The Supreme Court on Wednesday sought to know how could the army chief act in defiance of the approved policy as the government told it that the army filled up the vacancies both under the command exit promotion policy and on pro rata basis.
A bench of Justice T.S.Thakur and Justice R. Banumathi posed the question after it was told that the government has approved the command exit promotion policy but the army was following the pro rata basis as well.
Taking exception to the army not filling all the vacancies in accordance with the approved command exit promotion policy, the court asked "whether the government took any exception to it?" and "how could the chief of army staff defy the government order".
"Where is the government order," the court asked as Additional Solicitor General Maninder Singh told it that the government had approved the 2009 policy which was struck down by the Armed Forces Tribunal.
The command exit promotion policy was framed to have a colonel commanding the combat unit at the age of 37 and going out at the age of 39 plus but before 40 years.
Even as the ASG referred to the records in support of his submissions, the court adjourned the hearing saying that it wanted to "fully" satisfy itself.
The apex court on April 22 had asked the government to spell out whether it had cleared the army's promotion policy to have a combat unit commanded by a colonel at the age of 37 years and exit after two-and-a-half years.
It also asked if the government had told the tribunal about approving the new policy.
The government had embarked on the course on the recommendations of the Ajay Vikram Singh Committee which besides other things had probed why the army's response in the Kargil war was "sluggish".
The government has challenged the March 2 order of the tribunal quashing the army policy under which newly created 750 posts of colonels were not to disbursed across the army on a pro rata basis as violative of the constitution's article 14 (equality before law).
Under the 2009 policy, a larger chunk of the newly-created 750 posts were to go to the infantry, mechanised infantry and the armoured corps.
The posts were created in 2004 for improving the age profile of units of these three wings at the combat level but were mistakenly disbursed across the army on a pro rata basis.
Since the pro rata disbursement of the newly created posts did not achieve the desired objective, the court was told that as consequence, the pro rata distribution of another 750 posts was not followed in 2009.