Holding

The High Court erred in its understanding of the vacancy position, so its direction to promote the respondent by creating a vacancy is unsustainable, though its refusal to expunge the adverse entries was correct.

Summary

Brigadier Avtar Singh (Respondent) had adverse remarks recorded in his Annual Confidential Reports (ACRs) for 1990-91 and 1991-92, which were partially expunged on appeal. He was empanelled for promotion to Major General in April 1995 but, due to the absence of a vacancy, retired as a Brigadier in December 1995. He filed a writ petition seeking removal of the remaining adverse entries and a direction for his promotion; the Jammu & Kashmir High Court rejected the expungement claim but directed the government to promote him by creating a vacancy. The Union of India appealed, contending that the High Court misinterpreted the vacancy position. The Supreme Court held that the High Court had indeed misunderstood the vacancy calculations and therefore its order to create a post for the respondent could not be sustained, while affirming the High Court’s decision to reject the expungement of the adverse entries. Consequently, the appeal was allowed and the Special Leave Petition dismissed.

Issues considered

Whether the High Court correctly ascertained the vacancy position for promotion to the rank of Major General.
Whether the adverse entries in the respondent's Annual Confidential Reports should be expunged.
Whether a court can direct the creation of a vacancy for the purpose of promotion.

Subjects

promotionarmed forcesannual confidential reportvacancyservice lawmilitary promotionsjudicial reviewsenioritydisability

Judgment

UNION OF INDIA AND ORS. A
v.
AVTAR SINGH AND ORS.

AUGUST 29, 2001

[S. RAJENDRA BABU AND SHIVARAJ V. PATIL, JJ.] B

Service Law :

Armed Forces-Promotion from Brigadier to Major General-Adverse
remarks in annual confidential reports-Officer eligible but not promoted due C
to non-availability of vacancies-Adverse remarks sustained by High Court
since respondent was empanelled for promotion-Direction by High Court to
promote respondent by creating a post-Maintainability of-Held, expunging
of adverse remarks rightly rejected by High Court-No interference called
for-Vacancy position in the rank of Major General not properly understood D
by High Court-Hence, its direction regarding promotion not sustainable.

Respondent 2 gave certain adverse remarks in the annual confidential
report of Respondent l, a Brigadier in the Army, for the period between
September 1990 to August 1991. As a result of the said remarks, he was not
considered for promotion to the rank of Major General. On appeal, the Chief E
of Army Staff expunged the adverse entries from the confidential report.
Subsequently, respondent 2 gave another confidential report with adverse
remarks for the period between September 1991 to June 1992 and on appeal,
the Chief of Army Staff expunged only certain adverse remarks from the
confidential report. Respondent l, being eligible, was selected for the
promotion to rank of Major General by the Selection Board of the Army in F
April 1995. However, he was not actually promoted to the rank as there were
no vacancies. He filed a Writ Petition before High Court in April 1995 on
two grounds-(l) for removal of adverse entries made in the confidential
report of the latter period and (2) for promotion to the rank of Major General
as he was due to retire as Brigadier in December 1995. The High Court did G
not consider fit to expunge the adverse entries in the confidential report of
Respondent l since he was already empanelled for promotion to the rank of
Major General. However, the High Court, after examining various statements
and records relating to the number of vacancies in the rank of Major General
during the relevant period, came to a finding that due to misinterpretation
303
H
304 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A of Government communications relating to allocation of vacancies, though
there was one vacancy in the rank available since December 1994, Respondent
I was not promoted solely with the object of depriving him the promotion.
Thus the High Court directed the appellants to promote Respondent 1 to the
rank of Major General against any available vacancy in the Army or to create
a vacancy if none exists and to keep him in service until he is actually promoted
B as Major General. Hence the appeal by Union of India. Special Leave Petition
has been filed by Respondent 1.

Allowing the appeal and dismissing the Special Leave Petition, the Court

HELD: I.I. The High Court has not understood the vacancy position
C in the Army correctly and therefore the directions given by the High Court
for promoting Respondent 1 cannot be sustained. [309-D)

1.2. With regard to claim by Respondent 1 for removal of adverse
entries made in the confidential reports, the High Court rightly rejected the
same as the said adverse entries did not affect Respondent 1's promotion
D chances. Hence no interference is called for. [309-E)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7698 of
1996.

From the Judgment and Order dated 19.4.96 of the Jammu & Kashmir
E High Court in W.P. No. 1005 of 1995.
WITH
Special Leave Petition (C) No. 20345/1996.

Mukul Rohtagi, Additional Solicitor General, W.A. Qadri R.N. Verma,
C.Radhakrishna, B.V. Bairam Das and Anil Katiyar for the appellants and
F
Respondent in SLP (C) No. 20345/96.

K.V. Vishwanathan, Atul Kumar Sinha and K.V. Venkataraman, for
the Respondents in C.A. No. 7698/96 and Petitioner in SLP(C) No. 20345/
96.
G The Judgment of the Court was delivered by

RAJENDRA BABU, J. Respondent No. I was holding a rank of
Brigadier in Indian Army having been commissioned in the service on June
13, 1963 in the Regiment of Artillery. In the 1965 Indo-Pak war, he was
fighting in a theatre on the western front in which he sustained serious injuries
H to various parts of his body and ultimately his right arm and the left index
U.0.1. v. AVTAR SINGH [RAJENDRA BABU, J.] 305
finger had to be amputated later on. By international medical standards, he A
was classified as having 90% disability. But on account of the policy adopted
by the Government of India all officers who had sustained such injuries or
battle casualty officers should be retained in service to avoid demoralisation
... by sending out young disabled officers from service. However, that was only
a poor consolation for no other relaxation was provided to them for promotion B
in service or compensation for the disability. Such officers had to compete

-
with able-bodied officers to get their future promotions notwithstanding of
the injuries sustained by them.

For the period between September 1990 to August 1991, ACRs of
respondent No. I were recorded by respondent No.2 but the adverse comments C
made by him and non-approval of the promotion to the rank of Major General
in the selection board to be held in October 1994 was set aside on appeal and
for another period from September 1991 to June 1992, the Chief of the Army
Staff granted a limited relief of expunging of those entries which had 5-point
awarded in the relevant column by the intimating officer and there is no need
to grant any further interview in regard to the same and thus he became D
eligible for consideration to the post of Major General. He filed a writ petition
challenging the adverse entries made in 'the ACRs for the latter period.

In that writ petition, second grievance made by respondent No.I is that
in the selection board held in April 1995, he was empanelled but he was not
actually or physically promoted to the rank of Major General and he was due E
to retire on December 31, 1995 in the rank of Brigadier. In other words,
inasmuch as he has been approved for promotion to the rank of Major General
in the second selection board along with another officer who picked up the
rank of Major General by the time the writ petition was filed, respondent
No. I was not able to do so as no vacancy of Major General w.as available in p
the AOC and, therefore, he had to retire as a Brigadier on December 31, 1995
without availing the benefits and consequences of his approval for promotion
as Major General. However, it must be noticed that an interim order was
passed by the High Court on 19.12.1993 that respondent No. I shall not retire
from service despite his impending superannuation which stood affirmed on
appeal subject to slight modification in regard to posting. The resultant position G
is that respondent No. I continued to be in service even though in the rank
of Brigadier despite having reached the age of superannuation in that rank on
December 31, 1995. However, the High Court examined the original ACRs
of the two relevant years as had been recorded by respondent No.2 and
noticed that in respect of the first ACRs all the entries recorded by him stood H
306 SUPREME COURT REPORTS (2001] SUPP. 2 S.C.R.

A expunged and insofar as the second entry is concerned, he had been graded
by giving him the three marks. On this aspect of the matter, the learned
Single Judge of the High Court stated that the.superior officers have found
respondent No. I to be of outstanding and exceptional eminence and did not
approve the attitude of respondent No.2 in under-rating and under-mining
him and grading him lower in ACRs. However, the High Court found that the
..
B ACRs recorded by respondent No.2 would not niean that they are subjective,
biased and prejudicial assessment and the Chief of the Army Staff gave
limited relief to him regarding the second ACR with the result that the entries
in the second ACR came to be considered by the selection board when
respondent No. I was first considered for promotion in October 1994. However,
-
C ultimately, the High Court found that on account of the fact thqt respondent
No.l's name stood approved in April, 1995, he was not inclined to disturb .the
finding of the selection board held in October 1994 merely on the ground
that respondent No.l's second ACR was before the selection board entries
wherein are recorded by respondent No.2 though not fully supporting him
and in spite of which his case was considered and he was approved for
D empanelment. In that view of the matter, to disturb the proceedings in which
four other officers had been approved would cause great prejudice and hardship
to them especially when respondent No. I himself has now been approved for
new promotion.

E In that background, the learned Single Judge did not consider it fit to
disturb the AC Rs recorded. Against that part of the order, a separate SLP has
been filed by respondent No. I in SLP(C) No.20345/96, on which notice has
been issued and tagged on to the present appeal. Jn view of the fact the
notings made in ACRS have not affected him and as rightly noticed by the
High Court, he having been held to be fit for promotion to the rank of Major
F General, we do not think it is necessary to open up the old wounds to examine
as to how they occurred as the same would also cause disturbance to many
other events that have taken place. In that view of the matter, we decline to
exercise our jurisdiction under Article 136 of the Constitution and refuse to
grant leave to appeal and reject this SLP.

G So far as the second aspect of the matter is concerned, the High Court
rightly noticed that the promotion of respondent No. I as Major General
would depend on the availability of the vacancies before December 31, 1995
when he was to retire on superannuation in the rank of Brigadier. If respondent
No.I was promoted as Major General before December 31, 1995 his service
H tenure would have been extended by two more years. Therefore, the entire
..
U.0.1. v. AVT AR SINGH [RAJENDRA BABU, J.] 307
case turns upon the question whether any vacancy was available as on the A
date he retired as 'Brigadier. The High Court, on this aspect of the matter,
embarked upon an investigation as to the number of vacancies of Major
Generals that were available in the various branches of the Army. After
examining the various statements and records that had been produced .before
the High Court took the view that there was some misunderstanding on the
part of the. officers in the interpretation _of the communication dated August B
25, 1992 read with the Government of India, Ministry ofDefence's resolution
dated 27.3.199 I. According to the learned Single Judge the two matters
adverted in the two communications pertain to different areas and both were
independent of each other, mixing up of the membership of SSDC and linking
it with the unspecified vacancy as created by the communication dated C
25.8.1992 was an act which unnecessarily deprived the AOC of one vacancy
and created confusion regarding the actual number of vacancies available in
the AOC. It is because of this misunderstanding respondent No. I became a
victim. Respondent No. I averred that on March 27, 1991, SSDC was created
by the Government of India and only a Major General from Army Ordinance
Corp had remained its member. If it has been an unspecified vacancy this D
appointment would have been shared by a Major General by any other Corp
Arms particularly ASC, who has to share in unspecified vacancy was with
AOC upto October/November, 1993. That is with effect from December 1,
1994, this vacancy had to be released in favour of the AOC but till date the
same has not been done with the object of depriving him of that chance. They E
have pointed out that the AOC remained without unspecified vacancy when
a
its turn came on 31.12. I 994 and such appointment had been held by Major
G~neral of Engineers without any right or claim on the same. This stand has
been stoutly denied by the appellants before us. It has been pointed that the
. Union of India had produced the posit~on as available in August 1992 and as
on the date when the matter was dealt with by the High Court which are as F
under:

August 1992 As on Date

I. Prem Sagar, I. Maj. Genl. B.N. Rao
ADG Org. Army HQ. ADG OS (CN&A), Army HQ G
[UNSPECIFIED] [SPECIFIED]
2. Maj. Genl. S.K. Bhatnagar 2. Maj. Genl. T.J.S.Gill
ADG OS (CN&A), Army HQ ADG OS (CV), Army HQ
[SPECIFIED] [SPECIFIED]
H
308 SUPREME COURT REPORTS (2001] SUPP. 2 S.C.R.

A 3. Maj. Genl. Mohinder Singh 3. Maj. Genl. Y.S. Teja
ADG OS (CV), Army HQ ADG OS (TS) [SPECIFIED]
[SPECIFIED] Army HQ
4. Maj. Genl. S.K.Chopra 4. Maj. Genl. MS Bhinder
ADG OS (TS) [SPECIFIED] MG AOC, Southern Command
B Army HQ [SPECIFIED]
5. Maj. Genl. S. Verma 5. Maj. Genl.DD Ghoshal
MG AOC, Southern Command MG AOC, Eastern Command
[SPECIFIED] [SPECIFIED]
6. Maj. Genl. G. Mitra 6. Maj. Genl. R. Mehta
c MG AOC, Eastern Command MG AOC, Western Command
[SPECIFIED] [SPECIFIED]
7. Maj. Genl. S. Talwar 7. Maj. Genl. V.K. Sareen
MG AOC, Western Command MG AOC, Central Command
[SPECIFIED] [SPECIFIED]
D
8. Maj. Genl. V.L. Vohra, MG
AOC, Northern Command
[SPECIFIED]
9. Maj. Genl.Vijay Lall, Member,
SSSDC [UNSPECIFIED]
E
IO. Maj.Gen. AC Sharma, Dy.
Comdt. & Cl, CMM
[SPECIFIED]
The vacancies in the rank of Major General among various Arms/
F Services is approved by the Chief of the Army Staff like cadre strength of
each arms/service, combat and service requirements or conditions. Deputational
appointments/ex-cadre appointments are, therefore, calculated against the
authorisation made for each service in order that rational allocation of vacancies
are made. In addition, the Army Officers while on ex-cadre post or on
deputation continue to hold alternative appointment in the Army Cadre, which
G is directly related to their age of retirement and they have to be absorbed in
Army appointment immediately on reversion. As per the allocation of
vacancies authorised by the Army Headquarter letter dated August 25, 1992,
one unspecified appointment rotates alternatively between ASO and AOC
and because of organisational interest and suitability, one specified appointment
H of Major General, namely, members of SSDC was elected in July 1991. This
U.0.1. v. AVT AR SINGH [RAJENDRA BABU, J.] 309
organisation has been created temporarily for specific purpose and would A
cease to be effective on 31.3 .1996. Thus, the vacancy of the Member at SSC
was held by Major General Vijay Lall, which was unspecified vacancy
authorised for AOC and no other unspecified vacancy was due for AOC and,
therefore, in terms of para 7(a) of the Army HQ letter dated 25.8.1992 which
specifically provided the first year with effect from the date of issue of this B
letter will be treated as organisation period to cater for adopting the changes
envisaged due to implementation of new allotments. Thereafter, the additional
unspecified vacancy held as on 25.8.1992 by Major General Prem Sagar
ceased to exist on 26.11.1993. The said organisation period itself ended on
26.11.1993. Thereafter AOC continued to hold one unspecified vacancy, that
is, Member, SSDC, as authorised in Army HQ letter dated 25.8.1992. Thus C
the High Court in the matter of calculation added a vacancy which was not
available and, therefore, gave a direction to the appellants to promote
respondent No. I to the rank of Major General against any available vacancy
in the Army notwithstanding the fact that he belongs to AOC or to create a
vacancy if none exists and to keep in service until he is promoted as Major
General and actually picks up the rank. D
All these directions could have been given only if vacancy position had
been correctly understood by the High Court. That having not understood
correctly as explained by us, we find the order made by the High Court
cannot be sustained. The same shall stand set aside to. the extent indicated E
above. Jn other aspects in so far as the denial of the claim made by respondent
No. I is concerned, the order made by the High Court is maintained. Thus
respondent No. I having failed on the two claims made by him his writ
petition in the High Court shall stand dismissed.

This appeal is allowed accordingly. No costs. F
i3. S. Appeal allowed and
Petition dismissed.