Lt. Col. Anjan Kumar Sinha vs Union Of India Thru The Secretary, ...
2023 Latest Caselaw 7555 Bom

2023:BHC-AS:21183-DB



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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                  CIVIL APPELLATE JURISDICTION

                                   WRIT PETITION NO.9407 OF 2023

            Lt.Col. Anjan Kumar Sinha                           .. Petitioner
                  Versus
            Union of India & Ors.                               .. Respondents
                        ---
            Mr.Vicky Nagrani for Petitioner.
            Ms.Neeta V. Masurkar for Respondents.
                        ---

                                            CORAM : G. S. KULKARNI &
                                                    JITENDRA JAIN, JJ.

DATE : 28th July 2023

ORAL JUDGMENT: (Per G.S.Kulkarni, J.)

. Not on board. Taken on board on an application being moved

on behalf of the petitioner.

2. By this petition filed under Articles 226 and 227 of the

Constitution of India, the petitioner has assailed an order dated 19 th June

2023 passed by the Central Administrative Tribunal, Mumbai Bench,

Mumbai in O.A. No.330 of 2023 whereby his Original Application has

been dismissed on the ground that the Central Administrative Tribunal did

not have jurisdiction to entertain the original application, leaving him to

seek redressal of his grievances, before the Armed Forces Tribunal. The

operative part of the impugned order reads thus :-

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         "(iii)         In view of the above analysis of the issue, we conclude
         that on the grievance of the applicant       related to his permature

repatriation, his O.A. cannot be entertained by this Tribunal because of want of jurisdiction and therefore, it is dismissed. He may seek redress of his grievance with the Armed Forces Tribunal, Principal Bench, New Delhi or alternatively with the Ministry of Defence, Government of India, New Delhi."

3. The relevant facts are required to be noted. The petitioner

was appointed in the services of the Indian Army. In response to the

office circular dated 19th October 2020 issued by the Armed Forces

Tribunal, Principal Bench at New Delhi, he made an application for

appointment to the post of Registrar with Armed Forces Tribunal, on

deputation.

4. On 7th March 2022, the Armed Forces Tribunal accepted the

application of the petitioner, informing him that he was selected for

appointment to the post of Registrar, on deputation, for a period of three

years. The appointment was subject to the terms and conditions as set

out in DOPT Office Memoramdam dated 17 th June 2010. The relevant

paragraph of the said order appointing the petitioner pertaining to

premature repatriation reads thus : -

"5. The official will be prematurely repatriated to his parent cadre as per DoP&T OM No.6/8/2009-Estt. (Pay II) dated 17 th

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June 2010 as amended from time to time in case his performance is not found satisfactory during the deputation period in Armed Forces Tribunal, Regional Bench, Mumbai or Administrative Exigencies in public interest."

5. The petitioner accepted such appointment on deputation, by

accepting the terms and conditions as set out in the Office Memorandum,

and communicated his acceptance by his letter dated 6 th May 2022. It

appears that by an order dated 10th May 2023, the competent authority

thereafter took a decision to prematurely repatriate the petitioner on

administrative exigencies, to his parent office i.e. EMAE, HQ. MG & G

Area. To this effect, the order dated 10th May 2023 came to be issued

which reads thus : -

"OFFICE ORDER

Reference this office letter No.7(69)/2020/AFT/PB/ Admin-II dated 08th April, 2022.

2. The Competent Authority is pleased to direct that IC-57396N Lt Col Anjan Kumar Sinha, an officer of Indian Army presently working in Armed Forces Tribunal, Regional Bench, Mumbai as Registrar on deputation basis w.e.f. 06 th May, 2022 is to be prematurely repatriated on Administrative Exigencies ground to his parent office i.e. EMAE, HQ, MG & G Area. Therefore, the officer is hereby relieved of his duties with immediate effect to report to his parent office.

3. Service Book of the officer during deputation period has been maintained by the parent office of the officer."

6. The petitioner being aggrieved by the said order approached

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the Central Administrative Tribunal, Mumbai Bench at Mumbai by the

Original Application in question, inter alia praying that the repatriation

order be quashed and set aside. However, the Central Administrative

Tribunal rejected the petitioner's application accepting the respondent's

objection that the Central Administrative Tribunal had no jurisdiction, as

the petitioner would be governed by the provisions of the Armed Forces

Tribunal Act, 2007.

7. Learned counsel for the petitioner would fairly point out that

in terms of the Office Memorandum dated 17th June 2010, an office

order dated 27th July 2023 has been issued to the effect that the said

order of premature repatriation of the petitioner, has been granted an

approval by the Hon'ble Defence Minister. A copy of the said office

order is placed on record which reads thus : -

" OFFICE ORDER

In pursuance of the Government of India, Ministry of Defence, D (AFT Cell), Sena Bhawan, New Delhi letter No.7(8)/2023-D(AFTC)/CONF dated 27th July 2023, Hon'ble Raksha Mantri has approved the premature repatriation of IC- 57396N Lt Col Anjan Kumar Sinha, an officer of Indian Army who is presently on deputation as Registrar at Armed Forces Tribunal, Regional Bench, Mumbai.

2. Accordingly, Lt Col Anjan Kumar Sinha is hereby relieved from the post of Registrar of AFT, RB, Mumbai with immediate

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effect with a direction to report to his parent cadre/organisation.

3. This Office letter No.27(22)/2022/AFT/PB/Admin-II dated 05th June, 2023 is hereby superseded."

8. Learned counsel for the petitioner in assailing the impugned

order would submit that the Central Administrative Tribunal was not

correct and justified in dismissing the Original Application of the

petitioner , on the ground that the Central Administrative Tribunal had no

jurisdiction, for the primary reason that the petitioner was posted on a

civil post as "Registrar" of the Armed Forces Tribunal, although on

deputation. It is submitted that for such reason, the cause of the petitioner

did not fall within the definition of 'service matters' under Section 3(o)

of the Armed Forces Tribunal Act, 2007. In support of such submission,

reliance is placed on a decision of the Supreme Court in case of

Lieutenant Colonel Vijaynath Jha Vs. Union of India & Ors., (2018)

7 SCC 303 and more particularly as to what has been observed by the

Supreme Court referring to a decision of the Armed Forces Tribunal in

case of Maj. General S.B. Akali Etc. Etc. Vs. Union of India & Ors. in

T.A. No. 125 of 2010 as referred in paragraph 19 of the said decision.

Learned counsel for the petitioner would also submit that in the case of

Lt. Co. R.K. Purohit Vs. Union of India in O.A. 2701/2009 the applicant

therein had joined Indian Army in the year 1982 and was promoted to the

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rank of major in the year 1993. He had thereafter joined as the Assistant

Director (General Duty) in the year 2001, as also was posted on

deputation in Special Frontier Force (SFF), his Original Application was

adjudicated by the Central Administrative Tribunal without an objection

as to the jurisdiction. It is submitted that for such reasons, the Central

Administrative Tribunal ought not to have held that it had no jurisdiction

to entertain the original application filed by the petitioner. He submits

that the petitioner therefore has become entitled to the reliefs as prayed

for in the writ petition.

9. On the other hand, Ms. Masurkar, learned counsel for the

respondent would submit that the impugned order passed by the Central

Administrative Tribunal cannot be faulted. It is her submission that the

petitioner was merely appointed on deputation with the Armed Forces

Tribunal. Her contention is that once the petitioner was appointed on

deputation, it cannot be said that the petitioner was not a member of the

Armed Forces and/or had become an employee of the Central

Government, so as to apply the provisions of the Administrative

Tribunals Act, 1985, and to fall within the jurisdiction of the Central

Administrative Tribunal. Ms. Masurkar would submit that the impugned

order dated 10th May 2023 is clear that the petitioner had stood relieved.

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She would submit that charge of the said post is already handed over to

the Deputy Registrar.

10. Having heard the learned counsel for the parties and having

perused the impugned order and the record, we are of the opinion that

there is much substance in the contention as urged by Ms.Masurkar on

behalf of the respondent.

11. On a perusal of the order appointing the petitioner as

Registrar with the Armed Forces Tribunal, it is clear that the petitioner's

appointment was on deputation for a period of three years. Any

appointment on deputation would not bring about a consequences of any

extinguishment of the basic employment of the petitioner, which was

with the Indian Army. Further in the petitioner's appointment as the

Registrar of the Armed Forces Tribunal there was a clear condition that in

case the performance of the petitioner was not found satisfactory, during

the deputation period with the Armed Forces Tribunal or for

Administrative Exigencies, in public interest the petitioner would be

prematurely repatriated to his parent cadre with the Indian Army. Such

appointment on deputation, with such conditions was accepted by the

petitioner.

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12. It appears from the order dated 10th May 2023 issued by the

Armed Forces Tribunal that the competent authority was of the opinion

that the petitioner is required to be prematurely repatriated on

Administrative Exigencies, accordingly, he was relieved of his duties with

immediate effect. It also appears that such decision of the Armed Forces

Tribunal has been now approved by the Hon'ble Defence Minister as per

this office order dated 27th July 2023.

13. In the above circumstance, the petitioner if was aggrieved by

the impugned decision of his repatriation by the order dated 10 th May

2023, and as confirmed by the Hon'ble Minister as informed to the

petitioner by the office order dated 27 th July 2023, the remedy for the

petitioner being a Member of the Armed Forces, would be to approach

the Armed Forces Tribunal, considering the provision of Section 14 of the

Armed Forces Tribunal Act, 2007, which is conferred with the

jurisdiction on "service matters". Sub-section (2) of Section 14 provides

that a person aggrieved by an order pertaining to any "service matters"

may make an application to the Tribunal. Section 3(o) of the Armed

Forces Tribunal Act defines "service matters" to mean:-

"(o) service matters”, in relation to the persons subject to the Army Act,, 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

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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—

(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. On a plain reading of the above definition, we are of the

opinion that the case of a deputation would be required to be read to fall

in sub clause (ii) of Section 3 (o) of the Armed Forces Tribunal Act,

2007, by applying the rule of ejusdem generis considering the ingredients

of the said provision namely tenure, including commission, appointment,

enrolment, probation, confirmation, seniority, training, promotion,

reversion, premature retirement, superannuation, termination of service

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and penal deductions. Alternatively as deputation is not expressly

provided in sub-clause (ii), it can also be considered to be falling in

clause (iv) which reads "any other matter whatsoever". Clause (iv) is

very wide which may cover all other residual categories and the said

phrase is to take colour from the other three enumerations and the main

provision of Section 3(o) of the Armed Forces Tribunal Act and has to be

read as ejusdem generis. The precondition of a matter to be a service

matter has to be relating to the conditions of their service, as held by the

Supreme Court in Lieutenant Colonel Vijaynath Jha (supra).

15. Insofar as the exceptions which are carved out in Section 3(o)

are concerned, we do not find that the petitioner's case would fall under

exceptions which are made for transfer and posting etc. Thus in our

opinion, the Central Administrative Tribunal by the impugned order has

rightly arrived at a conclusion that it had no jurisdiction.

16. Insofar as the reliance placed on the decision of the Supreme

Court in case of Lieutenant Colonel Vijaynath Jha (supra) on behalf of

the petitioner is concerned, the same would not applicable to the facts of

the present case. In the said case, the the appellant was commissioned in

the Indian Army on 11.03.1989 in the Engineering Discipline. The

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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

Indigenisation 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, Ministry of Defence, Department of Defence Production by an

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. Before the Armed Forces Tribunal, a preliminary

objection was raised by the respondent that the relief claimed by the

applicant in the O.A. is not maintainable before the Armed Forces

Tribunal. The Armed Forces Tribunal heard the parties on the above

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preliminary objection and vide order dated 23.08.2012 held the O.A. to be

not maintainable. The Armed Forces Tribunal upheld the objection in the

following terms as quoted by the Supreme Court in paragraph 4 of the

said decision :-

"16.The applicant's main grievance is that he was not considered for permanent secondment, 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."

In such context, Supreme Court considering the position of law

upheld the order passed by the learned Tribunal that it had no jurisdiction.

We wonder as to how this decision in any manner would assist the

petitioner in the present facts.

17. Insofar as the reliance placed by the petitioner on the decision

of the Tribunal in case of Lt. Co. R.K. Purohit (supra) is concerned, we

would not accept such decision of the Central Administrative Tribunal to

be a decision deciding an issue of jurisdiction. This decision would

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certainly not dissuade us to take a different view that what we have

observed above.

18. We may also observe that merely because the petitioner was

posted on deputation with the Armed Forces Tribunal, it would not in any

manner obliterate or extinguish his basic employment as a member of the

armed forces. The appointment on deputation in the present case, would

certainly not amount to a change being brought about in the employer of

the petitioner. The basic employment of the petitioner and all conditions

of service attached to his employment as a member of armed forces have

continued to operate. The petitioner is, therefore, not correct in assuming

that his employment with the armed forces has come to an end the

moment he accepted appointment on deputation and the armed forces

tribunal has become his new employer.

19. In the above circumstances, we are certain that the Tribunal

has rightly held that it has no jurisdiction to entertain the petitioner's

original application. The petition is without merit. It is summarily

rejected. No costs.

       JITENDRA JAIN, J.                    G. S. KULKARNI, J.