Permanent Commission challenge based on retrospective policy application is inadmissible post-participation in selection, affirming Tribunal's denial of interim relief.

JUDGMENT

Navin Chawla, J. (Oral)

These petitions have been heard through video conferencing.

1. These petitions have been filed challenging the orders dated 04.06.2021 passed by the learned Armed Forces Tribunal, Principal Bench, New Delhi in a batch of petitions filed by the petitioners herein, refusing grant of interim protection to the petitioners.

2. The petitioners were commissioned as Short Service Commissioned Officers (SSC). The respondent issued an HR Policy dated 16.01.2019 laying down conditions for such officers to be considered for a grant of a Permanent Commission. In terms of the said policy, the petitioners were considered for grant of Permanent Commission in 2019 and 2020. They were again considered in the year 2021, however, on all three occasions were found unfit for the grant of the Permanent Commission. Aggrieved of the order dated 24.05.2021 refusing to grant Permanent Commission, the petitioners approached the learned Tribunal on 03.06.2021 making common prayers, which are reproduced hereinunder from WP(C) 5913/2021:

"(A) Set aside the Policy dated 16.01.2019to the extent that it is unfair and arbitrary in terms of implementation;

(B) Direct Respondents to grant Permanent Commission to the Applicant;

(C) Direct the Respondents to produce signal/documents related to the declassification of vacancies with respect to the SSC Officers for the BOO of 2019, 2020 and 2021;"

3. The learned Tribunal by way of the Impugned Orders has refused to grant interim protection to the petitioners, which is in challenge before this Court in the present batch of petitions.

4. The learned counsel for the petitioners submits that the petitioners have been unfairly denied the grant of Permanent Commission without assigning any reason for the same. She submits that even if a relief is later granted to the petitioners, the petitioners may suffer prejudice in form of seniority and rank. She submits that the learned Tribunal has also erred in placing reliance on the judgment dated 04.06.2021 of this Court in Wg. Cdr. Nidhi Badhani vs. Union of India & Ors., W.P.(C) 5871/2021, inasmuch as in the present case there is no challenge to the HR Policy dated 16.01.2019 of the respondent; the only challenge is to the retrospective application thereof to the petitioners.

5. We have considered the submissions made by the learned counsel for the petitioners, however, find no merit in the same. The prayers made by the petitioners in the O.A. (s) have been reproduced hereinabove. The first prayer is a challenge to the HR Policy dated 16.01.2019 while the third prayer is a challenge to the consideration of the petitioners by the Board of Officers in the years 2019, 2020 and 2021. As noted hereinabove, the petitioners approached the learned Tribunal only on 03.06.2021. The petitioners have also participated in the consideration process for grant of Permanent Commissions in terms of the HR Policy of 2019. Therefore, prima facie there appears to be not only considerable delay in filing of the petitions before the learned Tribunal but also the petitioners may be considered as estopped from challenging the retrospective application of the HR Policy of the respondents, having participated in the selection process in terms thereof.

6. This Court in Wg. Cdr. Nidhi Badhani (supra) had rejected a similar plea of interim protection by observing as under:

"8. Once the position in law is as aforesaid, i.e. that by interim order none can be permitted to occupy a public office and once the balance of convenience is in favour of the respondents and not in favour of the petitioner, inasmuch as the petitioner if ultimately succeeds can always be reinstate