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PETITIONER: UNION OF INDIA AND ANR.

       Vs.

RESPONDENT: MAJ. GEN. DAYANAND KHURANA

DATE OF JUDGMENT06/08/1991

BENCH: YOGESHWAR DAYAL (J) BENCH: YOGESHWAR DAYAL (J) SHETTY, K.J. (J) RAMASWAMI, V. (J) II

CITATION:  1991 AIR 1955            1991 SCR  (3) 350  1991 SCC  Supl.  (2) 478 JT 1991 (3)   381  1991 SCALE  (2)242

ACT:     Service Law--Army Officers--Promotion--Major General  to Lt.  General--Adoption of two stream concept  viz.  ’Command and  Staff  Siream’  and ’Staff  Only’  Stream--Fixation  of inter-se   seniority   after   adoption   of   two    stream concept--Officers approved in ’Command and Staff’ Stream  of the  same batch ’---Whether senior to officers  approved  in Staff Only Stream.

HEADNOTE:     On  31st May, 1986 the Government of India approved,  in principle, the ’Two Stream’ concept of career management  of Army Officers which envisaged that officers on promotion  to Major  General and Lt. General will be bifurcated  into  the ’Command and Staff’ and the ’Staff Only’ Stream. By an order dated 9th September, 1986 issued by Military Secretary, Army Headquarters, the modalities of the concept, were worked out and  it  was  inter-alia provided that for  the  purpose  of seniority,  officers  of  the ’Staff Only’  Stream  will  be junior to officers of the ’Command and Staff" Stream.     While adopting the methodology for implementation of the ’Two Stream Concept’, in its note dated 22nd September, 1986 the Military Secretary stated that two options are available for  fixing  the  sequence of promotion  under  the  ’Stream Concept’.  Under option ’A’ the existing sequence of  promo- tion  is maintained and in that officers are to be  promoted as per their inter-se seniority, irrespective of the stream. In the case of Option ’B’, whereas the existing sequence  of promotion is maintained, but promotion is to be effected  in accordance  with  the stream in which an  officer  is  being promoted.  After giving advantages and disadvantages of  the two  options,  the  said note recommended  that  option  ’B’ should  be  adopted. The Military Secretary’s note  was  ap- proved  by  Vice Chief of Army Staff and the Chief  of  Army Staff.     By  a  communication dated 1st June, 1987  the  Military Secretary  clarified its earlier note dated 22nd  September, 1986  explaining  that officers of the General  Cadre  of  a particular  batch  seniority approved in  the  ’Command  and staff’ Stream will be en-block senior to those

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351 officers  of  the same batch approved on  the  ’Staff  Only’ Stream. However, an officer of an earlier batch approved  on the  ’Staff  Only’ Stream will be senior to  an  officer  of subsequent batch approved on the ’Command and Staff Stream.     Under  the  promotion policy of Army  every  officer  is given  three  chances for consideration for  promotion.  The first opportunity is called "fresh cases". The second oppor- tunity is called "first review cases" and the third opportu- nity is called "final review cases". An officer not approved for  promotion loses one year on seniority and  slides  into the batch of the next year.     The respondent, commissioned in the army in 1954,  while acting  as Brigadier, was selected as Major General in  1956 batch.  Accordingly, his seniority was fixed alongwith  1956 batch. While working as Major General he was considered  for promotion to the rank of Lt. General in 1989 but was  disap- proved.  He thus lost seniority of 1956 batch. He  was  then considered  as  a first review case in 1990  alongwith  1957 batch-comprising  of final review case of 1955 batch,  first review  case of 1956 batch and fresh case of 1957  batch-and was approved for selection for ’Staff Only’ Stream. Since he was  approved  only for ’Staff Only’ Stream, in  the  select panel dated 26th October, 1990 he was placed below all other Major Generals who were approved for selection in the Stream of ’Command and Staff.     Aggrieved  by his placement below the officers who  were approved  for  ’Command and Staff’ Stream, he filed  a  writ petition in the High Court which directed the Union of India to treat the respondent senior to all the other Major Gener- als  who were promoted to the acting rank of Lt. General  in the ’Command and Staff’ stream and to expeditiously  promote him  ahead  of the 1957 batch. Against the decision  of  the Division Bench of the High Court the Union of India filed an appeal in this Court.      Setting aside the order of the High Court, this Court,     HELD:  1. The Division Bench of the High  Court  totally misunderstood the note of the Military Secretary dated  22nd September,  1986  as well as the note of the Vice  Chief  of Army Staff. In the note of the Military Secretary dated 22nd September, 1986, Option ’A’ which was prevalent practice was substituted  by option ’B’ which was recommended for  future and  which was accepted both by Vice Chief of Army Staff  as well as Chief of Army Staff. [369H-370E] 352     2.  It  is clear from option ’B’ which was  adopted  for working out the ’Two Stream Concept’ that the seniority will first  be given to the ’Command and Staff’  stream  selected from  any of the earlier batches and after the ’Command  and Staff’  stream  has been accorded the seniority,  the  three streams of ’Staff Only’ will be given seniority and that the final  review,  the first review or fresh stream  of  ’Staff Only’  rank below the similar three streams  of’Command  and Staff’. [362B-C]     3. It is also clear from the Scheme that the Officer who Were approved for ’Command and Staff’ Stream can be appoint- ed  both for ’Command’ as well as ’Staff’ vacancies  whereas the  officers  who were approved only for stream  of  ’Staff Only’  can  only be appointed to the vacancies  relating  to ’Staff’  and cannot be appointed relating to  vacancies  for ’Command’. The expression ’same batch’ referred to in  para- graph  9 of the Military Secretary’s letter dated 1st  June, 1987  is for the officers who were considered for  selection at one time and not the individual batch of the Major Gener- al. [370B]

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   4. Option ’B’ has not been reviewed till date. There can be no doubt that if option ’A’ was available for preparation of  select  list the respondent would have  been  senior  to other  persons who were recommended for ’Command and  Staff’ Stream.  But  option  ’A’ was given up and  option  ’B’  was recommended for approval. Since option ’B’ has been  adopted and  accepted the seniority of the respondent placed in  the panel dated 26th October, 1990 is unexceptionable. [370F-G]     5.  The respondent cannot take advantage for being  pro- moted  earlier than the officers selected for  the  ’Command and Staff’ Stream. [374B1

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2574  of 199 1.     From the Judgment and Order dated 30.4.1991 of the Delhi High Court in C.W.P. No. 812 of 1991.     Altar Ahmed, Additional Solicitor General, V.C. Mahajan, A.K.  Srivastava, S.N. TerdaI and Vijay Kumar Verma for  the Appellant.     P.C.  Jain, Ashim Vachher and Ms. Bharti Anand  for  the Respondent.       The Judgment of the Court was delivered by 353     YOGESHWAR  DAYAL,  J. This appeal by  Special  Leave  is directed  against  the judgment of the High Court  of  Delhi dated 30th April, 199 1 on behalf of the Union of India  and the  Chief of the Army Staff against Major General  Dayanand Khurana.     By the impugned judgment the Division Bench of the  High Court  directed the issue of writ of mandamus  modifying  an order  dated  26th October, 1990 and thereby  directing  the appellants  herein to treat Major General D.N. Khurana,  who was approved for promotion to the acting rank of Lt. General for  ’Staff  Only’  Stream, senior to all  the  other  Major Generals who were promoted to the acting rank of Lt. General in  the ’Command and Staff’ Stream, and also issued  further writ  of mandamus directing the appellants to  expeditiously promote the respondent herein, ahead of the 1957 batch, to a Staff post which has occurred between 26th October, 1990 and 31st  May, 1991 keeping in view the existing policy  of  the Government and in the light of the observations made in  the judgment.     The  brief  facts which give rise to the filing  of  the writ petition in the High Court and the appeal before us may be noticed.     The respondent was commissioned in the army in the  year 1954,  therefore,  his original seniority reckons  from  the year  1954. As per the policy and procedure adopted in  this connection every officer is given three chances for  consid- eration  for  promotion. If an officer is not  approved  for promotion during the first consideration, he loses one  year of seniority and slides into the batch of the next year.  In the eventuality of his not being approved for promotion even in  the  second  consideration, he loses one  more  year  of seniority  and slides further into the next batch.  Thereaf- ter, the officer is considered for the last time for  promo- tion  in the third chance and if he is not approved even  in the third chance, he is not given any further  consideration and  is finally regarded as a superseded officer. In  pursu- ance  of  this policy, the respondent herein  while  he  was acting as a Brigadier was first considered for promotion  to the  rank  of  Major General in the year 1983  but  was  not

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approved,  and,  therefore,  he became part  of  1955  batch instead  of 1954 batch. Thereafter he was  superseded  again and  ultimately got selected as a Major General in the  1956 batch. As per the existing policy at that time his seniority in  the  rank of Major General was  re-fixed  alongwith  the officers  of  1956 batch as per the  following  sequence  of selection: 354                1956 Batch:                (a) Final review case of 1954 batch.                (b) First review case of 1955 batch.                (c) Fresh case of 1956 batch.     The  respondent while working as Major General was  con- sidered  for promotion to the rank of Lt. General  in  July, 1989 but was rejected by the Government. He thus once  again lost  seniority of 1956 batch. He was then considered  as  a first review case in July, 1990 alongwith 1957 batch and was approved  for selection for ’Staff Only’ Stream in the  fol- lowing sequence of consideration:           "(a) Final review case of 1955 batch.           (b) First review case of 1956 batch.          (c) Fresh case of 1957 batch. Since  the  respondent was approved only  for  ’Staff  Only’ Stream he was placed below all other Major Generals who were approved for selection in the Stream of ’Command and  Staff. The  respondent  was aggrieved by his  placement  below  the officers  who were approved for ’Command and Staff’  Stream, though he had been approved only for ’Staff Only’ Stream.     On  31st May, 1986 the Government of India approved,  in principle, the ’Two Stream’ concept of career management  of Army Officers of the ranks of Major General and Lt.  General subject to the following stipulations:               "(a) The modalities for implementation of ’Two               Stream’ concept will be worked out by the Army               Headquarters  and submitted to Government  for               information. This will include  identification               of  appointments  to  be  manned  by  officers               belonging to the ’Staff Only’ Stream.               (b) The criteria and the QRs formulated by the               Army  HQrs  and submitted to  Government  vide               Army  HQrs Note No. PC-01102/ MS 9B dated  7th               February,  1986 will be applied for  screening               officers for promotion to the two streams.  It               will be ensured that               355               the  QRs  prescribed  for  promotion  to   the               ’Command  and Staff stream are  stricter  than               those prescribed for the ’Staff Only’ stream.               (c)  A comprehensive review of the working  of               the  concept  will be done in  1987  and  such               amendments,  as may be necessary, will be  put               up to Government for approval.     This  approval  of the Government was  preceded  by  the approval of the Prime Minister on 26th May, 1986. The reason for  adoption of ’Two Stream Concept’ of  career  management for Army Officers is that the Army is highly command orient- ed  with  the system itself providing a  distinct  edge  for proven command performance. This orientation, especially  in higher ranks, has helped to maintain the fighting efficiency of the Army and has stood to the test of time, besides being in the over all interests of the Service and the Nation.  In order  to  be  able to develop  command  potential,  it  was thought necessary that officers are allowed to hold  command appointments for adequate periods.     Thereafter the modalities for above ’Two Stream Concept’

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were worked out by the Army Headquarters and an office order was  issued by Military Secretary’s Branch,  Army  Headquar- ters, dated 9th September, 1986. The relevant paragraphs are 1 to 3, 5 and 9 which read as under:               "1.  The upgradations in senior ranks  in  the               Cadre Reviews have been sanctioned only in the               Staff  and ERE appointments. This  has  caused               serious  imbalances  in  the  existing   ratio               between  the Command, Staff and  ERE  appoint-               ments. Whereas, earlier senior officers  could               be given a proper command tenure before  their               turn came up for the next promotion, it is not               now  feasible in all cases after the  upgrada-               tions are fully implemented.                         2.  Ours is a Command oriented  Army               and  successful performance in a command  must               continue  to  be mandatory  for  promotion  to               higher ranks. It is not desirable to  truncate               command  tenures, if we have to  maintain  our               fighting  efficiency. It is to this and,  that               it  has been decided to adopt the ’Two  Stream               Concept’ for officers of the rank of Brig. and               above. The details of the concept are given in               the succeeding paras.               356               Concept               3.  The  concept envisages  that  officers  on               promotion to Maj. General and Lt. General will               be bifurcated into the ’Command and Staff’ and               the ’Staff Only’ streams as per details  given               below:               (a)  ’Command  and  Staff  Stream.  Very  high               calibre officers based on their merit will  be               promoted  to this Stream. They will hold  com-               mand  appointments  in  the  Higher  rank  and               thereafter be given exposure to Staff and  ERE               appointments as necessary. They will be eligi-               ble for further promotion as per the  existing               criteria.                    (b) ’Staff Only’ Stream. Officers promot-               ed  to  this Stream will hold only  staff  ap-               pointments,  in the higher rank and will  pro-               ceed   on  superannuation  thereafter.   These               officers  will  not be  eligible  for  further               promotion.               4.    .......  ...........  .........               Applicability               5. The ’Two Stream’ concept generally will  be               applicable  to  the officers  of  the  General               Cadre.  However,  non-General  Cadre  officers               will  also be considered for the ’Staff  Only’               Stream in the rank of Lt. General.               6-8   ...... .............. ........               Inter se Seniority               9.  Officers  selected for  the  ’Command  and               Staff Stream, will be promoted first, be it on               a  Command or Staff  appointment.  Thereafter,               officer  of  the same batch who  are  selected               for the ’Staff Only’ Stream will be  promoted.               Therefore,  for  the  purpose  of   seniority,               officers  of the ’Staff Only’ Stream  will  be               Junior  to officers of the ’Command and  Staff               Stream.  After  placing the  officers  of  the               ’Staff Only’ Stream in suitable  appointments,               review  selectees  of the ’Command  and  Staff

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             Stream of the next batch will be promoted. Again in adopting the methodology for implementation of the 357 ’Two  Stream Concept’ the following note dated 22nd  Septem- ber, 1986 was put up by the Military Secretary to the  Chief of the Army Staff.                1.  This  note pertains to  the  sequence  of               promotion  in  respect  of  officers  who  are               approved  for promotion under the  Two  Stream               concept.                         2.  The existing sequence of  promo-               tion  is laid down vide our policy letter  No.               38360/MS 5 B dt. 29 May 84, placed opposite.                         3.  With  our  command  orientation,               viable  tenures  in  command  assignment   are               mandatory to increase the fighting  efficiency               of  the Army. It is, to this end that the  Two               Stream Concept has been adopted.                         4. With the introduction of the  two               stream  concept in the ranks of Maj.  Generals               and  Lt. Generals, the sequence  of  promotion               into the streams needs to be formalised. In so               doing,  the main reasons for the  introduction               of  the  two stream concept, have  to  be  the               guiding principle.                         5. The two stream concept was intro-               duced to promote younger high calibre officers               early,  so  that they get  viable  tenures  in               command.  It  is also well known that  by  and               large  an officer who is approved as  a  fresh               case is of a higher calibre as compared to the               ones  approved for promotion as review  cases.               Thus it would be logical to promote the former               category of officers approved in the  ’Command               and  Staff  stream, earlier  than  the  latter               category  of officers approved in  the  ’Staff               only’ stream.                         6.  Two  options are  available  for               fixing  the  sequence of promotion  under  the               ’Stream  Concept’. These are given  in  subse-               quent  paras  with the help of  the  following               illustrations--               (a) Batches considered at the Screening Board.                   (i) Final Review 1956                  (ii) First Review 1957               358                 (iii) Fresh Cases 1958.                   (b) Officers Approved for Promotion                   (i) Final Review 1956                  (aa) Command and Staff Stream    -- One                  (ab) Staff only Stream           -- One                (ii) First Review- 1957                   (aa) Command and Staff Stream  -- One                   (ab) Staff Only Stream         -- One                (iii) Fresh Cases- 1958                  (aa) Command and Staff         -- ten                                     Stream                (ab) Staff only stream         -- five 7.  Whatever sequence is followed, the IC  number  seniority within that stream of that batch needs to be maintained. The sequence  of promotion could follow the  undermentioned  op- tions: (a) Option A. To follow the existing sequence of promotion:  (i) Final review Command and Staff stream--1956 batch.  (ii) Final review Staff only stream--1956 batch.

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(iii) First review Command and Staff stream--1957 batch.  (iv) First review Staff only stream-- 1957 batch.  (v) Fresh Command and Staff stream--1958 batch. 359  (vi) Fresh Staff only stream--1958 batch. (b) Option B. The sequence of promotion to be:  (i) Final review Command and Staff stream--1956 batch.  (ii) First review Command and Staff stream--1957 batch.  (iii) Fresh Command and Staff stream--1958 batch. (iv) Final review Staff only stream--1956 batch. (v) First review Staff only stream--1957 batch. (vi) Fresh Staff only stream--1958 batch.                (The officers of 1959 batch, approved even in               the Command and Staff stream, will be promoted               after absorbing the Fresh ’Staff Only’  stream               of 1958 batch.)               8.  The  advantages of Option A  will  be  the               disadvantages of Option B. The advantages  and               disadvantages of Option A are discussed below:               (a) Advantages.                  (i) Those approved for promotion as  review               cases, will still get their promotion and also               have  a reasonably viable tenure. The  chances               of  any proved’ officer retiring without  get-               ting his promotion, are remote.                  (ii) The existence of dissatisfied officers               among those approved for promotion, is unlike-               ly.               (b) Disadvantages.                    (i) The basic principle behind the intro-               duction of the two stream concept gets defeat-               ed.                   (ii)  Tenure  of  Command.  Delay  in  the               promo-               360               tion  of fresh cases of the Command and  Staff               stream, will give them lesser tenure, possibly               affecting their chances of further  promotion,               thus having an overall detrimental effect.                 (iii) The principle of promoting really high               calibre  and the best officers early, is  vio-               lated.               9.  Analysis.  It would be  noticed  that  the               difference in the two options are minimal.  In               the case of Option A, the existing sequence of               promotion has been maintained in that officers               are  being  promoted  as  per  their  inter-se               seniority, irrespective of the stream. In  the               case  of  Option B, whereas the  existing  se-               quence of promotion is still being maintained,               but promotion is being affected in  accordance               with  the stream in which an officer is  being               promoted.                         10.  Since officers of the  ’Command               and  Staff  are of higher  calibre,  promoting               them  over the ’Staff Only’ stream is  logical               and  has  been accepted  in  principle.  Hence               adoption of Option B, is recommended.                         11.  For approval please.  Once  ap-               proved,  Ministry of Defence will be  informed               accordingly.                                    Sd/-                             (A.K. Chatterjee)                              Lt. Genl                             Sena Sachiv/

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                       Military Secretary                         22 Sep. 86                COAS                        through                                VCOAS     The above note of the Military Secretary was  considered by  the  Vice Chief of Army Staff and vide note  dated  24th September, 1986 in which he has observed as under:               "1.  As I see it, in the ultimate,  promotions               in ’Command               361               and Staff’ stream and ’Staff stream should  be               independent of each other based on  identified               slots  in  each stream.  The  differential  in               terms  of time between the two may be as  much               as two to three years, the exact period  vary-               ing from time to time. It is only then that we               would  be  able  to have  viable  tenures  for               ’Command  and Staff’ Stream officers, both  in               the  rank of Maj. Gen. and Lt. Gen. Thus,  our               aim should be to promote a ’Command and Staff’               stream  officer to Maj. Gen. at the age of  48               years  or so and to Lt. Gen. at the age of  52               to  53 years. On the other hand, it  would  be               acceptable  if a staff stream officer is  pro-               moted  to Maj. Gen. at the age of 51 years  or               so  and  to Lt. Gen. at the, age of 54  or  55               years.                    2. In the light of the above, the propos-               al putforward by the MS cannot be a long term:               proposal.  However, we have perhaps no  option               but  to adopt this for the short term, as  the               ages at which the officers are currently being               approved  for higher promotions  are  compara-               tively  higher, and there would be  imbalances               if  we increase the differential suddenly.  MS               proposal  must, therefore, be seen as a  valid               one      for the transitionary phase only.  To               that extent, I am in agreement with his recom-               mendation.                                            Sd/-                                       24 Sep. 86               COAS     The note of the Military Secretary alongwith the note of the Vice Chief of Army Staff was put up before the Chief  of Army  Staff, who, on 8th October, 1986 approved the note  of the  Vice Chief of Army Staff. The file was again put up  to JDMS  through  the  Military Secretary and  the  matter  was discussed.     Paragraph  7(a)  of the note of the  Military  Secretary dated 22nd September, 1986 mentions Option ’A’ which was the existing sequence of promotion prior to September, 1986  and recommended in subparagraph (b) of paragraph 7 the  sequence of  promotion which was to be followed. In paragraph  8  the Military  Secretary discussed the advantages  and  disadvan- tages  of  Option  ’A’ and Option ’B’. In  paragraph  10  he recommended adoption of Option ’B’. He also mentioned in his note  that if the note is approved, the Ministry of  Defence will be informed accordingly. 362     It  is clear that the Vice Chief of Army  Staff  adopted the  proposal as recommended in the note of Military  Secre- tary in paragraph 10 which was again agreed to by the  Chief of  Army  Staff. The matter was again sent to  the  Military Secretary who discussed it with the officers of Ministry  of

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Defence. It  is clear from Option ’B’, which was adopted for  working out the ’Two Stream Concept’, that the seniority will  first be given to the  Command and Staff’ Stream selected from any of  the  earlier batches and after the ’Command  and  Staff’ stream has been accorded the seniority, the three streams of ’Staff Only’, mention at Sl. Nos. (iv), (v) and (vi) will be given seniority. It is also clear that the final review, the first review or fresh stream of ’Staff Only’ rank below  the similar three streams of ’Command and Staff’ trained.     The  substance  of this note is again  conveyed  by  the Military Secretary in its communication dated 1st June, 1987 by way of further amplifying the methodology for implementa- tion of the ’Two Stream Concept’. The letter reads:                "COMMAND AND STAFF STREAM                1.  Further to this Headquarters  letter  No.               00476/MS 9B dated 09 Sep 86.                2.  Certain  doubts have  been  expressed  by               officers regarding  the ’Two Stream  Concept’.               This  letter  seeks to clarify  the  important               issues with particular reference to:                    (a) Necessity of the Stream Concept.                    (b) Ages of superannuation.                    (c) Inter-se seniority.               Necessity                3. The upgradations which were sanctioned  in               the  Second Cadre Review, were mainly  on  the               Staff  and ERE. This resulted in an  imbalance               in  the  Command and Staff ratio.  Tenures  in               senior  ranks in Command  consequently  became               truncated  which  in a Command  oriented  Army               like  ours, is not acceptable. Hence the  ’Two               Stream’ Concept was intro-               363                duced  with the due approval of  the  Govern-               ment.               Ages of Superannuation               4.  As per the current rules officers  of  the               ’Staff  Only’ Stream are to  superannuate  one               year  earlier ’than the officers of the  ’Com-               mand and Staff Stream. This rule is applicable               both  to the General Cadre and  officers  from               other Arms and Services. However, in the  case               of officers of other Arms and Services certain               other  clarifications given in the  succeeding               paras will also be applicable.               5.  Maj.  Gens. In the case of Maj  Gens  from               other Arms and services, the screening is done               primarily to permit the officers to be promot-               ed to un-specified appointments outside  their               Corps on first promotion and if required ahead               of  officers  not  so selected.  The  ages  of               superannuation  in their respect  will  remain               unchanged  and they shall superannuate  at  an               age  corresponding  to  the  officers  of  the               Command and Staff in the rank of Maj Gen.               6. Lt. Gens. Each other Arm/Service is  autho-               rised  two appointments specific to the  Corps               in  the rank of Lt. Gen.  Notwithstanding  the               proposal to downgrade the schools of  Instruc-               tion, a second appointment in the rank of  Lt.               Gen. will invariably be made available to them               to ensure that their promotional prospects  do               not  lag  behind. Officers holding  these  two               assured  appointments will superannuate at  58

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             years.   Other  officers  from  a   particular               Arm/Service  in the ’Staff Only  Stream’  over               and  above the two assured  appointments  will               superannuate  at 57 years as is applicable  to               officers of the General Cadre. However, if  an               appointment  within  the Corps  falls  vacant,               such  officer will be screened to  assess  his               fitness  for  holding  the  specific   vacancy               within  the  Corps. If selected  to  hold  the               authorised vacancy, he will superannuate at an               age  corresponding to the age of  Command  and               Staff  Stream, i.e. 58 years. If in  case,  no               vacancy  is  available, the officers  of  this               Stream continue to superannuate at 57 years as               mentioned earlier.               Inter-se seniority               7.  The  ’Two Stream Concept’  envisages  that               officers of the               364               General Cadre of a particular batch  seniority               approved  in  the ’Command and  Staff’  Stream               will be e.n-block senior to those officers  of               the  same batch approved on the  ’Staff  Only’               Stream.               8. In so far as non-General Cadre officers are               concerned,  the  order of passing out  is  the               determining  factor  to  decide  the  inter-se               seniority amongst them subject to readjustment               based on the sequence of selection.               9. Doubts have also been raised regarding  the               inter-se  seniority  between the  officers  of               other Arms and Services approved on the ’Staff               Only’ Stream vis-a-vis officers of the General               Cadre  approved  in the  ’Command  and  Staff’               Stream  as well as ’Staff Only’ Stream. It  is               clarified,  that  as  regards  the   seniority               within  the same batch is concerned,  officers               approved  on  the ’Command and  Staff’  Stream               continue to be senior to officers approved  in               the  ’Staff Only’ Stream. However, an  officer               of  an  earlier batch approved on  the  ’Staff               Only’  Stream will be senior to an officer  of               subsequent batch approved on the ’Command  and               Staff’ Stream.               10.  It will, therefore, be noticed  from  the               above that while promoting officers in  either               the ’Command and Staff’ Stream or ’Staff Only’               Stream, concept of batch seniority as  hither-               tofore applicable has in all cases been  main-               tained.               11. It is reiterated that the ’Stream Concept’               has  been introduced to ensure that  the  best               available  talent and expertise  available  in               the service is utilised.                12. Content of this letter be widely dissemi-               nated.                                      sd/                                (Vijay Kumar)                                                Lt. Gen                               Sena Sachiv/                            Military Secretary"     Before  adverting to the submissions of the  parties  we may also refer to another letter dated 29th May, 1984  filed as Annexure P-2 to the writ petition in the High Court (page 306 of the paper book filed on

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     365 behalf of the respondents alongwith the  counter-affidavit). The letter dated 29th May, 1984 reads as under:-                        "SEQUENCE  OF  SELECTION  FOR  SELEC-               TIVE  RANKS               1. Reference MS Branch Liaison Letter No. 1/80               forwarded  vide this Headquarters  Letter  No.               OO170/MS9A dated 02 Aug 80.               2. Paras 26 and 27 of the above quoted Liaison               Letter  deal  with  the  revised  sequence  of               selection  for promotion to the rank of  A/Lt.               Col. However, the example given in Para 26 has               raised  certain  doubts in the  minds  of  the               officers.  According  to  this  example,   the               revised sequence of selection was to be in the               following order:-        (a)  Final Review             -- (Say) 1960 Batch        (b)  First Review             --      1961 Batch       (c)  Fresh Selectees                  1962 Batch               3. Prior to Feb., 1980 two different sequences               of selection were being followed for promotion               to the rank of A/Lt Col and A/Col, illustrated               by the following examples:                (a) for promotion to the rank of A/Lt Col        (i) Fresh SeLEctees    --   (Say) 1959 Batch        (ii) Final Review      --       1957 Batch        (iii) First Review     --       1958 Batch           (b) for promotion to the rank of A/Col and above       (i)  Final Review        --       1954 Batch       (ii)  First Review       --       1955 Batch       (iii) Fresh selectees    --       1956 Batch 366               4.  In Feb 1980, it was decided to  bring  the               sequence of selection in the rank of A/Lt  Col               in  line with the sequence being followed  for               promotion to the ranks of A/CoI and above. The               changed  sequence of selection which is  being               presently  followed  is  illustrated  by   the               following examples:      (a)  Final Review                --   196 1 Batch      (b)  First Review                  --   1962 Batch      (c)  Fresh selectees              --  1963 Batch                5.  This new sequence was to be applied  com-               mencing  with the fresh selectees of  1963  as               illustrated  in para 4 above. Fresh  selectees               officers of 1962 and earlier seniority were to               be  treated by the old criterion as  given  in               para 3(a) above. It was also decided that past               cases would not be opened up for the  revision               of seniority.                6.  In view of above, para 26 of  above  men-               tioned Liaison Letter may please be treated as               cancelled.                7.  This  letter  may please  be  given  wide               publicity.                                                     Sd/                                   (HB Kala)                                    Col.                                 Col MS 5                        for Military Secretary"     Learned  counsels also brought to our  notice  paragraph 169 of Annexure P-3 filed in the writ petition (page 307  to 309 of the paper book) which reads as under:               "169. A’ Batch for consideration for promotion               to select rank is defined as "all officers who

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             reckon  seniority  in  a  particular  calender               year".  This has been done for  the  following               reasons:               (a) Officers are commissioned from IMA in Jan.               and Dec. each year.               367               (b) Officers commissioned from OTS on grant of               permanent  commission  lose seniority  as  per               existing  rules and they reckon  seniority  in               Mar. and Sep. of each year.               (c) Officers who forefeit service as a  result               of disciplinary awards reckon fresh  seniority               on any date in the calender year.               (d)  Officers passing  promotion  examinations               late  also reckon seniority  corresponding  to               the  date  of the examination  on  which  they               finally passed."     It  will be noticed that both these  communications  are before  the ’Two Stream Concept’ which was accepted  by  the Government  on  3  1st May, 1986 and  its  modalities  being worked out thereafter. However, we will deal with these  two communications little later.     The Division Bench of the High Court considered the note of  Military Secretary dated 22nd September, 1986,  referred to  above,  as well as the note of the Vice  Chief  of  Army Staff  dated  24th September, 1986 as also the note  of  the Chief  of Army Staff and took the view that if the  sequence of promotion which was being followed was for Option ’A’ the writ  petitioner  would be entitled to be placed  above  the fresh  Command  and Staff’ Stream cases  belonging  to  1957 batch. The learned Judges further observed:               "In  our opinion it is the sequence  which  is               referred to in the Option ’A’ which has to  be               followed  for  making promotion  to  the  next               higher  rank  of Lt. General. The  reason  for               this is obvious. It is true that the  Military               Secretary  had recommended in the  note  dated               22nd  September, 1986 that Option ’B’  (supra)               should  be  adopted. The Vice  Chief  of  Army               Staff,  however, has stated that the  proposal               of  the  Military Secretary cannot be  a  long               term proposal. He further recommended that the               proposal  of  accepting Option  ’B’  could  be               adopted for a short term only.                        "as  the ages at which  the  officers               are currently being approved for higher promo-               tions are comparatively higher".               The  Vice Chief of Army Staff  then  (emphasis               added)  recommended that Option ’B’ should  be               regarded as being               368               followed "for a transitionary phase only".                         It is clear from the aforesaid  note               of  the VCOAS that option ’B’ was  recommended               for  being approved only by way  of  temporary               measure and with regard to those officers  who               were  being considered for promotion  at  that               time.  The  use of the  expression  ’Currently               being approved’ must lead to only one  conclu-               sion  that it referred to those  officers  who               were  being  considered for  promotion  on  or               about  September,  1986. What  is  of  greater               importance  is that the VCOAS was emphatic  in               observing  that  Option ’B’ could not  be  fa-               voured  as a long term proposal. The Chief  of

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             Army  Staff agreed with the recommendation  of               the  Vice Chief of Army Staff. The  effect  of               this  must be that the recommendation  of  the               Military  Secretary to adopt Option ’B’  as  a               sequence  of promotion was not  accepted.  The               existing sequence of promotion which was being               followed was recommended to be continued."               Again the Division Bench observed:               "It is pertinent to note that  notwithstanding               the  note dated 22nd September, 1986, and  the               subsequent  opinion of the Vice Chief of  Army               Staff  and the Chief of Army Staff, no  letter               of the type which was issued on 9th September,               1986,  was ever issued by the Military  Secre-               tary’s  branch.  Whereas  the  letter  of  9th               September, 1986, was issued to all the Command               Headquarters,  there  is  no  format  document               which  was issued or made known to  the  offi-               cers, purporting to give effect to Option  ’B’               suggested  by the Military Secretary vide  his               note  dated 22nd September, 1986. On the  con-               trary, the letter dated 1st June, 1987  issued               by  the Military Secretary’s Branch,  referred               to  hereinabove, is clearly at  variance  with               the  suggestion  of  the  Military   Secretary               contained in his note of 22nd September, 1986.               If  Option  ’B’ had been accepted,  then  that               would  have been mentioned in the  letter’  of               1st June, 1987."     Again  in relation to the communication dated 1st  June, 1987 the Division Bench observed as under:-               "Reverting to the letter of 1st June, 1987, we               find that               369               towards  the end of paragraph 9, it  has  been               categorically stated that:               "However,  an  officer  of  an  earlier  batch               approved  on  the Staff Only Stream’  will  be               senior  to  an  officer  of  subsequent  batch               approved on the ’Command and Staff’ stream".               This  is  then emphasised by the  contents  of               paragraph 10 of that very letter which reiter-               ates that:                        "The  concept of batch  seniority  as               hithertofore applicable has in all cases  been               maintained."               The anxiety of the Military Secretary’s branch               apparently was that the batch seniority had to               be maintained. If the argument of Mr. Vazey is               accepted, the batch seniority cannot be  main-               tained if the fresh cases of 1957 batch are to               be promoted earlier than the petitioner, which               is a first review case of 1956 batch, then the               effect would be that officers belonging to the               1957  batch would be senior to the  petitioner               who belongs to the 1956 batch. Notwithstanding               the  note  dated 22nd September, 1986  of  the               Military Secretary, the letter dated 1st June,               1987 of the Military Secretary’s branch  makes               it clear that the batch seniority shall always               be  maintained. Notwithstanding the fact  that               the  fresh cases of 1957 batch have  been  ap-               proved  for  command and  Staff  stream,  they               would,  nevertheless, come in  sequence  after               the  petitioner who belongs to the 1956  batch

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             though  selected in the Staff only Stream.  It               may  happen  that  notwithstanding  that   the               petitioner is placed at the head of the penal,               no  staff vacancy may occur and a vacancy  may               occur  only  for a command post to  which  the               petitioner  has not been selected but  we  are               not concerned with such a case here. It is the               admitted case before us that out of the  penal               of  officers  who  were selected  as  per  the               letter  dated 26th October, 1990,  Major  Gen.               S.A. Singh and S. Roy Choudhary have been,  on               promotion,  posted  to posts  which  are  non-               Command posts.     It  appears to us that the Division Bench  totally  mis- understood  the  note of the Military Secretary  dated  22nd September,  1986  as well as the note of the Vice  Chief  of Army Staff dated 24th September, 1986. 370     It  is in the select panel prepared dated 26th  October, 1990 that the officers mentioned at (a) are the officers who were  selected  for ’Command and Staff’ stream  whereas  the respondent  was selected for the stream of ’Staff Only.’  It is clear from the Scheme that the officers who were approved for  ’Command  and Staff’ stream can be appointed  both  for ’Command’ as well as ’Staff’ vacancies whereas the  officers who  were approved only for stream of ’Staff Only’ can  only be appointed to the vacancies relating to ’Staff’ and cannot be  appointed relating to vacancies for ’Command’.  The  ex- pression ’same batch’ which is referred to in paragraph 9 of the letter dated 1st June, 1987 is for the officers who were considered for selection at one time and not the  individual batch  of the Major General. In the batch in which  the  re- spondent  was  considered for promotion included  (a)  fresh cases  of 1957, (b) first review case of 1956 and (c)  final review  cases of 1955. It is that batch which is  being  re- ferred  to as the ’same batch’ and it is  specifically  men- tioned  in  paragraph 9 that for the purpose  of  seniority. officers  of the ’Staff Only’ stream will be junior  to  the officers  of  the ’Command and Staff’ stream.  It  is  again specifically  mentioned that after placing the  officers  of the  ’Staff Only’ stream, review selectees of  the  ’Command and  Staff’  stream of the next batch to be  promoted.  This concept  was further explained in the note of  the  Military Secretary  dated 22nd September, 1986 which was approved  by the  Chief  of Army Staff as well as duly  informed  to  the Government as required by the communication dated 3 1st May, 1986,  noticed  by us earlier. In the note of  the  Military Secretary  dated 22nd September, 1986 Option ’A’  which  was prevalent  practice was substituted by Option ’B’ which  was recommended  for future and which was accepted both by  Vice Chief  of  Army Staff as well as the Chief  of  Army  Staff. Option ’A’ was never put up as a proposal for acceptance  or rejection  to  the Chief of Army Staff. Vice Chief  of  Army Staff  only considered the proposal as recommended by  Mili- tary  Secretary in his note dated 22nd September,  1986  and Vice Chief of Army Staff accepted it-and the same was adopt- ed by the Chief of Army Staff. This Option ’B’ has not  been reviewed till date. There can be no doubt that if Option ’A’ was available for preparation of select list the  respondent would have been senior to other persons who were recommended for ’Command and Staff’ stream. But Option ’A’ was given  up and  Option ’B’ was recommended for approval. If Option  ’B’ has been adopted and accepted, as is clear, the seniority of the respondent placed in the panel dated 26th October,  1990 is  unexceptionable. It is again clear that the  recommenda-

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tion  of the Military Secretary dated 22nd  September,  1986 approved  by  the Chief of Army Staff was  fully  stated  in paragraphs 7, 9 and 10 of the communication dated 1st  June, 1987. Merely because no reference     371 is  made  to the note of the Military Secretary  dated  22nd September, 1986 in the communication dated 1st June, 1987 it does  not mean that the note has to be ignored. It  will  be noticed  from  the communication dated 31st May,  1986  that after  the  Government  had approved  the  concept  of  ’Two Stream’,  it was left to the Army Headquarters to  work  out the  modalities and merely inform the Government.  In  fact, the  select  panel,  even after being prepared,  has  to  be approved  by the Government and has been so  approved  which show that the Government has accepted the modalities  worked out  by  the Army Headquarters of the ’Two  Stream’.  It  is clear  from the noting of the Military Secretary  which  was accepted by the Chief of Army Staff that the same was  inti- mated  to the Government and that the matter was  also  dis- cussed with the Government by the Military Secretary.  Noth- ing further was required to be done and those decisions find place  in  paragraphs 7, 9 and 10 of the  letter  dated  1st June,  1987  by way of working out modalities.  It  is  men- tioned, even at the expense of repetition, in paragraph 7 of the  aforesaid communication dated 1st June, 1987  that  the ’Two Stream Concept’ envisages that the officers approved in the  ’Command and Staff’ stream will be en-block  senior  to the officers of the same batch approved in the ’Staff  Only’ Stream.  The  same batch here refers to the three  types  of officers  who  were  considered for promotion  in  the  1957 batch.  Again in paragraph 9 it was’repeated "it  is  clari- fied, that as regards the seniority within the same batch is concerned,  officers  approved on the  ’Command  and  Staff’ Stream  continue  to be senior to officers approved  in  the "Staff Only’ Stream. It was further clarified that "however, an officer of an earlier batch approved on the ’Staff  Only’ Stream  will  be senior to an officer  of  subsequent  batch approved on the ’Command and Staff’ Stream. Here the ’subse- quent batch’ means the next batch of promotion. The  expres- sion  ’same batch’ in the communications of 22nd  September, 1986 and 1st June, 1987 took colour from the context and not from  the definition of ’batch’ given in paragraph  169  no- ticed  earlier.  Nor does the sequence of  selection  to  be considered as was prevailing before the communication  dated 22nd  September, 1986 relevant. It was only the sequence  of selection as proposed in Option ’B’ which was adopted.     Again  the  observation of the Division Bench  that  the note of the Military Secretary dated 22nd September, 1986 is contrary  to or at variance with the letter dated 1st  June, 1987  is not correct. The letter of 1st June, 1987 is  again for  working out further modalities of ’Two Stream  Concept’ vis-a-vis seniority in the light of the note of the Military Secretary dated 22nd September, 1986. 372     The Government has been very fair in placing before  the results of the select panel prepared since the  introduction of ’Two Stream Concept’. The first Special Selection  Board, after  September,  1986, for promotion to the  rank  of  Lt. General  was held in October, 1986. It was 1954  batch  com- prising  or--(a) Final Review of 1952, (b) First  Review  of 1953  and (c) Fresh 1954 and the officers who were  selected to the Stream of ’Command and Staff’ were of 1954 batch  and were placed en-block senior to officers selected for  ’Staff Only’  Stream  who  were again Fresh 1954.  Again  the  same policy  was followed in the case of the respondent.  It  was

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called  1957 batch comprising (a) Final Review of 1955,  (b) First Review of 1956 and (c) Fresh 1957. Since the  respond- ent was approved only for ’Staff Only’ Stream, though he was first review case of 1956, he was placed below the  officers who  were approved for ’Command and Staff’ Stream  and  were Fresh  1957. Since there was no vacancy which could fall  to the share of the respondent in his turn as per the seniority till he was superannuated on 3 1st May, 1991, the respondent could not take advantage of his approved promotion.     The  note  dated 22nd September, 1986 amending  the  se- quence of promotion and after giving advantage and disadvan- tages of the two options i.e. Option ’A’ and Option ’B’ had, thereafter, recommended that Option ’B’ should be adopted.     It  may  not  be accurate for the High  Court  to  apply Option  ’A’ which has never been recommended and  which  was superseded  by Option ’B’ which was accepted at the  highest level.  Fact remains that even the select panel prepared  by the  army authorities was approved by the Government  before it was released.     Learned counsel for the respondent referred to the  case of  Major General R.K. Gaur as mentioned in paragraph 49  of the writ petition. The averment in paragraph 49 of the  writ petition  is  that  Major General Gaur was a  case  of  1954 batch-first  review, and was approved on 26th  August,  1988 for  ’Staff  Only’ Stream. Sometime in October,  1987  fresh cases of 1955 batch were also approved for promotion to  the rank  of Lt. General in which Major General V.K.  Singh  and Major  General  Hatvans Singh, in addition to  many  others, were  approved for ’Command and Staff’ stream. By  the  time Major General Gaur was approved in its first review on  26th 2August,  1988  various officers of 1955  fresh  cases  were promoted  except Major General V.K. Singh and Major  General Harvans Singh. Between 26th August, 1988 on which date Major General Gaur was approved in ’Staff Only’ Stream 373 and  26th October, 1988 no promotions were made to the  rank of Lt. General and on 26th October, 1988 Major General  Gaur was ordered to be promoted and in his order it is  mentioned that the general officer i.e. Major General Gaur will report for his new appointment forthwith. Since the order has  come on  26th  October, 1988 itself and the order was  to  report forthwith he could have picked up the rank the same day  but incidentally he was out of station and returned only on 31st October,  1988  and he could pick up the rank  only  on  1st November,  1988.  The orders of promotion of  Major  General V.K.  Singh and Major General Hatvans Singh were  issued  on 27th October, 1988 which clearly indicate that the order  of promotion of Major General Gaur was issued ahead of both the aforesaid officers. This would clearly indicate that in  the case of Major General Gaur who was a 1954 batch first review case  was  promoted ahead of Major General  V.K.  Singh  and Major  General Harvans Singh who were approved  in  ’Command and  Staff’ Stream as fresh cases of 1955 batch. The  inten- tion of issuance of such order promoting Major General  Gaur on  26th October, 1988 clearly indicates that he was  to  be promoted ahead of those two officers.     In reply to the submissions made in paragraph 49, it  is pleaded  on  behalf of the Government that  it  was  clearly mentioned  that  Major  General Gaur, being  a  list  review selectee  of  1954 batch in ’Staff  Only’  stream,  reckoned seniority  below  the  Fresh Selectee  ’Command  and  Staff’ stream of 1955 batch. In the Army, the seniority is  decided by  the date of substantive promotion and not by  the  date, the  officer picks. up his acting promotion. In  many  cases officers  due  to various administrative  reasons,  who  are

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otherwise  seniors,  pick up their acting rank due  to  late assumption  of  higher  officer later  than  their  juniors. However,  in  such cases it is ensured that  while  granting substantive rank the panel seniority is maintained. It is  a well  known principle practised in almost all  services  and the writ petitioner is trying to confuse the issue with  the letter relating to posting and promotion of senior  officers which  was  issued  one day later than his  junior.  It  was contended  that even in those promotion it was ensured  that the  seniors  were at a liberty to assume their  higher  ap- pointment  in acting rank alongwith Major General  Gaur.  It was averred that it has been conveniently overlooked by  the writ  petitioner that promotion orders of several others  of his  senior were issued earlier. Moreover Lt.  General  Gaur was  given  substantive promotion at a date later  than  the other  two officers mentioned by the writ petitioner.  Under no  circumstances a junior is promoted ahead of the  senior. It was stated that Lt. General 374 Gaur  was given substantive rank w.e.f. 1.11.  1988  whereas Lt.  General Harvans-Singh and Lt. General V.K. Singh,  both seniors  to Lt. General Gaur, were given substantive  promo- tion w.e.f. 27th October, 1988.     We find that in view of this reply the petitioner cannot take advantage for being, promoted earlier than the officers selected for the ’Command and Staff’ Stream.     We, thus, accept this appeal, set aside the order of the High  Court  dated  30th April, 1991 and  dismiss  the  writ petition  filed by the respondent. However, on the facts  of the case, parties are left to bear their own costs  through- out. T.N.A.                                 Appeal allowed. 375