UNION OF INDIA AND OTHERSversusNARINDERJIT SINGH SIDHU

                  [2010] 12 S.C.R. 475


               UNION OF INDIA AND OTHERS                          A
                              v.
                NARINDERJIT SINGH SIDHU
                (Civil Appeal No. 80 of 2003)
                    SEPTEMBER 29, 2010
                                                                  B
     [J.M. PANCHAL AND GYAN SUDHA MISRA, JJ.)

       Service Law - Promotion - Officer initially commissioned
  in the Regiment of Artillery - After establishment of Army
  Aviation Corps, the officer transferred to the Aviation Corps   C
  permanently - Complaint by the officer for non-consideration
  of his name for promotion to the next higher post of Major
- General - Rejection of - Writ petition - High Court directing
  the authorities concerned to consider the name of the officer
  for promotion - On appeal, held: The direction given by High    D
  Court is just - Rejection of the complaint by the Authorities
  was erroneous.
     The respondent was commissioned in the Indian
 Army in the Regiment of Artillery. In the year 1997, he was
 promoted to the post of Brigadier, in the said Regiment.         E
 After the establishment of Army Aviation Corps, the
 appellants invited applications for conversion to Army
 Aviation Corps. In response thereto, the respondent
 submitted his application for permanent transfer from his
 parent Regiment to the Army Aviation Corps. The transfer         F
 was approved.

     The respondent filed a non-statutory complaint
 against non-consideration of his name for promotion to
 the next rank of Major General in the Army Aviation Corps,       G
 because he was the senior-most Brigadier in the Army
 Aviation Corps (Permanent Cadre). The complaint was
 rejected by the authorities concerned. By further
 communication, the respondent was informed that if he
                              4~                                  H
    476      SUPREME COURT REPORTS           [2010] 12 S.C.R.


A so wished, he could seek reversion to his parent
  Regiment.

      The respondent filed a writ petition, wherein the High
  Court directed the appellants to consider his case for
  promotion to the rank of Major General in Army Aviation
8
  Corps. Therefore, the instant appeal was filed.

          Dismissing the appeal, the Court

          HELD: 1. The High Court has given a just direction
c to the appellants to consider the case of the respondent
    for promotion to the post of Major General in Army
    Aviation Corps and no case is made out for interfering
    with the same. [Para 8] (487-H] [488-A]

          2. A conjoint and purposeful reading of the
D   documents produced on record, makes it evident that the
    post of Major General had already been earmarked and
    specified for Army Aviation Corps to which sanction of
    the President of India was granted and conveyed. The
    language of the documents on record do not in any
E   manner suggest that Army Aviation Corps had no
    specified vacancy in the rank of Major General. After
    creating a permanent cadre and specifying the post of
    Major General in the Army Aviation Corps, the appellants
    were treating the same as an unspecified vacancy to be
F   manned by an officer to be brought from the other Corps,
    which was erroneous and not justified at all. The High
    Court has rightly observed that the inevitable effect of
    filling up the post of Major General sanctioned in Army
    Aviation Corps by bringing Major General from other
G   Corps had the adverse effect of marring the chances of
    promotion of the officers belonging to Army Aviation
    Corps. [Para 7] [487-D-F]

          3. The respondent was permanently converted to the
H
UNION OF INDIA AND ORS. v. NARINDERJIT SINGH 477
              'I   '   '   I

                   SIDHU
Army Aviation Corps. The respondent, having opted for            A
conversion from Regiment of Artillery to Army Aviation
Corps, was precluded from again opting for Regiment of
Artillery. This is so, in view of the letter/order dated April
17, 1997. As per the guidelines mentioned in the said
cominunication, Aviation Officers were to be groomed in          B
stipu·lated criteria appointments and due career
protection was to be given to those posted in "hi-tech"
appointments like test Pilots. On the ~asis of these clear
terms, the respondent had applied for conversion to the
Aviation Corps on permanent basis. The respondent left           c
his permanent Corps after considering various aspects
including the chances of future promotion in the Aviation
Corps. Initially, the allocation of vacancy in the rank of
Major Gerieral in the Aviation Corps was n<;»t decided.
However, the process of exercising an option was                 D
irreversible one and the officer was left with no option to
rev~rt back to his parent Corps. (Para 5] .(485-C-F]

  · 4. The reason mentioned for rejecting the claim of the
respondent in his non-statutory complaint, was that the
appointment of Major General was not authorized for              E
Army Aviation Corps, Permanent Cadre and holding of
selection for the said rank was not possible. The reason
giv~n by the Chief of Army Staff for turning down the
request made by the respondent to consider his case for
promotion to the post of Major General, was totally              F
erroneous and contrary to the record. One post of Major
General was allocated to the Army Aviation Corps, which
is evident from the communication dated November 27,
1997. While providing a post for Major General in Army
Aviation Corps, one post of Major General provided in Pay        G
Commission Cell was Offset. The claim made by the
appellants that the provision of post of Major General,
made in Army Aviation Corps was mere allocation of
vacancy by the Chief of Army Staff and not for release of
vacancy for Army Aviation Corps, cannot be accepted in           H
    478      SUPREME COURT REPORTS              [2010] 12 S.C.R.

A view of the contents of the communication dated
   November 27, 1997 nor the contention that the issue of
   allotment of specified and unspecified vacancies was
   required to be determined by Chief of Army Staff can be
   appreciated. Though the order rejecting the complaint of
B the respondent does not mention so, a stand was taken
   by the appellants before this Court that at the time when
  the complaint was made by the respondent, the post of
   Major General in Army Aviation Corps was being manned
   by a Major General, who was brought from Artillery
c Corps. Bringing a Major General from different cadre to
   man the post of Major General in Army Aviation Corps
  was illegal and contrary to the guidelines laid down by
  the appellants themselves. The record would show that
   after sanction to the formation of the nucleus Additional
D Directorate General Army Aviation at Army Head Quarters
  vide order dated October 29, 1986, a permanent and
   r~gular cadre was established for th.e Army Aviation
   Corps vi de order dated April 17, 1997 passed by the
  ·chief of Army Staff. Having sanctioned the cadre
   structure, Selection Grade ranks were provided by
E communication dated November 27, 1997, under which
   the post of Major General was sanctioned after offsetting
   the post of Major General provided in Ex Pay Commission
   Cell. Under the circumstances, no other Major General
   could have been brought to Army Aviation Corps for
F manning the post of Major General sanctioned for the
   said establishment. [Paras 5 and 6] [485-G-H] [486-A-H]
   [487-A-C]
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 80
G of 2003.

         From the Judgment & Order dated 10.10.2002 of the High
    Court of Punjab & Haryana at Chandigarh in CWP No. 10037
    of 2002.

H         R. Balasubramanian, B.V. Balaram Das for the Appellants.
UNION OF INDIAAND ORS. v. NARINDERJIT SINGH 479
                  SIDHU
   P.S. P,atw~lia, Aman Preet Singh Rahi, Tushar Bakshi,              A
Saswat Acharya, Sureshta Bagga for the Respondent.

     The Judgment of the Court was delivered by

     J.M. PANCHAL, J. 1. This appeal is directed against
judgment dated October 10, 2002, rendered by the Division             B
Bench of High Court of Punjab and Haryana at Chandigarh in
CWP No. 10037 of 2002, by which the appellants are directed
to consider the case of the respondent for promotion to the rank
of Major General in accordance with the Rules and his service
profile in the Army Aviation Corps.                                   C

     2. The relevant facts emerging from the record of the case
are as under:

      The respondent was commissioned in the Indian Army in : D
the Regiment of Artillery on June 23, 1968 in the rank of Second
Lieutenant. After grant of Commission, the seniority of the
respondent was re-fixed with effect from August 21, 1969. Thus,
for the purpose of promotion and career advancement, he·
became an officer of 1969 Batch. The Government of India,
Ministry of Defence, sanctioned formation of a nucleus E
Additional Directorate General Army Aviation at Army Head
Quarters by order dated October 29, 1986. The selection grade
vacancies including the post of Major General were to be from
within.the sanctioned cadre of the Army and were to remain
unfilled for a period of one year till the post of Additional Director F
General Army Aviation was sanctioned by the Government of
India. The Chief of Army Staff approved the establishment of a
permanent cadre of officers for the Army Aviation Corps by an
order dated April 17, 1997. In the said order/letter, it was
mentioned that the cadre initially would have 15% permanent G
officers and 85% would be borrowed from the other cadres and
would be built up in a graduated manner to 100% permanent
cadre. By the said letter, cadre structure was formulated.
Regarding allocation of vacancy in the rank of Major General
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    480          SUPREME COURT REPORTS                [2010J 12 S.C.R.

A to permanent cadre, it was mentioned that it would be decided
  later. The initial induction was to be on voluntary basis with an
  irrevocable one time option. It was also provided by the said
  order that Aviation Corps Officers would be eligible for induction
  into general cadre on the lines as officers of supporting Arms,
B i.e., after selection based on positive recommendation in
  designated Command and staff assignment.

        In May, 1997 the respondent was promoted to the rank of
  Brigadier in the Regiment of Artillery. On September 1, 1997
C a letter was issued by Army Head Quarters seeking application
  from volunteers for transfer to Army Aviation as per the terms
  and conditions set out in the letter/order dated April 171 1997
  passed by the Chief of Army Staff. The record shows that the
  President of India approved following Peace Establishments
  of Army Aviation: -
D
          (a) Additional Directorate General Army Aviation, at
               Army Head Quarters.

           (b)    Command (Aviation) Branch at Eastern, Western
                  and Northern Commands.
E
           (c)    Command (Aviation) Branch Southern and Central
                  Commands.

    The President also sanctioned selection grade ranks as under:
F -
          (a) Major General -      1     (Offset provided Ex Pay
                                         Commission Cell).
          (b) Brigadiers                 7 ....................... .
G
       It was also mentioned in the said order that three selection
  grade ranks of Brigadiers for which offsets have not been
  identified would remain suppressed till suitable offsets were
  identified by the SD Directorate and removal of this
H suppression would be carried out in consultation with MOD
 UNION OF INDIAAND ORS. v. NARINDERJIT SINGH 481
            SIDHU [J.M. PANCHAL, J.]

(Fin.). The decision of the President was communicated by the   A
Government of India, Ministry of Defence, New Delhi vide
communication dated November 27, 1997 to the Chief of the
Army Staff. Along with the communication dated November 27,
1997, appendix A was also sent which was in the following
terms: -                                                        B

    "Appendix A to Government of India,
                                   Ministry of Defence letter
                                  No. 00659/PE/Misc./AA-5/
                                         1875/D0-1 /D(GS-1)     C
                                      Dated 27 Nov., 1997.
    (The information given in this document is not to be
    communicated decision directly or indirectly to the press
    or to any person not authorized to receive it)
                               PE No. 00659/PE/Misc.AA-5/       D
                                       1975/D0-1/D(GS-1)
                                        Dt. 27th Nov., 1997
    (Three pages)
         ADDITIONAL DIRECTORATE GENERAL
                  ARMY AVIATION                                 E
               ARMY HEAD QUARTERS
               PEACE ESTABLISHMENT
                         SUMMARY
                         Personnel                              F
Officers
      Army                         25
      JCO                          2
      Other Ranks                  44                           G
      Total                        71
                          Transport
      Car Ambassador                  1
                                                                H
    482       SUPREME COURT REPORTS               [201 O] 12 S.C.R.

A          Gypsy                           2
            Motor Cycle                    2
           Total                           5


B           Details                    Number Notes

          1. Personnel
          Officers
c         Additional Director General
          (Maj. Gen.) (a}                              1
          Deputy Director General (Brig)
          (a) and (i)                                  2
D         Directorate (Col) (a)                        6
          AMS (Lt. Col) (a) (b)                           1
          General Staff Officers
          (Lt. Col.) (a) (h)                           8
E
          General Staff Officers
          (Maj) (a) (h)                                7
          Total                                        25

F         Junior Commissioned Officer (b)
          JCO (Clerk) (c) (d) (e)                      2
          Other Ranks
          Personal Assistant                           9
G         Clerk (GD) (c) (d) (f)                          15
          Drivers (c) (f)                                      3

          Driver Motor Cycle (c) (f)                  2
H         Draughtsman (c) (d) (g)                     2
UNION OF INDIA AND ORS. v. NARINDERJIT SINGH 483
           SIDHU [J.M. PANCHAL, J.]
   Jetliner Operator (c) (g)                   1                A

   Runner                                      11
   Des patcher                                 1
   Total other tanks                           44               B

   2. Transport

   Motor Cycle                                 2

   Car Ambassador                              1                c
   Gypsy                                       2

   Total transport                             5
   GENERAL NOTES                                                D

    (a)    Officer to be trained aviator

    (b)    To function under MS-6

    (c)    Rank as per Corps roster                             E

    (d)    To be computer qualified

    (e)    One JCO to function under MS-6

    (f)    To be provided by Regiment of Artillery              F

    (g)    To be provided by Corps of Engineers

    (h)    Two officers to be qualified on computer

    (i)    Appointment of One Deputy Director General will      G
           be kept suppressed till offset is identified by SD
           Directorate. The removal of suppression wouta be
           carried out in consultation with MOD (Fin.)."

                                                                H
    484     SUPREME COURT REPORTS                [2010] 12 S.C.R.


A On December 14, 1997, the respondent voluntarily applied for
  permanent transfer from the Regiment of Artillery to Army
  Aviation Corps. By a communication dated November 6, 1998,
  the transfer of the respondent to Army Aviation Corps was
  approved with immediate effect by the Army Head Quarters.
8 Between the year 1997 and 1999, the respondent commanded
  373(1) Artillery Brigade in the Regiment of Artillery. The
  respondent assumed the appointment of Brigadier (Aviation)
  Head Quarters Western Command at Chandimandir on June
  24, 1999. On December 22, 2001, the respondent submitted
C a non-statutory complaint to the Chief of Army Staff against non-
  consideration of his name for promotion to the next rank of
  Major General in the Army Aviation Corps, since he was the
  senior most Brigadier in the Army Aviation Corps (Permanent
  Cadre). The complaint of the respondent was considered by
D the Chief of Army Staff but was rejected on June 10, 2002 on
  the ground that no appointment of Major General was authorized
  to Army ~viation Corps (P_ermanent Cadre). By_ the said
  communication the respondent was informed that if he so
  wished, he should seek reversion to the Regimenfof Artillery.

E      3. Feeling aggrieved, the respondent filed CWP No.
  10037 of 2002 before the High Court of Punjab and Haryana
  at Chandigarh praying, inter alia, to direct the appellants to
  cbnsider his case for promotion to the rank of Major General
  in Army Aviation Corps. He also prayed that the appellants be
F restrained from posting an ex-cadre officer to the Post of
  Additional Director General Army Aviation, Army Head
  Quarters. The petition fil~d by the respondent was contested
  by the appellants. The High Court, by the impugned judgment,
  has directed the appellkints to consider the case of the
G respondent for promotion to the rank of M~jor General in Army
  Aviation Corps, giving rise to the instant appeal.

         4. This Court has heard the learned counsel for the parties
    at length and in great detail. This Court has also considered

H
UNION OF INDIA AND ORS. v. NARINDERJIT SINGH 485
           SIDHU [J.M. PANCHAL, J.]
the documents forming part of the appeal.                            A

      5. The fact, the r~spondent had a reasonably good service
profile and was awarded various distinctions, as mentioned in
the impugned judgment, is not in dispute. The respondent was
promoted on selection to the post of Brigadier in the Regiment       B
of Artillery in the year 1997. The appellants had invited
applications for conversion to Army Aviation Corps and in
response thereto the respondent had submitted application on
December 14, 1997. The respondent was permanently
converted to the Army Aviation Corps on November 6, 1998. It         C
is relevant to notice that the respondent, having opted for
conversion from Regiment of Artillery to Army Aviation Corps,
he was precluded from again opting for Regiment of Artillery.
This is so in view of the letter/order dated April 17, 1997,
referred to earlier. As per the guidelines mentioned in the said
communication, Aviation Officers were to be groomed in               D
stipulated criteria appointments and due career protection was
to be given to those posted i.n "hi-tech" appointments like test
Pilots. On the basis of these·clear terms, the respondent had
applied for conversion to the Aviation Corps on permanent
basis. The respondent left his permanent Corps after                 E
considering various aspects including the chances of future
promotion in the Aviation Corps. Initially, the allocation of
vacancy in the rank of Major General in the Aviation Corps was
not decided. However, the process of exercising an option was
irreversible one and the officer was left with no option to revert   F
back to his parent Corps. The respondent had made a non-
statutory complaint as his name for promotion to the next rank
of Major General was not considered. It was rejected vide letter
dated June 10, 2002. The only reason mentioned for rejecting
the claim of the respondent was that the appointment of Major        G
General was not authorized for Army Aviation Corps,
Permanent Cadre and holding of selection for the said rank was
not possible. This Court finds that the reason given by the Chief
of Army Staff for turning down the request made by the
                                                                     H
    486     SUPREME COURT REPORTS                (2010) 12 S.C.R.


A   respondent to consider his case for promotion to the post of
    Major General, was totally erroneous and contrary to the record.

          6. As observed earlier, one post of Major General was
    allocated to the Army Aviation Corps, which is evident from the
    communication dated November 27, 1997. While providing a
8
    post for Major General in Army Aviation Corps, one post of
    Major General provided in Pay Commission Cell was Offset.
    The claim made by the appellants that the provision of post of
    Major General, made in Army Aviation Corps was mere
C   allocation of vacancy by the Chief of Army Staff and not for
    release of vacancy for Army Aviation Corps, cannot be
    accepted in view of the contents of the communication dated
    November 27, 1997 nor the contention that the issue of
    allotment of specified and unspecified vacancies was required
    to be determined by Chief of Army Staff can be appreciated.
D   Though the order rejecting the complaint of the respondent does
    not mention so, a stand was taken by the learned counsel for
    the appellants before this Court that at the time when the
    complaint was made by the respondent. the post of Major
    General in Army Aviation Corps was being manned by a Major
E   General, who was brought from Artillery Corps. On question
    being asked as to whether the Major General, who was brought
    from Artillery Corps and was manning the post of Major General
    in Army Aviation Corps, had voluntarily applied as
    contemplated by the Scheme for being absorbed in Army
F   Aviation Corps, the learned counsel could not give any reply.
    Nor the learned counsel could give reply to the question whether
    condition that once an officer opts for Army Aviation Corps
    would not be entitled to revert back to his parent Corps, was
    made applicable to the Major General, who was brought from
G   Artillery Corps and was manning the post of Major General in
    Army Aviation Corps. There is no manner of doubt that bringing
    a Major General from different cadre to man the post of Major
    General in Army Aviation Corps was illegal and contrary to the
    guidelines laid down by the appellants themselves. The record
H
UNION OF INDIA AND ORS. v. NARINDERJIT SINGH 487
           SIDHU [J.M. PANCHAL, J.]

would show that after sanction to the formation of the nucleus        A
Additional Directorate General Army Aviation at Army Head
Quarters vide order dated October 29, 1986, a permanent and
regular cadre was established for the Army Aviation Corps vide
order dated April 17, 1997 passed by the Chief of Army Staff.
Having sanctioned the cadre structure by the order dated April        B
17, 1997, Selection Grade ranks were provided by
communication dated November 27, 1997 under which the post
of Major General was sanctioned after offsetting the post of
Major General provided in Ex Pay Commission Cell. Under the
circumstances, this Court is of the. firm opinion that no other       c
Major General could have been brought to Army Aviation Corps
for manning the post of Major General sanctioned for the said
establishment.

     7. A conjoint and purposeful reading of the documents
produced on record of the case by the parties makes it evident        D
that the post of Major General had already been earmarked
and. specified for Army Aviation Corps to which sanction of the
President of India was granted and conveyed. The language
of the documents on record do not in any manner suggest that
Army Aviation Corps had no specified vacancy in the rank of           E
Major General. After creating a permanent cadre and
specifying the post of Major General in the Army Aviation Corps,
the appellants were treating the same as an unspecified
vacancy to be manned by an officer to be brought from the other
Corps, which was erroneous and not justified at all. The High         F
Court has rightly observed that the inevitable effect of filling up
the post of Major General sanctioned in Army Aviation Corps
by bringing Major General from other Corps had the adverse
effect of marring the chances of promotion of the officers
belonging to Army Aviation Corps.                                     G

     8. On the facts and in the circumstances of the case, this
Court is of the opinion that a just direction is given to the
appellants to consider.the case of the respondent for promotion
to the post of Major General in Army Aviation Corps and no
                                                                      H
    488      SUPREME COURT REPORTS            [2010] 12 S.C.R.


A case is made out for interfering with the same in the instant
  appeal. The appeal, which lacks merit, therefore, deserves to
  be dismissed.

        9. For the foregoing reasons, the appeal fails and is
    dismissed. There shall be no order as to costs.
8
    K.K.T.                                  Appeal dismissed.