D.D. Sharma Vs. Union of India and ors. - Court Judgment

Excerpt:
constitution of india 1950 - article 226--writ petition directing respondents to consider petitioner for promotion to the rank to brigadier by treating him to be an officer of december 1965 bath--petitioner selected for emergency recruitment--granted emergency commission on 2nd august, 1964 and permanent commission on 1st april, 1970--seniority fixed from 20th january, 1966--no justification for applying different formula for working out seniority--army instructions would not apply as they pertain to seniority--petitioner not seeking fixation of seniority but only right of consideration for promotion--promotion to rank of brigadier is by selection and on basis of seniority--for promotion to rank of brigadier 23 years service is required and nothing more--petitioner at the time of all promotions considered to be officer of 1966 batch cannot now contend that he should be treated to be officer of december 1965 batch--petitioner estopped from raking up dispute for the purpose of promotion to brigadier--latches and delay--petition dismissed. ; it does not lie in the month of the petitioner, just when the stage of promotion to the rank of brigadier arises, to contend that he should be treated to be of december 1965 batch. ; apart from the fact that on working out of the formula as shown in 1971 army instructions, the respondents are right in their stand in not treating the petitioner's seniority as of december 1965 batch, otherwise also, because of petitioner's own conduct in throughout accepting his seniority to be of 20th january 1966, he is certainly estopped now from raking up this dispute, for the purpose of promotion as brigadier and he is also liable to be non-suited in this writ petition under article 226 of the constitution, which deserves dismissal on the ground of laches and delay. - - in the additional affidavit, to which no rejoinder has been filed by the petitioner, further pleas were taken primarily to repudiate the averments of discrimination and that even otherwise the seniority in the case of the petitioner as well as the officers of the permanent commission was fixed as far back as in the year 1965 and that the petitioner cannot be allowed to urge at this belated stage that he was entitled to fixation of seniority in a different manner and that if this were to be allowed, it would lead to disorder in the army.santosh duggal, j. (1) the petitioner, a colonel int he army, has come up with this writ petition under article 226 of the constitution of india seeking a writ of mandamus to the respondents in the nature of an order and/or direction requiring them to consider the petitioner for selection/promotion to the rank of brigadier in the selection board meeting scheduled to be held on 28th february 1991 and to promote him as such, if found suitable, taking the petitioner to have been commissioned in december 1965.(2) the facts are not in dispute, and in short are that the petitioner was selected for emergency recruitment and joined training as an officer on emergency commission on 20th january 1964 and was granted emergency commission on 2nd august 1964, after completion of the period of training which actualy worked out to be six months 12 days. he was granted permanent commission on 1st april 1970 and has been in continuous service since then and after earning all the promotions as and when fell due, is at present, as already noted, holding the rank of a colonel. it appears that the respondents are considering officers of a given batch for promotion to the next rank. in so far as the promotion for brigadier that fell due in 1991 is concerned, the selection was confined to the officers of the batch of december 1965. it is this decision of the respondents which has given a cause for grievance to the petitioner, the contention being that he should be deemed to be an officer of the batch of december 1965, and not that of january 1966, as treated by the respondents.(3) petitioner's contention is two-fold. firstly, the period of training for officers of the permanent commission is about two years, and that it has never gone up to full 730 days. it is further contended that almost invariably a cadet, joining the training in january of a year has been commissioned in december of the next following year and a cadet joining training in july of a year has been granted permanent commission during june of the next following year. it is, thereforee, alleged that the respondents have not justification to take the period of 730 days as the base for arriving at the ante date of seniority to be given for the emergency commissioned officers. it is further contended that even otherwise, had the petitioner been recruited against a permanent commission, then having joined training in january 1964, in the normal course he would have been commissioned on permanent basis some time in december 1965 and that it will be discriminatory on the part of the respondents to now insist that the petitioner should be relegated to the seniority of january 1966 by working out the formula on the basis of taking two years as the prescribed period of training for permanent commissioned officers.(4) it is further pleaded that a similar matter came up before a division bench of this court in the case of col. s.p. aggarwal, which is para materia with the present case, inasmuch as he joined training on 15th january 1963 and was commissioned on emergency basis with effect from 30th june 1963 as against petitioner's date of 2nd august, 1964 and that his seniority on the basis of the formula adopted by the respondent as in the case of the petitioner, was determined as of 15th january 1965, but on a challenge being made, the division bench held that he should be treated to be officer of the december 1964 batch. the petitioner should be treated to be an officer of the december 1965 batch, and thus considered for promotion to the rank of brigadier in 1991.(5) the writ petition has been contested by the respondents. while slating that petitioner's pre-commission training as an emergency commission officer, commenced on 20th january 1964, and that he was commissioned as such on 2nd august 1964 and was granted permanent commission with effect from 1st april, 1970, it was contended that as per the regulations promulgated from time to time, the seniority of the petitioner has been rightly fixed with effect from 20th january 1966. there is specific reliance on army instructions of sai 9/s/62 as amended by ai 116 of 1971. it is further stated that the petitioner does not get any benefit in the matter of fixation of seniority on the basis of judgment in the case of col. s.p. aggarwal and that rather his seniority will further go to 2nd february, 1966 as against 20th january, 1966 fixed by the respondents. in the additional affidavit, to which no rejoinder has been filed by the petitioner, further pleas were taken primarily to repudiate the averments of discrimination and that even otherwise the seniority in the case of the petitioner as well as the officers of the permanent commission was fixed as far back as in the year 1965 and that the petitioner cannot be allowed to urge at this belated stage that he was entitled to fixation of seniority in a different manner and that if this were to be allowed, it would lead to disorder in the army. it was pleaded that the petition was liable to be dismissed on account of lathes alone.(6) i have heard the matter at length. mr. inderjit sharma, appearing for the petitioner contended that on the facts and circumstances of the case, the petitioner should be deemed to have been commissioned in december 1965 and that the army instructions issued from time to time in respect to emergency commissioned, officers cannot be applied to the petitioner at this stage, and that, in any case, the judgment in the case of col. s.p.aggarwal fully supports the petitioner's case, mr. sharma, however, very fairly conceded that the validity or virus of the army regulations or instructions was not under challenge, and further that he was not raising any issue of discriminatory treatment to emergency commissioned officer vis-a-vis permanent commission officers. his argument is plain and simple to the effect that in case the petitioner had been recruited on a permanent commission, then having joined, training in january 1964, he would have ordinarily completed the same in december 1965, and granted permanent commission, and that there was no justification for applying different formula for working out the seniority of the petitioner for the purpose of promotion. mr. sharma also contended that the army regulations of 1965 or 1969 or 1971 would not apply at this stage for the reason that these pertain to seniority, whereas the petitioner was not seeking any fixation of seniority but only a right of consideration for promotion as brigadier.(7) the learned counsel has advanced this argument on the basis that promotion to the rank of brigadier is by selection, and not on the basis of seniority, and as such seniority would be the determining factor for petitioner's consideration for promotions as brigadier.(8) this argument, in my view, suffers form inherent fallacy, because even in the case of a post where promotion is by selection, seniority is always an important factor in the sense that the officers of a given seniority are treated in the zone of consideration, and from amongst those officers, a selection is made on the basis of suitability and past performance. the fixation of seniority becomes relevant for that purpose. it would be not thereforee correct to say that army instructions of 1969 or 1971 which provide a formula for fixation of seniority of emergency commission officers for the purpose of promotion, have been wrongly applied in this case.(9) mr. sharma's next argument is that under the army instructions for being considered for promotion to the rank of brigadier, all that is required is 23 years service and nothing more. i an) constrained to say this again is a fallacious approach. all that this means is that this 23 years's service may be the minimum period as an officer for being considered as brigadier, but it cannot be the intention that every officer who has put in 23 years' service can claim a right of consideration. it is in this context that seniority, or deeming commission in a given year becomes relevant. and this explains petitioner's claim for being accorded the seniority of december 1965 batch and not that of january 1966. this situation has arisen because in the year 1990, officers of 1965 batch has fallen in the zone of consideration for promotion as brigadier. in the case of petitioner, who was recruited on emergency commission, there is no direct recruitment as permanent commission officer. accordingly, fixation of seniority for the purpose of promotion in this case has to be within the scope of 1969 or 1971 army instructions, and the formula as contemplated therein. that shall be as per 1971 instructions, which superseded all previous instructions retrospectively, and are to be applied to the present case. the emergency commissioned officers will be granted an ante date equivalent to the full pay commissioned services as emergency commissioned officers less the period of shortfall in their training, to be arrived at by deducting the period of training prescribed for grant of emergency commission from that prescribed for a particular type of pc entry.(10) mr. sharma strenuously contended that even shortfall is being erroneously calculated because the deduction is being made from the period of 730 days whereas training in the case of permanent commissioned officer has never gone up to 730 days. inspire of repeated query, however, he was not able to say as to 'what should be taken to be the number of days for working out the formula to determine the ante date for purposes of seniority, as against 730 days equivalent to 2 years. there can be no denying the proposition that there has to be some uniform formula for working out the shortfall for the purpose of fixation of seniority, within the scope of army instructions of 1971.(11) mr. sarin appearing for the respondents made a statement at the bar that the army instructions have uniformly applied and throughout a period of 730 days has been consistently taken for determining the ante date and working out the shortfall, and that the same method has been adopted in the ease of the petitioner. according to the latest instructions of 1971, the prescribed period of training is deducted from the prescribed period of training for permanent commission officer. as at present, the prescribed period for emergency commission officer is six months. according to the respondents, the period is of two years for the permanent commission officers but according to mr. sharma, who has produced the copy of the army regulations, it is about two years. he has shown by means of a chart of training, that the training in the case of permanent commissioned officers never covered full span of two years. the fallacy in the argument arises when it is urged that for determining the shortfall in terms of army instructions of 1971, full period of two years (730 days) should not be taken as the one prescribed for p.c. entry. the petitioner who joined the emergency commission and continued to be in the service of the armed forces on the basis of the army regulations and army instructions in respect to emergency commissioned officers cannot, at this stage, be allowed to urge or contend that a different formula should apply in his case. it is not disputed that emergency commissioned officers and permanent commission officers form two separate and distinct categories.(12) it is pertinent to note at this stage that records have been brought today in court and it has been shown that in the proforma for confidential reports which the officer fills up himself in his own hand, the petitioner wrote from 1971 up to 1990 while working in different ranks, his seniority as of 2th january 1966. this is what the respondents contend.(13) mr. sarin also made statement at the bar on instructions that while being considered for all promotions in the past, petitioner's seniority has been treated as of 1966 batch, and he was promoted from major to lt. col, in 1984 and then from lt. col. to colonel in october 1986, and all this time he was treated to be an officer of 1966 batch. the petitioner as late as in 1990-91 while writing his date in the confidential reports, has .given the date of his seniority as 20th january, 1966. this has been seen and verified by me, on going through the records brought in court.(14) in face of this, it does not lie in the month of the petitioner, just when the stage of promotion to the rank of brigadier arises, to contend that he should be treated to be of december 1965 batch.(15) apart from the fact that on working out of the formula as shown in 1971 army instructions, the respondents are right in their stand in not treating the petitioner's seniority as of december 1965 batch, otherwise also, because of petitioner's own conduct in throughout accepting his seniority to be of 20th january 1966, he is certainly estopped now from raking up this dispute, for the purpose of promotion as brigadier and he is also liable to be non-suited in this writ petition under article 226 of the constitution, which deserves dismissal on the ground of laches and delay. no authority need be cited for this purpose, but certain decisions are noted as having been relied on by the learned counsel for the respondents.(16) in cases, : [1970]2scr697 . rabindra nath bose and others vs . union of india and others. : 1977crilj1574 , naib subedar lachhman dass v. union of india and others. (1980) 4 sc 226, gian singh mann vs. high court of not render any assistance to the petitioner's case in so far as the contentions raised by him are concerned because, as already noted, in his case, taking period of six months into consideration as against what was actually undergone will not ensure to his benefit. it would be rather to his disadvantage.(17) in view of the above, i am constrained to dismiss the writ petition. the rule is discharged and the stay is vacated. consideration of the petitioner for promotion by the selection board, under orders of the court shall become infructuous. and can be treated as non est. it goes without saying, however, that the petitioner shall be considered for promotion in future, as per army instructions on the basis of his entitlement, and eligibility.(18) the parties are left to bear their own costs.