UNION OF INDIA & ORS. versus LT. COL. SAMEER SINGH on 2 December 2019

414

[2019] 14 S.C.R. 414

SUPREME COURT REPORTS

[2019] 14 S.C.R.

A

UNION OF INDIA & ORS.

v.

LT.COL. SAMEER SINGH

(Civil Appeal No. 9143 of 2019)

BDECEMBER 02, 2019

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Armed Forces: Permanent Secondment – Eligibility criteria –Office Memorandum dated 12.05.2011 – Respondent wascommissioned in the Indian Army in 1994 – While holding the postCof Lt. Colonel in the Indian Army, he was posted in DirectorateGeneral Quality Assurance (DGQA) – After completion of two yearsof service therein, he fell in the zone of consideration of PermanentSecondment – Respondent’s case was considered by the QualityAssurance Selection Board (QASB) held on 17.02.2016, however,Dhe was not recommended for Permanent Secondment as in theTechnical Assessment Reports (TAR) for the year 2014-15, he wasdeclared ‘Not Yet Fit’ for permanent secondment in DGQA and forthe year 2015-16, in the TAR, he was declared ‘Not Fit’ – Thereafter,he was reverted to the Indian Army – Respondent filed writ petitionbefore High Court contending that he fulfilled the requirements ofEOffice Memorandum dated 12.05.2011 which sets out the criteriato be followed for grant of Permanent Secondment to service officersof the rank of Lt. Colonel in DGQA – High Court held that TARsare not to be taken into consideration – Whether TARs of an Armyofficer are to be taken into consideration while considering hisFcase for Permanent Secondment in DGQA after the officememorandum dated 12.05.2011 came into force – Held: Initially, asper Office Memorandum of 8.4.2004, the consideration forPermanent Secondment to the DGQA was based on the TARs – OfficeMemorandum dated 12.05.2011 does not refer to the TARs – OfficeMemorandum dated 12.05.2011 clearly lays down that the criteriaGlaid down therein would only apply to all service officers inductedinto DGQA – Office Memorandum of 2011 supersedes all previousinstructions/guidelines issued on this subject – This also includesthe guidelines of 8.4.2004 as there is no exception for the same –No interference with the order of High Court called for.H

Dismissing the appeal, the Court

HELD: 1. When office memorandum dated 12.05.2011 isread, it leaves no manner of doubt that it is only the criteria laiddown in this memorandum which would apply to all service officersinducted into DGQA on tenure basis, after the issuance of thisoffice memorandum. Clause 3 of the office memorandum clearlymentions this fact and it is also mentioned that in the interimperiod, QASBs shall be held as per the policy in vogue. The earlierpolicy which was in vogue was the one which took intoconsideration the TARs. Office memorandum of 12.05.2011 laysdown a large number of criteria. It specifically mentions that thegrading for 7 years should not be less than 7, including the AnnualConfidential Reports (ACRs) earned in DGQA. A minimumgrading in the medical category and mandatory qualities havebeen laid down. It specifically mentioned that the officer shouldhave not only undergone the Basic Quality Management Courseat Bangalore, but should also should have obtained ‘AboveAverage’ grading. Clause 4 of this office memorandum mentionsthat this memorandum supersedes all previous instructions/guidelines issued on this subject. This, would also include theguidelines of 08.04.2004, because there is no exception for thesame. [Para 10][420-B-E]

2. Plea on behalf of the appellants was that the officememorandum dated 08.04.2004 is in the nature of executiveinstructions approved by the Raksha Mantri, and continued toapply and cannot be deemed to be superseded. The plea is nottenable. Office memorandum dated 12.05.2011 is also in the natureexecutive instruction, issued with the approval of the RakshaMantri. The authorities who issued the said office memorandummust have been aware of the earlier office memorandum of08.04.2004. The office memorandum of 2011 is broader than theoffice memorandum of 2004 and the office memorandum of 2011which is later in time specifically supersedes all previousinstructions/guidelines issued on the subject. It is further seenthat the office memorandum dated 12.05.2011 was amended on14.06.2011 and it was specifically mentioned that the officersrejected in QASB for grant of Permanent Secondment will not bere-considered in subsequent QASBs. In case the appellants A

BC

D

E

F

G

H

Awanted to make TAR a mandatory requirement for fulfilling theeligibility criteria they could have done that by making similaramendment or issuing another office memorandum in this regard,but that did not happen. The TAR may be taken into considerationwhile grading the officer for the purposes of ACR but once theACR is being taken into consideration then in view of the officeBmemorandum dated 12.05.2011, the TAR is the criteria whichcould not have been taken into consideration. [Paras 11-13][420-F-H; 421-A-B, E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9143Of 2019.C

From the Judgment and Order dated 16.04.2018 of the HighCourt of Delhi at New Delhi in Writ Petition (Civil) No. 9233 of 2016.

A.N.S. Nadkarni, ASG, Ms. Aakanksha Kaul, Ms. Rukmini Bobde,Manek Singh, Arvind Kumar Sharma, Advs. for the Appellants.

DMs. Arati Mahajan, Ms. Malvi Balyan, Ms. Swati, Rakesh K.Sharma, Advs. for the Respondent.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.E1. Leave granted.

2. The short question involved in this appeal is whether theTechnical Assessment Reports (TARs for short) of an Army officer areto be taken into consideration while considering his case for PermanentSecondment in the Directorate General Quality Assurance (DGQA forFshort), after the office memorandum dated 12.05.2011 came into force?

3. Briefly stated, the facts of the case are that the respondentherein was commissioned in the Indian Army in 1994. He earned variouspromotions and while holding the post of Lt. Colonel in the Indian Army,he was posted in the DGQA. After completion of two years of serviceGin the Collectorate of Quality Assurance, he fell in the zone ofconsideration of Permanent Secondment. His case was considered bythe Quality Assurance Selection Board (QASB for short) held on17.02.2016. The respondent’s case was not recommended for PermanentSecondment. On finding that his name has not been recommended, therespondent made enquiries and came to know that his case has not beenH

recommended since in the TAR for the year 2014-15, it was found thathe was ‘NOT YET FIT’ for Permanent Secondment in DGQA. In thenext year, i.e. 2015-16, 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 petitionin the Delhi High Court contending that he fulfilled the requirements ofOffice Memorandum dated 12.05.2011 which sets out the criteria to befollowed for grant of Permanent Secondment to service officers of therank of Lt. Colonel in DGQA.

5. The Delhi High Court allowed the writ petition and held thatthe TARs could not be taken into consideration. Hence this appeal bythe Union of India.

6. We have heard learned Mr. A.N.S. Nadkarni, ASG assisted byMs. Aakansha Kaul, learned counsel for the appellants, and Ms. AratiMahajan, learned counsel for the respondent. It would be apposite torefer to the various instructions issued by the appellants from time totime. Initially, as per the office memorandum of 08.04.2004, theconsideration for Permanent Secondment to the DGQA was based onthe TARs, and relevant part of the criteria reads as under:- “Part-II: 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 toapply the theoretical knowledge (d) Sense of dedication and responsibility towards QA work.

(e) Details of outstanding/notable work done by the reportee, ifany Signature Name of the officer Rank/Designation A

B

C

D

E

F

G

APart III: Remarks of the Technical Director

1. Remarks with reference to specific comments given by theReporting Officer

2. Fitness or otherwise for Permanent Secondment in DGQAOrganisation.B

Signature:

Part IV: Remarks of DGQA

1. is fit/not yet fit for Permanent Secondment in DGQAOrganisationC

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

Signature”

The first portion was to be filled in by the Head of theDestablishment. Thereafter, the technical Director was to give his remarksand also assess whether the officer was fit or otherwise for PermanentSecondment in DGQA Organisation and, finally these remarks were tobe approved or modified, as the case may be by the DGQA.

7. On 12.05.2011 an office memorandum was issued, the relevantEportion of which reads as follows:- “1. xxxxxxxxx(i)Offrs of the rank of Lt Col (Substantive) only will beconsidered for grant of Permanent Secondment F(ii)Officer should have minimum of two years of regularservice from the date of reporting to DGQA organisationbefore being considered by QASB for grant of PermanentSecondment.

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

(iv) Mean value of all box grading for seven years should notbe less than ‘7’ including ACRs earned in DGQA.

H

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

(vi) Should be in acceptable medical category as stipulated inAppendix ‘A’ to MOD OM No.67952/Q/DGI(Adm-)/B10412/D(PRODN) dated 28 Oct 1978 as amended fromtime to time

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

C

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

xxxxxxxxx2.xxx xxxxxx

D

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

4. This supersedes all previous instructions/guidelines issuedon the subject.

E

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

8. It has been urged by Ms. Kaul, that though the second officememorandum dated 12.05.2011does not refer to the TARs but at theFsame time it does not specifically overrule the office memorandum dated08.04.2004, and it is submitted that the said office memorandum hasinvariably been applied by the appellants and the TARs of every Militaryofficer who has been granted Permanent Secondment in DGQA havebeen taken into consideration. It is further submitted that the purpose ofTAR is different from the Assessment Report and as such essential toGassess the suitability of the candidate for Permanent Secondment intothe DGQA. It is also submitted that even otherwise the employer couldapply any criteria which it deems fit and it is not for the employee tosuggest what criteria should be made applicable.

H

A9. On the other hand, Ms. Mahajan, submits that a reading of theoffice memorandum dated 12.05.2011 squarely indicates that only thecriteria mentioned therein could be taken into consideration and noneelse.

10. We have carefully gone through the various instructions andBalso considered the averments of the parties. When the officememorandum dated 12.05.2011 is read, it leaves no manner of doubtthat it is only the criteria laid down in this memorandum which wouldapply to all service officers inducted into DGQA on tenure basis, afterthe issuance of this office memorandum. This is apparent from Clause 3of the office memorandum, which clearly mentions this fact and it is alsoCmentioned that in the interim period, QASBs shall be held as per thepolicy in vogue. The earlier policy which was in vogue was the onewhich took into consideration the TARs. The office memorandum of12.05.2011 lays down a large number of criteria. It specifically mentionsthat the grading for 7 years should not be less than 7, including the AnnualDConfidential Reports (ACRs for short) earned in DGQA. A minimumgrading in the medical category and mandatory qualities have been laiddown. It has been specifically mentioned that the officer should havenot only undergone the Basic Quality Management Course at Bangalore,but should also should have obtained ‘Above Average’ grading. Clause4 of this office memorandum mentions that this memorandum supersedesEall previous instructions/guidelines issued on this subject. This, in ouropinion, would also include the guidelines of 08.04.2004, because thereis no exception for the same.

11. It was urged on behalf of the appellants that the officememorandum dated 08.04.2004 is in the nature of executive instructionsFapproved by the Raksha Mantri, and continued to apply and cannot bedeemed to be superseded. We are not in agreement with this submission.The office memorandum dated 12.05.2011 is also in the nature executiveinstruction, issued with the approval of the Raksha Mantri. We mustassume that the authorities who issued the office memorandum datedG12.05.2011 were aware of the earlier office memorandum of 08.04.2004.The office memorandum of 2011 is broader than the office memorandumof 2004 and the office memorandum of 2011 which is later in timespecifically supersedes all previous instructions/guidelines issued on thesubject.

12. Another fact which has been brought to our notice byMs. Mahajan is that the office memorandum dated 12.05.2011 wasamended on 14.06.2011 and it was specifically mentioned that the officersrejected in QASB for grant of Permanent Secondment will not be re-considered in subsequent QASBs. In case the appellants wanted to makeTAR a mandatory requirement for fulfilling the eligibility criteria theycould have done that by making similar amendment or issuing anotheroffice memorandum in this regard, but that did not happen.

13. On behalf of the appellants it has been urged that anotherletter was issued on 14.07.2014, wherein it is noted that the TARs havebeen initiated by some officers in a very casual manner. The importanceof TAR has been reiterated and it has been mentioned that this hasserious implication on the consideration and subsequent PermanentSecondment of tenure Colonels to the DGQA Organisation, and one ofthe mistakes pointed out is that it has not been indicated in the TARwhether the officer is FIT/NOT FIT/NOT YET FIT, for PermanentSecondment in DGQA. It is true that this letter emphasises the importanceof the TAR but in view of the clear language of office memorandumdated 12.05.2011, it still cannot be taken into consideration. It is not clearas to why in this very letter it could not have been mentioned that TARshould also be taken into consideration while considering the case forPermanent Secondment. The TAR may be taken into consideration whilegrading the officer for the purposes of ACR but once the ACR is beingtaken into consideration then in view of the office memorandum dated12.05.2011, we have no doubt in our mind that the TAR is the criteriawhich could not have been taken into consideration.

14. We, therefore, dismiss the appeal and uphold the judgment ofthe Delhi High Court. Stay stands vacated. Pending applications(s), ifany, shall also stand disposed of.

Devika Gujral

Appeal dismissed.

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B

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D

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H