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PETITIONER: UNION OF INDIA AND OTHERS

       Vs.

RESPONDENT: S.L. DUTTA AND OTHERS

DATE OF JUDGMENT16/11/1990

BENCH: KANIA, M.H. BENCH: KANIA, M.H. SHARMA, L.M. (J)

CITATION:  1991 AIR  363            1990 SCR  Supl. (3) 173  1991 SCC  (1) 505        JT 1990 (4)   741  1990 SCALE  (2)1051

ACT:     Air  Force Services--Promotions of Air Vice Marshals  as Air -Marshals--Change in Policy--Whether valid.

HEADNOTE:     Respondent  No.  1 was commissioned in  the  Indian  Air Force on July 17, 1954 and in course of time was promoted to the post of Air Vice-Marshal. He belonged to the  Navigation Stream  of  the  Indian Air Force and was  the  senior  most officer in his cadre. When he was due for promotion as  Air- Marshal,  the  Ministry of Defence, Govt. of India,  by  its memo  dated  October 9, 1987, changed the  policy  governing promotions,  with the result the prospects of an officer  in the  Navigation Stream of the Air Force earning a  promotion to the post of an AirMarshal were substantially reduced. Due to  the change in the promotional policy, respondent  No.  1 was unable to get promotion as AirMarshal and he retired  as an  Air  Vice-Marshal  on 31.10.1988.  However,  before  his retirement  he  filed a writ petition in  the  Gauhati  High Court  challenging the validity of new promotion policy.  On 16.9.1988,  an  interim  order was made by  the  High  Court directing the Union of India to constitute a Selection Board and  consider the case of respondent No. 1 for promotion  on merits  without reference to the new policy. The  appellants challenged the said interim order before this Court by means of  a  special  leave petition. The  Court  granted  special leave, allowed the appeal of the appellants on 4.10.1988 and set aside the interim order passed by the High Court holding that the interim order was erroneous. On 16.2.1990, the High Court  allowed the writ petition filed by respondent  No.  1 holding,  inter alia, that the new promotion policy was  not flamed after an indepth study and directed that the case  of respondent No. 1 be considered on the basis of the  previous policy. Hence this appeal by the Union of India and others.     The main thrust of the argument advanced by the Union is that  the Court should be reluctant to interfere  where  the validity  of a policy is concerned, as it was primarily  for the Government to frame a policy and to change it unless  it could  be  shown  that the change was mala fide  or  for  an ulterior  purpose  or that the same had  been  made  without application  of  mind. On the other hand  respondent  No.  I

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inter alia 174 contended that the change of policy affected the  conditions of his service; and that it was arbitrary. Allowing the appeal, this Court,     HELD:  What  was affected by the change of  policy  were merely the chances of promotion of the Air Vice-Marshals  in the  Navigation Stream. As far as the posts of  Air-Marshals open  to the Air Vice Marshals in the said stream were  con- cerned,  their  right or eligibility to  be  considered  for promotion  still remained and hence, there was no change  in their conditions of service. [181E]     The  High  Court  was in error in  making  the  impugned order.  As has been laid down more than once by this  Court, the  Court  should rarely interfere where  the  question  of validity  of a particular policy is in question and all  the more so where considerable material in the fixing of  policy is  of  a highly technical or scientific nature.  These  are matters  regarding  which judges and lawyers can  hardly  be expected to have much knowledge by reason of their  training and experience. [182A-C]     In  the present case, there is no question of  arbitrary departure  from the policy duly adopted because  before  the decision  not  to promote respondent No. 1  was  taken,  the policy had already been changed. [182D]     As the proposed change of policy was considered at  some length  by as many as 12 Air-Marshals and the Chief  of  Air Staff  of Indian Air Force, it is not possible to  say  that the  question of change of policy was not  duly  considered. Mere non-availability of the minutes setting out the discus- sion,  is  of  no relevance. In fact, it  would  perhaps  be detrimental to the interest of the country if these  matters were  not  kept confidential. On the basis of  this  circum- stances  alone,  the court cannot hold that  the  change  of policy was arbitrary. [182E-F]     Vincent  Panikurlangara  v.  Union of  India  and  Ors., [1987]  2  SCC  165 at 173 and 175; Liberty  Oil  Mills  and Others  v.  Union of India and Others, [1984] 3 SCC  465  at 478;  M/s. Shri Sitaram Sugar Co. Ltd. and Anr. v. Union  of India  and  Ors.,  [1990] 1 Judgment Today SC  462  at  484; Railroad  Commission of Texas v. Rowan and Nichols Oil  Co., 311  US 570-577, 85 Led. 358, 362; State of Maharashtra  and Anr.  v. Chandrakant Anant Kulkarni and Ors., [1981]  4  SCC 130;  K.  Jagadeesan v. Union of India and  Ors.,  [1990]  1 Judgment  Today  247;  A.S. Sangwan v. Union  of  India  and Others, [1980] Suppl. SCC 559 at 561, referred 175

JUDGMENT: