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NON–REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3879 OF 2013

UNION OF INDIA & ORS. .....APPELLANT(S)

VERSUS

COL. GS GREWAL .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

This is a statutory appeal, preferred by Union of India, as  

provided under Section 31 of the Armed Forces Tribunal Act, 2007  

(hereinafter  referred  to  as  the  'AFT Act').   The  appeal  is  filed  

against the judgment and order dated April 15, 2011 passed by  

the  Armed  Forces  Tribunal  (hereinafter  referred  to  as  the  

'Tribunal), Regional Bench Chandigarh, whereby the Tribunal has  

partly allowed the Original Application (OA) which was preferred  

by  the  respondent  herein.   The  appellants  have  not  only  

challenged the order  on merits,  but  have even questioned the  

jurisdiction of the Tribunal to deal with the subject matter which  

was brought before it by the respondent in the said OA.

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2)In order to understand the nature of challenge laid to the jurisdiction  

of the Tribunal and the direction given while partly allowing the OA of  

the respondent, it would be necessary to understand the nature of relief  

which was sought  by the respondent in  the said OA as well  as the  

background facts in which the OA seeking such a relief was filed.

3)The respondent joined the Indian Army as a Major.  Indubitably, in  

that capacity he was subject to the discipline of the Army Act, 1950.  It  

is a normal practice that the personnel belonging to the Armed Forces,  

namely,  Army,  Air  Force or Naval  Force,  are Seconded to the other  

offices  under  the  Ministry  of  Defence,  which  include  Department  of  

Defence  Production,  Department  of  Defence  Research  and  

Development  and  Department  of  Ex-Servicemen  Welfare.   We  are  

concerned here  with  Department  of  Defence  Production,  which  has  

Director  General  of Quality Assurances (DGQA for  short)  as well  as  

Defence  Public  Sector  Undertaking  (DPSU).   The  respondent  was  

Seconded to DGQA on November 06, 2004 in the rank of Major.  At that  

time, it was temporary Secondment.   

It is also relevant to mention here that while the respondent  

was  in  the  rank  of  Major  in  the  Army,  he  was  considered  for  

promotion to the next higher grade, namely, Lieutenant Colonel.  

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However, he could not be promoted because of certain reasons.  

There  is  a  provision  that  if  an  officer  is  not  able  to  secure  

promotion to the higher rank after particular number of specified  

attempts, it  is termed as Final Supersession, which means that  

the  said  officer  would  not  be  considered  for  promotion  to  the  

higher status thereafter.  Insofar as promotion from the rank of  

Major to Lieutenant Colonel is concerned, three chances can be  

availed by the officer.  The respondent was finally superseded in  

the  Army,  in  the  rank  of  Major  in  December  2003.   It  is  also  

pertinent to point out at this stage that when the respondent was  

Seconded to DGQA organisation, there was a provision in DGQA,  

in  the form of  OM dated May 04, 1993, that  an officer  who is  

finally superseded in the Army will not be entitled to permanent  

Secondment  and  can  stay  at  DGQA temporarily  only,  which  

means, after some time, he would have to go back to the Army.

4)As  pointed  out  above,  the  respondent  had  already  been  finally  

superseded in December 2003 in the rank of Major when he had joined  

DGQA on November 06, 2004.

5)After considering the case of an Army personnel for promotion to the  

higher  rank,  there can be supersession on merits.   However,  some  

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times even if the officer is found to be meritorious and fit for promotion,  

he would still be not able to get the promotion only because he is lower  

in the seniority and the number of posts available in the higher position  

are less, which would be filled/occupied by the persons above him in  

the  seniority.   Non-promotion  for  this  reason  is  also  counted  as  

'Supersession'.  Therefore, after availing three chances in the rank of  

Major for promotion to the rank of Lieutenant Colonel, if an officer is  

superseded  even  for  want  of  sufficient  number  of  vacancies  in  the  

higher rank, such an officer would still be labelled, what is termed as,  

'Finally Superseded'. According to the respondent, the reason for which  

he was superseded in the Army was the aforesaid one and not that he  

lacked merit.

6)Since many officers were not getting promotions to the higher rank  

after they were finally superseded for no fault of theirs and with intent to  

make the Army profile younger, A.V. Singh Committee was constituted,  

which submitted its report  known as 'A.V.  Singh Committee Report'.  

This  Report  recommended,  which  recommendation  was  even  

accepted, that all officers in the Army holding the rank of Major, who  

had completed 13 years of service, were to be promoted to the rank of  

Lieutenant Colonel, irrespective of whether such personnel were finally  

superseded or not.  Acting on the recommendation of this Report, the  

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respondent,  along  with  many  others,  was  promoted  as  Lieutenant  

Colonel on December 16, 2004, when he was in DGQA organisation,  

which he had joined barely a month ago, i.e. on November 06, 2004.

7)Policy  letter  dated  January  16,  2005 was issued by  M.S.  Branch  

whereby Special Merit Board (SMB) was introduced to give effect to the  

A.V. Singh Committee Report's recommendation.  However, within two  

and a half years, i.e. on July 18, 2007, M.S. Branch intimated stoppage  

of SMB Policy with immediate effect.  Letter to this effect was issued by  

the M.S. Branch discontinuing SMB on the orders of the Government  

on October 12, 2007.

8)A new Permanent  Secondment  and  Promotion  Policy,  which  was  

issued by the DGQA on November 16, 2007. Highlights of this Policy  

are as follows:

(a) Permanent  Secondment  will  be  restricted  to  the  rank  of  

Lieutenant Colonel.

(b) Upper  cut  off  age  for  consideration  for  permanent  

Secondment  will  be 44 years,  on 1st  April  of  the year  in  

which the officer  is  being considered,  after  completion of  

two years of tenure.

(c) Officers  once  permanently  Seconded  will  continue  in  the  

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organisation  till  they  retire  and  will  be  considered  for  

promotion to higher grades against their vacancies.

9)The effect of the aforesaid Policy was that officers once permanently  

Seconded to DGQA had right to continue in the said organisation till  

their retirement.  They were also made eligible for promotion to higher  

grades against their vacancies.  These promotions, they were to earn in  

DGQA as  per  the  aforesaid  Promotion  Policy  dated  November  16,  

2007.  Since supersession clause contained in the earlier Policy dated  

December 22, 1993 was also removed in this Policy, the effect there of  

was that there was no bar for  permanent Secondment in respect of  

those  officers  who  had  earlier  incurred  the  disqualification  for  such  

permanent  Secondment  by  virtue  of  their  being  finally  superseded.  

Benefit  thereof  was  given  to  the  respondent  as  well.  He  was  

permanently Seconded to DGQA in the rank of Lieutenant Colonel on  

April 10, 2008.  Not only this, in terms of Permanent Secondment and  

Promotion Policy dated November 16,  2007,  the respondent  earned  

next promotion, i.e. to the rank of Colonel on October 22, 2008.

10)While things stood thus and the respondent had been working in the  

capacity of Colonel on permanent Secondment to DGQA, Ministry of  

Defence, Department  of  Department  Production,  issued Order dated  

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April 23, 2010.  It is this Order which is the bone of contention and was  

the subject matter of challenge before the Tribunal.  In this Order, it was  

stated that since SMB had been discontinued by the Army since 2006,  

the effect thereof was the restoration of earlier Policy of 1993 which  

contained bar for permanent Secondment in respect of those officers  

who had incurred disqualification because of their final supersession.  

In  essence,  it  was  conveyed  that  those  who  were  permanently  

seconded even after discontinuation of SMB in the year 2006 in DGQA,  

it was a wrong move.  However, at the same time, in respect of those  

officers where it had already been done, it was decided that the same  

will not be withdrawn.  Likewise, further promotions which were given  

were also not required to be withdrawn.  However, it was decided that  

no further promotions would be given to such officers.  This was so  

stated in the Order dated April 23, 2010 in the following terms:

“(a)   On  the  orders  of  Central  Govt,  Special  Merit  Board has been discontinued by the Army since 2006.  Consequently, tenure Officers finally non-empanelled  (superseded)  will  not  be  considered  for  grant  of  permanent secondment in DGQA.

(b)   Non-empanelled  Officers  (Lt  Cols),  who  have  been granted permanent secondment in the DGQA in  the  past  will  be  granted  only  one promotion  to  the  next  higher  rank  of  Col  (TS)  on  completion  of  26  years of service.  However, such officers in DGQA can  retire  as  per  norms  applicable  to  Permanent  Secondment Service Officers in DGQA.  An option will  be given to such officers, if so desirous, for reversion  to the Army for their further management.  This clause  shall  also  be  applicable  to  those  non-empanelled  officers who have been granted the rank of Colonel in  

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DGQA.

(c)  OM No. F6(1)/2007/D(QA) dated 16 Nov 2007,  will  be  made  applicable  prospectively  for  officers  inducted on tenure after 16 Nov 07.

(d)  QASB for permanent secondment hereafter (with  effect from 2011) will be held taking 01st Oct of the  year as the cut off date.”

11)The respondent, naturally, felt aggrieved by this Order, which meant  

that he would not earn any further promotion in DGQA even when the  

appellants did not disturb his permanent Secondment in DGQA.  The  

respondent, accordingly, approached the Tribunal by filing an OA.

12)Contention of the respondent was that the above Policy dated April  

23,  2010,  though  looked  innocuous,  was  conceptually  flawed  and  

downright  illegal  because  of  the  reason  that  persons  like  the  

respondent  and  other  similarly  situated,  who  had  been  granted  

permanent secondment under the Policy dated November 16,  2007,  

were  affected  thereby.   Further,  the  effect  thereof  was  to  operate  

retrospectively  by  snatching  the  rights  accrued  to  them,  which  

amounted to violation of Article 14 of the Constitution of India.  It was  

argued that as per the settled law the said Policy dated April 23, 2010  

could  not  be  applied  retrospectively  in  respect  of  those  who  had  

already been permanently Seconded under the Policy dated November  

16, 2007, which alone determined their conditions of service, including  

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further promotions.

13)The appellants'  refutation to the aforesaid plea of the respondent  

was not only on merits but contest was also laid to the jurisdiction of the  

Tribunal to entertain the OA with such a relief.  It was argued that the  

Tribunal had no jurisdiction to entertain the said OA as the impugned  

order dated April 23, 2010 was passed by the Department of Defence  

Production, Ministry of Defence and the Tribunal could not deal with the  

validity of such orders, which was outside its scope.  The appellants  

had also referred to the judgment passed by the Principal Bench of the  

Tribunal in  Major General S.B. Akali etc. etc.  v.  Union of India &  

Ors. (TA Nos. 125 and 221 of 2010, decided on April 09, 2010), where  

similar OA, albeit by an officer who was Seconded to DRDO, had been  

dismissed for want of jurisdiction.

14)The  Tribunal,  after  hearing  the  parties,  rendered  the  impugned  

judgment dated April 15, 2011.  It brushed aside the objection of the  

appellants to the maintainability of the OA.  While doing so, the Tribunal  

differed with the view expressed by the Principal Bench in the case of  

Major  General  S.B.  Akali  (supra)  in  somewhat  curious manner,  as  

would be noted later.

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15)On merits, it accepted the contention of the respondent herein that  

revised Government Policy dated April 23, 2010, which fundamentally  

changes  the  prospects  of  promotion  of  the  respondent,  was  

discriminatory.   It  also amounted to retrospective amendment  to  the  

promotion policy, which could not be to the detriment of an employee  

thereby  taking  the  rights  accrued  to  him  by  virtue  of  the  Policy  

governing his terms and conditions of service as earlier applicable to  

him.   Thus,  allowing  the  OA partially,  the  Tribunal  has  directed  the  

appellant  authorities  that  the  respondent  shall  be  governed  by  the  

provisions  of  DGQA  Policy  dated  November  16,  2007  without  

incorporating  the  provisions  of  the  impugned  Policy  dated  April  23,  

2010 and he would be considered for further promotions in terms of  

earlier Policy dated November 16, 2007.

16)The appellants filed appeal against this judgment under Section 31  

of the AFT Act.  However, the said appeal was dismissed on April 16,  

2012 on the ground that no civil appeal would be maintainable unless  

leave to appeal was obtained under Section 31 of the AFT Act.  The  

appellants, accordingly, filed applications for leave to appeal before the  

Tribunal.  Leave was granted by the Tribunal vide orders dated August  

24, 2012.  Armed with the said leave, present appeal has been filed by  

the appellants questioning the validity of the impugned judgment, both  

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on jurisdiction as well as on merits.

17)First  and  foremost  submission  of  Mr.  K.  Radhakrishnan,  learned  

senior  counsel appearing for  the appellants,  was that  in view of  the  

judgment of the Principal Bench in Major General S.B. Akali (supra), it  

was not open to the Tribunal to have taken a different view, ignoring the  

said  judgment  and  proceeding to  consider  the case  on merits.   He  

argued that even if the concerned Bench was of the opinion that the  

view taken by the Principal Bench in Major General S.B. Akali (supra)  

was not correct, a coordinate Bench could, at the most, refer the matter  

to the larger Bench.  Even otherwise, argued Mr. Radhakrishnan, the  

view  taken  by  the  Tribunal  was  totally  perfunctory  and  without  any  

cogent reasons.  Further, reasons which were given by the Principal  

Bench in the case of Major General S.B. Akali (supra) were not even  

dealt with by the Tribunal in the impugned judgment.

18)Mr. Radhakrishnan is perfectly justified in his argument that the only  

course open to the Chandigarh Bench, which passed the impugned  

order, was to refer the matter to the larger Bench when it wanted to  

charter a different course than the one adopted by the Principal Bench  

in  Major  General  S.B.  Akali's  case  (supra).   In  Sub-Inspector  

Rooplal & Anr.  v.  Lt. Governor through Chief Secretary,  (2000) 1  

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SCC 644, this Court had settled this very issue in the following manner:

“12. At  the  outset,  we  must  express  our  serious  dissatisfaction  in  regard  to  the  manner  in  which  a  Coordinate Bench of the Tribunal has overruled, in effect,  an  earlier  judgment  of  another  Coordinate  Bench  of  the  same Tribunal. This is opposed to all principles of judicial  discipline.  If  at  all,  the subsequent Bench of  the Tribunal  was  of  the  opinion  that  the  earlier  view  taken  by  the  Coordinate  Bench of  the  same Tribunal  was  incorrect,  it  ought to have referred the matter to a larger Bench so that  the  difference  of  opinion  between  the  two  Coordinate  Benches on the same point could have been avoided. It is  not as if the latter Bench was unaware of the judgment of  the earlier Bench but  knowingly it  proceeded to disagree  with  the  said  judgment  against  all  known  rules  of  precedents. Precedents which enunciate rules of law form  the foundation of administration of justice under our system.  This is a fundamental principle which every presiding officer  of  a  judicial  forum  ought  to  know,  for  consistency  in  interpretation of law alone can lead to public confidence in  our  judicial  system.  This  Court  has  laid  down  time  and  again that precedent law must be followed by all concerned;  deviation from the same should  be only  on a procedure  known  to  law.  A  subordinate  court  is  bound  by  the  enunciation  of  law  made  by  the  superior  courts.  A  Coordinate Bench of a Court cannot pronounce judgment  contrary to declaration of  law made by another Bench. It  can only refer it to a larger Bench if it disagrees with the  earlier  pronouncement.  This  Court  in  the  case  of  Tribhovandas  Purshottamdas  Thakkar v.  Ratilal  Motilal   Patel, AIR 1968 SC 372, while dealing with a case in which  a Judge of the High Court had failed to follow the earlier  judgment  of  a larger Bench of  the same Court  observed  thus:

“The judgment  of  the Full  Bench of  the Gujarat  High  Court  was binding upon Raju,  J. If  the learned Judge  was  of  the  view  that  the  decision  of  Bhagwati,  J.,  in  Pinjare Karimbhai  case,  (1962)  3  Guj  LR 529  and of  Macleod, C.J., in  Haridas  case, AIR 1922 Bom 149(2)  did not lay down the correct law or rule of practice, it  was open to him to recommend to the Chief Justice that  the question be considered by a larger Bench. Judicial  decorum,  propriety  and  discipline  required  that  he  should  not  ignore  it.  Our  system of  administration  of  justice  aims  at  certainty  in  the  law  and  that  can  be  

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achieved  only  if  Judges  do  not  ignore  decisions  by  courts  of  coordinate  authority  or  of  superior  authority.  Gajendragadkar,  C.J.,  observed  in  Bhagwan v.  Ram  Chand, AIR 1965 SC 1767:

‘It  is  hardly  necessary  to  emphasise  that  considerations  of  judicial  propriety  and  decorum  require  that  if  a  learned  Single  Judge  hearing  a  matter  is  inclined  to  take  the  view that  the  earlier  decisions of  the High Court,  whether  of  a  Division  Bench or of a Single Judge, need to be reconsidered,  he should not embark upon that inquiry sitting as a  Single  Judge,  but  should  refer  the  matter  to  a  Division  Bench,  or,  in  a  proper  case,  place  the  relevant  papers  before the Chief  Justice to  enable  him  to  constitute  a  larger  Bench  to  examine  the  question.  That  is  the proper and traditional  way to  deal with such matters and it is founded on healthy  principles of judicial decorum and propriety.’ ”

13. We  are  indeed  sorry  to  note  the  attitude  of  the  Tribunal  in  this  case  which,  after  noticing  the  earlier  judgment  of  a  Coordinate  Bench  and  after  noticing  the  judgment of this Court, has still thought it fit to proceed to  take a view totally contrary to the view taken in the earlier  judgment thereby creating a judicial uncertainty in regard  to the declaration of law involved in this case. Because of  this  approach of  the latter  Bench of  the Tribunal  in  this  case, a lot of valuable time of the Court is wasted and the  parties  to  this  case  have  been  put  to  considerable  hardship.”

19)We are conscious of  the fact that in  Rooplal's  case (supra), the  

Court  itself  chose  to  decide  the  controversy  therein,  because  there  

were weighty reasons to do so, as mentioned in para 14 of the said  

judgment.  However, after hearing the parties at length, we prefer to  

refer the matter back to the Tribunal to decide this issue by constituting  

a  larger  Bench.   Reason  is  that  the  parties  intend  to  rely  upon  

documents which were not placed before the Tribunal.  Even matter  

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has not been thrashed out in a proper perspective.  Therefore, some  

discussion is needed on this aspect, which is detailed hereinafter.  

20)We note from the judgment of the Principal Bench in the case of  

Major General S.B. Akali (supra) that the main reason for holding that  

the Tribunal did not have jurisdiction to deal with the matter was that  

the  petitioner  in  that  case,  after  he  was  Seconded  to  DRDO,  was  

governed by the service conditions regulated by the provisions of Office  

Memorandum dated November 23, 1979 of the Government of India,  

Ministry of Defence and the controlling authority was the DRDO.  That  

was a case where the petitioner, who was Seconded to DRDO in the  

rank of  Major  on February  21,  1981 and rose to  the rank of  Major  

General  with  effect  from  March  06,  2002,  was  not  given  further  

promotion to the post of Lieutenant General.  It is, thus, non-promotion  

in DRDO which was the subject matter of challenge.  Though he had  

filed  the  writ  petition  in  the  Delhi  High  Court  challenging  his  non-

selection  and  promotion,  after  the  constitution  of  Armed  Forces  

Tribunal, the matter was transferred to the Tribunal.  The Tribunal noted  

that since the petitioner was permanently seconded to DRDO and he  

was claiming promotion to the post of Lieutenant General  in DRDO,  

which was governed by the Office Memorandum dated November 23,  

1979 containing the provisions relating to promotions in DRDO and it  

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had nothing to do with the Army Act, the Tribunal lacked the jurisdiction  

to entertain the matter.  Relevant portion of the order passed by the  

Tribunal reads as under:

“12.  We have bestowed our best of consideration and  we are of the opinion that as per Section 2 read with  Section 3(o) of the Armed Forces Tribunal Act, 2007,  this Tribunal has limited jurisdiction to deal  with the  service conditions of the Army Act and Rules, but, the  present  case,  which  relates  to  non-selection  of  the  petitioner by the DRDO for the rank of Lt. General and  it is not supersession under the Army Act or Rules, it  is under the DRDO Rules of the Office Memorandum  dated 23rd November, 1989.  As such, this Tribunal  cannot sit over the selection by DRDO to decide the  issue  whether  petitioner  has  been  correctly  superseded or not, since the service conditions of the  seconded officers  under  the  DRDO is  regulated  by  Office Memorandum dated 23rd November, 1979 and  it is not under the Army Act and Rules.  Therefore, this  Tribunal will have no jurisdiction to decide this case of  supersession of petitioner for promotion to the rank of  Lt. General.

13.   In  this  view  of  the  matter,  we  uphold  the  preliminary  objection  of  the  learned counsel  for  the  respondent and direct the Principal Registrar to remit  this case back to Hon'ble Delhi High Court to decide  the matter in accordance with law.

14.   On  the  same  lines  is  the  case  of  Brig  PJS  Rangar & Brig Anand Solanki (TA No. 221 of 2010).  In  this  case  the  incumbents  were  permanently  seconded to Director General of Quality Assurance.  It  is also governed by OM dated 28th October, 1978, as  amended  from time  to  time.   In  this  case  also  the  petitioners  prayer  is  to  quash  the  OM  dated  18th  February,  2008,  letter  dated  15th  May,  2008  and  empanelment order dated 16th June, 2008 and direct  the  respondents  to  give  effect  to  the  empanelment  order dated 31st January 2008 and promote them to  the  rank  of  Major  General  in  accordance with  their  seniority in the panel.

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15.  The service conditions are governed by the OM  dated 28th October, 1978 and the non-selection of the  petitioners are by Director General Quality Assurance  of  Ministry  of  Defence.   There is  no breach of  any  service conditions under the Army Act and Rules.  The  non-selection  of  the  petitioner  is  on  account  of  the  service  conditions  as  mentioned  in  OM dated  28th  October,  1978,  as  amended  from  time  to  time.  Therefore, the objection raised by the learned counsel  for  the respondent,  in  this  case is  also upheld and  consequently  it  is  held  that  this  Tribunal  has  no  jurisdiction  to  interfere  in  this  matter  and direct  the  Principal Registrar to remit this case back to Hon'ble  Delhi High Court to decide the matter in accordance  with law.”

21)When  we  traverse  through  the  impugned  order  passed  by  the  

Tribunal  in  the  instant  case,  we find  that  the  aforesaid  judgment  in  

Major General S.B. Akali (supra) has been specifically taken note of.  

However, the Tribunal felt it appropriate not to rely upon on the said  

judgment,  which  it  could  not  do  so,  having  regard  to  the  ratio  in  

Rooplal's case (supra).  What is intriguing is the reasons for coming to  

a different conclusion.  It is stated:

“We have perused the evidence on record and heard  the learned counsels of both sides.   At the very outset  we  proceed  to  resolve  the  matter  with  regard  to  jurisdiction over the case.   Notwithstanding the fact  that terms and conditions of service of DGQA officers  are inherently  different  from those of  the officers  in  their parent service, the subject matter in the instant  case bears an intricate connection between the two.  In  fact,  the  policy  changes  brought  about  vide  Government  letter  dated  23-04-2010  are  virtually  a  mirror  image  of  the  changes  brought  about  in  the  Army sequel to the system of Selection Merit Board  being revoked by the Government.  This policy also  gives option to the officers to revert back to the Army  in  the  event  of  the  changes  not  being  found  

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acceptable  by  them.   Further,  Regulations  for  the  Army, 1987 (Revised Edition) lay down at Pars 67 and  76 certain aspects of terms and conditions of service  with  regard  to  permanently  seconded  officers  in  Inspection  Organisations,  the  former  designation  of  DGQA, suggesting a degree of duality of jurisdiction  on certain matters.  As such, with due deference to  the cited judgment of the Hon'ble Principal Bench and  without  setting  any  precedence,  we  are  inclined  to  admit this case for adjudication by this Tribunal.”

22)The aforesaid approach cannot be countenanced.  First of all, the  

reasons given by the Principal Bench in the case of  Major General   

S.B. Akali (supra) are not dealt with at all.  It is strange on the part of  

the Tribunal to proceed with the matter on merits by observing that it   

was  so  done  'without  setting  any  precedence'.   If  a  Tribunal  lacks  

jurisdiction then there is no question of proceeding with the matter in a  

given case taking umbrage under  the facade of  not  treating it  as a  

precedence.  In a matter of jurisdiction, there are only two alternatives.  

Either the Tribunal has the jurisdiction or it has no jurisdiction.  There is  

no third alternative to proceed with the matter with the statement that it  

will not be treated as precedent.

23)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,  

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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 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.

24)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  

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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.   

25)If the Tribunal holds that it is vested with the necessary jurisdiction  

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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.

26)As pointed out above, the Tribunal has partly allowed the OA of the  

respondent primarily on the 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  

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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 reccalled 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.

27)As a result, this appeal is allowed.  The impugned order passed by  

the Tribunal is set  aside.   The matter  is remitted to the Tribunal for  

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deciding the OA by a larger  Bench by having proper  perspective in  

mind, as discussed in this judgment.   Both the sides shall have right to  

file further documents they want to rely upon.

There shall, however, be no order as to costs.

.............................................J. (DR. B.S. CHAUHAN)

.............................................J. (A.K. SIKRI)

New Delhi; May 28, 2014.

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