Delhi High Court
Lt. Col. Kirti Shintre vs Union Of India And Anr on 8 September, 2021
$~26-28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9633/2021 & C.M.Nos.29776-29777/2021
LT. COL. VANDANA SHARMA ..... Petitioner
Through Mr.Rakesh Kumar, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through Mr.Vijay Joshi with Mr.Sahaj Garg,
Advocates.
+ W.P.(C) 9643/2021 & C.M.Nos.29793-29794/2021
LT. COL. ARCHANA SHUKLA ..... Petitioner
Through Mr.Rakesh Kumar, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through Mr.Rakesh Kumar, CGSC with Col.
S.Prabhu, MS Legal Army.
+ W.P.(C) 9743/2021 & C.M.Nos.30044-30045/2021
LT. COL. KIRTI SHINTRE ..... Petitioner
Through Mr.Rakesh Kumar, Advocate.
versus
UNION OF INDIA AND ANR ..... Respondents
Through Mr.Harish Vaidyanathan Shankar,
CGSC with Ms.S.Bushra Kazim,
Advocate.
% Date of Decision: 08th September, 2021
Signature Not Verified
Digitally Signed
Signing Date:09.09.2021
19:12:23
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
J U D G ME N T
MANMOHAN, J: (Oral)
1. The petitions have been heard by way of video conferencing.
2. Present writ petitions have been filed challenging t he in terim order
dated 27th August 2021 passed by the Armed Forces Tribunal, Principal
Bench, New Delhi [AFT]. Petitioners also seek a direction to the
Respondents not to release the Petitioners from service on 12 th Sept ember,
2021.
3. Learned counsel for the petitioners states that the AFT has by way of
an evasive order rejected the prayer of the petitioners for staying the
operation of release order dated 15th July, 2021 vide wh ich t he pet itioners
have been ordered to be released on 12th September, 2021. He states that the
AFT has fixed the next date of hearing on 27th September, 2021 an d if st ay
on release is not granted by this Court, the petitioners will be released from
service on 12th September, 2021.
4. Learned counsel for the petitioners states t hat t he AFT erred in n ot
appreciating that out of 615 Women Officers, who were considered for
Permanent Commission by Special Selection Board No.5, only fifteen
women officers, who opted for Permanent Commission, h ave secu red less
than 60% marks. He contends that all women officers who could not secure
60% marks, are senior officers, whose first five years of service fell between
the years 1999 and 2005 i.e. when Unit Assessment Card (UAC) Appraisal
System was in force. He states that efficiency of UAC Appraisal Syst em in
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judging an officer for Permanent Commission was su spected even by t h e
respondents and consequently the said appraisal System was dispensed with
vide letter dated 22nd September, 2005 and Annual Confidential Report
(ACR) based appraisal system was introduced. He emphasises that no
women officer, whose ACRs were only taken into account by t h e Special
Selection Board No.5, has secured less than 60% marks. He further
emphasises that fifteen women officers could not secure 60% m arks du e t o
inefficient and defective UAC appraisal System and contends t hat all UAC
affected women officers being in highly disadvantageous position are a
distinct class. He states that all UAC affected women officers are t herefore
entitled to differential treatment and for them benchmark ought t o be m u ch
lower than 60%.
5. Learned counsel for the petitioners also submits that the action of t h e
respondents is violative of the Supreme Court judgment in the case of
Lt. Col. Nitisha & Ors. Vs. Union of India & Ors. dated 25th March , 2021,
wherein it has been held as under:-
"(v) It has been admitted in the counter-affidavit that the
confidential reports, discipline and vigilance reports if any, and
honours and awards as on the 5th or 10th years of service were
considered in the case of the women officers. As a consequence
of this, the qualifications, achievements and performance of
women officers after the 5th or 10th year of service (as the case
may be) have been ignored. At this stage, it is necessary to note
that para 13(b) of AO 18/1988 specifically contemplates the "last
ACR before assessment for PC" being taken into reckoning for grant
of PC. Similarly MoD's Policy Letter dated 24 February 2012
specifically contemplates that in evaluating the overall performance
of the officer, "the average will be worked out for each year as well
as for the entire period of officers' services". Para 4(a) stipulates
thus:
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"(a) QAP: Overall performance of the officer is evaluated
by taking the average of figurative assessment of all
reporting officers other than FTO and HTO. Average will
be worked out for each year as well as for the entire
period of officers service. The latter QAP will be
converted into a proportion of 75 marks." (emphasis
supplied)
In spite of the above clear stipulations, it is now an admitted position
that the distinguished record of the WSSCOs beyond the
5th/10thyear of service has been disregarded. The laurels achieved
by them in the service of the nation after the 5th/10th year of service
have been ignored;"
6. Per contra, learned counsel for the respondents submit that Section 30
of the Armed Forces Tribunal Act, 2007 mandates that no appeal lies against
an interlocutory order of the Tribunal. They also submit t hat t he grou nds
urged in the present writ petitions do not warrant issuance of a writ of
certiorari.
7. Having heard learned counsel for the parties, this Court is of the view
that the benchmark of 60% has been fixed by the Supreme Court in the case
of Lt. Col. Nitisha (supra). Consequently, it is not open either to the AFT or
to this Court to reduce the cut off percentage to below 60% as contended by
the learned counsel for the petitioners.
8. Moreover, despite the shortcomings in UAC Appraisal System bein g
pointed out by some of the petitioners in the case of Lt. Col. Nitisha (supra),
the Supreme Court did not quash the same or direct that it shall not be taken
into account while deciding the overall percentage of the candidates for
permanent commission.
9. This Court cannot lose sight of the fact that many short service
commission officers may have been selected to permanent commission on
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the basis of the marks obtained by them in UAC appraisal system. It cannot
be that, in the interim, the UAC appraisal system is disregarded for
petitioners and taken into account for promoting other candidates.
10. Further, if the UAC appraisal system is to be disregarded for
petitioners for the period 1999-2005, then it is n ot u nderstood as t o wh at
marking system is to replace it in the interregnum.
11. This Court is of the opinion that paragraph 93 (v) referred t o in t h e
judgment Lt. Col. Nitisha (supra) offers no assistance to t he pet itioners as
that is not one of the directions given by the Apex Court.
12. This Court is also in agreement with the AFT and the learned
predecessor Division Bench in WG CDR Nidhi Badhani Vs. Union of India
& Ors., W.P.(C) No.5871/2021 wherein it has been observed t hat if by an
interim order an employee is allowed to continue in service an d t hen if t h e
writ petition is ultimately dismissed, it would tantamount t o u surpation of
public office without any right to the same. However, this Court has no
doubt that the AFT shall try to dispose of the original applications filed by
the petitioners as expeditiously as possible.
13. Accordingly, the present writ petitions along with pending
applications are dismissed.
14. The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the learned counsel through e-mail.
MANMOHAN, J
NAVIN CHAWLA, J
SEPTEMBER, 08, 2021/KA
Signature Not Verified
Digitally Signed
Signing Date:09.09.2021
19:12:23
