Union Of India & Ors vs Narinderjit Singh Sindhu

promotion to the rank of Major General in accordance 16 2

with the Rules and his service profile in the Army

Aviation Corps.

2. The relevant facts emerging from the record of the

case are as under:

The respondent was commissioned in the Indian

Army in the Regiment of Artillery on June 23, 1968 in the

rank of Second Lieutenant. After grant of Commission,

the seniority of the respondent was re-fixed with effect

from August 21, 1969. Thus, for the purpose of

promotion and career advancement, he became an officer

of 1969 Batch. The Government of India, Ministry of

Defence, sanctioned formation of a nucleus Additional

Directorate General Army Aviation at Army Head

Quarters by order dated October 29, 1986. The selection

grade vacancies including the post of Major General were

to be from within the sanctioned cadre of the Army and

were to remain unfilled for a period of one year till the

post of Additional Director General Army Aviation was

sanctioned by the Government of India. The Chief of 16 3

Army Staff approved the establishment of a permanent

cadre of officers for the Army Aviation Corps by an order

dated April 17, 1997. In the said order/letter, it was

mentioned that the cadre initially would have 15%

permanent officers and 85% would be borrowed from the

other cadres and would be built up in a graduated

manner to 100% permanent cadre. By the said letter,

cadre structure was formulated. Regarding allocation of

vacancy in the rank of Major General to permanent

cadre, it was mentioned that it would be decided later.

The initial induction was to be on voluntary basis with an

irrevocable one time option. It was also provided by the

said order that Aviation Corps Officers would be eligible

for induction into general cadre on the lines as officers of

supporting Arms, i.e., after selection based on positive

recommendation in designated Command and staff

assignment.

In May, 1997 the respondent was promoted to the

rank of Brigadier in the Regiment of Artillery. On

September 1, 1997 a letter was issued by Army Head 16 4

Quarters seeking application from volunteers for transfer

to Army Aviation as per the terms and conditions set out

in the letter/order dated April 17, 1997 passed by the

Chief of Army Staff. The record shows that the President

of India approved following Peace Establishments of Army

Aviation: -

a) Additional Directorate General Army Aviation, at Army

Head Quarters.

b) Command (Aviation) Branch at Eastern, Western and

Northern Commands.

c) Command (Aviation) Branch Southern and Central

Commands.

The President also sanctioned selection grade ranks as

under: -

(a) Major General - 1 (Offset provided Ex Pay Commission Cell).

(b) Brigadiers - 7 ........................

It was also mentioned in the said order that three

selection grade ranks of Brigadiers for which offsets have 16 5

not been identified would remain suppressed till suitable

offsets were identified by the SD Directorate and removal

of this suppression would be carried out in consultation

with MOD (Fin.). The decision of the President was

communicated by the Government of India, Ministry of

Defence, New Delhi vide communication dated November

27, 1997 to the Chief of the Army Staff. Along with the

communication dated November 27, 1997, appendix A

was also sent which was in the following terms: -

"Appendix A to Government of India, Ministry of Defence letter No. 00659/PE/Misc./AA-5/ 1875/DO-1/D(GS-I) Dated 27 Nov., 1997.

(The information given in this document is not to be communicated decision directly or indirectly to the press or to any person not authorized to receive it)

PE No. 00659/PE/Misc.AA-5/ 1975/DO-1/D(GS-1) Dt. 27th Nov., 1997 (Three pages)

ADDITIONAL DIRECTORATE GENERAL ARMY AVIATION ARMY HEAD QUARTERS PEACE ESTABLISHMENT 16 6

SUMMARY

Personnel

Officers

Army - 25 JCO - 2 Other Ranks - 44 Total - 71

Transport

Car Ambassador - 1

Gypsy - 2

Motor Cycle - 2

Total - 5

----------------------------------------------------------

Details Number Notes

----------------------------------------------------------

1. Personnel Officers Additional Director General (Maj. Gen.) (a) 1 Deputy Director General (Brig) (a) and (i) 2 Directorate (Col) (a) 6 AMS (Lt. Col) (a) (b) 1 16 7

General Staff Officers (Lt. Col.) (a) (h) 8 General Staff Officers (Maj) (a) (h) 7 Total 25

Junior Commissioned Officer (b) JCO (Clerk) (c) (d) (e) 2 Other Ranks Personal Assistant 9 Clerk (GD) (c) (d) (f) 15 Drivers (c) (f) 3 Driver Motor Cycle (c) (f) 2 Draughtsman (c) (d) (g) 2 Jetliner Operator (c) (g) 1 Runner 11 Despatcher 1 Total other tanks 44

2. Transport Motor Cycle 2 Car Ambassador 1 Gypsy 2 Total transport 5

GENERAL NOTES

(a) Officer to be trained aviator

(b) To function under MS-6 16 8

(c) Rank as per Corps roster

(d) To be computer qualified

(e) One JCO to function under MS-6

(f) To be provided by Regiment of Artillery

(g) To be provided by Corps of Engineers

(h) Two officers to be qualified on computer

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

On December 14, 1997, the respondent voluntarily

applied for permanent transfer from the Regiment of

Artillery to Army Aviation Corps. By a communication

dated November 6, 1998, the transfer of the respondent

to Army Aviation Corps was approved with immediate

effect by the Army Head Quarters. Between the year

1997 and 1999, the respondent commanded 373(I)

Artillery Brigade in the Regiment of Artillery. The

respondent assumed the appointment of Brigadier

(Aviation) Head Quarters Western Command at

Chandimandir on June 24, 1999. On December 22,

2001, the respondent submitted a non-statutory 16 9

complaint to the Chief of Army Staff against non-

consideration of his name for promotion to the next rank

of Major General in the Army Aviation Corps, since he

was the senior most Brigadier in the Army Aviation Corps

(Permanent Cadre). The complaint of the respondent was

considered by the Chief of Army Staff but was rejected on

June 10, 2002 on the ground that no appointment of

Major General was authorized to Army Aviation Corps

(Permanent Cadre). By the said communication the

respondent was informed that if he so wished, he should

seek reversion to the Regiment of Artillery.

3. Feeling aggrieved, the respondent filed CWP No.

10037 of 2002 before the High Court of Punjab and

Haryana at Chandigarh praying, inter alia, to direct

the appellants to consider his case for promotion to

the rank of Major General in Army Aviation Corps.

He also prayed that the appellants be restrained

from posting an ex-cadre officer to the Post of

Additional Director General Army Aviation, Army 16 1

Head Quarters. The petition filed by the respondent

was contested by the appellants. The High Court,

by the impugned judgment, has directed the

appellants to consider the case of the respondent for

promotion to the rank of Major General in Army

Aviation Corps, giving rise to the instant appeal.

4. This Court has heard the learned counsel for the

parties at length and in great detail. This Court has

also considered the documents forming part of the

appeal.

5. The fact, the respondent had a reasonably good

service profile and was awarded various

distinctions, as mentioned in the impugned

judgment, is not in dispute. The respondent was

promoted on selection to the post of Brigadier in the

Regiment of Artillery in the year 1997. The

appellants had invited applications for conversion to

Army Aviation Corps and in response thereto the

respondent had submitted application on December 16 1

14, 1997. The respondent was permanently

converted to the Army Aviation Corps on November

6, 1998. It is relevant to notice that the respondent,

having opted for conversion from Regiment of

Artillery to Army Aviation Corps, he was precluded

from again opting for Regiment of Artillery. This is

so in view of the letter/order dated April 17, 1997,

referred to earlier. As per the guidelines mentioned

in the said communication, Aviation Officers were to

be groomed in stipulated criteria appointments and

due career protection was to be given to those

posted in "hi-tech" appointments like test Pilots.

On the basis of these clear terms, the respondent

had applied for conversion to the Aviation Corps on

permanent basis. The respondent left his

permanent Corps after considering various aspects

including the chances of future promotion in the

Aviation Corps. Initially, the allocation of vacancy

in the rank of Major General in the Aviation Corps

was not decided. However, the process of exercising 16 1

an option was irreversible one and the officer was

left with no option to revert back to his parent

Corps. The respondent had made a non-statutory

complaint as his name for promotion to the next

rank of Major General was not considered. It was

rejected vide letter dated June 10, 2002. The only

reason mentioned for rejecting the claim of the

respondent was that the appointment of Major

General was not authorized for Army Aviation

Corps, Permanent Cadre and holding of selection for

the said rank was not possible. This Court finds

that the reason given by the Chief of Army Staff for

turning down the request made by the respondent

to consider his case for promotion to the post of

Major General, was totally erroneous and contrary

to the record.

6. As observed earlier, one post of Major General was

allocated to the Army Aviation Corps, which is

evident from the communication dated November 16 1

27, 1997. While providing a post for Major General

in Army Aviation Corps, one post of Major General

provided in Pay Commission Cell was Offset. The

claim made by the appellants that the provision of

post of Major General, made in Army Aviation Corps

was mere allocation of vacancy by the Chief of Army

Staff and not for release of vacancy for Army

Aviation Corps, cannot be accepted in view of the

contents of the communication dated November 27,

1997 nor the contention that the issue of allotment

of specified and unspecified vacancies was required

to be determined by Chief of Army Staff can be

appreciated. Though the order rejecting the

complaint of the respondent does not mention so, a

stand was taken by the learned counsel for the

appellants before this Court that at the time when

the complaint was made by the respondent, the post

of Major General in Army Aviation Corps was being

manned by a Major General, who was brought from

Artillery Corps. On question being asked as to 16 1

whether the Major General, who was brought from

Artillery Corps and was manning the post of Major

General in Army Aviation Corps, had voluntarily

applied as contemplated by the Scheme for being

absorbed in Army Aviation Corps, the learned

counsel could not give any reply. Nor the learned

counsel could give reply to the question whether

condition that once an officer opts for Army Aviation

Corps would not be entitled to revert back to his

parent Corps, was made applicable to the Major

General, who was brought from Artillery Corps and

was manning the post of Major General in Army

Aviation Corps. There is no manner of doubt that

bringing a Major General from different cadre to

man the post of Major General in Army Aviation

Corps was illegal and contrary to the guidelines laid

down by the appellants themselves. The record

would show that after sanction to the formation of

the nucleus Additional Directorate General Army

Aviation at Army Head Quarters vide order dated 16 1

October 29, 1986, a permanent and regular cadre

was established for the Army Aviation Corps vide

order dated April 17, 1997 passed by the Chief of

Army Staff. Having sanctioned the cadre structure

by the order dated April 17, 1997, Selection Grade

ranks were provided by communication dated

November 27, 1997 under which the post of Major

General was sanctioned after offsetting the post of

Major General provided in Ex Pay Commission Cell.

Under the circumstances, this Court is of the firm

opinion that no other Major General could have

been brought to Army Aviation Corps for manning

the post of Major General sanctioned for the said

establishment.

7. A conjoint and purposeful reading of the documents

produced on record of the case by the parties makes

it evident that the post of Major General had already

been earmarked and specified for Army Aviation

Corps to which sanction of the President of India 16 1

was granted and conveyed. The language of the

documents on record do not in any manner suggest

that Army Aviation Corps had no specified vacancy

in the rank of Major General. After creating a

permanent cadre and specifying the post of Major

General in the Army Aviation Corps, the appellants

were treating the same as an unspecified vacancy to

be manned by an officer to be brought from the

other Corps, which was erroneous and not justified

at all. The High Court has rightly observed that the

inevitable effect of filling up the post of Major

General sanctioned in Army Aviation Corps by

bringing Major General from other Corps had the

adverse effect of marring the chances of 16 1

promotion of the officers belonging to Army Aviation

Corps.

8. On the facts and in the circumstances of the case,

this Court is of the opinion that a just direction is

given to the appellants to consider the case of the

respondent for promotion to the post of Major

General in Army Aviation Corps and no case is

made out for interfering with the same in the

instant appeal. The appeal, which lacks merit,

therefore, deserves to be dismissed.

9. For the foregoing reasons, the appeal fails and is

dismissed. There shall be no order as to costs.

.....................................J. [J.M. Panchal]

.....................................J. [Gyan Sudha Misra] New Delhi;

September 29, 2010.