# MAJOR GENERAL H.M. SINGH, VSM v. UNION OF INDIA AND ANR

- **Citation:** [2014] 1 S.C.R. 270
- **Court:** Supreme Court of India
- **Decided:** 2014-01-09
- **Case number:** Civil Appeal No. 192 of 2014
- **Bench:** A.K. Patnaik, Jagdish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/major-general-h-m-singh-vsm-v-union-of-india-and-anr-29728
- **Pages:** 33

## Headnote

Army Rules:
c
r.16-A - Extension of service in 'exigency of service' -
Senior most Major General in DRDO recommended by
Selection Board for promotion as Lieutenant General -
Extension of service granted by Presidential orders -
Held:
President of India was conscious of the fact while granting
0 extension in service to appellant that his case for promotion
as Lieutenant General was under consideration - Orders
allowing extension of service to appellant so as to enable his
claim to be considered for promotion as Lieutenant General,
cannot be held to be in violation of statutory provisions -
E Extension of service granted to the senior most eligible officer
for the purpose of consideration of his promotional claim, for
all intents and purposes will be deemed to satisfy the
parameters of exigency of service, stipulated in r. 16A -
Administrative law - Legitimate expectation.
F
Service Law:
Promotion - Major General in DRDO - Recommended
by Selection Board for promotion as Lieutenant General -
Granted extensions to enable his case for promotion to be
G considered by Appointment Committee of the Cabinet - ACC
not granting approval to recommendations, as rules would not
permit promotion on extension -
Held: Selection Board, out
of a panel of four names, had recommended promotion of
appellant as Lieutenant General on the basis of his record of
H
270
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF
271
INDIA
service, past performance, qualities of leadership, as well as
A
vision- ACC did not in any manner upset the finding recorded
by Selection Board nor did it negate the said
recommendation - Therefore, appellant must be deemed to
have been found suitable for promotion as Lieutenant
General, even by ACC and, as such, appellant deserves
B
promotion to the rank of Lieutenant General from the date due
to him and he shall be deemed to have been in service as
Lieutenant General till 28.2.2009 and entitled to all monetary
benefits which would have been so due to him.
Promotion during extension of service - Held: The
C
vacancy against which appellant was considered had arisen
well before date of his superannuation, but since Service
Selection Board was convened only two days prior to date of
his superannuation as Major General, respondents must
squarely shoulder the blame and responsibility of the delay
D
- It is not as if the vacancy came into existence after appellant
had reached the age of retirement on superannuation - The
denial of promotion to him mainly for the reason that he was
on extension in service, is unsustainable besides being
arbitrary- Therefore, the basis on which the claim of appellant
E
for promotion as Lieutenant General was declined by ACC is
rejected - Accordingly, operative part of order of ACC is set
aside.
Constitution of India, 1950:
Arts. 14 and 16 - Claim for promotion - Held: Division
Bench of High Court has rightly held that recommendations
F
of Selection Board were merely recommendatory in nature
and, therefore, appellant had no fundamental right for
promotion solely on the basis of such recommendation -
G
However, non-consideration of claim of appellant would violate
fundamental rights vested in him. under Arts. 14 and 16, as
respondents were desirous of filling up the said vacancy and
appellant being the senior most serving Major General
H
272
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A eligible for consideration had fundamental right of being
considered against the said vacancy, and also the
fundamental right of being promoted if he was adjudged
suitable - It was in order to extend the benefit of the
fundamental right enshrined under Art. 14 of India, that he was
8
allowed extension in service on two occasions by Presidential
orders - By the said orders, respondents desired to treat the
appellant justly, so as to enable him to acquire the honour of
promotion to the rank of Lieutenant General, in case the
recommendation made in his favour by the Selection Board
C was approved by ACC - The action of authorities in depr

## Text

_Characters 0–39,978 of 63,344. This is a partial read: ask again with offset=39978 for what follows._

A
B
[2014] 1 S.C.R. 270
MAJOR GENERAL H.M. SINGH, VSM
v.
UNION OF INDIA AND ANR.
(Civil Appeal No. 192 of 2014)
JANUARY 9, 2014
[A.K. PATNAIK AND JAGDISH SINGH KHEHAR, JJ.]
Army Rules:
c
r.16-A - Extension of service in 'exigency of service' -
Senior most Major General in DRDO recommended by
Selection Board for promotion as Lieutenant General -
Extension of service granted by Presidential orders -
Held:
President of India was conscious of the fact while granting
0 extension in service to appellant that his case for promotion
as Lieutenant General was under consideration - Orders
allowing extension of service to appellant so as to enable his
claim to be considered for promotion as Lieutenant General,
cannot be held to be in violation of statutory provisions -
E Extension of service granted to the senior most eligible officer
for the purpose of consideration of his promotional claim, for
all intents and purposes will be deemed to satisfy the
parameters of exigency of service, stipulated in r. 16A -
Administrative law - Legitimate expectation.
F
Service Law:
Promotion - Major General in DRDO - Recommended
by Selection Board for promotion as Lieutenant General -
Granted extensions to enable his case for promotion to be
G considered by Appointment Committee of the Cabinet - ACC
not granting approval to recommendations, as rules would not
permit promotion on extension -
Held: Selection Board, out
of a panel of four names, had recommended promotion of
appellant as Lieutenant General on the basis of his record of
H
270
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF
271
INDIA
service, past performance, qualities of leadership, as well as
A
vision- ACC did not in any manner upset the finding recorded
by Selection Board nor did it negate the said
recommendation - Therefore, appellant must be deemed to
have been found suitable for promotion as Lieutenant
General, even by ACC and, as such, appellant deserves
B
promotion to the rank of Lieutenant General from the date due
to him and he shall be deemed to have been in service as
Lieutenant General till 28.2.2009 and entitled to all monetary
benefits which would have been so due to him.
Promotion during extension of service - Held: The
C
vacancy against which appellant was considered had arisen
well before date of his superannuation, but since Service
Selection Board was convened only two days prior to date of
his superannuation as Major General, respondents must
squarely shoulder the blame and responsibility of the delay
D
- It is not as if the vacancy came into existence after appellant
had reached the age of retirement on superannuation - The
denial of promotion to him mainly for the reason that he was
on extension in service, is unsustainable besides being
arbitrary- Therefore, the basis on which the claim of appellant
E
for promotion as Lieutenant General was declined by ACC is
rejected - Accordingly, operative part of order of ACC is set
aside.
Constitution of India, 1950:
Arts. 14 and 16 - Claim for promotion - Held: Division
Bench of High Court has rightly held that recommendations
F
of Selection Board were merely recommendatory in nature
and, therefore, appellant had no fundamental right for
promotion solely on the basis of such recommendation -
G
However, non-consideration of claim of appellant would violate
fundamental rights vested in him. under Arts. 14 and 16, as
respondents were desirous of filling up the said vacancy and
appellant being the senior most serving Major General
H
272
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A eligible for consideration had fundamental right of being
considered against the said vacancy, and also the
fundamental right of being promoted if he was adjudged
suitable - It was in order to extend the benefit of the
fundamental right enshrined under Art. 14 of India, that he was
8
allowed extension in service on two occasions by Presidential
orders - By the said orders, respondents desired to treat the
appellant justly, so as to enable him to acquire the honour of
promotion to the rank of Lieutenant General, in case the
recommendation made in his favour by the Selection Board
C was approved by ACC - The action of authorities in depriving
the appellant due consideration for promotion to the rank of
the Lieutenant General, would have been arbitrary and
resulted in violation of his fundamental right under Art. 14.
The appellant, who was commissioned as Second
D Lieutenant in the Indian Army on 15.6.1969 and was
inducted into the Armoured Corps, permanently moved
into the
Defence
Research
and
Development
Organisation (DRDO) w.e.f. 25.5.1983, where he rose up
to the rank of Major General. In the Government of India
E gazette published on 6.12.2007 the appellant was shown
as having been promoted as substantive Major General
with effect from 7.1.2004. A vacancy in the rank of
Lieutenant General became available with effect from
1.1.2007. The appellant, as Major General, would retire at
F the age of 59 years, on 29.2.2008 but on his promotion
to the rank of Lieutenant General his age of retirement
would stand extended to 28.2.2009 i.e., up to 60 years. On
27 .2.2008 i.e. two days prior to the appellant's retirement
on superannuation a meeting of the Selection Board for
G promotion to the rank of Lieutenant General was
convened. The Selection Board recommended only the
name of the appellant for promotion. The President of
India by an order dated 29.2.2008, granted the appellant
extension of service, for a period of three months and a
further extension in service for a period of one month i.e.,
H
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF 273
INDIA.
up to 30.6.2008 or "till the approval of the Appointments . A ·
Committee of the Cab.inet (ACC), whichever was earlier".
On 2.6.2008, the Secretariat of the ACC issued. a
communication to the effect that ACC did not approve the
promotion of the appellant to the rank of Lieutenant
General. Consequently, the appellant retired from the rank
B
of Major General w.e.f. 3.6.2008. The appellant filed a writ
petition before the High Court. The stand of the Union of
India was that the appellant having attained the age of
superannuation on 29.2.2008, he could not be promoted
as Lieutenant General "while he was on extension". Writ c
petition was dismissed by the single Judge of the High
Court. The Division Bench also dismissed the writ appeal
of the appellant.
Allowing the appeal, the Court
D
HELD: 1.1. The Division Bench of the High Court has
rightly held that the recommendations of the Selection
Board were merely recommendatory in nature and,
therefore, the appellant had no fundamental right for
promotion solely on the basis of the recommendation of E
the Selection Board. [para 12] (284-F, G-H]
Dr. H. Mukherjee Vs. Union of India and Others, 1993
(2) Suppl. SCR 529 = 1994 Supp. (1) SCC 250, Union of
India and Others Vs. N.P. Dhamania and Others 1994 (4)
F
Suppl. SCR 628 = 1995 Supp. (1) SCC 1, and Food
Corporation of India and Others Vs. Parashotam Das Bansal
and Others, (2008) 5 SCC 100 - referred to.
1.2. However, it is significant to note that the
Appointments Committee of the Cabinet did not in any
G
manner upset the finding recorded by the Selection
Board, in respect of the merit and suitability of the
appellant for promotion to the rank of Lieutenant General.
Therefore, the appellant must be deemed to have been
found suitable for promotion to the rank of Lieutenant
H
274
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A General, even by the ACC. (Para 20)
1.3. The vacancy against which the claim of the
appellant was considered, had arisen on 1.1.2007, and he
was the senior most eligible officer holding the rank of
Major General whose name fell in the zone of
8 consideration for promotion. The Selection Board also
having conducted its deliberations, singularly chose his
name from the panel of four names before it and
recommended him for promotion. Having been so
recommended, the President of India , in the first
C instance, by an order dated 29.2.2008, extended the
service of the appellant, for the period of three months
with effect from 1.3.2008 and by another order dated
30.5.2008 for a further period of one month with effect
from 1.6.2008, "or till the approval of the ACC whichever
D is earlier". The President of India, therefore, was
conscious of the fact while granting extension in service
to the appellant that his case for promotion to the rank
of Lieutenant General was under consideration. It cannot
be accepted that the said determination in allowing
E extension in service to the appellant can be described as
being in violation of the norms stipulated in r 16A of the
Army Rules. The delay in convening the Selection Board
and conducting its proceedings may not be deliberate or
mala fide, but since the Selection Board came to be
F convened for the vacancy which had arisen on 1.1.2007
only on 27 .2.2008, the respondents must squarely
shoulder the blame and responsibility of the delay. (para
21) [296-A-C, E and 297-B-C]
2.1. The non-consideration of the claim of the
G appellant would violate the fundamental rights vested in
him under Arts. 14 and 16 of the Constitution, as the
respondents were desirous of filling up the said vacancy.
In this view of the matter, the appellant being the senior
most serving Major General eligible for consideration,
H most definitely had the fundamental right of being
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF
275
INDIA
considered against the said vacancy, and also the
A
fundamental right of being promoted if he was adjudged
suitable. It was in order to extend the benefit of the
fundamental right enshrined under Art. 14 of the
Constitution, that he was allowed extension in service on
two occasions. By the said orders, the respondents s·
desired to treat the appellant justly, so as to enable him
to acquire the honour of promotion to the rank of'
Lieutenant General, in case the recommendation made in
his favour by the Selection Board was approved by the
ACC. The action of the authorities in depriving the
C
appellant due consideration for promotion to the rank of
the Lieutenant General, would have resulted in violation
of his fundamental right under Art. 14 of the Constitution
of India. Such an action at the hands of the respondents
would unquestionably have been arbitrary. [para 22) [2970
D-G; 298-C]
2.2. The Presidential orders allowing extension of
service to the appellant so as to enable his claim to be
considered for promotion to the rank of Lieutenant
General, cannot be held to be in violation of the statutory
E
provisions. Rule 16A of the Army Rules, postulates
extension in service, if the exigencies of service so
require. The said parameter must have· been duly taken
into consideration when the two Presidential orders were
passed. The respondents have. neither revoked, nor
F
sought revocation of the said orders. Therefore, the
respondents cannot question the veracity of the said
orders, which were passed to ensure due consideration
of the appellant's claim for promotion to the rank of
Lieutenant General. Without rejecting the claim on merits,
G
the appellant was deprived of promotion to the rank of
Lieutenant General. [para 22] [298-C-G]
2.3. Besides, this Court is of the considered view, that
consideration of the promotional claim of the senior most
eligible officer, would also fall in the parameters of the rule
H
276
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A providing for extension, if the exigencies of service so
require. It would be a sad day if the armed forces decline
to give effect to the legitimate expectations of the highest
ranked armed forces personnel, specially when, blame
for delay in such consideration, rests squarely on the
8 shoulders of the authorities themselves. Surely,
extension of service, for the purpose granted to the
appellant, would most definitely fall within the realm of
r.16A of the Army Rules. Accordingly, extension in
service granted to the appellant, for all intents and
C purposes, in the considered view of this Court, will be
deemed to satisfy the parameters of 'exigency of service',
stipulated in r. 16A of the Army Rules. [Para 22] (298-H;
299-A-B, C-0]
2.4. The deliberations of the Appointments
D Committee of the Cabinet make it clear that where an
officer attains the age of retirement without there being
a vacancy for his consideration to a higher rank, even
though he is eligible for the same, and such an officer is
granted extension in service, he cannot claim
E consideration for promotion against a vacancy which
has become available during the period of his extension
in service. Retention in service, so as to consider an
officer for a vacancy which has not become available
prior to his retirement, but is in the offing, cannot be
F allowed. [para 24] (300-C-F]
2.5. In the instant case, a clear vacancy against the
rank of Lieutenant General became available with effect
from 1.1.2007. At that juncture, the appellant had 14
months of service remaining. It is not as if the vacancy
G came into existence after the appellant had reached the
age of retirement on superannuation. The denial of
promotion to the appellant mainly for the reason, that the
appellant was on extension in service, is unsustainable
besides being arbitrary, specially in the light of the fact
H that the vacancy had become ~vailable, we'I before the
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF 277
INDIA
date of his retirement on superannuation. Therefore, the
A
basis on which the claim of the appellant for promotion
to the rank of Lieutenant General was declined by the
ACC,_ is rejected. Accordingly, the operative part of the
order of the ACC is set aside. [para 24] [300-H; 301-A-C]
2.6. It is apparent, that the Selection Board had
recommended the promotion of the appellant on the
basis of his record of service, past performance, qualities
B
of leadership, as well as vision, out of a panel of four
names. The ACC, in its deliberations, did not record any
C
reason to negate the said recommendation. Therefore,
that the appellant deserves promotion to the rank of
Lieutenant General, from the date due to him. Ordered
accordingly. On account of his promotion to the post of
Lieutenant General, the appellant would also be entitled
to continuation in service till the age of retirement on
D
superannuation stipulated for Lieutenant Generals, i.e., till
his having attained the age of 60 years. As such, the
appellant shall be deemed to have been in service against
the rank of Lieutenant General till 28.2.2009, and
accordingly, entitled to all monetary benefits which would
have been so due to him. [para 25] [301-D-F]
Case Law Reference:
1993 (2) Suppl. SCR 529 referred to
1994 (4) Suppl. SCR 628 referred to
(2008) 5 sec 1 oo
referred to
para 12
para 12
para 12
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 192
E
F
of 2014.
G
From the Judgment & Order dated 21.07 .2009 of the High
Court of Madras in Writ Appeal No. 779 of 2009.
H.M. Singh (Petitioner-In-Person).
H
278
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A
Paras Kuhad, ASG, Brijender Chahar, Chandra Bhushan
Prasad, Anil Katiyar for the Respondents.
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. 1. The appellant was
8 commissioned as Second Lieutenant in the Indian Army on
15.6.1969. His initial induction was into the Armoured Corps.
On 25.5.1983 the appellant changed his cadre. He permanently
moved into the Defence Research and Development
Organisation (hereinafter referred to as 'the DRDO'). Having
C gone through decades of rigorous military service and having
consistently earned onward promotions to higher ranks, as
were due to him from time to time, he was granted acting rank
of Major General on 1.6.2004, after he had been approved for
promotion to the rank of Major General by a duly constituted
D Selection Board.
2. On 31.3.2005 Lieutenant General Ravinder Nath retired
from service. Resultantly a vacancy in the rank of Lieutenant
General became available. On 1.1.2006 the appellant claims
E to have become eligible for the consideration for promotion to
the above vacancy. It would be relevant to mention, that at that
juncture, in the cadre of Major Generals, the appellant was the
senior most serving officer (as per seniority list dated
29.12.2006) P.ligible for promotion to the rank of Lieutenant
F General. In the Government of India gazette (published on
6.12.2007) the appellant was shown as having been promoted
as substantive Major General with effect from 7.1.2004. It would
also be relevant to mention, that the name of the appellant was
included in the name announced by the President of India for
the award of the Vishist Seva Medal on 26.1.2007. The said
G award was sought to be bestowed upon the appellant, for his
having rendered distinguished service of an exceptional order
to the nation. It is therefore, that the appellant was desirous, that
his claim be considered for onward promotion to the rank of
Lieutenant General. At that juncture, the appellant had not only
H held the rank of Major General for more 18 monihs, he had also
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF
279
INDIA [JAGDISH SINGH KHEHAR, J.] ·
earned two confidential reports in the said rank. The record
A
appended to the pleadings indicates, that he had also been
granted vigilance clearance. Despite the above, the appellant
was not considered eligible for promotion .to the rank of
Lieutenant General as he had not completed two years' service
in the rank of Major General at that time.
B
3. Under the circumstances mentioned in the foregoing
. paragraph, AVM R. Yadav, an officer from the Indian Air Force
was inducted into the DRDO on 29.12.2005, against the
vacancy in the rank of Lieutenant General created by Lieutenant
C
General Ravinder Nath. AVM R. Yadav retired from service with
effect from 31.12.2006. As such, a vacancy in the rank of
Lieutenant General became available with effect from 1.1.2007.
4. On 30.4.2007, the appellant addressed a representation
to the Director General DRDO asserting, that he was eligible
D
for promotion against the existing vacancy of Lieutenant
General, as he fulfilled the laid down criteria. He expressly
pointed out in his above representation, that in the event of his
promotion to the rank of Lieutenant General his age of
retirement would stand extended. As Major General he would
E
· retire at the age of 59 years, on 29.2.2008 (as the appellant
date of birth is 2.2.1949). On his promotion to the rank of
Lieutenant General his age of retirement would stand extended
to 28.2.2009 i.e., to 60 years. The appellant therefore
requested the authorities, to immediately constitute and
F
convene a meeting of the Selection Board, for considering his
claim for onward promotion to the rank of Lieutenant General.
For the above purpose, the appellant also met various higher
authorities. On all such occasions he was informed, that the
action to convene a meeting of the Selection Board was under
G
process. In fact, in November, 2007 the appellant was assured,
that the meeting of Selection Board would be held in
December, 2007. He was also assured, that in the event of his
being considered suitable for promotion by the Selection
Board, he will actually be promoted to the rank of Lieutenant
H
280
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A General, before the date of his retirement (292.2008) as Major
General.
5. Since the date of appellant's retirement - 29.2.2008
was fast-approaching, and because it seemed to the appellant
8 that nothing was moving, the appellant submitted his grievance
to the authorities in writing, praying for immediate action in the
matter. In this behalf he also sought personal hearing, to
present his case. These pleas were raised by the appellant
through separate communications dated 26.12.2007 (to the SA
to the Defence Minister, and to the DRDO). On 28.2.2008 he
C addressed a letter for the same purpose, to the Personal
Secretary to the Defence Minister.
6. Two days prior to the appellant's retirement on
superannuation (29.2.2008, as Major General), on 27.2.2008
D a meeting of the Selection Board for promotion to the rank of
Lieutenant General was convened. The Selection Board
cleared the appellant for promotion to the rank of Lieutenant
General. The Selection Board cleared only the name of the
appellant for the above promotion, from out of a panel of 4
E names.
7. In order to ensure that the appellant's claim for
promotion to the rank of Lieutenant General is not frustrated,
the President of India by an order dated 29.2.2008, was
pleased to grant the appellant extension of service, for a period
F of three months. A relevant extract of the above order is being
G
H
reproduced hereinunder:
"I am directed to convey the sanction of the President to
the grant of extension in service to IC-23289 Maj Gen H.M.
Singh. VSM. AC. CVRDE, Avadi a permanently seconded
officer of Defence Research & Development Organisation,
for a period of three months with effect from 01 Mar 2008
or till the approval of ACC, whichever is earlier.
This issues with the concurrence of MOD/Fin(R&D) vide
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF
281
INDIA [JAGDISH SINGH KHEHAR, J.]
their Dy No. 582/Fin (R&D) dated 29 Feb 2008."
A
(emphasis is ours)
A perusal of the above communication reveals, that the
aforesaid extension of service was granted to the appellant, to
await the approval of the Appointments Committee of the
B
Cabinet. In this behalf it would be relevant to mention, that in
the process of consideration for promotion to the rank of
Lieutenant General, the recommendation made by the Selection
Board requires the approval of the Appointments Committee
of the Cabinet, before it is given effect to. It is apparent that
C
the Appointments Committee of the Cabinet, could not finalise
the matter during the appellant's extended tenure of three
months. As such, for the same reasons, the President of India
was pleased to grant the appellant a further extension in service
(as Major General) for a period of one month i.e., up to
D
30.6.2008 or till the approval of the Appointments Committee
of the Cabinet, whichever was earlier.
8. On 2.6.2008, the Secretariat of the Appointments
Committee of the Cabinet (Miilistry of Personnel, Public
E
Grievances and Pensions, Department of Personnel and
Training) issued a communication with the following
observations:
"2. The Appointments Committee of the Cabinet has not
approved the promotion of IC-23289 Maj Gen H.M. Singh,
F
a permanently seconded officer of DRDO, to the rank of
Lieutenant General."
In consonance with the order granting extension in service,
the DRDO issued an order dated 3.6.2008, retiring the appellant
G
from the rank of Major General with immediate effect. The
appellant assailed the above order dated 2.6.2008 (denying the
appellant promotion to the rank of Lieutenant General), and the
order dated 3.6.2008 (by which the appellant was retired from
service) by filing Writ Petition No. 15508 of 2008 before the
H
282
SUPREME COURT REPORTS
(2014] 1 S.C.R.
A High Court of Judicature at Madras (hereinafter referred to as
'the High Court'). Convening a meeting of the Selection Board
on 27.2.2008 i.e., just two days before the appellant was to
retire on attaining the age of superannuation, as also, the
consideration of the recommendation made by the Selection
B Board at the hands of the Appointments Committee of the
Cabinet, more than three months after the date on which the
appellant would retire from service, were vigorously referred to,
to demonstrate the apathy at the hands of the authorities, which
according to the appellant, had resulted in denial of promotion
c to him.
9. In response to the alleged delay in the matter of
considering the appellant's claim for promotion, it was pointed
out that the DRDO had a large number of high value projects
viz. design, development and production of Light Combat
D Aircraft, design and development of Kaveri Engine, design and
development of Airborne Early Warning System and a number
of projects related to upgradation of avionics and electronics
warfare system, Sukhoi, MIG-27 and LCA; accordingly a
decision was taken by the DRDO i.e., the appellant's controlling
E authority, to earmark the vacancy of Lieutenant General (against
which the appellant was claiming consideration), for an officer
of equivalent rank from the Indian Air Force, who would be in a
position to oversee, provide guidance and coordinate all the
abovementioned highly sensitive and intricate projects. The
F above tentative determination for filling up the vacancy of
Lieutenant General from the Indian Air Force was, however,
subsequently reviewed in consultation with the Government of
India. The Government of India on 14.2.2008 finally decided to
fill up the vacancy of Lieutenant General by promotion of a
G permanently seconded service officer of the DRDO. It was
therefore asserted, that non-holding of the meeting of the
Selection Board, and the non-finalisation of the consideration
of the appellant's claim for promotion to the rank of Lieutenant
General, could not be described as a deliberate and intentional
H
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF 283
INDIA [JAGDISH SINGH KHEHAR, J.]
attempt by the authorities to deprive the appellant of his
A
promotional opportunity.
10. In its pleadings the Union of India adopt a clear stand,
that the appellant having attained the age of superannuation on
29.2.2008, could not be promoted as Lieutenant General "while
he was on extension". It was also the contention of the Union
of India, that since the Appointments Committee of the Cabinet
B
had not approved the appellant's promotion to the rank of
Lieutenant General, the same .could not be challenged specially
because the Appointments Committee of the Cabinet had
C
given valid reasons to defer the recommendation of the
Selection Board I Departmental Promotion Committee. The
Union qf India acknowledged, that the Appointments Committee
of the Cabinet was the competent authority to approve the
recommendation for promotion to the rank of Lieutenant General
(made by the Selection Board). It was admitted, that the
D
Selection Board in its meeting held. on 27 .2.2008 had
recommended the appellant for promotion to the rank of
Lieutenant General. Pending approval of the Appointments
Committee of the Cabinet, the appellant had crossed the age
of his retirement on superannuation (in the rank of Major
E
General, on 29.2.2008). Thereafter, the appellant was granted
extension in service beyond the period of his retirement up to
30.6.2008.
11. Having considered the contentions and prayers made
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by the appellant, a Single Bench of the High Court while
disposing of the Writ Petition No. 15508 of 2008, recorded the
folloViiing observatioris:
"40. When the petitioner's extension of service was not on
the ground of exigency, DRDO being mainly civilian, Rules
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do not permit promotion on extension. ACC's action in not
granting approval to the recommendation made by
Selection Board is in accordance with the Rules and the
same cannot be assailed. Petitioner cannot contend that
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[2014] 1 S.C.R.
he has been discriminated in not granting promotion while
on extension.
41. There is no substance in the contention that the
Petitioner having been extended his service, he ought to
have been granted promotion. Extension of service does
not give rise the legitimate expectation for promotion. The
extensions in tenure were given to the petitioner to ensure
that procedure relating to approval of competent authority
on the recommendation of Selection Board was
completed in an objective manner by following prescribed
process. On culmination of process, ACC is the competent
authority came to the decision not to promote the
petitioner. As such there is not incoherence and
arbitrariness in the decision warranting exercise of judicial
re'l(iew."
In the light of the above observations Writ Petition No.
15508 of 2008 was dismissed on 5.5.2009.
12. Dissatisfied with the dismissal of Writ Petition No.
E 15508 of 2008, the appellant filed an intra court Writ Appeal
No. 779 of 2009. In the process of adjudicating upon the
controversy raised in the abovementioned Writ Appeal, a
Division Bench of the High Court framed two questions for its
consideration. Firstly, whether the appellant Major General H.M.
Singh had any fundamental right for promotion solely on the
F basis of the recommendation of the Selection Board. And
secondly, whether Appointments Committee of the Cabinet was
liable to accept the recommendation made by the Selection
Board in favour of the appellant, and consequently, order the
appellant's promotion to the rank of Lieutenant General. Relying
G on paragraph 108 of the Regulation of Army which delineates
the constitution and duties of the Selection Board, the Division
Bench concluded that the recommendations of the Selection
Board were merely recommendatory in nature, and therefore,
answered the first question in the negative. The Division Bench
H further held, that a legitimate claim for the promotion would
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF 285
INDIA [JAGDISH SINGH KHEHAR, J.]
arise, only if a recommendation made by the Selection Board
A
gets the approval of the Appointments Committee of the
Cabinet. Relying on the judgments rendered by this Court in
Dr. H. Mukherjee Vs. Union of India and Others, 1994 Supp.
(1) SCC 250, Union of India and Others Vs. N.P. Dhamania
and Others, 1995 Supp. (1) SCC 1, and Food Corporation of B
India and Others Vs. Parashotam Das Bansal and Others,
(2008) 5 SCC 100, the Division Bench of the High Court further
concluded, that the Appointments Committee of the Cabinet
was not bound by the recommendation of the Selection Board.
It accordingly held, that for justifiable reasons, the Appointments c
Committee of the Cabinet had the right to either accept, or to
refuse the recommendation of the Selection Board. In sum and
substance it came to be concluded, that unless it was shown
that the determination of the Appointments Committee of the
Cabinet suffered from arbitrariness or malafides and D
capriciousness, the same could not be interfered with. The
Division Bench of the High Court having found none of the
above noted vices in the determination of the Appointments
Committee of the Cabinet, answered the second question also
in the negative.
E
13. Based on its aforementioned determination, the High
Court dismissed Writ Appeal No. 779 of 2009, on 21.7.2009.
Dissatisfied with the order dated 5.5.2009 (passed by the
Single Judge of the High Court, dismissing Writ Petition No.
15508 of 2009), and the order dated 21.7.2009 (passed by the
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Division Bench of the High Court dismissing Writ Appeal No.
779 of 2009), the appellant approached this Court by filing
Petition for Special Leave to Appeal (C) No. 2008 of 2010. On
11.1.2010 this Court issued notice in this matter. On
completion of pleadings the matter was listed for final disposal.
G
14. Leave granted.
15. On 29.8.2013 while hearing the matter this Court
passed the following order:
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"Before we proceed for further hearing in the matter, we
would like to go through the deliberations of the
Appointments Committee of the Cabinet [for short 'the
ACC'] by which the recommendations of the Selection
Board was not accepted in the case of the petitioner.
Hence the records of the Selection Board and the final
orders passed therein in the case of the petitioner be
placed before the Court on the next date of hearing, i.e.,
1 oth September, 2013."
C Thereafter on 12.9.2013 this Court passed the following order:
D
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"We have perused the record produced before us and we
have also heard the arguments of learned Additional
Solicitor General"
Ld. A.S.G. has sought time to seek instructions.
On the next date, Ld. A.S.G. will ensure that a copy of the
note put up to the A.C.C. and the decision of A.C.C. as
well as a copy of the recommendation dated 27th
February, 2008 of the Selection Board are made available
to the Court
List this matter on 23rd September, 2013."
The summoning of the record referred to in the orders extracted
F hereinabove, had become essential for two reasons. Firstly, the
appellant did not contest the findings recorded by the Division
Bench of the High Court on the two questions framed by the
High Court, for the disposal of Writ Appeal No. 779 of 2009.
Having given our thoughtful consideration to the determination
G rendered by the High Court, on the two questions framed by it,
we must acknowledge that the High Court was fully justified in
drawing its conclusions. We therefore hereby affirm the above
findings recorded by the High Court. According to the appellant,
the High Court had misdirected itself in its above determination.
H It was the submission of the appellant, that the determination
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF 287
INDIA [JAGDISH SINGH KHEHAR, J.]
of the Appointments Committee of the Cabinet, was not A
supported by justifiable reasons. ltwas asserted, that the
determination of the Appointments Committee of the Cabinet
was arbitrary, and based on extraneous consideration. Insofar
as the instant aspect of the matter is concerned, it was the
vehement submission of the appellant, that the High Court had
B
notaddressed the issue at all.
16. The solitary contention advanced at the hands of the
appellant, was based on the recommendation made by the
Selection Board on 27.2.2008, and the consideration of the
above recommendation by the Appointments Committee of the
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Cabinet (leading to the rejection of the appellant's claim for the
promotion to the rank of Lieutenant General). For effectively
understanding and determining the solitary contention at the
hands of the appellant, it is essential to extract the minutes of
the meeting of the Selection Board dated 27.2.2008, as also,
D
the proceedings of the Appointments Committee of the Cabinet.
Without understanding the tenor and effect of the above
deliberations, it would not be possible to express our findings
and the reasons. Had the above proceedings revealed
sensitive material, improper for public consumption, or E
detrimental to national interest, we would have chosen fo tread
. cautiously. The deliberations which resulted in denial of
promotion to the appellant (to the rank of Lieutenant General),
however, have no such misgivings. We have therefore no
hesitation in extracting the minutes of the meeting of the . F
Selection Board dated 27.2:2008. The same are being
reproduced. hereinunder:-
"MINUTES OF (1/2008) DRDO SELECTION BOARD
MEETING HELD ON 27 FEB 2008
.
The Selection Board comprising the following, met G
on 27 Feb 08 in the office of the Scientific Advisor to
Raksha Mantri,. Room No. 532, DRDO Bhawan, New
Delhi:~
(a)
Shri M. Natarajan, SA to RM
- Chairman
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[2014] 1 S.C.R.
(b)
Shri Pradeep Kumar, Secretary - Member
(DP)
(c)
Lt. Gen. M.L. Naidu,
PVSM,AVSM, YSM,VCOAS
- Member
(d)
Dr. D. Banerjee,
DS & CC R&D (AMS)
-Member Secretary
2. Defence Secretary did not attend the meeting due to
other prior commitments.
3. SA to RM briefed the Board to say that only one vacancy
in the rank of Lt. Gen exists. The other vacancy in lieu of
Scientist 'H' has been referred back to the RM for
reconsideration and therefore will be considered only after
a decision.
4. The Board considered the following 04 officers for
promotion to the acting rank of Lt. Gen:-
Ser No.
IC No., Rank, Name & Corps
(i)
MR-03539 Maj Gen J.K. Bansal, AMC
(ii)
IC-23289 Maj Gen H.M. Singh, VSM, AC
(iii)
IC-23850 Maj Gen S.S. Dahiya, AVSM, VSM
EME
(iv)
IC-24631 Maj Gen Umang Kapoor, EME
5. Based on deliberations and record of service. past
performance. qualities of leadership as well as vision. the
Board recommends IC-23289 Maj Gen HM Singh. VSM.
AC for promotion.
Sd/-
DS&CC R&D (AMS)
Member Secretary
Sd/-
VCOAS
Member"
(emphasis is ours)
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF 289
!NOIA [JAGDISH SINGH KHEHAR, J.]
The proceedings recorded by the Appointments Committee of
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the Cabinet while rejecting the appellant's claim for promotion
to the rank of Lieutenant General are .also being set out below:-
"The Ministry of Defence has, with the approval of the
Raksha Mantri proposed the promotion of IC-23289 Maj
B
Gen HM Singh, a permanently seconded officer of the
DRDO, to the rank of Lieutenant General.
2.
Maj Gen HM Singh (dob: 02.02.1949) was due for
superannuation on 29th February, 2008 on attaining the
age of 59 years which is the age of superannuation for
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officers of the rank of Major Generals who are permanently
seconded to the DRDO. A Selection Board which met on
27th February, 2008 to consider eligible officers of the
rank of Major General permanently seconded to the DRDO
for promotion to the rank of Lieutenant General,
D
recommended Major General Singh for promotion. As the
officer was due for retirement on 29th February, 2008
approval of the Raksha Mantri was obtained for giving him
· extension of service of three months in the rank of Major
General or till the approval of the Appointments Committee
E
of the Cabinet to his promotion to the rank of Lieutenant
General, whichever is earlier. Officers in the rank of
Lieutenant General retire on attaining the age of 60 years.
3. The propriety of grant of extension to the officer at the
F
verge of his superannuation and also, that of grant of
promotion to the officer while on extension has been
examined. The matter has been discussed, separately,
with officers from the Department of Personnel and
Training; the ORDO, and also, the Ministry of Defence
G
(Military Secretary's Branch). This apart, a legal notice has
been received alleging perjury on the basis of information
secured from the Ministry of Defence under the Right to
Information Act. A representation has also been received
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[2014] 1 S C.R.
A
from an officer, Maj Gen PP Das, alleging discrimination.
4. In terms of the provisions of Section 16A(4) of the Army
Act an officer who has attained the age of retirement or
has become due for such retirement on completion of his
B
tenure, may be retained in the service for a further period
by the Central Government, if the exigencies of the service
so require.
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5. It is evident from the above provisions that for grant of
extension in service. the requirement to be fulfilled.
primarily, is the exigencies of service. In the note which was
put up to the Raksha Mantri soliciting approval to the
proposal for grant of extension. no such exigency has been
cited. The only issue that was mentioned in support of the
proposal for extension was that the officer had been
recommended for promotion to the rank of Lieutenant
General. This in the background of the provisions of the
Act mentioned above. is no sufficient ground for extension.
6. The Chief Controller Research & Development with
whom the matter was discussed has provided copies of
orders issued in the years 1995 and 1996 when officers
of the rank of Major General were granted extensions.
Extensions in service were granted with the approval of the
Integrated Finance Division in the Ministry of Defence
though approval of the finance angle is not strictly relevant
to the grant of extensions. The other two instances cited
are of Shri P. Venugopalan, Outstanding Scientist in the
DRDL, Hyderabad who was granted extension pending a
decision on the question of his regular extension under
FR.56 as a Scientist; and of the post retirement
appointment of Vice Admiral PC Bhasin on contract basis
in the ATVP. These two cases are not relevant to the case
of Maj Gen Singh, present under consideration.
MAJOR GENERAL H.M. SINGH, VSM v. UNION OF 291
!NOIA [JAGDISH SINGH KHEHAR, J.]
7. An instance has been cited, during discussions, of
A
extension of service granted in the year 1997 or
thereabouts to Major General Malik who was due for
superannuation, and his promotion to the rank of Lt. Gen
while on extension.
8.