Supreme Court Judgment on retaining armies who are injured in the war and become disable to fight with the able bodied armies.

Union Of India v. Avtar Singh
Date: 29.08.2001
Facts: Respondent was holding a rank of Brigadier in Indian Army and in the 1965 Indo-Pak war, he was fighting in a theatre on the western front in which he sustained serious injuries to various parts of his body and ultimately his right arm and the left index finger had to be amputated later on. According to the international medical standards, he was classified as having 90% disability. But on account of the policy adopted by the Government of India, all officers who had sustained such injuries or battle casualty officer should be retained in service in order to avoid demoralisation by sending out young disabled officers from service. But such officers had to compete with able-bodies officers to get their future promotions notwithstanding of the injuries sustained by them. Respondent No. 1 made adverse comments on the non-approval of the promotion to the rank of Major General in the Selection Board to be held in October 1994 was set aside on appeal and for another period from September 1991 to June 1992, the Chief of the Army Staff granted a limited relief of expunging of those entries which had 5-point awarded in the relevant column by the intimating officer. In furtherance of it the respondent filed a writ petition challenging the adverse entries made in the Acts for the latter period.
Contentions: Respondent No. 1 contended that in the selection board held in April 1995, he was empanelled but he was not actually or physically promoted to the rank of Major General and he was due to retire on December 31, 1995 in the rank of Brigadier. In other words, inasmuch as he was been approved for promotion to the rank of Major General in the second selection board along with another officer who picked up the rank of Major General by the time the writ petition was filed, respondent No. 1 was not able to do so as no vacancy of Major General was available in the AOC and, therefore, he had to retire as a Brigadier on December 31, 1995 without availing the benefits and consequences of his approval for promotion as Major General. The resultant position is that respondent No. 1 continued to be in service even though in the rank of Brigadier despite having reached the age of superannuation in that rank on December 31, 1995.
Conclusion: The resultant position is that respondent No. 1 continued to be in service even though in the rank of Brigadier despite having reached the age of superannuation in that rank on December 31, 1995 on which notice has been issued. In view of the Supreme Court it is rightly noticed by the High Court that he having been held to be fit for promotion to the rank of Major General, it is not appropriate to open up the old wounds to examine as to how they occurred as the same would also cause disturbance to any other events that have taken place. Supreme Court affirmed with the views of the High Court that the promotion of respondent No. 1 as Major General would depend on the availability of the vacancies before December 31, 1995 when he was to retire on superannuation in the rank of Brigadier. Now the entire case turns upon the question whether any vacancy was available as on the date he retired as Brigadier? But despite such affirmation made by the Supreme Court from High Court, the Supreme Court noticed one mistake of High Court that in the matter of calculation added a vacancy which was not available and, therefore, gave a direction to the appellants to promote respondent No. 1 to the rank of Major General against any available vacancy in the Army notwithstanding the fact that he belongs to AOC or to create a vacancy if none exists and to keep in service until he is promoted as Major General and actually picks up the rank.
Decision: This appeal is allowed respectively.
Submitted by:-SHUBHANGI GUPTA.