Ravindera Sadashio Kshirsagar vs Union Of India & Ors

May, 2001 the Army Headquarters formulated certain

proposals and forwarded them to the Ministry of Defence

drawing attention to certain shortcomings and imbalances in

the organizational structure of the Officer Cadre. After

examining the proposals so made, the Ministry of Defence

constituted a Committee in July, 2001 under the

Chairmanship of the then Secretary, Ministry of Non-

Conventional Energy Sources, Shri Ajai Vikram Singh

(hereinafter referred to as "the AVS Committee") to

examine the issues and make recommendations within three

months. However, the AVS Committee submitted its report

to the Ministry of Defence in January, 2003. The main issue

considered by the AVS Committee was Cadre stagnation and 3

mobility. The AVS Committee after extensive deliberations

inter alia recommended:- (a) to grant time based rank of

Lieutenant Colonel at 13 years of service as per the criteria

drawn by the Army Headquarters; (b) corresponding

reduction in age profile of junior officers through grant of

substantive ranks of Captains and Majors early to make it

compatible with the overall aim of brining down the age

profile of officers. The Committee also recommended that

the rank of Colonel (Time Scale) be granted at 26 years of

service. The Military Secretary Branch, Army Headquarters,

New Delhi issued guidelines for implementation of the

recommendations so made by the AVS Committee on

21.12.2004. The Army and Air Force duly promoted all its

Commissioned Officers who had completed 26 years

reckonable commissioned service as on 16.12.2004 in

compliance of the recommendations made by the AVS

Committee.

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5. As regards the Navy, the Ministry of Defence,

Government of India vide its communication dated

11.3.2005 addressed to the Chief of Naval Staff conveyed

the sanction of the President of India for revision of the

various terms and conditions of service of Naval Officers,

except Medical and Dental Officers. The communication

dealt with the details about substantive promotions. In the

said communication it was further stated that the detailed

criteria and procedure for grant of substantive rank of

Captain (Time Scale) to be notified by the Integrated

Headquarters of Ministry of Defence (Navy).

6. Thereafter, the Integrated Headquarters of Ministry of

Defence (Navy) vide its communication dated 14.3.2005

made a detailed scheme providing promotions to non-select

ranks. The Communication makes it clear that the

fundamental tenet for implementation of the scheme is to

protect inter-se seniority among officers as per Navy list.

The objective sought to be achieved is to lay down the 5

modalities with minimum impact on command and control

structures and traditional naval ethos. It further provides

that in order to maintain existing inter-se seniority,

Commanders (Time Scale) and Lieutenant Commanders who

have been finally superseded will become eligible for

promotion to Captain (Time Scale) only after all erstwhile

acting Commanders (Select List) had been promoted to

Captain (Select List)/Captain (Time Scale)/retired.

7. Being aggrieved by the above said stipulation of the

conditions the appellant herein and as well as the other

similarly situated Naval Officers made several

representations to the respondents pointing out that such

stipulation makes the Presidential Order null and void. The

representations were rejected. Thereafter the appellant

herein challenged the policy decision of the Integrated

Headquarters of the Ministry of Defence (Navy) by filing the

writ petition No. 1503 of 2006 before the High Court raising

several contentions. The High Court vide the impugned 6

order dated 19.10.2007 came to the conclusion that the

petition has no merit and accordingly dismissed the Writ

Petition. Hence this appeal.

8. We have heard the learned counsel for the appellant as

well as the respondents and perused the impugned

judgment and the material made available on record.

9. Before adverting to the submissions made by the

learned senior counsel Shri L. Nageshwar Rao and as well as

Shri. Gopal Subramanium, learned Additional Solicitor

General it is required to notice that the AVS report is

primarily focused on the restructuring of the officer cadre of

the Army. It is no doubt true, the report is made applicable

in nearly equal measure to the other two services also.

However, the Navy and the Air Force are required to work

out their service specific requirements including the

additional vacancies, which will be required at various ranks

on operational/functional grounds. The report makes it 7

clear that the vacancies that may be necessary to meet

service specific requirements are to be pursued by the

individual service Headquarters separately.

10. Be that as it may, the Government of India/Ministry of

Defence vide its communication referred to herein above

addressed to the Chief of Naval Staff while conveying the

sanction of the President of India for revision of various

terms and conditions of service of Naval Officers, except

Medical and Dental Officers which inter alia provides as

under:

"2 - Substantive Promotion: To reduce the age of profile and supersession levels in the Navy, as also to improve vertical mobility, promotion to substantive ranks will be made based on eligibility criteria indicated below:

Rank Eligibility Criteria a) sub Lieutenant On commissioning b) Lieutenant 02 years as Sbt. 8

c) Lieutenant 04 years from date of promotion to substantive Lt. d) Commander 11 years from date of promotion to substantive Lt. e) Captain (time 26 years of reckonable scale) commissioned service"

Clause 5 of the same provides as under:

"Those serving in the rank of Commander

(Time Scale) will now be eligible for grant of substantive rank of commander. The existing rank of Commander (Selection) shall remain applicable till the existing Commanders (Selection) are either promoted to the rank of Captain (Selection) or Captain (Time Scale) or are retired. No further promotions to Commander (Selection) shall be made."

11. We must make it clear at the threshold that we are

not impressed by the contention that the Navy under the

garb of `service specific requirements' rendered the entire

policy and the AVS report which was accepted by the

government of India nugatory. The report itself makes it

explicitly clear that its primary focus was on the

restructuring of the officers' cadre of the Army, while 9

making it applicable to the other two services including the

Navy which has to work out its service specific requirements

including the additional vacancies. The Government's

directive dated 11.3.2005 and the criteria and guidelines for

grant of rank of Captain (Time Scale) dated 2.11.2005

were evolved by Integrated Headquarters, Ministry of

Defence (Navy) in the light of the observations so made in

the AVS Report. In the criteria and guidelines so evolved it

has been noticed that immediate grant of promotion to

Commanders (Time Scale) with 26 years of commissioned

service to the rank of Captain (Time Scale) is untenable

since it would have an impact on the sanctity of the inter se

seniority. The Navy Headquarter was conscious that the

implementation by the two other services has been based

on mitigating circumstances such as their geographical

dispersion and selective placement. The Indian Navy policy

is practical and based on time tested, functional and

traditional norms followed even pre-AVS Committee. The

guidelines clarified that the new regulations do not preclude 10

promotion of erstwhile graded Lt. Commanders

(subsequently not placed on elect list for promotion to

Captain) or as to one Commanders (Time Scale) and Lt.

Commanders (N graded) finally superseded to the rank of

Captain (Time Scale), but only appropriately deferred till

such time the provisions of para 3 (c) of the guidelines are

complied with. Para 3 (c) of the guidelines reads as under:

"Erstwhile R1/R2 graded Lt Cdrs. subsequently not placed on Select List for promotion to Captain and erstwhile Cdrs. (Time scale) and Lt Cdrs. (N graded) (finally superseded), will become eligible for promotion to Captain (Time Scale) only after all erstwhile Ag. Cdrs. (Select List) (PB 3/04) have been promoted to Capt. (Select List/Capt (Time Scale)/or have retired."

12. It was further contended by the learned senior counsel

for the appellant that paragraph 3 of the communication

dated 11.3.2005 cannot have the effect of deferring the

promotion of Commander ( Time Scale) who have already

completed 26 years of service. It was also submitted that if

the impugned Naval policy is implemented then no 11

Commander (Time Scale) could ever be considered for his

promotion to the rank of Captain (Time Scale) for a long

time as most of them will retire before they can be

considered for promotion to the rank of Captain (Time

Scale).

13. In reply, the learned Additional Solicitor General based

on the material made available on record submitted that if

the Commanders (Time Scale) are to be promoted to the

rank of Captain (Times Scale) immediately as claimed by

the appellant, it would result in supersession of 1300

Commanders (Select List) in a single stroke who were senior

to the appellant. The learned Additional Solicitor General

highlighted that the terms and conditions of service of the

Indian Navy are different from the Army and the Air force. It

was also submitted that it is not as if the Commander ( Time

Scale) has been denied promotion to the rank of Captain

(Time Scale) but it has only been deferred. 12

14. In our considered opinion, the High Court before whom

the similar submissions were made rightly rejected the

same. There is no dispute about the fact that as on the date

of communication dated 11.3.2005 there were altogether

1300 Commanders (Select List) who were senior to the

Commanders (Time Scale). There is also no dispute that

Commander (Select List) is always by selection and the

Commander (Time Scale) is automatic on completion of 26

years of service subject to other requirements. The High

Court is right in coming to the conclusion that if the

communication is to be read as suggested, it would result in

all, Commanders (Time Scale) though in the Navy list are

juniors to Commanders (Select List) or acting Commanders

(Select) have to be considered for promotion to the post of

Captain(Time Scale). Precisely for that reason the

Headquarter (Navy) came to the conclusion that it would

affect the command and control structure in the Indian

Navy. Obviously, that is not the object sought to be

achieved by implementing the AVS report.

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15. Whether the Communications dated 14.3.2005 and

2.11.2005 have the effect of denying the chance of

promotion to the Commander (Time Scale)? Whether they

are violative of Article 14 of the Constitution of India?

16. It appears from the material on record that the

appellant like most other Commanders will retire before

they can be considered for the promotion to the rank of

Captain (Time Scale). No Commander (Time Scale) will be

eligible for consideration till 2015 by which time most of

them would have retired. It is, however, explained that

about 420 Officers (130 erstwhile Commanders (Time

Scale)) and 290 `N' graded Lt. Commanders (Lt.

Commanders who have not been select listed for

Commanders) would continue to be eligible for promotion.

It is further explained that para 3 (a) of the Government

letter dated 11.3.2005 was aimed to bring the

implementation of the AVS Report in consonance with 14

Regulation 151 of Navy Regulations. The whole idea as is

evident from para 3 (a) of the communication dated

11.3.2005 of the Government of India is to protect the inter

se seniority amongst officers as per Navy list. Regulation

151 (5) (d) of Regulations for Navy Part-III provides that

Officers promoted by time scale to the rank of Commander

shall retain on the `non-selection' list and their inter-se

seniority as before their promotion. It is thus clear that the

Commander (Time Scale) will continue to be junior to all

Commanders (Select) including the acting Commander

(Select). If the policy as suggested by the appellant is to be

implemented the rank structure in the Navy which

determines the command and control structure would get

radically altered. The Naval list provides that Commander

(Select) and acting Commander would rank senior to

Commander (Time Scale) even if Commander (Time Scale)

has put in more years of service as Commander (Time

Scale). If the guidelines and the policy dated 11.3.2005 are

understood as suggested by the appellant the entire 15

protection given to the Commander (Select List) in order to

maintain inter-se seniority in the naval list would get

disturbed. In the circumstances, the High Court came to the

right conclusion to repel the submission based on Article 14

of the Constitution of India.

No other contention is urged.

17. For the aforesaid reasons, we find no merit in this

appeal and the same is, accordingly dismissed.

..........................................J. ( Lokeshwar Singh Panta)

..........................................J. ( B. Sudershan Reddy )

New Delhi;

March 16, 2009 16