{"id":148181,"date":"2006-10-31T00:00:00","date_gmt":"2006-10-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/major-general-r-s-balyan-vs-the-secretary-ministry-of-on-31-october-2006"},"modified":"2018-12-20T02:25:54","modified_gmt":"2018-12-19T20:55:54","slug":"major-general-r-s-balyan-vs-the-secretary-ministry-of-on-31-october-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/major-general-r-s-balyan-vs-the-secretary-ministry-of-on-31-october-2006","title":{"rendered":"Major General R.S. Balyan vs The Secretary, Ministry Of … on 31 October, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Major General R.S. Balyan vs The Secretary, Ministry Of … on 31 October, 2006<\/div>\n
Author: L S Panta<\/div>\n
Bench: Arijit Pasayat, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  4619 of 2006\n\nPETITIONER:\nMajor General R.S. Balyan\n\nRESPONDENT:\nThe Secretary, Ministry of Defence,Government of India, & Ors\n\nDATE OF JUDGMENT: 31\/10\/2006\n\nBENCH:\nArijit Pasayat & Lokeshwar Singh Panta\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n[Arising out of S. L. P. (C) No.10045 of 2006]<\/p>\n
Lokeshwar Singh Panta, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tThe challenge in this appeal by special leave is to the
\nfinal judgment and order dated 29.05.2006 of the High Court
\nof Delhi, whereby the Writ Petition No.5214\/2005 filed by Maj.
\nGen. R. S. Balyan-appellant herein came to be dismissed.  By
\nthe order coming under challenge, the High Court held that
\nseniority of the appellant and Maj. Gen. Rakesh Puri
\n(Respondent No.5) and Maj. Gen. P.K. Mago (Respondent No.6)
\nought to be determined according to Para 2 of the Government
\nof India O.M. No.2(4)\/92\/D(Inspection) dated 04.05.1993, as
\namended vide O. M. No.21(4)\/92\/D(Inspection) dated
\n22.12.1993 and not by Para 68 of the Regulations for the
\nArmy, 1962 (revised edition 1987).\n<\/p>\n
\tBriefly stated, the facts are as follows.\n<\/p>\n
\t The appellant was commissioned in the Army on
\n09.06.1968 whereas the Respondent No.5 was commissioned
\nin the Corps of Engineering on 25.12.1966 as Second
\nLieutenants.  In the common seniority list of Second
\nLieutenants, respondent No.5 was senior to the appellant.  The
\nappellant was promoted to the rank of Substantive Major on
\n09.06.1981 and the respondent No.5 was promoted to the
\nrank of Substantive Major on 25.12.1979 in the Directorate
\nGeneral of Quality Assurance (DGQA).  The DGQA has
\nfollowing four disciplines:\n<\/p>\n
(1)\tArmament
\n(2)\tVehicle & Engineering
\n(3)\tElectronics
\n(4)\tStores <\/p>\n
\tThe appellant joined the Armament discipline while the
\nrespondent joined the Vehicle & Engineering discipline.   The
\nname of the appellant was at Sl. No. 49 in the Gradation list of
\n1988 whereas the name of respondent No.5 was at Sl. No.45
\nbeing senior to the appellant.  The appellant superseded three
\nofficers who were senior to him in Armament discipline, whose
\nnames were held at Sl. Nos. 28, 38 and 46.  According to the
\nappellant, an officer who gets ‘A’ Grade (Outstanding) would
\nget accelerated and out-of-turn promotion over his seniors
\nwho got only ‘B’ Grade.  If only one vacancy is available, the
\nofficer who gets ‘A’ Grade alone would be promoted ignoring
\nhis seniors who get only ‘B’ Grade.  As the appellant was given
\n‘A’ Grade, he got accelerated promotion to the available
\nvacancy in the Armament discipline as Brigadier on
\n07.11.2000 but the respondent No.5, who got only ‘B’ Grade,
\ncould not be promoted to the rank of Brigadier for want of
\nvacancy in his discipline and he was promoted as Brigadier
\nonly on 11.02.2000.  The appellant was again considered for
\npromotion as Major General and he was given the substantive
\nrank of Major General w.e.f. 25.05.2002 in accordance with
\npara 68 of the Regulations for the Army, 1962.  The
\nrespondent No. 5 was granted substantive rank of Brigadier
\nw.e.f. 11.2.2002 and substantive rank of Major General w.e.f
\n1.10.2004.\n<\/p>\n
\tAfter 1998, seniority in the DGQA had never been
\npublished, accordingly the other officers, who were adversely
\naffected by the wrong conferment of seniority to the appellant,
\nwere not aware as to how the same had been done.  It was
\nonly on 18.08.2004 when the seniority list was published that
\nthe officers adversely affected became aware about the wrong
\nconferment of seniority to the appellant.  Major General S. C.
\nGulati made a representation objecting to the placement of the
\nappellant in the seniority list contrary to the instructions
\ngoverning the DGQA.  At that stage, a complete review of
\nseniority within the DGQA was carried out and in such review,
\nit was decided that the appellant should be given substantive
\nrank of Brigadier w.e.f. 05.04.2002 and that on that basis he
\nwas considered for further promotion to the rank of Major
\nGeneral along with eight other officers viz., Brig. R. Khosla,
\nBrig. M. Kashyap, Brig. R. Puri (respondent No. 5), Brig. T. S.
\nRao, Brig. P. K. Mago (respondent No. 6), Brig. B. V. Murthy,
\nBrig. K. P. Sinha and Brig. J. D. Sapatnekar.  In the said
\nconsideration, the appellant is given ‘B’ grading, i.e. “fit for
\npromotion”, which is the same grade as was given to
\nrespondent Nos. 5 and 6 respectively.  On the basis of the
\nassessment of the grading of the appellant and respondent
\nNos. 5 and 6, the Board conferred seniority to respondent No.5
\nw.e.f. 01.10.2004, respondent No.6 w.e.f. 31.01.2005 and the
\nappellant w.e.f. 01.03.2005 respectively as Major Generals.
\nThe respondent-authorities issued a revised seniority list
\ndated 16.03.2005 whereby the appellant was demoted as a
\nBrigadier and was made junior to the respondent No. 5.
\n\tThe appellant filed the above-said Writ Petition in the
\nHigh Court of Delhi which came to be decided on 29.05.2006
\nholding that the appellant was junior to respondent No. 5 in
\nthe substantive rank of Major, therefore, his claim for seniority
\nover respondent No.5 founded merely on the Gazette
\nNotification cannot be sustained in view of the interpretation
\nput by the Court on the respective effects of Para 68 and O. M.
\ndated 04.05.1993 as amended by O. M. dated 22.12.1993.
\nThe Division Bench further said, “Since both the petitioner
\nand the respondent No.5 were slated for retirement by the end
\nof June 2006, the plea for promotion to the rank of Lt. General
\nin accordance with this judgment should be considered
\nexpeditiously and not later than 20th June, 2006.  Even if
\nthere is any procedural delay in considering the case of the
\npetitioner and respondents No. 5 and 6 in accordance with the
\nlaw laid down by this judgment, then notwithstanding the fact
\nthat any of the protagonists retires in the meanwhile, the
\nconsideration for the post of Lt. General shall be done and if
\nany candidate is found fit for promotion, such promotion shall
\nbe granted with effect from 1st June, 2006.”   Consequently,
\nthe Writ Petition was dismissed and stood disposed of
\naccordingly.\n<\/p>\n
\tFeeling aggrieved and dissatisfied by the judgment and
\norder of the High Court, the appellant has filed this appeal.
\n\tWe have heard learned counsel for the parties and with
\ntheir assistance examined the entire material on record.
\n\tMr. V. Sivasubramanian, learned counsel appearing on
\nbehalf of the appellant, contended the following three-fold
\nsubmissions.\n<\/p>\n
(1)\tThe appellant had superseded respondent Nos. 5 and
\n6 due to the appellant having been graded ‘A’ twice by
\nthe two QASBs in the years 2000 and 2002, even
\nthough at the time of their permanent secondment in
\nthe DGQA, the appellant as well as the respondent
\nNos. 5 and 6 were inducted with their original
\nseniority in the Army;\n<\/p>\n
(2)\tWhen the appellant was promoted as Major General
\non 30.01.2002 he superseded other Brigadiers, who
\nwere senior to respondent No. 5, who was still only a
\nColonel; and
\n(3)\tThe High Court has erred in ignoring the applicability
\nand consideration of the Army Headquarters’ letter
\ndated 09.03.1965 where a limited protection is given
\nto an officer who is senior in the lower rank, but who
\ncould not be promoted because of want of vacancy in
\nhis discipline while his junior was given promotion
\nwho was fortunate to have a vacancy in his discipline
\nin the higher rank.  The appellant was given
\npromotion to the rank of Major in his own discipline
\nover and above the respondent No.5, who was in other
\ndiscipline on the basis of his grading ‘A’, the
\nappellant’s promotion as substantive Brigadier as
\nnotified by the Gazette Notification dated 18.05.2001
\nand subsequent substantive Major General notified by
\nthe Gazette Notification dated 03.01.2004, could not
\nbe cancelled by the respondent-authorities without
\nconsulting the Appointments Committee of the
\nCabinet and issuing notice to the appellant as per
\nPara 68 of the Regulations of the Army.\n<\/p>\n
\t Per contra, the learned counsel appearing for the
\nrespondents contended that the appellant erroneously was
\ngiven seniority over 16 other officers holding the rank of
\nBrigadiers belonging to other disciplines including respondent
\nNo.5, who was at Sl. No. 45 whereas the appellant was at Sl.
\nNo.49 in the Gradation List of 1998.  They stated that the
\nappellant could not claim accelerated promotion to place him
\nabove respondent No.5, who admittedly was senior as Major
\nand was never considered for promotion along with the
\nappellant in terms of policy contained in O. M. dated
\n04.05.1993 (Annexure P-4) and Gradation List of 1998 as well.
\n\tThe admitted facts are that the appellant was
\ncommissioned in the Armament discipline on 09.06.1968
\nwhereas the respondent No.5 was commissioned in the
\nEngineering discipline on 25.12.1966.   The consideration for
\npromotion up to the rank of Brigadier as a rule was held
\nwithin its own discipline of the appellant (Armament) with
\nofficers of the same discipline, the appellant superceded three
\nofficers whose names were held at serial Nos. 28, 38 and 46.
\nThe appellant was placed above serial No. 28 ( Col. R. E.
\nChawan) thereby erroneously gaining seniority over 16 officers
\nof other disciplines, including Respondent No. 5 who was at
\nserial No. 45 of the Gradation List dated 20.07.1998
\n(Annexure R  6) in respect of service officers permanently
\nseconded to DGQA organization as on 30.06.1998.  The
\nrespondent No. 5 and other 15 senior officers were never
\nconsidered with the appellant at the time of granting
\nsubstantive rank of Brigadier to him and later on as Major
\nGeneral earlier than respondent No. 5 as his seniority was
\nreckoned ahead of serial No. 28 of 1998 seniority list.
\n\tThe stand of respondent  Union of India in its counter
\naffidavit is that, the seniority conferred upon the appellant to
\nthe substantive rank of Brigadier was erroneous and it was
\nonly on 18.08.2004 when the seniority list was published that
\nofficers adversely affected became aware of the wrong
\nconferment of the seniority to the appellant.  The respondent
\nauthorities after 1998 had never published seniority list in the
\nDGQA.  Maj. Gen. S. C. Gulati made a representation objecting
\nto the placement of the appellant in the seniority list contrary
\nto the instructions governing the DGQA organisation.  A
\ncomplete review of seniority within the DGQA was carried out
\nand in such review it was decided that the appellant should be
\ngiven substantive rank of Brigadier w.e.f. 05.04.2002 and that
\non that basis he was considered for further promotion to the
\nrank of Major General along with 8 other officers, namely,
\nBrig. R. Khosla, Brig. M. Kashyap, Brig. R. Puri (respondent
\nNo. 5), Brig. T. S. Rao, Brig. P. K. Mago(respondent No. 6),
\nBrig. B. V. Murthy, Brig. K. P. Sinha and Brig. J. D.
\nSapatnekar.  On reconsideration at the stage of complete
\nreview of seniority list, the appellant is given ‘B’ grading, i.e.,
\n“fit for promotion”, which is the same grade given to
\nrespondent Nos. 5 & 6.  On the basis of the fresh assessment,
\nthe Board conferred seniority to respondent No. 5 w.e.f.
\n01.10.2004, respondent No. 6 w.e.f. 31.01.2005 and the
\nappellant w.e.f. 01.03.2005 as Major General.  As a result of
\nreview of seniority list, we find from the record that one higher
\nrank which  had been conferred upon the appellant earlier and
\nwhich had remained unnoticed because of non-publication of
\nseniority list was corrected by the Union of India at the first
\navailable opportunity when the seniority list was published on
\n18.08.2004 in the DGQA cadre and when the irregularity in
\nthe seniority list was noticed by the affected officers, who
\nmade representations against the irregularity, committed in
\nthe seniority list giving promotion to the appellant over and
\nabove them.  In DGQA organization, officers due for
\npromotion, who may not be from the same batch, are
\nconsidered within their disciplines only and promoted as per
\ntheir inter se seniority in the substantive rank of Major as has
\nbeen laid down in O. M. No.21(4)\/92\/D (inspection),
\nGovernment of India, Ministry of Defence, dated 04.05.1993
\n(Annexure P-4) on the subject “GUIDELINES FOR
\nPERMANENT SECONDMENT OF SERVICE OFFICERS OF THE
\nRANK OF MAJOR AND LT. COL. IN THE DGQA
\nORGANIZATION”.  As per the said O.M., it was decided by the
\nGovernment of India, Ministry of Defence, D.D.P.S., that the
\ncriteria as contained in the said O.M. should be adopted for
\npermanent secondment of the officers of the rank of Lt.
\nColonel (including Lt. Col.\/TS) and Majors.  Clause 2 of the
\nMemorandum emphasizes that final orders for Permanent
\nSecondment shall be issued only after the selected officers’
\nwillingness has been obtained in writing.  The officers once
\npermanently seconded will continue in the organization till
\ntheir retirement and shall be included in the Cadre Seniority
\nList of Permanently Seconded Service Officers as per their
\ndates of seniority as substantive Major, as modified based on
\nthe penalties\/loss of seniority in the parent Corps and shall
\ncome up for consideration for promotion to higher ranks based
\non availability of vacancies in respective disciplines.  In the
\nteeth of this specific criteria laid down in the above referred to
\nMemorandum, we are of the view that letter No. 30386\/MS\/(X)
\nArmy Headquarters, dated 09.03.1965 (Annexure P-1) dealing
\nwith the subject of system of grading officers (excluding MC,
\nDental Corps and those permanently transferred to RD & P\/I
\norganization) for promotion to the rank of Lt. Col. and above
\nrelief upon by the appellant has no application in the DGQA
\norganization.    Para 2 of O.M. dated 04.05.1993 (Annexure P-\n<\/p>\n
4) is self-explanatory.  It is applicable through out the service
\ncareer of an officer from the time of his permanent
\nsecondment to the DGQA organization till the retirement of the
\nofficer.  Therefore, the contention of the learned counsel for
\nthe appellant that the High Court has gravely erred in not
\napplying the policy instructions dated 09.03.1965 (Annexure
\nP-1) does not merit acceptance, as Annexure P-1 deals with
\nsystem of giving grading to officers belonging to regular Army
\nonly and those instructions as such have no application to the
\nArmy officers permanently seconded to the DGQA
\norganization.\n<\/p>\n
\tPara 68 of the Regulations for the Army deals with the
\neffective date of substantive promotion.  It does not deal with
\nthe grant of seniority.  The appellant was promoted to the
\nacting rank of Brigadier on 07.11.2000 in the Armament
\ndiscipline because of the availability of the vacancy in the said
\ndiscipline, whereas the respondent No. 5 was promoted to
\nsuch rank in the Engineering discipline on 11.02.2002 on the
\nthen availability of the vacancy in that discipline.  However,
\nthe appellant being junior in the substantive rank of Colonel
\nas per seniority list as on 30.06.1998, continued to remain
\njunior to respondent No. 5 in the substantive rank and that is
\nwhy the substantive rank of Brigadier was rightly granted to
\nrespondent No. 5 w.e.f. 01.10.2004 and to the appellant only
\nw.e.f. 01.03.2005, in the seniority list as on 01.03.2005
\nimpugned before the High Court.  The appellant has not
\nplaced on record any proof to substantiate his claim that he
\nwas granted accelerated promotions to the ranks of Brigadier
\nand Major General.  Thus, it is clear that due to the
\navailability of the vacancy in the Armament discipline to which
\nthe appellant belonged, he was promoted to the acting rank of
\nBrigadier on 07.11.2000, whereas the respondent No. 5, who
\nwas in the Engineering discipline, was promoted to the acting
\nrank of Brigadier on 11.02.2002 due to the availability of the
\nvacancy in the Engineering discipline.  The prior promotion of
\nthe appellant to the acting rank of Brigadier in contrast to the
\nrespondent No. 5 in his respective discipline does not make
\nthe appellant senior to the respondent No. 5 since the
\nsubstantive rank of Brigadier was granted to the appellant
\nw.e.f. 01.03.2005 and to the respondent No. 5 w.e.f.
\n01.10.2004 in terms of Para 2 of the Govt. of India O.M. No.
\n21(4)\/92\/D(inspection) dated 04.05.1993 as amended vide
\nO.M. No. 21(4)\/92\/D(inspection) dated 22.12.1993.
\n\tThe High Court has rightly observed that Para 68 of the
\nArmy Regulations does not qualify as a general rule for
\ndetermining the seniority.  On a plain reading of Para 68 of the
\nArmy Regulations extracted by the High Court in Para 12 of
\nthe impugned judgment, it simply says that if an officer is fit
\nfor promotion to the rank of Colonel and above on a particular
\ndate but assumes office later, then for purposes of seniority it
\nwill be the date when the officer was found fit and notified in
\nthe Gazette, which shall be the relevant date for counting
\nseniority notwithstanding the assumption of office on  a date
\nlater than the date of assumption of office.  The High Court, in
\nour view, has rightly concluded that the seniority of the
\nappellant and respondent No. 5 is to be determined in terms of
\nPara 2 of the Govt. of India O.M. No. 21(4)\/92\/D(inspection)
\ndated 04.05.1993 as amended vide O.M. No.
\n21(4)\/92\/D(inspection) dated 22.12.1993 and not on the basis
\nof the interpretation of the impact of Para 68 of the Army
\nRegulations as relied upon by the appellant.  The Union of
\nIndia is competent to correct the mistake of ranking the
\nappellant senior to respondent No.5 in the substantive rank of
\nBrigadier when such mistake or irregularity has come to its
\nknowledge through representation having been made by the
\naffected Army Officers in 2004.\n<\/p>\n
\tWe, therefore, find no infirmity or perversity in the order
\nof the High Court impugned in this appeal.  Therefore, the
\ncontentions noticed above raised by the learned counsel for
\nthe appellant cannot be sustained.\n<\/p>\n
\tFor the reasons aforementioned, we find no merit in this
\nappeal, which is dismissed accordingly. However, parties are
\nleft to bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Major General R.S. Balyan vs The Secretary, Ministry Of … on 31 October, 2006 Author: L S Panta Bench: Arijit Pasayat, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 4619 of 2006 PETITIONER: Major General R.S. Balyan RESPONDENT: The Secretary, Ministry of Defence,Government of India, & Ors DATE OF JUDGMENT: 31\/10\/2006 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-148181","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMajor General R.S. 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