Supreme Court upholds Indian Army’s ‘command and exit’ policy [Read Judgment]

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3208 OF 2015

UNION OF INDIA AND ANR.                      …APPELLANTS

                                   VERSUS

LT. COL. P.K. CHOUDHARY AND ORS.        …RESPONDENTS

                                    WITH

                      CIVIL APPEAL NO. D.11682 OF 2015

UNION OF INDIA AND ANR.                      …APPELLANTS

                                   VERSUS

IC 55047L LT. COL. RAY GAUTAM
PRASAD (RETD.) & ORS.                        …RESPONDENTS

                                    WITH

                      CIVIL APPEAL NO. D.10623 OF 2015

UNION OF INDIA AND ANR.                      …APPELLANTS

                                   VERSUS

IC 54169H LT. COL. FARAN SIDIQUI & ORS. …RESPONDENTS

                               J U D G M E N T

T.S. THAKUR, CJI.

1.    These appeals under Section 31 of the Armed Forces Tribunal Act,  2007
are directed against a judgment and order dated 2nd March,  2015  passed  by
the Armed Forces Tribunal, Principal  Bench,  New  Delhi,  whereby  Original
Application No. 430/2012 filed by  the  Respondents  has  been  allowed  and
policy circular dated 20th January, 2009 issued by the Government  of  India
quashed with a direction to the Appellant-Union of  India  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 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   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 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 challenge to the  allocation  of
cadets to Arms, Arms Support or Services at any point of time.  It  is  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  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.430 of 2012 in the Tribunal and continue to do so at present.

4.    Post-Kargil War, the Government of India constituted what  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  representative  of  the  Ministry  of
Defence  (Finance),  Director  General  (MP&PS),  Army  Headquarters,  Joint
Secretary (G), Ministry of  Defence  and  several  senior  officers  of  the
Indian  Army  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 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  the
Air Force who could 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 this 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
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  the  existing
system. The age  of  Lieutenant  Generals  was,  according  to  the  Report,
profiled at 55-56 years instead of 56-57 years under  the  existing  system.
The lowering of age profile was considered by the Committee to be  necessary
for enhancing the optimal combat effectiveness of the Army. To 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 while the another 300 vacancies 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  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.

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  21st  December,  2004.   These  vacancies  were
sanctioned by upgradation of appointments in the  rank  of  Lt.  Colonel  to
Colonel in a phased manner spread over a period of two years i.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  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 3rd  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 “Command Exit Model”  which  the  Government  of  India
claimed was in consonance with the functional and  operational  requirements
of the Army.

7.    Aggrieved by the denial of a pro-rata share in the 2nd tranche of  the
additional  vacancies  released  by  the  Government,  officers   like   the
respondents who are serving in the Arms Support and  Service  Corps  of  the
Army, filed Original Applications No. 430 of 2012, 77 of  2014  and  147  of
2015 before the Armed Forces  Tribunal,  Principal  Bench,  New  Delhi    to
challenge the Government’s policy dated 29th January,  2009  on  the  ground
that the same was discriminatory, arbitrary  and  violative  of  fundamental
rights guaranteed to them.  They prayed for quashing of 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-Date’
seniority and arrears of  pay  and  allowances  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  of  India  contested  the  claim  made  by  the
respondents and argued that the recommendations made by  the  AVS  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 vacancies  were  created.   The  allegation
that the policy formulated by the Government or  the  “Command  Exit  Model”
for allocation of vacancies was discriminatory and/or arbitrary was  stoutly
denied.

9.    By its  order  dated  2nd  March,  2015  the  Armed  Forces  Tribunal,
Principal Bench, New Delhi has allowed the Original Application(s) filed  by
the respondents and quashed Government of India policy dated  21st  January,
2009  with  the  direction  that  the  Government  of  India  shall   create
supernumerary  posts  so  that  the  additional  vacancies  so  created  are
allocated to all the three streams on a pro rata basis. The  present  appeal
under Section 31 of the Armed Forces Tribunal Act, 2007  calls  in  question
the correctness of the judgment and order as already noticed above.

10.   We have heard learned counsel for the 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 for our determination.

Did the AV Singh Committee recommend lowering of 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?
Were the recommendations made by the AV Singh 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
on pro rata basis among all the three streams?

Whether there was any illegality, irregularity or  unfairness in the  matter
of  allocation  of  vacancies  to  Arms  Support  on  “Command  Exit  Model”
principle?

Do Officers serving in Arms, Arms Support and Services constitute  a  single
cadre?

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 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  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  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 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.
Maninder Singh, ASG,  that the recommendations made  by  the  AVS  Committee
favoured creation of additional vacancies only for  Arms  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, 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.    If  the  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 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  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 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 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  the
issues  relating  to  individual  aspirations  left   unfulfilled   due   to
inadequate career progression, disparity with  Class-A  civil  services  and
harsh service 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  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  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 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 difficult to sustain mental and physical alertness 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  Commanders  even  a  higher  degree  of
physical fitness and alertness is required which is difficult  since  Indian
Army Officers assume command at the 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 should assume command at the age of 36-37 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 to  maintain
optimum operational effectiveness. The Committee, at the  same  time,  noted
the possibility of re-command in respect of certain Arms 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 would be required  every  year  is  406.
The details are set out in a chart forming part of the report which  may  be
gainfully extracted at this stage:

|Srl. |Arm/Service      |Number of   |Desired|Period officer in|Number of    |
|No.  |                 |Units       |Tenure |command (Years)  |Colonel      |
|     |                 |            |(Years)|                 |required per |
|     |                 |            |       |                 |year         |
|(a)  |Armoured Corps   |62    |     |3      |3     |No        |21    |      |
|     |                 |      |     |       |      |re-command|      |      |
|     |                 |      |     |       |      |          |      |      |
|     |                 |      |     |       |      |          |      |      |
|     |                 |      |     |       |      |          |      |      |
|     |                 |      |1038 |       |      |          |      |354   |
|(b)  |Infantry         |448   |     |2.5    |2.5   |-do-      |179   |      |
|(c)  |Mechanised       |39    |     |3      |3     |-do-      |13    |      |
|     |Infantry         |      |     |       |      |          |      |      |
|(d)  |Artillery        |210   |     |3      |3     |-do-      |70    |      |
|(e)  |AD               |50    |     |2-3    |4     |Possibilit|13    |      |
|     |                 |      |     |       |      |y of      |      |      |
|     |                 |      |     |       |      |re-command|      |      |
|(f)  |Engineers        |132   |     |2-3    |4     |-do-      |33    |      |
|(g)  |Signals          |97    |     |2-3    |4     |-do-      |25    |      |
|(h)  |ASC              |87          |2-3    |5     |-do-      |17    |      |
|(i)  |AOC              |60          |2-3    |5     |-do-      |12    |      |
|(j)  |EME              |114         |2-3    |5     |-do-      |23    |      |
|     |Total            |1299        |                          |406          |

16.   The Committee,  then,  picked-up  354  Colonels  for  Armoured  Corps,
Infantry, Mechanised  Infantry,  Field  Artillery,  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:
“20. Out of the overall requirement of 406 Colonels every year  as  per  the
table above, there would be a need  of  354  Colonels  for  Armoured  Corps,
Infantry, Mechanised  Infantry,  Field  Artillery,  Air  Defence  Artillery,
Engineers and Signals, which are operational  formations,  keeping  in  view
that the need to bring down age profile of unit commanders is primarily  for
the operational units.  In the above table, for the arms 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 command in the Colonels rank.”

                                               (Emphasis supplied)


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  of
374  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 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 form a subset of the whole  cadre,
and towards which the age reduction exercise  is  principally  directed,  we
find that approximately 143 Colonels and 31 Brigadiers are promoted  to  the
next higher rank every year and 241 and 112 respectively exit each  year  on
retirement.  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 354 Colonels and 129 Brigadiers  for  the  Arms
as per table at paras 17 and 19. These vacancies are adequate  to  keep  the
whole cadre structure in a state of equilibrium, but that  equilibrium  will
be at the current high age profile.  Therefore,  a  mechanism  needs  to  be
found to bring the cadre structure, especially of the  Arms,  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,  worked  out  the
vacancies required for Colonels  in  Armoured  Corps,  Infantry,  Mechanised
Infantry, Artillery,  AD,  Engineers  and  Signals  and  Brigadiers  in  the
General Cadre, Field Artillery and Engineers.
      “36.  Based on these parameters, vacancies that would be required  for
Colonels in Armoured Corps, Infantry, 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  13  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  than  that  required  to  operate  under  combat
conditions.




|Service |Age |Colonel    |Brigadier |    |Major   |    |Lieutenant       |
|        |    |           |          |    |General |    |General          |
|15      |37  |354  |     |-         |    |-       |    |-                |
|        |    |     |     |          |    |        |    |                 |
|        |    |     |     |          |    |        |    |                 |
|        |    |     |     |          |    |        |    |                 |
|        |    |     |2832 |          |    |        |    |                 |
|16      |38  |354  |     |-         |    |-       |    |-                |
|17      |39  |354  |     |-         |    |-       |    |-                |
|18      |40  |354  |     |-         |    |-       |    |-                |
|19      |41  |354  |     |-         |    |-       |    |-                |
|20      |42  |354  |     |-         |    |-       |    |-                |
|21      |43  |354  |     |-         |    |-       |    |-                |
|22      |44  |354  |     |-         |    |-       |    |-                |
|23      |45  |225  |     |129       |    |-       |    |-                |
|        |    |     |     |          |    |        |    |                 |
|        |    |     |     |          |774 |        |    |                 |
|        |    |     |     |          |    |        |    |                 |
|        |    |     |2025 |          |    |        |    |                 |
|24      |46  |225  |     |129       |    |-       |    |-                |
|25      |47  |225  |     |129       |    |-       |    |-                |
|26      |48  |225  |     |129       |    |-       |    |-                |
|27      |49  |225  |     |129       |    |-       |    |-                |
|28      |50  |225  |     |129       |    |-       |    |-                |
|29      |51  |225  |     |77        |    |52      |    |-                |
|        |    |     |     |          |    |        |    |                 |
|        |    |     |     |          |385 |        |260 |                 |
|30      |52  |225  |     |77        |    |52      |    |-                |
|31      |53  |225  |     |77        |    |52      |    |-                |
|32      |54  |-    |     |77        |    |52      |    |-                |
|33      |55  |-    |     |77        |    |52      |    |-                |
|34      |56  |-    |     |-         |    |31      |62  |21               |
|35      |57  |-    |     |-         |    |31      |    |21               |
|36      |58  |-    |-    |          |    |        |    |21               |
|37      |59  |-    |-    |-         |    |-       |    |21               |
|38      |60  |-    |-    |-         |    |        |    |                 |
|Total in each|4857       |1159           |322           |84         |“    |
|rank         |           |               |              |           |     |


(Emphasis supplied)

19.   The Committee  finally  concluded  that  out  of  the  requirement  of
vacancies projected by Army Headquarters, 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:

|Sl.No |Rank       |Additional   |Release of|Vacancies    |Vacancies    |
|      |           |vacancies    |vacancies |recommended  |recommended  |
|      |           |required     |over five |by the       |by the       |
|      |           |(without Peel|years with|Committee for|Committee for|
|      |           |Factor) to   |Peel      |release in   |release in   |
|      |           |bring down   |Factor as |1st year     |the 2nd year |
|      |           |age profile  |projected |             |at annual    |
|      |           |as           |by AHQ    |             |review       |
|      |           |recommended  |          |             |             |
|      |           |by AHQ       |          |             |             |
|(a)   |Lieutenant |29           |20        |05           |03           |
|      |General    |             |          |             |             |
|(b)   |Major      |159          |75        |10           |08           |
|      |General    |             |          |             |             |
|(c)   |Brigadier  |496          |222       |75           |35           |
|(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  Armoured  Corps,  Infantry,  Mechanised  Infantry,
Artillery, AD, Engineers and signals as operational formations  leaving  out
ASC, 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 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  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 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 nor was the distribution of the additional  vacancies
discriminatory as alleged.  Question No. 1 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  regarding  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 the Government had actually accepted the  “Command
Exit Model” for allocation of the newly created  additional  vacancies.  The
inference, according to  them,  is  that  “Command  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
Committee.

22.   On behalf of Government of India it is, per contra, contended  by  Mr.
Maninder  Singh  that  the  Government  had   unequivocally   accepted   the
recommendations of the Committee including  the  “Command  Exit  Model”  for
allocation of the newly created  vacancies.  Reliance  in  support  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 22nd April, 2015 in which this Court demanded a specific  answer  from
the Government as  to  whether  the  “Command  Exit  Model”  for  allocation
suggested by AV Singh Committee had been accepted by 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  that  the  Government  and  the  Government
alone could say whether the recommendations of the Committee  were  accepted
by it. The 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  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  22nd  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  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  Headquarters  while
making  the  allocations.  Mr.  Maninder  Singh  fairly  conceded  that  the
allocation of 750 vacancies comprising the first tranche  was  made  by  the
Army Headquarters in breach of “Command Exit Model”.  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 that since the  allocation  stood  made  and  the  officers  found
eligible  for  promotion  stood  promoted,  it  was  neither  advisable  nor
feasible to withdraw the benefit so availed by  the  officers  by  reversing
the process for a fresh allocation. One of the reasons which,  according  to
Mr.  Singh,  made  the  breach  inconsequential,   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”.  It was also contended by Mr. Maninder  Singh  that  the  Government
had actually set off the excess allocation made in the first  tranche  while
allocating 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.  Allocation made on  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 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  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  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 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  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  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  “Command  Exit   Model”   principle   without   taking   into
consideration the excess, if  any,  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 previously allocated. We  shall  turn  to
that statement when we take-up Question No. 3 for  discussion,  but,  before
we  do  so  we  need  to  conclude  Question  No.2  by  holding   that   the
recommendations of the AVS  Committee  regarding  allocation  of  additional
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 rata basis contrary to the Government decision  and
the recommendations of the Committee did not  affect  the  validity  of  the
decision nor did it amount to reversal of the said decision or its  dilution
in any manner. Question No.2 is answered accordingly.


Re: Question No.3

26.   A two-fold argument was advanced on behalf of the respondents  on  the
question of unfairness in the matter of allocation  of  vacancies.   In  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 committed by the  Government  or  the
Army Headquarters 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  2nd
tranche should have been made without any adjustment based  on  the  earlier
pro rata allotment, meaning 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  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 seriatim.

28.   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  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 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 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 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
decision. 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 of upto four years for officers serving in Arms  Support,
it will 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  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 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  vacancies  that  would  be
additionally due to arms support on Command Exit Model as under:
|             |Number of vacancies due to|Actual           |Deficit |
|             |1. AAD, 2. Engineers, 3.  |distribution made|        |
|             |Signals out of II tranche |in 2009 with     |        |
|             |of 734 posts taking the   |tenure taken to  |        |
|             |tenure to be 3 years      |be 4 years       |        |
|             |instead of 4 years        |                 |        |
|AAD          |31                        |7                |24      |
|Engineers    |79                        |17               |62      |
|Signal       |66                        |11               |55      |
|Total        |                          |                 |141     |

29.   It follows from the above that 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.   It  is,  at  the  same
time, heartening to note that the Government have  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  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 allocation to Arms  Support  so
that the same are utilized appropriately  for  promoting  officers  eligible
for such promotion.  Mr. Singh, however, suggested a method  of  utilization
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 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 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  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 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.
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
30.   We have while dealing with question No.1 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 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 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  of  that  contention
was placed upon a circular dated 12th 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 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  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 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”  is  not  synonymous  with
‘service’. Fundamental Rule 9(4)  defines  the  word  “cadre”  to  mean  the
strength of a service or 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 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 joint cadre of  the  Director
and the Deputy Directors because the posts are not interchangeable  and  the
incumbents do not 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  of
the Service….”

                                        (Emphasis supplied)


31.   So also in M. Hara Bhupal vs. Union of India and Others (1997)  3  SCC
561, this Court found that interchangeability is a necessary element of  the
posts being in the same cadre.   In  S.  I.  Rooplal  and  Another  vs.  Lt.
Governor through Chief Secretary, Delhi and others (2000) 1  SCC  644,  this
Court was dealing with “equivalence of posts” 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 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  hesitation  in
holding that 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 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  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 promoted.  Reliance by the respondents upon  Circular  dated  12th
November, 1987, is in our view misplaced.  That  circular,  it  is  evident,
from a reading of the same was 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 army 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 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 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  that
officers in different streams constitute different cadres.   Since  however,
the argument based  on  legitimate  expectation  is  pitched  on  a  broader
principle, we need to recapitulate  on  the  risk  of  repetition  that  the
Indian Army comprises the following 11 major streams:  (1)  Armoured  Corps,
(2) Infantry, (3) Mechanised Infantry, (4) Artillery (5)  Air  Defence  (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 participate in direct tactical  land  combat  in  a  war
with requisite weaponary. The next  four  namely   Artillery,   Air  Defence
(AD), Engineers, and  Signals are commonly 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 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 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  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  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 General’s Branch Circular  dated
4th August, 2006 issued to the Indian Military Academy, Dehradun  lays  down
the working parameters  to  ensure  equitable  distribution  of  GCs/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 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 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 the following factors to be kept in mind  while  exercising
the choice by the cadets:
Super Block GCs opting for Arms will  be  permitted  to  give  choice  of  a
particular Regiment/Battalion.

GCs/LCs exercising Parental Claims will  be  permitted  to  give  choice  of
particular Regt/Bn/Gp.

GCs can offer three choices in their order of preference.

GCs can opt for Arms only or Arms/Services in their three choices.


GCs can however opt for only one Service in their three choices.


Optees for the Parachute Regiment can indicate choice  of  five  PARA  (SF),
units (1,2,3,4,9, 10 & 21) in order of preference.  Volunteer for Para  (SF)
will be deemed to have volunteered for Para Battalion also.


GCs  opting  for  Artillery  will  be  permitted  to   specify   choice   of
Fd/Med/SATA/Msl Gps.


GC opting for AD Arty will be deemed to have opted forArtillery.


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 10+2 stage  will  also  be  inducted.  Parental
claims of non-science GCs in AAD will however, be honoured.

GCs opting for Armd Regt/Mech Inf will be permitted  to  specify  choice  of
Armd Regt/Mech Inf/Guards Bns.


GCs opting for Armoured Corps or Mechanised Infantry will be deemed to  have
opted for Infantry.

GCs opting for Inf will give choice of three Regts (in order of preference)


GCs/LCs opting  for  Corps  of  Engrs  will  give  the  preference  of  Gps:
Madras/Bengal/Bombay.”

35.   Para 19(e) of the policy guidelines, inter alia, provides 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. It is noteworthy that out  of  a
total of 30 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  one  got
allotted to the stream of his 3rd 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  2nd  choice.
There is no denying the fact that GCs who made their  choices  are  presumed
to be fully aware of 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.

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  maintain  parity
among officers who passed out in 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 that having regard to Deprivation  Risk
(DRI) 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  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 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
within their own verticals in terms of para 70 of  DSR  RA  which  reads  as
under:

“…..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  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  of  20%  extra
for Combat Arms to a level where  the  objective  of  inducting  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  2½  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  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 of  0-1-2  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  of  the
1989  batch  of  ‘Combat  Arms  Support’  and  officers  of  1988  batch  of
‘Services’.  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 2012 by which time officers belonging to Infantry and  Artillery  of
1994 had already been considered by Selection  Board  3  in  the  year  2009
i.e., 2½ years prior to the consideration of the Respondent – Lt. Col.  P  K
Choudhary. No grievance was, however made by  Lt.  Col.  P  K  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.  This  implied  that   the
Respondent Lt. Col. P K  Chaudhary  and  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 RA protected officers in the matter  of  their
seniority by relating back their promotion to the date when officers in  the
same batch working in 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 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…”



39.   It was contended that the  policy  decision  taken  by  Government  of
India 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
expectation 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
in law especially when the policy change was in public interest.

40.   Halsbury’s Laws of England, Fourth Edition, Volume I(I)  151  explains
the meaning of “Legitimate Expectation” in the following words:

 “81. Legitimate expectations.— A person may have a  legitimate  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.

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
review; 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  defeat  a
person’s 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 who has been granted a licence may  have  a  legitimate
expectation that it will be renewed unless there is some good reason not  to
do so, and may therefore be entitled to greater procedural  protection  than
a mere 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  refer.  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 person claiming the  benefit  may
reasonably 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 general public interest on the  other,  present
distinct dimensions every time the plea of legitimate expectation is  raised
in a case.

42.   In Food Corporation  of  India  v.  Kamdhenu  Cattle  Feed  Industries
(1993) 1 SCC 71  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  that  a
mere reasonable and legitimate expectation can give rise to a  distinct  and
enforceable right, this Court observed:

“8. The mere 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  render  the  decision  arbitrary,
and this is how  the  requirement  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 claimant is reasonable or legitimate  in  the
context is a question of fact in each case. Whenever  the  question  arises,
it is to be determined not according to the  claimant’s  perception  but  in
larger public interest  wherein  other  more  important  considerations  may
outweigh what would otherwise have been the legitimate  expectation  of  the
claimant. A bona fide decision of  the  public  authority  reached  in  this
manner would satisfy the  requirement  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.”
                                                                   (emphasis
supplied)



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  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 may 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  attract  legal
consequences. A pious hope even leading to a moral obligation cannot  amount
to a legitimate  expectation.  The  legitimacy  of  an  expectation  can  be
inferred only if it is founded on the  sanction  of  law  or  custom  or  an
established procedure followed in regular and natural sequence. Again it  is
distinguishable from a  genuine  expectation.  Such  expectation  should  be
justifiably legitimate and protectable. Every  such  legitimate  expectation
does not by itself fructify 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  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 withdrawing an undertaking is taken.  The
doctrine  does  not  give  scope  to  claim  relief  straightaway  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
otherwise. In other words where a person’s  legitimate  expectation  is  not
fulfilled  by  taking  a  particular  decision  then  decision-maker  should
justify the denial of such expectation by  showing  some  overriding  public
interest. Therefore even if substantive protection of  such  expectation  is
contemplated that does not grant an absolute right to a  particular  person.
It simply ensures the circumstances in which that expectation may be  denied
or restricted. A case of legitimate expectation would arise when a  body  by
representation or by past practice aroused expectation  which  it  would  be
within its powers to fulfil. The protection is limited to that extent and  a
judicial review can be within those limits. But as discussed above a  person
who bases his claim 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 not  taken  in
public interest. If it is a question of policy, even by  way  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 of fact. If  these  tests  are
satisfied  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  justice  and
whether on that ground the decision should be quashed. If that  be  so  then
what should be the relief  is  again  a  matter  which  depends  on  several
factors.”
               (emphasis supplied)

 44.  Reference may also be made to the decision of  this  Court  in  Punjab
Communications Ltd. v. Union of India and Ors. (1999) 4 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  reasonable  person
could have made.  A claim based merely  on  legitimate  expectation  without
anything more cannot ipso facto give a  right.  Similarly  in  Dr.  Chanchal
Goyal (Mrs.) v. State of Rajasthan (2003) 3 SCC  485,  this  Court  declined
relief on the  plea  of  legitimate  expectation  on  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  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 Pravesh  Singh  v.  State  of
Bihar (2006) 8 SCC 381,  Sethi  Auto  Service  Station  and  Anr.  v.  Delhi
Development Authority and Ors.  (2009)  1  SCC  180,  Confederation  of  Ex-
servicemen Association v. Union of India  (2006) 8 SCC  399,  and  State  of
Bihar and Ors. v. Kalyanpur Cements Ltd. (2010) 3  SCC  274,  reiterate  the
legal position stated in the decisions earlier mentioned.  In  Monnet  Ispat
and Energy Ltd. v. Union of India and Ors.  (2012)  11  SCC  1,  this  Court
reviewed the case law on the subject and quoted with approval the  following
passage in Attorney General for New South Wales (1990) 64 Aus LJR 327:

“To strike down the exercise of administrative power solely  on  the  ground
of  avoiding  the  disappointment  of  the  legitimate  expectations  of  an
individual  would  be  set  the  courts  adrift  on  a  featureless  sea  of
pragmatism.  Moreover, the  notion  of  a  legitimate  expectation  (falling
short of a legal right) is too nebulous to form  a  basis  for  invalidating
the exercise of a power when its exercise otherwise accords law.”

45.   This Court went on to hold that 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  expectation  without  anything  more  cannot
ipso facto  give a right to invoke these principles.

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  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  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  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
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-à-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 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.

47.   That apart, 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 vested in the respondents.   In  the
case in hand, 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.  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 Government.  There is nothing perverse, unreasonable or unfair  about
the policy that the age of officers   serving  in  Combat  Arms  and  Combat
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  the
Indian Army more efficient and better equipped for combat  situations.    It
also is not a case where no 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 2-1/2 to 3  years  to
occupy positions which the Government  have  created  for  the  officers  to
occupy till they are considered for promotion to the 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  aside
the order passed by the Tribunal direct that  the  appellants  shall  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.

49.   In the peculiar facts and circumstances of  the  case,  we  leave  the
parties to bear their own costs.

                                         ................................CJI
                                                               (T.S. THAKUR)






                                                             …………………….…..…J.
                                                             (KURIAN JOSEPH)
New Delhi;
FEBRUARY 15, 2016.