WING COMMANDER J. KUMAR versus UNION OF INDIA AND OTHERS

453

WING COMMANDER J. KUMAR v.

UNION OF INDIA AND OTHERS

March 5, 1982

[A.O. KosHAL, V. BAL>.KRJSHNA ERADI AND R.B. MISRA, JJ.]

Defence Restarch and Development Organisati•n Giid Government of India 0.M. dated November 23, 1919, Rule 16-"Senlority after permanent second- ment"-R & D Cadre-Intake of service officers-Seniority after 'permanent secontlment'-Based upon seniority of substantive rank held by the officer in the grade of major or equivalent rank-Such principle for determination whether valid.l

"Secondment" of an officer-Whether constitutes a tra_nsfer.

Constitution of India · 1950, Art, 309 proviso-Statutory rule covering seniority-Rule to take effect from date of promulgation-Whether element of retroactivity involved in operation of rule.

Administrative Law-Prineip/~ of natural

justice-Applicability of-In

promu/gati'on of statutory rule governing seniority.

The Defence Research and Development Organisation (R & D) was set up under th! Ministry of Defence for carrying out scientific and technological research and development work on projects or vital importance to the defence forces. Its personnel consist or large number of civilian scientists as well as a smaller number of service officers drawn Crom the three wings of the Armed Forces who have operational experience of weapon systems.

The policy followed in regard to the intake of service officers was that they were initially taken on , a tenure basis a·nd subsequently absorbed in the organisation on a permanent basis in the event of being found suitable and willing. Since the Office.rs from the three services came to the R & D cadre with different lengths of service and at different-levels, it became imperative to evolve a reasonable principle for the determination or their inter~se seniority arter their secondment to the _organisation.

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In November 197P in supersession of an previous Rules and Orders on the subject, rules were mado under the proviso to Art. 309 laying down the pro· ccdure for the intake of service officers in the R & D organisation and the terms and conditions of service of those permanently retained therein. Rule 16 dealt with "Seniority after permanent secondment" and provided that "seniority or H all service Officers permanently seconded to DRDO will continue to be based upon th~ir s~0iorit~ of substantive ran~ of Major/S~n. Ldr./Lt. Cdr ... , .. , a~d th~

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454

SUPREME COURT REPORTS

[1982} 3 s.c.R.

seniority or officers with substantive ranks higher than Major/Sqn. Ldr./Lt. Cdr. will after their permanent secondment, al~o reckon vis·a-vis other officers in the R & D Cadre, for future promotioa/confirmation, from the date of their subs· tantive rank or Major/Sqn. Ldr./Lt. Cdr ........ ".

The appellant who was commissioned in the Air Force was seconded to the service. In hiS writ petition -he contended that the principle for determina· tion of seniority laid down in Rule 16 was arbitrary and violative of Articles 14 and 16 of the Constitution, and as he had been permanently seconded to the R & D Organisation in 1971 long prior to the proclamation of the rule his rights regarding seniority and promotion could not be affected by the provisions of this rule. By taking the date of substantive appointment to -the rank or Major/ equivalent as the basis for reckoning seniority, officers who had obtained subs tantive promotions to higher ranks in the oarent service earlier than some of their seniors who ·were ~onl)' subsquently. promoted to such higher ranks, suffer - 11erious prejudice because the latter gain over the earlier promotees and supersede them ·in the matter·of 1en'iority in. the R & D -Organisation, and that subsequent inductees in the R & D Organisation cannot be legally assigned seniority above those already borne on the cadre, irrespective or the substantive rank held by them at the time or their intake Into the R & D.

The Single Judge rejected all the contentions and declined to grant relief. The.R & DOrganiS11tion was however directed ·to issue .the tentative seniority list drawn up in accordance with Rule 16. The Letters Patent Appeal filed by the appe1lant was dismissed in limlne.

Dismissing the appeal to this Court,

HELD :

l. Since officers from different sources are taken into the R & D Organi<sltion for meeting the disciplinewise requirements arising therein from time to time and they are brought into a common pool on such permanent secondment, a reasonable principle had to be evolved for fixation of inter se seniority within the R & D cadre. The principle adopted under Rule 4 of reckonins: seniority with reference to the date of attainment of the rank of subs .. tantive Majorjequivalent strikes a·reasonable mean as it ensures to all: the service officers in the R & D the fixation of seniority in the integrated cadre giving full credit to the length of service put in by in their respective parent services. [466 C; 466 H; 467 A]

them

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It is settled law that the urvice conditions pertaining to seniority subsequent changes are Hable to alteration by introduced in the rules and except to the extent of protecting promotion\ that have already been earned under the previous rules, the revised rules will operate to govern seniority and future promotion prospects. There is, therefore, no substance in the argument advanced by the appellant that it was not open to the Government · of India to introduce a new principle or seniority by promulgation of Rule 16 so as to affect his rights for future promotion. [463 D·E]

that may be

3. A statement contained in the statute or statutory rule or the factual background leading up to the enactment has ordinarily to be accepted and acted upon by the court as wholly correct, [ 463 A]

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'I. KUMAR V, UNION OF INDIA

455

the 4. Rule 16 contains a categorica1 declaration that in the past also seniority of service officers permanently seconded to.the R & b Organisation was b'eing reckoned on the basis of their dates of attainment of substantive rank of Major/Sqn. Ldr./Lt. Cdr. subject to any 'penalty/loss of seniority that an officer It is therefore not possible to accept 'the contention might suffer subsequently. <>f the appellant that prior to the coining ihto f<>roe of the rule he had acquired a vested right to have his seniority in the R & D reckoned with reference to the date of his permanent esecondment and to have aJ1 Officers joining the organisation on subsequent dates ranked only below him. (462 G-H; 463 B-C)

5. The,~tructure and composition of the Organisation have necessarily to undergo rapid, qualitative and quantitative changes in the ligPt of the fast developments that take place in science, technology and international relations. The intake of service Officers is not on the basis of any general sele~tion from service cadres. As and when the Organisation finds it necessary to obtain the service of officers with operational experience in any particular weapon system or other scientific discipline the parent service is requested to spare for deputation suitable hands in the particular branch or speciality and initially they are taken on a tenure basis. There is a selection only in a very limited sense that the suitability of the concerned officer is adjudged before hC is taken but the claims or merits of others are not considerl"d. The secondment of such officers to the R & D Organisation is not therefore, effected on the basis or a general selection. Officers who are senior in the parent service in relation to the person who is seconded and who may possess greater eXperience and superior attainment might not have been considered for secondment when their juniors 'in the service were seconded to the R & D Organisation, because the parent service might not have been in the position at the relevant point of time to spate the services of the former. (463 G-H; 464 A·EJ

6. Where persons from different sources _are drafted to serve in a new service a just and wholesome principle comtnonl,f applied is that the pre existing length of service in the parent department should be respected and prese1ved by taking the same into account in determining their ranking in the new service cadre. Such a provision does not involve any discrimination violative of Article 16 of the Constitution. [470 E]

R.S. Makashi & Ors. v. l.M. Mellon & Ors., [1982]

l S.C.C. 379,

referred to.

7. The secondment of ail ofliCer from bis~parer'lt service to the R & D is not a transfer to Centril Service from a subordinate service or from another department. [469 G]

8. Rule 16 being statutory in origin, its validity cannot be affected by the provision of a pi'ior executive order

re3.son of any inconsistency With issued by the Central Government i.e. Office Memorandum dated July 22, 1972.

[469 HJ

9. When a statutory rule governing seniority is issued in· respect of a service) the said rule would govern the personnel in the ~ervice with e'ffect from the date of its promulgation and in so giving effect to 'the role in future, n·o element of retroactivity is involved, (470 G-H)

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10. The promulgation of a statutory rule governing seniority is not a It is the exercise of a legislative power and in respect

quasi-judicial fLinction. thereof the principlea of natural justice have no application at all. (472 BJ

CIVIL APPELLATE JURISDICTION

: Civil Appeal No. 1742

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of 1980.

Appeal by special leave from

the judgment and order dated the I Ith day of April, 1980 of the Delhi High Court in L.P.A. No. 53 of 1980.

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Civil Misc. Petitions Nos. 69 and 5698 of 1981.

Wing Commander J. Kumar Appellant in Person. I

P.A. Francis, Narayan Nettar and Miss A. Subhashlni, for the

Respondent.

The Judgment of the Court was delivered by

BALAltRISHNA ERADI, J. This appeal by special leave

is directed against the judgment of a Division Bench of the Delhi High Court dismissing in limine a Letters Patent Appeal filed by the present appellant against the jHdgment of a learned Single Judge of that Court whereby the contentions raised by the appellant in Civil Writ Petition No. 1423 of 1979 were rejected and the said writ petition was dismissed.

The appellant-Wing Commander J. Kumar-was commis· 1ioned in the ln;lian Air Force on September 3, 1956 with ante· dated seniority from December IO, 1955. He was permanently 'seconded to the Defence Research Development and Inspection Organisation (for short, the LR D &·1 Organisation) of the Ministry of Defence on October 14, 1971. On the bifurcation of the LRL & I Organisation effected in July 1976 by the separation of the Inspection Wing, the appellant was retained in the Defence Research and Development Organisation, which will hereinafter be referred to as the R & D Organisation. The Director-General of Defence Research and Development, who is also the Secretary to Government of India, Defence Research, is the controlling authority of the R & D cadre. The said cadre has service officers drawn from all the three Wings of the Armed Forces, namely, the Army, the Navr and the Air

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i. KUMAR v. tJNION OF INDIA (!Jaiakrishna Eradi, J.)

457

Force, and in addition thereto a large number of civilian employees are also borne on it.

In November 1979, in supersession of all previous Rules and Orders on the subject, the President of India promulgated under the proviso to Article 309 of the Constitution rules laying down the procedure for the intake of service officers in the R & D Organisation and the terms and conditions of service of those permanently retain ed therein. Those rules were issued by the Ministry of Defence of the Government of India in Office Memorandum No. Persjl8601/RD. Sel. Bd//7971/D (R&D) dated November 23, 1979, The provisions of the said Memorandum will hereinafter be referred to as the rules. Rule 16 deals with the subject of "Seniority after permanent second ment". That rule js in the following terms :

"As hithertofore seniority of all service officers rer manently seconded to D RDO will continue to be based upon their seniority of substantive rank of Major/Sqn. Ldr./Lt. Cdr., subject to any penalty /loss of seniority that an• officer might suffer subsequently and tbe seniority of officers with substantive ranks higher than Major/Sqn. Ldr./Lt. Cdr. will after their permanent secondment, also reckon vis-a-vis other officers in the R&D Cadre, fer future promotion/confirmation, from the date of their substantive rank of Major/Sqn. Ldr./Lt. C.dr., subject to any penalty/ loss of seniority that an officer might have suffered in his parent Arm/Service."

The principal contention advanced by the appellant before us is that the principle for determination of seniority laid down in·the above rule is arbitrary and violative of Articles 14 and 16 of the Constitution. Alternatively, it is contended by the appellant that since he had been permanently seconded to the R&D Organisation in 1971, long prior to the promulgation of the impugned rules, his rights regarding seniority and promotions cannot, in any way, be effected by the provisions of the new rule. According to the appel ·lant, he continues to be governed by the principles that had been originally laid down in Government of India (Ministry of Defence) Memorandum dated March 18, 1967, which were the rules in force at the time of his secondment to the R&D Organisation. It is the further case of the appellant that the R&D being an independent Organisation, the seniority of the personnel absorbed therein has to be reckoned only with reference to the dates on which they were

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sUPREMB cOtJkt REPoRTs

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selected and appointed in the said Organisation and subsequent entrants into the R&D in any particular category or rank should, therefore, be placed only below all those who had already joined the Organisation by virtue of permanent secondment. The appellant also contends that by taking the date of substantive appointment to the rank of Major/equivalent as the basis for reckoning seniority, officers who had obtained substantive promotions to higher ranks in the parent service earlier than some of their seniors who were only subsequently promoted to such higher ranks, will suffer very serious prejudice because the latter will gain a march over the earlier pro motees and supersede them in the matter of seniority in the R&D Organisation. Elaborating this plea, it was urged on behalf of the appellant that the result of the impugned r~le would be to bring about the anomalous situation where a penon permanently seconded to the R&D and holding substantively the rank of Lt.Col./equiva lent can be superseded in seniority in the said Organisation by a Major/equivalent of old vintage who had been overlooked for pro motion in his parent service and may have thereupon come over to the R&D Organisation. Another objection strongly put forward by the appellant was against the lateral induction of officers at levels It was urged by higher than that of substantive Major/equivalent. the appellant that such subsequent inductees into the R&D Orga nisation cannot be legally assigned seniority above . those a.lready borne on the cadre, irrespective of the substantive rank held by them at the time of their intake into the R&D. The appellant has rested this contention on the premise that the intake of officers into the R&D is by a selection based on merit and hence those selected earlier must necessarily rank higher in the seniority list of the Orga nisation in relation to those who are selected and appointed in the Organisation only on later dates. The appellant has urged a further point before us that the seniority of officers of the Navy, Army and - Air Force holding equivalent ranks who served in the Organisation is governed by the principle laid down in, Regulation No. 251 of the· "Naval Ceramonials, Conditions of Service and Miscellaneous Regulations, 1964", and the impugned rule in so far as it is contrary to the principle laid down in the said Regulation has to be declared as invalid and inoperative. Some other incidental pleas and grievances were also put forward by the appellant before the High Court as well as before us and we shall be dealing with them later on at the appropriate stage.

The learned Single Judge of the High Court rejected all the aforesaid contentions advanced by the appellant and declined to

J. KUMAR v. UNION OF INDIA (Balakrishna Eradi, J.) .

459

grant any relief to him, except to the extent of directing the R&D Organisation to issue the tentative seniority list drawn up in accor dance with the impugned rule within three months from the date of the judgment and to record the Annual Confidential Reports on the appellant from April 1, 1976 to March 3.1, 1979 within the same period. The Letters Patent Appeal filed by the appeJJant against the said judgment having been dismissed in Ii mine b;· a Division • Bench of the High Court, the appellant has preferred this appeal

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after obtaining special leave from this Court.

The Defence Research and Development Organisation (R&D) has been set up under the Ministry· of Defence for carrying on scientific and technological research and development work on pro jects of vital importance to the defence forces of this country. The head of the said Organisation is a civilian, namely, the Scientific Adviser to the Defence Ministry and its personnel consist of a large number of civilian scientists and a much smaller number of service officers drawn from the three defence services. The service officers later permanently seconded to the R&D Organisation if found suitable and willing. Those service officers who were permanently seconded and absorbed in the R&D cadre are thereafter governed by the terms and condi tions of service applicable to the officers of the said cadre.

taken on short tenure and are

"are initially

Originally, the Defence Research and Development Organisa tion (R&D) and the Director-General of Inspection (DGI) had a combined cadre-Research Development and Inspection-and the terms and conditions of service of the personnel borne o0 the said cadre were governed by the provisions contained in Government of India (Ministry of.Defence) Memorandum No. 11/(5)/58/D-(R&D) dated March 18, 1967. But, those rules ·which had also been issued by the President of India under the proviso to Article 309 of the Constitution did not contain any provision laying down the principles for determination of the seniority of the officers function ing in the DRD&I Organisation. Those rules were in force at the time when the appellant was permanently seconded to the DRD&I Organisation in 1971.

Jn the writ petition filed in the High Court, the appellant had impleaded 8 officers of the R&D Organisation, r.amely, respondents . nos. 7 and 11 to 17 contending that they have been assigned seni ority and granted promotions in supersession ·of the appellants's legitimate claims and ill viol11tio11 of the l'll!e•: ~n \h~ appeal before,

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this Court, the appellant had added several more service officers of the appellant argued his case the R&D as additional respondents. in person and so did some of the respondents whose promotions ind seniority etc., have been challenged by the appellant.

Arguments advanced by the parties appearing in person were heard by us at considerable length and S'lri P.A Francis, Senior Advocate, appearing on behalf of Respondents Nos. I and 2, namely, the Union of India and the Director-General, R&D Orga nisation, also addressed arguments before us covering all the aspects.

As already noticed, the main contentions put forward by the aupellant are two-fold, namely, that the principles laid down in rule 16 of the rules for determination of the seniority of officers perma nently seconded to the R&D are arbitrary and illegal, and that lateral induction of officers holding r_anks above substantive Major/ equivalent and assigning of seniority to such subsequent inductees by applying the provisions of rule 16 amounts to deprivation of the vested rights of persons-like the appellant-who had joined the '" Organisation earlier and it is, therefore, illegal and unwarranted.

After aiving our best consideration to the arguments advanced on both sides, we do not see any substance in either of the aforesaid contentions advanced by t~e appellant.

The Defence Research Development and Inspection Organi· sation is a Specialised Technological Organisation set up under the - Ministry of Defence for carrying out research and development Its work in weapons like guns, electronics, missiles, tanks etc. personnel consist of a large number of civilian scientists (about 3,600) and about 430 service officers drawn from all the three Wings of the Armed Forces with operational experience of such weapon system to work with the scientists in the research and development programme. The policy followed in regard to the intake of service officers appears to have been to take them initially on a tenure basis and subsequently to absorb them in the Organisation on a permanent basis in the event of their being found suitable and willing. It is seen from the affidavits and documents filed on behalf of the res pondents that the secondment of service officers depended upon the exigencies and the special type of need of the Organisation at each relevant point of time so much so that officers who could fill the bill by virtue of their qualification, experience, aptitude and suita l>ility in that particular lm1m;4 of defe~W science for which the neecl

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1. KUMAR v. UNION OF INDIA (Balakrishna Eradi, J.)

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for personnel had arisen and whose services could be spared by their parent service were taken into the R&D Organisation from time to time. Since the officers from· the three services came to the R&D cadre with different lengths of service a11d at different levels, it became imperative to evolve a reasonable principle for determina tion of their inter se seniority after ·their secondment to the R&D Organisation.

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The case of the respondents is th.at right. from the beginning, the policy and practice followed by DRD&I Organisation as well as -.....__ ·'-- . by the bifurcated R&D Organisation was to assign seniority with reference to the date on which the officers attained their rank of substantive Major/equivalent. This was, however, strongly refuted by the appellant who asserts that no such· principle had been formu lated or followed by the Organisation prior to the promulgation of the impugned rules. The respondents produced for our perusal various files pertaining to the determination of seniority and grant of promotions in the Organisation during the period ,prior to the issuance of the impugned rules. The appel!l(tlt pointed out with reference to those very files that there were quite a few instances where promotions had been effected on a basis. totally at variance with the principle propounded by the respondents.

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From a scrutiny of the files of the Ministry of Defence-R&D Organisation-produced before us by the learned counsel appearing on behalf of the Go:vernrrient of India, it has clearly emerged that, excepting for a few stray instances, the practice followed in the R&D Organisation was to reckon the seniority of the permanently seconded officers wjth reference to the date of their attaining subs tantive rank of Major/equivalent. The principle underlying the said practice was later formally incorporated in the Minutes of the DRD&l Selection Board as a decision taken by the Board at its meeting held in February 1974. The relevant paragraph of the Minutes runs thus :

"Officers with substantive ranks higher ·than Maj/Sqn Ldr/Lt Cdr who are offered permanent secondment will reckon their substantive seniority in the R&D/Inspection Organisation for future promotion/confirmation from the date they got their substantive ranks as Maj/Sqn Ldr and subject to any penalties as regards loss of seniority that they might have suffered in th~ir Arm/Service thereafter. The

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position as above should be clarified to the officers con cerned and their acceptance obtained before issuing the orders of permanent secondment in such cases. These decisions will apply to cases of permanent secondment approved by the RD&I Selection Board from 2(74) meeting onwards."

It is also seen from the files pertaining to the period subsequent to February 1974 that the aforesaid principle was thereafter consis tently followed as a binding rule and when it was found that a departure from the said principle had been erroneously made by placing three Air Force officers in their substantive rank of Wing Commander, the authorities concerned rectified the said mistake after clearly noting in the file that the aforesaid principle went un- noticed by oversight during the processing of those cases by HQ, R&D and the ranking of those officers \\'as revised so as to bring it into conformity with the aforesaid rule.

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The relevant file leading up to the issuance· of the impugned rules was also carefully perused by us. This file contains the Minutes of the Chief of Staff Committee recommending to the Government of India that the draft rules may be finally accepted and issued expeditiously and the noting therein also contains a clear statement that the principle incorporated in the decision taken at the combined meeting of' the DRD&I Selection Board held in February 1974 w11s merely to incorporate "a rule which was un written earlier but actually applied in practice". Thus, there is sufficient material available on record to substantiate the plea put forward by the re~pondents that the policy and practice followed in the DR&DI Organisation an<l later in the R&D Organisation was to fix the seniority of permanently seconded officers with reference to the date of attainment of the rank of substantive Major/ equivalent.

Further, the impugned rules are statutory in origin as they have been promulgated by the President of India under the proviso to Article 309 of the Constitution. Rule 16 co0tains a categorial declaration that in the past also the seniority· of service officers permanently seconded to the R&D Organisation was being reckoned on the basis of their dates of attainment of substantive rankM of Major/Sqn Ldr/Lt Cdr. subject to any penalty/loss of seniority that an officer might suffer subsequently. The said declaration is clearly implied in the openin!! words "As hithertofore" occurring in rule 16

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463

of the impugned rules. A statement contained in a statute or statutory rule of the factual background leading up to the enactment has ordinarily to be accepted and acted upon by the court as wholly correct; nothing clinching has been brought to our notice by the appellant to justify any departure from the said principle. We do not, therefore, find it possible to accept the contention of the appellant that prior to the corning into force of the impugned rule, he had acquired a vested right to have his seniority in the R&D reckoned with reference to the date of his permanent secondment and to have all officers joining the Organisation on subsequent dates ranked only below him. The plea advanced by the appellant that the impugned rules . have illegally purported to divest hfm of his vested· rights of seniority and promotion in the R&D must, therefore, be rejected as devoid of merit.

Apart from what is stated above, it is settled law that the service conditions pertaining to seniority are liable to alteration by subsequent changes that may be introduced in the rules and except to the extent ofprotecting promotions that have already been earned under the previous rules, the revised rules will operate to govern the seniority and future promotion prospects of all the persons in the concerned service. There is, therefore, no substance in the argu ment advanced by the appellant that it was not open to the Govern ment of India to introduce. a new principle of seniority by promul gation of the impugned rules so as to affect his ri&hts for future promotion.

The next question to be considered is whether the principle enunciated in rule 16 can be said to be unreasonable or arbitrary, It is in this context that the specia as contended by the appellant. lised character of the R&D OrganlSation assumes importance. Its personnel consist of civilian scientists and service officers of high technological at•ainments in diff~rent disciplines who have been drawn to the Organisation from time to time according to its exigencies and needs.

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the Organisation have necessarily to undergo rapid qualitative and quantitative changes in the light of the fast developments that take place ia the field of science and technology as well as in international relations. The research and development work is carried on by the R&D in differ ent systems of weapons and equipments and a variety of disciplines like electronics, missiles, tanks, telecommunication, rocketry, radars

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In addition to about 3,600 civilian scientists, the Organisation .

etc. bas about 160 permanently seconded service officers and about 430 service officers taken on a tenure basis. The intake of service officers is not on the basis of any general selection from service cadres. As and when the Organisation finds it necessary to obtain .the services of officers with operational experience in any particular weapon system cir other scientific discipline, suitable hands wit' aptitude skill and experience in that particular branch or speciality whom their parent service is willing to spare for deputation are initially taken on a tenure basis. Thus, there is a . selection only in a very limited sense that the suitability of the concerned officer is adjudged before he is taken. Bnt what is important to note is that in the intake of officers into R&D Organisation there is n~ comparative evaluation of the merits of the other personnel occupying the same rank oi possessing like experience in the Defence Services. There is no process of select.ion. in whi~h their claims or merits are con sidered. Thus, it is clear that the secondment of officers to the R&D Organisation is not effected on the basis of a general selection. There is, therefore, no substance in the contention advanced by the appellant that the service officers who are seconded to· the R & D on a later date must take rank only below all those who had joined the Organisation earlier by virtue of their prior "selection". Officers who are senior in the parent service.in relation to the person who is seconded and who may possesfl greater experience and superior attainments might not have been considered for secondment when their juniors in the service were seconded to the R &·D Organisation, because the parent service might not have been in the position at the relevant point of time to. spare the s.ervices of the former. Further, the disciplinewise reqnirementin the R & D at any particular tiine will depend upon the nature of the project then taken on hand and posting of a service officer to the R & D Organisation will be on the consideration of his experience and apptitude for that particular type of specialised work and not seniority in the parent service. It may well happen that a junior officer who has experier ce and in that special discipline alone may be considered for expertise secondment at that particular ,time. Thus, the entry of a service officer into the R & D is to a large extent dependant on fortuitious circumstances related to the exigencies and needs that arise in the It is certainly not based on the Organisation from time to time. result of any comparative evaluation of his merit, ability or suit ability as against_those of his compeers m the concerned parent service. . Such being the factual situation, we are of t.Jie view that

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i. ituMAR v. uNiON oF INDIA (1Jalakrishna Eradi, J.)

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it will not be reasonable, just or fair to determine the seniority of the permanently seconded service personnel merely on the basis of- the date of their secondment to the Organisation.

The next question to be considered is whether the principle for determination of seniority laid down in the impugned rule 16 is just, fair and reasonable or whether it is arbitrary and violative of Articles 14 and 16 of the Consitution, as contended by the appellant.

The R & D Organisation has in its cadre service officers who were taken initially on tenure basis from the Army, the Air Force and the Navy and were later on permanently seconded into the DRD & I/ R & D cadre on their being found suitable and willing. The contention of the appellant is that on such permanent secondment into the R & D, the interse seniority of the officers should be reckoned only with reference to the dates of their selection for such permanent It is the further plea of the appellant that since at the secondment. time of permanent secondment the oflker concerned has to certify in writing that he is relinguishing all his claims of seniority etc., in his parent service, no weightage can thereafter be given to the rank or seniority which the person inducted had earned in his parent service prior to the date of his permanent secondment. We do not find it possible to accept this contention. Officers from the three Services holding different ranks are inducted into R & D Organisation from time to time depending upon the needs of the Organisation, and if the appellant's contention is to be accepted, it would lead to serious anomalies and manifest injustice by upsetting the norms of seniority and rank structure which is the basic fabric on which the Arm~d Forces of the country are built. The unreasonable -consequences that will flow from the acceptance of the appellant's arguments will be clearly seen from the following simple illustration :

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Suppose, in the year 1974, on a particular date, when two officers are working in the Air Force-:-one as a Wing Commander and the other in the higher rank of Group Captain-the Wing Commander is permanently seconded to the R & D Organisation and, later, the Group Captain is also permanently seconded to the If the principle advocated by the· appellant is to R & D in 1975. be accepted, the Group Captain will become junior to the Wing Commander by virtue of the latter's earlier induction into the R & D despite the fact that he had not been even considered for secondment to the R & D at the time when the Wing Commander was taken.

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SUPREME COURT RHPORTS

(1928] 3 s.c.ll.

In view of our having already found that the appellant's con tention that the secondment to the R & D is based on a "selection" is incorrect, the basic premise' on which the appellant has founded his plea that the date of secondment should be the determinative factor for reckoning seniority in !be R & D cadre, falls to the ground.

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Since officers from different sources are taken into the R & D for meeting the disciplinewise requirements arising in the Organisa tion from time to time and they are brought into a common pool on such permanent secondment, it is inevitable reasonable principle has to be evolved for fixation of their inter se seniority within the R & D cadre. The fixation of the seniority on the basis of the ranks held by them in the different branches of the Armed Forces would not be reasonable or fair, because substantive ranks above Major/equivalent in the three Wings of the Armed Forces are conferred by different Selection Boards at different times and under varying circumstances and conditions depending upon the vacancies arising at the different levels in the distinct services from time to It is pointed out in the counter-affidavit filed on behalf on time. the Union of India (Respondent No. I) that the promotional chances of officers belonging to the three distinct Wings of the Armed Forces to posts above the rank of Major/equivalent vary widely and depen dant upon fortuitious circumstances which may obtain .,in relation to the distinct services at any relevant point of time. We find there is force in this submission. In all the three Services, the promotions up to and inclusive of the rank of Major/equivalent are time-scale ·In the Air Force promotions based only on fixed len&th of service. and the Army, the ranks of Major and Sqn. Leader, respectively, are attained on an officer putting~in 13 years' service. In the Navy, the time-scale period for promotion to the equivalent rank of Lt. Commander is said to vary between about· 10 and 13 years. But, what is important to notice is that 'the promotion to the rank of Major/equivalent is based only on length of service and not on any "selection". For posts higher. than that of Major/equivalent, pro motions in all the three Services would depend upon. the occurrence of vacaacies in the particular branch or group in the concerned Service, the schemes of expansion that may be taken up from time to time in the particular Service or branch and also the. extent of stagnation that may be caused to officers at lower levels by reason of the officers who are young in age occupying posts in the immediate higher levels, etc. · When due regard is had to all the aspects and circumstances, narrated above, it will be seen that the

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j, itUMAR v. UNION OF INDIA (/Jafakrishna Eradi, J.)

467

principle adopted under the impugned rule of reckoning seniority with reference to a date of attainment of the rank of substantive Major/equivalent strikes a reasonable mean as it ensures to .all the service officers in the R & D the fixation o(seniority in the integrated cadre giving full credit to the length of service put in by them in their respective parent services.

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A similar seniority rule fol'!llulated by the State of Maharashtra in a somewhat like situation, when an integrated cadre consisting of personnel drawn from different sources was.formed in the State of Maharashtra for, administering the Rationing Scheme, was recently upheld by this Court in R.S. Makashi & Ors. v. J.M. Menon & Ors.(')

The following observations contained in that judgment are

apposite in the present .context :

"When personnel drawn from different sources are being absorbed and integrated in a new department, . it is primarily for the ·Government or the executive authority concerned to decide as a matter of policy how the equation of posts should be effected. The courts will not interfere with such a decision unless it is shown to be arbitrary, unreasonable or unfair, and if no manifest unfairness or unreasonableness is made out, the court will not sit in appeal and examine the propriety or wisdom of the princi- ple of equation of post9 .adopted by the Governments."

In enunciating the principle incorporated in the impugned rule, the rule-making authority has adopted as the base for reckon ing seniority the highest common factC>r applicable in respect of time scale promotions in the three services, namely the rank of Major/ equivalent and thereby ensured to the service officers seconded to the R & D Organisation a just and equitable treatment. The rule provides for the reckoning of the seniority of the seconded officers by taking into account the length of their service in the parent service, for which the date of attainment of the rank of substantive In our opinion, the Major/equivalent would furnish a safe index. said principle cannot be said to be arbitrary, unjust or unreasonable and the contention to contrary put forward by the appellant will, therefore, stand rejected.

(I) [1982) I s.c.c. 379.

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468

SUPREME COURT RilPORtS

[ i 9s2j 3 s.c.it.

It is no doubt true that in the Navy, promotions te the rank of Lt. Commander which• is equivalent to that of Major in the Army may be -attained by an officer within a slightly shorter period of service, namely, between IO and 13 years whereas, in the Army and the Air Force, the promotion to the rank of Major/equivalent is given only on completion of 13 years of service. The slight dis parity in the promotion prospects between the Navy and the other two Services·will not, however, affect the reasonableness of the impugned rule because it is impossible to achieve perfect arithmeti cal precision in such matters where officers. drawn from different sources are to be integrated into one common cadre and a rule for fixing their inter se seniority is formulated. Further, it is seen from the counter-affidavits of Respondents I to 3 that out of about 160 permanently seconded officers of the R & D Organisation, the large majority are from the Army, a considerable section of the balance is from the Air Foree and only less than 10 officers have come from the Navy.

It is also relevant to notice in this context that it is specifically provided in rule 4 of·tbe impugned rule that t_he intake of service officers to fill appointments in the R & D Organisation will ordi· narily be at Major/equivalent level. Under rule 5, officers in higher ranks should be considered for permanent secondment only in exceptional cases and when such a course is adopted, it will be subject to the condition that their seniority in the R & D cadre will be fixed as stipulated in rule 16. The incorporation of the afore' said provisions which operate as a safeguard against large scale induction of officers above the substantive rank of Major/equivalent further fortifies the conclusion arrived at by us that the adoption of the date of substantive Major/equivalent as the criterion for fixing inter se seniority in the R & D cadre was logically fair, just and reasonable.

The appellant sought to rely strongly on Regulation 251 of the Naval Ceremonials, Conditions of Service and Miscellaneous Regu lations, 1954 and on the provisions contained in the Order A0102/73. Regulation 251 provides that "the relative seniority of officers of the Army, Navy and Air Force, holding equivalent ranks, who · serve together in an Inter-service ·Organisation will be regulated as follows." The latter Order is in the following terms :

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"(a) Officers holding equivalent substantive rank (no acting rank) will rank .according to their seniority in the substantive rank ; and

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469

(b) Officers holding acting rank will rank after officers in holding corresponding substantive rank and relation to each other, · they will rank according io their seniority in the substantive rank."

In our opinion, neither the Regulation aforementioned nor the Order, extracted above, has any application to the present situa- tion. The R & D Organisation is not an lnter-servic,ll Organisation within the meaning of the expression as used in the aforementioned Regulation and Order.. It is predominantly a civil organisation headed by a civilian Director-General and having a total strength of about 24,000 employees. · The large majority of the personnel working in the R & D Organisation are civilian scientists who are more than 3,000 in number, there are also about 160 service· officers permanently seconded to the R & D cadre and about 240 service officers taken on tenure basis. But, merely because the R & D Organisation has on its staff serving officers from the Army, Air Force and Navy, it cannot be Said to be an "Inter-service Organisa tion" governed by the provisions of the aforesaid Regulation and Order. The topic°dealt with in the aforesaid Regulation and Order is only "seniority" for purposes of command, precedence, discipline etc., for working purposes to be allied in situations where officers from more than one service operate together in one group as in times of war for carrying out any particular mission or task.

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Another argument advanced by the appellant was that the impugned rule cannot be upheld as valid inasmuch as it is in conflict with paragraph 7 of the Government of India Offioe Memorandum No. 9372·Estt(D), Cabinet Secretariat, Department of Personnel, dated July 22, 1972, which is in the following terms :

"7. Transferees :-(I) The relative seniority of persons appointed by transfer to Central Services from the sub ordinate offices of the Central Government or other depart ment shall be determined in accordance with the order of their selection for such transfer."

We see no substance in this contention. The secondment of an is not a transfer to officer from his parent service to the R&D Central Service from a subordinate service or from another depart ment. Further, the impugned' rule being statutory in origin, its validity cannot be affected by reason of any inconsistency with the issued by the Central provisions of a prior executive order Government.

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470

SUPREME COURT REPoRTS

[19.82j 3 s.c.R.

An allegation has been put forward by the appellant that "the letter dated November 23, 1979 was a fraud on rules and the Consti'tution, played by respondent no. 5 who got the same issued to obtain personal gain by misusing his official position, leading to colourable exercise of power by the authority who actually issued that letter". To put it mildly, we find that this is a reckless alle· gation devoid of any factual basis. We h'ave gone through the files leading up to the· issuance of the impugned rules and it is seen there from that the matter has been processed by different authorities at different stages and before the draft rules were ultimately submitted to the Government of India for approval, they had been considered and approved at a joint meeting of the Chiefs of Staff also.

Equally untenable is the further plea advanced by the appellant that since the R&D is an integrated cadre, there cannot be any further classification of the officers comprised therein on the basis of the length of service put in by them in their respective parent services prior to their permanent secondment in the R&D. As pointed out by this Court in the decision in R. S. Makashi v !. M. Menon (supra), ir is a just and wholes?me principle commonly applied in such situations where persons from different sources are drafted to serve in a new service that their pre·existing length of service in the parent department should be respected and preserved by taking.the same into account in determining their ranking in the new service cadre. Such a provision does not involve any discrimi nation violative of Article 16 of the Constitution.

Yet, another argument advanced by the appellant is that the Impugned rule not having been specifically declared to be retros pective in operation, its provisions cannot be applied to the appellant inasmuch as he had been inducted into the R&D cadre on October 14, 1971 long prior to the promulgation of the new rules. We have already found that, as a matter of fact, the practice generally followed in the R&D Organisation, even prior to the promulgation of the impugned rules, was to reckon seniority with reference to the date of attainment of the rank of substantive Major/equivalent. Even otherwise, when a statutory rule governing seniority is issued in respect of a service, the said rule would govern the personnel in the service with effect from the date of its promulgation and in so giving effect to the rule in future, there is no element of retroactivity involved. Of course, the rules will not operate to deprive any person of promotions already earned in the past, but, for purposes

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J, KUMAR v. UNION OF INDIA !Balakrishna Eradi, J.)

471

Of future promotions and seniority in the department, the principles laid down in the impugned rule will necessarily govern all the personnel alike. This contention of the appellant has also to fail.

· It was very strongly contended by the appellant that the lateral induction of senior service officers holding ranks above the subs· tantive Major/equivalent level operates to deprive the existing R&D personnel of their vested rights to promotions within. the cadre and hence, such inductions must be held to be illegal and void. This contention ignores the fact that rule 5 specifically provides that in exceptional cases, officers above the rank of Major/equivalent may be drafted into the R&D. The contention of the appellant appears ·to us to be based on a fallacious assumption that the R&D cadre exists for the sake of the personnel working therein and not for effectuating the purpose underlying its constitution which is of such vital importance to the Nation's safety. The Organisation has been formed with a view to have a highly specialised cadre of techno· logical and scientific experts to design and develop military hardware etc., for the Armed Forces of the country keeping abreast of the latest developments and advances in the field of defence science .• To effectuate this purpose, such an Organisation by its very nature cannot remain static or stagnant, but has to be constantly expanding qualitatively and quantitatively. The personnel requir•ments of the Organisation are, therefore, bound to change from time to time and to meet such changing needs, the services of qualified experts with specialised knowledge, skill and experience will have to be enlisted from time to time. A particular service officer in the Army, Air Force or Navy may be the best person suited for being placed in charge of a specialised job newly taken on band, and in such a situation the Organisation must have the freedom to indent for the services of the officer concerned irrespective of the rank that he may be holding in his parent service. We do not find it possible to recog nise any right in the officers already working in the R&D to obiect to the lateral induction of senior officers under such circumstances. The contention put forward by the appellant that lateral inductions into the R&D cadre constitute an illegal deprivation of the vested rights of persons already working therein and are consequently illegal and void, cannot, therefore, be accepted.

The next point urged by the appellant is that since the im· pugned rules disturb the previously fixed seniority, it is guasi· judicial in nature and they ought to h11ve been issued only aftef

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472

SUPREME COURT REPORTS

[1982) 3 S.C.R,

giving notice to all the affected persons. We have already found th• t no alteration in the pre· existing policy relating to determination of seniority in the R&D has been brought about by the impugned rules. Quite apart from that, the promulgation of a statutory rule governing seniority is not a quasi-judicial function. It is the exercise of a legislative power and in respect thereof the principles of natural justice have no application at all.

Detailed facts pertaining to the history of service of the various officers impleaded in the appeal as respondents were referred to by the appellant during the course of bis arguments, and such of the respondents who appeared in person countered those submissions by placing before us, what, according to them, are the correct facts relating to their service history. The challenge made by the appellant against the ranking and seniority of the officers impleaded as rei pondents is based solely on his contention tha.t the seniority principle enundated in rule 16 is arbitrary, illegal anc! ultra vires and that, in any event, the said principle cannot be applied to him. The said contention has been found by us to be untenable. Hence, it is not necessary for us to refer to the details regarding the service history of •.he appellant vis-a-vis those of the service officers who have been impleaded as respondents in the appeal.

In the light of our foregoing discussion, it follows that the High Court was perfectly. right in upholding the validity of the impugned rule and in rejecting the challenge raised by the petitioner appellant against the selections, inductions and , promotions made in the R&D Organisation on the basis of the said rule.

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this Court, the appellant put forward a grievance that, notwithstanding the directions issued by the High Court in its judgment under appeal, he has not been given any posting or assign men!. Counsel appeario g on behalf of the Union of India and the Scientific Adviser to the Defence Minister made available for our perusal the files relating . to the appellant's posting to the D R&D Laboratory at Hyderabad and the allotment of specific assignments therein to the appellant from time to time. Having gone through the files, we have come to the conclusion that there is no factual foundation for the grievance put forward by the appellant, and hence no directions from this Court are called- for in regard to the said matter. We are purposefully refraining from dwelling in greater detail on this aspect lest any observations that we may make should prejudicially affect the future

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J. KUMAR v. UNION OF INDIA (Ba/akrishna Eradi, J.)

473

service prospects of the appellant. We, however, consider it neces sary to observe that the appellant would do well to rid himself of the obseession that all his official superiors are put to harass or persecute him and open up a new chapter of devoting his high talents and skills for advancing the effectiveness of the R&D Organisation.

The charges put forward by the appellant in the Contempt Application (C.M.P. No. 5698 of 1981) and· in C.M.P. No. 69 of 1981 filed by the appellant under Section 340(1), Code of Criminal Procedure are bereft of merit and those applications will accordingly stand dismissed.

In the result, we dismiss this appeal but direct the parties to

bear their respective costs.

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