New Delhi: The Supreme Court on Monday upheld the Indian Army’s ‘command and exit’ policy giving priority to infantry and artillery for promotion as colonel, as it asked the government to create another 141 colonel posts for the combat support arms air defence artillery, engineers and signal corps.
“There is nothing perverse, unreasonable or unfair about the policy that the age of officers serving in combat arms and combat arms support will be lowered by creating additional vacancies to be allotted on Command Exit Model,” said the bench of Chief Justice T.S. Thakur and Justice Kurian Joseph.
Upholding the policy, the court said the Centre “shall create 141 additional posts of colonel to be allocated to ‘Combat Support’ stream for being utilised by appointing officers who are eligible for promotions against the same as in the year 2009 over a period of 5 years till 2014”.
The court also set aside the Armed Forces Tribunal’s (AFT) March 2, 2015 decision quashing the January 21, 2009 order. The Centre had moved the apex court challenging the ATF order.
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Rejecting the argument of “legitimate expectation” advanced by some of the officers from the Service Stream of the army who had challenged the “command and exit” policy, Chief Justice Thakur said there was no “real basis” to contend that “any additional vacancies created to lower age profile of commanding officers serving in Combat Arms or Combat Arms Support shall also benefit those serving in the Service Streams of the Army”.
“There is also no basis for the contention that a legitimate expectation arose in the minds of the respondents (officers from service stream) that they shall be promoted to the next rank simultaneously with the officers serving in Combat Arms or Combat Arms Support,” the court said.
That apart, the court said, the “legitimate expectation as an argument cannot prevail over a policy introduced by the government which does not suffer from any perversity, unfairness or unreasonableness or which does not violate any fundamental or other enforceable rights vested” in the officers from service stream.
Holding that the ‘command and exit’ policy that does not suffer from any ‘perversity, unreasonableness or unfairness’ and which is otherwise “laudable” and intended to render the “Indian Army more efficient and better equipped for combat situations”, the court said it could not “unsettle or undo” it merely on the grounds of legitimate expectations.
Having rejected the argument of “legitimate expectation”, the court said: “It also is not a case where no reasonable person could have taken the decision which the government have taken as regards the need for lowering the age profile of the commanding officers or their exit after two-and-half to three years to occupy positions which the government have created for the officers to occupy till they are considered for promotion to the next higher rank”.
The court set aside the order of the AFT which had, while quashing the January 2009 ‘command and exit’ policy, held that it was weighed in favour of infantry, mechanised infantry and the armoured corps in combat area.
The policy was brought to have a younger profile of the command structure in the field as it was felt that during the Kargil war, the response of the army was ‘sluggish’.
The thrust of the ‘command and exit’ policy, which earmarked more posts of colonel for the armed wing of the army — infantry, mechanised infantry, armoured corps and artillery — so that they may have a commanding officer at the age of 37 years and exiting after two-and-half-year tenure with no repeat appointment.
Under this policy, 148 posts of colonel were created — 750 in 2004 — which according to the government were erroneously distributed by the army headquarters across the army on pro-rata basis.
However, in 2009, 734 posts of colonel under the ‘command and exit’ policy were earmarked exclusively for the armed wing of the army.
The AFT by its order said the government would create supernumerary posts to accommodate Lt. Col. P.K. Choudhary and other officers, who were denied promotion on the basis of the ‘command and exit’ policy.