Judgment

KRISHNA IYER, J.:- The subject matter of the Writ Petition and Civil Appeal is the same and relates to the competing claims of the petitioner (Col. Sangwan) 1546 and the third respondent (Col. A. S. Sekhon) to be promoted as Brigadiers in the Directorate of Military Farms. Either of them, if promoted as Brigadier, automatically expects to become Director of Military Farms, and that is the bone of contention between them. Currently, the post is being held by an acting hand because of this litigation.

2. Way back in 1971, pursuant to a policy statement of 1964, a select list was made in which the third respondent found the third place and the petitioner was left out. The first and second positions in the 1971 selection went in favour of one Col. R. C. Datta and Acting-Col. Dahiya. They had their turn as Directors of the Military Farms and when Col. Dahiya retired on 31st July,1979 the post fell vacant and an appointment had to be made. Meanwhile, a writ petition under Art. 226 was moved before the High court of Jammu & Kashmir to interdict the Central Government from proceeding to make any fresh selection in departure from the selection list of 1971 overlooking the claim of the third respondent before us. His contention was that since he was already in the select list which was made pursaunt to the policy statement of 1964, any further selection cannot supersede his claim. The core of the contention was that once a policy had been made in exercise of the general executive power of the Union of India and made known and acted upon, it would be arbitrary to depart from it overnight by making a fresh selection and without an antecedent reformulation of policy and making that policy known to the concerned sector in the army. The High Court issued a writ forbidding any fresh selection in variance of the 1971 selection and so the aggrieved party, the present petitioner, has come to this Court by an appeal by special leave. He has also challenged the immutability of the 1964 policy statement as arbitrary under Article 14 of the Constitution and filed the above writ petition in that behalf.

3. The long course of history which traces the career of these two competing hands may not have direct relevance to the decision of the only issue with which we are contended. Without injury to a correct decision, we may by-pass the various stages in the career of either. It may, perhaps, be true that both of them have had a good career and may have a good record of service. It may even be that both of them may serve well if appointed as Directors of Military Farms. We are concerned only with one principle which is at issue, and on that we have heard the learned Attorney-General appearing for the Union of India.

4. The policy statement of 1964 was, as we have earlier stated, not issued under any rules or regulations or statute. The executive power of the Union of India, when it is not trammelled by any statute or rule, is wide and pursuant to its power it can make executive policy. Indeed, in the strategic and sensitive area of Defence, courts should be cautious although courts are not powerless. The Union of India having framed a policy relieved itself of the charge of acting capriciously or arbitrarily or in response to any ulterior considerations so long as it pursued a consistent policy. Probably, the principle of equality which interdicts arbitrariness prompted the Central Government to formulate its policy in 1964. A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and imperatives of national considerations. We cannot, as Court, give directives as to how the Defence Ministry should function except to state that the obligation not to act arbitrarily and to. treat empolyees equally is binding on the Union of India because it functions under the Constitution and not over it. In this view, we