Supreme Court - Daily Orders
Union Of India vs Lt Col P.K. Choudhary . on 14 July, 2016
Bench: Chief Justice, A.M. Khanwilkar
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A.NO.9 OF 2016
IN
CIVIL APPEAL NO.3208 OF 2015
UNION OF INDIA AND ANR. APPELLANT(S)
VERSUS
LT. COL P.K. CHOUDHARY AND ORS. RESPONDENT(S)
WITH
CONMT.PET.(C) No.365 OF 2016
IN
CIVIL APPEAL NO. 3208 OF 2015
O R D E R
By our order dated 15.02.2016 passed in Civil Appeal No.3208 of 2015 and connected matters we had while setting aside the order passed by the Armed Forces Appellate Tribunal directed the Government of India to create 141 additional posts of Colonel to be allocated to 'combat support' stream for being utilized for promoting officers Signature Not Verifiedeligible for such promotion over a period of five Digitally signed by ASHOK RAJ SINGH Date: 2016.08.17 17:13:01 IST Reason: years from the year 2009. The operative portion of the order was in the following words:- 2
“In the result, we partly allow these appeal and while setting aside the order passed by the Tribunal direct that the appellants shall create 141 additional posts of Colonel to be allocated to 'Combat Support' stream for being utilized by appointing officers who are eligible for promotions against the same as in the year 2009 over a period of 5 years till 2014.” The controversy in the appeal involved the question of the fairness of the allocation of additional vacancies created by the Government pursuant to what was known as A.V.Singh Committee Report. We had while examining the matter framed as many as five different questions that fell for our determination. Question No.3 formulated by us was in the following words:-
“Whether there was in illegality or irregularity or unfairness in the matter of allocation of vacancies to Arms Support on “Common Exit Model” principle?3
Answering the above question in the affirmative we had come to the conclusion that the distribution of vacancies from out of the second tranche of posts released by the Government was deficit to the extent of 141 vacancies in the cadre of Colonels from out of Arms Support (Artillery, AAD, Engineers and Signals). Having said that we had also noticed the Government’s non-adversarial stand and its willingness to undo any injustice caused to the officers who were eligible for promotion in the year 2009 but were not promoted on account of an unfair distribution of the vacancies. We had noticed the submission of Mr. Maninder Singh, learned Additional Solicitor General for the Union of India that the Government was ready to create 141 additional posts in the cadre of Colonels for allocation to Arms Support for being utilized appropriately by promoting officers eligible for such promotion. According to Mr. Maninder Singh, utilization of these additional vacancies could spread over a period of 10 years for an equitable treatment to 4 all batches lest any batch suffers prejudice by reason of some of the batches only getting the benefit. Mr. Maninder Singh had suggested that utilization of the posts so created could take place over a period of ten years to avoid an inequitable distribution and also to minimize the scope of any of the batches getting any undue benefit at the cost of other batches. Mr. Maninder Singh had also highlighted the problem of implementation and management of the cadre in case the utilization of the additional vacancies was to be done within a shorter time frame of say five years. Having noticed the submissions made at the bar we had declined the suggestion that the utilization of the additional vacancies could take place over an extended period of ten years. This is evident from the following passage:-
“Having given our anxious consideration to the submissions made at the bar, we are of the view that the additional141 vacancies which ought to have been allocated to Arms Support in the year 2009 were unfairly denied to them. It has taken the 5 aggrieved officers and legal process considerable time to have the said unfairness and injustice reversed by creation of additional vacancies. These vacancies shall, therefore, be taken to have been created as in the year 2009 and promotions against the same made from out of officers who were eligible for such promotion as in that year. It is not in dispute that the Selection Board that deals with such promotions has empanelled officers based on their inter se merit and suitability. All that is, therefore, required is to operate the said merit list for utilization of the additional vacancies now being created. In other words, the additional creation shall, for all intents and purposes, be deemed to have been available for being filled-up as in the year 2009 but to be actually filled-up as in the year between 2009-2014. Those who pick-up the next rank against the said vacancies shall have the benefit of retrospective seniority as is the practice in the Army but such seniority on appointment shall not entitle them to the benefit of higher pay-scale or arrears against the post to which they are promoted. In other words, financial 6 benefits shall accrue to offices promoted pursuant to the creation of additional vacancies only with effect from the date they are actually promoted.” The Government have, it appears pursuant to the above order complied with our direction insofar it was asked to (i) create 141 additional vacancies in the cadre of Colonels and (ii) allocate those vacancies for promotion of officers from the Combat Support Stream. The petitioner in this contempt petition, has all the same alleged breach of the direction of this Court insofar as the third dimension of our direction was concerned, namely, promotion of officers from Combat Support Stream against the newly created vacancies. The grievance made by the petitioner precisely is that while the direction of this Court required respondents to fill up the 141 newly created vacancies by promoting officers who were otherwise eligible in the year 2009 onwards for consideration against the said vacancies it has utilized the said vacancies by promoting 7 officers up to June, 2014. It was argued by Ms.Meenakshi Arora, learned senior counsel appearing for the petitioner that properly understood the direction issued by this Court implied that utilisation of the additional vacancies ought to have remained confined to officers who were eligible for such promotion in the year 2009 onwards for a period of five years ending December, 2013 or at best ending January, 2014, having regard to the fact that the impugned policy decision was taken on 29.01.2009. Ms. Arora argued that the vacancies could be utilized only for promoting officers who became eligible for such promotion over a period of five years from 2009 and no more. That was, according to the learned counsel evident from not only the tenor of the judgment delivered by this Court but also the final direction issued in Para 48 thereof extracted above.
On behalf of the respondent, Mr. Maninder Singh submitted that the Government had not considered the litigation culminating in the 8 judgment of this Court to be adversarial. Even the present proceedings are not being considered to be so. He urged that the Government had agreed to create additional vacancies which stood crated and allocated to combat support stream. He submitted that the respondents were in no way in contempt nor was there any deliberate breach of the direction of this Court inasmuch as the respondents had promoted against such vacancies offers eligible over a period of five years reckoned from June, 2009 to June, 2014. This according to learned counsel was primarily for the reason that the Selection Board had promoted 92 batch officers in June, 2009 which could be taken as the starting point for reckoning the five year period referred to in this court's order.
While we agree with Mr. Maninder Singh that there is no deliberate or contumacious breach of the order passed by this Court, we are of the view that the spirit of the order really was that only such of the officers as were entitled to such consideration and promotion between 2009-2013 both 9 years inclusive, ought to be considered and promoted. We say so because even when the Selection Board for the 1992 batch officers had been held in June 2009, the impugned Government policy decision was taken on 29.01.2009 when the second tranche of vacancies was released by the Government.
As noticed earlier, the question that fell for our determination was whether the allocation policy was unfair inasmuch as vacancies that ought to have been allocated to combat support had not been allocated to them. Our answer to that question was in the affirmative. Additional vacancies were therefore directed to be created as in the year 2009. This is evident even from the expression “these vacancies shall, therefore, be taken to have been created as in the year 2009 and promotions against the same made from out of the officers who were eligible for such promotion as in that year.” Such being the case we are of the view that the period of five years referred to in our order ought to be reckoned from January 10 2009 to January 2014 at the best and allocation of additional posts confined to officers who were eligible for promotion from 1992 to 1997 batches and no more. To the extent the Government have on a mistaken interpretation of our order allocated some of those vacancies to officers of the subsequent batch of 1998, it committed an error. Such allocation was not strictly in terms of the order of this Court and shall have to be corrected. We must say to the credit of Mr. Maninder Singh that he was agreeable to the correction being made within such time as is fixed by this Court. Let the needful shall be done expeditiously but not later than two months from today.
We may at this stage, also deal with another grievance which Ms. Arora sought to agitate. She argued that the allocation of vacancies even among officers from 1992-1997 batches was not actually in terms of the prevailing policy. She contended that while Government of India claim that the allocation has been made on the basis of batch 11 strength of the years, it ought to have taken PRV also as an important input while making such allocation. Mr. Maninder Singh in reply argued that this Court had not examined the method for allocation of vacancies and that the Government had adopted ‘batch strength’ as a uniform test for allocation. He urged that allocation of vacancies made on the basis of batch strength was fair and non-discriminatory and need not be faulted. He urged that the question whether PRV could also be considered as an important factor for the purpose allocation was a matter on which this Court had not expressed any opinion. There is therefore no occasion for this Court to examine that aspect in the present contempt proceeding.
We find merit in the contention of Mr. Maninder Singh. While it is true that the Government claim to have made the allocation of vacancies inter se Officers of different batches on the basis of batch strength, the question whether such allocation could also be made on PRV was never addressed by this court. Having said 12 that we are of the view that in case there is any error or aberration in the allocation of vacancies on the basis of batch strength the Government can correct it provided the same is pointed out to them. Mr. Maninder Singh was agreeable to looking into any representation made to the Government in that regard. We make it clear that the appellants may if so advised question the allocation on the ground that the PRV should also have been considered in appropriate separate proceedings. We express no opinion on that aspect of the matter and leave that question open.
In the result, we dispose of these proceedings with the direction that the needful shall be done in terms of the observation made in this order by the respondents expeditiously but not later than three months from today. Parties are left to bear their own costs. I.A.No.9/2016 and Contempt Petition No.365/2016 are accordingly disposed off in terms of the above direction.
This order shall not prevent the Government 13 of India from taking such steps as it may consider necessary to remove any injustice or any hardship caused to officers belonging to 1998 batch and who according to Mr. Maninder Singh would be the only batch left out from the benefit of a reduced tenure. The Government, if so advised, may create additional vacancies/ supernumeraries for undoing any such injustice. We leave that issue to be decided by the Government.
No costs.
.......................CJI.
[T.S.THAKUR] .........................J. [A.M. KHANWILKAR] NEW DELHI, JULY 14, 2016.14
ITEM NO.1 COURT NO.1 SECTION XVII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS I.A. NO.9/2016 IN Civil Appeal No(s).3208/2015 UNION OF INDIA AND ANR. Appellant(s) VERSUS LT COL P.K. CHOUDHARY AND ORS. Respondent(s) WITH CONMT.PET.(C) No. 365/2016 In C.A. No. 3208/2015 (With Office Report) Date : 14/07/2016 These appeals were called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE A.M. KHANWILKAR For Appellant(s) Mr. Maninder Singh, ASG Mr. R.Balasubramanian, Adv.
Mr. Prabhas Bajaj, Adv.
Mr. B.V. Balaram Das, Adv.
Mr. Akshay Amritanshu, Adv.
Ms. Ananya Mishra, Adv.
Mr. S.N. Terdal, Adv.
Mr. Nalin Kohli, Adv.
Ms. Meenakshi Arora, Sr. Adv.
Ms. Neela Gokhali, Adv.
Mr. Gaurav Kumar, Adv.
Mr. Devanshu Sharma, Adv.
Ms. Sonia Mathur, Adv.
Ms. Kamakshi S. Mehlwal, Adv.
For Respondent(s) Mr. Harish Pandey, Adv.
Ms. Kamakshi S. Mehlwal, Adv.
Ms. Sonia Mathur, Adv.15
UPON hearing the counsel the Court made the following O R D E R I.A. No.9/2016 and Contempt Petition (C) No.365/2016 are disposed off in terms of the signed order.
(Ashok Raj Singh) (Veena Khera)
Court Master Court Master
(Signed Order is placed in the file)