http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: COL. AVTAR SINGH SEKHON

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT31/07/1980

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. REDDY, O. CHINNAPPA (J)

CITATION:  1980 AIR 2041            1981 SCC  (1) 168

ACT:      Review-When  the   Court  would   review  its   earlier judgment.

HEADNOTE:      Apprehending that  the  Government  was  considering  a change of  policy framed  in 1964 for choosing an officer to become brigadier  in charge of military farms the petitioner moved the  High Court for the issue of a writ. On directions from the  High Court to the Defence Department to select the best man  for the  post the  Department  reported  that  the petitioner and respondent were equal in merit, but since the respondent in  the review petition was senior as colonel, he be chosen  for the  post. After considering the legal import of the  1964 policy the High Court allowed the petitioner to become a  brigadier The  respondent’s petition  for  special leave was  granted by this Court. The Central Government was given one  month’s time  to evolve its policy, if necessary. That not  having been  done the  respondent moved this Court again as to the non-compliance and for consequential orders. On May  9, 1980  the Court passed orders that the respondent be appointed  as brigadier.  The petitioner sought review of that order. ^      HELD: A  review is  not a routine procedure. An earlier order cannot  be reviewed unless the Court is satisfied that material error  manifest on the face of the order undermines its soundness or results in miscarriage of justice. A review of a  judgment is  a serious step and resort to it is proper only where  a glaring  omission or  patent mistake  or  like grave error has crept in earlier by judicial fallibility. In the instant  case the  relief of  review is  not  justified. [173G-H]      Chandra Kanta  v. Sheikh Habib [1975] 3 SCR 933 at 933- 34, followed.      From the  affidavits filed  by the  Government  in  the Court on  May 9.  1980 it is obvious that the Government had decided on  abandoning the  1964  policy  and  was  actually pursuing steps to fashion a new policy. Therefore, no rights on the  old basis,  if any,  can enure to the benefit of the petitioner especially because he relied on his third rank in a selection  for one  vacancy made  in 1971  That  apart,  a selection of  1979 turned  out in  favour of the respondent.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

The petitioner  is postponed  but by  a few  months and  the respondent has been far senior as colonel and will retire in August,  1980.   The  conspectus   of  circumstances  hardly persuades the  Court that there is injustice in the order of May 7th or May 9th. [173D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Review  Petition No. 104 of 1980.      Review Petition  against the Judgment and order of this Hon’ble Court  dated  7-5-1980  and  9-5-1980  in  CMP.  No. 1219/80.      Kapil Sibal and R. S. Sodhi for the Petitioner. 169      R.K. Garg and P.C. Bhartari for Respondent No. 3.      The order of the Court was delivered by      KRISHNA IYER, J.-A simple petition to review an earlier judgment of  this bench  has,  because  of  the  intervening summer  vacation,   passed  through  vicissitudes,  gathered episodes and  been blown  up into  an exciting  chronicle of unsavoury events,  injecting more  passion than reason, more heat than  light, into  the forensic  proceedings.  We  kept completely clear  of the  unhappy imputations  and  confined counsel to  the merits  of the  review proceeding before us. ’Justice discards  party, friendship,  and  kindred  and  is therefore represented  as blind’. This objectivity generated clarity and  brevity, thanks,  of course,  to cooperation by counsel on both sides.      The facts are few although the fight is furious and the parties are army officers. It is a pity that careerism makes camaraderie a  casualty in a profession where self-sacrifice for a higher cause is the dedication. Without moralising, we will state  the grievance  of  the  petitioner  and  examine whether  our   earlier  order  deserves  reconsideration  or reversal.  Judges  have  a  vested  interest  not  in  their judgments but  in the  justice of  the cause  and where  the former is  in error  must unhesitatingly  suffer surgery  so that no  curial wrong  is done and right, to the best of our lights, is done.      Two colonels  in the army have one post of brigadier to which either  may aspire  and become  Director  of  Military Farms.  In   this  musical   chair  scenario   the  (review) petitioner apprehending  that  the  Central  Government  was considering a’  change of  policy departing  from  the  1964 policy, in  choosing the  officer  to  become  brigadier  in charge of  the military  farms, moved  the High  Court for a writ to issue to Government against any such new policy. The High Court,  before it  finally disposed  of the  case,  had directed the  Defence Department  to select the best colonel to be promoted as brigadier and Farm Director. The selection so made  was to  be without  prejudice to  the result of the writ petition but it is significant that the report made was that both  the contesting  colonels were  equal in merit (to run  cattle  farms?)  but  the  respondent  (in  the  review petition) being  senior as  colonel may  be chosen  for, the post Merit  being equal,  seniority  tilts  the  scales-fair enough. Eventually,  the High  Court  considered  the  legal import of  the 1964  policy and  allowed the  writ  petition which meant  that the  (review) petitioner  would become the brigadier. The  respondent colonel  rushed to this court for special leave  to  appeal  which  was  granted,  and,  after hearing both  sides and the learned Attorney General for the Central Government,  this court passed a final order. We see

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

no reason, whatever to depart from that judgment 170 and no  basic flaw  therein has  been pointed out either. It was plainly  laid down  that no  finality nor  infallibility attached to the ’1964 policy’ and the Central Government was free to  revise or  reverse that  policy ’provided  it  acts justly and  fairly’. A  month’s time to evolve a new policy, if felt necessary, was granted to Government and the learned Attorney General agreed to abide by this direction.      Three  factors  need  more  than  passing  notice.  The Defence Ministry-the  file had  been  shown  to  us  at  the hearing of  the appeal and there is material in the pleading also -  has been considering revision of the 1964 policy and the court  has upheld  its full  freedom to do so. Secondly, the post  of brigadier  fell vacant  in  1979  and,  on  the direction of  the High Court, an evaluation of the claims of both was made by the Selection Panel on an updated basis. In this process,  both were  adjudged equal and the senior (the respondent in  the  review  petition)  was  recommended  for appointment. Thus,  it  is  obvious  that  had  the  Defence Ministry been permitted to choose, the respondent would have enjoyed the  post. ’There  is nothing  outrageous in picking the senior  when both  are otherwise equal. There is a human side to  it also.  The senior was to retire in a, few months and the other hopefully would have his innings.      The third  circumstance which  should not be overlooked is that  this court  did give  the go-by to the High Court’s finding:           "We  make   it  further  clear  that  the  Central      Government  will   be  free   to  act  subject  to  the      directions we  have given above and untrammelled by the      reasoning or the direction given by the High Court." Indeed, we  had, in  the judgment,  emphatically upheld  the Central Government’s  plenary power  to formulate  or modify military policy.  Wars are  won or lost not through writs of courts but  by the  best strategy. But even amidst the clash of arms  the laws  shall not  be silent,  so  much  so,  the constitutional mandate not to act arbitrarily was binding on the Defence Ministry.      The selection on which the review petitioner stakes his claim is of 1971 vintage and the vacancy to be filled was of the year  1979. The  respondent,  therefore,  contested  the petitioner’s  1971   credentials  as   obsolete   and   even obscurantist. We need not re-open that issue except to state that in  the final  order, passed  after hearing both sides, the inviolability  of the  1964 policy  had been  nailed.  A closer reading of the 1964 policy statement reveals under it seniority for  an  earlier  promotee  is  conferred  in  the substantive rank  provided he  has been  earlier included in the approved  list. Such  a situation has not arisen here at all. Be  that as  it may,  the final  direction of the court appeal. 171 did permit  the Central  Government  to  evolve  its  policy within one  month. This not having been done, the respondent drew the  attention of  the court  to the non-compliance and for consequential  orders. At  the hearing  of that petition (the so-called  contempt petition)  the  respondent  through Shri R.  K. Garg  and the  Central  Government  through  the learned Attorney  General were  heard. Shri  Kapil  for  the petitioner (review)  intervened and  was heard.  But we must fairly state  that his  client had  not  been  given  formal notice and  perhaps he  had a  grievance of  not having been heard adequately.  We cannot  fault him  for filing a review petition but  hasten to  clarify that  we wholly desist from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

making any  observations on  the happenings  set out  in the respondent’s papers  put into  court. Nor did we permit Shri Garg to  refer to those matters since they were in our view. extraneous to  the merits of the review petition and related to another  proceeding pending before another bench. We must record that  Shri Kapil has with youthful vigour and clarity of advocacy  presented his  case fairly. The gravamen of his grievance is  merely that  he should  have been  heard if  a direction to his prejudice was to be made. We are mindful of the force  in this plea and cannot dismiss it merely because the sands  of time  are running  out against  the respondent whose approaching retirement will make his legal success, if any, a  phyrrhic victory  and,  worse  a  tragic  irony.  Of course.  that,  by  the  way,  is  the  life-style  of  most litigative triumphs.      Shri Garg  in his  fighting submissions, complained how his client  had been  baulked of  the fruits  of success  by dubious proceedings,  but, while  we are  unconcerned  about those anecdotes, we do consider that there is justice in his plea that  he has  been chosen  by the panel in 1979, that a bare selection  (not actual  promotion) of 1971 on which the petitioner relies,  is too  stale to  be relevant,  that the Central Government  itself had  filed an  affidavit in  this court stating  that they  had appointed  his client and that neither law nor justice supported any interference with this court’s direction  of 7-S-1980  to promote the respondent as Brigadier.      Let us  notice the  substance of  this  Court’s  orders dated 7th  and 9th  May, 1980  which are  now sought  to  be reviewed. On  May 7, 1980, the following direction was given following on  the non-compliance  by the  Central Government with the earlier judgment:           "This Court  had given a direction that the policy      of the  Defence Ministry  may be  finalised within  one      month from  the date  of the  order.  That  period  has      expired on  26th April  1980  Nevertheless,  no  policy      decision has yet been taken nor even has an application      been made  for extension  of time from this ? Court. We      consider that this conduct is far from satisfactory. 172      However, there  are two  courses open, out of which one      must be  adopted in  the course  of couple of days. The      Respondent  may   appoint  the   petitioner,  Director,      Military  Farm  (Brigadier)  until  he  retires,  which      event, we  are told,  happens within about four months.      Alternatively,  the  Union  of  India  in  the  Defence      Ministry will  take its policy decision within two days      and report  ’, to  this Court  about it so that further      directions may  be issued on 9-5-1980 regarding further      implementation of the policy consistent with the rights      of the petitioner. Post on 9-5-1980."      This order  of 7th  May, in  sequence and  consequence, flows out  of the judgment of March 216, 1980 made after all parties were  fully heard. Two notable circumstances in that order,  as   earlier  highlighted,   are   these.   Firstly, Government had freedom to formulate a new policy, but it had to be  done within  one month  as accepted  by the  Attorney General.  Secondly,  Government  was  freed  from  the  High Court’s insistence  on the  1964 statement.  If this bondage was not  broken, this  court could  not  have  directed  the Defence Ministry  to make  any new  policy it thought fit. A third fact,  undisputed, also  emerged from  the case, viz., that in  1979 on the High Court’s direction fresh evaluation of promotional  merit gave  the respondent  (review) an edge over the  petitioner on  the score of seniority-not, surely,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

an extraneous  factor. Necessarily, therefore, this Court in its May  7th order  gave  effect  to  the  earlier  judgment virtually with  the consent  of the Central Government. This is  made  more  manifest  in  para  5  of  the  Government’s affidavit put  in on May 9, 1980. Paragraphs 4 and 5 of that affidavit merit excerption:           "I state  that the Government have taken steps for      and  are   in  the   process  of  finalising  a  policy      applicable to  the officer cadre in the Army in all the      Arms (Infantry, Artillery, Armoured Corps) and Services      (Army  Supply   Corps,  Army   ordnance  Service   etc.      including the  Department of Military farms). The chief      of the  Army Staff  has already  appointed a High Power      study Team  comprising  of  Senior  Army  officers  and      headed by  an Army  Commander to  study all  aspects of      selection and other career management procedures now in      vogue in  the Army including promotion procedures. ’The      Study Team  has already  made considerable  progress in      their deliberations. After the Study . Team submits its      Report, the  matter will  have to  be considered by the      Army  Commanders   and  later   examined  by  the  Army      Headquarters and  the Government.  The above process is      likely  to   take  some  more  time.  It  will  not  be      appropriate to  evolve a  separate policy  for a  small      Directorate like  the  Directorate  of  Military  Farms      alone. The entire officer Cadre of the Army in 173      the Army  like Infantry,  Artillery, Armoured Corps and      Services  A  like  Army  Supply  Corps,  Army  ordnance      Service etc.  will have  to be  covered by  one uniform      policy as is existing at present.           In the  circumstances and  in compliance with this      Hon’ble Court’s  directions/orders dated  26-3-1980 and      7-5-1980, the  government are  willing to abide by this      Hon’ble   Court’s   directions   given   on   7-5-1980.      Government, however,  prays that this Hon’ble Court may      be  pleased   to  direct  that  the  promotion  of  the      petitioner to  the rank  of Brigadier  will be  without      prejudice to the policy which may ultimately be decided      by the  Government and subject further to the condition      that if  under the  policy which  may be  evolved,  the      petitioner is not eligible for promotion to the rank of      Brigadier, he  would have  no right  to continue in the      said rank."      It is  obvious from  this affidavit that Government had decided on  abandoning the  1964  policy  and  was  actively pursuing steps  to fashion a new policy. So no rights on the old basis,  if any,  (though we  see none)  can enure to the benefit of  the petitioner  especially because  he relies on his 3rd  rank in  a selection  for one vacancy made in 1971. That apart,  a selection of 1979 turned out in favour of the respondent. And,  to come to think of it all, the petitioner is postponed but by a few months and the respondent has been far senior  as colonel  and will retire in August, 1980. The conspectus of  circumstances hardly  persuades us that there is injustice in the order of May 7th or May 9th.      We have  sedulously followed  the lucid  submissions of Shri Kapil for review of the earlier direction and are clear in our  conscience that neither law nor justice has suffered on account of the impugned orders.      A review  is not  a routine procedure. Here we resolved to hear  Shri Kapil at length to remove any feeling that the party has  been hurt  without being  heard.  But  we  cannot review our  earlier order  unless  satisfied  that  material error, manifest  on the  face of  the order,  undermines its

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

soundness or  results in  miscarriage  of  justice.  In  Sow Chandra Kanta and Anr. v. Sheik Habib this Court observe.           "A review  of a  judgment is  a serious  step  and      reluctant resort  to it  is proper only where a glaring      omission or  patent mistake  or like  grave  error  has      crept in  earlier by judicial fallibility.. The present      stage is  not a  virgin ground but review of Dn earlier      order which has the normal feature of finality." H 174      By this  test and even after re-reading the 1964 policy statement for prima facie satisfying ourselves about vesting of valuable  rights we  are not satisfied that the relief of review is justified. ’The basics of this case are the choice of a  brigadier is  out of  two colonels, the petitioner and the respondent. They are of equal merit as assessed in 1979. The latter  is  far  ahead  in  seniority  and  the  Central Government has  agreed to appoint him as brigadier. He has a period of  a month  or so  to go  for  retirement  when  the vacancy will  be filled  in. probably by the petitioner. The claim of  the petitioner is based largely on the 1964 policy statement which  the Central  Government has decided to give up. Moreover,  the claim  itself is  based upon  an  ancient selection made a decade ago when the vacant was only one and the petitioner  was 3rd  in rank. Moreover, whether the 1964 policy statement  confers a right merely by inclusion in the approved list  where  no  appointment  has  taken  place  as brigadier and  the question  of  substantive  rank  has  not arisen. is. to say the least. moot.      These are  sufficient for  us to  repel the  relief  of review. Of  course, the petitioner has effectively postponed the appointment  of the  respondent by getting a stay order. We make  no comments  whatever on  the chain  of events  but permit ourselves  the observation that the implementation of the final order which has been passed by this Court has been further delayed  by the  stay thereof  by a  learned  single judge of  this Court during the vacation; and so, we mention this only  to justify  our imperative direction that no more delay shall  take place and the Central Government shall put the respondent in his position as Brigadier in charge of the Military Farms  by  tomorrow.  Law  is  highly  allergic  to procrastination.  We   refuse  the   review,  but   in   the circumstances without  costs and  hope that  the chapter  of unfortunate events  referred to  in the  affidavits will  be treated as  closed in  a spirit  of mutual  goodwill. It has been brought  to our notice that there is a direction by the vacation judge that the extra salary that the respondent may be entitled  to in  the event of success should be deposited into court by the Central Government and that has been done. The respondent will draw that sum from court. But there will be no  direction that the petitioner should refund the extra salary if any, drawn by him because, after all, he must have functioned -  pending orders  of this  Court, as Director of Military Farms  and so  we do  not think it just to make any order for refund against the petitioner. P.B.R.                            Review petition dismissed. 175