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TMI Blog2016 (2) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion. 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctioned 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 benefited from the mistake earlier committed argued the learned Counsel. 13. The entitlement to a share in the newly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion, 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion 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 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine whether such posts constitute a cadre (see) K.S. Srinivasan v. Union of India (UOI) AIR 1958 SC 419. In Chakradhar Paswan v. State of Bihar and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 vacanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Selection Board 3 in the year 2009 i.e., 2 1/2 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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