2014 (5) TMI 1034 - SC - Indian Laws

Denial of promotion to Respondent - 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 - Held that - 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. 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 has been specifically taken note of. - 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 (1999 (12) TMI 855 - SUPREME COURT). What is intriguing is the reasons for coming to a different conclusion. 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. - 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. - Matter remanded back - Decided in favour of Appellant.

Summary

Issues Involved:
1. Jurisdiction of the Armed Forces Tribunal (AFT)
2. Validity of the Government Policy dated April 23, 2010
3. Retrospective application of policy changes
4. Discrimination and violation of Article 14 of the Constitution of India

Detailed Analysis:

1. Jurisdiction of the Armed Forces Tribunal (AFT):
The appellants questioned the jurisdiction of the Tribunal to entertain the Original Application (OA) filed by the respondent. The Tribunal had previously ruled in the case of Major General S.B. Akali that it lacked jurisdiction over matters governed by service conditions outside the Army Act, such as those regulated by the Department of Defence Production. The Tribunal in the present case, however, chose to entertain the OA, stating that the policy changes were closely related to the Army's policies and suggested a degree of duality of jurisdiction. The Supreme Court held that the Tribunal should have referred the matter to a larger Bench if it disagreed with the earlier judgment. The case was remitted back to the Tribunal to decide the jurisdiction issue with a larger Bench, considering the intertwined nature of the service conditions and the specifics of the case.

2. Validity of the Government Policy dated April 23, 2010:
The respondent challenged the Government Order dated April 23, 2010, which stated that officers who were finally superseded would not be considered for permanent secondment in DGQA and would only be eligible for one promotion to the rank of Colonel. The Tribunal found this policy to be discriminatory and a retrospective amendment that adversely affected the respondent's promotion prospects. The Supreme Court noted that the Tribunal did not sufficiently address whether the policy change amounted to a retrospective amendment that took away vested rights.

3. Retrospective application of policy changes:
The Tribunal ruled that the Government Order dated April 23, 2010, could not be applied retrospectively to officers who had already been permanently seconded under the previous policy dated November 16, 2007. The Supreme Court emphasized the need to determine whether the respondent had any vested rights that were taken away by the new policy and whether the policy change was indeed retrospective in nature. The case was remitted to the Tribunal for a detailed examination of these aspects.

4. Discrimination and violation of Article 14 of the Constitution of India:
The respondent argued that the policy dated April 23, 2010, was discriminatory and violated Article 14 of the Constitution, as it treated officers who were permanently seconded differently from those whose secondment was not in question. The Supreme Court directed the Tribunal to consider whether the differential treatment amounted to discrimination or arbitrariness, especially since the respondent was allowed to remain in DGQA and had already been promoted to the rank of Colonel.

Conclusion:
The Supreme Court set aside the Tribunal's order and remitted the case back to the Tribunal for a fresh decision by a larger Bench. The Tribunal was instructed to address the jurisdiction issue comprehensively and to consider the merits of the case, including the retrospective application of policy changes and potential discrimination against the respondent. Both parties were given the opportunity to submit additional documents for consideration.