Union Of India vs Lt. Col. Sameer Singh

CIVIL APPEAL NO(S). 9143 / 2019 (@ SPECIAL LEAVE PETITION (CIVIL) NO(S). 25611 OF 2018)

UNION OF INDIA & ORS. …APPELLANT(S)

Versus

LT.COL. SAMEER SINGH …RESPONDENT(S)

JUDGMENT

Deepak Gupta, J.

Leave granted.

2. The short question involved in this appeal is whether the

Technical Assessment Reports (TARs for short) of an Army officer

are to be taken into consideration while considering his case for

Permanent Secondment in the Directorate General Quality

Assurance (DGQA for short), after the office memorandum dated Signature Not Verified Digitally signed by ANITA MALHOTRA

12.05.2011 came into force?

Date: 2019.12.02 16:44:17 IST Reason: 1

3. Briefly stated, the facts of the case are that the respondent

herein was commissioned in the Indian Army in 1994. He earned

various promotions and while holding the post of Lt. Colonel in

the Indian Army, he was posted in the DGQA. After completion

of two years of service in the Collectorate of Quality Assurance,

he fell in the zone of consideration of Permanent Secondment.

His case was considered by the Quality Assurance Selection

Board (QASB for short) held on 17.02.2016. The respondent’s

case was not recommended for Permanent Secondment. On

finding that his name has not been recommended, the

respondent made enquiries and came to know that his case has

not been recommended since in the TAR for the year 2014­15, it

was found that he was ‘NOT YET FIT’ for Permanent Secondment

in DGQA. In the next year, i.e. 2015­16, he was declared ‘NOT

FIT’ in the TAR. Thereafter, he was reverted to the Indian Army.

4. Aggrieved by the said action, the respondent filed a writ

petition in the Delhi High Court contending that he fulfilled the

requirements of Office Memorandum dated 12.05.2011 which

sets out the criteria to be followed for grant of Permanent

2 Secondment to service officers of the rank of Lt. Colonel in

DGQA.

5. The Delhi High Court allowed the writ petition and held that

the TARs could not be taken into consideration. Hence this

appeal by the Union of India.

6. We have heard learned Mr. A.N.S. Nadkarni, ASG assisted

by Ms. Aakansha Kaul, learned counsel for the appellants, and

Ms. Arati Mahajan, learned counsel for the respondent. It would

be apposite to refer to the various instructions issued by the

appellants from time to time. Initially, as per the office

memorandum of 08.04.2004, the consideration for Permanent

Secondment to the DGQA was based on the TARs, and relevant

part of the criteria reads as under:­

“Part­II: Assessment by the Reporting Officer

1. Technical

(a) Nature of work assigned : to the Reportee

(b) Aptitude of the Reportee : towards Quality Assurance related work

(c) Technical Knowledge of the officer and practical ability to apply the theoretical knowledge

(d) Sense of dedication and responsibility towards QA work.

(e) Details of outstanding/notable work done by the reportee, if any

3 Signature Name of the officer Rank/Designation

Part III: Remarks of the Technical Director

1. Remarks with reference to specific comments given by the Reporting Officer

2. Fitness or otherwise for Permanent Secondment in DGQA Organisation.

Signature:

Part IV: Remarks of DGQA

1. is fit/not yet fit for Permanent Secondment in DGQA Organisation

2. Performance of should, be watched for another months before consideration for Permanent Secondment.

Signature”

The first portion was to be filled in by the Head of the

establishment. Thereafter, the technical Director was to give his

remarks and also assess whether the officer was fit or otherwise

for Permanent Secondment in DGQA Organisation and, finally

these remarks were to be approved or modified, as the case may

be by the DGQA.

7. On 12.05.2011 an office memorandum was issued, the

relevant portion of which reads as follows:­

“1. xxx xxx xxx

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(i) Offrs of the rank of Lt Col (Substantive) only will be considered for grant of Permanent Secondment

(ii) Officer should have minimum of two years of regular service from the date of reporting to DGQA organisation before being considered by QASB for grant of Permanent Secondment.

(iii) Officers should not have been finally superseded as on date of acceptance by DGQA on tenure (the date of approval of board proceedings for acceptance of officers on tenure by DGQA)

(iv) Mean value of all box grading for seven years should not be less than ‘7’ including ACRs earned in DGQA.

(v) Mean value of box grading in 3 Mandatory Qualities (LOAYLITY, DECISIVENESS & DEPENDABILITY) should not be less than ‘7’ and in respect of INTEGRITY should not be less than ‘8’.

(vi) Should be in acceptable medical category as stipulated in Appendix ‘A’ to MOD OM No.67952/Q/DGI(Adm­)/10412/D(PRODN) dated 28 Oct 1978 as amended from time to time

(vii) The officer should have undergone Basic Quality Management Course (BQMC) at DIAQ, Bangalore and should have obtained above average grading.

(viii) The disciplinary record of the officers should not be adverse. Note:

xxx xxx xxx

2. xxx xxx xxx

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3. These revised criteria will be applicable to all Service Officers inducted into DGQA on tenure prospectively from the date of issue of this OM. In the interim period QASBs will be held as per policy in vogue.

4. This supersedes all previous instructions/guidelines issued on the subject.

5. This issues with the approval of Hon’ble Raksh Mantri.”

8. It has been urged by Ms. Kaul, that though the second

office memorandum dated 12.05.2011 does not refer to the TARs

but at the same time it does not specifically overrule the office

memorandum dated 08.04.2004, and it is submitted that the

said office memorandum has invariably been applied by the

appellants and the TARs of every Military officer who has been

granted Permanent Secondment in DGQA have been taken into

consideration. It is further submitted that the purpose of TAR is

different from the Assessment Report and as such essential to

assess the suitability of the candidate for Permanent

Secondment into the DGQA. It is also submitted that even

otherwise the employer could apply any criteria which it deems

6 fit and it is not for the employee to suggest what criteria should

be made applicable.

9. On the other hand, Ms. Mahajan, submits that a reading of

the office memorandum dated 12.05.2011 squarely indicates

that only the criteria mentioned therein could be taken into

consideration and none else.

10. We have carefully gone through the various instructions

and also considered the averments of the parties. When the

office memorandum dated 12.05.2011 is read, it leaves no

manner of doubt that it is only the criteria laid down in this

memorandum which would apply to all service officers inducted

into DGQA on tenure basis, after the issuance of this office

memorandum. This is apparent from Clause 3 of the office

memorandum, which clearly mentions this fact and it is also

mentioned that in the interim period, QASBs shall be held as per

the policy in vogue. The earlier policy which was in vogue was

the one which took into consideration the TARs. The office

memorandum of 12.05.2011 lays down a large number of

criteria. It specifically mentions that the grading for 7 years

should not be less than 7, including the Annual Confidential

Reports (ACRs for short) earned in DGQA. A minimum grading

7 in the medical category and mandatory qualities have been laid

down. It has been specifically mentioned that the officer should

have not only undergone the Basic Quality Management Course

at Bangalore, but should also should have obtained ‘Above

Average’ grading. Clause 4 of this office memorandum mentions

that this memorandum supersedes all previous

instructions/guidelines issued on this subject. This, in our

opinion, would also include the guidelines of 08.04.2004,

because there is no exception for the same.

11. It was urged on behalf of the appellants that the office

memorandum dated 08.04.2004 is in the nature of executive

instructions approved by the Raksha Mantri, and continued to

apply and cannot be deemed to be superseded. We are not in

agreement with this submission. The office memorandum dated

12.05.2011 is also in the nature executive instruction, issued

with the approval of the Raksha Mantri. We must assume that

the authorities who issued the office memorandum dated

12.05.2011 were aware of the earlier office memorandum of

08.04.2004. The office memorandum of 2011 is broader than

the office memorandum of 2004 and the office memorandum of

8 2011 which is later in time specifically supersedes all previous

instructions/guidelines issued on the subject.

12. Another fact which has been brought to our notice by Ms.

Mahajan is that the office memorandum dated 12.05.2011 was

amended on 14.06.2011 and it was specifically mentioned that

the officers rejected in QASB for grant of Permanent Secondment

will not be re­considered in subsequent QASBs. In case the

appellants wanted to make TAR a mandatory requirement for

fulfilling the eligibility criteria they could have done that by

making similar amendment or issuing another office

memorandum in this regard, but that did not happen.

13. On behalf of the appellants it has been urged that another

letter was issued on 14.07.2014, wherein it is noted that the

TARs have been initiated by some officers in a very casual

manner. The importance of TAR has been reiterated and it has

been mentioned that this has serious implication on the

consideration and subsequent Permanent Secondment of tenure

Colonels to the DGQA Organisation, and one of the mistakes

pointed out is that it has not been indicated in the TAR whether

the officer is FIT/NOT FIT/NOT YET FIT, for Permanent

Secondment in DGQA. It is true that this letter emphasises the

9 importance of the TAR but in view of the clear language of office

memorandum dated 12.05.2011, it still cannot be taken into

consideration. It is not clear as to why in this very letter it could

not have been mentioned that TAR should also be taken into

consideration while considering the case for Permanent

Secondment. The TAR may be taken into consideration while

grading the officer for the purposes of ACR but once the ACR is

being taken into consideration then in view of the office

memorandum dated 12.05.2011, we have no doubt in our mind

that the TAR is the criteria which could not have been taken into

consideration.

14. We, therefore, dismiss the appeal and uphold the judgment

of the Delhi High Court. Stay stands vacated. Pending

applications(s), if any, shall also stand disposed of.

…………………………..J. (Deepak Gupta)

…………………………..J. (Aniruddha Bose)

New Delhi December 02, 2019

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