Jaswinder Singh (Col.) vs Union Of India & Ors.
2000 Latest Caselaw 227 Del

ORDER

A.K. Sikri, J.

1. Petitioner was granted permanent Regular commission in Signal Corps on 11.12.1949. On 13.1.1973 he was transferred to Pioneer Corps., and was appointed as Assistant Director (Pioneer Corps.) Hqrs. Northern Command. In December, 1974, he was approved for promotion to Colonel by Selection Grade and by order dated 28.4.1975 he was promoted as Colonel and appointed as Director (Pioneer Corps.) at Army Hqrs.

2. To overcome the stagnation in higher ranks and to improve the careeprospects of service officers : in the Army, Government had ordered a Cadre Review in 1979, in which 125 additional posts of Brigadier were created by upgrading certain posts of Lt.Col./Col. The post of the petitioner i.e. Director Pioneer Corps. was one of the posts accepted by Government for upgradation from Col. to Brig. The upgraded post of the petitioner was to be filled specifically by an officer of the Pioneer Corps and its upgradation was not linked with that of any other posts. In August/September 1980, respondents identified 98 posts including post of Director Pioneer Corps. for upgradation from Colonel to Brigadier. On 3.3.1981 formal sanction for phase-I for upgrading 42 posts of Col. to Brigadier was issued by the Government. Thereafter on 30.3.1981 formal sanction for phase-II upgrading 59 posts which included the post held by the petitioner was issued by the Government. Consequently Selection Board was constituted which considered the case of the petitioner in May 1981 for promotion to the post of Brigadier but the petitioner was not recommended for promotion. Petitioner lodged first statutory complaint dated 11.5.1981 pursuant to which he was informed vide letter dated 25.5.1981 that he had not been found fit for promotion to the post of Brigadier at present. On 27.5.1981 petitioner lodged second statutory complaint requesting the Government to set aside the decision of the selection board. Vide letter dated 30.6.1981 petitioner was informed that two complaints preferred by him were already rejected by the Government. At this stage, the petitioner filed the present writ petition.

3. Putting in brief, the case of the petitioner is that the upgradation of the post of Colonel to petitioner was with the objective to remove stagnation and improve career prospects and therefore on such upgradation the petitioner should have been automatically given the upgraded post of Brigadier and there was no requirement to consider the case by the Selection Board for promotion. According to him, it was not a case of promotion at all and when the posts were upgraded from Colonel to Brigadier, the petitioner was entitled to get the upgraded post of Brigadier as a matter of right. Petitioner submitted that although the upgradation of order loosely referred as promotion, it was not promotion because :

(a) There was no change in appointment, charter of duties, responsibilities, establishment of men/material or place of work or authority.

(b) Hundreds of posts upgraded enmasse cannot be a case of normal promotions specially when upgraded post do not leave behind vacancies.

4. He was not only the senior most officer in the Pioneer Corps but was also the only Colonel already holding the post. He fell into the category of Heads of Service like Director APTC, Director AEC and other Heads of Service and other 23 seniors who were promoted in situ. The post of Director Pioneer was to be filled 'specifically' by an officer of Pioneer Corps. and he was the only eligible candidate of Pioneer Corps. In support of his submission, he relied upon the judgments in the case of N.G. Prabhu 1973 (2) SLR and in the case of Kirpal Singh Vs. State of Bihar . It was next argued that petitioner had performed duties of Director Pioneers for nearly 6 years to the entire satisfaction of his superiors which is evident from the fact, that he was never communicated any adverse remark from his ACRs and was awarded AVSM on the recommendation of all his superiors and respondents No. 1, 2 and 3 on 26th January 1981 i.e. 3 months before his Selection Board was held. He could not be possibly unfit to perform the same duties, in the same appointment, for another two years when there is no change in his job content he does not claim that he should be allowed to continue as Brigadier even if he is not fit for the upgraded post. But he cannot be possibly unfit, unless there is some lacuna in selection system or Defects in Confidential reporting or due to mala fide act on part of respondents. He accordingly submitted that Selection Board acted arbitrarily under vitiated circumstances and in support of his submission, he relied upon the judgment of Supreme Court in the case of State Bank of India Vs. Mohd. Mynuddin 1987 (4) SLR. After the arguments were over, he has also filed written submission as per which there are some vitiating circumstances under which SBI acted arbitrarily.

5. He further submitted that the fact that his requests for interview were not responded, his request for extending service in present rank were not acceded to and his request for consideration by Selection Board was rejected clearly showed mala fides on the part of respondents. He submitted that he was wrongly retired w.e.f. 30.6.1981 in the rank of Colonel and he has been promoted as Brigadier which was his rightful due, he would have retired on 30.6.1983 instead of 30.6.1981.

6. On the ther hand, it was submitted by the respondents that the petitioner has himself stated in the writ petition that the reasons for cadre review was to overcome the stagnation in the higher ranks and to improve the career prospects of service officers in the Army. It was because of this reason 125 additional posts of Brigadier were created by upgrading certain posts of Lt. Colonel/Colonel. Thus as per petitioner's own case once the posts were upgraded to remove stagnation the post of Brigadier which was higher in rank, was promotion post which was to be filled as per the relevant Recruitments Rules for filling up the posts of Brigadier. There was no automatic promotion as post of Brigadier being selection post, the eligible persons were to be considered for promotion to this post by duly constituted selection committee and only those found fit for promotion and recommended by selection committee could get the promotion. In support of his submission reference was made to order dated 30.4.1981 upgrading 59 posts in the rank of Lt. Colonel/Colonel to the rank of Brigadier during the year 1981 and as per which all prescribed criteria for selection to higher rank was to be followed. The reference was also invited to the following averments made in the counter affidavit :

"I submit that, as explained in the counter-affidavit, in the Army promotions are in terms of ranks and not appointments and that the upgradation of an appointment to be tenable in a higher rank does not, therefore, automatically entitle the incumbent of that appointment for promotion to the higher rank, unless he has been approved and is due for promotion to that rank. Where the incumbent of an upgraded appointment is not due, or has not been approved, for promotion to the higher rank, he is replaced by an officer who is already holding the higher rank or has been approved and is due for promotion to that rank.

I say that several incumbents of appointments upgraded to higher ranks under the Cadre Review have accordingly been replaced. To quote only a few in the ranks of Lt. Gen. and Maj. Gen.-

(a) When the appointment of Commandant Indian Military Academy was upgraded from Maj. Gen. to Lt. Gen. in phase I of the Cadre Review, he then incumbent who had not been approved for promotion to the rank of Lt. Gen. was replaced by and officer approved for promotion to that rank.

(b) Similarly, on the following appointments at Army Hq. being upgraded from Brigadier to Maj. Gen., officers holding these ppointments, who were not approved for promotion to the rank of Maj. Gen., have been replaced by officers already holding the rank of Maj. Gen. :-

Director of Logistics irector of Territorial Army

Provost Marshal

Chief Technical Examiner

I say that the position regarding the 59 appointment (including that of Director Pioneers) which have been upgraded to be tenable in the rank of Brig. vide Min. of defense letter No. 3103/JSG/81 dated 30 March, 1981 is as under as on 2nd December, 1981:-

       (a) No. of appointments so far 
      filled by officers in the 
      higher rank (Brigadier)            -    53
      (b) No. of appointments out of 
      (a) above, in which incumbents
      have been promoted in situo.       -    23
      (c) No. of appointments in which 
      incumbents have been replaced
      by
      (i) Officers already holding)      -    30
      the rank of Brigadier              =    23 )
 
      (ii) Officers approved and              )
      due for promotion to               =7   )
      the rank of Brigadier                   )
 
 

7.   The  respondent also relied upon the judgment of Supreme Court in  the case  of  Lt. Colonel K.D. Gupta Vs. Union of India & Ors reported  in  AIR 1989 SC 1393. 
 

8. The aforesaid sequence of events show that the short question to be considered is as to whether one had to compete for promotion to the post of Brigadier after the upgradation of these posts or one could get promotion to the post of Brigadier automatically. The order dated 30.3.1981 by which posts were created is a complete answer to this question. For removing the stagnation, certain posts of Lt. Col./Colonel are upgraded. However posts are not upgraded alongwith incumbents holding these posts. On the contrary, para 2 of this order specifically stipulates as under :

"All the prescribed criteria for selection to higher ranks will be followed."

9. Thus it was very clearly stipulated in the order of upgradation itself that prescribed criteria for selection to higher rank of Brigadier was to be followed. The necessary consequence is that the person who was holding the rank of Lt. Colonel/Colonel had to be considered for promotion to higher posts and he could get promotion only as per the prescribed criteria namely consideration of their candidature for the post of Brigadier by a duly constituted selection committee. Admittedly, selection committee was convened for filling up of hese posts by Brigadier and not even a single incumbent of the post of Lt. Colonel/Colonel was automatically promoted as Brigadier. Those who were recommended for promotion to the post of Brigadier only were promoted. Petitioner was also considered for promotion but unfortunately selection committee did not find some suitable for promotion to the post of Brigadier, and therefore, he was not recommendd. I am not inclined to accept the submission of the petitioner that though the order loosly refers as promotion it was not promotion. This presumption goes contrary to the specific order dated 30.3.1981 passed in this respect. The person has only right to be considered for promotion and no automatic right o be promoted. Therefore it is not correct on the part of the petitioner to allege that there was no need for putting him through a Selection Board.

10. Refuting the ground taken by the petitioner to the effect that since he was holding the post of Director, Pioneer Corps. for nearly six years to the entire satisfaction of his superiors and therefore could not have been denied promotion, the respondents have satisfactorily explained the position in the counter affidavit and I am quite convinced with the stand taken by the respondents to this effect which runs as under :-

"The post of Director Pioneers was not accepted for upgradation from Colonel to Brigadier in 1980; the upgradation of the appointment was sanctioned only on 30 March 1981. Further, the upgradation of the appointment does not automatically entitle its incumbent for promotion to the higher rank. It also does not mean that an officer of the Pioneer Corps only must be appointed as its Director in the upgraded appointment even if he is not found uitable for promotion to the rank of Brigadier. It is not correct to say that the appointment of Director Pioneers, or for that matter any other appointment in the Pioneers, is tenable exclusively by officers permanently seconded to the Pioneer Corps. While the appointments are normally filled by officers seconded to Pioneer Corps there is nothing against filling them y officers of other Arms if suitable officers permanently secnded to the Pioneer Corps are not available. In fact, a number of such appointments have been held by officers of other Arms and even now six appointments, including Assistant Director of Pioneers in Northern Command, is held by officers of other Arms."

"On receipt of Government sanction for the upgradation of the appointment of Director Pioneers in the second phase of the Cadre Review during the year 1981, steps were taken by Respondent No. 3 to have Colonel Jaswinder Singh assessed by the appropriate Selection Board for promotion to the rank of Brigadier at the arliest opportunity. His case was accordingly considered by No. 2 Selection Board, in May 1981, along with that of other officers, but he was not graded fit for promotion."

"Holding a Selection Board for assessing the petitioner's fitness for promotion to the rank of Brigadier was in accordance with the policy of the Government to ensure that the benefits of the Cadre Review accrued only to the deserving, promotion to selection ranks being based on merits and not mere length of service. The very purpose of the Cadre Review viz. to improve the career prospects of officers would be defeated if the upgraded appointments are filled by existing incumbents irrespective of their merits and suitability for holding higher ranks."

"Promotion in the Army is in terms of ranks and not appointments, and the petitioner could be promoted to the rank of Brigadier only if he was found fit for promotion to that rank. Mere upgradation of the appointment of Director Pioneers to the rank of Brigadier under the Cadre Review did not confer on the petitioner the right of automatic promotion to that rank and there is no olicy decision of the Government to the effect that the benefits of Cadre Review should accrue to existing incumbents of the upgraded appointments, irrespective of their fitness for promo-

tion. On the other hand, the emphasis has always been that there should be not relaxation of the standards of selection for promo tion."

11. In view of the aforesaid position, I do not find any merit in the allegations made by the petitioner alleging mala fides on the part of respondents or alleging vitiating circumstances under which selection board acted. The petitioner has alleged that his ACRs were not properly recorded. When he did not challenge the recording of those ACRs earlier and there are no averments to that effect in the body of writ petition he cannot be permitted to raise such issue written synopsis filed by him. In fact the grounds on which the petitioner claims promotion are stated in para 15 of his writ petition which are replied to properly and respondents have given proper reply to all these averments in the counter affidavit. The allega-tions of so-called vitiating circumstances, are stated for the first time in the written submissions filed by the petitioner which merit no consider-ation on this ground also.

12. Accordingly I find no merit in this writ petition which is hereby dismissed. Rule is discharged.

13. There shall be no order as to costs.