This is a statutory appeal, preferred by Union of India, as
provided under Section 31 of the Armed Forces Tribunal Act, 2007
(hereinafter referred to as the 'AFT Act'). The appeal is filed
against the judgment and order dated April 15, 2011 passed by
JUDGMENT 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.
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.
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 The respondent was finally superseded in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
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
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: JUDGMENT
(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
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
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. JUDGMENT
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
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, JUDGMENT 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
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.
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
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
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, AIRJUDGMENT1968 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
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.”JUDGMENT
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
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 non-
selection 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
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:
“12. We have bestowed our best of consideration and
we are of the opinion that as per Section 2 read with
Section 3(o) of the Armed Forces Tribunal Act, 2007,
this Tribunal has limited jurisdiction to deal with the
service conditions of the Army Act and Rules, but, the
present case, which relates to non-selection of the
petitioner by the DRDO for the rank of Lt. General and
it is not supersession under the Army Act or Rules, it
is under the DRDO Rules of the Office Memorandum
dated 23rd November, 1989. As such, this Tribunal
cannot sit over the selection by DRDO to decide the
issue whether petitioner has been correctly
superseded or not, since the service conditions of the
seconded officers under the DRDO is regulated by
Office Memorandum dated 23rd November, 1979 and
it is not under the Army Act and Rules. Therefore, this
Tribunal will have no jurisdiction to decide this case of
supersession of petitioner for promotion to the rank of
Lt. General.
13. In this view of the matter, we uphold the
preliminary objection of the learned counsel for the
respondent and direct the Principal Registrar to remit
this case back to Hon'ble Delhi High Court to decide
the matter in accordance with law. JUDGMENT
14. On the same lines is the case of Brig PJS
Rangar & Brig Anand Solanki (TA No. 221 of 2010).
In this case the incumbents were permanently
seconded to Director General of Quality Assurance. It
is also governed by OM dated 28th October, 1978, as
amended from time to time. In this case also the
petitioners prayer is to quash the OM dated 18th
February, 2008, letter dated 15th May, 2008 and
empanelment order dated 16th June, 2008 and direct
the respondents to give effect to the empanelment
order dated 31st January 2008 and promote them to
the rank of Major General in accordance with their
seniority in the panel.
15. The service conditions are governed by the OM
dated 28th October, 1978 and the non-selection of the
petitioners are by Director General Quality Assurance
of Ministry of Defence. There is no breach of any
service conditions under the Army Act and Rules. The
non-selection of the petitioner is on account of the
service conditions as mentioned in OM dated 28th
October, 1978, as amended from time to time.
Therefore, the objection raised by the learned counsel
for the respondent, in this case is also upheld and
consequently it is held that this Tribunal has no
jurisdiction to interfere in this matter and direct the
Principal Registrar to remit this case back to Hon'ble
Delhi High Court to decide the matter in accordance
with law.”
21)When we traverse through the impugned order passed by the
Tribunal in the instant case, we find that the aforesaid judgment in
Major General S.B. Akali (supra) has been specifically taken note of.
However, the Tribunal felt it appropriate not to rely upon on the said
judgment, which it could not do so, having regard to the ratio in
Rooplal's case (supra). What is intriguing is the reasons for coming to a different conclusion.JUDGMENTIt is stated:
“We have perused the evidence on record and heard
the learned counsels of both sides. At the very outset
we proceed to resolve the matter with regard to
jurisdiction over the case. Notwithstanding the fact
that terms and conditions of service of DGQA officers
are inherently different from those of the officers in
their parent service, the subject matter in the instant
case bears an intricate connection between the two.
In fact, the policy changes brought about vide
Government letter dated 23-04-2010 are virtually a
mirror image of the changes brought about in the
Army sequel to the system of Selection Merit Board
being revoked by the Government. This policy also
gives option to the officers to revert back to the Army
in the event of the changes not being found
acceptable by them. Further, Regulations for the
Army, 1987 (Revised Edition) lay down at Pars 67 and
76 certain aspects of terms and conditions of service
with regard to permanently seconded officers in
Inspection Organisations, the former designation of
DGQA, suggesting a degree of duality of jurisdiction
on certain matters. As such, with due deference to
the cited judgment of the Hon'ble Principal Bench and
without setting any precedence, we are inclined to
admit this case for adjudication by this Tribunal.”
22)The aforesaid approach cannot be countenanced. First of all, the
reasons given by the Principal Bench in the case of Major General
S.B. Akali (supra) are not dealt with at all. It is strange on the part of
the Tribunal to proceed with the matter on merits by observing that it
was so done 'without setting any precedence'. If a Tribunal lacks
jurisdiction then there is no question of proceeding with the matter in a
given case taking umbrage under the facade of not treating it as a
precedence. In a matter of jurisdiction, there are only two alternatives.
Either the Tribunal has the jurisdiction or it has no jurisdiction. There is
JUDGMENTno third alternative to proceed with the matter with the statement that it
will not be treated as precedent.
23)We would like to mention here that Gp. Capt. Karan Sing Bhati,
learned counsel who appeared for the respondent, had argued at
length that such an OA was maintainable and the Tribunal had the
necessary jurisdiction. In support, he referred to statutory provisions,
namely, Section 2 of the Act, as per which AFT Act applies to all
persons subject to the Army Act, 1950 and argued that since the
respondent was subject to the Army Act, AFT Act was applicable to
him. He also submitted that the respondent was still subject to the
Army Act insofar as matter relating to court martial, etc. were
concerned. He also referred to the definition of Section 3(o), which
defines 'Service Matters' and submitted that it was couched in a very
wide language and would include the subject matter of the instant
proceedings. He also took support from the provisions contained in
Section 3(n) of the AFT Act, which defines 'Service' to mean the service
within or outside India and submitted that even if the respondent was
Seconded to DGQA, that would not make any difference. Some
provisions of the Army Act as well as certain Regulations framed under
the Army Act were also relied upon. Mr. Bhati also referred to various official documents in support.
24)No doubt, it is open to Mr. Bhati to refer to the statutory provisions in
the AFT Act or even the Army Act in support of his submission. But
many other documents of which the learned counsel is relying upon
were not part of the record before the Tribunal. Secondly, as already
pointed out above, no such aspects are considered either by the
Chandigarh Bench in the impugned judgment or by the Principal Bench
in Major General S.B. Akali's case (supra). We may point out that
merely because the respondent is subject to Army Act would not by
itself be sufficient to conclude that the Tribunal has the jurisdiction to
deal with any case brought before it by such a person. It would depend
upon the subject matter which is brought before the Tribunal and the
Tribunal is also required to determine as to whether such a subject
matter falls within the definition of 'Service Matters', as contained in
Section 3(o) of the AFT Act. In Major General S.B. Akali's case
(supra), the Principal Bench primarily went by this consideration. The
subject matter was promotion to the rank of Lieutenant General and
this promotion was governed by the Rules contained in the Policy of
DRDO and not under the Army Act. Therefore, in the instant case, it is
required to be examined as to whether the relief claimed is entirely
within the domain of DGQA or for that matter, the Ministry of Defence or it can still be treated as Service Matter under Section 3(o) of the AFT Act and two aspects are intertwined and inextricably mixed with each
other. Such an exercise is to be taken on the basis of documents
produced by both the sides. That has not been done. For this reason,
we deem it proper to remit the case back to the Tribunal to decide the
question of jurisdiction keeping in view these parameters.
25)If the Tribunal holds that it is vested with the necessary jurisdiction
to entertain the OA, the Tribunal will obviously go into the merits of the
case as well. For that purpose, some aspects which shall require
determination also need to be spelled out, inasmuch as, in the
impugned order the focus of the Tribunal was limited and the material
and relevant aspects of the issue have not been gone into.
26)As pointed out above, the Tribunal has partly allowed the OA of the
respondent primarily on the ground that the decision contained in the
Government order dated April 23, 2010 amends the promotion policy
retrospectively thereby taking away the rights already accrued to the
respondent in terms of the earlier policy. It is also mentioned that the
revised policy fundamentally changes the applicant's prospects of
promotion. What is ignored is that the promotions already granted to
the respondent have not been taken away. Insofar as future chances of promotions are concerned, no vested right accrues as chance of promotion is not a condition of service. Therefore, in the first instance,
the Tribunal will have to spell out as to what was the vested right which
had already accrued to the respondent and that is taken away by the
Policy decision dated April 23, 2010. In this process, other thing which
becomes relevant is to consider that once the respondent is
permanently seconded in DGQA and he is allowed to remain there, can
there be a change in his service conditions vis-a-vis others who are his
counterparts in DGQA, but whose permanent Secondment is not in
cloud? To put it otherwise, the sole reason for issuing Government
Policy dated April 23, 2010 was to take care of those cases where
permanent Secondment to DGQA was wrongly given. As per the
appellants, since the respondent had suffered Final Supersession, he
was not entitled to be Seconded permanently to DGQA. This is
disputed by the respondent. That aspect will have to be decided first.
That apart, even it be so, as contended by the appellants, the
appellants have not reccalled the permanent Secondment order. They
have allowed the respondent to stay in DGQA maintaining his
promotion as Colonel as well, which was given pursuant to this
Secondment. The question, in such circumstances, that would arise is
whether the respondent can be treated differently even if he is allowed
to remain in DGQA, viz. whether not allowing him to take further promotions, which benefit is still available to others whose permanent Secondment is not in dispute, would amount to discrimination or
arbitrariness thereby offending Articles 14 and 16 of the Constitution of
India. In our opinion, these, and other related issues, will have to be
argued and thrashed out for coming to a proper conclusion.
27)As a result, this appeal is allowed. The impugned order passed by
the Tribunal is set aside. The matter is remitted to the Tribunal for
deciding the OA by a larger Bench by having proper perspective in
mind, as discussed in this judgment. Both the sides shall have right to
file further documents they want to rely upon.
There shall, however, be no order as to costs.
(A.K. SIKRI)
New Delhi; May 28, 2014.