2016 (2) TMI 1354 - SC - Indian Laws

Doctrine of legitimate expectation - Seeking direction to the Appellant-Union of India 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 - HELD THAT - Coming to the case in hand, the plea of legitimate expectation does not appear to be of any assistance to the Respondents for two precise reasons. 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 contention 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 extracted earlier itself 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. There is no denying the fact that 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 granted to officers at different points of time and time lag could additionally be in the 0-1-2 scenario. That apart, 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 case in hand, 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 - In the absence of any perversity, unreasonableness or unfairness in the policy so introduced, we see 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 situations. It also is not a case where no reasonable person could have taken the decision which the Government have taken as regards the need for lowering the age profile of the Commanding Officers or their exit after 2-1/2 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. It is directed that the Appellants shall 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 - appeal allowed in part.

Issues Involved:
1. Applicability of AV Singh Committee recommendations to all streams.
2. Acceptance of "Command Exit Model" by the Central Government.
3. Legality and fairness in allocation of vacancies to Arms Support.
4. Whether Officers in Arms, Arms Support, and Services constitute a single cadre.
5. Legitimate expectation of batch parity in promotions among officers.

Issue-wise Detailed Analysis:

Re: Question No. 1
Applicability of AV Singh Committee recommendations to all streams:
The AV Singh Committee's recommendations were primarily for lowering the age profile of Unit Commanders in operational formations like Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD, Engineers, and Signals. The Committee did not recommend lowering the age profile or creating additional vacancies for officers in Service formations such as ASC, AOC, and EME. The additional 1484 vacancies created were meant exclusively for operational units, not for Service formations. Thus, the argument that the recommendations were for all officers across the board is without basis.

Re: Question No. 2
Acceptance of "Command Exit Model" by the Central Government:
The Central Government accepted the recommendations of the AV Singh Committee, including the "Command Exit Model" for allocation of newly created vacancies. Despite the first tranche of 750 vacancies being allocated on a pro-rata basis contrary to the recommendations, this did not negate the Government's decision. The Government's acceptance of the "Command Exit Model" was confirmed by official records and affidavits. The allocation of the first tranche on a pro-rata basis was a breach by the Army Headquarters, but it did not reverse or dilute the Government's decision.

Re: Question No. 3
Legality and fairness in allocation of vacancies to Arms Support:
The second tranche of 734 vacancies should have been allocated on a standalone basis without adjusting for the excess allocated in the first tranche. The Government's decision to allocate the second tranche on the "Command Exit Model" principle, without considering the earlier pro-rata allocation, was correct. The tenure of commanding officers in Arms Support was reconsidered and reduced to three years, resulting in a deficit of 141 vacancies. The Government agreed to create these additional vacancies to rectify the unfair distribution. These vacancies are to be filled over five years from 2009 to 2014, with promotions being retrospective for seniority but not for financial benefits.

Re: Question No. 4
Whether Officers in Arms, Arms Support, and Services constitute a single cadre:
Officers in Service streams (ASC, AOC, EME) do not constitute a single cadre with those in Arms and Arms Support. The essential attribute of transferability is absent, and the officers in different streams are not interchangeable. The term "cadre" has a specific legal connotation, and the circular dated 12th November 1987 does not establish a single cadre for all officers. The allocation of officers to different Arms and Services creates distinct cadres, each with its own promotional avenues.

Re: Question No. 5
Legitimate expectation of batch parity in promotions among officers:
The concept of legitimate expectation does not apply in this case. There was no representation or consistent past practice by the Government that created an impression of simultaneous promotions across different streams. The Defence Service Regulations provide for retrospective seniority to maintain batch parity, acknowledging that promotions can occur at different times. The policy decision to lower the age profile of officers in Combat Arms and Arms Support is reasonable and in public interest, and does not violate any enforceable rights. Thus, the plea of legitimate expectation is rejected.

Conclusion:
The appeals are partly allowed. The Government is directed to create 141 additional posts of Colonel for the Combat Support stream to be utilized for promotions retrospectively from 2009 to 2014. Each party will bear its own costs.

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