it negate the said
recommendation - Therefore, appellant must be deemed to
have been found suitable for promotion as Lieutenant
General, even by ACC and, as such, appellant deserves               B
promotion to the rank of Lieutenant General from the date due
to him and he shall be deemed to have been in service as
Lieutenant General till 28.2.2009 and entitled to all monetary
benefits which would have been so due to him.

      Promotion during extension of service - Held: The             C
vacancy against which appellant was considered had arisen
well before date of his superannuation, but since Service
Selection Board was convened only two days prior to date of
his superannuation as Major General, respondents must
squarely shoulder the blame and responsibility of the delay         D
- It is not as if the vacancy came into existence after appellant
had reached the age of retirement on superannuation - The
denial of promotion to him mainly for the reason that he was
on extension in service, is unsustainable besides being
arbitrary- Therefore, the basis on which the claim of appellant     E
for promotion as Lieutenant General was declined by ACC is
rejected - Accordingly, operative part of order of ACC is set
aside.

     Constitution of India, 1950:                                   F
    Arts. 14 and 16 - Claim for promotion - Held: Division
Bench of High Court has rightly held that recommendations
of Selection Board were merely recommendatory in nature
and, therefore, appellant had no fundamental right for
promotion solely on the basis of such recommendation -              G
However, non-consideration of claim of appellant would violate
fundamental rights vested in him. under Arts. 14 and 16, as
respondents were desirous of filling up the said vacancy and
appellant being the senior most serving Major General
                                                                    H
   272      SUPREME COURT REPORTS              [2014] 1 S.C.R.

A eligible for consideration had fundamental right of being
  considered against the said vacancy, and also the
  fundamental right of being promoted if he was adjudged
  suitable - It was in order to extend the benefit of the
  fundamental right enshrined under Art. 14 of India, that he was
8 allowed extension in service on two occasions by Presidential
  orders - By the said orders, respondents desired to treat the
  appellant justly, so as to enable him to acquire the honour of
  promotion to the rank of Lieutenant General, in case the
  recommendation made in his favour by the Selection Board
C was approved by ACC - The action of authorities in depriving
  the appellant due consideration for promotion to the rank of
  the Lieutenant General, would have been arbitrary and
  resulted in violation of his fundamental right under Art. 14.

       The appellant, who was commissioned as Second
D Lieutenant in the Indian Army on 15.6.1969 and was
  inducted into the Armoured Corps, permanently moved
  into the Defence Research and Development
  Organisation (DRDO) w.e.f. 25.5.1983, where he rose up
  to the rank of Major General. In the Government of India
E gazette published on 6.12.2007 the appellant was shown
  as having been promoted as substantive Major General
  with effect from 7.1.2004. A vacancy in the rank of
  Lieutenant General became available with effect from
  1.1.2007. The appellant, as Major General, would retire at
F the age of 59 years, on 29.2.2008 but on his promotion
  to the rank of Lieutenant General his age of retirement
  would stand extended to 28.2.2009 i.e., up to 60 years. On
  27 .2.2008 i.e. two days prior to the appellant's retirement
  on superannuation a meeting of the Selection Board for
G promotion to the rank of Lieutenant General was
  convened. The Selection Board recommended only the
  name of the appellant for promotion. The President of
  India by an order dated 29.2.2008, granted the appellant
  extension of service, for a period of three months and a
  further extension in service for a period of one month i.e.,
H
 MAJOR GENERAL H.M. SINGH, VSM v. UNION OF 273
                  INDIA.
up to 30.6.2008 or "till the approval of the Appointments . A ·
Committee of the Cab.inet (ACC), whichever was earlier".
On 2.6.2008, the Secretariat of the ACC issued. a
communication to the effect that ACC did not approve the
promotion of the appellant to the rank of Lieutenant
General. Consequently, the appellant retired from the rank B
of Major General w.e.f. 3.6.2008. The appellant filed a writ
petition before the High Court. The stand of the Union of
India was that the appellant having attained the age of
superannuation on 29.2.2008, he could not be promoted
as Lieutenant General "while he was on extension". Writ c
petition was dismissed by the single Judge of the High
Court. The Division Bench also dismissed the writ appeal
of the appellant.

    Allowing the appeal, the Court
                                                             D
    HELD: 1.1. The Division Bench of the High Court has
rightly held that the recommendations of the Selection
Board were merely recommendatory in nature and,
therefore, the appellant had no fundamental right for
promotion solely on the basis of the recommendation of       E
the Selection Board. [para 12] (284-F, G-H]

     Dr. H. Mukherjee Vs. Union of India and Others, 1993
(2) Suppl. SCR 529 = 1994 Supp. (1) SCC 250, Union of
India and Others Vs. N.P. Dhamania and Others 1994 (4)       F
 Suppl. SCR 628    =  1995 Supp. (1) SCC 1, and Food
Corporation of India and Others Vs. Parashotam Das Bansal
and Others, (2008) 5 SCC 100 - referred to.

    1.2. However, it is significant to note that the
Appointments Committee of the Cabinet did not in any         G
manner upset the finding recorded by the Selection
Board, in respect of the merit and suitability of the
appellant for promotion to the rank of Lieutenant General.
Therefore, the appellant must be deemed to have been
found suitable for promotion to the rank of Lieutenant       H
    274      SUPREME COURT REPORTS            [2014] 1 S.C.R.


A General, even by the ACC. (Para 20)
         1.3. The vacancy against which the claim of the
    appellant was considered, had arisen on 1.1.2007, and he
    was the senior most eligible officer holding the rank of
    Major General whose name fell in the zone of
8
    consideration for promotion. The Selection Board also
    having conducted its deliberations, singularly chose his
    name from the panel of four names before it and
    recommended him for promotion. Having been so
    recommended, the President of India , in the first
C   instance, by an order dated 29.2.2008, extended the
    service of the appellant, for the period of three months
    with effect from 1.3.2008 and by another order dated
    30.5.2008 for a further period of one month with effect
    from 1.6.2008, "or till the approval of the ACC whichever
D   is earlier". The President of India, therefore, was
    conscious of the fact while granting extension in service
    to the appellant that his case for promotion to the rank
    of Lieutenant General was under consideration. It cannot
    be accepted that the said determination in allowing
E   extension in service to the appellant can be described as
    being in violation of the norms stipulated in r 16A of the
    Army Rules. The delay in convening the Selection Board
    and conducting its proceedings may not be deliberate or
    mala fide, but since the Selection Board came to be
F   convened for the vacancy which had arisen on 1.1.2007
    only on 27 .2.2008, the respondents must squarely
    shoulder the blame and responsibility of the delay. (para
    21) [296-A-C, E and 297-B-C]
       2.1. The non-consideration of the claim of the
G appellant would violate the fundamental rights vested in
  him under Arts. 14 and 16 of the Constitution, as the
  respondents were desirous of filling up the said vacancy.
  In this view of the matter, the appellant being the senior
  most serving Major General eligible for consideration,
H most definitely had the fundamental right of being
  MAJOR GENERAL H.M. SINGH, VSM v. UNION OF                275
                   INDIA
considered against the said vacancy, and also the A
fundamental right of being promoted if he was adjudged
suitable. It was in order to extend the benefit of the
fundamental right enshrined under Art. 14 of the
Constitution, that he was allowed extension in service on
two occasions. By the said orders, the respondents s·
desired to treat the appellant justly, so as to enable him
to acquire the honour of promotion to the rank of'
Lieutenant General, in case the recommendation made in
his favour by the Selection Board was approved by the
ACC. The action of the authorities in depriving the C
appellant due consideration for promotion to the rank of
the Lieutenant General, would have resulted in violation
of his fundamental right under Art. 14 of the Constitution
of India. Such an action at the hands of the respondents
would unquestionably have been arbitrary. [para 22) [297-
                                                           0
D-G; 298-C]
     2.2. The Presidential orders allowing extension of
service to the appellant so as to enable his claim to be
considered for promotion to the rank of Lieutenant
General, cannot be held to be in violation of the statutory E
provisions. Rule 16A of the Army Rules, postulates
extension in service, if the exigencies of service so
require. The said parameter must have· been duly taken
into consideration when the two Presidential orders were
passed. The respondents have. neither revoked, nor F
sought revocation of the said orders. Therefore, the
respondents cannot question the veracity of the said
orders, which were passed to ensure due consideration
of the appellant's claim for promotion to the rank of
Lieutenant General. Without rejecting the claim on merits, G
the appellant was deprived of promotion to the rank of
Lieutenant General. [para 22] [298-C-G]
     2.3. Besides, this Court is of the considered view, that
consideration of the promotional claim of the senior most
eligible officer, would also fall in the parameters of the rule   H
   276      SUPREME COURT REPORTS            [2014] 1 S.C.R.


A providing for extension, if the exigencies of service so
  require. It would be a sad day if the armed forces decline
  to give effect to the legitimate expectations of the highest
  ranked armed forces personnel, specially when, blame
  for delay in such consideration, rests squarely on the
8 shoulders     of the authorities themselves. Surely,
  extension of service, for the purpose granted to the
  appellant, would most definitely fall within the realm of
  r.16A of the Army Rules. Accordingly, extension in
  service granted to the appellant, for all intents and
C purposes, in the considered view of this Court, will be
  deemed to satisfy the parameters of 'exigency of service',
  stipulated in r. 16A of the Army Rules. [Para 22] (298-H;
  299-A-B, C-0]
       2.4. The deliberations of the Appointments
D Committee of the Cabinet make it clear that where an
  officer attains the age of retirement without there being
  a vacancy for his consideration to a higher rank, even
  though he is eligible for the same, and such an officer is
  granted extension in service, he cannot claim
E consideration for promotion against a vacancy which
  has become available during the period of his extension
  in service. Retention in service, so as to consider an
  officer for a vacancy which has not become available
  prior to his retirement, but is in the offing, cannot be
F allowed. [para 24] (300-C-F]
      2.5. In the instant case, a clear vacancy against the
  rank of Lieutenant General became available with effect
  from 1.1.2007. At that juncture, the appellant had 14
  months of service remaining. It is not as if the vacancy
G came into existence after the appellant had reached the
  age of retirement on superannuation. The denial of
  promotion to the appellant mainly for the reason, that the
  appellant was on extension in service, is unsustainable
  besides being arbitrary, specially in the light of the fact
H that the vacancy had become ~vailable, we'I before the
  MAJOR GENERAL H.M. SINGH, VSM v. UNION OF              277
                   INDIA

date of his retirement on superannuation. Therefore, the        A
basis on which the claim of the appellant for promotion
to the rank of Lieutenant General was declined by the
ACC,_ is rejected. Accordingly, the operative part of the
order of the ACC is set aside. [para 24] [300-H; 301-A-C]
                                                                B
     2.6. It is apparent, that the Selection Board had
recommended the promotion of the appellant on the
basis of his record of service, past performance, qualities
of leadership, as well as vision, out of a panel of four
names. The ACC, in its deliberations, did not record any        C
reason to negate the said recommendation. Therefore,
that the appellant deserves promotion to the rank of
Lieutenant General, from the date due to him. Ordered
accordingly. On account of his promotion to the post of
Lieutenant General, the appellant would also be entitled
to continuation in service till the age of retirement on        D
superannuation stipulated for Lieutenant Generals, i.e., till
his having attained the age of 60 years. As such, the
appellant shall be deemed to have been in service against
the rank of Lieutenant General till 28.2.2009, and
accordingly, entitled to all monetary benefits which would      E
have been so due to him. [para 25] [301-D-F]

                     Case Law Reference:
    1993 (2) Suppl. SCR 529 referred to            para 12
                                                                F
    1994 (4) Suppl. SCR 628 referred to           para 12
    (2008) 5 sec 1oo             referred to       para 12
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 192
of 2014.                                                        G

    From the Judgment & Order dated 21.07 .2009 of the High
Court of Madras in Writ Appeal No. 779 of 2009.

    H.M. Singh (Petitioner-In-Person).
                                                                H
    278       SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A       Paras Kuhad, ASG, Brijender Chahar, Chandra Bhushan
    Prasad, Anil Katiyar for the Respondents.

          The Judgment of the Court was delivered by

      JAGDISH SINGH KHEHAR, J. 1. The appellant was
8
  commissioned as Second Lieutenant in the Indian Army on
  15.6.1969. His initial induction was into the Armoured Corps.
  On 25.5.1983 the appellant changed his cadre. He permanently
  moved into the Defence Research and Development
  Organisation (hereinafter referred to as 'the DRDO'). Having
C gone through decades of rigorous military service and having
  consistently earned onward promotions to higher ranks, as
  were due to him from time to time, he was granted acting rank
  of Major General on 1.6.2004, after he had been approved for
  promotion to the rank of Major General by a duly constituted
D Selection Board.

          2. On 31.3.2005 Lieutenant General Ravinder Nath retired
    from service. Resultantly a vacancy in the rank of Lieutenant
    General became available. On 1.1.2006 the appellant claims
E   to have become eligible for the consideration for promotion to
    the above vacancy. It would be relevant to mention, that at that
    juncture, in the cadre of Major Generals, the appellant was the
    senior most serving officer (as per seniority list dated
    29.12.2006) P.ligible for promotion to the rank of Lieutenant
F   General. In the Government of India gazette (published on
    6.12.2007) the appellant was shown as having been promoted
    as substantive Major General with effect from 7.1.2004. It would
    also be relevant to mention, that the name of the appellant was
    included in the name announced by the President of India for
    the award of the Vishist Seva Medal on 26.1.2007. The said
G   award was sought to be bestowed upon the appellant, for his
    having rendered distinguished service of an exceptional order
    to the nation. It is therefore, that the appellant was desirous, that
     his claim be considered for onward promotion to the rank of
    Lieutenant General. At that juncture, the appellant had not only
H   held the rank of Major General for more 18 monihs, he had also
   MAJOR GENERAL H.M. SINGH, VSM v. UNION OF                  279
        INDIA [JAGDISH SINGH KHEHAR, J.] ·
 earned two confidential reports in the said rank. The record         A
 appended to the pleadings indicates, that he had also been
 granted vigilance clearance. Despite the above, the appellant
 was not considered eligible for promotion .to the rank of
 Lieutenant General as he had not completed two years' service
 in the rank of Major General at that time.                           B

       3. Under the circumstances mentioned in the foregoing
. paragraph, AVM R. Yadav, an officer from the Indian Air Force
  was inducted into the DRDO on 29.12.2005, against the
  vacancy in the rank of Lieutenant General created by Lieutenant     C
  General Ravinder Nath. AVM R. Yadav retired from service with
  effect from 31.12.2006. As such, a vacancy in the rank of
  Lieutenant General became available with effect from 1.1.2007.

        4. On 30.4.2007, the appellant addressed a representation
  to the Director General DRDO asserting, that he was eligible        D
  for promotion against the existing vacancy of Lieutenant
  General, as he fulfilled the laid down criteria. He expressly
  pointed out in his above representation, that in the event of his
  promotion to the rank of Lieutenant General his age of
  retirement would stand extended. As Major General he would          E
· retire at the age of 59 years, on 29.2.2008 (as the appellant
  date of birth is 2.2.1949). On his promotion to the rank of
  Lieutenant General his age of retirement would stand extended
  to 28.2.2009 i.e., to 60 years. The appellant therefore
  requested the authorities, to immediately constitute and            F
  convene a meeting of the Selection Board, for considering his
  claim for onward promotion to the rank of Lieutenant General.
  For the above purpose, the appellant also met various higher
  authorities. On all such occasions he was informed, that the
  action to convene a meeting of the Selection Board was under        G
  process. In fact, in November, 2007 the appellant was assured,
  that the meeting of Selection Board would be held in
  December, 2007. He was also assured, that in the event of his
  being considered suitable for promotion by the Selection
   Board, he will actually be promoted to the rank of Lieutenant
                                                                      H
    280       SUPREME COURT REPORTS               [2014] 1 S.C.R.


A   General, before the date of his retirement (292.2008) as Major
    General.

       5. Since the date of appellant's retirement - 29.2.2008
  was fast-approaching, and because it seemed to the appellant
  that nothing was moving, the appellant submitted his grievance
8
  to the authorities in writing, praying for immediate action in the
  matter. In this behalf he also sought personal hearing, to
  present his case. These pleas were raised by the appellant
  through separate communications dated 26.12.2007 (to the SA
  to the Defence Minister, and to the DRDO). On 28.2.2008 he
C addressed a letter for the same purpose, to the Personal
  Secretary to the Defence Minister.

       6. Two days prior to the appellant's retirement on
  superannuation (29.2.2008, as Major General), on 27.2.2008
D a meeting of the Selection Board for promotion to the rank of
  Lieutenant General was convened. The Selection Board
  cleared the appellant for promotion to the rank of Lieutenant
  General. The Selection Board cleared only the name of the
  appellant for the above promotion, from out of a panel of 4
E names.

       7. In order to ensure that the appellant's claim for
  promotion to the rank of Lieutenant General is not frustrated,
  the President of India by an order dated 29.2.2008, was
  pleased to grant the appellant extension of service, for a period
F of three months. A relevant extract of the above order is being
  reproduced hereinunder:

          "I am directed to convey the sanction of the President to
          the grant of extension in service to IC-23289 Maj Gen H.M.
G         Singh. VSM. AC. CVRDE, Avadi a permanently seconded
          officer of Defence Research & Development Organisation,
          for a period of three months with effect from 01 Mar 2008
          or till the approval of ACC, whichever is earlier.

          This issues with the concurrence of MOD/Fin(R&D) vide
H
 MAJOR GENERAL H.M. SINGH, VSM v. UNION OF                   281
      INDIA [JAGDISH SINGH KHEHAR, J.]
    their Dy No. 582/Fin (R&D) dated 29 Feb 2008."                  A

                                             (emphasis is ours)

     A perusal of the above communication reveals, that the
aforesaid extension of service was granted to the appellant, to
await the approval of the Appointments Committee of the             B
Cabinet. In this behalf it would be relevant to mention, that in
the process of consideration for promotion to the rank of
Lieutenant General, the recommendation made by the Selection
Board requires the approval of the Appointments Committee
of the Cabinet, before it is given effect to. It is apparent that   C
the Appointments Committee of the Cabinet, could not finalise
the matter during the appellant's extended tenure of three
months. As such, for the same reasons, the President of India
was pleased to grant the appellant a further extension in service
(as Major General) for a period of one month i.e., up to            D
30.6.2008 or till the approval of the Appointments Committee
of the Cabinet, whichever was earlier.

    8. On 2.6.2008, the Secretariat of the Appointments
Committee of the Cabinet (Miilistry of Personnel, Public            E
Grievances and Pensions, Department of Personnel and
Training) issued a communication with the following
observations:

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

     In consonance with the order granting extension in service,
the DRDO issued an order dated 3.6.2008, retiring the appellant     G
from the rank of Major General with immediate effect. The
appellant assailed the above order dated 2.6.2008 (denying the
appellant promotion to the rank of Lieutenant General), and the
order dated 3.6.2008 (by which the appellant was retired from
service) by filing Writ Petition No. 15508 of 2008 before the       H
    282      SUPREME COURT REPORTS                (2014] 1 S.C.R.


A High Court of Judicature at Madras (hereinafter referred to as
  'the High Court'). Convening a meeting of the Selection Board
  on 27.2.2008 i.e., just two days before the appellant was to
  retire on attaining the age of superannuation, as also, the
  consideration of the recommendation made by the Selection
B Board at the hands of the Appointments Committee of the
  Cabinet, more than three months after the date on which the
  appellant would retire from service, were vigorously referred to,
  to demonstrate the apathy at the hands of the authorities, which
  according to the appellant, had resulted in denial of promotion
c to him.
          9. In response to the alleged delay in the matter of
    considering the appellant's claim for promotion, it was pointed
    out that the DRDO had a large number of high value projects
    viz. design, development and production of Light Combat
D   Aircraft, design and development of Kaveri Engine, design and
    development of Airborne Early Warning System and a number
    of projects related to upgradation of avionics and electronics
    warfare system, Sukhoi, MIG-27 and LCA; accordingly a
    decision was taken by the DRDO i.e., the appellant's controlling
E   authority, to earmark the vacancy of Lieutenant General (against
    which the appellant was claiming consideration), for an officer
    of equivalent rank from the Indian Air Force, who would be in a
    position to oversee, provide guidance and coordinate all the
    abovementioned highly sensitive and intricate projects. The
F   above tentative determination for filling up the vacancy of
    Lieutenant General from the Indian Air Force was, however,
    subsequently reviewed in consultation with the Government of
    India. The Government of India on 14.2.2008 finally decided to
    fill up the vacancy of Lieutenant General by promotion of a
G   permanently seconded service officer of the DRDO. It was
    therefore asserted, that non-holding of the meeting of the
    Selection Board, and the non-finalisation of the consideration
    of the appellant's claim for promotion to the rank of Lieutenant
    General, could not be described as a deliberate and intentional
H
 MAJOR GENERAL H.M. SINGH, VSM v. UNION OF                   283
      INDIA [JAGDISH SINGH KHEHAR, J.]
attempt by the authorities to deprive the appellant of his           A
promotional opportunity.

      10. In its pleadings the Union of India adopt a clear stand,
that the appellant having attained the age of superannuation on
29.2.2008, could not be promoted as Lieutenant General "while
                                                                     B
he was on extension". It was also the contention of the Union
of India, that since the Appointments Committee of the Cabinet
had not approved the appellant's promotion to the rank of
Lieutenant General, the same .could not be challenged specially
because the Appointments Committee of the Cabinet had                C
given valid reasons to defer the recommendation of the
Selection Board I Departmental Promotion Committee. The
Union qf India acknowledged, that the Appointments Committee
of the Cabinet was the competent authority to approve the
recommendation for promotion to the rank of Lieutenant General
(made by the Selection Board). It was admitted, that the             D
Selection Board in its meeting held. on 27 .2.2008 had
 recommended the appellant for promotion to the rank of
 Lieutenant General. Pending approval of the Appointments
Committee of the Cabinet, the appellant had crossed the age
of his retirement on superannuation (in the rank of Major            E
General, on 29.2.2008). Thereafter, the appellant was granted
extension in service beyond the period of his retirement up to
30.6.2008.
      11. Having considered the contentions and prayers made         F
by the appellant, a Single Bench of the High Court while
disposing of the Writ Petition No. 15508 of 2008, recorded the
folloViiing observatioris:

     "40. When the petitioner's extension of service was not on
     the ground of exigency, DRDO being mainly civilian, Rules       G
     do not permit promotion on extension. ACC's action in not
     granting approval to the recommendation made by
     Selection Board is in accordance with the Rules and the
     same cannot be assailed. Petitioner cannot contend that
                                                                     H
    284       SUPREME COURT REPORTS                 [2014] 1 S.C.R.


A         he has been discriminated in not granting promotion while
          on extension.
          41. There is no substance in the contention that the
          Petitioner having been extended his service, he ought to
          have been granted promotion. Extension of service does
B
          not give rise the legitimate expectation for promotion. The
          extensions in tenure were given to the petitioner to ensure
          that procedure relating to approval of competent authority
          on the recommendation of Selection Board was
          completed in an objective manner by following prescribed
c         process. On culmination of process, ACC is the competent
          authority came to the decision not to promote the
          petitioner. As such there is not incoherence and
          arbitrariness in the decision warranting exercise of judicial
          re'l(iew."
D
        In the light of the above observations Writ Petition No.
    15508 of 2008 was dismissed on 5.5.2009.

        12. Dissatisfied with the dismissal of Writ Petition No.
E 15508 of 2008, the appellant filed an intra court Writ Appeal
  No. 779 of 2009. In the process of adjudicating upon the
  controversy raised in the abovementioned Writ Appeal, a
  Division Bench of the High Court framed two questions for its
  consideration. Firstly, whether the appellant Major General H.M.
  Singh had any fundamental right for promotion solely on the
F basis of the recommendation of the Selection Board. And
  secondly, whether Appointments Committee of the Cabinet was
  liable to accept the recommendation made by the Selection
  Board in favour of the appellant, and consequently, order the
  appellant's promotion to the rank of Lieutenant General. Relying
G on paragraph 108 of the Regulation of Army which delineates
  the constitution and duties of the Selection Board, the Division
  Bench concluded that the recommendations of the Selection
  Board were merely recommendatory in nature, and therefore,
  answered the first question in the negative. The Division Bench
H further held, that a legitimate claim for the promotion would
 MAJOR GENERAL H.M. SINGH, VSM v. UNION OF 285
      INDIA [JAGDISH SINGH KHEHAR, J.]

arise, only if a recommendation made by the Selection Board A
gets the approval of the Appointments Committee of the
Cabinet. Relying on the judgments rendered by this Court in
Dr. H. Mukherjee Vs. Union of India and Others, 1994 Supp.
(1) SCC 250, Union of India and Others Vs. N.P. Dhamania
and Others, 1995 Supp. (1) SCC 1, and Food Corporation of B
India and Others Vs. Parashotam Das Bansal and Others,
(2008) 5 SCC 100, the Division Bench of the High Court further
concluded, that the Appointments Committee of the Cabinet
was not bound by the recommendation of the Selection Board.
It accordingly held, that for justifiable reasons, the Appointmentsc
Committee of the Cabinet had the right to either accept, or to
refuse the recommendation of the Selection Board. In sum and
substance it came to be concluded, that unless it was shown
that the determination of the Appointments Committee of the
Cabinet suffered from arbitrariness or malafides and D
capriciousness, the same could not be interfered with. The
Division Bench of the High Court having found none of the
above noted vices in the determination of the Appointments
Committee of the Cabinet, answered the second question also
in the negative.
                                                                    E
      13. Based on its aforementioned determination, the High
Court dismissed Writ Appeal No. 779 of 2009, on 21.7.2009.
Dissatisfied with the order dated 5.5.2009 (passed by the
Single Judge of the High Court, dismissing Writ Petition No.
15508 of 2009), and the order dated 21.7.2009 (passed by the F
Division Bench of the High Court dismissing Writ Appeal No.
779 of 2009), the appellant approached this Court by filing
Petition for Special Leave to Appeal (C) No. 2008 of 2010. On
11.1.2010 this Court issued notice in this matter. On
completion of pleadings the matter was listed for final disposal. G

     14. Leave granted.

    15. On 29.8.2013 while hearing the matter this Court
passed the following order:
    286       SUPREME COURT REPORTS                [2014] 1 S.C.R.


A         "Before we proceed for further hearing in the matter, we
          would like to go through the deliberations of the
          Appointments Committee of the Cabinet [for short 'the
          ACC'] by which the recommendations of the Selection
          Board was not accepted in the case of the petitioner.
B
          Hence the records of the Selection Board and the final
          orders passed therein in the case of the petitioner be
          placed before the Court on the next date of hearing, i.e.,
          1oth September, 2013."

C Thereafter on 12.9.2013 this Court passed the following order:

          "We have perused the record produced before us and we
          have also heard the arguments of learned Additional
          Solicitor General"
D         Ld. A.S.G. has sought time to seek instructions.

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

          List this matter on 23rd September, 2013."

  The summoning of the record referred to in the orders extracted
F hereinabove, had become essential for two reasons. Firstly, the
  appellant did not contest the findings recorded by the Division
  Bench of the High Court on the two questions framed by the
  High Court, for the disposal of Writ Appeal No. 779 of 2009.
  Having given our thoughtful consideration to the determination
G rendered by the High Court, on the two questions framed by it,
  we must acknowledge that the High Court was fully justified in
  drawing its conclusions. We therefore hereby affirm the above
  findings recorded by the High Court. According to the appellant,
  the High Court had misdirected itself in its above determination.
H It was the submission of the appellant, that the determination
  MAJOR GENERAL H.M. SINGH, VSM v. UNION OF               287
       INDIA [JAGDISH SINGH KHEHAR, J.]
of the Appointments Committee of the Cabinet, was not           A
supported by justifiable reasons. ltwas asserted, that the
determination of the Appointments Committee of the Cabinet
was arbitrary, and based on extraneous consideration. Insofar
as the instant aspect of the matter is concerned, it was the
vehement submission of the appellant, that the High Court had    B
notaddressed the issue at all.

       16. The solitary contention advanced at the hands of the
 appellant, was based on the recommendation made by the
 Selection Board on 27.2.2008, and the consideration of the
 above recommendation by the Appointments Committee of the C
 Cabinet (leading to the rejection of the appellant's claim for the
  promotion to the rank of Lieutenant General). For effectively
  understanding and determining the solitary contention at the
  hands of the appellant, it is essential to extract the minutes of
  the meeting of the Selection Board dated 27.2.2008, as also, D
  the proceedings of the Appointments Committee of the Cabinet.
  Without understanding the tenor and effect of the above
  deliberations, it would not be possible to express our findings
  and the reasons. Had the above proceedings revealed
  sensitive material, improper for public consumption, or E
 detrimental to national interest, we would have chosen fo tread
. cautiously. The deliberations which resulted in denial of
  promotion to the appellant (to the rank of Lieutenant General),
  however, have no such misgivings. We have therefore no
  hesitation in extracting the minutes of the meeting of the . F
  Selection Board dated 27.2:2008. The same are being
  reproduced. hereinunder:-
    "MINUTES OF (1/2008) DRDO SELECTION BOARD
           MEETING HELD ON 27 FEB 2008     .
          The Selection Board comprising the following, met G
     on 27 Feb 08 in the office of the Scientific Advisor to
     Raksha Mantri,. Room No. 532, DRDO Bhawan, New
     Delhi:~

     (a)   Shri M. Natarajan, SA to RM      - Chairman           1-f
     288           SUPREME COURT REPORTS              [2014] 1 S.C.R.


A            (b)   Shri Pradeep Kumar, Secretary - Member
                   (DP)

             (c)   Lt. Gen. M.L. Naidu,
                   PVSM,AVSM, YSM,VCOAS             - Member
18           (d)   Dr. D. Banerjee,
                   DS & CC R&D (AMS)               -Member Secretary
             2. Defence Secretary did not attend the meeting due to
             other prior commitments.
             3. SA to RM briefed the Board to say that only one vacancy
 c           in the rank of Lt. Gen exists. The other vacancy in lieu of
             Scientist 'H' has been referred back to the RM for
             reconsideration and therefore will be considered only after
             a decision.

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

      Ser No.         IC No., Rank, Name & Corps

      (i)             MR-03539 Maj Gen J.K. Bansal, AMC
 E
      (ii)            IC-23289 Maj Gen H.M. Singh, VSM, AC

      (iii)           IC-23850 Maj Gen S.S. Dahiya, AVSM, VSM
                      EME

 F    (iv)            IC-24631 Maj Gen Umang Kapoor, EME

             5. Based on deliberations and record of service. past
             performance. qualities of leadership as well as vision. the
             Board recommends IC-23289 Maj Gen HM Singh. VSM.
             AC for promotion.
 G
              Sd/-                                     Sd/-
              DS&CC R&D (AMS)                          VCOAS
              Member Secretary                         Member"
 H                                                  (emphasis is ours)
  MAJOR GENERAL H.M. SINGH, VSM v. UNION OF                  289
       !NOIA [JAGDISH SINGH KHEHAR, J.]
The proceedings recorded by the Appointments Committee of            A
the Cabinet while rejecting the appellant's claim for promotion
to the rank of Lieutenant General are .also being set out below:-

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

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

     3. The propriety of grant of extension to the officer at the    F
     verge of his superannuation and also, that of grant of
     promotion to the officer while on extension has been
     examined. The matter has been discussed, separately,
     with officers from the Department of Personnel and
     Training; the ORDO, and also, the Ministry of Defence           G
     (Military Secretary's Branch). This apart, a legal notice has
     been received alleging perjury on the basis of information
     secured from the Ministry of Defence under the Right to
     Information Act. A representation has also been received
    290        SUPREME COURT REPORTS                 [2014] 1 S C.R.


A         from an officer, Maj Gen PP Das, alleging discrimination.

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

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

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

H
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF                 291
     !NOIA [JAGDISH SINGH KHEHAR, J.]
  7. An instance has been cited, during discussions, of           A
  extension of service granted in the year 1997 or
  thereabouts to Major General Malik who was due for
  superannuation, and his promotion to the rank of Lt. Gen
  while on extension.
                                                                  B
    8. The orders issued by the Department of Personnel and
    Training lay down that while extension could be granted in
    exceptional circumstances, there can be no promotion
    during the period of such extension. These orders apply
    to the civilian establishment. The instructions which apply   C
    to the Defence forces permit extension in service only if
 ·. the exigencies so demand. DRDO is mainly civilian, and
    the Rules. as mentioned above. do not permit promotion
    on extension.

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

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

  11. More pointedly, two questions stand out. firstly, the       G-
  doubtful authority and grounds for granting extensions.
  taking into account that there was no exigency and.
  secondly, extensions. motivated by a promotion in the
  offing during the extension period cannot be allowed. It
                                                                  H
    292       SUPREME COURT REPORTS                [2014] 1 S.C.R.


A         cannot be ignored also that such situations trigger
          litigation. which should best be avoided in such instances.

          12. Under the above circumstances. it would be
          appropriate not to approve the promotion of Maj Gen H.M.
          Singh to the rank of Lieutenant General.
B
                                                               Sd/-
                                                  Cabinet Secretary
                                                         22.5.2008
          HOME MINISTER             Sd/-
c                                   28.5.2008

          PRIME MINISTER has approved Para 12 above with the
          direction that the observation in Paras 5 and 8 may be
          communicated to the MOD for the future.
D                                                              Sd/-
                                                         30.5.2008
          Sd/-                                             Director
          Cabinet Secretary                  Prime Minister's Office
          2.6.2008                                      New Delhi"
E                                                (emphasis is ours)

       17. The appellant points out, that the determination of the
  Appointments Committee of the Cabinet, overlooked the factual
  position stated in the counter affidavit, filed jointly on behalf of
F respondent nos. 1 and 2 (respondent no.1 - the Union of India,
  through Secretariat of the Appointments Committee of the
  Cabinet; and respondent no. 2 - the DRDO through its Director
  General). In this behalf our attention was drawn to paragraphs
  3 (xvii) and 3 (xviii) which are being extracted below:
G         "3 (xvii) A meeting of the Selection Board was held on
          27.2.2008 and the Selection Board recommended the
          name of the petitioner for promotion to the rank of
          Lieutenant General. The post of Lieutenant General then
          carried the pay scale of Rs.22400-525-24500. Any
H         appointment against this post requires the approval of
 MAJOR GENERAL H.M. SINGH, VSM v. UNION OF                  293
      INDIA [JAGDISH SINGH KHEHAR, J.]
    Appointments Committee of the Cabinet (ACC)                     A
    (Respondent No.1 ). which is a high power body consisting
    of the Hon'ble Prime Minister of India, Hon'ble Union
    Home Minister, Hon'ble Union Minister of Department of
    Personnel and Hon'ble Union Defence Minister. As such,
    the recommendation of the Selection Board were sent to          B
    ACC. In DRDO. the retirement age of an officer of the rank
    of Maj Gen/equivalent which the petitioner held at that time
    is 59 years. The petitioner was due to retire from service
    w.e.f 29.2.2008. Under these circumstances, he was given
    an extension of service for a period of three months or till    c
    the decision of ACC was received whichever was earlier.
    As the decision of ACC was not received till 31.5.2008,
    his service was extended further for a period of one month
    w.e.f 1.6.2008 on the same terms and conditions.

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

                                             (emphasis is ours)

      18. Referring to the factual position depicted in the joint
counter affidavit filed on behalf of the respondent nos. 1 and 2,
it was the vehement submission of the appellant, that the
                                                                    F
Appointments Committee of the Cabinet exceeded its
jurisdiction in examining the validity of the orders by which the
appellant was granted extension in service. It was the
submission of the appellant, that the only question before the
Appointments Committee of the Cabinet, consequent upon the          G
 recommendations made by the Selection Board on 27.2.2008,
was in connection with the merits of the claim of the appellant,
for promotion to the rank of Lieutenant General. Adding to the
 above contention, it was also the submission of the appellant,
 that the Selection Board, consequent upon its deliberations held   H
    294       SUPREME COURT REPORTS                 [2014] 1 S.C.R.


A on 27.2.2008, arrived at its findings based on the appellant's
  service record, past performance, qualities of leadership, as
  well as, vision, that the appellant was worthy of promotion to
  the rank of Lieutenant General. The Appointments Committee
  of the Cabinet, during the course of its deliberations, did not
B find fault with the above conclusion drawn by the Selection
  Board. As such, it was sought to be asserted, that even the
  Appointments Committee of the Cabinet must be deemed to
  have endorsed the merit and suitability of the appellant, for
  promotion to the rank of Lieutenant General.
c        19. In order to contest the submissions advanced at the
    hands of the appellant, learned senior counsel representing
    (respondent nos. 1 and 2) emphatically relied upon the
    proceedings of the Appointments Committee of the Cabinet.
    The proceedings under reference have been extracted by us
D   hereinabove. Referring to the above proceedings, learned
    senior counsel for the respondents laid great emphasis on the
    observations recorded in paragraphs 8 and 9 thereof. It was
    pointed out, that in terms of the orders issued by the
    Department of Personnel and Training, promotion during the
E   period of extension was unquestionably barred. In this behalf it
    was the contention of the learned senior counsel for the
    respondents, that with effect from 1.3.2008, the appellant (who
    had attained the age of retirement on superannuation on
    29.2.2008), was on extension in service. There was, therefore,
F   no question of his being considered for promotion during the
    period of such extension. In addition to the aforesaid categoric
    stand adopted by the learned senior counsel for the
    respondents, it was sought to be reiterated, that the orders
    dated 29.2.2008 and 30.5.2008, by which the appellant was
G   granted extension in service, for periods of three months and
    one month respectively, were not sustainable in law, inasmuch
    as, they were in violation of Rule 16A of the Army Rules which
    postulates, that an officers who has attained the age of
    retirement or has become due for such retirement on
H   completion of his tenure, may be retained in service for a further
 MAJOR GENERAL H.M. SINGH, VSM v. UNION OF                 295
      INDIA [JAGDISH SINGH KHEHAR, J.]
period by the Central Government, only if the exigencies of        A
service so require. It was the submission of learned senior
counsel for the respondents, that retention in service of the
appellant was not on account of any exigency of service.

      20. We have given our thoughtful consideration to the
submissions advanced at the hands of the learned counsel for B
the rival parties. First and foremost, we have no hesitation in
endorsing the submission advanced at the hands of the
appellant, that the Appointments Committee of the Cabinet did
not in any manner upset the finding recorded by the Selection
Board, in respect of the merit and suitability of the appellant C
for promotion to the rank of Lieutenant General. On the instant
aspect of the matter, the Appointments Committee of the
Cabinet has maintained a sullen silence. Even in the pleadings
filed on behalf of the respondents, there is an ironic quiescence.
Therefore, all other issues apart, the appellant must be deemed D
to have been found suitable for promotion to the rank of
Lieutenant General, even by the Appointments Committee of
the Cabinet.

      21. We have extracted hereinabove the factual position       E
noticed by the respondents in paragraphs 3(xvii) and 3(xviii) of
their counter affidavit. If the aforesaid averments are read in
conjunction to the factual position, that the vacancy against
which the claim of the appellant was considered, had arisen
on 1.1.2007, it clearly emerges, that the appellant was thE:1      F
senior most eligible officer holding the rank of Major General
whose name fell in the zone of consideration for promotion. The
Selection Board having conducted its deliberations singularly
chose the name of the appellant from the panel of four names
before it. The proceedings of the Selection Board reveal, that     G
its recommendations were based on record of service, past
 performance, qualities of leadership, as well as, vision. No
 other name besides the appellant's name was recommended
for promotion. Having been so recommended, the President
 of India, in the first instance, by an order dated 29.2.2008,
                                                                   H
    296       SUPREME COURT REPORTS                [2014] 1 S.C.R.


A extended the service of the appellant for the period of three
  months with effect from 1.3.2008 "or till the approval of the ACC
  whichever is earlier". Since the Appointments Committee of the
  Cabinet did not render its determination within the extended
  period expressed in the order dated 292.2008, yet another
B order to the same effect was issued by the President of India
  on 30.5.2008 extending the service of the appellant for a further
  period of one month with effect from 1.6.2008 "or till the approval
  of the ACC whichever is earlier". The President of India,
  therefore, was conscious of the fact while granting extension
C in service to the appellant, the appellant's case for onward
  promotion to the rank of Lieutenant General was unde;
  consideration. Therefore, to ensure that the aforesaid
  consideration fructified into a result one way or the other,
  extensions were granted to the appellant twice ov::>r. The
  aforesaid determination at the hands of the President of India
0
  in granting extension in service to the appellant. stands noticed
  in the factual position expressed in paragraphs 3(xvii) and
  3(xviii) of the counter affidavit filed on behalf of the respondents
  1 and 2. It is not possible for us to accept, that tt1e aforesaid
  determination in allowing extension in service to the appellant
E can be described as being in violation of the norms stipulated
  in Rule 16A of the Army Rules. It is necessary in this behalf,
  for us to test the above conclusion drawn by us, on the
  touchstone of Articles 14 and 16 of the Constitution of India. It
  is not a matter of dispute, that the appellant was promoted to
F the rank of substantive Major General with effect from 7 .1.2004.
  It is also not a matter of dispute, that the substantive vacancy
  in the rank of Lieutenant General, against which the appellant
  was eligible for consideration, became available with effect from
  1.1.2007. Even though the appellant had nearly 14 months of
G military service remaining at the aforesaid juncture, the
  procedure contemplated for making promotions to the rank of
  the Lieutenant General was initiated for the first time just two
  days before the date of retirement of the appellant, on
  27.2.2008. Although it is the contertion of the learned senior
H
 MAJOR GENERAL H.M. SINGH, VSM v. UNION OF                    297
      INDIA [JAGDISH SINGH KHEHAR, J.]
counsel for the respondents, that the delay in convening the          A
Selection Board and conducting its proceedings was not
deliberate or malafide, yet there can be no doubt about the fact,
that the appellant was not responsible for such delay. For all
intents and purposes, he was repeatedly seeking consideration
orally as well as in writing. He had been repeatedly informing        B
the authorities about the approaching date of his retirement. In
response, he was always assured, that if found suitable, he
would be actually promoted prior to the date of his retirement.
It was for the respondents to convene the meeting of the
Selection Board. Since the Selection Board came to be                 C
convened for the vacancy which had arisen on 1.1.2007 only
on 27.2.2008, the respondents must squarely shoulder the
blame and responsibility of the above delay.        ·

     22. The question that arises for consideration is, whether
the non-consideration of the claim of the appellant would violate     D
the fundamental rights vested in him under Articles 14 and 16
of the Constitution of India. The answer to the aforesaid query
would be in the affirmative, subject to the condition, that the
respondents were desirous of filling the vacancy of Lieutenant
General, when it became available on 1.1.2007. The factual            E
position depicted in the counter affidavit reveals, that the
respondents indeed were desirous of filling up the said vacancy.
In the above view of the matter, if the appellant was the senior
most serving Major General eligible for consideration (which he
undoubtedly was), he most definitely had the fundamental right        F
of being considered against the above vacancy, and also the
fundamental right of being promoted if he was adjudged
suitable. Failing which, he would be deprived of his fundamental
right of equality before the law, and equal protection of the laws,
extended by Article 14 of the Constitution of India. We are of        G
the view, that it was in order to extend the benefit of the
fundamental right enshrined under Article 14 of the Constitution
of India, that he was allowed extension in service on two
occasions, firstly by the Presidential order dated 29.2.2008, and
 thereafter, by a further Presidential order dated 30.5.2008. The
                                                                      H
    298       SUPREME COURT REPORTS                [2014) 1 S.C.R.


A above orders clearly depict, that the aforesaid extension in
  service was granted to the appellant for a period of three
  months (and for a further period of one month), or till the
  approval of the ACC, whichever is earlier. By the aforesaid
  orders, the respondents desired to treat the appellant justly, so
B as to enable him to acquire the honour of promotion to the rank
  of Lieutenant General, (in case the recommendation made in
  his favour by the Selection Board was approved by the
  Appointments Committee of the Cabinet), stands affirmed. The
  action of the authorities in depriving the appellant due
C consideration for promotion to the rank of the Lieutenant
  General, would have resulted in violation of his fundamental right
  under Article 14 of the Constitution of India. Such an action at
  the hands of the respondents would unquestionably have been
  arbitrary. We are therefore of the view, firstly, that the order
  allowing extension in service of the appellant for a period of
0 three months, dated 29.2.2008, and the order allowing further
  extension in service by one month to the appellant, dated
  30.5.2008, so as to enable his claim to be considered for
  onward promotion to the rank of Lieutenant General, cannot be
  held to be in violation of the statutory provisions. Rule 16A of
E the Army Rules, postulates extension in service, if the
  exigencies of service so require. The said parameter must
  have been duly taken into consideration when the Presidential
  Orders dated 29.2.2008 and 30.5.2008 were passed. The
  respondents have neither revoked, nor sought revocation of the
F above orders. Therefore, it does not lie in the mouth of the
  respondents to question the veracity of the above orders. The
  above orders were passed to ensure due consideration of the
  appellant's claim for promotion to the rank of Lieutenant
  General. Without rejecting the above claim on merits, the
G appellant was deprived of promotion to the rank of Lieutenant
  General. Besides the above, we are also of the considered
  view, that consideration of the promotional claim of the senior
  most eligible officer, would also fall in the parameters of the rule
  providing for extension, if the exigencies of service so require.
H
 MAJOR GENERAL H.M. SINGH, VSM v. UNION OF                   299
      INDIA [JAGDISH SINGH KHEHAR, J.]

It would be a sad day if the armed forcesdecline to give effect      A
to the legitimate expectations of the highest ranked armed
forces personnel. Specially when, blame for delay in such
consideration, rests squarely on the shoulders of the authorities
themselves. This would lead to individual resentment,
bitterness, displeasure and indignation. This could also             B
undoubtedly lead to, outrage at the highest level of the armed
forces. Surely, extension of service, for the purpose granted to
the appellant, would most definitely fall within the realm of Rule
 16A of the Army Rules, unless of course, individual resentment,
bitterness, displeasure and indignation, of army personnel at        C
the highest level is of no concern to the authorities. Or
alternatively, the authorities would like to risk outrage at the
 highest level, rather than doing justice to a deserving officer.
 Reliance on Rule 16A, to deprive the appellant of promotion,
 to our mind, is just a lame excuse. Accordingly, extension in       D
service granted to the appellant, for all intents and purposes,
 in our considered view, will be deemed to satisfy the
 parameters of exigency of service, stipulated in Rule 16A of
 the Army Rules.

       23. While dealing with the issue of consideration of the      E
 appellant's claim for onward promotion to the rank of Lieutenant
  General, it is necessary for us to also conclude by observing,
  that had the claim of the appellant not been duly considered
  against the vacancy for the post of Lieutenant General, which
  became available with effect from 1.1.2007, we would have had      F
  to hold, that the action was discriminatory. This because, of
  denial of due consideration to the appellant, who was the senior
  most eligible serving Major General, as against the claim of
  others who were junior to him. And specially when, the
  respondents desired to fill up the said vacancy, and also          G
  because, the vacancy had arisen when the appellant still had
. 14 months of remaining Army service. Surely it cannot be over
  looked, that the Selection Board had singularly recommended
  the name of the appellant for promotion, out of a panel of four
   names. In such an eventuality, we would have no other             H
    300      SUPREME COURT REPORTS                [2014] 1 S.C.R.


A   alternative but to strike down the action of the authorities as
    being discriminatory and violative of Article 16 of the
    Constitution of India.

        24. The deliberations recorded by us hereinabove are
B incomplete, inasmuch as, we have not answered the pointed
  objection raised by the learned senior counsel for the
  respondent nos. 1 and 2, namely, that an officer is not entitled
  to promotion during the period of extension in service. For the
  instant objection raised at the hands of the respondents, it is
C necessary to refer to the deliberations of the Appointments
  Committee of the Cabinet, and specially paragraphs 8 and 9
  thereof. A collective reading of the paragraphs 8 and 9 reveals
  an extremely relevant objective, namely, situations wherein an
  officer attains the age of retirement without there being a
  vacancy for his consideration to a higher rank, even though he
0
  is eligible for the same. Such an officer who is granted
  extension in service, cannot claim consideration for promotion,
  against a vacancy which has become available during the
  period of his extension in service. The above conclusion drawn
  by us is clearly apparent from the paragraph 9 of the
E proceedings of the Appointments Committee of the Cabinet.
  In fact in the operative part of the proceedings recorded in
  paragraph 11, it has been noticed, that ." ... extensions motivated
  by a promotion in the offing during the extension period cannot
  be allowed ... " We can derive only one meaning from the above
F observations, namely, extension being granted for promotion
  against a vacancy in the offing. That is to say, retention in
  service, so as to consider an officer for a vacancy which has
  not become available prior to his retirement, but is in the offing.
  The above reason recorded in the operative part of the
G proceedings of the Appointments Committee of the Cabinet,
   is !audible and legal. Insofar as the present controversy is
   concerned, there is no doubt whatsoever, that a clear vacancy
   against the rank of Lieutenant General became available with
   effect from 1.1.2007. At that juncture, the appellant had 14
H months of service remaining. It is not as if the vacancy came
 MAJOR GENERAL H.M. SINGH, VSM v. UNION OF 301
      INDIA [JAGDISH SINGH KHEHAR, J.]
into existence after the appellant had reached the age of             A
retirement on superannuation. The present case is therefore,
not covered by the technical plea canvassed at the hands of
the learned senior counsel for the respondents. The denial of
promotion to the appellant mainly for the reason, that the
appellant was on extension in service, to our mind, is                B
unsustainable besides being arbitrary, specially in the light of
the fact, that the vacancy for which the appellant was clamouring
consideration, became available, well before the date of his
retirement on superannuation. We have, therefore, no hesitation
in rejecting the basis on which the claim of the appellant for        C
onward promotion to the rank of Lieutenant General was
declined, by the Appointments Committee of the Cabinet.
                                                   ..·
       25. In view of the fact, that we have found the order of
 rejection of the appellant's claim for promotion to the rank of
Lieutenant General, on the ground that he was on extended             D
 service to be invalid, we hereby set aside the operative part of
 the order of the Appointments Committee of the Cabinet. It is
 also apparent, that the Selection Board had recommended the
 promotion of the appellant on the basis of his record of service,
 past performance, qualities of leadership, as well as, vision, out   E
 of a panel of four names. In its deliberations the Appointments
 Committee of the Cabinet, did not record any reason to negate
the aforesaid interference, relating to the merit and suitability
 of the appellant. We are therefore of the view, that the appellant
 deserves promotion to the rank of Lieutenant General, from the       F
 date due to him. Ordered accordingly. On account of his
 promotion to the post of Lieutenant General, the appellant would
 also be entitled to continuation in service till the age of
 retirement on superannuation stipulated for Lieutenant Generals,
 i.e., till his having attained the age of 60 years. As such, the     G
 appellant shall be deemed to have been in service against the
 rank of Lieutenant General till 28.2.2009. Needless to mention,
 that the appellant would be entitled to all monetary benefits
 which would have been due to him, on account of his promotion
 to the rank of Lieutenant General till his retirement on             H
    302        SUPREME COURT REPORTS               [2014] 1 S.C.R.


A superannuation, as also, to revised retiral benefits which would
    have accrued to him on account of such promotion. The above
    monetary benefits shall be released to the appellant within three
    months from the date a certified copy of this order beco1T1cs
    available with the respondents.
B
           26. Allowed in the aforesaid terms.

    R.P.                                           Appeal