Supreme Court of India
WING COMMANDER J. KUMARversusUNION OF INDIA AND OTHERS
- Citation
- 1982 INSC 33
- Decided
- 5 March 1982
- Disposal
- Dismissed
- Bench
- A D KOSHAL
Holding
Rule 16 is a reasonable, non‑arbitrary provision for fixing seniority of permanently seconded service officers and is validly applicable, including to those seconded before its promulgation.
Summary
Wing Commander J. Kumar, an Air Force officer permanently seconded to the Defence Research and Development Organisation (DRDO) in 1971, challenged Rule 16 (promulgated in 1979 under Article 309) which fixed seniority of permanently seconded officers based on the date they attained the substantive rank of Major/equivalent. He alleged the rule was arbitrary, violated Articles 14 and 16 of the Constitution, was retrospective, and conflicted with earlier rules and an executive order. The Supreme Court held that the rule was a reasonable means of determining inter‑service seniority, could be applied to officers seconded before its promulgation, and was not ultra vires or subject to natural‑justice requirements. Consequently, the appellant's contentions were rejected and the appeal dismissed.
Issues considered
- Whether Rule 16, fixing seniority on the basis of the date of attainment of substantive Major/equivalent rank, is arbitrary or violative of Articles 14 and 16 of the Constitution.
- Whether the rule can be applied retrospectively to officers permanently seconded before its promulgation.
- Whether the rule is ultra vires the Constitution or inconsistent with prior executive orders or service regulations.
- Whether principles of natural justice apply to the promulgation of a statutory rule governing seniority.
Legislation cited
- Code of Criminal Procedure, 1973s. Section 340(1)
- Constitution of Indias. Art. 309
Subjects
senioritysecondmentDRDOconstitutional equalityArticle 14Article 16administrative lawnatural justiceretroactivityservice officers
Judgment
453
A
WING COMMANDER J. KUMAR
v.
UNION OF INDIA AND OTHERS
B
March 5, 1982
[A.O. KosHAL, V. BAL>.KRJSHNA ERADI AND
R.B. MISRA, JJ.]
Defence Restarch and Development Organisati•n Giid Government of India
0.M. dated November 23, 1919, Rule 16-"Senlority after permanent second- C
ment"-R & D Cadre-Intake of service officers-Seniority after 'permanent
secontlment'-Based upon seniority of substantive rank held by the officer in the
grade of major or equivalent rank-Such principle for determination whether valid.l
"Secondment" ofan officer-Whether constitutes a tra_nsfer.
Constitution of India ·1950, Art, 309 proviso-Statutory rule covering D
seniority-Rule to take effect from date of promulgation-Whether element of
retroactivity involved in operation of rule.
Administrative Law-Prineip/~ of natural justice-Applicability of-In
promu/gati'on of statutory rule governing seniority.
The Defence Research and Development Organisation (R & D) was set E
up under th! Ministry of Defence for carrying out scientific and technological
research and development work on projects or vital importance to the defence
forces. Its personnel consist or large number of civilian scientists as well as a
-
smaller number of service officers drawn Crom the three wings of the Armed
Forces who have operational experience of weapon systems.
The policy followed in regard to the intake of service officers was that F
they were initially taken on , a tenure basis a·nd subsequently absorbed in the
organisation on a permanent basis in the event of being found suitable and
willing. Since the Office.rs from the three services came to the R & D cadre with
different lengths of service and at different-levels, it became imperative to evolve
a reasonable principle for the determination or their inter~se seniority arter their
secondment to the _organisation.
G
In November 197P in supersession of an previous Rules and Orders on
the subject, rules were mado under the proviso to Art. 309 laying down the pro·
ccdure for the intake of service officers in the R & D organisation and the terms
and conditions of service of those permanently retained therein. Rule 16 dealt
with "Seniority after permanent secondment" and provided that "seniority or H
all service Officers permanently seconded to DRDO will continue to be based
upon th~ir s~ 0 iorit~ of substantive ran~ of Major/S~n. Ldr./Lt. Cdr ... , .. , a~d th~
454 SUPREME COURT REPORTS [1982} 3 s.c.R.
A seniority or officers with substantive ranks higher than Major/Sqn. Ldr./Lt. Cdr.
will after their permanent secondment, al~o reckon vis·a-vis other officers in the
R & D Cadre, for future promotioa/confirmation, from the date of their subs·
tantive rank or Major/Sqn. Ldr./Lt. Cdr ........ ".
The appellant who was commissioned in the Air Force was seconded to
the service. In hiS writ petition -he contended that the principle for determina·
B tion of seniority laid down in Rule 16 was arbitrary and violative of Articles 14
and 16 of the Constitution, and as he had been permanently seconded to the
R & D Organisation in 1971 long prior to the proclamation of the rule his rights
regarding seniority and promotion could not be affected by the provisions of this
rule. By taking the date of substantive appointment to -the rank or Major/
equivalent as the basis for reckoning seniority, officers who had obtained subs-
tantive promotions to higher ranks in the oarent service earlier than some of
c their seniors who ·were ~onl)' subsquently. promoted to such higher ranks, suffer -
11erious prejudice because the latter gain over the earlier promotees and supersede
them ·in the matter·of 1en'iority in. the R & D -Organisation, and that subsequent
inductees in the R & D Organisation cannot be legally assigned seniority above
those already borne on the cadre, irrespective or the substantive rank held by
them at the time or their intake Into the R & D.
D The Single Judge rejected all the contentions and declined to grant relief.
The.R & DOrganiS11tion was however directed ·to issue .the tentative seniority
list drawn up in accordance with Rule 16. The Letters Patent Appeal filed by
the appe1lant was dismissed in limlne.
Dismissing the appeal to this Court,
E HELD : l. Since officers from different sources are taken into the
R & D Organi<sltion for meeting the disciplinewise requirements arising therein
from time to time and they are brought into a common pool on such permanent
secondment, a reasonable principle had to be evolved for fixation of inter se
seniority within the R & D cadre. The principle adopted under Rule 4 of
reckonins: seniority with reference to the date of attainment of the rank of subs ..
tantive Majorjequivalent strikes a·reasonable mean as it ensures to all: the service
F officers in the R & D the fixation of seniority in the integrated cadre giving full
credit to the length of service put in by them in their respective parent
services. [466 C; 466 H; 467 A]
2. It is settled law that the urvice conditions pertaining to seniority
are Hable to alteration by subsequent changes that may be introduced
in the rules and except to the extent of protecting promotion\ that have already
G been earned under the previous rules, the revised rules will operate to govern
seniority and future promotion prospects. There is, therefore, no substance in
the argument advanced by the appellant that it was not open to the Government ·
of India to introduce a new principle or seniority by promulgation of Rule 16
so as to affect his rights for future promotion. [463 D·E]
H 3. A statement contained in the statute or statutory rule or the factual
background leading up to the enactment has ordinarily to be accepted and acted
upon by the court as wholly correct, [463 A]
'I. KUMAR V, UNION OF INDIA 455
4. Rule 16 contains a categorica1 declaration that in the past also the A
seniority of service officers permanently seconded to.the R & b Organisation was
b'eing reckoned on the basis of their dates of attainment of substantive rank of
Major/Sqn. Ldr./Lt. Cdr. subject to any 'penalty/loss of seniority that an officer
might suffer subsequently. It is therefore not possible to accept 'the contention
<>f the appellant that prior to the coining ihto f<>roe of the rule he had acquired a
vested right to have his seniority in the R & D reckoned with reference to the
date of his permanent esecondment and to have aJ1 Officers joining the B
organisation on subsequent dates ranked only below him. (462 G-H; 463 B-C)
5. The,~tructure and composition of the Organisation have necessarily
to undergo rapid, qualitative and quantitative changes in the ligPt of the fast
-
---""'- ....
developments that take place in science, technology and international relations.
The intake of service Officers is not on the basis of any general sele~tion from
service cadres. As and when the Organisation finds it necessary to obtain the
service of officers with operational experience in any particular weapon system
or other scientific discipline the parent service is requested to spare for deputation
suitable hands in the particular branch or speciality and initially they are taken
c
on a tenure basis. There is a selection only in a very limited sense that the
suitability of the concerned officer is adjudged before hC is taken but the claims
or merits of others are not considerl"d. The secondment of such officers to the
R & D Organisation is not therefore, effected on the basis or a general selection.
Officers who are senior in the parent service in relation to the person who is
seconded and who may possess greater eXperience and superior attainment might
not have been considered for secondment when their juniors 'in the service were
seconded to the R & D Organisation, because the parent service might not have
been in the position at the relevant point of time to spate the services of the
former. (463 G-H; 464 A·EJ
6. Where persons from different sources _are drafted to serve in a new E
service a just and wholesome principle comtnonl,f applied is that the pre existing
length of service in the parent department should be respected and prese1ved by
taking the same into account in determining their ranking in the new service
cadre. Such a provision does not involve any discrimination violative of Article
16 of the Constitution. [470 E]
R.S. Makashi & Ors. v. l.M. Mellon & Ors., [1982] l S.C.C. 379, J?
referred to.
.} 7. The secondment of ail ofliCer from bis~parer'lt service to the R & D
is not a transfer to Centril Service from a subordinate service or from another
department. [469 G]
8. Rule 16 being statutory in origin, its validity cannot be affected by C:
re3.son of any inconsistency With the provision of a pi'ior executive order
issued by the Central Government i.e. Office Memorandum dated July 22, 1972.
[469 HJ
9. When a statutory rule governing seniority is issued in· respect of a
service) the said rule would govern the personnel in the ~ervice with e'ffect from H
the date of its promulgation and in so giving effect to 'the role in future, n·o
element of retroactivity is involved, (470 G-H)
456 SUPREME COURT REPORTS [1982] 3 s.c.R.
A 10. The promulgation of a statutory rule governing seniority is not a
quasi-judicial fLinction. It is the exercise of a legislative power and in respect
thereof the principlea of natural justice have no application at all. (472 BJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1742 l
of 1980.
B
Appeal by special leave from the judgment and order dated
the I Ith day of April, 1980 of the Delhi High Court in L.P.A. No.
53 of 1980.
•
WITH
c Civil Misc. Petitions Nos. 69 and 5698 of 1981.
Wing Commander J. Kumar Appellant in Person. I
P.A. Francis, Narayan Nettar and Miss A. Subhashlni, for the
Respondent.
D
The Judgment of the Court was delivered by
BALAltRISHNA ERADI, J. This appeal by special leave is
directed against the judgment of a Division Bench of the Delhi High
Court dismissing in limine a Letters Patent Appeal filed by the present
appellant against the jHdgment of a learned Single Judge of that
E
Court whereby the contentions raised by the appellant in Civil Writ
Petition No. 1423 of 1979 were rejected and the said writ petition
was dismissed.
The appellant-Wing Commander J. Kumar-was commis·
1ioned in the ln;lian Air Force on September 3, 1956 with ante·
dated seniority from December IO, 1955. He was permanently
'seconded to the Defence Research Development and Inspection
Organisation (for short, the LR D &·1 Organisation) of the Ministry
of Defence on October 14, 1971. On the bifurcation of the LRL & I
Organisation effected in July 1976 by the separation of the Inspection
Wing, the appellant was retained in the Defence Research and
G Development Organisation, which will hereinafter be referred to as
the R & D Organisation. The Director-General of Defence Research
and Development, who is also the Secretary to Government of India,
Defence Research, is the controlling authority of the R & D cadre.
The said cadre has service officers drawn from all the three Wings
H
of the Armed Forces, namely, the Army, the Navr and the Air
i. KUMAR v. tJNION OF INDIA (!Jaiakrishna Eradi, J.) 457
Force, and in addition thereto a large number of civilian employees A
are also borne on it.
In November 1979, in supersession of all previous Rules and
c
Orders on the subject, the President of India promulgated under the
proviso to Article 309 of the Constitution rules laying down the
procedure for the intake of service officers in the R & D Organisation B
and the terms and conditions of service of those permanently retain-
ed therein. Those rules were issued by the Ministry of Defence of
the Government of India in Office Memorandum No. Persjl8601/RD.
Sel. Bd//7971/D (R&D) dated November 23, 1979, The provisions
of the said Memorandum will hereinafter be referred to as the rules.
Rule 16 deals with the subject of "Seniority after permanent second- c
ment". That rule js in the following terms :
"As hithertofore seniority of all service officers rer-
manently seconded to D RDO will continue to be based
upon their seniority of substantive rank of Major/Sqn.
Ldr./Lt. Cdr., subject to any penalty/loss of seniority that D
an• officer might suffer subsequently and tbe seniority of
officers with substantive ranks higher than Major/Sqn.
Ldr./Lt. Cdr. will after their permanent secondment, also
reckon vis-a-vis other officers in the R&D Cadre, fer future
promotion/confirmation, from the date of their substantive
rank of Major/Sqn. Ldr./Lt. C.dr., subject to any penalty/ E
loss of seniority that an officer might have suffered in his
parent Arm/Service."
- The principal contention advanced by the appellant before us
is that the principle for determination of seniority laid down in·the
above rule is arbitrary and violative of Articles 14 and 16 of the
Constitution. Alternatively, it is contended by the appellant that
since he had been permanently seconded to the R&D Organisation
F
in 1971, long prior to the promulgation of the impugned rules, his
rights regarding seniority and promotions cannot, in any way, be
effected by the provisions of the new rule. According to the appel-
G
·lant, he continues to be governed by the principles that had been
originally laid down in Government of India (Ministry of Defence)
Memorandum dated March 18, 1967, which were the rules in force
at the time of his secondment to the R&D Organisation. It is the
further case of the appellant that the R&D being an independent H
Organisation, the seniority of the personnel absorbed therein has to
be reckoned only with reference to the dates on which they were
l-
sUPREMB cOtJkt REPoRTs (19Si) 3 ~.C.R.
A selected and appointed in the said Organisation and subsequent
entrants into the R&D in any particular category or rank should,
therefore, be placed only below all those who had already joined the
Organisation by virtue of permanent secondment. The appellant
also contends that by taking the date of substantive appointment to
the rank of Major/equivalent as the basis for reckoning seniority,
B officers who had obtained substantive promotions to higher ranks in
the parent service earlier than some of their seniors who were only
subsequently promoted to such higher ranks, will suffer very serious
prejudice because the latter will gain a march over the earlier pro-
motees and supersede them in the matter of seniority in the R&D
Organisation. Elaborating this plea, it was urged on behalf of the
c appellant that the result of the impugned r~le would be to bring
about the anomalous situation where a penon permanently seconded
to the R&D and holding substantively the rank of Lt.Col./equiva-
lent can be superseded in seniority in the said Organisation by a
Major/equivalent of old vintage who had been overlooked for pro-
motion in his parent service and may have thereupon come over to
D the R&D Organisation. Another objection strongly put forward
by the appellant was against the lateral induction of officers at levels
higher than that of substantive Major/equivalent. It was urged by
the appellant that such subsequent inductees into the R&D Orga-
nisation cannot be legally assigned seniority above . those a.lready
borne on the cadre, irrespective of the substantive rank held by
E them at the time of their intake into the R&D. The appellant has
rested this contention on the premise that the intake of officers into
the R&D is by a selection based on merit and hence those selected
earlier must necessarily rank higher in the seniority list of the Orga-
nisation in relation to those who are selected and appointed in the
Organisation only on later dates. The appellant has urged a further
F
point before us that the seniority of officers of the Navy, Army and
- Air Force holding equivalent ranks who served in the Organisation
is governed by the principle laid down in, Regulation No. 251 of the·
"Naval Ceramonials, Conditions of Service and Miscellaneous
Regulations, 1964", and the impugned rule in so far as it is contrary
G to the principle laid down in the said Regulation has to be declared
as invalid and inoperative. Some other incidental pleas and grievances
were also put forward by the appellant before the High Court as
well as before us and we shall be dealing with them later on at
the appropriate stage.
H
The learned Single Judge of the High Court rejected all the
aforesaid contentions advanced by the appellant and declined to
J. KUMAR v. UNION OF INDIA (Balakrishna Eradi, J.) . 459
grant any relief to him, except to the extent of directing the R&D A
Organisation to issue the tentative seniority list drawn up in accor-
dance with the impugned rule within three months from the date of
the judgment and to record the Annual Confidential Reports on the
appellant from April 1, 1976 to March 3.1, 1979 within the . same .
period. The Letters Patent Appeal filed by the appeJJant against
the said judgment having been dismissed in Iimine b;· a Division B
• Bench of the High Court, the appellant has preferred this appeal
after obtaining special leave from this Court.
The Defence Research and Development Organisation (R&D)
has been set up under the Ministry· of Defence for carrying on
scientific and technological research and development work on pro- c
jects of vital importance to the defence forces of this country. The
head of the said Organisation is a civilian, namely, the Scientific
Adviser to the Defence Ministry and its personnel consist of a large
number of civilian scientists and a much smaller number of service
officers drawn from the three defence services. The service officers
"are initially taken on short tenure and are later permanently D
seconded to the R&D Organisation if found suitable and willing.
Those service officers who were permanently seconded and absorbed
in the R&D cadre are thereafter governed by the terms and condi-
tions of service applicable to the officers of the said cadre.
Originally, the Defence Research and Development Organisa-
tion (R&D) and the Director-General of Inspection (DGI) had a
combined cadre-Research Development and Inspection-and the
terms and conditions of service of the personnel borne o0 the said
cadre were governed by the provisions contained in Government of
India (Ministry of.Defence) Memorandum No. 11/(5)/58/D-(R&D) F
dated March 18, 1967. But, those rules ·which had also been
issued by the President of India under the proviso to Article 309 of
the Constitution did not contain any provision laying down the
principles for determination of the seniority of the officers function-
ing in the DRD&I Organisation. Those rules were in force at the
time when the appellant was permanently seconded to the DRD&I G
Organisation in 1971.
Jn the writ petition filed in the High Court, the appellant had
impleaded 8 officers of the R&D Organisation, r.amely, respondents
. nos. 7 and 11 to 17 contending that they have been assigned seni- H
·~\
ority and granted promotions in supersession ·of the appellants's
legitimate claims and ill viol11tio11 of the l'll!e•: ~n \h~ appeal before,
460 SUPllBMB COURT llBPOllrS (!982) 3 S.C.ll.
A this Court, the appellant had added several more service officers of
the R&D as additional respondents. the appellant argued his case
in person and so did some of the respondents whose promotions ind
seniority etc., have been challenged by the appellant.
Arguments advanced by the parties appearing in person were
8 heard by us at considerable length and S'lri P.A Francis, Senior
Advocate, appearing on behalf of Respondents Nos. I and 2,
namely, the Union of India and the Director-General, R&D Orga-
nisation, also addressed arguments before us covering all the aspects.
As already noticed, the main contentions put forward by the
c aupellant are two-fold, namely, that the principles laid down in rule
16 of the rules for determination of the seniority of officers perma-
nently seconded to the R&D are arbitrary and illegal, and that
lateral induction of officers holding r_anks above substantive Major/
equivalent and assigning of seniority to such subsequent inductees
by applying the provisions of rule 16 amounts to deprivation of the
D vested rights of persons-like the appellant-who had joined the '"
Organisation earlier and it is, therefore, illegal and unwarranted.
After aiving our best consideration to the arguments advanced
on both sides, we do not see any substance in either of the aforesaid •
contentions advanced by t~e appellant.
E ""
The Defence Research Development and Inspection Organi·
sation is a Specialised Technological Organisation set up under the -
Ministry of Defence for carrying out research and development
work in weapons like guns, electronics, missiles, tanks etc. Its
F personnel consist of a large number of civilian scientists (about
3,600) and about 430 service officers drawn from all the three Wings
of the Armed Forces with operational experience of such weapon
system to work with the scientists in the research and development
programme. The policy followed in regard to the intake of service
officers appears to have been to take them initially on a tenure basis '
G and subsequently to absorb them in the Organisation on a permanent :,,·
basis in the event of their being found suitable and willing. It is
seen from the affidavits and documents filed on behalf of the res-
pondents that the secondment of service officers depended upon the
exigencies and the special type of need of the Organisation at each
H relevant point of time so much so that officers who could fill the
bill by virtue of their qualification, experience, aptitude and suita-
l>ility in that particular lm1m;4 of defe~W science for which the neecl
1. KUMAR v. UNION OF INDIA (Balakrishna Eradi, J.) 46!
for personnel had arisen and whose services could be spared by their A
parent service were taken into the R&D Organisation from time to
time. Since the officers from· the three services came to the R&D
cadre with different lengths of service a11d at different levels, it
became imperative to evolve a reasonable principle for determina-
tion of their inter se seniority after ·their secondment to the R&D
Organisation. B
The case of the respondents is th.at right. from the beginning,
the policy and practice followed by DRD&I Organisation as well as
- -.....__ ·'-- . by the bifurcated R&D Organisation was to assign seniority with
reference to the date on which the officers attained their rank of c
substantive Major/equivalent. This was, however, strongly refuted
by the appellant who asserts that no such· principle had been formu-
lated or followed by the Organisation prior to the promulgation of
the impugned rules. The respondents produced for our perusal
various files pertaining to the determination of seniority and grant
of promotions in the Organisation during the period ,prior to the 0
issuance of the impugned rules. The appel!l(tlt pointed out with
reference to those very files that there were quite a few instances
where promotions had been effected on a basis. totally at variance
with the principle propounded by the respondents.
From a scrutiny of the files of the Ministry of Defence-R&D E
Organisation-produced before us by the learned counsel appearing
on behalf of the Go:vernrrient of India, it has clearly emerged that,
excepting for a few stray instances, the practice followed in the
- R&D Organisation was to reckon the seniority of the permanently
seconded officers wjth reference to the date of their attaining subs-
tantive rank of Major/equivalent. The principle underlying the
said practice was later formally incorporated in the Minutes of the
DRD&l Selection Board as a decision taken by the Board at its
meeting held in February 1974. The relevant paragraph of the
F
Minutes runs thus :
G
"Officers with substantive ranks higher ·than Maj/Sqn
Ldr/Lt Cdr who are offered permanent secondment will
reckon their substantive seniority in the R&D/Inspection
Organisation for future promotion/confirmation from the
date they got their substantive ranks as Maj/Sqn Ldr and H
subject to any penalties as regards loss of seniority that they
might have suffered in th~ir Arm/Service thereafter. The
462 SUPREME COURT REPORTS · (1982] 3 !.C.R.
A position as above should be clarified to the officers con-
cerned and their acceptance obtained before issuing the
orders of permanent secondment in such cases. These
decisions will apply to cases of permanent secondment
approved by the RD&I Selection Board from 2(74) meeting
onwards."
B
It is also seen from the files pertaining to the period subsequent to
February 1974 that the aforesaid principle was thereafter consis-
tently followed as a binding rule and when it was found that a
departure from the said principle had been erroneously made by
placing three Air Force officers in their substantive rank of Wing
Commander, the authorities concerned rectified the said mistake
'
after clearly noting in the file that the aforesaid principle went un-
noticed by oversight during the processing of those cases by HQ,
R&D and the ranking of those officers \\'as revised so as to bring it
into conformity with the aforesaid rule.
D The relevant file leading up to the issuance· of the impugned
rules was also carefully perused by us. This file contains the
Minutes of the Chief of Staff Committee recommending to the
Government of India that the draft rules may be finally accepted
and issued expeditiously and the noting therein also contains a clear
statement that the principle incorporated in the decision taken at
E the combined meeting of' the DRD&I Selection Board held in
February 1974 w11s merely to incorporate "a rule which was un-
written earlier but actually applied in practice". Thus, there is
sufficient material available on record to substantiate the plea put
forward by the re~pondents that the policy and practice followed in
the DR&DI Organisation an<l later in the R&D Organisation was
F
to fix the seniority of permanently seconded officers with reference
to the date of attainment of the rank of substantive Major/
equivalent.
Further, the impugned rules are statutory in origin as they
have been promulgated by the President of India under the proviso
G
to Article 309 of the Constitution. Rule 16 co 0tains a categorial
declaration that in the past also the seniority· of service officers
permanently seconded to the R&D Organisation was being reckoned
on the basis of their dates of attainment of substantive rankM of
Major/Sqn Ldr/Lt Cdr. subject to any penalty/loss of seniority that
H
an officer might suffer subsequently. The said declaration is clearly
implied in the openin!! words "As hithertofore" occurring in rule 16
•
i. KUMAR v. UNION OF INDIA (iJaiakrishna Eradi, J.) 463
of the impugned rules. A statement contained in a statute or A
statutory rule of the factual background leading up to the enactment
has ordinarily to be accepted and acted upon by the court as wholly
correct; nothing clinching has been brought to our notice by the
appellant to justify any departure from the said principle. We do
not, therefore, find it possible to accept the contention of the
appellant that prior to the corning into force of the impugned rule, B
he had acquired a vested right to have his seniority in the R&D
reckoned with reference to the date of his permanent secondment
and to have all officers joining the Organisation on subsequent
dates ranked only below him. The plea advanced by the appellant
that the impugned rules .have illegally purported to divest hfm of
his vested· rights of seniority and promotion in the R&D must, c
therefore, be rejected as devoid of merit.
Apart from what is stated above, it is settled law that the
service conditions pertaining to seniority are liable to alteration by
subsequent changes that may be introduced in the rules and except
to the extent ofprotecting promotions that have already been earned D
under the previous rules, the revised rules will operate to govern the
seniority and future promotion prospects of all the persons in the
concerned service. There is, therefore, no substance in the argu-
ment advanced by the appellant that it was not open to the Govern-
ment of India to introduce. a new principle of seniority by promul-
gation of the impugned rules so as to affect his ri&hts for future E
promotion.
The next question to be considered is whether the principle
enunciated in rule 16 can be said to be unreasonable or arbitrary,
as contended by the appellant. It is in this context that the specia-
lised character of the R&D OrganlSation assumes importance. Its F
personnel consist of civilian scientists and service officers of high
technological at•ainments in diff~rent disciplines who have been
drawn to the Organisation from time to time according to its
exigencies and needs.
G
The structure and composition of the Organisation have
necessarily to undergo rapid qualitative and quantitative changes in
the light of the fast developments that take place ia the field of
science and technology as well as in international relations. The
research and development work is carried on by the R&D in differ- H
ent systems of weapons and equipments and a variety of disciplines
like electronics, missiles, tanks, telecommunication, rocketry, radars
' .
•
464 SUPBEME COURT REPORTS ' [1982] 3 s.c.R.
A etc. In addition to about 3,600 civilian scientists, the Organisation .
bas about 160 permanently seconded service officers and about 430
service officers taken on a tenure basis. The intake of service officers
is not on the basis of any general selection from service cadres. As •
and when the Organisation finds it necessary to obtain .the services
of officers with operational experience in any particular weapon
system cir other scientific discipline, suitable hands wit' aptitude
skill and experience in that particular branch or speciality whom
their parent service is willing to spare for deputation are initially
taken on a tenure basis. Thus, there is a . selection only in a very
limited sense that the suitability of the concerned officer is adjudged
before he is taken. Bnt what is important to note is that in the
c intake of officers into R&D Organisation there is n~ comparative
evaluation of the merits of the other personnel occupying the same
rank oi possessing like experience in the Defence Services. There
is no process of select.ion. in whi~h their claims or merits are con-
sidered. Thus, it is clear that the secondment of officers to the R&D
Organisation is not effected on the basis of a general selection.
D
There is, therefore, no substance in the contention advanced by the
appellant that the service officers who are seconded to· the R & D
on a later date must take rank only below all those who had joined
the Organisation earlier by virtue of their prior "selection". Officers
who are senior in the parent service.in relation to the person who is
E seconded and who may possesfl greater experience and superior
attainments might not have been considered for secondment when
their juniors in the service were seconded to the R &·D Organisation,
because the parent service might not have been in the position at the
relevant point of time to. spare the s.ervices of the former. Further,
the disciplinewise reqnirementin the R & D at any particular tiine
F will depend upon the nature of the project then taken on hand and
posting of a service officer to the R & D Organisation will be on the
consideration of his experience and apptitude for that particular
type of specialised work and not seniority in the parent service. It
may well happen that a junior officer who has experier ce and
expertise in that special discipline alone may be considered for
G secondment at that particular ,time. Thus, the entry of a service
officer into the R & D is to a large extent dependant on fortuitious
circumstances related to the exigencies and needs that arise in the
Organisation from time to time. It is certainly not based on the
result of any comparative evaluation of his merit, ability or suit-
H ability as against_those of his compeers m the concerned parent
service. . Such being the factual situation, we are of t.Jie view that
i. ituMAR v. uNiON oF INDIA (1Jalakrishna Eradi, J.) 46~
it will not be reasonable, just or fair to determine the seniority of A
the permanently seconded service personnel merely on the basis of-
the date of their secondment to the Organisation.
The next question to be considered is whether the principle
for determination of seniority laid down in the impugned rule 16 is
just, fair and reasonable or whether it is arbitrary and violative of B
Articles 14 and 16 of the Consitution, as contended by the
appellant.
--- The R & D Organisation has in its cadre service officers who
were taken initially on tenure basis from the Army, the Air Force
and the Navy and were later on permanently seconded into the DRD c
& I/ R & D cadre on their being found suitable and willing. The
contention of the appellant is that on such permanent secondment
into the R & D, the interse seniority of the officers should be reckoned
only with reference to the dates of their selection for such permanent
secondment. It is the further plea of the appellant that since at the
time of permanent secondment the oflker concerned has to certify in D
writing that he is relinguishing all his claims of seniority etc., in his
parent service, no weightage can thereafter be given to the rank or
seniority which the person inducted had earned in his parent service
prior to the date of his permanent secondment. We do not find it
possible to accept this contention. Officers from the three Services
holding different ranks are inducted into R & D Organisation from E
time to time depending upon the needs of the Organisation, and if
the appellant's contention is to be accepted, it would lead to serious
anomalies and manifest injustice by upsetting the norms of seniority
- and rank structure which is the basic fabric on which the Arm~d
Forces of the country are built. The unreasonable -consequences
that will flow from the acceptance of the appellant's arguments will
be clearly seen from the following simple illustration :
F
Suppose, in the year 1974, on a particular date, when two
officers are working in the Air Force-:-one as a Wing Commander
and the other in the higher rank of Group Captain-the Wing
Commander is permanently seconded to the R & D Organisation G
and, later, the Group Captain is also permanently seconded to the
R & D in 1975. If the principle advocated by the· appellant is to
be accepted, the Group Captain will become junior to the Wing
Commander by virtue of the latter's earlier induction into the R & D
despite the fact that he had not been even considered for secondment
8
to the R & D at the time when the Wing Commander was taken.
. -
SUPREME COURT RHPORTS (1928] 3 s.c.ll.
A In view of our having already found that the appellant's con-
tention that the secondment to the R & D is based on a "selection"
is incorrect, the basic premise' on which the appellant has founded
his plea that the date of secondment should be the determinative
factor for reckoning seniority in !be R & D cadre, falls to the
ground.
B
Since officers from different sources are taken into the R & D
for meeting the disciplinewise requirements arising in the Organisa-
tion from time to time and they are brought into a common pool on
such permanent secondment, it is inevitable that a reasonable
principle has to be evolved for fixation of their inter se seniority
c within the R & D cadre. The fixation of the seniority on the basis
of the ranks held by them in the different branches of the Armed
Forces would not be reasonable or fair, because substantive ranks
above Major/equivalent in the three Wings of the Armed Forces are
conferred by different Selection Boards at different times and under
varying circumstances and conditions depending upon the vacancies
D
arising at the different levels in the distinct services from time to
time. It is pointed out in the counter-affidavit filed on behalf on
the Union of India (Respondent No. I) that the promotional chances
of officers belonging to the three distinct Wings of the Armed Forces
to posts above the rank of Major/equivalent vary widely and depen-
dant upon fortuitious circumstances which may obtain .,in relation
E
to the distinct services at any relevant point of time. We find there is
force in this submission. In all the three Services, the promotions
up to and inclusive of the rank of Major/equivalent are time-scale
promotions based only on fixed len&th of service. ·In the Air Force
and the Army, the ranks of Major and Sqn. Leader, respectively, are
F attained on an officer putting~in 13 years' service. In the Navy,
the time-scale period for promotion to the equivalent rank of Lt. . '
Commander is said to vary between about· 10 and 13 years. But,
what is important to notice is that 'the promotion to the rank of
Major/equivalent is based only on length of service and not on any
"selection". For posts higher. than that of Major/equivalent, pro-
G motions in all the three Services would depend upon. the occurrence
of vacaacies in the particular branch or group in the concerned
Service, the schemes of expansion that may be taken up from time
to time in the particular Service or branch and also the. extent of
stagnation that may be caused to officers at lower levels by reason
H of the officers who are young in age occupying posts in the
immediate higher levels, etc. · When due regard is had to all the
aspects and circumstances, narrated above, it will be seen that the
j, itUMAR v. UNION OF INDIA (/Jafakrishna Eradi, J.) 467
principle adopted under the impugned rule of reckoning seniority A
with reference to a date of attainment of the rank of substantive
Major/equivalent strikes a reasonable mean as it ensures to .all the
service officers in the R & D the fixation o(seniority in the integrated
• cadre giving full credit to the length of service put in by them in
their respective parent services.
B
A similar seniority rule fol'!llulated by the State of Maharashtra
in a somewhat like situation, when an integrated cadre consisting of
personnel drawn from different sources was.formed in the State of
Maharashtra for, administering the Rationing Scheme, was recently
upheld by this Court in R.S. Makashi & Ors. v. J.M. Menon &
Ors.(') c
The following observations contained in that judgment are
apposite in the present .context :
"When personnel drawn from different sources are
being absorbed and integrated in a new department, . it is D
primarily for the ·Government or the executive authority
concerned to decide as a matter of policy how the equation
of posts should be effected. The courts will not interfere
with such a decision unless it is shown to be arbitrary,
unreasonable or unfair, and if no manifest unfairness or
unreasonableness is made out, the court will not sit in E
appeal and examine the propriety or wisdom of the princi-
ple of equation of post9 .adopted by the Governments."
In enunciating the principle incorporated in the impugned
•
• ~.
rule, the rule-making authority has adopted as the base for reckon-
ing seniority the highest common factC>r applicable in respect of time
scale promotions in the three services, namely the rank of Major/
equivalent and thereby ensured to the service officers seconded to
the R & D Organisation a just and equitable treatment. The rule
provides for the reckoning of the seniority of the seconded officers
F
by taking into account the length of their service in the parent
service, for which the date of attainment of the rank of substantive G
Major/equivalent would furnish a safe index. In our opinion, the
said principle cannot be said to be arbitrary, unjust or unreasonable
and the contention to contrary put forward by the appellant will,
therefore, stand rejected.
H
(I) [1982) I s.c.c. 379.
468 SUPREME COURT RilPORtS [i 9s2j 3s.c.it.
A It is no doubt true that in the Navy, promotions te the rank
of Lt. Commander which• is equivalent to that of Major in the Army
may be -attained by an officer within a slightly shorter period of
service, namely, between IO and 13 years whereas, in the Army and
the Air Force, the promotion to the rank of Major/equivalent is •
given only on completion of 13 years of service. The slight dis-
B parity in the promotion prospects between the Navy and the other
two Services·will not, however, affect the reasonableness of the
impugned rule because it is impossible to achieve perfect arithmeti-
cal precision in such matters where officers. drawn from different
sources are to be integrated into one common cadre and a rule for
fixing their inter se seniority is formulated. Further, it is seen from
c the counter-affidavits of Respondents I to 3 that out of about 160
permanently seconded officers of the R & D Organisation, the large
majority are from the Army, a considerable section of the balance
is from the Air Foree and only less than 10 officers have come from
the Navy.
D It is also relevant to notice in this context that it is specifically
provided in rule 4 of·tbe impugned rule that t_he intake of service
officers to fill appointments in the R & D Organisation will ordi·
narily be at Major/equivalent level. Under rule 5, officers in higher
ranks should be considered for permanent secondment only in
exceptional cases and when such a course is adopted, it will be
E subject to the condition that their seniority in the R & D cadre will
be fixed as stipulated in rule 16. The incorporation of the afore'
said provisions which operate as a safeguard against large scale
induction of officers above the substantive rank of Major/equivalent
further fortifies the conclusion arrived at by us that the adoption of
the date of substantive Major/equivalent as the criterion for fixing
F inter se seniority in the R & D cadre was logically fair, just and
reasonable.
The appellant sought to rely strongly on Regulation 251 of the
Naval Ceremonials, Conditions of Service and Miscellaneous Regu-
lations, 1954 and on the provisions contained in the Order A0102/73.
G Regulation 251 provides that "the relative seniority of officers of
the Army, Navy and Air Force, holding equivalent ranks, who ·
serve together in an Inter-service ·Organisation will be regulated as
follows." The latter Order is in the following terms : ·
.ff "(a) Officers holding equivalent substantive rank (no
acting rank) will rank .according to their seniority in
the substantive rank ; and
), K{/MAR v. tJNiON oF INDIA (Ba/akrishna Eradi, J.) 469
(b) Officers holding acting rank will rank after officers A
holding corresponding substantive rank and in
relation to each other, · they will rank according io
their seniority in the substantive rank."
In our opinion, neither the Regulation aforementioned nor
the Order, extracted above, has any application to the present situa- .B
tion. The R & D Organisation is not an lnter-servic,ll Organisation
-"-·
within the meaning of the expression as used in the aforementioned
Regulation and Order.. It is predominantly a civil organisation
.• headed by a civilian Director-General and having a total strength of
about 24,000 employees. · The large majority of the personnel
working in the R & D Organisation are civilian scientists who are c
more than 3,000 in number, there are also about 160 service· officers
permanently seconded to the R & D cadre and about 240 service
officers taken on tenure basis. But, merely because the R & D
Organisation has on its staff serving officers from the Army, Air
Force and Navy, it cannot be Said to be an "Inter-service Organisa-
tion" governed by the provisions of the aforesaid Regulation and D
Order. The topic°dealt with in the aforesaid Regulation and Order
is only "seniority" for purposes of command, precedence, discipline
etc., for working purposes to be allied in situations where officers
from more than one service operate together in one group as in times
of war for carrying out any particular mission or task. ·
E
Another argument advanced by the appellant was that the
impugned rule cannot be upheld as valid inasmuch as it is in conflict
with paragraph 7 of the Government of India Offioe Memorandum
No. 9372·Estt(D), Cabinet Secretariat, Department of Personnel,
dated July 22, 1972, which is in the following terms :
F
"7. Transferees :-(I) The relative seniority of persons
appointed by transfer to Central Services from the sub-
ordinate offices of the Central Government or other depart-
ment shall be determined in accordance with the order of
their selection for such transfer."
G
We see no substance in this contention. The secondment of an
officer from his parent service to the R&D is not a transfer to
Central Service from a subordinate service or from another depart-
ment. Further, the impugned' rule being statutory in origin, its
validity cannot be affected by reason of any inconsistency with the H
provisions of a prior executive order issued by the Central
Government.
470 SUPREME COURT REPoRTS [19.82j 3 s.c.R.
A An allegation has been put forward by the appellant that "the
letter dated November 23, 1979 was a fraud on rules and the
Consti'tution, played by respondent no. 5 who got the same issued
to obtain personal gain by misusing his official position, leading to
colourable exercise of power by the authority who actually issued
that letter". To put it mildly, we find that this is a reckless alle·
B gation devoid of any factual basis. We h'ave gone through the files
leading up to the· issuance of the impugned rules and it is seen there-
from that the matter has been processed by different authorities at
different stages and before the draft rules were ultimately submitted
to the Government of India for approval, they had been considered
and approved at a joint meeting of the Chiefs of Staff also.
c
Equally untenable is the further plea advanced by the appellant
that since the R&D is an integrated cadre, there cannot be any
further classification of the officers comprised therein on the basis
of the length of service put in by them in their respective parent
D services prior to their permanent secondment in the R&D. As
pointed out by this Court in the decision in R. S. Makashi v !. M.
Menon (supra), ir is a just and wholes?me principle commonly
applied in such situations where persons from different sources are
drafted to serve in a new service that their pre·existing length of
service in the parent department should be respected and preserved
E by taking.the same into account in determining their ranking in the
new service cadre. Such a provision does not involve any discrimi-
nation violative of Article 16 of the Constitution.
Yet, another argument advanced by the appellant is that the
Impugned rule not having been specifically declared to be retros-
F pective in operation, its provisions cannot be applied to the appellant
inasmuch as he had been inducted into the R&D cadre on October
14, 1971 long prior to the promulgation of the new rules. We have
already found that, as a matter of fact, the practice generally
followed in the R&D Organisation, even prior to the promulgation
G of the impugned rules, was to reckon seniority with reference to the
date of attainment of the rank of substantive Major/equivalent.
Even otherwise, when a statutory rule governing seniority is issued
in respect of a service, the said rule would govern the personnel in
the service with effect from the date of its promulgation and in so
H giving effect to the rule in future, there is no element of retroactivity
involved. Of course, the rules will not operate to deprive any
person of promotions already earned in the past, but, for purposes
J, KUMAR v. UNION OF INDIA !Balakrishna Eradi, J.) 471
Of future promotions and seniority in the department, the principles A
laid down in the impugned rule will necessarily govern all the
personnel alike. This contention of the appellant has also to fail.
(
· It was very strongly contended by the appellant that the lateral
induction of senior service officers holding ranks above the subs·
tantive Major/equivalent level operates to deprive the existing R&D
B
personnel of their vested rights to promotions within. the cadre and
hence, such inductions must be held to be illegal and void. This
contention ignores the fact that rule 5 specifically provides that in
exceptional cases, officers above the rank of Major/equivalent may
be drafted into the R&D. The contention of the appellant appears
·to us to be based on a fallacious assumption that the R&D cadre
c
exists for the sake of the personnel working therein and not for
effectuating the purpose underlying its constitution which is of such
vital importance to the Nation's safety. The Organisation has been
formed with a view to have a highly specialised cadre of techno·
logical and scientific experts to design and develop military hardware D
etc., for the Armed Forces of the country keeping abreast of the
latest developments and advances in the field of defence science .•
To effectuate this purpose, such an Organisation by its very nature
cannot remain static or stagnant, but has to be constantly expanding
qualitatively and quantitatively. The personnel requir•ments of the
Organisation are, therefore, bound to change from time to time and E
to meet such changing needs, the services of qualified experts with
specialised knowledge, skill and experience will have to be enlisted
from time to time. A particular service officer in the Army, Air
Force or Navy may be the best person suited for being placed in
charge of a specialised job newly taken on band, and in such a
situation the Organisation must have the freedom to indent for the F
services of the officer concerned irrespective of the rank that he may
be holding in his parent service. We do not find it possible to recog-
nise any right in the officers already working in the R&D to obiect
to the lateral induction of senior officers under such circumstances.
The contention put forward by the appellant that lateral inductions
into the R&D cadre constitute an illegal deprivation of the vested G
rights of persons already working therein and are consequently
illegal and void, cannot, therefore, be accepted.
The next point urged by the appellant is that since the im· H
pugned rules disturb the previously fixed seniority, it is guasi·
judicial in nature and they ought to h11ve been issued only aftef
472 SUPREME COURT REPORTS [1982) 3 S.C.R,
A giving notice to all the affected persons. We have already found
th• t no alteration in the pre· existing policy relating to determination
of seniority in the R&D has been brought about by the impugned
rules. Quite apart from that, the promulgation of a statutory rule
governing seniority is not a quasi-judicial function. It is the exercise
of a legislative power and in respect thereof the principles of natural
B justice have no application at all.
Detailed facts pertaining to the history of service of the
various officers impleaded in the appeal as respondents were referred
to by the appellant during the course of bis arguments, and such of
the respondents who appeared in person countered those submissions
c by placing before us, what, according to them, are the correct facts
relating to their service history. The challenge made by the appellant
against the ranking and seniority of the officers impleaded as rei-
pondents is based solely on his contention tha.t the seniority principle
enundated in rule 16 is arbitrary, illegal anc! ultra vires and that, in
'
any event, the said principle cannot be applied to him. The said
D contention has been found by us to be untenable. Hence, it is not
necessary for us to refer to the details regarding the service history
of •.he appellant vis-a-vis those of the service officers who have been
impleaded as respondents in the appeal.
In the light of our foregoing discussion, it follows that the
E High Court was perfectly. right in upholding the validity of the
impugned rule and in rejecting the challenge raised by the petitioner-
appellant against the selections, inductions and , promotions made in
the R&D Organisation on the basis of the said rule.
--
In the course of his submissions befere this Court, the
F appellant put forward a grievance that, notwithstanding the directions
issued by the High Court in its judgment under appeal, he has not
been given any posting or assign men!. Counsel appeario g on behalf
of the Union of India and the Scientific Adviser to the Defence
Minister made available for our perusal the files relating . to the
G appellant's posting to the D R&D Laboratory at Hyderabad and
the allotment of specific assignments therein to the appellant from
time to time. Having gone through the files, we have come to the
conclusion that there is no factual foundation for the grievance put
forward by the appellant, and hence no directions from this Court
are called- for in regard to the said matter. We are purposefully
H refraining from dwelling in greater detail on this aspect lest any
observations that we may make should prejudicially affect the future
J. KUMAR v. UNION OF INDIA (Ba/akrishna Eradi, J.) 473
service prospects of the appellant. We, however, consider it neces- A
sary to observe that the appellant would do well to rid himself of
the obseession that all his official superiors are put to harass or
persecute him and open up a new chapter of devoting his high
talents and skills for advancing the effectiveness of the R&D
Organisation.
B
The charges put forward by the appellant in the Contempt
Application (C.M.P. No. 5698 of 1981) and· in C.M.P. No. 69 of
1981 filed by the appellant under Section 340(1), Code of Criminal
Procedure are bereft of merit and those applications will accordingly
stand dismissed.
c
In the result, we dismiss this appeal but direct the parties to
bear their respective costs.
·'
N.V.K . Appeal dismissed. D
•
~··
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