TMI Blog1982 (3) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... nisation effected in July 1976 by the separation of the Inspection Wing, the appellant was retained in the Defence Research and Development Organisation, which will hereinafter be referred to as the R D Organisation. The Director-General of Defence Research and Development, who is also the Secretary to Government of India, Defence Research, is the controlling authority of the R D cadre. The said cadre has service officers drawn from all the three Wings of the Armed Forces, namely, the Army, the Navy and the Air Force, and in addition thereto a large number of civilian employees are also borne on it. In November 1979, in supersession of all previous Rules and Orders on the subject, the President of India promulgated under the proviso to Article 309 of the Constitution rules laying down the procedure for the intake of service officers in the R D Organisation and the terms and conditions of service of those permanently retained therein. Those rules were issued by the Ministry of Defence of the Government of India in Office Memorandum No. Pers/18601/RD. Sel. Bd/7971/D (R D) dated November 23, 1979. The provisions of the said Memorandum will hereinafter be referred to as the ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch over the earlier promotees and supersede them in the matter of seniority in the R D Organisation. Elaborating this plea, it was urged on behalf of the appellant that the result of the impugned rule would be to bring about the anomalous situation where a person permanently seconded to the R D and holding substantively the rank of Lt.Col./equivalent can be superseded in seniority in the said Organisation by a Major/equivalent of old vintage who had been overlooked for promotion in his parent service and may have thereupon come over to the R D Organisation. Another objection strongly put forward by the appellant was against the lateral induction of officers at levels higher than that of substantive Major/equivalent. It was urged by the appellant that such subsequent inductees into the R D Organisation cannot be legally assigned seniority above those already borne on the cadre, irrespective of the substantive rank held by them at the time of their intake into the R D. The appellant has rested this contention on the premise that the intake of officers into the R D is by a selection based on merit and hence those selected earlier must necessarily rank higher in the seniority list of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -General of Inspection (DGI) had a combined cadre-Research Development and Inspection-and the terms and conditions of service of the personnel borne on the said cadre were governed by the provisions contained in Government of India (Ministry of Defence) Memorandum No. 11/(5)/58/D-(R D) dated March 18, 1967. But, those rules which had also been issued by the President of India under the proviso to Article 309 of the Constitution did not contain any provision laying down the principles for determination of the seniority of the officers functioning in the DRD I Organisation. Those rules were in force at the time when the appellant was permanently seconded to the DRD I Organisation in 1971. In the writ petition filed in the High Court, the appellant had impleaded 8 officers of the R D Organisation, namely, respondents nos. 7 and 11 to 17 contending that they have been assigned seniority and granted promotions in supersession of the appellants's legitimate claims and in violation of the rules. In the appeal before this Court, the appellant had added several more service officers of the R D as additional respondents. The appellant argued his case in person and so did some of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose services could be spared by their parent service were taken into the R D Organisation from time to time. Since the officers from the three services came to the R D cadre with different lengths of service and at different levels, it became imperative to evolve a reasonable principle for determination of their inter se seniority after their secondment to the R D Organisation. The case of the respondents is that right from the beginning, the policy and practice followed by DRD I Organisation as well as by the bifurcated R D Organisation was to assign seniority with reference to the date on which the officers attained their rank of substantive Major/equivalent. This was, however, strongly refuted by the appellant who asserts that no such principle had been formulated or followed by the Organisation prior to the promulgation of the impugned rules. The respondents produced for our perusal various files pertaining to the determination of seniority and grant of promotions in the Organisation during the period prior to the issuance of the impugned rules. The appellant pointed out with reference to those very files that there were quite a few instances where promotions had been effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement that the principle incorporated in the decision taken at the combined meeting of the DRD I Selection Board held in February 1974 was merely to incorporate a rule which was unwritten earlier but actually applied in practice . Thus, there is sufficient material available on record to substantiate the plea put forward by the respondents that the policy and practice followed in the DR DI Organisation and later in the R D Organisation was to fix the seniority of permanently seconded officers with reference to the date of attainment of the rank of substantive Major/ equivalent. Further, the impugned rules are statutory in origin as they have been promulgated by the President of India under the proviso to Article 309 of the Constitution. Rule 16 contains a categorial declaration that in the past also the seniority of service officers permanently seconded to the R D Organisation was being reckoned on the basis of their dates of attainment of substantive rank of Major/Sqn Ldr/Lt Cdr. subject to any penalty/loss of seniority that an officer might suffer subsequently. The said declaration is clearly implied in the opening words As hithertofore occurring in rule 16 of the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a variety of disciplines like electronics, missiles, tanks, telecommunication, rocketry, radars etc. In addition to about 3,600 civilian scientists, the Organisation has about 160 permanently seconded service officers and about 430 service officers taken on a tenure basis. The intake of service officers is not on the basis of any general selection from service cadres. As and when the Organisation finds it necessary to obtain the services of officers with operational experience in any particular weapon system or other scientific discipline, suitable hands with aptitude skill and experience in that particular branch or speciality whom their parent service is willing to spare for deputation are initially taken on a tenure basis. Thus, there is a selection only in a very limited sense that the suitability of the concerned officer is adjudged before he is taken. But what is important to note is that in the intake of officers into R D Organisation there is no comparative evaluation of the merits of the other personnel occupying the same rank or possessing like experience in the Defence Services. There is no process of selection in which their claims or merits are considered. Thus, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g found suitable and willing. The contention of the appellant is that on such permanent secondment into the R D, the inter se seniority of the officers should be reckoned only with reference to the dates of their selection for such permanent secondment. It is the further plea of the appellant that since at the time of permanent secondment the officer concerned has to certify in writing that he is relinquishing all his claims of seniority etc., in his parent service, no weightage can thereafter be given to the rank or seniority which the person inducted had earned in his parent service prior to the date of his permanent secondment. We do not find it possible to accept this contention. Officers from the three Services holding different ranks are inducted into R D Organisation from time to time depending upon the needs of the Organisation, and if the appellant's contention is to be accepted, it would lead to serious anomalies and manifest injustice by upsetting the norms of seniority and rank structure which is the basic fabric on which the Armed Forces of the country are built. The unreasonable consequences that will flow from the acceptance of the appellant's arguments w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly on fixed length of service. In the Air Force and the Army, the ranks of Major and Sqn. Leader, respectively, are attained on an officer putting in 13 years' service. In the Navy, the time-scale period for promotion to the equivalent rank of Lt. Commander is said to vary between about 10 and 13 years. But, what is important to notice is that the promotion to the rank of Major/equivalent is based only on length of service and not on any selection . For posts higher than that of Major/equivalent, promotions in all the three Services would depend upon the occurrence of vacancies in the particular branch or group in the concerned Service, the schemes of expansion that may be taken up from time to time in the particular Service or branch and also the extent of stagnation that may be caused to officers at lower levels by reason of the officers who are young in age occupying posts in the immediate higher levels, etc. When due regard is had to all the aspects and circumstances, narrated above, it will be seen that the principle adopted under the impugned rule of reckoning seniority with reference to a date of attainment of the rank of substantive Major/equivalent strikes a reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he slight disparity in the promotion prospects between the Navy and the other two Services will not, however, affect the reasonableness of the impugned rule because it is impossible to achieve perfect arithmetical precision in such matters where officers drawn from different sources are to be integrated into one common cadre and a rule for fixing their inter se seniority is formulated. Further, it is seen from the counter-affidavits of Respondents 1 to 3 that out of about 160 permanently seconded officers of the R D Organisation, the large majority are from the Army, a considerable section of the balance is from the Air Force and only less than 10 officers have come from the Navy. It is also relevant to notice in this context that it is specifically provided in rule 4 of the impugned rule that the intake of service officers to fill appointments in the R D Organisation will ordinarily be at Major/equivalent level. Under rule 5, officers in higher ranks should be considered for permanent secondment only in exceptional cases and when such a course is adopted, it will be subject to the condition that their seniority in the R D cadre will be fixed as stipulated in rule 16. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or task. Another argument advanced by the appellant was that the impugned rule cannot be upheld as valid inasmuch as it is in conflict with paragraph 7 of the Government of India Office Memorandum No. 9372 Estt(D), Cabinet Secretariat, Department of Personnel, dated July 22, 1972, which is in the following terms: 7. Transferees:-(i) The relative seniority of persons appointed by transfer to Central Services from the subordinate offices of the Central Government or other department shall be determined in accordance with the order of their selection for such transfer. We see no substance in this contention. The secondment of an officer from his parent service to the R D is not a transfer to Central Service from a subordinate service or from another department. Further, the impugned rule being statutory in origin, its validity cannot be affected by reason of any inconsistency with the provisions of a prior executive order issued by the Central Government. An allegation has been put forward by the appellant that the letter dated November 23, 1979 was a fraud on rules and the Constitution, played by respondent no. 5 who got the same issued to obtain personal gain by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but, for purposes of future promotions and seniority in the department, the principles laid down in the impugned rule will necessarily govern all the personnel alike. This contention of the appellant has also to fail. It was very strongly contended by the appellant that the lateral induction of senior service officers holding ranks above the substantive Major/equivalent level operates to deprive the existing R D personnel of their vested rights to promotions within the cadre and hence, such inductions must be held to be illegal and void. This contention ignores the fact that rule 5 specifically provides that in exceptional cases, officers above the rank of Major/equivalent may be drafted into the R D. The contention of the appellant appears to us to be based on a fallacious assumption that the R D cadre exists for the sake of the personnel working therein and not for effectuating the purpose underlying its constitution which is of such vital importance to the Nation's safety. The Organisation has been formed with a view to have a highly specialised cadre of technological and scientific experts to design and develop military hardware etc., for the Armed Forces of the countr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents is based solely on his contention that the seniority principle enunciated in rule 16 is arbitrary, illegal and ultra vires and that, in any event, the said principle cannot be applied to him. The said contention has been found by us to be untenable. Hence, it is not necessary for us to refer to the details regarding the service history of the appellant vis-a-vis those of the service officers who have been impleaded as respondents in the appeal. In the light of our foregoing discussion, it follows that the High Court was perfectly right in upholding the validity of the impugned rule and in rejecting the challenge raised by the petitioner-appellant against the selections, inductions and promotions made in the R D Organisation on the basis of the said rule. In the course of his submissions before this Court, the appellant put forward a grievance that, notwithstanding the directions issued by the High Court in its judgment under appeal, he has not been given any posting or assignment. Counsel appearing on behalf of the Union of India and the Scientific Adviser to the Defence Minister made available for our perusal the files relating to the appellant's posting to the DR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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