02.03.2015 By Air Marshal J.N.Burma, Member (A) The petitioners vide this petition have prayed for the following: Quash the Policy letter dated 20.01.2009 and communication dated 30.11.2012 as the same are discriminatory and violate Article 14 of the Constitution. (a) Direct the respondents to allocate the post of Colonels to each corps under the principle of pro rata and to convene special broad for promotion for the post of Colonels for the applicants and to give equal opportunity of promotion for the rank of Colonel and applicable higher ranks, at par with their advantaged counterparts in other corps since the latter have unfairly gained over the applicants in terms of communication dated 21.01.2009. (b) Direct to review the board proceedings of all the selection boards for promotion to the rank of Colonel held after 2008 and the applicants be promoted, if they had obtained the cut off marks equal or more than their counterpart from the benefitted corps in the concerned promotion board. (c) Direct the respondents to grant ante-date seniority as per seniority in Corps List and arrears of Pay and Allowances from the date an officer immediately junior to the respective applicant assumed the rank of Colonel.
2. The facts which are not in dispute are as follows:- (a) The petitioners are Regular Permanent Commissioned officers of the Indian Army, whose primary function is to ensure the territorial integrity of the nation through use of legitimate force against external aggression and internal security. Due to complexity resulting from wielding of complex weapon systems, there arose a necessity of specialization in training and tasking of the combatants i.e. those who have the liability to bear arms. The combatants are organised into the following corps within the army:
(i) Corps of Infantry
(ii) Armoured Corps
(iii) Corps of Mechanised infantry
(iv) Corps of Artilllery
(v) Corps of Air Defence Artillery
(vi) Corps of Engineers
(vii) Corps of Signals
(viii) Army Service Corps
(ix) Army Ordnance Corps
(x) Mirror Corps: Corps of Military Police, Army Postal Corps etc. (b) All Corps have fought wars/battles shoulder to shoulder as no corps can sustain in isolation in a battlefield. A summary of the awards and honours earned by various corps is tabulated below: Award Artillery Engineers Army Air Defence Army Aviati Army Service Corp EME Army Ordana Corp
1 PVC
2. Ashok Chakra - - 1 -
3. Victoria Cross
4. MahaVir Chakra . - 2 1 -
5. Kirti Chakra 4 - 4 2
6. George Cross
7. Param Vishist Seva Medal
6 6 15 26
8 Yudha Seva Medal - 8 - -
9. Vir Chakra 21 16 14 2
10. Shaurya Chakra 9 11 21 8
11. Ati Vishist Seva Medal
14 10 32 71
12. Military Cross 3 - 2 -
13. Sena Medal 104 86 102 100
14. Vishst Seva Medal
29 27 56 143
15. Mention-in dispatches
53 54 148 53 32 Note: The respondents have stated that the exact numbers are subject to verification (c) Selection to regular officers cadre of the Indian Army is primarily through two examinations both conducted by the UPSC viz. (a) National Defence Academy (NDA) after Class XII and (b) the Combined Defence Services (CDS) Examination after graduation. There are other modes of entry such as 10+2 Technical Entry Scheme, Technical Graduate Course and University Entry Scheme. Short Service Commission is also offered to selected candidates who can opt for permanent commission during their course of service as per applicable policy. Candidates inducted through In service (departmental) Entries through Army Cadet College and Special Commissioned Officers (SCO) are also granted permanent commission in the Army in terms of separate terms and conditions of service. The NDA entries merge with the other entrants for Common Military Training at the Indian Military Academy (IMA) where the cadets are given basic training to fight a war at the platoon level. The cadets after successful Common Military Training are evaluated on merit. Though merit and choice of the cadets are considered by the respondents, the choice of corps allotted to a cadet is entirely subject to service exigencies. On being commissioned, officers continue to receive training common to all corps as well as specialized training specific to their corps. For promotion, weightage is given to certain common courses. Promotion upto the rank of Lt. Col. is time-bound on passing Part-B and Part-D Examinations. For rank of Colonels and above, promotions are based on the result of Selection Boards. Policy for conduct of selection Boards is laid down vide MS Branch 04502/MS Policy dated 04.01.2011 for all corps. (d) Promotions in the army have two different but closely related dimensions as follows :
(i) percentage of approval (satisfaction / approval rates) for promotion to Selection Grade Ranks (Colonels and above)
(ii) Length of service rendered at the time of being considered for promotion to Selection Grade Ranks. (e) The Government released 1484 vacancies of Colonels by upgrading an equal number of Lt. Col. vacancies to be distributed in two phases called AVSC I (750 vacancies) on 21.12.2004 and AVSC II (734 vacancies) on 03.11.2008 to meet the following objectives :
(i) Reduction in the age of Battalion and Brigade Commanders
(ii) Improvement in career aspirations of officers of the Armed Forces. (g) The vacancies in Phase I of AVSC were allocated between the various Corps on pro rata basis of corps strength, the then existing methodology and utilized between 2005 to 2008. Phase II vacancies were distributed on Command Exit Model.
3. Case of the petitioners is as follows : (a) The fundamental principle for promotion to select ranks is to ensure equitable selection rate and equitable merit between the corps. For promotion to Brigadier rank and above, the ASC, the AOC and the EME had been forced to part with 20% of their vacancies to improve promotions of other corps. Though fundamentally wrong but the same had been accepted over a period of time to cater to the combat edge attributable to perceived tougher conditions in corps of Infantry, Mechanised Infantry, Armoured Corps and Artillery. However, the first select rank of colonel (Lt. Col. earlier) had hitherto been left untouched by the all powerful Benefitted Corps and there was more or less a consistent batch parity and selection rate between the various corps. (b) In the year 2009 during the second phase of AVSC, the Army HQ led by some senior officers made certain arbitrary changes to unfairly apportion a major chunk of the 734 additional colonel rank vacancies for the corps they belonged. This actually amounted to a resurgence of the previously discredited and rejected discriminatory policy, known as 0-1-2 promotion policy aimed at controlling and regulating seniority of officers in such a manner that officers of certain corps were to be considered for promotion along with junior officers of the privileged corps, in contravention to the existing policy and practice of batch considerations based on natural developments such as recruitment and outgo of officers for each corps. Such discriminatory distribution of the additional vacancies were adversely commented upon by the Commands and Head of the Corps. Relevant views are reflected below:
(i) HQ Western Command Proposal not agreed. Vacancies should be distributed in pro rata basis to address the aspirations of the complete officer cadre.
(ii) Central Command Proposal in current form not recommended
(iii) HQ South Western Command Proposal not agreed. Distribution be done based on pro rata basis which should be based on held strength of Lt. Cols. and below rank officers for Colonels and Colonels and below for higher ranks.
(iv) HQ Southern command Implementation in the proposed form may not be in the overall interest of the Army Maximum weightage should be given to merit, policies on promotion should encourage competent officers to achieve higher ranks. Artillery being support arm should be equated with engineers, AAD and Signals.
(v) EME / MGOS FOR Army HQs Proposed not agreed. Vacancies to be distributed or pro rata basis with 20% combat edge as per existing model
(vi)Ein C Br Proposal is unfair and biased in meeting the aspirations and protecting the interest of all arms and services. It has caused extreme anguish and dissemination among officers of the Army and services.
(vii) DG Mechanised Force The implementation in its present form based on command vacancy model is heavily in favour of infantry and artillery to the exclusion of other combat arms and services. This is not in the overall interest of the organisation. Vacancies be distributed on pro-rata basis with 20% combat edge to general cadre as was done for implementation of AVSC Phase I.
(vii) DG signals Additional vacancies be distributed on pro rata basis with 20% combat edge to general cadre. Command tenure of two years for arms and three years for services
(ix) Army AD Dte Inputs given to Shri AV Singh without consulting the line directorates. Most of the vacancies proposed to be given in AVSC-II to infantry and Artillery, which is unfair to other arms and services.
(x) ASC QMG Br Basis of five years command service for services not explained, it appears to be reverse engineering to justify lesser vacancies to services. Implementation of the proposed model in present could have serious long term ramifications, could lead to divisive, fragmented and compartmentalized army and the officer community is capable of thinking, questioning and reasoning out decisions. In addition to the above, demi-official letters from EinC, DC Mechanised Forces and DG Army AD also reflect similar views. (c) In a damage control exercise Army HQ vide 08176/EA/POLICY / M8-2 dated 23.09.2008 admitted since the imports and implications of the proposal were not fully understood it gave rise to certain misgivings and perceived feelings of deprivation for some Arms and Services and that the views expressed by the environment, by way of feedback reflected the apprehensions related to various arms and services and there is a perceived feeling in the environment that a holistic view of the issue has not been taken. Vide Para 5 of the aforesaid letter following assurances were given:
(i) Batch parity will be maintained while holding promotion boards with infantry and other combat arms enjoying a slight edge.
(ii) The model will be implemented over a period of 12 years and within that period all corps would continue to get more than their share of vacancies
(iii) No corps would be deprived of their rightful share, as after 15 years, the intake would have been so regulated that inter se pro rata vacancies would not be at great variance and that the regular v/s support cadre would be in the ratio of 1:1 which would take care of adequate promotional avenues for all.
(iv) The present allocation of vacancies will not be disturbed and it will be ensured that every arm and service gains in all ranks. (d) In total disregard to the above, the respondents vide 08176/Est/ Policy/MP-2 dated 21.01.2009 (impugned order) promulgated the policy for allotment of vacancies in an arbitrary and discriminatory matter which is evident from distribution of additionally released vacancies under AVSC Phase II as tabulated below: Corps Distribution of Vacancies AVSC Phase I Distribution of Vacancies AVSC Phase II Disparity in allotment of vacancies between the two phases
1 Armoured Corps 48 6 -42@
2 Infantry 248 441 +193(77% increase)
3 Mechanised Infantry
41 14 -27@
4 Artillery 121 186 +65(53% increase)
5 Army Air Defence 31 4 -27(87% decrease)
6 Engineers 72 10 -62(86% decrease)
7 Signals 43 9 -33(76% decrease)
8 ASC 33 5 -28(84% decrease)
9 AOC 32 4 -28(87% decrease)
10 EME 48 7 -41(85% decrease)
11 MS Pool 27 & 6 48 (For adjustments) TOTAL 750 734 (e) From the above table, it is evident that the top four corps have benefitted immensely, in both batch seniority and satisfaction rate, whereas the rest have either gone down in promotion on both counts or remained where they were, prior to the release of vacancies. (f) The action of the respondents not granting equal opportunity of promotion to all officers of all corps of Indian Army is discriminatory and violates the fundamental rights of the petitioners under Article 14, 16 and 21 of the Constitution of India. Since allotment of corps is a prerogative of the Army, discrimination based on corps is illegal and unsustainable. (g) The newly introduced differentiated command structure as opposed to the time tested policy of vacancy allocation on pro rata of corps strength clearly appears to be a malicious act of reverse engineering to justify discrimination in allotment of the vacancies. (h) Promotion percentages for approval to the first select rank of Colonel being as high as 60% for some and as low as 26 per cent for others and a gap of upto four years between batchmates for consideration to the same rank go against the fundamental right of equality of opportunity. (j) Reducing the age of Battalion and Brigade Commander through differentiated command tenure has been at the cost of fulfilling individual career aspirations of the officers by creating greater approval rates and faster promotions for a few, at the cost of others. (k) The problem had been accepted by the respondents who had ordered a study to look into the anomalies, with the mandate to come out with the findings by 15.07.2012. Even while the study was on, another promotion board was held from 22.06.2011 to 29.01.2012 under the parameters of the impugned policy, ruining the careers of a large number of officers.
(l) The above has resulted officers with higher merit being rejected vis-a-vis officers of lower merit of benefitted corps being cleared for promotion even though all had been judged on common criterion / denominator for merit, which is against the principles of natural justice and patently illegal.
4. The stand of the respondents is as follows: (a) The application made by the petitioner is not maintainable in law. The petitioners are challenging allocation of vacancies to various arms and services of the Indian Army. Cadre structure including allocation of vacancies is essentially an administrative function and it is a policy matter. What will be need of the Indian army and how the Army should be administered falls within the domain of administration. The Chief of the Army Staff (COAS) is responsible for the command, discipline, recruitment, training, organization and preparation for war in respect of the Indian Army. Hence, the scope of judicial review in a policy matter is extremely limited and a bona fide decision cannot be assailed as arbitrary. (b) Based on the Kargil Review Committee recommendations for younger Battalion and Brigade Commanders, 37 year (approx) for Commanding Officers (COs) and 45 years (approx) for Brigade Commander of operational formations (Gen. Cadre, Field Artillery & Engineers), phase II allocation of vacancies (734) has been implemented on functional requirements as per the policy dated 21.01.2009 and same cannot be assailed in law as arbitrary or discriminatory. (c) Promotion is not a condition of service. Even those empanelled have no enforceable right to appointment / promotion. Questions relating to constitution, cadre, allocation of vacancies including avenues for promotion etc. pertain to the field of policy and those are within the exclusive jurisdiction of the executive subject to the limitations or restrictions envisaged in the Constitution of India. Therefore, the petitioners cannot seek in law a direction that the Government should have a particular method for avenues of promotion including allocation of vacancies. (d) The policy dated 21.01.2009 has been in force since then. The same is being challenged after a lapse of more than two years. The application, therefore, is barred by limitation in terms of Section 22 of the Armed Forces Tribunal Act, 2007. (e) Each Arm/Service has a distinct role to perform during operations which varies in terms of training, terrain, weapon systems, experience, nature of tasks and degree of challenges encountered/ introduced. The combat arms are the cutting edge to be employed in combat situations, hence, grouped and equipped with weapon systems accordingly. Combat support Arms assist combat arms in fulfilment of operational tasks; the support services are administrative echelons which provide material and other administrative support to fulfilment of operational tasks. (f) Officers undergo various corps specific as well as common military courses during their career. Due weightage is given to different courses in the quantified selection system based on their relevance, selection process and degree of difficulty. These are organisational needs based on policy consideration and hence immune from judicial review. (g) Promotions upto the rank of Lt. Col. are time bound. Promotions to the rank of Col. and above are made on the basis of the recommendation of Selection Boards as per the Selection Policy. While there are common mandatory parameters such as Medical Category, Common Confidential Report (CR) form and similar selection procedure, these cannot become the basis for staking claim on identical promotion ratios amongst various Arms / Services. Each officer is rated by his superiors based on his overall performance. Officers are considered batch wise (i.e. officers who reckon seniority in a calendar year) within their own corps. Para 70 of the Regulation for the Army provides that officers will be considered for promotion in the order of seniority in their own corps. (h) Allocation of Select Ranks is being done on yearly basis as per policy dated 21.01.2009 as approved by the COAS, in consonance with the report of the AVS Committee constituted with the basic aim of restructuring of officer cadre under the backdrop of Kargil Review Committee and not for purely improvement of conditions of service. (j) Selection for higher command and staff appointment needs to be based on the overall profile of the officers with due consideration to the nature of professional experience gained by them in the course of their career. Since officers in different arms and services gain different types of expertise / experience over the years, their selection for higher assignments and promotional ratio will consequently vary. Their promotions to Lieutenant Generals in Engineers, Artillery, Army Air Defence (AAD), Army Supply Corps (ASC), Army Ordnance Corps (AOC), Electrical and Mechanical Engineers (EME) etc. are based on vacancies arising within the corps and there could be variance in the timelines for promotions of batches and satisfaction level of various corps. (k) AV Singh Committee was ordered by Government of India on 16.07.2001 to examine a proposal mooted by Army Headquarters for achieving optimal combat effectiveness by bringing down the age profile of Battalion and Brigade Commanders to make the organisation more effective. The aim was to bring down the age of COs of combat units to
37 years and that of Brigade Commanders of operational formations (General Cadre, Filed Artillery & Engineer Brigade Commanders) to 45 years approximately. Govt approved upgradation of 1484 posts of Lieutenant Colonels to Colonels in two phases. Phase I, i.e. 750 vacancies were distributed on pro rata basis (the then existing methodology) since AV Singh Committee model was yet to be implemented. Phase II vacancies (734) were distributed on the AV Singh Committee model i.e. Command Exit Model (Para 19 & 20 of AVSC Report). The model was expected to be fully implemented over a period of 10-12 years in case of Colonels and seven and four years in case of Brigadiers and Major General respectively. Thereafter, the model would stabilize. With the desired end state of AVSC i.e. achieving command of Arms at 15-16 years and that of service being achieved at 17 to 18 years with the batch parity being maintained.
(l) The AVSC model was to be implemented over a period of 10 to 12 years and is presently in the fifth year of implementation. Once the model stabilizes and Regular and Support Cadre reaches the ratio of 1:1, as envisaged in the AVSC report, all assurances given by the communication dated 23.09.2008 would accrue to all arms/services. (m) To uplift certain Arms / services who were below the pre-2008 status by the model recommended by AVSC, 7%, 5% & 3% of the vacancies of Colonel, Brigadier and Major General respectively have been subtracted from the Combat Arms and given to arms /services as per the directions of the COAS. (n) Vacancies based selection system in respect of all arms and services has been in vogue since 1998. Also, after 2004, Number 4 Selection Board has been done away with and hence, it would be difficult to grant similar pro-rata vacancies to all arms and services. (o) The petitioners have contended that the Army has to be made attractive as a whole without any discrimination between the corps to invite talent of the nation and that the power of allotment of corps should rest with the youth who join it. If that is done, there would be no optees for the hard Corps like infantry and Artillery where life is extremely tough and difficult. In the present scenario, infantry and artillery are heavily undersubscribed as per records. Policy cannot be based on individual perception but on organisational interest. Any policy needs a gestation period for implementation. The present policy of allocating select ranks is presently through the fifth year of implementation. It was initially anticipated that the policy would be fully implemented in 10-12 years for colonels and seven and four years in case of Brigadiers and Major Generals respectively. The assurances of giving a minimum satisfaction ratio of 40% to all arms / services could be possible only after the policy stabilizes. It is, therefore, premature to expect any large benefits to all corps equally at present.
5. We have perused all the records produced before us and the facts presented before us. The issues that require deliberation by us as are follows: (a) whether the policy issued by the respondents on 21.01.2009 is discriminatory and violates Article 14 of the Constitution of India by applying the Command Exit Model prescribing differentiated Command Tenure for different corps while allocating vacancies of Colonels approved by the Govt. of India in the second phase as a part of implementation of Ajay Vikram Singh Committee recommendations resulting in greater number of vacancies being allotted to certain benefited corps / arms when the vacancies were not the exclusive domain of a few benefitted corps but were tenable of all corps by the Indian Army and, therefore, the same ought to have been distributed in accordance with the fair principle of pro rata which had been followed during the release of the first phase of AVS vacancies by the Government of India. Whether the above steps taken by the respondents created a class within a class in the Indian Army? (b) Whether the petitioners, if enitled to allocation of posts of Colonel under the principle of pro rata, had the right to be considered for promotion afresh by a special board since the PRVS stipulated in the policy have not been adhered to by the respondents. (c) Whether the Colonels merit in the Selection Boards held after 2008 be decided on cut off marks based on merit across all corps / Arms /Services of the Indian Army. (d) Whether when additional vacancies based on AVSC recommendations were released in two phases, the petitioner had legitimate expectations that it would be allocated on pro rata basis which was the pre-existing criterion which had been followed during the first phase of vacancies released in 2004.
6. At the outset, we would channelize our focus for adjudication by affirming that while exercising our power of judicial review in matters of administrative action, we are not the appellate authority and the Constitution does not permit us to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the legislature or the executive provided these authorities do not transgress their constitutional limits of statutory power. The scope of our judicial enquiry will be confined to the question whether the decision taken by the respondents is against any statutory provisions or is violative of any fundamental right of the petitioners. We would also not like to lose sight of the fact that the correctness of the reasons which prompted the Government in decision-making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigations, as per the principles laid down by the Honble Supreme Court in the case of Ekta Shanti Foundation Vs. Govt. of NCT of Delhi in Writ Petition (Civil) 232 of 2006.
7. During the argument Mrs. Lekhi, the learned counsel for the petitioners pleaded that the respondents had surreptiously converted the concept of shorter command tenure recommended by AVS Committee Report appointed by the Govt. Of India into greater vacancies for the respondents (benefitted arms) who have used their positions to introduce, apply, manipulate and amend policies to make themselves a class within a class in the Army. We would like to emphasize that the Courts when adjudicating on classifications are only entitled to see as to whether the classification is valid and rational. Once the rationality in such legislation (policy) is found, the Court will put their hands off. (Satyavati Sharma (dead) by Lrs. Vs. UOI & Anr. (2008) 5 SCC 287: 2008 (6) SCR 566; Civil Appeal 1897/2003). Also, it is the responsibility of the Courts to look at legislations from the altar of Article 14 of the Constitution. This Article is intended, as it is obvious from its words, to check this tendency, giving undue preference to some over others (Malipe Viswanath Acharya and Others Vs. State of Maharashtra and another, 1998 2 SCC 1 CA 2797-98 of 1992 WP (C) No.17 824 of 1996).
8. Mr. Balasubramanian, the learned counsel for the respondents on the other hand submitted that the entire matter had been examined by the respondents and allocation of vacancies to various Arms and Services has been done based on functional requirements of the Army and communicated vide Policy circular No.08176/Est/ Policy/MP2 dated 21.01.2009. Challenge to this policy on allocation of vacancies to Arms and Services cannot in law be assailed as arbitrary or discriminatory. The learned counsel further submitted that the scope of judicial review in a policy matter is extremely limited and a bona fide decision taken in this regard cannot be assailed as arbitrary or unreasonable. It is well settled that the cadre structure, allocation of vacancies, promotion etc. are essentially executive functions and they are not subject to judicial review unless they offend the statutory provisions or constitutional principles (Pushpa Rani Vs. UOI & Others 2008, 9 SCC 242).
9. We would like to highlight that it is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order to pass the test of permissible classification two conditions must be fulfilled: (a) That the classification must be formed as an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group, and (b) That differentiation must have a rational relation to the object sought to be achieved by the statute in question. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decision of the Honble Supreme Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
10. The impugned policy states that the release of additional vacancies of Colonel, Brigadier, Major General and Lt Gen Ranks, allocation of select ranks to Arms / services are henceforth (implying w.e.f. 21.01.2009) based on the model adopted by AVS Committee Report approved by the Govt., with some minor modifications. Therefore, to meet the diktats of Article 14 we have to examine the policy to ascertain as to what was the object of the policy laid down in the AVS Committee Recommendations and the Government orders based on which the impugned policy is supposed to have been issued. The AVS Committee recommendations were based on a paper submitted by Army Headquarters and the Committee had stipulated the following aims: (a) Achieving optimal combat effectiveness by bringing down the age profile of Battalion / Brigade commanders ; (b) To make the organisation more effective in fulfilling individual career aspirations of the officers.
11. AVS Committee submitted its recommendations in the year 2003. As a consequence of the AVSC recommendations, the Govt. of India released 750 vacancies of Colonels in the year 2004. These vacancies were distributed on pro rata basis which was the then existing methodology. It is evident that since the promotions were given all arms and services on a pro rata basis, the second objective of the policy i.e. to make the organisation more effective in fulfilling individual career aspirations of the officers was met. As regards the first objective of bringing down the age profile of battalion and brigade commanders, the respondents vide 21501 /A/No.35B/MS-5 dated 15.01.2006 have stated the following:- AVSC recommendations were implemented to bring down the age of Commanding Officers and this has been achieved by speedier Selection Boards, wherein more batches are being screened for the rank of Col. in a faster timeframe. In February 2004, Inf 1986 batch was considered by No.3SB with a service of 18 years whereas, in September 2006, Inf 1990 batch will be considered by No.3SB with a service of 16 years thereby, bringing down the age of Command by two years. This has been explained by the table below: Batch No.3 SB Service 1986 Feb 2004
18 years Post AVSC 1987 April 2005
18 years Post AVSC 1988 Sept2005
17 years Post AVSC 1989 April 2006
17 years Post AVSC 1990 Sept 2006
16 years Post AVSC
12. Thus, it is evident that the policy in force till 2008 had met the two objects laid down in the AVSC Committee recommendations. Therefore, the case of the petitioners that had the same policy (pro rata basis promotion) been followed for posts sanctioned in AVSC II, the objects of the policy laid down in AVSC recommendations would have been met in the subsequent years also seems to have merit. However, in such matters the Apex Court has held, In our opinion, it is always open to an employer to change its policy in relation to giving promotion to the employees. The Court would normally not interfere in such policy decisions (1999 3 SCC 696: 1999 SCC (Lrs) 824). Similarly, in Balco Employees Union Vs Union of India, it has been held that a Court cannot strike down a policy decision taken by the government, merely because it feels that another policy would have been fairer or wiser or more scientific or logical. It is not within the domain of Court to weigh the pros and cons of the policy or to test the degree of its beneficial or equitable disposition (2002; 2 SCC 333). As regards the reduction in chances of promotion in the corps to which the petitioners belong, the law is more or less settled by the Apex Court. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service. (2003 2 SCC 632 P.U.Joshi & Others Vs. Accountant General, Ahmedabad & Others)
13. Respondents have taken the stand that Phase I vacancies of AVSC were distributed on pro rata basis which was the then existing methodology since AV Singh Committee Model was yet to be implemented. When the Govt. released the vacancies, based on AVS Committee recommendations, it would be a valid presumption to conclude that the Govt. had released the vacancies aimed towards implementing the AVSC model. The Govt. was aware that the promotions in respect of these vacancies were sanctioned by Army HQ on a pro rata basis which as we have discussed had met the objectives of the AVS Committee recommendations and no objections have been raised by the Govt. into the procedures followed by the Army HQ on the methodology adopted for filling up the vacancies released in the year 2004. Therefore, following a different model appears to have been entirely a decision of Army Headquarters. We have perused the Govt. of India letter thoroughly and find that no mention of any difference in PRV to be maintained for different Arms and Services. The same finds a mention for the first time in the Army HQ policy issued in 2009. As a matter of fact the Colonel vacancies mentioned in the Govt. letter specifies the specific posts to be upgraded most of which as pleaded by the petitioners are tenable to be held by officers of most Corps and Services. The learned counsel for the respondents submitted that since AVS model had not been implemented during Phase I, Phase II vacancies were distributed on Command Exit Model as per AVSC recommendations. Allocation of vacancies to various Arms and Services had been done based on functional requirements of the Army as communicated vide the circular dated 21.01.2009. The learned counsel for the respondents brought to our notice the views of the Apex Court on a similar matter in UOI Vs. SL Dutta (1991) 1 SCC 505. As has been laid down more than once by this Court, the Court should rarely interfere where the question of validity of a particular policy is in question and all the more so where considerable material in fixing of policy are of a highly technical or scientific nature. A consideration of a policy followed in the Indian Air Force regarding the promotional chances of officers in the Navigation Stream of the Flying Branch in the Air Force qua the other branches would necessarily involve scrutiny of the desirability of such a change which would require considerable knowledge of modern aircraft, scientific and technical equipment available in such aircraft to guide in navigating the same, tactics to be followed by the Indian Air Force and so on. There are matters regarding which judges and lawyers of courts can hardly be expected to have much knowledge by reasons of their training and experience. . As the matter was considered at some length by as many as 12 Air Marshals and the Chief of the Air Staff of Indian Air Force, it is not possible to say that the question of change of policy was not duly considered .. . . before accepting the change of policy the Ministry of Defence and the experts attached to it gave full consideration to the requirement of change. Two aspects of the above decision are very significant to this case because of the peculiar circumstances brought before us. Firstly, in the case referred above, 12 Air Marshals and the Chief of the Air Staff had duly considered the matter. In the current situation the views of 16 Lt. Generals have been produced before us. Out of which 12 Lieutenant Generals have expressed grave reservation towards changing the policy from pro rata basis to Command Exit Policy in 2009. Apart from not recommending the change they have made certain comments expressing their serious concern as given below: (a) Proposal not recommended in the current form. Armoured Corps and Mechanised Infantry to be treated at par with infantry for all considerations. (b) The implementation in the proposed form may not be in the overall interest of the Army. Artillery being a support arm should be equated with Engineer, AAD and Signals while Armoured and Mechanised Infantry should be kept at par with Infantry. (c) Proposal is unfair and biased in meeting the aspiration and protecting the interest of all Arms and Services. It has caused extreme anguish and dissatisfaction among officers of all Arms and Services with the exception of a notable few. (d) Implementation in the proposed form may not be in the overall interest of the Army. Maximum weightage should be given to merit. Policies on promotion should encourage the competent officer to achieve the higher ranks. Artillery being support arm should be equated with engineers, AAD and Signals. (e) The proposal is unfair and biased in meeting the aspirations and protecting the interests of all Arms and Services. It has caused extreme anguish and dissatisfaction among the officers of all Arms and Services. (f) The implementation in its present form based on Command vacancy model is heavily in favour of infantry and Artillery to the exclusion of the combat arms, Arms and Services. This is not in the overall interests of the organisation vacancies be dstributed on pro-rata basis with 20% edge to General cadre. (g) Inputs to AVSC was given without consulting the line directorates. (h) Basis of five year tenure for Services has not been explained. It appears to be reverse engineering to justify lesser vacancies to the Services. Implementation of the proposed model in the present form could have serious long term ramifications, which in turn could lead to a divisive, fragmented and compartmentalized army. (j) The environment is worried about this perceived unfair distribution of vacancies
14. In the decision of the Apex Court as discussed above, the Apex Court has attached great significance to the fact that before accepting the change in policy, the Ministry of Defence and the experts attached to it gave its full considerations to the requirements for the change. The Apex Court further goes on to say that we cannot on the basis of this circumstance alone hold that the change of policy was arbitrary (1991; 1 SCC 505, UOI Vs. SL Dutta & Others). In the case before us, nothing was brought forth to show that the change in policy of 2009 made at Army Headquarters level which is being challenged for being arbitrary had the approval of the Govt. of India (Ministry of Defence) and due consideration was given by the Ministry of Defence on the issues raised by the petitioners especially when 12 Lieutenant Generals, most of them Army Commanders had raised serious apprehensions on the impact of the change in the policy (impugned policy) which could have grave repercussions on the future of the functioning of the Indian Army. Therefore, in our opinion since a change was being made by Army Headquarters to the policy stipulated by the Govt. of India, the matter should have been referred back to the Govt. of India before implementing the same. Reliance is placed on A Satyanarayana and Ors. Vs. S.Purushotham and Ors. (2008) 5 SCC 416 has held
23. We, however, are of the opinion that the validity or otherwise of a quota rule cannot be determined on surmises and conjectures. Whereas the power of the State to fix the quota keeping in view the fact situation obtaining in a given case must be conceded, the same, however, cannot be violative of the constitutional scheme of equality as contemplated under Articles 14 and 16 of the Constitution of India. There cannot be any doubt whatsoever that a policy decision and, in particular, legislative policy should not ordinarily be interfered with and the Superior Courts, while exercising its power of judicial review, shall not consider as to whether such policy decision has been taken mala fide or not. But where a policy decision as reflected in a statutory rule pertains to the field of subordinate legislation, indisputably, the same would be amenable to judicial review, inter alia, on the ground of being violative of Article
14 of the Constitution of India. {See Vasu Dev Singh & Ors.
v. Union of India & Ors. [2006 (1) SCALE 108] and State of Kerala & Ors. v. Unni & Anr.[(2007) 2 SCC 365].
34. A statutory rule, it is a trite law, must be made in consonance with constitutional scheme. A rule must not be arbitrary. It must be reasonable, be it substantive or a subordinate legislation. The Legislature, it is presumed, would be a reasonable one. Indisputably, the subordinate legislation may reflect the experience of the Rule maker, but the same must be capable of being taken to a logical conclusion.
15. The other contention raised by the learned counsel for respondents is that promotion is not a condition of service. Those empanelled have no right to be appointed / promoted. The petitioners cannot seek in law a direction, as the Govt. should have a particular method for use of promotion including application of vacancies. This contention of the petitioner cannot be accepted in the present context, as the promotion is a normal incident of service. It is their experience that the petitioners are seeking a direction from the Govt. to provide a particular method for implementation of promotion. The case set out by the petitioner is that in view of the impugned policy their chances of being considered for promotion have been taken away. The support is placed in Para 10 of the judgment of Honble Supreme Court of India, Food Corporation of India & Ors. Vs Parashotam Das Bansal & Ors. (2008) 5 SCC 100 :
10. This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the no n-medical wing of the Directorate." While agreeing with the Apex Courts views Fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of Department is a prerogative of the employer, mainly pertaining to the policy making field, in relation to the case before us, we are of the opinion that the views of the Govt. of India on the subject was essential since no clear-cut Govt. orders were placed before us laying down the various classifications within the officer cadre into Combat Arms, Combat Support Arms and the various services and treating them differently for laying down promotion ratios. This apprehension of ours flows from the fact that the respondents vide their 01103/PC/MS 9B dated 12.11.1987 signed by the Military Secretary have declared that All officers of the Army other than AMC, AOC, MNS and RVC, who are selected, trained and commissioned together, whose seniority is maintained on a common roster and who serve under the same terms and conditions belong to a single cadre.
16. Now coming to the impugned policy per se, leaving aside the bona fide of the same as discussed above, the learned counsel for the petitioner Mrs.Lekhi argued that when additional vacancies were released in AVSC I and AVSC II, the petitioners had legitimate expectations that it would be allocated on pro rata basis which was the pre-existing criteria whereas the distribution of vacancies, under the garb of exit command model were not carried out on a pro rata basis resulting in an arbitrary distribution of vacancies. In addition, as is evident from the results of the subsequent Promotion Boards, the respondents did not meet the assurances given as Para 6(c), (d), (e) and para 9 (c) of the impugned policy which stipulated firstly, it will be ensured that there would be no major variation in the time frame in which officers of all Arms and Services are promoted; secondly, that a PRV of 0.4 to 0.6 will be ensured for all Arms and Services during the conduct of promotion boards; and lastly that Batch parity would be generally maintained with the arms having a slight edge.
17. 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. 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 right therefore, it does not amount to a right in the conventional sense. A case of legitimate expectation would arise when a body of representation or by past practice aroused expectation which it would be within its powers to fulfil. The claim based on principle of legitimate expectation can be sustained and the decision resulting in denial of such expectation can be quashed provided the same is found to be unfair, unreasonable, arbitrary and violative of principles of natural justice. Legitimate expectation gives the applicant sufficient locus standi for judicial review and the doctrine of legitimate expectation is to be mostly confined to, right of a fair hearing before a decision which results in negativing a promise or withdrawing an understanding given. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. Legitimate expectation being less than right operates in the field of public and not private law and to some extent ought to be protected not guaranteed. Legitimate expectations may come in various forms and owe their existence to different kind of circumstances. By and large they do arise in cases of promotions which are in normal course expected, though not guaranteed by way of statutory right. However, protection of legitimate expectation would not be available where an overriding public interest requires otherwise. The protection is limited to that extent and a judicial review can be within those limits. A person who bases his claim on the doctrine of legitimate expectation, in the first instance must satisfy to make such a claim. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If that be so, then what should be the relief is, again a matter which depends on several factors. The Courts jurisdiction to interfere is very much limited and much less in granting any relief in a claim based purely on the ground of legitimate expectation. A decision denying a legitimate expectation based on a policy or change in old policy, or in the public interest either by way of a legislation, does not qualify for interference unless in a given case, decision or action taken amounts to an abuse of power.
18. The Court must not usurp the discretion of the public authority which is empowered to take the decisions under the law and the Court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any legal bounds and if the decision is taken fairly and objectively, the Court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. If denial of legitimate expectations in a given case amounts to denial of right guaranteed or it is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principle of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to ignore these principles. It can be one of the grounds to consider but the Court must lift the veil and see whether the decision is violative of these principles warranting interference. The concept of legitimate expectation is not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the Court out of review on the merits, particularly when the element of speculation and uncertainty is inherent in that very concept. The Courts would restrain themselves and restrict such claims duly to the legal limitations. It is a well meant caution.
19. Therefore, it is our duty to lift the veil and examine if the act of the respondents in changing the policy in any way denied a guaranteed right of the petitioners; was it arbitrary, discriminatory, unfair, biased; was there any gross abuse of power or violation of principles of natural justice?
20. From the records it is clear that vide 18(3) / 2004 D(GS I), Govt. of India, MOD letter dated 21.12.2001, the COAS was directed to refer the recommendation of AVSC Report regarding restructuring of the officers cadre of the Indian Army which contained a set of recommendations for increasing the career mobility in the officers cadre with a view to lower the age profile of battalion and brigade commanders. On the said recommendations being examined, the President was pleased to upgrade 750 posts of Lt. Col to Colonels in a phased manner. Posts of 400 for upgradation for Lt. Col to Colonel in 2004 and 350 in the second phase in 2005 were specifically identified as per details given in Appendices A & B respectively. Therefore, the stand of the respondents that 750 Phase I vacancies were distributed on pro rata basis since AVSC model was yet to be implemented appears illogical because the Govt. of India letter clearly mentions that the vacancies in two phases, first phase consisting of 400 vacancies and second phase consisting 350 vacancies of Colonels were released by the Govt. after examining the recommendations of the AVS Report. The Govt. of India letter states, The ibid Report has been under the consideration of the Government for some time past with particular reference to the recommendations in the Report (Paragraphs 40 and 73(3)(c) of the Shri AV Singh Committee Report) for upgradation of 1484 posts of Lieutenant Colonels in a phased manner from 2004 to 2008. Relevant paragraphs of AVSC report are reproduced below: Para 40 : However, since effect on age reduction as result of the Peel measures is likely to be visible after a while, initially a limited number of upgradations could be considered over a period of five years. Government should review the effect of the Peel options every year and accordingly moderate the release of vacancies. The Committee discussed the issue at length, and concluded that out of the requirement of vacancies projected by the Army HQ during deliberations, the following could be released in the first two years provisionally, albeit with careful reviews at the end of the each year: Rank Additional Vacancies required (without Peel Factor) to bring down age profile recommend ed by AHQ Release vacancie s over five years with Peel Factor as projected by AHQ Vacancies recommend ed by the Committee for release in 1st Year Vacancies recommen ded by the Committee for release in 2nd Year after annual review (a) Lieutenant General
29 20 05 03 (b) Major General
159 75 10 08 (c) Brigadier 496 222 75 35 (d) Colonel 2202 1484 400 300 Para 73(3)(c) Up-gradation in Ranks : Limited up-gradation in ranks be done provisionally as a short-term measure, over five years, subject to annual reviews to assess the impact of peel factors. The release of vacancies must be done very cautiously, with full functional justification, so that the rank structure of the Army does not get diluted. The release of vacancies in the first two years may be as given below: Rank Additional Vacancies required (without Peel Factor) to bring down age profile as recommended by AHQ Release of vacancies over five years with Peel Factor as projected by AHQ Vacancies recommended by the Committee for release in 1 Year Vacancies recommended by the Committee for release in 2 Year after annual review (a) Lieutenant General
29 20 05 03 (b) Major General
159 75 10 08 (c) Brigadier 496 222 75 35 (d) Colonel 2202 1484 400 300
21. In view of the above, we are not inclined to agree with the learned counsel for the respondents that Phase I vacancies i.e. 750 were distributed on pro rata basis since AVSC model was yet to be implemented. The Govt. of India letter makes no mention of different models to be adopted for different phases of implementation of filling up of vacancies released on the basis of AVSC Report. As a matter of fact the letter dated 21.012.2004 clearly mentions up-gradation of 1484 vacancies in a phased manner between 2004 to 2008 which were carried out by the Army Headquarters in respect of 750 vacancies till 2008. Subsequently, the President was pleased to sanction up-gradation of 734 posts from Lt Colonels over a period of five years vide 18 (2) 2004-D (GS III)-Vol III dated 03.11.2008 as a part of implementation of AVSC Recommendation in respect of select ranks. The directions clearly stated that the up-gradation/ increase in posts will be in consonance with the functional and operational requirements and implemented gradually, while keeping the rank structure within the overall sanctioned posts. The increase in select ranks will be offset from the strength of non select ranks. The Govt. instructions make no mention of any different model for implementation of the order when compared to the instructions passed in 2004 when 750 vacancies had been released and subsequently absorbed by the Army towards meeting the objectives of the AVSC recommendations.
22. Secondly, we would like to highlight the fact that the AVSC Committee and the Union Govt. were aware of the importance of promotion on the morale of the Armed Forces which is reflected in the use of the words release of the vacancies must be done very cautiously and so that the rank structure of the Army does not get diluted gather immense significance. Therefore, we are of the opinion that the case of the petitioners that the changing the ratios from pro rata to a PRV range of 0.6 to 0.4 (which does not find a mention anywhere either in the Govt. orders or AVSC Committee Report) and bringing it down to 0.25 in respect of certain services in the promotion boards has not only been done arbitrarily but also has been discriminatory giving undue importance to Artillery and Infantry at the cost of other services has merit. The petitioners claim that a gap of up to four years for consideration for promotion between different Arms and Services will have the impact of diluting the rank structure of the Armed Forces also has merit. The new conditions imposed vide the policy issued by Army Headquarter in 2009, are clear pointers towards the violation of the object of the policy i.e. to fulfil the individual career aspirations of officers, which cannot be overlooked by us in view of the supremacy of Article 14 which forbids arbitrariness or discrimination in any form. It has also been brought to our notice that the Army HQ had issued a fresh policy on 29.10.2013, wherein it has been decided to do away with the minimum satisfaction level of 0.40 for calculation of PRVS for all select ranks upto the rank of Major General in cadre and Major Arms / Services. This goes totally against the declaration made by Army HQ vide 08176/Estt/POLICY/ MP 2 dated 23.09.2008 that the misgivings are ill-founded as the implementation model compiled by MS Branch will ensure that batch parity will be maintained while holding promotion boards with infantry and other combat arms enjoying a slight edge; and the conditions stipulated vide 08176/ Est/Policy / MP2 dated 21.01.2009 Paras 6(d), 6(e) that it will be ensured that there would be no major variation in the time frame in which officers of all Arms and Services are promoted and a PRV of 0.4 to 0.6 will be ensured for all Arms and Services during the conduct of promotion boards. Reliance is placed on the judgment of Apex Court reported in Union of India Vs. Hindustan Development Corporation (1993) 3 SCC 499 . : If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory unfair or based, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well- known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the ground to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is
"not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits,"particularly when the element of speculation and uncertainty is inherent in that very concept.
23. Viewed thus, we find that the impugned policy is per se discriminatory and violative of Article 14 of the Constitution and the question that calls for consideration is as to what extent the petitioner would be entitled to relief? Admittedly, the introduction of the impugned policy is bad in law and therefore the policy, based on pro rata basis at it existed before 2008, is required to be restored. The petitioners belonging to various ancillary services, whose quota was reduced would be entitled to be considered for promotion, based on pro rata basis on the date they became eligible for the said promotion. In view of the impugned policy, they have lost their right to be promoted. Therefore, we are inclined to direct the respondents to consider their cases, in terms of the policy which was in existence upto 2008 and promote them notionally, by creating supernumerary posts for the purposes of pay and allowances. This direction is being passed by us, in view of the fact that we do not want to disturb the promotion of the officers who stand already promoted in terms of the impugned policy. They have continued to enjoy the fruits of the promotion. Since we are quashing the impugned notification, therefore, this policy shall not be given effect to henceforth. Respondents will adhere to the policy, which was prevalent before coming into the force of impugned policy of 2009.
24. However, we do not agree that the Colonels merit in the Selection Board held after 2008 be decided on cut off marks on merit across all corps/arms/services of the Indian Army. Every officer has to compete amongst his peers in his corps based on merit as per vacancies authorised, in accordance with law.
25. Keeping in view the circumstances and the stand expressed by the petitioners, we condone the delay in submission of the appeal.
26. In view of the above, we allow the appeal and direct as follows: (a) The impugned policy issued vide order dated 21.01.2009 affecting the right of the petitioners stand quashed as being violative of Article 14 of the Constitution. (b) The respondents shall consider the case of the petitioners and all those persons for promotion who have been denied the same on the basis of impugned policy dated 21.01.2009 and in this behalf create supernumerary posts for the purpose of pay and allowances from the date they were eligible for promotion to the said posts based on merit. Their promotion shall be considered on pro rata basis which was the policy in force prior to 21.01.2009. (c) That the persons who have been promoted on the basis of the policy of 2009 shall continue to remain on their posts;
27. The learned counsel for the respondents has made an oral prayer for leave to appeal before the Honble Supreme Court. We find that no substantial question of general public importance is involved in the matter. Hence, the application for leave to appeal before the Honble Supreme Court is rejected. No order as to costs. (SUNIL HALI) MEMBER (J) (J.N. BURMA) MEMBER (A) New Delhi 02.03.2015
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