Ic-24663K Col. Jaswant Singh ... vs Union Of India (Uoi) And Ors.
1998 Latest Caselaw 967 Del

JUDGMENT

K. Ramamoorthy, J.

1. The petitioner who was working as Col. was considered for being appointed as Brigadier. On 19.04.1996, the Military Secretary had issued the proceedings which would show that the petitioner had been empanelled for acting as Brigadier. The same reads as under:

No. 34374/MS(X), dt. 19 Apr 1996

All Commands

Panel of officers approved for promotion to the Acting Rank of Brigadier.

Reference meeting of No. 2 Selection Board held on 18-20 Mar 96. The Govt. have approved the empanelment of the undermentioned officers for promotion to the acting rank of Brig.

ASC

Fresh cases - 1970 batch

a) Col. P.K. Mehta (IC-24211)

b) Col. DS Nehru (IC-24601)

c) Col. JS Yadav (IC-24663)

d) Col SK Bhasin (IC-24711)

e) Col RK Gupta (IC-24810)

MF

xxxxx

INT CORPS xxxxx

2. The petitioner retired on 30.04.1996. The case of the petitioner is that in spite of there being a vacancy he was not given any posting to act as a Brigadier and therefore his Fundamental Rights under Articles 14 and 16 had been violated by the respondents. The further case of the petitioner is that his statutory complaint was also rejected by the respondents and, therefore, on 20.11.1996 he had filed the writ petition praying for the following reliefs:

Directing the respondents to produce the relevant records of the case.

To quash the retirement order No. 8183/Apr/9655/MS/Retirement dated 20 Apr 95 (Annexure P-2) and 506 ASC Bn letter No. 78171ST-2 dated 1.5.96 (Annexure P-2/A) and reinstate the petitioner in service wef A/N of 30 Apr. 96, with consequential benefits from the same date admissible to other officers similarly placed.

To promote the petitioner to the rank of Brigadier from 19 Apr. 96, the date from which he stood approved from promotion vide Army HQ letter No. 34374/MS(X) dated 19 Apr. 1996. (Annexure P-5) with consequential benefits of pay, seniority and other such benefits.

3. In para 12 of the writ petition, it is stated:

That para 2 of Annexure P-1 gives out the following order of seniority in which officers were placed after approval:

a) IC-24211Col PKMehta

b) IC-24601 Col DS Nehru

c) IC-24663 Col JS Yadav

d) IC-24711 Col SK Bhasin

e) IC-24810 Col RK Gupta

4. In para 12-A about the position of the petition and his chances of being given actual order of appointment, the petitioner had stated:

That it would appear from the details given in para 11 above that the petitioner stood at serial No. (c) or 3 for promotion in order of seniority. Col. DS Nehru, held at (b) or 2 being low medical category on account of heart ailment was disqualified for promotion to the rank of Brigadier. There is/was no rule under which a vacancy was to be kept for him awaiting upgrading of his low medical category as it was an uncertainit. Therefore, for purpose of promotion the petitioner stood at serial No. 2 or (b) being in Medical Category SHAPE-1.

5. The petitioner would assert that there were two available vacancies in ERE in NCC itself and there were several vacancies on general staff and ERE in NCC where ERE officers were being posted on promotion. Asserting his right that the petitioner should be given an appointment as a Brigadier in any one of the branches. The petitioner would state in para 13-A which reads as under:

That Indian Army is authorised more than 500 Brigadiers for which each Arm and service has its fixed quota like ASC has 37 Brigadiers who are employed within the Corps in addition ASC Brigadiers are also posted on staff involving logistic duties, General staff and Extra Regimental Employment (ERE for short) in other organisations like NCC, Assam Rifles Rastriya Rifles etc. which was/is in addition to the fixed quota of 37 vacancies. Several such vacancies were available during April 96. the petitioner could have been posted in any of these vacancies. Such practice has been followed by posting colonels on promotion as Brigadiers and also posting serving Brigadiers and also posting serving Brigadiers.

6. According to the petitioner if he had been given the posting as Brigadier he would have served as a Brigadier until 30.04.1998 and and he would have been further promoted as Major General to serve upto April 2000 and earn further ACRs in the rank of Major General to serve upto 30th of April 2002.

7. According to the Petitioner the respondents had passed an order retiring him unjustifiably and he was deprived of his further opportunity in his career.

8. In the counter affidavit filed on behalf of respondents 1 to 5, it is stated that there was no vacancy in the Army Service Corps between the period 19.04.1996 and 30.04.1996 and therefore, the petitioner had to retire on his attaining the age of superannuation on 30.04.1996. As per Army Rules 16-A the age of superannuation of officer holding the rank of Col. ASC is 56 years. Meeting the case of the petitioner about the availability of vacancy and how the petitioner was dealt with it is stated at page 52 to 54 of the type set of the documents which reads as under:

It is admitted that Col. DS Mehra who was who was ahead at Sr No. 1(b) was in low medical category. However, there was one more officer of the 1968 batch, viz Col. BK Sood, who was senior to the petitioner and awaiting promotion. Col. BK Sood who was approved for promotion vide Army HO letter "No. 34374/MSX dt. 25 May 93, could not be promoted earlier in his own turn as he was placed under DV (Discipline and Vigilance) ban wef 20 Oct 95. The ban on Col. BK Sood was lifted on 29 Mar 96 and his promotion orders were issued on 12 Apr 96 with instructions to report on 30 Apr 96. It is denied that 2 vacancies were available in ASC at the time of issue of 1970 panel on 19 Apr 96.

There was only one vacancy existing on 19 Apr. 96, which arose on 01 Apr. 96 on the retirement of Brig UP Bhatt, DDST UP Area. No further vacancy occurred till 30 April 96. The next vacancy was a chain vacancy available in May 96 on the promotion of Brig NJ Chinoy, Dy MS(ASC). However, for this vacancy, promotion orders in respect of Col. BK Sood, who is of earlier seniority was already issued vide MS Branch Sig No. 384783/MS (Brigs)/ 39 dated 12 Apr 96. The vacancy arising on the retirement of Brig UP Bhatt, DDST UP Area was filled by the promotion of Col. PK Mehta vide posting order No. 384807/MS(brigs)/53 dated 10 May 96. Thus there was no vacancy available within the ASC for promotion of the petitioner as on 30 Jim 96. Detailed of ASC Colonels awaiting promotion as on 19 April 96 is as follows:

1968 Batch

1. Col. BK Sood - Under DV Ban upto 29 Mar 96 - Officer's promotion orders were issued on 12 April 96 with instructions to report on 30 Apl 96. 1970 Batch

2. Col PK Mehta - Promoted on 29 May 1996.

3. Col DS Nehru - LMC due to IHD. Med Cat upgraded in Jul 96 and promoted wef 23 Aug 96.

4. Col JS Yadav - Retired in present rank on 30 Apr 96.

5. Col SK Bhasin - promoted wef 23 August 1996.

6. Col RK Gupta - Promoted wef 01 Jan 1997.

As regards the petitioner's claim that several vacancies were available outside the ASC, it is stated that ASC was holding their full quota on specified (29) and unspecified (7) appointments at that time and the petitioner could not be promoted and posted to any specified/unspecified appt. The petitioner has no right to claim a vacancy belonging to any other Arms/Services, thus on 30 April 96 the petitioner was not a substantive Brigadier (in contradistinction to the action rank of Brigadier to which the petitioner was approved) to claim continued service beyond the age of 52 years, applicable to rank of substantive Colonel which substantive rank was held by the petitioner on 30 Apr 96. As regards the petitioner's contention that other vacancies were available outside the ASC Corps, it is submitted that the petitioner has no right to claim vacancies outside his Corps.

9. The petitioner filed the rejoinder pointing out as to how the promotion should be done by the respondents. It is not necessary to deal with the averments made in the rejoinder as the petitioner had attempted to refer to certain facts which according to the petitioner entitled him to get appointment order as a Brigadier as a matter of right. The petitioner would assert that there were 37 vacancies and deliberately the petitioner without being appointed as Brigadier was allowed to retire on 30.04.1996. It is not stated any where in the petition that the respondents with some motives had denied the appointment order to the petitioner as Brigadier. In several cases the respondents would have acted on the exigencies of the situation and the public authorities are entitled to act in the interest of administration especially when the appointment to the post of Brigadier is involved, the respondents have to taken into account variety of factors. The services of the petitioner were recognised and he was empanelled. When that is the position when there was no vacancy and therefore when the petitioner was not promoted he cannot turn round and say that he has been empanelled and he must be given the post of Brigadier and the respondents are bound to do so. I heard the learned counsel for the parties at length and on the material available on records, I am of the view that the petitioner has not made out any case for interference under Article 226 of the constitution of India.

10. Accordingly the writ petition is dismissed. There shall be no order as to costs.