Lt. Col. Vijaynath Jha vs Union Of India And Others

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2020 OF 2013

LT. COL. VIJAYNATH JHA … APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. … RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

We have heard the appellant appearing in-person

and Shri Sandeep Sethi, learned Additional Solicitor

General for India.

2. This appeal has been filed by the appellant

questioning the judgment and order dated 23.08.2012

passed by the Armed Forces Tribunal, Regional Bench, Signature Not Verified Digitally signed by SUSHIL KUMAR RAKHEJA Date: 2018.05.18 17:05:50 IST

Lucknow by which O.A.No.104 of 2011 filed by the Reason:

appellant has been rejected as not maintainable and 2

returned to the appellant with liberty to file the

same before the concerned authority.

3. Brief facts of the case necessary to be noted for

deciding the issues raised in the appeal are:

The appellant was commissioned in the Indian Army

on 11.03.1989 in the Engineering Discipline. The

appellant was subsequently selected and inducted in

the Directorate General of Quality Assurance (DGQA)

from 31.05.2004. On completion of two years the

appellant was transferred to the Directorate of

Indigenization under DGEME. Quality Assurance

Selection Board (QASB) was held at DGQA organisation

for selection of the officers of the rank of Lt. Col.

and Major for permanent secondment. The appellant was

not found fit for permanent secondment by the QASB.

The appellant filed a statutory complaint seeking

permanent secondment in the DGQA. The complaint was

submitted at the time when the appellant was working

in the Army. The complaint was forwarded to the

Ministry of Defence. Since, the complaint pertained

to DGQA organisation, the Government of India, 3

Ministry of Defence, Department of Defence Production

by order dated 17.12.2007 rejected the statutory

complaint of the appellant. O.A. No.104 of 2011 was

filed by the appellant before the Armed Forces

Tribunal, Regional Bench, Lucknow praying for

quashing the order dated 17.12.2007 and issuing a

direction to the respondent to grant permanent

secondment to the DGQA organisation with all

consequential benefits retrospectively.

4. A counter-affidavit was filed in O.A. by the

respondent. When the O.A. was taken for hearing by

the Armed Forces Tribunal on 23.08.2012 a preliminary

objection was raised by the respondent that the

relief claimed by the applicant in the O.A. is not

maintainable in the Armed Forces Tribunal. The Armed

Forces Tribunal heard the parties on the above

preliminary objection and vide order dated 23.08.2012

held that O.A. is not maintainable. It is useful to

extract paragraph 16 of the judgment which is to the

following effect:

"16.The applicant's main grievance is 4

that he was not considered for permanent seconded, DGQA organisation and we find no breach in the Army Act and the Army Rules and it is a separate organisation with the guideline for induction, appointment and promotion and Service HQ has no role in grant of second tenure of (sic) permanent secondment of any officer under the Army Act. The terms and condition of the service officers in DGQA is not creation of the Army Act or the Army Rules and the Armed Forces Tribunal is not the right forum for adjudication of DGQA matters.

Hence the Original Application is not maintainable and is returned to the applicant with the liberty to file the same before the concerned authority.”

5. A miscellaneous application was filed by the

applicant before the Tribunal seeking leave to appeal

to this Court which application was rejected on

11.09.2012. This appeal has been filed challenging

the order dated 23.08.2012 and order dated

11.09.2012.

6. A counter-affidavit has been filed in this appeal

by the respondent reiterating their objection that

the relief which was claimed by the appellant in O.A.

was not maintainable before the Armed Forces

Tribunal.

5

7. The appellant appearing in-person submits that in

DGQA Officers are drawn from Armed Forces on tenure

posting and thereafter their cases are considered for

permanent secondment as per the Office Memorandum

dated 28.10.1978 and Office Memorandum dated

22.12.1993. The DGQA is an organisation within the

control of Ministry of Defence and is composed of

persons subject to Army Act, 1950 including civilian

persons thus the Armed Forces Tribunal will have the

jurisdiction to decide the matter relating to DGQA.

Relying on Section 3(o)(iv) of the Armed Forces

Tribunal Act, 2007, the appellant submits that his

case is squarely covered by the said provision. The

appellant who is subject to Army Act, 1950 being a

commissioned officer of Indian Army can very well

approach the Armed Forces Tribunal. Reliance on

judgment of Chandigarh Bench of Armed Forces Tribunal

in the case of Brig.A.K. Bhutani vs. Union of India

decided on 19.04.2011 has been placed. The appellant

has also relied on the provisions of Sections 27 and

33 of the Army Act, 1950 to support his submission. 6

8. Shri Sandeep Sethi, learned Additional Solicitor

General submits that the claim raised by the

appellant before the Armed Forces Tribunal is not

covered by the definition of the service matter as

defined in Section 3(o) of the Armed Forces Tribunal

Act, 2007. He submits that denial of permanent

secondment was made by DGQA Selection Board. No order

was passed against the appellant under the Army Act

or the Army Rules against which the appellant could

have made a complaint before the Armed Forces

Tribunal. Learned counsel for the respondent has

placed reliance on the judgment of this Court in

Union of India and others vs. Colonel G.S. Grewal,

2014 (7) SCC 303 and on another judgment of this

Court in Mohammed Ansari vs. Union of India and

others, 2017 (3) SCC 740. He submits that service

matters with regard to which Armed Forces Tribunal

has jurisdiction are service matters of Army

personnel which have been dealt under the Army Act,

Army Rules and Regulations framed therein. The

action which was impugned before the Tribunal by the

appellant was not any action of the Army which 7

could have been complained before the Armed Forces

Tribunal. He has further submitted that Armed Forces

Tribunal has rightly rejected the O.A. of the

appellant as not maintainable.

9. We have considered the submissions of the parties

and perused the records.

10. The only question which needs to be answered is

as to whether the Original Application filed by the

appellant was maintainable before the Armed Forces

Tribunal?

11. The main relief, which was asked by the appellant

before the Armed Forces Tribunal was to quash and set

aside the order dated 17.12.2007 by which the

complaint of the appellant was rejected by Central

Government. The appellant had prayed for a

direction to the respondents to grant permanent

secondment in the DGQA Organization with all the

consequential benefits retrospectively. The Armed

Forces Tribunal (AFT) has rejected the application of

the appellant holding that it has no jurisdiction to 8

entertain the application. The Tribunal in Para 16 of

the judgment has held that there is no breach of Army

Act and the Army Rules and the Service HQ had no role

in grant of second tenure of permanent secondment of

any Army Officer in the DGQA Organisation. Further,

the terms and conditions of the Service Officers in

DGQA is not creation of the Army Act or the Army

Rules.

12. The provisions of the Armed Forces Tribunal Act,

2007 have to be looked into to find out as to whether

the Tribunal has committed any error in refusing to

entertain the application of the appellant. The

Armed Forces Tribunal Act, 2007 has been enacted to

provide for the adjudication or trial by Armed Forces

Tribunal of disputes and complaints with respect to

commission, appointments, enrolment and conditions of

service in respect of persons subject to the Army

Act, 1950, the Navy Act, 1957 and the Air Force Act,

1950. Section 2 deals with the applicability of the

Act, which is to the following Act:-

“2. Applicability of the Act : (1) The provisions of this Act shall apply to all 9

persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950.

(2) This Act shall also apply to retired personnel subject to the Army Act, 1950 or the Navy Act, 1957 or the Air Force Act, 1950, including their dependants, heirs and successors, in so far as it relates to their service matters.”

13. Section 3 is a definition section. Section 3(o)

defines “service matters”, which is to the following

effect:-

“3(o)“service matters”, in relation to the persons subject to the Army Act, 1950 (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950) mean all matters relating to the conditions of their service and shall include—

(i).remuneration (including allowances), pension and other retirement benefits;

(ii)tenure, including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion, premature retirement, superannuation, termination of service and penal deductions;

(iii)summary disposal and trials where the punishment of dismissal is awarded;

(iv)any other matter, whatsoever, but shall not include matters relating to— 10

(i)orders issued under section 18 of the Army Act, 1950 (46 of 1950) sub-

section (1) of section 15 of the Navy Act, 1957 (62 of 1957) and section 18 of the Air Force Act, 1950; (45 of 1950) and

(ii)transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950);

(iii)leave of any kind;

(iv)summary court martial except where the punishment is of dismissal or imprisonment for more than three months;”

14. The provision excludes certain matters. The

present case is not covered by excluded categories,

hence that part of the provision is not relevant for

the present case. The definition of service matters

is an inclusive definition. A look into the

enumerations as contained in Section 3(o) indicates

that they all relate to matters relating to the

conditions of the service of persons subject to the 11 Army Act, 1950, the Navy Act, 1957 and the Air Force

Act, 1950. Last enumeration, i.e., (iv) is “any

other matter whatsoever”, at first blush; it appears

that the said enumeration is very wide which may

cover all other residual categories. But, the phrase

“any other matter whatsoever” is to take colour from

the other three enumerations and the main provision

of Section 3(o). The pre-condition of a matter to be

a service mater has to be relating to the conditions

of their service. Thus, for a matter to be treated

as a service matter, it must relate to the conditions

of their service.

15. From the facts as noted above, it is clear that

the appellant was given a tenure of two years in DGQA

in accordance with the guidelines issued by the

Ministry of Defence, Department of Defence

Production, as noticed above. After completion of

tenure of two years, the appellant returned back to

the Army. On 06.06.2007, the appellant’s claim for

permanent secondment in the DGQA was considered by

the QASB, wherein he was not found fit for the

permanent secondment by the QASB, with regard to 12

which a complaint was filed, which was rejected by

the Ministry. DGQA is an Organisation functioning

under the Ministry of Defence, Department of Defence

Production and the question of permanent secondment

of an Army Officer was considered by the Selection

Board of DGQA. The decision not to grant permanent

secondment to the appellant in DGQA does not in any

manner affect the service conditions of the appellant

as Commissioned Officer. The Tribunal has placed

reliance on a judgment of the Principal Bench of the

Armed Forces Tribunal in T.A. No. 125 of 2010, Maj.

General S.B. Akali Etc. Etc. Vs. Union of India &

Ors. In the above case, the question of selection of

the applicant in Defence Research and Development

Organisation was under consideration. The objection

was raised that the AFT has no jurisdiction to

entertain the claim. The Principal Bench of the

Armed Forces Tribunal, speaking through Justice A.K.

Mathur, Chairperson (as he then was), in Paragraphs

12, 13, 14 and 15 has held:-

“12. We have bestowed our best of consideration and we are of the opinion that as per Section 2 read with Section 13 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 14

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.

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.”

16. The above judgment has been referred to and

relied by the Tribunal.

17. In the case of Union of India & Ors. Vs. Colonel

G.S. Grewal, (2014) 7 SCC 303, the same question

relating lack of jurisdiction of AFT came for

consideration. The facts have been noticed in

Paragraph 3 of the judgment, which are quoted as

below:-

15

“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 the 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 6-11-2004 in the rank of Major. At that time, it was temporary secondment.”

18. A policy decision was taken, which adversely

affected the respondent’s claim for further promotion

in DGQA. He challenged the policy decision and

consequently the order. Before the Tribunal, the

judgment of Principal Bench in Maj. General S.B.

Akali Etc. Etc. (supra) was relied on, which was

brushed aside by the Tribunal. The Tribunal decided

to entertain the application, however, observed that

the same will not be treated as a precedent. The

Union of India, aggrieved by the said order of the 16

Tribunal has approached the Supreme Court. This

Court considered the matter in the aforesaid light

and set aside the order of the AFT and remitted the

matter. This Court held that it was required to be

examined as to whether the relief claimed was

entirely within the domain of the DGQA or for that

matter, the Ministry of Defence or it can still be

treated as Service Matter Under Section 3(o).

Following was held in Para 26:-

“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 case1. We may point out that merely because the respondent is subject to the 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 17

General S.B. Akali case1, 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.”

19. Although in the above case, this court did not

decide finally as to whether the claim of respondent

G.S. Grewal in the said case could be entertained by

AFT or not. The Court remitted the matter to

consider as to whether the claim is entirely within

the domain of the DGQA. Thus, the jurisdiction of

AFT in a case where a person claims permanent

secondment in DGQA, the nature of relief and the

action challenged have to be looked into for 18

answering the question. A subsequent judgment of

this Court in the case of Mohammed Ansari Vs. Union

of India & Ors., (2017) 3 SCC 740, is also relevant

in this context. In this case, the appellant was

appointed as an Assistant Executive Engineer in

Border Roads Engineering Service (BRES). The

appellant was not granted non-functional financial

upgradation for officers of Organised Group A. He

made representation to the concerned authorities,

which was turned down. Thereafter, he filed Original

Application No. 102 of 2012 before the Central

Administrative Tribunal. The Tribunal decided the

issue of jurisdiction in favour of the appellant,

which was opposed. The Tribunal held that it has

jurisdiction to entertain the claim of the appellant.

Aggrieved by the said order of the Tribunal, Union of

India filed a Writ Petition for quashment of the

order of the Tribunal. The High Court framed the

question as to whether a member of the GREF can be

regarded as member of Armed Forces. The High Court

after referring to Armed Forces Tribunal Act, 2007

and Central Civil Services (Control, Classification 19

and Appeal) Rules, 1965 held that the Central

Administrative Tribunal had no jurisdiction and only

remedy was to file an application under Article 226.

The appellant challenging the order of the High Court

came up before this Court. In the above context,

this Court also examined the question as to whether

after coming into the force of the Armed Forces

Tribunal Act, 2007, it shall be the Armed Forces

Tribunal which shall deal with the controversy or the

High Court has jurisdiction Under Article 226 of the

Constitution of India. The judgment of this Court in

Union of India & Ors. Vs. Colonel G.S. Grewal,

(supra) was extensively quoted by this Court and

after quoting Paragraph 26 of the judgment, following

was stated in Para 29:-

“29. Thus, the Court in G.S. Grewal case clearly held that merely because the respondent is subjected to the 1950 Act would not by itself be sufficient to conclude that the Tribunal had 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 matter” as contained in Section 20 3(o) of the 2007 Act.

20. This Court further laid down in Paragraphs 33 and

34:-

“33. The situation insofar as jurisdiction of the Armed Forces

Tribunal (AFT) to hear the appeals arising out of court martial verdicts qua GREF personnel, however, appears to stand on a different footing. It is because the provisions of Chapter VI i.e. offences, Chapter VII i.e. punishment, Chapter X i.e. “courts martial”, etc. apply with full force, subject to minor exceptions and modifications here and there, as applied to GREF. Therefore, the provisions of the 1950 Act dealing with various punishments inflicted by way of courts martial qua GREF personnel as applied can be agitated before AFT and AFT shall have jurisdiction to hear appeals arising out of courts martial verdicts. There can be no doubt that in respect of said matters AFT shall have jurisdiction. Denial of jurisdiction to the said Tribunal would be contrary to the 1950 Act and the provisions engrafted under the 2007 Act. To elaborate, right to approach AFT by the personnel of GREF who are tried by a court martial held under the very same Act has to be recognised. At the same time, if the punishment is imposed on GREF personnel by way of departmental proceedings held under the CCS (CCA) Rules, 1965 then obviously the same cannot be agitated before AFT since the penalty in such cases will not be one 21

under the 1950 Act but will be under the CCS (CCA) Rules, 1965. The distinction, as the law exists in the present, has to be done.

34. From the aforesaid, the legal position that emerges is that AFT shall have jurisdiction (i) to hear appeals arising out of courts martial verdicts qua GREF personnel. To this extent alone AFT shall have jurisdiction. At the same time, if the punishment is imposed on GREF personnel by way of departmental proceedings held under the CCS (CCA) Rules, 1965 the same cannot be agitated before AFT; and (ii) AFT shall have no jurisdiction to hear and decide grievances of GREF personnel relating to their terms and conditions of service or alternatively put “service matters”.

21. This Court in the above case has clearly held

that AFT can exercise jurisdiction if the action,

which is complained flow from the Army Act, 1950, the

example of court martial verdict was given to which

the personnel of GREF were subject. This Court

further held that in event, the personnel of GREF had

been administratively dealt with in the departmental

proceedings held under the CCS(CCA) Rules, the same

cannot be agitated before the AFT.

22. Coming back to the facts of the present case, the 22

action, which is impugned before the AFT was the

refusal of permanent secondment of the appellant in

DGQA by QASB. For permanent secondment of a

Commission Officer, there were orders issued by the

Ministry of Defence, which regulated the permanent

secondment, i.e. Government Order dated 28.10.1978,

as amended from time to time and the Government of

India O.M. dated 22.12.1993. Non-selection of the

appellant which was impugned in the application was

by a different organisation, i.e., by QASB of DGQA.

23. We thus are of the view that action impugned

before the Tribunal cannot be held to be service

matter within the meaning of Section 3(o) of the

Armed Forces Tribunal Act, 2007.

24. The appellant, who has appeared in-person has

further relied on two provisions namely, Section 27

and Section 33 of the Army Act, 1950, which are

extracted as below:-

“27. Remedy of aggrieved officers.-- Any officer who deems himself wronged by his commanding officer or any superior officer and who on due application made 23

to his commanding officer does not receive the redress to which he considers himself entitled, may complain to the Central Government in such manner as may from time to time be specified by the proper authority.

33. Saving of rights and privileges under laws.-- The rights and privileges specified in the preceding sections of this Chapter shall be in addition to, and not in derogation of, any other rights and privileges conferred on persons subject to this Act or on members of the regular Army, Navy and Air Force generally by any other law for the time being in force.”

25. Section 27 provides a remedy to aggrieved

officers to submit a complaint to the Central

Government, if he has been wronged by a commanding

officer or any superior officer. Present is not a

case where any action of commanding officer or any

superior officer of appellant was complained or

questioned. Thus Section 27 has no application.

26. Coming to Section 33 of the Act, which provides

for “saving of rights and privileges under other

laws”. The said provision indicates that the

provision saves the rights and privileges conferred 24

on persons subject to Army Act, by any other law for

the time being in force.” Few examples of such

privileges are as under:-

“(a) All Govt. pensions (including military persons) are immune from attachment in the execution of the decrees of civil courts; s. 11 of pensions Act 1871, proviso (g) to s. 60 of Code of Civil Procedure 1908.

(b) Receipts for pay or allowances of NCOs, or Sepoys when serving in such capacity need not be stamped; Indian Stamp Act, schedule 1.

(c) All officers, JCOs, WOs and OR of the regular Army on duty or on the march as well as their authorized followers, families, horses, baggage and transport are exempt from all tolls except certain tolls for the transit of barges etc. along canals; s. 3 of Indian Tolls (Army and Air Force ) Act 1901.”

27. The above provision has no application in facts

of the present case. Present is not a case where the

appellant is claiming any privilege conferred on

persons subject to Army Act or by any other law in

force. Section 33, thus, has no application.

28. In view of the aforesaid discussion, we are of 25

the view that the Tribunal committed no error in

holding that the application filed by the appellant

was not maintainable before the AFT. AFT has

returned the application of the applicant to take

proceeding before competent authorities. In result,

the appeal is dismissed.

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

..........................J. ( ASHOK BHUSHAN ) NEW DELHI, MAY 18, 2018.