Supreme Court of India

Wing Commander J. Kumar vs Union Of India And Others on 5 March, 1982

Equivalent citations: 1982 AIR 1064, 1982 SCR (3) 453, AIR 1982 SUPREME COURT 1064, 1982 LAB. I. C. 1536, 1982 LAB. I. C. 1586, 1982 UJ (SC) 313, 1982 (1) SERVLR 715, 1982 2 LABLN 1, 1982 (1) SERVLJ 452, 1982 2 SCC 116

Author:
V. Balakrishna Eradi

Bench:
V. Balakrishna Eradi
,
A.D. Koshal
,
R.B. Misra

PETITIONER:
WING COMMANDER J. KUMAR

Vs.

RESPONDENT:
UNION OF INDIA AND OTHERS

DATE OF JUDGMENT05/03/1982

BENCH:
ERADI, V. BALAKRISHNA (J)
BENCH:
ERADI, V. BALAKRISHNA (J)
KOSHAL, A.D.
MISRA, R.B. (J)

CITATION:
1982 AIR 1064 1982 SCR (3) 453
1982 SCC (2) 116 1982 SCALE (1)227
CITATOR INFO :
R 1987 SC1858 (20)
R 1987 SC2291 (21)

ACT:
Defence Research and Development Organisation and
Government of India O.M. dated November 23, 1979, Rule 16-
"Seniority after permanent secondment"-R & D Cadre-Intake of
service officers-Seniority after 'permanent secondment'-
Based upon seniority of substantive rank held by the officer
in the grade of major or equivalent rank-Such principle for
determination whether valid.
"Secondment" of an officer-Whether constitutes a
transfer.
Constitution of India 1950, Art, 309 proviso-Statutory
rule covering seniority-Rule to take effect from date of
promulgation-Whether element of retroactivity involved in
operation of rule.
Administrative Law-Principle of natural justice-
Applicability of-In promulgation of statutory rule governing
seniority.

HEADNOTE:
The Defence Research and Development Organisation (R &
D) was set up under the Ministry of Defence for carrying out
scientific and technological research and development work
on projects of vital importance to the defence forces. Its
personnel consist of large number of civilian scientists as
well as a smaller number of service officers drawn from the
three wings of the Armed Forces who have operational
experience of weapon systems.
The policy followed in regard to the intake of service
officers was that they were initially taken on a tenure
basis and subsequently absorbed in the organisation on a
permanent basis in the event of being found suitable and
willing. Since the Officers from the three services came to
the R & D cadre with different lengths of service and at
different levels, it became imperative to evolve a
reasonable principle for the determination of their inter-se
seniority after their secondment to the organisation.
In November 1979 in supersession of all previous Rules
and Orders on the subject, rules were made under the proviso
to
Art. 309
laying down the procedure for the intake of
service officers in the R & D organisation and the terms and
conditions of service of those permanently retained therein.
Rule 16 dealt with "Seniority after permanent secondment"
and provided that "seniority of all service Officers
permanently seconded to DRDO will continue to be based upon
their seniority of substantive rank of Major/Sqn. Ldr./Lt.
Cdr..........and the
seniority of officers with substantive ranks higher than
Major/Sqn. Ldr./Lt. Cdr. will after their permanent
secondment also reckon vis-a-vis other officers in the R & D
Cadre, for future promotion/confirmation, from the date of
their substantive rank of Major/Sqn. Ldr./Lt. Cdr.........
".
The appellant who was commissioned in the Air Force was
seconded to the service. In his writ petition he contended
that the principle for determination of seniority laid down
in Rule 16 was arbitrary and violative of
Articles 14
and
of the Constitution, and as he had been permanently seconded
to the R & D Organisation in 1971 long prior to the
proclamation of the rule his rights regarding seniority and
promotion could not be affected by the provisions of this
rule. By taking the date of substantive appointment to the
rank of Major/ equivalent as the basis for reckoning
seniority, officers who had obtained substantive promotions
to higher ranks in the parent service earlier than some of
their seniors who were only subsequently promoted to such
higher ranks, suffer serious prejudice because the latter
gain over the earlier promotees and supersede them in the
matter of seniority in the R & D Organisation, and that
subsequent inductees in the R & D Organisation cannot be
legally assigned seniority above those already borne on the
cadre, irrespective of the substantive rank held by them at
the time of their intake into the R & D.
The Single Judge rejected all the contentions and
declined to grant relief. The R & D Organisation was however
directed to issue the tentative seniority list drawn up in
accordance with Rule 16. The Letters Patent Appeal filed by
the appellant was dismissed in limine.
Dismissing the appeal to this Court,
^
HELD: 1. Since officers from different sources are
taken into the R & D Organisation for meeting the
discipline-wise requirements arising therein from time to
time and they are brought into a common pool on such
permanent secondment, a reasonable principle had to be
evolved for fixation of inter se seniority within the R & D
cadre. The principle adopted under Rule 4 of reckoning
seniority with reference to the date of attainment of the
rank of substantive Major/equivalent strikes a reasonable
mean as it ensures to all the service officers in the R & D
the fixation of seniority in the integrated cadre giving
full credit to the length of service put in by them in their
respective parent services. [466 C; 466 H; 467 A]
2. It is settled law that the service conditions
pertaining to seniority are liable to alteration by
subsequent changes that may be introduced in the rules and
except to the extent of protecting promotions that have
already been earned under the previous rules, the revised
rules will operate to govern seniority and future promotion
prospects. There is, therefore, no substance in the argument
advanced by the appellant that it was not open to the
Government of India to introduce a new principle of
seniority by promulgation of Rule 16 so as to affect his
rights for future promotion. [463 D-E]
3. A statement contained in the statute or statutory
rule of the factual background leading up to the enactment
has ordinarily to be accepted and acted upon by the court as
wholly correct. [463 A]
4. Rule 16 contains a categorical declaration that in
the past also the seniority of service officers permanently
seconded to the R & D Organisation was being reckoned on the
basis of their dates of attainment of substantive rank of
Major/Sqn. Ldr./Lt. Cdr. subject to any penalty/loss of
seniority that an officer might suffer subsequently. It is
therefore not possible to accept the contention of the
appellant that prior to the coming into force of the rule be
had acquired a vested right to have his seniority in the R &
D reckoned with reference to the date of his permanent
secondment and to have all Officers joining the organisation
on subsequent dates ranked only below him. [462 G-H; 463 B-
C]
5. The structure and composition of the Organisation
have necessarily to undergo rapid, qualitative and
quantitative changes in the light of the fast developments
that take place in science technology and international
relations. The intake of service Officers is not on the
basis of any general selection from service cadres. As and
when the Organisation finds it necessary to obtain the
service of officers with operational experience in any
particular weapon system or other scientific discipline the
parent service is requested to spare for deputation suitable
hands in the particular branch or speciality and initially
they are taken on a tenure basis. There is a selection only
in a very limited sense that the suitability of the
concerned officer is adjudged before he is taken but the
claims or merits of others are not considered. The
secondment of such officers to the R & D Organisation is not
therefore, effected on the basis of a general selection.
Officers who are senior in the parent service in relation to
the person who is seconded and who may possess greater
experience and superior attainment might not have been
considered for secondment when their juniors in the service
were seconded to the R & D Organisation, because the parent
service might not have been in the position at the relevant
point of time to spare the services of the former. [463 G-H;
464 A-E]
6. Where persons from different sources are drafted to
serve in a new service a just and wholesome principle
commonly applied is that the pre existing length of service
in the parent department should be respected and preserved
by taking the same into account in determining their ranking
in the new service cadre. Such a provision does not involve
any discrimination violative of
Article 16
of the
Constitution. [470 E]
R.S. Makashi & Ors. v. I.M. Menon & Ors., [1982] 1
S.C.C. 379, referred to.
7. The secondment of an officer from his parent service
to the R & D is not a transfer to Central Service from a
subordinate service or from another department. [469 G]
8. Rule 16 being statutory in origin, its validity
cannot be affected by reason of any inconsistency with the
provision of a prior executive order issued by the Central
Government i.e. Office Memorandum dated July 22,1972.
[469 H]
9. When a statutory rule governing seniority is issued
in respect of a service, the said rule would govern the
personnel in the service with effect from the date of its
promulgation and in so giving effect to the rule in future,
no element of retroactivity is involved. [470 G-H]
10. The promulgation of a statutory rule governing
seniority is not a quasi-judicial function. It is the
exercise of a legislative power and in respect thereof the
principles of natural justice have no application at all.
[472 B]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1742 of
1980.

Appeal by special leave from the judgment and order
dated the 11th day of April, 1980 of the Delhi High Court in
L.P.A. No. 53 of 1980.

WITH
Civil Misc. Petitions Nos. 69 and 5698 of 1981.
Wing Commander J. Kumar Appellant in Person.
P.A. Francis, Narayan Nettar and Miss A. Subhashini,
for the Respondent.

The Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. This appeal by special leave is
directed against the judgment of a Division Bench of the
Delhi High Court dismissing in limine a Letters Patent
Appeal filed by the present appellant against the judgment
of a learned Single Judge of that Court whereby the
contentions raised by the appellant in Civil Writ Petition
No. 1423 of 1979 were rejected and the said writ petition
was dismissed.

The appellant-Wing Commander J. Kumar-was commissioned
in the Indian Air Force on September 3, 1956 with antedated
seniority from December 10, 1955. He was permanently
seconded to the Defence Research Development and Inspection
Organisation (for short, the L R D & I Organisation) of the
Ministry of Defence on October 14, 1971. On the bifurcation
of the LRL & I Organisation effected in July 1976 by the
separation of the Inspection Wing, the appellant was
retained in the Defence Research and Development
Organisation, which will hereinafter be referred to as the R
& D Organisation. The Director-General of Defence Research
and Development, who is also the Secretary to Government of
India, Defence Research, is the controlling authority of the
R & D cadre. The said cadre has service officers drawn from
all the three Wings of the Armed Forces, namely, the Army,
the Navy and the Air
Force, and in addition thereto a large number of civilian
employees are also borne on it.

In November 1979, in supersession of all previous Rules
and Orders on the subject, the President of India
promulgated under the proviso to
Article 309
of the
Constitution rules laying down the procedure for the intake
of service officers in the R & D Organisation and the terms
and conditions of service of those permanently retained
therein. Those rules were issued by the Ministry of Defence
of the Government of India in Office Memorandum No.
Pers/18601/RD. Sel. Bd/7971/D (R&D) dated November 23, 1979.
The provisions of the said Memorandum will hereinafter be
referred to as the rules. Rule 16 deals with the subject of
"Seniority after permanent secondment". That rule is in the
following terms:

"As hithertofore seniority of all service officers
permanently seconded to DRDO will continue to be based
upon their seniority of substantive rank of Major/Sqn.
Ldr./Lt. Cdr., subject to any penalty/loss of seniority
that an officer might suffer subsequently and the
seniority of officers with substantive ranks higher
than Major/Sqn. Ldr./Lt. Cdr. will after their
permanent secondment, also reckon vis-a-vis other
officers in the R&D Cadre, for future
promotion/confirmation, from the date of their
substantive rank of Major/Sqn. Ldr./Lt. Cdr., subject
to any penalty/loss of seniority that an officer might
have suffered in his parent Arm/Service."

The principal contention advanced by the appellant
before us is that the principle for determination of
seniority laid down in the above rule is arbitrary and
violative of
Articles 14
and
of the Constitution.
Alternatively, it is contended by the appellant that since
he had been permanently seconded to the R&D Organisation in
1971, long prior to the promulgation of the impugned rules,
his rights regarding seniority and promotions cannot, in any
way, be effected by the provisions of the new rule.
According to the appellant, he continues to be governed by
the principles that had been originally laid down in
Government of India (Ministry of Defence) Memorandum dated
March 18, 1967, which were the rules in force at the time of
his secondment to the R&D Organisation. It is the further
case of the appellant that the R&D being an independent
Organisation, the seniority of the personnel absorbed
therein has to be reckoned only with reference to the dates
on which they were
selected and appointed in the said Organisation and
subsequent entrants into the R&D in any particular category
or rank should, therefore, be placed only below all those
who had already joined the Organisation by virtue of
permanent secondment. The appellant also contends that by
taking the date of substantive appointment to the rank of
Major/equivalent as the basis for reckoning seniority,
officers who had obtained substantive promotions to higher
ranks in the parent service earlier than some of their
seniors who were only subsequently promoted to such higher
ranks, will suffer very serious prejudice because the latter
will gain a march over the earlier promotees and supersede
them in the matter of seniority in the R&D Organisation.
Elaborating this plea, it was urged on behalf of the
appellant that the result of the impugned rule would be to
bring about the anomalous situation where a person
permanently seconded to the R&D and holding substantively
the rank of Lt.Col./equivalent can be superseded in
seniority in the said Organisation by a Major/equivalent of
old vintage who had been overlooked for promotion in his
parent service and may have thereupon come over to the R&D
Organisation. Another objection strongly put forward by the
appellant was against the lateral induction of officers at
levels higher than that of substantive Major/equivalent. It
was urged by the appellant that such subsequent inductees
into the R&D Organisation cannot be legally assigned
seniority above those already borne on the cadre,
irrespective of the substantive rank held by them at the
time of their intake into the R&D. The appellant has rested
this contention on the premise that the intake of officers
into the R&D is by a selection based on merit and hence
those selected earlier must necessarily rank higher in the
seniority list of the Organisation in relation to those who
are selected and appointed in the Organisation only on later
dates. The appellant has urged a further point before us
that the seniority of officers of the Navy, Army and Air
Force holding equivalent ranks who served in the
Organisation is governed by the principle laid down in
Regulation No. 251 of the "Naval Ceramonials, Conditions of
Service and Miscellaneous Regulations, 1964", and the
impugned rule in so far as it is contrary to the principle
laid down in the said Regulation has to be declared as
invalid and inoperative. Some other incidental pleas and
grievances were also put forward by the appellant before the
High Court as well as before us and we shall be dealing with
them later on at the appropriate stage.

The learned Single Judge of the High Court rejected all
the aforesaid contentions advanced by the appellant and
declined to
grant any relief to him, except to the extent of directing
the R&D Organisation to issue the tentative seniority list
drawn up in accordance with the impugned rule within three
months from the date of the judgment and to record the
Annual Confidential Reports on the appellant from April 1,
1976 to March 31, 1979 within the same period. The Letters
Patent Appeal filed by the appellant against the said
judgment having been dismissed in limine by a Division Bench
of the High Court, the appellant has preferred this appeal
after obtaining special leave from this Court.

The Defence Research and Development Organisation (R&D)
has been set up under the Ministry of Defence for carrying
on scientific and technological research and development
work on projects of vital importance to the defence forces
of this country. The head of the said Organisation is a
civilian, namely, the Scientific Adviser to the Defence
Ministry and its personnel consist of a large number of
civilian scientists and a much smaller number of service
officers drawn from the three defence services. The service
officers are initially taken on short tenure and are later
permanently seconded to the R&D Organisation if found
suitable and willing. Those service officers who were
permanently seconded and absorbed in the R&D cadre are
thereafter governed by the terms and conditions of service
applicable to the officers of the said cadre.

Originally, the Defence Research and Development
Organisation (R&D) and the Director-General of Inspection
(DGI) had a combined cadre-Research Development and
Inspection-and the terms and conditions of service of the
personnel borne on the said cadre were governed by the
provisions contained in Government of India (Ministry of
Defence) Memorandum No. 11/(5)/58/D-(R&D) dated March 18,
1967. But, those rules which had also been issued by the
President of India under the proviso to
Article 309
of the
Constitution did not contain any provision laying down the
principles for determination of the seniority of the
officers functioning in the DRD&I Organisation. Those rules
were in force at the time when the appellant was permanently
seconded to the DRD&I Organisation in 1971.

In the writ petition filed in the High Court, the
appellant had impleaded 8 officers of the R&D Organisation,
namely, respondents nos. 7 and 11 to 17 contending that they
have been assigned seniority and granted promotions in
supersession of the appellants's legitimate claims and in
violation of the rules. In the appeal before
this Court, the appellant had added several more service
officers of the R&D as additional respondents. The appellant
argued his case in person and so did some of the respondents
whose promotions and seniority etc., have been challenged by
the appellant.

Arguments advanced by the parties appearing in person
were heard by us at considerable length and Shri P.A
Francis, Senior Advocate, appearing on behalf of Respondents
Nos. 1 and 2, namely, the Union of India and the Director-
General, R&D Organisation, also addressed arguments before
us covering all the aspects.

As already noticed, the main contentions put forward by
the appellant are two-fold, namely, that the principles laid
down in rule 16 of the rules for determination of the
seniority of officers permanently seconded to the R&D are
arbitrary and illegal, and that lateral induction of
officers holding ranks above substantive Major/equivalent
and assigning of seniority to such subsequent inductees by
applying the provisions of rule 16 amounts to deprivation of
the vested rights of persons-like the appellant-who had
joined the Organisation earlier and it is, therefore,
illegal and unwarranted.

After giving our best consideration to the arguments
advanced on both sides, we do not see any substance in
either of the aforesaid contentions advanced by the
appellant,
The Defence Research Development and Inspection
Organisation is a Specialised Technological Organisation set
up under the Ministry of Defence for carrying out research
and development work in weapons like guns, electronics,
missiles, tanks etc. Its personnel consist of a large number
of civilian scientists (about 3,600) and about 430 service
officers drawn from all the three Wings of the Armed Forces
with operational experience of such weapon system to work
with the scientists in the research and development
programme. The policy followed in regard to the intake of
service officers appears to have been to take them initially
on a tenure basis and subsequently to absorb them in the
Organisation on a permanent basis in the event of their
being found suitable and willing. It is seen from the
affidavits and documents filed on behalf of the respondents
that the secondment of service officers depended upon the
exigencies and the special type of need of the Organisation
at each relevant point of time so much so that officers who
could fill the bill by virtue of their qualification,
experience, aptitude and suitability in that particular
branch of defence science for which the need
for personnel had arisen and whose services could be spared
by their parent service were taken into the R&D Organisation
from time to time. Since the officers from the three
services came to the R&D cadre with different lengths of
service and at different levels, it became imperative to
evolve a reasonable principle for determination of their
inter se seniority after their secondment to the R&D
Organisation.

The case of the respondents is that right from the
beginning, the policy and practice followed by DRD&I
Organisation as well as by the bifurcated R&D Organisation
was to assign seniority with reference to the date on which
the officers attained their rank of substantive
Major/equivalent. This was, however, strongly refuted by the
appellant who asserts that no such principle had been
formulated or followed by the Organisation prior to the
promulgation of the impugned rules. The respondents produced
for our perusal various files pertaining to the
determination of seniority and grant of promotions in the
Organisation during the period prior to the issuance of the
impugned rules. The appellant pointed out with reference to
those very files that there were quite a few instances where
promotions had been effected on a basis totally at variance
with the principle propounded by the respondents.

From a scrutiny of the files of the Ministry of
Defence-R&D Organisation-produced before us by the learned
counsel appearing on behalf of the Government of India, it
has clearly emerged that, excepting for a few stray
instances, the practice followed in the R&D Organisation was
to reckon the seniority of the permanently seconded officers
with reference to the date of their attaining substantive
rank of Major/equivalent. The principle underlying the said
practice was later formally incorporated in the Minutes of
the DRD&I Selection Board as a decision taken by the Board
at its meeting held in February 1974. The relevant paragraph
of the Minutes runs thus:

"Officers with substantive ranks higher than
Maj/Sqn Ldr/Lt Cdr who are offered permanent secondment
will reckon their substantive seniority in the
R&D/Inspection Organisation for future
promotion/confirmation from the date they got their
substantive ranks as Maj/Sqn Ldr and subject to any
penalties as regards loss of seniority that they might
have suffered in their Arm/Service thereafter. The
position as above should be clarified to the officers
concerned and their acceptance obtained before issuing
the orders of permanent secondment in such cases. These
decisions will apply to cases of permanent secondment
approved by the RD&I Selection Board from 2(74) meeting
onwards."

It is also seen from the files pertaining to the period
subsequent to February 1974 that the aforesaid principle was
thereafter consistently followed as a binding rule and when
it was found that a departure from the said principle had
been erroneously made by placing three Air Force officers in
their substantive rank of Wing Commander, the authorities
concerned rectified the said mistake after clearly noting in
the file that the aforesaid principle went unnoticed by
oversight during the processing of those cases by HQ, R&D
and the ranking of those officers was revised so as to bring
it into conformity with the aforesaid rule.

The relevant file leading up to the issuance of the
impugned rules was also carefully perused by us. This file
contains the Minutes of the Chief of Staff Committee
recommending to the Government of India that the draft rules
may be finally accepted and issued expeditiously and the
noting therein also contains a clear statement that the
principle incorporated in the decision taken at the combined
meeting of the DRD&I Selection Board held in February 1974
was merely to incorporate "a rule which was unwritten
earlier but actually applied in practice". Thus, there is
sufficient material available on record to substantiate the
plea put forward by the respondents that the policy and
practice followed in the DR&DI Organisation and later in the
R&D Organisation was to fix the seniority of permanently
seconded officers with reference to the date of attainment
of the rank of substantive Major/ equivalent.

Further, the impugned rules are statutory in origin as
they have been promulgated by the President of India under
the proviso to
Article 309
of the Constitution. Rule 16
contains a categorial declaration that in the past also the
seniority of service officers permanently seconded to the
R&D Organisation was being reckoned on the basis of their
dates of attainment of substantive rank of Major/Sqn Ldr/Lt
Cdr. subject to any penalty/loss of seniority that an
officer might suffer subsequently. The said declaration is
clearly implied in the opening words "As hithertofore"

occurring in rule 16
of the impugned rules. A statement contained in a statute or
statutory rule of the factual background leading up to the
enactment has ordinarily to be accepted and acted upon by
the court as wholly correct; nothing clinching has been
brought to our notice by the appellant to justify any
departure from the said principle. We do not, therefore,
find it possible to accept the contention of the appellant
that prior to the coming into force of the impugned rule, he
had acquired a vested right to have his seniority in the R&D
reckoned with reference to the date of his permanent
secondment and to have all officers joining the Organisation
on subsequent dates ranked only below him. The plea advanced
by the appellant that the impugned rules have illegally
purported to divest him of his vested rights of seniority
and promotion in the R&D must, therefore, be rejected as
devoid of merit.

Apart from what is stated above, it is settled law that
the service conditions pertaining to seniority are liable to
alteration by subsequent changes that may be introduced in
the rules and except to the extent of protecting promotions
that have already been earned under the previous rules, the
revised rules will operate to govern the seniority and
future promotion prospects of all the persons in the
concerned service. There is, therefore, no substance in the
argument advanced by the appellant that it was not open to
the Government of India to introduce a new principle of
seniority by promulgation of the impugned rules so as to
affect his rights for future promotion.

The next question to be considered is whether the
principle enunciated in rule 16 can be said to be
unreasonable or arbitrary, as contended by the appellant. It
is in this context that the specialised character of the R&D
Organisation assumes importance. Its personnel consist of
civilian scientists and service officers of high
technological attainments in different disciplines who have
been drawn to the Organisation from time to time according
to its exigencies and needs.

The structure and composition of the Organisation have
necessarily to undergo rapid qualitative and quantitative
changes in the light of the fast developments that take
place in the field of science and technology as well as in
international relations. The research and development work
is carried on by the R&D in different systems of weapons and
equipments and a variety of disciplines like electronics,
missiles, tanks, telecommunication, rocketry, radars
etc. In addition to about 3,600 civilian scientists, the
Organisation has about 160 permanently seconded service
officers and about 430 service officers taken on a tenure
basis. The intake of service officers is not on the basis of
any general selection from service cadres. As and when the
Organisation finds it necessary to obtain the services of
officers with operational experience in any particular
weapon system or other scientific discipline, suitable hands
with aptitude skill and experience in that particular branch
or speciality whom their parent service is willing to spare
for deputation are initially taken on a tenure basis. Thus,
there is a selection only in a very limited sense that the
suitability of the concerned officer is adjudged before he
is taken. But what is important to note is that in the
intake of officers into R&D Organisation there is no
comparative evaluation of the merits of the other personnel
occupying the same rank or possessing like experience in the
Defence Services. There is no process of selection in which
their claims or merits are considered. Thus, it is clear
that the secondment of officers to the R&D Organisation is
not effected on the basis of a general selection. There is,
therefore, no substance in the contention advanced by the
appellant that the service officers who are seconded to the
R & on a later date must take rank only below all those who
had joined the Organisation earlier by virtue of their prior
"selection". Officers who are senior in the parent service
in relation to the person who is seconded and who may
possess greater experience and superior attainments might
not have been considered for secondment when their juniors
in the service were seconded to the R & D Organisation,
because the parent service might not have been in the
position at the relevant point of time to spare the services
of the former. Further, the discipline-wise requirement in
the R & D at any particular time will depend upon the nature
of the project then taken on hand and posting of a service
officer to the R & D Organisation will be on the
consideration of his experience and aptitude for that
particular type of specialised work and not seniority in the
parent service. It may well happen that a junior officer who
has experience and expertise in that special discipline
alone may be considered for secondment at that particular
time. Thus, the entry of a service officer into the R & D is
to a large extent dependant on fortuitous circumstances
related to the exigencies and needs that arise in the
Organisation from time to time. It is certainly not based on
the result of any comparative evaluation of his merit,
ability or suitability as against those of his compeers in
the concerned parent service. Such being the factual
situation, we are of the view that
it will not be reasonable, just or fair to determine the
seniority of the permanently seconded service personnel
merely on the basis of the date of their secondment to the
Organisation.

The next question to be considered is whether the
principle for determination of seniority laid down in the
impugned rule 16 is just, fair and reasonable or whether it
is arbitrary and violative of
Articles 14
and
of the
Constitution, as contended by the appellant.

The R & D Organisation has in its cadre service
officers who were taken initially on tenure basis from the
Army, the Air Force and the Navy and were later on
permanently seconded into the DRD & I/ R & D cadre on their
being found suitable and willing. The contention of the
appellant is that on such permanent secondment into the R &
D, the inter se seniority of the officers should be reckoned
only with reference to the dates of their selection for such
permanent secondment. It is the further plea of the
appellant that since at the time of permanent secondment the
officer concerned has to certify in writing that he is
relinquishing all his claims of seniority etc., in his
parent service, no weightage can thereafter be given to the
rank or seniority which the person inducted had earned in
his parent service prior to the date of his permanent
secondment. We do not find it possible to accept this
contention. Officers from the three Services holding
different ranks are inducted into R & D Organisation from
time to time depending upon the needs of the Organisation,
and if the appellant's contention is to be accepted, it
would lead to serious anomalies and manifest injustice by
upsetting the norms of seniority and rank structure which is
the basic fabric on which the Armed Forces of the country
are built. The unreasonable consequences that will flow from
the acceptance of the appellant's arguments will be clearly
seen from the following simple illustration:

Suppose, in the year 1974, on a particular date, when
two officers are working in the Air Force-one as a Wing
Commander and the other in the higher rank of Group Captain-
the Wing Commander is permanently seconded to the R & D
Organisation and, later, the Group Captain is also
permanently seconded to the R & D in 1975. If the principle
advocated by the appellant is to be accepted, the Group
Captain will become junior to the Wing Commander by virtue
of the latter's earlier induction into the R & D despite the
fact that he had not been even considered for secondment to
the R & D at the time when the Wing Commander was taken.
In view of our having already found that the
appellant's contention that the secondment to the R & D is
based on a "selection" is incorrect, the basic premise on
which the appellant has founded his plea that the date of
secondment should be the determinative factor for reckoning
seniority in the R & D cadre, falls to the ground.

Since officers from different sources are taken into
the R & D for meeting the discipline-wise requirements
arising in the Organisation from time to time and they are
brought into a common pool on such permanent secondment, it
is inevitable that a reasonable principle has to be evolved
for fixation of the their inter se seniority within the R &
D cadre. The fixation of the seniority on the basis of the
ranks held by them in the different branches of the Armed
Forces would not be reasonable or fair, because substantive
ranks above Major/equivalent in the three Wings of the Armed
Forces are conferred by different Selection Boards at
different times and under varying circumstances and
conditions depending upon the vacancies arising at the
different levels in the distinct services from time to time.
It is pointed out in the counter-affidavit filed on behalf
on the Union of India (Respondent No. 1) that the
promotional chances of officers belonging to the three
distinct Wings of the Armed Forces to posts above the rank
of Major/equivalent vary widely and dependant upon
fortuitous circumstances which may obtain in relation to the
distinct services at any relevant point of time. We find
there is force in this submission. In all the three
Services, the promotions up to and inclusive of the rank of
Major/equivalent are time-scale promotions based only on
fixed length of service. In the Air Force and the Army, the
ranks of Major and Sqn. Leader, respectively, are attained
on an officer putting in 13 years' service. In the Navy, the
time-scale period for promotion to the equivalent rank of
Lt. Commander is said to vary between about 10 and 13 years.
But, what is important to notice is that the promotion to
the rank of Major/equivalent is based only on length of
service and not on any "selection". For posts higher than
that of Major/equivalent, promotions in all the three
Services would depend upon the occurrence of vacancies in
the particular branch or group in the concerned Service, the
schemes of expansion that may be taken up from time to time
in the particular Service or branch and also the extent of
stagnation that may be caused to officers at lower levels by
reason of the officers who are young in age occupying posts
in the immediate higher levels, etc. When due regard is had
to all the aspects and circumstances, narrated above, it
will be seen that the
principle adopted under the impugned rule of reckoning
seniority with reference to a date of attainment of the rank
of substantive Major/equivalent strikes a reasonable mean as
it ensures to all the service officers in the R & D the
fixation of seniority in the integrated cadre giving full
credit to the length of service put in by them in their
respective parent services.

A similar seniority rule formulated by the State of
Maharashtra in a somewhat like situation, when an integrated
cadre consisting of personnel drawn from different sources
was formed in the State of Maharashtra for administering the
Rationing Scheme, was recently upheld by this Court in
R.S.
Makashi & Ors. v. I.M. Menon & Ors.
(1)
The following observations contained in that judgment
are apposite in the present context:

"When personnel drawn from different sources are
being absorbed and integrated in a new department, it
is primarily for the Government or the executive
authority concerned to decide as a matter of policy how
the equation of posts should be effected. The courts
will not interfere with such a decision unless it is
shown to be arbitrary, unreasonable or unfair, and if
no manifest unfairness or unreasonableness is made out,
the court will not sit in appeal and examine the
propriety or wisdom of the principle of equation of
posts adopted by the Governments."

In enunciating the principle incorporated in the
impugned rule, the rule-making authority has adopted as the
base for reckoning seniority the highest common factor
applicable in respect of time scale promotions in the three
services, namely the rank of Major/equivalent and thereby
ensured to the service officers seconded to the R & D
Organisation a just and equitable treatment. The rule
provides for the reckoning of the seniority of the seconded
officers by taking into account the length of their service
in the parent service, for which the date of attainment of
the rank of substantive Major/equivalent would furnish a
safe index. In our opinion, the said principle cannot be
said to be arbitrary, unjust or unreasonable and the
contention to contrary put forward by the appellant will,
therefore, stand rejected.
It is no doubt true that in the Navy, promotions to the
rank of Lt. Commander which is equivalent to that of Major
in the Army may be attained by an officer within a slightly
shorter period of service, namely, between 10 and 13 years
whereas, in the Army and the Air Force, the promotion to the
rank of Major/equivalent is given only on completion of 13
years of service. The slight disparity in the promotion
prospects between the Navy and the other two Services will
not, however, affect the reasonableness of the impugned rule
because it is impossible to achieve perfect arithmetical
precision in such matters where officers drawn from
different sources are to be integrated into one common cadre
and a rule for fixing their inter se seniority is
formulated. Further, it is seen from the counter-affidavits
of Respondents 1 to 3 that out of about 160 permanently
seconded officers of the R & D Organisation, the large
majority are from the Army, a considerable section of the
balance is from the Air Force and only less than 10 officers
have come from the Navy.

It is also relevant to notice in this context that it
is specifically provided in rule 4 of the impugned rule that
the intake of service officers to fill appointments in the R
& D Organisation will ordinarily be at Major/equivalent
level. Under rule 5, officers in higher ranks should be
considered for permanent secondment only in exceptional
cases and when such a course is adopted, it will be subject
to the condition that their seniority in the R & D cadre
will be fixed as stipulated in rule 16. The incorporation of
the aforesaid provisions which operate as a safeguard
against large scale induction of officers above the
substantive rank of Major/equivalent further fortifies the
conclusion arrived at by us that the adoption of the date of
substantive Major/equivalent as the criterion for fixing
inter se seniority in the R & D cadre was logically fair,
just and reasonable.

The appellant sought to rely strongly on Regulation 251
of the Naval Ceremonials, Conditions of Service and
Miscellaneous Regulations, 1954 and on the provisions
contained in the Order AO102/73. Regulation 251 provides
that "the relative seniority of officers of the Army, Navy
and Air Force, holding equivalent ranks, who serve together
in an Inter-service Organisation will be regulated as
follows." The latter Order is in the following terms:

"(a) Officers holding equivalent substantive rank (no
acting rank) will rank according to their
seniority in the substantive rank; and
(b) Officers holding acting rank will rank after
officers holding corresponding substantive rank
and in relation to each other, they will rank
according to their seniority in the substantive
rank."

In our opinion, neither the Regulation aforementioned
nor the Order, extracted above, has any application to the
present situation. The R & D Organisation is not an Inter-
service Organisation within the meaning of the expression as
used in the aforementioned Regulation and Order. It is
predominantly a civil organisation headed by a civilian
Director-General and having a total strength of about 24,000
employees. The large majority of the personnel working in
the R & D Organisation are civilian scientists who are more
than 3,000 in number, there are also about 160 service
officers permanently seconded to the R & D cadre and about
240 service officers taken on tenure basis. But, merely
because the R & D Organisation has on its staff serving
officers from the Army, Air Force and Navy, it cannot be
said to be an "Inter-service Organisation" governed by the
provisions of the aforesaid Regulation and Order. The topic
dealt with in the aforesaid Regulation and Order is only
"seniority" for purposes of command, precedence, discipline
etc., for working purposes to be allied in situations where
officers from more than one service operate together in one
group as in times of war for carrying out any particular
mission or task.

Another argument advanced by the appellant was that the
impugned rule cannot be upheld as valid inasmuch as it is in
conflict with paragraph 7 of the Government of India Office
Memorandum No. 9372 Estt(D), Cabinet Secretariat, Department
of Personnel, dated July 22, 1972, which is in the following
terms:

"7. Transferees:-(i) The relative seniority of
persons appointed by transfer to Central Services from
the subordinate offices of the Central Government or
other department shall be determined in accordance with
the order of their selection for such transfer."

We see no substance in this contention. The secondment of an
officer from his parent service to the R&D is not a transfer
to Central Service from a subordinate service or from
another department. Further, the impugned rule being
statutory in origin, its validity cannot be affected by
reason of any inconsistency with the provisions of a prior
executive order issued by the Central Government.
An allegation has been put forward by the appellant
that "the letter dated November 23, 1979 was a fraud on
rules and the Constitution, played by respondent no. 5 who
got the same issued to obtain personal gain by misusing his
official position, leading to colourable exercise of power
by the authority who actually issued that letter". To put it
mildly, we find that this is a reckless allegation devoid of
any factual basis. We have gone through the files leading up
to the issuance of the impugned rules and it is seen
therefrom that the matter has been processed by different
authorities at different stages and before the draft rules
were ultimately submitted to the Government of India for
approval, they had been considered and approved at a joint
meeting of the Chiefs of Staff also.

Equally untenable is the further plea advanced by the
appellant that since the R&D is an integrated cadre, there
cannot be any further classification of the officers
comprised therein on the basis of the length of service put
in by them in their respective parent services prior to
their permanent secondment in the R&D. As pointed out by
this Court in the decision in
R. S. Makashi v I. M. Menon

(supra), it is a just and wholesome principle commonly
applied in such situations where persons from different
sources are drafted to serve in a new service that their
pre-existing length of service in the parent department
should be respected and preserved by taking the same into
account in determining their ranking in the new service
cadre. Such a provision does not involve any discrimination
violative of
Article 16
of the Constitution.

Yet, another argument advanced by the appellant is that
the impugned rule not having been specifically declared to
be retrospective in operation; its provisions cannot be
applied to the appellant inasmuch as he had been inducted
into the R&D cadre on October 14, 1971 long prior to the
promulgation of the new rules. We have already found that,
as a matter of fact, the practice generally followed in the
R&D Organisation, even prior to the promulgation of the
impugned rules, was to reckon seniority with reference to
the date of attainment of the rank of substantive
Major/equivalent. Even otherwise, when a statutory rule
governing seniority is issued in respect of a service, the
said rule would govern the personnel in the service with
effect from the date of its promulgation and in so giving
effect to the rule in future, there is no element of
retroactivity involved. Of course, the rules will not
operate to deprive any person of promotions already earned
in the past, but, for purposes
of future promotions and seniority in the department, the
principles
laid down in
the impugned rule will necessarily
govern all the personnel alike. This contention of the
appellant has also to fail.

It was very strongly contended by the appellant that
the lateral induction of senior service officers holding
ranks above the substantive Major/equivalent level operates
to deprive the existing R&D personnel of their vested rights
to promotions within the cadre and hence, such inductions
must be held to be illegal and void. This contention ignores
the fact that rule 5 specifically provides that in
exceptional cases, officers above the rank of
Major/equivalent may be drafted into the R&D. The contention
of the appellant appears to us to be based on a fallacious
assumption that the R&D cadre exists for the sake of the
personnel working therein and not for effectuating the
purpose underlying its constitution which is of such vital
importance to the Nation's safety. The Organisation has been
formed with a view to have a highly specialised cadre of
technological and scientific experts to design and develop
military hardware etc., for the Armed Forces of the country
keeping abreast of the latest developments and advances in
the field of defence science. To effectuate this purpose,
such an Organisation by its very nature cannot remain static
or stagnant, but has to be constantly expanding
qualitatively and quantitatively. The personnel requirements
of the Organisation are, therefore, bound to change from
time to time and to meet such changing needs, the services
of qualified experts with specialised knowledge, skill and
experience will have to be enlisted from time to time. A
particular service officer in the Army, Air Force or Navy
may be the best person suited for being placed in charge of
a specialised job newly taken on hand, and in such a
situation the Organisation must have the freedom to indent
for the services of the officer concerned irrespective of
the rank that he may be holding in his parent service. We do
not find it possible to recognise any right in the officers
already working in the R&D to object to the lateral
induction of senior officers under such circumstances. The
contention put forward by the appellant that lateral
inductions into the R&D cadre constitute an illegal
deprivation of the vested rights of persons already working
therein and are consequently illegal and void, cannot,
therefore, be accepted.

The next point urged by the appellant is that since the
impugned rules disturb the previously fixed seniority, it is
quasi-judicial in nature and they ought to have been issued
only after
giving notice to all the affected persons. We have already
found that no alteration in the pre-existing policy relating
to determination of seniority in the R&D has been brought
about by the impugned rules. Quite apart from that, the
promulgation of a statutory rule governing seniority is not
a quasi-judicial function. It is the exercise of a
legislative power and in respect thereof the principles of
natural justice have no application at all.

Detailed facts pertaining to the history of service of
the various officers impleaded in the appeal as respondents
were referred to by the appellant during the course of his
arguments, and such of the respondents who appeared in
person countered those submissions by placing before us,
what, according to them, are the correct facts relating to
their service history. The challenge made by the appellant
against the ranking and seniority of the officers impleaded
as respondents is based solely on his contention that the
seniority principle enunciated in rule 16 is arbitrary,
illegal and ultra vires and that, in any event, the said
principle cannot be applied to him. The said contention has
been found by us to be untenable. Hence, it is not necessary
for us to refer to the details regarding the service history
of the appellant vis-a-vis those of the service officers who
have been impleaded as respondents in the appeal.

In the light of our foregoing discussion, it follows
that the High Court was perfectly right in upholding the
validity of the impugned rule and in rejecting the challenge
raised by the petitioner-appellant against the selections,
inductions and promotions made in the R&D Organisation on
the basis of the said rule.

In the course of his submissions before this Court, the
appellant put forward a grievance that, notwithstanding the
directions issued by the High Court in its judgment under
appeal, he has not been given any posting or assignment.
Counsel appearing on behalf of the Union of India and the
Scientific Adviser to the Defence Minister made available
for our perusal the files relating to the appellant's
posting to the DR&D Laboratory at Hyderabad and the
allotment of specific assignments therein to the appellant
from time to time. Having gone through the files, we have
come to the conclusion that there is no factual foundation
for the grievance put forward by the appellant, and hence no
directions from this Court are called for in regard to the
said matter. We are purposefully refraining from dwelling in
greater detail on this aspect lest any observations that we
may make should prejudicially affect the future
service prospects of the appellant. We, however, consider it
necessary to observe that the appellant would do well to rid
himself of the obsession that all his official superiors are
put to harass or persecute him and open up a new chapter of
devoting his high talents and skills for advancing the
effectiveness of the R&D Organisation.

The charges put forward by the appellant in the
Contempt Application (C.M.P. No. 5698 of 1981) and in C.M.P.
No. 69 of 1981 filed by the appellant under
Section 340(1)
,
Code of Criminal Procedure are bereft of merit and those
applications will accordingly stand dismissed.

In the result, we dismiss this appeal but direct the
parties to bear their respective costs.

N.V.K. Appeal dismissed.