JASWINDER SINGH COL Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner was granted permanent Regular commission in Signal Corps on 11.42.1949. On 13.1.1973 he was transferred to Pioneer Corps., and was appointed as Assistant Director (Pioneer Corps.) Hqrs. Northern Command. In December, 1974, he was approved for promotion to Colonel by Selection Grade and by order dated 28.4.1975 he was promoted as Colonel and appointed as Director (Pioneer Corps.) at Army Hqrs.

(2.) To overcome the stagnation inhigher ranks and to improve the career prospects of service officers : in the Army, Government had ordered a Cadre Review in 1979, in which 125' additional posts of Brigadier were created by upgrading certain posts of Lt.Col. The post of the petitioner i.e. Director Pioneer Corps, was one of the posts accepted by Government for upgradation from Col. to Brig. The upgraded post of the petitioner-was to be filled specifically by an officer of the Pioneer Corps and its upgradation was not linked with that of any other posts. In August/September 1980, respondents identified 98 posts including post of Director Pioneer Corps, for upgradation from Colonel to Brigadier. On 3.3.1981 formal sanction for phase-I for upgrading 42 posts of Col. to Brigadier was issued by the Government. Thereafter on 30.3.1981 formal sanction for phase-ll upgrading 59 posts which included the post held by the petitioner was issued by the Government. Consequently Selection Board was constituted which considered the case of the petitioner in May 1981 for promotion to the post of Brigadier but the petitioner was not recommended for promotion. Petitioner lodged first statutory complaint dated 11.5.1981 pursuant to which he was informed vide letter dated 25.5.1981 that he had not been found fit for promotion to the post of Brigadier at present. On 27.5.1981 petitioner lodged second statutory complaint requesting the Government to set aside the decision of the selection board. Vide letter dated 30.6.1981 petitioner was informed that two complaints preferred by him were already rejected by the Government. At this stage, the petitioner filed the present writ petition.

(3.) Putting in brief, the case of the petitioner is that the upgradation of the post of Colonel to petitioner was with the objective to remove stagnation and improve career prospects and therefore on such upgradation the petitioner should have been automatically given the upgraded post of Brigadier and there was no requirement to consider the case by the Selection Board for promotion. According to him, it was not a case of promotion at all and when the posts were upgraded from Colonel to Brigadier, the petitioner was entitled to- get the upgraded post of Brigadier as a matter of right. Petitioner submitted that although the upgradation of order loosely referred as promotion, it was not promotion because :