UNION OF INDIA AND ORS. versus AVTAR SINGH AND ORS.

Citation: [2001] SUPP. 2 S.C.R. 303 · Decided: 29-08-2001 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed

Judgment (excerpt)

UNION OF INDIA AND ORS. 
A 
v. 
AVTAR SINGH AND ORS. 
AUGUST 29, 2001 
[S. RAJENDRA BABU AND SHIVARAJ V. PATIL, JJ.] 
B 
Service Law : 
Armed Forces-Promotion from Brigadier to Major General-Adverse 
remarks in annual confidential reports-Officer eligible but not promoted due C 
to non-availability of vacancies-Adverse remarks sustained by High Court 
since respondent was empanelled for promotion-Direction by High Court to 
promote respondent by creating a post-Maintainability of-Held, expunging 
of adverse remarks rightly rejected by High Court-No interference called 
for-Vacancy position in the rank of Major General not properly understood D 
by High Court-Hence, its direction regarding promotion not sustainable. 
Respondent 2 gave certain adverse remarks in the annual confidential 
report of Respondent l, a Brigadier in the Army, for the period between 
September 1990 to August 1991. As a result of the said remarks, he was not 
considered for promotion to the rank of Major General. On appeal, the Chief E 
of Army Staff expunged the adverse entries from the confidential report. 
Subsequently, respondent 2 gave another confidential report with adverse 
remarks for the period between September 1991 to June 1992 and on appeal, 
the Chief of Army Staff expunged only certain adverse remarks from the 
confidential report. Respondent l, being eligible, was selected for the 
promotion to rank of Major General by the Selection Board of the Army in F 
April 1995. However, he was not actually promoted to the rank as there were 
no vacancies. He filed a Writ Petition before High Court in April 1995 on 
two grounds-(l) for removal of adverse entries made in the confidential 
report of the latter period and (2) for promotion to the rank of Major General 
as he was due to retire as Brigadier in December 1995. The High Court did G 
not consider fit to expunge the adverse entries in the confidential report of 
Respondent l since he was already empanelled for promotion to the rank of 
Major General. However, the High Court, after examining various statements 
and records relating to the number of vacancies in the rank of Major General 
during the relevant period, came to a finding that due to misinterpretation 
303 
H 
304 
SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R. 
A of Government communications relating to allocation of vacancies, though 
there was one vacancy in the rank available since December 1994, Respondent 
I was not promoted solely with the object of depriving him the promotion. 
Thus the High Court directed the appellants to promote Respondent 1 to the 
rank of Major General against any available vacancy in the Army or to create 
a vacancy if none exists and to keep him in service until he is actually promoted 
B as Major General. Hence the appeal by Union of India. Special Leave Petition 
has been filed by Respondent 1. 
Allowing the appeal and dismissing the Special Leave Petition, the Court 
HELD: I.I. The High Court has not understood the vacancy position 
C in the Army correctly and therefore the directions given by the High Court 
for promoting Respondent 1 cannot be sustained. [309-D) 
1.2. With regard to claim by Respondent 1 for removal of adverse 
entries made in the confidential reports, the High Court rightly rejected the 
same as the said adverse entries did not affect Respondent 1 's promotion 
D chances. Hence no interference is called for. [309-E) 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7698 of 
1996. 
From the Judgment and Order dated 19.4.96 of the Jammu & Kashmir 
E High Court in W.P. No. 1005 of 1995. 
F 
G 
WITH 
Special Leave Petition (C) No. 20345/1996. 
Mukul Rohtagi, Additional Solicitor General, W.A. Qadri R.N. Verma, 
C.Radhakrishna, B.V. Bairam Das and Anil Katiyar for the appellants and 
Respondent in SLP (C) No. 20345/96. 
K.V. Vishwanathan, Atul Kumar Sinha and K.V. Venkataraman, for 
the Respondents in C.A. No. 7698/96 and Petitioner in SLP(C) No. 20345/ 
96. 
The Judgment of the Court was delivered by 
RAJENDRA BABU, J. Respondent No. I was holding a rank of 
Brigadier in Indian Army having been commissioned in the service on June 
13, 1963 in the Regiment of Artillery. In the 1965 Indo-Pak war, he was 
fighting in a theatre on the western front in which he sustained serious injuries 
H to various parts of his body and ultimately his right arm and the left index 
... 
-
U.0.1. v. A VT AR SINGH [RAJENDRA BABU, J.] 
305 
finger had to be amputated later on. By international medica

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