Central Administrative Tribunal - Delhi
Col Kshitij Sudhir Verma vs Survey Of India on 6 September, 2023
1
O.A. No. 237/2023
Central Administrative Tribunal
Circuit Sitting at Nainital
O.A. No. 237/2023
M.A. No. 1307/2023
M.A. No.1007/2023
M.A. No. 1561/2023
M.A. No.2565/2023
Reserved on: 25.08.2023
Pronounced on: 06.09.2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
1. Col. Kshitij Sudhir Verma Son of Sudhir Shobhala
Verma, aged about 45, resident of Dehradun.
2. Lt. Col. Siddharth Shekhawat Son of Late Dr.
Sumer Singh Shekhawat, aged about 40, resident
of Bangalore.
3. Col. S.K. Dwivedi Son of Shiva Kant Dwivedi aged
about 40, resident of Dehradun.
4. Col.K.A.Grewal son of Kuldip Singh Grewal, aged
about 42 years resident of Jammu.
5. Col. Tahir Mustafa Son of Ghulam Mustafa, aged
about 44 years, resident of Delhi.
6. Major Patil Keshav Vilas Son of Patil Vilas
Maruti, aged about 29 years, resident of
Maharashtra and Goa Geospatial Data Centre,
Survey of India, Yerwada, Aalandhi Road-
411006.
7. Major Ashish Dubey Son of Anil Kumar Dubey,
aged about 29 years resident of E-1, Dewasom
Lane, Keshavadasapuram, Thiruvananthapuram-
695004.
8. Major Vikas Malik Son of Shamsher Singh, aged
about 32, resident of House No.416/6, Vasant
Vihar, Rohtak, Haryana-124001.
9. Major Ajay Singh Negi Son of Mahipal, aged
about 28, resident of Rudrash Garden, Garwhal
2
O.A. No. 237/2023
Sabha, Jaspur Khurd, Kashipur, Udham Singh
Nagar, Uttarakhand.
10. Major Himashu Anand Son of Jagjit Singh Dogra,
aged about 30 years, resident of E-301, Rail
Vihar, Sector-4, Khaghar, Navi Mumbai,
Maharashtra, Pin-410210.
11. Major Shubham Singh Son of Bhuvanendra
Singh, aged about 29 years, resident of Cams
Delhi Cantt.
12. Major Lakshay Saini Son of Satish K Saini, aged
about 31 years, resident of 86/2 Mall Road Garhi
Cantt. Dehradun- 248003.
13. Major Anurag Dwivedi Son of Mata Prasad
Dwivedi, aged about 30 years, resident of C-462,
Brij Vihar, Ghaziabad U.P.-201011.
14. Major Rohit Verma Son of Lt. Col. M.L. Verma,
aged about 29 years, resident of Cams Delhi
Cantt.
15. Major Vishal Giri Son of Praveen Kumar, aged
about
33 years, resident of P 89/1 Mall Road Garhi
Cantt. Dehradun.
16. Lt. Col. Naresh Uniyal Son of G.N. Uniyal, aged
about
36 years, 3rd floor, Central Secretariat Building,
CG GDC, Survey of India, Atal Nagar Naya
Raipur, Raipur, Chhattisgarh.
17. Col. Sunil Fatehpur Son of Shenkar B Fatehpur,
aged about 43, resident of Pune.
18. Col. Amardeep Singh son of Daljit Singh, resident
of 600, Survey of India, Sector-32 A, Chandigarh-
160030.
19. Col. Arjun Sampath son of K Sampath Kumar,
resident of 393, 9th cross 2nd Block near BBMP
Zonal Office, Jayanagar Bangalore South,
Karnataka.
20. Maj. Daljinder Singh Romana son of Mukhtiar
Singh, resident of J K Road, New Minal
Residency Huzur, Govindpur Huzur, Bhopal,
Madhya Pradesh.
21. Col. Kunal Shridhar Borkar son of Shridhar V
Borkar, resident of D-301, Arpita Chs, Rajaram
3
O.A. No. 237/2023
Tawade Road, Datta Mandir, Dahisar, Mumbai,
Maharashtra.
22. Col. Rajat Sharma son of Ashwani Kumar
Sharma, resident of Kilokari opp Maharani Bagh
Jungpora, Defence Colony South, Delhi.
23. Maj. Akhil K son of Kolappa Pillai A, Akhilam
Muthiyamkonam, Thoicode,
Yhiruvananthapuram, Kerala.
24. Maj Anupam Mishra son of Ram Narayan
Mishra, resident of Teonthar, Rewa, Madhya
Pradesh.
25. Maj. Jatinder Singh son of Hrbans Singh,
resident of strett No. 3 Adarsh Nagar Ropar,
Pupnagar, Punjab.
26. Maj. Sourabh Dhir son of Sunil Dhir, resident of
House No. 1022, Sector-11, Panchkula, Haryana.
27. Col. Vasudevan Raju son of P.N.Vasudevan,
Resident of Raj Bhawan, P.V.North, Thazhava,
Kollam, Kerala-690523.
28. Lt. Col. Vikram Singh son of Bane Singh
Shekhawat, resident of 144, K5c scheme, near lal
Mandir, Jhotwara, Rajasthan.
29. Maj. Aditya Vijay son of Dr. R.K.Vijay Vergi,
resident of Cantt, Delhi.
30. Maj. Chandra Prakash son of Ram Niwas,
resident of near office ujwa Samas Pur Khalsa
South West Delhi.
31. Col. Arindum Gupta son of Mr. Ashok Kumar
Gupta, resident of A-301 G.K.S Habitat Royal,
Jawahanagar, JJ Nagar Colony, Andhra Pradesh.
32. Col. Pawan Kumar Panday son of Vishnu Kumar
Panday resident of Ratnapur Ramapur, Bhojpur,
Bihar.
33. Brig. B. Sareen Chander son of B. Surender,
resident of House No. 05-72, Miyapur, Janpriya,
west city, Hyderabad.
34. Col. Ranjan Negi son of Lakshman Singh Negi,
Resident of Silcher, Assam.
35. Col. Arvind Jadli son of Mahesh Chandra Jadli,
resident of Survey of India, Dehradun.
36. Col. Rakesh Rana son of Mastan Singh,
resident of Cantt. Delhi.
4
O.A. No. 237/2023
37. Col. Satyendra Singh Rathore son of Vijay Singh
Rathore resident of ADG, Military Survey, Delhi
Cantt.
38. Maj. Kunal Kapoor son of Late Balbinder Singh
Kapoor, resident of ADG, Military Survey, Delhi
Cantt.
39. Maj. Ajesh P son of Late N. Pankaja Akshan,
resident of ADMC, Bangalore, Karnatak.
40. Maj . Md. Nuruzzaman son of Abdul Maleque,
resident of Pune, Maharashtra.
41. Maj. Naveen Kumar Gautam son of Sri Narendra
Pal, resident of Roorkee, UP.
42. Maj. Siddharth Rathi son of Sudhir Rathi,
resident of Rajasthan GDC, Jaipur.
43. Brig. Arun K D son of shri MSD Pillai, GSGS,
Delhi.
...Applicants
(By Advocates: Mr. Udai Chandanit with Mr. Vivek
Mishra)
Versus
1. Union of India, through its Joint Secretary
Department of Science and Technology, New
Delhi.
2. Ministry of Department of Personal and Training
through its Secretary.
3. Department of Science and Technology,
Government of India, Technology Bhawan, New
Mehrauli Road, New Delhi through its Secretary.
4. Survey of India through its Surveyor General of
India, Hathibarkala Estate, Dehradun-248001.
...Respondents
(By Advocates: Mr. Chetan Sharma, Sr. Advocate, ASG
assisted by Mr. Balendu Shekhar, CGSC,
Mr. Amit Gupta, Mr. Saurabh Tripathi,
Mr. Krishna Chaitanya, Mr. Raj Kr.
Maurya, Mr. Vikramditya Singh, Mr.
Ghanshyam Jha and Mr. Pramod Kr. Rai)
5
O.A. No. 237/2023
ORDER
Mr. Manish Garg, Member (J):
With the consent of learned counsel for both the parties, the Original Application (OA) as well as all MA‟s has been taken up for hearing today.
2. The present OA has been filed by the applicant(s) under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
I. Status quo on the service condition of the Group A- Defence Stream officers of Survey of India be maintained as per Service Rule, 1989.
II. Quash and set-aside the Impugned Order dated 20.03.2023 issued by Joint Secretary to the Government of India which is against the statutory provision (Service Rules, 1989) as well as the this Hon'ble Court order dated 13.02.2023 and also not as per prescribed procedure of Cadre Review.
IIA. Quash and set-aside the clause 5.2.2.7 of departmental policy National Geospatial Policy, 2022/Notification, dated 28.12.2022 issued by the Joint Secretary, Ministry of Science and Technology as ultra-virus and against the statuary rules governing the service of applicants, further more this Hon'ble Tribunal may also declare the same as null and void from the date of its notification on 28.12.2022.6 O.A. No. 237/2023
3. Brief facts of the case projected by the applicants are as under:
3.1 The applicants are Defence Stream Officers having "lien" in Survey of India, Group „A‟ Service and were inducted into the Service after Operation Parakram and Operation Vijay by the mode of Transfer (now rechristened as absorption) in consultation with Union Public Service Commission (UPSC). They have now become eligible for the post of Surveyor General of India based on their eligibility. It is submitted that the respondents are not conducting Stake Holder Consultation prior to creation of proposal for the Cadre Review for Organized Group A Service as mandated by the Cadre Review Monograph. They have improperly/ incorrectly disposed of representations of the applicant(s) on the subject matter on multiple occasions as mandated by Central Civil Service (Classification Control and Appeal) Rules. They have also not filed written replies in OA 569 / 2022 7 O.A. No. 237/2023 from June 2022 till its disposal in Aug 2023 to conceal the facts and avoid judicial review.
3.2 The respondents are concealing and misinforming vital facts from the decision makers i.e. the Committee of Secretaries, Cadre Review Committee and the Union Cabinet of India, on multiple occasions about the separate roles and relationship between Survey of India and Military Survey and existing service conditions of applicants, which was sub judice in OA 569 / 2022 as a part of Proposed Policy/ Decision Making process. They have promulgated National Geospatial Policy ("IN SHORT "NGP") 2022 with inclusion of para 5.2.2.7 without Inter Ministerial Consultation as mandated by the Government of India (Transaction of Business) Rules and bringing major changes in the proposed draft previously circulated in June 2021 with all the stake holders i.e. Department of Military Affairs, Director General Military Operations, Department of Personnel and Training, Ministry of Finance, Department of Legal Affairs etc. 8 O.A. No. 237/2023 3.3 Exercising powers beyond delegation by inclusion of para 5.2.2.7 in violation of the Government of India (Allocation of Business) Rules, 1961 Schedule II Sub part IV- Service Conditions, Department of Personnel and Training is the Competent Authority for promulgating such an order for Group A Officers of Central Civil Services, thereby making OA 569/2022 as infructuous.
3.4 The government will not be taking en masse coercive action against the applicants in OA No. 58/2023 without filling any written reply in the matter, and subsequently violating the Tribunal‟s order dated 13.02.2023 by not carrying out the stakeholder consultation including the applicants.
3.5 The respondents are not sharing proposal for creation of instruments of implementation on which grievance / aspirations of the applicants can be given even after the courts direction on the matter in OA 58/2023. There is presumed reduction in establishment on the part of respondents without finalization by Cadre Review Committee. The 9 O.A. No. 237/2023 respondents are defying rules and procedures which had to be followed for Central Civil Services -
Organised Group A Service, prior to proposing, approving and promulgating statutory rules.
3.6 The proposed reduction is against the fundamental rights as it is biased, favoring a specific stream and not on pro rata basis despite both the streams having same charter of duties in Survey of India.
3.7 The respondents are finally issuing deemed relieving orders without consultation of the stakeholders even after the directions of this Tribunal in OA 58/2023 when the Petition with the President was pending and thereby bringing retrospective changes in the service conditions and Survey of India Group "A" Service.
4. Shri Chetan Sharma, learned Additional Solicitor General appearing on behalf of the respondents raises the preliminary objections qua the jurisdiction and maintainability of the prayer itself on following counts:
10 O.A. No. 237/20234.1 He straightway refers to the rejoinder filed by the applicants wherein they have taken altogether a different stand insofar as the prayer in the OA is concerned. He thus highlights the following paras, which read as under:-
―62. That the contents of paragraph No- 48 the counter affidavit are not admitted, hence vehemently denied. In reply, it is most respectfully submitted that the reversion of defence stream officers under the veil of National interest is nothing but satisfies the interests of a certain civilian stream officers along with present SGI/JS(SMP) which is evident from the reply of applicants for para 6 of CA-237 and the same is not repeated here for the sake of brevity. Though after due deliberation by CoS, minutes of meeting was issued on 08 Aug 2022 clearly removing the word civilianization of SOI and any reversion of defence stream officers from SOI. The same finds mention in DST letter dated 02nd Sept 2022 addressed to SGI. But between 02nd Sept to 16th Dec 2022 (span of 100days ),despite clear instructions from CoS on 08 Aug 2022, there were undue changes made specifically undermining the authority of CoS and violating the due process. Thereby, the respondent somehow managed to include the para 5.2.2.7 despite top defence officials (EinC letter and DGMO letter) pushing for any un-towards inclusion of the same in the which itself signifies the importance of defence stream officers in SOI and any reversion amounts to treachery in the guise of national interest by the respondents. The respondents have even undermined such requests concerning security reasons which CoS understood clearly and refrained themselves from the same but illful intentions of few SOI officials who somehow managed to include para 5.2.2.7 in policy and now quoting the non interference to be maintained by court as it is a policy decision as they are fully aware that any disciplinary order for inquiry into the same by court would harm them which they 11 O.A. No. 237/2023 never thought of. It is also to mention that during final draft of NGP 2022, it intentionally excluded representatives from Military Survey who puts up the security and defence requirements of armed forces. Draft NGP 2022 was solely represented by JS,DST and SGI ,both chairs held by same person since the day the policy formulation began and ended on 16th Dec 2022, which itself signifies the chaos & anarchical attitude of JS,DST/SGI along with few civilian stream officers of SOI. This needs to be dealt strongly through conduct of disciplinary enquiries to ascertain the reasons for such lapses despite clear instructions from CoS and request from top defence officials citing security reasons. xxxx
71. That the contents of paragraph No- 57 the counter affidavit are not admitted, hence vehemently denied. In reply, it is most respectfully submitted that these letters are relevant because the civilianization of SoI is not a new phenomenon.
The same tricks were applied earlier also by Civilian officers, and the same was dispossed off back with due intervention by Hon'ble Supreme Court. Though the decision to revert defence stream officers was taken by Raksha Mantri in Nov 2021 but the same was never ever communicated to cadre controlling authority i.e., DMA for defence stream officers. Rather, the points were mentioned for civilianisation of SOI disregarding the security reasons in the representation submitted by defence stream officers to ADG Military survey and EinC , based on which they initiated letters from their office very well citing the requirements of defence stream officers in SOI & the ill effects on security if not being obliged. The same was then would have decided in MoM dated 08 Aug 2022 of CoS. Though after due deliberation by CoS, MoM was issued on 08 Aug 2022 clearly removing the word civilianization of SOI and any reversion of defence stream officers from SOI. The same finds mention in DST letter dated 02nd Sept 2022 addressed to SGI. But between 02nd Sept to 16th Dec 2022 (span of 100days ),despite clear instructions from CoS on 08 Aug 2022, there were undue changes specifically undermining the authority og CoS and violating the due process, the respondent somehow managed to include the para 5.2.2.7 despite top 12 O.A. No. 237/2023 defence officials (EinC letter and DGMO letter) pushing for any untowards inclusion in policy duly stating the requirement of defence stream officers in SOI on security grounds and now respondents are quoting that reversion is in the national interest.
The respondent have even undermined such requests concerning security reasons which CoS understood clearly and refrained themselves from the same but illful intentions of few SOI officials who somehow managed to include para 5.2.2.7 in policy and now quoting the non inference to be maintained by court as it is a policy decision as they are fully aware that any disciplinary order for inquiry into the same by court would harm them which they never thought of. It is clearly showing the haste on the side of the respondents for sending defence stream officers to military duties at any cost as they are afraid of conduct of disciplinary enquiries to ascertain the reasons for such lapses despite clear instructions from CoS and request from top defence officials citing security reasons. Therefore the submissions of respondents are nothing but false and misleading.
It is also to mention that during final draft of NGP 2022, it intentionally excluded representatives from Military Survey who puts up the security and defence requirements of armed forces. Draft NGP 2022 was solely represented by JS,DST and SGI ,both chairs held by same person since the day the policy formulation began and ended on 16th Dec 2022, which itself signifies the chaos & anarchical attitude of JS,DST/SGI along with few civilian stream officers of SOI. This needs to be dealt strongly through conduct of disciplinary enquiries to ascertain the reasons for such lapses despite clear instructions from CoS and request from top defence officials citing security reasons. Therefore the submissions of respondents are nothing but false and misleading.
It is also pertinent to mention that defence stream officers are not challenging the policy rather questioning the due process was followed during insertion of clause no. 5.2.2.7, which is in clear violation of service conditions of defence stream officers as per 1989 RRs. Thus, respondents 13 O.A. No. 237/2023 are trying to mislead the court that defence stream officers are impediments to the implementation of the policy. The same was also clarified by Hon'ble court in the order dated 13.02.2023 as well.‖ 4.2 The learned ASG further draws reference to Minutes of the Meeting dated 16.08.2021; the relevant para of which reads as under:-
―3. Secretary, D/o Defence, endorsed the need for organizational change in SoI and the proposal of DST to convert it into a civilian organization, playing the role of enabler and promoter, and a custodian of mapping standards. He mentioned about the requirements of geospatial survey/mapping for Defence, for which MoD has its own Military Survey establishment, and suggested that geospatial mapping involving delineation of International Boundaries should remain with the Armed forces.‖ 4.3 To buttress his arguments, he also relies upon the RR‟s at page 131 of the OA, which is not disputed by learned counsel for the applicant(s):
―11(2) Defence Stream.-(a) Permanently seconded officers would be liable to recall as per provisions in the Army Act.
(b) The strength of the Defence stream of Group ‗A' Cadre of Survey of India envisages that a Defence officer in the Survey of India will spend about ¾ of his service with the Survey of India and ¼ on military duty with Military Survey units or Staff on temporary reversion.14 O.A. No. 237/2023
(c) Exchange of Defence Officers between the Survey of India and Military Survey service will be carried out in consultation with the Engineer-in-
Chief according to the requirements of both the services.
(d) Special conditions of service for Defence Officers.- The officers working in the Defence stream and coming on permanent secondment to Survey of India Group ‗A' service will be governed by special conditions of service relating to probation, reversion to military duty as etc. as given in Annexure-II.
xxx xxx xxx Annexure A-II xxx xxx xxx (2) Reversion to military duty - After confirmation an officer will have a lien on his appointment in the Survey of India which will however, be subject to the following conditions. In these conditions the expression ―revert‖ implies an option on the part of the officer, the expression ―be reverted‖ indicates that the officer has no option:
(a) if the officer has less than 20 years Commissioned service, he may revert permanently to military duty at his own request with six months notice.
(b) If the officer has more than 20 years commissioned service he may revert permanently to military duty only with the approval of the Government.
(c) An officer, of the substantive rank of Col. Or above or a Lt. Col, who has completed his tenure of service as such, cannot revert permanently to military duty.
(d) An officer may be reverted permanently to military duty if his services are no longer required. In the Survey of India owing to:-
(i) reduction of establishment.
(ii) Unsatisfactory work or conduct on the part of the officer not involving his removal or dismissal from Government Service.
(e) An officer may be reverted temporarily to military duty if:-15 O.A. No. 237/2023
(i) required for a normal tour of duty in the Military Survey Service in a post required to be filled by an officer with Survey of India experience.
(ii) Required temporarily for military duty in an emergency requiring the reversion to the Army of more than the number of officers provided for in the Group ‗A' Service of the Survey of India for filling the posts in the Military Survey Services.
(iii) In the opinion of the Chief of the Army Staff he is inefficient in the military duties. A reversion under this rule will be for a period of not more than six months and during; it the officer may be attached to any unit which the Chief of Army Staff considers suitable for providing the required refresher course.
(iv) He is required for disciplinary action under military rules. The period of reversion shall in the first place be only sufficient to enable the disciplinary action to be effected.‖ 4.4 Learned ASG states that as per NGP, since the vertical arrangement has been done-away with, the bifurcation has also been reduced. He argues that "Reduced" has been defined in Black‟s Law dictionary as under:-
―REDUCTION. In Scotch law. An action brought for the purpose of rescinding, annulling, or cancelling some bond, contract, or other instrument in writing.‖ Illustratively, he would demonstrate that either reduction can be at the scale of 10, 0 or any other factor or variable.16 O.A. No. 237/2023
4.5 Learned ASG contended that in a changed scenario where the country is leaping towards the moon, as evident from the success of Chandrayaan-3, there is new concept and approach altogether; and as such it cannot be said that the defence personnel have a vested right or lien to a particular kind of post. In fact, in view of the new technology and modernization of Armed Forces and other infrastructure related to defence, it can be safely inferred in ongoing circumstances that due course of action is to be taken.
4.6 The present challenge is not related to cadre review but the permanent reversion, keeping in mind the needs of modern times and technology, which the country is adopting; therefore, the issue raised by the applicants is not in consonance with the present scenario.
4.7 Finally, he would contend that there is a substantial reduction in Groups „B‟ & „C‟ posts and merely some additional benefits are being derived; it cannot be construed to mean that the applicants shall also be entitled to additional benefits de hors the policy decision.17 O.A. No. 237/2023
4.8 In addition to the submissions made above by the Learned Central Government Standing Counsel, Mr. Balendu Shekhar, learned counsel for the respondents further submitted as under :-
4.8.1 The policy decision is in consonance with the rule position governing the subject, i.e., Rule 1989 and no act or over act has been done by the respondents to say that any action, which has been contemplated in the policy, is de hors the rules, which are in place. Condition no. 2 of the Annexure-II of the Service Rule, 1989 provides the condition of reversion to military duty. The condition no.
2 of the Annexure-II of the Service Rule, 1989 reads as:-
―(2) Reversion to military duty - After confirmation an officer will have a lien on his appointment in the Survey of India which will however, be subject to the following conditions. In these conditions the expression ―revert‖ implies an option on the part of the officer, the expression ―be reverted‖ indicates that the officer has no option:
(a) if the officer has less than 20 years Commissioned service, he may revert permanently to military duty at his own request with six months notice.
(b) If the officer has more than 20 years commissioned service he may revert permanently to military duty only with the approval of the Government.
(c) An officer, of the substantive rank of Col. Or above or a Lt. Col, who has completed his tenure of 18 O.A. No. 237/2023 service as such, cannot revert permanently to military duty.
(d) An officer may be reverted permanently to military duty if his services are no longer required.
In the Survey of India owing to:-
(i) reduction of establishment.
(ii) Unsatisfactory work or conduct on the part of the officer not involving his removal or dismissal from Government Service.
(e) An officer may be reverted temporarily to military duty if:-
(i) required for a normal tour of duty in the Military Survey Service in a post required to be filled by an officer with Survey of India experience.
(ii) Required temporarily for military duty in an emergency requiring the reversion to the Army of more than the number of officers provided for in the Group ‗A' Service of the Survey of India for filling the posts in the Military Survey Services.
(iii) In the opinion of the Chief of the Army Staff he is inefficient in the military duties. A reversion under this rule will be for a period of not more than six months and during; it the officer may be attached to any unit which the Chief of Army Staff considers suitable for providing the required refresher course.
(iv) He is required for disciplinary action under military rules. The period of reversion shall in the first place be only sufficient to enable the disciplinary action to be effected.‖ 4.8.2 He would further contend that any action pursuant to the policy, insofar as reversion is concerned, is in consonance of the procedure and regulation as per Rules 1989.19 O.A. No. 237/2023
4.8.3 The Learned counsel to dispel the fears of the applicants would rely upon the decision rendered by the Hon‟ble High Court of Calcutta in Civil Appellate Jurisdiction M.A.T. No. 2922 of 1999 C.A.N. No. 7013 of 1999, titled R.S. Upadhyay Vs. The Union of India and Ors, decided on 06.10.1999.
The relevant paras of the same read as under:-
―3. The petitioner's basic argument is that as the petitioner was seconded to the DGQA, the provisions of Army Instruction 30/86 referred to the movement order did not apply to the petitioner. According to the petitioner, the petitioner's services with the Army were severed as soon as he was permanently seconded to the DGQA. As such, it is submitted, no action could be taken against the petitioner under the Army Act or Rules and that the petitioner could be proceeded against if at all. under the provisions the Central Civil Services Classifications and Control Appeal Rules, 1965.
xxx xxx xxx
11. Regulation 409 provides for army personnel on deputation in civil departments and reads:
"409. Army Personnel on Deputation to Civil Departments.--Army personnel while temporary seconded for duty to civil departments will be subject to the rules regarding discipline peculiar to the civil department in which they are serving and also the military law. Ordinarily, civil authorities will Initiate disciplinary proceedings against military personnel for offences committed by them while in civil employee in accordance with the civil rules. Where, however, the civil authorities feel that they cannot deal with a military person in adequate manner, they may make the reference to the Ministry of Defence 20 O.A. No. 237/2023 who, after being satisfied that it would be desirable to take action under the military law, will ask Army Headquarters to deal with the persons under the military. law. In such cases, mllitaty personnel will be reverted to the Army and attached to a convenient unit for Initialing disciplinary proceedings under the military law.
The above also applies to offences committed by military personnel on detached employment."
12. Analysed Regulation 409 envisages (1) an offence being committed by Army personnel while in civil employment; (II) a reference of the matter by the civil authority to the Ministry of Defence; (III) the satisfaction of the Ministry of Defence that action should be taken under the military law; (iv) a request of the Ministry of Defence to the Army Headquarters to deal with such person under military law; (v) reversion of the person to the Army; (vi) attachment to a unit and (vii) Initiation of disciplinary proceed-ings under the military law. It appears from the records produced by the respondent that (1) to (vi) stages have been followed in this case uptil now.
13. It was contended by the petitioner that Regulation 409 did not apply to permanently seconded army personnel. In our prima facie view Regulation 409 applies to army personnel whether permanently or temporarily seconded for duty to civil departments. This appears to be clear from the heading to the Regulation in which no distinction has been drawn between permanent and temporary secondment. Although the first line of the Regulation provides for army personnel "temporarily seconded for duty to civil departments" but the remaining sentences in the Regulation do not refer to temporary seconded personnel. If the regulation were limited to temporary secondment only, it was not necessary to have specifically referred to temporary secondment in the first sentence. If the remaining sentences in the paragraph are read as referring to temporary seconded personnel only, then the second sentence is tautologous. As we read the regulation it would appear to relate to army personnel (1) temporarily seconded for duty in civil 21 O.A. No. 237/2023 departments, (2) permanently seconded for duly in civil departments; and (3) military personnel on detached employment.
xxxx
15. These guidelines appear to make it clear that regulation 409 deals with personnel either permanently or temporarily seconded to civil departments.
xxxx
20. The petitioner relied upon a memorandum Issued relating to the procedure for Intake of Service Officers in the Inspection Organization of the Ministry of Defence and terms and conditions of service of those permanently retained to contend that he was not subject to the Army Act, The memorandum provides inter alia that the Ministry of Defence (Department of Defence Production) would be the controlling authority. It also provides for the intake of service officers of specified rank in the army in the Inspection Organisation. Reliance has been particularly placed by the petitioner on paragraph 4 of the memorandum which provides that "officers already permanently seconded would continue in the organisation till their retirement in due course". The learned single Judge has held that the provision in the memorandum that officers permanently seconded to DQA organisation are subject to recall in the service allowed the Army to deal with the petitioner. It appears to us that apart from that, the memorandum cannot override Regulation 409.‖ 4.8.4 He further relies on the decision rendered by the High Court of Andhra Pradesh at Hyderabad in Writ Petition No.15840 of 1988, titled S.Ravi and Ors. Vs. Union of India and Ors. decided on 29.8.2023. The relevant paras of the same read as follows:-
22 O.A. No. 237/2023―8. The learned counsel for the petitioner next contended that though the petitioners are originally recruited in the Armed Forces and seconded to Survey of India and are governed by the Service Rules made by the 2nd respondent under Article 309 of the Constitution of India, yet their pay is protected under the Army Act, 1950. Further in view of the rule positions, they can even be repatriated to the Armed Forces, whenever the 3rd respondent feels necessary. He further contends that though the petitioners are designated, basing upon their qualifications and experience, yet their pay would be dealt with by the grant of a suitable personal pay to enable the officers to volunteer for service in the Survey of India without any great immediate loss of emoluments and the difference of emoluments in each will be determined by the Surveyor General in consultation with the Engineer-in-Chief, on the basis of the average of emoluments of two officers above and two officer below the officer volunteering for the Survey of India. He further contends that similarity situated officers who are working in Armed Forces and some of the petitioners were also allowed to draw the Technical Pay for sometime, but as a consequence of the order passé by the 2nd respondent on erroneous reasons, the petitioners were made lose the Technical Pay, which is in financial prejudice to the petitioners and discriminatory offending Article 14 of the Constitution of India.
xxxx
16. It is very much relevant, in this context, to add that though the petitioners are seconded to work in Survey of India, their cases are considered for promotion whenever due under the Army Act and if fail to pass a promotional test, within the grace period allowed by the Department, they can even be revered or discharged from the service. Thus, when their pay is protected and promotional channel is also kept alive, it is too irrational to say that they can only draw the salary as fixed by the rules framed by the Survey of India. For all practical purposes, they are governed by the Army Act and for internal administration alone, the rules are made applicable and the ranking is also 23 O.A. No. 237/2023 suitably designated as Deputy Superintending Surveyor, Superintending Surveyor, Deputy Director, Director and Surveyor General of India, in the Survey of India Department and they are even liable to be repatriated to the Army Services, whenever it is felt necessary.‖ 4.8.5 The "reversion" postulates two conditions one is „revert‟ and second „be reverted‟. It is also argued by the learned counsel that the respondents are not taking any coercive action against the applicants and clause 5.2.2.7 is very general clause, which discloses a broad policy intention of the Department and for which, the Department has inherent right to formulate policies with the evolving situations in the country. After consulting all the stakeholders and taking into account their aspirations, the policy is a broad and reasoned document to make India a world leader in Global Geospatial entity with the best in the class ecosystem for innovation and to develop a coherent national framework in the country and leverage it to move towards digital economy and improve services to citizens, and to enable easy availability of valuable Geospatial data collected utilizing public funds, to 24 O.A. No. 237/2023 businesses and general public and to have a thriving Geospatial industry in the country involving private enterprise and they have put their futuristic milestones for the years 2025, 2030 & 2035 and they have gone through all the processes of consultation and inter-ministerial group discussions and deliberations and the same was placed before the Union Cabinet in its meeting held on 16.12.2022 and have been formally approved and notified. The policy they aver, in no way, impinges on any existing rights of the applicant. As far as their service rules are concerned the Survey of India Group „A‟ Service Rules, 1989 is applicable to the applicants and without going through any due process as prescribed in the existing Service Rules, 1989, they are not taking any precipitous action to send out en-masse all the army personnel from the Survey of India.
Those who are presently working have been and are to be dealt with the existing Survey of India Group „A‟ Service Rules 1989.
25 O.A. No. 237/20235. Learned counsel for the applicant(s) in rejoinder to the arguments put forth by the respondent(s) highlighted as under :-
5.1 Insofar as the issue raised by the respondents qua the jurisdiction is concerned, the said issue has already been settled by virtue of the order passed by the Allahabad High Court in Writ- A No. 10816 of 2023, titled Union of India and 3 others Vs. Col.
Kshitij Sudhir Verma and 43 Others, which reads as under:-
―2. Present writ petition has been filed by the Union of India to assail the orders passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad dated 31.03.2023 and 29.05.2023 on Original Application No. 237 of 2023 (Col. Kshitij Sudhir Verma and others Vs. Union of India and Others). The first order is a detailed interim order granted by the Tribunal staying the operation and effect of the order dated 20.03.2023 passed by the Joint Secretary, Government of India. The second order is the order allowing the amendment sought by the applicants before the Tribunal.‖ 5.2 He would reiterate that as per the aforesaid order itself, the applicants are not challenging the policy as a whole. They are aggrieved by the insertion of clause 5.2.2.7 and the same being an original draft cannot be implemented as a policy. He would contend 26 O.A. No. 237/2023 that the sole determination in the present matter as to whether the Rule 1989, which are still in vogue, can be amended, tweaked or superseded by way of NGP. He relies upon the decision rendered by the Hon‟ble Supreme Court in Civil Appeal No. 822 of 2023 titled „Ashok Ram Parhad & Ors. Vs. The State of Maharashtra & Ors‟. The relevant paras of the same read as under:-
―28. It appears to us that the High Court's view is the correct view. The resolutions have been passed in the context that the person who successfully completes the training effectively gets the monetary compensation for his training period and is not deprived of the same. This cannot amount to giving seniority from the date of initial recruitment process to determine inter se seniority, when the Proviso to Rule 2 of the 1984 Rules makes the date of appointment for direct recruits clear. This is also in the background that while the direct appointees have no experience in the field having been freshly recruited, the promotees have been doing the task.
29. We fail to appreciate how the judgment in Prafulla Kumar Swain8 case can be distinguished in this behalf merely by reason of the regulation therein containing the expression ―only‖. It is not necessary to (supra). refer to factual scenarios of different judgments and different rules or general definition of what would amount to be on ―duty‖, when the rule in question is quite clear. We say so even in the context of the judgment in R.S. Ajara & Ors.9 case as in any service, whether on the issue of appointment or promotion, it is what the rule says, which will matter. One cannot derive general principles to decide such issues. We do appreciate that there can be scenarios where the rule specifically states to the contra. But, in the present case, the very factum of Proviso to Rule 2 of the 27 O.A. No. 237/2023 1984 Rules being inserted in the rule has to be assigned a meaning, as otherwise, it would imply that the Proviso has become otiose. It cannot be said that the Proviso is not to be read in the context of the aspect of promotion.
30. We also find that Rules 3B and 6 of the 1988 Rules also leave no ambiguity in this behalf and in fact read in consonance and the period of probation has to be necessarily excluded from period of service. As already stated, the grant of monetary benefit is a different aspect.‖ 5.3 He refers to NGP-2022, which was approved by the Cabinet and notified vide Notification dated 28.12.2022, a preamble of which reads as under:-
―1. Preamble 1.1 Geospatial technology has applications in almost every domain of the economy ranging from agriculture to industries, development of urban or rural infrastructure, administration of land, economic activities of banking and finance, resources, mining, water, disaster management, social planning, delivery services, etc. Geospatial date is now widely accepted as a critical national infrastructure and information resource with proven societal, economic and environmental value that enables government systems and services, and sustainable national development initiatives, to be integrated using ‗location' as a common and underpinning reference frame.‖ 5.4 Learned counsel for the applicants states that the conditions of Rule 1989 came into effect by virtue of Article 309 of the Constitution of India and the 28 O.A. No. 237/2023 same cannot be taken away unless and until the said Rules are amended, repealed or otherwise superseded. The policy cannot substitute the Rules and Statute, which are independent of each other.
5.5 Drawing reference to Article 309 of the Constitution as imbibe of Part XIV of Chapter 1 reads as under:-
―309. Recruitment and conditions of service of persons serving the Union of a State - Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor 2[***] of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.‖ 5.6 Further, he draws reference to Rule 16 (5)
(h) of Army Act, 1950, which reads as under:-29 O.A. No. 237/2023
―(h) of Corps, of Engineers permanently seconded to Survey of India as under the civil rules applicable to them from time to time.‖ 5.7 He states that in consonance of the aforesaid Rule position of Army Act, the present applicants are permanently seconded to Survey of India and, therefore, their posting remains intact as absorbed employees of Survey of India and thus, governed by Rule 1989.
5.8 In consonance of Army Act, the learned counsel draws reference to Section 23 (i) and (ii) of General Clauses Act, 1897, which reads as under:
―23. Provisions applicable to making of rules or bye-laws after previous publication- Where, by any 79[Central Act] or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely:--
(1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby; (2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the 42 [Government concerned] prescribes;‖ 30 O.A. No. 237/2023 5.9 He further strengthens his arguments and states that the contentions are governed by Fundamental Rules 13, General conditions of service, which reads as follows:-
―Lien means the title of a Government servant to hold on regular basis, either immediately or on the termination of a period or periods of absence, a post, including a tenure post, to which he has been appointed on regular basis and on which he is not on probation:
Provided that the title to hold a regular post shall be subject to the condition that the juniormost person in the grade will be liable to be reverted to the lower grade if the number of persons so entitled is more than the posts available in that grade.‖ 5.10 He would further contend that as per the present policy, even though not in the cases where the people have been confirmed, there is a substantial change in service conditions and promotional avenues. Accordingly, by passing the principles of natural justice regarding show cause and following process of law or de hors the rules, the same cannot be done or taken away by a policy decision.
5.11 In continuation of FR 13, the learned counsel refers to FR (56)(i) and submits that there are serious 31 O.A. No. 237/2023 contradiction in the policy itself. In this regard, FR (56) (i) reads as under:-
―(i) A Military officer in a Civil Department shall cease to be in civil employment on the date he attains the age of sixty years.‖ 5.12 It is not the case of the applicants that they are under probation or under the threat of reversion. In fact, their case is that they are already confirmed and the status as on date due to change in the circumstances of policy decision is questionable. He challenges the clause 5.2.2.7 in relation to the persons, who are already confirmed and not a challenge to probation or reversion in terms of the provisions of the Rules, 1989. He would contend that the word "reduced" cannot be construed to mean „reversion or revert‟ as contended by the learned ASG.
In fact, what has been argued is that clause in the policy did not contemplate reduction of establishment to what has been contemplated under Rule 1989 and it would necessarily mean even in the case of reduction of establishment in terms of Rule 2 (d) of the Annexure A-II that has to be followed by invoking 32 O.A. No. 237/2023 the principles of natural justice and also in consonance with the Rules thereto.
5.13 Learned counsel for the applicants has drawn our attention to grounds 4.4 to 4.7, which read as follows:-
―4.4 That the army officers from the Corps of Engineers with 3 to 6 years of service were selected by the UPSC and further inducted into the Survey of India to form SOI Group A- Defence stream officers on permanent secondment under the 1950 Rules till 1989. Survey of India Group A' Service Rules 1989 were promulgated, superseding Survey of India (Requirement of Corps of Engineers Officers) Rules 1950. The new Rules of 1989 were framed to remove the disparity in pay, promotion, and seniority between the Army and civilian officers after prolonged deliberations and take care of all grievances of civilian officers. The Group A' Cadre of the Survey of India was thus bifurcated into two separate streams, namely defence and civil, allotting posts at each level for both streams separately. For the new entrance, no inter-se seniority will be maintained, and the officers will be promoted in their respective streams. However, inter alia, the seniority of existing officers will be maintained in order to grant supernumerary promotion in both streams, to cater for any supersession due to bifurcation. At the time of promulgation of the Rules, 1989.
4.5 That the newly selected UPSC Defence stream officers are mandated to attend a two-year Survey Engineer course at the National Institution of Geo-
informatics Science and Technology, Hyderabad, along with the newly inducted Civil Stream officers, and also complete other courses that assist the applicants and are accounted for when they are considered for promotion.
33 O.A. No. 237/20234.6 That the full bench of the Hon'ble Supreme Court of India in considered for promotion. the case of A. S. yer & Ors. Vs. V.. Balasubramanyam & Ors judgment dated 24.08.1979, held the importance of defence in the Survey of India. The relevant paragraph of the judgment dated 24.08.1979 passed by the Hon'ble Supreme Court is quoted below:
―5.The genesis of the Survey of India, its life before birth its genetic composition and hereditary characteristics, mould the structural engineering of the Service and, therefore, have a bearing on the issues debated before us both sides. While the High Court has, to some extent, slurred over the chronicle, both sides have heavily stressed before us the saga of the Survey of India, each to lend strength to its point of view. So, a peep into the bicentennial biography of the Survey of India is a necessary exercise as a starting point, To blink at history is to lose the living link with thee Past and to stumble in the Present Yet strangely, none such, i.e., history of the Service to serve as a lucid background is given in their statement by ether party, Save incidentally. Unfortunately, the fine and fruitful art of presenting a lucid written brief is still in the long Indian Year of the Infant and we have to cull out and piece together materials which should have been set out as a scenario of meaningful development."
6. The present case plainly falls in the hands-off zone and so the court must leave the injustice, if any, to be corrected, if needed, by other processes. Our exploration has revealed that the Survey of India is a civilian department rendering varied services to non-Defence spheres of the Central Government and to State Governments. So its composition cannot be reasonably confined to military personnel only.
But critical Defence- oriented work is also done, not only in seasons of national emergency but also during peace spans. The border line between national security by the Defence forces and developmental projects by civil services is becoming obsolete. Defence is not only on the battle front but also in the strategic rear, in the 34 O.A. No. 237/2023 farms and factories, in efficient supplies and essential services, in mapping second lines of defence and routes of troop movements, all of them having to be executed on a war footing. Wings which can be mobilised at instant's notice, forces which will build with blitz speed, have to be in the sheath to be drawn out like a sword on an alarm signal. More than all, as earlier elaborated, the tasks of the Survey for the Defence are in times of Emergency top priority items. So a sizeable section of men with army background, and military aptitude, with quick reflexes and familiar with Defence team work, must be kept in reserve all the time. It follows that a good proportion of Army engineers are a 'must' for the Survey. It is enough to have 25% or 50% from military engineers a matter of fine-tuning of policy for which the judiciary has no genius and the Administration has a reach of materials and range of expertise so that Courts must keep out, save where irrational criteria, irrelevant factors, mala fide motives or gross folly enter the verdict.‖ 4.7. That 80% of the maps in the Survey of India are related to the Army or national security, and 20% of the maps are made for another purpose. Al maps are important and necessary to be examined as they incorporate more sensitive roads, points, or areas in the maps of the survey of India that deals with the security of the nation.‖ 5.14 Alternatively, he argues that if the reduction of establishment is made, it would tantamount to major penalty de hors the service conditions.
5.15 He would also contend that the contention of the learned ASG appearing for the respondents so far 35 O.A. No. 237/2023 as cadre review is concerned, the cadre review can only be done in a holistic manner after giving proper representation to the affected parties and entertaining the objections thereto. In support of this, he relies upon the following judgments:-
(i) Appeal (civil) 6668-6698 of 2000, titled Delhi Development Authority vs Joint Action Committee, Allottee of SFS Flats and Ors, decided on 13.12.2007;
(ii) Civil Appeal No. 1243 of 2022, titled SK Nausad Rahaman & Ors Versus Union of India and Ors., decided on 10.04.2022;
(iii) Civil Appeal No.3879 of 2013, titled Union of India & Ors. Versus Col.
GS Grewal decided on 28.05.2014.
6. No other argument has been urged by the learned counsels for respective parties and they have also placed written submissions on record.
36 O.A. No. 237/20237. We heard learned counsel(s) for the applicant(s) as well as learned ASG assisted by Senior Cnetral Government counsels at great length and perused the material placed on record including the written submissions filed by counsel(s) for the parties.
8. Analysis 8.1 We observe that the Primary challenge in this OA is to the clause 5.2.2.7 of NGP, which for ready reference reads thus:-
―5.2.2.7. The organizational structure of SoI would be aligned with the changed Geospatial data regime, with focus on facilitating and nurturing a vibrant domestic Geospatial services industry. SoI would be transformed into a fully civilian organization. Defence stream of recruitment in SoI would be discontinued and defence stream officers seconded to SOI would be permanently reverted to Military Survey, Ministry of Defence. Requirements of fast changing skill sets in SOI would be met, by domain experts sourced from the market.‖ 8.2 Further, question(s) also arises in the present OA qua the impugned office order dated 20.03.2023 is to find as to "whether the decision(s) dated 20.03.2023 can be taken de hors the provisions contained in clause (d) of para 2 37 O.A. No. 237/2023 of Annexure II, Conditions of service for Defence Officers, Rule 1989, insofar as Group „A‟ officers are concerned ?."
8.3 The Hon‟ble Apex Court in Civil Appeal Nos.4178-4197 of 2022 [Arising out of Special Leave Petition (Civil) Nos.10015 10034 of 2020] -Yamuna Expressway Industrial Development Authority Etc. vs. Shakuntla Education and Welfare Society & others etc. decided on 19.05.2022, has held as under:-
"59. The law with regard to interference in the policy decision of the State is by now very well crystalized. This Court in thecase of Essar Steel Limited vs Union of India and others had an occasion to consider the scope of interference in the policy decision of the State. After referring to various decisions of this Court, the Court observed thus: ―43. Before we can examine the validity of the impugned policy decision dated 63 2007, it is crucial to understand the extent of the power vested with this Court to review policy decisions.
44. In DDA [DDA v. Allottee of SFS Flats, (2008) 2 SCC 672 : (2008) 1 SCC (Civ) 684] on issue of judicial review of policy decisions, the power of the Court is examined and observed as under: (SCC pp. 69798, paras 64-65) ―64. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty gritty of the policy, or substitute one by the other but it will not be correct to contend 38 O.A. No. 237/2023 that the court shall lay its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review.
65. Broadly, a policy decision is subject to judicial review on the following grounds:
(a) if it is unconstitutional;
(b) if it is dehors the provisions of the Act and the Regulations;
(c) if the delegatee has acted beyond its power of delegation;
(d) if the executive policy is contrary to the statutory or a larger policy.‖
45. Thus, we will test the impugned policy on the above grounds to determine whether it warrants our interference under Article 136 or not.
Further, this Court neither has the jurisdiction nor the competence to judge the viability of such policy decisions of the Government in exercise of its appellate jurisdiction under Article 136 of the Constitution of India. In Arun Kumar Agrawal v. Union of India [Arun Kumar Agrawal v. Union of India, (2013) 7 SCC 1] , this Court has further held as under: (SCC p. 17, para 41) ―41. ... This Court sitting in the jurisdiction cannot sit in judgment over the commercial or business decision taken by parties to the agreement, after evaluating and assessing its monetary and financial implications, unless the decision is in clear violation of any statutory provisions or perverse or taken for extraneous considerations or improper motives. States and its instrumentalities can enter into various contracts which may involve complex economic factors. State or the State undertaking being a party to a contract, have to make various decisions 39 O.A. No. 237/2023 which they deem just and proper. There is always an element of risk in such decisions, ultimately it may turn out to be a correct decision or a wrong one. But if the decision is taken bona fide and in public interest, the mere fact that decision has ultimately proved to be wrong, that itself is not a ground to hold that the decision was mala fide or taken with ulterior motives.‖ (emphasis supplied)
46. In Villianur Iyarkkai Padukappu Maiyam v.
Union of India [Villianur Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7 SCC 561] , it was held as under: (SCC p. 605, para 169) ―169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review. In matters relating to economic issues the Government has, while taking a decision, right to ―trial and error‖ as long as both trial and error are bona fide and within the limits of the authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts.‖ (emphasis supplied)
47. A three Judge Bench of this Court in Narmada Bachao Andolan v. Union of India [Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664] cautioned against courts sitting in appeal against policy decisions. It was held as under: (SCC p. 763, para 234) ―234. In respect of public projects and policies which are initiated by the 40 O.A. No. 237/2023 Government the courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the court to go into and investigate those areas which are the function of the executive. For any project which is approved after due deliberation the court should refrain from being asked to review the decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite view against the undertaking of the project, which view may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the court to go into the matter afresh and, in a way, sit in appeal over such a policy decision.‖ (emphasis supplied)
48. A similar sentiment was echoed by a Constitution Bench of this Court in Peerless General Finance &Investment Co. Ltd. v. RBI [Peerless General Finance & Investment Co. Ltd. v. RBI, (1992) 2 SCC 343] , wherein it was observed as under: (SCC p. 375, para 31) ―31. ... Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts.‖ 41 O.A. No. 237/2023
49. A perusal of the above-mentioned judgments of this Court would show that this Court should exercise great caution and restraint when confronted with matters related to the policy regarding commercial matters of the country. Executive policies are usually enacted after much deliberation by the Government. Therefore, it would not be appropriate for this Court to question the wisdom of the same, unless it is demonstrated by the aggrieved persons that the said policy has been enacted in an arbitrary, unreasonable or mala fide manner, or that it offends the provisions of the Constitution of India.‖
60. It is trite law that an interference with the policy decision would not be warranted unless it is found that the policy decision is palpably arbitrary, mala fide, irrational or violative of the statutory provisions. We are therefore of the considered view that the High Court was also not right in interfering with the policy decision of the State Government, which is in the larger public interest.
61. It will also be apposite to refer to the following observations of this Court in the case of APM Terminals B.V. vs. Union of India and another9 (2011) 6 SCC 756 ―67. It has been the consistent view of this Court that a change in policy by the Government can have an overriding effect over private treaties between the Government and a private party, if the same was in the general public interest and provided such change in policy was guided by reason. Several decisions have been cited by the parties in this regard in the context of preventing private monopolisation of port activities to an extent where such private player would assume a dominant position which would enable them to control not only the berthing of ships but the tariff for use of the port facilities.‖
62. It could thus be seen that it is more than settled that a change in policy by the Government can have an overriding effect over private treaties between the Government and a private party, if the same was in the general public interest. The additional 42 O.A. No. 237/2023 requirement is that such change in policy is required to be guided by reason.
63. Insofar as the reliance placed by the respondents on the judgment of this Court in the case of ITC Limited (supra) is concerned, in our considered view, the said judgment would not be of any assistance to the case of the respondents. This Court in the said case in paragraph 107.1 has clearly observed that in the case of conflict between public interest and personal interest, public interest should prevail.
64. A number of judgments of this Court have been cited at the Bar by the respondents in support of the proposition that in view of concluded contracts, it was not permissible for the appellants to unilaterally increase the premium by framing a policy.
65. We have herein-above elaborately discussed that when a policy is changed by the State, which is in the general public interest, such policy would prevail over the individual rights/interests. In that view of the matter, we do not find it necessary to refer to the said judgments. The policy of the State Government as reflected in the said G.O. was not only in the larger public interest but also in the interest of the respondents.‖ 8.5 On a careful examination of the policy, we find that the present NGP has been formulated taking to its logical conclusion involving all stakeholders. The policy decision, i.e., NGP has to be read as a whole and cannot be read in isolation having wide ramifications, which cannot be at this stage nullified merely on some or the other apprehension. Any policy decision broadly lays down larger picture being futuristic in nature and cannot be seen in a watertight 43 O.A. No. 237/2023 compartment. It is conscious decision in larger national interest with an idea of being not only taking care of needs of the nation time ahead but also sub-
serve the economic, national and public interest. NGP is a strategic framework operating in broader spectrum, which would not only be a determinable but also a guiding factor in laying down path in future decision making process. It would be too remote to say that clause 5.2.2.7 was never part of draft proposal or de hors the Rules 1989. The clause 5.2.2.7 of NGP nowhere states that it is amending, rescinding, repealing or superseding the provisions of 1989 Rules.
8.6 In a recent decision in Ashok Ram Parhad vs. The State Of Maharashtra decided on 15 March, 2023-Civil Appeal No.822 OF 2023, it has been observed by the Hon‟ble Apex Court as under:-
―In service jurisprudence, the service rules are liable to prevail. There can be Government resolutions being in consonance with or expounding the rules, but not in conflict with the same. On having set forth this general proposition, we now examine the scenario of the Rules as prevalent. If we turn to the statutory Rules framed under Article 309 of the Constitution, i.e., the 1984 Rules, Rule 2 refers to the appointment to the post of the DFO and the same to be made by promotion from amongst officers of the Maharashtra Forest 44 O.A. No. 237/2023 Service and also by appointment directly. The Proviso to Rule 2 of the 1984 Rules is unambiguous and quite clear, i.e., the period spent on training at Government Forest Colleges and other period of probation including extended period of probation, if any, ―shall not be counted towards the requisite period of service.‖ Thus, what is envisaged is that the appointment is different from the recruitment process, which starts with the commencement of training. There can be possibilities of a candidate not completing the training satisfactorily, thereby resulting in the candidate's removal on probation. Such probation period can also be extended to see whether a candidate improves in performance. (Hence, even if the Government Resolution dated 25.01.1990 upgraded the post of ACF from Class II to Class I, the Proviso to Rule 2 of the 1984 Rules will continue to hold valid in determining the period of service.)
26. In the aforesaid context if we turn to the 1998 Rules, more specifically Rule 3(b), the stipulation is that in case of a nomination, the same is based on the result of the competitive examination held by the Commission in accordance with the Rules and the candidate is required to have ―successfully completed the training course.‖ Rule 6 provides for probation for a period of three years including two years of ACF training course and one year field training, as decided by the Principal Chief Conservator of Forests. Thus, even reading of these extant Rules makes the process for such direct requirements quite clear. The Entrance and Training Rules (Revised) for the State Forest Service Officers, 2004 (hereinafter referred to as the ―2004 Rules‖) are comprehensive in character and set forth how the recruitment process will take place.
27. We do believe that on behalf of the appellants there is over- emphasis on the expression ―person appointed to the post by nomination‖ under Rule 6 of the 1998 Rules, without appreciating the context in which such expression has been used. In contending that the interpretation given by the High Court would amount to making the opening part of Rule 6 otiose, what is lost sight of is that were the appellants' plea to be accepted, it would amount to making the Proviso to Rule 2 of the 1984 45 O.A. No. 237/2023 Rules otiose. The Government resolutions issued by the Administrative Department cannot have the status of a statutory rule although such resolutions may have their own effect.‖ 8.7 The learned counsel for the applicants has laid much emphasis to say that NGP cannot supersede the said prevalent Rules, 1989. We appreciate the said submissions. As already stated above, we find that the clause 5.2.2.7 of NGP nowhere postulates that it is amending, rescinding, repealing or superseding the provisions of 1989 ,Rules.
8.8 We also draw a reference to Union Of India vs Col. J. N. Sinha And Anr , 1971 AIR 40, 1971 SCR (1) 791 , wherein the issue pertained to the first respondent who joined the post of Extra Assistant Superintendent in the Survey of India Service in 1938.Later he was taken into the Class I Service of the Survey of India and rose to the post of Deputy Director. He also officiated as -Director. On August 13, 1969 the President of India pleased by an order under Rule 56(j) of the Fundamental Rules to compulsorily retire the first respondent from Government service. No reasons were given in the 46 O.A. No. 237/2023 order. The appellant challenged the order by a writ petition in the High Court. The failure on the part of the concerned authority to give opportunity to the first respondent to show cause against his compulsory retirement was held by the High Court to have amounted to a contravention of the principles of natural justice. Against the judgment of the High Court the Union of India appealed. The Hon‟ble Apex Court held as under :-
"The validity of Fundamental Rule 56(j) was not questioned before the High Court nor before us. Its validity is not open to question in view of the decision of this Court in T. G. Shivacharana Singh and Ors. v. State of Mysore(1). Fundamental Rule 56(j) in terms does not require that any-opportunity should be given to the, concerned government servant 'to show cause against his compulsory retirement. A government -servant serving under the Union of India holds his office at the pleasure of the President as provided in Art. 310 of the Constitution. But this "Pleasure" doctrine is subject to the rules or law - made under Art. 309 as well as to the conditions prescribed under Art. 311.Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak and Ors. v. Union of ' India(2) "the aim of rules of natural justice is to secure justice or to put it negatively to -prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it." It is true that if a statutory provision can be read consistently with the principles of natural justice. the courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of naural justice. But if on the 47 O.A. No. 237/2023 other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred / and the effect of the exercise of that power. Now coming to the express words of Fundamental Rule 56(j), it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule.' one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the government on the ground of mala fide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent's service is that the government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Art. - 3 1 0 of the Constitution. Various considerations may weigh with, the appropriate authority while exercising the power conferred under the rule. In some cases, the government may feel that a particular post may be more usefully held in public 48 O.A. No. 237/2023 interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. 'While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.
It is true that a compulsory retirement is bound to have some adverse effect on the government servant who is compulsorily retired but then as the rule provides that such retirements can be made only after the officer attains the prescribed age. Further a compulsorily retired government servant does not lose any of the benefits earned by him till the date of his retirement. Three months' notice is provided so as to enable him to find out other suitable employment. In our opinion the high Court erred in thinking that the compulsory retirement involves civil consequences. Such a retirement does not take away any of the rights that have accrued to the government servant because of his past service. It cannot be said that if the retiring age of all or a section of the government servants is fixed at 50 years, the same would involve civil consequences. Under the existing system there is no uniform retirement age for all government servants. The retirement age is fixed not merely on the basis of the interest of the government servant but also depending on the requirements of the society. The High Court was not justified in seeking support for its conclusion from the decision of this Court in State of Orissa v. Dr. (Miss) Binapani 'Dei and ors.(1) and A. K. Krailpak v. Union of India(').
In Binapani Dei's case(') Dr. Binapani Dei's date of birth was refixed by the government without giving 49 O.A. No. 237/2023 her proper opportunity to show that the enquiry officer's report was not correct. It is under those circumstances this Court held that the order refixing the date of birth was vitiated for failure to comply with the principles of natural justice. Therein the impugned order took away some of the existing rights of the petitioner.
In Krapak's case, a committee consisting of Chief Conservator of, Forest, Kashmir and others was appointed to recommend names of the officers from Kashmir Forest Service for being selected for the Indian, Forest Service. The Chief Conservator of Forests, Kashmir was one of the candidates for selection. Further it was established therein that some of the officers who competed with him had earlier challenged his seniority and consequently his right to be the Chief Conservator and that dispute was pending. Under those circumstances this Court held that there -was contravention of the principles of natural justice.‖ 8.9 We have also examined the point raised by the learned counsel on the concept of "lien" under FR 13.
For better appreciation of the submissions put forth , we draw a reference to concept of "Lien" and the Rule position thereto.
" Lien Lien is defined in FR 9(13). It represents the right of a Government employee to hold a regular post, whether permanent or temporary, either immediately or on the termination of the period of absence. The benefit of having a lien in a post/service/cadre is enjoyed by all employees who are confirmed in the post/service/cadre of entry or who have been promoted to a higher post, declared as having completed the probation where it is prescribed. It is also available to those who have 50 O.A. No. 237/2023 been promoted on regular basis to a higher post where no probation is prescribed under the rules, as the case may be.
The above right will, however, be subject to the condition that the junior-most person in the cadre will be liable to be reverted to the lower post/service/cadre if at any time the number of persons so entitled is more than the posts available in that cadre/service.
(DOPT's O.M. No. 18011/1/86-Estt (D) dated 28.03.1998) Lien on a post A Government servant who has acquired a lien on a post retains a lien on that post-
(a) while performing the duties of that post;
(b) while on foreign service, or holding a temporary post or officiating in another post;
(c) during joining time on transfer to another post; unless is he is transferred substantively to a post on lower pay, in which case his lien is transferred the new post from the date on which he is relieved of his duties in the old post;
(d) while on leave; and (e) while under suspension.
A Government servant on acquiring a lien on a post will cease to hold any lien previously acquired on any other post.
Retention of lien for appointment in another Central Government office/State Government
(i) A permanent Government servant appointed in another Central Government Department/Office/ State Government, has to 51 O.A. No. 237/2023 resign from his parent department unless he reverts to that department within a period of 2 years, or 3 years in unless he exceptional cases. An undertaking to abide by this condition may be taken from him at the time of forwarding of his application to other departments/offices.
(ii) The exceptional cases may be when the Government servant is not confirmed in the department/office where he has joined within a period of 2 years. In such cases he may be permitted to retain the lien in the parent department/ office for one more year. While granting such permission, a fresh undertaking similar to the one indicated above may be taken from the employee.
(iii) Timely action should be taken to ensure extension/ reversion/ resignation of the employees to their parent cadres on completion of the prescribed period of 2/3 years. In cases, where employees do not respond to instructions, suitable action should be initiated against them for violating the agreement/ undertaking given by them as per
(i) and (ii) above and for termination of their lien. Adequate opportunity may, however, be given to the officer prior to such consideration.
(iv) Temporary Government servants will be required to severe connections with the Government in case of their selection for outside posts. No lien will be retained in such cases.
(DOPT O.M. No. 8/4/70-Estt(C) dated 06.03.1974) Termination of Lien 3.4.1 A Government servant's lien on a post may in no circumstances be terminated even with his consent if the result will be to leave him without a lien upon a permanent post. Unless his lien is transferred, a Government servant holding 52 O.A. No. 237/2023 substantively a permanent post retains lien on that post. It will not be correct to deny a Government servant lien to a post he was holding substantively on the plea that he had not requested for retention of lien while submitting his Technical Resignation, or to relieve such a Government servant with a condition on that no lien will be retained.
A Government employee's lien on a post shall stand terminated on his acquiring a lien on a permanent post (whether under the Central Government or a State Government) outside the cadre on which he is borne.
No lien shall be retained:
a. where a Government servant has proceeded on immediate absorption basis to a post or service outside his service/ cadre/ post in the Government from the date of absorption; and b. on foreign service/ deputation beyond the maximum limit admissible under the orders of the Government issued from time to time.
(Notification No. 28020/1/96-Estt(C) dated 09.02.1998) Transfer of Lien The lien of a Government servant, who is not performing the duties of the post to which the lien pertains, can be transferred to another post in the same cadre subject to the provisions of Fundamental Rule 15.
(Notification No. 28020/1/96-Estt(C) dated 09.02.1998) 8.10 What has emerged in above factual matrix can be summed up as under :-53 O.A. No. 237/2023
i. The applicants are Defence Stream Officers having "lien" in Survey of India, Group „A‟ Service.
Since the applicant(s) themselves admit that they had exercised lien within their rights, hence, were well aware of the fact that they can be "reverted"
under the 1989, Rules at any given point of time and as such no indefeasible right could have accrued dehors the Rule(s). They could be very well considered for promotion to a higher post but not as matter of right.
ii. In rejoinder the applicant(s) have admitted in so many words inter alia to the effect that "It is also pertinent to mention that defence stream officers are not challenging the policy rather questioning the due process was followed during insertion of clause no.
5.2.2.7, which is in clear violation of service conditions of defence team officers as per 1989 RRs."
iii. To say the least, it cannot be said by the applicant(s) that in terms of (d) of Rule 11 of 1989 54 O.A. No. 237/2023 An officer may be not reverted permanently to military duty if his services are no longer required.
In the Survey of India owing to:-
(i) reduction of establishment.
(ii) Unsatisfactory work or conduct on the part of the officer not involving his removal or dismissal from Government Service.
iv. There is no strict procedure prescribed or to be followed in said 1989, Rules, as it is both procedural and substantive one. Though one may say that principle of natural justice is to be followed, but "reverted permanently" to military duty if his services are no longer required" cannot be construed to equated and meant to be "reversion" as a major disciplinary proceedings. The respective applicant(s) at relevant point of time had taken a conscious and well considered decision to join by exercising right to lien being well aware of Rule position. Merely because there is long tenure of their engagement with respondents/ Survey of India cannot be a 55 O.A. No. 237/2023 ground to seek retention. The applicability of General Clauses Act to a policy decision has no relevance in reference to present context.
v. It has been contended by the applicant(s) that the respondent somehow managed to include the para 5.2.2.7 despite top defence officials (E-in-C and DGMO letters) pushing for any un-towards inclusion of the same, which itself signifies the importance of defence stream officers in SOI and any reversion amounts to treachery in the guise of national interest by the respondents. This submission is based only on an apprehension without any material placed on record. We would rather infer that the usage of word "reverted permanently" cannot be construed to mean of having penal consequences, which existed since 1989.
vi. There appears to be a tussle between the civilian stream and defence stream. Any policy decision taken by the Centre within its exclusive domain, including the powers to lay down procedure to act upon the same, the right cannot be abridged or 56 O.A. No. 237/2023 taken away unless it is shown to be mala fide and /or not in public interest.
vii. In view of the above stipulated Rule position, none of the conditions, i.e., retention/ termination / transfer of lien has been taken away in any manner by the said policy decision, nor is it contrary to 1989, Rules or impugned Office Order dated 20.3.2023.
8.11 To dispel the apprehension, the stand of the respondents is very clear, as stated in their counter affidavit. At this stage, it is too premature to comprehend and pre-empt of any action/impact to a particular individual. The usage of the words used in Rule 11 of 1989, more particularly, in defence stream, i.e. "permanently seconded officer", "recall", "exchange", "special conditions", "probationer", "reversion", "reduction", "liable to serve in abroad and India", "training", "reservations", relaxation", "other concessions", "Bifurcation", "safeguards", "Military Power" and "Military Promotion" are all incidence(s) of service and can be dealt with only when an individual is 57 O.A. No. 237/2023 aggrieved of any action de hors the Rules. The permanently seconded officer under defence stream before joining with the respondents is expected to be fully aware and conscious of such situations and Rules thereto.
The NGP cannot be said to be in any manner curtailing or taking away such rights of an individual, which are meant to be dealt with in accordance with Statute /Rules governing the conditions of service of each individual, which operate it the sphere of its own. There is no deviation to the 1989 Rules by way of policy decision nor any rights have been taken away by impugned office communication dated 20.3.2023 qua 1989 Rules. The question raised is answered accordingly in favor of respondents.
8.12 In present lis, we have only examined the aspect of clause 5.2.2.7 of NGP vis a vis 1989, Rules. We make it clear and explicit that it would always be open to each individual to approach and seek remedy on facts and circumstances of each case to challenge any action de-
hors the Rules at appropriate stage, if so desired, in accordance with law.
58 O.A. No. 237/20238.13 We may also add word of caution for the respondents that any individual action in terms of the impugned office communication dated 20.03.2023 must be dealt with strictly in context of well settled ratio and reasoning in the case of Ashok Ram Parhad (supra) that ―In service jurisprudence, the service rules are liable to prevail. There can be Government resolutions being in consonance with or expounding the rules, but not in conflict with the same.‖ 8.14 With the above observations, the OA is dismissed as devoid of merit. All M.A(s) also stand disposed of accordingly.
8.15 No orders as to costs.
(Dr. Anand S Khati) (Manish Garg) Member (A) Member (J) /sm/sd/