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SUPREME COURT OF INDIA
A.D. KOSHAL, V. BALAKRISHNA ERADI AND R.B. MISRA, JJ.
Wing Commander, J. Kumar Appellant
Versus
Union of India and others, Respondents.
Civil Appeal No. 1742 of 1980 and Civil Misc. Petns. Nos. 69 and 5698 of 1981
Decided on 5-3-1982.
Advocates appeared
Appellant in Person; Mr. P. A. Francis, Sr. Advocate, M/s. Subhahini, Advocates with him, for Respondents.
* L PA No. 53 of 1980, D/- 11-4-1980. (Delhi).
Constitution of India,1950 - Rule 16 - Article 309 - Articles 14 and 16 - Section 340 (1) - Special leave - Patent Appeal - Appellant Wing Commander was commissioned in Indian Air Force with ante-dated seniority - He was permanently seconded to Defence Research Development and Inspection Organisation of the Ministry of Defence On bifurcation of the LRD&I Organisation effected by separation of Inspection Wing, appellant was retained in Defence Research and Development Organisation which will hereinafter be referred to as R&D Organisation - Director-General of Defence Research and Development who is also Secretary to Government of India Defence Research is controlling authority of R&D cadre - Said cadre has service officers drawn from all three Wings of Armed Forces namely Army Navy and the Air Force and in addition thereto a large number of civilian employees are also borne on it - Principal contention advanced by appellant before us is that principle for determination of seniority laid down in above rule is arbitrary and violative of Arts. 14 and 16 of Constitution - Alternatively it is contended by appellant that since he had been permanently seconded to long prior to promulgation of the impugned rules, his rights regarding seniority and promotions cannot in any way be effected by provisions of the new rule - According to the appellant he continues to be governed by principles that had been originally laid down in Government of India (Ministry of Defence) Memorandum which were rules in force at time of his secondment to the R&D Organisation - It is further case of appellant that R&D being an independent organisation seniority of personnel absorbed therein has to be reckoned only with reference to dates on which they were selected and appointed in the said Organisation and subsequent entrants into R&D in any particular category or rank should therefore be placed only below all those who had already joined Organisation by virtue of permanent secondment - Appellant also contends that by taking of substantive appointment to rank of Major/equivalent as basis for reckoning seniority officers who had obtained substantive promotions to higher ranks in parent service earlier than some of their seniors who were only subsequently promoted to such higher ranks will suffer very serious prejudice because latter will gain a march over earlier promotees and supersede them in matter of seniority in the R&D Organisation - Elaborating this plea it was urged on behalf of the appellant that result of the impugned rule would be to bring about anomalous situation where a person permanently seconded to R&D and holding substantively the rank of Lt. Col./equivalent can be superseded in seniority in said Organisation by a Major/equivalent of old vintage who had been overlooked for promotion in his parent service and may have thereupon come over to the R&D Organisation - Another objection strongly put forward by appellant was against lateral induction of officers at levels higher than that of substantive Major/ equivalent 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 projects of vital importance to defence forces of this country - Head of said Organisation is a civilian namely Scientific Adviser to Defence Ministry and its personnel consist of a large number of civilian scientists and a much smaller number of service officers drawn from three defence services - Service officers are initially taken on short tenure and are 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 conditions of service applicable to officers of the said cadre – Held, In the course of his submission before this Court appellant put forward a grievance that notwithstanding directions issued by High Court in its judgment under appeal he has not been given any posting or assignment - Counsel appearing on behalf of the Union of India and the Scientific Adviser to the Defence Minister made available for our perusal files relating to appellants posting to DR&D Laboratory at and the allotment of specific assignments therein to appellant from time to time - Having gone through file Court have come to \ conclusion that there is no factual foundation for grievance put forward by appellant and hence no directions from this Court are called for in regard to said matter – Court are purposefully refraining from dwelling in greater detail on this aspect lest any observations that we may make should prejudicially affect future service prospects of the appellant – Court however consider it necessary to observe that appellant would do well to rid himself of obsession that all his official superiors are out to harass or persecute him and open up a new chapter of devoting his high talents and skills for advancing effectiveness of the R&D Organisation - Appeal dismissed
JUDGMENT
BALAKRISHNA 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 judgment of a learned Single Judge of that Court whereby the contentions raised by the appellant in Civil Writ Petn. No. 1423 of 1979 were rejected and the said writ petition was dismissed.
2. The appellant -- Wing Commander J. Kumar - was commissioned in the Indian Air Force on September 3 1956 with ante-dated seniority from December 10, 1955. He was permanently seconded to the Defence Research Development and Inspection Organisation (for short, the LRD&/I Organisation) of the Ministry of Defence on October 14, 1971, On the bifurcation of the LRD&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 Navy and the Air Force, and in addition thereto a large number of civilian employees are also borne on it.
3. In November 1979, in supersession of all previous Rules and Orders on the subject, the President of India promulgated under the proviso to Art. 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 retained therein. Those rules were issued by the Ministry of Defence of the Government of India in Office Memorandum No. Pers/1860/ 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 secondment" That rule is in the following terms:
"As hithertofore seniority of all service officers permanently seconded to DRDO 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 the 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, for future promotion/confirmation, from the date of their substantive rank of Major/Sqn. Ldr./Lt. Cdr., subject to any penalty/ loss of seniority that an officer might have suffered in his parent Arm/Service."
4. 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 Arts. 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 appellant, 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 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
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