9911796707
TMI Blog2014 (5) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utenant 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 The respondent was finally superseded in the Army, in the rank of Major in December 2003.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DGQA organisation, there was a provision in DGQA, in the form of OM dated May 04, 1993, that an officer who is finally superseded in the Army will not be entitled to permanent Secondment and can stay at DGQA temporarily only, which means, after some time, he would have to go back to the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. As pointed out above, the respondent had already been finally superseded in December 2003 in the rank of Major when he had joined DGQA on November 06, 2004. After considering the case of an Army personnel for promotion to the higher rank, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent 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. 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 Prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved 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. 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 further promotions. 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned judgment, both on jurisdiction as well as on merits. 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. 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 prece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject 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. If the Tribunal holds that it is vested with the necessary jurisdiction to entertain the OA, the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
