Supreme Court of India
UNION OF INDIA AND ANR.versusMAJ. GEN. DAYANAND KHURANA
- Citation
- 1991 INSC 170
- Decided
- 6 August 1991
- Disposal
- Appeal(s) allowed
- Bench
- K JAGANNATHA SHETTY
Holding
Option B, which gives seniority to Command and Staff stream officers over Staff Only stream officers, was the valid and binding rule, rendering the respondent junior and his claim for preferential promotion untenable.
Summary
The case concerned the promotion of Major General Dayanand Khurana, who was approved for the ‘Staff Only’ stream under the Army’s two‑stream concept. The respondent argued that, despite being in the Staff Only stream, he should be senior to officers promoted in the ‘Command and Staff’ stream and sought a mandamus directing his promotion ahead of them. The Supreme Court examined the Military Secretary’s note of 22 September 1986 and the subsequent adoption of Option B, which gave priority to Command and Staff officers over Staff Only officers, and noted that this option had been approved by the Vice Chief and Chief of Army Staff. The Court held that Option B was the governing rule, making the respondent junior to Command and Staff officers, and that the High Court had mis‑applied Option A. Consequently, the petition for mandamus was dismissed.
Issues considered
- The correct interpretation and legal effect of the Military Secretary’s note of 22 September 1986 and the adoption of Option B under the two‑stream concept.
- Whether the respondent, approved for the Staff Only stream, is senior to officers approved for the Command and Staff stream.
- Whether the High Court erred in directing the Union to promote the respondent ahead of other officers.
- The applicability of the two‑stream promotion policy to the respondent’s case.
Subjects
service lawarmy promotiontwo stream conceptsenioritycommand and staff streamstaff only streammilitary lawpromotion policymandamus
Judgment
A UNION OF INDIA AND ANR.
v.
MAJ. GEN. DAYANAND KHURANA
AUGUST 6, 1991
B [K. JAGANNATHA SHETTY, V. RAMASWAMI AND
YOGESHWAR DAYAL, JJ.]
Service Law-Army Officers-Promotion-Major General to Lt.
General-Adoption of two stream concept viz. 'Command and Staff
Stream· and 'Staff Only· Stream-Fixation of inter-se seniority after
adoption of two stream concept-Officers approved in 'Command and
c Staff Stream of the same batch'-Whether senior to officers approved in
Staff Only' Stream.
On 31st May, 1986 the Government of India approved, in princi-
ple, the 'Two Stream' concept of career management of Army Officers
D 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 Mili-
tary Secretary, Army Headquarters, tne modalities of the concept,
were worked out and it was i11ter-a/ia provided that for the purpose of
seniority, officers of the 'Staff Only' Stream will be j11nior to officers of
E 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
F sequence of promotion is maintained and in that officers are to be
promoted as per their inter-se senioritv, 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
G option 'B' should be adopted. The Military Secretary's note was
approved by Vice Chief of Army Staff and the Chief of Army Staff.
By a communication dated Isl 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
H in the 'Command and stafr Stream will be en-block senior to those
350
U.0.1. v. MAJ. KHURANA 351
otlicers of the same batch approved on the 'Staff Only' Stream. How-
A
ever, an ollicer of an earlier batch approved on the 'Staff Only' Stream
will be senior to an ollicer of subsequent batch approved on the 'Com-
mand and Staff' Stream.
Under the promotion policy of Army every officer is given three
chances for consideration for promotion. The first opportnnity is called B
"fresh cases". The second opportunity is called "first review cases"
and the third opportunity 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. Accord-
c
ingly, 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 disapproved. 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 D
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'.
E
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
1 to all the other Major Generals 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 Divi- F
sion 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: I. The Division Bench of the High Court totally misunder- G
t stood 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 recom-
mended for future and which was accepted both by Vice Chief of Army
Staff as well as Chief of Army Staff. [369H-370E) H
352 SUPREME COURT REPORTS [1991] 3 S.C.R.
2. It is clear from option 'B' which was adopted for working out
A
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
thatthe final review, the first review or fresh stream of 'Staff· Only'
B 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 appointed both for
'Command' as well as 'Staff' vacan'cies whereas the offiCers·W·1i0
1
were
approved only for stream of 'Staff Only' can only be apjJointed to the
vacancies relating to 'Stafl" and cannot be appointed relating to vacan-
c cies for 'Command'. The expression 'same batch' referred to in
paragraph 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 General. [370B I
D 4. Option 'B' has not been reviewed till date. There can be no
doubt that if option 'A' w"s available for preparation of select list the
respondent would have beE,n senior to other persons who were recom- ._
mended 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 I
S. The respondent cannot take advantage for being promoted
earlier than the officers selected for the 'Command and Statr. Siream. [374B J
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2574
F of 1991. . . ·
From the Judgment and Order dated 30.4.1991 of the Delhi High
Court in C.W.P. Nu. 812 of 1991.
Altaf Ahmed, Additional Solicitor General, V.C. Mahajan,
G A.K. Srivastava, S.N. Terdal and Vijay Kumar Verma for the
t
Appellant.
P.C. Jain, Ashim Vachher and Ms. Bharti Anand for the
Respondent.
H The Judgment of the Court was delivered by
U.U.I. v. MAJ. KHURANA [YOGESHWAR DAYAL, J.l 353
YOGESHWAR DAYAL, J. This appeal by Special Leave is A
directed against the judgment of the High Court of Delhi dated 30th
April, 1991 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 B
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
c
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.
D
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 E
policy and procedure adopted in this connection every officer is given
three chances for consideration 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 F
into the next batch. Thereafter, the officer is considered for the last
time for promotion 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 pursuance 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 G
1983 but was not 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 ot Major
General was re-fixed alongwith the officers of 1956 batch as per the
following sequence of selection: H
354 SUPREME COURT REPORTS (1991] 3 S.C.R.
A 1956 Batch:
(a) Final review case of 1954 batch.
(b) First review case of 1955 batch.
B (c) Fresh case of1956 batch.
The respondent while working as Major General was considered
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
c 1957 batch and was approved for selection for 'Staff Only' Stream in
the following sequence of consideration:
"(a) Final review case of 1955 batch.
(b) First review case of 1956 batch.
D
(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 selec-
tion in the Stream of 'Command and Staff'. The respondent was
E 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 oflndia approved, in princi- •
pie, the 'Two Stream' concept of career management of Army Officers
F of the ranks of Major General and Lt. General subject to the following
stipulations:
"(a) The modalities for implementation of 'Two Stream' con-
cept will be worked out by the Army Headquarters and submit-
ted to Government for information. This will include identifica-
G tion of appointments to be manned by officers belonging to the
'Staff Only' Stream. t
(b) The criteria and the QRs formulated by the Army HQrs and
submitted to Government vide Army HQrs Note No. PC-01102/
MS 98 dated 7th February, 1986 will be applied for screening
H officers for promotion to the two streams. It will be ensured that
U.0.1. v. MAJ. KHURANA [YOGESHWAR DAYAL, J.J 355
the QRs prescribed for promotion to the 'Command and Staff A
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 8
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 oriented with the system itself providing
a distinct edge for proven command performance. This orientation, C
especially in higher ranks, has helped to maintain the fighting effi-
ciency 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.
D
Thereafter the modalities for above 'Two Stream Concept' were
worked out by the Army Headquarters and an office order was issued
by Military Secretary's Brancl1, Army Headquarters, dated 9th
September, 1986. The relevant paragraphs are 1 to 3, 5 and 9 which
read a~ under:
E
"1. The upgradations in senior ranks in the Cadre Reviews
have been sanctioned only in the Staff and ERE appoint-
ments. 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 F
proper command tenure before their turn came up for the
next promotion, it is not now feasible in all cases after the
upgradations 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 G
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.
H
356 SUPREME COURT REPORTS [1991] 3 S.C.R.
A 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:
B
(a) 'Command and Staff Stream. Very high calibre officers
based on their merit will be promoted to this Stream. They
will hold command appointments in the Higher rank ~nd
ther~after be given exposure to Staff and ERE appomt-
ments as necessary. They will be eligible for further pro-
motion as per the existing criteria.
c
(b) 'Staff Only' Stream. Officers promoted to this Stream
will hold only staff appointments, in the higher rank and
will proceed on superannuation thereafter. These officers
will not be eligible for further promotion.
D
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
Y. Ujjicers selected for the ·command and Staff Stream,
will be promoted first, be it on a Command or Staff appoint-
ment. Thereafter, officer of the same batch who are selected
for the 'Staff Only' Stream will be promoted. Therefore, for
G the purpose of senioriiy, officers of the 'Staff Only' Stream
will be junior to officers of the 'Commqnd and Staff Stream. t
After placing the officers of the 'Staff Only' Stream in suit-
able appointments,. review selectees of the 'Command and
Staff Stream of the next batch will be promoted.
H Again in adopting the methodology for implementation of the
U.0.1. v. MAJ. KHURANA IYOGESHWAR DAYAL, J.l 357
Two Stream Concept' the following note dated 22nd September, 1986 A
was put up by the Military Secretary to the Chief of the Army Staff.
" l. This note pertains to the sequence of promotion
in respect of officers who are approved for promotion
under the Two Stream concept. B
2. The existing sequence of promotion 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 fight- c
ing efficiency of the Army. 1t 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
D
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 introduced to pro-
mote younger high calibre officers early, so that they get
E
viable tenures in command. 1t is also well knwon 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 pro-
motion 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. F
6. Two options are available for fixing the sequence
of promotion under the 'Stream Concept'. These are
given in subsequent paras with the help of the following
illustrations-
G
i (a) Batches considered at the Screening Board.
(i) Final Review 1956
(ii) First Review 1957
H
358 SUPREME COURT REPORTS [1991] 3 S.C.R.
A (iii) Fresh Cases 1958.
(b) Officers Approved for Promotio1;1
(i) Final Review 1956
B
(aa) Command and Staff Stream -One
(ab) Staff only Stream -One
(ii) First Review-1957
c (aa) Command and Staff Stream -One
(ab) Staff Only Stream -One
(Iii) Fresh Cases-1958
D
(aa) Command and Staff -ten
Stream
(ab) Staff only stream - five
E 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 undermen-
tioned options: ~
(a) Option A. To follow the existing sequence of promotion:
F
"(i) Final review Command and Staff stream-1956
batch.
(ii) Final review Staff only stream-1956 batch.
G (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.
··H
,;
U.0.1. v. MAJ. KHURANA [YOGESHWAR DAYAL, J.] 359
(vi) Fresh Staffonly stream-1958 batch. A
(b) Option B. The sequence of promotion to be:
(i) Final review Command and Staff stream-1956
batch.
B
(ii) First review Command and Staff stream-1957
batch.
(iii) Fresh Command and Staff stream-1958 batch.
·•
(iv) Fin<.l review Staff only stream-1956 batch. C
(v) First review Staff only stream~ 1957 batch.
(vi) Fresh Staff only stream-1958 batch.
(The officers of 1959 batch, approved even in the Com- D
mand and Staff stream, will be promoted after absorb-
ing 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: E
(a) Advantages.
(i) Those approved for promotion as review
cases, will still get th.eir promotion and also have
a reasonably viable t'lnure. The chances of any F
'aoproved' officer retiring without getting his
promotion, are remote.
(ii) The existence of dissatisfied officers amnng
those approved for promotion, is unlikely.
G
1
(b) Disadvantages.
(i) The basic principle behind the introduction of
the two stream concept gets defeated.
(ii) Tenure of Command. Delay in the promo- H
360 SUPREME COURT REPORTS [1991] 3 S.C.R.
tion of fresh cases of the Command and Staff
A
stream, will give them lesser tenure, possibly
affecting their chances of further promotion, thus
having an overall detrimental effect. Ir
(iii) The principle of promoting really high cali-
B bre and the best officers early, is violated.
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
c the existing sequence of promotion is still being main-
tained, but promotion is heing affected in accordance with
the stream in which an officer is being promoted.
10. Since officers of the 'Command and Staff' are of
D higher calibre, promoting them over the 'Staff Only'
stream is logical and has been accepted in principle. Hence
r.
-~
adoption of Option B, is recommended. .... '
t
11. For approval please. Once approved, Ministry of
Defence will be informed accordingly.
E
Sd/-
(A.K. Chatterjee)
Lt. Gen!
Sena Sachiv/
..
Military Secretary
F 22 Sep. 86
COAS
through
VCOAS
G
The above note of the Military Secretary was considered by the
Vice Chief of Army Staff and vide riote dated 24th September, 1986 in
which he has observed as under:
H "1. As I see it, in the ultimate, promotions in 'Command
U.0.l. v. MAJ. KHURANA [YOGESHWAR DAYAL, J.[ 361
and Staff' stream and 'Staff stream should be independent A
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 varying 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 B.
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 promoted to Maj.
Gen. at the age of 51 years or so and to Lt. Gen. at the age
cl~m55~~. -
c
2. In the light of the above, the proposal putforward by the
MS cannot be a long ten:n proposal. However, we have
perhaps no option but to 'aclopt this for the short term, as
the ages at which the officers are currently being approved
for higher promotions are comparatively higher, and there D
would be imbalances if we increasF the differential sud-
denly. MS proposal must, therefore, be seen as a valid one ?
for the transitionary phase only. To that extent, I am in
agreement with his recommendation.
Sd/-
24 Sep. 86 E
COAS
The note of the-Military Secretary alongwith the note of the Vice
Chiefof Army Staff was put up before the Chiefof Army Staff, whD, on
8th October, 1986 approved the note of the Vice Chief of Army Staff. F
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 sub- G
p~ragraph (b) of paragraph 7 the sequence of promotion which was to
be followed. In paragraph 8 the Military Secretary discussed the
advantages and disadvantages 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. H
362 &UPREME COURT REPORTS (1991] 3 S.C.R.
A It is clear that the Vice Chief of Army Staff adopted the proposal
as recommended in the note of Military Secretary in paragraph IO
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 Defence.
.
B 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 SI. 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
c 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 implementation of the 'Two Stream
D Concept'. The letter reads:
"COMMAND AND STAFF STREAM
l. Further to this Headquarters letter No. 00476/MS 9B
dated 09 Sep 86.
E
2. Certain doubts have been expressed by officers regard-
ing the 'Two Stream Concept". This letter seeks to clarify
the important issues with particular reference to:
(a) Necessity of the Stream Concept.
F
(b) Ages of superannuation.
(c) lnter-se seniority.
Necessity
G
3. The upgradations which were sanctioned in ttr.rSecond
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
H not acceptable. Hence the 'Two Stream' Concept was intro-
,/
U.0.I. v. MAJ. KHURANA [YOGESHWAR DAYAL, J.] 363
duced with the due approval of the Government.
A
Ages of Superannuation
""" 4. As per the current rules officers of the 'Staff Only'
Stream are to superannuate one year earlier "than the offi-
cers of the 'Command and Staff' Stream. This rule is applic- B
able 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 c
officers to be promoted to un-specified appointments out-
side 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 tbe Command and D
Staff in the rank of Maj Gen.
"~ 6. Lt. Gens. Each other Arm/Service is authorised two
appointments specific to the Corps in the rank of Lt. Gen.
Notwithstanding the proposal to downgrade the schools of
Instruction, a second appointment in the rank of Lt. Gen. E
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
~
~ 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 F
to officers of the General Cadre. However, if an appoint-
ment 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 yer.rs. If in G
J 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 H
364 SUPREME COURT REPORTS [1991] 3 S.C.R.
General Cadre of a particular batch seniority approved in
A
the 'Command and Staff' Stream will be en-block senior to
those officers of the same batch approved on the 'Staff
Only' Stream. ..
8. Jn so far as non-General Cadre officers are concerned,
B the order of passing out is the determining factor to decide
the inter-se seniority amongst them subject to readjust-
ment 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
c 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 con-
tinue to be senior to officers approved in the 'Staff Only'
D 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
E while promoting officers in either the 'Command and Staff'
Stream or 'Staff Only' Stream, concept of batch seniority as
hithertofore applicable has in all cases been maintained.
11. It is reiterated that the 'Stream Concept' has been
introduced to ensure that the best available talent and
F expertise available in the service is utilised.
12. Content of this letter be widely disseminated.
sd/-
(Vijay Kumar)
G 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
H the writ petition in the High Court (page 306 of the paper book filed on
U.0.I. v. MAJ. KHURANA (YOGESHWAR DAYAL. J.] 365
behalf of the respondents alongwith the counter-affidavit). The letter
dated 29th May, 1984 reads as under:- , ~·- A
"SEQUENCE OF SELECTION FOR SELECTIVE
RANKS
I. Reference MS Branch Liaison Letter No. 1/80 for- B
warded vide this Headquarters Letter No. 00170/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 ihe officers. c
According to this example, the revised sequence of selec-
tion was to be in the following order:-
(a) Final Review - (Say) 1960 Batch
D
(bJ First Review 1961 Batch
':I
(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 E
and A/Col, illustrated by the following examples:
(a) for promoti.>n to the rank of A/ Lt Col
(i) Fresh Sekctees (Say) 1959 Batch
F
(ii) Final Revi 'w 1957 Batch
(iii) First Revie·v 1958 Batch
(b) for promotion to the rank of A/Col and above
366 SUPREME COURT REPORTS [ 1991] 3 S.C.R.
A 4. Jn Feb 1980, it was decided to bring the sequence of
selection in the rank of Al Lt Col in line with the sequence
being followed for promotion to the ranks of A/Col and
above. The changed sequence of selection which is being
presently followed is illustrated by the following examples:
B
(a) Final Review 1961 Batch
(b) First Review 1962 Batch
(c) . Fresh selectees 1963 Batch
c 5. This new sequence was to be applied commencing with
the fresh sel<ectees 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.
D
6. In view of above, para 26 of above mentioned Liaison
Letter may please be treated as cancelled. )·
7. This letter may please be given wide publicity.
E sd/-
(HB Kala)
Col.
Col MS5
for Military Secretary"
F
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
G rank is defined as "all officers who reckon seniority in a
I
particular calender year". This has be~n done for the fol- v
lowing reasons:
(a) Officers are commissioned from IMA in Jan. and Dec.
each year.
H
U.0.1. v. MAJ. KHURANA (YOGESHWAR DAYAL. J.( 367
(b) Officers commissioned from OTS on grant of per- A
manent 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. B
(d) Officers passing prom::ition examinations late also
reckon seniority corresponding to the date of the examina-
tion 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 lst
c
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 D
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: E
"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 recom-
mended in the note dated 22nd September, 1986 that F
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.
G
"as the ages at which the officers are currently being
approved for higher promotions are comparatively
higher".
The Vice Chief of Army Staff then (emphasis added)
recommended that Option 'B' should be regarded as being H
•
368 SUPREME COURT REPORTS [ 1991] 3 S.C.R.
followed "for a rransitionary phase only".
A
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
B use of the expression 'Currently being approved' must lead
to only one conclusion that it referred to those officers who
were being considered for promotion on or about Septem-
ber, 1986. What is of greater importance is that the
VCOAS was emphatic in observing that Option 'B' could
not be favoured as a long term proposal. The Chief of
Army Staff agreed with the recommendation of the Vice
c 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 exist-
ing sequence of promotion which was being followed was
recommended to be continued."
D
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
E letter of the type which was issued on 9th September, 1986,
was ever issued by the Military Secretary's branch.
Whereas the letter of 9th September, 1986, was issued to
all the Command Headquarters, there is no formal docu-
ment which was issued or made known to the officers,
purporting to give effect to Option 'B' suggested by the
F Military Secretary vide his note dated 22nd September,
1986. On the contrary, 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
G 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:-
H "Reverting to the letter of 1st June, 1987, we find that
U.0.1. v. MAJ. KHURANA [YOGESHWAR DAYAL, J.] 369
towards the end of paragraph 9, it has been categorically A
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". B
This is then emphasised by the contents of paragraph 10 of
that v·ery letter which reiterates that:
"The concept of batch seniority as hithertofore ap-
plicable has in all cases been maintained."
c
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 maintained if the fresh cases of 1957 batch are to
be promoted earlier than the petitioner, which is a first D
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 E
shall always be maintained. Notwithstanding the fact that
the fresh cases of 1957 batch have been approved for com-
mand and Staff stream, they would, nevertheless, come in
sequence after the petitioner who belongs to the 1956 batch
though selected in the Staff only Stream. It may happen
that notwithstanding that the petitioner is placed at the F
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 G
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, H
1986.
370 SUPREME COURT REPORTS [1991] 3 S.C.R.
It is in the select panel prepared dated 26th October, 1990 that
A
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
B 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'
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
t~ individual batch of the Major General. In the batch in which the
respondent was considered for promotion included (a) fresh cases of
c 1957, (b) first review case of 1956 and (c) final review cases of 1955. It
is that batch which is being referred to as the 'same batch' and it is
specifically mentioned 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
D 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 Secre-
tary 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 31st May, 1986, noticed by us earlier. In the
E 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 recom-
F mended by Military Secretary in his note dated 22nd September, 1986
and Vice Chief of Army Staff accepted it·and the same was adopted 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'
G stream. But Option 'A' was given up and Option 'B' was recom-
mended 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,-ecommen-
dation of the Military Secretary dated 22nd September, 1986 approved
by the Chief of Army Staff was fully stated in paragraphs 7, 9 and IO of
H the communication dated !st June, 1987. Merely because no reference
U.0.1. v. MAJ. KHURANA (YOGESHWAR DAYAL, J.] 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
B
Government and has been so approved which show that the Govern-
ment has accepted the modalities worked out by the Army Head-
quarters 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 intimated to the Government and that the matter was also discus-
sed with the Government by the Military Secretary. Nothing further c
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
modalties. It is mentioned, 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 D
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 clarified, that as regards the seniority within the same batch is con-
cerned, officers approved on the 'Command and Staff' Stream con-
tinue to be senior to officers approved in the "Staff Only' Stream. It E
was further clarified that "however, an officer of an earlier batch
approvecj on the 'Staff Only' Stream will be senior to an officer of
subsequent batch approved on the 'Command and Staff' Stream. Here
~
y the 'sii'bsequent batch' means the next batch of promotion. The ex-
pression 'same batch' in the communications of 22nd September, 1986
and 1st June, 1987 took colour from the context and not from the F
definition of 'batch''given in paragraph 169 noticed 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 thai the note of the G
-4' Military Secretary dated 22nd September, 1986 is contrary to or at
variance with the letter dated !st 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 Mili-
tary Secretary dated 22nd September, 1986.
H
372 SUPREME COURT REPORTS [1991) 3 S.C.R.
A 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 comprising of-(a) Final Review of 1952, (b) First
Review of 1953 and (c) Fresh 1954 and the officers who were selected
B 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 called 1957 batch comprising (a) Final
Review of 1955, (b) First Review of 1956 and (c) Fresh 1957. Since the
respondent was approved only for 'Staff Only' Stream, though he was
first review case of 1956, he was placed below the officers who were
c 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 31st May,
1991, the respondent could not take advantage of his approved
promotion.
D
The note dated 22nd September, 1986 amending the sequence of
promotion and after giving advantage and disadvantages of the two )·
options i.e. Option 'A' and Option 'B' had, thereafter, recommended
that Option 'B' should be adopted.
E It may not be accurate for the High Court to apply Option 'A'
wliich 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.
F 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 l:Jatch were also approved for promotion to the
G rank of Lt. General in which Major General V.K. Singh and Major
General Harvans 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 August, 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
H which date Major General Gaur was approved in 'Staff Only' Stream
U.O.l. vc MAJ. KHURANA [YOGESHWAR DAYAL, J.[ 373
and 26th October, 1988 no promotions were made to the rank of Lt. A
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 forth-
with. 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
B
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 Harvans 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 C
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 Gauron 26th
October, 1988 clearly indicates that he was to be promoted ahead of D
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 of1954 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 E
the date of substantive promotion and not by the date, the offi~er picks
up his acting promotion. In many cases officers due to various
administrative reasons, who are 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 F
!Jractised 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 appointment in acting rank
alongwith Major General Gaur. It was averred thrt it has been con- G
veniently 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 H
374 SUPREME COURT REPORTS [1991] 3 S.C.R.
A Gaur was given substantive rank w.e.f. 1.11.1988 wh~reas Lt. General
Harvans Singh and Lt. General V.K. Singh, both seniors to Lt.
General Gaur, were given substantive promotion w.e.f. 27th October,
1988.
We find that in view o[ this reply the petitioner cannot take
B
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
C their own costs throughout.
T.N.A. Appeal allowed.
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