J.M.Panchal, J. - (1.) THIS appeal is directed against judgment dated October 10, 2002, rendered by the Division Bench of High Court of Punjab and Haryana at Chandigarh in CWP No. 10037 of 2002, by which the appellants are directed to consider the case of the respondent for promotion to the rank of Major General in accordance with the Rules and his service profile in the Army Aviation Corps.
(2.) THE relevant facts emerging from the record of the case are as under: THE respondent was commissioned in the Indian Army in the Regiment of Artillery on June 23, 1968 in the rank of Second Lieutenant. After grant of Commission, the seniority of the respondent was re-fixed with effect from August 21, 1969. Thus, for the purpose of promotion and career advancement, he became an officer of 1969 Batch. THE Government of India, Ministry of Defence, sanctioned formation of a nucleus Additional Directorate General Army Aviation at Army Head Quarters by order dated October 29, 1986. THE selection grade vacancies including the post of Major General were to be from within the sanctioned cadre of the Army and were to remain unfilled for a period of one year till the post of Additional Director General Army Aviation was sanctioned by the Government of India. THE Chief of Army Staff approved the establishment of a permanent cadre of officers for the Army Aviation Corps by an order dated April 17, 1997. In the said order/letter, it was mentioned that the cadre initially would have 15% permanent officers and 85% would be borrowed from the other cadres and would be built up in a graduated manner to 100% permanent cadre. By the said letter, cadre structure was formulated. Regarding allocation of vacancy in the rank of Major General to permanent cadre, it was mentioned that it would be decided later. THE initial induction was to be on voluntary basis with an irrevocable one time option. It was also provided by the said order that Aviation Corps Officers would be eligible for induction into general cadre on the lines as officers of supporting Arms, i.e., after selection based on positive recommendation in designated Command and staff assignment. In May, 1997 the respondent was promoted to the rank of Brigadier in the Regiment of Artillery. On September 1, 1997 a letter was issued by Army Head Quarters seeking application from volunteers for transfer to Army Aviation as per the terms and conditions set out in the letter/order dated April 17, 1997 passed by the Chief of Army Staff. The record shows that the President of India approved following Peace Establishments of Army Aviation: - a) Additional Directorate General Army Aviation, at Army Head Quarters. b) Command (Aviation) Branch at Eastern, Western and Northern Commands. c) Command (Aviation) Branch Southern and Central Commands. The President also sanctioned selection grade ranks as under: - (a) Major General - 1 (Offset provided Ex Pay Commission Cell). (b) Brigadiers - 7 ........................ It was also mentioned in the said order that three selection grade ranks of Brigadiers for which offsets have not been identified would remain suppressed till suitable offsets were identified by the SD Directorate and removal of this suppression would be carried out in consultation with MOD (Fin.). The decision of the President was communicated by the Government of India, Ministry of Defence, New Delhi vide communication dated November 27, 1997 to the Chief of the Army Staff. Along with the communication dated November 27, 1997, appendix A was also sent which was in the following terms: - "Appendix A to Government of India, Ministry of Defence letter No. 00659/PE/Misc./AA-5/ 1875/DO-1/D(GS-I) Dated 27 Nov., 1997. (The information given in this document is not to be communicated decision directly or indirectly to the press or to any person not authorized to receive it) JUDGEMENT_725_TLPRE0_2010Image1.jpg JUDGEMENT_725_TLPRE0_2010Image2.jpg GENERAL NOTES (a) Officer to be trained aviator (b) To function under MS-6 (c) Rank as per Corps roster (d) To be computer qualified (e) One JCO to function under MS-6 (f) To be provided by Regiment of Artillery (g) To be provided by Corps of Engineers (h) Two officers to be qualified on computer (i) Appointment of One Deputy Director General will be kept suppressed till offset is identified by SD Directorate. The removal of suppression would be carried out in consultation with MOD (Fin.)."
(3.) ON December 14, 1997, the respondent voluntarily applied for permanent transfer from the Regiment of Artillery to Army Aviation Corps. By a communication dated November 6, 1998, the transfer of the respondent to Army Aviation Corps was approved with immediate effect by the Army Head Quarters. Between the year 1997 and 1999, the respondent commanded 373(I) Artillery Brigade in the Regiment of Artillery. The respondent assumed the appointment of Brigadier (Aviation) Head Quarters Western Command at Chandimandir on June 24, 1999. ON December 22, 2001, the respondent submitted a non-statutory complaint to the Chief of Army Staff against non- consideration of his name for promotion to the next rank of Major General in the Army Aviation Corps, since he was the senior most Brigadier in the Army Aviation Corps (Permanent Cadre). The complaint of the respondent was considered by the Chief of Army Staff but was rejected on June 10, 2002 on the ground that no appointment of Major General was authorized to Army Aviation Corps (Permanent Cadre). By the said communication the respondent was informed that if he so wished, he should seek reversion to the Regiment of Artillery. Feeling aggrieved, the respondent filed CWP No. 10037 of 2002 before the High Court of Punjab and Haryana at Chandigarh praying, inter alia, to direct the appellants to consider his case for promotion to the rank of Major General in Army Aviation Corps. He also prayed that the appellants be restrained from posting an ex-cadre officer to the Post of Additional Director General Army Aviation, Army Head Quarters. The petition filed by the respondent was contested by the appellants. The High Court, by the impugned judgment, has directed the appellants to consider the case of the respondent for promotion to the rank of Major General in Army Aviation Corps, giving rise to the instant appeal.;