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SUPREME COURT OF INDIA
DR. B.S. CHAUHAN, A.K. SIKRI, JJ.
UNION OF INDIA & ORS. – APPELLANTS
VERSUS
COL. GS GREWAL – RESPONDENTS
CIVIL APPEAL NO. 3879 OF 2013
Decided On : 28-05-2014
TA Nos. 125 and 221 of 2010; (2000) 1 SCC 644 – Relied upon
(b) Administration of Justice – Jurisdiction – Principal Bench holding that Tribunal does not have jurisdiction in matters like instant one – Tribunal noticing the judgment but without dealing with the reasons given by Principal Bench proceeding to decide the matter on merits merely stating it is not setting any precedent – In a matter of jurisdiction either the Tribunal has the jurisdiction or it has no jurisdiction – Merely by stating that it is not setting precedent, Tribunal cannot assume jurisdiction. (Para 23)
(c) Administration of Justice – Judicial propriety – Counsel for respondent referring to many documents which were not brought before the Tribunal – Not permissible. (Para 24)
(d) Army Act, 1950 – Section 2 r/w AFT Act – Applicability – Armed Forces Tribunal will not have jurisdiction to deal with any matter brought before it by a person merely because that person is subject to Army Act – Matter remitted back to the Tribunal to decide the question of jurisdiction (Para 25)
(e) Service Law – Armed Forces service – Policy in question not taking away any accrued vested right – It only puts conditions for future promotions – Promotions not being vested right, no infirmity. (Para 27)
Facts of the case:
The respondent was Seconded to DGQA in the rank of Major. At that time, it was temporary Secondment.
While the respondent was in the rank of Major in the Army, he was considered for promotion to Lieutenant Colonel. However, he could not be promoted because of certain reasons. When he failed to secure promotion even after specified no. of chances, the respondent was finally superseded in the Army, in the rank of Major. Therefore he wasl not entitled to permanent Secondment to DGQA and was to be reverted back.
In view of the 'A.V. Singh Committee Report' the respondent was promoted as Lieutenant Colonel when he was in DGQA organisation, which he had joined barely a month.
However this policy was discontinued in 2007 and a new Permanent Secondment and Promotion Policy, was issued by the DGQA.
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. There was thus 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. The respondent was therefore permanently Seconded to DGQA in the rank of Lieutenant Colonel. 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.
At this stage when 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 stating that since SMB had been discontinued, the policy prevailing earlier was restored debarring permanent secondment who were finally superseded. However, it was decided that no further promotions would be given to such officers.
This Order meant that the respondent would not earn any further promotion in DGQA even when the appellants did not disturb his permanent Secondment in DGQA.
The respondent therefore filed OA before the Tribunal which was partly allowed.
Finding of the Court:
The Tribunal differing with views of a coordinate Bench ought to refer the matter to a larger Bench.
Result: Appeal allowed.
JUDGMENT
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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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 tha
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