K.R.Srinivasan vs Union Of India And Ors.
2008 Latest Caselaw 1217 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI


+                       WP (C) No.10958/2004


                                Reserved on :       July 17, 2008
%                               Date of decision:   August 04, 2008



K.R.SRINIVASAN                                    ...PETITIONER
                                 Through:   Mr.K.R.Krishnamani,
                                            Sr.    Advocate     with
                                            Mr. R.K.Gupta, Advocate.


                                Versus


Union of India & Ors.                              ...RESPONDENTS
                                 Through:      Mr. Vikas Singh, ASG
                                               with Mr. Sanjay Katyal,
                                               Advocate.

CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?          Yes

2.     To be referred to Reporter or not?           Yes

3.     Whether the judgment should be
       reported in the Digest?

MOOL CHAND GARG, J.

1. The petitioner was appointed as a Commissioned Officer on

15.5.1967 in the Executive Branch of the Indian Navy.

During his service he specialized in "Hydrography" some time

in Jan. 1969 while posted in the executive branch. He was

then assigned his duties in Hydrographic Section of the

Executive Branch.

2. In 1976 the Navy started an exercise for creating a separate

Hydrographic Cadre to retain professionalism in the service.

They also sought views of those who were working in this

branch and gave them option to come back to the general

cadre while retaining the final decision to be taken by the

Naval Headquarters vide letter no. NA/1648/76, dated

25.3.1976. The petitioner as well as others requested to

come back to the general branch but the said option was

refused at that time.

3. However, based on the inputs from the naval commands and

the apprehensions of vast majority (over 80%) of the

hydrographic officers, including the petitioner, the Naval

Headquarters after deliberations within and at the PSOs

meeting on 02 Jan. 1977, decided to form a separate

hydrographic cadre within the Executive Branch due to the

exigencies of the services.

4. It is also the case of the petitioner that when a decision was

taken to create a separate Hydrographic cadre, the

Headquarters of Navy also decided to safeguard further

promotional avenues and career prospects of such

hydrographic cadre (H) officer who were retained in

Hydrographic Cadre. It was decided that promotional

avenues and career prospects of promotion shall be

maintained at par with those of the General Service (X)

officers. This is apparent from the provisions of para 3(a) and

(b) and 4 Naval Headquarters letter NA/1648/76 dated

02.9.1976. The said paragraph are reproduced for the sake

of reference:-

"Career Prospects: It will be ensured that promotion opportunities for the officers of the Hydrographic cadre will remain at par with those of the General List officers of the Executive Branch by-

a) Creating additional Hydrographic vacancies, based on periodic cadre reviews.

b) Making temporary adjustments in the Executive Branch vacancies ashore, pending the sanction of additional Hydrographic vacancies, from time to time.

4. Cross-Movement to General Service:- It is not considered necessary that Hydrographic Officers move to afloat appointments in General Service. However, as explained above, career prospects will be maintained by appointing them to General List appointments ashore."

(emphasis implied)

5. On 4th January, 1977 respondent No.1, in accordance with the

spirit of the policy letter dated 02.9.1976, conveyed the

sanction of the President of India for the upgradation of the

post of then Chief Hydrographer Navy as Rear Admiral so

long as it was held by Commodore F.L. Fraser. It is a matter

of record that in terms of the policy decision taken by the

respondents the petitioner was also considered for promotion

to the post of Lt. Commander (Cdr.) on 1.11.1976. Later on,

he was also promoted as Captain with seniority of his own

batch. He became Commander (Cdr.) on 30.9.1980. He was

also considered for promotion to the rank of Rear Admiral

initially but he could not make it twice. But later on he was

promoted to the post of Rear Admiral by the Promotion Board

(PB) 01/96 which was duly notified vide letter no.

RS/1416/96, dated 30.7.1996 issued by the Chief of the Naval

Staff.

6. However the petitioner was not considered for promotion to

the post of Vice Admiral even though his juniors and the

officers of his batch were considered. He made

representations in this regard but without success. He was

intimated about the decision taken in this regard on

26.3.2004 and 14.6.2004 and thereafter, he filed the present

petition.

7. It is the case of the Petitioner that his non-consideration for

the post of Vice Admiral is contrary to the promise made in

the letter dated 2nd September, 1976 (supra) and is therefore

arbitrary. It is also discriminatory as one Sushil Kumar who

was also a hydrographer as per the current Navy list was also

promoted to the higher rank up to the rank of Admiral. He

also submits that even his juniors have also been granted the

rank of Vice Admiral by the last Selection Board. Thus his

grievance can only be readdressed by this Court.

8. The petitioner has made the following prayers in his writ

petition:

"a) Issue a writ of certiorari or any appropriate writ or

writs to set aside the order dated 14.6.2004 passed by

Respondent No. 1.

b) Issue a writ of certiorari or any appropriate writ

or writs to set aside the order dated 26.3.2004 passed

by Respondent No. 1.

c) Issue writ of Mandamus or any other writ or writs

commanding the respondent No. 1 to consider the

petitioner for promotion to the rank of Vice Admiral in

Indian Navy with applicable seniority in accordance

with para 3 and 4 of policy dated 02.9.1976, total sub-

cadre management decisions of 17.3.1997, and based

on ACRs till PB 01/03.

d) Any other writ or writs, order/orders,

direction/directions."

9. The respondents have opposed the writ petition by filing a

counter affidavit. It is stated that the representation made by

the petitioner against his non-consideration for the post of

Vice Admiral stands already rejected vide orders passed on

26.3.2004 and by the order dated 14.6.2004. It is also stated

that the petitioner was commissioned in the Navy on 15.05.67

in the Executive Branch („X‟ Branch) of Navy which consists

of officers who are specialized in the field of Aviation,

Submarine, Gunnery and Missiles, Communication, Diving

etc. and has small cadres such as Ligistic, Hydro, Naval

Armament Inspection (NAI) and Naval Law (NL). The

petitioner specialized in "Hydro" in his early years of service

and thus he was posted in Hydro appointments.

10. It is also the case of the respondents that in 1976 a separate

Hydro cadre within the „X‟ Branch was envisaged vide Naval

Headquarters (NHQ) letter No. NA/1648/76 dated 02.09.76

and that the officers specialized in Hydro were given a

special preference to opt for the new cadre and the same was

appreciated by the officers. It is further submitted that the

letter of 02.09.1976 (supra) clearly shows that the officers

already holding Hydro specialization were to be given an

option either to continue in the cadre, or revert to General

Service, with the clear stipulation that the final decision

regarding individual officers rested with NHQ. The

contention of the petitioner that his option to revert to X (GS)

in 1976 was rejected by NHQ due to exigencies of service

was not germane, as he never raised this issue ever since

1976, prior to his recent representations. Moreover the

petitioner in hydro cadre was promoted to the highest rank

i.e. R. Admiral and enjoyed all the service benefits and is now

raising baseless issues with regard to his promotion to Vice

Admiral. It is further submitted that before 1981 the Captain

was the senior most rank in the Hydro Cadre but the same

was upgraded vide Government of India, circular dated

27.03.1981.

11. It is stated that in Navy the rank of Commanders (Cdr) and

above are selection ranks and officers are given a minimum of

„three looks‟ for consideration for these ranks, viz. First Look,

Review Case 1 (R-1) and Review Case 2) R-2. The petitioner

was promoted to various higher ranks as per details given

below:-

       (a) Lieutenant             15.06.70
       (b) Lt. Commander          15.06.1978

(c) Commander As a First Look Case as part of X (GS) by PB

(d) Capt As a First Look Case as part of X (GS) by PB 2/86

(e) Radm As a Third Look (R-2) case by PB 1/6 as part of X (GS) but cleared exclusively for Hydro cadre.

12. It is submitted that till 1997 officers from Hydro cadre were

being treated as part of X (GS) and were being cleared

against X (GS) vacancies. Based on this policy, the petitioner

though belonging to Hydro Cadre continued to be considered

and promoted to the ranks of Cdr and Caption (Capt) against

X (GS) billets. Therefore for the rank of R. Adm also the

petitioner was considered by PB 1-94 and PB 1/95 against X

(GS) billets and was graded „R-1‟ and „R-2‟ respectively. The

petitioner was appointed as Chief Hydro in the rank of Cmde

on 03.08.94, on demise, in harness, of the then incumbent R.

Admn. PP Nandi as he was the only officer available. He was

than considered again for promotion as a third look case by

PB 1/96. The respondents also submitted that on the

consolidated merit list, the petitioner figured at number 13

and hence would not have merited promotion to rank of R.

Adm. itself due to availability of only four vacancies.

However, he was promoted "Exclusively for Hydro Cadre" as

a special case. Further the approval of promotion MoD also

carried this annotation. As the petitioner was promoted to

the rank of R. Adm., (Exclusively for Hydro cadre) and there

being no post of Vice Admiral (V. Adm.) in Hydro cadre,

therefore he was not eligible for consideration for further

promotion. Accordingly, the petitioner was not considered by

the Promotion Board (PB) No. 1 held on 13.06.2003 in which

R. Adms. Of X (GS) of Selected List Year (SLY) 1996 were

considered for promotion to the rank of V. Adm.

13. It is further stated that the petitioner was initially posted as

Chief Hydro Officer in the rank of Commodore (Cmde) in

August 1994 and continued to hold the same post on

promotion to the rank of Rear Admiral since 1.11.96. He

never asked for any change of post during this long tenure of

10 years service. This implied that the petitioner was well

aware of the fact that he was retained, as Chief Hydro for an

unusually long spell whereas the normal tenure of Naval

officers is 18 to 24 months in one appointment. Therefore it

is clear that the petitioner tacitly accepted this reality as he

never raised any objection to his continued retention as Chief

Hydro for ten long years, nor asked for any change of posting

except seeking promotion to the rank of V. Adm. nearly at the

end of his service. As such it has been prayed that the

present petition is devoid of any merit and deserves to be

dismissed.

14. We have heard the learned counsel for the parties and have

also gone through the written submission.

15. The basic issues which arise for consideration in this writ

petition are two fold:-

i) Whether the respondents were not duty bound to take care of

the career prospects of the officers working in the Hydrography

Branch despite the assurance given by them in this regard by

refusing their option to shift to X (G) Branch as was

contemplated vide the letter dated 02.9.1976. The said

paragraphs are reproduced for the sake of reference:-

"Career Prospects: It will be ensured that promotion opportunities for the officers of the Hydrographic cadre will remain at par with those of the General List officers of the Executive Branch by-

c) Creating additional Hydrographic vacancies, based on periodic cadre reviews.

d) Making temporary adjustments in the Executive Branch vacancies ashore, pending the sanction of additional Hydrographic vacancies, from time to time.

4. Cross-Movement to General Service:- It is not considered necessary that Hydrographic Officers move to afloat appointments in General Service. However, as explained above, career prospects will be maintained by appointing them to General List appointments ashore."

ii) Whether the respondents could change the service condition

of the petitioner by restricting further promotion of the

petitioner from the rank of Rear Admiral to Vice Admiral and

above despite the fact that persons who had also been in the

Hydrography cadre were promoted to the highest post in Navy

such as Shri Sushil Kumar who also became Admiral.

16. There can be no dispute that the petitioner was at number

13 in the merit list when he was considered for the post of

Rear Admiral. It is also a matter of record that on the first

two occasions he was not granted promotion but on the

third occasion he was granted promotion along with JS

Bedi and A.K. Singh who happened to be his juniors also

considered at that time. There is nothing on record which

may justify that the promotion of the petitioner as Rear

Admiral was on account of any special concession shown to

the petitioner or that there is any policy decision taken by

the respondent to put a glass ceiling for the promotion of

hydro officers who admittedly form part of the X (G) Cadre

service.

17. At this juncture it would be interesting to take note of the

profile of the Hydrographer in a booklet which has been

circulated by the Indian Navy for inviting the people to join

Navy. Regarding Hydrographic Officer it is stated that,

"This small but crucial sub specialization is responsible for collecting information needed for the charts used by the Indian Navy and other Navies around the world. You have the option to remain a Surveyor throughout your career for the sheer love of it, or opt for other shore based appointments."

18. Thus the aforesaid public notice does not show that there is

any distinction between a Hydrographic cadre or the

general services cadre which might be formed or that it

forms a separate class which puts an end to their

promotional avenues after attaining the post of Rear

Admiral. It is also interesting to note that while

considering the case of the petitioner for the post of Rear

Admiral, the profile which has been disclosed to the

promotion board reads as under:-

"Cmde KR Srinivasan (00744R). The promotion Board noted that this officer also belongs to the exclusive cadre of „Hydrographic Specialists‟, has excelled in the appointment of Chief Hydrographer and has brought great distinction to the Navy and the country. Whilst holding charge of the Navy‟s Hydrographic department, this officer has fully displayed the qualities and attributes required of a Flag officer and through rare qualities of leadership and professional expertise, he has achieved high international acclaim for this major department of the Navy. The Board was thus absolutely convinced and unanimous in its view that Cmde KR Srinivasan fully merits elevation to Flag rank. He has thus been placed in the Select List and graded „B‟ fro promotion to RAdm (X) for the exclusive assignment of Chief Hydrographer to the Govt. of India. This is a special cadre vacancy for a RAdm and at present there are no other eligible candidates who meet the QRs for this assignment."

19. A perusal of the aforesaid shows that the petitioner was an

excellent officer and this was the reason for his selection.

The promotion to the post of Rear Admiral was also based

upon seniority cum merit. Thus, it cannot be presumed

that by the aforesaid promotion any favour was shown to

the petitioner.

20. It is an admitted fact that a conscious decision was taken

by the Naval Headquarters to refuse the option exercised

by more than 80% in the hydro cadre to shift X Branch. It

is also a matter of record that despite a decision having

been taken to create a separate Hydrographic cadre no

such cadre was formed and the Hydrographic cadre was

working as part of Executive (G) Branch and therefore no

distinction can be made between officer working in

Hydrography branch or in other branches of Navy.

Moreover, the letter dated 2.9.1977 (supra) goes to show

that while refusing the option and taking into consideration

the grievance which were prevailing in the Hydrogrphic

Cadre at that time the respondents themselves decided to

ensure that the promotional opportunities for the officers

of the Hydrographic Centre will remain at par with those of

general list officer of the Executive cadre, as discussed

above.

21. There is no document which might go to show that the

intention as expressed by the respondent in their letter

dated 02.9.1976 was not to be complied with. There is also

nothing on record which may go to show that the officers

who were retained in the Hydrographic Cadre had a glass

ceiling for their promotion beyond the post of Rear

Admiral. The Respondents have also not been able to place

on record anything which may reflect that a consent was

obtained from the petitioner to put a ceiling for his further

promotion when he was appointed as a Rear Admiral.

Rather the petitioner has placed on record documents

which go to show that on 06.10.02, the Chief of the Naval

Staff had approved the proposal to upgrade the post of

Joint Chief Hydrographer and Chief Hydrographer to the

rank of Vice Admiral and Rear Admiral respectively in the

Indian Navy to provide for promotion prospects within the

Hydrographic Cadre as per the policy decision of 02.9.1976

and based on detailed justifications of work load since last

upgradation in 1977. The respondents have also not been

able to counter the submissions made by the petitioner that

other officers who were earlier in the Hydrographic Branch

have been promoted to the post of Vice Admiral. It is trite

to say that the Court will not create a post to give

preferential promotion to the petitioner. But the petitioner

only seeks parity for consideration for promotion to the

post of Vice Admiral along with other Rear Admirals who

form part of the zone of consideration for promotion.

22. We are conscious of the fact that the right to be considered

does not mean that the persons would be appointed to the

post. However in the absence of anything which may go to

show that the respondents were justified in putting a glass

ceiling for further promotion in Hydrographic Cadre

though it remained part of the general services cadre, the

decision taken by the respondents not to consider the case

of the petitioner for the post of Vice Admiral cannot be

justified. Moreover, there action is arbitrary and

discriminatory and cannot stand at touch stone of the

precept of equality as enshrined in Article 14 of the

Constitution of India.

23. We are thus constrained to note that the action of the

respondent in having not considered the petitioner for the

post of Vice Admiral while A.K. Singh and J.S. Bedi, his

juniors were considered for post in January 2003 cannot be

sustained. Since the petitioner stands already retired from

the service, the only relief which can be given is to direct

the respondents to consider the petitioner for notional

promotion to the post of Vice Admiral by holding a review

promotion board in accordance with law. We may note

that Shri Vikas Singh, Ld. ASG appearing for the

respondent submitted that a mock exercise was done by

the respondents. However, there is a difference between a

mock exercise and the decision taken by the Regular

Promotion Board.

24. Accordingly, we allow the writ petition and issue a writ of

mandamus directing the respondents to consider the

petitioner for promotion to the post of Vice Admiral in

accordance with law within a period of three months. In

case the petitioner succeeds then he would be entitled to

all consequential benefits of notional promotion within a

period of three months thereafter except pay and

allowances for the intervening period.

25. The writ petition is allowed as aforesaid with no order as to

costs.

MOOL CHAND GARG, J.

AUGUST 04, 2008                          SANJAY KISHAN KAUL, J.
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