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IN THE HIGH COURT OF ALLAHABAD
DEVENDRA KUMAR UPADHYAYA, IRSHAD ALI, JJ.
Brigadier Javed Iqbal - Petitioner
Versus
Union of India, Through Secretary Ministry of Defence and Others - Respondents
Writ - A No. 1006 of 2022
Decided On : 25-02-2022
Armed Forces Tribunal - Promotion Dispute - Armed Forces Tribunal Act, 2007, Section 31 - The court discussed the judgment and order dated 07.01.2022 passed by the Armed Forces Tribunal, which held the petitioner entitled to promotion to the post of Additional Major General (Litigation) in Judge Advocate General's Branch with all consequential benefits from the date of declassification of No.1 Selection Board's result. The court highlighted the provisions of the Armed Forces Tribunal Act, 2007, particularly Section 31, and emphasized the failure of the respondents to promptly implement the order of the Tribunal, leading to the petitioner's retirement. The court quashed the order dated 15.02.2022 passed by the Armed Forces Tribunal and directed the Tribunal to keep the petitioner's retirement in abeyance until the final disposal of the Execution Application No.11 of 2022, and expedite the proceedings within eight weeks. The court also prohibited the filling of the second vacancy on the post of Major General (Litigation) in Judge Advocate General's Branch until the final decision on the Execution Application.
Fact of the Case:
The petitioner sought promotion to the post of Additional Major General (Litigation) in Judge Advocate General's Branch, as per the judgment and order dated 07.01.2022 passed by the Armed Forces Tribunal. The petitioner faced supersession by an Officer junior to him and denial of the implementation of the judgment and order. The petitioner filed a writ petition challenging the rejection of his interim application by the Armed Forces Tribunal.
Finding of the Court:
The court found that the Armed Forces Tribunal failed to exercise its jurisdiction by rejecting the petitioner's prayer and quashed the order dated 15.02.2022. The court directed the Tribunal to keep the petitioner's retirement in abeyance, expedite the proceedings, and prohibited the filling of the second vacancy on the post of Major General (Litigation) in Judge Advocate General's Branch.
Issues: The issues involved the petitioner's entitlement to promotion, the failure of the respondents to implement the Tribunal's order, and the denial of the petitioner's interim relief by the Armed Forces Tribunal.
Ratio Decidendi: The court held that the respondents ought to have promptly implemented the order of the Tribunal, considering the petitioner's impending retirement. The court emphasized the failure of the Armed Forces Tribunal to exercise its jurisdiction and granted relief to the petitioner.
Final Decision: The writ petition was allowed, the order dated 15.02.2022 passed by the Armed Forces Tribunal was quashed, and the Tribunal was directed to keep the petitioner's retirement in abeyance, expedite the proceedings, and prohibit the filling of the second vacancy on the post of Major General (Litigation) in Judge Advocate General's Branch.
JUDGMENT :
1. Heard the petitioner, Brigadier Javed Iqbal in person and Sri S.B. Pandey, learned Senior Advocate/Assistant Solicitor General of India assisted by Sri Varun Pandey, for the respondents.
2. These proceedings under Article 226 of the Constitution of India have been instituted by the petitioner impeaching the order dated 15.02.2022 whereby Misc. Application No.137 of 2022 filed by the petitioner in Execution Application No.11 of 2022 has been rejected by the Lucknow Bench of Armed Forces Tribunal.
3. At this juncture itself, we may note that the Execution Application No.11 of 2022 was filed by the petitioner before the Armed Forces Tribunal seeking execution of the judgment and order dated 07.01.2022 whereby the Original Application preferred by the petitioner in respect of his promotion to the post of Additional Major General (Litigation) in Judge Advocate General's Branch was allowed. The operative portion of the said judgment and order dated 07.01.2022 which finds mentioned in para 21 of the said judgment is extracted herein below:-
4. From the aforequoted operative portion of the judgment and order dated 07.01.2022 passed by the Armed Forces Tribunal, it is clear that the petitioner has been held entitled to be promoted to the post of Additional Major General (Litigation) in Judge Advocate General's Branch with all consequential benefits from the date of declassification of No.1 Selection Board's Result i.e. 05 May, 2021. In view of the aforesaid finding regarding entitlement of the petitioner to be promoted on the post of Additional Major General that the respondents were directed to promote him to the post in question with all consequential benefits w.e.f. 05 May, 2021. The Tribunal has clearly directed that, "the order shall be given effect to forthwith".
5. The petitioner is presently holding the rank of Brigadier and if he retires while holding the post of Brigadier, as per rules he will retire on 28.02.2022. However, if he is promoted as per his entitlement in terms of the judgment and order dated 07.01.2022 passed by the Armed Forces Tribunal, to the post of Additional Major General, he shall retire on 28.02.2023. Considering the fact that his age of retirement as Brigadier is to ensue soon on 28.02.2022, the petitioner immediately instituted the execution proceeding by filing Execution Application no.11 of 2022 on 17.01.2022. The said Execution Application was taken up by the Armed Forces Tribunal on 19.01.2022, on which date the Tribunal ordered that the said application be listed on 28.01.2022. On 28.01.2022 the Execution Application was again heard, however, it was again ordered to be listed on 07.03.2022.
6. It is noticeable at this juncture itself that the respondents had moved an application seeking leave to appeal as per requirement of sub-section (2) of Section 31 of Armed Forces Tribunal Act, 2007 which was considered and rejected by the Armed Forces Tribunal on 28.01.2022 itself. Thereafter it appears that an Officer junior to the petitioner, namely, Brigadier Vijay Kumar was promoted to the post of Major General superseding the petitioner. Accordingly feeling aggrieved by the said action on the part of the respondents, firstly on account of non implementation of the judgment and order dated 07.01.2022 passed by the Armed Forces Tribunal and secondly on account of promotion of an Officer junior to him to the next higher post superseding him, he filed Writ Pe
The central legal point established is the obligation of the respondents to promptly implement the order of the Tribunal, especially considering the petitioner's impending retirement, and the failure....
Interim orders on promotions pending adjudication of an application must ensure timely resolution, especially when retirement is imminent.
The Armed Forces Tribunal has exclusive jurisdiction over service matters concerning members of the armed forces, including those on deputation, as defined under the Armed Forces Tribunal Act, 2007.
The Armed Forces Tribunal's decisions are appealable only to the Supreme Court, not the High Court, affirming jurisdictional boundaries.
Courts may refrain from interfering in matters pending before specialized tribunals, and provisional decisions may be deemed pending the final decision of the tribunal.
Armed Forces Tribunal would be subject to jurisdiction of High Court in Article 226 – Tribunal subject to High Court’s jurisdiction under Article 226, cannot be permitted by law, to direct framing of....
Promotion decisions within the armed forces require thorough examination of facts and consideration of balance of convenience, especially when retirement is imminent.
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