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CASE NO.: Appeal (civil)  4619 of 2006

PETITIONER: Major General R.S. Balyan

RESPONDENT: The Secretary, Ministry of Defence,Government of India, & Ors

DATE OF JUDGMENT: 31/10/2006

BENCH: Arijit Pasayat & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T [Arising out of S. L. P. (C) No.10045 of 2006]

Lokeshwar Singh Panta, J.

       Leave granted.         The challenge in this appeal by special leave is to the  final judgment and order dated 29.05.2006 of the High Court  of Delhi, whereby the Writ Petition No.5214/2005 filed by Maj.  Gen. R. S. Balyan-appellant herein came to be dismissed.  By  the order coming under challenge, the High Court held that  seniority of the appellant and Maj. Gen. Rakesh Puri  (Respondent No.5) and Maj. Gen. P.K. Mago (Respondent No.6)  ought to be determined according to Para 2 of the Government  of India O.M. No.2(4)/92/D(Inspection) dated 04.05.1993, as  amended vide O. M. No.21(4)/92/D(Inspection) dated  22.12.1993 and not by Para 68 of the Regulations for the  Army, 1962 (revised edition 1987).         Briefly stated, the facts are as follows.          The appellant was commissioned in the Army on  09.06.1968 whereas the Respondent No.5 was commissioned  in the Corps of Engineering on 25.12.1966 as Second  Lieutenants.  In the common seniority list of Second  Lieutenants, respondent No.5 was senior to the appellant.  The  appellant was promoted to the rank of Substantive Major on  09.06.1981 and the respondent No.5 was promoted to the  rank of Substantive Major on 25.12.1979 in the Directorate  General of Quality Assurance (DGQA).  The DGQA has  following four disciplines: (1)     Armament (2)     Vehicle & Engineering  (3)     Electronics (4)     Stores  

       The appellant joined the Armament discipline while the  respondent joined the Vehicle & Engineering discipline.   The  name of the appellant was at Sl. No. 49 in the Gradation list of  1988 whereas the name of respondent No.5 was at Sl. No.45  being senior to the appellant.  The appellant superseded three  officers who were senior to him in Armament discipline, whose  names were held at Sl. Nos. 28, 38 and 46.  According to the  appellant, an officer who gets ’A’ Grade (Outstanding) would  get accelerated and out-of-turn promotion over his seniors  who got only ’B’ Grade.  If only one vacancy is available, the  officer who gets ’A’ Grade alone would be promoted ignoring  his seniors who get only ’B’ Grade.  As the appellant was given  ’A’ Grade, he got accelerated promotion to the available

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vacancy in the Armament discipline as Brigadier on  07.11.2000 but the respondent No.5, who got only ’B’ Grade,  could not be promoted to the rank of Brigadier for want of  vacancy in his discipline and he was promoted as Brigadier  only on 11.02.2000.  The appellant was again considered for  promotion as Major General and he was given the substantive  rank of Major General w.e.f. 25.05.2002 in accordance with  para 68 of the Regulations for the Army, 1962.  The  respondent No. 5 was granted substantive rank of Brigadier  w.e.f. 11.2.2002 and substantive rank of Major General w.e.f  1.10.2004.           After 1998, seniority in the DGQA had never been  published, accordingly the other officers, who were adversely  affected by the wrong conferment of seniority to the appellant,  were not aware as to how the same had been done.  It was  only on 18.08.2004 when the seniority list was published that  the officers adversely affected became aware about the wrong  conferment of seniority to the appellant.  Major General S. C.  Gulati made a representation objecting to the placement of the  appellant in the seniority list contrary to the instructions  governing the DGQA.  At that stage, a complete review of  seniority within the DGQA was carried out and in such review,  it was decided that the appellant should be given substantive  rank of Brigadier w.e.f. 05.04.2002 and that on that basis he  was considered for further promotion to the rank of Major  General along with eight other officers viz., Brig. R. Khosla,  Brig. M. Kashyap, Brig. R. Puri (respondent No. 5), Brig. T. S.  Rao, Brig. P. K. Mago (respondent No. 6), Brig. B. V. Murthy,  Brig. K. P. Sinha and Brig. J. D. Sapatnekar.  In the said  consideration, the appellant is given ’B’ grading, i.e. "fit for  promotion", which is the same grade as was given to  respondent Nos. 5 and 6 respectively.  On the basis of the  assessment of the grading of the appellant and respondent  Nos. 5 and 6, the Board conferred seniority to respondent No.5  w.e.f. 01.10.2004, respondent No.6 w.e.f. 31.01.2005 and the  appellant w.e.f. 01.03.2005 respectively as Major Generals.   The respondent-authorities issued a revised seniority list  dated 16.03.2005 whereby the appellant was demoted as a  Brigadier and was made junior to the respondent No. 5.           The appellant filed the above-said Writ Petition in the  High Court of Delhi which came to be decided on 29.05.2006  holding that the appellant was junior to respondent No. 5 in  the substantive rank of Major, therefore, his claim for seniority  over respondent No.5 founded merely on the Gazette  Notification cannot be sustained in view of the interpretation  put by the Court on the respective effects of Para 68 and O. M.  dated 04.05.1993 as amended by O. M. dated 22.12.1993.   The Division Bench further said, "Since both the petitioner  and the respondent No.5 were slated for retirement by the end  of June 2006, the plea for promotion to the rank of Lt. General  in accordance with this judgment should be considered  expeditiously and not later than 20th June, 2006.  Even if  there is any procedural delay in considering the case of the  petitioner and respondents No. 5 and 6 in accordance with the  law laid down by this judgment, then notwithstanding the fact  that any of the protagonists retires in the meanwhile, the  consideration for the post of Lt. General shall be done and if  any candidate is found fit for promotion, such promotion shall  be granted with effect from 1st June, 2006."   Consequently,  the Writ Petition was dismissed and stood disposed of  accordingly.          Feeling aggrieved and dissatisfied by the judgment and  order of the High Court, the appellant has filed this appeal.         We have heard learned counsel for the parties and with  their assistance examined the entire material on record.

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       Mr. V. Sivasubramanian, learned counsel appearing on  behalf of the appellant, contended the following three-fold  submissions. (1)     The appellant had superseded respondent Nos. 5 and  6 due to the appellant having been graded ’A’ twice by  the two QASBs in the years 2000 and 2002, even  though at the time of their permanent secondment in  the DGQA, the appellant as well as the respondent  Nos. 5 and 6 were inducted with their original  seniority in the Army;   (2)     When the appellant was promoted as Major General  on 30.01.2002 he superseded other Brigadiers, who  were senior to respondent No. 5, who was still only a  Colonel; and  (3)     The High Court has erred in ignoring the applicability  and consideration of the Army Headquarters’ letter  dated 09.03.1965 where a limited protection is given  to an officer who is senior in the lower rank, but who  could not be promoted because of want of vacancy in  his discipline while his junior was given promotion  who was fortunate to have a vacancy in his discipline  in the higher rank.  The appellant was given  promotion to the rank of Major in his own discipline  over and above the respondent No.5, who was in other  discipline on the basis of his grading ’A’, the  appellant’s promotion as substantive Brigadier as  notified by the Gazette Notification dated 18.05.2001  and subsequent substantive Major General notified by  the Gazette Notification dated 03.01.2004, could not  be cancelled by the respondent-authorities without  consulting the Appointments Committee of the  Cabinet and issuing notice to the appellant as per  Para 68 of the Regulations of the Army.  

        Per contra, the learned counsel appearing for the  respondents contended that the appellant erroneously was  given seniority over 16 other officers holding the rank of   Brigadiers belonging to other disciplines including respondent  No.5, who was at Sl. No. 45 whereas the appellant was at Sl.  No.49 in the Gradation List of 1998.  They stated that the  appellant could not claim accelerated promotion to place him  above respondent No.5, who admittedly was senior as Major  and was never considered for promotion along with the  appellant in terms of policy contained in O. M. dated  04.05.1993 (Annexure P-4) and Gradation List of 1998 as well.          The admitted facts are that the appellant was  commissioned in the Armament discipline on 09.06.1968  whereas the respondent No.5 was commissioned in the  Engineering discipline on 25.12.1966.   The consideration for  promotion up to the rank of Brigadier as a rule was held  within its own discipline of the appellant (Armament) with  officers of the same discipline, the appellant superceded three  officers whose names were held at serial Nos. 28, 38 and 46.  The appellant was placed above serial No. 28 ( Col. R. E.  Chawan) thereby erroneously gaining seniority over 16 officers  of other disciplines, including Respondent No. 5 who was at  serial No. 45 of the Gradation List dated 20.07.1998  (Annexure R \026 6) in respect of service officers permanently  seconded to DGQA organization as on 30.06.1998.  The  respondent No. 5 and other 15 senior officers were never  considered with the appellant at the time of granting  substantive rank of Brigadier to him and later on as Major  General earlier than respondent No. 5 as his seniority was  reckoned ahead of serial No. 28 of 1998 seniority list.           The stand of respondent \026 Union of India in its counter

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affidavit is that, the seniority conferred upon the appellant to  the substantive rank of Brigadier was erroneous and it was  only on 18.08.2004 when the seniority list was published that  officers adversely affected became aware of the wrong  conferment of the seniority to the appellant.  The respondent  authorities after 1998 had never published seniority list in the  DGQA.  Maj. Gen. S. C. Gulati made a representation objecting  to the placement of the appellant in the seniority list contrary  to the instructions governing the DGQA organisation.  A  complete review of seniority within the DGQA was carried out  and in such review it was decided that the appellant should be  given substantive rank of Brigadier w.e.f. 05.04.2002 and that  on that basis he was considered for further promotion to the  rank of Major General along with 8 other officers, namely,  Brig. R. Khosla, Brig. M. Kashyap, Brig. R. Puri (respondent  No. 5), Brig. T. S. Rao, Brig. P. K. Mago(respondent No. 6),  Brig. B. V. Murthy, Brig. K. P. Sinha and Brig. J. D.  Sapatnekar.  On reconsideration at the stage of complete  review of seniority list, the appellant is given ’B’ grading, i.e.,  "fit for promotion", which is the same grade given to  respondent Nos. 5 & 6.  On the basis of the fresh assessment,  the Board conferred seniority to respondent No. 5 w.e.f.  01.10.2004, respondent No. 6 w.e.f. 31.01.2005 and the  appellant w.e.f. 01.03.2005 as Major General.  As a result of  review of seniority list, we find from the record that one higher  rank which  had been conferred upon the appellant earlier and  which had remained unnoticed because of non-publication of  seniority list was corrected by the Union of India at the first  available opportunity when the seniority list was published on  18.08.2004 in the DGQA cadre and when the irregularity in  the seniority list was noticed by the affected officers, who  made representations against the irregularity, committed in  the seniority list giving promotion to the appellant over and  above them.  In DGQA organization, officers due for  promotion, who may not be from the same batch, are  considered within their disciplines only and promoted as per  their inter se seniority in the substantive rank of Major as has  been laid down in O. M. No.21(4)/92/D (inspection),  Government of India, Ministry of Defence, dated 04.05.1993  (Annexure P-4) on the subject "GUIDELINES FOR  PERMANENT SECONDMENT OF SERVICE OFFICERS OF THE  RANK OF MAJOR AND LT. COL. IN THE DGQA  ORGANIZATION".  As per the said O.M., it was decided by the  Government of India, Ministry of Defence, D.D.P.S., that the  criteria as contained in the said O.M. should be adopted for  permanent secondment of the officers of the rank of Lt.  Colonel (including Lt. Col./TS) and Majors.  Clause 2 of the  Memorandum emphasizes that final orders for Permanent  Secondment shall be issued only after the selected officers’  willingness has been obtained in writing.  The officers once  permanently seconded will continue in the organization till  their retirement and shall be included in the Cadre Seniority  List of Permanently Seconded Service Officers as per their  dates of seniority as substantive Major, as modified based on  the penalties/loss of seniority in the parent Corps and shall  come up for consideration for promotion to higher ranks based  on availability of vacancies in respective disciplines.  In the  teeth of this specific criteria laid down in the above referred to  Memorandum, we are of the view that letter No. 30386/MS/(X)  Army Headquarters, dated 09.03.1965 (Annexure P-1) dealing  with the subject of system of grading officers (excluding MC,  Dental Corps and those permanently transferred to RD & P/I  organization) for promotion to the rank of Lt. Col. and above  relief upon by the appellant has no application in the DGQA  organization.    Para 2 of O.M. dated 04.05.1993 (Annexure P-

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4) is self-explanatory.  It is applicable through out the service  career of an officer from the time of his permanent  secondment to the DGQA organization till the retirement of the  officer.  Therefore, the contention of the learned counsel for  the appellant that the High Court has gravely erred in not  applying the policy instructions dated 09.03.1965 (Annexure  P-1) does not merit acceptance, as Annexure P-1 deals with  system of giving grading to officers belonging to regular Army  only and those instructions as such have no application to the  Army officers permanently seconded to the DGQA  organization.           Para 68 of the Regulations for the Army deals with the  effective date of substantive promotion.  It does not deal with  the grant of seniority.  The appellant was promoted to the  acting rank of Brigadier on 07.11.2000 in the Armament  discipline because of the availability of the vacancy in the said  discipline, whereas the respondent No. 5 was promoted to  such rank in the Engineering discipline on 11.02.2002 on the  then availability of the vacancy in that discipline.  However,  the appellant being junior in the substantive rank of Colonel  as per seniority list as on 30.06.1998, continued to remain  junior to respondent No. 5 in the substantive rank and that is  why the substantive rank of Brigadier was rightly granted to  respondent No. 5 w.e.f. 01.10.2004 and to the appellant only  w.e.f. 01.03.2005, in the seniority list as on 01.03.2005  impugned before the High Court.  The appellant has not  placed on record any proof to substantiate his claim that he  was granted accelerated promotions to the ranks of Brigadier  and Major General.  Thus, it is clear that due to the  availability of the vacancy in the Armament discipline to which  the appellant belonged, he was promoted to the acting rank of  Brigadier on 07.11.2000, whereas the respondent No. 5, who  was in the Engineering discipline, was promoted to the acting  rank of Brigadier on 11.02.2002 due to the availability of the  vacancy in the Engineering discipline.  The prior promotion of  the appellant to the acting rank of Brigadier in contrast to the  respondent No. 5 in his respective discipline does not make  the appellant senior to the respondent No. 5 since the  substantive rank of Brigadier was granted to the appellant  w.e.f. 01.03.2005 and to the respondent No. 5 w.e.f.  01.10.2004 in terms of Para 2 of the Govt. of India O.M. No.  21(4)/92/D(inspection) dated 04.05.1993 as amended vide  O.M. No. 21(4)/92/D(inspection) dated 22.12.1993.           The High Court has rightly observed that Para 68 of the  Army Regulations does not qualify as a general rule for  determining the seniority.  On a plain reading of Para 68 of the  Army Regulations extracted by the High Court in Para 12 of  the impugned judgment, it simply says that if an officer is fit  for promotion to the rank of Colonel and above on a particular  date but assumes office later, then for purposes of seniority it  will be the date when the officer was found fit and notified in  the Gazette, which shall be the relevant date for counting  seniority notwithstanding the assumption of office on  a date  later than the date of assumption of office.  The High Court, in  our view, has rightly concluded that the seniority of the  appellant and respondent No. 5 is to be determined in terms of  Para 2 of the Govt. of India O.M. No. 21(4)/92/D(inspection)  dated 04.05.1993 as amended vide O.M. No.  21(4)/92/D(inspection) dated 22.12.1993 and not on the basis  of the interpretation of the impact of Para 68 of the Army  Regulations as relied upon by the appellant.  The Union of  India is competent to correct the mistake of ranking the  appellant senior to respondent No.5 in the substantive rank of  Brigadier when such mistake or irregularity has come to its  knowledge through representation having been made by the

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affected Army Officers in 2004.           We, therefore, find no infirmity or perversity in the order  of the High Court impugned in this appeal.  Therefore, the  contentions noticed above raised by the learned counsel for  the appellant cannot be sustained.           For the reasons aforementioned, we find no merit in this  appeal, which is dismissed accordingly. However, parties are  left to bear their own costs.