Union of India v. Maj. Gen. S.C. Mofianty

1 These writ petitions have been preferred to as^ilth. a 1nna2019 passed by the Principal Bench,Anned Foices order dated 10.04.[2] ^^^^^019. By..unahNewBclhimO^^^^^^ the common or, ^ respondentsto conduc P respondents/applicantswithinthenextth y ^ „..—0.... availableinDelhifortheArmyComman c^^^ with conductof consequentialprocessshould also tKat after holding die SSB,the emi becompletedwithregardtoselection,except ofthe respondents/applicants which would await further directions from the. Tribunal. The matter was further adjourned to 14.05.2019, while issuing the said interim order.

2. The petitioners have not complied with the said order and have approached this Court by filing the present writ petitions on or about 09.05.2019. We are not inclined to interfere with the impugned order firstly considering the fact that the petitioners had sufficient time to comply with the same and ifthe petitioners were so minded they ought to have approached this Court earlier and not waited for the last minute. It appears to us that since the petitioners are now faced with a possible contempt on account of non-compliance with the impugned order and the OAs are coming up before the Tribunal for further proceedings on 14.05.2019,i.e.,tomorrow,these petitions have been filed and gotlisted today. Even otherwise on merits, we find that the impugned order is completelyjustified for which purpose we reproduce the relevant extract of the impugned order, which squarely discloses the reasons why the Tribunal has proceeded to pass the same:-

2. Whatiscommon in allthese cases isthatthe applicants from the 1983 batch of the General Cadre, were considered afresh by the SpecialSelection Board held in October 2017, but were not empanelled and subsequently have been given redress related to their ACRs. In thisflashback, they seek direction to the respondents to consider them asSpecialReview Fresh case in a Special Selection Board at the earliest as per the old Promotion Policy, which was in vogue during their consideration by theBoardheldin October 2017.

3. The applicants assert that thesame controversy had cropped up in Maj. Gen. V.K. Singh's case (supra), wherein the respondents had applied the new Promotion Policy dated 23.12.2017and the respondents were directed to consider the applicant therein (Maj. Gen. V.K. Singh)for promotion to the rank ofLieutenant Generalas a SpecialReview (Fresh)Case in accordance with the same Promotion Policy as was applied for his batch, which was in vogue when thefirstSSB tookplace in October 2017. It wasfurther directed that ifthe applicant wasfoundfit by the Board on the residt being declassified, he would bepromoted to the rankofLieutenant General

4. Learned counselfor the applicants have submitted that the order rendered in Maj. Gen. V.K. Singh's case (supra) was impugned by the Union ofIndia before the Hon'ble Supreme Court in C.A (Diary) No. 44838 of 2018, in which in an execution petition moved by Maj. Gen. V.K. Singh, the order passed by the Tribunal was modified on aparticular aspect, buta specific direction was given to the respondents to hold SSB as a Special Review Fresh case, which exercise was also ultimately carried out. The applicants submit that, essentially, that is the reliefwhich the applicants are askingfor in these cases, beside afew other ancillary reliefs, depending upon thefacts ofeach individual case.

5. It isfurthersubmitted before us on behalfofthe applicants that the Members ofthe SSB are currently available in Delhifor conduct ofthe bi-annual Army Commanders'. Conference and they will also be participating in the conduct of Special Selection Boards concerning specific Arms/Services of the Indian Army. In case another Special Selection Board (Review Fresh) has to be held again later only for these applicants, for that, all these Members will have to be broughtfrom different parts of the countiy where they are stationed again, to come only for the conduct of such a ri Board. Hence, in case the SSB is held within the next three days, when they are available in Delhifor the bi-annual Army Commanders'Conference and are sitting as part of other Selection Boards, they should be directed to also conduct the Special Selection Board Review Freshfor these applicants.

6. It needs to be mentioned here that when O.A No.91of2019 was taken up by the Tribunalfor its consideration, after issuance of notice and time was granted to file counter affidavit within a stipulatedperiod, the respondents moved M.A No. 936of2019prayingfor anotherfour weeks'time forfiling counter affidavitcarving outthegrounds asspelt out in Paragraphs 6 and 7 of the said miscellaneous application, which readas under:

6. That after havingfiled an appeal in MajGen V.K. Singh case (Civil Appeal Diary No.44838/2018 arising out oforders in OA No.1023/2018(MajGen V.K. Singh v. Union ofIndia and Ors. decided by Hon'ble AFT(PB)New Delhi, wherein the Union of India has been directed to consider the General Officer after holding the promotion board on the basis ofpromotion policy that was in existence in October 2017and while allowing the CivilAppealin favour of Union ofIndia, left the question oflaw open. It is submitted that post the decision of the aforesaid Civil Appeal, the matter was again referred to the Governmentfor identifying all such similarlyplacedcasesfor re-consideration asper the directions ofthe Hon'ble Tribunal merged with the directions ofthe Hon'bleApex Court.

7. Thatthe Governmentis considering allthe aspects in a holistic way again and the decision regarding the same is still awaited.

7. We considered the grounds to be genuine as the respondents, in our view, were carrying out the exercise in the right direction in tune with the directions given in Maj. Gen. V.K. Singh's case(supra). It is in this background that another two weeks'time was granted to the respondents tofile counter affidavit. Meanwhile, O.A Nos. 209 of2019 and 352 of2019 were also filed by similarly paced applicants, in which the respondents have already beenputto notice.

8. In today's hearing. Col. Ajeen Kumar, MS (Legal), still projects his difficulty in notfiling the counter affidavit in all these three connected matters stating that a common casefor allsimilarlysituatedMajor Generals, including the applicants, has been taken up with thefirst respondent, but the decision is still awaited.

9. Learned counselfor the applicants, while reiterating their prayer, asstated herein above,submitted that in thepresentset of circumstances, when the respondents are intentionally delaying the matter and all the applicants may be put to ¥ irreparable loss ifthey retire in between, it turns out to be a casefor granting interim relief, directing the respondents to conduct a Special Selection Board Review Fresh within the next three days when the members ofthe SSB are available in Delhi and sitting for conduct of other Promotion Boards. Learned counsel further submitted that, at the most, the declassification ofthe result can be withheld till anyfurther direction by the Tribunal.. 10. Wefind substance in the submissions advanced by learned counselfor the applicantsfor the interim reliefas askedfor.

11. Col.Ajeen Kumar,faced with thissituation, made a request to us that the instant matters may be taken up in the second half of the day, enabling him to receive instructions in this regard. We thus deferred consideration of the case to the second halfofthe day, and when taken up. Col. Ajeen Kumar states that he is running short of instructions. He makes a request that the instant matters may be taken up after 2-3 days so that he is able to get complete instructions in this regard, which request is not acceptable to us in the present circumstances when all the members ofthe Special Selection- Boardarepresentin Delhi.

12. Viewed thus, the respondents are directed to conduct a SpecialSelection BoardReview Freshfor the applicants within the next three days while the members ofthe SSB are available in Delhi with regard to conduct ofother Selection Boards and the Army Commanders'Conference. It isfurther directed that after holding the SSB, the entire process shall also be made complete with regard to the selection except declassifying the residt of the present applicants, which shall await further directionsfrom the Tribunal."

3. On a perusal ofthe impugned order, it appears that after the same controversy as in the present set of OAs had cropped up in the case of Major General V.K. Singh, wherein the same relief was granted. The respondents had approached the Supreme Court. The Supreme Court however, did not interfere with the order passed by the Tribunal while leaving the questions of law open. The stand taken by the petitioners before the Tribunal was that it was considering implementing the decision in the case ofMajor General V.K.Singh across the board.