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TMI Blog2014 (5) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... ile 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. 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. However, he could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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of service, were to be promoted to the rank of Lieutenant Colonel, irrespective of whether such personnel were finally superseded or not.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 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. 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. 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 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 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 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." The respondent, naturally, felt aggrieved by this Order, which meant that he would not earn any further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment 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. 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 on jurisdiction as well as on merits. First and foremost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fidence 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 [pic]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 disciplin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 had nothing to do with the Army Act, the Tribunal lacked the jurisdiction to entertain the matter. Relevant portion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently 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." 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 mirr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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