S.B. Wad, J.
(1) The two petitions raise an important question of law for Personnel Administration in the Army. The Administration is primarily regulated by Army Act and statutory Army Rules, 1962. Section 18 of the Army Act incorporates the principle of Article 310 of the Constitution regarding tenure of services. The said section states that every person subject to this Act shall hold office during the pleasure of the President by virtue of Section 19 the said pleasure is exercised by the Central Government. Within this overriding exercise of pleasure by the President and the Central Government, Section 20 of the Army Act empowers the Chief of the Army Staff to dismiss or remove from the service any person subject to this Act other than an. Officer. We are here concerned with promotions to the post of Lt. Colonel and Brigadier. The question of law for the determination is whether the Chief of the Army Staff, who can in law, change the gradiation for promotion made by the Selection Board (on which presides) under Regulation 107 of the defense Services Regulation, 1962. In other words, the question is whether the Chief of the Army Staff can declare a person 'unfit' for promotion where the Selection Board has declared him 'fit'.
(2) The Army Act was passed in 1950. The statutory Rules were framed in 1962. Section 192 of the Army Act empowers Central Government to make regulations for all or any of the persons of the Army ranks. The defense Services Regulations were also framed in 1962. But they are not framed under Section 192 of the Army Act. They are non-statutory in character.
(3) The Seventeenth Report of the Committee on Subordinate Legislation of the Fifth Lok Sabba, 1975 has made the following observation on the question, of Eon-framing of the statutory Rules :
'103.In paragraph 34 of their Fifth Report presented to the House on the 5th May, 1959, the Committee on Subordinate Legislation had recommended that ordinarily rules should be framed under an Act and in no case this period should exceed six months. A study made by the Committee has revealed that the above recommendation of the Committee has not been complied with by the Ministries Departments of Government of India in a large number of cases. In case of 22 Acts, the rule-making power had not been exercised at all and in 43 cases, there had been a delay in the exercise of rule-making power. The delay ranges from over 6 months to over 12 years. The Committee are distressed over such cases.'
'108.The Committee restress their earlier recommendation that ordinarily rules should be framed under an Act as soon as possible after the commencement of the Act and in no case this period should exceed 6 months. In case, however, a Ministry Department finds that for any unavoidable reasons it is not possible for them to adhere to the prescribed time-limit in an exceptional case, they should at the expiration of 6 months from the commencement of the relevant Acts, explain the reasons to the Committee and seek a specific extension of time from them.'
(4) The question again came up for consideration by the same Committee of the Sixth Lok Sabha when The Navy (Discipline and Miscellaneous Provisions) Amendment Regulations, 1974 (S.R.C. 37 of 1974) and the Naval Ceremonial, Conditions of Service and Miscellaneous (Amendment) Regulations, 1974 (S.R.C. 113 of 1974), came for consideration of the Committee. The Committee brought to the notice of the defense Ministry that although for the Navy statutory Regulations were framed in 1964 and 1965, no such Statutory Regulations were framed for the Army for 22 years after the passing of the Army Act. The defense Ministry replied as follows :
'........ . . . ................after Independence, the various regulations for the Army, Navy and Air force which were in vogue before Independence, were adopted enbloc. These all are of a non-statutory nature. As and when necessity arose action was initiated to revise the Acts suitably to conform to the changed constitutional position and to formulate statutory Rules Regulations there under.'
(5) On further probing by the Committee the defense Ministry informed, 'the necessity was not felt at that time (1964-65). However, as soon as the law experts advised that the Army and Air force Regulations should, like the Navy be also given statutory status action was initiated to legislate a Unified Code which will cover all the provisions in the Army and Air force Acts. Until the Unified Code and Statutory Rules regula tions framed there under become available, the forces (Army and Air Force) will continue to be governed by the non-statutory rules/regulations which have withstood the test of time.'
(6) These reports of the Committee of the Lok Sabha provide an insight in the history and background of regulations with which we are concerned. They also demonstrate the anxiousness of the Ministry of defense to conform to constitutional and statutory norms. They also show that irrespective of the non-statutory character of the Regulations 'the forces (Army and Air-Force) will continue to be governed by the non-statutry rules regulations.' We. also know the difficulties of Army in framing Unified Code.
(7) Consistent with this stand, the respondents have based their case on Regulation 4 of the said Regulations. Or the other hand, the petitioners have staked their claim on Regulation 107. The petitioners have submitted that the Chief of the Army Staff has no legal competence of power to change the assessment of the Selection Board, while the respondents assert that they have such power under the general administrative powers of the Chief of Staff as the Principal Advisor in defense matters to the Government of India.
(8) Before going to these rival contentions let me dispose of another contention of the petitioners. This contention is that the change in the gradiation for promotion made by the Chief of Staff is arbitrary and also vocative of Article 14 and Article 16 of the Constitution. The principles of judicial review to check executive arbitrariness are now fully established by the judgment of the Constitution Bench of the Supreme Court in Ajay Hasia etc. versus Khalid Mujib Sahrawardi and others etc. : (1981)ILLJ103SC (1). Bhagwati, J. speaking for the Constitution Bench has shown the development of this principle through some earlier decisions of the Supreme Court, They arc E. P. Royappa v. State of Tamil Nadu, : (1974)ILLJ172SC , Maneka Gandhi versus Union of India, : 2SCR621 , Ramanna v. International Airport Authority, : (1979)IILLJ217SC . The control of the Executive actions by Parliament and Courts is basic a creed of our Constitution. I, however, feel that the degree of control should vary with the nature of the administrative action and special features of an administrative agency. The discretionary powers are more necessary in certain administrations than others, For example, a Junior Scientist must show the independent spirit of enquiry and is not expected to 'obey' the senior Scientist in the matters of discretion. In the judicial administration dissent is not only accepted but respected. But defense Administration cannot be worked on these principles. Discipline is the prime concern in the Army. I think the Court has power (similar to a case where priviledse of a non-production of document is claimed by Government) to examine whether the administrative action is in the field of 'discipline' or not. It should come to its conclusion on due assistance provided by the defense Administration in a given case. If it is not so, conformity to constitutional and statutory norms referred to by the Ministry of defense in its reply to the Parliamentary Committee mentioned above would be rendered nugatory. However, I am saved of this exercise in the present case because, according to me, the present is a case of lack of legal competence and not of mere exercise of discretion. I need not, thereforee, examine whether the impugned action is beyond the permissible limits.
(9) Under the Regulations all promotions to the post of Lt. Colonel and above are made on the basis of selection. The primary eligibility is, however, regulated by qualifying service. The qualifying, service for promotion to the post of Brigadier is 32 years. Regulation 4 reads :
(A)The supreme command of the Armed Forces (of which the Army is a component) is vested in the President of India.
(B)The Chief of the Army Staff is responsible to the President through the Central Government for the command, discipline, recruitment, training, organisation, administration and preparations for war of the Army.
Regulation 107 provides for a Selection Board for selection of all officers including Brigadier. Regulation 107 reads as follows :
'107.CONSTITUTION And Duties Of Selection BOARDS. Selection boards (for officers other than Army Medical Corps, Army Dental Corps and Military Nursing Service) are constituted as required under the order of the Chief of the Army Staff. Their composition and duties are given below :
(A)Composition Presiding Officer : Chief of the Army Staff or any other senior officer as directed by him according to the importance of the Selection Board. Members : As directed by the Chief of the Army Staff from time to time in accordance with the nature of their duties. Secretary : MS/Dy Ms (b) Frequency of meetings : As required by the Chief of the Army Staff. (c) Duties
(I)Assessment of officers for promotion to Lt Col and above.
(II)Grant of tenures.
(III)Considenation of cases of officers requesting trans-fer on compassionate grounds,
(IV)Any other matter which the Chief of the Army Staff may direct the board to consider.
(10) The Board makes an assessment and gradiation is indicated by alphabets 'A', 'B', 'D' and 'R'. They stand for different considerations for promotions as under : 'A' Fit for accelerated promotion to the next higher rank. 'B' Fit for promotion in his turn to the next higher rank. 'D' Defer consideration of the case till the next assessment by the Board. 'R' Unfit for promotion to the next higher rank at present.
(11) After the Board selects an Officer the promotions are automatically made as and when promotional post falls vacant. There is no further 'selection'.
(12) The petitioner pined the Army as a Commissioned Officer in 1954. He was promoted to the rank of Lt. Colonel and then Colonel. We became due for the present promotion in due course. A Selection Board was constituted which held its meeting in May, 1976. He was awarded 'B' (Fit for promotion in his own turn). Respondent No. 2, the Chief of Army Staff, however, converted the said gradiation of grade 'R' (unfit for promotion at present). He was again considered by the Selection Board in 1977 and 1979. Both the Selection Boards rated his merit as Grade 'R'. Under the Regulations fitness for promotion is normally judged three times. If an officer is not found fit he is permanently debarred from further promotions. 12A. The petitioner made a representation to the Army Chief of Staff on January 20, 1977 after the decision of the Selection. Board which met in 1976. On May 10, 1977 the Chief of Staff rejected his representation. The said communication further stated 'the Chief of the Army Staff is satisfied that the grade 'R' awarded to the officer as a result of the consideration of his case by No. 2 Selection Board in May, 1976, is correct and consistent with his records.' He made a second representation after the 1977 meeting of the Selection Board. The said representation was also rejected by Respondent No. 2. By his letter dated March 18, 1980 the Chief of Army Staff informed the petitioner that his case for promotion to the acting rank of Brigadier had been considered by the Appropriate Selection Beard on three occasions and he has not been awarded a Selection Grade. He was further informed that his name would not go before Selection Board in future in terms of the Army Headquarters letter No. 30386/NS(X), dated March 9, 1965. Thereafter, the petitioner preferred a statutory complaint under Section 27 of the. Army Act. Respondent No. 1 rejected the said statutory complaint. No reasons were stated.
(13) The petitioner contends that once the Selection Board gives grade 'S', the Chief of Army Staff has no legal power to convert it to Grade 'R'. In other words, the submission is, the Chief of Staff cannot declare an officer unfit for promotion after the Selection Board declares him fit. He complains that denial of promotion is a flagrant violation of Article 16 of the Constitution. He also submits that Regulation 107 has an overriding effect Ob any other administrative instructions. He further submits that Government of India's letter dated April 10, 1975 whereby the approval of the 'defense Ministry is necessary for all promotions, was not applicable to him. That ', letter applied to the promotions to the rank of Colonel and below. He then submits that the Government of India's letter dated July 30, 1979 also did not apply because that letter also concerns with promotion to the rank of Lt. Colonel. In any case, he submits, the said two letters cannot override the Regulations.
(14) The respondents justified their action relying mainly on Regulation 4. It is claimed that as an officer-in-charge army administration, the Chief of Staff has an implied and an inherent power to vary a recommendation. It is asserted that this power is exercised not only against an officer but also in his favor. It is then averred .that Selection Board is a mere advisory body. It is asserted that there is no' merit in the petitioner's complaint, as the petitioner was rejected thrice by different Boards.
(15) The supreme position and the mandatory character of these Regulations are emphasised in the Preface. The Preface reads :
'THESERegulations for the Army are issued under the authority of the Government of India and supersede the 'Regulations for the Army in India-Reprint 1945' and 'Instructions by His Excellancy the Commander in Chief Reprint 1945' General and other Officers Commanding arc responsible to ensure that these regulations are strictly observed and that any local instruction; or regimental orders that may be issued are guided by their spirit and intention. These regulations do not supersede or cancel any administrative and departmental regulations, orders and instructions which are currently in force and which govern certain special categories of officers and men or also contain special provisions of a purely adminis-trative nature and are thereforee not repugnant to the spirit of these regulations. Such orders and instructions are supplementary to and in amplification of these regulations. Ofiicers are expected to interpret and apply these regulations reasonably and with due regard to the interest of the services, bearing in mind that no attempt has been made to provide for necessary and self-evident executions, nor for such matters as should be dealt with by local authorities, Departmental and other regulations are based on, and take their, authority from these regulations. Should any variance arise between such regulations and Regulations for the Army, the authority of the latter is paramount.'
(16) Regulation 107 lays down the composition and duties of a Selection Board. On plain construction, the selection is to be made by a body and not by anindividual. The decision making contemplated by the said Regulation is collective decisioc-mak-ing. It appears that the intention is that the promotion of high Army officers of the rank of Lt. Colonel and above 'should be by the consensus of the top senior officers of the Army. A collec-tive decision would reduce the chacces of errors in the promotions to their minimum. The association of larger number of top senior officers perhaps has another advantage. The relevant record of officers is computarised and placed before the Board without names. To my mind there are other reasons also in hav-teg a collective decision. Under the Regulations, an. Officer gets only three chances for being considered for a promotion. That too after the completion of twenty three years of service. If an Officer cannot get a clearance within the three chances he is permanently debarred for promotion. If after twenty-three years of service in the Army, a Colonel is refused promotion arbitrarily or capriciously the consequences are too grave. It would be a serious set back to the morals of large number of senior officials. No Army can function efficiently if its senior officers are disgruntled. The Army is required to be in the permanent state of preparedness. It calls for high degree of initiative, drive imagination and technical capability. Grading an officer 'R' is to declare him' unfit for promotion. This is in the nature of a stigma or a slur on an officer who is rejected. There are lesser chances of such a stigma being cast on an officer, where the decision does not rest with one individual but with a body. If an individual takes a decision it is more likely to be subjected to the accusation of the decision being oblique than where a decision is made by group of senior officials. The nature of selection for prometion, under the Regulations, is also peculiar. The selection in Army is not made normally, after the vacancies are already known to Selection Board. While, this is a usual pattern in the promotions of Civil Servants. thereforee, the assessment of merit in civil service, is a comparative assessment, amongst the eligible officers. Suppose if promotion is to be made to two posts and six officers are eligible, the merit would be assessed in relative terms. . If anofficer is not selected in this process, it is not an assertion on him. Non-selection only means that the two people who are selected are relatively more meritorious, than the four others. But the selection for Army promotions is normally made in anticipation of the promotional ^posts/falling vacant. Fitness of an officer is done separately for each officer in isolation. This is absolute assessment and not a relative assessment. thereforee, where an officer is declared 'unfit' for promotion it is a definite separation. It will lower down the officers in the eyes of the junior ranks. A collective decision by a Selection Board is advisable in the interest of Army itself. At least, this appears to be the spirit of the various provisions of the defense Service Regulations.
(17) Is there any provision in the Regulations whereby a Chief of Staff can adversely change the gradiation awarded by the Selection Board Plainly, none. The respondents claim the power by implication. An express provision always prevails over an implied power, even assuming that such an implication is permissible. The question that can be legitimately asked is this while framing the Regulations why is it that the Government did hot confer such an express power on the Chief of Staff If there is any administrative justification for such a power, and if ft was really a long standing practice in the Army (as claimed by the respondents) the said power would have been expressly spelt out in the Regulations. The Government itself has given a paramount position of a supreme norm to the Regulations. It cannot also be said that the Government has assumed existence of such a power in the Chief of Staff or had inadvertently. omitted to state it in express terms. Regulation 109 illustrates the point. Where such a power of veto was found administratively necessary, anexpress provision is made. If an officer is declared permanently unfit for service by Medical Board, D.G.S. (Army) has power to accept the findings of the Medical Board or not to accept it. The Medical Board discharges purely technical function and even then the Diretor of Medial Servies has been entrusted with a discretion to accept the findings of the Medical Board or not. The provisions of Regulation 109, might to sorne extent suggest that the findings of the Medical Board are advisory in nature. Absence of such an express power in the Chief of Army Staff inmatters of promotion, is an indication that the function of the Selection Board is not merely advisory. No provision of the Regulations is brought to my notice by the respondents, to show that Director of Medical Services presides over a Medical Board to assess physical fitness of an officer. I presume that the D.G.S. does not participate: in the proceedings of the Medical Board. In contract the Chief of Army Staff is one of the members of the Selection Board. May, he is the presiding officer of the Selection Board.
(18) The Chief of Staff, himself directly, or through his representative participates in the deliberations and decision making by the Selection Board. As a Chief of Staff he contributes his experience, superior knowledge of the conditions in Army, and the wider considerations affecting the entire Army. The other senior members of the Board take into consideration this contribution of the Chief of Staff. They collectively decide whether to acceptor modify or reject the point of view of the Chief of Staff. Thereafter, the Board takes a collectiva decision. In the nature of things, thereforee, it is difficult to imagine why an additional over-riding power is administratively necessary. This is perhaps the control of the Chief of Staff. Regulation 26 does not speak of the functions or duties of the Chief of Staff in relation to promotions of higher ranks. Regulation 26'(e) doss not help the respondents. If at all it helps the petitioner be. cause it makes it clear that the Selection Boards judge the fitness of art officers to hold higher ranks and not the Chief :of Staff.
(19) That the controversy regarding the role of the Chief of Staff in this regard was raised by the defense Ministry itself within two years after the defense Services Regulations were published in the present form on 6th December, 1962. In the concocted writ petition (Civil Writ Petition No. 1196178) the respondents have produced correspondence between the defense Ministry and the Chief of Staff directly raising the present ques-tion. The Ministry of defense by their later letter dialed 20-6-1964 enquired from the Chief of Staff under what instructions (administrative) the Chief of the Staff reviews the gradiations indicated by a Selection Board. The Chief of Staff, on July 13, 1964, informed the defense Ministry that there, were no administrative instructions empowering the Chief of Staff to do so that the same is done under an overall authority of the Chief of Staff as the Principal Advisor to the defense Minister on all matters pertraining to the Army. The further clarified that the review is done only in border line cases, where the Board is divided in their assessment and the gradiation represents a bare majority decision.
(20) It is an admitted fact that the defense Regulations are not statutory Regulations. It. is well established that where the administrative instructions arc of general nature (similar to statutory Rules and Regulations) and where they are likely to affect the conditions of service, a breach of which would result into violation of Article 16 of the Constitution, High Court, can in its writ Jurisdiction give a relief in relation to the said administrative instructions. In Union of India v. K. P. Joseph. 1973 (1) E.L.R. 910 the Supreme Court has held 'To say that an adminisration order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties.' The Supreme Court further stated 'We should not understand as laying down any general proposition on this question.' In that case an Office Memorandum for certain benefits to ex-Military per-stonnelon re-employment, on the bagis of their length of actual military, service, was held to confer a right relating to conditions of service, which could be enforced by court of law. The defense Services Regulations are issued under the authority of the Government of India. An over-riding and paramount status in conferred on these Regulations by Government of India. Regulation 107 recognise a right of eligibility to a promotion as also denial of such a right permanently for future promotions. These are general instructions effecting all the officers similarly situate and form the conditions of service of such officers protected by Article 16 of the Constitution. They can, thereforee, be enfor-ced by a Writ Petition.
(21) It is well settled that administrative instructions can be varied or changed by another set of administrative instructions. Admittedly, there are no administrative .instructions under which the Chief of Staff claims the said power of review. thereforee, Regulation 107 must prevail. The relevant file on which the decision is taken by the Chief of Staff was made available to me turn inspection. The cote concerning the petitioner is read by me. It only gives the interpretation of the Chief staff regarding the past confidential Reports. It does not state that the board was evenly divided on the assesmesnt or that the final decision was arrived at by a bare majcrity. The review in the present case cannot even be justified in terms of the letter of the Chief of Staff dated 13th July, 1964 in reply to the defense Ministry's letter dated 20th June, 1964. Thus even assuming that Regulation 4 impowers the Chief of Staff in the marginal cases indicated above, the exercise of the power in the present case was without any justification.
(22) I am not impressed by the respondents' contention that the petitioner was found unfit by three successive Boards. Where the Chief of Staff changes the gradiation from 'fit' to 'unfit', in the context of administrative realities, particularly in Army, it is very difficult to imagine that the subsequent Boards would take a decision different from that of the Chief of Staff. If the Chief, of Staff would have convert the 'present fitness' into 'deferred consideration' (that is, from 'B' to 'D') and the subsequent Boards had assessed the petitioner to grade 'R', it could have been possibly said. that the decision had been independently reached. It also cannot be overlooked that the Chief of Staff or his representative presided on the meetings of two subsequent Boards also.
(23) The Government of India has accepted the gradatien of the Chief of Staff. It should normally be so. The President of India is the appointing authority, and, thereforee, the final authority for promotions. The counter-affidavit by Union of India and the Chief of Staff is a common affidavit. The Union of India do not state that any independent decision, in this regard, was taken by them. In fact, it is asserted in the counter affidavit
'the petitioner was graded 'B' by the Selection Board at the initial consideration of his case in May, 1976, but on the recommendation of Chief of Staff, this grading was revised to 'B' by the competent authority, that is the Government. At the subsequent reviews of his case in September October, 1977 and September 1979 he was graded 'R' (unfit for promotion) by the Selection Board which was approved by the Government.'
This is contrary to the letter of Chief of Staff dated May 10, 1977. It was stated there that the Board graded the officer 'R' and the same was correct and consistent with his records. The truth is that the Board awarded Grade 'B'. the Chief of Staff converted it to Grade 'R' and the Government accepted the gradiation by Chief of Staff. Noting by the Chief of Staff on the file establishes this beyond doubt.
(24) For the reasons stated above the gradiation 'R' (unfit for promotion) given by the Chief of Staff, changing the gradiation 'B' awarded by the Selection Beard in its meeting on 28th September 1976 and gradiation 'R' by two subsequent Boards on 1st October, 1977 and September. 1979, are illegal and set aside. Consequent orders of the Army Headquarters dated March 18, 1980, the order of the Government of India rejecting the statutory complaint under section 27 of the Act [as communicated by the Director (B & C) on September 8, 1980] and the letter of. the defense Ministry dated August 22, 1980 rejecting the complaint of the petitioner against his supersession, arc also quashed and set aside. The Union of India shall consider the question of I he promotion of the petitioner to the rank of Brigadier, afresh on the original recommendation of the Selection Board in May, 1976 and without the changes made by the Chief of Army Staff.
(25) The Union of India, at one time, itself felt that in absence of definite administative instructions, the source of review Power should be clarified by the Chief of Staff. The petitioner thought that the clarification of the Chief of Staff was not in accordance with law. The position of law as today is that the power claimed by the Chief of Staff is to Regulation 107. If, however, the Union of India feels that such a review power, as a policy, is necessary, the court of law will not enter into the wisdom of that policy. The policy will, however, have to be effected by an express provision in the Regulation. Since these aspects of the Regolations affect the conditions of service of the entire cadre and ranks in the Army, the Union of India should consider whether it would not be advisable to regulate them under Section 192 of the Army Act through statutory Regulations, at their earliest.
(26) For the reasons stated above the writ petition is allowed with costs. The Rule is made absolute.