UNION OF INDIA AND ANR. versus LT. COL. P.K. CHOUDHARY AND ORS.
[2016] 2 S.C.R. 426, Supreme Court of India, 2016
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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[2016] 2 S.C.R. 426 
UNION OF INDIA AND ANR. 
v. 
LT. COL. P.K. CHOUDHARY AND ORS. 
(Civil Appeal No. 3208of2015) 
FEBRUARY 15,2016 
[T. S. THAKUR, CJI AND KURIAN JOSEPH, J.] 
Armed Forces Tribunal Act, 2007 - s. 31 - Restructuring of 
officers' cadre of the-Army - Recommendations by the AVS Committee 
- Sanction of additional vacancies in the rank of Colo11e/ -
Additio11a/ vaca11cies released in two phases - Fist tranche of 
vaca11cy distributed amongst Arms, Arms Support and service 011 
pro rota basis - Denial of pro-rota share in the 2nd tranche of the 
additio11al vaca11cies released by the Governmelll - Governme11t 
policy, chal/e11ge to, by the respo11de11ts, serving in the Arms Support 
and Service Corps of the Army- Tribunal quashed the policy ci11eular 
issued by the Government of l11dia - Issua11ce of directio11 to U11io11 
of J11dia to co11sider the respo11dents for promotio11 to the ra11k of 
Co/011el by creati11g supernumerary posts - 011 appeal, held: The 
Commiltee recommended lowering of age profile a11d consequent 
creatio11 of additio11a/ vacancies for Arms and Arms Support-
Operatio11al U11its(Armoured Corps, Infantry, Mecha11ised I11fa11try, 
Artillery, AD, Engi11eers a11d sig11als) a11d not for services stream 
(ASC, AOC, EME a11d other Minor Corps) - Since ASC, AOC, EME 
Officers did 11ot be11efit, there was neither a11y violatio11 of the 
recomme11datio11s made by Committee 11or was the distributio11 of 
the additio11a/ vaca11cies
discrimi11atory - Recommendations of the 
Committee regarding allocation of additional vacancies on 
"Command Exit Model" basis was accepted by the Government and 
a/location of first tranche of 750 vaca11cies by Army Headquarters 
on pro rota basis co11trary to the Government decisio11 a11d the 
G recommendations of the Committee did not affect the validity of the 
decision nor amounts to reversal of the said decision - There was 
110 illegality, irregularity or unfairness i11 the mat/er of a/location 
of vacancies to Arms Support on "Command Exit Model" principle 
- A/location of 7 34 vacancies, comprising second tranche, on 
.standalone basis, is the only right method for allocation - Further, 
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426
/ 
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
427 
the officers .in service streams do not constitute a single cadre with 
those serving i11 Arms and Arms Support for purposes of allocation 
of additional vacancies - There is no basis for the submission that 
/egitimate expectation arose in the minds of the respondents that 
they shall be promoted to the next rank simultaneously with the 
officers ·serving in Arms or Anns Support - Thus, the order passed 
by the tribunal set aside __:-Issuance of direction to appellants to 
create 141 additional posts of Colonel to be allocated to 'Combat 
Support' streain - Service Law. 
Armed Forces - Command tenure - Scope of judicial review 
- Held: Command tenure is a policy matter - Scope of judicial review 
is extremely .. limited - Defence experts or the Government to 
determine the tenure of a commanding officer for Arms or Arms 
Support having regard to variety of factors - Stipulation of a 
command tenure of four years for Arms Support Officers taking 
into consideration of the nature of duties and the need for battle 
preparedness of the force not arbitrary as to call for interference 
by/he Court/tribunal - Judicial review. 
Administrative law - Legitimate expectation - Concept of -
Held: Arises out of .a reasonable expectation of being treated in· a 
certain way by an administrative authority even though the person 
who has such an expectation has no right in law to receive the 
benefit expected by him - Any such expectation
can arise from an 
"express promise" or a "consistent course of practice or procedure" 
which the person claiming the benefit may reasonably expect to 
continue - If denial of legitimate expectation in a given case amounts 
to denial of a guaranteed right, the same can be questioned u/Art.14 
of the Constitution but a claim based on mere legitimate expectation 
.without anything more cannot ipso facto give a .dght to invoke these 
principles. 
Partly allowing the appeals, the Court 
· HELD: 1. The order passed by the tribunal is set aside and the 
appellants are directed to create 141 additional posts of Colonel 
to be allocated. to 'Combat Support' stream for being utilized by 
appointing officers who are eligible for promotions against the 
same as in the year 2009 over a period of 5 years till 2014. [Para 
48) [467·D·E) 
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SUPREME COURT REPORTS 
(2016] 2 S.C.R. 
2. A careful reading of the Committee report leaves no 
manner of doubt that the Committee emphasized the need for 
bringing down the age profile of Unit Commanders in Operational 
Units only. The Committee recognized Armoured Corps, Infantry, 
Mechanised Infantry, Artillery, AD, Engineers and signals as 
operational formations leaving out ASC, AOC, EME and other 
Minor Corps. The report clearly suggests that the additional 
creation of 1484 vacancies in the rank of Colonels did not take 
into account vacancies for Colonels in ASC, AOC, EME and other 
Minor Corps. As a matter of fact, the report very clearly states 
that the age profile of such Service formations for Minor Corps 
could be higher t_han that required to operate in the combat 
conditions. Thus, there was neither any recommendation 
regarding reduction in age profile of Unit Commanders in ASC, 
AOC and EME nor was there any recommendation for creation 
of addHional vacancies to benefit officers serving in those 
formations. Additional vacancies were specifically recommended 
for the operational formations and were meant to be allocated to 
those formations depending upon the recommended tenure of 
the Commissioning Officers in those formations and the possibility 
of re-command. Inasmuch as ASC, AOC, EME Officers did not 
benefit from the creation of additional vacancies, there was neither 
any violation of the recommendations made by the Committee 
nor
was the distribution of the additional vacancies discriminatory 
as alleged. [Para 20) [447-E-H; 448-A-B) 
3.1 The recommendations of the AVS Committee regarding 
allocation of newly created vacancies being made on "Command 
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Exit Model" was attepted by the Government. It is trite that the 
Government alone could say whether the recommendations of 
ttre Committee were accepted by it. The Government answered 
that question in the affirmative on the basis of a statement made 
at the bar as _also on the basis of contemporaneous official record 
and the affidavit filed by a responsible officer acti,ng for and on 
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behalf of the Government. [Para 22) [448-H; 449-A) 
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3.2 The 750 vacancies comprising the first tranche released 
by the Government were allocated on a pro rata basis contrary to 
the recommendations and the decision of the Government. The 
said allocation would not by itself undo either the 
recommendations made by the Committee or the decision taken
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
by the Government to allocate the newly created vacancies on 
"Command Exit Model" principle. Just because allocation of 
vacancies in the firsttranche was made by the Army Headquarters 
ignoring the recommendations of the Committee and the 
Government decision cannot possibly result in the reversal of 
the Government decision nor can it negate the Command Exit 
Model. So also, simply because the earlier allocation was not 
reversed as the officers had picked up their ranks does not affect 
the binding nature of the Government decision that the allocation 
should be on "Comnumd Exit Model". [Para 24] [450-B-D] 
3.3 Having said that, the adfustment/set off of the vacancies 
so allocated against the entitlement of the arms and arms support 
in the second tranche does not appear to be justified. If the Army 
H~adquarters committed a mistake in allocating vacancies on a 
pr.o rata basis contrary to the recommendations and decision of 
the Government, any such error cannot adversely affect officers 
serving in arms and arms support who may have been entitled to 
a higher number of vacancies in the second tranche but who were 
deprived of such allocation on account of the error in the previous 
allocation made on pro rata basis. The ASG conceded that the 
~econd tranche of 734 vacancies could and ought to have been 
allocated on "Command Exit Model" principle without taking into 
consideration the excess, if any, allocated to the arms
and the 
arms support on pro rata basis in the first tranche. The ASG filed 
a statement showing the number of vacancies that would have 
ordinary fallen to the share of arms support corps if tile second 
tranche of 734 vacancies were allocated without making any 
adjustment of vacancies previously allocated. Thus, the 
recommend11tions of the Committee regarding allocation of 
additionat vacancies on "Command Exit Model" basis had been 
accepted by the Government and that allocation of the first tranche 
of 7 50 vacancies by the Army Headquarters on pro n1ta basis 
contrary to the Government decision and the recommendations 
of the Committee did not affect the validity of the decision nor 
amount to reversal of the said decision or its dilution in any 
manner. [Para 25] [450-D-H; 451-A-B] 
4.1 The allocation of 734 vacancies, comprising the second 
tranche, when made on standalone basis, (without any adjustment 
of the excess allocated in the first tranche) is the only right method 
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SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
for allocation. The excess allocated in the first tranche, against 
which officers who may not have otherwise picked up the higher 
rank were promoted, cannot possibly deny the rightful due to 
those who would be entitled to claim promotion against the 
vacancies in the second tranche. [Para 28] [451-G-H] 
4.2 The command tenure is a policy matter on which the 
scope of judicial review is extremely limited. What should be the 
tenure of a commanding officer for Arms or Arms Support is for 
defence experts or for the Government to determine on expert 
advice having regard to a variety of factors. If the Government 
has upon consideration of the nature of duties and the need for 
battle preparedness of the force has taken a decision to prescribe 
a tenure of upto four years for officers serving in Arms Support, 
it would be difficult to fault the same in the absence of any patent 
perversity in any such decision especially when no breach of any 
fundamental or other right of any one complaining against the 
prescription of such a tenure is demonstrated. No such infirmity 
has beeu pointed. The ASG submitted that the tenure of 
commanding officers in arms support shall for purpose of creation/ 
allocation of vacancies, be taken as three years instead of four 
years. The Government has on that basis calculated the number 
of vacancies that would be additionally due to arms support on 
Command Exit Model. [Para
28) [452-C-F] 
4.3 To the extent of a deficit of 141 vacancies in the cadres 
of Colonel to Arms Support (Artillery,AAD, Engineers and signals) 
an unfair distribution of the vacancies from out of the second 
tranche were released by the Government. The Government have 
not taken an adversial stand nor have the Government opposed 
the undoing of the injustice caused to officers who were eligible 
for promotion in the year 2009 but were not promoted on account 
of lesser number of vacancies allocated to Arms Support. On the 
contrary the ASG submitted that the Government would do 
anything to prevent any frustration or disenchantment among the 
officers serving in the army by creating 141 additional posts in 
the cadre of Colonel for allocation to Arms Support so that the 
same are utilized appropriately for promoting officers eligible for 
such promotion. The ASG, however, suggested a method of 
utilization of the posts so created over a period of ten years to 
avoid an inequitable distribution and also to minimize the scope
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 
of any of the batches getting any nndne benefit at the cost of 
other batches. The ASG bas also highlighted problems of 
implementation like managing of the cadre in case the utilization 
of the additional vacancies is to be done within a shorter time 
frame of say five years. The additional 141 vacancies which ought 
to have been allocated to Arms Support in the year 2009 were 
unfairly denied to them. It has taken the aggrieved officers and 
legal process considerable time to have the said unfairness and 
injustice reversed by creation of additional vacancies. These 
vacancies shall, therefore, be taken to have been created as in 
the year 2009 aud promotions against the same made from out of 
officers who were eligible for such promotion as in that year. The 
Selection Board that deals with such promotions has empanelled 
offi~ers based on their inter se merit and suitability. All that is, 
therefore, required is to operate the said merit list for utilization 
of the additional vacancies now being created. In other words, 
the additional creation shall, for all intents and purposes, be 
deemed to have been available for being filled-up as in the year 
2009-but to be actually filled-up in 5 years between 2009-2014. 
Those who pick-up the next rank against the said vacancies shall 
have the benefit of retrospective seniority as is the practice in 
the Army but such seniority on appointment shall not entitle them 
to the benefit of
higher pay-scale or arrears against the post to 
which they are promoted. In other words, financial benefits shall 
accrue to officers promoted pursuant to the creation of additional 
vacancies only with effect from the date they are actually promoted. 
[Para 29] [453-A-H; 454-A] 
5.1 The officers allocated to Arms and Arms s·upport and 
Services do not comprise a single cadre for purposes of promotion. 
This is said so because transferability which is one of the essential 
attributes of posts comprising a single cadre is absent in the case 
of service officers on the one hand and those serving in Arms 
and Arms Support ou the other. Merely because the incumbents 
of two posts are placed in the same scale of pay does not determine 
whether such posts constitute a cadre. [Para 30] [454-E-F] 
5.2 The officers serving in the Service stream of the Army 
do not constitute a single cadre with officers serving in Arms and 
Arms Support, no matter they may all be drawing the same salary, 
holding the same rank, wearing the same uniform and serving 
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SCPREME COURT REPORTS 
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the same employer with similar service benefits. The true position 
is that allocation of officers to different Arms and Services puts 
them in distinct cadres, with the result that those comprising a 
particular cadre will have his or her promotional avenues available 
against the posts comprising that cadre alone notwithstanding 
the fact that the Government of India may, as a policy, attempt to 
ensure as far as possible that officers of a given batch pick up 
their ranks around the same time or within a reasonable span of 
their counterparts in other cadres or that the disparity in the 
time frame for promotion is removed by making promotions 
retrospective from the dates officers in the other cadre have been 
promoted. Reliance by the respondents upon Circnlar, is 
misplaced. That circular, was issued in connection with the 
implementation of the Fourth Pay Commission to remove doubt 
regarding the interpretation of the term "cadre" as applicable to 
army officers. It was in that context that the expression "cadre" 
was explained in the circular by reference to the method of 
allocation to Arms and Services, and similarity of other conditions 
of service. The circular does not constitute a statement of law 
much less can the exposition of the term 'cadre' as given therein 
operate as estoppel against the onion. The circular is an internal 
communication and has been issued in a totally different
context. 
Thus, the officers in service streams do not constitute a single 
cadre with those serving in Arms and Arms Support for purposes 
of allocation of additional vacancies created pursuant to the 
recommendations made to the Government by the Committee. 
[Para 32) [455-H; 456-A-E) 
6.1 The choice of the cadet plays an important role in his 
allocation and induction in the stated 11 streams. That is precisely 
why towards the completion of pre-commission training each cadet 
is required to submit his'/her choice of induction into any of the 
11 streams. Policy guidelines in this regard have been issued 
from time to time by the Adjutant General's Branch which lay 
down the procedure by which cadets are allocated to different 
Arms, Combat Support Arms and Services. The broad allocation 
policy as stipulated iu Adjutant General's Branch Circular issued 
to the Indian Military Academy, Dchradun lays down the working 
parameters to ensure equitable distribution of GCs/LCs to Arms/ 
Services through consideration of several factors stipulated in
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
the same. Merit and caliber spread is one of the factors taken 
into consideration. The policy envisages that first 1 % GCs (in 
order of merit) would constitute the "Super Block" and will be 
allotted to the Army/Service of their choice irrespective of other 
factors. It also provides for dividing GCs into blocks consisting 
of 25 to 35 GCs to ensure an even distribution of caliber to all 
Arms and Services. Parental claims are also taken into 
consideration while making such allocation just as the choice of 
General Cadet is one such factor that is taken into consideration. 
The policy envisages certain factors to be kept in mind while 
exercising the choice by the cadets. [Para 34] [457-E-H; 458-A] 
6.2 Para 19(e) of the policy guidelines, inter alia, provides 
that as far as possible, efforts shall be made not to allot Arms/ 
Services to any GC who has not opted for it as one of his choices. 
Out of a total of30 officers who had filed three original applications 
before the Tribunal, 26 officers were allotted to the streams of 
their first choice, 2 were allotted to the streams of their second 
choice while only one got allotted to the stream of his 3'd choice. 
One can, therefore, visualize that choice made by the officers 
prevails as has happened in the case at hand where an 
overwhelming number of 26 out of 30 officers have been given 
their first option while 2 out of 30 only were given their 2'd choice. 
GCs who made
their choices are presumed to be fully aware of 
the functional and operational requirements of the obligations of 
the streams for which they had opted as also their future career 
prospects for the same. [Para 35] [459-A-C] 
6.3 The concept of Legitimate expectation arises out of what 
may be described as a reasonable expectation of being treated in 
a certain way by an administrative authority even though the 
person who has such an expectation has no right in law to receive 
the benefit expected by him. Any such expectation can arise from 
an "express promise" or a "consistent course of practice or 
procedure" which the person claiming the benefit may reasonably 
expect to continue. The question of redress which the person in 
whom the legitimate expectation arises can seek and the approach 
to be adopted while resolving a conflict between any such 
expectation, on the one hand, and a public policy in ~neral public 
interest on the other, present distinct dimensions every time the 
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SUPREME COURT REPORTS 
[2016) 2 S.C.R. 
plea of legitimate expectation is raised in a case. If denial of 
legitimate expectation in a given case amounts to denial of a right 
that is guaranteed or is arbitrary, discriminatory, unfair or biased, 
gross abuse of power or in violation of principles of natural justice 
the same can be questioned on the well-known grounds attracting 
Article 14 of the Constitution but a claim based on mere legitimate 
expectation without anything more cannot ipso facto give a right 
to invoke these principles. [Para 41, 45] (462-B-D; 465-F-G] 
6.4 In the instant case, the plea of legitimate expectation 
is not of any assistance to the respondents. Firstly, there is no 
real basis for the respondents to argue that the Government of 
India had either by representation or by any sustained course of 
conduct created an impression in the minds of the respondents 
that any additional vacancies created to the lower age profile of 
commanding officers serving in Combat Arms or Combat Arms 
Support shall also benefit those serving in the Service Streams 
of the Army. There is no factual basis laid by the respondents in 
the pleadings before the tribunal to suggest that any such 
impression was gathered by officers serving in the Service 
Streams.There is also no basis for the submission that a legitimate 
expectation arose in the minds of the respondents that they shall 
be promoted to the next rank simultaneously with the
officers 
serving in Combat Arms or Combat Arms Support. As a matter 
of fact, the provisions of para (68) of the Regulations for the Army 
envisages the grant of promotion to officers from different streams 
at different points of time depending upon several factors which 
bring about the time lag for such considerations. Conscious of 
the fact that such officers serving in different streams may pick 
up the next rank at different points of time, the Regulations 
provide for grant of retrospectivity to the promotions so granted 
to restore inter se batch parity to such officers. The said Regulation 
continues to be operative and regardless of the date when the 
officer is promoted, his promotion is so related back as to protect 
his seniority vis-a-vis his colleagues from the batch serving in 
other streams. Far from creating any impression or any 
expectation that promotions shall be simultaneous, the 
Regulations clearly provide for grant of retrospective effect to 
the promotions only with a view to restore seniority. This clearly 
implies that in the very nature of things the promotions could be
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
granted to officers at different points of time and time lag could 
additionally be in the 0-1-2 scenario. [Para 46] [465-H; 466-A-E] 
6.5 Legitimate expectation as an argument cannot prevail 
over a policy introduced by the Government which does not suffer 
from any perversity, unfairness or unreasonableness or which 
does not violate any fundamental or other enforceable rights 
vested in the respondents. In the instant case, the Government 
has, as a matter of policy, decided to lower the age profile of 
officers serving in Combat Arms and Combat Arms Support 
pursuant to the recommendations made by the Expert 
Committees. There is nothing perverse, unreasonable or unfair 
about the policy that the age of officers serving in Combat Arms 
and Combat Arms Support will be lowered by creating additional 
vacancies to be allotted on Command Exit Model, as such there 
is no reason to allow the argument based on legitimate 
expectation to unsettle or undo the policy which is otherwise 
laudable and intended to render the Indian Army more efficient 
and better equipped for combat situ.ations. It also is not a case 
where no reasonable person could have taken the decision whic!J 
the Government have taken as regards the need for lowering 
the age profile of the Commanding Officers or their exit after 2-
112 to 3 years to occupy positions which the Government have 
created for the officers to occupy till they are considered for 
promotion
to the next higher rank.[Para 47][466-G-H; 467-A-C] 
K. S. Srinivasan vs. Union of India (UOI) 1958 SCR 
1295:AIR 1958 SC 419; Chakradhar Paswan vs. State 
of Bihar & Ors. 1988 (3) SCR 130:1988 (2) SCC 214; 
Hara Bhupal vs. Union of India and Others 1997 (2) 
SCR 455:(1997) 3 SCC 561; S. I. Roop/al and Another 
vs. Lt. Governor through Chief Secretary, Delhi and 
others 1999 (5) Suppl. SCR 310:(2000) 1 SCC 
644;State of U.P. & Ors. vs. Bharat Singh & Ors. 2011 
(4) seR 525:(2011) 4 SCC 120; Food Corporation of 
India v. Kamdhenu Cattle Feed Industries 1992 (2) 
Suppl. SCR 322:(1993) 1 sec 71;Union of India v. 
Hindustan Development Corporation and Ors. 1993 (3) 
SCR 128 : (1993) 3 sec 499:Punjab Co111111u!1icatio11s 
Ltd. v. Union of India and Ors. (1999) 4 SCC 727: 1999 
435 
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SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
(2) SCR 1033;D1: Chanchal Goyal (Mrs.) v. Stute of 
Rajasthan (2003) 3 SCC 485: 2003 (2) SCR ll2;Ram 
Pravesh Si11gh v. Stute of Bihur (2006) 8 SCC 381: 2006 
(4 ) Suppl. SCR 872; Sethi Auto Serrice Statio11 a11d 
Anr. v. Delhi Developmem Authority and Ors. (2009) 1 
SCC 180: 2008 (14) SCR 598;Confederation of Ex-
servicemen Association I'. Union of India (2006) 8 SCC 
399:2006 (4) Suppl. SCR 872;State of Bihar and Ors. 
v. Kalyanpur Cements Ltd. (2010) 3 SCC 274: 2010 
(1) SCR 928;Monnet !spat and Energy Ltd. v. Union of 
India and Ors. (2012) 11 SCC 1:2012 (7) SCR 644 -
referred to. 
Attorney General for New South Wales (1990) 64 Aus 
LJR 327 - referred to. 
Case Law Refeence 
1958 SCR 1295 
Referred to. 
Para 30 
1988 (3) SCR 130 
Referred to. 
Para 30 
1997 (2) SCR 455 
Referred to. 
Para 31 
1999 (5) Suppl. SCR 310 
Referred to. 
Para 31 
2011 ( 4) SCR 525 
Referred to. 
Para 31 
1992 (2) Suppl. SCR 322 
Referred to. 
Para 31 
1993 (3) SCR 128 
Referred to. 
Para 42 
1999 (2) SCR 1033 
Referred to. 
Para 43 
2003 (2) SCR 112 
Referred to. 
Para 44 
2006 (4 ) Suppl. SCR 872 
Referred to. 
Para 44 
2008 (14) SCR 598 
Referred to. 
Para 44 
2006 (4) Suppl. SCR 872 
Referred to. 
Para 44 
2010 (1) SCR 928 
Referred to. 
Para 44 
2012 (7) SCR 644 
Referred to. 
Para 44 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3208 
of2015
UNION OF INDIA v. LT. COL. P. K. CHOUDHARY 
437 
From the Judgment and Order dated 02.03.2015 of the Armed 
A 
Forces Tribunal, Principal Bench, New Delhi in Original Application No. 
430 of2012 
WITH 
Civil Appeal Diary Nos. 11682 and I 0623 of2015 
ManinderSingh, ASG, R. Balasubramanian, Nalin Kohli, Ms. Pujitha 
Gorantla, Prabhas Bajaj, Santosh Kumar, R. S. Jena, B. V. Balaram 
Das, Ms. Meenakshi Lekhi, Harish Pandey, Manish Kumar, Jitendra 
Tripathi, Ms. Neela Gokhale, Gaurav Kumar, Devanshu Shanna, Ms. 
Kamakshi S. Mehlwal, Ms. Sonia Mathur, Advs. with him for the 
appearing pa1ties. 
The Judgment of the Cou11 was delivered by 
T. S. THAKUR, CJI. I. These appeals under Section 31 of the 
Armed Forces Tribunal Act, 2007 are directed against a judgment and 
order dated 2"' March, 2015 passed by the Armed Forces Tribunal, 
Principal Bench, New Delhi, whereby Original Application No. 430/2012 
filed by the Respondents has been allowed and policy circular dated 20'h 
January, 2009 issued by the Government oflndiaquashed with a direction 
to the Appellant-Union oflndia to consider the Respondents for promotion 
to the rank of Colonel by creating supernumerary posts with effect from 
the date the said Respondents were eligible for such promotion. Facts 
giving rise to the proceedings before the Tribunal and the present appeals 
may be summarized as under: 
2. The Respondents were commissioned into various Corps/ 
streams of the Indian Army after they successfully passed out
from the 
Indian Military Academy/Officers Training Academy. The initial allocation 
of the respondents to different Corps was based on parameters 
prescribed for that purpose depending inter alia upon the number of 
actual vacancies in Arms, Arms Support or Services, operational 
commitments and requirements arising from new raisings. Merit of the 
candidates, the need for an equal distribution of vacancies applying what 
is described as 'Black Method' and the individual choice expressed by 
the cadets were also some of the major factors that were taken into 
consideration while making allocations. 
3. It is common ground that there was no cha! lenge to the allocation 
of cadets to Arms, Arms Support or Services at any point of time. It is 
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SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
also not in dispute that four out of the five Respondents viz. Lt. Col. 
P.K. Choudhary, Lt. Col. G.S. Dhillon, Lt. Col. A.K. Pandey and Lt. 
Col. R.M.S. Pundir had opted for commission into Army Service Corps 
(AMC) and none of them had opted either for Combat Arms or Arms 
Support. Similarly, Lt. Col. Ajay Chawla-Respondent No.5 in this appeal 
had given Army Service Corps as one of the options of his choice. The 
respondents were accordingly allocated and have served in their 
respective Corps and Raisings as Lt. Colonels, which rank they held at 
the time of filing Original Application No.430of2012 in the Tribunal and 
continue to do so at present. 
4. Post-Kargil War, the Government of India constituted what 
was called Kargil Review Committee which was followed by a Committee 
headed by Shri Ajay Vikram Singh ('the AVSC', for short) with a view 
to explore ways and means for enhancing the operational preparedness 
of the Indian Army in its fighting capabilities especially in Combat Arms. 
The Committee comprised. apart from Shri Ajay Vikram Singh, a 
representative of the Ministry of Defence (Finance), Director General 
(MP&PS),Army He<idquarters, Joint Secretary(G), Ministry of Defence 
and several senior officers of the Indian Anny including Adjutant General, 
Army Headquarters, Chief of Personnel, Naval Headquarters and Air 
Officer-in-Charge Personnel, Air Headquarters. The Committee appears 
to
have conducted extensive deliberations and submitted a report 
suggesting both short term and long term measures that were, in its 
opinion, necessary for restructuring of the Officers' Cadre of the Army. 
The Committee recommended that although the report primarily focused 
on the restructuring of the Officers' Cadre of the Army, the same will be 
applicable in an equal measure to the Navy and theAir Force who could 
work out their service specific requirements including additional vacancies 
required at various ranks on operational/functional grounds. While we 
shall deal with the recommendations made by the Committee in greater 
detail in the later part of th is judgment, we may point out that one of the 
significant recommendations which the Committee made to the 
Government was about the lowering of age profile of the Officers in the 
Indian Army. For instance, instead of existing age profile of 41-42 years 
for Colonels the Committee recommended lowering of the age profile to 
36-37 years. Similarly, for Brigadiers the Committee recommended an 
age profile of 44-45 years instead of 50-51 years at present. The age of 
Major Generals was profiled at 51-52 years as against 54-55 years under 
the existing system. The age of Lieutenant Generals was, according to
UNION OF !NOIA v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
the Report, profiled at 55-56 years instead of 56-57 years under the 
existing system. The lowering of age profile was considered by the 
Committee to be necessary for enhancing the optimal combat 
effectiveness of the Army. Tu achieve that objective, the Committee 
recommended creation of 1484 additional vacancies in the ranks of 
Colonel out of which 400 vacancies were to be released in the first year 
while the another 300 vacaucies were to be released in the second year 
after an annual review. The implementation of the recommendations 
had to be progressive, coordinated and corroborated for the desired results 
to flow for the benefit of the Army. 
5. The appellants' case is that the recommendations made by the 
AVS Committee were accepted by the Government and 1484 additional 
vacancies in the rank of Colonel were sanctioned with a view to lowering 
the age of Commanding Officers in combat and combat support arms 
resulting in an increased upward mobility of the Officers Cadre. The 
additional vacancies were to be released in two phases spread over a 
period of four years from 2004 to 2008. 
6. It is common ground that in the first phase, the Government 
released 750 vacancies, out of the newly created 1484 vacancies, in the 
rank of Colonel by an order dated 21" December, 2004. These vacancies 
were sanctioned by upgradation ofappointments in the rank of Lt. Colonel 
to Colonel in a phased manner.spread
over a period of two years i.e. 
2004-2005 and were distributed amongst Arms, Arms Support and 
Services on a pro-rata basis. The result was that not only did the 
additional vacancies become available to Arms and Arms Support but 
the same were allocated even to those serving in Services like ASC, 
AOC and EME. Thus far, there was no difficulty as officers serving in 
Arms, Arms Support and Services in different Corps of the Army were 
all equally benefitted by the fresh creation. The problem started with 
the release of another 734 vacancies in the second phase by an order 
dated 3" November, 2008. These additional vacancies were sanctioned 
by effecting upgradation in a phased manner spread over a period of 
five years and were directed to be allocated on what is described as 
"Command Exit Model .. which the Government oflndia claimed was 
in consonance with the functional and operational requirements of the 
Army. 
7. Aggrieved by the denial ofa pro-rata share in the 2"' tranche 
of the additional vacancies released by the Government, officers like the 
439 
A 
B 
c 
D 
E 
F 
G 
H
440 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
respondents who are serving in the Arms Support and Service Corps of 
the Army, filed Original Applications No. 430 of2012, 77 of2014 and 
147 of2015 before the Armed Forces Tribunal, Principal Bench, New 
Delhi to challenge the Government's policy dated 29'" January, 2009 on 
the ground that the same was discriminatory, arbitrary and violative of 
fundamental rights guaranteed to them. They prayed for quashing of 
the policy besides a direction to the Government of India to allocate 
vacancies in the rank of Colonel to each Corps on pro rata basis and 
convene Special Boards for promotion of the eligible Officers to such 
posts. The respondents also prayed for a direction to the Union of India 
to grant to them 'Ante-Dme' seniority and arrears of pay and allowances 
from the date an officer immediately junior to the said respondents in the 
rank of Lt. Colonel serving in Arms and Arms Support Units was granted 
his promotion. 
8. The Appellant-Union oflndia contested the claim made by the 
respondents and argued that the recommendations made by the AVS 
Committee were limited to Officers serving in the Arms and Arms Support 
and specifically left out services from their purview. It was also argued 
that the Government of India had approved and accepted the 
recommendations made by the AVS Committee and sanctioned 1484 
additional vacancies specially created for allocation on "Command Exit 
Model" to Arms
and Arms Support Units for whose benefit such new 
vacancies were created. The allegation that the policy formulated by 
the Government or the "Command Exit Mode/" for allocation of 
vacancies was discriminatory and/or arbitrary was stoutly denied. 
9. By its order dated 2'' March, 2015 the Armed Forces Tribunal, 
Principal Bench, New Delhi has allowed the Original Application(s) filed 
by the respondents and quashed Government oflndia policy dated 21" 
January, 2009 with the direction that the Government of.ndia shall create 
supernumerary posts so that the additional vacancies so created are 
allocated to all the three streams on a pro ruta basis. The present appeal 
under Section 31 of theArmed Forces Tribunal Act, 2007 calls in question 
the correctness of the judgment and order as already noticed above. 
l 0. We have heard learned counsel forthe parties at considerable 
length who have taken us through the judgment and order passed by the 
Tribunal and the documents placed on record in support of their respective 
versions. The following questions fall forour determination.
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
441 
(T. S. THAKUR, J.] 
1. 
Did the AV Singh Committee recommend lowering of 
A 
age profile and consequent creation of additional 
vacancies for all the three streams viz. Arms, Arms 
Support and Services or were the recommendations 
limited to Arms and Arms Support only? 
2. 
Were the recommendations made by the AV Singh 
B 
Committee regarding the need for creation of 
additional vacancies and their allocation on 
"Command Exit Model" accepted by ·the Central 
Government? If so, what is the effect of allocation of 
the first tranche of 750 vacancies by the Army 
Headquarters o·n pro rata basis among all the three 
streams? 
3. 
Whether there was any illegality, irregularity or 
unfairness in the matter of allocation of vacancies to 
Arms Support on "Command Exit Model" principle? 
4. 
Do Officers serving in Arms, Arms Support and 
Services constitute a single cadre? 
5. 
In case the answer to the question No. 4 is in negative, 
c 
D 
is there any legitimate expectation for officers 
commissioned into the Indian Army in a given batch 
E 
that in the matters of their future promotion the 
Government will maintain batch parity among officers 
allocated to Arms, Arms Support and Services. 
Re.: Question No. 1 
11. On behalf of the respondents it was argued by Ms. Meenakshi 
Lekhi, Advocate that the recommendations made by the AVS Committee 
were applicable to officers serving in all the three streams of the Army 
viz. Arms~ Arms
Support and Services and that the creation of 1484 
additional vacancies of Colonels was meant to benefit all such officers 
regardless of the Corps in which they were commissioned. Support for 
that submission was largely drawn by learned counsel from the AVS 
Committee report and the fact that the 750 vacancies sanctioned and 
released in the first tranche were distributed pro-rata among all the 
formations. It was urged that having given to officers serving in Arms 
Support and Services, their share of the newly created vacancies on a 
F 
G 
H
442 
A 
B 
c 
D 
SUPREME COURT REPORTS 
(2016] 2 S.C.R. 
pro-rata basis and denial of a similar share out of vacancies sanctioned 
in the second phase was unjustified and discriminatory. 
12. On behalf of the Appellant-Union of India it was contended 
by Mr. '.vlaninder Singh, ASG, that the recommendations made by the 
AVS Committee favoured creation of additional vacancies only for Arms 
and Arms Support leaving out 'Services' like ASC, AOC and EME. It 
was argued that the recommendations were accepted and the vacancies 
sanctioned for being filled-up on 'Command Exit Model' which model 
constituted the very basis of the report submitted by the Committee. 
The fact that 750 vacancies created in the first phase were distributed 
among Arms, Arms Support and Services on a pro-rata basis did not, 
according to Mr. Singh, by itself entitle officers serving in 'Services' to 
claim a pro-rata share in the second tranche of vacancies created by 
the Government. lfthe pro-rata allocation to services was not in tune 
with the recommendations made by the Committee and the decision 
taken by the Government, the same could not create any right or equitable 
claim in favour of those who had benefitted from the mistake earlier 
committed argued the learned counsel. 
13. The entitlement to a share in the newly created vacancies 
depends upon whether the Committee had recommended lowering of 
age profile for officers serving in the 'Services' stream of the Army that 
E 
is because the
creation of additional vacancies was meant to achieve a 
purpose - viz. lowering of age profile of the Commanding Officers. 
F 
G 
14. The answer to the question whether the Committee 
recommended lowering of age profile and creation of additional vacancies 
for Arms, Arms Support and Services, can in turn,,be answered only by 
reference to the report of the Committee. We have been taken through 
the report over and over again by learned counsel for the parties, but, 
we find it difficult to accept the submission made by Ms. Lekhi that the 
recommendations were for the benefit of all officers and streams across 
the board. A careful reading of the report would show that the Army 
Headquarters had made its presentations to the Committee followed by 
a series of meetings to discuss and deliberate upon each one of the 
issues referred for examination to the Committee. The report made a 
reference to the Army Headquarters Paper on Restructuring of the 
Officer Cadre, which, in turn, dealt with the issue of organisational 
imbalances arising out of steep pyramidical structure of the cadre and 
H 
the issues relating to individual aspirations left unfulfilled due to inadequate
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
career progression, disparity with Class-A civil services and harsh service 
conditions. The paper presented by the Army Headquarters also suggested 
some measures for resolving the issues which included reducing the 
large base in the cadre structure by making a dual-stream officer cadre 
one having a lean regular cadre and the other a support cadre of Short 
Service Commission Officers, reduction in the ages of Battalion and 
Brigade Commanders through early promotion by increasing the cadre 
strength, upgradation of Sub Unit Commanders to the rank of Lt. Colonel. 
The Army Headquarters also proposed grant of early promotions in the 
first three ranks viz. Captain, Major and Lt. Colonel, promotion to the 
grade of Colonel on time-scale basis after 23 years of service for 
superseded officers and grant of Brigadier's pay to all Colonels in the 
last year of their service to entitle them to Brigadier's pension. The 
report submitted by the committee outlined the issues raised before it 
and identified two inter-related issues which were, in its opinion, at the 
core of the whole problem viz., high age profile and cadre stagnation. 
15. The Committee also took note of the recommendation made 
by the Kargil Review Committee, for lowering the age profile of command 
elements. The Committee noted that in comparison to other Armies like 
those of Pakistan, China, UK, Germany and Israel, the Indian Army had 
a higher
age profile which adversely affected their physical alertness 
and operational preparedness. The Committee noted that Officers beyond 
the age of 50 years find it difficu ltto sustain mental and physical alertness 
at high altitude and hazardous and hostile topography along the Line of 
Control where a Brigade Commander is required to serve for effective 
command and control. This was true even about Battalion Commanders 
who are required to move during operations with their units for effective 
command and control. The Committee noted that for Battalion 
Commanders even a higher degree of physical fitness and alertness is 
required which is difficult since Indian Army Officers assume command. 
atthe age of 41-42 years and continue till 44-45 years of age in comparison 
to those in Pakistan and Chinese Armies where the age of the Battalion 
Commander, on an average, is about 35 and 40 years respectively. The 
Committee, therefore, took the view that the officers of Combat Arms 
should assume command at the age of36-37 years by which time they 
would have attained the requisite experience and the ability to finish 
their command tenure before attaining 40 years of age. The Committee, 
then, took stock of the total Units commanded by Colonels in the Indian 
Army and the desirable tenure for each type of Unit considered necessary 
443 
A 
B 
c 
D 
E 
F 
G 
H
444 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
(2016] 2 S.C.R. 
to maintain optimum operational effectiveness. The Committee, at the 
same time, noted the possibility of re-command in respect of certain 
Amis and Services which have some Units permanently located in peace 
areas or where the Unit Commanders are not physically required to 
operate in combat/difficult terrain. Taking note of the structures, the 
Committee determined that the approximate number of Colonels that 
would be required every year is 406. The details are set out in a chart 
forrning part of the report which may be gainfully extracted at this stage: 
s. 
!<\rm/Service Number ol Desired 
Period officer 
Number of 
No. 
U1tits 
fenure 
in command 
Colonel 
(Yea rs) 
(Years) 
required 
ner' ear 
(a) <\rmoured 
62 
3 
3 
Norn-
21 
::.'.oros 
command 
lhl 
nfa ntrv 
448 
2.5 
2.5 
-do-
179 
(c) 
\1ech anised 
39 
3 
3 
-do-
13 
nfa ntrv 
Id) •rtillerv 
210 
I 
3 
3 
-do-
70 
354 
(e) 
<\O 
50 
0 
2-3 
4 
Possibility 
13 
3 
of re-
8 
command 
(I) En!!ineers 
132 
2-3 
4 
-do-
33 
(~\ >i!mals 
97 
2-3 
4 
-do-
25 
lh) '\SC 
87 
2-3 
5 
-do-
17 
Ii) '\OC 
60 
2-3 
5 
-do-
12 
(j) li:ME 
114 
2-3 
5 
-do-
23 
Total 
1299 
406 
16. The Committee, then, picked-up 354 C@lonels for Armoured 
Corps, Infantry, Mechanised Infantry, FieldArtillery,Air Defence Artillery, 
Engineers and Signals, which were described by the Committee as 
operational formations and which, in the opinion of the Committee, called 
for
reduction in the age profile for the Unit Commanders. Para 20 of 
the report makes the Committee's intention manifest when it says: 
.. 20. Out of the overall requirement of ./06 Colonels every 
year as per the table above, there would be a need of 35./ 
Colonels for Armoured Corps, Infantry, Mechanised Infamry, 
Field Artillery, Air Defence Artillery, Engineers and Signals, 
which are operational formations, keeping in view that the 
need to bring down age profile of unit commanders is primarily
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
for the operational units. In the above table, for the arms 
listed for Ser (a) to (d) it Is desirable that the officers' have 
one command tenure, as a younger age profile is required in 
consonance with the operational needs. The rest could get 
more than one tenure for cm!1mand in the Colonels rank. '.'· 
(Emphasis supplied) 
17. The Committee, then, examined the number of vacancies 
required in the rank of Colonels and Brigadiers and came to the conclusion 
that a total of374 Colonels and 143 Brigadiers vacancies were available 
every year exclusively in the Arms, whereas, there was a requirement 
of vacancies for 354 Colonels and 129 Brigadiers for the Arms. These 
vacancies were found to be adequate to keep the whole cadre structure 
in a state of equilibrium, but, that equilibrium will be at the current high 
age profile. The Committee said: 
" ......... If we look only at the Arms, which farm a subset of 
the whole cadre, and towards which the age reduction exercise 
is principally directed, we find that approximately I 43 
Colonels and 31 Brigadiers qre promoted to the next higher 
rank every year and 241 and 112 respectively exit each year 
on retire11ient. 
Thus, a total of 374 Colonel's and 143 
Brigadier's vacancies are available every year exclusively in 
the Arms, whereas there is a requirement of vacancies for 
354 Colonels and 129 Brigadiers for the Arms as per tah/e at 
paras 17 and 19. These
vacancies are adequate to keep the 
whole cadre structure in a state of equilibrium, but that 
equilibrium will he at the current high age profile. Therefore, 
a mechanism needs to be found to .bring the cadre structure, 
especially of the o·lrms, to the lower age profile as recommended 
in Para 13. " 
18. The Committee, then, proposed short-term and long-term 
measures. Applying the parameters for short term and Long term measures 
proposed by the Committee, the Committee, in para 36 of its report, 
worked out the vacancies required for. Colonels in Armoured Corps, 
tnfantry, Mechanised Infantry, Artillery, AD, Engineers-and Signals and 
Brigadiers in the GeneralCadre, Field Artillery and Engineers. 
"36. Based on these parameters, vacanci~s that would be 
·required for Colonels in Armoured Corps, infantry, 
445 
A 
B 
c 
D 
E 
F 
G 
H
446 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
Mechanised Infantry, Artillery, AD, Engineers and Signals 
and Brigadiers in the General Cadre, Field Artillery and 
Engineers, if age profile is to be brought down as per para 
I 3 are given in the table below. The figures reflected in the 
table do not include vacancies for Colonels in ASC. AOC. 
EME and other Minor Corps whose age profile can be higher 
thanJhat required to operate under combat conditions. 
Service 
Age 
Colonel 
Brigad-
Major 
Lieute-
er 
:;eneral 
nant 
General 
15 
37 
354 
-
-
-
16 
38 
354 
-
-
-
17 
39 
354 
-
-
-
18 
40 
354 
-
-
-
19 
41 
354 2832 
-
-
-
20 
42 
354 
-
-
-
21 
43 
354 
-
-
-
22 
44 
354 
-
-
-
23 
45 
225 
129 
-
-
24 
46 
225 
129 
-
-
25 
47 
225 
129 
774 
-
-
26 
48 
225 
129 
-
-
27 
49 
225 2025 
129 
-
-
28 
50 
225 
129 
-
-
29 
51 
225 
77 
52 
-
30 
52 
225 
77 
52 
-
31 
53 
225 
77 
385 
52 
60 
-
32 
54 
-
77 
52 
-
33 
55 
-
77 
52 
-
34 
56 
-
-
31 
12 
21 
35 
57 
-
-
3 1 
21 
36 
58 
-
-
21 
37 
59 
-
-
-
-
21 
38 
60 
-
-
-
Total in each 
4857 
1159 
322 
84 
rank 
(Emphasis supplied)
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J .] 
I 9. The Committee finally concluded that out of the requirement 
of vacancies projected by Army He_adquarters, the Government could 
release in the first two years 700 vacancies as against 1484 recommended 
by it. The additional vacancies recommended for creation without Peel 
Factor and those with Peel Factor over a period of 5 years were indicated 
by the Committee in the chart which is as under: 
s. 
Rank 
Additional 
Release of 
VacanC"ics 
Vacancies 
No 
vacancies 
vacancies O\'CI rec om men 
recoinmend 
rcqu ired 
fi\'C years with dcdbythc 
ed by the 
(\vithout Peel Peel F:1ctor as .: ommittcc 
Com mittcc 
Factor) to 
projected by for rele11sc 
for release 
bring dO\VD 
AHQ 
int'' year 
in the 2nd 
age 11rofilc as 
year at 
re comm en de 
annual 
d bv Al!Q 
revie\v 
(a) 
Lieutenant 
29 
20 
05 
03 
General 
(b) 
J\1ajor 
159 
75 
10 
08 
General 
;(cl 
Brie.adier 
496 
222 
75 
35 
I (d) 
Colonel 
2202 
1484 
400 
300 
20. A careful reading of the report especially paras 20 and 36 
extracted above leaves no manner of doubt that the Committee 
emphasized the need for bringing down the age profile of Unit 
Commanders in Operational Units only. The Committee recognized 
Armoured Corps, Infantry, Mechanised Infantry, Artillery, AD, Engineers 
and signals as operational formations leaving out A SC, AOC, EME and 
other Minor Corps. The report clearly suggests that the additional creation 
of 1484 vacancies in
the rank of Colonels did not take into account 
vacancies for Colonels in ASC, AOC, EME and other Minor Corps. As 
a matter of fact, the report very clearly states that the age profile of 
such Service formations for Minor Corps could be higher than that 
required to operate in the combat conditions. We have, in that view, no 
' 
hesitation in holding that there was neither any recommendation regarding 
reduction in age profile of Unit Commanders in ASC, AOC and EME 
nor was there any recommendation for creation of additional vacancies 
to benefit officers serving in those formations. The argument that the 
Committee had recommended creation of 1484 vacancies for the benefit 
of Officers serving in all formations is, therefore, without any basis and 
is accordingly rejected. Additional vacancies were specifically 
recommended for the operational formations mentioned above and were 
447 
A 
B 
c 
D 
E 
F 
G 
H
448 
A 
B 
SUPREME COURT REPORTS 
(2016] 2 S.C.R. 
meant to be allocated to those formations depending upon the 
recommended tenure of the Commissioning Officers in those formations 
and the possibility of re-command. Inasmuch as ASC, AOC, EME 
Officers did not benefit from the creation of additional vacancies, there 
was neither any violation of the recommendations made by the AV Singh. 
Committee t)QL was the distribution of the additional vacancies 
discriminatory as alleged. Question No. I is answered accordingly. 
Re: Question No.2 
21. 
The aggrieved officers appear to have argued before 
the Tribunal that the recommendations made by AV Singh Committee 
c 
~egarding creation of additional vacancies for allocation on .. Command 
Exit Model" were never accepted by the Central Government. In support 
of that submission they have largely relied upon the fact that the first 
tranche of 750 vacancies released by the Government were allocated 
by the Army Headquarters to Arms, Arms Support and Services on a 
pro-rata basis. This, they contended, would not have been possible if 
D 
the Government had actually accepted the .. Co111111a11d Exit Model" 
for allocation of the newly created additional vacancies. The inference, 
according to them, is that "Co111111a11d Exit Model" was never accepted 
as a principle by the Government for allocation of additional vacancies 
created pursuant to the recommendations made by the AV Singh 
E 
Committee. 
F 
G 
H 
22. On behalf of
Government oflndia it is, per contra, contended 
by Mr. Maninder Singh that the Government had unequivocally accepted 
the recommendations of the Committee including the "Co111111a11d Exit 
Model" for allocation of the newly created vacancies. Reliance in support 
of that contention was placed by Mr. Maninder Singh upon the relevant 
official record which was produced before us for perusal. Reliance was 
also placed by him upon an affidavit filed by the Government pursuant to 
our order dated 22"' April, 2015 in which this Court demanded a specific 
answer from the Government as to whether the "Co111111a11d Exit Model" 
for allocation suggested by AV Singh Committee had been accepted by 
it. We have, in light of official record produced before us and the specific 
assertions made by the Government in the affidavit filed on its behalf, no 
hesitation in holding that the recommendations of the AVS Committee 
regarding allocation of newly created vacancies being made on 
"Command Exit Model" was accepted by the Government. It is trite 
that the Government and the Government alone could say whether the
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
recommendations of the Committee were accepted by it. The 
Government have answered that question in the affirmative not only on 
the basis of a statement made at the bar but also on the basis of 
contemporaneous official record and the affidavit filed by a responsible 
officer acting for and on behalf of the Government. The first part of the 
question viz., whether the recommendations regarding "Command Exit 
Model" for allocation of vacancies was accepted by the Government 
does not, therefore, detain us any further. 
23. The second part of the question, however, calls for some 
examination. In the course of hearing and in our order dated 22"' April, 
2015 we had specifically invited the response of the Government as to 
the reasons for allocation of the vacancies on pro rata basis if the 
Government had accepted "Command Exit Model" as the basis for 
such allocation. We had also asked the Government to explain whether 
any action had been taken by the Government for breach of the said 
principle by the Army Hea;lquarters while making the allocations. Mr. 
Maninder Singh fairly conceded that the allocation of 750 vacancies 
comprising the first tranche was made by the Army Headquarters in 
breach of "Command Exit ,\1odel". But such breach did not either call 
for any action or withdrawal of the benefits drawn by the officers who 
were beneficiaries of such allocation. Mr. Maninder Singh contended 
thatsince
the allocation stood made and the officers found eligible for 
promotion stood promoted, it was neither advisable nor feasible to 
withdraw the benefit so availed by the officers by reversing the process 
for a fresh allocation:One of the reasons which, according foMr. Singh, 
made the breach ii1consequential, was the fact that the imbalance, if 
any, could be corrected partly if not wholly when the second tranche of 
734 vacancies were released for allocation on "Command Exit Model". 
It was also contended by Mr. Maninder Singh that the Government had 
actually set off the excess allocation made in the first tranche while 
allocati11g the second tranche of 734 vacancies on "Command Exit 
Model". This adjustment/set off may have remained confined to Arms/ 
Arms Support only but the mischief that had occurred earlier had been 
.corrected no matter qua those two streams' only. Allocatio·n made on 
pro rata basis to services was not, however, withdrawn according to 
Mr. Maninder Singh, but no further allocations were made in the second 
tranche of vacancies as the recommendations made by the Committee 
never intended to benefit the services either in.the matter of reducing 
449 
A 
B 
c 
D 
E 
F 
G 
H
450 
SUPREME COURT REPORTS 
(2016] 2 S.C.R. 
A 
the age profile of Commanding Officers or in the matter of creation of 
additional vacancies for them. 
B 
c 
D 
E 
F 
G 
H 
24. That 750 vacancies comprising the first tranche released by 
the Government were allocated on a pro rata basis contrary to the 
recommendations and the decision of the Government cannot be and 
has not been denied. The question is whether the said allocation would 
by itself undo either the recommendations made by the Committee or 
the decision taken by the Government to allocate the newly created 
vacancies on "Command Exit Model" principle. Our answer to that 
question is in the negative. Just because allocation of vacancies in the 
first tranche was made by the Army Headquarters ignoring the 
recommendations of the Committee and the Government decision cannot 
possibly result in the reversal of the Government decision nor can it 
negate the Command Exit Model. So also, simply because the earlier 
allocation was not reversed as the officers had picked up their ranks 
does not affect the binding nature of the Government decision that the 
allocation should be on "Command Exit Model". 
25. Having said that, the adjustment/set off of the vacancies so 
allocated against the entitlement of the arms and arms support in the 
second tranche does not appear to be justified. If the Army Headquarters 
committed a mistake in allocating vacancies on a pro rata basis contrary 
to the recommendations and decision
of the Government, any such error 
cannot adversely affect officers serving in arms and arms support who 
may have been entitled to a higher number of vacancies in the second 
tranche but who were deprived of such allocation on account of the 
error in the previous allocation made on pro rata basis. We pointed out 
this aspect to Mr. Maninder Singh and asked him to take instructions 
whether the Government was willing to correct the mistake arising out 
of such adjustment/set off or justify the same on any juristic principle. 
To the credit of Mr. Maninder Singh we must mention that he has on 
instructions fairly conceded that the second tranche of 734 vacancies 
could and ought to have been allocated on "Co111111a11d Exit Model" 
principle without taking into consideration the excess, ifany, allocated to 
the arms and the arms support on pro rata basis in the first tranche. Mr. 
Maninder Singh on that basis also took instructions to file before us a 
statement showing the number of vacancies that would have ordinary 
fallen to the share of arms support corps if the second tranche of 734 
vacancies were allocated without making any adjustment of vacancies 
previously allocated. We shall turn to that statement when we take-up
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
Question No. 3 for discussion, but, before we do so we need to conclude 
Question No.2 by holding that the recommendations of the AVS 
Committee regarding allocation of additional vacancies on "Co111111a11d 
Exit Model" basis had been accepted by the Government and that 
allocation of the first tranche of750 vacancies by the Army Headquarters 
on pro rata basis contrary to the Government decision and the 
recommendations of the Committee did not affect the validity of the 
decision nor did it amount to reversal of the said decision or its d.ilution.in 
any manner. Question No.2 is answered accordingly. 
Re: Question No.3 
26. A two-fold argument was advanced on behalf of the 
respondents on the question ofunfairness in the matter of allocation of 
vacancies. Jn the first place, it was contended that while allocating 
vacancies to arms support, the Government had set off/adjusted ·the 
vacancies which were allocated no matter erroneously to arms support 
on a pro rata basis. This adjustment was uncalled for as the excess 
allocated to arms support on pro rata principle was because of an error 
committed by the Government or the Army J Jeadquarters which could 
not prejudice the officers who are otherwise eligible for promotion against 
the vacancies, due on Command Exit principle. In other words, allocation 
of 734 vacancies comprising the 2"' tranche shou Id have been made 
without any adjustment based on the
earlier pro rata allotment, meaning 
thereby that the deficit proportionate to the number that has been set 
off/adjusted should be made up by fresh creation. 
27. The second limb of the challenge is whether the Government 
was justified in prescribing a command tenure of four years for Arms 
Support officers. The argument was that if the command tenure is 
reduced to two years as in the case of 'arms', the number of vacancies 
required by arms support would increase. We shall deal with the two 
aspects ad serfatfm. 
28. The allocation of734 vacancies, comprising the second tranche, 
when made on standalone basis, (without any adjustment of the excess 
allocated in the first tranche) is the only right method for allocation in our 
opinion. The excess allocated in the first tranche, against which officers 
who may not have otherwise picked up the higher rank were promoted, 
cannot possibly deny the rightful due to those who would be entitled to 
claim promotion against the vacancies in the second tranche. The 
respondents are, therefore, right in arguing that the second tranche should 
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be allocated on a standalone basis. This exercise has been done by the 
appellant and the result thereof.filed by Mr. Maninder Singh in the form 
of a statement to which we shall presently advert. But before we do so, 
we may as well deal with the second aspect of the matter, namely 
whether the stipulation of a command tenure of four years for Arms 
Support officers can be said to be so arbitrary as to call for interference 
by a court or tribunal in exercise of their power of judicial review. We 
must; at the outset, say that command tenure is a policy matter on which 
the scope of judicial review is extremely limited. What should be the 
tenure of a commanding officer for Arms or Arms Support is for defence 
experts or for the Government to determine on expert advice having 
regard to a variety of factors. It is neither necessary nor proper for any 
court or tribunal to sit in judgment over any such decision leave alone, 
substitute the same by its own decisLon. If the Government has upon 
consideration of the nature of duties and the need for battle preparedness 
of the force has taken a decision to prescribe a tenure ofupto four years 
for officers serving in Arms Support, it will be difficult to fault the same 
in the absence of any patent perversity in any such decision especially 
when no breach of any fundamental or other right of any one complaining 
against the prescription of such a tenure is
demonstrated. No such 
infirmity has been pointed out to us in the case at hand. Having said 
that, we must add to the credit of the appellant and their counsel that the 
question of a shorter tenure was considered by them favourably at our 
suggestion only to avoid any frustration or disgruntlement among officers 
serving in arms support. Mr. Maninder Singh, on instructions, submitted 
that the tenure of commanding officers in arms support shall for purpose 
of creation/allocation of vacancies, be taken as three years instead of 
four years. The Government has on that basis calculated the number of 
vacancies that would be additionally due to arms support on Command 
Exit Model as under: 
Number of vacancies due to 1. 
Actual 
Deficit 
AAD, 2. Engin.eers, 3. Signals distribution 
out of II tranche of 734 posts 
made in 2009 
taking the tenure to be 3 
with 
tenure 
years instead of 4 years 
taken to be 4 
years 
AAD 
31 
7 
24 
Engineers 
79 
17 
62 
Signal 
66 
11 
55 
Total 
141
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
29. It follows from the above that to the extent of a deficit of 141 
vacancies in the cadres of Colonel to Arms Support (Artillery, AAD, 
Engineers and signals) an unfair distribution of the vacancies from out 
of the second tranche were released by the Government. It is, at the 
same time, heartening to note that the Government have not taken an 
adversial stand nor have the Governmeilt opposed the undoing of the 
injustice caused to officers who were eligible for promotion in the year 
2009 but were not promoted on account of lesser number of vacancies 
allocated to Arms Support. On the contrary Mr. Maninder Singh 
appearing for the Union submitted that the Government would do anything 
to prevent any frustration or disenchantment among the officers serving 
in the army by creating 141 additional posts in the cadre of Colonel for 
allocation to Arms Support so that the same are utilized appropriately for 
promoting officers eligibJe·for such promotion. Mr. Singh, however, 
suggested a method ofutilization of the posts so created over a period of 
ten years to avoid an inequitable distribution and also to minimize the 
scope of any of the batches getting any undue benefit at the cost of 
other batches. Mr. Maninder Singh has also highlighted problems of 
implementation like managing of the cadre in case the utilization of the 
additional vacancies is to be done within a shorter time frame of say five 
years.
Having given our anxious consideration to the submissions made 
at the bar, we are of the view that the additional 141 vacancies which 
ought to have been allocated to Arms Support in the year 2009 were 
unfairly denied to them. It has taken the aggrieved officers and legal 
process considerable time to have the said unfairness and injustice 
reversed by creation of additional vacancies. These vacancies shall, 
therefore, be taken to have been created as in the year 2009 and 
promotions against the same made from out of officers who were eligible 
for such promotion as in that year. It is not in dispute that the Selection 
Board that deals with such promotions has empanelled officers based 
on their inter se merit and suitability. All that is, therefore, required is to 
operate the said merit list for utilization of the additional vacancies now 
being created. In other words, the additional creation shall, for all intents 
and purposes, be deemed to have been available for being filled-up as in 
the year 2009 but to be actually filled-up in 5 years between 2009-2014. 
Those who pick-up the next rank against the said vacancies shall have 
the benefit of retrospective seniority as is the practice in the Army but 
such seniority on appointment shall not entitle them to the benefit of 
higher pay-scale or arrears against the post to which they are promoted. 
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A 
In other words, financial benefits shall accrue to officers promoted 
pursuant to the creation of additional vacancies only with effect from 
the date they are actually promoted. 
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1-1 
Question No.3 is answered accordingly. 
Re: Question No.4 
30. We have while dealing with question No.I already held that 
AV Singh's Committee did not have officers serving in the "services 
stream" namely (ASC, AOC & EME) in view while it recommended 
lowering of the age profile of Commanding Officers and creation of 
additional vacancies. The recommendations were limited to Arms and 
Arms Support only. Even so the question is whether the creation of 
such additional vacancies would ensure the benefit for officers serving 
in the services on account of what such officers claim to be 'one cadre' 
principle. The contention urged on behalf of the respondents was that 
no matter some of the respondents belong to services, they are a part of 
the same cadre and were, therefore, entitled to a pro rata share out of 
the newly created vacancies at par with those serving in Arms and Arms 
Support. Reliance in support of that contention was placed upon a circular 
dated 12'h November, 1987 issued by the Military Secretary's Branch. 
There is, in our view, no merit in the submission urged on behalf of the 
respondents that officers allocated to Arms and Arms Support and 
Services comprise a single cadre for purposes of promotion. We say
so 
because transferability which is one of the essential attributes of posts 
comprising a single cadre is absent in the case of service officers on the 
one hand and those serving in Arms and Arms Support on the other. 
This Court has in several decisions examined what would constitute a 
common cadre, and held that merely because the incumbents of two 
posts are placed in the same scale of pay does not determine whether 
such posts constitute a cadre (see) K. S. Srinivasan vs. Union of 
India (UOI) AIR 1958 SC 419. In Chakradhar Paswan vs. State of 
Bihar & Ors. 1988 (2) SCC 214, this Court declared that the term 
cadre has a definite legal connotation in service jurisprudence and that 
interchangeability of the incumbents is one of the attributes of a cadre 
just as similarity of the responsibilities and pay may be indicative of all 
posts being in the same cadre. This Court observed: 
"8 . ... ... In service jurisprudence, the term "cadre" has a 
definite legal connotation. In the legal sense, the word "cadre" 
is not Jynonymous with 's~rvice '. Fundamental Rule 9(4)
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
defines the word ""cadre" to mean the strength of a service or 
part of a service sanctioned as a separate unit. The post of 
the Director which is the highest post in the Directorate, is 
carried on a higher grade or scale, while the posts of Deputy 
Directors are borne in a lower grade or scale and therefore 
constitute two distinct cadres or grades. It is open to the 
Government to constitute as many cadres in any particular 
service as it may choose according to the administrative 
convenience and expediency and it cannot be said that the 
establishment of the Directorate constituted the formation of 
a ioint cadre of the Director and the Deputv Directors because 
the posts are not interchangeable and the incumbents do not 
perform the same duties. carry the same responsibilities or 
draw the same pay. The conclusion is irresistible that the posts 
of the Director and those of the Deputy Directors constitute 
different cadres ofthe Service .... " 
(Emphasis supplied) 
31. So also in M. Hara Bl1upa/ vs. Union of India and Otlters 
(1997) 3 SCC 561, this Court found that interchangeability is a necessary 
element of the posts being in the same cadre. In S. I. Rooph1/ and 
Anotlter vs. Lt. Governor through Chief Secretary, Delhi and otlters 
(2000) J'SCC 644, this Court was dealing with "equivalence of posts" 
and held that equivalence of two posts is not judged by the sole factor of 
equal pay and identified
four factors in that regard namely (i) the nature 
and duties of the post, (ii) the responsibilities and powers exercised by 
the officer holding a post; the extent of territorial or other charge held or 
responsibilities discharged; (iii) the minimum qualifications, if any, 
prescribed for recruitment to the post; and {iv) the salary of the post. In 
State of U.P. & Ors. vs. Bharat Singh & Ors., (2011) 4 SCC 120, 
this Court speaking through one of us {Thakur, J .) held that transferability 
or interchangeability of one incumbent to another in the cadre are essential 
attributes of a common cadre. 
32. Applying the above test to the case at hand we have no 
hesitation in holding that officers serving in the SeI"Vice stream of the 
Army do not constitute a single cadre with officers serving in Arms and 
Arms Support, no matter they may all be drawing the same salary, holding 
the same rank, wearing the same uniform and serving the same employer 
with similar service benefits. The true position is that allocation ofofficers 
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SUPREME COURT REPORTS 
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to different Arms and Services puts them in distinct cadres, with the 
result that those comprising a particular cadre will have his or her 
promotional avenues available against the posts comprising that cadre 
alone notwithstanding the fact that the Government of India may, as a 
policy, attempt to ensure as faras possible that officers of a given batch 
pick up their ranks around the same time or within a reasonable span of 
their counterparts in other cadres or that the disparity in the time frame 
for promotion is removed by making promotions retrospective from the 
dates officers in the other cadre have been promoted. Reliance by the 
respondents upon Circular dated 12'" November, 1987, is in our view 
misplaced. That circular, it is evident, from a reading of the same was 
issued in connection with the implementation of the Fourth Pay 
Commission to remove a certain doubt regarding the interpretation of 
the term "cadre" as applicable to anny officers. It was in that context 
that the expression "cadre" has been explained in the circular by reference 
to the method of allocation to Arms and Services, and similarity of other 
conditions of service. The circular, it is evident, does not constitute a 
statement of law much less can the exposition of the term 'cadre' as 
given therein operate as estoppel against the union. The circular it is 
evident is an internal communication and has been issued in a
totally 
different context. We, therefore, have no difficulty in answering question 
No.4 in the negative and holding that officers in service streams do not 
constitute a single cadre with those serving in Arms and Arms Support 
for purposes of allocation of additional vacancies created pursuant to 
the recommendations made to the Government by AV Singh Committee. 
Re: question No. 5 
33. We have, while answering question No. 4 above, already held 
that officers in different streams constitute different cadres. Since 
however, the argument based on legiiimate expectation is pitched on a 
broader principle, we need to recapitulate on-the risk of repetition that 
··the Indian Anny comprises the following 11 major streams: (I )Annou~d 
Corps, (2) Infantry, (3) Mechanised Infantry, (4)Artillery (5) Air Defence 
(AD) (6) Engineers, (7) Signals (8) Army Service Corps (9) Army 
Ordnance Corps (10) Electronical and Mechanical Engineers and (11) 
Other Corps including Intelligence, Aviation and other Minor Corps. The 
first of these three streams namely Armoured Corps, Infantry, Mechanised 
Infantry are called as 'Combat Arms' which particip:i,te in direct tactical 
land combat in a war with requisite weaponary. The next four namely
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
Artillery, Air Defence (AD), Engineers, and Signals are commonly 
known as 'Combat Support Arms' while Army Service Corps (ASC), 
Army Ordnance Corps (AOC), Electronical and Mechanical Engineers. 
{EME) and other minor corps are known as 'Services'. As noticed in 
the beginning of the judgment, the newly selected Gentlemen Cadets get 
inducted as Commissioned Officers on successful completion of their 
training from the training academy. The Defence Service Regulations, 
Regulations for the Army govern the first appointment of the 
Commissioned Officers. Para 63 of the said Regulations reads: 
·· .... 63. First Appoinment ~ (a) On first appointment to a 
permanent commission in the Regular Army, officers will be 
allocated to different corps. They will be required to do such 
basic training or attachment as may be prescribed from time 
to time for each corps, by Army HQ. 
An officer has no claim to a particular corps or to a particular 
unit of the corps. However, an officer may submit an 
application in writing to serve with a particular corps or a 
unit, which will be given due consideration subject to the 
requirements of the service ...... " 
34. The choice of the cadet plays an important role in his allocation 
and induction in the 11 streams mentioned above. That is precisely why 
towards the completion of pre-commission training each cadet is required 
to submit his' /her choice of induction into any of
the abovementioned 11 
streams. Policy guidelines in this regard have been issued from time to 
time by the Adjutant General's Branch which lay down the procedure 
by which cadets are allocated to different Arms, Combat Support Arms 
and Services. The broad allocation policy as stipulated in Adjutant 
General's Branch Circular dated 4th August, 2006 issued to the Indian 
Military Academy, Dehradun lays down the working parameters to ensure 
equitable distribution ofGCs/LCs to Arms/Services through consideration 
of several factors stipulated in the same. Merit and caliber spread is 
one of the factors taken into consideration. The policy envisages that 
first 1 % GCs (in order of merit) would constitute the "Super Block" and 
will be allotted to the Army/Service of their choice irrespective of other 
factors. It also provides for dividing GCs into blocks consisting of25 to 
35 GCs to ensure an even distribution of caliber to all Arms and Services. 
Parental claims are also taken into consideration while making such 
allocation just as the choice of General Cadet is one such factor that is 
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A 
taken into consideration. The policy envisages the following factors to 
be kept in mind while exercising the choice by the cadets: 
(a) 
Super Block GCs opting for Arms will be permitted to 
give choice of a particular Regiment/Batta/ion. 
B 
(b) 
GCs/LCs exercising Parental Claims will be permitted 
to give choice of particular Regt!Bn!Gp. 
(c) 
GCs can offer three choices in their order of preference. 
(d) 
GCs can opt for Arms only or Arms/Services in their 
three choices. 
c 
(e} 
GCs can however opt for only one Service in their three 
choices. 
(f) 
Optees for the Parachute Regiment can indicate choice 
of five PARA (SF), units (1,2.3,./.9, JO & 21) in order of 
preference. Volunteer for Para (SF) will be deemed to 
D 
have volunteered for Para Bafia/ion also. 
(g) 
GCs opting for Artillery will be permitted to specify 
choice of Fd!Med/SATA!Msl Gps. 
(h) 
GC opting for AD Arty will be deemed to have opted 
E 
for Artillery. 
(i) 
Science Stream GCs will be preferred for allocation to 
AAD. If however, such GCs are not available, non-
science GCs, preferably those who have studied Maths 
and Physics at 1O+2 stage will also be inducted. Parental 
F 
claims of non-science GCs in AAD will however, be 
honoured 
(k} 
GCs opting for Armd Regt/Mech inf will be permitted to 
>pecify choice of Armd Regt!Mech Jnj!Guards Bns. 
(I) 
GCs opting for Armoured Corps or Mechanised Infantry 
G 
will be deemed to have opted for Infantry.
(111) 
GCs opting for Inf will give choice of three Regis (in 
order of preference) 
(n) 
GCs!LCs opting for Corps of Engrs will give the 
preference of Gps: Madras/Bengal/Bombay. " 
H
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
35. Para 19( e) of the policy guidelines, inter a/ia, provides that 
as far as possible, efforts shall be made not to allot Arms/Services to 
any GC who has not opted for it as one of his choices. It is noteworthy 
that out of a total of30 officers who had filed three original applications 
before the Tribunal, 26 officers were allotted to the streams of their first 
choice, 2 were allotted to the streams of their second choice while only 
one got allotted to the stream of his 3'' choice. One can, therefore, 
visualize that choice made by the officers prevails as has happened in 
the case at hand where an overwhelming number of26 out of30 officers 
have been given their firsf option while 2 out of30 only were given their 
2"' choice. There is no denying the fact that GCs who made their choices 
are presumed to be fully aware of the functional and operational 
requirements of the obligations of the streams for which they had opted 
as also their future career prospects for the same. 
36. It was argued on behalf of the respondents that the officers 
although allotted to different streams had a legitimate expectation in the 
matter of their promotion to higher ranks that the Government shall 
maintain parity among officers who passed out i11 the same batch but 
who were allotted to different streams like Arms, Arms Support and 
Services. On behalf of the appellant, Union of India, it was per contra 
contended that
'batch parity' simply refers to the time frame for the 
conduct of same level of selection by the selection board for the same 
batch officers allocated to different Arms/Services. It was also contended 
that having regard to Deprivation Risk (ORI) factor Arms were getting 
additional posts because of surrender of such vacancies from Services. 
This surrender was to the extent of 20%. That position was, according 
to the appellant, accepted by the respondents before the Tribunal and so 
also before this Court. That apart: various committees constituted over 
a period of time had according to the appellants, acknowledged a higher 
requirement of Combat Arms which over a period of time resulted in a 
disparity in the time frame for consideration of same batch officers 
allocated to Arms and Services. It was submitted that the time lag came 
to be known as 0-1-2 scenario. This differential scenario is according to 
the appellants necessitated by the operational role of Arms and the 
resultant requirement of a lower age profile of COs unlike their 
counterparts in Combat Arms Support and Services. The Appellants 
contended that officers are at any rate considered for promotion witliin 
their own verticals in terms of para 70 of DSR RA which reads as 
tinder: 
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" .... .70. Claims for Promotion - Officers will normally be 
considered for promotion in the order of seniority in their 
Corps but an officer whose early advancement is in the 
interest of service may be specially selected for promotion to 
fill a vacancy whatever his seniority in the rank at the time. 
The cases of officers who are superseded for promotion will 
be kept under review in accordance with the existing 
instructions .... " 
37. It was submitted that recommendations made by the Kargil 
War Committee and AVS Committee have favoured an upward revision 
of20% extra for Combat Amis to a level where the objective of inducting 
a Col. of Combat Arms for commanding a battalion is at the age of 37 
years is achieved and the officer exits from command after 2Y, to 3 
years to be adjusted in another available position before he is considered/ 
selected for a higher rank. The recommendations of AVS committee, it 
was argued, were only with a view to enhancing and increasing the 
number of posts at the level of Col. for the streams constituting the 
broad classification of Combat Arms and Arms Support. 
38. It was further submitted that the time edge of0-1-2 was always 
in existence which in essence only meant that officers of combat arms 
of 1990 batch were considered by the Selection Board along with officers 
of the 1989 batch of 'Combat Arms Support' and officers of 1988 batch 
of'Servi.ces'. This was on
facts demonstrated by reference to the case 
of respondent Lt. Col. P K Chaudhary of the 1994 batch of the ASC 
who was for the first time considered by Selection Board No. 3 for 
promotion to the rank in 20 I 2 by which time officers belonging to Infantry 
and Artillery cif 1994 had already been considered by Selection Board 3 
in the year 2009 i.e., 2Y2 years prior to the consideration of the Respondent 
- Lt. Col. P K Choudhary. No grievance was, however made by Lt. 
Col.PK Chaudhary in December 2012 as to why he was not considered 
for such promotion in the year 2009 itself when officers from his batch 
allocated to Artillery and Infantry were considered for such promotion. 
This implied that the Respondent Lt. Col. P K Chaudhary anc\ others 
similarly situate clearly understood that batch parity did not mean 
consideration of commissioned army officers of the same batch at the 
same point of time nor was any grievance against their non-consideration 
ever made at any time when their batch mates serving in other streams 
were considered for promotion. It was submitted that Para 68 of DSR 
H 
RA protected officenrin the matter of their seniority by relating back
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
their promotion to the date when officers in the same batch working in 
other streams were promoted. Para 68 reads as under: 
" .... 68. Effective Date of Substantive Promotion - Substantive 
promotion to the rank of Colonel and above, and of Lt Col by 
selection. will be from the date an officer was passed fit in all 
respects for such promotion, provided a vacancy existed in 
the substantive cadre of that rank on that date. Should the 
date of assumption of the higher appointment be later than 
the former date of actual assumption of appointment will 
reckon for pay, pension and tenures But for purposes of 
seniority the date will be as notified in the Gazette ... " 
39. It was contended that the policy decision taken by Government 
oflndia was in the larger interest of national security and for making the 
Army more efficient and that the same did not violate any right of the 
respondents much less any fundamental right. The plea of legitimate 
ex!Jectation raised on their behalf was in that view futile for there was 
neither any basis for such a plea in the pleadings nor was the plea tenable 
in law especially when the policy change was in public interest. 
40. Halsbury's Laws of England, Fourth Edition, Volume 1(1) 151 
explains the meaning of"Legitimate Expectation" in the following words: 
"81. Lef{itimate expectations.-A person may have a legitimate 
expectation of being treated in a certain way by an
administrative 
authority even though he has no legal right in private law to receive 
such treatment. The expectation may arise either from a 
representation or promise made by the authority, including an 
implied representation, or from consistent past practice. 
The existence of a legitimate expectation may have a number 
of different consequences; it may give locus standi to seek 
leave to apply for judicial re.view; it may mean that the 
authority ought not to act so as to defeat the expectation 
without some overriding reason of public policy to justify its 
doing so; or it may mean that. if the authority proposes to 
defeat a persons legitimate expectation, it must afford him 
an opportunity to make representations on the matter. The 
courts also distinguish, for example in licensing cases, between 
original applications, applications to renew and revocations; 
a party wha has been granted a licence may have a legitimate 
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SUPREME COURT REPORTS 
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expectation that it will be renewed unless there is some good 
reason not to do so, and 111ay therefore be entitled to greater 
procedural protection than a 111ere applicant for a grant. " 
41. Legitimate expectation as a concept has engaged the attention 
of this Court in several earlier decisions to which we shall presently 
n:_fer. But before we do so we need only to say that the concept arises 
out of what may be described as a reasonable expectation of being 
treated in a certain way by an administrative authority even though the 
person who has such an expectation has no right in law to receive the 
benefit expected by him. Any such expectation can arise from an "express 
promise" or a "consistent- course of practice or procedure" which the 
person claiming the benefit may reasonably expect to continue. The 
question ofredress which the person in whom the legitimate expectation 
arises can seek and the approach to be adopted while resolving a conflict 
betwee_n any such expectation, on the one hand, and a public policy in 
general public interest on the other, present distinct dimensions every 
time the plea of legitimate expectation is raised in a case. 
42. In Food Corporation of India v. Ka111d/1e11u Cattle Feed 
Industries (1993) 1SCC71 one of the earlier cases on the subject this 
Court considered the question whether Legitimate Expectation of a citizen 
can by itself create a distinct
enforceable right. Rejecting the argument 
that a mere reasonable and legitim~te expectation can give rise to a 
distinct and enforceable right, this Court observed: 
"8. The 111ere reasonable or legitimate expectation of a citizen, 
in such a situation, may not by itself be a distinct enforceable 
right, but failure to consider and give due weight to it may 
render the decision arbitrary, and this is how the requiremelll 
of due consideration of a legitimate expectation forms part 
of the principle of non-arbitrariness, a necessary concomitant 
of the rule of law. Every legitimate expectation is a relevant 
factor requiring due consideration in a fair decision-making 
process. Whether the expectation of the c/aimalll is reasonable 
or legitimate in the colllext is a question of fact in each .case. 
Whenever the question arises. it is to be determined not 
according to the claimant~· perception but in larger public 
interest wherein other more important c<msiderations may 
outweigh what would otherwise have been the legitimate 
expectation o(the c/ai11la11t. A bona fide decision of the public
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
463 
[T. S. THAKUR, J.] 
authority reached in this manner would satisfY the requirement 
A 
of non-arbitrariness and withstand judicial scrutiny. The 
doctrine of legitimate expectation gets assimilated in the rule 
of law.and operates in our legal system in this manner and to 
this extent. " 
(emphusi> supplied) 
B 
43. To the same.effect is-the decision of this Court in Union of 
India v. Hindustan Development Corporation and Ors. (1993) 3 
SCC 499, where this Court summed up the legal position as under: 
"28 ..... For legal purposes, the expectation cannot be the 
same as anticipation: It is different from a wish, a desire or a 
hope nor can it amount to a claim or demand on the ground 
of a right. However earnest and sincere a wish. a desire or a 
hope mav be and however confidently one may look to them 
to be fulfilled. they by themselves cannot amount to an 
assertable expectation and a mere disappointment does not 
attract legal consequences. A .pious hop_e even leading to a 
moral obligation cannot amount to a legitimate expectation. 
·The legitimacy of an expectation can be inferred only ifit is 
founded on the sanction of law or custom or an established 
procedure fallowed in regular and natural sequence. Again 
it is distinguishable from a genuine expectation. Such 
expectation should be justifiably legitimate and protectab/e. 
Eve1y such legitimate expectation does not by itself fructify 
into a right and therefore it
does not amount to a right in the 
conventional sense. " · 
33. On examination of some of these important decisions it is 
generally agreed that legitimate expectation· gives the 
applicant sufficient locus standi for judicial review and that 
the doctrine of legitimate expectation is to be confined mostly 
to right of a fair hearing before a decision which results in 
negativing a promise or withdrmving an undertaking is taken. 
. The doctrine does not give scope to claim relief straightaway 
from the administrative authorities as no crystallised right as 
such is 'Involved The protection of such legitimate expectation 
does not require the fulfilment of the expectation where an ' 
overriding public interest requires othenvise. In other words 
where a persons legitimate expectation is not fulfilled by 
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taking a particular decision then decision-maker shouldjustijj; 
the de1;ial of such expectation by showing some overriding 
public interest. Therefore even if substantive protection of such 
expectation is conte111plated that does not grant an absolute 
right to a particular person. It si111ply ensures the 
circu111sta11ces in lvhich that expectation 111ay be denied or 
restricted. A case of legiti111ate expectation would arise when 
a body by representation or by past practice aroused 
expectation which it would be within its powers to fa/fl/. The 
protection is li111ited to that extent and a judicial review can 
be within those limits. But as discussed above a person who 
bases his clai111 on the doctrine of legitimate expectation. in 
the first instance. must satisfy that there is a foundation and 
thus has locus standi to make such a claim. In considering 
the same several factors which give rise to such legitimate 
expectation must be present. The decision taken by the 
authority must be found to be arbitrary, unreasonable and 
not taken in public interest. If it is a question of policy, even 
by wav of change of old policy, the courts cannot interfere 
with a decision. In a given case whether there are such facts 
and circumstances giving rise to a legitimate expectation. it 
would primarily be a question o((act. If these tests are satisfied 
and if the court is satisfied that a case of legitimate
expectation 
is made out then the next question would be whether failure 
to give an opportunity of hearing before the decision affecting 
such legitimate expectation is taken, has resulted in failure of 
iustice and whether on that ground the decision should be 
quashed. If that be so then what should be the relief is again 
a matter which depends on several factors. " 
(emphasis supplied) 
44. Reforence may also be made to the decision of this Court in 
Punjab Communications Ltd. v. Union of Inditt and Ors. (1999) 4 
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SCC 727, where this Court held that a change in policy can defeat a 
substantive legitimate expectation if it can be justified on "Wednesbury 
reasonableness." The choice of policy is for the decision-maker and not 
the Court. The legitimate substantive expectation merely permits the 
Court to find out if the change of policy which is the cause for defeating 
the legitimate expectation is irrational or perverse or one which no 
H
UNION OF INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
reasonable person could have made. A claim based merely on legitimate 
expectation without anything more cannot ipso facto give a right. Similarly 
in Dr. Clumclml Goyal (Mrs.) v. State of Rajastftan (2003) 3 SCC 
485, this Court declined relief on the plea of legitimate expectation oil 
the ground that the appellants had not shown as to how any act was 
done by the authorities which created an impression that the conditions 
attached to the original appointment order were waived. No legitimate 
expectation could be, declared this Court, claimed on such unfounded 
impression especially when it was not clear as to who and what authority 
had created any such impression. The decisions of this Court in Ram 
Pravesfl Singh v. State of Bi/iar (2006) 8 SCC 381, Set/ti Auto Service 
Station and Anr. v. Del/ti Development Authority and Ors. (2009) 1 
SCC 180, Confederation of Ex-servicemen Association v. Union of 
India (2006) 8 SCC 399, and State of Bi/tar and Ors. v. Kalyanpur 
Cements Ltd. (2010) 3 SCC 274, reiterate the legal position stated in 
the decisions earlier mentioned. In Monnet lspat and Energy Ltd. v. 
Union of India and Ors. (2012) 11 SCC l, this Court reviewed the 
case law on the subject and quoted with approval t!ie following passage 
in Attomey Genera/for New South Wales (1990) 64 Aus LJR 327: 
"To strike down the exercise of administrative power solely 
on the ground of avoiding tfte disappointment
of the legitimate 
expectations of an individual would be set the courts adrift 
on a featureless sea of pragmatism. Moreover, the notion of 
a legitimate expectation (falling short of a legal right) is too 
nebulous to form a basis for invalidating tfte exercise of a 
power when its exercise otherwise accords law. " 
45. This Court went on to hold that if denial oflegitimate expectation 
in a given case amounts to denial of a right that is guaranteed or is 
arbitrary, discriminatory, unfair or biased, gross abuse of power or in 
violation of principles of natural justice the same can be questioned on 
the well-known grounds attracting Article 14 of the Constitution but a 
claim based on mere legitimate expectation without anything more cannot 
ipso facto give a right to invoke these principles. 
46. Coming to the case in hand, the plea of legitimate expectation 
does not appear to be of any assistance to the respondents for two 
precise reasons. 
Firstly, there is no real basis for the respondents to 
argue that the Government of India had either by representation or by 
any sustained course of conduct created an impression in the minds of 
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the respondents that any additional vacancies created to the lower age 
profile of commanding officers serving in Combat Arms or Combat Arms 
Support shall also benefit those serving in the Service Streams of the 
Army. There is no factual basis laid by the respondents in the pleadings 
before the tribunal to suggest that any such impression was gathered by 
officers serving in the Service Streams. There is also no basis for the 
contention that a legitimate expectation arose in the minds of the 
respondents that they shall be promoted to the next rank simultaneously 
with the officers serving in Combat Arms or Combat Arms Support. As 
a matter of fact, the provisions of para (68) of the Regulations for the 
Army extracted earlier itself envisages the grant of promotion to officers 
from different streams at different points of time depending upon several 
factors which bring about the time lag for such considerations. Conscious· 
of the fact that such officers serving in different streams may pick up 
the next rank at different points of time, the Regulations provide for 
grant of retrospectivity to the promotions so granted to restore inter se 
batch parity to such officers. There is no denying the fact that the said 
Regulation continues to be operative and regardless of the date when 
the officer is promoted, his promotion is so related back as to protect his 
seniority vis-ii-vis his colleagues from
the batch serving in other streams. 
Far from creating any impression or any expectation that promotions 
shall be simultaneous, the Regulations clearly provide for gfant of 
retrospective effect to the promotions only with a view to restore seniority. 
This clearly implies that in the very nature of things the promotions could 
be granted to officers at different points of time and time lag could 
additionally be in the 0-1-2 scenario. We have, therefore, no hesitation 
in rejecting the contention that the legitimate expectation did arise in the 
factual situation before us. 
4 7. That apa11, legitimate expectation as an argument cannot 
prevail over a policy introduced by the Government which does not suffer 
from any perversity, unfairness or unreas.onableness or which does not 
violate any fundamental or ·other enforceable rights vested in the 
respondents. In the case in hand, the Government has, as a matter of 
policy, decided to lower the age profile of officers serving in Combat 
Arms and Combat Arms Support pursuant to the recommendations made 
by the Expert Committees. We have in the earlier part of the judgment 
dealt with the recommendations made by the Committees and the 
objectives sought to be achieved by the policy decisions of the 
Government. There is nothing perverse, unreasonable or unfair about
UNION 01' INDIA 
v. LT. COL. P. K. CHOUDHARY 
[T. S. THAKUR, J.] 
the policy that the age of officers serving in Combat Arms and Combat 
Arms Support will be lowered by creating additional vacancies to be 
allotted on Command Exit Model. ·In the absence of any perversity, 
unreasonableness or unfairness in the policy so introduced, we see no 
reason to allow the argument based on legitimate expectation to unsettle 
or undo the policy which is otherwise laudable and intended to render 
the Indian Army more efficient and better equipped'ti'l~coi\\bat situations. 
It also is not a case where tio reasonable person could have taken the 
decision which the Government have taken as. regards the need for 
lowering the age profile of the Commanding Officers or their exit after 
2-112. to 3 years to occupy positions which the Government have created 
for the officers to occupy till they are considered for promotion to the 
next higher rank. All told, the arguments based on legitimate expectation 
has not appealed to us. We have, therefore, no difficulty in rejecting the 
contention based on that principle. Question No. 5 is accordingly answered 
in the negative. 
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48. In the result, we partly allow these appeals and while setting . D 
aside the order passed by the Tribunal direct that the appellants shall 
create 141 additional posis of Colonel. to be allocated to 'Co1i1bat 
Support' stream for being utilized by appointing officers who are eligible 
for promotions against
the same as in the year 2009 over a period of 5 
years till 2014. 
49. In the peculiar facts and circumstances of the case, we leave 
the parties to bear their own costs. 
Nidhi Jain 
Appeals partly allowed. 
E