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Sunday, June 1, 2014

Service matter - Promotions in Army - the Apex court held that whether the respondent can be treated differently even if he is allowed to remain in DGQA, viz. whether not allowing him to take further promotions, which benefit is still available to others whose permanent Secondment is not in dispute, would amount to discrimination or arbitrariness thereby offending Articles 14 and 16 of the Constitution of India. In our opinion, these, and other related issues, will have to be argued and thrashed out for coming to a proper conclusion. As a result, this appeal is allowed. The impugned order passed by the Tribunal is set aside. The matter is remitted to the Tribunal for deciding the OA by a larger Bench by having proper perspective in mind, as discussed in this judgment. Both the sides shall have right to file further documents they want to rely upon.= UNION OF INDIA & ORS. |.....APPELLANT(S) | |VERSUS | | |COL. GS GREWAL |.....RESPONDENT(S) = 2014 (May.Part) http://judis.nic.in/supremecourt/filename=41549

   Service matter - Promotions in Army - the Apex court held that  whether the respondent can be treated  differently  even if he is allowed to remain in DGQA, viz. whether not allowing  him  to  take further promotions,  which  benefit  is  still  available  to  others  whose permanent Secondment is not in dispute, would amount  to  discrimination  or arbitrariness thereby offending Articles 14 and 16 of  the  Constitution  of India.  In our opinion, these, and other related issues,  will  have  to  be argued and thrashed out for coming to a proper conclusion. As a result, this appeal is allowed.   The  impugned  order  passed  by  the Tribunal is set aside.  The matter is remitted to the Tribunal for  deciding the OA by a larger Bench by having proper perspective in mind, as  discussed in this judgment.    Both  the  sides  shall  have  right  to  file  further documents they want to rely upon.=
                 


  2014 (May.Part) http://judis.nic.in/supremecourt/filename=41549    
B.S. CHAUHAN, A.K. SIKRI
                                                    NON–REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3879 OF 2013


|UNION OF INDIA & ORS.                    |.....APPELLANT(S)              |
|VERSUS                                   |                               |
|COL. GS GREWAL                           |.....RESPONDENT(S)             |


                               J U D G M E N T
A.K. SIKRI, J.
                 This is a statutory appeal, preferred by  Union  of  India,
     as provided under Section 31 of the Armed Forces  Tribunal  Act,  2007
     (hereinafter referred to as the  'AFT  Act').   The  appeal  is  filed
     against the judgment and order dated April  15,  2011  passed  by  the
     Armed Forces Tribunal (hereinafter  referred  to  as  the  'Tribunal),
     Regional Bench Chandigarh, whereby the Tribunal has partly allowed the
     Original Application  (OA)  which  was  preferred  by  the  respondent
     herein.  The appellants have not only challenged the order on  merits,
     but have even questioned the jurisdiction of the Tribunal to deal with
     the subject matter which was brought before it by  the  respondent  in
     the said OA.

In order to understand the nature of challenge laid to the  jurisdiction  of
the Tribunal and the direction given while partly allowing  the  OA  of  the
respondent, it would be necessary to understand the nature of  relief  which
was sought by the respondent in the said OA as well as the background  facts
in which the OA seeking such a relief was filed.

The respondent joined the Indian Army as  a  Major.   Indubitably,  in  that
capacity he was subject to the discipline of the Army Act, 1950.   It  is  a
normal practice that the personnel belonging to the  Armed  Forces,  namely,
Army, Air Force or Naval Force, are Seconded to the other offices under  the
Ministry  of  Defence,  which  include  Department  of  Defence  Production,
Department of  Defence  Research  and  Development  and  Department  of  Ex-
Servicemen Welfare.  We  are  concerned  here  with  Department  of  Defence
Production, which has Director  General  of  Quality  Assurances  (DGQA  for
short) as well as Defence Public Sector Undertaking (DPSU).  The  respondent
was Seconded to DGQA on November 06, 2004 in the rank  of  Major.   At  that
time, it was temporary Secondment.
                 It  is  also  relevant  to  mention  here  that  while  the
     respondent was in the rank of Major in the Army, he was considered for
     promotion to  the  next  higher  grade,  namely,  Lieutenant  Colonel.
     However, he could not be promoted because of certain  reasons.   There
     is a provision that if an officer is not able to secure  promotion  to
     the higher rank after particular number of specified attempts,  it  is
     termed as Final Supersession, which means that the said officer  would
     not be considered for  promotion  to  the  higher  status  thereafter.
     Insofar as promotion from the rank of Major to Lieutenant  Colonel  is
     concerned,  three  chances  can  be  availed  by  the  officer.    The
     respondent was finally superseded in the Army, in the rank of Major in
     December 2003.  It is also pertinent to point out at this  stage  that
     when the respondent was Seconded to DGQA  organisation,  there  was  a
     provision in DGQA, in the form of OM  dated  May  04,  1993,  that  an
     officer who is finally superseded in the Army will not be entitled  to
     permanent Secondment and can stay  at  DGQA  temporarily  only,  which
     means, after some time, he would have to go back to the Army.

As pointed out above, the respondent had already been finally superseded  in
December 2003 in the rank of Major when he had joined DGQA on  November  06,
2004.

After considering the case of an Army personnel for promotion to the  higher
rank, there can be supersession on merits.  However, some times even if  the
officer is found to be meritorious and fit for promotion, he would still  be
not able to get the promotion only because he is lower in the seniority  and
the number of posts available in the higher position are less,  which  would
be filled/occupied  by  the  persons  above  him  in  the  seniority.   Non-
promotion for this reason is also  counted  as  'Supersession'.   Therefore,
after availing three chances in the rank of Major for promotion to the  rank
of Lieutenant Colonel,  if  an  officer  is  superseded  even  for  want  of
sufficient number of vacancies in the higher rank,  such  an  officer  would
still be labelled, what is termed as,  'Finally  Superseded'.  According  to
the respondent, the reason for which he was superseded in the Army  was  the
aforesaid one and not that he lacked merit.

Since many officers were not getting promotions to  the  higher  rank  after
they were finally superseded for no fault of theirs and with intent to  make
the Army profile  younger,  A.V.  Singh  Committee  was  constituted,  which
submitted its report known as 'A.V. Singh Committee  Report'.   This  Report
recommended, which recommendation was even accepted, that  all  officers  in
the Army holding the rank of Major, who had completed 13 years  of  service,
were to be promoted to the  rank  of  Lieutenant  Colonel,  irrespective  of
whether such personnel were  finally  superseded  or  not.   Acting  on  the
recommendation of this Report, the respondent, along with many  others,  was
promoted as Lieutenant Colonel on December 16, 2004, when  he  was  in  DGQA
organisation, which he had joined barely a month ago, i.e. on  November  06,
2004.

Policy letter dated January 16, 2005  was  issued  by  M.S.  Branch  whereby
Special Merit Board (SMB) was introduced to give effect to  the  A.V.  Singh
Committee Report's recommendation.  However, within two and  a  half  years,
i.e. on July 18, 2007, M.S. Branch intimated stoppage  of  SMB  Policy  with
immediate effect.  Letter to this effect  was  issued  by  the  M.S.  Branch
discontinuing SMB on the orders of the Government on October 12, 2007.

A new Permanent Secondment and Promotion Policy, which  was  issued  by  the
DGQA on November 16, 2007. Highlights of this Policy are as follows:
      (a)    Permanent  Secondment  will  be  restricted  to  the  rank   of
           Lieutenant Colonel.
      (b)   Upper cut off age for  consideration  for  permanent  Secondment
           will be 44 years, on 1st April of the year in which the  officer
           is being considered, after completion of two years of tenure.
      (c)    Officers  once  permanently  Seconded  will  continue  in   the
           organisation  till  they  retire  and  will  be  considered  for
           promotion to higher grades against their vacancies.

The effect of the  aforesaid  Policy  was  that  officers  once  permanently
Seconded to DGQA had right to continue in the said organisation  till  their
retirement.  They were also made eligible for  promotion  to  higher  grades
against their vacancies.  These promotions, they were to  earn  in  DGQA  as
per  the  aforesaid  Promotion  Policy  dated  November  16,  2007.    Since
supersession clause contained in the earlier Policy dated December 22,  1993
was also removed in this Policy, the effect there of was that there  was  no
bar for permanent Secondment in respect of those officers  who  had  earlier
incurred the disqualification for such permanent  Secondment  by  virtue  of
their  being  finally  superseded.   Benefit  thereof  was  given   to   the
respondent as well. He was permanently Seconded  to  DGQA  in  the  rank  of
Lieutenant Colonel on April 10, 2008.  Not only this, in terms of  Permanent
Secondment and Promotion Policy dated  November  16,  2007,  the  respondent
earned next promotion, i.e. to the rank of Colonel on October 22, 2008.

While things stood thus and the respondent had been working in the  capacity
of Colonel on permanent Secondment to DGQA, Ministry of Defence,  Department
of Department Production, issued Order dated April 23,  2010.   It  is  this
Order which is the  bone  of  contention  and  was  the  subject  matter  of
challenge before the Tribunal.  In this Order, it was stated that since  SMB
had been discontinued by the Army since 2006, the  effect  thereof  was  the
restoration of earlier Policy of 1993  which  contained  bar  for  permanent
Secondment in respect of those officers who  had  incurred  disqualification
because of their final supersession.   In  essence,  it  was  conveyed  that
those who were permanently seconded even after  discontinuation  of  SMB  in
the year 2006 in DGQA, it was a wrong move.  However, at the same  time,  in
respect of those officers where it had already been  done,  it  was  decided
that the same will not be withdrawn.   Likewise,  further  promotions  which
were given were also not required to be withdrawn.  However, it was  decided
that no further promotions would be given to such  officers.   This  was  so
stated in the Order dated April 23, 2010 in the following terms:
             “(a)  On the orders of Central Govt, Special Merit  Board  has
             been discontinued  by  the  Army  since  2006.   Consequently,
             tenure Officers finally non-empanelled (superseded)  will  not
             be considered for grant of permanent secondment in DGQA.


             (b)  Non-empanelled Officers (Lt Cols), who have been  granted
             permanent secondment in the DGQA in the past will  be  granted
             only one promotion to the next higher  rank  of  Col  (TS)  on
             completion of 26 years of service.  However, such officers  in
             DGQA  can  retire  as  per  norms  applicable   to   Permanent
             Secondment Service Officers in DGQA.  An option will be  given
             to such officers, if so desirous, for reversion  to  the  Army
             for their further  management.   This  clause  shall  also  be
             applicable to those  non-empanelled  officers  who  have  been
             granted the rank of Colonel in DGQA.


             (c)  OM No. F6(1)/2007/D(QA) dated 16 Nov 2007, will  be  made
             applicable prospectively for officers inducted on tenure after
             16 Nov 07.


             (d)  QASB for permanent secondment hereafter (with effect from
             2011) will be held taking 01st Oct of the year as the cut  off
             date.”




The respondent, naturally, felt aggrieved by this Order,  which  meant  that
he would not earn any further promotion in DGQA  even  when  the  appellants
did  not  disturb  his  permanent  Secondment  in  DGQA.   The   respondent,
accordingly, approached the Tribunal by filing an OA.

Contention of the respondent was that  the  above  Policy  dated  April  23,
2010,  though  looked  innocuous,  was  conceptually  flawed  and  downright
illegal because of the reason that persons like  the  respondent  and  other
similarly situated, who had been  granted  permanent  secondment  under  the
Policy dated November 16, 2007, were affected thereby.  Further, the  effect
thereof was to operate retrospectively by snatching the  rights  accrued  to
them, which amounted to violation of  Article  14  of  the  Constitution  of
India.  It was argued that as per the settled  law  the  said  Policy  dated
April 23, 2010 could not be applied retrospectively in respect of those  who
had already been permanently Seconded under the Policy  dated  November  16,
2007, which alone determined their conditions of service, including  further
promotions.

The appellants' refutation to the aforesaid plea of the respondent  was  not
only on merits but  contest  was  also  laid  to  the  jurisdiction  of  the
Tribunal to entertain the OA with such a relief.  It  was  argued  that  the
Tribunal had no jurisdiction to entertain the said OA as the impugned  order
dated April 23, 2010 was passed by the  Department  of  Defence  Production,
Ministry of Defence and the Tribunal could not deal  with  the  validity  of
such orders, which was outside its scope.  The appellants had also  referred
to the judgment passed by the Principal  Bench  of  the  Tribunal  in  Major
General S.B. Akali etc. etc. v. Union of India & Ors. (TA Nos. 125  and  221
of 2010, decided on April 09, 2010), where similar OA, albeit by an  officer
who was Seconded to DRDO, had been dismissed for want of jurisdiction.

The Tribunal, after hearing the  parties,  rendered  the  impugned  judgment
dated April 15, 2011.  It brushed aside the objection of the  appellants  to
the maintainability of the OA.  While doing so, the Tribunal  differed  with
the view expressed by the Principal Bench in the case of Major General  S.B.
Akali (supra) in somewhat curious manner, as would be noted later.

On merits, it accepted the contention of the respondent herein that  revised
Government Policy dated April 23,  2010,  which  fundamentally  changes  the
prospects of promotion of  the  respondent,  was  discriminatory.   It  also
amounted to retrospective amendment to the  promotion  policy,  which  could
not be to the detriment of an employee thereby taking the rights accrued  to
him by virtue of the Policy governing his terms and  conditions  of  service
as earlier  applicable  to  him.   Thus,  allowing  the  OA  partially,  the
Tribunal has directed the appellant authorities that  the  respondent  shall
be governed by the  provisions  of  DGQA  Policy  dated  November  16,  2007
without incorporating the provisions of the impugned Policy dated April  23,
2010 and he would be considered for further promotions in terms  of  earlier
Policy dated November 16, 2007.

The appellants filed appeal against this judgment under Section  31  of  the
AFT Act.  However, the said appeal was dismissed on April 16,  2012  on  the
ground that no civil appeal would be maintainable  unless  leave  to  appeal
was obtained under Section 31 of the AFT Act.  The appellants,  accordingly,
filed applications for leave to  appeal  before  the  Tribunal.   Leave  was
granted by the Tribunal vide orders dated August 24, 2012.  Armed  with  the
said leave, present appeal has been filed by the appellants questioning  the
validity of the impugned judgment,  both  on  jurisdiction  as  well  as  on
merits.

First and foremost  submission  of  Mr.  K.  Radhakrishnan,  learned  senior
counsel appearing for the appellants, was that in view of  the  judgment  of
the Principal Bench in Major General S.B. Akali (supra), it was not open  to
the Tribunal to have taken a different view, ignoring the said judgment  and
proceeding to consider the case on merits.   He  argued  that  even  if  the
concerned Bench was of the opinion that the  view  taken  by  the  Principal
Bench in Major General S.B. Akali (supra)  was  not  correct,  a  coordinate
Bench could, at the most, refer  the  matter  to  the  larger  Bench.   Even
otherwise, argued Mr. Radhakrishnan, the view  taken  by  the  Tribunal  was
totally perfunctory and without any cogent reasons.  Further, reasons  which
were given by the Principal Bench in the case of Major  General  S.B.  Akali
(supra) were not even dealt with by the Tribunal in the impugned judgment.

Mr. Radhakrishnan is perfectly justified  in  his  argument  that  the  only
course open to the Chandigarh Bench, which passed the  impugned  order,  was
to refer the matter to  the  larger  Bench  when  it  wanted  to  charter  a
different course than the one  adopted  by  the  Principal  Bench  in  Major
General S.B. Akali's case (supra).  In Sub-Inspector Rooplal & Anr.  v.  Lt.
Governor through Chief Secretary, (2000) 1 SCC 644, this Court  had  settled
this very issue in the following manner:
           “12. At the outset, we must express our serious  dissatisfaction
           in regard to the manner in  which  a  Coordinate  Bench  of  the
           Tribunal has  overruled,  in  effect,  an  earlier  judgment  of
           another Coordinate Bench of the same Tribunal. This  is  opposed
           to all  principles  of  judicial  discipline.  If  at  all,  the
           subsequent Bench of the Tribunal was of  the  opinion  that  the
           earlier view taken by the Coordinate Bench of the same  Tribunal
           was incorrect, it ought to have referred the matter to a  larger
           Bench  so  that  the  difference  of  opinion  between  the  two
           Coordinate Benches on the same point could have been avoided. It
           is not as if the latter Bench was unaware of the judgment of the
           earlier Bench but knowingly it proceeded to  disagree  with  the
           said judgment against all known rules of precedents.  Precedents
           which  enunciate  rules  of   law   form   the   foundation   of
           administration  of  justice  under  our  system.   This   is   a
           fundamental  principle  which  every  presiding  officer  of   a
           judicial forum ought to know, for consistency in  interpretation
           of law alone can lead  to  public  confidence  in  our  judicial
           system. This Court has laid down time and again  that  precedent
           law must be followed by all concerned; deviation from  the  same
           should be only on a procedure known to law. A subordinate  court
           is bound by the enunciation of law made by the superior  courts.
           A Coordinate Bench of a Court cannot pronounce judgment contrary
           to declaration of law made by another Bench. It can  only  refer
           it  to  a  larger  Bench  if  it  disagrees  with  the   earlier
           pronouncement.  This  Court  in   the   case   of   Tribhovandas
           [pic]Purshottamdas Thakkar v. Ratilal Motilal Patel, AIR 1968 SC
           372, while dealing with a case in which  a  Judge  of  the  High
           Court had failed to follow the  earlier  judgment  of  a  larger
           Bench of the same Court observed thus:


             “The judgment of the Full Bench of the Gujarat High  Court  was
             binding upon Raju, J. If the learned Judge was of the view that
             the decision of Bhagwati, J., in Pinjare Karimbhai case, (1962)
             3 Guj LR 529 and of Macleod, C.J., in Haridas  case,  AIR  1922
             Bom 149(2) did  not  lay  down  the  correct  law  or  rule  of
             practice, it was open to him to recommend to the Chief  Justice
             that the question be considered by  a  larger  Bench.  Judicial
             decorum, propriety and discipline required that he  should  not
             ignore it. Our system of  administration  of  justice  aims  at
             certainty in the law and that can be achieved only if Judges do
             not ignore decisions by courts of coordinate  authority  or  of
             superior authority. Gajendragadkar, C.J., observed  in  Bhagwan
             v. Ram Chand, AIR 1965 SC 1767:


              ‘It is hardly necessary to emphasise that  considerations  of
              judicial propriety and decorum  require  that  if  a  learned
              Single Judge hearing a matter is inclined to  take  the  view
              that the earlier decisions of the High Court,  whether  of  a
              Division Bench or of a Single Judge, need to be reconsidered,
              he should not embark upon that inquiry sitting  as  a  Single
              Judge, but should refer the matter to a Division  Bench,  or,
              in a proper case, place the relevant papers before the  Chief
              Justice to enable him to constitute a larger Bench to examine
              the question. That is the proper and traditional way to  deal
              with such matters and it is founded on healthy principles  of
              judicial decorum and propriety.’ ”


           13.   We are indeed sorry to note the attitude of  the  Tribunal
           in this case which, after noticing the  earlier  judgment  of  a
           Coordinate Bench and after noticing the judgment of this  Court,
           has still thought it fit to  proceed  to  take  a  view  totally
           contrary to the view  taken  in  the  earlier  judgment  thereby
           creating a judicial uncertainty in regard to the declaration  of
           law involved in this case.  Because  of  this  approach  of  the
           latter Bench of the Tribunal in this case,  a  lot  of  valuable
           time of the Court is wasted and the parties to  this  case  have
           been put to considerable hardship.”


We are conscious of the fact that  in  Rooplal's  case  (supra),  the  Court
itself chose to decide the controversy therein, because there  were  weighty
reasons to do so, as mentioned in para 14 of the  said  judgment.   However,
after hearing the parties at length, we prefer to refer the matter  back  to
the Tribunal to decide this issue by constituting a  larger  Bench.   Reason
is that the parties intend to rely upon  documents  which  were  not  placed
before the Tribunal.  Even matter has not been  thrashed  out  in  a  proper
perspective.  Therefore, some discussion is needed on this aspect, which  is
detailed hereinafter.

We note from the judgment of the  Principal  Bench  in  the  case  of  Major
General S.B. Akali (supra)  that  the  main  reason  for  holding  that  the
Tribunal did not have jurisdiction to deal with  the  matter  was  that  the
petitioner in that case, after he was Seconded to DRDO, was governed by  the
service conditions regulated by the provisions of  Office  Memorandum  dated
November 23, 1979 of the Government of India, Ministry of  Defence  and  the
controlling authority was the DRDO.  That was a case where  the  petitioner,
who was Seconded to DRDO in the rank of Major on February 21, 1981 and  rose
to the rank of Major General with effect from March 06, 2002, was not  given
further promotion to the post of Lieutenant  General.   It  is,  thus,  non-
promotion in DRDO which was the subject matter of challenge.  Though he  had
filed the writ petition  in  the  Delhi  High  Court  challenging  his  non-
selection and promotion, after the constitution of  Armed  Forces  Tribunal,
the matter was transferred to the Tribunal.  The Tribunal noted  that  since
the petitioner  was  permanently  seconded  to  DRDO  and  he  was  claiming
promotion to the post of Lieutenant General in DRDO, which was  governed  by
the Office Memorandum dated November  23,  1979  containing  the  provisions
relating to promotions in DRDO and it had nothing to do with the  Army  Act,
the Tribunal lacked the jurisdiction  to  entertain  the  matter.   Relevant
portion of the order passed by the Tribunal reads as under:
             “12.  We have bestowed our best of consideration and we are of
             the opinion that as per Section 2 read with  Section  3(o)  of
             the Armed Forces Tribunal Act, 2007, this Tribunal has limited
             jurisdiction to deal with the service conditions of  the  Army
             Act and Rules, but, the present case, which  relates  to  non-
             selection of the petitioner by the DRDO for the  rank  of  Lt.
             General and it is not  supersession  under  the  Army  Act  or
             Rules, it is under the DRDO Rules  of  the  Office  Memorandum
             dated 23rd November, 1989.  As such, this Tribunal cannot  sit
             over the  selection  by  DRDO  to  decide  the  issue  whether
             petitioner has been correctly superseded  or  not,  since  the
             service conditions of the seconded officers under the DRDO  is
             regulated by Office Memorandum dated 23rd November,  1979  and
             it is not under the  Army  Act  and  Rules.   Therefore,  this
             Tribunal will have no jurisdiction  to  decide  this  case  of
             supersession of petitioner for promotion to the  rank  of  Lt.
             General.


             13.  In this view of the matter,  we  uphold  the  preliminary
             objection of the learned counsel for the respondent and direct
             the Principal Registrar to remit this  case  back  to  Hon'ble
             Delhi High Court to decide the matter in accordance with law.


             14.  On the same lines is the case of Brig PJS Rangar  &  Brig
             Anand Solanki  (TA  No.  221  of  2010).   In  this  case  the
             incumbents were permanently seconded to  Director  General  of
             Quality Assurance.  It is  also  governed  by  OM  dated  28th
             October, 1978, as amended from time to  time.   In  this  case
             also the petitioners prayer is to  quash  the  OM  dated  18th
             February, 2008, letter dated 15th May,  2008  and  empanelment
             order dated 16th June, 2008 and direct the respondents to give
             effect to the empanelment order dated 31st  January  2008  and
             promote them to the rank of Major General in  accordance  with
             their seniority in the panel.


             15.  The service conditions are governed by the OM dated  28th
             October, 1978 and the non-selection of the petitioners are  by
             Director General Quality Assurance  of  Ministry  of  Defence.
             There is no breach of any service conditions  under  the  Army
             Act and Rules.  The non-selection  of  the  petitioner  is  on
             account of the service conditions as  mentioned  in  OM  dated
             28th October, 1978, as amended from time to time.   Therefore,
             the  objection  raised  by  the  learned   counsel   for   the
             respondent, in this case is also upheld and consequently it is
             held that this Tribunal has no jurisdiction  to  interfere  in
             this matter and direct the Principal Registrar to  remit  this
             case back to Hon'ble Delhi High Court to decide the matter  in
             accordance with law.”




When we traverse through the impugned order passed by the  Tribunal  in  the
instant case, we find that the aforesaid  judgment  in  Major  General  S.B.
Akali (supra) has been specifically taken note of.   However,  the  Tribunal
felt it appropriate not to rely upon on the said judgment,  which  it  could
not do so, having regard to the ratio in Rooplal's case  (supra).   What  is
intriguing is the reasons for coming  to  a  different  conclusion.   It  is
stated:
             “We have perused the evidence on record and heard the  learned
             counsels of both sides.   At the very  outset  we  proceed  to
             resolve the matter with regard to jurisdiction over the  case.
             Notwithstanding the fact that terms and conditions of  service
             of DGQA officers are inherently different from  those  of  the
             officers in their parent service, the subject  matter  in  the
             instant case bears an intricate connection  between  the  two.
             In fact, the policy  changes  brought  about  vide  Government
             letter dated 23-04-2010 are virtually a mirror  image  of  the
             changes brought about in the Army  sequel  to  the  system  of
             Selection Merit Board being revoked by the  Government.   This
             policy also gives option to the officers to revert back to the
             Army in the event of the changes not being found acceptable by
             them.   Further,  Regulations  for  the  Army,  1987  (Revised
             Edition) lay down at Pars 67 and 76 certain aspects  of  terms
             and conditions of service with regard to permanently  seconded
             officers in Inspection Organisations, the  former  designation
             of DGQA, suggesting a degree of  duality  of  jurisdiction  on
             certain matters.  As such, with due  deference  to  the  cited
             judgment of the Hon'ble Principal Bench  and  without  setting
             any precedence,  we  are  inclined  to  admit  this  case  for
             adjudication by this Tribunal.”




22) The aforesaid approach  cannot  be  countenanced.   First  of  all,  the
reasons given by the Principal Bench in the  case  of  Major  General  S.B.
Akali (supra) are not dealt with at all.  It is strange on the part of  the
Tribunal to proceed with the matter on merits by observing that it  was  so
done 'without setting any precedence'.  If a  Tribunal  lacks  jurisdiction
then there is no question of proceeding with the matter  in  a  given  case
taking umbrage under the facade of not treating it as a precedence.   In  a
matter of jurisdiction,  there  are  only  two  alternatives.   Either  the
Tribunal has the jurisdiction or it has no jurisdiction.  There is no third
alternative to proceed with the matter with the statement that it will  not
be treated as precedent.


23) We would like to mention here that Gp. Capt. Karan Sing  Bhati,  learned
counsel who appeared for the respondent, had argued at length that such  an
OA was maintainable and the Tribunal had the  necessary  jurisdiction.   In
support, he referred to statutory provisions, namely, Section 2 of the Act,
as per which AFT Act applies to all persons subject to the Army  Act,  1950
and argued that since the respondent was subject to the Army Act,  AFT  Act
was applicable to him.  He also submitted that  the  respondent  was  still
subject to the Army Act insofar as matter relating to court  martial,  etc.
were concerned.  He also referred to the definition of Section 3(o),  which
defines 'Service Matters' and submitted that it was couched in a very  wide
language and would include the subject matter of the  instant  proceedings.
He also took support from the provisions contained in Section 3(n)  of  the
AFT Act, which defines 'Service' to mean  the  service  within  or  outside
India and submitted that even if the respondent was Seconded to DGQA,  that
would not make any difference.  Some provisions of the Army Act as well  as
certain Regulations framed under the Army Act were also relied  upon.   Mr.
Bhati also referred to various official documents in support.


No doubt, it is open to Mr. Bhati to refer to the  statutory  provisions  in
the AFT Act or even the Army Act in support  of  his  submission.  But  many
other documents of which the learned counsel is relying upon were  not  part
of the record before the Tribunal.  Secondly, as already pointed out  above,
no such aspects are  considered  either  by  the  Chandigarh  Bench  in  the
impugned judgment or by the Principal Bench in Major  General  S.B.  Akali's
case (supra). We may  point  out  that  merely  because  the  respondent  is
subject to Army Act would not by itself be sufficient to conclude  that  the
Tribunal has the jurisdiction to deal with any case  brought  before  it  by
such a person.  It would depend upon the subject  matter  which  is  brought
before the Tribunal and the Tribunal is also required  to  determine  as  to
whether such a subject  matter  falls  within  the  definition  of  'Service
Matters', as contained in Section 3(o) of the AFT  Act.   In  Major  General
S.B. Akali's case (supra),  the  Principal  Bench  primarily  went  by  this
consideration.  The subject matter was promotion to the rank  of  Lieutenant
General and this promotion was  governed  by  the  Rules  contained  in  the
Policy of DRDO and not under the Army Act.  Therefore, in the instant  case,
it is required to be examined as to whether the relief claimed  is  entirely
within the domain of DGQA or for that matter, the Ministry of Defence or  it
can still be treated as Service Matter under Section 3(o)  of  the  AFT  Act
and two aspects are intertwined and  inextricably  mixed  with  each  other.
Such an exercise is to be taken on the basis of documents produced  by  both
the sides.  That has not been done.  For this reason, we deem it  proper  to
remit the case back to the Tribunal to decide the question  of  jurisdiction
keeping in view these parameters.

If the Tribunal holds that it is vested with the necessary  jurisdiction  to
entertain the OA, the Tribunal will obviously go  into  the  merits  of  the
case  as  well.   For  that  purpose,  some  aspects  which  shall   require
determination also need to be spelled out,  inasmuch  as,  in  the  impugned
order the focus of the Tribunal was limited and the  material  and  relevant
aspects of the issue have not been gone into.

As pointed out above,  the  Tribunal  has  partly  allowed  the  OA  of  the
respondent primarily on the  ground  that  the  decision  contained  in  the
Government  order  dated  April  23,  2010  amends  the   promotion   policy
retrospectively thereby taking  away  the  rights  already  accrued  to  the
respondent in terms of the earlier policy.  It is also  mentioned  that  the
revised  policy  fundamentally  changes   the   applicant's   prospects   of
promotion.  What is ignored is that the promotions already  granted  to  the
respondent  have  not  been  taken  away.   Insofar  as  future  chances  of
promotions are concerned, no vested right accrues as chance of promotion  is
not a condition of service.  Therefore, in the first instance, the  Tribunal
will have to spell out as to what was the vested  right  which  had  already
accrued to the respondent and that is taken  away  by  the  Policy  decision
dated April 23, 2010.  In this process, other thing which  becomes  relevant
is to consider that once the respondent is permanently seconded in DGQA  and
he is allowed to remain  there,  can  there  be  a  change  in  his  service
conditions vis-a-vis others who are his  counterparts  in  DGQA,  but  whose
permanent Secondment is not in cloud?  To put it otherwise, the sole  reason
for issuing Government Policy dated April 23,  2010  was  to  take  care  of
those cases where permanent Secondment to DGQA was wrongly  given.   As  per
the appellants, since the respondent had  suffered  Final  Supersession,  he
was not entitled to be Seconded permanently to DGQA.  This  is  disputed  by
the respondent.  That aspect will have to be  decided  first.   That  apart,
even it be so, as contended by  the  appellants,  the  appellants  have  not
reccalled the permanent Secondment order.  They have allowed the  respondent
to stay in DGQA maintaining his promotion as  Colonel  as  well,  which  was
given pursuant to this Secondment.  The  question,  in  such  circumstances,
that would arise is whether the respondent can be treated  differently  even
if he is allowed to remain in DGQA, viz. whether not allowing  him  to  take
further promotions,  which  benefit  is  still  available  to  others  whose
permanent Secondment is not in dispute, would amount  to  discrimination  or
arbitrariness thereby offending Articles 14 and 16 of  the  Constitution  of
India.  In our opinion, these, and other related issues,  will  have  to  be
argued and thrashed out for coming to a proper conclusion.

As a result, this appeal is allowed.   The  impugned  order  passed  by  the
Tribunal is set aside.  The matter is remitted to the Tribunal for  deciding
the OA by a larger Bench by having proper perspective in mind, as  discussed
in this judgment.    Both  the  sides  shall  have  right  to  file  further
documents they want to rely upon.
                 There shall, however, be no order as to costs.



                             .............................................J.
                                                          (DR. B.S. CHAUHAN)



                             .............................................J.
                                                                (A.K. SIKRI)

New Delhi;
May 28, 2014.

















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