COLONEL SHYAM KUMAR Vs. UNION OF INDIA

JUDGEMENT

(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 :