ivil Appeal No 2574 of 199 1
From the Judgment and Order dated 3041991 of the Delhi High Court in CWP No 812 of 1991
Altar Ahmed Additional Solicitor General VC Mahajan AK Srivastava SN TerdaI and Vijay Kumar Verma for the Appellant
PC Jain Ashim Vachher and Ms Bharti Anand for the Respondent
The Judgment of the Court was delivered by 353 YOGESHWAR DAYAL J
This appeal by Special Leave is directed against the judgment of the High Court of Delhi dated 30th April 199 1 on behalf of the Union of India and the Chief of the Army Staff against Major General Dayanand Khurana
By the impugned judgment the Division Bench of the High Court directed the issue of writ of mandamus modifying an order dated 26th October 1990 and thereby directing the appellants herein to treat Major General DN Khurana who was approved for promotion to the acting rank of Lt General for Staff Only  Stream senior to all the other Major Generals who were promoted to the acting rank of Lt General in the Command and Staff  Stream and also issued further writ of mandamus directing the appellants to expeditiously promote the respondent herein ahead of the 1957 batch to a Staff post which has occurred between 26th October 1990 and 31st May 1991 keeping in view the existing policy of the Government and in the light of the observations made in the judgment
The brief facts which give rise to the filing of the writ petition in the High Court and the appeal before us may be noticed
The respondent was commissioned in the army in the year 1954 therefore his original seniority reckons from the year 1954
As per the policy and procedure adopted in this connection every officer is given three chances for consid eration for promotion
If an officer is not approved for promotion during the first consideration he loses one year of seniority and slides into the batch of the next year
In the eventuality of his not being approved for promotion even in the second consideration he loses one more year of seniority and slides further into the next batch
Thereaf ter the officer is considered for the last time for promo tion in the third chance and if he is not approved even in the third chance he is not given any further consideration and is finally regarded as a superseded officer
In pursu ance of this policy the respondent herein while he was acting as a Brigadier was first considered for promotion to the rank of Major General in the year 1983 but was not approved and therefore he became part of 1955 batch instead of 1954 batch
Thereafter he was superseded again and ultimately got selected as a Major General in the 1956 batch
As per the existing policy at that time his seniority in the rank of Major General was re fixed alongwith the officers of 1956 batch as per the following sequence of selection 354 1956 Batch a Final review case of 1954 batch
b First review case of 1955 batch
c Fresh case of 1956 batch
The respondent while working as Major General was con sidered for promotion to the rank of Lt General in July 1989 but was rejected by the Government
He thus once again lost seniority of 1956 batch
He was then considered as a first review case in July 1990 alongwith 1957 batch and was approved for selection for Staff Only  Stream in the fol lowing sequence of consideration a Final review case of 1955 batch
b First review case of 1956 batch
c Fresh case of 1957 batch
Since the respondent was approved only for Staff Only  Stream he was placed below all other Major Generals who were approved for selection in the Stream of Command and Staff
The respondent was aggrieved by his placement below the officers who were approved for Command and Staff  Stream though he had been approved only for Staff Only  Stream
On 31st May 1986 the Government of India approved in principle the Two Stream  concept of career management of Army Officers of the ranks of Major General and Lt General subject to the following stipulations a The modalities for implementation of Two Stream  concept will be worked out by the Army Headquarters and submitted to Government for information
This will include identification of appointments to be manned by officers belonging to the Staff Only  Stream
b The criteria and the QRs formulated by the Army HQrs and submitted to Government vide Army HQrs Note No PC 01102 MS 9B dated 7th February 1986 will be applied for screening officers for promotion to the two streams
It will be ensured that 355 the QRs prescribed for promotion to the Command and Staff stream are stricter than those prescribed for the Staff Only  stream
c A comprehensive review of the working of the concept will be done in 1987 and such amendments as may be necessary will be put up to Government for approval
This approval of the Government was preceded by the approval of the Prime Minister on 26th May 1986
The reason for adoption of Two Stream Concept  of career management for Army Officers is that the Army is highly command orient ed with the system itself providing a distinct edge for proven command performance
This orientation especially in higher ranks has helped to maintain the fighting efficiency of the Army and has stood to the test of time besides being in the over all interests of the Service and the Nation
In order to be able to develop command potential it was thought necessary that officers are allowed to hold command appointments for adequate periods
Thereafter the modalities for above Two Stream Concept  were worked out by the Army Headquarters and an office order was issued by Military Secretary s Branch Army Headquar ters dated 9th September 1986
The relevant paragraphs are 1 to 3 5 and 9 which read as under 1
The upgradations in senior ranks in the Cadre Reviews have been sanctioned only in the Staff and ERE appointments
This has caused serious imbalances in the existing ratio between the Command Staff and ERE appoint ments
Whereas earlier senior officers could be given a proper command tenure before their turn came up for the next promotion it is not now feasible in all cases after the upgrada tions are fully implemented
Ours is a Command oriented Army and successful performance in a command must continue to be mandatory for promotion to higher ranks
It is not desirable to truncate command tenures if we have to maintain our fighting efficiency
It is to this and that it has been decided to adopt the Two Stream Concept  for officers of the rank of Brig
and above
The details of the concept are given in the succeeding paras
356 Concept 3
The concept envisages that officers on promotion to Maj
General and Lt General will be bifurcated into the Command and Staff  and the Staff Only  streams as per details given below a Command and Staff Stream
Very high calibre officers based on their merit will be promoted to this Stream
They will hold com mand appointments in the Higher rank and thereafter be given exposure to Staff and ERE appointments as necessary
They will be eligi ble for further promotion as per the existing criteria
b Staff Only  Stream
Officers promot ed to this Stream will hold only staff ap pointments in the higher rank and will pro ceed on superannuation thereafter
These officers will not be eligible for further promotion
    
Applicability 5
The Two Stream  concept generally will be applicable to the officers of the General Cadre
However non General Cadre officers will also be considered for the Staff Only  Stream in the rank of Lt General
6 8     
Inter se Seniority 9
Officers selected for the Command and Staff Stream will be promoted first be it on a Command or Staff appointment
Thereafter officer of the same batch who are selected for the Staff Only  Stream will be promoted
Therefore for the purpose of seniority officers of the Staff Only  Stream will be Junior to officers of the Command and Staff Stream
After placing the officers of the Staff Only  Stream in suitable appointments review selectees of the Command and Staff Stream of the next batch will be promoted
Again in adopting the methodology for implementation of the 357 Two Stream Concept  the following note dated 22nd Septem ber 1986 was put up by the Military Secretary to the Chief of the Army Staff
This note pertains to the sequence of promotion in respect of officers who are approved for promotion under the Two Stream concept
The existing sequence of promo tion is laid down vide our policy letter No 38360MS 5 B dt 29 May 84 placed opposite
With our command orientation viable tenures in command assignment are mandatory to increase the fighting efficiency of the Army
It is to this end that the Two Stream Concept has been adopted
With the introduction of the two stream concept in the ranks of Maj Generals and Lt Generals the sequence of promotion into the streams needs to be formalised
In so doing the main reasons for the introduction of the two stream concept have to be the guiding principle
The two stream concept was intro duced to promote younger high calibre officers early so that they get viable tenures in command
It is also well known that by and large an officer who is approved as a fresh case is of a higher calibre as compared to the ones approved for promotion as review cases
Thus it would be logical to promote the former category of officers approved in the Command and Staff stream earlier than the latter category of officers approved in the Staff only  stream
Two options are available for fixing the sequence of promotion under the Stream Concept 
These are given in subse quent paras with the help of the following illustrations a Batches considered at the Screening Board
i Final Review 1956 ii First Review 1957 358 iii Fresh Cases 1958
b Officers Approved for Promotion i Final Review 1956 aa Command and Staff Stream One ab Staff only Stream One ii First Review 1957 aa Command and Staff Stream One ab Staff Only Stream One iii Fresh Cases 1958 aa Command and Staff ten Stream ab Staff only stream five 7
Whatever sequence is followed the IC number seniority within that stream of that batch needs to be maintained
The sequence of promotion could follow the undermentioned op tions a Option A
To follow the existing sequence of promotion i Final review Command and Staff stream 1956 batch
ii Final review Staff only stream 1956 batch
iii First review Command and Staff stream 1957 batch
iv First review Staff only stream 1957 batch
v Fresh Command and Staff stream 1958 batch
359 vi Fresh Staff only stream 1958 batch
b Option B
The sequence of promotion to be i Final review Command and Staff stream 1956 batch
ii First review Command and Staff stream 1957 batch
iii Fresh Command and Staff stream 1958 batch
iv Final review Staff only stream 1956 batch
v First review Staff only stream 1957 batch
vi Fresh Staff only stream 1958 batch
The officers of 1959 batch approved even in the Command and Staff stream will be promoted after absorbing the Fresh Staff Only  stream of 1958 batch 8
The advantages of Option A will be the disadvantages of Option B The advantages and disadvantages of Option A are discussed below a Advantages
i Those approved for promotion as review cases will still get their promotion and also have a reasonably viable tenure
The chances of any proved  officer retiring without get ting his promotion are remote
ii The existence of dissatisfied officers among those approved for promotion is unlike ly
b Disadvantages
i The basic principle behind the intro duction of the two stream concept gets defeat ed
ii Tenure of Command
Delay in the promo 360 tion of fresh cases of the Command and Staff stream will give them lesser tenure possibly affecting their chances of further promotion thus having an overall detrimental effect
iii The principle of promoting really high calibre and the best officers early is vio lated
Analysis
It would be noticed that the difference in the two options are minimal
In the case of Option A the existing sequence of promotion has been maintained in that officers are being promoted as per their inter se seniority irrespective of the stream
In the case of Option B whereas the existing se quence of promotion is still being maintained but promotion is being affected in accordance with the stream in which an officer is being promoted
Since officers of the Command and Staff are of higher calibre promoting them over the Staff Only  stream is logical and has been accepted in principle
Hence adoption of Option B is recommended
For approval please
Once ap proved Ministry of Defence will be informed accordingly
Sd AK Chatterjee Lt
Genl Sena Sachiv Military Secretary 22 Sep 86 COAS through VCOAS The above note of the Military Secretary was considered by the Vice Chief of Army Staff and vide note dated 24th September 1986 in which he has observed as under 1
As I see it in the ultimate promotions in Command 361 and Staff  stream and Staff stream should be independent of each other based on identified slots in each stream
The differential in terms of time between the two may be as much as two to three years the exact period vary ing from time to time
It is only then that we would be able to have viable tenures for Command and Staff  Stream officers both in the rank of Maj Gen and Lt Gen
Thus our aim should be to promote a Command and Staff  stream officer to Maj Gen at the age of 48 years or so and to Lt Gen at the age of 52 to 53 years
On the other hand it would be acceptable if a staff stream officer is pro moted to Maj
Gen at the age of 51 years or so and to Lt Gen at the age of 54 or 55 years
In the light of the above the propos al putforward by the MS cannot be a long term proposal
However we have perhaps no option but to adopt this for the short term as the ages at which the officers are currently being approved for higher promotions are compara tively higher and there would be imbalances if we increase the differential suddenly
MS proposal must therefore be seen as a valid one for the transitionary phase only
To that extent I am in agreement with his recom mendation
Sd 24 Sep 86 COAS The note of the Military Secretary alongwith the note of the Vice Chief of Army Staff was put up before the Chief of Army Staff who on 8th October 1986 approved the note of the Vice Chief of Army Staff
The file was again put up to JDMS through the Military Secretary and the matter was discussed
Paragraph 7a of the note of the Military Secretary dated 22nd September 1986 mentions Option A  which was the existing sequence of promotion prior to September 1986 and recommended in subparagraph b of paragraph 7 the sequence of promotion which was to be followed
In paragraph 8 the Military Secretary discussed the advantages and disadvan tages of Option A  and Option B 
In paragraph 10 he recommended adoption of Option B 
He also mentioned in his note that if the note is approved the Ministry of Defence will be informed accordingly
362 It is clear that the Vice Chief of Army Staff adopted the proposal as recommended in the note of Military Secre tary in paragraph 10 which was again agreed to by the Chief of Army Staff
The matter was again sent to the Military Secretary who discussed it with the officers of Ministry of Defence
It is clear from Option B  which was adopted for working out the Two Stream Concept  that the seniority will first be given to the Command and Staff  Stream selected from any of the earlier batches and after the Command and Staff  stream has been accorded the seniority the three streams of Staff Only  mention at Sl
iv v and vi will be given seniority
It is also clear that the final review the first review or fresh stream of Staff Only  rank below the similar three streams of Command and Staff  trained
The substance of this note is again conveyed by the Military Secretary in its communication dated 1st June 1987 by way of further amplifying the methodology for implementa tion of the Two Stream Concept 
The letter reads COMMAND AND STAFF STREAM 1
Further to this Headquarters letter No 00476MS 9B dated 09 Sep 86 2
Certain doubts have been expressed by officers regarding the Two Stream Concept 
This letter seeks to clarify the important issues with particular reference to a Necessity of the Stream Concept
b Ages of superannuation
c Inter se seniority
Necessity 3
The upgradations which were sanctioned in the Second Cadre Review were mainly on the Staff and ERE
This resulted in an imbalance in the Command and Staff ratio
Tenures in senior ranks in Command consequently became truncated which in a Command oriented Army like ours is not acceptable
Hence the Two Stream  Concept was intro 363 duced with the due approval of the Govern ment
Ages of Superannuation 4
As per the current rules officers of the Staff Only  Stream are to superannuate one year earlier than the officers of the Com mand and Staff Stream
This rule is applicable both to the General Cadre and officers from other Arms and Services
However in the case of officers of other Arms and Services certain other clarifications given in the succeeding paras will also be applicable
In the case of Maj Gens from other Arms and services the screening is done primarily to permit the officers to be promot ed to un specified appointments outside their Corps on first promotion and if required ahead of officers not so selected
The ages of superannuation in their respect will remain unchanged and they shall superannuate at an age corresponding to the officers of the Command and Staff in the rank of Maj Gen 6
Lt Gens
Each other ArmService is autho rised two appointments specific to the Corps in the rank of Lt Gen
Notwithstanding the proposal to downgrade the schools of Instruc tion a second appointment in the rank of Lt Gen will invariably be made available to them to ensure that their promotional prospects do not lag behind
Officers holding these two assured appointments will superannuate at 58 years
Other officers from a particular ArmService in the Staff Only Stream  over and above the two assured appointments will superannuate at 57 years as is applicable to officers of the General Cadre
However if an appointment within the Corps falls vacant such officer will be screened to assess his fitness for holding the specific vacancy within the Corps
If selected to hold the authorised vacancy he will superannuate at an age corresponding to the age of Command and Staff Stream ie 58 years
If in case no vacancy is available the officers of this Stream continue to superannuate at 57 years as mentioned earlier
Inter se seniority 7
The Two Stream Concept  envisages that officers of the 364 General Cadre of a particular batch seniority approved in the Command and Staff  Stream will be en block senior to those officers of the same batch approved on the Staff Only  Stream
In so far as non General Cadre officers are concerned the order of passing out is the determining factor to decide the inter se seniority amongst them subject to readjustment based on the sequence of selection
Doubts have also been raised regarding the inter se seniority between the officers of other Arms and Services approved on the Staff Only  Stream vis a vis officers of the General Cadre approved in the Command and Staff  Stream as well as Staff Only  Stream
It is clarified that as regards the seniority within the same batch is concerned officers approved on the Command and Staff  Stream continue to be senior to officers approved in the Staff Only  Stream
However an officer of an earlier batch approved on the Staff Only  Stream will be senior to an officer of subsequent batch approved on the Command and Staff  Stream
It will therefore be noticed from the above that while promoting officers in either the Command and Staff  Stream or Staff Only  Stream concept of batch seniority as hither tofore applicable has in all cases been main tained
It is reiterated that the Stream Concept  has been introduced to ensure that the best available talent and expertise available in the service is utilised
Content of this letter be widely dissemi nated
sd Vijay Kumar Lt
Gen Sena Sachiv Military Secretary Before adverting to the submissions of the parties we may also refer to another letter dated 29th May 1984 filed as Annexure P 2 to the writ petition in the High Court page 306 of the paper book filed on 365 behalf of the respondents alongwith the counter affidavit
The letter dated 29th May 1984 reads as under SEQUENCE OF SELECTION FOR SELEC TIVE RANKS 1
Reference MS Branch Liaison Letter No 180 forwarded vide this Headquarters Letter No OO170MS9A dated 02 Aug 80 2
Paras 26 and 27 of the above quoted Liaison Letter deal with the revised sequence of selection for promotion to the rank of ALt Col
However the example given in Para 26 has raised certain doubts in the minds of the officers
According to this example the revised sequence of selection was to be in the following order a Final Review Say 1960 Batch b First Review 1961 Batch c Fresh Selectees 1962 Batch 3
Prior to Feb 1980 two different sequences of selection were being followed for promotion to the rank of ALt Col and ACol illustrated by the following examples a for promotion to the rank of ALt Col i Fresh SeLEctees Say 1959 Batch ii Final Review 1957 Batch iii First Review 1958 Batch b for promotion to the rank of ACol and above i Final Review 1954 Batch ii First Review 1955 Batch iii Fresh selectees 1956 Batch 366 4
In Feb 1980 it was decided to bring the sequence of selection in the rank of ALt Col in line with the sequence being followed for promotion to the ranks of ACoI and above
The changed sequence of selection which is being presently followed is illustrated by the following examples a Final Review 196 1 Batch b First Review 1962 Batch c Fresh selectees 1963 Batch 5
This new sequence was to be applied com mencing with the fresh selectees of 1963 as illustrated in para 4 above
Fresh selectees officers of 1962 and earlier seniority were to be treated by the old criterion as given in para 3a above
It was also decided that past cases would not be opened up for the revision of seniority
In view of above para 26 of above men tioned Liaison Letter may please be treated as cancelled
This letter may please be given wide publicity
Sd HB Kala Col Col MS 5 for Military Secretary Learned counsels also brought to our notice paragraph 169 of Annexure P 3 filed in the writ petition page 307 to 309 of the paper book which reads as under 169
A  Batch for consideration for promotion to select rank is defined as all officers who reckon seniority in a particular calender year
This has been done for the following reasons a Officers are commissioned from IMA in Jan and Dec each year
367 b Officers commissioned from OTS on grant of permanent commission lose seniority as per existing rules and they reckon seniority in Mar and Sep of each year
c Officers who forefeit service as a result of disciplinary awards reckon fresh seniority on any date in the calender year
d Officers passing promotion examinations late also reckon seniority corresponding to the date of the examination on which they finally passed
 It will be noticed that both these communications are before the Two Stream Concept  which was accepted by the Government on 3 1st May 1986 and its modalities being worked out thereafter
However we will deal with these two communications little later
The Division Bench of the High Court considered the note of Military Secretary dated 22nd September 1986 referred to above as well as the note of the Vice Chief of Army Staff dated 24th September 1986 as also the note of the Chief of Army Staff and took the view that if the sequence of promotion which was being followed was for Option A  the writ petitioner would be entitled to be placed above the fresh Command and Staff  Stream cases belonging to 1957 batch
The learned Judges further observed In our opinion it is the sequence which is referred to in the Option A  which has to be followed for making promotion to the next higher rank of Lt General
The reason for this is obvious
It is true that the Military Secretary had recommended in the note dated 22nd September 1986 that Option B  supra should be adopted
The Vice Chief of Army Staff however has stated that the proposal of the Military Secretary cannot be a long term proposal
He further recommended that the proposal of accepting Option B  could be adopted for a short term only as the ages at which the officers are currently being approved for higher promo tions are comparatively higher
The Vice Chief of Army Staff then emphasis added recommended that Option B  should be regarded as being 368 followed for a transitionary phase only
It is clear from the aforesaid note of the VCOAS that option B  was recommended for being approved only by way of temporary measure and with regard to those officers who were being considered for promotion at that time
The use of the expression Currently being approved  must lead to only one conclu sion that it referred to those officers who were being considered for promotion on or about September 1986
What is of greater importance is that the VCOAS was emphatic in observing that Option B  could not be fa voured as a long term proposal
The Chief of Army Staff agreed with the recommendation of the Vice Chief of Army Staff
The effect of this must be that the recommendation of the Military Secretary to adopt Option B  as a sequence of promotion was not accepted
The existing sequence of promotion which was being followed was recommended to be continued
 Again the Division Bench observed It is pertinent to note that notwithstanding the note dated 22nd September 1986 and the subsequent opinion of the Vice Chief of Army Staff and the Chief of Army Staff no letter of the type which was issued on 9th September 1986 was ever issued by the Military Secre tary s branch
Whereas the letter of 9th September 1986 was issued to all the Command Headquarters there is no format document which was issued or made known to the offi cers purporting to give effect to Option B  suggested by the Military Secretary vide his note dated 22nd September 1986
On the con trary the letter dated 1st June 1987 issued by the Military Secretary s Branch referred to hereinabove is clearly at variance with the suggestion of the Military Secretary contained in his note of 22nd September 1986
If Option B  had been accepted then that would have been mentioned in the letter  of 1st June 1987
 Again in relation to the communication dated 1st June 1987 the Division Bench observed as under Reverting to the letter of 1st June 1987 we find that 369 towards the end of paragraph 9 it has been categorically stated that However an officer of an earlier batch approved on the Staff Only Stream  will be senior to an officer of subsequent batch approved on the Command and Staff  stream
This is then emphasised by the contents of paragraph 10 of that very letter which reiter ates that The concept of batch seniority as hithertofore applicable has in all cases been maintained
 The anxiety of the Military Secretary s branch apparently was that the batch seniority had to be maintained
If the argument of Mr Vazey is accepted the batch seniority cannot be main tained if the fresh cases of 1957 batch are to be promoted earlier than the petitioner which is a first review case of 1956 batch then the effect would be that officers belonging to the 1957 batch would be senior to the petitioner who belongs to the 1956 batch
Notwithstanding the note dated 22nd September 1986 of the Military Secretary the letter dated 1st June 1987 of the Military Secretary s branch makes it clear that the batch seniority shall always be maintained
Notwithstanding the fact that the fresh cases of 1957 batch have been ap proved for command and Staff stream they would nevertheless come in sequence after the petitioner who belongs to the 1956 batch though selected in the Staff only Stream
It may happen that notwithstanding that the petitioner is placed at the head of the penal no staff vacancy may occur and a vacancy may occur only for a command post to which the petitioner has not been selected but we are not concerned with such a case here
It is the admitted case before us that out of the penal of officers who were selected as per the letter dated 26th October 1990 Major Gen SA Singh and section Roy Choudhary have been on promotion posted to posts which are non Command posts
It appears to us that the Division Bench totally mis understood the note of the Military Secretary dated 22nd September 1986 as well as the note of the Vice Chief of Army Staff dated 24th September 1986
370 It is in the select panel prepared dated 26th October 1990 that the officers mentioned at a are the officers who were selected for Command and Staff  stream whereas the respondent was selected for the stream of Staff Only  It is clear from the Scheme that the officers who were approved for Command and Staff  stream can be appointed both for Command  as well as Staff  vacancies whereas the officers who were approved only for stream of Staff Only  can only be appointed to the vacancies relating to Staff  and cannot be appointed relating to vacancies for Command 
The ex pression same batch  which is referred to in paragraph 9 of the letter dated 1st June 1987 is for the officers who were considered for selection at one time and not the individual batch of the Major General
In the batch in which the re spondent was considered for promotion included a fresh cases of 1957 b first review case of 1956 and c final review cases of 1955
It is that batch which is being re ferred to as the same batch  and it is specifically men tioned in paragraph 9 that for the purpose of seniority
officers of the Staff Only  stream will be junior to the officers of the Command and Staff  stream
It is again specifically mentioned that after placing the officers of the Staff Only  stream review selectees of the Command and Staff  stream of the next batch to be promoted
This concept was further explained in the note of the Military Secretary dated 22nd September 1986 which was approved by the Chief of Army Staff as well as duly informed to the Government as required by the communication dated 3 1st May 1986 noticed by us earlier
In the note of the Military Secretary dated 22nd September 1986 Option A  which was prevalent practice was substituted by Option B  which was recommended for future and which was accepted both by Vice Chief of Army Staff as well as the Chief of Army Staff
Option A  was never put up as a proposal for acceptance or rejection to the Chief of Army Staff
Vice Chief of Army Staff only considered the proposal as recommended by Mili tary Secretary in his note dated 22nd September 1986 and Vice Chief of Army Staff accepted it and the same was adopt ed by the Chief of Army Staff
This Option B  has not been reviewed till date
There can be no doubt that if Option A  was available for preparation of select list the respondent would have been senior to other persons who were recommended for Command and Staff  stream
But Option A  was given up and Option B  was recommended for approval
If Option B  has been adopted and accepted as is clear the seniority of the respondent placed in the panel dated 26th October 1990 is unexceptionable
It is again clear that the recommenda tion of the Military Secretary dated 22nd September 1986 approved by the Chief of Army Staff was fully stated in paragraphs 7 9 and 10 of the communication dated 1st June 1987
Merely because no reference 371 is made to the note of the Military Secretary dated 22nd September 1986 in the communication dated 1st June 1987 it does not mean that the note has to be ignored
It will be noticed from the communication dated 31st May 1986 that after the Government had approved the concept of Two Stream  it was left to the Army Headquarters to work out the modalities and merely inform the Government
In fact the select panel even after being prepared has to be approved by the Government and has been so approved which show that the Government has accepted the modalities worked out by the Army Headquarters of the Two Stream 
It is clear from the noting of the Military Secretary which was accepted by the Chief of Army Staff that the same was inti mated to the Government and that the matter was also dis cussed with the Government by the Military Secretary
Noth ing further was required to be done and those decisions find place in paragraphs 7 9 and 10 of the letter dated 1st June 1987 by way of working out modalities
It is men tioned even at the expense of repetition in paragraph 7 of the aforesaid communication dated 1st June 1987 that the Two Stream Concept  envisages that the officers approved in the Command and Staff  stream will be en block senior to the officers of the same batch approved in the Staff Only  Stream
The same batch here refers to the three types of officers who were considered for promotion in the 1957 batch
Again in paragraph 9 it was repeated it is clari fied that as regards the seniority within the same batch is concerned officers approved on the Command and Staff  Stream continue to be senior to officers approved in the Staff Only  Stream
It was further clarified that however an officer of an earlier batch approved on the Staff Only  Stream will be senior to an officer of subsequent batch approved on the Command and Staff  Stream
Here the subse quent batch  means the next batch of promotion
The expres sion same batch  in the communications of 22nd September 1986 and 1st June 1987 took colour from the context and not from the definition of batch  given in paragraph 169 no ticed earlier
Nor does the sequence of selection to be considered as was prevailing before the communication dated 22nd September 1986 relevant
It was only the sequence of selection as proposed in Option B  which was adopted
Again the observation of the Division Bench that the note of the Military Secretary dated 22nd September 1986 is contrary to or at variance with the letter dated 1st June 1987 is not correct
The letter of 1st June 1987 is again for working out further modalities of Two Stream Concept  vis a vis seniority in the light of the note of the Military Secretary dated 22nd September 1986
372 The Government has been very fair in placing before the results of the select panel prepared since the introduction of Two Stream Concept 
The first Special Selection Board after September 1986 for promotion to the rank of Lt General was held in October 1986
It was 1954 batch com prising or a Final Review of 1952 b First Review of 1953 and c Fresh 1954 and the officers who were selected to the Stream of Command and Staff  were of 1954 batch and were placed en block senior to officers selected for Staff Only  Stream who were again Fresh 1954
Again the same policy was followed in the case of the respondent
It was called 1957 batch comprising a Final Review of 1955 b First Review of 1956 and c Fresh 1957
Since the respond ent was approved only for Staff Only  Stream though he was first review case of 1956 he was placed below the officers who were approved for Command and Staff  Stream and were Fresh 1957
Since there was no vacancy which could fall to the share of the respondent in his turn as per the seniority till he was superannuated on 3 1st May 1991 the respondent could not take advantage of his approved promotion
The note dated 22nd September 1986 amending the se quence of promotion and after giving advantage and disadvan tages of the two options ie Option A  and Option B  had thereafter recommended that Option B  should be adopted
It may not be accurate for the High Court to apply Option A  which has never been recommended and which was superseded by Option B  which was accepted at the highest level
Fact remains that even the select panel prepared by the army authorities was approved by the Government before it was released
Learned counsel for the respondent referred to the case of Major General RK Gaur as mentioned in paragraph 49 of the writ petition
The averment in paragraph 49 of the writ petition is that Major General Gaur was a case of 1954 batch first review and was approved on 26th August 1988 for Staff Only  Stream
Sometime in October 1987 fresh cases of 1955 batch were also approved for promotion to the rank of Lt General in which Major General VK Singh and Major General Hatvans Singh in addition to many others were approved for Command and Staff  stream
By the time Major General Gaur was approved in its first review on 26th 2August 1988 various officers of 1955 fresh cases were promoted except Major General VK Singh and Major General Harvans Singh
Between 26th August 1988 on which date Major General Gaur was approved in Staff Only  Stream 373 and 26th October 1988 no promotions were made to the rank of Lt General and on 26th October 1988 Major General Gaur was ordered to be promoted and in his order it is mentioned that the general officer ie Major General Gaur will report for his new appointment forthwith
Since the order has come on 26th October 1988 itself and the order was to report forthwith he could have picked up the rank the same day but incidentally he was out of station and returned only on 31st October 1988 and he could pick up the rank only on 1st November 1988
The orders of promotion of Major General VK Singh and Major General Hatvans Singh were issued on 27th October 1988 which clearly indicate that the order of promotion of Major General Gaur was issued ahead of both the aforesaid officers
This would clearly indicate that in the case of Major General Gaur who was a 1954 batch first review case was promoted ahead of Major General VK Singh and Major General Harvans Singh who were approved in Command and Staff  Stream as fresh cases of 1955 batch
The inten tion of issuance of such order promoting Major General Gaur on 26th October 1988 clearly indicates that he was to be promoted ahead of those two officers
In reply to the submissions made in paragraph 49 it is pleaded on behalf of the Government that it was clearly mentioned that Major General Gaur being a list review selectee of 1954 batch in Staff Only  stream reckoned seniority below the Fresh Selectee Command and Staff  stream of 1955 batch
In the Army the seniority is decided by the date of substantive promotion and not by the date the officer picks
up his acting promotion
In many cases officers due to various administrative reasons who are otherwise seniors pick up their acting rank due to late assumption of higher officer later than their juniors
However in such cases it is ensured that while granting substantive rank the panel seniority is maintained
It is a well known principle practised in almost all services and the writ petitioner is trying to confuse the issue with the letter relating to posting and promotion of senior officers which was issued one day later than his junior
It was contended that even in those promotion it was ensured that the seniors were at a liberty to assume their higher ap pointment in acting rank alongwith Major General Gaur
It was averred that it has been conveniently overlooked by the writ petitioner that promotion orders of several others of his senior were issued earlier
Moreover Lt General Gaur was given substantive promotion at a date later than the other two officers mentioned by the writ petitioner
Under no circumstances a junior is promoted ahead of the senior
It was stated that Lt General 374 Gaur was given substantive rank wef 111
1988 whereas Lt General Harvans Singh and Lt
General VK Singh both seniors to Lt General Gaur were given substantive promo tion wef
27th October 1988
We find that in view of this reply the petitioner cannot take advantage for being promoted earlier than the officers selected for the Command and Staff  Stream
We thus accept this appeal set aside the order of the High Court dated 30th April 1991 and dismiss the writ petition filed by the respondent
However on the facts of the case parties are left to bear their own costs through out
TNA Appeal allowed


Summary:
On 30th June 1969 State Government issued a notifica tion under Section 8A of the Karnataka Sales Tax Act 1957 providing a package of reliefs and incentives including one concerning relief from payment of sales tax
A further notification dated 11th August 1975 was issued envisaging certain modified procedures for effectu ating the reliefs contemplated by the exemption notification of 30th June 1969
For the assessment year 1976 77 the appellant made an application to the Respondent No 1 on 10th November 1976 for adjustment of the refunds against sales tax due and permission was granted with retrospective effect from 1st May 1976 validating the adjustments which the appellant had made during the interregnum
For the three subsequent years viz 1977 78 1978 79 and 197980 similar applications which were made on 29th March 1977 20th March 1978 and 8th March 1979 respectively remained undisposed of
In anticipation of the permission appellant adjusted the refund against tax payable for these years and filed its monthly returns setting out adjustments so effected
337 There was no dispute that the appellant was entitled to the benefit of the notification dated 30th June 1969 and that the refunds were eligible to be adjusted against sales tax payable for respective years
The respondent No 1 in his letter dated 2731979 informed the appellant that the orders on appellant s appli cation for permission would be passed only on receipt of the clarification from the Government on the matters
On 9th January 1980 the appellant was issued three demand notices by the Commercial Tax Officer demanding payment of the sales tax stating that as prior permission to adjust sales tax had not been considered by the respond ent No 1 he was obliged to proceed to recover the taxes
Steps for recovery of the penalties were also initiated
The appellant moved the High Court for issue of writ of mandamus to quash the demand notices and the proceedings initiated for recovery of penalty under section 13 of the Act
The High Court dismissed the writ petition against which the present appeal was filed
The appellant urged that indisputably the permission for the three years had been sought well before the commencement of the respective years but had been withheld for reasons which were demonstrably extraneous that the basic eligibil ity was conditioned by the notification of 30th June 1969 which required a certificate from the Department of Indus tries and Commerce that the requirement of the annual permission for adjustment envisaged by the notification of 11th August 1975 was merely procedural as clause 3 of the notification stipulated and that if the conditions were satisfied it was deemed that permission was given
The respondents contended that it was not as if the right to the refund was denied or defeated by the inaction of the Deputy Commissioner but only one mode of the refund by adjustment became unavailable that the benefit envis aged by the notification of 11th August 1975 was in the nature of a concession and that the appellant in order to avail itself of its benefit had to show strict compliance with conditions subject to which it was available that where exemptions were concerned the conditions thereof ought to be strictly construed and strict compliance with them exacted before a person could lay claim to the 338 benefit of the exemptions and that if in the meanwhile the period itself expired no relief was possible as quite obviously the requirements of prior permission  became impossible of compliance
Allowing the appeal this Court HELD 1
The main exemption is under the 1969 notifica tion
The subsequent notification which contains condition of prior permission clearly envisages a procedure to give effect to the exemption
347E F 2
Clause 3 of the notification leaves no discretion to the Deputy Commissioner to refuse the permission if the conditions are satisfied
The words are that he will grant
There is no dispute that appellant had satisfied the conditions
Yet the permission was withheld not for any valid and substantial reason but owing to certain extrane ous things concerning some interdepartmental issues
Appel lant had nothing to do with those issues
347F H 3
There was no other disentitling circumstance which would justify the refusal of the permission
Appellant did not have prior permission because it was withheld by the Revenue without any justification
The High Court took the view that after the period to which the adjustment related had expired no permission could at all be granted
A permis sion of this nature was a technical requirement and could be issued making it operative from the time it was applied for
349C D 4
A distinction between the provisions of statute which are of substantive character and were built in with certain specific objectives of policy on the one hand and those which are merely procedural and technical in their nature on the other must be kept clearly distinguished
347E G 5
The choice between a strict and a liberal construc tion arises only in case of doubt in regard to the intention of the Legislature manifest on the statutory language
Indeed the need to resort to any interpretative process arises only where the meaning is not manifest on the plain words of the statute
If the words are plain and clear and directly convey the meaning there is no need for any inter pretation
348F G Assistant Commissioner of Commercial Taxes Asstt Dharwar  Ors
vs Dharmendra Trading Co  Ors   Wells vs Minister of Housing and Local Government at 1007 339 and Union of India  Ors
vs Ms Wood Papers Ltd  Ors 1991 JT 1 151 at 155 referred to
Kedarnath Jute Manufacturing Co vs Commercial Tax Officer Calcutta  Ors  at 630 and Col lector of Central Excise Bombay and Anr
vs Messrs Parle Exports P Ltd   distinguished
Francis Bennion Statutory Interpretation 1984 edi tion at page 683 referred to