The potential illegal usurpation of office if an employee is allowed to continue in service based on an interim order that is later dismissed.

JUDGMENT

Sanjeev Sachdeva, J. (Oral)

1. Petitioner-Union of India impugns interim order dated 25.07.2023 passed by the Armed Forces Tribunal (hereinafter referred to as the Tribunal) whereby the Tribunal has directed that petitioners (herein) shall keep in abeyance the discharge/superannuation of respondent till the pronouncement of Judgment by it.

2. Issue Notice. Notice is accepted by Learned Counsel for the Respondent. With the consent of Parties, Petition is taken up for final disposal.

3. Respondent was serving in the rank of Colonel in the Indian Army and was to superannuate on attaining the age of 58 years in the said rank on 31.07.2023.

4. Respondent had filed the subject Petition before the Tribunal impugning the rejection of the respondent for promotion to the rank of Brigadier in the Indian Army. On promotion, respondent would have been entitled to serve for an additional period of two years in the Indian Army.

5. The impugned order dated 25.07.2023 records that arguments are heard and orders are reserved. The order also records that the respondent was attaining the age of superannuation on 31.07.2023 and notices the contention of learned counsel that in case he were to be promoted, he would get two years' extension of service for superannuation in the promoted post. Consequently, a prayer was made before the Tribunal that the retirement of the respondent be stayed.

6. The Tribunal in impugned order has recorded as under:

"3. We have gone through the original records of the Selection Board Proceedings and considering various aspects at the time of hearing and on going through the various issues involved in the matter, particularly the Promotion Board, we find that the prima facie case is made out in favour of the petitioner and in the interest of justice it requires that till the decision is taken finally by us on the application, discharge/superannuation of the applicant to be kept in abeyance. If the applicant is discharged now and ultimately, if application is allowed, it may create complication and will have adverse impact on the applicant's career.

4. Keeping in view the aforesaid, as an interim measure, we direct the respondents to keep in abeyance the discharge/superannuation of the applicant, till the pronouncement of the judgment. All endeavour would be made for pronouncement at an earlier date."

7. The Tribunal no doubt has returned a prima facie finding in favour of the respondent, however, has directed that the discharge/superannuation of the respondent be kept in abeyance till the judgment is pronounced.

8. Respondent attained the age of superannuation in the rank of Colonel on 31.07.2023. By the interim order, respondent has been permitted to continue and his superannuation date has been postponed indefinitely till the judgment is pronounced. Petitioner was serving as a Colonel and as on date has already crossed the superannuation age in the rank of Colonel i.e. 58 years.

9. If one were to balance equities between the parties then if respondent were to succeed before the Tribunal and is promoted to the next higher rank of Brigadier then he can be reinstated with full benefits and seniority retrospectively. However, in case respondent were not to succeed in the petition, the period for which respondent would continue to serve pursuant to the impugned interim order would in effect be an illegal usurpation of office.

10. Reference may be had to the decision of the Supreme Court in State of Haryana v. Suman Datta, (2000)10 SCC 311 wherein the Supreme Court has held as under:

".........By such interim order if an employee is allowed to continue in service and then ultimately the writ petition is dismissed, then it would tantamount to usurpation of public office without any right to the same........."

11. Consequently, we are of the view that the impugned order directing that the superannuation of the respondent be kept in abeyance cannot be sustained. The same is accordingly set aside.

12. Keeping i