Y.K. Sabharwal, J.
(1) The petitioner was commissioned as an Officer of the Indian Army on 3rd June 1956 and has a high career profile. In due course the petitioner rose to the rank of Lt. General. He was also awarded the Mahavir Chakra, the second highest gallantry award during 1971 War. Petitioner was approved for promotion to the acting rank of a Lt. General on 18th October 1989 and was posted as Director General Military Training (DGMT). By letter dated 5th June 1990 the petitioner was informed by Army Headquarters that bids promotion to the substantive rank of Lt. General with effect from 30th November, 1989 has been approved and notified in Gazette of India dated 2nd June, 1990.
(2) In the writ petition the petitioner says that he has learnt from a report published in one of the newspapers that the Government is proposing to post him as Director General, Assam Rifles (for short 'D.G.A.R'.) and post Lt. General R. V. Kulkarni as Adjutant General in Army Headquarters. The post of Adjutant General is one of Principal Staff Officer's post. Lt. General Kulkami is junior to the petitioner. The petitioner prays for issue of a writ, directing the respondents to post him as Corps Commander or as a Principal Staff Officer and restraining the respondents from issuing an order posting the petitioner as D.G.A.R.
(3) According to respondents the posts of Corps Commanders, Principal Staff Officers and Director Generals are of equal rank and status. They say that these posts are inter-changeable and 'the seniority has never been the criteria for these postings and the petitioner has no right to challenge his posting as D.G.A.R.
(4) In order to understand the rival contentions of the parties, it is necessary to set out various posts in the Indian Army which are tenable by Lt. Generals. The Army is divided into five operational commands with each command being commanded by an Officer of the rank of Lt. General known as General Officer Commanding in Chief (GOC-in-C) or Army Commander. Besides the five operational commands there is an Army Training Command again headed by a Lt. General also known as GOC- in-C or Army Commander. There- is also a post of Vice Chief of Army Staff. The status of six Army Commanders and Vice Chief of Army Staff is equal with their pay fixed at Rs. 8,000 per month. It was decided by the Central Government in the year 1986 to have two years residual service prior to retirement as one of the criteria for appointment of the Army Commanders/ Vice Chief of Army Staff. Lt. Generals man these posts of Army Commander's and Vice Chief of the Army Staff. Each operational command has two to three Corps under its command which are again commanded by an officer of the rank of Lt. General known as Corps Commanders. Apart from the posts comprising the chain of command there are few posts of Principal Staff Officers (PSO's) who are responsible for certain vital staff functions necessary to aid the function of the fighting, forces. The posts of Principal Staff Officers are also tenable by Lt. Generals. The Principal Staff Officers are, Deputy Chief of Army Staff (Training and Coordination), Deputy Chief of Army Staff (Planning and Systems), Adjutant, Military Secretary, Engineer-in-Chief. Then General of Ordinanoe, Military Secretary, Engineer-in-Chief. Then there are other posts such as Director General, Military Training, Director General Military Operations, Director General. Military Intelligence, Director General Artillery and Director General Mechanised Forces. Director General Organisation and Personnel, Director General, Discipline-Ceremonials and Welfare, Director General Supplies and Transport, Director General Infantry, Director General Rashtriya Rifles, Director General Ordinances sad Services, Director General Electrical & Mechanical Engineers. There is also a post of Signals Officers-in-Chieif. The posts of Director Generals and post of Signals Officer-in-Chief, are tenable by Lt. Generals. The Director General Military Operations aad Director General Military Intelligence report to Vice Chief of Army Staff. The other Director Generals and Signals Officer-Hi-Chief report to one or the other Principal Staff Officer. The post of D.G.A,.R. is not within the hierarchy of India Army. It is a post under Ministry of Home, Government of India. There are also certain other posts tenable by Lt. Generals.
(5) Undisputedly the post of Army Commanders and Vice Chief of Army Staff are promotional posts and carry more authority, higher status and more emoluments. The petitioner has not laid any claim for the post of Army Commander/Vice Chief of Army Staff in view of the fact that he does not have two years residual service prior to retirement. The petitioner is due to retire on 31st March 1993. According to the petitioner the posts of Corps Commanders and PSOs are intrinsically senior as com- pared to the posts of Director Generals inasmuch as posts of Corps Commanders and Principal Staff Officers carry more. authority, higher status and superior functions. The grievance of the petitioner is that Lt. Generals junior to him have been posted as Corps Commanders and Principal Staff Officers whereas he is being posted as Director General Assam Rifles. During the pendency of the petition the orders for appointment of the petitioner as Director General Assam Rifles were issued by the Government of India and the petitioner has joined the said post. Lt. General Kulkarni has taken over as Adjutant General. The petitioner claims that he had a right to command a Corps or work as Principal Staff Officer. The pay scale of Corps Commanders, Principal Staff Officers and Director General is Rs. 7300-7600 per month. The petitioner says that by appointing him as Director General Assam Rifles, he has been virtually superseded. The petitioner has further challenged his appointment as D.G.A.R. on the ground that the said post being a deputation post he could not have been appointed without his consent.
(6) Amongst the Lt. Generals the Army Commanders and Vice Chief of Army Staff stand on a different higher footing.
(7) These posts carry higher pay as also higher status. There is no dispute on this aspect. The petitioner has not claimed any right to be appointed as Army Commander/VCOAS but has claimed a right to be appointed as Corps Commander or Principal Staff Officer. According to respondents, however, all Lt. Generals whether Corps Commanders, Principal Staff Officers or Director General, fall in the same category, and there is no distinction in the pay scale and status of these Lt. Generals. The stand of the respondents is that posts of Corps Commanders, Principal Staff Officers or Director Generals are inter-changeable and while making appointment of Lt. Generals to these pasts seniority has never been 'the criteria. They say that these posts being of equal rank and status there is no question o'f supersession. The Lt. Generals are interposed on these posts depending upon fitness, functional requirement, suitability, age and availability of a vacancy at a given point of time, etc. The respondents have also explained that while posting the Lt. Generals as Corps Commanders one of the factors taken into consideration is. the younger age profile. The younger Lt. Generals are preferred in view of the two years residual service clause 'for appointment of Lt. Generals as. Army Commanders since command of a Corps is an essential pre-requisite for appointment of Army Commanders. The respondents say that the petitioner has merely been shifted from; one post of a Lt. General to another. They say that it has been an established and consistent practice that seniority has never been a criteria for posting officers of the General cadre either to the posts of Corps Commander or as a principal Staff Officer or Director General at the Army Headquarters or Chief of Staff at Command Headquarters or D.G.A.R.or DG. N.C.C. etc. and in the case of Corps Commanders officers with a younger age profile are given preference over others provided they are otherwise suitable for that particular Corps depending upon the 'functional lequirements, availability and organisational interests. In short, the case of the respondents is that posts of Principal Staff Officers, Director Generals, Corps Commanders, Head of Training Institution and Cos Command are all interchangeable. They say that even on initial promotion as Lt. General Officers have been posted as Corps Commanders or Principal Staff Officers or Director General or Cos Command or Head of Training Institution. The respondents have denied that various Director Generals are intrinsically lower in status than Corps Commanders or Principal Staff Officers as alleged. Regarding certain facilities made available to Principal Staff Officers, Corps Commanders and Director Generals, it has been explained that these are based on functional requirement and necessity and not on status. The case of the respondents is that all Lt. Generals, irrespective o'f their assignment, except Army Commanders/ VCOAS. are at par. According to respondents, while posting never been obtained from Army Officers in the past. The respondents say that the petitioner 'can be posted as a Lt. General against any o'f the post tenable by a Lt. General and Director General, Assam Rifles, is one such post. The contention of the respondents is that the petitioner is bound and obliged to 'render continuously for a term military service to the Union in any part of the World' in terms of the Parchment Commission Generals are inter-changeable and, two, whether consent is required to be obtained before making appointment of a Lt. General as Director General, Assam Rifles.
(8) Dealing with the first question it may be noticed, that the pay scale of all Lt. Generals, except Army Commanders and Vcoas is same, namely, Rs. 7300-7600 per month. The extra privileges including additional staff attached to the posts of Corps Commanders and PSO's seems to be due to functional and administrative exigencies. The posts of Corps Commanders and Principal Staff Officers are few i.e. about 18 only and Lt. Generals are many. All Lt. Generals cannot be appointed as Corps Commanders or PSO's. Some are posted to these two posts and the rest are posted as Director Generals. The respondents have placed sufficient material on record to show that there has been a consistent practice of. cross and inter postings of officers of the rank of Lt. Generals to the various appointments and postings. Only one time selection is made by a duly constituted Selection Board. In the year 1989 the petitioner and certain other officers were approved for promotion to the acting rank of Lt. General by letter of Army Headquarters dated 18th October 1989. There is no further selection for posting a Lt. General as Corps Commander or Pso or Director General and it only remains a question of posting. It does not appear that only senior Lt. Generals were being posted as Corps Commanders and Principal Staff Officers and junior Lt. Generals as Director Generals. In November 1989 the petitioner wag posted as Director General Military Training. Further it appears that in August 1990 a Lt. General junior to the petitioner was posted as Corps Commander. The petitioner did not protest. We are not satisfied with the Explanationn of the petitioner that the protest was not lodged as he thought that the posting of a junior Lt. General as Corps Commander was only a short time adjustment. The respondents have explained that in fact three officers, namely, Lt. General G. L. Bakshi, Lt. General B. S. Marwaha and Lt. General B. K. N. Chibbar were given the command of Corps having regard to the younger age profile and suitability etc. though these Lf. Generals were junior to the petitioner. They say that the petitioner knew that the seniority was not the criteria 'for posting of Lt. Generals as Corps Commanders and that is the reason for his not protesting when these postings were made. Likewise, there have been posting of Lt. Generals junior to the petitioner as Principal Staff Officers. The petitioner did not raise any objection. In our view there has been fair amount of flexibility in the appointment of Lt. Generals for various postings within the same rank and there have been many instances of cross postings without 'following any tire basis system and making posting on the basis of seniority.
(9) Learned counsel for the petitioner next contended that it was obligatory for the. respondents to first appoint the petitioner to a Command posting and only thereafter he could be appointed to a Staff posting. In support reliance is placed on Clause 23 of Policy Compadium-1986 issued by Military Secretary Branch of Army Headquarters which reads as under:-
'23.The concept envisages that Officers' on promotion to Ma/. Gen. and Lt. Gen. will be bifurcated into the 'Command and Staff' and the 'Staff Only' streams as per details given below:- (a) 'Command and Staff' Stream. Very high calibre officers based on their merit will be promoted to this Stream. They will hold command appointments in the higher rank and thereafter be given exposure to Staff and Ere appointments as necessary. They will be- eligible for further promotion as per the existing criteria. (b) 'Staff Only' Stream,. Officers promoted to this Stream will hold only staff appointments, in the higher rank and will proceed on superannuation thereafter. These officers will not be eligible for further promotion.'
(10) The petitioner has admittedly been selected in 'Command and Staff' Stream. The concept of 'Command and Staff Stream and 'Staff only' Stream has been judicially accepted (See: Lt. General R. K. Anand v. Union of India and another 1991(3) Delhi Law 313 The Special Leave Petition filed against the Division Bench judgment of this Court has also been dismissed by the Supreme Court (See: Union of India and another v. Lt. General R. K. Anand, : AIR1992SC763 . The contention of the petitioner is that the petitioner having been selected in 'Command and Staff' stream, it was obligatory for the respondents to first appoint the petitioner on a command posting and only after holding a command posting the petitioner could be appointed to a staff posting. The respondents, on the other hand, rely upon clause 29 which reads as under:-
'29Officers selected for the 'Command and Staff Stream, appointment. Thereafter, officers of the same batch who are selected for the 'Staff Only' Stream will be promoted. thereforee, for the purpose of seniority, officers of the 'Staff Only' Stream will be junior to officers of the 'Command and Staff' Stream. After placing the officers of the 'Staff Only' Stream in suitable appointments, review selectees of the 'Commander's Staff Stream of the next batch will be promoted.'
(11) A combined reading of Clauses 23 and 29 show that between officers selected for 'command and staff' stream and officers selected for 'staff only' stream firstly, the officers selected in 'command and staff stream are to be promoted be it on command appointment or staff appointment and only after promotion of these officers of the same batch, the officers selected for staff only' stream are to be promoted. Clause 23 is not a mandate that on promotion to 'command and staff stream an officer has straightaway to be given a command appointment. It may also not be practicably feasible. There may not be any command appointment available. The posts in Command appointment are few. The posts in Staff appointment are more in number, clause 29 shows that firstly the officers selected for 'command and staff stream are to be promoted whether on a command or staff appointment and only thereafter the officers selected for 'staff only' stream have to be promoted. Clause 29 shows that the first appointment after promotion can also be to a staff posting. That in fact happened in the case of the petitioner. On being promoted as Lt. General he was posted as Director General Military Training. It is a staff posting. He did not, and in our opinion rightly, agitate that in terms of clause 23 he ought to have been given the command posting straightaway. Even according to the petitioner when he was appointed as Dgmt number of his senior officers had also not been given the Command posting.
(12) Before parting with the question of posting it may bo noticed that Indian Army being Command oriented every officer looks to a Command posting. The denial of Command posting to Senior officers and grant of it to junior officers in the same rank gives rise to a great amount of discontentment and heart burning even amongst the Officers holding as high ranks as Lt. Generals in Indian Army. In order to keep the morale of the Army high it is essential for the respondents to ensure, as far as possible, that the discontentment or heart burning amongst officers is eliminated. It can be achieved by laying down a known policy so that neither the proper and efficient working of the Indian Army is affected nor is there apprehension in the mind. of the officers of any arbitrariness and favoritism when these postings are made. Of course, certain amount of flexibility may be necessary but if a policy is spelt out discontentment among high officers can be avoided. The respondents have strongly relied upon the concept of young age profile for making appointment of Lt. Generals as Corps Commanders which is. understandable in view of the criteria of two years residual service for the post of Army Commanders. We appreciate that the respondents want to first groom' the young Lt. Generals and give them the command of the Corps as ultimately, they would be in line for appointment as Army Commanders. However, in. our opinion, the concept of the younger age profile cannot be over stretched. Prima facie the younger age profile will not have much of relevance when none of Lt. Generals being considered for posting are in line for the post of Army Commander. If out of Lt. Generals being considered for command posting none has been left with two years residual service prior to retirement the concept of younger age profile would not be a relevant consideration. The younger age profile has also no relevance for posting a Lt. General as Principal Staff Officer. In such cases, Other things being equal, it may not be proper to post officers by applying the policy of younger age profile as that is likely to lead to discontentment and heart burning amongst the senior Lt. Generals which in turn may adversely affect the morale of the Organisation which the Army cannot afford under any circumstances. We wish to say no more. We also do not wish to lay down the policy or guidelines in these matters. It is not our domain. We have emphasised on aforesaid aspects as unlike past, there have been frequent petitions filed in this court and other courts by high ranking Army Officers. We are not suggesting that the petitioning Army Officers ate always right and authorities are wrong. In case proper guidelines are laid down by the authorities and are known it will not only curtail litigation by Army Officers but would also keep the morale of the Indian Army high. The Courts have always been slow in interfering with the matter of posting and appointment in Army except in grave cases of arbitrariness and malafide exercise of power. We may refer to the Division Bench judgment of this Court in G.W. 2060/91 decided on 12th August 1991 in re: Lt. General J. K. Arora v. Union of India and others. (3) In that case, the Bench noticed that the Lt. General was being denied the post of Dgms (Army) on the ground that he had less than one year service before his retirement and because of his short tenure he was denied that posting. The Bench found that in the past officers with less than one year had been appointed to the same very post. inspire of the said finding the Bench gave an opportunity to the Army authorities to file an affidavit and place on record any policy decision which may have been taken that in future no officer with less than one year service will be selected for the post of Dgms (Army). The respondents not only expressed the inability to file the affidavit and rather submitted that it was not possible to state that in future no person with less than one year service will be appointed. Under these circumstances the Bench of which one of us (Sunanda Bhandare, J.) was a member issued a writ directing the respondents to appoint General Arora to the post of Dgms (Army). We have been informed by counsel for the parties that the Special Leave Petition filed by the Government of India against the decision of this Court in General Arora's case has been dismissed. We hope that authorities will atleast for the future frame proper guidelines and spell out the policy so as to eliminate element of discontentment and heart burning.
(13) With aforesaid observations, we hold that the posts of Corps Commanders, Principal Staff Officers and Director General are inter-changeable. There is no element o'f selection while making appointment to these posts and thus no direction can be issued to the respondents to post the petitioner as a Corps Commander or as a Principal Staff Officer.
(14) Dealing with the second question, learned counsel for the petitioner contended that the post of Director General Assam Rifles is outside the cadre of the Indian Army. The Assam Rifles is not part of Indian Army. It is a deputation, post. The petitioner could not be appointed without his consent. On the Other hand, learned counsel for respondents, contended that the post of Dg Assam Rifles is not a deputation post and as such it is not necessary to obtain the consent of an Officer before appointing him to that post. Alternatively, it Was contended that even if it is a deputation post the consent of the officer is not necessary to be taken.
(15) In the counter affidavit, the respondents have admitted that posting to Assam; Rifles is a deputation though they have denied that consent/willingness is required to be taken before making the appointment. In view of the admission contained in the counter affidavit it is not open to the respondents to contend that the post of Dg Assam Rifles is not a deputation post. Furthermore, even the office memorandum dated 13-3-92 issued by the Government of India, Ministry of Home Affairs shows that the Appointments Committee of the Cabinet has approved the appointment of the petitioner as Director General Assam Rifles on deputation post. In this view of the matter it is not open to the respondent to contend that the post of Director General Assam Rifles is not a deputation post.
(16) Under Section 4 of the Army Act, 1950 the Central Government is empowered to issue Notification and apply, with or without modifications, all of any of the provisions of the Army Act to any force raised and maintained in India under the authority of that Government and suspend the operation of any other enactment for the time being applicable to the said force. Notification under Section 4 was issued and provisions of Army Act with modification have been made applicable to Assam Rifles. That, however, does not mean that the Assam Rifles becomes the regular Army. Regular Army has been defined in Section 3 of the Army Act, 1950. 'Regular Army' means officers, junior commissioned officers, warrant officers, non-commissioned officers and other enrolled persons who, by their commission, warrant, terms of enrolment or otherwise, are liable to render continuously for a term military service to the Union in any part of the world, including persons belonging to the Reserve Forces and the Territorial Army when called out on permanent service. The Assam Rifles would not become regular Army on issue of Notification under Section 4 of the Army Act. It is true that many officers from regular Army have been posted in Assam Rifles but that does not mean that Assam Rifles has become regular Army within the meaning of Section 3 of the Act. It cannot be held, as contended by counsel for the respondents, that the petitioner is working in the regular Army while being posted as Director General, Assam Rifles. The liability to render continuously for a term military service to the Union in any part of the World does not mean that wherever an officer is posted he would be deemed to be posted in regular Army. We are unable to accept the contention of the learned counsel for the respondent that in view of the definition of term 'regular army,' wherever an officer mentioned in Section 3 of the Act is posted he is in the regular army and thus when an officer is posted to Assam Rifles he is not on deputation but is in regular army because such an interpretation will lead to absurd situation.
(17) The next question to be determined is if Assam Rifles is not a regular Army, is it necessary to obtain the consent of an officer of a regular Army before posting him. to Assam Rifles. A large number of officers of regular Army are being posted to various posts in Assam Rifles. Various posts in Assam Rifles including that of Director General are being manned. by officers of regular Army. It appears that at no. point of time, in post, consent was ever taken before appointment of an officer on a deputation post in Assam Rifles. Out of about 657 posts in the Assam Rifles, 537 posts are manned by officers o'f the regular Army. The role of Assam Rifles as approved by the government is as follows :-
'(A)Security of North Eastern Sector of the international border. (b) Maintenance of law and order in tribal areas of Arunachal Pradesh, Nagaland, Mizoram and Manipur. (c) Internal security of other areas only when police is unable to cope up with the situation. (d) Counter-insurgency operations in Nagaland, Manipur and Mizoram.'
(18) The parchment commission of the petitioner and the provisions of Army Act, Rules and Regulation enjoin upon him to observe and execute 'the Rules, regulations and orders for the governance of regular Army'. In the present case not only approval of the Ministry of defense was taken but the case was put before Cabinet Committee and posting was done after obtaining approval of Cabinet Committee. Further Regulation 99 provides that subject to the approval of the Ministry of defense the Chief of Army Staff is empowered to place the service of Army Officers at the disposal of other Ministries or Central Government and Civil administration. Regulation 99 reads as under:-
'99.Appointments Outside Ministry of defense :-Subject to the approval of Ministry of defense, Chief of the Army Staff, may place the services of Army Officers at the disposal of other Ministries of Central Government and civil administration.'
(19) It is correct that Regulation 99 is non statutory but flat does not effect its legality or applicability as the said regulation is not in contravention of any provisions of the Act or any statutory rule or regulation. In our view it is not necessary to obtain consent o'f an officer before posting him on deputation to a post in Assam Rifles. The Single Bench decision of Gujarat High Court in the case of Bhagwati Prasad v. State of Gujarat and others reported in 1977 Vol. Ii Service Law(4) Reports holding that transfer of an officer out of cadre without his consent is illegal has no applicability to the facts and circumstances of the present case. In that case the Court was not considering the provisions like the one in the Army Act and the Regulations referred to above. Accordingly, we hold that although the post of Director General, Assam Rifles is a deputation post, it is not necessary to obtain the consent of an officer before making his appointment to the .said post.
(20) In view of the aforesaid discussion, the writ petition is dismissed leaving the parties to bear their own costs.