Holding

The change in promotion policy affected only the chances of promotion, not the conditions of service, so the High Court's order was erroneous and the appeal is allowed.

Summary

The respondent, an Air Vice‑Marshal from the Navigation Stream of the Indian Air Force, challenged a 1987 change in the promotion policy that reduced the number of Air‑Marshal posts available to his stream, arguing it altered his conditions of service. The Gauhati High Court had directed that his case be considered under the old policy, but the Union appealed. The Supreme Court held that the policy change only affected the probability of promotion, not the substantive conditions of service, and that courts should be reluctant to interfere with technical policy decisions unless shown to be arbitrary or mala‑fide. It found no evidence of arbitrariness, noting the policy was considered by senior Air‑Marshals and the Chief of Air Staff, and that confidentiality of minutes was permissible. Consequently, the High Court’s order was set aside and the appeal was allowed.

Issues considered

The validity of the 1987 change in Air Force promotion policy affecting the Navigation Stream.
Whether the policy change altered the conditions of service of Air Vice‑Marshals.
Whether the High Court erred in directing consideration of the respondent's promotion under the old policy.
Whether the court should intervene in technical policy matters of the defence establishment.

Subjects

promotion policymilitary servicejudicial reviewconditions of servicearbitrarinesstechnical expertisedefence establishment

Judgment

UNION OF INDIA AND OTHERS
v.
A
S.L. DUTTA AND OTHERS

NOVEMBER 16, 1990

[M.H. KANIA AND L.M. SHARMA, JJ.] B

Air Force Services-Promotions of Air Vice Marshals as Air
-Marshals-Change in Policy-Whether valid.

Respondent No. 1 was commissioned in the Indian Air Force on
July 17, 1954 and in course of \ime was promoted to the post of Air
Vice-Marshal. He belonged to the Navigation Stream of the Indian Air c
Force and was the senior most officer in his cadre. When he was due for
promotion as Air-Marshal, the Ministry of Defence, Govt. of India, by
its memo dated October 9, 1987, changed the policy governing promo-
tions, with the result the prospects of an officer in the Navigation
Stream of the Air Force earning a promotion to the post of an Air- D
Marshal were substantially reduced. Due to the change in the promo-
tional policy, respondent No. l was unable to get promotion as Air-
Marshal and he retired as an Air Vice-Marshal on 31.10.1988. How-
ever, before his retirement he filed a writ petition in the Ganhati High
Court challenging the validity of new promotion policy. On 16.9.1988,
an interim order was made by the High Court directing the Union of E
India to constitute a Selection Board and consider the case of respon-
dent No. 1 for promotion on merits without reference to the new policy.
The appellants challenged the said interim order before this Court by
means of a special leave petition. The Court granted special leave,
allowed the appeal of the appellants on 4.10.1988 and set aside the
interim order passed by the High Court holding that the interim order F
was erroneous. On 16.2.1990, the High Court allowed the writ petition
filed by respondent No. 1 holding, inter alia, that the new promotion
policy was not framed after an indepth study and directed that the case
of respondent No. 1 be considered on the basis of the previous policy.
Hence this appeal by the Union oflndia and others.
G
The main thrust of the argument advanced by the Union is that
the Court should be reluctant to interfere where the validity of a policy
is concerned, as it was primarily for the Government to frame a policy
and to change it unless it could be shown that the change was ma/a fide
or for an ulterior purpose or that the same had been made without
application of mind. On the other hand respondent No. l inter alia H

173
174 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

contended that the change of policy affected the conditions of his
A service; and that it was arbitrary.
. ,.
Allowing the appeal, this Court,

HELD: What was affected by the change of policy were merely the
B chances of promotion of the Air Vice-Marshals in the Navigation
Stream. As far as the posts of Air-Marshals open to the Air Vice-
Marshals in the said stream were concerned, their right or eligibility to
be considered for promotion still remained and hence, there was no
change in their conditions o(service. [181E]

The High Court was in error in making the impugned order. As
c has been laid down more than once by this Court, the Court should
rarely interfere where the question of validity of a particular policy is in
question and all the more so where considerable material in the fixing of
policy is of a highly technical or scientific nature. These are matters
regarding which judges and lawyers can hardly be expected to have
D much knowledge by reason of their training and experience. [182A-C]

In the present case, there is no question of arbitrary departure
from the policy duly adopted because before the decision not to promote
respondent No. 1 was taken, the policy had already been changed. [182D]
I
1
E As the proposed change of policy was considered at some length
by as many as 12 Air-Marshals and the Chief of Air Staff of Indian Air
Force, it is not possible to say that the question of change of policy was
not duly considered. Mere non-availability of the minutes setting out
the discussion, is of no relevance. In fact, it would perhaps be detri-
mental to the interest of the country if these matters were not kept
p confidential. On the basis of this circumstances alone, the court cannot
hold that the change of policy was arbitrary. [182E-F]

Vincent Panikurlangara v. Union of India and Ors., [1987] 2
SCC 165 at 173 and 175; Liberty Oil Mills and Others v. Union of India
and Others, [1984] 3 SCC 465 at 478; M/s. Shri Sitaram Sugar Co. Ltd.
G and Anr. v, Union of India and Ors., [1990] 1 Judgment Today SC 462
at 484; Railroad Commission of Texas v. Rowan and Nichols Oil Co., 311 US
570-577, 85 Led. 358, 362; State of Maharashtra and Anr. v. Chandra-
kant Anant Kulkarni and Ors., [1981] 4 SCC 130; K. Jagadeesan v.
Union of India and Ors., [1990] 1 Judgment Today 247; A.S. Sangwan
v. Union of India and Others, [1980] Suppl. SCC 559 at 561, referred
H to.
U.0.I. v. S.L. DUTIA [KANIA, J.l 175

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5349
A
of 1990.

From the Judgment and Order dated 15.2.1990 of the Gauhati
High Court in C.R. No. 1534 of 1988.

A run Jaitley, Additional Solicitor General, Raju Ramachan- B
dran, Ms. A. Subhashini and C. V. Subba Rao forthe Appellants.

R.B. Datar, M.J. Paul and Kailash Yasdev for the Respondents.

The Judgment of the Court was delivered by

KANIA, J, The question raised in the Special Leave Petition is c
of some importance and hence we grant Special Leave, as prayed for.

We have heard Counsel for both the parties and we propose to
dispose of the appeal at this stage.
D
The appellants before us are the Union of India, Chief of Air
Staff and the Secretary to the Government of India, Ministry of
Defence, respectively. Respondent no. 1 was commissioned in the
India Air Force on July 17, 1954 and had an unblemished service
record. In course of time he was promoted to the post of Air Yice-
Marshal. He belonged to the Navigation Stream of the Indan Air E
Force. When he was due to be considered for promotion to the post of
an Air-Marshal, the policy for promotion to the posts of Air-Marshals
in the Indian Air Force was changed by the Ministry of Defence,
Government of India, by its Memo dated October 9, 1987. As per this
revised policy when we shall consider in some detail a little later, the
prospects of an officer in the Navigation Stream of the Air Force f
earning a promotion to the post of an Air-Marshal were substantially
reduced. At the relevant time respondent no. 1 was the seniormost Air
Vice-Marshal in the Navigation Stream. Probably, on account of the
change in the policy, respondent no. I was unable to secure promotion
to the post of an Air-Marshal and he retired as an Air Vice-Marshal on
October 31, 1988. Before he retired, respondent no. I filed a writ G
petition in the Gauhati High Court on September 5, 1988, challenging
the new promotion policy in respect of the posts of Air-Marshals. On
September 16, 1988, an interim order was made by the Gauhati High
Court directing the Union of India to constitute a Selection Board and
consider the case of respondent no. 1 for promotion on merits without
reference to the new policy. The appellants challenged this order by H
176 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
A
way of a Special Leave Petition. This Court granted Special Leave and
allowed the appeal of the appellants on October 4, 1988, holding that
the interlocutory order passed by the High Court was erroneous and
setting aside the same. On Ociober 31, 1988, respondent no. 1 retired
as an Air Vice-Marshal. On February 15, 1990, a Division Bench of
B the Gauhati High Court allowed the writ petition filed by respondent
no. l holding, inter a/ia, that the new promotion policy was not framed
after an in depth study and directed that the case of respondent no. 1
be considered on the basis of the previous policy. It is this decision
which is assailed before us in this appeal.

It is submitted before us by learned Additional Solicitor General
C appearing for the appellants that, normally speaking, the court should
be reluctant to interfere where the validity of a policy is concerned. It
was submitted by him that it is primarily for the Government to
determine the policy and to change it, and unless it can be shown that
the change was ma/a fide or for an ulterior purpose or that the change
I) had been made without application of mind, the comt would not
interfere. It was not for the court to consider the merits of the change
of policy nor whether it was a desirable change or not. It was urged by
him that this would be all the more so in regard to a policy like the one
which we have in question before us, namely, the promotional policy
in the India Air Force, because the determination of such a policy
E would involve technical considerations regarding modern weaponary,
the degree of sophistication available in navigational aids and several
other factors which are of a highly technical nature and which, by their
training and experience, Judges of a court are not likely to be familiar
with. He strongly contended that it was not for the court to enter upon
a consideration of the merits of demerits of a change in policy of the
F kind involved in this appeal and the High Court had been in error in
doing so.

In order to consider these submissions, it is necessary to have
certain data-regarding the relevant posts in the Indian Air Force. At
the relevant time, there were 15 posts of Air-Marshals, being the
G highest posts in the Air Force, save and except, the post of the Air
Chief Marshal, and three rotational posts of Air-Marshals which were
held in rotation by members of the three Wings of the Armed Forces,
namely, the Army, the Navy and the Air Force. Under the earlier
policy, out of these 15 posts of Air-Marshal, 13 were open to officers in
the Flying Branch and so also the three rotational posts. There are
H seven branches in the Indian Air Force and these are:
U.0.1. v. S.L. ,DUITA [KANIA, J.l 177

1. Flying
A
2. Aeronautical Engineering
3. Administrative
4. Logistic Branch
5. Accounts B
6. Education
7. Meteorological Branch.

It may be mentioned that the maximum number of posts of Air-
Marshals available to a single branch were and continue to be open to
officers in the Flying Branch, probably because of the nature of the c
experience which they have. Under the previous policy most of these
posts open to the officers in the Flying Branch were open to officers in
Navigation Stream of Flying Branch. The number of posts of Air-
Marshal available to the Navigation Branch had admittedly been sub-
stantially reduced by the change of policy in question. D

According to the appellants, this change of policy was adopted
in October 1987 after a careful study of all relevani factors and after
taking into account various points of view. Briefly, it was submit-
ted by them that with the introduction of modern aircraft in the Indian
Air Force the importance of the Navigation Branch is considerabiy E
reduced because of the technological developments and advances in
electronic navigational aids available on bombers and fighters in the
Air Force .. It was in view of these that the number of posts of Air-
Marshals available to the.Navigation Branch was required to be cur-
tailed. The correctness of these averments was strongly_ dis1mted by
respondent no. I. In o\Jr opinion, we are not called upon to go into the F
consideration of the question whether the importance of the Naviga-
tion Branch in the Air Force has really been reduced as contended by
the appellants because such consideration would involve several tech-
nical aspects which we are not competent to deal with and much of the
material required to be considered might be of a sensitive and secret
nature which it would not be proper to ask the Union of Iridia on the G
Ministry of Defence to disclose, as such disclosure might adversely
affect the safety and security of the country. It appears that the change
of policy and reasons for the same were discussed at' a.meeting of the
Air-Marshals and the Chief of Air Staff who hold the rank of Air Chief
Marshal. The minutes of the meeting are not available in Court and we
d<;> not wish to call for them because some of the matters discussed in· H
178 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

A the meeting might be of a confidential or sensitive nature, as \Ve have
pointed out. Moreover, several of the matters discussed might be too
technical for us to appreciate.

Before considering the merits of the submissions advanced by
learned Additional Solicitor General for the appellants, reference can
be usefully made to some of the decisions cited before us by the respec-
tive parties.

In Vincent Panikurlangara v. Union of India and Others, [1987] 2
sec 165 at 173 & 175 a writ petition was filed as in public interest
regarding the maintenance of. approved standards of drugs and
banning of injurious and harmful drugs. A Division Bench of this
c Court presided over by Ranganath Misra, J. (as he then was) con-
sidered the scope of judicial review in matters of this kind. It was
observed by the Court that (see para 15 of the Report):

"Having regard to the magnitude, complexity and technical
D nature of the enquiry involved in the matter and keeping in
view the far-reaching implications of the total ban of cer-
tain medicines for which the petitioner has prayed, we must
at the outset clearly indicate that a judicial prot"eeding of
the nature initiated is not an appropriate one for determi-
nation of such matter."
E
The Division Bench went on to observe as follows (see paragraph
17):

"The technical aspects which arise for consideration in a
matter of this type cannot be effectively handled by a
F Court. Similarly, the question of policy which is involved in
the.matter is also one for the Union Government~keeping
the best of interests of citizens in view to deci\1$. No final
say in regard to such aspects come under the pur\iiew of the
Court."

G In Liberty Oil Mills and Others v. Union of India Others, [1984] 3
SCC 465 at 478 certain questions were raised before this Court regard-
ing the import and export policy followed in India. Chinnappa Reddy,
J., speaking for the Court observed as follows (See para 6 oUhe
Report): ·

Ill "There must also be a considerable number of other factors
U.0.1. v. S.L. DUTIA [KANIA, J.l 179

which go into the making of an import policy. Expertise in
public and political, national and international economy is A
necessary before one may engage in the making or in the
criticism of an import policy. Obviously Courts do not pos-
sess the expertise and are consequently incompetent to
pass judgment on the appropriateness or the adequacy of a
particular import policy." B

In M/s. Shri Sitaram Sugar Company Limited and Another v.
Union of India and Others, (1990] 1 Judgment Today SC 462 at 484 the
validity of certain notifications fixing prices of various grades of sugar
with reference to geographical-cum-agro-economic considerations and
average cost profiles of factories located in respective zones were
impugned before this Court. The Constitution Bench of this Court C
which decided the case held as follows (See para 56):

"The Court has neither the means nor the knowledge to
re-evaluate the factual basis of the impugned orders. The
Court, in exercise of judicial review, is not concerned with ,D
the correctness of the findings of fact on the basis of which
the orders are made so long as those findil}gS are reason-
ably supported by evidence."

In the said Judgment the Court cited with approval the following
observations of Justice Frankfurter of the U.S. Supreme Court in E
Railroad Commission of Texas v. Rowan and Nichols Oil Company,
311 US 570-577, 85 Led. 358, 362:

"Nothing in the Constitution warrants a rejection of these
expert conclusions. Nor on the basis of intrinsic skills and
equipment, are the federal Courts qualified to set their F
independent judgment on such matters against that of the
chosen state authorities . . . . . When we consider the
limiting conditions of litigation the adaptability of the judi-
cial process only to issues definitely circumscribed and
susceptible of being judged by the techniques and criteria
within the special competence of lawyers it is clear that the G
Due Process Clause does not require the feel of the expert
to be supplanted by an independent view of judges on the
conflicting testimony and prophecies and impressions of
eX.pert witnesses."

In connection with the question as to whether the conditions of H
180 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

A service of respondent no. 1 could be said to be adversely affected by
the change in the promotional policy, our attention was drawn by
learned Additional Solicitor General to the decision of this Court in
State of Maharashtra and Another v. Chandrakant Anant Kulkarni and
_Others, [1981] 4 S.C.C. 130. There it was held by a Bench comprising
three learned Judges of this Court that mere chances of promotion are
B not conditions of service, and the fact jhat there was reduction in the
chances of promotion did not tantamount a change in the conditions of
service. A right to be considered for promotio,n is _a term of service
chance& of promotion are not. (See para 16 at page 141; of the
Report). Reference was also made to the decision of this Court in
K. Jagadeesan v. Union of India and Others, [1990] 1 Judgment Today
,,. 247 where the decision of this Court in State of Maharashtra and
"' Another v. Chandrakant Anant Kulkarni and Others, was followed.

Additional Solicitor General also drew our attention to the deci-
sion of this Court in Col. A.S. Sangwan v. Union of India and Others,
[1980] Suppl. SCC 559 at page 561. Jn that case the Court was con-
1) cerned with the competing claims of the petitioner, Col. Sangwan, and
. the third respondent, namely, Col. A.S. Sekh_on to be promoted as
Brigadiers in the Directorate of Military Farms. A submission was
made that once a policy had been made in exercise of the general
executive power of the Union of India and made known and acted
upon, it would be arbitrary to depart from it overnight by making a
E fresh selection without an antecedent reformulation o(policy and mak-
ing that policy known to the concerned sector in the army.

it was held:

"The executive power of the Union of India, when it is not
trammelled by any statute or rule, it wide and pursuant to
its power it can make executive policy. Indeed, in the
strategic and sensitive area of Defence, Courts should be
cautious althouzh Courts are not powerless. The Union of
India having framed a policy relieved itself of the charge of
acting capriciously or arbitrarily or in response to any
G ulterior considerations so long as it pursued a consistent
policy."

Mr. Datar, learned counsel for respondent No. 1 did not dispute
that, normally, it was not for the Court to consider the wisdom or
appropriateness of a particular policy, particularly in cases where
H expert knowledge was required in the formulation of the policy and
U.0.1. v. S.L. DUTIA [KANIA, J.] 181

considering the appropriateness of the policy. It was, howev.er, sub-
A
mitted by him that once a policy was settled the Government was
bound to follow that policy and that, if the policy had to be changed,
this could be done only on a proper consideration of the relevant
material and coµld not be resorted to for ulterior purposes of m.ala fide
nor could the policy be changed arbitrarily. He placed reliance on the
judgment of this Court in case of A.S. Sangwan, discussed earlier. B
What is, however, significant is that in that very judgments this Court
held (See para 4 of the aforesaid Report) that a policy once formulated
is not good for ever; it is perfectly within the competence of the Union
of India (o change it, rechange it, adjust it and readjust it according to
the compulsions of circumstances and the imperatives of national con-
.sideration. That judgment, therefore, is of no avail to the appellant.
c
It was urged by Mr. Datar that, in the present case, by the
change of policy the chances of an Air Vice-Marshals from the Naviga-
tion Stream of the Air Force to get promoted to the post of an Air-
Marshal were severly curtailed as the number of posts available to
th.em for promotion was reduced to two apart from the two rotational p.
posts. It was urged by him that this could, in law, be regarded as a
change in the conditions of service of the officers in the Navigation
Stream in the Air Force. We are not able to accept this contention. In
.our opinion, what was affected by the change of policy were merely the
chances of promotion of the Air Vice-Marshals in the Navigation
Stream. As far as the posts of Air Marshals open to the Air Vice-·
Marshals in the said Stream were concerned, their right or eligibility to
be considered for promotion still remained and hence, there was no
change in their conditions of service.

It was next submitte\I by learned Counsel that no minutes of
what transpired at the meeting of the Air~arshals which approved the F
.change of policy, were produced before the Court and hence, the Court
was not in a position to decide whether the change of policy was
j justified. He contended that it was significant that one Air-Marshal
from the Navigation Branch had opposed the change in the policy. It
was also pointed out by him that, at one stage, the Government of
India was not wiling to adopt the change of policy but had .changed its G
mind later on and the reasons for this change were not on record. It
was submitted by him that these circumstances showed that the change
of policy was arbitrary. It was urged by him that the impugned judg-
ment ,of the High Court was correct, as it was based on these con-
siderations. He, however, made it clear that he was not pressing any
<1lkgation of ma/a fide which might be contained in the petition. In ou~
182 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

A opinion, the High Court was in error in making the impugned order.
As has been laid down more than once by this Court, the Court should
rarely interfere where the question of validity of a particular policy is
in question and all the more so where considerable material in the
fixing of policy are of a highly technical or scientific nature. A con-
sideration of a policy followed in the Indian Air Force regarding the
B
promotional chances of officers in the Navigation Stream of the Flying
Branch in the Air Force qua the other branches would necessarily
involve scrutiny of the desirability of such a change which would
require considerable knowledge of modern aircraft, scientific and
technical equipment available in such aircraft to guide in navigating
the same, tactics to be followed by the Indian Air Force and so on.
c These_ are matters regarding which judges and the lawyers of Courts
can hardly be expected to have much knowledge by reason of their
training and experience. In the present case there is no question of
,.
arbitrary departure from the policy duly adopted because before the
decision not t_o promote respondent no. 1 was taken, the policy had
already been changed. The question is, therefore, whether this change
D
can be said to be arbitrary or mala fide. As we have already pointed
out, we are not in a position to hold that this change of policy was not
warrnated by the circumstances prevailing. As the matter was con-
sidered at some length by as many as 12 Air-Marshals and the Chief of
Air Staff of Indian Air Force, it is not possible to say that the question
of change of policy was not duly considered. Mere non-availability of
E the minutes setting out the discussion, is of no relevance. In fact, it
would perhaps be detrimental to the interest of the country if these
matters were not kept confidential. We cannot assume that what was
discussed at this meeting was not relevant to the decision regarding the
change of policy. It may be that at one time the Ministry of Defence
was not agreeable to accept the proposal for this change of policy but
F on further consideration accepted it. However, this could well show
that before accepting the change of policy the Ministry of Defence and
the experts attached to it give full consideration to the requirements of
the change. We cannot on the basis of this circumstances alone hold
that the change of policy was arbitrary.
G
In view what we have held earlier, in our opinion, that Gauhati
High Court was, with respect, in error in allowing the writ petition and
in giving directions regarding the consideration of the claim of respon-
dent no. 1 to promotion as we have set out earlier. In the result, the

......
H impugned judgment of the High Court is liable to be set aside .
U.0.1. v. S.L. DUTTA [KANIA, J.l 183

As far as the case of respondent no. 2, Air-Marshal Shri Sabhiki A
is concerned: no relief has been granted by the High Court and hence,
we are not concerned with the same. The appeal is allowed as
aforestated and the impugned judgment is set aside.

Looking to the facts and circumstances of the case, the parties
B
shall bear \heir own costs throughout.

Y. Lal Appeal allowed.