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High Court Of Delhi
SHYAM KUMAR - Appellant
Versus
UNION OF INDIA - Respondent
Civil 1490 of 1980
Decided On : 05/29/1981
ARMY ACT - SECTION 18, 19, 20, 192 - DEFENCE SERVICES REGULATIONS - REGULATION 4, 107 - PROMOTION OF OFFICERS - ROLE OF CHIEF OF ARMY STAFF - JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS - ARTICLE 14, 16 OF THE CONSTITUTION.
Fact of the Case:
The petitioner, an Army officer, challenged the decision of the Chief of Army Staff (CAS) to change the gradation for promotion made by the Selection Board under Regulation 107 of the Defence Services Regulations, 1962. The petitioner argued that the CAS had no legal competence or power to change the assessment of the Selection Board, while the respondents asserted that they had such power under the general administrative powers of the CAS as the Principal Advisor in Defence matters to the Government of India.
Finding of the Court:
The Court held that the CAS had no legal competence or power to change the gradation for promotion made by the Selection Board. The Court found that Regulation 107 provided for a collective decision-making process by the Selection Board and that there was no provision in the Regulations whereby the CAS could adversely change the gradation awarded by the Selection Board. The Court also found that the Defence Services Regulations were not statutory Regulations and that the administrative instructions under which the CAS claimed the power of review were not in accordance with law.
Issues: 1. Whether the Chief of Army Staff (CAS) has the legal competence or power to change the gradation for promotion made by the Selection Board under Regulation 107 of the Defence Services Regulations, 1962? 2. Whether the Defence Services Regulations are statutory Regulations and whether the administrative instructions under which the CAS claims the power of review are in accordance with law?
Ratio Decidendi: 1. The Court held that the CAS had no legal competence or power to change the gradation for promotion made by the Selection Board because: a. Regulation 107 provided for a collective decision-making process by the Selection Board and there was no provision in the Regulations whereby the CAS could adversely change the gradation awarded by the Selection Board. b. The Defence Services Regulations were not statutory Regulations and the administrative instructions under which the CAS claimed the power of review were not in accordance with law. 2. The Court found that the Defence Services Regulations were not statutory Regulations because they were not framed under Section 192 of the Army Act, 1950, which empowers the Central Government to make regulations for all or any of the persons of the Army ranks.
Final Decision: The Court allowed the writ petition and quashed the gradation "r" (unfit for promotion) given by the CAS, changing the gradation "b" awarded by the Selection Board in its meeting on 28th September 1976 and gradation "r" by two subsequent Boards on 1st October, 1977 and September. 1979. The Court also quashed the consequent orders of the Army Headquarters dated March 18, 1980, the order of the Government of India rejecting the statutory complaint under section 27 of the Act and the letter of. the Defence Ministry dated August 22, 1980 rejecting the complaint of the petitioner against his supersession. The Court directed the Union of India to consider the question of the promotion of the petitioner to the rank of Brigadier, afresh on the original recommendation of the Selection Board in May, 1976 and without the changes made by the Chief of Army Staff.
( 1 ) THE two petitions raise an important question of law for Personnel Administration in the Army. The Administration is primarily regulated by Army Act and statutory Army Rules, 1962. Section 18 of the Army Act incorporates the principle of Article 310 of the Constitution regarding tenure of services. The said section states that every person subject to this Act shall hold office during the pleasure of the President by virtue of Section 19 the said pleasure is exercised by the Central Government. Within this overriding exercise of pleasure by the President and the Central Government, Section 20 of the Army Act empowers the Chief of the Army Staff to dismiss or remove from the service any person subject to this Act other than an. Officer. We are here concerned with promotions to the post of Lt. Colonel and Brigadier. The question of law for the determination is whether the Chief of the Army Staff, who can in law, change the gradation for promotion made by the Selection Board (on which presides) under Regulation 107 of the Defence Services Regulation, 1962. In other words, the question is whether the Chief of the Army Staff can declare a person unfit for promotion where the Selection Board has declared him fit .
( 2 ) THE Army Act was passed in 1950. The statutory Rules were framed in 1962. Section 192 of the Army Act empowers Central Government to make regulations for all or any of the persons of the Army ranks. The Defence Services Regulations were also framed in 1962. But they are not framed under Section 192 of the Army Act. They are non-statutory in character.
( 3 ) THE Seventeenth Report of the Committee on Subordinate Legislation of the Fifth Lok Sabba, 1975 has made the following observation on the question, of Eon-framing of the statutory Rules :
"103. In paragraph 34 of their Fifth Report presented to the House on the 5th May, 1959, the Committee on Subordinate Legislation had recommended that ordinarily rules should be framed under an Act and in no case this period should exceed six months. A study made by the Committee has revealed that the above recommendation of the Committee has not been complied with by the Ministries Departments of Government of India in a large number of cases. In case of 22 Acts, the rule-making power had not been exercised at all and in 43 cases, there had been a delay in the exercise of rule-making power. The delay ranges from over 6 months to over 12 years. The Committee are distressed over such cases. "
"108. The Committee restress their earlier recommendation that ordinarily rules should be framed under an Act as soon as possible after the commencement of the Act and in no case this period should exceed 6 months. In case, however, a Ministry Department finds that for any unavoidable reasons it is not possible for them to adhere to the prescribed time-limit in an exceptional case, they should at the expiration of 6 months from the commencement of the relevant Acts, explain the reasons to the Committee and seek a specific extension of time from them. "
( 4 ) THE question again came up for consideration by the same Committee of the Sixth Lok Sabha when The Navy (Discipline and Miscellaneous Provisions) Amendment Regulations, 1974 (S. R. C. 37 of 1974) and the Naval Ceremonial, Conditions of Service and Miscellaneous (Amendment) Regulations, 1974 (S. R. C. 113 of 1974), came for consideration of the Committee. The Committee brought to the notice of the Defence Ministry that although for the Navy statutory Regulations were framed in 1964 and 1965, no such Statutory Regulations were framed for the Army for 22 years after the passing of the Army Act. The Defence Ministry replied as follows :
". . . . . . . . . . . . . . . . . . . . . . . . . . . after Independence, the various regulations for the Army, Navy and Airforce which were in vogue before Independence, were adopted enbloc. These all are of a non-statutory nature. As and when necessity arose action was initiated to revise the A
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