Case: Col. Avtar Singh Sekhon Vs. Union Of India

The facts are few although the fight is furious and the parties are army officers. It is a pity that careerism makes camaraderie a casualty in a profession where self-sacrifice for a higher cause is the dedication. Without moralising, we will state the grievance of the petitioner and examine whether our earlier order deserves reconsideration or reversal. Judges have a vested interest not in their judgments but in the justice of the cause and where the former is in error must unhesitatingly suffer surgery so that no curial wrong is done and right, to the best of our lights, is done.Two colonels in the army have one post of brigadier to which either may aspire and become Director of Military Farms. In this musical chair scenario the (review) petitioner apprehending that the Central Government was considering a change of policy departing from the 1964 policy, in choosing the officer to become brigadier in charge of the military farms, moved the High Court for a writ to issue to Government against any such new policy. The High Court, before it finally disposed of the case, had directed the Defence Department to select the best colonel to be promoted as brigadier and Farm Director. The selection so made was to be without prejudice to the result of the writ petition but it is significant that the report made was that both the contesting colonels were equal in merit (to run cattle farms?) but the respondent (in the review petition) being senior as colonel may be chosen for, the post Merit being equal, seniority tilts the scales-fair enough. Eventually, the High Court considered the legal import of the 1964 policy and allowed the writ petition which meant that the (review) petitioner would become the brigadier. The respondent colonel rushed to this court for special leave to appeal which was granted, and, after hearing both sides and the learned Attorney General for the Central Government, this court passed a final orderA simple petition to review an earlier judgment of this bench has, because of the intervening summer vacation, passed through vicissitudes, gathered episodes and been blown up into an exciting chronicle of unsavoury events, injecting more passion than reason, more heat than light, into the forensic proceedings. We kept completely clear of the unhappy imputations and confined counsel to the merits of the review proceeding before us. Justice discards party, friendship, and kindred and is therefore represented a s blind. This objectivity generated clarity and brevity, thanks, of course, to cooperation by counsel on both sides.

Court's reasoning:
We see no reason, whatever to depart from that judgment and no basic flaw therein has been pointed out either. It was plainly laid down that no finality nor infallibility attached to the 1964 policy and the Central Government was free to revise or reverse that policy provided it acts justly and fairly. A months time to evolve a new policy, if felt necessary, was granted to Government and the learned Attorney General agreed to abide by this direction.Three factors need more than passing notice. The Defence Ministry-the file had been shown to us at the hearing of the appeal and there is material in the pleading also has been considering revision of the 1964 policy and the court has upheld its full freedom to do so. Secondly, the post of brigadier fell vacant in 1979 and, on the direction of the High Court, an evaluation of the claims of both was made by the Selection Panel on an updated basis. In this process, both were adjudged equal and the senior (the respondent in the review petition) was recommended for appointment. Thus, it is obvious that had the Defence Ministry been permitted to choose, the respondent would have enjoyed the post. There is nothing outrageous in picking the senior when both are otherwise equal. There is a human side to it also. The senior was to retire in a, few months and the other hopefully would have his inningsThe respondent, therefore, contested the petitioners 1971 credentials as obsolete and even obscurantist. We need not re-open that issue except to state that in the final order, passed after hearing both sides, the inviolability of the 1964 policy had been nailed. A closer reading of the 1964 policy statement reveals under it seniority for an earlier promotee is conferred in the substantive rank provided he has been earlier included in the approved list. Such a situation has not arisen here at all. Be that as it may, the final direction of the court appeal did permit the Central Government to evolve its policy within one month. This not having been done, the respondent drew the attention of the court to the non-compliance and for consequential orders. At the hearing of that petition (the so-called contempt petition) the respondent through Shri R. K. Garg and the Central Government through the learned Attorney General were heard. Shri Kapil for the petitioner (review) intervened and was heard. But we must fairly state that his client had not been given formal notice and perhaps he had a grievance of not having been heard adequately. We cannot fault him for filing a review petition but hasten to clarify that we wholly desist from making any observations on the happenings set out in the respondents papers put into court. Nor did we permit Shri Garg to refer to those matters since they were in our view. extraneous to the merits of the review petition and related to another proceeding pending before another bench. We must record that Shri Kapil has with youthful vigour and clarity of advocacy presented his case fairly. The gravamen of his grievance is merely that he should have been heard if a direction to his prejudice was to be made. We are mindful of the force in this plea and cannot dismiss it merely because the sands of time are running out against the respondent whose approaching retirement will make his legal success, if any, a phyrrhic victory and, worse a tragic irony. Of course. that, by the way, is the life-style of most litigativei Garg in his fighting submissions, complained how his client had been baulked of the fruits of success by dubious proceedings, but, while we are unconcerned about those anecdotes, we do consider that there is justice in his plea that he has been chosen by the panel in 1979, that a bare selection (not actual promotion) of 1971 on which the petitioner relies, is too stale to be relevant, that the Central Government itself had filed an affidavit in this court stating that they had appointed his client and that neither law nor justice supported any interference with this courts direction of 7-S-1980 to promote the respondent as BrigadierIt is obvious from this affidavit that Government had decided on abandoning the 1964 policy and was actively pursuing steps to fashion a new policy. So no rights on the old basis, if any, (though we see none) can enure to the benefit of the petitioner especially because he relies on his 3rd rank in a selection for one vacancy made in 1971. That apart, a selection of 1979 turned out in favour of the respondent. And, to come to think of it all, the petitioner is postponed but by a few months and the respondent has been far senior as colonel and will retire in August, 1980. The conspectus of circumstances hardly persuades us that there is injustice in the order of May 7th or May 9thWe have sedulously followed the lucid submissions of Shri Kapil for review of the earlier direction and are clear in our conscience that neither law nor justice ha s suffered on account of the impugned ordersA review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justiceBy this test and even after re-reading the 1964 policy statement for prima facie satisfying ourselves about vesting of valuable rights we are not satisfied that the relief of review is justified. The basics of this case are the choice of a brigadier is out of two colonels, the petitioner and the respondent. They are of equal merit as assessed in 1979. The latter is far ahead in seniority and the Central Government has agreed to appoint him as brigadier. He has a period of a month or so to go for retirement when the vacancy will be filled in. probably by the petitioner. The claim of the petitioner is based largely on the 1964 policy statement which the Central Government has decided to give up. Moreover, the claim itself is based upon an ancient selection made a decade ago when the vacant was only one and the petitioner was 3rd in rank. Moreover, whether the 1964 policy statement confers a right merely b y inclusion in the approved list where no appointment has taken place as brigadier and the question of substantive rank has not arisen. is. to say the least mootThese are sufficient for us to repel the relief of review. Of course , the petitioner has effectively postponed the appointment of the respondent by getting a stay order. We make no comments whatever on the chain of events but permit ourselves the observation that the implementation of the final order which has been passed by this Court has been further delayed by the stay thereof by a learned single judge of this Court during the vacation; and so, we mention this only to justify our imperative direction that no more delay shall take place and the Central Government shall put the respondent in his position as Brigadier in charge of the Military Farms by tomorrow. Law is highly allergic to procrastination.