Union Of India vs Maj. General V.K. Sharma
1999 Latest Caselaw 158 Del

ORDER

ARUN KUMAR, J.

1. The only question for consideration in this appeal is whether on 30th April, 1996 a post of Lt. General was available to which the respondent could have been promoted. There is no dispute that the respondent who was holding the rank of Major General in the Indian Army was qualified for promotion to the post of Lt. General. In fact he was placed at serial No. 1 by the Selection Board in the panel of officers found fit for promotion to the rank of Lt. General.

2. In the rank of Maj. General, the respondent was due to retire on 30th April, 1996. However, if he was to be promoted to the next higher rank of Lt. General, he would have got additional two years in service and he would have retired on 30th April, 1998. The only reason given by the appellants in the counter affidavit for not promoting the respondent to the rank of Lt. General is that no post was available in that rank on 30th April, 1996 and, therefore, the respondent could not be promoted. Turning down the stand of appellants. The learned Single Judge held that one post of Lt. General was available on 30th April, 1996 to which the respondent could have been appointed and, therefore, the appellants were directed to treat the respondent as having been appointed as Lt. General on 30th April, 1996. Accordingly the respondent would be deemed to have retired on 30th April, 1998 and was held to be entitled to all monetary benefits including pension on the basis as if he had retired as Lt. General in the Indian Army. The Government has challenged this decision of the learned Single Judge in this appeal.

3. According to the appellants, there were 56 posts of Lt. General in the Indian Army at the relevant time out of which 52 were substantive and four were in the category of acting. It is also the case of the appellants that on 30th April, 1996 all the 56 posts were filled and there was no post available to which the respondent could be appointed. The appellants do not dispute that the respondent was found fit for promotion as Lt. General by the Selection Board and except the question of non-availability of a post, there was no other hurdle in the way of his promotion to the post of Lt.

General.

4. For purposes of holding that a post of Lt. General was available to which the respondent could have been promoted on 30th April, 1996, the learned Single Judge relied on a note put up by the Ministry of defense for approval of the Prime Minister/Defense Minister - (the Prime Minister was also holding the portfolio of defense Minister).

5. The file containing the note put up to the Prime Minister for approval shows that a procedure of chain posting was worked out in order to ensure that the respondent is able to pick up the rank of Lt. General before his retirement on 30th April, 1996. The practice of chain postings was being resorted to in the Army is clearly borne out from the file. This practice was being adopted in order to save officers from superannuating when they were due for promotion to the higher rank and had been cleared by the Selection Board for that purpose. The file shows that the respondent had been cleared for promotion to the rank of Lt. General in October 1995 and was at the relevant time at serial No. 1 in the penal cleared for promotion to the post of Lt. General.The chain posting worked out for purposes of promotion of the respondent was as under:

6. Lt. General A.S. Parmar who was the Commandant, School of Artillery was superannuating on 30th April, 1996. Lt. General Vinay Shankar was holding the post of DG, D&CW. It was proposed to post Lt. General Vinay hankar as Commandant, School of Artillery in anticipation of the retirement of Lt. General A.S. Parmar. The respondent was to be romoted in place of Lt. General Vinay Shankar as DG, D&CW. The respondent was to be posted in a substantive rank of Lt. General because the further two-year period in service is available only to Lt. Generals posted in substantive ranks. This chain posting was recommended by the Army Headquarters and was found to be in order by the Ministry of defense vide note dated 20th April, 1996. It is observed in the note - "hence, there is a possibility of working out a chain of movement in which movements are affected a couple of days before the Maj. Gen. Sharma can be given benefit of promotion." The file records that there had been instances when an incumbent was allowed to join on a post a few days before it actually is vacated by the retire. This had the approval of Army Headquarters. The past instances in which such chain postings had been carried out are also recorded. The file was forwarded for approval of the above proposal on 24th April, 1996 by the Ministry of defense to the Prime Minister's Office for approval of the Prime Minister who was also the defense Minister at the relevant time. We may reiterate that the proposal forwarded to the Prime Minister was a composite proposal about posting of Lt. General Vinay Shankar as Commandant, School of Artillery and posting the respondent, Maj. Gen. V.K. Sharma as DG, D&CW. The composite proposal was approved by the Prime Minister as a whole in the morning of 30th April, 1996. This fact is admitted in the counter affidavit filed by the appellants in reply to the writ petition. It is stated therein : "......it is admitted that the approval of the Prime Minister/Defense Minister was communicated on telephone by the Prime Minister's Office in the forenoon of 30.4.1996 which was in turn communicated to MS Branch."

After the approval of the note by the Prime Minister, a letter regarding promotion and posting of the respondent as DG, D&CW was issued by the Ministry of defense on 30th April, 1996 the original of which is found in the file of the MS Branch, Army Headquarters. The letter is reproduced as under:

MINISTRY OF defense

D(MS)

Subject: Posting proposals - Gen. Officers

Government have approved the promotion of Maj. Gen. V.K. Sharma, Arty to the substantive rank of Lt. Gen. and his posting as DG D& CW vice Lt. Gen. Vinay Shankar with immediate effect.

(R.K. Kalia)

Under Secretary

Tel. 3013233

Dy MS(X)

MOD ID NO. 1807/D(MS)/96 dated 30.4.96

7. It is recorded in the file of the Ministry of defense is another note dated 30th April, 1996 that the order regarding posting of Lt. General Vinay Shankar was also handed over to the MS Branch at 5.25 P.M. on the same day.

8. The above facts clearly show that the finding of the learned Single Judge that a post of Lt. General was available on 30th April, 1996 on which the respondent could be posted is borne out from the record. All the concerned departments were alive to the problem of finding a post where the respondent could be promoted. A solution was found. The solution was in accordance with the practice already in vogue in the Army and past precedents were cited. Not only solution was found, the solution was also implemented. It is too late in the day for the appellants to rake up the question of non-availability of a post all over again. A post was made available for the respondent and posting orders were issued which were not given effect to. Letters regarding posting of respondent as well as Lt. General Vinay Shankar were issued by the authorities. The MS Branch had only to implement the orders and if it failed to do so, the respondent cannot be made to suffer. Attaining the rank of Lt. General in the Army is not only a matter of great pride and honour for the concerned officer, it also brings in an additional period of two years service with accompanying benefits of remuneration, status and other benefits including retiral benefits. Thus so far as the officer is concerned, it has far-reaching consequences both in terms of money and status.

9. Mr. Mukul Rohtagi, the learned Addl. Solicitor General argued that at best it was a mere approval of the proposal of Ministry of defense by the Prime Minister and it cannot e interpreted to mean that it amounted to order for promotion and posting of the respondent. He further argued that to be effective, an order has to be communicated and till it is communicated, the Government has a right to withdraw the same and till an order is communicated rights do not accrue to the person in whose favour the order is. In our view these arguments are not attracted in the facts of the present case. Firstly, it is not a case of mere approval of proposal by the Prime Minister. The approval of the proposal was followed by promotion order being issued by the Ministry of defense. Secondly, this is not the case of appellants that they wanted to withdraw the promotion order. An officer earns his promotion by dint of hard work, dedication and discipline. The Army appreciate this. It follows a practice of chain posting to alleviate hardship to officers on account of non-availability of promotional posts. Posts are made available by following the process of chain postings in order to enable such officers to pick up higher ranks before superannuation. This process was followed in the case of the respondent. It was recommended by the Army Headquarters. It was approved by the Ministry of defense. Finally it had approval of Prime Minister/Defense Minister. The respondent cannot be denied the rank of Lt. General in these facts.

10. Before concluding, we would like to note that the respondent had filed an additional affidavit in which it is stated that Maj. General C.R.S. Kumar (IC-13027) in-situ was promoted to the rank of Lt. General on the eve of his retirement in September 1997 in spite of the fact that no post of Lt. General was available. Copies of the orders issued regarding promotion of Maj. General Kumar have been annexed to the affidavit. During the course of hearing, the counsel for the appellants did not dispute this fact when attention of the Court was drawn to this fact by the counsel for the respondent. This fortifies the contention raised on behalf of the respondent that the fact that at a given time all the posts in the higher rank are lying filed, does not deter the authorities from effective promotions when they want to do it.

11. Keeping all the aspects in view, we find no merit in this appeal. The same is dismissed with costs. Counsel's fee Rs. 10,000/-

CMs. 2365 & 2367/98

12. In view of the main appeal having been dismissed on merits, these applications do not survive and are dismissed as such.