Supreme Court - Daily Orders
Union Of India vs Vk Singh on 4 January, 2019
Bench: A.K. Sikri, S. Abdul Nazeer
1
ITEM NO.26 COURT NO.2 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL Diary No(s). 44838/2018
(Arising out of impugned final judgment and order dated 05-10-2018
in OA No. 1023/2018 passed by the Armed Forces Tribunal)
UNION OF INDIA & ORS. Petitioner(s)
VERSUS
VK SINGH Respondent(s)
(FOR ADMISSION and IA No.173714/2018-EX-PARTE STAY and IA
No.173713/2018-LEAVE TO APPEAL U/S 31(1) OF THE ARMED FORCES
TRIBUNAL ACT, 2007)
Date : 04-01-2019 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE S. ABDUL NAZEER
For Petitioner(s) Mr. Tushar Mehta, SG
Mr. Aman Lekhi, ASG
Mr. R. Balasubharmanium, Adv.
Mr. Sachin Sharma, Adv.
Mr. Arvind Kumar Sharma, AOR
For Respondent(s) Dr. Abhishek Manu Singhvi, Sr. Adv.
Mr. Giriraj Subramanium, Adv.
Mr. Sidhant Krishan Singh, Adv.
Mr. Prateek K Chadha, AOR
Mr. Kartikeya Singh, Adv.
UPON hearing the counsel the Court made the following
O R D E R
We have heard Mr. Aman Lekhi, learned ASG appearing on behalf of the appellants and Dr. Abhishek Manu Singhvi, learned senior Signature Not Verified counsel appearing on behalf of the respondent for quite some time. Digitally signed by ASHWANI KUMAR Date: 2019.01.07 16:14:49 IST Reason:
We may note that Mr. Aman Lekhi, learned ASG has inter alia submitted that the Armed Forces Tribunal (AFT) has allowed the 2 respondent to continue in service even when he has attained the age of superannuation as Major General on 30.11.2018, till his case for promotion to the post of Lt. General is to be decided by the Review Promotion Board. His submission is that the respondent has no right to continue in service after the age of superannuation. His further submission relates to the jurisdiction of the AFT to decide the policy issues. He submits that AFT has referred to the Constitution Bench Judgment of this Court in “L. Chandra Kumar vs Union Of India and Others” (1997) 3 SCC 261 which is not applicable in the case of AFT.
The admitted facts are that the respondent was considered for the post of Lt. General in October, 2017 but was not recommended for promotion because of certain technically invalid remarks. The Officer who had made such remarks had retired already. The grievance of the respondent was that a retired officer could not have made such remarks in his annual confidential report. For this reason the respondent submitted a non-statutory representation before the competent authority in January, 2018. He got redressal therein inasmuch as the competent authority struck down the said remarks on 16.04.2018. With this, certainly, the respondent became entitled to be considered for promotion to the post of Lt. General by the Review Promotion Board. However, in the meantime, i.e. 23.12.2017 new Promotion Policy came into force. The respondent was considered but the result was never finalised. The case of the respondent is that once there is a review SPB it had to be as on October, 2017 when he was considered originally and the said consideration could be vitiated as the adverse remarks appearing 3 against the respondent as on that date have been expunged by the competent authority. For this purpose Dr. Singhvi has referred the judgment of this Court passed in “Union of India & Ors. Versus Major General Manomoy Ganguly, VSM” (2018) 1 SCC 552.
Having regard to the totality of the circumstances, we are of the opinion that the respondent should be considered for the post of Lt. General by the Review Promotion Board on the basis of promotion policy that was in existence in October, 2017. We would expect the Promotion Board to hold a sitting and undertake the aforesaid process as soon as possible, preferably within three weeks from today.
In the meantime, the respondent shall not perform the duties of Major General. However, how the intervening period is to be treated, shall be decided on the next date of hearing. We have made these remarks keeping in mind that in case the respondent gets promoted to the post of Lt. General he shall get extension of two years and his age of superannuation shall stand deferred to 30.11.2020.
List the matter on 25.01.2019.
(ASHWANI THAKUR) (RAJINDER KAUR) COURT MASTER (SH) BRANCH OFFICER