TMI Blog2016 (2) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is also no basis for the contention that a legitimate expectation arose in the minds of the Respondents that they shall be promoted to the next rank simultaneously with the officers serving in Combat Arms or Combat Arms Support. As a matter of fact, the provisions of para (68) of the Regulations for the Army extracted earlier itself envisages the grant of promotion to officers from different streams at different points of time depending upon several factors which bring about the time lag for such considerations. Conscious of the fact that such officers serving in different streams may pick up the next rank at different points of time, the Regulations provide for grant of retrospectivity to the promotions so granted to restore inter se batch parity to such officers. There is no denying the fact that the said Regulation continues to be operative and regardless of the date when the officer is promoted, his promotion is so related back as to protect his seniority vis-a-vis his colleagues from the batch serving in other streams. Far from creating any impression or any expectation that promotions shall be simultaneous, the Regulations clearly provide for grant of retrospective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 passed by the Armed Forces Tribunal, Principal Bench, New Delhi, whereby Original Application No. 430/2012 filed by the Respondents has been allowed and policy circular dated 20th January, 2009 issued by the Government of India quashed with a direction to the Appellant-Union of India to consider the Respondents for promotion to the rank of Colonel by creating supernumerary posts with effect from the date the said Respondents were eligible for such promotion. Facts giving rise to the proceedings before the Tribunal and the present appeals may be summarized as under: 2. The Respondents were commissioned into various Corps/streams of the Indian Army after they successfully passed out from the Indian Military Academy/Officers Training Academy. The initial allocation of the Respondents to different Corps was based on parameters prescribed for that purpose depending inter alia upon the number of actual vacancies in Arms, Arms Support or Services, operational commitments and requirements arising from new raisings. Merit of the candidates, the need for an equal distribution of vacancies applying what is described as 'Black Method' and the individual choice expressed by the cad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommendations which the Committee made to the Government was about the lowering of age profile of the Officers in the Indian Army. For instance, instead of existing age profile of 41-42 years for Colonels the Committee recommended lowering of the age profile to 36-37 years. Similarly, for Brigadiers the Committee recommended an age profile of 44-45 years instead of 50-51 years at present. The age of Major Generals was profiled at 51-52 years as against 54-55 years under the existing system. The age of Lieutenant Generals was, according to the Report, profiled at 55-56 years instead of 56-57 years under the existing system. The lowering of age profile was considered by the Committee to be necessary for enhancing the optimal combat effectiveness of the Army. To achieve that objective, the Committee recommended creation of 1484 additional vacancies in the ranks of Colonel out of which 400 vacancies were to be released in the first year while the another 300 vacancies were to be released in the second year after an annual review. The implementation of the recommendations had to be progressive, coordinated and corroborated for the desired results to flow for the benefit of the Army. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Boards for promotion of the eligible Officers to such posts. The Respondents also prayed for a direction to the Union of India to grant to them 'Ante-Date' seniority and arrears of pay and allowances from the date an officer immediately junior to the said Respondents in the rank of Lt. Colonel serving in Arms and Arms Support Units was granted his promotion. 8. The Appellant-Union of India contested the claim made by the Respondents and argued that the recommendations made by the AVS Committee were limited to Officers serving in the Arms and Arms Support and specifically left out services from their purview. It was also argued that the Government of India had approved and accepted the recommendations made by the AVS Committee and sanctioned 1484 additional vacancies specially created for allocation on Command Exit Model to Arms and Arms Support Units for whose benefit such new vacancies were created. The allegation that the policy formulated by the Government or the Command Exit Model for allocation of vacancies was discriminatory and/or arbitrary was stoutly denied. 9. By its order dated 2nd March, 2015 the Armed Forces Tribunal, Principal Bench, New Delhi h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel from the AVS Committee report and the fact that the 750 vacancies sanctioned and released in the first tranche were distributed pro-rata among all the formations. It was urged that having given to officers serving in Arms Support and Services, their share of the newly created vacancies on a pro-rata basis and denial of a similar share out of vacancies sanctioned in the second phase was unjustified and discriminatory. 12. On behalf of the Appellant-Union of India it was contended by Mr. Maninder Singh, ASG, that the recommendations made by the AVS Committee favoured creation of additional vacancies only for Arms and Arms Support leaving out 'Services' like ASC, AOC and EME. It was argued that the recommendations were accepted and the vacancies sanctioned for being filled-up on 'Command Exit Model' which model constituted the very basis of the report submitted by the Committee. The fact that 750 vacancies created in the first phase were distributed among Arms, Arms Support and Services on a pro-rata basis did not, according to Mr. Singh, by itself entitle officers serving in 'Services' to claim a pro-rata share in the second tranche of vacan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lt. Colonel, promotion to the grade of Colonel on time-scale basis after 23 years of service for superseded officers and grant of Brigadier's pay to all Colonels in the last year of their service to entitle them to Brigadier's pension. The report submitted by the committee outlined the issues raised before it and identified two inter-related issues which were, in its opinion, at the core of the whole problem viz., high age profile and cadre stagnation. 15. The Committee also took note of the recommendation made by the Kargil Review Committee, for lowering the age profile of command elements. The Committee noted that in comparison to other Armies like those of Pakistan, China, UK, Germany and Israel, the Indian Army had a higher age profile which adversely affected their physical alertness and operational preparedness. The Committee noted that Officers beyond the age of 50 years find it difficult to sustain mental and physical alertness at high altitude and hazardous and hostile topography along the Line of Control where a Brigade Commander is required to serve for effective command and control. This was true even about Battalion Commanders who are required to move during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le is required in consonance with the operational needs. The rest could get more than one tenure for command in the Colonels rank. (Emphasis supplied) 17. The Committee, then, examined the number of vacancies required in the rank of Colonels and Brigadiers and came to the conclusion that a total of 374 Colonels and 143 Brigadiers vacancies were available every year exclusively in the Arms, whereas, there was a requirement of vacancies for 354 Colonels and 129 Brigadiers for the Arms. These vacancies were found to be adequate to keep the whole cadre structure in a state of equilibrium, but, that equilibrium will be at the current high age profile. The Committee said: ... ... ... If we look only at the Arms, which form a subset of the whole cadre, and towards which the age reduction exercise is principally directed, we find that approximately 143 Colonels and 31 Brigadiers are promoted to the next higher rank every year and 241 and 112 respectively exit each year on retirement. Thus, a total of 374 Colonel's and 143 Brigadier's vacancies are available every year exclusively in the Arms, whereas there is a requirement of vacancies for 354 Colonels and 129 Brigadier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 (c) Brigadier 496 222 75 35 (d) Colonel 2202 1484 400 300 20. A careful reading of the report especially paras 20 and 36 extracted above leaves no manner of doubt that the Committee emphasized the need for bringing down the age profile of Unit Commanders in Operational Units only. The Committee recognized Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD, Engineers and signals as operational formations leaving out ASC, AOC, EME and other Minor Corps. The report clearly suggests that the additional creation of 1484 vacancies in the rank of Colonels did not take into account vacancies for Colonels in ASC, AOC, EME and other Minor Corps. As a matter of fact, the report very clearly states that the age profile of such Service formations for Minor Corps could be higher than that required to operate in the combat conditions. We have, in that view, no hesitation in holding that there was neither any recommendation regarding reduction in age profile of Unit Commander ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent as to whether the Command Exit Model for allocation suggested by AV Singh Committee had been accepted by it. We have, in light of official record produced before us and the specific assertions made by the Government in the affidavit filed on its behalf, no hesitation in holding that the recommendations of the AVS Committee regarding allocation of newly created vacancies being made on Command Exit Model was accepted by the Government. It is trite that the Government and the Government alone could say whether the recommendations of the Committee were accepted by it. The Government have answered that question in the affirmative not only on the basis of a statement made at the bar but also on the basis of contemporaneous official record and the affidavit filed by a responsible officer acting for and on behalf of the Government. The first part of the question viz., whether the recommendations regarding Command Exit Model for allocation of vacancies was accepted by the Government does not, therefore, detain us any further. 23. The second part of the question, however, calls for some examination. In the course of hearing and in our order dated 22nd April, 2015 we had specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wly created vacancies on Command Exit Model principle. Our answer to that question is in the negative. Just because allocation of vacancies in the first tranche was made by the Army Headquarters ignoring the recommendations of the Committee and the Government decision cannot possibly result in the reversal of the Government decision nor can it negate the Command Exit Model. So also, simply because the earlier allocation was not reversed as the officers had picked up their ranks does not affect the binding nature of the Government decision that the allocation should be on Command Exit Model . 25. Having said that, the adjustment/set off of the vacancies so allocated against the entitlement of the arms and arms support in the second tranche does not appear to be justified. If the Army Headquarters committed a mistake in allocating vacancies on a pro rata basis contrary to the recommendations and decision of the Government, any such error cannot adversely affect officers serving in arms and arms support who may have been entitled to a higher number of vacancies in the second tranche but who were deprived of such allocation on account of the error in the previous allocation made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reby that the deficit proportionate to the number that has been set off/adjusted should be made up by fresh creation. 27. The second limb of the challenge is whether the Government was justified in prescribing a command tenure of four years for Arms Support officers. The argument was that if the command tenure is reduced to two years as in the case of 'arms', the number of vacancies required by arms support would increase. We shall deal with the two aspects ad seriatim. 28. The allocation of 734 vacancies, comprising the second tranche, when made on standalone basis, (without any adjustment of the excess allocated in the first tranche) is the only right method for allocation in our opinion. The excess allocated in the first tranche, against which officers who may not have otherwise picked up the higher rank were promoted, cannot possibly deny the rightful due to those who would be entitled to claim promotion against the vacancies in the second tranche. The Respondents are, therefore, right in arguing that the second tranche should be allocated on a standalone basis. This exercise has been done by the Appellant and the result thereof filed by Mr. Maninder Singh in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 Signal 66 11 55 Total 141 29. It follows from the above that to the extent of a deficit of 141 vacancies in the cadres of Colonel to Arms Support (Artillery, AAD, Engineers and signals) an unfair distribution of the vacancies from out of the second tranche were released by the Government. It is, at the same time, heartening to note that the Government have not taken an adversarial stand nor have the Government opposed the undoing of the injustice caused to officers who were eligible for promotion in the year 2009 but were not promoted on account of lesser number of vacancies allocated to Arms Support. On the contrary Mr. Maninder Singh appearing for the Union submitted that the Government would do anything to prevent any frustration or disenchantment among the officers serving in the army by creating 141 additional posts in the cadre of Colonel for allocation to Arms Support so that the same are utilized appropriately for promoting officers eligible for such promotion. Mr. Singh, however, suggested a method of uti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the creation of such additional vacancies would ensure the benefit for officers serving in the services on account of what such officers claim to be 'one cadre' principle. The contention urged on behalf of the Respondents was that no matter some of the Respondents belong to services, they are a part of the same cadre and were, therefore, entitled to a pro rata share out of the newly created vacancies at par with those serving in Arms and Arms Support. Reliance in support of that contention was placed upon a circular dated 12th November, 1987 issued by the Military Secretary's Branch. There is, in our view, no merit in the submission urged on behalf of the Respondents that officers allocated to Arms and Arms Support and Services comprise a single cadre for purposes of promotion. We say so because transferability which is one of the essential attributes of posts comprising a single cadre is absent in the case of service officers on the one hand and those serving in Arms and Arms Support on the other. this Court has in several decisions examined what would constitute a common cadre, and held that merely because the incumbents of two posts are placed in the same scale of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st; and (iv) the salary of the post. In State of U.P. and Ors. v. Bharat Singh and Ors. (2011) 4 SCC 120, this Court speaking through one of us (Thakur, J.) held that transferability or interchangeability of one incumbent to another in the cadre are essential attributes of a common cadre. 32. Applying the above test to the case at hand we have no hesitation in holding that officers serving in the Service stream of the Army do not constitute a single cadre with officers serving in Arms and Arms Support, no matter they may all be drawing the same salary, holding the same rank, wearing the same uniform and serving the same employer with similar service benefits. The true position is that allocation of officers to different Arms and Services puts them in distinct cadres, with the result that those comprising a particular cadre will have his or her promotional avenues available against the posts comprising that cadre alone notwithstanding the fact that the Government of India may, as a policy, attempt to ensure as far as possible that officers of a given batch pick up their ranks around the same time or within a reasonable span of their counterparts in other cadres or that the dispar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor corps are known as 'Services'. As noticed in the beginning of the judgment, the newly selected Gentlemen Cadets get inducted as Commissioned Officers on successful completion of their training from the training academy. The Defence Service Regulations, Regulations for the Army govern the first appointment of the Commissioned Officers. Para 63 of the said Regulations reads: .... 63. First Appointment-(a) On first appointment to a permanent commission in the Regular Army, officers will be allocated to different corps. They will be required to do such basic training or attachment as may be prescribed from time to time for each corps, by Army HQ. An officer has no claim to a particular corps or to a particular unit of the corps. However, an officer may submit an application in writing to serve with a particular corps or a unit, which will be given due consideration subject to the requirements of the service...... 34. The choice of the cadet plays an important role in his allocation and induction in the 11 streams mentioned above. That is precisely why towards the completion of pre-commission training each cadet is required to submit his'/her choice of induc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be permitted to specify choice of Armd. Regt/Mech. Inf./Guards Bns. (l) GCs opting for Armoured Corps or Mechanised Infantry will be deemed to have opted for Infantry. (m) GCs opting for Inf will give choice of three Regts. (in order of preference) (n) GCs/LCs opting for Corps of Engrs. will give the preference of Gps: Madras/Bengal/Bombay. 35. Para 19(e) of the policy guidelines, inter alia, provides that as far as possible, efforts shall be made not to allot Arms/Services to any GC who has not opted for it as one of his choices. It is noteworthy that out of a total of 30 officers who had filed three original applications before the Tribunal, 26 officers were allotted to the streams of their first choice, 2 were allotted to the streams of their second choice while only one got allotted to the stream of his 3rd choice. One can, therefore, visualize that choice made by the officers prevails as has happened in the case at hand where an overwhelming number of 26 out of 30 officers have been given their first option while 2 out of 30 only were given their 2nd choice. There is no denying the fact that GCs who made their choices are presumed to be fully aware of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evision of 20% extra for Combat Arms to a level where the objective of inducting a Col. of Combat Arms for commanding a battalion is at the age of 37 years is achieved and the officer exits from command after 2 1/2 to 3 years to be adjusted in another available position before he is considered/selected for a higher rank. The recommendations of AVS committee, it was argued, were only with a view to enhancing and increasing the number of posts at the level of Col. for the streams constituting the broad classification of Combat Arms and Arms Support. 38. It was further submitted that the time edge of 0-1-2 was always in existence which in essence only meant that officers of combat arms of 1990 batch were considered by the Selection Board along with officers of the 1989 batch of 'Combat Arms Support' and officers of 1988 batch of 'Services'. This was on facts demonstrated by reference to the case of Respondent Lt. Col. P K Chaudhary of the 1994 batch of the ASC who was for the first time considered by Selection Board No. 3 for promotion to the rank in 2012 by which time officers belonging to Infantry and Artillery of 1994 had already been considered by Selection Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review; it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat a person's legitimate expectation, it must afford him an opportunity to make representations on the matter. The courts also distinguish, for example in licensing cases, between original applications, applications to renew and revocations; a party who has been granted a licence may have a legitimate expectation that it will be renewed unless there is some good reason not to do so, and may therefore be entitled to greater procedural protection than a mere applicant for a grant. 41. Legitimate expectation as a concept has engaged the attention of this Court in several earlier decisions to which we shall presently refer. But before we do so we need only to say that the concept arises out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect is the decision of this Court in Union of India v. Hindustan Development Corporation and Ors. (1993) 3 SCC 499, where this Court summed up the legal position as under: 28..... For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense. 33. On examination of some of these impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lief is again a matter which depends on several factors. (Emphasis supplied) 44. Reference may also be made to the decision of this Court in Punjab Communications Ltd. v. Union of India and Ors. (1999) 4 SCC 727, where this Court held that a change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. The choice of policy is for the decision-maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based merely on legitimate expectation without anything more cannot ipso facto give a right. Similarly in Dr. Chanchal Goyal (Mrs.) v. State of Rajasthan (2003) 3 SCC 485, this Court declined relief on the plea of legitimate expectation on the ground that the Appellants had not shown as to how any act was done by the authorities which created an impression that the conditions attached to the original appointment order were waived. No legitimate expectation could be, declared this Court, claimed on such unfounded i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also no basis for the contention that a legitimate expectation arose in the minds of the Respondents that they shall be promoted to the next rank simultaneously with the officers serving in Combat Arms or Combat Arms Support. As a matter of fact, the provisions of para (68) of the Regulations for the Army extracted earlier itself envisages the grant of promotion to officers from different streams at different points of time depending upon several factors which bring about the time lag for such considerations. Conscious of the fact that such officers serving in different streams may pick up the next rank at different points of time, the Regulations provide for grant of retrospectivity to the promotions so granted to restore inter se batch parity to such officers. There is no denying the fact that the said Regulation continues to be operative and regardless of the date when the officer is promoted, his promotion is so related back as to protect his seniority vis-a-vis his colleagues from the batch serving in other streams. Far from creating any impression or any expectation that promotions shall be simultaneous, the Regulations clearly provide for grant of retrospective effect to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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