Calcutta High Court (Appellete Side)
Colonel Purna Chandra Jena vs Union Of India & Ors on 5 April, 2017
Author: Subrata Talukdar
Bench: Subrata Talukdar
1
05/04/2017
PA
In The High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 9659(W) of 2014
+
CAN 10189 of 2016
with
WP 3855(W) of 2014
Colonel Purna Chandra Jena
Vs.
Union of India & Ors.
Mr. Sudip Dutta
Mr. Sudipto Panda
.....For the Petitioner
Mr. Ranjan Kumar Roy
Mr. Soumyabrata Ganguly
Mr. Subhrojyoti Dey
.....For the Respondents
By way of the present judgment and order this Court is called upon to only decide on the validity of the relief of appropriate order claimed by the writ petitioner through his application being CAN 10189 of 2016 (hereinafter referred to for short as the application). A connected prayer is made in the application that the main writ petitions being WP 9659(W) of 2014 along with WP 3855(W) of 2014 be decided expeditiously. Such connected prayer is made in addition to the primary prayer in the application which is to the effect that any further promotion to the rank of Brigadier and Major General and Promotions thereafter conferred on officers 2 junior to the petitioner in the Indian Army (for short only the Army) be subject to the ultimate result of the analogous writ petitions.
Before proceeding to consider the prayer in the application as above this Court is required to deal with the points raised by Mr. Ranjan Kumar Roy, Ld. Counsel for the Respondents/Army challenging the maintainability of the petitions before a Writ Court.
Relying on the judgment of the Hon'ble Apex Court reported in 2014 (7) SCC 303 In Re: Union of India & Ors. Vs. Colonel G. S. Grewal and, particularly Paragraphs 25, 26, 27 and 28 thereof, Mr. Roy argues that the jurisdictional issue connected to the writ petitions on the point whether the Ld. Armed Forces Tribunal (for short the Tribunal) shall be entitled to adjudicate or not, has been left open to be decided by the Ld. Tribunal itself. The abovenoted Paragraphs read as follows:-
"25. We would like to mention here that Gp. Capt. Karan Sing Bhati, learned counsel who appeared for the respondent, had argued at length that such an OA was maintainable and the Tribunal had the necessary jurisdiction. In support, he referred to statutory provisions, namely, Section 2 of the Act, as per which AFT Act applies to all persons subject to the Army Act, 1950 and argued that since the respondent was subject to the Army Act, AFT Act was applicable to him. He also submitted that the respondent was still subject to the Army Act insofar as matter relating to court martial, etc. were concerned. He also referred to the definition of Section 3(o), which defines 'Service Matters' and submitted that it was couched in a very wide language and would include the subject matter of the instant proceedings. He also took support from the provisions contained in Section 3(n) of the AFT Act, which defines 'Service' to mean the service within or 3 outside India and submitted that even if the respondent was Seconded to DGQA, that would not make any difference. Some provisions of the Army Act as well as certain Regulations framed under the Army Act were also relied upon. Mr. Bhati also referred to various official documents in support.
26. No doubt, it is open to Mr. Bhati to refer to the statutory provisions in the AFT Act or even the Army Act in support of his submission. But many other documents of which the learned counsel is relying upon were not part of the record before the Tribunal. Secondly, as already pointed out above, no such aspects are considered either by the Chandigarh Bench in the impugned judgment or by the Principal Bench in Major General S.B. Akali's case (supra). We may point out that merely because the respondent is subject to Army Act would not by itself be sufficient to conclude that the Tribunal has the jurisdiction to deal with any case brought before it by such a person. It would depend upon the subject matter which is brought before the Tribunal and the Tribunal is also required to determine as to whether such a subject matter falls within the definition of 'Service Matters', as contained in Section 3(o) of the AFT Act. In Major General S.B. Akali's case (supra), the Principal Bench primarily went by this consideration. The subject matter was promotion to the rank of Lieutenant General and this promotion was governed by the Rules contained in the Policy of DRDO and not under the Army Act. Therefore, in the instant case, it is required to be examined as to whether the relief claimed is entirely within the domain of DGQA or for that matter, the Ministry of Defence or it can still be treated as Service Matter under Section 3(o) of the AFT Act and two aspects are intertwined and inextricably mixed with each other. Such an exercise is to be taken on the basis of documents produced by both the sides. That has not been done. For this reason, we deem it proper to remit the case back to the Tribunal to decide the question of jurisdiction keeping in view these parameters.
27. If the Tribunal holds that it is vested with the necessary jurisdiction to entertain the OA, the Tribunal will obviously go into the merits of the case as well. For that purpose, some aspects which shall require determination also need to be spelled out, inasmuch as, in the impugned order the focus of the Tribunal was limited and the material and relevant aspects of the issue have not been gone into.
28. As pointed out above, the Tribunal has partly allowed the OA of the respondent primarily on the 4 ground that the decision contained in the Government order dated April 23, 2010 amends the promotion policy retrospectively thereby taking away the rights already accrued to the respondent in terms of the earlier policy. It is also mentioned that the revised policy fundamentally changes the applicant's prospects of promotion. What is ignored is that the promotions already granted to the respondent have not been taken away. Insofar as future chances of promotions are concerned, no vested right accrues as chance of promotion is not a condition of service. Therefore, in the first instance, the Tribunal will have to spell out as to what was the vested right which had already accrued to the respondent and that is taken away by the Policy decision dated April 23, 2010. In this process, other thing which becomes relevant is to consider that once the respondent is permanently seconded in DGQA and he is allowed to remain there, can there be a change in his service conditions vis-a-vis others who are his counterparts in DGQA, but whose permanent Secondment is not in cloud? To put it otherwise, the sole reason for issuing Government Policy dated April 23, 2010 was to take care of those cases where permanent Secondment to DGQA was wrongly given. As per the appellants, since the respondent had suffered Final Supersession, he was not entitled to be Seconded permanently to DGQA. This is disputed by the respondent. That aspect will have to be decided first. That apart, even it be so, as contended by the appellants, the appellants have not recalled the permanent Secondment order. They have allowed the respondent to stay in DGQA maintaining his promotion as Colonel as well, which was given pursuant to this Secondment. The question, in such circumstances, that would arise is whether the respondent can be treated differently even if he is allowed to remain in DGQA, viz. whether not allowing him to take further promotions, which benefit is still available to others whose permanent Secondment is not in dispute, would amount to discrimination or arbitrariness thereby offending Articles 14 and 16 of the Constitution of India. In our opinion, these, and other related issues, will have to be argued and thrashed out for coming to a proper conclusion."
Arguing for the petitioner Mr. Sudip Dutta, Ld. Counsel with Mr. Sudipto Panda, Ld. Counsel submits 5 that the facts of this case stand on a particular footing. The facts are as follows:-
After joining the Army the petitioner subsequently became a permanently seconded officer. His permanent secondment was with the office of the Director General of Quality Assurance (for short DGQA) and, such secondment commenced w.e.f. 3rd September, 2002.
In these writ petitions the petitioner complains of the deprivation of his promotion to the rank of Lieutenant Colonel at the equivalent grade in DGQA because of low assessment shown in his Annual Confidential Reports (ACRs). In view of the low ACRs the petitioner stood already superseded in the promotional grade in the years 2005 and 2006 as well as is facing the prospect of further supersession in future promotions.
Ld. Counsel for the petitioner submits that after permanent secondment, the army officers are under the jurisdictional control of the Ld. Tribunal in so far as their disciplinary proceedings and payment of salaries/benefits are concerned. However, permanently seconded officers are governed by the instructions of the Department of Personnel & Training (for short DOPT), Government of India connected to issues of seniority and promotion.
Accordingly, Ld. Counsel for the petitioner argues that the matter of jurisdiction (supra) was left at the hands of the Ld. Tribunal In Re: Union of India vs. Colonel G. S. Grewal (supra).
6
Mr. Dutta further argues that after the above noted judgment In Re: Colonel G. S. Grewal the matter was considered on the point of jurisdiction by the Principal Bench of the Ld. Tribunal at New Delhi in OA Nos. 483 of 2013, 40 of 2015 to 44 of 2015. The Principal Bench, by its final order dated 24th of July, 2015, framed and decided the following issues:-
"1. Whether Army Personnel who have been permanently seconded to Defence Research & Development Organization (hereinafter referred to as "DRDO") or to the Director General Quality Assurance (DGQA) continued to be subject to Army Act, 1950 even after their permanent secondement?
2. Whether the subject matter in the OAs filed by the petitioners are the service matters as defined in Section 3(O) OF THE Armed Forces Tribunal Act, 2007?"
After an elaborate discussion the Ld. Principal Bench arrived at the following conclusion:-
"38. After our thoughtful consideration, we are of the view that Pay & allowances to permanently seconded DRDO personnel have been made at par with officers of their respective rank in the Army by virtue of adoption of the pay & allowances under the petitioner's service conditions under Office Memorandum dated 23.11.1989. As per Para 12 of the office Memorandum dated 23.11.1979 the Pay & Allowances may also be different. But incidentally no different Pay & Allowances have been specified for the Officers of the DRDO till petitioner's retirement or may be even thereafter. Relevant is clear from Para 12 of the Office Memorandum dated 23.11.1979, which is as under:-
"Unless, otherwise, specified the officers get allowances and other benefits of their respective service"
Therefore, the petitioner is not getting the Pay & Allowances because he is entitled to Pay & Allowances 7 under the Army Act, or Rules framed there under or in view of the DSR or any order passed for Regular Service Officers. Because of the application of dual service conditions a number of benefits under the Army Act or liability may continue to apply upon the permanently seconded officers. The pay and allowances may be exactly same as of regular Army Officer but that is by virtue of provision made in DRDO service conditions specifically it is due to para 12 (supra). Therefore, the retiral benefits including the disability pension etc., if they are allowed at par or even under the Army Act, but they are given to the permanently seconded officer of DRDO because of the adoption of the above rules by the DRDO. Here, the Pay & Allowances have been adopted by the Office Memorandum prescribing the service conditions of the permanently seconded DRDO Officers and, therefore, for this benefit the decision can be taken administratively through the Director General Research & Development (DGR&D) in view of the Para 12 of the Office Memorandum dated 23.11.1979. therefore, such issue is arising under the DRDO service condition Memorandum issued by the order of the Government and not applicable to Army personnel in regular Army. Hence, the subject matter in OA 483 of 2013 are not the "service matter" as defined in Sec. 3(o) of the AFT Act, 2007.
39. We do not find any force in the submission of learned counsel for the petitioner of OA 483/2013 that since the controlling Ministry for DRDO and the Army is the Ministry of Defence and every file ultimately moves to the Ministry of Defence and said Ministry alone can take decision even with respect to the benefits arising out of the service conditions of the DRDO, therefore, the petitioner's dispute can be decided by the Armed Forces Tribunal. Our above view is for the simple reason that in one Ministry, as we have noticed, there are different independent Secretaries and even when there may not be different Secretaries and there may be one Secretary in the Ministry through whom different organization's files are processed and cleared and decisions are taken. In both the situation the organization under which one is serving, his controlling authority is the proper channel through which the matters can be processed and decided. In the DRDO or in the DGQA as the case may be has no jurisdiction 8 over the Army personnel in the Regular Army nor is the Chief of Army Staff the controlling authority for the permanently seconded officers. Therefore, the petitioner may, even if he has grievances pertaining to his Pay and Allowances, it is to be dealt with only under his own service condition and also through his own organization, the DRDO or the DGQA and, therefore, this subject matter as raised by the petitioner in OA 483/2013, and OAs 40-44 of 2015, the AFT has no jurisdiction. The petitioners in OA 40- 44 of 2015 also have grievance for non-application of the policy dated 16.11.2007, for grant of promotion to the petitioners to the rank of Col Selection Grade, which is definitely a service matter arising out of the service conditions for the DGQA prescribed separately by separate Memorandum. Therefore, the disputes raised in the OA 40-44 of 2015 gives rise to subject matter outside the Tribunal's jurisdiction.
40. In view of the above discussions, it is held that the subject matter of the OA 483 of 2013 and OA 40-44 of 2015 are not falling within the definition of the service matters as defined in Section 3(o) of the AFT Act, 2007 and the Question No.2 is answered accordingly.
41. Since Tribunal has no jurisdiction to entertain these OAs, therefore, these OAs are dismissed for want of jurisdiction. At the cost of the petitioner, we are making it clear that none of the observations be taken as decision or observation against the petitioners on merit of their cases."
Therefore, Mr. Dutta points out and, in the opinion of this Court not without merit, that after the reference to the Ld. Tribunal by the pronouncement In Re: Colonel G. S. Grewal (supra), the final order of the Ld. Principal Bench dated 24th July, 2015 has attained finality. In terms of the order of Ld. Principal Bench the subject matter of the OAs 483 of 2013 and 40 to 44 of 2015 relating to permanently seconded army officers to the Defence Research and Development Organisation (for 9 short DRDO) or, to the DGQA, do not fall within the definition of service matters under Section 3(o) of the Armed Forces Tribunal Act, 2007 (for short, the 2007 Act) amenable to the jurisdiction of the Ld. Tribunal.
Arguing further, Mr. Dutta points out that in cases where the service conditions of permanently seconded officers are governed not under the Army Act but, under DOPT regulations, such cases shall not be treated to be "service matters" under Section 3(o) of the 2007 Act. The position of law laid down by the Ld. Tribunal is clear that the permanently seconded officers to DRDO or DGQA shall not be subject to the Army Act, 1950 and the Army Rules, 1954 qua their service conditions relating to seniority or, promotions which shall be guided by the DOPT. The pronouncement of the Ld. Principal Bench (supra) has attained finality following the reference In Re: Colonel G. S. Grewal (supra).
After hearing the parties and considering the materials placed, this Court notices that the prayers in the writ petitions relate to the low bench marks granted to the petitioner in his ACRs during his permanent secondment with the DGQA. Therefore, following the DOPT instructions, the petitioner was not granted promotions at par with his colleagues thereby leading to his supersession.
Following the law laid down by the Ld. Principal Bench flowing from In Re: Colonel G. S. Grewal (supra) 10 the issue of maintainability of these writ petitions stand answered in favour of the petitioner. Accordingly, let the writ petitions be placed in the Hearing category (up to 2014) in the Monthly Combined List of May, 2017.
CAN 10189 of 2016 stands accordingly disposed of.
Urgent Xerox certified copy, if applied for to be handed over to the parties at their own costs.
(Subrata Talukdar, J.)