05 March 1982
Supreme Court


Case number: Appeal Civil 1742 of 1980








CITATION:  1982 AIR 1064            1982 SCR  (3) 453  1982 SCC  (2) 116        1982 SCALE  (1)227  CITATOR INFO :  R          1987 SC1858  (20)  R          1987 SC2291  (21)

ACT:      Defence  Research   and  Development  Organisation  and Government of  India O.M.  dated November 23, 1979, Rule 16- "Seniority after permanent secondment"-R & D Cadre-Intake of service  officers-Seniority  after  ’permanent  secondment’- Based upon seniority of substantive rank held by the officer in the  grade of major or equivalent rank-Such principle for determination whether valid.      "Secondment"  of   an  officer-Whether   constitutes  a transfer.      Constitution of  India 1950, Art, 309 proviso-Statutory rule covering  seniority-Rule to  take effect  from date  of promulgation-Whether element  of retroactivity  involved  in operation of rule.      Administrative  Law-Principle   of   natural   justice- Applicability of-In promulgation of statutory rule governing seniority.

HEADNOTE:      The Defence  Research and Development Organisation (R & D) was set up under the Ministry of Defence for carrying out scientific and  technological research  and development work on projects  of vital  importance to the defence forces. Its personnel consist  of large number of civilian scientists as well as  a smaller number of service officers drawn from the three  wings  of  the  Armed  Forces  who  have  operational experience of weapon systems.      The policy  followed in regard to the intake of service officers was  that they  were initially  taken on  a  tenure basis and  subsequently absorbed  in the  organisation on  a permanent basis  in the  event of  being found  suitable and willing. Since  the Officers from the three services came to the R  & D  cadre with  different lengths  of service and at different  levels,   it  became   imperative  to   evolve  a reasonable principle for the determination of their inter-se seniority after their secondment to the organisation.      In November  1979 in supersession of all previous Rules and Orders on the subject, rules were made under the proviso



to Art.  309 laying  down the  procedure for  the intake  of service officers in the R & D organisation and the terms and conditions of service of those permanently retained therein. Rule 16  dealt with  "Seniority after  permanent secondment" and  provided   that  "seniority  of  all  service  Officers permanently seconded  to DRDO will continue to be based upon their seniority  of substantive  rank of Major/Sqn. Ldr./Lt. Cdr..........and the 454 seniority of  officers with  substantive ranks  higher  than Major/Sqn.  Ldr./Lt.   Cdr.  will   after  their   permanent secondment also reckon vis-a-vis other officers in the R & D Cadre, for  future promotion/confirmation,  from the date of their substantive  rank of  Major/Sqn. Ldr./Lt. Cdr......... ".      The appellant who was commissioned in the Air Force was seconded to  the service.  In his writ petition he contended that the  principle for determination of seniority laid down in Rule 16 was arbitrary and violative of Articles 14 and 16 of the Constitution, and as he had been permanently seconded to the  R &  D  Organisation  in  1971  long  prior  to  the proclamation of  the rule his rights regarding seniority and promotion could  not be  affected by  the provisions of this rule. By  taking the  date of substantive appointment to the rank  of  Major/  equivalent  as  the  basis  for  reckoning seniority, officers  who had obtained substantive promotions to higher  ranks in  the parent service earlier than some of their seniors  who were  only subsequently  promoted to such higher ranks,  suffer serious  prejudice because  the latter gain over  the earlier  promotees and  supersede them in the matter of  seniority in  the R  & D  Organisation, and  that subsequent inductees  in the  R &  D Organisation  cannot be legally assigned  seniority above those already borne on the cadre, irrespective  of the substantive rank held by them at the time of their intake into the R & D.      The Single  Judge  rejected  all  the  contentions  and declined to grant relief. The R & D Organisation was however directed to  issue the  tentative seniority list drawn up in accordance with  Rule 16. The Letters Patent Appeal filed by the appellant was dismissed in limine.      Dismissing the appeal to this Court, ^      HELD: 1.  Since officers  from  different  sources  are taken  into   the  R   &  D  Organisation  for  meeting  the discipline-wise requirements  arising therein  from time  to time and  they are  brought  into  a  common  pool  on  such permanent secondment,  a  reasonable  principle  had  to  be evolved for  fixation of inter se seniority within the R & D cadre. The  principle adopted  under  Rule  4  of  reckoning seniority with  reference to  the date  of attainment of the rank of  substantive Major/equivalent  strikes a  reasonable mean as  it ensures to all the service officers in the R & D the fixation  of seniority  in the  integrated cadre  giving full credit to the length of service put in by them in their respective parent services. [466 C; 466 H; 467 A]      2. It  is  settled  law  that  the  service  conditions pertaining  to   seniority  are   liable  to  alteration  by subsequent changes  that may  be introduced in the rules and except to  the extent  of protecting  promotions  that  have already been  earned under  the previous  rules, the revised rules will  operate to govern seniority and future promotion prospects. There is, therefore, no substance in the argument advanced by  the appellant  that it  was  not  open  to  the Government  of   India  to  introduce  a  new  principle  of seniority by  promulgation of  Rule 16  so as  to affect his



rights for future promotion. [463 D-E]      3. A  statement contained  in the  statute or statutory rule of  the factual  background leading up to the enactment has ordinarily to be accepted and acted upon by the court as wholly correct. [463 A] 455      4. Rule  16 contains  a categorical declaration that in the past  also the seniority of service officers permanently seconded to the R & D Organisation was being reckoned on the basis of  their dates  of attainment  of substantive rank of Major/Sqn. Ldr./Lt.  Cdr. subject  to  any  penalty/loss  of seniority that  an officer  might suffer subsequently. It is therefore not  possible to  accept  the  contention  of  the appellant that prior to the coming into force of the rule be had acquired a vested right to have his seniority in the R & D reckoned  with reference  to the  date  of  his  permanent secondment and to have all Officers joining the organisation on subsequent  dates ranked only below him. [462 G-H; 463 B- C]      5. The  structure and  composition of  the Organisation have  necessarily   to  undergo   rapid,   qualitative   and quantitative changes  in the  light of the fast developments that take  place in  science  technology  and  international relations. The  intake of  service Officers  is not  on  the basis of  any general  selection from service cadres. As and when the  Organisation finds  it  necessary  to  obtain  the service of  officers  with  operational  experience  in  any particular weapon  system or other scientific discipline the parent service is requested to spare for deputation suitable hands in  the particular  branch or speciality and initially they are  taken on a tenure basis. There is a selection only in  a  very  limited  sense  that  the  suitability  of  the concerned officer  is adjudged  before he  is taken  but the claims  or   merits  of   others  are  not  considered.  The secondment of such officers to the R & D Organisation is not therefore, effected  on the  basis of  a general  selection. Officers who are senior in the parent service in relation to the person  who is  seconded and  who  may  possess  greater experience and  superior  attainment  might  not  have  been considered for  secondment when their juniors in the service were seconded  to the R & D Organisation, because the parent service might  not have been in the position at the relevant point of time to spare the services of the former. [463 G-H; 464 A-E]      6. Where  persons from different sources are drafted to serve in  a new  service  a  just  and  wholesome  principle commonly applied  is that the pre existing length of service in the  parent department  should be respected and preserved by taking the same into account in determining their ranking in the  new service cadre. Such a provision does not involve any  discrimination   violative  of   Article  16   of   the Constitution. [470 E]      R.S. Makashi  & Ors.  v. I.M.  Menon &  Ors., [1982]  1 S.C.C. 379, referred to.      7. The secondment of an officer from his parent service to the  R &  D is  not a  transfer to Central Service from a subordinate service or from another department. [469 G]      8. Rule  16 being  statutory in  origin,  its  validity cannot be  affected by  reason of any inconsistency with the provision of  a prior  executive order issued by the Central Government  i.e.   Office  Memorandum  dated  July  22,1972. [469 H]      9. When  a statutory rule governing seniority is issued in respect  of a  service, the  said rule  would govern  the personnel in  the service  with effect  from the date of its



promulgation and  in so giving effect to the rule in future, no element of retroactivity is involved. [470 G-H] 456      10. The  promulgation of  a  statutory  rule  governing seniority is  not  a  quasi-judicial  function.  It  is  the exercise of  a legislative  power and in respect thereof the principles of  natural justice  have no  application at all. [472 B]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1742 of 1980.      Appeal by  special leave  from the  judgment and  order dated the 11th day of April, 1980 of the Delhi High Court in L.P.A. No. 53 of 1980.                             WITH      Civil Misc. Petitions Nos. 69 and 5698 of 1981.      Wing Commander J. Kumar Appellant in Person.      P.A. Francis,  Narayan Nettar  and Miss  A. Subhashini, for the Respondent.      The Judgment of the Court was delivered by      BALAKRISHNA ERADI,  J. This  appeal by special leave is directed against  the judgment  of a  Division Bench  of the Delhi High  Court dismissing  in  limine  a  Letters  Patent Appeal filed  by the  present appellant against the judgment of  a  learned  Single  Judge  of  that  Court  whereby  the contentions raised  by the  appellant in Civil Writ Petition No. 1423  of 1979  were rejected  and the said writ petition was dismissed.      The appellant-Wing  Commander J. Kumar-was commissioned in the  Indian Air Force on September 3, 1956 with antedated seniority  from   December  10,  1955.  He  was  permanently seconded to  the Defence Research Development and Inspection Organisation (for  short, the L R D & I Organisation) of the Ministry of  Defence on October 14, 1971. On the bifurcation of the  LRL &  I Organisation  effected in  July 1976 by the separation  of   the  Inspection  Wing,  the  appellant  was retained   in   the   Defence   Research   and   Development Organisation, which will hereinafter be referred to as the R & D  Organisation. The  Director-General of Defence Research and Development,  who is also the Secretary to Government of India, Defence Research, is the controlling authority of the R &  D cadre. The said cadre has service officers drawn from all the  three Wings  of the Armed Forces, namely, the Army, the Navy and the Air 457 Force, and  in addition  thereto a  large number of civilian employees are also borne on it.      In November 1979, in supersession of all previous Rules and  Orders   on  the   subject,  the   President  of  India promulgated  under   the  proviso  to  Article  309  of  the Constitution rules  laying down the procedure for the intake of service  officers in the R & D Organisation and the terms and conditions  of service  of  those  permanently  retained therein. Those  rules were issued by the Ministry of Defence of  the   Government  of  India  in  Office  Memorandum  No. Pers/18601/RD. Sel. Bd/7971/D (R&D) dated November 23, 1979. The provisions  of the  said Memorandum  will hereinafter be referred to  as the rules. Rule 16 deals with the subject of "Seniority after  permanent secondment". That rule is in the following terms:           "As hithertofore seniority of all service officers      permanently seconded  to DRDO will continue to be based



    upon their  seniority of substantive rank of Major/Sqn.      Ldr./Lt. Cdr., subject to any penalty/loss of seniority      that an  officer  might  suffer  subsequently  and  the      seniority of  officers with  substantive  ranks  higher      than  Major/Sqn.   Ldr./Lt.  Cdr.   will  after   their      permanent  secondment,   also  reckon  vis-a-vis  other      officers    in    the    R&D    Cadre,    for    future      promotion/confirmation,  from   the   date   of   their      substantive rank  of Major/Sqn.  Ldr./Lt. Cdr., subject      to any  penalty/loss of seniority that an officer might      have suffered in his parent Arm/Service."      The principal  contention  advanced  by  the  appellant before  us  is  that  the  principle  for  determination  of seniority laid  down in  the above  rule  is  arbitrary  and violative  of  Articles  14  and  16  of  the  Constitution. Alternatively, it  is contended  by the appellant that since he had  been permanently seconded to the R&D Organisation in 1971, long  prior to the promulgation of the impugned rules, his rights regarding seniority and promotions cannot, in any way,  be  effected  by  the  provisions  of  the  new  rule. According to  the appellant,  he continues to be governed by the  principles  that  had  been  originally  laid  down  in Government of  India (Ministry  of Defence) Memorandum dated March 18, 1967, which were the rules in force at the time of his secondment  to the  R&D Organisation.  It is the further case of  the appellant  that the  R&D being  an  independent Organisation,  the   seniority  of  the  personnel  absorbed therein has  to be reckoned only with reference to the dates on which they were 458 selected  and   appointed  in   the  said  Organisation  and subsequent entrants  into the R&D in any particular category or rank  should, therefore,  be placed  only below all those who  had  already  joined  the  Organisation  by  virtue  of permanent secondment.  The appellant  also contends  that by taking the  date of  substantive appointment  to the rank of Major/equivalent  as  the  basis  for  reckoning  seniority, officers who  had obtained  substantive promotions to higher ranks in  the parent  service earlier  than  some  of  their seniors who  were only  subsequently promoted to such higher ranks, will suffer very serious prejudice because the latter will gain  a march  over the earlier promotees and supersede them in  the matter  of seniority  in the  R&D Organisation. Elaborating this  plea,  it  was  urged  on  behalf  of  the appellant that  the result  of the impugned rule would be to bring  about   the  anomalous   situation  where   a  person permanently seconded  to the  R&D and  holding substantively the  rank   of  Lt.Col./equivalent   can  be  superseded  in seniority in  the said Organisation by a Major/equivalent of old vintage  who had  been overlooked  for promotion  in his parent service  and may  have thereupon come over to the R&D Organisation. Another  objection strongly put forward by the appellant was  against the  lateral induction of officers at levels higher  than that of substantive Major/equivalent. It was urged  by the  appellant that  such subsequent inductees into  the   R&D  Organisation  cannot  be  legally  assigned seniority  above   those  already   borne  on   the   cadre, irrespective of  the substantive  rank held  by them  at the time of  their intake into the R&D. The appellant has rested this contention  on the  premise that the intake of officers into the  R&D is  by a  selection based  on merit  and hence those selected  earlier must  necessarily rank higher in the seniority list  of the Organisation in relation to those who are selected and appointed in the Organisation only on later dates. The  appellant has  urged a  further point  before us



that the  seniority of  officers of  the Navy,  Army and Air Force  holding   equivalent  ranks   who   served   in   the Organisation is  governed by  the  principle  laid  down  in Regulation No.  251 of the "Naval Ceramonials, Conditions of Service  and   Miscellaneous  Regulations,  1964",  and  the impugned rule  in so  far as it is contrary to the principle laid down  in the  said Regulation  has to  be  declared  as invalid and  inoperative. Some  other incidental  pleas  and grievances were also put forward by the appellant before the High Court as well as before us and we shall be dealing with them later on at the appropriate stage.      The learned Single Judge of the High Court rejected all the aforesaid  contentions advanced  by  the  appellant  and declined to 459 grant any  relief to  him, except to the extent of directing the R&D  Organisation to  issue the tentative seniority list drawn up  in accordance  with the impugned rule within three months from  the date  of the  judgment and  to  record  the Annual Confidential  Reports on  the appellant from April 1, 1976 to  March 31,  1979 within the same period. The Letters Patent Appeal  filed  by  the  appellant  against  the  said judgment having been dismissed in limine by a Division Bench of the  High Court,  the appellant has preferred this appeal after obtaining special leave from this Court.      The Defence Research and Development Organisation (R&D) has been  set up  under the Ministry of Defence for carrying on scientific  and technological  research  and  development work on  projects of  vital importance to the defence forces of this  country. The  head of  the said  Organisation is  a civilian, namely,  the Scientific  Adviser  to  the  Defence Ministry and  its personnel  consist of  a large  number  of civilian scientists  and a  much smaller  number of  service officers drawn  from the three defence services. The service officers are  initially taken  on short tenure and are later permanently  seconded  to  the  R&D  Organisation  if  found suitable  and  willing.  Those  service  officers  who  were permanently seconded  and absorbed  in  the  R&D  cadre  are thereafter governed  by the  terms and conditions of service applicable to the officers of the said cadre.      Originally,  the   Defence  Research   and  Development Organisation (R&D)  and the  Director-General of  Inspection (DGI)  had   a  combined   cadre-Research  Development   and Inspection-and the  terms and  conditions of  service of the personnel borne  on the  said cadre  were  governed  by  the provisions contained  in Government  of India  (Ministry  of Defence) Memorandum  No. 11/(5)/58/D-(R&D)  dated March  18, 1967. But,  those rules  which had  also been  issued by the President of  India under  the proviso to Article 309 of the Constitution did  not contain  any provision laying down the principles  for   determination  of  the  seniority  of  the officers functioning  in the DRD&I Organisation. Those rules were in force at the time when the appellant was permanently seconded to the DRD&I Organisation in 1971.      In the  writ petition  filed in  the  High  Court,  the appellant had  impleaded 8 officers of the R&D Organisation, namely, respondents nos. 7 and 11 to 17 contending that they have been  assigned  seniority  and  granted  promotions  in supersession of  the appellants’s  legitimate claims  and in violation of the rules. In the appeal before 460 this Court,  the appellant  had added  several more  service officers of the R&D as additional respondents. The appellant argued his case in person and so did some of the respondents whose promotions and seniority etc., have been challenged by



the appellant.      Arguments advanced  by the  parties appearing in person were heard  by  us  at  considerable  length  and  Shri  P.A Francis, Senior Advocate, appearing on behalf of Respondents Nos. 1  and 2,  namely, the Union of India and the Director- General, R&D  Organisation, also  addressed arguments before us covering all the aspects.      As already noticed, the main contentions put forward by the appellant are two-fold, namely, that the principles laid down in  rule 16  of the  rules  for  determination  of  the seniority of  officers permanently  seconded to  the R&D are arbitrary  and   illegal,  and  that  lateral  induction  of officers holding  ranks above  substantive  Major/equivalent and assigning  of seniority  to such subsequent inductees by applying the provisions of rule 16 amounts to deprivation of the vested  rights of  persons-like  the  appellant-who  had joined  the  Organisation  earlier  and  it  is,  therefore, illegal and unwarranted.      After giving  our best  consideration to  the arguments advanced on  both sides,  we do  not see  any  substance  in either  of   the  aforesaid   contentions  advanced  by  the appellant,      The  Defence   Research  Development   and   Inspection Organisation is a Specialised Technological Organisation set up under  the Ministry  of Defence for carrying out research and development  work in  weapons  like  guns,  electronics, missiles, tanks etc. Its personnel consist of a large number of civilian  scientists (about  3,600) and about 430 service officers drawn  from all the three Wings of the Armed Forces with operational  experience of  such weapon  system to work with  the   scientists  in   the  research  and  development programme. The  policy followed  in regard  to the intake of service officers appears to have been to take them initially on a  tenure basis  and subsequently  to absorb  them in the Organisation on  a permanent  basis in  the event  of  their being found  suitable and  willing.  It  is  seen  from  the affidavits and  documents filed on behalf of the respondents that the  secondment of  service officers  depended upon the exigencies and  the special type of need of the Organisation at each  relevant point of time so much so that officers who could fill  the  bill  by  virtue  of  their  qualification, experience, aptitude  and  suitability  in  that  particular branch of defence science for which the need 461 for personnel  had arisen and whose services could be spared by their parent service were taken into the R&D Organisation from time  to  time.  Since  the  officers  from  the  three services came  to the  R&D cadre  with different  lengths of service and  at different  levels, it  became imperative  to evolve a  reasonable principle  for determination  of  their inter  se  seniority  after  their  secondment  to  the  R&D Organisation.      The case  of the  respondents is  that right  from  the beginning,  the   policy  and  practice  followed  by  DRD&I Organisation as  well as  by the bifurcated R&D Organisation was to  assign seniority with reference to the date on which the   officers    attained   their   rank   of   substantive Major/equivalent. This was, however, strongly refuted by the appellant who  asserts  that  no  such  principle  had  been formulated or  followed by  the Organisation  prior  to  the promulgation of the impugned rules. The respondents produced for  our   perusal   various   files   pertaining   to   the determination of  seniority and  grant of  promotions in the Organisation during  the period prior to the issuance of the impugned rules.  The appellant pointed out with reference to



those very files that there were quite a few instances where promotions had  been effected on a basis totally at variance with the principle propounded by the respondents.      From a  scrutiny  of  the  files  of  the  Ministry  of Defence-R&D Organisation-produced  before us  by the learned counsel appearing  on behalf  of the Government of India, it has  clearly   emerged  that,  excepting  for  a  few  stray instances, the practice followed in the R&D Organisation was to reckon the seniority of the permanently seconded officers with reference  to the  date of  their attaining substantive rank of  Major/equivalent. The principle underlying the said practice was  later formally  incorporated in the Minutes of the DRD&I  Selection Board  as a decision taken by the Board at its meeting held in February 1974. The relevant paragraph of the Minutes runs thus:           "Officers  with   substantive  ranks  higher  than      Maj/Sqn Ldr/Lt Cdr who are offered permanent secondment      will  reckon   their  substantive   seniority  in   the      R&D/Inspection      Organisation       for       future      promotion/confirmation from  the date  they  got  their      substantive ranks  as Maj/Sqn  Ldr and  subject to  any      penalties as  regards loss of seniority that they might      have suffered in their Arm/Service thereafter. The 462      position as  above should  be clarified to the officers      concerned and  their acceptance obtained before issuing      the orders of permanent secondment in such cases. These      decisions will  apply to  cases of permanent secondment      approved by the RD&I Selection Board from 2(74) meeting      onwards." It is  also seen  from the  files pertaining  to the  period subsequent to February 1974 that the aforesaid principle was thereafter consistently  followed as a binding rule and when it was  found that  a departure  from the said principle had been erroneously made by placing three Air Force officers in their substantive  rank of  Wing Commander,  the authorities concerned rectified the said mistake after clearly noting in the file  that the  aforesaid principle  went  unnoticed  by oversight during  the processing  of those  cases by HQ, R&D and the ranking of those officers was revised so as to bring it into conformity with the aforesaid rule.      The relevant  file leading  up to  the issuance  of the impugned rules  was also  carefully perused by us. This file contains  the  Minutes  of  the  Chief  of  Staff  Committee recommending to the Government of India that the draft rules may be  finally accepted  and issued  expeditiously and  the noting therein  also contains  a clear  statement  that  the principle incorporated in the decision taken at the combined meeting of  the DRD&I  Selection Board held in February 1974 was merely  to  incorporate  "a  rule  which  was  unwritten earlier but  actually applied  in practice".  Thus, there is sufficient material  available on record to substantiate the plea put  forward by  the respondents  that the  policy  and practice followed in the DR&DI Organisation and later in the R&D Organisation  was to  fix the  seniority of  permanently seconded officers  with reference  to the date of attainment of the rank of substantive Major/ equivalent.      Further, the  impugned rules are statutory in origin as they have  been promulgated  by the President of India under the proviso  to Article  309 of  the Constitution.  Rule  16 contains a  categorial declaration that in the past also the seniority of  service officers  permanently seconded  to the R&D Organisation  was being  reckoned on  the basis of their dates of  attainment of substantive rank of Major/Sqn Ldr/Lt Cdr. subject  to  any  penalty/loss  of  seniority  that  an



officer might  suffer subsequently.  The said declaration is clearly implied  in  the  opening  words  "As  hithertofore" occurring in rule 16 463 of the impugned rules. A statement contained in a statute or statutory rule  of the  factual background leading up to the enactment has  ordinarily to  be accepted  and acted upon by the court  as wholly  correct; nothing  clinching  has  been brought to  our notice  by  the  appellant  to  justify  any departure from  the said  principle. We  do not,  therefore, find it  possible to  accept the contention of the appellant that prior to the coming into force of the impugned rule, he had acquired a vested right to have his seniority in the R&D reckoned  with  reference  to  the  date  of  his  permanent secondment and to have all officers joining the Organisation on subsequent dates ranked only below him. The plea advanced by the  appellant that  the impugned  rules  have  illegally purported to  divest him  of his  vested rights of seniority and promotion  in the  R&D must,  therefore, be  rejected as devoid of merit.      Apart from what is stated above, it is settled law that the service conditions pertaining to seniority are liable to alteration by  subsequent changes  that may be introduced in the rules  and except to the extent of protecting promotions that have  already been earned under the previous rules, the revised rules  will operate  to  govern  the  seniority  and future  promotion  prospects  of  all  the  persons  in  the concerned service.  There is, therefore, no substance in the argument advanced  by the  appellant that it was not open to the Government  of India  to introduce  a new  principle  of seniority by  promulgation of  the impugned  rules so  as to affect his rights for future promotion.      The next  question to  be  considered  is  whether  the principle  enunciated   in  rule   16  can  be  said  to  be unreasonable or arbitrary, as contended by the appellant. It is in this context that the specialised character of the R&D Organisation assumes  importance. Its  personnel consist  of civilian   scientists   and   service   officers   of   high technological attainments  in different disciplines who have been drawn  to the  Organisation from time to time according to its exigencies and needs.      The structure  and composition of the Organisation have necessarily to  undergo rapid  qualitative and  quantitative changes in  the light  of the  fast developments  that  take place in  the field  of science and technology as well as in international relations.  The research  and development work is carried on by the R&D in different systems of weapons and equipments and  a variety  of disciplines  like electronics, missiles, tanks, telecommunication, rocketry, radars 464 etc. In  addition to  about 3,600  civilian scientists,  the Organisation has  about  160  permanently  seconded  service officers and  about 430  service officers  taken on a tenure basis. The intake of service officers is not on the basis of any general  selection from  service cadres. As and when the Organisation finds  it necessary  to obtain  the services of officers  with  operational  experience  in  any  particular weapon system or other scientific discipline, suitable hands with aptitude skill and experience in that particular branch or speciality  whom their parent service is willing to spare for deputation  are initially taken on a tenure basis. Thus, there is  a selection  only in a very limited sense that the suitability of  the concerned  officer is adjudged before he is taken.  But what  is important  to note  is that  in  the intake  of  officers  into  R&D  Organisation  there  is  no



comparative evaluation  of the merits of the other personnel occupying the same rank or possessing like experience in the Defence Services.  There is no process of selection in which their claims  or merits  are considered.  Thus, it  is clear that the  secondment of  officers to the R&D Organisation is not effected  on the basis of a general selection. There is, therefore, no  substance in  the contention  advanced by the appellant that  the service officers who are seconded to the R &  on a later date must take rank only below all those who had joined the Organisation earlier by virtue of their prior "selection". Officers  who are  senior in the parent service in relation  to the  person who  is  seconded  and  who  may possess greater  experience and  superior attainments  might not have  been considered  for secondment when their juniors in the  service were  seconded to  the R  & D  Organisation, because the  parent service  might  not  have  been  in  the position at the relevant point of time to spare the services of the  former. Further,  the discipline-wise requirement in the R & D at any particular time will depend upon the nature of the  project then  taken on hand and posting of a service officer  to   the  R   &  D  Organisation  will  be  on  the consideration  of  his  experience  and  aptitude  for  that particular type of specialised work and not seniority in the parent service. It may well happen that a junior officer who has experience  and expertise  in  that  special  discipline alone may  be considered  for secondment  at that particular time. Thus, the entry of a service officer into the R & D is to a  large extent  dependant  on  fortuitous  circumstances related to  the exigencies  and  needs  that  arise  in  the Organisation from time to time. It is certainly not based on the result  of any  comparative  evaluation  of  his  merit, ability or  suitability as  against those of his compeers in the  concerned   parent  service.  Such  being  the  factual situation, we are of the view that 465 it will  not be  reasonable, just  or fair  to determine the seniority of  the  permanently  seconded  service  personnel merely on  the basis  of the date of their secondment to the Organisation.      The next  question to  be  considered  is  whether  the principle for  determination of  seniority laid  down in the impugned rule  16 is just, fair and reasonable or whether it is arbitrary  and violative  of Articles  14 and  16 of  the Constitution, as contended by the appellant.      The R  &  D  Organisation  has  in  its  cadre  service officers who  were taken  initially on tenure basis from the Army,  the  Air  Force  and  the  Navy  and  were  later  on permanently seconded  into the DRD & I/ R & D cadre on their being found  suitable and  willing. The  contention  of  the appellant is  that on such permanent secondment into the R & D, the inter se seniority of the officers should be reckoned only with reference to the dates of their selection for such permanent  secondment.   It  is  the  further  plea  of  the appellant that since at the time of permanent secondment the officer concerned  has to  certify in  writing  that  he  is relinquishing all  his claims  of  seniority  etc.,  in  his parent service,  no weightage can thereafter be given to the rank or  seniority which  the person  inducted had earned in his parent  service prior  to  the  date  of  his  permanent secondment. We  do not  find  it  possible  to  accept  this contention.  Officers   from  the   three  Services  holding different ranks  are inducted  into R  & D Organisation from time to  time depending  upon the needs of the Organisation, and if  the appellant’s  contention is  to be  accepted,  it would lead  to serious  anomalies and  manifest injustice by



upsetting the norms of seniority and rank structure which is the basic  fabric on  which the  Armed Forces of the country are built. The unreasonable consequences that will flow from the acceptance  of the appellant’s arguments will be clearly seen from the following simple illustration:      Suppose, in  the year  1974, on a particular date, when two officers  are working  in the  Air Force-one  as a  Wing Commander and the other in the higher rank of Group Captain- the Wing  Commander is  permanently seconded  to the  R &  D Organisation  and,   later,  the   Group  Captain   is  also permanently seconded  to the R & D in 1975. If the principle advocated by  the appellant  is to  be accepted,  the  Group Captain will  become junior  to the Wing Commander by virtue of the latter’s earlier induction into the R & D despite the fact that  he had not been even considered for secondment to the R & D at the time when the Wing Commander was taken. 466      In  view   of  our   having  already   found  that  the appellant’s contention  that the  secondment to the R & D is based on  a "selection"  is incorrect,  the basic premise on which the  appellant has  founded his  plea that the date of secondment should  be the determinative factor for reckoning seniority in the R & D cadre, falls to the ground.      Since officers  from different  sources are  taken into the R  & D  for  meeting  the  discipline-wise  requirements arising in  the Organisation  from time to time and they are brought into  a common pool on such permanent secondment, it is inevitable  that a reasonable principle has to be evolved for fixation of the  their inter se seniority within the R & D cadre.  The fixation  of the seniority on the basis of the ranks held  by them  in the  different branches of the Armed Forces would  not be reasonable or fair, because substantive ranks above Major/equivalent in the three Wings of the Armed Forces  are  conferred  by  different  Selection  Boards  at different  times   and  under   varying  circumstances   and conditions depending  upon  the  vacancies  arising  at  the different levels in the distinct services from time to time. It is  pointed out  in the counter-affidavit filed on behalf on  the   Union  of   India  (Respondent  No.  1)  that  the promotional chances  of  officers  belonging  to  the  three distinct Wings  of the  Armed Forces to posts above the rank of  Major/equivalent   vary  widely   and   dependant   upon fortuitous circumstances which may obtain in relation to the distinct services  at any  relevant point  of time.  We find there  is  force  in  this  submission.  In  all  the  three Services, the  promotions up to and inclusive of the rank of Major/equivalent are  time-scale promotions  based  only  on fixed length  of service. In the Air Force and the Army, the ranks of  Major and  Sqn. Leader, respectively, are attained on an officer putting in 13 years’ service. In the Navy, the time-scale period  for promotion  to the  equivalent rank of Lt. Commander is said to vary between about 10 and 13 years. But, what  is important  to notice  is that the promotion to the rank  of Major/equivalent  is based  only on  length  of service and  not on  any "selection".  For posts higher than that  of  Major/equivalent,  promotions  in  all  the  three Services would  depend upon  the occurrence  of vacancies in the particular branch or group in the concerned Service, the schemes of  expansion that may be taken up from time to time in the  particular Service  or branch and also the extent of stagnation that may be caused to officers at lower levels by reason of  the officers who are young in age occupying posts in the  immediate higher levels, etc. When due regard is had to all  the aspects  and circumstances,  narrated above,  it will be seen that the



467 principle adopted  under  the  impugned  rule  of  reckoning seniority with reference to a date of attainment of the rank of substantive Major/equivalent strikes a reasonable mean as it ensures  to all  the service  officers in  the R  & D the fixation of  seniority in  the integrated  cadre giving full credit to  the length  of service  put in  by them  in their respective parent services.      A similar  seniority rule  formulated by  the State  of Maharashtra in a somewhat like situation, when an integrated cadre consisting  of personnel  drawn from different sources was formed in the State of Maharashtra for administering the Rationing Scheme,  was recently upheld by this Court in R.S. Makashi & Ors. v. I.M. Menon & Ors.(1)      The following  observations contained  in that judgment are apposite in the present context:           "When personnel  drawn from  different sources are      being absorbed  and integrated  in a new department, it      is  primarily  for  the  Government  or  the  executive      authority concerned to decide as a matter of policy how      the equation  of posts  should be  effected. The courts      will not  interfere with  such a  decision unless it is      shown to  be arbitrary,  unreasonable or unfair, and if      no manifest unfairness or unreasonableness is made out,      the court  will not  sit  in  appeal  and  examine  the      propriety or  wisdom of  the principle  of equation  of      posts adopted by the Governments."      In  enunciating   the  principle  incorporated  in  the impugned rule,  the rule-making authority has adopted as the base for  reckoning  seniority  the  highest  common  factor applicable in  respect of time scale promotions in the three services, namely  the rank  of Major/equivalent  and thereby ensured to  the service  officers seconded  to  the  R  &  D Organisation  a  just  and  equitable  treatment.  The  rule provides for  the reckoning of the seniority of the seconded officers by  taking into account the length of their service in the  parent service,  for which the date of attainment of the rank  of substantive  Major/equivalent would  furnish  a safe index.  In our  opinion, the  said principle  cannot be said  to  be  arbitrary,  unjust  or  unreasonable  and  the contention to  contrary put  forward by  the appellant will, therefore, stand rejected. 468      It is no doubt true that in the Navy, promotions to the rank of  Lt. Commander  which is equivalent to that of Major in the  Army may be attained by an officer within a slightly shorter period  of service,  namely, between 10 and 13 years whereas, in the Army and the Air Force, the promotion to the rank of  Major/equivalent is  given only on completion of 13 years of  service. The  slight disparity  in  the  promotion prospects between  the Navy  and the other two Services will not, however, affect the reasonableness of the impugned rule because it  is impossible  to achieve  perfect  arithmetical precision  in   such  matters   where  officers  drawn  from different sources are to be integrated into one common cadre and  a   rule  for   fixing  their  inter  se  seniority  is formulated. Further,  it is seen from the counter-affidavits of Respondents  1 to  3 that  out of  about 160  permanently seconded officers  of the  R &  D  Organisation,  the  large majority are  from the  Army, a  considerable section of the balance is from the Air Force and only less than 10 officers have come from the Navy.      It is  also relevant  to notice in this context that it is specifically provided in rule 4 of the impugned rule that the intake of service officers to fill appointments in the R



& D  Organisation will  ordinarily  be  at  Major/equivalent level. Under  rule 5,  officers in  higher ranks  should  be considered for  permanent  secondment  only  in  exceptional cases and  when such a course is adopted, it will be subject to the  condition that  their seniority  in the  R & D cadre will be fixed as stipulated in rule 16. The incorporation of the  aforesaid  provisions  which  operate  as  a  safeguard against  large   scale  induction   of  officers  above  the substantive rank  of Major/equivalent  further fortifies the conclusion arrived at by us that the adoption of the date of substantive Major/equivalent  as the  criterion  for  fixing inter se  seniority in  the R  & D cadre was logically fair, just and reasonable.      The appellant sought to rely strongly on Regulation 251 of  the   Naval  Ceremonials,   Conditions  of  Service  and Miscellaneous  Regulations,   1954  and  on  the  provisions contained in  the Order  AO102/73. Regulation  251  provides that "the  relative seniority  of officers of the Army, Navy and Air  Force, holding equivalent ranks, who serve together in  an  Inter-service  Organisation  will  be  regulated  as follows." The latter Order is in the following terms:      "(a) Officers holding  equivalent substantive  rank (no           acting  rank)   will  rank   according  to   their           seniority in the substantive rank; and 469      (b)  Officers  holding  acting  rank  will  rank  after           officers holding  corresponding  substantive  rank           and in  relation to  each other,  they  will  rank           according to  their seniority  in the  substantive           rank."      In our  opinion, neither  the Regulation aforementioned nor the  Order, extracted  above, has any application to the present situation.  The R  & D Organisation is not an Inter- service Organisation within the meaning of the expression as used in  the aforementioned  Regulation  and  Order.  It  is predominantly a  civil organisation  headed  by  a  civilian Director-General and having a total strength of about 24,000 employees. The  large majority  of the  personnel working in the R  & D Organisation are civilian scientists who are more than 3,000  in number,  there are  also  about  160  service officers permanently  seconded to  the R & D cadre and about 240 service  officers taken  on tenure  basis.  But,  merely because the  R &  D Organisation  has on  its staff  serving officers from  the Army,  Air Force  and Navy,  it cannot be said to  be an  "Inter-service Organisation" governed by the provisions of  the aforesaid Regulation and Order. The topic dealt with  in the  aforesaid Regulation  and Order  is only "seniority" for  purposes of command, precedence, discipline etc., for  working purposes to be allied in situations where officers from  more than one service operate together in one group as  in times  of war  for carrying  out any particular mission or task.      Another argument advanced by the appellant was that the impugned rule cannot be upheld as valid inasmuch as it is in conflict with  paragraph 7 of the Government of India Office Memorandum No. 9372 Estt(D), Cabinet Secretariat, Department of Personnel, dated July 22, 1972, which is in the following terms:           "7. Transferees:-(i)  The  relative  seniority  of      persons appointed  by transfer to Central Services from      the subordinate  offices of  the Central  Government or      other department shall be determined in accordance with      the order of their selection for such transfer." We see no substance in this contention. The secondment of an officer from his parent service to the R&D is not a transfer



to Central  Service  from  a  subordinate  service  or  from another  department.   Further,  the   impugned  rule  being statutory in  origin, its  validity cannot  be  affected  by reason of  any inconsistency  with the provisions of a prior executive order issued by the Central Government. 470      An allegation  has been  put forward  by the  appellant that "the  letter dated  November 23,  1979 was  a fraud  on rules and  the Constitution,  played by respondent no. 5 who got the  same issued to obtain personal gain by misusing his official position,  leading to  colourable exercise of power by the authority who actually issued that letter". To put it mildly, we find that this is a reckless allegation devoid of any factual basis. We have gone through the files leading up to the  issuance of  the  impugned  rules  and  it  is  seen therefrom that  the matter  has been  processed by different authorities at  different stages  and before the draft rules were ultimately  submitted to  the Government  of India  for approval, they  had been  considered and approved at a joint meeting of the Chiefs of Staff also.      Equally untenable  is the  further plea advanced by the appellant that  since the  R&D is an integrated cadre, there cannot  be   any  further  classification  of  the  officers comprised therein  on the basis of the length of service put in by  them in  their respective  parent services  prior  to their permanent  secondment in  the R&D.  As pointed  out by this Court  in the  decision in  R. S. Makashi v I. M. Menon (supra), it  is a  just  and  wholesome  principle  commonly applied in  such situations  where  persons  from  different sources are  drafted to  serve in  a new  service that their pre-existing length  of service  in  the  parent  department should be  respected and  preserved by  taking the same into account in  determining their  ranking in  the  new  service cadre. Such  a provision does not involve any discrimination violative of Article 16 of the Constitution.      Yet, another argument advanced by the appellant is that the impugned  rule not  having been specifically declared to be retrospective  in operation;  its  provisions  cannot  be applied to  the appellant  inasmuch as  he had been inducted into the  R&D cadre  on October  14, 1971  long prior to the promulgation of  the new  rules. We have already found that, as a  matter of fact, the practice generally followed in the R&D Organisation,  even prior  to the  promulgation  of  the impugned rules,  was to  reckon seniority  with reference to the  date   of  attainment   of  the   rank  of  substantive Major/equivalent. Even  otherwise,  when  a  statutory  rule governing seniority  is issued  in respect of a service, the said rule  would govern  the personnel  in the  service with effect from  the date  of its  promulgation and in so giving effect to  the rule  in  future,  there  is  no  element  of retroactivity  involved.  Of  course,  the  rules  will  not operate to  deprive any  person of promotions already earned in the past, but, for purposes 471 of future  promotions and  seniority in  the department, the principles laid  down in  the impugned rule will necessarily govern all  the personnel  alike.  This  contention  of  the appellant has also to fail.      It was  very strongly  contended by  the appellant that the lateral  induction of  senior service  officers  holding ranks above  the substantive Major/equivalent level operates to deprive the existing R&D personnel of their vested rights to promotions  within the  cadre and  hence, such inductions must be held to be illegal and void. This contention ignores the  fact   that  rule   5  specifically  provides  that  in



exceptional   cases,    officers   above    the   rank    of Major/equivalent may be drafted into the R&D. The contention of the  appellant appears  to us to be based on a fallacious assumption that  the R&D  cadre exists  for the  sake of the personnel working  therein  and  not  for  effectuating  the purpose underlying  its constitution  which is of such vital importance to the Nation’s safety. The Organisation has been formed with  a view  to have  a highly  specialised cadre of technological and  scientific experts  to design and develop military hardware  etc., for the Armed Forces of the country keeping abreast  of the  latest developments and advances in the field  of defence  science. To  effectuate this purpose, such an Organisation by its very nature cannot remain static or  stagnant,   but   has   to   be   constantly   expanding qualitatively and quantitatively. The personnel requirements of the  Organisation are,  therefore, bound  to change  from time to  time and  to meet such changing needs, the services of qualified  experts with  specialised knowledge, skill and experience will  have to  be enlisted  from time  to time. A particular service  officer in  the Army,  Air Force or Navy may be  the best person suited for being placed in charge of a specialised  job newly  taken  on  hand,  and  in  such  a situation the  Organisation must  have the freedom to indent for the  services of  the officer  concerned irrespective of the rank that he may be holding in his parent service. We do not find  it possible to recognise any right in the officers already  working  in  the  R&D  to  object  to  the  lateral induction of  senior officers  under such circumstances. The contention  put   forward  by  the  appellant  that  lateral inductions  into   the  R&D   cadre  constitute  an  illegal deprivation of  the vested rights of persons already working therein and  are  consequently  illegal  and  void,  cannot, therefore, be accepted.      The next point urged by the appellant is that since the impugned rules disturb the previously fixed seniority, it is quasi-judicial in  nature and they ought to have been issued only after 472 giving notice  to all  the affected persons. We have already found that no alteration in the pre-existing policy relating to determination  of seniority  in the  R&D has been brought about by  the impugned  rules. Quite  apart from  that,  the promulgation of  a statutory rule governing seniority is not a  quasi-judicial   function.  It   is  the  exercise  of  a legislative power  and in  respect thereof the principles of natural justice have no application at all.      Detailed facts  pertaining to the history of service of the various  officers impleaded in the appeal as respondents were referred  to by  the appellant during the course of his arguments, and  such of  the  respondents  who  appeared  in person countered  those submissions  by placing  before  us, what, according  to them,  are the correct facts relating to their service  history. The  challenge made by the appellant against the  ranking and seniority of the officers impleaded as respondents  is based  solely on  his contention that the seniority principle  enunciated in  rule  16  is  arbitrary, illegal and  ultra vires  and that,  in any  event, the said principle cannot  be applied to him. The said contention has been found by us to be untenable. Hence, it is not necessary for us to refer to the details regarding the service history of the appellant vis-a-vis those of the service officers who have been impleaded as respondents in the appeal.      In the  light of  our foregoing  discussion, it follows that the  High Court  was perfectly  right in  upholding the validity of the impugned rule and in rejecting the challenge



raised by  the petitioner-appellant  against the selections, inductions and  promotions made  in the  R&D Organisation on the basis of the said rule.      In the course of his submissions before this Court, the appellant put  forward a grievance that, notwithstanding the directions issued  by the  High Court  in its judgment under appeal, he  has not  been given  any posting  or assignment. Counsel appearing  on behalf  of the  Union of India and the Scientific Adviser  to the  Defence Minister  made available for our  perusal  the  files  relating  to  the  appellant’s posting  to   the  DR&D  Laboratory  at  Hyderabad  and  the allotment of  specific assignments  therein to the appellant from time  to time.  Having gone  through the files, we have come to  the conclusion  that there is no factual foundation for the grievance put forward by the appellant, and hence no directions from  this Court  are called for in regard to the said matter. We are purposefully refraining from dwelling in greater detail  on this aspect lest any observations that we may make should prejudicially affect the future 473 service prospects of the appellant. We, however, consider it necessary to observe that the appellant would do well to rid himself of the obsession that all his official superiors are put to  harass or persecute him and open up a new chapter of devoting his  high talents  and  skills  for  advancing  the effectiveness of the R&D Organisation.      The  charges  put  forward  by  the  appellant  in  the Contempt Application (C.M.P. No. 5698 of 1981) and in C.M.P. No. 69  of 1981 filed by the appellant under Section 340(1), Code of  Criminal Procedure  are bereft  of merit  and those applications will accordingly stand dismissed.      In the  result, we  dismiss this  appeal but direct the parties to bear their respective costs. N.V.K.                                     Appeal dismissed. 474