# UNION OF INDIA AND ANR v. LT. COL. P.K. CHOUDHARY AND ORS

- **Citation:** [2016] 2 S.C.R. 426
- **Court:** Supreme Court of India
- **Decided:** 2016
- **Case number:** Civil Appeal No. 3208of2015
- **Bench:** T. S. Thakur, Kurian Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-and-anr-v-lt-col-p-k-choudhary-and-ors-31011
- **Pages:** 42

## Headnote

Armed Forces Tribunal Act, 2007 - s. 31 - Restructuring of
officers' cadre of the-Army - Recommendations by the AVS Committee
- Sanction of additional vacancies in the rank of Colo11e/ -
Additio11a/ vaca11cies released in two phases - Fist tranche of
vaca11cy distributed amongst Arms, Arms Support and service 011
pro rota basis - Denial of pro-rota share in the 2nd tranche of the
additio11al vaca11cies released by the Governmelll - Governme11t
policy, chal/e11ge to, by the respo11de11ts, serving in the Arms Support
and Service Corps of the Army- Tribunal quashed the policy ci11eular
issued by the Government of l11dia - Issua11ce of directio11 to U11io11
of J11dia to co11sider the respo11dents for promotio11 to the ra11k of
Co/011el by creati11g supernumerary posts - 011 appeal, held: The
Commiltee recommended lowering of age profile a11d consequent
creatio11 of additio11a/ vacancies for Arms and Arms SupportOperatio11al U11its(Armoured Corps, Infantry, Mecha11ised I11fa11try,
Artillery, AD, Engi11eers a11d sig11als) a11d not for services stream
(ASC, AOC, EME a11d other Minor Corps) - Since ASC, AOC, EME
Officers did 11ot be11efit, there was neither a11y violatio11 of the
recomme11datio11s made by Committee 11or was the distributio11 of
the additio11a/ vaca11cies discrimi11atory - Recommendations of the
Committee regarding allocation of additional vacancies on
"Command Exit Model" basis was accepted by the Government and
a/location of first tranche of 750 vaca11cies by Army Headquarters
on pro rota basis co11trary to the Government decisio11 a11d the
G recommendations of the Committee did not affect the validity of the
decision nor amounts to reversal of the said decision - There was
110 illegality, irregularity or unfairness i11 the mat/er of a/location
of vacancies to Arms Support on "Command Exit Model" principle
- A/location of 7 34 vacancies, comprising second tranche, on
.standalone basis, is the only right method for allocation - Further,
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426
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UNION OF INDIA
v. LT. COL. P. K. CHOUDHARY
427
the officers .in service streams do not constitute a single cadre with
those serving i11 Arms and Arms Support for purposes of allocation
of additional vacancies - There is no basis for the submission that
/egitimate expectation arose in the minds of the respondents that
they shall be promoted to the next rank simultaneously with the
officers ·serving in Arms or Anns Support - Thus, the order passed
by the tribunal set aside __:-Issuance of direction to appellants to
create 141 additional posts of Colonel to be allocated to 'Combat
Support' streain - Service Law.
Armed Forces - Command tenure - Scope of judicial review
- Held: Command tenure is a policy matter - Scope of judicial review
is extremely .. limited - Defence experts or the Government to
determine the tenure of a commanding officer for Arms or Arms
Support having regard to variety of factors - Stipulation of a
command tenure of four years for Arms Support Officers taking
into consideration of the nature of duties and the need for battle
preparedness of the force not arbitrary as to call for interference
by/he Court/tribunal - Judicial review.
Administrative law - Legitimate expectation - Concept of -
Held: Arises out of .a reasonable expectation of being treated in· a
certain way by an administrative authority even though the person
who has such an expectation has no right in law to receive the
benefit expected by him - Any such expectation can arise from an
"express promise" or a "consistent course of practice or procedure"
which the person claiming the benefit may reasonably expect to
continue - If denial of legitimate expectation in a given case amounts
to denial of a guaranteed right, the same can be questioned u/Art.14
of the Constitution but a claim based on mere legitimate expectation
.without anything more cannot ipso facto give a .dght to invoke these
principles.
Partly allowing the appeals, the Court
· HELD: 1. The order passed by the tribunal is set aside and

## Text

_Characters 0–39,958 of 100,496. This is a partial read: ask again with offset=39958 for what follows._

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[2016] 2 S.C.R. 426
UNION OF INDIA AND ANR.
v.
LT. COL. P.K. CHOUDHARY AND ORS.
(Civil Appeal No. 3208of2015)
FEBRUARY 15,2016
[T. S. THAKUR, CJI AND KURIAN JOSEPH, J.]
Armed Forces Tribunal Act, 2007 - s. 31 - Restructuring of
officers' cadre of the-Army - Recommendations by the AVS Committee
- Sanction of additional vacancies in the rank of Colo11e/ -
Additio11a/ vaca11cies released in two phases - Fist tranche of
vaca11cy distributed amongst Arms, Arms Support and service 011
pro rota basis - Denial of pro-rota share in the 2nd tranche of the
additio11al vaca11cies released by the Governmelll - Governme11t
policy, chal/e11ge to, by the respo11de11ts, serving in the Arms Support
and Service Corps of the Army- Tribunal quashed the policy ci11eular
issued by the Government of l11dia - Issua11ce of directio11 to U11io11
of J11dia to co11sider the respo11dents for promotio11 to the ra11k of
Co/011el by creati11g supernumerary posts - 011 appeal, held: The
Commiltee recommended lowering of age profile a11d consequent
creatio11 of additio11a/ vacancies for Arms and Arms SupportOperatio11al U11its(Armoured Corps, Infantry, Mecha11ised I11fa11try,
Artillery, AD, Engi11eers a11d sig11als) a11d not for services stream
(ASC, AOC, EME a11d other Minor Corps) - Since ASC, AOC, EME
Officers did 11ot be11efit, there was neither a11y violatio11 of the
recomme11datio11s made by Committee 11or was the distributio11 of
the additio11a/ vaca11cies discrimi11atory - Recommendations of the
Committee regarding allocation of additional vacancies on
"Command Exit Model" basis was accepted by the Government and
a/location of first tranche of 750 vaca11cies by Army Headquarters
on pro rota basis co11trary to the Government decisio11 a11d the
G recommendations of the Committee did not affect the validity of the
decision nor amounts to reversal of the said decision - There was
110 illegality, irregularity or unfairness i11 the mat/er of a/location
of vacancies to Arms Support on "Command Exit Model" principle
- A/location of 7 34 vacancies, comprising second tranche, on
.standalone basis, is the only right method for allocation - Further,
H
426
/
UNION OF INDIA
v. LT. COL. P. K. CHOUDHARY
427
the officers .in service streams do not constitute a single cadre with
those serving i11 Arms and Arms Support for purposes of allocation
of additional vacancies - There is no basis for the submission that
/egitimate expectation arose in the minds of the respondents that
they shall be promoted to the next rank simultaneously with the
officers ·serving in Arms or Anns Support - Thus, the order passed
by the tribunal set aside __:-Issuance of direction to appellants to
create 141 additional posts of Colonel to be allocated to 'Combat
Support' streain - Service Law.
Armed Forces - Command tenure - Scope of judicial review
- Held: Command tenure is a policy matter - Scope of judicial review
is extremely .. limited - Defence experts or the Government to
determine the tenure of a commanding officer for Arms or Arms
Support having regard to variety of factors - Stipulation of a
command tenure of four years for Arms Support Officers taking
into consideration of the nature of duties and the need for battle
preparedness of the force not arbitrary as to call for interference
by/he Court/tribunal - Judicial review.
Administrative law - Legitimate expectation - Concept of -
Held: Arises out of .a reasonable expectation of being treated in· a
certain way by an administrative authority even though the person
who has such an expectation has no right in law to receive the
benefit expected by him - Any such expectation can arise from an
"express promise" or a "consistent course of practice or procedure"
which the person claiming the benefit may reasonably expect to
continue - If denial of legitimate expectation in a given case amounts
to denial of a guaranteed right, the same can be questioned u/Art.14
of the Constitution but a claim based on mere legitimate expectation
.without anything more cannot ipso facto give a .dght to invoke these
principles.
Partly allowing the appeals, the Court
· HELD: 1. The order passed by the tribunal is set aside and the
appellants are directed to create 141 additional posts of Colonel
to be allocated. to 'Combat Support' stream for being utilized by
appointing officers who are eligible for promotions against the
same as in the year 2009 over a period of 5 years till 2014. [Para
48) [467·D·E)
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(2016] 2 S.C.R.
2. A careful reading of the Committee report leaves no
manner of doubt that the Committee emphasized the need for
bringing down the age profile of Unit Commanders in Operational
Units only. The Committee recognized Armoured Corps, Infantry,
Mechanised Infantry, Artillery, AD, Engineers and signals as
operational formations leaving out ASC, AOC, EME and other
Minor Corps. The report clearly suggests that the additional
creation of 1484 vacancies in the rank of Colonels did not take
into account vacancies for Colonels in ASC, AOC, EME and other
Minor Corps. As a matter of fact, the report very clearly states
that the age profile of such Service formations for Minor Corps
could be higher t_han that required to operate in the combat
conditions. Thus, there was neither any recommendation
regarding reduction in age profile of Unit Commanders in ASC,
AOC and EME nor was there any recommendation for creation
of addHional vacancies to benefit officers serving in those
formations. Additional vacancies were specifically recommended
for the operational formations and were meant to be allocated to
those formations depending upon the recommended tenure of
the Commissioning Officers in those formations and the possibility
of re-command. Inasmuch as ASC, AOC, EME Officers did not
benefit from the creation of additional vacancies, there was neither
any violation of the recommendations made by the Committee
nor was the distribution of the additional vacancies discriminatory
as alleged. [Para 20) [447-E-H; 448-A-B)
3.1 The recommendations of the AVS Committee regarding
allocation of newly created vacancies being made on "Command
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Exit Model" was attepted by the Government. It is trite that the
Government alone could say whether the recommendations of
ttre Committee were accepted by it. The Government answered
that question in the affirmative on the basis of a statement made
at the bar as _also on the basis of contemporaneous official record
and the affidavit filed by a responsible officer acti,ng for and on
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behalf of the Government. [Para 22) [448-H; 449-A)
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3.2 The 750 vacancies comprising the first tranche released
by the Government were allocated on a pro rata basis contrary to
the recommendations and the decision of the Government. The
said allocation would not by itself undo either the
recommendations made by the Committee or the decision taken
UNION OF INDIA
v. LT. COL. P. K. CHOUDHARY
by the Government to allocate the newly created vacancies on
"Command Exit Model" principle. Just because allocation of
vacancies in the firsttranche was made by the Army Headquarters
ignoring the recommendations of the Committee and the
Government decision cannot possibly result in the reversal of
the Government decision nor can it negate the Command Exit
Model. So also, simply because the earlier allocation was not
reversed as the officers had picked up their ranks does not affect
the binding nature of the Government decision that the allocation
should be on "Comnumd Exit Model". [Para 24] [450-B-D]
3.3 Having said that, the adfustment/set off of the vacancies
so allocated against the entitlement of the arms and arms support
in the second tranche does not appear to be justified. If the Army
H~adquarters committed a mistake in allocating vacancies on a
pr.o rata basis contrary to the recommendations and decision of
the Government, any such error cannot adversely affect officers
serving in arms and arms support who may have been entitled to
a higher number of vacancies in the second tranche but who were
deprived of such allocation on account of the error in the previous
allocation made on pro rata basis. The ASG conceded that the
~econd tranche of 734 vacancies could and ought to have been
allocated on "Command Exit Model" principle without taking into
consideration the excess, if any, allocated to the arms and the
arms support on pro rata basis in the first tranche. The ASG filed
a statement showing the number of vacancies that would have
ordinary fallen to the share of arms support corps if tile second
tranche of 734 vacancies were allocated without making any
adjustment of vacancies previously allocated. Thus, the
recommend11tions of the Committee regarding allocation of
additionat vacancies on "Command Exit Model" basis had been
accepted by the Government and that allocation of the first tranche
of 7 50 vacancies by the Army Headquarters on pro n1ta basis
contrary to the Government decision and the recommendations
of the Committee did not affect the validity of the decision nor
amount to reversal of the said decision or its dilution in any
manner. [Para 25] [450-D-H; 451-A-B]
4.1 The allocation of 734 vacancies, comprising the second
tranche, when made on standalone basis, (without any adjustment
of the excess allocated in the first tranche) is the only right method
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for allocation. The excess allocated in the first tranche, against
which officers who may not have otherwise picked up the higher
rank were promoted, cannot possibly deny the rightful due to
those who would be entitled to claim promotion against the
vacancies in the second tranche. [Para 28] [451-G-H]
4.2 The command tenure is a policy matter on which the
scope of judicial review is extremely limited. What should be the
tenure of a commanding officer for Arms or Arms Support is for
defence experts or for the Government to determine on expert
advice having regard to a variety of factors. If the Government
has upon consideration of the nature of duties and the need for
battle preparedness of the force has taken a decision to prescribe
a tenure of upto four years for officers serving in Arms Support,
it would be difficult to fault the same in the absence of any patent
perversity in any such decision especially when no breach of any
fundamental or other right of any one complaining against the
prescription of such a tenure is demonstrated. No such infirmity
has beeu pointed. The ASG submitted that the tenure of
commanding officers in arms support shall for purpose of creation/
allocation of vacancies, be taken as three years instead of four
years. The Government has on that basis calculated the number
of vacancies that would be additionally due to arms support on
Command Exit Model. [Para 28) [452-C-F]
4.3 To the extent of a deficit of 141 vacancies in the cadres
of Colonel to Arms Support (Artillery,AAD, Engineers and signals)
an unfair distribution of the vacancies from out of the second
tranche were released by the Government. The Government have
not taken an adversial stand nor have the Government opposed
the undoing of the injustice caused to officers who were eligible
for promotion in the year 2009 but were not promoted on account
of lesser number of vacancies allocated to Arms Support. On the
contrary the ASG submitted that the Government would do
anything to prevent any frustration or disenchantment among the
officers serving in the army by creating 141 additional posts in
the cadre of Colonel for allocation to Arms Support so that the
same are utilized appropriately for promoting officers eligible for
such promotion. The ASG, however, suggested a method of
utilization of the posts so created over a period of ten years to
avoid an inequitable distribution and also to minimize the scope
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY
of any of the batches getting any nndne benefit at the cost of
other batches. The ASG bas also highlighted problems of
implementation like managing of the cadre in case the utilization
of the additional vacancies is to be done within a shorter time
frame of say five years. The additional 141 vacancies which ought
to have been allocated to Arms Support in the year 2009 were
unfairly denied to them. It has taken the aggrieved officers and
legal process considerable time to have the said unfairness and
injustice reversed by creation of additional vacancies. These
vacancies shall, therefore, be taken to have been created as in
the year 2009 aud promotions against the same made from out of
officers who were eligible for such promotion as in that year. The
Selection Board that deals with such promotions has empanelled
offi~ers based on their inter se merit and suitability. All that is,
therefore, required is to operate the said merit list for utilization
of the additional vacancies now being created. In other words,
the additional creation shall, for all intents and purposes, be
deemed to have been available for being filled-up as in the year
2009-but to be actually filled-up in 5 years between 2009-2014.
Those who pick-up the next rank against the said vacancies shall
have the benefit of retrospective seniority as is the practice in
the Army but such seniority on appointment shall not entitle them
to the benefit of higher pay-scale or arrears against the post to
which they are promoted. In other words, financial benefits shall
accrue to officers promoted pursuant to the creation of additional
vacancies only with effect from the date they are actually promoted.
[Para 29] [453-A-H; 454-A]
5.1 The officers allocated to Arms and Arms s·upport and
Services do not comprise a single cadre for purposes of promotion.
This is said so because transferability which is one of the essential
attributes of posts comprising a single cadre is absent in the case
of service officers on the one hand and those serving in Arms
and Arms Support ou the other. Merely because the incumbents
of two posts are placed in the same scale of pay does not determine
whether such posts constitute a cadre. [Para 30] [454-E-F]
5.2 The officers serving in the Service stream of the Army
do not constitute a single cadre with officers serving in Arms and
Arms Support, no matter they may all be drawing the same salary,
holding the same rank, wearing the same uniform and serving
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the same employer with similar service benefits. The true position
is that allocation of officers to different Arms and Services puts
them in distinct cadres, with the result that those comprising a
particular cadre will have his or her promotional avenues available
against the posts comprising that cadre alone notwithstanding
the fact that the Government of India may, as a policy, attempt to
ensure as far as possible that officers of a given batch pick up
their ranks around the same time or within a reasonable span of
their counterparts in other cadres or that the disparity in the
time frame for promotion is removed by making promotions
retrospective from the dates officers in the other cadre have been
promoted. Reliance by the respondents upon Circnlar, is
misplaced. That circular, was issued in connection with the
implementation of the Fourth Pay Commission to remove doubt
regarding the interpretation of the term "cadre" as applicable to
army officers. It was in that context that the expression "cadre"
was explained in the circular by reference to the method of
allocation to Arms and Services, and similarity of other conditions
of service. The circular does not constitute a statement of law
much less can the exposition of the term 'cadre' as given therein
operate as estoppel against the onion. The circular is an internal
communication and has been issued in a totally different context.
Thus, the officers in service streams do not constitute a single
cadre with those serving in Arms and Arms Support for purposes
of allocation of additional vacancies created pursuant to the
recommendations made to the Government by the Committee.
[Para 32) [455-H; 456-A-E)
6.1 The choice of the cadet plays an important role in his
allocation and induction in the stated 11 streams. That is precisely
why towards the completion of pre-commission training each cadet
is required to submit his'/her choice of induction into any of the
11 streams. Policy guidelines in this regard have been issued
from time to time by the Adjutant General's Branch which lay
down the procedure by which cadets are allocated to different
Arms, Combat Support Arms and Services. The broad allocation
policy as stipulated iu Adjutant General's Branch Circular issued
to the Indian Military Academy, Dchradun lays down the working
parameters to ensure equitable distribution of GCs/LCs to Arms/
Services through consideration of several factors stipulated in
UNION OF INDIA
v. LT. COL. P. K. CHOUDHARY
the same. Merit and caliber spread is one of the factors taken
into consideration. The policy envisages that first 1 % GCs (in
order of merit) would constitute the "Super Block" and will be
allotted to the Army/Service of their choice irrespective of other
factors. It also provides for dividing GCs into blocks consisting
of 25 to 35 GCs to ensure an even distribution of caliber to all
Arms and Services. Parental claims are also taken into
consideration while making such allocation just as the choice of
General Cadet is one such factor that is taken into consideration.
The policy envisages certain factors to be kept in mind while
exercising the choice by the cadets. [Para 34] [457-E-H; 458-A]
6.2 Para 19(e) of the policy guidelines, inter alia, provides
that as far as possible, efforts shall be made not to allot Arms/
Services to any GC who has not opted for it as one of his choices.
Out of a total of30 officers who had filed three original applications
before the Tribunal, 26 officers were allotted to the streams of
their first choice, 2 were allotted to the streams of their second
choice while only one got allotted to the stream of his 3'd choice.
One can, therefore, visualize that choice made by the officers
prevails as has happened in the case at hand where an
overwhelming number of 26 out of 30 officers have been given
their first option while 2 out of 30 only were given their 2'd choice.
GCs who made their choices are presumed to be fully aware of
the functional and operational requirements of the obligations of
the streams for which they had opted as also their future career
prospects for the same. [Para 35] [459-A-C]
6.3 The concept of Legitimate expectation arises out of what
may be described as a reasonable expectation of being treated in
a certain way by an administrative authority even though the
person who has such an expectation has no right in law to receive
the benefit expected by him. Any such expectation can arise from
an "express promise" or a "consistent course of practice or
procedure" which the person claiming the benefit may reasonably
expect to continue. The question of redress which the person in
whom the legitimate expectation arises can seek and the approach
to be adopted while resolving a conflict between any such
expectation, on the one hand, and a public policy in ~neral public
interest on the other, present distinct dimensions every time the
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SUPREME COURT REPORTS
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plea of legitimate expectation is raised in a case. If denial of
legitimate expectation in a given case amounts to denial of a right
that is guaranteed or is arbitrary, discriminatory, unfair or biased,
gross abuse of power or in violation of principles of natural justice
the same can be questioned on the well-known grounds attracting
Article 14 of the Constitution but a claim based on mere legitimate
expectation without anything more cannot ipso facto give a right
to invoke these principles. [Para 41, 45] (462-B-D; 465-F-G]
6.4 In the instant case, the plea of legitimate expectation
is not of any assistance to the respondents. Firstly, there is no
real basis for the respondents to argue that the Government of
India had either by representation or by any sustained course of
conduct created an impression in the minds of the respondents
that any additional vacancies created to the lower age profile of
commanding officers serving in Combat Arms or Combat Arms
Support shall also benefit those serving in the Service Streams
of the Army. There is no factual basis laid by the respondents in
the pleadings before the tribunal to suggest that any such
impression was gathered by officers serving in the Service
Streams.There is also no basis for the submission that a legitimate
expectation arose in the minds of the respondents that they shall
be promoted to the next rank simultaneously with the officers
serving in Combat Arms or Combat Arms Support. As a matter
of fact, the provisions of para (68) of the Regulations for the Army
envisages the grant of promotion to officers from different streams
at different points of time depending upon several factors which
bring about the time lag for such considerations. Conscious of
the fact that such officers serving in different streams may pick
up the next rank at different points of time, the Regulations
provide for grant of retrospectivity to the promotions so granted
to restore inter se batch parity to such officers. The said Regulation
continues to be operative and regardless of the date when the
officer is promoted, his promotion is so related back as to protect
his seniority vis-a-vis his colleagues from the batch serving in
other streams. Far from creating any impression or any
expectation that promotions shall be simultaneous, the
Regulations clearly provide for grant of retrospective effect to
the promotions only with a view to restore seniority. This clearly
implies that in the very nature of things the promotions could be
UNION OF INDIA
v. LT. COL. P. K. CHOUDHARY
granted to officers at different points of time and time lag could
additionally be in the 0-1-2 scenario. [Para 46] [465-H; 466-A-E]
6.5 Legitimate expectation as an argument cannot prevail
over a policy introduced by the Government which does not suffer
from any perversity, unfairness or unreasonableness or which
does not violate any fundamental or other enforceable rights
vested in the respondents. In the instant case, the Government
has, as a matter of policy, decided to lower the age profile of
officers serving in Combat Arms and Combat Arms Support
pursuant to the recommendations made by the Expert
Committees. There is nothing perverse, unreasonable or unfair
about the policy that the age of officers serving in Combat Arms
and Combat Arms Support will be lowered by creating additional
vacancies to be allotted on Command Exit Model, as such there
is no reason to allow the argument based on legitimate
expectation to unsettle or undo the policy which is otherwise
laudable and intended to render the Indian Army more efficient
and better equipped for combat situ.ations. It also is not a case
where no reasonable person could have taken the decision whic!J
the Government have taken as regards the need for lowering
the age profile of the Commanding Officers or their exit after 2112 to 3 years to occupy positions which the Government have
created for the officers to occupy till they are considered for
promotion to the next higher rank.[Para 47][466-G-H; 467-A-C]
K. S. Srinivasan vs. Union of India (UOI) 1958 SCR
1295:AIR 1958 SC 419; Chakradhar Paswan vs. State
of Bihar & Ors. 1988 (3) SCR 130:1988 (2) SCC 214;
Hara Bhupal vs. Union of India and Others 1997 (2)
SCR 455:(1997) 3 SCC 561; S. I. Roop/al and Another
vs. Lt. Governor through Chief Secretary, Delhi and
others 1999 (5) Suppl. SCR 310:(2000) 1 SCC
644;State of U.P. & Ors. vs. Bharat Singh & Ors. 2011
(4) seR 525:(2011) 4 SCC 120; Food Corporation of
India v. Kamdhenu Cattle Feed Industries 1992 (2)
Suppl. SCR 322:(1993) 1 sec 71;Union of India v.
Hindustan Development Corporation and Ors. 1993 (3)
SCR 128 : (1993) 3 sec 499:Punjab Co111111u!1icatio11s
Ltd. v. Union of India and Ors. (1999) 4 SCC 727: 1999
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SUPREME COURT REPORTS
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(2) SCR 1033;D1: Chanchal Goyal (Mrs.) v. Stute of
Rajasthan (2003) 3 SCC 485: 2003 (2) SCR ll2;Ram
Pravesh Si11gh v. Stute of Bihur (2006) 8 SCC 381: 2006
(4 ) Suppl. SCR 872; Sethi Auto Serrice Statio11 a11d
Anr. v. Delhi Developmem Authority and Ors. (2009) 1
SCC 180: 2008 (14) SCR 598;Confederation of Exservicemen Association I'. Union of India (2006) 8 SCC
399:2006 (4) Suppl. SCR 872;State of Bihar and Ors.
v. Kalyanpur Cements Ltd. (2010) 3 SCC 274: 2010
(1) SCR 928;Monnet !spat and Energy Ltd. v. Union of
India and Ors. (2012) 11 SCC 1:2012 (7) SCR 644 -
referred to.
Attorney General for New South Wales (1990) 64 Aus
LJR 327 - referred to.
Case Law Refeence
1958 SCR 1295
Referred to.
Para 30
1988 (3) SCR 130
Referred to.
Para 30
1997 (2) SCR 455
Referred to.
Para 31
1999 (5) Suppl. SCR 310
Referred to.
Para 31
2011 ( 4) SCR 525
Referred to.
Para 31
1992 (2) Suppl. SCR 322
Referred to.
Para 31
1993 (3) SCR 128
Referred to.
Para 42
1999 (2) SCR 1033
Referred to.
Para 43
2003 (2) SCR 112
Referred to.
Para 44
2006 (4 ) Suppl. SCR 872
Referred to.
Para 44
2008 (14) SCR 598
Referred to.
Para 44
2006 (4) Suppl. SCR 872
Referred to.
Para 44
2010 (1) SCR 928
Referred to.
Para 44
2012 (7) SCR 644
Referred to.
Para 44
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3208
of2015
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY
437
From the Judgment and Order dated 02.03.2015 of the Armed
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Forces Tribunal, Principal Bench, New Delhi in Original Application No.
430 of2012
WITH
Civil Appeal Diary Nos. 11682 and I 0623 of2015
ManinderSingh, ASG, R. Balasubramanian, Nalin Kohli, Ms. Pujitha
Gorantla, Prabhas Bajaj, Santosh Kumar, R. S. Jena, B. V. Balaram
Das, Ms. Meenakshi Lekhi, Harish Pandey, Manish Kumar, Jitendra
Tripathi, Ms. Neela Gokhale, Gaurav Kumar, Devanshu Shanna, Ms.
Kamakshi S. Mehlwal, Ms. Sonia Mathur, Advs. with him for the
appearing pa1ties.
The Judgment of the Cou11 was delivered by
T. S. THAKUR, CJI. I. These appeals under Section 31 of the
Armed Forces Tribunal Act, 2007 are directed against a judgment and
order dated 2"' March, 2015 passed by the Armed Forces Tribunal,
Principal Bench, New Delhi, whereby Original Application No. 430/2012
filed by the Respondents has been allowed and policy circular dated 20'h
January, 2009 issued by the Government oflndiaquashed with a direction
to the Appellant-Union oflndia to consider the Respondents for promotion
to the rank of Colonel by creating supernumerary posts with effect from
the date the said Respondents were eligible for such promotion. Facts
giving rise to the proceedings before the Tribunal and the present appeals
may be summarized as under:
2. The Respondents were commissioned into various Corps/
streams of the Indian Army after they successfully passed out from the
Indian Military Academy/Officers Training Academy. The initial allocation
of the respondents to different Corps was based on parameters
prescribed for that purpose depending inter alia upon the number of
actual vacancies in Arms, Arms Support or Services, operational
commitments and requirements arising from new raisings. Merit of the
candidates, the need for an equal distribution of vacancies applying what
is described as 'Black Method' and the individual choice expressed by
the cadets were also some of the major factors that were taken into
consideration while making allocations.
3. It is common ground that there was no cha! lenge to the allocation
of cadets to Arms, Arms Support or Services at any point of time. It is
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also not in dispute that four out of the five Respondents viz. Lt. Col.
P.K. Choudhary, Lt. Col. G.S. Dhillon, Lt. Col. A.K. Pandey and Lt.
Col. R.M.S. Pundir had opted for commission into Army Service Corps
(AMC) and none of them had opted either for Combat Arms or Arms
Support. Similarly, Lt. Col. Ajay Chawla-Respondent No.5 in this appeal
had given Army Service Corps as one of the options of his choice. The
respondents were accordingly allocated and have served in their
respective Corps and Raisings as Lt. Colonels, which rank they held at
the time of filing Original Application No.430of2012 in the Tribunal and
continue to do so at present.
4. Post-Kargil War, the Government of India constituted what
was called Kargil Review Committee which was followed by a Committee
headed by Shri Ajay Vikram Singh ('the AVSC', for short) with a view
to explore ways and means for enhancing the operational preparedness
of the Indian Army in its fighting capabilities especially in Combat Arms.
The Committee comprised. apart from Shri Ajay Vikram Singh, a
representative of the Ministry of Defence (Finance), Director General
(MP&PS),Army He<idquarters, Joint Secretary(G), Ministry of Defence
and several senior officers of the Indian Anny including Adjutant General,
Army Headquarters, Chief of Personnel, Naval Headquarters and Air
Officer-in-Charge Personnel, Air Headquarters. The Committee appears
to have conducted extensive deliberations and submitted a report
suggesting both short term and long term measures that were, in its
opinion, necessary for restructuring of the Officers' Cadre of the Army.
The Committee recommended that although the report primarily focused
on the restructuring of the Officers' Cadre of the Army, the same will be
applicable in an equal measure to the Navy and theAir Force who could
work out their service specific requirements including additional vacancies
required at various ranks on operational/functional grounds. While we
shall deal with the recommendations made by the Committee in greater
detail in the later part of th is judgment, we may point out that one of the
significant recommendations which the Committee made to the
Government was about the lowering of age profile of the Officers in the
Indian Army. For instance, instead of existing age profile of 41-42 years
for Colonels the Committee recommended lowering of the age profile to
36-37 years. Similarly, for Brigadiers the Committee recommended an
age profile of 44-45 years instead of 50-51 years at present. The age of
Major Generals was profiled at 51-52 years as against 54-55 years under
the existing system. The age of Lieutenant Generals was, according to
UNION OF !NOIA v. LT. COL. P. K. CHOUDHARY
[T. S. THAKUR, J.]
the Report, profiled at 55-56 years instead of 56-57 years under the
existing system. The lowering of age profile was considered by the
Committee to be necessary for enhancing the optimal combat
effectiveness of the Army. Tu achieve that objective, the Committee
recommended creation of 1484 additional vacancies in the ranks of
Colonel out of which 400 vacancies were to be released in the first year
while the another 300 vacaucies were to be released in the second year
after an annual review. The implementation of the recommendations
had to be progressive, coordinated and corroborated for the desired results
to flow for the benefit of the Army.
5. The appellants' case is that the recommendations made by the
AVS Committee were accepted by the Government and 1484 additional
vacancies in the rank of Colonel were sanctioned with a view to lowering
the age of Commanding Officers in combat and combat support arms
resulting in an increased upward mobility of the Officers Cadre. The
additional vacancies were to be released in two phases spread over a
period of four years from 2004 to 2008.
6. It is common ground that in the first phase, the Government
released 750 vacancies, out of the newly created 1484 vacancies, in the
rank of Colonel by an order dated 21" December, 2004. These vacancies
were sanctioned by upgradation ofappointments in the rank of Lt. Colonel
to Colonel in a phased manner.spread over a period of two years i.e.
2004-2005 and were distributed amongst Arms, Arms Support and
Services on a pro-rata basis. The result was that not only did the
additional vacancies become available to Arms and Arms Support but
the same were allocated even to those serving in Services like ASC,
AOC and EME. Thus far, there was no difficulty as officers serving in
Arms, Arms Support and Services in different Corps of the Army were
all equally benefitted by the fresh creation. The problem started with
the release of another 734 vacancies in the second phase by an order
dated 3" November, 2008. These additional vacancies were sanctioned
by effecting upgradation in a phased manner spread over a period of
five years and were directed to be allocated on what is described as
"Command Exit Model .. which the Government oflndia claimed was
in consonance with the functional and operational requirements of the
Army.
7. Aggrieved by the denial ofa pro-rata share in the 2"' tranche
of the additional vacancies released by the Government, officers like the
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respondents who are serving in the Arms Support and Service Corps of
the Army, filed Original Applications No. 430 of2012, 77 of2014 and
147 of2015 before the Armed Forces Tribunal, Principal Bench, New
Delhi to challenge the Government's policy dated 29'" January, 2009 on
the ground that the same was discriminatory, arbitrary and violative of
fundamental rights guaranteed to them. They prayed for quashing of
the policy besides a direction to the Government of India to allocate
vacancies in the rank of Colonel to each Corps on pro rata basis and
convene Special Boards for promotion of the eligible Officers to such
posts. The respondents also prayed for a direction to the Union of India
to grant to them 'Ante-Dme' seniority and arrears of pay and allowances
from the date an officer immediately junior to the said respondents in the
rank of Lt. Colonel serving in Arms and Arms Support Units was granted
his promotion.
8. The Appellant-Union oflndia contested the claim made by the
respondents and argued that the recommendations made by the AVS
Committee were limited to Officers serving in the Arms and Arms Support
and specifically left out services from their purview. It was also argued
that the Government of India had approved and accepted the
recommendations made by the AVS Committee and sanctioned 1484
additional vacancies specially created for allocation on "Command Exit
Model" to Arms and Arms Support Units for whose benefit such new
vacancies were created. The allegation that the policy formulated by
the Government or the "Command Exit Mode/" for allocation of
vacancies was discriminatory and/or arbitrary was stoutly denied.
9. By its order dated 2'' March, 2015 the Armed Forces Tribunal,
Principal Bench, New Delhi has allowed the Original Application(s) filed
by the respondents and quashed Government oflndia policy dated 21"
January, 2009 with the direction that the Government of.ndia shall create
supernumerary posts so that the additional vacancies so created are
allocated to all the three streams on a pro ruta basis. The present appeal
under Section 31 of theArmed Forces Tribunal Act, 2007 calls in question
the correctness of the judgment and order as already noticed above.
l 0. We have heard learned counsel forthe parties at considerable
length who have taken us through the judgment and order passed by the
Tribunal and the documents placed on record in support of their respective
versions. The following questions fall forour determination.
UNION OF INDIA
v. LT. COL. P. K. CHOUDHARY
441
(T. S. THAKUR, J.]
1.
Did the AV Singh Committee recommend lowering of
A
age profile and consequent creation of additional
vacancies for all the three streams viz. Arms, Arms
Support and Services or were the recommendations
limited to Arms and Arms Support only?
2.
Were the recommendations made by the AV Singh
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Committee regarding the need for creation of
additional vacancies and their allocation on
"Command Exit Model" accepted by ·the Central
Government? If so, what is the effect of allocation of
the first tranche of 750 vacancies by the Army
Headquarters o·n pro rata basis among all the three
streams?
3.
Whether there was any illegality, irregularity or
unfairness in the matter of allocation of vacancies to
Arms Support on "Command Exit Model" principle?
4.
Do Officers serving in Arms, Arms Support and
Services constitute a single cadre?
5.
In case the answer to the question No. 4 is in negative,
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is there any legitimate expectation for officers
commissioned into the Indian Army in a given batch
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that in the matters of their future promotion the
Government will maintain batch parity among officers
allocated to Arms, Arms Support and Services.
Re.: Question No. 1
11. On behalf of the respondents it was argued by Ms. Meenakshi
Lekhi, Advocate that the recommendations made by the AVS Committee
were applicable to officers serving in all the three streams of the Army
viz. Arms~ Arms Support and Services and that the creation of 1484
additional vacancies of Colonels was meant to benefit all such officers
regardless of the Corps in which they were commissioned. Support for
that submission was largely drawn by learned counsel from the AVS
Committee report and the fact that the 750 vacancies sanctioned and
released in the first tranche were distributed pro-rata among all the
formations. It was urged that having given to officers serving in Arms
Support and Services, their share of the newly created vacancies on a
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pro-rata basis and denial of a similar share out of vacancies sanctioned
in the second phase was unjustified and discriminatory.
12. On behalf of the Appellant-Union of India it was contended
by Mr. '.vlaninder Singh, ASG, that the recommendations made by the
AVS Committee favoured creation of additional vacancies only for Arms
and Arms Support leaving out 'Services' like ASC, AOC and EME. It
was argued that the recommendations were accepted and the vacancies
sanctioned for being filled-up on 'Command Exit Model' which model
constituted the very basis of the report submitted by the Committee.
The fact that 750 vacancies created in the first phase were distributed
among Arms, Arms Support and Services on a pro-rata basis did not,
according to Mr. Singh, by itself entitle officers serving in 'Services' to
claim a pro-rata share in the second tranche of vacancies created by
the Government. lfthe pro-rata allocation to services was not in tune
with the recommendations made by the Committee and the decision
taken by the Government, the same could not create any right or equitable
claim in favour of those who had benefitted from the mistake earlier
committed argued the learned counsel.
13. The entitlement to a share in the newly created vacancies
depends upon whether the Committee had recommended lowering of
age profile for officers serving in the 'Services' stream of the Army that
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is because the creation of additional vacancies was meant to achieve a
purpose - viz. lowering of age profile of the Commanding Officers.
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14. The answer to the question whether the Committee
recommended lowering of age profile and creation of additional vacancies
for Arms, Arms Support and Services, can in turn,,be answered only by
reference to the report of the Committee. We have been taken through
the report over and over again by learned counsel for the parties, but,
we find it difficult to accept the submission made by Ms. Lekhi that the
recommendations were for the benefit of all officers and streams across
the board. A careful reading of the report would show that the Army
Headquarters had made its presentations to the Committee followed by
a series of meetings to discuss and deliberate upon each one of the
issues referred for examination to the Committee.