judgement:
ivil Appeal No. 2574 of 199 1.
From the Judgment and Order dated 30.4.1991 of the Delhi High Court in C.W.P. No. 812 of 1991.
Altar Ahmed, Additional Solicitor General, V.C. Mahajan, A.K. Srivastava, S.N. TerdaI and Vijay Kumar Verma for the Appellant.
P.C. Jain, Ashim Vachher and Ms. Bharti Anand for the Respondent.
The Judgment of the Court was delivered by 353 YOGESHWAR DAYAL, J.
This appeal by Special Leave is directed against the judgment of the High Court of Delhi dated 30th April, 199 1 on behalf of the Union of India and the Chief of the Army Staff against Major General Dayanand Khurana.
By the impugned judgment the Division Bench of the High Court directed the issue of writ of mandamus modifying an order dated 26th October, 1990 and thereby directing the appellants herein to treat Major General D.N. Khurana, who was approved for promotion to the acting rank of Lt. General for 'Staff Only ' Stream, senior to all the other Major Generals who were promoted to the acting rank of Lt. General in the 'Command and Staff ' Stream, and also issued further writ of mandamus directing the appellants to expeditiously promote the respondent herein, ahead of the 1957 batch, to a Staff post which has occurred between 26th October, 1990 and 31st May, 1991 keeping in view the existing policy of the Government and in the light of the observations made in the judgment.
The brief facts which give rise to the filing of the writ petition in the High Court and the appeal before us may be noticed.
The respondent was commissioned in the army in the year 1954, therefore, his original seniority reckons from the year 1954.
As per the policy and procedure adopted in this connection every officer is given three chances for consid eration for promotion.
If an officer is not approved for promotion during the first consideration, he loses one year of seniority and slides into the batch of the next year.
In the eventuality of his not being approved for promotion even in the second consideration, he loses one more year of seniority and slides further into the next batch.
Thereaf ter, the officer is considered for the last time for promo tion in the third chance and if he is not approved even in the third chance, he is not given any further consideration and is finally regarded as a superseded officer.
In pursu ance of this policy, the respondent herein while he was acting as a Brigadier was first considered for promotion to the rank of Major General in the year 1983 but was not approved, and, therefore, he became part of 1955 batch instead of 1954 batch.
Thereafter he was superseded again and ultimately got selected as a Major General in the 1956 batch.
As per the existing policy at that time his seniority in the rank of Major General was re fixed alongwith the officers of 1956 batch as per the following sequence of selection: 354 1956 Batch: (a) Final review case of 1954 batch.
(b) First review case of 1955 batch.
(c) Fresh case of 1956 batch.
The respondent while working as Major General was con sidered for promotion to the rank of Lt. General in July, 1989 but was rejected by the Government.
He thus once again lost seniority of 1956 batch.
He was then considered as a first review case in July, 1990 alongwith 1957 batch and was approved for selection for 'Staff Only ' Stream in the fol lowing sequence of consideration: "(a) Final review case of 1955 batch.
(b) First review case of 1956 batch.
(c) Fresh case of 1957 batch.
Since the respondent was approved only for 'Staff Only ' Stream he was placed below all other Major Generals who were approved for selection in the Stream of 'Command and Staff.
The respondent was aggrieved by his placement below the officers who were approved for 'Command and Staff ' Stream, though he had been approved only for 'Staff Only ' Stream.
On 31st May, 1986 the Government of India approved, in principle, the 'Two Stream ' concept of career management of Army Officers of the ranks of Major General and Lt. General subject to the following stipulations: "(a) The modalities for implementation of 'Two Stream ' concept will be worked out by the Army Headquarters and submitted to Government for information.
This will include identification of appointments to be manned by officers belonging to the 'Staff Only ' Stream.
(b) The criteria and the QRs formulated by the Army HQrs and submitted to Government vide Army HQrs Note No. PC 01102/ MS 9B dated 7th February, 1986 will be applied for screening officers for promotion to the two streams.
It will be ensured that 355 the QRs prescribed for promotion to the 'Command and Staff stream are stricter than those prescribed for the 'Staff Only ' stream.
(c) A comprehensive review of the working of the concept will be done in 1987 and such amendments, as may be necessary, will be put up to Government for approval.
This approval of the Government was preceded by the approval of the Prime Minister on 26th May, 1986.
The reason for adoption of 'Two Stream Concept ' of career management for Army Officers is that the Army is highly command orient ed with the system itself providing a distinct edge for proven command performance.
This orientation, especially in higher ranks, has helped to maintain the fighting efficiency of the Army and has stood to the test of time, besides being in the over all interests of the Service and the Nation.
In order to be able to develop command potential, it was thought necessary that officers are allowed to hold command appointments for adequate periods.
Thereafter the modalities for above 'Two Stream Concept ' were worked out by the Army Headquarters and an office order was issued by Military Secretary 's Branch, Army Headquar ters, dated 9th September, 1986.
The relevant paragraphs are 1 to 3, 5 and 9 which read as under: "1.
The upgradations in senior ranks in the Cadre Reviews have been sanctioned only in the Staff and ERE appointments.
This has caused serious imbalances in the existing ratio between the Command, Staff and ERE appoint ments.
Whereas, earlier senior officers could be given a proper command tenure before their turn came up for the next promotion, it is not now feasible in all cases after the upgrada tions are fully implemented.
Ours is a Command oriented Army and successful performance in a command must continue to be mandatory for promotion to higher ranks.
It is not desirable to truncate command tenures, if we have to maintain our fighting efficiency.
It is to this and, that it has been decided to adopt the 'Two Stream Concept ' for officers of the rank of Brig.
and above.
The details of the concept are given in the succeeding paras.
356 Concept 3.
The concept envisages that officers on promotion to Maj.
General and Lt. General will be bifurcated into the 'Command and Staff ' and the 'Staff Only ' streams as per details given below: (a) 'Command and Staff Stream.
Very high calibre officers based on their merit will be promoted to this Stream.
They will hold com mand appointments in the Higher rank and thereafter be given exposure to Staff and ERE appointments as necessary.
They will be eligi ble for further promotion as per the existing criteria.
(b) 'Staff Only ' Stream.
Officers promot ed to this Stream will hold only staff ap pointments, in the higher rank and will pro ceed on superannuation thereafter.
These officers will not be eligible for further promotion.
. . . . .
Applicability 5.
The 'Two Stream ' concept generally will be applicable to the officers of the General Cadre.
However, non General Cadre officers will also be considered for the 'Staff Only ' Stream in the rank of Lt. General.
6 8 . . . . .
Inter se Seniority 9.
Officers selected for the 'Command and Staff Stream, will be promoted first, be it on a Command or Staff appointment.
Thereafter, officer of the same batch who are selected for the 'Staff Only ' Stream will be promoted.
Therefore, for the purpose of seniority, officers of the 'Staff Only ' Stream will be Junior to officers of the 'Command and Staff Stream.
After placing the officers of the 'Staff Only ' Stream in suitable appointments, review selectees of the 'Command and Staff Stream of the next batch will be promoted.
Again in adopting the methodology for implementation of the 357 'Two Stream Concept ' the following note dated 22nd Septem ber, 1986 was put up by the Military Secretary to the Chief of the Army Staff.
This note pertains to the sequence of promotion in respect of officers who are approved for promotion under the Two Stream concept.
The existing sequence of promo tion is laid down vide our policy letter No. 38360/MS 5 B dt. 29 May 84, placed opposite.
With our command orientation, viable tenures in command assignment are mandatory to increase the fighting efficiency of the Army.
It is, to this end that the Two Stream Concept has been adopted.
With the introduction of the two stream concept in the ranks of Maj. Generals and Lt. Generals, the sequence of promotion into the streams needs to be formalised.
In so doing, the main reasons for the introduction of the two stream concept, have to be the guiding principle.
The two stream concept was intro duced to promote younger high calibre officers early, so that they get viable tenures in command.
It is also well known that by and large an officer who is approved as a fresh case is of a higher calibre as compared to the ones approved for promotion as review cases.
Thus it would be logical to promote the former category of officers approved in the 'Command and Staff stream, earlier than the latter category of officers approved in the 'Staff only ' stream.
Two options are available for fixing the sequence of promotion under the 'Stream Concept '.
These are given in subse quent paras with the help of the following illustrations (a) Batches considered at the Screening Board.
(i) Final Review 1956 (ii) First Review 1957 358 (iii) Fresh Cases 1958.
(b) Officers Approved for Promotion (i) Final Review 1956 (aa) Command and Staff Stream One (ab) Staff only Stream One (ii) First Review 1957 (aa) Command and Staff Stream One (ab) Staff Only Stream One (iii) Fresh Cases 1958 (aa) Command and Staff ten Stream (ab) Staff only stream five 7.
Whatever sequence is followed, the IC number seniority within that stream of that batch needs to be maintained.
The sequence of promotion could follow the undermentioned op tions: (a) Option A.
To follow the existing sequence of promotion: (i) Final review Command and Staff stream 1956 batch.
(ii) Final review Staff only stream 1956 batch.
(iii) First review Command and Staff stream 1957 batch.
(iv) First review Staff only stream 1957 batch.
(v) Fresh Command and Staff stream 1958 batch.
359 (vi) Fresh Staff only stream 1958 batch.
(b) Option B.
The sequence of promotion to be: (i) Final review Command and Staff stream 1956 batch.
(ii) First review Command and Staff stream 1957 batch.
(iii) Fresh Command and Staff stream 1958 batch.
(iv) Final review Staff only stream 1956 batch.
(v) First review Staff only stream 1957 batch.
(vi) Fresh Staff only stream 1958 batch.
(The officers of 1959 batch, approved even in the Command and Staff stream, will be promoted after absorbing the Fresh 'Staff Only ' stream of 1958 batch.) 8.
The advantages of Option A will be the disadvantages of Option B. The advantages and disadvantages of Option A are discussed below: (a) Advantages.
(i) Those approved for promotion as review cases, will still get their promotion and also have a reasonably viable tenure.
The chances of any proved ' officer retiring without get ting his promotion, are remote.
(ii) The existence of dissatisfied officers among those approved for promotion, is unlike ly.
(b) Disadvantages.
(i) The basic principle behind the intro duction of the two stream concept gets defeat ed.
(ii) Tenure of Command.
Delay in the promo 360 tion of fresh cases of the Command and Staff stream, will give them lesser tenure, possibly affecting their chances of further promotion, thus having an overall detrimental effect.
(iii) The principle of promoting really high calibre and the best officers early, is vio lated.
Analysis.
It would be noticed that the difference in the two options are minimal.
In the case of Option A, the existing sequence of promotion has been maintained in that officers are being promoted as per their inter se seniority, irrespective of the stream.
In the case of Option B, whereas the existing se quence of promotion is still being maintained, but promotion is being affected in accordance with the stream in which an officer is being promoted.
Since officers of the 'Command and Staff are of higher calibre, promoting them over the 'Staff Only ' stream is logical and has been accepted in principle.
Hence adoption of Option B, is recommended.
For approval please.
Once ap proved, Ministry of Defence will be informed accordingly.
Sd/ (A.K. Chatterjee) Lt.
Genl Sena Sachiv/ Military Secretary 22 Sep. 86 COAS through VCOAS The above note of the Military Secretary was considered by the Vice Chief of Army Staff and vide note dated 24th September, 1986 in which he has observed as under: "1.
As I see it, in the ultimate, promotions in 'Command 361 and Staff ' stream and 'Staff stream should be independent of each other based on identified slots in each stream.
The differential in terms of time between the two may be as much as two to three years, the exact period vary ing from time to time.
It is only then that we would be able to have viable tenures for 'Command and Staff ' Stream officers, both in the rank of Maj. Gen. and Lt. Gen.
Thus, our aim should be to promote a 'Command and Staff ' stream officer to Maj. Gen. at the age of 48 years or so and to Lt. Gen. at the age of 52 to 53 years.
On the other hand, it would be acceptable if a staff stream officer is pro moted to Maj.
Gen. at the age of 51 years or so and to Lt. Gen. at the, age of 54 or 55 years.
In the light of the above, the propos al putforward by the MS cannot be a long term: proposal.
However, we have perhaps no option but to adopt this for the short term, as the ages at which the officers are currently being approved for higher promotions are compara tively higher, and there would be imbalances if we increase the differential suddenly.
MS proposal must, therefore, be seen as a valid one for the transitionary phase only.
To that extent, I am in agreement with his recom mendation.
Sd/ 24 Sep. 86 COAS The note of the Military Secretary alongwith the note of the Vice Chief of Army Staff was put up before the Chief of Army Staff, who, on 8th October, 1986 approved the note of the Vice Chief of Army Staff.
The file was again put up to JDMS through the Military Secretary and the matter was discussed.
Paragraph 7(a) of the note of the Military Secretary dated 22nd September, 1986 mentions Option 'A ' which was the existing sequence of promotion prior to September, 1986 and recommended in subparagraph (b) of paragraph 7 the sequence of promotion which was to be followed.
In paragraph 8 the Military Secretary discussed the advantages and disadvan tages of Option 'A ' and Option 'B '.
In paragraph 10 he recommended adoption of Option 'B '.
He also mentioned in his note that if the note is approved, the Ministry of Defence will be informed accordingly.
362 It is clear that the Vice Chief of Army Staff adopted the proposal as recommended in the note of Military Secre tary in paragraph 10 which was again agreed to by the Chief of Army Staff.
The matter was again sent to the Military Secretary who discussed it with the officers of Ministry of Defence.
It is clear from Option 'B ', which was adopted for working out the 'Two Stream Concept ', that the seniority will first be given to the Command and Staff ' Stream selected from any of the earlier batches and after the 'Command and Staff ' stream has been accorded the seniority, the three streams of 'Staff Only ', mention at Sl.
(iv), (v) and (vi) will be given seniority.
It is also clear that the final review, the first review or fresh stream of 'Staff Only ' rank below the similar three streams of 'Command and Staff ' trained.
The substance of this note is again conveyed by the Military Secretary in its communication dated 1st June, 1987 by way of further amplifying the methodology for implementa tion of the 'Two Stream Concept '.
The letter reads: "COMMAND AND STAFF STREAM 1.
Further to this Headquarters letter No. 00476/MS 9B dated 09 Sep 86. 2.
Certain doubts have been expressed by officers regarding the 'Two Stream Concept '.
This letter seeks to clarify the important issues with particular reference to: (a) Necessity of the Stream Concept.
(b) Ages of superannuation.
(c) Inter se seniority.
Necessity 3.
The upgradations which were sanctioned in the Second Cadre Review, were mainly on the Staff and ERE.
This resulted in an imbalance in the Command and Staff ratio.
Tenures in senior ranks in Command consequently became truncated which in a Command oriented Army like ours, is not acceptable.
Hence the 'Two Stream ' Concept was intro 363 duced with the due approval of the Govern ment.
Ages of Superannuation 4.
As per the current rules officers of the 'Staff Only ' Stream are to superannuate one year earlier 'than the officers of the 'Com mand and Staff Stream.
This rule is applicable both to the General Cadre and officers from other Arms and Services.
However, in the case of officers of other Arms and Services certain other clarifications given in the succeeding paras will also be applicable.
In the case of Maj Gens from other Arms and services, the screening is done primarily to permit the officers to be promot ed to un specified appointments outside their Corps on first promotion and if required ahead of officers not so selected.
The ages of superannuation in their respect will remain unchanged and they shall superannuate at an age corresponding to the officers of the Command and Staff in the rank of Maj Gen. 6.
Lt. Gens.
Each other Arm/Service is autho rised two appointments specific to the Corps in the rank of Lt. Gen.
Notwithstanding the proposal to downgrade the schools of Instruc tion, a second appointment in the rank of Lt. Gen. will invariably be made available to them to ensure that their promotional prospects do not lag behind.
Officers holding these two assured appointments will superannuate at 58 years.
Other officers from a particular Arm/Service in the 'Staff Only Stream ' over and above the two assured appointments will superannuate at 57 years as is applicable to officers of the General Cadre.
However, if an appointment within the Corps falls vacant, such officer will be screened to assess his fitness for holding the specific vacancy within the Corps.
If selected to hold the authorised vacancy, he will superannuate at an age corresponding to the age of Command and Staff Stream, i.e. 58 years.
If in case, no vacancy is available, the officers of this Stream continue to superannuate at 57 years as mentioned earlier.
Inter se seniority 7.
The 'Two Stream Concept ' envisages that officers of the 364 General Cadre of a particular batch seniority approved in the 'Command and Staff ' Stream will be e.n block senior to those officers of the same batch approved on the 'Staff Only ' Stream.
In so far as non General Cadre officers are concerned, the order of passing out is the determining factor to decide the inter se seniority amongst them subject to readjustment based on the sequence of selection.
Doubts have also been raised regarding the inter se seniority between the officers of other Arms and Services approved on the 'Staff Only ' Stream vis a vis officers of the General Cadre approved in the 'Command and Staff ' Stream as well as 'Staff Only ' Stream.
It is clarified, that as regards the seniority within the same batch is concerned, officers approved on the 'Command and Staff ' Stream continue to be senior to officers approved in the 'Staff Only ' Stream.
However, an officer of an earlier batch approved on the 'Staff Only ' Stream will be senior to an officer of subsequent batch approved on the 'Command and Staff ' Stream.
It will, therefore, be noticed from the above that while promoting officers in either the 'Command and Staff ' Stream or 'Staff Only ' Stream, concept of batch seniority as hither tofore applicable has in all cases been main tained.
It is reiterated that the 'Stream Concept ' has been introduced to ensure that the best available talent and expertise available in the service is utilised.
Content of this letter be widely dissemi nated.
sd/ (Vijay Kumar) Lt.
Gen Sena Sachiv/ Military Secretary" Before adverting to the submissions of the parties we may also refer to another letter dated 29th May, 1984 filed as Annexure P 2 to the writ petition in the High Court (page 306 of the paper book filed on 365 behalf of the respondents alongwith the counter affidavit).
The letter dated 29th May, 1984 reads as under: "SEQUENCE OF SELECTION FOR SELEC TIVE RANKS 1.
Reference MS Branch Liaison Letter No. 1/80 forwarded vide this Headquarters Letter No. OO170/MS9A dated 02 Aug 80. 2.
Paras 26 and 27 of the above quoted Liaison Letter deal with the revised sequence of selection for promotion to the rank of A/Lt. Col.
However, the example given in Para 26 has raised certain doubts in the minds of the officers.
According to this example, the revised sequence of selection was to be in the following order: (a) Final Review (Say) 1960 Batch (b) First Review 1961 Batch (c) Fresh Selectees 1962 Batch 3.
Prior to Feb., 1980 two different sequences of selection were being followed for promotion to the rank of A/Lt Col and A/Col, illustrated by the following examples: (a) for promotion to the rank of A/Lt Col (i) Fresh SeLEctees (Say) 1959 Batch (ii) Final Review 1957 Batch (iii) First Review 1958 Batch (b) for promotion to the rank of A/Col and above (i) Final Review 1954 Batch (ii) First Review 1955 Batch (iii) Fresh selectees 1956 Batch 366 4.
In Feb 1980, it was decided to bring the sequence of selection in the rank of A/Lt Col in line with the sequence being followed for promotion to the ranks of A/CoI and above.
The changed sequence of selection which is being presently followed is illustrated by the following examples: (a) Final Review 196 1 Batch (b) First Review 1962 Batch (c) Fresh selectees 1963 Batch 5.
This new sequence was to be applied com mencing with the fresh selectees of 1963 as illustrated in para 4 above.
Fresh selectees officers of 1962 and earlier seniority were to be treated by the old criterion as given in para 3(a) above.
It was also decided that past cases would not be opened up for the revision of seniority.
In view of above, para 26 of above men tioned Liaison Letter may please be treated as cancelled.
This letter may please be given wide publicity.
Sd/ (HB Kala) Col. Col MS 5 for Military Secretary" Learned counsels also brought to our notice paragraph 169 of Annexure P 3 filed in the writ petition (page 307 to 309 of the paper book) which reads as under: "169.
A ' Batch for consideration for promotion to select rank is defined as "all officers who reckon seniority in a particular calender year".
This has been done for the following reasons: (a) Officers are commissioned from IMA in Jan. and Dec. each year.
367 (b) Officers commissioned from OTS on grant of permanent commission lose seniority as per existing rules and they reckon seniority in Mar. and Sep. of each year.
(c) Officers who forefeit service as a result of disciplinary awards reckon fresh seniority on any date in the calender year.
(d) Officers passing promotion examinations late also reckon seniority corresponding to the date of the examination on which they finally passed.
" It will be noticed that both these communications are before the 'Two Stream Concept ' which was accepted by the Government on 3 1st May, 1986 and its modalities being worked out thereafter.
However, we will deal with these two communications little later.
The Division Bench of the High Court considered the note of Military Secretary dated 22nd September, 1986, referred to above, as well as the note of the Vice Chief of Army Staff dated 24th September, 1986 as also the note of the Chief of Army Staff and took the view that if the sequence of promotion which was being followed was for Option 'A ' the writ petitioner would be entitled to be placed above the fresh Command and Staff ' Stream cases belonging to 1957 batch.
The learned Judges further observed: "In our opinion it is the sequence which is referred to in the Option 'A ' which has to be followed for making promotion to the next higher rank of Lt. General.
The reason for this is obvious.
It is true that the Military Secretary had recommended in the note dated 22nd September, 1986 that Option 'B ' (supra) should be adopted.
The Vice Chief of Army Staff, however, has stated that the proposal of the Military Secretary cannot be a long term proposal.
He further recommended that the proposal of accepting Option 'B ' could be adopted for a short term only. "as the ages at which the officers are currently being approved for higher promo tions are comparatively higher".
The Vice Chief of Army Staff then (emphasis added) recommended that Option 'B ' should be regarded as being 368 followed "for a transitionary phase only".
It is clear from the aforesaid note of the VCOAS that option 'B ' was recommended for being approved only by way of temporary measure and with regard to those officers who were being considered for promotion at that time.
The use of the expression 'Currently being approved ' must lead to only one conclu sion that it referred to those officers who were being considered for promotion on or about September, 1986.
What is of greater importance is that the VCOAS was emphatic in observing that Option 'B ' could not be fa voured as a long term proposal.
The Chief of Army Staff agreed with the recommendation of the Vice Chief of Army Staff.
The effect of this must be that the recommendation of the Military Secretary to adopt Option 'B ' as a sequence of promotion was not accepted.
The existing sequence of promotion which was being followed was recommended to be continued.
" Again the Division Bench observed: "It is pertinent to note that notwithstanding the note dated 22nd September, 1986, and the subsequent opinion of the Vice Chief of Army Staff and the Chief of Army Staff, no letter of the type which was issued on 9th September, 1986, was ever issued by the Military Secre tary 's branch.
Whereas the letter of 9th September, 1986, was issued to all the Command Headquarters, there is no format document which was issued or made known to the offi cers, purporting to give effect to Option 'B ' suggested by the Military Secretary vide his note dated 22nd September, 1986.
On the con trary, the letter dated 1st June, 1987 issued by the Military Secretary 's Branch, referred to hereinabove, is clearly at variance with the suggestion of the Military Secretary contained in his note of 22nd September, 1986.
If Option 'B ' had been accepted, then that would have been mentioned in the letter ' of 1st June, 1987.
" Again in relation to the communication dated 1st June, 1987 the Division Bench observed as under: "Reverting to the letter of 1st June, 1987, we find that 369 towards the end of paragraph 9, it has been categorically stated that: "However, an officer of an earlier batch approved on the Staff Only Stream ' will be senior to an officer of subsequent batch approved on the 'Command and Staff ' stream".
This is then emphasised by the contents of paragraph 10 of that very letter which reiter ates that: "The concept of batch seniority as hithertofore applicable has in all cases been maintained.
" The anxiety of the Military Secretary 's branch apparently was that the batch seniority had to be maintained.
If the argument of Mr. Vazey is accepted, the batch seniority cannot be main tained if the fresh cases of 1957 batch are to be promoted earlier than the petitioner, which is a first review case of 1956 batch, then the effect would be that officers belonging to the 1957 batch would be senior to the petitioner who belongs to the 1956 batch.
Notwithstanding the note dated 22nd September, 1986 of the Military Secretary, the letter dated 1st June, 1987 of the Military Secretary 's branch makes it clear that the batch seniority shall always be maintained.
Notwithstanding the fact that the fresh cases of 1957 batch have been ap proved for command and Staff stream, they would, nevertheless, come in sequence after the petitioner who belongs to the 1956 batch though selected in the Staff only Stream.
It may happen that notwithstanding that the petitioner is placed at the head of the penal, no staff vacancy may occur and a vacancy may occur only for a command post to which the petitioner has not been selected but we are not concerned with such a case here.
It is the admitted case before us that out of the penal of officers who were selected as per the letter dated 26th October, 1990, Major Gen. S.A. Singh and section Roy Choudhary have been, on promotion, posted to posts which are non Command posts.
It appears to us that the Division Bench totally mis understood the note of the Military Secretary dated 22nd September, 1986 as well as the note of the Vice Chief of Army Staff dated 24th September, 1986.
370 It is in the select panel prepared dated 26th October, 1990 that the officers mentioned at (a) are the officers who were selected for 'Command and Staff ' stream whereas the respondent was selected for the stream of 'Staff Only. ' It is clear from the Scheme that the officers who were approved for 'Command and Staff ' stream can be appointed both for 'Command ' as well as 'Staff ' vacancies whereas the officers who were approved only for stream of 'Staff Only ' can only be appointed to the vacancies relating to 'Staff ' and cannot be appointed relating to vacancies for 'Command '.
The ex pression 'same batch ' which is referred to in paragraph 9 of the letter dated 1st June, 1987 is for the officers who were considered for selection at one time and not the individual batch of the Major General.
In the batch in which the re spondent was considered for promotion included (a) fresh cases of 1957, (b) first review case of 1956 and (c) final review cases of 1955.
It is that batch which is being re ferred to as the 'same batch ' and it is specifically men tioned in paragraph 9 that for the purpose of seniority.
officers of the 'Staff Only ' stream will be junior to the officers of the 'Command and Staff ' stream.
It is again specifically mentioned that after placing the officers of the 'Staff Only ' stream, review selectees of the 'Command and Staff ' stream of the next batch to be promoted.
This concept was further explained in the note of the Military Secretary dated 22nd September, 1986 which was approved by the Chief of Army Staff as well as duly informed to the Government as required by the communication dated 3 1st May, 1986, noticed by us earlier.
In the note of the Military Secretary dated 22nd September, 1986 Option 'A ' which was prevalent practice was substituted by Option 'B ' which was recommended for future and which was accepted both by Vice Chief of Army Staff as well as the Chief of Army Staff.
Option 'A ' was never put up as a proposal for acceptance or rejection to the Chief of Army Staff.
Vice Chief of Army Staff only considered the proposal as recommended by Mili tary Secretary in his note dated 22nd September, 1986 and Vice Chief of Army Staff accepted it and the same was adopt ed by the Chief of Army Staff.
This Option 'B ' has not been reviewed till date.
There can be no doubt that if Option 'A ' was available for preparation of select list the respondent would have been senior to other persons who were recommended for 'Command and Staff ' stream.
But Option 'A ' was given up and Option 'B ' was recommended for approval.
If Option 'B ' has been adopted and accepted, as is clear, the seniority of the respondent placed in the panel dated 26th October, 1990 is unexceptionable.
It is again clear that the recommenda tion of the Military Secretary dated 22nd September, 1986 approved by the Chief of Army Staff was fully stated in paragraphs 7, 9 and 10 of the communication dated 1st June, 1987.
Merely because no reference 371 is made to the note of the Military Secretary dated 22nd September, 1986 in the communication dated 1st June, 1987 it does not mean that the note has to be ignored.
It will be noticed from the communication dated 31st May, 1986 that after the Government had approved the concept of 'Two Stream ', it was left to the Army Headquarters to work out the modalities and merely inform the Government.
In fact, the select panel, even after being prepared, has to be approved by the Government and has been so approved which show that the Government has accepted the modalities worked out by the Army Headquarters of the 'Two Stream '.
It is clear from the noting of the Military Secretary which was accepted by the Chief of Army Staff that the same was inti mated to the Government and that the matter was also dis cussed with the Government by the Military Secretary.
Noth ing further was required to be done and those decisions find place in paragraphs 7, 9 and 10 of the letter dated 1st June, 1987 by way of working out modalities.
It is men tioned, even at the expense of repetition, in paragraph 7 of the aforesaid communication dated 1st June, 1987 that the 'Two Stream Concept ' envisages that the officers approved in the 'Command and Staff ' stream will be en block senior to the officers of the same batch approved in the 'Staff Only ' Stream.
The same batch here refers to the three types of officers who were considered for promotion in the 1957 batch.
Again in paragraph 9 it was 'repeated "it is clari fied, that as regards the seniority within the same batch is concerned, officers approved on the 'Command and Staff ' Stream continue to be senior to officers approved in the "Staff Only ' Stream.
It was further clarified that "however, an officer of an earlier batch approved on the 'Staff Only ' Stream will be senior to an officer of subsequent batch approved on the 'Command and Staff ' Stream.
Here the 'subse quent batch ' means the next batch of promotion.
The expres sion 'same batch ' in the communications of 22nd September, 1986 and 1st June, 1987 took colour from the context and not from the definition of 'batch ' given in paragraph 169 no ticed earlier.
Nor does the sequence of selection to be considered as was prevailing before the communication dated 22nd September, 1986 relevant.
It was only the sequence of selection as proposed in Option 'B ' which was adopted.
Again the observation of the Division Bench that the note of the Military Secretary dated 22nd September, 1986 is contrary to or at variance with the letter dated 1st June, 1987 is not correct.
The letter of 1st June, 1987 is again for working out further modalities of 'Two Stream Concept ' vis a vis seniority in the light of the note of the Military Secretary dated 22nd September, 1986.
372 The Government has been very fair in placing before the results of the select panel prepared since the introduction of 'Two Stream Concept '.
The first Special Selection Board, after September, 1986, for promotion to the rank of Lt. General was held in October, 1986.
It was 1954 batch com prising or (a) Final Review of 1952, (b) First Review of 1953 and (c) Fresh 1954 and the officers who were selected to the Stream of 'Command and Staff ' were of 1954 batch and were placed en block senior to officers selected for 'Staff Only ' Stream who were again Fresh 1954.
Again the same policy was followed in the case of the respondent.
It was called 1957 batch comprising (a) Final Review of 1955, (b) First Review of 1956 and (c) Fresh 1957.
Since the respond ent was approved only for 'Staff Only ' Stream, though he was first review case of 1956, he was placed below the officers who were approved for 'Command and Staff ' Stream and were Fresh 1957.
Since there was no vacancy which could fall to the share of the respondent in his turn as per the seniority till he was superannuated on 3 1st May, 1991, the respondent could not take advantage of his approved promotion.
The note dated 22nd September, 1986 amending the se quence of promotion and after giving advantage and disadvan tages of the two options i.e. Option 'A ' and Option 'B ' had, thereafter, recommended that Option 'B ' should be adopted.
It may not be accurate for the High Court to apply Option 'A ' which has never been recommended and which was superseded by Option 'B ' which was accepted at the highest level.
Fact remains that even the select panel prepared by the army authorities was approved by the Government before it was released.
Learned counsel for the respondent referred to the case of Major General R.K. Gaur as mentioned in paragraph 49 of the writ petition.
The averment in paragraph 49 of the writ petition is that Major General Gaur was a case of 1954 batch first review, and was approved on 26th August, 1988 for 'Staff Only ' Stream.
Sometime in October, 1987 fresh cases of 1955 batch were also approved for promotion to the rank of Lt. General in which Major General V.K. Singh and Major General Hatvans Singh, in addition to many others, were approved for 'Command and Staff ' stream.
By the time Major General Gaur was approved in its first review on 26th 2August, 1988 various officers of 1955 fresh cases were promoted except Major General V.K. Singh and Major General Harvans Singh.
Between 26th August, 1988 on which date Major General Gaur was approved in 'Staff Only ' Stream 373 and 26th October, 1988 no promotions were made to the rank of Lt. General and on 26th October, 1988 Major General Gaur was ordered to be promoted and in his order it is mentioned that the general officer i.e. Major General Gaur will report for his new appointment forthwith.
Since the order has come on 26th October, 1988 itself and the order was to report forthwith he could have picked up the rank the same day but incidentally he was out of station and returned only on 31st October, 1988 and he could pick up the rank only on 1st November, 1988.
The orders of promotion of Major General V.K. Singh and Major General Hatvans Singh were issued on 27th October, 1988 which clearly indicate that the order of promotion of Major General Gaur was issued ahead of both the aforesaid officers.
This would clearly indicate that in the case of Major General Gaur who was a 1954 batch first review case was promoted ahead of Major General V.K. Singh and Major General Harvans Singh who were approved in 'Command and Staff ' Stream as fresh cases of 1955 batch.
The inten tion of issuance of such order promoting Major General Gaur on 26th October, 1988 clearly indicates that he was to be promoted ahead of those two officers.
In reply to the submissions made in paragraph 49, it is pleaded on behalf of the Government that it was clearly mentioned that Major General Gaur, being a list review selectee of 1954 batch in 'Staff Only ' stream, reckoned seniority below the Fresh Selectee 'Command and Staff ' stream of 1955 batch.
In the Army, the seniority is decided by the date of substantive promotion and not by the date, the officer picks.
up his acting promotion.
In many cases officers due to various administrative reasons, who are otherwise seniors, pick up their acting rank due to late assumption of higher officer later than their juniors.
However, in such cases it is ensured that while granting substantive rank the panel seniority is maintained.
It is a well known principle practised in almost all services and the writ petitioner is trying to confuse the issue with the letter relating to posting and promotion of senior officers which was issued one day later than his junior.
It was contended that even in those promotion it was ensured that the seniors were at a liberty to assume their higher ap pointment in acting rank alongwith Major General Gaur.
It was averred that it has been conveniently overlooked by the writ petitioner that promotion orders of several others of his senior were issued earlier.
Moreover Lt. General Gaur was given substantive promotion at a date later than the other two officers mentioned by the writ petitioner.
Under no circumstances a junior is promoted ahead of the senior.
It was stated that Lt. General 374 Gaur was given substantive rank w.e.f. 1.11.
1988 whereas Lt. General Harvans Singh and Lt.
General V.K. Singh, both seniors to Lt. General Gaur, were given substantive promo tion w.e.f.
27th October, 1988.
We find that in view of this reply the petitioner cannot take advantage for being, promoted earlier than the officers selected for the 'Command and Staff ' Stream.
We, thus, accept this appeal, set aside the order of the High Court dated 30th April, 1991 and dismiss the writ petition filed by the respondent.
However, on the facts of the case, parties are left to bear their own costs through out.
T.N.A. Appeal allowed.

summary:
On 31st May, 1986 the Government of India approved, in principle, the 'Two Stream ' concept of career management of Army Officers which envisaged that officers on promotion to Major General and Lt. General will be bifurcated into the 'Command and Staff ' and the 'Staff Only ' Stream.
By an order dated 9th September, 1986 issued by Military Secretary, Army Headquarters, the modalities of the concept, were worked out and it was inter alia provided that for the purpose of seniority, officers of the 'Staff Only ' Stream will be junior to officers of the 'Command and Staff" Stream.
While adopting the methodology for implementation of the 'Two Stream Concept ', in its note dated 22nd September, 1986 the Military Secretary stated that two options are available for fixing the sequence of promotion under the 'Stream Concept '.
Under option 'A ' the existing sequence of promo tion is maintained and in that officers are to be promoted as per their inter se seniority, irrespective of the stream.
In the case of Option 'B ', whereas the existing sequence of promotion is maintained, but promotion is to be effected in accordance with the stream in which an officer is being promoted.
After giving advantages and disadvantages of the two options, the said note recommended that option 'B ' should be adopted.
The Military Secretary 's note was ap proved by Vice Chief of Army Staff and the Chief of Army Staff.
By a communication dated 1st June, 1987 the Military Secretary clarified its earlier note dated 22nd September, 1986 explaining that officers of the General Cadre of a particular batch seniority approved in the 'Command and staff ' Stream will be en block senior to those 351 officers of the same batch approved on the 'Staff Only ' Stream.
However, an officer of an earlier batch approved on the 'Staff Only ' Stream will be senior to an officer of subsequent batch approved on the 'Command and Staff Stream.
Under the promotion policy of Army every officer is given three chances for consideration for promotion.
The first opportunity is called "fresh cases".
The second oppor tunity is called "first review cases" and the third opportu nity is called "final review cases".
An officer not approved for promotion loses one year on seniority and slides into the batch of the next year.
The respondent, commissioned in the army in 1954, while acting as Brigadier, was selected as Major General in 1956 batch.
Accordingly, his seniority was fixed alongwith 1956 batch.
While working as Major General he was considered for promotion to the rank of Lt. General in 1989 but was disap proved.
He thus lost seniority of 1956 batch.
He was then considered as a first review case in 1990 alongwith 1957 batch comprising of final review case of 1955 batch, first review case of 1956 batch and fresh case of 1957 batch and was approved for selection for 'Staff Only ' Stream.
Since he was approved only for 'Staff Only ' Stream, in the select panel dated 26th October, 1990 he was placed below all other Major Generals who were approved for selection in the Stream of 'Command and Staff.
Aggrieved by his placement below the officers who were approved for 'Command and Staff ' Stream, he filed a writ petition in the High Court which directed the Union of India to treat the respondent senior to all the other Major Gener als who were promoted to the acting rank of Lt. General in the 'Command and Staff ' stream and to expeditiously promote him ahead of the 1957 batch.
Against the decision of the Division Bench of the High Court the Union of India filed an appeal in this Court.
Setting aside the order of the High Court, this Court, HELD: 1.
The Division Bench of the High Court totally misunderstood the note of the Military Secretary dated 22nd September, 1986 as well as the note of the Vice Chief of Army Staff.
In the note of the Military Secretary dated 22nd September, 1986, Option 'A ' which was prevalent practice was substituted by option 'B ' which was recommended for future and which was accepted both by Vice Chief of Army Staff as well as Chief of Army Staff.
[369H 370E] 352 2.
It is clear from option 'B ' which was adopted for working out the 'Two Stream Concept ' that the seniority will first be given to the 'Command and Staff ' stream selected from any of the earlier batches and after the 'Command and Staff ' stream has been accorded the seniority, the three streams of 'Staff Only ' will be given seniority and that the final review, the first review or fresh stream of 'Staff Only ' rank below the similar three streams of 'Command and Staff '.
[362B C] 3.
It is also clear from the Scheme that the Officer who Were approved for 'Command and Staff ' Stream can be appoint ed both for 'Command ' as well as 'Staff ' vacancies whereas the officers who were approved only for stream of 'Staff Only ' can only be appointed to the vacancies relating to 'Staff ' and cannot be appointed relating to vacancies for 'Command '.
The expression 'same batch ' referred to in para graph 9 of the Military Secretary 's letter dated 1st June, 1987 is for the officers who were considered for selection at one time and not the individual batch of the Major Gener al.
[370B] 4.
Option 'B ' has not been reviewed till date.
There can be no doubt that if option 'A ' was available for preparation of select list the respondent would have been senior to other persons who were recommended for 'Command and Staff ' Stream.
But option 'A ' was given up and option 'B ' was recommended for approval.
Since option 'B ' has been adopted and accepted the seniority of the respondent placed in the panel dated 26th October, 1990 is unexceptionable.
[370F G] 5.
The respondent cannot take advantage for being pro moted earlier than the officers selected for the 'Command and Staff ' Stream.
[374B1


judgement:
Civil Appeal No. 5047 (NT) of 1985.
From the Judgment and Order dated 17.7.
1985 of the Allahabad High Court in Sales Tax Revision No. of 1985.
Madan Lokur for the Appellant.
Ashok K. Srivastava for the Respondent.
M/s. D.H. Brothers Pvt. Ltd., a registered dealer under the U.P. Sales Tax Act, is engaged in the sale of machinery including sugarcane crushers.
After coming into force of the Uttar Pradesh Sales Tax Act, 1948 (hereinafter called 'the Act ') the State Government issued a notification dated June 7, 1948 exempting agricultural implements from the levy of sales tax.
Thereafter fresh notifications were issued from the time to time.
The relevant notification dated November 14,1980 enumerated the "Agricultural implements" as under: "Agricultural implements" worked by human or animal power, including Khurpi, Dibbler, Spade, Hansla (Sickle) Garden Knife, Axe, Gandasa, Chaff Cutters, Shears, Seca teurs, Rake, Shovel, Ploughs, Water lifting leather buckets (Pur and Mhot), Rahat and persian whell, Chain Pump, Harrows, Hoes, Cultivators, Seed Drills, Threshers, Shellers, Winnowing fans, Paddy weeders, Gardenfork, Lopper), Belcha, Bill Hook (Double edge), Kudali,Fork, garden Hatchet, Bill Hook (Single edge), Hay Bailer, Bund formers, Scrappers, Levellers or Levelling Karahas, Yokes, crop yield Judginghoops, Hand sprayers Hand dust ers, Animal driven vehicles including carts having pneumatic tyre wheels, crow bars, sugarcane Planters and accessories, attach ments and spare parts of these agricultural implements".
The assessee invoked the jurisdiction of Commissioner, Sales Tax, Uttar Pradesh under Section 35 of the Act claim ing that the Kohlu meant for extracting juice from sugarcane was an agricultural implement within the above quoted noti fication and as such was exempt from levy of Sales Tax.
The Commissioner by his order dated December 31, 1983 decided the question against the assessee.
The assessee filed appeal against the said order before the Sales Tax Tribunal.
Luc know Bench, under Section 10 of the Act.
The Tribunal upheld the findings of the Commissioner and dismissed the appeal.
Thereafter the assessee preferred a revision petition under Section 11 of the Act before the Allahabad.
High Court.
The High Court relying on its earlier decision in Bharat Engi neering and Foundry Works vs 426 The U.P. Government, [1963] 14 S.T.C. 262 dismissed the revision petition.
In that case the question for considera tion before the High Court was "whether cane crushers are agricultural implements within the meaning of the words 'agricultural implements ' as mentioned in the Government Notification. . and hence exempt from U.P. sales tax.
" The question was answered in the negative on the following reasoning: "Cane crushers and boiling pans are used only in the manufacture of gur from sugarcane.
Sugarcane is an agricultural produce and the process which results in the production of sugarcane is undoubtedly agriculture, but the production of gur from sugarcane is a manufac turing process and not an agricultural proc ess.
The agricultural process comes to an end with the production of sugarcane and when gur is subsequently being prepared it is manufac turing process that commences.
Merely because sugarcane is an agricultural produce anything that is done to it after it is product is not necessarily a continuation of the agricultural process.
It cannot be doubted that agricultur al produce can the subjected to a manufactur ing process; merely because gut is produced out of sugarcane which is an agricultural produce, the process of preparing gut does not become an agricultural process. .
An agricultural implement is an implement that is used in agriculture; any implement that is used after the agricultural process comes to an end and a manufacturing process commences, is not an agricultural implement.
" The High Court in Bharat Engineering case relied upon the following observations of this Court in Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy, "Agriculture is the basic idea underlying the expressions 'agricultural purposes ' and 'agricultural operations ' and it is pertinent therefore to enquire what is the connotation of the term 'agriculture '.
As we have noted above, the primary sense in which the term agriculture is understood is agar field and cultracultivation, i.e., the cultivation of the field, and if the term is understood only in that sense agriculture would be restricted only to cultivation of the 427 land in the strict sense of the term meaning thereby, tilling of the land, sowing of the seeds, planting and similar operations on the land.
They would be the basic operations and would require the expenditure of human skill and labour upon the land itself.
There are however other operations which have got to be resorted to by the agriculturist and which are absolutely necessary for the purpose of effec tively raising the produce from the land.
They are operations to be performed after the produce sprouts from the land, e.g., weeding, digging the soil around the growth, removal of undesirable undergrowths and all operations which foster the growth and preserve the same not only from insects and pests but also from depradation from outside, tending, pruning, cutting, harvesting, and rendering the produce fit for the market.
The latter would all be agricultural operations when taken in conjunc tion with the basic operations above de scribed, and it would be futile to urge that they are not agricultural operations at all. . " It is clear from the above quoted observations of this Court that the agricultural process comes to an end when the crop is harvested and is brought home for marketing or for further processing.
In the present case the agricultural process finishes when sugarcane is harvested.
Preparation of gur from sugarcane is not the continuation of the agricul tural process.
While giving meaning to an item in a taxing statute the Courts should give it a meaning as intended by the framers of the statute by looking at the various items mentioned in a particular group.
The items in one group should be consid ered in a genderic sense.
The notification dated November 14, 1980 includes various items under the head "agricultural implements".
It is no doubt correct that the said definition cannot be confined to the various implements specifically mentioned therein.
The definition being inclusive it has a wider import and any other implement which answers the description of an agricultural implement can be included in the definition.
A bare reading of the notification, however, shows that all the implements mentioned by name after the word "including. . "are by and large those which are used for cultivation of land and other operations which foster the growth and preserve the agricultural produce.
None of these implements can be worked after the agricultur al process in respect of a crop comes to an end.
Therefore the intention of the framers of the 428 notification could only be to limit the general words in the notification to the implements of the same kind as are specified therein.
We are, therefore, of the view that on the plain reading of the notification the sugarcane crushers do not come within the definition of agricultural imple ments.
It has been brought to our notice that from 1985 onwards the State Government has specifically exempted sugarcane crushers from the levy of sales tax.
We dismiss the appeal with no order as to costs.
G.N. Appeal dis missed.

dataset_name: IN-Abs

summary:
The appellant, a registered dealer under U.P. Sales Tax Act, 1948 has been selling machinery including sugarcane crusher.
The State Government was issuing Notifications from time to time exempting agricultural implements from the levy of sales tax.
The State Government by its Notification dated 14.11.1980 amended the list and enumerated agricultural implements.
Since sugarcane crusher (Kohlu) was not included therein, the appellant claimed before the Sales tax Commis sioner that the Kohlu meant for extracting juice from sugar cane was an agricultural implement and as such was exempt from levy of sales tax.
Since the Commissioner negatived his claim, the appellant preferred an appeal before the Sales Tax Tribunal.
The Tribunal having upheld the findings of the Commis sioner, the appellant filed a revision petition before the High Court.
Relying on its earlier decision, the High Court dismissed the revision petition.
Aggrieved by the High Court 's decision, the appellant has preferred the present appeal.
Dismissing the appeal, this Court, HELD: 1.
The agricultural process comes to an end when the crop is harvested and is brought home for marketing or for further processing.
Preparation of gur from Sugarcane is not the continuation of the agricultural process.
[427D E] 424 Bharat Engineering and Foundry Works vs The U.P. Govern ment, [1963] 14 S.T.C. 262 and Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy, , relied on.
While giving meaning to an item in a taxing statue the Courts should give it a meaning as intended by the framers of the statute by looking at the various items mentioned in a particular group.
The items in one group should be considered in a generic sense.
[427F] 3.
In the instant case the notification dated November 14, 1980 includes various items under the head "agricultural implements".
The said definition cannot be confined to the various implements specifically mentioned therein.
The definition being inclusive it has a wider import and any other implement which answers the description of an agricul tural implement can be included in the definition.
A bare reading of the notification shows that all the implements mentioned by the name after the word "including. . "are by and large those which are used for cultivation of land and other operations which foster the growth and preserve the agricultural produce.
None of these implements can be worked after the agricultural process in respect of a crop comes to an end.
Therefore the intention of the framers of the notification could only be to limit the general words in the notification to the implements of the same kind as are specified therein.
As such sugarcane crushers do not come within the definition of agricultural implements.
[427F H; 428A B]


judgement:
ecial Leave Petition (C) No. 3790 of 199 1.
From the Judgment and Order dated 29.3.
1990 of the Madras High Court in W.A. No 1028 of 1989.
G. Ramaswamy, Attorney General, R. Mohan, V. Krishna murthy and R. Ayyam Perumal for the Petitioners.
K. Parasaran, K.R. Chaudhary, T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Manjula Gupta for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The respondents have successfully challenged a notification under Section 4 of the Land Acquisition Act, 1894 proposing to acquire their land before the Madras High Court.
Their writ petition was allowed by a learned Single Judge and on appeal the order was confirmed by Division Bench.
The State of Tamil Nadu has challenged the decision by the present Special Leave Petition.
The acquisition proceeding, which is the subject matter of present case, was started for obtaining land for construction of houses by the Tamil Nadu Housing Board, constituted under Section 3 of the Madras State Housing Board Act, 1961 (Madras Act No. 17 of 1961) (hereinafter referred to as the 'Housing Board Act ') and this was men tioned in the impugned notification.
The High Court has held that the public purpose mentioned in the notification was too vague in absence of details relating to the scheme for which the acquisition is sought to be made, and consequently the land owners cannot effectively avail of the benefits under Section 5A of the Land Acquisition Act by filing their objection.
The learned Attorney General, appearing for the petitioner State, has contended that the notification has adequately described the nature of the public purpose by mentioning the proposed construction of residential build ings, and the respondents ought to have filed their objec tions under Section 5A instead of 378 moving the High Court with a writ application.
Relying on the decision in Babu Barkya Thakur vs The State of Bombay and Others, it has been argued that even assuming that the public purpose was not mentioned in the notification with sufficient particularity, the proceeding cannot be quashed at this stage and the High Court should have dismissed the writ petition by pointing out that the remedy of the land owners was under Section 5A. 3.
The reply of Mr. Parasaran, the learned counsel for the respondents, is that in view of the provisions of the Housing Board Act a proceeding for land acquisition can be commenced only after a scheme under the Act is framed, which has not been done in the present case.
The land acquisition proceeding, therefore, being premature has been rightly quashed.
As is indicated by the preamble of the Housing Board Act, the object of establishment of the Housing Board is to provide for the execution of housing and improvement schemes.
The Act envisages eight types of schemes detailed in section 40, the housing scheme, as in the present case, being one of them.
The framing of the schemes is dealt with in Chapter VII (Section 35 to 69) and Chapter VIII contain ing sections 70, 71 and 72 provides for acquisition and disposal of land.
Section 70 states that land required by the Board for any of the purposes of this Act may be ac quired under the provisions of the Land Acquisition Act and accordingly the present land acquisition proceeding was commenced.
The procedure prescribed for preparation of a scheme indicates that before it can be finalised, full publicity has to be given inviting objections; and in case of objec tions, the same have to be duly considered before granting sanction.
Further, if anybody is still aggrieved, he has a right of appeal to the State Government.
It is only after this stage is over that the scheme becomes final and en forceable.
Admittedly the proposal to build houses in the present case has not been put in the shape of a scheme at all and as stated on behalf of the petitioner a draft scheme with relevant details will be drawn up after the possession of the land is secured.
The question for decision is whether the acquisition proceeding can be initiated only after the framing of the proposed scheme and not earlier.
The learned Attorney Gener al contended that having regard to the provisions of the Act and the other relevant considerations it must be held that the procedure in regard to the preparation of 379 the scheme has to await the conclusion of the land acquisi tion proceeding.
It is only after the possession of the land is delivered to the Board that its engineers and other experts can go over the land, make necessary inspection and collect vital data, on the basis of which the scheme can be drawn up.
It is essential to have a clear idea of the area of the land, its boundaries, and the nature of the soil for deciding about the details of the proposed scheme, and this is not possible so long the owner of the land continues in possession.
Any attempt to draw up a scheme earlier has been described by the learned counsel as an exercise in futility.
Alternatively it has been contended that even if it be held to be permissible to frame the scheme without waiting for the acquisition and possession of the land, it cannot be further assumed that the land acquisition proceeding has to await the finalisation of the scheme.
In other words, both the proceedings may continue simultaneously, or any of the proceeding including one for land acquisition can be com menced without waiting for the other.
In any event, the land acquisition proceeding should not be condemned as pre mature on the ground that the scheme has not been framed.
We have closely examined the entire Act with the assistance of the learned counsel for the parties and in our view the conten tion on behalf of the respondents that the proceeding for acquiring land can be commenced only after the scheme is framed, is well founded.
As has been stated earlier, Chapter VII containing sections 35 to 69 deals with the framing of the scheme.
The Act has laid down separate procedures for the different types of schemes, according to necessity and suitability.
Some of the schemes do not require acquisition of land, which is however, essential for constructing residential buildings under the housing scheme.
Section 39 of the Act, therefore, while enumerating the matters to be included in the scheme, specifically mentions acquisition of land in clause (a).
If the acquisition is contemplated as a subject matter of the scheme itself, it follows that it must await the preparation of the scheme wherein it will be included.
The Act requires the proposed scheme to be published permitting objections to be made, and if they are found to be valid, under section 53, the scheme to be modified or abandoned.
Sub section (1) of section 49 directs the notice of the draft housing scheme to include and specify the following information as contained in clause (b) for the purpose of publication and information to the general pub lic: "(b) the place or places at which particulars of the scheme a map of the area, and details of the land which it is pro 380 posed to acquire and of the land in regard to which it is proposed to recover a betterment fee, may be seen at reasonable hours." (emphasis added) The underlined words above reaffirm the position that the acquisition of the land has to be a part of the scheme, which can be executed only after its finalisation.
Apart from the provisions of section 53 mentioned above, section 56 further clothes the Board with the power to alter or cancel the scheme even after it is finally sanctioned.
The language of clause (b) of the proviso to the section, which is quoted below, once more leads to the same conclusion that acquisition of the land has to await the framing of the scheme: "(b) If any alteration involves the acquisi tion otherwise than by agreement of any land not previously proposed to be acquired in the original scheme, the procedure prescribed in the forgoing sections of this Chapter shall, so far as it may be applicable, be followed as if the alteration were a separate scheme." (emphasis added) 8.
Mr. Attorney General repeatedly said that unless the Board gets actual possession of the land in question its officers cannot go over the same for collecting the informa tion essential for drawing up of the scheme.
It has, there fore, been suggested that it is wholly impractical to expect the scheme to be framed before obtaining the possession of the land.
Mr. Parasaran, the learned counsel for the re spondents, rightly pointed out that the provisions of sec tion 147 furnish a complete answer to this argument.
The section empowers the Chairman (now the Managing Director) of the Board or any person either generally or specially autho rised by him in this behalf to enter into or upon any land with or without assistants or workmen for the purpose of making any inspection, survey, measurement, valuation or enquiry or to take levels or to dig or bore into sub soil or to set out boundaries and intended lines of work et cetera.
The last clause in the section gives wide power to do any other thing which may appear necessary for achieving the purpose of the Act subject to certain reasonable restric tions.
The learned Attorney General also relied on sections 55 and 72 in support of the petitioners ' stand.
Section 55 directs the Board to proceed to execute the scheme as soon as it becomes enforceable.
It is 381 contended that if the acquisition proceeding is not over by the time the scheme is ready, undue delay is bound to take place.
The fallacy in the argument is that it assumes that the acquisition of the land is not a part of the execution of the scheme itself.
As has been indicated earlier the position is otherwise Since the acquisition is included in the scheme the process of execution of the scheme starts immediately when steps for acquisition are taken.
Thus there is no question of any disregard of the command in section 55.
Section 72 empowers the Board to lease, sell, exchange or otherwise dispose of any land vested in or acquired by it.
This power has been granted to the Board, according to the petitioners, so that if the scheme is abandoned under section 53 the land already acquired can be disposed of.
We do not see any warrant for linking section 72 with section 53.
The Board has been given the power to dispose of any land whenever it is considered in the interest of the Board to do so; and the circumstances where it may be expedient to use this power may be many, as for example, when the scheme is altered or cancelled under section 56 due to a new devel opment.
On the other hand, the order, in which the different steps for the preparation of the scheme and the acquisition of the land, is suggested on behalf of the petitioners to be taken, appears to be impractical and defeating the purpose of section 5A of the Land Acquisition Act.
If the notifica tion under section 4 under the Land Acquisition Act is published without waiting for the scheme, as has been done in the present case, it will not be possible for the land owners to object to the proposed acquisition on the ground that the land is not suitable for the scheme at all, and therefore does not serve any public purpose, or that another piece of land in the area concerned, is far more suitable, leading to the possible conclusion that the proposed acqui sition is mala fide.
As discussed above, the provisions of the Housing Board Act also suggest the same.
The Board has not been vested with the unrestricted power to frame any scheme, as suggested by its planners.
It has to take into account the representation by the local authority as men tioned under section 50 and the objection of any other person under section 53 and decide the same on merits before according sanction.
The matter is not concluded even at that stage; the aggrieved person may appeal to the State Govern ment and it is only subject to the final result therein that the scheme becomes enforceable.
In this set up it will be practical and consistent with common sense to have the scheme finalised before starting an acquisition proceeding We, accordingly, hold that a proceeding under the Land Acquisition Act read with section 70 of the Madras Housing Board Act, can be commenced only after framing the scheme of 382 which the land is required.
The notification issued under section 4 in the present case must, therefore, be held to be pre mature, and it was rightly quashed by the High Court.
Before closing his argument Mr. Attorney General stated that in the past a large number of land acquisition proceedings have been concluded and lands acquired without first framing the scheme and on the basis of the present judgement there may be an attempt by the land owners of those lands to re open the matter.
We do not think that as a result of this judgment the concluded land acquisition proceedings can be allowed to be re opened.
Although we have held that the initiation of the proceeding for acquisition has to await framing of a scheme, it does not mean that the concluded acquisition proceeding can be condemned as void so as to be ignored later.
However, to avoid unnecessary con troversy we are hereby clarifying the position that a ground based on the present judgment shall be available to the land owners only for such land acquisition proceedings, which are under challenge and are still pending decision.
The special leave petition is dismissed, but in the circumstances without costs.
V.P.R. Petition dismissed.

summary:
Under Section 4 of the Land Acquisition Act, 1894 a notification was issued by the petitioners proposing to acquire the land of the respondents for construction of houses by the Tamil Nadu Housing Board, constituted under section 3 of the Madras State Housing Board Act, 1961.
The respondents challenged the impugned notification in a writ petition, which was allowed by the Single Judge of the High Court holding that the public purpose mentioned in the notification was too vague in absence of details relat ing to the scheme for which the acquisition was sought to be made, and consequently the land owners could not effectively avail of the benefits under section 5A of the Land Acquisi tion Act by filing objection.
This order was affirmed by the Division Bench of the High Court.
The State the petitioners filed this Special Leave Petition contending that the notification had adequately described the nature of the public purpose by mentioning the proposed construction of residential buildings and the respondents ought to have filed their objections under section 5 A instead of filing the writ petition; that the procedure in regard to the preparation of the scheme has to await the conclusion of the land acquisition proceeding; that the land acquisition proceeding should not be condemned as pre mature on the ground that the scheme has not been framed.
The respondents contended that in view of the provi sions of the Housing Board Act a proceeding for land acqui sition can be commenced only after a scheme under the Act is framed, which has not been done in the present case.
The land acquisition proceeding, being pre mature has been rightly quashed.
376 On the question whether the acquisition proceeding could De initiated only after the framing, of the proposed scheme and not earlier, dismissing the Special Leave Peti tion of the State, this Court, HELD: 1.01.
The procedure prescribed for preparation of a scheme indicates that before it can be finalised, full publicity has to be given inviting objections; and in case of objections, the same have to be duly considered before granting sanction.
Further, if anybody is still aggrieved, he has a right of appeal to the State Government.
It is only after this stage is over that the scheme becomes final and enforceable.
[378F] 1.02.
Section 39 of the Madras State Housing Act, 1961 while enumerating the matters to be included in the scheme, specifically mentions acquisition of land in clause (a).
If the acquisition is contemplated as a subject matter of the scheme itself, it follows that it must await the preparation of the scheme wherein it will be included.
[379F] 1.03.
The acquisition of the land is a part of the execution of the scheme itself.
Since the acquisition is included in the scheme the process of execution of the scheme starts immediately when steps for acquisition are taken.
[381A B] 1.04.
If the notification under section 4 under the Land Acquisition Act is published without waiting for the scheme, it will not be possible for the land owners to object to the proposed acquisition on the ground that the land is not suitable for the scheme at all, and therefore does not serve any public purpose, or that another piece of land in the area concerned, is far more suitable, leading to the possi ble conclusion that the proposed acquisition is mala fide.
The provisions of the Housing Board Act also suggest the same.
[381 DF] 1.05.
It will be practical and consistent with common sense to have the scheme finalised before starting an acqui sition proceeding.
A proceeding ' under the Land Acquisition Act read with section 70 of the Madras Housing Board Act, can be commenced only after framing the scheme for which the land is required.
The notification issued under section 4 hi the present case must, therefore, be held to be pre mature, and it was rightly quashed by the High Court.
[381G 382A] 1.06.
Although the initiation of the proceeding for acquisition has to await framing of a scheme, it does not mean that the concluded acquisition proceeding can be con demned as void so as to be ignored 377 later.
A ground based on the present judgment shall be available to the land owners only for such land acquisition proceedings, which are under challenge and are still pending decision.
[382C D] Babu Barkya Thakur vs The State of Bombay and Others, , distinguished.