Holding

The review petition is dismissed as there is no material error or miscarriage of justice in the earlier order.

Summary

The petitioners, two army colonels, contested the appointment to the sole brigadier post heading Military Farms. The High Court directed the Defence Department to select the best officer, finding both equal in merit but recommending the senior colonel (the respondent) for promotion. The Supreme Court later allowed the petitioner to become brigadier, emphasizing that the 1964 policy could be altered by the Government. The Government subsequently abandoned the 1964 policy and, through an affidavit, indicated a new uniform policy was being formulated, appointing the respondent as brigadier. The petitioner filed a review petition alleging miscarriage of justice, but the Court held that a review is permissible only on material error manifest on the face of the order, which was absent. Citing *Chandra Kanta v. Sheikh Habib*, the Court dismissed the review, directing the Government to appoint the respondent without further delay.

Issues considered

The criteria for granting a review of a Supreme Court judgment
Whether the 1964 policy on military promotions created a vested right for the petitioner
Whether the Government's abandonment of the 1964 policy and selection based on seniority is arbitrary
Whether the petitioner was denied a fair hearing in the review proceedings

Subjects

review of judgmentmilitary promotionseniority vs meritgovernment policyarbitrarinessconstitutional lawadministrative law

Judgment

''"

168

COL. AVTAR SINGH SEKHON

v.

UNION OF INDIA

July, 31, 1980.
B
[V. R. KRISHNA IYER AND 0. CHINNAPPA REDDY, JJ.)
Review-When the! Court 1~ould revi~w its earlier judgment.
Apprehending that the Government was considering a change of policy
framed in 1964 for· choosing an officer 'to become brigadier in charge of
military farms the petitioner moved tpe High Court for tile issue of a writ.
On directions from the High Court to. the Defence Department to
select the best man for the post the Department reported that the petitioner
and respondent were equal in merit, but since the respondent in the review
petition was senior as colonel, he be chosen for the post. After considering
the legal import of the 1964 policy the High Court allowed the petitioner
to become a brigadier. The respondent's petition for special leave was
granted by this Court. The Central Government was given one month's
D time to evolve its policy, if necessary. That not having been done the
respondent moved this Court again as to the non-compliance and for
consequential orders. On May 9, 1980 the Court passed orders that the
respondent be appointed as brigadier. The petitioner sought review of that
order.
HELD: A review is not a routine procedure. An earlier order cannot
be reviewed unless the· Court is satisfied that material error manifest on the
face of the order undermines its soundne>s or results in miscarriage· of
justice. A review· of a judgment is a serious step and resort to it is proper
only where a glaring omission or patent mistake or like grave error has
crept in earlier by judicial fallibility. In the instant case the relief of review
is not justified. [173G-H]
.'F Chandra Kanta v. Sheikh Habib [1975] 3 SCR 933 at 933-34, followed.
From the affidavits filed by the Government in· the Court on May 9,
1980 it is obvious that the Government had decided on abandoning the 1964
policy and was actually pursuing steps to fashion a new policy. Therefore,
no rights on the old basis, if any, can enure to the benefit of the petitioner
especially because he relied on his third rank in a selection for one vacancy
made in 1971. That apart, a selection of 1979 turned out in favour of the
respondent. The petitioner is postponed but by a few months and the
respondent has been far senior as colonel and will retire in August, 1980.
The conspectus of circumstances hardly persuades the Court that there is
injustice in the order of May 7th or May 9th. [173D-E]
CIVIL APPELLATE JURISDICTION: Review Petition No. 104 of 1980.
'H Review Petition against the Judgment and Order of this Hon'ble
Court dated 7-5-1980 and 9-5-1980 in CMP. No. 1219/80.
Kapil'Siba1l and R. S. Sodhi for the Petitioner.
COL. AVTAR SINGH v. UNION (Krishna Iyer, !.) 169

R.K. Garg and P.C. Bhartari for Respondent No. 3. A
The Order of the Court was delivered by
KRISHNA IYER, J.-A simple petition to review an earlier
judgment of this bench has, because of the intervening summer
vacati~n. passed through vicissitudes, gathered episodes and been
blown up into an exciting chronicle of unsavoury events, injecting more B
passion than. reason, more heat than light, into the forensic proceedings.
We kept completely clear of the unhappy imputations and confined
counsel to the merits of the review proceeding before us. 'Justice
discards party, friendship, and kindred and is therefore represented as
biind'. This objectivity generated clarity and. brevity, thanks, of
course, to cooperation by counsel on both sides. c
The facts are few although the fight is furious and the parties are
army officers. It is a pity that careerism makes camaraderie a casualty
in a profession where self-sacrifice for a higher cause is the dedication.
Without moralising, we will state the grievance of the petitioner and
examine whether our earlier order deserves reconsideration or reversal. D
Judges have a vested interest not in their judgments but in the justice
of the cause and where the former is in error must unhesitatingly suffer
surgery so that no curial wrong is done and right, to the best of our
lights, is done.
Two colonels in the army have one post of brigadier to which E
either may aspire and become Director of Military Farms. In this
musical chair scenario the (review) petitioner apprehending that the
Central Government was considering a change of policy departing
from the 1964 policy, in choosing the officer to become brigadier in
charge of the military farms, moved the High Court for a writ to issue
to Government against any such new policy. The High Court, before F.
it finally disposed of the case, had directed the Defence Department
to select the best colonel to be promoted as brigadier and Farm
Director. The selection so made was to be without prejudice to the
result of the writ petition but it is significant that the report made was
that both the contesting colonels were equal in merit (to run cattle
farms?) but the respondent (in the review petition) being senior as G
colonel may be chosen for the post. Merit being equal, seniority tilts
the scales-fair enough. Eventually, the High Court considered the
legal import of the 1964 policy and allowed the writ petition which
meant that the (review) petitioner would become the brigadier. The
respondent colonel rushed to this court for special leave to appeal
which was granted, and, after hearing both sides and the learned H
Attorney General for the Central Government, this .court passed a
final order. We see no reason, whatever to depart from that judgment
170 SUPREME COURT REPORTS [1981] 1 S.C.R_

A and no basic flaw therein has been pointed out either. It was plainly
laid down that no finality nor infallibility attached to the '1964 policy'
and 'the Central Government was free to ·revise or reverse that
policy 'provided it acts justly and fairly'. A month's time to evolve
a new policy, if felt necessary, was granted to Government and the.·
learned Attorney General agreed to abide by this direction.
B
-Three factors need more than passing notice. The Defence
Ministry - the file had been shown to us at the hearing of the appeal
and there is material in the pleading also ..,. has been considering.
revision of the 1964 policy and the court has upheld its full freedom
to do so.. Secondly, the post of brigadier fell vacant in 1979 and, on
c the direction of the High Court, an evaluation of the claims of both-
was mada by the Selection Panel on an updated basis. In this process.
both were adjudged equal and the senior (the respondent in the review
petition) was recommended for appointment. Thus, it is obvious thar
had the Defence Ministry been permirted to choose, the respondent
would have enjoyed the post. There is nothing outrageous in picking
D the senior when both are otherwise equal. There is a human side t0<
it also. The senior was to retire in a few months and the other
hopefully would have his innings.
The third circumstance which should not be overlooked is that this
court did give the go-by to the High Court's finding:
E "We make it further clear that the Central Government will
be free to act subject to the directions we have given above and
untrammelled by the reasoning or the direction given by the High
Court."
Indeed, we had, in the judgment, emphatically upheld the Central
Government's plenary power to formulate or modify military policy.
F Wars are won or lost not through writs of courts but by the best
strategy. But even amidst the clash of arms the laws shall not ht>
silent, so much so, the constitutional mandate not to act arbitrarily
was binding on the Defence Ministry.
The selection on which the review petitioner stakes his claim is
G of 1971 vintage and the vacancy to be filled was of the year 1979.
The respondent, therefore, contested the petitioner's 1971 credentials
as obsolete and even obscurantist. We need not re-open that issue
except to state that in the final order, passed after hearing both sides,
the inviolability of the 1964 policy had been nailed. A closer reading
of the 1964 policy statement reveals under it seniority for an earlier
H promotee is conferred in the substantive rank provided he has been
earlier included in the approved list. Such a situation has not arisen
here at all. Be .that as it m~y, the final direction of the court appea~
COL. AVTAR SINGH v. UNION (Krishna Iyer. /.) 171

did permit the Central Government to evolve its policy within om.• A
month. This not having .been done. the respondent drew the attention
of the court to the non-compliance and for consequential orders. At
the hearing of that petition (the so-called contempt petition) the
respondent through Shri R. K. Garg and the Central Government
through the learned Attorney General were heard. Shri Kapil for
the petitioner (review) intervened and was heard. But we must fairly B
state that his client had not been given formal notice and perhaps ht>
had a grievance of not having been heard adequately. We cannot

L_ fault him for filing a review petition but hasten to clarify that wr
wholly desist from making any observations on the happenings set
out in the respondent's papers put into court. Nor did we permit
Shri Garg to refer to tho11e matters since they were, in our view, c
extraneous to the merits of the review petition and related to another
proceeding pending before another bench. We must record that Shri
Kapif has with youthful vigour and clarity of advocacy presented his
case fairly. The gravamen of his grievance is merely that he should
have been heard if a direction to his prejudice was to be made. We
D
are mindful of ~he force in this plea and cannot dismiss it merely
because the sands of time are running out against the respondent
whose approaching retirement will make his legal success, if any, a
phyrrhic yictory and, worse a tragic irony. Of course, that, by the
way, is the life-style of most litigative triumphs.
Shri Garg, in his fighting submissions, complained how his client E
had been baulked of the fruits of success by dubious proceedings,
but, while we are unconcerned about those anecdote11, we do consider
that there is justice in his plea that he has been chosen by the panel
in 1979, that a bare selection (not actual promotion) of 1971 on which
the petitioner relies, is ·too stale to be relevant, that the Central
Government itself had filed an affidavit in this court stating that they
had appointed his client and that neither Jaw nor justice 1mpported
any interference with this court's direction of 7-5-1980 to promote the -
respondent as Brigadier.
Let us notice the substance of this Court's orders dated 7•th and
9th May, 1980 which are now sought to be reviewed. On May 7, G
1980, the following direction was given following on the
non-compliance by the Central Government with the earlier judgment :
"This Court had given a direction that the policy of the
Defence Ministry may be finalised within one month from the
date of the order. That period has expired on 26th April 1980
Nevertheless, no policy decision has yet been taken nor even H
has an application been made for extension of time from this
Court. We consider that this conduct is far from satisfactory.
12--646 S.C. India/80
172 SUPREME 'COURT REPORTS [1981] 1 S.C.R.

A However, there are two courses open, out of which one must be
adopted in the course of couple of days. The Respondent may
appoint the petitioner, Director, Military Farm (Brigadier) until
he retires, which event, we are told, happens within about four
months. Alternatively, the Union of India in the Defence
Ministry will take its policy decision within two days and report
B to this Court about it so that further directions may be issued
on 9-5-1980 regarding further implementation of the policy
consistent with the rights of the petitioner. Post on 9-5-1980."
This order of 7th May, in sequence and consequence, flows out ___ ___....
of the judgment of March 26, 1980 made after all parties were fully
c heard. Two notable circumstances in that order, as earlier highlighted,
are /these. Firstly, Government had freedom to formulate a new
policy, but it had to be done within one month as accepted· by the
Attorney General. Secondly, Government was freed from the High
Court's insistence on the 1964 statement. If this bondage was not
broken, this court could not have directed the Defence ;Ministry to
D make any new policy it thought fit. A third fact, undisputed, also
emerged from the case, viz., that in 1979 on the High Court's direction
fresh evaluation of promotional merit gave the respondent (review)
an edge over the petitioner on the score of seniority - not, surely,
an extraneous factor. Necessarily, therefore, this Court in its May 7th
order gave effect to the earlier judgment virtually with 11he consem of
E the Central Government. This is made more manifest in para 5 of
the Government's affidavit put in on May 9, 1980. Paragraphs 4
and 5 of that affidivit merit excerption :
"I state that the Government have taken steps for and are
in the process of finalising a policy applicable to the officer cadre
F in the Army in all the Arms (Infantry, Artillery, Armoured Corps)
and Services (Army Supply Corps, Army Ordnance Service etc.
including the Department of Military farms). The chief 9f the
Army Staff has already appointed a High Power study Team
comprising of Senior Army Officers and headed by an Army
Commander to study all aspects of selection and other career
G management procedures now in vogue in the Army including
promotion procedures. The Study Team has already made
considerable progress in their deliberations. After the Study
Team submits its Report, the matter will have to be considered
by the Army Commanders and later examined by the Army
Headquarters and the Government. The above process is likely
H to take some more time. It will not be appropriate to evolve a
separate policy for a small Directorate like the Directorate of
Military Farms alone. The entire Officer Cadre of the Army in
COL. AVTAR SINGH v. UNION (Krishna Iyer, J.) . 1? 3

the Army like Infantry, Artillery, Armoured Corps and Services A
like Army Supply Corps, Army Ordnance. Service etc. will have
to be covered by one uniform policy as is existing at present.
In the circumstances and in compliance with this Hon'ble
Court's directions/orders dated 26-3-1980 and 7-5-1980, the
Government are willing to abide by this Hon'ble Court's directions B
given on 7-5-1980. G-0vernment, however, prays that this Hon'ble
Court may be pleased to direct that the promotion of the petitioner
to the rank of Brigadier will be without prejudice to the policy
which may ultimately be decided by the Government and subject
further to the condition that if under the policy which .may be
evolved, the petitioner is not eligible for promotion to the rank c
of Brigadier, he would have no right to continue in the said
rank."
It is obvious from this affidavit that Government had decided on
abandoning the 1964 policy and was actively pursuing steps to fashion
a new policy. So no rights on the old basis, if any, (though we see D
none) can enure to the benefit of the petitioner especially because he
relies on his 3rd rank in a selection for one vacancy made in 1971.
That apart, a selection of 1979 turned out in favour of the respondent.
And, to come to think of it all, the petitioner is postponed but by a
few months and the respondent has been far senior as colonel and
·Will retire in August, 1980. The conspectus of circumstances hardly ·E
......;.,-· persuades us that there is injustice in the order of May 7th or May 9th.
We have sedulously followed the lucid submissions of Shri Kapil
for review of the earlier direction and are clear in our conscience that
neither law nor 1ustice has suffered on account of the impugned
orders.
F
A review is not a routine procedure. Here we resolved to hear
Shri Kapil at length to remove any feeling that the party has been
hurt without being heard. But we cannot review our earlier order
unless satisfied that material error, manifest on the face of the order,
undermines its soundness or resuJ:ts in miscarriage of justice. In Sow
Chandra Kanta and Anr. v. Sheik Habib( 1) this Court observed: G

"A review of a judgment is a serious step and reluctant
resort to it is proper only where a glaring omis,sion or patent
mistake or like grave error has crept in earlier by judicial
fallibility ..... The present stage is not a virgin ground but review
of an earlier order which has the normal feature of final,ty.': H

(I) (1975] 3 S.C.R. 933 at 933-34,
174 SUPREME COURT REPORTS [1981] 1 S.C.R.
,
A By this test and even after re-reading the 1964 policy statement
for prima facie satisfying ourselves about vesting of valuable rights
we are not satisfied that the relief of review is justified. The basics
of this case are the choice of a brigadier is out of two colonels, the
petitioner and the respondent. They are of equal merit as asseised
in 1979. The latter is far ahead in seniority and the Central
B Government has agreed to appoint him as brigadier. He has a period
of a month or so to go for retirement when the vacancy will be
filled in, probably by the petitioner. The claim of the petitioner is
based largely on the 1964 policy statement which the Central
Government has decided to give up. Moreover, the claim itself is
based upon an ancient selection made a decade ago when the vacancy
c was only one and the petitioner was 3rd iii rank. Moreover, whether
the 1964 policy statement confers a right merely by inclusion in the
approved list where no appointment has taken place as brigadier and
the question of substantive rank has not arisen, is, to say the least,
moot.
D
These are sufficient for us to repel the relief of review. Of course,
the petitioner has effectively postponed the appointment of the
respondent by getting a stay order. We make no comments whate'ver
on the chain of events but permit ourselves the observation that the
.implementation of the final order which has been passed by this Court
E has been further delayed by the stay thereof by a learned single
judge of this Court during the vacation; and so, we mention this only ·--,.
to justify our imperative direction that no more delay shall take place
and the Central Government shall put the respondent in his position
as Brigadier in charge of the Military Farms by tomorrow. Law is
_Al
highly allergic to procrastination. We refuse the review, but in the
F circumstances without costs and hope that the chapter of unfortunate
events referred to in the affidavits will be treated as closed in a spirit
of mutual goodwill. It has been brought to our notice that there is
a direction by the vacation judge that the extra salary that the
respondent may be entitled to in the event of success should be
deposited into court by the Central Government and that has been
G done. The respondent will draw that sum from court. But there
will be no direction that the petitioner should refund the extra salary, -+·
if any, drawn by him because, after all, he must have functioned
pending orders of this Court, as Director of Military Farms and so
we do not think it just. to make any order for refund against the
petitioner.
H
P.B.R Review petition dismiss~d.