Supreme Court of India
UNION OF INDIA AND ANR.versusLT. COL. P.K. CHOUDHARY AND ORS.
- Citation
- 2016 INSC 173
- Decided
- 15 February 2016
- Disposal
- Case Partly allowed
- Bench
- T S THAKUR
Holding
The Court held that the AVS Committee’s recommendations were limited to Arms and Arms Support, the Government’s acceptance of the "Command Exit Model" was valid, the second tranche of vacancies must be allocated on a standalone basis creating 141 additional Colonel posts for Combat Support, and officers of different streams do not form a single cadre nor have a enforceable legitimate expectation to alter the policy.
Summary
The Union of India appealed against an Armed Forces Tribunal order that quashed a 2009 policy directing the creation of supernumerary Colonel posts for all Army streams and directed the government to allocate 141 additional posts to the Combat Support stream. The respondents, officers commissioned into the Service streams, claimed that the AVS Committee’s recommendations on lowering the age profile and creating vacancies applied to them and that the government’s allocation of vacancies on a pro‑rata basis violated their legitimate expectation of batch parity. The Supreme Court examined the AVS Committee report, the government’s acceptance of the "Command Exit Model", and the distinction between operational (Arms and Arms Support) and Service cadres. It held that the Committee’s recommendations were confined to Arms and Arms Support, that the government’s policy was valid, and that the second tranche of vacancies must be allocated on a standalone basis creating 141 additional Colonel posts for Combat Support. The Court also ruled that officers of different streams do not constitute a single cadre and that no enforceable legitimate expectation arose to alter the policy.
Issues considered
- Did the AVS Committee recommend lowering the age profile and creating additional vacancies for all three Army streams or only for Arms and Arms Support?
- Did the Government accept the AVS Committee’s recommendations and the "Command Exit Model" for allocating the additional vacancies?
- Was there any illegality, irregularity or unfairness in the allocation of vacancies to Arms Support on the "Command Exit Model" principle?
- Do officers serving in Arms, Arms Support and Service streams constitute a single cadre for promotion purposes?
- Is there a legitimate expectation of batch‑parity promotion for officers across different streams that can override the government policy?
Legislation cited
Subjects
Armed Forces Tribunal ActCommand tenureCommand Exit ModelCadreLegitimate expectationAge profilePromotionIndian ArmyArmsArms SupportService streamsJudicial reviewAdministrative law
Judgment
[2016] 2 S.C.R. 426
A UNION OF INDIA AND ANR.
v.
LT. COL. P.K. CHOUDHARY AND ORS.
(Civil Appeal No. 3208of2015)
B FEBRUARY 15,2016
[T. S. THAKUR, CJI AND KURIAN JOSEPH, J.]
Armed Forces Tribunal Act, 2007 - s. 31 - Restructuring of
officers' cadre of the-Army - Recommendations by the AVS Committee
- Sanction of additional vacancies in the rank of Colo11e/ -
c Additio11a/ vaca11cies released in two phases - Fist tranche of
vaca11cy distributed amongst Arms, Arms Support and service 011
pro rota basis - Denial of pro-rota share in the 2nd tranche of the
additio11al vaca11cies released by the Governmelll - Governme11t
policy, chal/e11ge to, by the respo11de11ts, serving in the Arms Support
D and Service Corps of the Army- Tribunal quashed the policy ci11eular
issued by the Government of l11dia - Issua11ce of directio11 to U11io11
of J11dia to co11sider the respo11dents for promotio11 to the ra11k of
Co/011el by creati11g supernumerary posts - 011 appeal, held: The
Commiltee recommended lowering of age profile a11d consequent
creatio11 of additio11a/ vacancies for Arms and Arms Support-
E
Operatio11al U11its(Armoured Corps, Infantry, Mecha11ised I11fa11try,
Artillery, AD, Engi11eers a11d sig11als) a11d not for services stream
(ASC, AOC, EME a11d other Minor Corps) - Since ASC, AOC, EME
Officers did 11ot be11efit, there was neither a11y violatio11 of the
recomme11datio11s made by Committee 11or was the distributio11 of
F the additio11a/ vaca11cies discrimi11atory - Recommendations of the
Committee regarding allocation of additional vacancies on
"Command Exit Model" basis was accepted by the Government and
a/location of first tranche of 750 vaca11cies by Army Headquarters
on pro rota basis co11trary to the Government decisio11 a11d the
G recommendations of the Committee did not affect the validity of the
decision nor amounts to reversal of the said decision - There was
110 illegality, irregularity or unfairness i11 the mat/er of a/location
of vacancies to Arms Support on "Command Exit Model" principle
- A/location of 734 vacancies, comprising second tranche, on
.standalone basis, is the only right method for allocation - Further,
H
426
/
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 427
the officers .in service streams do not constitute a single cadre with A
those serving i11 Arms and Arms Support for purposes of allocation
of additional vacancies - There is no basis for the submission that
/egitimate expectation arose in the minds of the respondents that
they shall be promoted to the next rank simultaneously with the
officers ·serving in Arms or Anns Support - Thus, the order passed
B
by the tribunal set aside __:-Issuance of direction to appellants to
create 141 additional posts of Colonel to be allocated to 'Combat
Support' streain - Service Law.
Armed Forces - Command tenure - Scope of judicial review
- Held: Command tenure is a policy matter - Scope ofjudicial review
is extremely .. limited - Defence experts or the Government to
c
determine the tenure of a commanding officer for Arms or Arms
Support having regard to variety of factors - Stipulation of a
command tenure of four years for Arms Support Officers taking
into consideration of the nature of duties and the need for battle
preparedness of the force not arbitrary as to call for interference D
by/he Court/tribunal - Judicial review.
Administrative law - Legitimate expectation - Concept of -
Held: Arises out of .a reasonable expectation of being treated in· a
certain way by an administrative authority even though the person
who has such an expectation has no right in law to receive the E
benefit expected by him - Any such expectation can arise from an
"express promise" or a "consistent course ofpractice or procedure"
which the person claiming the benefit may reasonably expect to
continue - If denial of legitimate expectation in a given case amounts
to denial of a guaranteed right, the same can be questioned u/Art.14
of the Constitution but a claim based on mere legitimate expectation F
.without anything more cannot ipso facto give a .dght to invoke these
principles.
Partly allowing the appeals, the Court
· HELD: 1. The order passed by the tribunal is set aside and the G
appellants are directed to create 141 additional posts of Colonel
to be allocated. to 'Combat Support' stream for being utilized by
appointing officers who are eligible for promotions against the
same as in the year 2009 over a period of 5 years till 2014. [Para
48) [467·D·E)
H
428 SUPREME COURT REPORTS (2016] 2 S.C.R.
A 2. A careful reading of the Committee report leaves no
manner of doubt that the Committee emphasized the need for
bringing down the age profile of Unit Commanders in Operational
Units only. The Committee recognized Armoured Corps, Infantry,
Mechanised Infantry, Artillery, AD, Engineers and signals as
operational formations leaving out ASC, AOC, EME and other
B
Minor Corps. The report clearly suggests that the additional
creation of 1484 vacancies in the rank of Colonels did not take
into account vacancies for Colonels in ASC, AOC, EME and other
Minor Corps. As a matter of fact, the report very clearly states
that the age profile of such Service formations for Minor Corps
c could be higher t_han that required to operate in the combat
conditions. Thus, there was neither any recommendation
regarding reduction in age profile of Unit Commanders in ASC,
AOC and EME nor was there any recommendation for creation
of addHional vacancies to benefit officers serving in those
formations. Additional vacancies were specifically recommended
D
for the operational formations and were meant to be allocated to
those formations depending upon the recommended tenure of
the Commissioning Officers in those formations and the possibility
of re-command. Inasmuch as ASC, AOC, EME Officers did not
benefit from the creation of additional vacancies, there was neither
E any violation of the recommendations made by the Committee
nor was the distribution of the additional vacancies discriminatory
as alleged. [Para 20) [447-E-H; 448-A-B)
3.1 The recommendations of the AVS Committee regarding
allocation of newly created vacancies being made on "Command
F Exit Model" was attepted by the Government. It is trite that the
Government alone could say whether the recommendations of
ttre Committee were accepted by it. The Government answered
that question in the affirmative on the basis of a statement made
at the bar as _also on the basis of contemporaneous official record
and the affidavit filed by a responsible officer acti,ng for and on
G behalf of the Government. [Para 22) [448-H; 449-A)
3.2 The 750 vacancies comprising the first tranche released
by the Government were allocated on a pro rata basis contrary to
the recommendations and the decision of the Government. The
said allocation would not by itself undo either the
H recommendations made by the Committee or the decision taken
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 429
by the Government to allocate the newly created vacancies on A
"Command Exit Model" principle. Just because allocation of
vacancies in the firsttranche was made by the Army Headquarters
ignoring the recommendations of the Committee and the
Government decision cannot possibly result in the reversal of
the Government decision nor can it negate the Command Exit
B
Model. So also, simply because the earlier allocation was not
reversed as the officers had picked up their ranks does not affect
the binding nature of the Government decision that the allocation
should be on "Comnumd Exit Model". [Para 24] [450-B-D]
3.3 Having said that, the adfustment/set off of the vacancies
so allocated against the entitlement of the arms and arms support c
in the second tranche does not appear to be justified. If the Army
H~adquarters committed a mistake in allocating vacancies on a
pr.o rata basis contrary to the recommendations and decision of
the Government, any such error cannot adversely affect officers
serving in arms and arms support who may have been entitled to D
a higher number of vacancies in the second tranche but who were
deprived of such allocation on account of the error in the previous
allocation made on pro rata basis. The ASG conceded that the
~econd tranche of 734 vacancies could and ought to have been
allocated on "Command Exit Model" principle without taking into
consideration the excess, if any, allocated to the arms and the E
arms support on pro rata basis in the first tranche. The ASG filed
a statement showing the number of vacancies that would have
ordinary fallen to the share of arms support corps if tile second
tranche of 734 vacancies were allocated without making any
adjustment of vacancies previously allocated. Thus, the F
recommend11tions of the Committee regarding allocation of
additionat vacancies on "Command Exit Model" basis had been
accepted by the Government and that allocation of the first tranche
of 750 vacancies by the Army Headquarters on pro n1ta basis
contrary to the Government decision and the recommendations
of the Committee did not affect the validity of the decision nor G
amount to reversal of the said decision or its dilution in any
manner. [Para 25] [450-D-H; 451-A-B]
4.1 The allocation of 734 vacancies, comprising the second
tranche, when made on standalone basis, (without any adjustment
of the excess allocated in the first tranche) is the only right method H
430 SUPREME COURT REPORTS [2016] 2 S.C.R.
A for allocation. The excess allocated in the first tranche, against
which officers who may not have otherwise picked up the higher
rank were promoted, cannot possibly deny the rightful due to
those who would be entitled to claim promotion against the
vacancies in the second tranche. [Para 28] [451-G-H]
B 4.2 The command tenure is a policy matter on which the
scope of judicial review is extremely limited. What should be the
tenure of a commanding officer for Arms or Arms Support is for
defence experts or for the Government to determine on expert
advice having regard to a variety of factors. If the Government
has upon consideration of the nature of duties and the need for
c battle preparedness of the force has taken a decision to prescribe
a tenure of upto four years for officers serving in Arms Support,
it would be difficult to fault the same in the absence of any patent
perversity in any such decision especially when no breach of any
fundamental or other right of any one complaining against the
D prescription of such a tenure is demonstrated. No such infirmity
has beeu pointed. The ASG submitted that the tenure of
commanding officers in arms support shall for purpose of creation/
allocation of vacancies, be taken as three years instead of four
years. The Government has on that basis calculated the number
of vacancies that would be additionally due to arms support on
E Command Exit Model. [Para 28) [452-C-F]
4.3 To the extent of a deficit of 141 vacancies in the cadres
of Colonel to Arms Support (Artillery,AAD, Engineers and signals)
an unfair distribution of the vacancies from out of the second
tranche were released by the Government. The Government have
F not taken an adversial stand nor have the Government opposed
the undoing of the injustice caused to officers who were eligible
for promotion in the year 2009 but were not promoted on account
of lesser number of vacancies allocated to Arms Support. On the
contrary the ASG submitted that the Government would do
G anything to prevent any frustration or disenchantment among the
officers serving in the army by creating 141 additional posts in
the cadre of Colonel for allocation to Arms Support so that the
same are utilized appropriately for promoting officers eligible for
such promotion. The ASG, however, suggested a method of
utilization of the posts so created over a period of ten years to
H avoid an inequitable distribution and also to minimize the scope
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 431
of any of the batches getting any nndne benefit at the cost of A
other batches. The ASG bas also highlighted problems of
implementation like managing of the cadre in case the utilization
of the additional vacancies is to be done within a shorter time
frame of say five years. The additional 141 vacancies which ought
to have been allocated to Arms Support in the year 2009 were
B
unfairly denied to them. It has taken the aggrieved officers and
legal process considerable time to have the said unfairness and
injustice reversed by creation of additional vacancies. These
vacancies shall, therefore, be taken to have been created as in
the year 2009 aud promotions against the same made from out of
officers who were eligible for such promotion as in that year. The c
Selection Board that deals with such promotions has empanelled
offi~ers based on their inter se merit and suitability. All that is,
therefore, required is to operate the said merit list for utilization
of the additional vacancies now being created. In other words,
the additional creation shall, for all intents and purposes, be
D
deemed to have been available for being filled-up as in the year
2009-but to be actually filled-up in 5 years between 2009-2014.
Those who pick-up the next rank against the said vacancies shall
have the benefit of retrospective seniority as is the practice in
the Army but such seniority on appointment shall not entitle them
to the benefit of higher pay-scale or arrears against the post to E
which they are promoted. In other words, financial benefits shall
accrue to officers promoted pursuant to the creation of additional
vacancies only with effect from the date they are actually promoted.
[Para 29] [453-A-H; 454-A]
5.1 The officers allocated to Arms and Arms s·upport and F
Services do not comprise a single cadre for purposes of promotion.
This is said so because transferability which is one of the essential
attributes of posts comprising a single cadre is absent in the case
of service officers on the one hand and those serving in Arms
and Arms Support ou the other. Merely because the incumbents
of two posts are placed in the same scale of pay does not determine G
whether such posts constitute a cadre. [Para 30] [454-E-F]
5.2 The officers serving in the Service stream of the Army
do not constitute a single cadre with officers serving in Arms and
Arms Support, no matter they may all be drawing the same salary,
holding the same rank, wearing the same uniform and serving H
432 SCPREME COURT REPORTS [2016] 2 S.C.R.
A the same employer with similar service benefits. The true position
is that allocation of officers to different Arms and Services puts
them in distinct cadres, with the result that those comprising a
particular cadre will have his or her promotional avenues available
against the posts comprising that cadre alone notwithstanding
the fact that the Government of India may, as a policy, attempt to
B
ensure as far as possible that officers of a given batch pick up
their ranks around the same time or within a reasonable span of
their counterparts in other cadres or that the disparity in the
time frame for promotion is removed by making promotions
retrospective from the dates officers in the other cadre have been
c promoted. Reliance by the respondents upon Circnlar, is
misplaced. That circular, was issued in connection with the
implementation of the Fourth Pay Commission to remove doubt
regarding the interpretation of the term "cadre" as applicable to
army officers. It was in that context that the expression "cadre"
was explained in the circular by reference to the method of
D
allocation to Arms and Services, and similarity of other conditions
of service. The circular does not constitute a statement of law
much less can the exposition of the term 'cadre' as given therein
operate as estoppel against the onion. The circular is an internal
communication and has been issued in a totally different context.
E Thus, the officers in service streams do not constitute a single
cadre with those serving in Arms and Arms Support for purposes
of allocation of additional vacancies created pursuant to the
recommendations made to the Government by the Committee.
[Para 32) [455-H; 456-A-E)
F 6.1 The choice of the cadet plays an important role in his
allocation and induction in the stated 11 streams. That is precisely
why towards the completion of pre-commission training each cadet
is required to submit his'/her choice of induction into any of the
11 streams. Policy guidelines in this regard have been issued
from time to time by the Adjutant General's Branch which lay
G down the procedure by which cadets are allocated to different
Arms, Combat Support Arms and Services. The broad allocation
policy as stipulated iu Adjutant General's Branch Circular issued
to the Indian Military Academy, Dchradun lays down the working
parameters to ensure equitable distribution of GCs/LCs to Arms/
H Services through consideration of several factors stipulated in
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 433
the same. Merit and caliber spread is one of the factors taken A
into consideration. The policy envisages that first 1% GCs (in
order of merit) would constitute the "Super Block" and will be
allotted to the Army/Service of their choice irrespective of other
factors. It also provides for dividing GCs into blocks consisting
of 25 to 35 GCs to ensure an even distribution of caliber to all
B
Arms and Services. Parental claims are also taken into
consideration while making such allocation just as the choice of
General Cadet is one such factor that is taken into consideration.
The policy envisages certain factors to be kept in mind while
exercising the choice by the cadets. [Para 34] [457-E-H; 458-A]
6.2 Para 19(e) of the policy guidelines, inter alia, provides c
that as far as possible, efforts shall be made not to allot Arms/
Services to any GC who has not opted for it as one of his choices.
Out of a total of30 officers who had filed three original applications
before the Tribunal, 26 officers were allotted to the streams of
their first choice, 2 were allotted to the streams of their second D
choice while only one got allotted to the stream of his 3'd choice.
One can, therefore, visualize that choice made by the officers
prevails as has happened in the case at hand where an
overwhelming number of 26 out of 30 officers have been given
their first option while 2 out of 30 only were given their 2'd choice.
GCs who made their choices are presumed to be fully aware of E
the functional and operational requirements of the obligations of
the streams for which they had opted as also their future career
prospects for the same. [Para 35] [459-A-C]
6.3 The concept of Legitimate expectation arises out of what
may be described as a reasonable expectation of being treated in F
a certain way by an administrative authority even though the
person who has such an expectation has no right in law to receive
the benefit expected by him. Any such expectation can arise from
an "express promise" or a "consistent course of practice or
procedure" which the person claiming the benefit may reasonably G
expect to continue. The question of redress which the person in
whom the legitimate expectation arises can seek and the approach
to be adopted while resolving a conflict between any such
expectation, on the one hand, and a public policy in ~neral public
interest on the other, present distinct dimensions every time the
H
434 SUPREME COURT REPORTS [2016) 2 S.C.R.
A plea of legitimate expectation is raised in a case. If denial of
legitimate expectation in a given case amounts to denial of a right
that is guaranteed or is arbitrary, discriminatory, unfair or biased,
gross abuse of power or in violation of principles of natural justice
the same can be questioned on the well-known grounds attracting
Article 14 of the Constitution but a claim based on mere legitimate
B
expectation without anything more cannot ipso facto give a right
to invoke these principles. [Para 41, 45] (462-B-D; 465-F-G]
6.4 In the instant case, the plea of legitimate expectation
is not of any assistance to the respondents. Firstly, there is no
real basis for the respondents to argue that the Government of
c India had either by representation or by any sustained course of
conduct created an impression in the minds of the respondents
that any additional vacancies created to the lower age profile of
commanding officers serving in Combat Arms or Combat Arms
Support shall also benefit those serving in the Service Streams
D of the Army. There is no factual basis laid by the respondents in
the pleadings before the tribunal to suggest that any such
impression was gathered by officers serving in the Service
Streams.There is also no basis for the submission that a legitimate
expectation arose in the minds of the respondents that they shall
be promoted to the next rank simultaneously with the officers
E
serving in Combat Arms or Combat Arms Support. As a matter
of fact, the provisions of para (68) of the Regulations for the Army
envisages the grant of promotion to officers from different streams
at different points of time depending upon several factors which
bring about the time lag for such considerations. Conscious of
F the fact that such officers serving in different streams may pick
up the next rank at different points of time, the Regulations
provide for grant of retrospectivity to the promotions so granted
to restore inter se batch parity to such officers. The said Regulation
continues to be operative and regardless of the date when the
officer is promoted, his promotion is so related back as to protect
G his seniority vis-a-vis his colleagues from the batch serving in
other streams. Far from creating any impression or any
expectation that promotions shall be simultaneous, the
Regulations clearly provide for grant of retrospective effect to
the promotions only with a view to restore seniority. This clearly
H implies that in the very nature of things the promotions could be
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 435
granted to officers at different points of time and time lag could A
additionally be in the 0-1-2 scenario. [Para 46] [465-H; 466-A-E]
6.5 Legitimate expectation as an argument cannot prevail
over a policy introduced by the Government which does not suffer
from any perversity, unfairness or unreasonableness or which
does not violate any fundamental or other enforceable rights B
vested in the respondents. In the instant case, the Government
has, as a matter of policy, decided to lower the age profile of
officers serving in Combat Arms and Combat Arms Support
pursuant to the recommendations made by the Expert
Committees. There is nothing perverse, unreasonable or unfair
about the policy that the age of officers serving in Combat Arms c
and Combat Arms Support will be lowered by creating additional
vacancies to be allotted on Command Exit Model, as such there
is no reason to allow the argument based on legitimate
expectation to unsettle or undo the policy which is otherwise
laudable and intended to render the Indian Army more efficient D
and better equipped for combat situ.ations. It also is not a case
where no reasonable person could have taken the decision whic!J
the Government have taken as regards the need for lowering
the age profile of the Commanding Officers or their exit after 2-
112 to 3 years to occupy positions which the Government have
created for the officers to occupy till they are considered for E
promotion to the next higher rank.[Para 47][466-G-H; 467-A-C]
K. S. Srinivasan vs. Union of India (UOI) 1958 SCR
1295:AIR 1958 SC 419; Chakradhar Paswan vs. State
of Bihar & Ors. 1988 (3) SCR 130:1988 (2) SCC 214;
Hara Bhupal vs. Union of India and Others 1997 (2) F
SCR 455:(1997) 3 SCC 561; S. I. Roop/al and Another
vs. Lt. Governor through Chief Secretary, Delhi and
others 1999 (5) Suppl. SCR 310:(2000) 1 SCC
644;State of U.P. & Ors. vs. Bharat Singh & Ors. 2011
(4) seR 525:(2011) 4 SCC 120; Food Corporation of G
India v. Kamdhenu Cattle Feed Industries 1992 (2)
Suppl. SCR 322:(1993) 1 sec 71;Union of India v.
Hindustan Development Corporation and Ors. 1993 (3)
SCR 128 : (1993) 3 sec 499:Punjab Co111111u!1icatio11s
Ltd. v. Union of India and Ors. (1999) 4 SCC 727: 1999
H
436 SUPREME COURT REPORTS [2016] 2 S.C.R.
A (2) SCR 1033;D1: Chanchal Goyal (Mrs.) v. Stute of
Rajasthan (2003) 3 SCC 485: 2003 (2) SCR ll2;Ram
Pravesh Si11gh v. Stute of Bihur (2006) 8 SCC 381: 2006
(4 ) Suppl. SCR 872; Sethi Auto Serrice Statio11 a11d
Anr. v. Delhi Developmem Authority and Ors. (2009) 1
SCC 180: 2008 (14) SCR 598;Confederation of Ex-
B
servicemen Association I'. Union of India (2006) 8 SCC
399:2006 (4) Suppl. SCR 872;State of Bihar and Ors.
v. Kalyanpur Cements Ltd. (2010) 3 SCC 274: 2010
(1) SCR 928;Monnet !spat and Energy Ltd. v. Union of
India and Ors. (2012) 11 SCC 1:2012 (7) SCR 644 -
c referred to.
Attorney General for New South Wales (1990) 64 Aus
LJR 327 - referred to.
Case Law Refeence
D 1958 SCR 1295 Referred to. Para 30
1988 (3) SCR 130 Referred to. Para 30
1997 (2) SCR 455 Referred to. Para 31
1999 (5) Suppl. SCR 310 Referred to. Para 31
E 2011 ( 4) SCR 525 Referred to. Para 31
1992 (2) Suppl. SCR 322 Referred to. Para 31
1993 (3) SCR 128 Referred to. Para 42
1999 (2) SCR 1033 Referred to. Para 43
F 2003 (2) SCR 112 Referred to. Para 44
2006 (4 ) Suppl. SCR 872 Referred to. Para 44
2008 (14) SCR 598 Referred to. Para 44
2006 (4) Suppl. SCR 872 Referred to. Para 44
G
2010 (1) SCR 928 Referred to. Para 44
2012 (7) SCR 644 Referred to. Para 44
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3208
of2015
H
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 437
From the Judgment and Order dated 02.03.2015 of the Armed A
Forces Tribunal, Principal Bench, New Delhi in Original Application No.
430 of2012
WITH
Civil Appeal Diary Nos. 11682 and I 0623 of2015
B
ManinderSingh, ASG, R. Balasubramanian, Nalin Kohli, Ms. Pujitha
Gorantla, Prabhas Bajaj, Santosh Kumar, R. S. Jena, B. V. Balaram
Das, Ms. Meenakshi Lekhi, Harish Pandey, Manish Kumar, Jitendra
Tripathi, Ms. Neela Gokhale, Gaurav Kumar, Devanshu Shanna, Ms.
Kamakshi S. Mehlwal, Ms. Sonia Mathur, Advs. with him for the
appearing pa1ties. c
The Judgment of the Cou11 was delivered by
T. S. THAKUR, CJI. I. These appeals under Section 31 of the
Armed Forces Tribunal Act, 2007 are directed against a judgment and
order dated 2"' March, 2015 passed by the Armed Forces Tribunal, D
Principal Bench, New Delhi, whereby Original Application No. 430/2012
filed by the Respondents has been allowed and policy circular dated 20'h
January, 2009 issued by the Government oflndiaquashed with a direction
to the Appellant-Union oflndia to consider the Respondents for promotion
to the rank of Colonel by creating supernumerary posts with effect from
the date the said Respondents were eligible for such promotion. Facts E
giving rise to the proceedings before the Tribunal and the present appeals
may be summarized as under:
2. The Respondents were commissioned into various Corps/
streams of the Indian Army after they successfully passed out from the
Indian Military Academy/Officers Training Academy. The initial allocation F
of the respondents to different Corps was based on parameters
prescribed for that purpose depending inter alia upon the number of
actual vacancies in Arms, Arms Support or Services, operational
commitments and requirements arising from new raisings. Merit of the
candidates, the need for an equal distribution of vacancies applying what
G
is described as 'Black Method' and the individual choice expressed by
the cadets were also some of the major factors that were taken into
consideration while making allocations.
3. It is common ground that there was no cha! lenge to the allocation
of cadets to Arms, Arms Support or Services at any point of time. It is
H
438 SUPREME COURT REPORTS [2016] 2 S.C.R.
A also not in dispute that four out of the five Respondents viz. Lt. Col.
P.K. Choudhary, Lt. Col. G.S. Dhillon, Lt. Col. A.K. Pandey and Lt.
Col. R.M.S. Pundir had opted for commission into Army Service Corps
(AMC) and none of them had opted either for Combat Arms or Arms
Support. Similarly, Lt. Col. Ajay Chawla-Respondent No.5 in this appeal
had given Army Service Corps as one of the options of his choice. The
B
respondents were accordingly allocated and have served in their
respective Corps and Raisings as Lt. Colonels, which rank they held at
the time of filing Original Application No.430of2012 in the Tribunal and
continue to do so at present.
4. Post-Kargil War, the Government of India constituted what
c was called Kargil Review Committee which was followed by a Committee
headed by Shri Ajay Vikram Singh ('the AVSC', for short) with a view
to explore ways and means for enhancing the operational preparedness
of the Indian Army in its fighting capabilities especially in Combat Arms.
The Committee comprised. apart from Shri Ajay Vikram Singh, a
D representative of the Ministry of Defence (Finance), Director General
(MP&PS),Army He<idquarters, Joint Secretary(G), Ministry of Defence
and several senior officers of the Indian Anny including Adjutant General,
Army Headquarters, Chief of Personnel, Naval Headquarters and Air
Officer-in-Charge Personnel, Air Headquarters. The Committee appears
to have conducted extensive deliberations and submitted a report
E suggesting both short term and long term measures that were, in its
opinion, necessary for restructuring of the Officers' Cadre of the Army.
The Committee recommended that although the report primarily focused
on the restructuring of the Officers' Cadre of the Army, the same will be
applicable in an equal measure to the Navy and theAir Force who could
F work out their service specific requirements including additional vacancies
required at various ranks on operational/functional grounds. While we
shall deal with the recommendations made by the Committee in greater
detail in the later part of th is judgment, we may point out that one of the
significant recommendations which the Committee made to the
Government was about the lowering of age profile of the Officers in the
G Indian Army. For instance, instead of existing age profile of 41-42 years
for Colonels the Committee recommended lowering of the age profile to
36-37 years. Similarly, for Brigadiers the Committee recommended an
age profile of 44-45 years instead of 50-51 years at present. The age of
Major Generals was profiled at 51-52 years as against 54-55 years under
H the existing system. The age of Lieutenant Generals was, according to
UNION OF !NOIA v. LT. COL. P. K. CHOUDHARY 439
[T. S. THAKUR, J.]
the Report, profiled at 55-56 years instead of 56-57 years under the A
existing system. The lowering of age profile was considered by the
Committee to be necessary for enhancing the optimal combat
effectiveness of the Army. Tu achieve that objective, the Committee
recommended creation of 1484 additional vacancies in the ranks of
Colonel out of which 400 vacancies were to be released in the first year
B
while the another 300 vacaucies were to be released in the second year
after an annual review. The implementation of the recommendations
had to be progressive, coordinated and corroborated for the desired results
to flow for the benefit of the Army.
5. The appellants' case is that the recommendations made by the
AVS Committee were accepted by the Government and 1484 additional
c
vacancies in the rank of Colonel were sanctioned with a view to lowering
the age of Commanding Officers in combat and combat support arms
resulting in an increased upward mobility of the Officers Cadre. The
additional vacancies were to be released in two phases spread over a
period of four years from 2004 to 2008. D
6. It is common ground that in the first phase, the Government
released 750 vacancies, out of the newly created 1484 vacancies, in the
rank of Colonel by an order dated 21" December, 2004. These vacancies
were sanctioned by upgradation ofappointments in the rank of Lt. Colonel
to Colonel in a phased manner.spread over a period of two years i.e. E
2004-2005 and were distributed amongst Arms, Arms Support and
Services on a pro-rata basis. The result was that not only did the
additional vacancies become available to Arms and Arms Support but
the same were allocated even to those serving in Services like ASC,
AOC and EME. Thus far, there was no difficulty as officers serving in
Arms, Arms Support and Services in different Corps of the Army were F
all equally benefitted by the fresh creation. The problem started with
the release of another 734 vacancies in the second phase by an order
dated 3" November, 2008. These additional vacancies were sanctioned
by effecting upgradation in a phased manner spread over a period of
five years and were directed to be allocated on what is described as G
"Command Exit Model .. which the Government oflndia claimed was
in consonance with the functional and operational requirements of the
Army.
7. Aggrieved by the denial ofa pro-rata share in the 2"' tranche
of the additional vacancies released by the Government, officers like the
H
440 SUPREME COURT REPORTS [2016] 2 S.C.R.
A respondents who are serving in the Arms Support and Service Corps of
the Army, filed Original Applications No. 430 of2012, 77 of2014 and
147 of2015 before the Armed Forces Tribunal, Principal Bench, New
Delhi to challenge the Government's policy dated 29'" January, 2009 on
the ground that the same was discriminatory, arbitrary and violative of
fundamental rights guaranteed to them. They prayed for quashing of
B
the policy besides a direction to the Government of India to allocate
vacancies in the rank of Colonel to each Corps on pro rata basis and
convene Special Boards for promotion of the eligible Officers to such
posts. The respondents also prayed for a direction to the Union of India
to grant to them 'Ante-Dme' seniority and arrears of pay and allowances
c from the date an officer immediately junior to the said respondents in the
rank of Lt. Colonel serving in Arms and Arms Support Units was granted
his promotion.
8. The Appellant-Union oflndia contested the claim made by the
respondents and argued that the recommendations made by the AVS
D Committee were limited to Officers serving in the Arms and Arms Support
and specifically left out services from their purview. It was also argued
that the Government of India had approved and accepted the
recommendations made by the AVS Committee and sanctioned 1484
additional vacancies specially created for allocation on "Command Exit
Model" to Arms and Arms Support Units for whose benefit such new
E
vacancies were created. The allegation that the policy formulated by
the Government or the "Command Exit Mode/" for allocation of
vacancies was discriminatory and/or arbitrary was stoutly denied.
9. By its order dated 2'' March, 2015 the Armed Forces Tribunal,
Principal Bench, New Delhi has allowed the Original Application(s) filed
F by the respondents and quashed Government oflndia policy dated 21"
January, 2009 with the direction that the Government of.ndia shall create
supernumerary posts so that the additional vacancies so created are
allocated to all the three streams on a pro ruta basis. The present appeal
under Section 31 of theArmed Forces Tribunal Act, 2007 calls in question
G the correctness of the judgment and order as already noticed above.
l 0. We have heard learned counsel forthe parties at considerable
length who have taken us through the judgment and order passed by the
Tribunal and the documents placed on record in support of their respective
versions. The following questions fall forour determination.
H
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 441
(T. S. THAKUR, J.]
1. Did the AV Singh Committee recommend lowering of A
age profile and consequent creation of additional
vacancies for all the three streams viz. Arms, Arms
Support and Services or were the recommendations
limited to Arms and Arms Support only?
2. Were the recommendations made by the AV Singh B
Committee regarding the need for creation of
additional vacancies and their allocation on
"Command Exit Model" accepted by ·the Central
Government? If so, what is the effect of allocation of
the first tranche of 750 vacancies by the Army
Headquarters o·n pro rata basis among all the three c
streams?
3. Whether there was any illegality, irregularity or
unfairness in the matter of allocation of vacancies to
Arms Support on "Command Exit Model" principle?
D
4. Do Officers serving in Arms, Arms Support and
Services constitute a single cadre?
5. In case the answer to the question No. 4 is in negative,
is there any legitimate expectation for officers
commissioned into the Indian Army in a given batch E
that in the matters of their future promotion the
Government will maintain batch parity among officers
allocated to Arms, Arms Support and Services.
Re.: Question No. 1
11. On behalf of the respondents it was argued by Ms. Meenakshi F
Lekhi, Advocate that the recommendations made by the AVS Committee
were applicable to officers serving in all the three streams of the Army
viz. Arms~ Arms Support and Services and that the creation of 1484
additional vacancies of Colonels was meant to benefit all such officers
regardless of the Corps in which they were commissioned. Support for
G
that submission was largely drawn by learned counsel from the AVS
Committee report and the fact that the 750 vacancies sanctioned and
released in the first tranche were distributed pro-rata among all the
formations. It was urged that having given to officers serving in Arms
Support and Services, their share of the newly created vacancies on a
H
442 SUPREME COURT REPORTS (2016] 2 S.C.R.
A pro-rata basis and denial of a similar share out of vacancies sanctioned
in the second phase was unjustified and discriminatory.
12. On behalf of the Appellant-Union of India it was contended
by Mr. '.vlaninder Singh, ASG, that the recommendations made by the
AVS Committee favoured creation of additional vacancies only for Arms
B and Arms Support leaving out 'Services' like ASC, AOC and EME. It
was argued that the recommendations were accepted and the vacancies
sanctioned for being filled-up on 'Command Exit Model' which model
constituted the very basis of the report submitted by the Committee.
The fact that 750 vacancies created in the first phase were distributed
among Arms, Arms Support and Services on a pro-rata basis did not,
c according to Mr. Singh, by itself entitle officers serving in 'Services' to
claim a pro-rata share in the second tranche of vacancies created by
the Government. lfthe pro-rata allocation to services was not in tune
with the recommendations made by the Committee and the decision
taken by the Government, the same could not create any right or equitable
D claim in favour of those who had benefitted from the mistake earlier
committed argued the learned counsel.
13. The entitlement to a share in the newly created vacancies
depends upon whether the Committee had recommended lowering of
age profile for officers serving in the 'Services' stream of the Army that
E is because the creation of additional vacancies was meant to achieve a
purpose - viz. lowering of age profile of the Commanding Officers.
14. The answer to the question whether the Committee
recommended lowering of age profile and creation of additional vacancies
for Arms, Arms Support and Services, can in turn,,be answered only by
F reference to the report of the Committee. We have been taken through
the report over and over again by learned counsel for the parties, but,
we find it difficult to accept the submission made by Ms. Lekhi that the
recommendations were for the benefit of all officers and streams across
the board. A careful reading of the report would show that the Army
Headquarters had made its presentations to the Committee followed by
G a series of meetings to discuss and deliberate upon each one of the
issues referred for examination to the Committee. The report made a
reference to the Army Headquarters Paper on Restructuring of the
Officer Cadre, which, in turn, dealt with the issue of organisational
imbalances arising out of steep pyramidical structure of the cadre and
H the issues relating to individual aspirations left unfulfilled due to inadequate
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 443
[T. S. THAKUR, J.]
career progression, disparity with Class-A civil services and harsh service A
conditions. The paper presented by the Army Headquarters also suggested
some measures for resolving the issues which included reducing the
large base in the cadre structure by making a dual-stream officer cadre
one having a lean regular cadre and the other a support cadre of Short
Service Commission Officers, reduction in the ages of Battalion and
B
Brigade Commanders through early promotion by increasing the cadre
strength, upgradation of Sub Unit Commanders to the rank of Lt. Colonel.
The Army Headquarters also proposed grant of early promotions in the
first three ranks viz. Captain, Major and Lt. Colonel, promotion to the
grade of Colonel on time-scale basis after 23 years of service for
superseded officers and grant of Brigadier's pay to all Colonels in the c
last year of their service to entitle them to Brigadier's pension. The
report submitted by the committee outlined the issues raised before it
and identified two inter-related issues which were, in its opinion, at the
core of the whole problem viz., high age profile and cadre stagnation.
15. The Committee also took note of the recommendation made D
by the Kargil Review Committee, for lowering the age profile of command
elements. The Committee noted that in comparison to other Armies like
those of Pakistan, China, UK, Germany and Israel, the Indian Army had
a higher age profile which adversely affected their physical alertness
and operational preparedness. The Committee noted that Officers beyond
the age of 50 years find it difficu ltto sustain mental and physical alertness E
at high altitude and hazardous and hostile topography along the Line of
Control where a Brigade Commander is required to serve for effective
command and control. This was true even about Battalion Commanders
who are required to move during operations with their units for effective
command and control. The Committee noted that for Battalion F
Commanders even a higher degree of physical fitness and alertness is
required which is difficult since Indian Army Officers assume command.
atthe age of 41-42 years and continue till 44-45 years of age in comparison
to those in Pakistan and Chinese Armies where the age of the Battalion
Commander, on an average, is about 35 and 40 years respectively. The
Committee, therefore, took the view that the officers of Combat Arms G
should assume command at the age of36-37 years by which time they
would have attained the requisite experience and the ability to finish
their command tenure before attaining 40 years of age. The Committee,
then, took stock of the total Units commanded by Colonels in the Indian
Army and the desirable tenure for each type of Unit considered necessary H
444 SUPREME COURT REPORTS (2016] 2 S.C.R.
A to maintain optimum operational effectiveness. The Committee, at the
same time, noted the possibility of re-command in respect of certain
Amis and Services which have some Units permanently located in peace
areas or where the Unit Commanders are not physically required to
operate in combat/difficult terrain. Taking note of the structures, the
Committee determined that the approximate number of Colonels that
B
would be required every year is 406. The details are set out in a chart
forrning part of the report which may be gainfully extracted at this stage:
s. !<\rm/Service Number ol Desired Period officer Number of
No. U1tits fenure in command Colonel
(Yea rs) (Years) required
c ner' ear
(a) <\rmoured 62 3 3 Norn- 21
::.'.oros command
lhl nfa ntrv 448 2.5 2.5 -do- 179
(c) \1ech anised 39 3 3 -do- 13
nfa ntrv
D Id) •rtillerv 210 I 3 3 -do- 70 354
(e) <\O 50 0 2-3 4 Possibility 13
3 of re-
8 command
(I) En!!ineers 132 2-3 4 -do- 33
(~\ >i!mals 97 2-3 4 -do- 25
E lh) '\SC 87 2-3 5 -do- 17
Ii) '\OC 60 2-3 5 -do- 12
(j) li:ME 114 2-3 5 -do- 23
Total 1299 406
16. The Committee, then, picked-up 354 C@lonels for Armoured
F
Corps, Infantry, Mechanised Infantry, FieldArtillery,Air Defence Artillery,
Engineers and Signals, which were described by the Committee as
operational formations and which, in the opinion of the Committee, called
for reduction in the age profile for the Unit Commanders. Para 20 of
the report makes the Committee's intention manifest when it says:
G .. 20. Out of the overall requirement of ./06 Colonels every
year as per the table above, there would be a need of 35./
Colonels for Armoured Corps, Infantry, Mechanised Infamry,
Field Artillery, Air Defence Artillery, Engineers and Signals,
which are operational formations, keeping in view that the
H need to bring down age profile of unit commanders is primarily
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 445
[T. S. THAKUR, J.]
for the operational units. In the above table, for the arms A
listed for Ser (a) to (d) it Is desirable that the officers' have
one command tenure, as a younger age profile is required in
consonance with the operational needs. The rest could get
more than one tenure for cm!1mand in the Colonels rank. '.'·
(Emphasis supplied) B
17. The Committee, then, examined the number of vacancies
required in the rank of Colonels and Brigadiers and came to the conclusion
that a total of374 Colonels and 143 Brigadiers vacancies were available
every year exclusively in the Arms, whereas, there was a requirement
of vacancies for 354 Colonels and 129 Brigadiers for the Arms. These c
vacancies were found to be adequate to keep the whole cadre structure
in a state of equilibrium, but, that equilibrium will be at the current high
age profile. The Committee said:
"......... If we look only at the Arms, which farm a subset of
the whole cadre, and towards which the age reduction exercise D
is principally directed, we find that approximately I 43
Colonels and 31 Brigadiers qre promoted to the next higher
rank every year and 241 and 112 respectively exit each year
on retire11ient. Thus, a total of 374 Colonel's and 143
Brigadier's vacancies are available every year exclusively in
the Arms, whereas there is a requirement of vacancies for E
354 Colonels and 129 Brigadiers for the Arms as per tah/e at
paras 17 and 19. These vacancies are adequate to keep the
whole cadre structure in a state of equilibrium, but that
equilibrium will he at the current high age profile. Therefore,
a mechanism needs to be found to .bring the cadre structure, F
especially of the o·lrms, to the lower age profile as recommended
in Para 13. "
18. The Committee, then, proposed short-term and long-term
measures. Applying the parameters for short term and Long term measures
proposed by the Committee, the Committee, in para 36 of its report,
G
worked out the vacancies required for. Colonels in Armoured Corps,
tnfantry, Mechanised Infantry, Artillery, AD, Engineers-and Signals and
Brigadiers in the GeneralCadre, Field Artillery and Engineers.
"36. Based on these parameters, vacanci~s that would be
·required for Colonels in Armoured Corps, infantry,
H
446 SUPREME COURT REPORTS [2016] 2 S.C.R.
A Mechanised Infantry, Artillery, AD, Engineers and Signals
and Brigadiers in the General Cadre, Field Artillery and
Engineers, if age profile is to be brought down as per para
I 3 are given in the table below. The figures reflected in the
table do not include vacancies for Colonels in ASC. AOC.
EME and other Minor Corps whose age profile can be higher
B
thanJhat required to operate under combat conditions.
Service Age Colonel Brigad- Major Lieute-
er :;eneral nant
General
c 15 37 354 - - -
16 38 354 - - -
17 39 354 - - -
18 40 354 - - -
19 41 354 2832 - - -
D
20 42 354 - - -
21 43 354 - - -
22 44 354 - - -
23 45 225 129 - -
24 46 225 129 - -
25 47 225 129 774 - -
E 26 48 225 129 - -
27 49 225 2025 129 - -
28 50 225 129 - -
29 51 225 77 52 -
30 52 225 77 52 -
31 53 225 77 385 52 60 -
F 32 54 - 77 52 -
33 55 - 77 52 -
34 56 - - 31 12 21
35 57 - - 31 21
36 58 - - 21
G
37 59 - - - - 21
38 60 - - -
Total in each 4857 1159 322 84
rank
(Emphasis supplied)
H
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 447
[T. S. THAKUR, J .]
I 9. The Committee finally concluded that out of the requirement A
of vacancies projected by Army He_adquarters, the Government could
release in the first two years 700 vacancies as against 1484 recommended
by it. The additional vacancies recommended for creation without Peel
Factor and those with Peel Factor over a period of 5 years were indicated
by the Committee in the chart which is as under:
B
s. Rank Additional Release of VacanC"ics Vacancies
No vacancies vacancies O\'CI rec om men recoinmend
rcqu ired fi\'C years with dcdbythc ed by the
(\vithout Peel Peel F:1ctor as .: ommittcc Com mittcc
Factor) to projected by for rele11sc for release
bring dO\VD AHQ int'' year in the 2nd
age 11rofilc as year at c
re comm en de annual
d bv Al!Q revie\v
(a) Lieutenant 29 20 05 03
General
(b) J\1ajor 159 75 10 08
General
;(cl Brie.adier 496 222 75 35 D
I (d) Colonel 2202 1484 400 300
20. A careful reading of the report especially paras 20 and 36
extracted above leaves no manner of doubt that the Committee
emphasized the need for bringing down the age profile of Unit
Commanders in Operational Units only. The Committee recognized E
Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD, Engineers
and signals as operational formations leaving out A SC, AOC, EME and
other Minor Corps. The report clearly suggests that the additional creation
of 1484 vacancies in the rank of Colonels did not take into account
vacancies for Colonels in ASC, AOC, EME and other Minor Corps. As F
a matter of fact, the report very clearly states that the age profile of
such Service formations for Minor Corps could be higher than that
required to operate in the combat conditions. We have, in that view, no
hesitation 'in holding that there was neither any recommendation regarding
reduction in age profile of Unit Commanders in ASC, AOC and EME
nor was there any recommendation for creation of additional vacancies G
to benefit officers serving in those formations. The argument that the
Committee had recommended creation of 1484 vacancies for the benefit
of Officers serving in all formations is, therefore, without any basis and
is accordingly rejected. Additional vacancies were specifically
recommended for the operational formations mentioned above and were H
448 SUPREME COURT REPORTS (2016] 2 S.C.R.
A meant to be allocated to those formations depending upon the
recommended tenure of the Commissioning Officers in those formations
and the possibility of re-command. Inasmuch as ASC, AOC, EME
Officers did not benefit from the creation of additional vacancies, there
was neither any violation of the recommendations made by the AV Singh.
Committee t)QL was the distribution of the additional vacancies
B
discriminatory as alleged. Question No. I is answered accordingly.
Re: Question No.2
21. The aggrieved officers appear to have argued before
the Tribunal that the recommendations made by AV Singh Committee
c ~egarding creation of additional vacancies for allocation on ..Command
Exit Model" were never accepted by the Central Government. In support
of that submission they have largely relied upon the fact that the first
tranche of 750 vacancies released by the Government were allocated
by the Army Headquarters to Arms, Arms Support and Services on a
pro-rata basis. This, they contended, would not have been possible if
D the Government had actually accepted the ..Co111111a11d Exit Model"
for allocation of the newly created additional vacancies. The inference,
according to them, is that "Co111111a11d Exit Model" was never accepted
as a principle by the Government for allocation of additional vacancies
created pursuant to the recommendations made by the AV Singh
E Committee.
22. On behalf of Government oflndia it is, per contra, contended
by Mr. Maninder Singh that the Government had unequivocally accepted
the recommendations of the Committee including the "Co111111a11d Exit
Model" for allocation ofthe newly created vacancies. Reliance in support
F of that contention was placed by Mr. Maninder Singh upon the relevant
official record which was produced before us for perusal. Reliance was
also placed by him upon an affidavit filed by the Government pursuant to
our order dated 22"' April, 2015 in which this Court demanded a specific
answer from the Government as to whether the "Co111111a11d Exit Model"
for allocation suggested by AV Singh Committee had been accepted by
G it. We have, in light of official record produced before us and the specific
assertions made by the Government in the affidavit filed on its behalf, no
hesitation in holding that the recommendations of the AVS Committee
regarding allocation of newly created vacancies being made on
"Command Exit Model" was accepted by the Government. It is trite
H that the Government and the Government alone could say whether the
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 449
[T. S. THAKUR, J.]
recommendations of the Committee were accepted by it. The A
Government have answered that question in the affirmative not only on
the basis of a statement made at the bar but also on the basis of
contemporaneous official record and the affidavit filed by a responsible
officer acting for and on behalf of the Government. The first part of the
question viz., whether the recommendations regarding "Command Exit
B
Model" for allocation of vacancies was accepted by the Government
does not, therefore, detain us any further.
23. The second part of the question, however, calls for some
examination. In the course of hearing and in our order dated 22"' April,
2015 we had specifically invited the response of the Government as to
the reasons for allocation of the vacancies on pro rata basis if the
c
Government had accepted "Command Exit Model" as the basis for
such allocation. We had also asked the Government to explain whether
any action had been taken by the Government for breach of the said
principle by the Army Hea;lquarters while making the allocations. Mr.
Maninder Singh fairly conceded that the allocation of 750 vacancies D
comprising the first tranche was made by the Army Headquarters in
breach of "Command Exit ,\1odel". But such breach did not either call
for any action or withdrawal of the benefits drawn by the officers who
were beneficiaries of such allocation. Mr. Maninder Singh contended
thatsince the allocation stood made and the officers found eligible for
promotion stood promoted, it was neither advisable nor feasible to E
withdraw the benefit so availed by the officers by reversing the process
for a fresh allocation:One of the reasons which, according foMr. Singh,
made the breach ii1consequential, was the fact that the imbalance, if
any, could be corrected partly if not wholly when the second tranche of
734 vacancies were released for allocation on "Command Exit Model". F
It was also contended by Mr. Maninder Singh that the Government had
actually set off the excess allocation made in the first tranche while
allocati11g the second tranche of 734 vacancies on "Command Exit
Model". This adjustment/set off may have remained confined to Arms/
Arms Support only but the mischief that had occurred earlier had been
.corrected no matter qua those two streams' only. Allocatio·n made on G
pro rata basis to services was not, however, withdrawn according to
Mr. Maninder Singh, but no further allocations were made in the second
tranche of vacancies as the recommendations made by the Committee
never intended to benefit the services either in.the matter of reducing
H
450 SUPREME COURT REPORTS (2016] 2 S.C.R.
A the age profile of Commanding Officers or in the matter of creation of
additional vacancies for them.
24. That 750 vacancies comprising the first tranche released by
the Government were allocated on a pro rata basis contrary to the
recommendations and the decision of the Government cannot be and
B has not been denied. The question is whether the said allocation would
by itself undo either the recommendations made by the Committee or
the decision taken by the Government to allocate the newly created
vacancies on "Command Exit Model" principle. Our answer to that
question is in the negative. Just because allocation of vacancies in the
first tranche was made by the Army Headquarters ignoring the
c recommendations of the Committee and the Government decision cannot
possibly result in the reversal of the Government decision nor can it
negate the Command Exit Model. So also, simply because the earlier
allocation was not reversed as the officers had picked up their ranks
does not affect the binding nature of the Government decision that the
D allocation should be on "Command Exit Model".
25. Having said that, the adjustment/set off of the vacancies so
allocated against the entitlement of the arms and arms support in the
second tranche does not appear to be justified. If the Army Headquarters
committed a mistake in allocating vacancies on a pro rata basis contrary
E to the recommendations and decision of the Government, any such error
cannot adversely affect officers serving in arms and arms support who
may have been entitled to a higher number of vacancies in the second
tranche but who were deprived of such allocation on account of the
error in the previous allocation made on pro rata basis. We pointed out
this aspect to Mr. Maninder Singh and asked him to take instructions
F whether the Government was willing to correct the mistake arising out
of such adjustment/set off or justify the same on any juristic principle.
To the credit of Mr. Maninder Singh we must mention that he has on
instructions fairly conceded that the second tranche of 734 vacancies
could and ought to have been allocated on "Co111111a11d Exit Model"
G principle without taking into consideration the excess, ifany, allocated to
the arms and the arms support on pro rata basis in the first tranche. Mr.
Maninder Singh on that basis also took instructions to file before us a
statement showing the number of vacancies that would have ordinary
fallen to the share of arms support corps if the second tranche of 734
vacancies were allocated without making any adjustment of vacancies
H previously allocated. We shall turn to that statement when we take-up
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 451
[T. S. THAKUR, J.]
Question No. 3 for discussion, but, before we do so we need to conclude A
Question No.2 by holding that the recommendations of the AVS
Committee regarding allocation of additional vacancies on "Co111111a11d
Exit Model" basis had been accepted by the Government and that
allocation of the first tranche of750 vacancies by the Army Headquarters
on pro rata basis contrary to the Government decision and the
B
recommendations of the Committee did not affect the validity of the
decision nor did it amount to reversal ofthe said decision or its d.ilution.in
any manner. Question No.2 is answered accordingly.
Re: Question No.3
26. A two-fold argument was advanced on behalf of the c
respondents on the question ofunfairness in the matter of allocation of
vacancies. Jn the first place, it was contended that while allocating
vacancies to arms support, the Government had set off/adjusted ·the
vacancies which were allocated no matter erroneously to arms support
on a pro rata basis. This adjustment was uncalled for as the excess
allocated to arms support on pro rata principle was because of an error D
committed by the Government or the Army J Jeadquarters which could
not prejudice the officers who are otherwise eligible for promotion against
the vacancies, due on Command Exit principle. In other words, allocation
of 734 vacancies comprising the 2"' tranche shou Id have been made
without any adjustment based on the earlier pro rata allotment, meaning E
thereby that the deficit proportionate to the number that has been set
off/adjusted should be made up by fresh creation.
27. The second limb of the challenge is whether the Government
was justified in prescribing a command tenure of four years for Arms
Support officers. The argument was that if the command tenure is F
reduced to two years as in the case of 'arms', the number of vacancies
required by arms support would increase. We shall deal with the two
aspects ad serfatfm.
28. The allocation of734 vacancies, comprising the second tranche,
when made on standalone basis, (without any adjustment of the excess G
allocated in the first tranche) is the only right method for allocation in our
opinion. The excess allocated in the first tranche, against which officers
who may not have otherwise picked up the higher rank were promoted,
cannot possibly deny the rightful due to those who would be entitled to
claim promotion against the vacancies in the second tranche. The
respondents are, therefore, right in arguing that the second tranche should H
452 SUPREME COURT REPORTS [2016] 2 S.C.R.
A be allocated on a standalone basis. This exercise has been done by the
appellant and the result thereof.filed by Mr. Maninder Singh in the form
of a statement to which we shall presently advert. But before we do so,
we may as well deal with the second aspect of the matter, namely
whether the stipulation of a command tenure of four years for Arms
Support officers can be said to be so arbitrary as to call for interference
B
by a court or tribunal in exercise of their power of judicial review. We
must; at the outset, say that command tenure is a policy matter on which
the scope of judicial review is extremely limited. What should be the
tenure of a commanding officer for Arms or Arms Support is for defence
experts or for the Government to determine on expert advice having
c regard to a variety of factors. It is neither necessary nor proper for any
court or tribunal to sit in judgment over any such decision leave alone,
substitute the same by its own decisLon. If the Government has upon
consideration of the nature of duties and the need for battle preparedness
of the force has taken a decision to prescribe a tenure ofupto four years
for officers serving in Arms Support, it will be difficult to fault the same
D
in the absence of any patent perversity in any such decision especially
when no breach of any fundamental or other right of any one complaining
against the prescription of such a tenure is demonstrated. No such
infirmity has been pointed out to us in the case at hand. Having said
that, we must add to the credit of the appellant and their counsel that the
E question of a shorter tenure was considered by them favourably at our
suggestion only to avoid any frustration or disgruntlement among officers
serving in arms support. Mr. Maninder Singh, on instructions, submitted
that the tenure of commanding officers in arms support shall for purpose
of creation/allocation of vacancies, be taken as three years instead of
four years. The Government has on that basis calculated the number of
F
vacancies that would be additionally due to arms support on Command
Exit Model as under:
Number of vacancies due to 1. Actual Deficit
AAD, 2. Engin.eers, 3. Signals distribution
out of II tranche of 734 posts made in 2009
G taking the tenure to be 3 with tenure
years instead of 4 years taken to be 4
years
AAD 31 7 24
Engineers 79 17 62
Signal 66 11 55
H Total 141
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 453
[T. S. THAKUR, J.]
29. It follows from the above that to the extent of a deficit of 141 A
vacancies in the cadres of Colonel to Arms Support (Artillery, AAD,
Engineers and signals) an unfair distribution of the vacancies from out
of the second tranche were released by the Government. It is, at the
same time, heartening to note that the Government have not taken an
adversial stand nor have the Governmeilt opposed the undoing of the
B
injustice caused to officers who were eligible for promotion in the year
2009 but were not promoted on account of lesser number of vacancies
allocated to Arms Support. On the contrary Mr. Maninder Singh
appearing for the Union submitted that the Government would do anything
to prevent any frustration or disenchantment among the officers serving
in the army by creating 141 additional posts in the cadre of Colonel for c
allocation to Arms Support so that the same are utilized appropriately for
promoting officers eligibJe·for such promotion. Mr. Singh, however,
suggested a method ofutilization of the posts so created over a period of
ten years to avoid an inequitable distribution and also to minimize the
scope of any of the batches getting any undue benefit at the cost of
D
other batches. Mr. Maninder Singh has also highlighted problems of
implementation like managing of the cadre in case the utilization of the
additional vacancies is to be done within a shorter time frame of say five
years. Having given our anxious consideration to the submissions made
at the bar, we are of the view that the additional 141 vacancies which
ought to have been allocated to Arms Support in the year 2009 were E
unfairly denied to them. It has taken the aggrieved officers and legal
process considerable time to have the said unfairness and injustice
reversed by creation of additional vacancies. These vacancies shall,
therefore, be taken to have been created as in the year 2009 and
promotions against the same made from out of officers who were eligible
F
for such promotion as in that year. It is not in dispute that the Selection
Board that deals with such promotions has empanelled officers based
on their inter se merit and suitability. All that is, therefore, required is to
operate the said merit list for utilization of the additional vacancies now
being created. In other words, the additional creation shall, for all intents
and purposes, be deemed to have been available for being filled-up as in G
the year 2009 but to be actually filled-up in 5 years between 2009-2014.
Those who pick-up the next rank against the said vacancies shall have
the benefit of retrospective seniority as is the practice in the Army but
such seniority on appointment shall not entitle them to the benefit of
higher pay-scale or arrears against the post to which they are promoted.
H
454 SUPREME COURT REPORTS (2016] 2 S.C.R.
A In other words, financial benefits shall accrue to officers promoted
pursuant to the creation of additional vacancies only with effect from
the date they are actually promoted.
Question No.3 is answered accordingly.
Re: Question No.4
B
30. We have while dealing with question No.I already held that
AV Singh's Committee did not have officers serving in the "services
stream" namely (ASC, AOC & EME) in view while it recommended
lowering of the age profile of Commanding Officers and creation of
additional vacancies. The recommendations were limited to Arms and
c Arms Support only. Even so the question is whether the creation of
such additional vacancies would ensure the benefit for officers serving
in the services on account of what such officers claim to be 'one cadre'
principle. The contention urged on behalf of the respondents was that
no matter some of the respondents belong to services, they are a part of
D the same cadre and were, therefore, entitled to a pro rata share out of
the newly created vacancies at par with those serving in Arms and Arms
Support. Reliance in support ofthat contention was placed upon a circular
dated 12'h November, 1987 issued by the Military Secretary's Branch.
There is, in our view, no merit in the submission urged on behalf of the
respondents that officers allocated to Arms and Arms Support and
E Services comprise a single cadre for purposes of promotion. We say so
because transferability which is one of the essential attributes of posts
comprising a single cadre is absent in the case of service officers on the
one hand and those serving in Arms and Arms Support on the other.
This Court has in several decisions examined what would constitute a
F common cadre, and held that merely because the incumbents of two
posts are placed in the same scale of pay does not determine whether
such posts constitute a cadre (see) K. S. Srinivasan vs. Union of
India (UOI) AIR 1958 SC 419. In Chakradhar Paswan vs. State of
Bihar & Ors. 1988 (2) SCC 214, this Court declared that the term
cadre has a definite legal connotation in service jurisprudence and that
G interchangeability of the incumbents is one of the attributes of a cadre
just as similarity of the responsibilities and pay may be indicative of all
posts being in the same cadre. This Court observed:
"8. ... ... In service jurisprudence, the term "cadre" has a
definite legal connotation. In the legal sense, the word "cadre"
1-1 is not Jynonymous with 's~rvice '. Fundamental Rule 9(4)
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 455
[T. S. THAKUR, J.]
defines the word ""cadre" to mean the strength of a service or A
part of a service sanctioned as a separate unit. The post of
the Director which is the highest post in the Directorate, is
carried on a higher grade or scale, while the posts of Deputy
Directors are borne in a lower grade or scale and therefore
constitute two distinct cadres or grades. It is open to the
B
Government to constitute as many cadres in any particular
service as it may choose according to the administrative
convenience and expediency and it cannot be said that the
establishment of the Directorate constituted the formation of
a ioint cadre of the Director and the Deputv Directors because
the posts are not interchangeable and the incumbents do not c
perform the same duties. carry the same responsibilities or
draw the same pay. The conclusion is irresistible that the posts
of the Director and those of the Deputy Directors constitute
different cadres ofthe Service .... "
(Emphasis supplied) D
31. So also in M. Hara Bl1upa/ vs. Union of India and Otlters
(1997) 3 SCC 561, this Court found that interchangeability is a necessary
element of the posts being in the same cadre. In S. I. Rooph1/ and
Anotlter vs. Lt. Governor through Chief Secretary, Delhi and otlters
(2000) J'SCC 644, this Court was dealing with "equivalence of posts" E
and held that equivalence of two posts is not judged by the sole factor of
equal pay and identified four factors in that regard namely (i) the nature
and duties of the post, (ii) the responsibilities and powers exercised by
the officer holding a post; the extent of territorial or other charge held or
responsibilities discharged; (iii) the minimum qualifications, if any,
prescribed for recruitment to the post; and {iv) the salary of the post. In F
State of U.P. & Ors. vs. Bharat Singh & Ors., (2011) 4 SCC 120,
this Court speaking through one of us {Thakur, J.) held that transferability
or interchangeability of one incumbent to another in the cadre are essential
attributes of a common cadre.
32. Applying the above test to the case at hand we have no G
hesitation in holding that officers serving in the SeI"Vice stream of the
Army do not constitute a single cadre with officers serving in Arms and
Arms Support, no matter they may all be drawing the same salary, holding
the same rank, wearing the same uniform and serving the same employer
with similar service benefits. The true position is that allocation ofofficers H
456 SUPREME COURT REPORTS [2016] 2 S.C.R.
A to different Arms and Services puts them in distinct cadres, with the
result that those comprising a particular cadre will have his or her
promotional avenues available against the posts comprising that cadre
alone notwithstanding the fact that the Government of India may, as a
policy, attempt to ensure as faras possible that officers of a given batch
pick up their ranks around the same time or within a reasonable span of
B
their counterparts in other cadres or that the disparity in the time frame
for promotion is removed by making promotions retrospective from the
dates officers in the other cadre have been promoted. Reliance by the
respondents upon Circular dated 12'" November, 1987, is in our view
misplaced. That circular, it is evident, from a reading of the same was
c issued in connection with the implementation of the Fourth Pay
Commission to remove a certain doubt regarding the interpretation of
the term "cadre" as applicable to anny officers. It was in that context
that the expression "cadre" has been explained in the circular by reference
to the method of allocation to Arms and Services, and similarity of other
conditions of service. The circular, it is evident, does not constitute a
D
statement of law much less can the exposition of the term 'cadre' as
given therein operate as estoppel against the union. The circular it is
evident is an internal communication and has been issued in a totally
different context. We, therefore, have no difficulty in answering question
No.4 in the negative and holding that officers in service streams do not
E constitute a single cadre with those serving in Arms and Arms Support
for purposes of allocation of additional vacancies created pursuant to
the recommendations made to the Government by AV Singh Committee.
Re: question No. 5
33. We have, while answering question No. 4 above, already held
F that officers in different streams constitute different cadres. Since
however, the argument based on legiiimate expectation is pitched on a
broader principle, we need to recapitulate on-the risk of repetition that
··the Indian Anny comprises the following 11 major streams: (I )Annou~d
Corps, (2) Infantry, (3) Mechanised Infantry, (4)Artillery (5) Air Defence
G (AD) (6) Engineers, (7) Signals (8) Army Service Corps (9) Army
Ordnance Corps (10) Electronical and Mechanical Engineers and (11)
Other Corps including Intelligence, Aviation and other Minor Corps. The
first of these three streams namely Armoured Corps, Infantry, Mechanised
Infantry are called as 'Combat Arms' which particip:i,te in direct tactical
land combat in a war with requisite weaponary. The next four namely
H
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 457
[T. S. THAKUR, J.]
Artillery, Air Defence (AD), Engineers, and Signals are commonly A
known as 'Combat Support Arms' while Army Service Corps (ASC),
Army Ordnance Corps (AOC), Electronical and Mechanical Engineers.
{EME) and other minor corps are known as 'Services'. As noticed in
the beginning of the judgment, the newly selected Gentlemen Cadets get
inducted as Commissioned Officers on successful completion of their
B
training from the training academy. The Defence Service Regulations,
Regulations for the Army govern the first appointment of the
Commissioned Officers. Para 63 of the said Regulations reads:
·· .... 63. First Appoinment ~ (a) On first appointment to a
permanent commission in the Regular Army, officers will be
allocated to different corps. They will be required to do such
c
basic training or attachment as may be prescribed from time
to time for each corps, by Army HQ.
An officer has no claim to a particular corps or to a particular
unit of the corps. However, an officer may submit an
application in writing to serve with a particular corps or a D
unit, which will be given due consideration subject to the
requirements of the service ...... "
34. The choice of the cadet plays an important role in his allocation
and induction in the 11 streams mentioned above. That is precisely why
towards the completion of pre-commission training each cadet is required E
to submit his' /her choice of induction into any of the abovementioned 11
streams. Policy guidelines in this regard have been issued from time to
time by the Adjutant General's Branch which lay down the procedure
by which cadets are allocated to different Arms, Combat Support Arms
and Services. The broad allocation policy as stipulated in Adjutant F
General's Branch Circular dated 4th August, 2006 issued to the Indian
Military Academy, Dehradun lays down the working parameters to ensure
equitable distribution ofGCs/LCs to Arms/Services through consideration
of several factors stipulated in the same. Merit and caliber spread is
one of the factors taken into consideration. The policy envisages that
first 1% GCs (in order of merit) would constitute the "Super Block" and G
will be allotted to the Army/Service of their choice irrespective of other
factors. It also provides for dividing GCs into blocks consisting of25 to
35 GCs to ensure an even distribution of caliber to all Arms and Services.
Parental claims are also taken into consideration while making such
allocation just as the choice of General Cadet is one such factor that is
H
458 SUPREME COURT REPORTS [2016) 2 S.C.R.
A taken into consideration. The policy envisages the following factors to
be kept in mind while exercising the choice by the cadets:
(a) Super Block GCs opting for Arms will be permitted to
give choice of a particular Regiment/Batta/ion.
(b) GCs/LCs exercising Parental Claims will be permitted
B to give choice of particular Regt!Bn!Gp.
(c) GCs can offer three choices in their order ofpreference.
(d) GCs can opt for Arms only or Arms/Services in their
three choices.
c (e} GCs can however opt for only one Service in their three
choices.
(f) Optees for the Parachute Regiment can indicate choice
offive PARA (SF), units (1,2.3,./.9, JO & 21) in order of
preference. Volunteer for Para (SF) will be deemed to
D have volunteered for Para Bafia/ion also.
(g) GCs opting for Artillery will be permitted to specify
choice of Fd!Med/SATA!Msl Gps.
(h) GC opting for AD Arty will be deemed to have opted
forArtillery.
E
(i) Science Stream GCs will be preferred for allocation to
AAD. If however, such GCs are not available, non-
science GCs, preferably those who have studied Maths
and Physics at 1O+2 stage will also be inducted. Parental
claims of non-science GCs in AAD will however, be
F honoured
(k} GCs opting for Armd Regt/Mech inf will be permitted to
>pecify choice of Armd Regt!Mech Jnj!Guards Bns.
(I) GCs opting for Armoured Corps or Mechanised Infantry
G will be deemed to have opted for Infantry.
(111) GCs opting for Inf will give choice of three Regis (in
order of preference)
(n) GCs!LCs opting for Corps of Engrs will give the
preference of Gps: Madras/Bengal/Bombay. "
H
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 459
[T. S. THAKUR, J.]
35. Para 19(e) of the policy guidelines, inter a/ia, provides that A
as far as possible, efforts shall be made not to allot Arms/Services to
any GC who has not opted for it as one of his choices. It is noteworthy
that out of a total of30 officers who had filed three original applications
before the Tribunal, 26 officers were allotted to the streams of their first
choice, 2 were allotted to the streams of their second choice while only
B
one got allotted to the stream of his 3'' choice. One can, therefore,
visualize that choice made by the officers prevails as has happened in
the case at hand where an overwhelming number of26 out of30 officers
have been given their firsf option while 2 out of30 only were given their
2"' choice. There is no denying the fact that GCs who made their choices
are presumed to be fully aware of the functional and operational c
requirements of the obligations of the streams for which they had opted
as also their future career prospects for the same.
36. It was argued on behalf of the respondents that the officers
although allotted to different streams had a legitimate expectation in the
matter of their promotion to higher ranks that the Government shall D
maintain parity among officers who passed out i11 the same batch but
who were allotted to different streams like Arms, Arms Support and
Services. On behalf of the appellant, Union of India, it was per contra
contended that 'batch parity' simply refers to the time frame for the
conduct of same level of selection by the selection board for the same
batch officers allocated to different Arms/Services. It was also contended E
that having regard to Deprivation Risk (ORI) factor Arms were getting
additional posts because of surrender of such vacancies from Services.
This surrender was to the extent of 20%. That position was, according
to the appellant, accepted by the respondents before the Tribunal and so
also before this Court. That apart: various committees constituted over F
a period of time had according to the appellants, acknowledged a higher
requirement of Combat Arms which over a period of time resulted in a
disparity in the time frame for consideration of same batch officers
allocated to Arms and Services. It was submitted that the time lag came
to be known as 0-1-2 scenario. This differential scenario is according to
the appellants necessitated by the operational role of Arms and the G
resultant requirement of a lower age profile of COs unlike their
counterparts in Combat Arms Support and Services. The Appellants
contended that officers are at any rate considered for promotion witliin
their own verticals in terms of para 70 of DSR RA which reads as
tinder: H
460 SUPREME COURT REPORTS [2016] 2 S.C.R.
A " .... .70. Claims for Promotion - Officers will normally be
considered for promotion in the order of seniority in their
Corps but an officer whose early advancement is in the
interest of service may be specially selected for promotion to
fill a vacancy whatever his seniority in the rank at the time.
The cases of officers who are superseded for promotion will
B
be kept under review in accordance with the existing
instructions .... "
37. It was submitted that recommendations made by the Kargil
War Committee and AVS Committee have favoured an upward revision
of20% extra for Combat Amis to a level where the objective of inducting
c a Col. of Combat Arms for commanding a battalion is at the age of 37
years is achieved and the officer exits from command after 2Y, to 3
years to be adjusted in another available position before he is considered/
selected for a higher rank. The recommendations of AVS committee, it
was argued, were only with a view to enhancing and increasing the
D number of posts at the level of Col. for the streams constituting the
broad classification of Combat Arms and Arms Support.
38. It was further submitted that the time edge of0-1-2 was always
in existence which in essence only meant that officers of combat arms
of 1990 batch were considered by the Selection Board along with officers
E of the 1989 batch of 'Combat Arms Support' and officers of 1988 batch
of'Servi.ces'. This was on facts demonstrated by reference to the case
of respondent Lt. Col. P K Chaudhary of the 1994 batch of the ASC
who was for the first time considered by Selection Board No. 3 for
promotion to the rank in 20 I 2 by which time officers belonging to Infantry
and Artillery cif 1994 had already been considered by Selection Board 3
F in the year 2009 i.e., 2Y2 years prior to the consideration ofthe Respondent
- Lt. Col. P K Choudhary. No grievance was, however made by Lt.
Col.PK Chaudhary in December 2012 as to why he was not considered
for such promotion in the year 2009 itself when officers from his batch
allocated to Artillery and Infantry were considered for such promotion.
G This implied that the Respondent Lt. Col. P K Chaudhary anc\ others
similarly situate clearly understood that batch parity did not mean
consideration of commissioned army officers of the same batch at the
same point of time nor was any grievance against their non-consideration
ever made at any time when their batch mates serving in other streams
were considered for promotion. It was submitted that Para 68 of DSR
H RA protected officenrin the matter of their seniority by relating back
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 461
[T. S. THAKUR, J.]
their promotion to the date when officers in the same batch working in A
other streams were promoted. Para 68 reads as under:
" .... 68. Effective Date of Substantive Promotion - Substantive
promotion to the rank of Colonel and above, and of Lt Col by
selection. will be from the date an officer was passed fit in all
respects for such promotion, provided a vacancy existed in B
the substantive cadre of that rank on that date. Should the
date of assumption of the higher appointment be later than
the former date of actual assumption of appointment will
reckon for pay, pension and tenures But for purposes of
seniority the date will be as notified in the Gazette ... "
c
39. It was contended that the policy decision taken by Government
oflndia was in the larger interest of national security and for making the
Army more efficient and that the same did not violate any right of the
respondents much less any fundamental right. The plea of legitimate
ex!Jectation raised on their behalf was in that view futile for there was
neither any basis for such a plea in the pleadings nor was the plea tenable D
in law especially when the policy change was in public interest.
40. Halsbury's Laws of England, Fourth Edition, Volume 1(1) 151
explains the meaning of"Legitimate Expectation" in the following words:
"81. Lef{itimate expectations.-A person may have a legitimate E
expectation of being treated in a certain way by an administrative
authority even though he has no legal right in private law to receive
such treatment. The expectation may arise either from a
representation or promise made by the authority, including an
implied representation, or from consistent past practice.
F
The existence of a legitimate expectation may have a number
of different consequences; it may give locus standi to seek
leave to apply for judicial re.view; it may mean that the
authority ought not to act so as to defeat the expectation
without some overriding reason of public policy to justify its
doing so; or it may mean that. if the authority proposes to G
defeat a persons legitimate expectation, it must afford him
an opportunity to make representations on the matter. The
courts also distinguish, for example in licensing cases, between
original applications, applications to renew and revocations;
a party wha has been granted a licence may have a legitimate
H
462 SUPREME COURT REPORTS [2016] 2 S.C.R.
A expectation that it will be renewed unless there is some good
reason not to do so, and 111ay therefore be entitled to greater
procedural protection than a 111ere applicant for a grant. "
41. Legitimate expectation as a concept has engaged the attention
of this Court in several earlier decisions to which we shall presently
B n:_fer. But before we do so we need only to say that the concept arises
out of what may be described as a reasonable expectation of being
treated in a certain way by an administrative authority even though the
person who has such an expectation has no right in law to receive the
benefit expected by him. Any such expectation can arise from an "express
promise" or a "consistent- course of practice or procedure" which the
c person claiming the benefit may reasonably expect to continue. The
question ofredress which the person in whom the legitimate expectation
arises can seek and the approach to be adopted while resolving a conflict
betwee_n any such expectation, on the one hand, and a public policy in
general public interest on the other, present distinct dimensions every
D time the plea of legitimate expectation is raised in a case.
42. In Food Corporation of India v. Ka111d/1e11u Cattle Feed
Industries (1993) 1SCC71 one of the earlier cases on the subject this
Court considered the question whether Legitimate Expectation of a citizen
can by itself create a distinct enforceable right. Rejecting the argument
E that a mere reasonable and legitim~te expectation can give rise to a
distinct and enforceable right, this Court observed:
"8. The 111ere reasonable or legitimate expectation of a citizen,
in such a situation, may not by itself be a distinct enforceable
right, but failure to consider and give due weight to it may
F render the decision arbitrary, and this is how the requiremelll
of due consideration of a legitimate expectation forms part
of the principle of non-arbitrariness, a necessary concomitant
of the rule of law. Every legitimate expectation is a relevant
factor requiring due consideration in a fair decision-making
process. Whether the expectation of the c/aimalll is reasonable
G or legitimate in the colllext is a question offact in each .case.
Whenever the question arises. it is to be determined not
according to the claimant~· perception but in larger public
interest wherein other more important c<msiderations may
outweigh what would otherwise have been the legitimate
H expectation o(the c/ai11la11t. A bona fide decision of the public
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 463
[T. S. THAKUR, J.]
authority reached in this manner would satisfY the requirement A
of non-arbitrariness and withstand judicial scrutiny. The
doctrine of legitimate expectation gets assimilated in the rule
of law.and operates in our legal system in this manner and to
this extent. "
(emphusi> supplied) B
43. To the same.effect is-the decision of this Court in Union of
India v. Hindustan Development Corporation and Ors. (1993) 3
SCC 499, where this Court summed up the legal position as under:
"28 ..... For legal purposes, the expectation cannot be the
same as anticipation: It is different from a wish, a desire or a c
hope nor can it amount to a claim or demand on the ground
of a right. However earnest and sincere a wish. a desire or a
hope mav be and however confidently one may look to them
to be fulfilled. they by themselves cannot amount to an
assertable expectation and a mere disappointment does not
D
attract legal consequences. A .pious hop_e even leading to a
moral obligation cannot amount to a legitimate expectation.
·The legitimacy of an expectation can be inferred only ifit is
founded on the sanction of law or custom or an established
procedure fallowed in regular and natural sequence. Again
it is distinguishable from a genuine expectation. Such E
expectation should be justifiably legitimate and protectab/e.
Eve1y such legitimate expectation does not by itselffructify
into a right and therefore it does not amount to a right in the
conventional sense. " ·
33. On examination of some of these important decisions it is F
generally agreed that legitimate expectation· gives the
applicant sufficient locus standi for judicial review and that
the doctrine of legitimate expectation is to be confined mostly
to right of a fair hearing before a decision which results in
negativing a promise or withdrmving an undertaking is taken.
. The doctrine does not give scope to claim relief straightaway G
from the administrative authorities as no crystallised right as
such is 'Involved The protection of such legitimate expectation
does not require the fulfilment of the expectation where an '
overriding public interest requires othenvise. In other words
where a persons legitimate expectation is not fulfilled by H
464 SUPREME COURT REPORTS [2016] 2 S.C.R.
A taking a particular decision then decision-maker shouldjustijj;
the de1;ial of such expectation by showing some overriding
public interest. Therefore even if substantive protection of such
expectation is conte111plated that does not grant an absolute
right to a particular person. It si111ply ensures the
circu111sta11ces in lvhich that expectation 111ay be denied or
B
restricted. A case of legiti111ate expectation would arise when
a body by representation or by past practice aroused
expectation which it would be within its powers to fa/fl/. The
protection is li111ited to that extent and a judicial review can
be within those limits. But as discussed above a person who
c bases his clai111 on the doctrine of legitimate expectation. in
the first instance. must satisfy that there is a foundation and
thus has locus standi to make such a claim. In considering
the same several factors which give rise to such legitimate
expectation must be present. The decision taken by the
authority must be found to be arbitrary, unreasonable and
D
not taken in public interest. If it is a question of policy, even
by wav of change of old policy, the courts cannot interfere
with a decision. In a given case whether there are such facts
and circumstances giving rise to a legitimate expectation. it
would primarily be a question o((act. If these tests are satisfied
E and if the court is satisfied that a case of legitimate expectation
is made out then the next question would be whether failure
to give an opportunity of hearing before the decision affecting
such legitimate expectation is taken, has resulted in failure of
iustice and whether on that ground the decision should be
quashed. If that be so then what should be the relief is again
F
a matter which depends on several factors. "
(emphasis supplied)
44. Reforence may also be made to the decision of this Court in
Punjab Communications Ltd. v. Union of Inditt and Ors. (1999) 4
G SCC 727, where this Court held that a change in policy can defeat a
substantive legitimate expectation if it can be justified on "Wednesbury
reasonableness." The choice of policy is for the decision-maker and not
the Court. The legitimate substantive expectation merely permits the
Court to find out if the change of policy which is the cause for defeating
the legitimate expectation is irrational or perverse or one which no
H
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 465
[T. S. THAKUR, J.]
reasonable person could have made. A claim based merely on legitimate A
expectation without anything more cannot ipso facto give a right. Similarly
in Dr. Clumclml Goyal (Mrs.) v. State of Rajastftan (2003) 3 SCC
485, this Court declined relief on the plea of legitimate expectation oil
the ground that the appellants had not shown as to how any act was
done by the authorities which created an impression that the conditions
B
attached to the original appointment order were waived. No legitimate
expectation could be, declared this Court, claimed on such unfounded
impression especially when it was not clear as to who and what authority
had created any such impression. The decisions of this Court in Ram
Pravesfl Singh v. State ofBi/iar (2006) 8 SCC 381, Set/ti Auto Service
Station and Anr. v. Del/ti Development Authority and Ors. (2009) 1 c
SCC 180, Confederation of Ex-servicemen Association v. Union of
India (2006) 8 SCC 399, and State of Bi/tar and Ors. v. Kalyanpur
Cements Ltd. (2010) 3 SCC 274, reiterate the legal position stated in
the decisions earlier mentioned. In Monnet lspat and Energy Ltd. v.
Union of India and Ors. (2012) 11 SCC l, this Court reviewed the
D
case law on the subject and quoted with approval t!ie following passage
in Attomey Genera/for New South Wales (1990) 64 Aus LJR 327:
"To strike down the exercise of administrative power solely
on the ground of avoiding tfte disappointment of the legitimate
expectations of an individual would be set the courts adrift
on a featureless sea of pragmatism. Moreover, the notion of E
a legitimate expectation (falling short of a legal right) is too
nebulous to form a basis for invalidating tfte exercise of a
power when its exercise otherwise accords law. "
45. This Court went on to hold that if denial oflegitimate expectation
in a given case amounts to denial of a right that is guaranteed or is F
arbitrary, discriminatory, unfair or biased, gross abuse of power or in
violation of principles of natural justice the same can be questioned on
the well-known grounds attracting Article 14 of the Constitution but a
claim based on mere legitimate expectation without anything more cannot
ipso facto give a right to invoke these principles. G
46. Coming to the case in hand, the plea of legitimate expectation
does not appear to be of any assistance to the respondents for two
precise reasons. Firstly, there is no real basis for the respondents to
argue that the Government of India had either by representation or by
any sustained course of conduct created an impression in the minds of H
466 SUPREME COURT REPORTS [2016] 2 S.C.R.
A the respondents that any additional vacancies created to the lower age
profile of commanding officers serving in Combat Arms or Combat Arms
Support shall also benefit those serving in the Service Streams of the
Army. There is no factual basis laid by the respondents in the pleadings
before the tribunal to suggest that any such impression was gathered by
officers serving in the Service Streams. There is also no basis for the
B
contention that a legitimate expectation arose in the minds of the
respondents that they shall be promoted to the next rank simultaneously
with the officers serving in Combat Arms or Combat Arms Support. As
a matter of fact, the provisions of para (68) of the Regulations for the
Army extracted earlier itself envisages the grant of promotion to officers
c from different streams at different points of time depending upon several
factors which bring about the time lag for such considerations. Conscious·
of the fact that such officers serving in different streams may pick up
the next rank at different points of time, the Regulations provide for
grant of retrospectivity to the promotions so granted to restore inter se
batch parity to such officers. There is no denying the fact that the said
D
Regulation continues to be operative and regardless of the date when
the officer is promoted, his promotion is so related back as to protect his
seniority vis-ii-vis his colleagues from the batch serving in other streams.
Far from creating any impression or any expectation that promotions
shall be simultaneous, the Regulations clearly provide for gfant of
E retrospective effect to the promotions only with a view to restore seniority.
This clearly implies that in the very nature of things the promotions could
be granted to officers at different points of time and time lag could
additionally be in the 0-1-2 scenario. We have, therefore, no hesitation
in rejecting the contention that the legitimate expectation did arise in the
factual situation before us.
F
4 7. That apa11, legitimate expectation as an argument cannot
prevail over a policy introduced by the Government which does not suffer
from any perversity, unfairness or unreas.onableness or which does not
violate any fundamental or ·other enforceable rights vested in the
respondents. In the case in hand, the Government has, as a matter of
G policy, decided to lower the age profile of officers serving in Combat
Arms and Combat Arms Support pursuant to the recommendations made
by the Expert Committees. We have in the earlier part of the judgment
dealt with the recommendations made by the Committees and the
objectives sought to be achieved by the policy decisions of the
H Government. There is nothing perverse, unreasonable or unfair about
UNION 01' INDIA v. LT. COL. P. K. CHOUDHARY 467
[T. S. THAKUR, J.]
the policy that the age of officers serving in Combat Arms and Combat A
Arms Support will be lowered by creating additional vacancies to be
allotted on Command Exit Model. ·In the absence of any perversity,
unreasonableness or unfairness in the policy so introduced, we see no
reason to allow the argument based on legitimate expectation to unsettle
or undo the policy which is otherwise laudable and intended to render
B
the Indian Army more efficient and better equipped'ti'l~coi\\bat situations.
It also is not a case where tio reasonable person could have taken the
decision which the Government have taken as. regards the need for
lowering the age profile of the Commanding Officers or their exit after
2-112. to 3 years to occupy positions which the Government have created
for the officers to occupy till they are considered for promotion to the c
next higher rank. All told, the arguments based on legitimate expectation
has not appealed to us. We have, therefore, no difficulty in rejecting the
contention based on that principle. Question No. 5 is accordingly answered
in the negative.
48. In the result, we partly allow these appeals and while setting . D
aside the order passed by the Tribunal direct that the appellants shall
create 141 additional posis of Colonel. to be allocated to 'Co1i1bat
Support' stream for being utilized by appointing officers who are eligible
for promotions against the same as in the year 2009 over a period of 5
years till 2014.
E
49. In the peculiar facts and circumstances of the case, we leave
the parties to bear their own costs.
Nidhi Jain Appeals partly allowed.
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