Full Text
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IN THE SUPREME COURT OF INDIA
CIVIL APPEAL NO. 3879 OF 2013
UNION OF INDIA & ORS. .....APPELLANT(S)
JUDGMENT
(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.
Civil Appeal No. 3879 of 2013
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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.
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.
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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.
4)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.
5)After considering the case of an Army personnel for promotion to the higher rank, there can be supersession on merits. However, some
Page 4 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 that he lacked merit.
6)Since many officers were not getting promotions to the higher rank after they were finally superseded for no fault of theirs and with intent to make the Army profile younger, A.V. Singh Committee was constituted, which submitted its report known as 'A.V. Singh Committee Report'.
This Report recommended, which recommendation was even accepted, that all officers in the Army holding the rank of Major, who had completed 13 years of service, were to be promoted to the rank of
Lieutenant Colonel, irrespective of whether such personnel were finally superseded or not. Acting on the recommendation of this Report, the
Page 5 respondent, along with many others, was promoted as Lieutenant
Colonel on December 16, 2004, when he was in DGQA organisation, which he had joined barely a month ago, i.e. on November 06, 2004.
7)Policy letter dated January 16, 2005 was issued by M.S. Branch whereby Special Merit Board (SMB) was introduced to give effect to the
A.V. Singh Committee Report's recommendation. However, within two and a half years, i.e. on July 18, 2007, M.S. Branch intimated stoppage of SMB Policy with immediate effect. Letter to this effect was issued by the M.S. Branch discontinuing SMB on the orders of the Government on October 12, 2007.
8)A new Permanent Secondment and Promotion Policy, which was issued by the DGQA on November 16, 2007. Highlights of this Policy are as follows:
(a) Permanent Secondment will be restricted to the rank of
Lieutenant Colonel.
(b) Upper cut off age for consideration for permanent
Secondment will be 44 years, on 1st April of the year in which the officer is being considered, after completion of two years of tenure.
(c) Officers once permanently Seconded will continue in the
Page 6 organisation till they retire and will be considered for promotion to higher grades against their vacancies.
9)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. These promotions, they were to earn in
DGQA as per the aforesaid Promotion Policy dated November 16,
2007. Since supersession clause contained in the earlier Policy dated December 22, 1993 was also removed in this Policy, the effect there of was that there was 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. Benefit thereof was given to the respondent as well. He was permanently Seconded to DGQA in the rank of Lieutenant Colonel on April 10, 2008. 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 on October 22, 2008. 10)While things stood thus and 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 Page 7 April 23, 2010. It is this Order which is the bone of contention and was the subject matter of challenge before the Tribunal. In this Order, it was stated that since SMB had been discontinued by the Army since 2006, the effect thereof was the restoration of earlier Policy of 1993 which contained bar for permanent Secondment in respect of those officers who had incurred disqualification because of their final supersession. In essence, it was conveyed that those who were permanently seconded even after discontinuation of SMB in the year 2006 in DGQA, it was a wrong move. However, at the same time, in respect of those officers where it had already been done, it was decided that the same will not be withdrawn. Likewise, further promotions which were given were also not required to be withdrawn. However, it was decided that no further promotions would be given to such officers. This was so stated in the Order dated April 23, 2010 in the following terms: “(a) On the orders of Central Govt, Special Merit Board has been discontinued by the Army since 2006. Consequently, tenure Officers finally non-empanelled (superseded) will not be considered for grant of permanent secondment in DGQA. (b) Non-empanelled Officers (Lt Cols), who have been granted permanent secondment in the DGQA in the past will be granted only one promotion to the next higher rank of Col (TS) on completion of 26 years of service. However, such officers in DGQA can retire as per norms applicable to Permanent Secondment Service Officers in DGQA. An option will be given to such officers, if so desirous, for reversion to the Army for their further management. This clause shall also be applicable to those non-empanelled officers who have been granted the rank of Colonel in Page 8 DGQA.
(c) OM No. F6(1)/2007/D(QA) dated 16 Nov 2007, will be made applicable prospectively for officers inducted on tenure after 16 Nov 07.
(d) QASB for permanent secondment hereafter (with effect from 2011) will be held taking 01st Oct of the year as the cut off date.” 11)The respondent, naturally, felt aggrieved by this Order, which meant that he would not earn any further promotion in DGQA even when the appellants did not disturb his permanent Secondment in DGQA. The respondent, accordingly, approached the Tribunal by filing an OA. 12)Contention of the respondent was that the above Policy dated April 23, 2010, though looked innocuous, was conceptually flawed and downright illegal because of the reason that persons like the respondent and other similarly situated, who had been granted permanent secondment under the Policy dated November 16, 2007, were affected thereby. Further, the effect thereof was to operate retrospectively by snatching the rights accrued to them, which amounted to violation of Article 14 of the Constitution of India. It was argued that as per the settled law the said Policy dated April 23, 2010 could not be applied retrospectively in respect of those who had already been permanently Seconded under the Policy dated November 16, 2007, which alone determined their conditions of service, including Page 9 further promotions. 13)The appellants' refutation to the aforesaid plea of the respondent was not only on merits but contest was also laid to the jurisdiction of the Tribunal to entertain the OA with such a relief. It was argued that the Tribunal had no jurisdiction to entertain the said OA as the impugned order dated April 23, 2010 was passed by the Department of Defence Production, Ministry of Defence and the Tribunal could not deal with the validity of such orders, which was outside its scope. The appellants had also referred to the judgment passed by the Principal Bench of the Tribunal in Major General S.B. Akali etc. etc. v. Union of India & Ors. (TA Nos. 125 and 221 of 2010, decided on April 09, 2010), where similar OA, albeit by an officer who was Seconded to DRDO, had been dismissed for want of jurisdiction. 14)The Tribunal, after hearing the parties, rendered the impugned judgment dated April 15, 2011. It brushed aside the objection of the appellants to the maintainability of the OA. While doing so, the Tribunal differed with the view expressed by the Principal Bench in the case of Major General S.B. Akali (supra) in somewhat curious manner, as would be noted later. Page 10 15)On merits, it accepted the contention of the respondent herein that revised Government Policy dated April 23, 2010, which fundamentally changes the prospects of promotion of the respondent, was discriminatory. It also amounted to retrospective amendment to the promotion policy, which could not be to the detriment of an employee thereby taking the rights accrued to him by virtue of the Policy governing his terms and conditions of service as earlier applicable to him. Thus, allowing the OA partially, the Tribunal has directed the appellant authorities that the respondent shall be governed by the provisions of DGQA Policy dated November 16, 2007 without incorporating the provisions of the impugned Policy dated April 23, 2010 and he would be considered for further promotions in terms of earlier Policy dated November 16, 2007. 16)The appellants filed appeal against this judgment under Section 31 of the AFT Act. However, the said appeal was dismissed on April 16, 2012 on the ground that no civil appeal would be maintainable unless leave to appeal was obtained under Section 31 of the AFT Act. The appellants, accordingly, filed applications for leave to appeal before the Tribunal. Leave was granted by the Tribunal vide orders dated August 24, 2012. Armed with the said leave, present appeal has been filed by the appellants questioning the validity of the impugned judgment, both Page 11 on jurisdiction as well as on merits. 17)First and foremost submission of Mr. K. Radhakrishnan, learned senior counsel appearing for the appellants, was that in view of the judgment of the Principal Bench in Major General S.B. Akali (supra), it was not open to the Tribunal to have taken a different view, ignoring the said judgment and proceeding to consider the case on merits. He argued that even if the concerned Bench was of the opinion that the view taken by the Principal Bench in Major General S.B. Akali (supra) was not correct, a coordinate Bench could, at the most, refer the matter to the larger Bench. Even otherwise, argued Mr. Radhakrishnan, the view taken by the Tribunal was totally perfunctory and without any cogent reasons. Further, reasons which were given by the Principal Bench in the case of Major General S.B. Akali (supra) were not even dealt with by the Tribunal in the impugned judgment. 18)Mr. Radhakrishnan is perfectly justified in his argument that the only course open to the Chandigarh Bench, which passed the impugned order, was to refer the matter to the larger Bench when it wanted to charter a different course than the one adopted by the Principal Bench in Major General S.B. Akali's case (supra). In Sub-Inspector Rooplal & Anr. v. Lt. Governor through Chief Secretary, (2000) 1 Page 12 SCC 644, this Court had settled this very issue in the following manner: “12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the Tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same Tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same Tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel, AIR 1968 SC 372, while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus: “The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J., in Pinjare Karimbhai case, (1962) 3 Guj LR 529 and of Macleod, C.J., in Haridas case, AIR 1922 Bom 149(2) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be Page 13 achieved only if Judges do not ignore decisions by courts of coordinate authority or of superior authority. Gajendragadkar, C.J., observed in Bhagwan v. Ram Chand, AIR 1965 SC 1767: ‘It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that inquiry sitting as a Single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.’ ”
13. We are indeed sorry to note the attitude of the Tribunal in this case which, after noticing the earlier judgment of a Coordinate Bench and after noticing the judgment of this Court, has still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment thereby creating a judicial uncertainty in regard to the declaration of law involved in this case. Because of this approach of the latter Bench of the Tribunal in this case, a lot of valuable time of the Court is wasted and the parties to this case have been put to considerable hardship.” 19)We are conscious of the fact that in Rooplal's case (supra), the Court itself chose to decide the controversy therein, because there were weighty reasons to do so, as mentioned in para 14 of the said judgment. However, after hearing the parties at length, we prefer to refer the matter back to the Tribunal to decide this issue by constituting a larger Bench. Reason is that the parties intend to rely upon documents which were not placed before the Tribunal. Even matter Page 14 has not been thrashed out in a proper perspective. Therefore, some discussion is needed on this aspect, which is detailed hereinafter. 20)We note from the judgment of the Principal Bench in the case of Major General S.B. Akali (supra) that the main reason for holding that the Tribunal did not have jurisdiction to deal with the matter was that the petitioner in that case, after he was Seconded to DRDO, was governed by the service conditions regulated by the provisions of Office Memorandum dated November 23, 1979 of the Government of India, Ministry of Defence and the controlling authority was the DRDO. That was a case where the petitioner, who was Seconded to DRDO in the rank of Major on February 21, 1981 and rose to the rank of Major General with effect from March 06, 2002, was not given further promotion to the post of Lieutenant General. It is, thus, non-promotion in DRDO which was the subject matter of challenge. Though he had filed the writ petition in the Delhi High Court challenging his nonselection and promotion, after the constitution of Armed Forces Tribunal, the matter was transferred to the Tribunal. The Tribunal noted that since the petitioner was permanently seconded to DRDO and he was claiming promotion to the post of Lieutenant General in DRDO, which was governed by the Office Memorandum dated November 23, 1979 containing the provisions relating to promotions in DRDO and it Page 15 had nothing to do with the Army Act, the Tribunal lacked the jurisdiction to entertain the matter. Relevant portion of the order passed by the Tribunal reads as under: