Case: Union Of India And Others Vs. S.L. Dutta And Others

3. The appellants before us are the Union of India, Chief of Air Staff and the Secretary to the Government of India, Ministry of Defence, respectively. Respondent 1 was commissioned in the Indian Air Force on July 17, 1954 and had an unblemished service record. In course of time he was promoted to the post of Air Vice-Marshal. He belonged to the Navigation Stream of the Indian Air Force. When he was due to be considered for promotion to the post of an Air Marshal, the policy for promotion to the posts of Air Marshals in the Indian Air Force was changed by the Ministry of Defence, Government of India, by its Memo dated October 9, 1987. As per this revised policy which we shall consider in some detail a little later, the prospects of an officer in the Navigation Stream of the Air Force earning a promotion to the post of an Air Marshal were substantially reduce. At the relevant time respondent 1 was the seniormost Air Vice-Marshal in the Navigation Stream. Probably, on account of the change in the policy, respondent 1 was unable to secure promotion to the post of an Air Marshal and he retired as and Air Vice-Marshal on October 31, 1988. Before he retired, respondent 1 filed a writ petition in the Gauhati High Court on September 5, 1988, challenging the new promotion policy in respect of the posts of Air Marshals. On September 16, 1988, an interim order was made by the Gauhati High Court directing the Union of India to constitute a Selection Board and consider the case of respondent 1 for promotion on merits without reference to the new policy. The appellants challenged this order by way of a special leave petition. This Court granted special leave and allowed the appeal of the appellants on October 4, 1988, holding that the interlocutory order passed by the High Court was erroneous and setting aside the same. On October 31, 1988, respondent 1 retired as an Air Vice-Marshal. On February 15, 1990, a Division Bench of the Gauhati High Court allowed the writ petition filed by respondent 1 holding, inter alia, that the new promotion policy was not framed after an in depth study and directed that the case of respondent 1 be considered on the basis of the previous policy. It is this decision which is assailed before us in this appeal

Reasoning: In our opinion, we are not called upon to go into the consideration of the question whether the importance of the Navigation Branch in the Air Force has really been reduced as contended by the appellants because such consideration would involve several technical aspects which we are not competent to deal with and much of the material required to be considered might be of a sensitive and secret nature which it would not be proper to ask the Union of India or the Ministry of Defence to disclose, as such disclosure might adversely affect the safety and security of the country. It appears that the change of policy and reasons for the same were discussed at a meeting of the Air Marshals and the Chief of Air Staff who hold the rank of Air Chief Marshal. The minutes of the meeting are not available in court and we do not wish to call for them because some of the matters discussed in the meeting might be of a confidential or sensitive nature, as we have pointed out. Moreover, several of the matters discussed might be too technical for us to appreciatee are not able to accept this contention. In our opinion, what was affected by the change of policy were merely the chances of promotion of the Air Vice-Marshals in the Navigation Stream. As far as the posts of Air Marshals open to the Air Vice-Marshals in the said stream were concerned, their right or eligibility to be considered for promotion still remained and hence, there was no change in their conditions ofthe present case there is no question of arbitrary departure from the policy duly adopted because before the decision not to promote respondent 1 was taken, the policy had already been changed. The question is, therefore, whether this change can be said to be arbitrary or mala fide. As we have already pointed out, we are not in a position to hold that this change of policy was not warranted by the circumstances prevailing. As the matter was considered at some length by as many as 12 Air Marshals and the Chief of Air Staff of Indian Air Force, it is not possible to say that the question of change of policy was not duly considered. Mere non-availability of the minutes setting out the discussion, is of no relevance. In fact, it would perhaps be detrimental to the interest of the country if these matters were not kept confidential. We cannot assume that what was discussed at this meeting was not relevant to the decision regarding the change of policy. It may be that at one time the Ministry of Defence was not agreeable to accept the proposal for this change of policy but on further consideration accepted it. However, this could well show that before accepting the change of policy the Ministry of Defence and the experts attached to it gave full consideration to the requirements of the change. We cannot on the basis of this circumstance alone hold that the change of policy was arbitrary