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SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
LT. COL. VIJAYNATH JHA – APPELLANT
VERSUS
UNION OF INDIA & ORS. – RESPONDENTS
CIVIL APPEAL NO.2020 OF 2013
Decided on : 18-05-2018
(b) Armed Forces Tribunal Act, 2007 – Section 3(o) – Service matter – Expression “any other matter whatsoever” in clause (iv) – Appellant given a tenure of two years in DGQA – Thereafter returning back to Army – Appellant’s claim for permanent secondment in the DGQA considered and rejected by QASB – DGQA separate Organisation – Question of appellant’s permanent secondment considered by Selection Board of DGQA – The decision not to grant permanent secondment to the appellant in DGQA not affecting his service conditions in any manner – AFT had no jurisdiction to entertain the complaint – Section 2, Armed Forces Tribunal Act, 2007. (Para 14, 15, 22)
(2014) 7 SCC 303; (2017) 3 SCC 740; (2017) 3 SCC 740 – Relied upon
T.A. No. 125 of 2010 – Cited with approval
(c) Army Act, 1950 – Section 27 and 33 – Appellant not wronged by a commanding officer or any superior officer – Appellant also not claiming any privilege conferred by any law or subject to Army Act – Held, sections 27 and 33 not applicable instantly. (Para 25, 27)
Facts of the case:
The appellant was commissioned in the Indian Army on 11.03.1989 in the Engineering Discipline. The appellant was subsequently selected and inducted in the Directorate General of Quality Assurance (DGQA) from 31.05.2004. On completion of two years the appellant was transferred to the Directorate of Indigenization under DGEME. Quality Assurance Selection Board (QASB) was held at DGQA organisation for selection of the officers of the rank of Lt. Col. and Major for permanent secondment. The appellant was not found fit for permanent secondment by the QASB. The appellant filed a statutory complaint seeking permanent secondment in the DGQA. The complaint was submitted at the time when the appellant was working in the Army. The complaint was forwarded to the Ministry of Defence. Since, the complaint pertained to DGQA organisation, the statutory complaint of the appellant was rejected. O.A. No.104 of 2011 was filed by the appellant before the Armed Forces Tribunal, Regional Bench, Lucknow praying for quashing the order dated 17.12.2007 and issuing a direction to the respondent to grant permanent secondment to the DGQA organisation with all consequential benefits retrospectively.
The Armed Forces Tribunal held that O.A. is not maintainable.
Finding of the Court:
The AFT did not commit any error.
Result: Appeal dismissed.
JUDGMENT
ASHOK BHUSHAN, J.
We have heard the appellant appearing in-person and Shri Sandeep Sethi, learned Additional Solicitor General for India.
2. This appeal has been filed by the appellant questioning the judgment and order dated 23.08.2012 passed by the Armed Forces Tribunal, Regional Bench, Lucknow by which O.A.No.104 of 2011 filed by the appellant has been rejected as not maintainable and returned to the appellant with liberty to file the same before the concerned authority.
3. Brief facts of the case necessary to be noted for deciding the issues raised in the appeal are:
The appellant was commissioned in the Indian Army on 11.03.1989 in the Engineering Discipline. The appellant was subsequently selected and inducted in the Directorate General of Quality Assurance (DGQA) from 31.05.2004. On completion of two years the appellant was transferred to the Directorate of Indigenization under DGEME. Quality Assurance Selection Board (QASB) was held at DGQA organisation for selection of the officers of the rank of Lt. Col. and Major for permanent secondment. The appellant was not found fit for permanent secondment by the QASB. The appellant filed a statutory complaint seeking permanent secondment in the DGQA. The complaint was submitted at the time when the appellant was working in the Army. The complaint was forwarded to the Ministry of Defence. Since, the complaint pertained to DGQA organisation, the Government of India, Ministry of Defence, Department of Defence Production by order dated 17.12.2007 rejected the statutory complaint of the appellant. O.A. No.104 of 2011 was filed by the appellant before the Armed Forces Tribunal, Regional Bench, Lucknow praying for quashing the order dated 17.12.2007 and issuing a direction to the respondent to grant permanent secondment to the DGQA organisation with all consequential benefits retrospectively.
4. A counter-affidavit was filed in O.A. by the respondent. When the O.A. was taken for hearing by the Armed Forces Tribunal on 23.08.2012 a preliminary objection was raised by the respondent that the relief claimed by the applicant in the O.A. is not maintainable in the Armed Forces Tribunal. The Armed Forces Tribunal heard the parties on the above preliminary objection and vide order dated 23.08.2012 held that O.A. is not maintainable. It is useful to extract paragraph 16 of the judgment which is to the following effect:
"16.The applicant's main grievance is that he was not considered for permanent seconded, DGQA organisation and we find no breach in the Army Act and the Army Rules and it is a separate organisation with the guideline for induction, appointment and promotion and Service HQ has no role in grant of second tenure of (sic) permanent secondment of any officer under the Army Act. The terms and condition of the service officers in DGQA is not creation of the Army Act or the Army Rules and the Armed Forces Tribunal is not the right forum for adjudication of DGQA matters. Hence the Original Application is not maintainable and is returned to the applicant with the liberty to file the same before the concerned authority.”
5. A miscellaneous application was filed by the applicant before the Tribunal seeking leave to appeal to this Court which application was rejected on 11.09.2012. This appeal has been filed challenging the order dated 23.08.2012 and order dated 11.09.2012.
6. A counter-affidavit has been filed in this appeal by the respondent reiterating their objection that the relief which was claimed by the appellant in O.A. was not maintainable before the Armed Forces Tribunal.
7. The appellant appearing in-person submits that in DGQA Officers are drawn from Armed Forces on tenure posting and thereafter their cases are considered for permanent secondment as per the Office Memorandum dated 28.10.1978 and Office Memorandum dated 22.12.1993. The DGQA is an organisation within the control of Ministry of Defence and is composed of persons subject to Army Act, 1950 including civilian persons
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