Telangana High Court
The Union Of India, vs Brig.Vikram Ahooja on 4 April, 2023
Bench: Ujjal Bhuyan, N.Tukaramji
* THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
+ WRIT APPEAL No.423 OF 2021
% Date: 04-04-2023
# Union of India, rep by Secretary, Defence Production,
Ministry of Defence, New Delhi and others
... Appellants
v.
$ Brigadier Vikram Ahooja
... Respondent
! Counsel for the appellants : Mr. R.Sankaranarayanan,
learned Additional Solicitor General of India
Mr. Gadi Praveen Kumar,
learned Deputy Solicitor General of India
^ Counsel for respondent : Mr. B. Adinarayana Rao,
learned Senior Counsel for Mr. T.Srinivas,
learned counsel
< GIST:
HEAD NOTE:
? CASES REFERRED:
1. (2018) 7 SCC 303
2. (1991) 4 SCC 109 : AIR 1991 SC 2010
3. (2017) 3 SCC 740
4. (2014) 7 SCC 303
5. (1999) 7 SCC 207
6. (2010) 4 SCC 290
7. (2011) 7 SCC 789
8. (2022) 6 SCC 105
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
WRIT APPEAL No.423 OF 2021
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. R.Sankaranarayanan, learned Additional
Solicitor General of India (Southern Zone) and Mr. Gadi
Praveen Kumar, learned Deputy Solicitor General of India
for the appellants; and Mr. B.Adinarayana Rao, learned
Senior Counsel for Mr. T.Srinivas, learned counsel
representing the respondent.
2. This intra-court appeal under clause 15 of the Letters
Patent has been preferred by Union of India and others
against the judgment and order dated 14.06.2021 passed
by the learned Single Judge allowing writ petition No.16914
of 2019 filed by the respondent as the writ petitioner.
2.1. Core issue raised in the writ petition and carried
forward in the present appeal relates to claim of the
respondent for promotion from the post of Brigadier to the
post of Major General in the Directorate General of Quality
Assurance.
3. Respondent had filed the related writ petition seeking
a direction to the appellants who were respondents in the
writ petition to conduct review Quality Assurance Selection
Board for considering the candidature of the respondent for
promotion to the rank of Major General with effect from
01.12.2018 and accordingly to revise his pay scale and to
grant him all consequential benefits.
3.1. Case projected by the respondent before the learned
Single Judge was that he was initially appointed as Second
Lieutenant in the Indian Army. It may be mentioned that
respondent is an Engineering Graduate in Electronics.
After several stages of promotions, respondent was
inducted into the establishment of Directorate General of
Quality Assurance which is also under the Ministry of
Defence, Government of India. Though initially posted at
Bangalore, respondent thereafter worked in several stations
in the country. He was posted as Colonel in the Office of
Senior Quality Assurance Establishment (Electronics),
Secunderabad in January, 2009. In the month of
September, 2009 he was promoted to the rank of Brigadier
and posted as Controller in the Quality Assurance
Systems, Secunderabad. According to the respondent,
Directorate General of Quality Assurance has three
separate units in Secunderabad; each unit is headed by an
officer of the rank of Brigadier, who is rotated normally at
intervals of three to five years. Respondent had stated that
he worked in the Directorate General of Quality Assurance
for twenty years with unblemished and outstanding track
record. He was also given additional charge as Additional
Director General, Quality Assurance (R&S), Secunderabad
with effect from 01.07.2018. Respondent became eligible
for promotion to the rank of Major General against
anticipated vacancy as on 01.12.2018.
3.2. Quality Assurance Selection Board was convened on
01.05.2018 to consider cases of eligible Brigadiers for
promotion to the rank of Major General. The said Quality
Assurance Selection Board was convened for considering
five vacancies in the rank of Major General (two regular
vacancies and three anticipated vacancies) as on
01.12.2018.
3.3. Respondent had stated that five officers in the rank of
Brigadiers became eligible for promotion to the rank of
Major General. He was the fifth person in the consideration
zone as per order of seniority. However, Quality Assurance
Selection Board considered only four officers for promotion
excluding the respondent. According to the respondent,
there was no valid reason for the Quality Assurance
Selection Board to exclude him. On the day when the
Quality Assurance Selection Board held its meeting on
01.05.2018, no vigilance enquiry was pending against the
respondent. No decision was also taken by the disciplinary
authority that a departmental proceeding would be
initiated against the respondent.
3.4. Respondent obtained minutes of the meeting of the
Quality Assurance Selection Board dated 01.05.2018 under
the Right to Information Act, 2005. Minutes recorded that
in respect of the respondent, vigilance clearance was
denied by the Adjutant General (Discipline and Vigilance)
i.e., ADG (DV). Quality Assurance Selection Board was
informed that orders were obtained from the competent
authority i.e. Rajya Raksha Mantri to initiate de novo fact
finding inquiry against the respondent. Matter was referred
to the Department of Personnel and Training (DoPT) for
advice. In the circumstances, Quality Assurance Selection
Board decided that one vacancy should be kept unfilled
and that the matter would be reconsidered after receipt of
advice from DoPT and vigilance clearance.
3.5. Aggrieved by the same, respondent filed the related
writ petition seeking the following relief:
... to call for the records pertaining to selection
proceedings of QASB(2) 2018, including the Vigilance
Clearance denied by the second respondent and the
approval given by Hon'ble RRM to initiate de novo FFI
against the petitioner, for promotion to the rank of
Major General and declare the action on the part of
the respondents in ignoring the candidature of the
petitioner in such selection as illegal, arbitrary,
besides violative of principles of natural justice and
consequently direct the respondents to conduct review
QASB (DPC) for considering the candidature of
petitioner for promotion to the rank of Major General
and to promote the petitioner to the rank of Major
General with retrospective effect i.e., 01.12.2018 and
accordingly revise his scale, pay and other benefits
and pay him all other consequential benefits.
3.6. It was contended by the respondent that as on the
date of meeting of the Quality Assurance Selection Board,
no fact finding inquiry or departmental proceeding was
initiated or pending against him. Though respondent had
filed representation in January, 2019 and April, 2019 for
furnishing him a copy of order of the Rajya Raksha Mantri
directing initiation of de novo fact finding inquiry against
the respondent, the same was not furnished to him.
Respondent contended that it was a fit case for holding
review Quality Assurance Selection Board meeting to rectify
the mistake committed earlier by overlooking the case of
the respondent. Reliance was placed on office memoranda
dated 14.09.1992 and 25.10.2004 of DoPT. Procedure
adopted by the Quality Assurance Selection Board was
totally against the guidelines framed by DoPT. Quality
Assurance Selection Board had arbitrarily ignored the case
of the respondent for promotion. Insofar DV ban is
concerned, it is stated that the same is imposed only when
the disciplinary authority comes to a conclusion that prima
facie case is made out against an officer. Admittedly, there
was no case against the respondent at any point of time,
rather respondent has been graded exceptionally well for
the last several years and insofar integrity of the
respondent is concerned, it has been remarked 'beyond
doubt'. Thus performance of the respondent has always
been outstanding. Notwithstanding the same, respondent
was arbitrarily overlooked while considering promotion
from Brigadier to Major General.
4. Appellants who were arrayed as respondents in the
writ proceedings had filed counter affidavit. It was stated
that Ministry of Defence comprises of the following
departments with each department being headed by an
officer of the rank of Secretary to the Government of India:
(1) Department of Defence;
(2) Department of Defence Production;
(3) Department of Defence Research; and
(4) Department of Ex-servicemen Welfare.
4.1. Directorate General of Quality Assurance is an inter-
service organization under the technical and administrative
control of the Department of Defence Production
responsible for carrying out quality assurance of all defence
stores and equipments used by the defence forces.
Directorate General of Quality Assurance comprises of both
civilian officers and service officers drawn from the army.
Service officers are taken on tenure and granted permanent
secondment. Permanent secondment is nothing but
absorption.
4.2. Directorate General of Quality Assurance (DGQA) is
governed by rules and provisions of the Department of
Defence Production, Ministry of Defence as well as by the
Army Act, 1950 and the Army Rules, 1954. Procedure for
intake of service officers on tenure in DGQA and terms of
service in respect of service officers permanently seconded
in DGQA are governed by letter dated 28.10.1978 of
Government of India, Ministry of Defence as amended from
time to time. In terms of paragraph 3(1) of the letter dated
28.10.1978, as amended, Ministry of Defence, Department
of Defence Production is the controlling authority insofar
matters pertaining to promotion and permanent retention
of service officers in DGQA is concerned. The controlling
authority which is advised by the Quality Assurance
Selection Board is formed with the following composition:
Secretary, Defence Production & Supplies : Chairman
Additional Secretary (Defence Supplies) : Member
Joint Secretary (Dealing with DGQA work) : Member
Director General, Quality Assurance : Member
Under Secretary/Deputy Secretary : Secretary
(Dealing with DGQA work)
4.3. That apart, as and when necessary, representative of
the Army Headquarters, MS Branch, preferably of the rank
of Brigadier is co-opted.
4.4. In accordance with the letter dated 28.10.1978,
selection for promotion to acting rank of Lieutenant
Colonel/equivalent and above from amongst permanently
retained officers is made by the Quality Assurance
Selection Board depending upon vacancies and according
to rules of eligibility. The following aspects are taken into
account by the Quality Assurance Selection Board while
assessing suitability of the service officers for grant of
promotion to the acting rank of Major General of the
permanently seconded service officers:
(a) Availability of vacancy;
(b) Minimum service of 20 years as Commissioned
Officer;
(c) Benchmark of 'very good' in all the five
preceding Annual Confidential Reports (ACRs);
(d) Medical category as indicated in Government
of India, Ministry of Defence, Department of
Defence Production office memorandum dated
31.05.1980;
(e) Vigilance clearance from ADG (DV) Adjutant
General's Branch, Integrated Headquarters of
Ministry of Defence (Army) as permanently
seconded service officers are governed by
provisions of the Army Act, 1950 for discipline
and vigilance purpose.
4.5. Prior to convening the meeting of the Quality
Assurance Selection Board on 01.05.2018 wherein
promotion to the acting rank of Major General for five
vacancies of the year 2018 was taken up, all requisite
information, such as, Annual Confidential Reports (ACRs),
medical status, vigilance clearance etc., in respect of
officers falling within the zone of consideration were sought
for from the concerned authorities. Army officers with
DGQA being under the Army Act, 1950 for discipline and
vigilance purpose, discipline and vigilance clearance (DV
clearance) was sought for from ADG (DV) Adjutant
General's Branch, Integrated Headquarters of Ministry of
Defence (Army). DV clearance which is an important and
mandatory requirement before an officer can be considered
for promotion by the Quality Assurance Selection Board
was not accorded to the respondent as intimated vide ADG
(DV) Note dated 08.02.2018.
4.6. In the meeting of Quality Assurance Selection Board
held on 01.05.2018, it was decided that one vacancy
should be kept unfilled and the matter be referred to DoPT
for advice and to be re-considered after receipt of advice
from DoPT and vigilance clearance.
4.7. Advice of DoPT was forwarded to ADG (DV) on
17.09.2018. However, vigilance clearance to the respondent
has not been accorded till date by the Integrated
Headquarters, Ministry of Defence (Army) as there is a case
of Major Financial Accounting Irregularities (MFAI) in
respect of DGQA Community Hall at Secunderabad which
also involves the respondent.
4.8. A fact finding inquiry was convened in accordance
with the directions of Rajya Raksha Mantri to inquire into
the Major Financial Accounting Irregularities in respect of
revenue generated from DGQA Community Hall at
Secunderabad while the respondent was the Controller at
Secunderabad from 18.09.2009 to 20.12.2013 in his
capacity as head of the establishment and patron/ex-officio
chairman of the executive committee of the community
hall. Objective of the fact finding inquiry was to specifically
pinpoint culpability of the officers in the said irregularities.
In accordance with the directions of General Officer
Commanding-in-Chief, respondent was attached to HQ 54
Infantry Division. Be that as it may, appellants admitted
that name of the respondent was within the zone of
consideration for promotion to the rank of Major General
and was accordingly considered by the Quality Assurance
Selection Board in 2018.
4.9. Vigilance clearance to the respondent has not been
accorded till date by the Army Headquarters as the case of
Major Financial Accounting Irregularities is in progress
against the respondent. It is stated that army personnel
temporarily or permanently seconded for duty to civil
departments like DGQA would continue to be governed by
provisions of the Army Act, 1950. On commission of an
offence, such personnel would be tried by the army
authorities. Army officers with DGQA are under Army Act
for discipline and vigilance purpose and therefore,
Discipline and Vigilance Clearance (DV clearance) is sought
for from ADG (DV). DV clearance which is an important
and mandatory requirement before an officer can be
considered for promotion by Quality Assurance Selection
Board was not accorded to the respondent, in fact till date.
It was asserted that no officer junior to the respondent was
granted promotion to the rank of Major General. Therefore,
no injustice was caused to the respondent.
4.10. Case of the respondent would be considered afresh
along with other eligible officers by the Quality Assurance
Selection Board in its forthcoming meeting taking into
account all relevant aspects.
5. Respondent filed reply affidavit reiterating the
contentions made in the writ affidavit. Respondent referred
to letter dated 20.04.2010 of the Additional Director
General (Directorate of Vigilance), Adjutant General's
Branch, Integrated Headquarters of Ministry of Defence
(Army) which lays down the procedure for vigilance
clearance in respect of service officers of the army and the
procedure for vigilance clearance of permanently seconded
service officers of Directorate General of Quality Assurance.
According to the respondent, it is only on imposition of
Discipline and Vigilance (DV) ban, status of the service
officer is frozen with respect to promotion, whereafter
sealed cover procedure is required to be followed. There is
no procedure overlooking a candidate's consideration for
promotion before imposition of DV ban. Respondent has
denied committing any Major Financial Accounting
Irregularity in respect of the community hall at
Secunderabad. It is stated that Major Financial Accounting
Irregularities were raised by the audit authorities in respect
of the establishment and not against any individual.
5.1. Insofar de novo fact finding inquiry is concerned, the
same had not even been convened on the date of meeting of
the Quality Assurance Selection Board. The same,
therefore, could not have had any bearing on the selection
proceedings. In fact, presiding officer of the de novo fact
finding inquiry had faxed a letter dated 09.10.2018 to the
respondent asking for his statement on the functioning of
the community hall at Secunderabad. Respondent had also
contended that stand taken by the appellants that they had
not received any response from the ADG (DV) regarding
vigilance clearance is wholly untenable in as much as in
terms of DoPT letter dated 14.12.2007 in case no response
is received from the cadre controlling authority within a
period of three months, it would be presumed that there is
nothing adverse against the officer. Respondent further
stated that the first fact finding inquiry was cancelled by
the Rajya Raksha Mantri for violation of Rule 180 of the
Army Rules with further direction to conduct de novo fact
finding inquiry. De novo fact finding inquiry was convened
on 23.05.2018, whereas Quality Assurance Selection Board
was convened earlier on 01.05.2018.
5.2. According to the respondent, after 08.02.2018 the
date when ADG (DV) had not accorded vigilance clearance
to the respondent, cadre controlling authority had written
three ACRs or Annual Performance Appraisal Reports
(APARs) of the respondent; in each of the ACRs (or APARs)
respondent's integrity was declared as 'beyond doubt' and
he was declared as an asset to the Directorate General of
Quality Assurance with grades of 9/10 and 9.5/10.
5.3. Respondent has asserted that as on 01.05.2018, no
enquiry was pending or initiated against him. There was no
DV ban against the respondent. Therefore, Quality
Assurance Selection Board could not have ignored the
candidature of the respondent. Every candidate before the
Quality Assurance Selection Board is either fit or unfit for
promotion or in the event there is an inquiry post charge
sheet stage, then proceedings of the Quality Assurance
Selection Board qua such a candidate is kept in sealed
cover.
5.4. Though appellants had contended that DoPT office
memorandum dated 14.09.1992 is not applicable to
permanently seconded service officers of DGQA,
nonetheless according to the appellants they themselves
had sought advice from DoPT.
5.5. Learned Senior Counsel for the respondent had
argued before the learned Single Judge that the first fact
finding inquiry was initiated way back on 20.05.2016. This
inquiry was not confined only against the respondent but
also covered several officers. Fact finding inquiry is just like
a preliminary inquiry. But even that was found to be
vitiated by several anomalies and deficiencies. Rajya
Raksha Mantri had come to the conclusion that findings
recorded by such fact finding inquiry could not be relied
upon for violation of the principles of natural justice. He,
therefore, ordered for de novo fact finding inquiry but the
same was yet to commence. As on date, neither was there
any inquiry against the respondent nor was the respondent
placed under suspension. There was no DV ban against the
respondent as admittedly no charge sheet was issued
against the respondent. Therefore, withholding of vigilance
clearance was arbitrary and wholly unjustified.
6. Learned Additional Solicitor General for the
appellants had contended before the learned Single Judge
that in view of the de novo fact finding inquiry ordered by
the Rajya Raksha Mantri, appellants had rightly declined to
issue vigilance clearance to the respondent. In the absence
of vigilance clearance, case of the respondent could not
have been considered for promotion.
7. After considering the rival pleadings and arguments
of learned counsel for the parties, learned Single Judge
allowed the writ petition vide the judgment and order dated
14.06.2021 by holding as follows:
15. This Court, having considered the rival
submissions made by learned counsel appearing for
both the parties, is of the considered view that though
the Fact Finding Inquiry was pending against the
petitioner since the year 2016, the respondents have
not chosen to impose DV Ban on the petitioner. DV
Ban was imposed only on 12.12.2019. Admittedly, as
on the date of consideration of the case of the
petitioner for promotion to the post of Major General
by the QASB i.e., as on 01.05.2018, no disciplinary
proceedings were pending against the petitioner nor
he was issued any charge sheet. Therefore, the action
of the respondents in not considering the case of the
petitioner for promotion to the post of Major General
and also not giving vigilance clearance by respondent
No.4, even though no disciplinary proceedings or
charge sheet is pending against him as on the date of
consideration of his case for promotion, is an arbitrary
action.
16. In view of the aforesaid discussion, the
writ petition is allowed. The respondents are directed
to consider the case of the petitioner for promotion to
the post of Major General, as admittedly as on the
date of consideration of his case for promotion, neither
any disciplinary proceedings were pending nor any
charge sheet was issued against him and the so called
DV Ban dated 12.12.2019 was imposed after nearly
more than one and half years from the date of actual
consideration of his case by the QASB. It is needless
to say that as per the Policy of DV Ban, if subsequent
proceedings are likely to be initiated against the
petitioner, it is always open for the respondents to
initiate the disciplinary proceedings against him even
in his promoted category of Major General. If the
allegations levelled against the petitioner are proved in
any enquiry, it is always open for the respondents to
impose any stringent punishment against him in
accordance with the Rules.
7.1. Thus according to the learned Single Judge, as on the
date of consideration of the case of the respondent, there
was no disciplinary proceeding pending. Therefore,
withholding of vigilance clearance and consequently not
considering the case of the respondent for promotion is
arbitrary. Accordingly, appellants have been directed to
consider the case of the respondent for promotion to the
post of Major General though it was clarified that if
subsequently proceedings are initiated against the
respondent, it would be open to the appellants to take
action in accordance with law.
8. Hence the appeal.
8.1. A Division Bench of this Court vide the order dated
25.03.2022 had directed the Central Government to file a
detailed affidavit clarifying amongst others as to whether
respondent on his secondment to DGQA had become an
employee of DGQA or not; whether employees of DGQA are
amenable to the jurisdiction of Central Administrative
Tribunal or not; etc.
8.2. In response thereto, appellants had filed an
additional affidavit on 21.04.2022 stating that respondent
is a permanently seconded service officer of DGQA.
However, permanently seconded service officers of DGQA
cannot avail or invoke the jurisdiction of Central
Administrative Tribunal for redressal of grievances
pertaining to their service matters. The affidavit stated that
service matters of such officers which are controlled by the
Ministry of Defence have to be adjudicated through the
High Court. Nonetheless it was also contended that the
proper forum for adjudication of the present case would be
the competent Armed Forces Tribunal.
8.3. In the proceedings held on 24.11.2022, learned
Senior Counsel for the respondent had submitted that
proceeding against the respondent before the General
Court Martial was dropped on 19.08.2022 on account of
being barred by limitation. In view of such submission,
respondent was directed to file an affidavit in this regard.
Meanwhile, liberty was granted to the appellants to take a
decision on the verdict of the General Court Martial.
9. It was thereafter that respondent filed an affidavit on
01.12.2022. It is stated therein that while Quality
Assurance Selection Board held its meeting on 01.05.2018,
de novo fact finding inquiry was convened on 23.05.2018
which, therefore, could not have had any bearing on the
proceedings of the Quality Assurance Selection Board
dated 01.05.2018. De novo fact finding inquiry was
concluded in February, 2019. The General Court Martial
was convened on 14.05.2022 and concluded on
19.08.2022. General Court Martial orally pronounced that
proceedings were barred by limitation of three years under
Section 122 of the Army Act, 1950. During the court
martial proceedings, it transpired that the de novo fact
finding inquiry report was not put up before the Rajya
Raksha Mantri being the disciplinary authority who had
ordered convening of de novo fact finding inquiry finding
fault with the first fact finding inquiry. When this was
questioned by the General Court Martial, neither the
prosecution counsel nor the vigilance cell in-charge of
Directorate General of Quality Assurance who were
summoned as court witness could give any reply as to why
de novo fact finding inquiry report was not put up before
the Rajya Raksha Mantri. General Court Martial also
observed that Director General of the Directorate General
of Quality Assurance did not inform the Integrated
Headquarters of Ministry of Defence, Army Adjutant
General (Discipline and Vigilance) regarding the fact that
the first fact finding inquiry was declared as legally not
tenable by the Rajya Raksha Mantri. In view of above
observations, General Court Martial had dropped the
charges against the respondent.
10. Mr. Sankaranarayanan, learned Additional Solicitor
General of India (Southern Zone) submitted that
Directorate General of Quality Assurance is an
autonomous body operating under the guidance and
supervision of the Ministry of Defence. Its functions relate
to examining the quality of defence related equipments etc.,
which are sensitive responsibilities requiring high
standards of discipline and moral integrity from its officers.
Directorate General of Quality Assurance has on its roll
officers from the civil side and also uniformed officers from
the armed forces who work on temporary or permanent
secondment. He submits that while disciplinary
proceedings of civilian officers are as per the Central Civil
Services (Classification, Control and Appeal) Rules, 1965,
persons who come on secondment from the armed forces
are subject to the provisions of the Army Act, 1950 and
disciplinary proceedings are handled by the armed forces
alone.
10.1. Adverting to the first fact finding inquiry, he submits
that the same was conducted after issuing notice to the
respondent and other affected persons. Statements of
witnesses were recorded. Respondent vide letter dated
23.06.2016 had clarified the queries raised in the first fact
finding inquiry. Thus opportunity was given to the
respondent to submit his case. Vigilance cell forwarded the
report to the Army Headquarters for further action.
Adjutant General's Branch, however, observed that
principles of natural justice akin to Rule 180 of the Army
Rules had not been complied with. Rajya Raksha Mantri
approved de novo inquiry on 09.04.2018. When such a de
novo enquiry is ordered, it starts from the stage where
failure to observe natural justice was noted. In other
words, statements recorded and documents already
provided need not be done all over again. His contention is
that approval of the Rajya Raksha Mantri for de novo
inquiry did not absolve or exonerate the respondent from
the charges, but the inquiry would continue from the stage
where the flaw was noticed. Therefore, de novo inquiry is a
continuation of the first fact finding inquiry and not in
substitution thereof.
10.2. A perusal of the circular dated 22.03.2005 would
make it clear that provisions of the Army Act, 1950 would
apply to all those who are seconded for duty to civil
departments. Whenever there is a misdemeanour allegedly
indulged in by the seconded officer, the civil borrowing
department should conduct a preliminary investigation and
forward the recommendation to the army authority for
necessary disciplinary action. The first step is therefore a
preliminary inquiry which can be a fact finding inquiry and
thereafter army authorities would initiate disciplinary
proceedings.
10.3. Learned Additional Solicitor General has taken the
Court to the relevant documents in the paper book and
submits that on 25.03.2008 Ministry of Defence had
framed recruitment rules for the post of Director General of
Quality Assurance which reiterates that seconded officers
would be subject to the Army Act, 1950; Navy Act, 1957; or
Air Force Act, 1950, as the case may be, and that army
instructions would be applicable to service officers
permanently seconded to Directorate General of Quality
Assurance in service matters, promotions etc. Service
conditions of service officers do not fall within the purview
of DoPT and Union Public Service Commission (UPSC). On
the above basis, he would contend that DoPT circulars are
not applicable to army officers who are seconded to the
Directorate General of Quality Assurance. Therefore, DoPT
circulars would have no application to a service officer who
works on a secondment basis in the Directorate General of
Quality Assurance.
10.4. Learned Additional Solicitor General of India submits
that by communication dated 08.02.2018, the Adjutant
General's Branch had informed that DV clearance for the
respondent could not be accorded. Quality Assurance
Selection Board in its proceedings dated 01.05.2018
resolved that since DV clearance was denied to the
respondent, one vacancy should be kept unfilled and that
the matter relating to promotion of the respondent may be
reconsidered after vigilance clearance. He submits that
affect of denial of DV clearance is that the respondent
could not be considered as on 01.05.2018 as show cause
notice was pending. Second show cause notice was issued
on 02.08.2017 and approval to the second fact finding
inquiry was on 09.04.2018. Therefore, as on 01.05.2018
when the Quality Assurance Selection Board held its
meeting, the foundation for disciplinary proceedings by
army was pending. As such, DV clearance could not be
issued. The reason for not giving DV clearance is just and
valid.
10.5. Continuing with his submissions, learned Additional
Solicitor General submits that a DV ban cannot come into
existence without there being necessary proceedings prior
thereto. A DV ban is issued whenever there is a complaint
against an aspirant for promotion and when such aspirant
is facing charges against him. However, any such charge
has to start with a show cause notice. A show cause notice
in a case of present nature has to be preceded by a fact
finding inquiry which is equivalent to a preliminary
investigation to satisfy the authority that a prima facie case
is seen for the purpose of initiating the show cause notice.
After the show cause notice, DV ban can be imposed in
appropriate circumstances. Clarifying the matter, he
submits that DV clearance and DV ban are two different
aspects. Before a DV ban can be ordered, if necessity arises
to consider the case of a person against whom show cause
notice has been issued, a DV clearance is required. A DV
clearance would be issued, if the authority is satisfied that
the person is not involved in the acts alleged. Therefore, he
submits that fact finding inquiry is the first stage followed
by show cause notice and if required a DV ban and in the
interregnum a DV clearance or denial thereof.
10.6. Adverting to the facts of the present case, he submits
that a show cause notice was issued on 02.08.2017 and
the second fact finding inquiry was approved on
09.04.2018. DV clearance was denied on 08.02.2018. In
this connection, he has referred to the policy of DV ban
dated 20.04.2010. He submits that the second fact finding
inquiry started on 21.12.2018. Adverting to the General
Court Martial proceedings, he submits that those are yet to
be confirmed by the competent army authority under the
Army Act, 1950.
10.7. Finally, learned Additional Solicitor General referred
to Section 14 of the Armed Forces Tribunal Act, 2007.
Adverting to Section 3(o) read with Section 14(2) of the
aforesaid Act, he submits that plea of the respondent that
his promotion has been denied can only be agitated before
the Armed Forces Tribunal. In this connection, he has
sought to distinguish the decision of the Supreme Court in
Lt. Col. Vijaynath Jha v. Union of India1 and submits that in
the said decision Supreme Court did not consider Section
3(o) of the Armed Forces Tribunal Act, 2007, and therefore,
the said decision would not help the case of the
respondent.
10.8. Winding up his submissions, he contends that
learned Single Judge had erred in allowing the writ petition
filed by the respondent and therefore, the judgment and
order of the learned Single Judge dated 14.06.2021 passed
in W.P.No.16914 of 2019 should be set aside.
11. Mr. B.Adinarayana Rao, learned Senior Counsel for
the respondent submits that the crucial date for
consideration in this case is 01.05.2018 when the Quality
Assurance Selection Board considered promotion from
Brigadier to Major General. Case of the respondent was not
considered on the wholly untenable ground that there was
no DV clearance. As on 01.05.2018, there was no
proceeding pending against the respondent. He submits
that while report of the first fact finding inquiry was not
(2018) 7 SCC 303
accepted by the disciplinary authority on the ground that it
was in violation of the principles of natural justice, the de
novo fact finding inquiry which was ordered had not
commenced any proceedings as on 01.05.2018. Fact
finding inquiry is nothing but a preliminary inquiry. On the
basis of a preliminary inquiry, promotion cannot be denied.
But as a matter of fact, there was not even a preliminary
inquiry subsisting as on 01.05.2018.
11.1. Proceeding further, he submits that even the outcome
of the de novo fact finding inquiry is not known till today as
the appellants have not been able to tell as to whether the
same has been placed before the disciplinary authority or
any approval has been obtained thereon. However, the
General Court Martial has declined to take cognizance of
the allegations against the respondent as the same has
become barred by limitation. In the circumstances,
non-consideration of the case of the respondent for
promotion by the Quality Assurance Selection Board in its
meeting held on 01.05.2018 is wholly illegal and was
rightly interdicted by the learned Single Judge.
11.2. Further, Mr. Rao, learned Senior Counsel would
argue that secondment of a service officer into the
Directorate General of Quality Assurance is actually
absorption in the latter. When such an officer becomes a
part of the Directorate General of Quality Assurance, he
would not be subject to the Army Act, 1950 insofar service
matters, such as, promotion etc., are concerned. It would
be governed by the rules and regulations of the DoPT. In
this connection, learned Senior Counsel has referred to a
Division Bench decision of the Delhi High Court in Col.
K.P.Kumar v. Union of India (W.P. (C) No.7500 of 2015, decided
on 23.12.2015). As a matter of fact, the Quality Assurance
Selection Board in its proceeding dated 01.05.2018 itself
decided to refer the matter to DoPT for advice as to whether
the officer against whom fact finding inquiry was being
initiated but no charge sheet had been issued could be
considered for empanelment.
11.3. Learned Senior Counsel for the respondent referred
to the Annual Performance Appraisal Report (APAR) of the
respondent for the period 01.07.2018 to 30.11.2018. The
Director General himself as the reporting officer remarked
that respondent is a very hard working, intelligent and
sincere officer who is professionally very competent.
Besides other qualities, he had demonstrated outstanding
performance during the period under review and is an
asset to the organisation. He submits that if this be the
assessment of the respondent by the highest authority of
the organization, there can be no justifiable reason to deny
the respondent even a consideration for promotion. Such
an action on the part of the appellants is wholly unfair,
arbitrary and unreasonable.
11.4. On a query by the Court, he submits that respondent
is retiring on attaining the age of superannuation in this
year itself. Therefore, the entire endeavour of the appellants
is some how to stall his promotion on one pretext or the
other for reasons other than bona fide and germane.
11.5. As to the contention raised by the learned Additional
Solicitor General that learned Single Judge had erred in
entertaining the writ petition when the subject matter
clearly falls within the domain of the Armed Forces
Tribunal Act, 2007, he submits that such a submission is
to be recorded only to be rejected. When Brigadier Pawan
Kumar Sauntra who incidentally was one of the officers
being part of the first fact finding inquiry was prematurely
retired from service, he had approached the Armed Forces
Tribunal, Regional Bench, Chennai by filing O.A.No.50 of
2021 assailing the said premature retirement. Appellants
who were arrayed as respondents in O.A.No.50 of 2021 had
taken a specific plea therein that permanently retained
service officers in the Directorate General of Quality
Assurance though subject to the Army Act, 1950 for
disciplinary purposes, their service matters are not
amenable to jurisdiction of the Armed Forces Tribunal.
Now the same set of authorities cannot take a contrary
stand. That apart, in Lt. Col. Vijaynath Jha (supra),
application filed by Lieutenant Colonel Vijaynath Jha
before the Armed Forces Tribunal, Regional Bench,
Lucknow was rejected as not being maintainable and was
returned with liberty to file the same before the concerned
authority. It was this order which was assailed before the
Supreme Court. There also, Lieutenant Colonel Vijaynath
Jha was inducted into the Directorate General of Quality
Assurance. However, he was found not fit for permanent
secondment by the Quality Assurance Selection Board.
Armed Forces Tribunal upholding the preliminary objection
raised, held that the application was not maintainable,
Directorate General of Quality Assurance being a separate
organization with its own guidelines for induction,
appointment and promotion. When decision was taken that
Lieutenant Colonel Vijaynath Jha was not to be considered
for permanent secondment, there was no breach in the
Army Act and the Army Rules. Therefore, Armed Forces
Tribunal is not the right forum for adjudication of matters
pertaining to Directorate General of Quality Assurance.
Supreme Court while affirming such conclusion rendered
by the Armed Forces Tribunal further held that Armed
Forces Tribunal can exercise jurisdiction if the action
which is complained of flows from the Army Act, 1950.
Therefore, Mr. Rao would submit that it is not open for the
appellants to argue contrary to the decision of the Supreme
Court and it is very unfortunate. He submits that approach
of the appellants towards the respondent has been very
hostile and discriminatory. Learned Single Judge had
rightly allowed the writ petition of the respondent. There is
no error or infirmity in the view taken by the learned Single
Judge to warrant interference in an appeal filed under
clause 15 of the Letters Patent. Therefore, the appeal
should be dismissed with cost.
11.6. Learned Senior Counsel has referred to the additional
affidavit filed by the appellants on 21.04.2022 and submits
therefrom that appellants themselves have admitted that
while civilian employees serving in the Directorate General
of Quality Assurance are amenable to the jurisdiction of
Central Administrative Tribunal but same is not available
to the permanently seconded service officers. Jurisdiction
of service matters of such officers has not been defined. In
the absence of jurisdiction of Central Administrative
Tribunal, legal recourse of permanently seconded service
officers in service matters though controlled by the
Ministry of Defence continues to be through the High
Courts. He, therefore, contends that what the learned
Additional Solicitor General has argued is contrary to the
pleaded stand of the appellants themselves.
12. Submissions made by learned counsel for the parties
have received the due consideration of the Court.
13. At the outset, it would be essential to highlight the
relevant dates. From the pleadings, materials on record
and arguments of learned counsel for the parties, the
following dates have been found relevant by the Court
having a bearing on the adjudication.
13.1. Respondent was initially appointed in the Indian
Army as Second Lieutenant. Subsequently, he was
inducted into the DGQA where he was permanently
seconded. In course of time, he was promoted to the rank
of Brigadier. He seeks promotion to the rank of Major
General.
13.2. While serving at Secunderabad under DGQA, a fact
finding inquiry was constituted to inquire into certain
financial irregularities noticed in the construction and
maintenance of a community hall. The fact finding inquiry
was constituted on 20.05.2016. It submitted report on
30.08.2016. However, office of Adjutant General did not
accept the report of the fact finding inquiry on the ground
that principles of natural justice akin to Rule 180 of the
Army Rules, 1954 were not followed. Though fact finding
inquiry mentioned the name of the respondent and made
observations against him, his views were not obtained.
Rajya Raksha Mantri also did not approve the fact finding
inquiry report; instead he approved a de novo fact finding
inquiry.
13.3. A show cause notice was issued to the respondent on
12.01.2017 whereafter a second notice along with
additional materials were issued to the respondent on
02.08.2017. Respondent replied to the same.
13.4. Office of Adjutant General declined to grant DV
clearance to the respondent for the purpose of his
consideration for promotion to the rank of Major General
on 08.02.2018.
13.5. Meeting of Quality Assurance Selection Board 2018 to
consider promotion from Brigadier to Major General was
held on 01.05.2018. Case of the respondent though within
the zone of consideration was not considered on the ground
that his DV clearance was declined. While keeping one post
in the rank of Major General vacant, Quality Assurance
Selection Board sought for the advice of DoPT.
13.6. DoPT's advice was forwarded to Adjutant General
(DV) on 17.09.2018. But what was the advice given by
DoPT or the substance thereof has not been mentioned nor
a copy of the advice has been placed on record.
13.7. In the meanwhile, de novo fact finding inquiry was
convened on 23.05.2018. It completed inquiry in February,
2019. Report was forwarded to Rajya Raksha Mantri for
approval on 27.03.2019. There is nothing on record to
show Rajya Raksha Mantri approving the report of the de
novo fact finding inquiry. No decision has been taken
thereon.
13.8. DV ban was imposed on the respondent on
12.12.2019 with effect from 17.06.2019.
13.9. General Court Martial was convened on 14.05.2022
on the allegations pertaining to construction and
maintenance of the community hall at Secunderabad.
However, in the proceedings held on 19.08.2022, General
Court Martial orally dropped the proceedings on the
ground that the same had become time barred. This
decision of the General Court Martial was forwarded to the
Integrated Headquarters on 19.08.2022 but till date no
decision has been taken thereon.
13.10. Date of retirement of respondent on attaining the
age of superannuation is 30.09.2023.
14. Having noted the relevant facts, it would be apposite
to advert to the office memorandum dated 28.10.1978 of
Government of India, Ministry of Defence. It deals with
procedure for intake of service officers in the Inspection
Organisation of the Ministry of Defence and the terms and
conditions of service of those permanently retained. It is
mentioned therein that Ministry of Defence (Department of
Defence Production) would be the controlling authority. It
would be advised on matters concerning promotion and
permanent retention of service officers in the Inspection
Organisation by a Selection Board. While paragraph 4
deals with permanent secondment, paragraph 5(b) deals
with promotion. As per paragraph 5(b)(i)(bb), selection for
promotion to acting ranks of Lieutenant Colonel/equivalent
and above from amongst permanently retained officers
would be made by the Inspection Selection Board in
accordance with vacancies and according to rules of
eligibility as issued by government for service officers and
such other rules made for permanently retained officers
from time to time.
14.1. As per paragraph 5(b)(ii)(c), officers though
permanently seconded would continue to be shown in the
respective service lists, their names would be marked with
an asterisk to indicate permanent secondment. In
exceptional circumstances, a permanently retained officer
may be recalled to parent service with the approval of the
Government of India.
15. Circular dated 22.03.2005 issued by the Additional
Directorate General of Staff Duties, General Staff Branch,
Army Headquarters, says that army personnel temporarily
or permanently seconded for duty to civil departments like
R&D Organisations would continue to be governed by
provisions of the Army Act. On committing an offence, such
personnel would be tried by army authorities irrespective of
their place of posting, organization and type of offence. The
civil borrowing department may conduct a preliminary
investigation into the alleged misdemeanour of army
personnel seconded to it and forward recommendations to
the army authorities for taking necessary disciplinary
action as per provisions of the Army Act, 1950. Such
personnel would be reverted to military duty and attached
to the nearest appropriate army unit for the purpose of
processing disciplinary/administrative action against such
personnel. Once that action is over, army personnel may
again be posted back to the civil department depending
upon the circumstances.
16. Office memorandum dated 25.03.2008 issued by the
Government of India, Ministry of Defence, Department of
Defence Production deals with framing of recruitment rules
for the post of Director General of Quality Assurance. It
says that the issue was deliberated upon in the Ministry of
Defence in consultation with DoPT. For service officers,
Ministry of Defence is the nodal agency in the same
manner as DoPT for civilian government servants. UPSC is
not involved in appointment of service officers at any level
in the Directorate General of Quality Assurance. Service
officers permanently seconded to Directorate General of
Quality Assurance continued to be service officers subject
to the Army Act, 1950 etc. and are subject to recall to
service. Army instructions issued by the Ministry of
Defence and applicable to officers in the services are also
applied to service officers permanently seconded to
Directorate General of Quality Assurance in regard to their
service matters, appointments, promotions etc. Cadre of
service officer permanently seconded to Directorate General
of Quality Assurance remains as service officer; as such,
their conditions of service do not fall within the purview of
DoPT and/or UPSC. Therefore, view was taken that the
post of Director General of Quality Assurance would
remain exclusively reserved for a service officer and that
there may not be a need to frame recruitment rules for the
post of Director General of Quality Assurance.
17. In Col. K.P.Kumar (supra) which was a case dealing
with denial of promotion of service officers not permanently
seconded in the Directorate General of Quality Assurance,
Delhi High Court referred to the office memorandum dated
28.10.1978, more particularly to paragraph 5(b)(i)(bb),
which reads as follows:
5 (b) Promotions
(i) Acting ranks
(aa) xxx xxx xxx
(bb) Selection for promotion to acting ranks of
Lieutenant Colonel/equivalent and above from
amongst permanently retained officers, will be made
by the Inspection Selection Board in accordance with
vacancies and according to rules of eligibility as
issued by government for service officers and such
other rules made for permanently retained officers
from time to time.
17.1. Thus there is a noticeable change in the language of
paragraph 5(b)(i)(bb) of the office memorandum dated
28.10.1978 from what we have discussed in paragraphs 14
and 14.1 above which indicates that the said office
memorandum has undergone certain amendments, which
have however not been placed on record.
18. Be that as it may, we may now advert to the
proceedings of the Quality Assurance Selection Board,
2018 held on 01.05.2018. It considered filling up two
existing vacancies in the rank of Major General and three
anticipated vacancies. Paragraph 2 of the minutes are as
under:
The Board was informed that two vacancies in
the rank of Major General exist and three vacancies
are anticipated during the year 2018 on account of
retirements. The Board was also informed that as per
DOP&T OM No.22011/4/2013-Estt (D) dated 08 May
2017 the vacancy year has been shifted to calendar
year w.e.f. 2018. Confidential reports for 5 preceding
years will be considered as per the guidelines issued
by DOP&T OM dated 08 May 2017. The reckoning
APAR for this year shall be 2015-16, 2014-15, 2013-
14, 2012-13 and 2011-12.
18.1. From the above, it is seen that Quality Assurance
Selection Board was informed that as per DoPT office
memorandum dated 08.05.2017 vacancy year had been
shifted to calendar year with effect from 2018. Confidential
reports for five preceding years would be considered as per
the guidelines issued by DoPT office memorandum dated
08.05.2017. The reckoning APAR for the year 2018 would
be 2015-16, 2014-15, 2013-14, 2012-13 and 2011-12.
Quality Assurance Selection Board as per item No.1
considered promotions to the acting rank of Major General
as per existing and anticipated vacancies of the year 2018
and noted that altogether fifteen officers were in the zone of
consideration. Method of selection was selection-cum-
merit. Officers meeting the required benchmark for
promotion "very good" in all the five preceding APARs were
empanelled for promotion. Out of the fifteen officers
considered, Quality Assurance Selection Board
recommended the following four officers as fit for
promotion to the rank of Major General:
1. R.K.Malhotra
2. Gautam Narayan
3. Mohan Ram
4. Sanjeev Singh
18.2. However, in case of Sanjeev Singh, his case was
placed in medical category to be considered on stabilisation
of his medical category. In respect of the respondent, the
minutes of the meeting dated 01.05.2018 are as follows:
5. In respect of Brig. Vikram Ahooja the
Vigilance clearance has been denied by the AG/DV.
QASB was informed that orders have been obtained
from the competent authority i.e., Hon'ble RRM to
initiate de-novo Fact Finding Inquiry (FFI) against the
officer and the matter is being processed accordingly.
After considering the matter, QASB decided that the
matter be referred to Department of Personnel and
Training (DoP&T) for the advice as to whether the
officer against whom the FFI is being initiated and no
charge sheet has been issued, can be considered for
empanelment. The QASB also decided that one
vacancy may be kept unfilled and matter be
reconsidered after receipt of advice of DoP&T and
Vigilance clearance.
18.3. Thus from the above, it is evident that Quality
Assurance Selection Board was informed that order had
been obtained from the competent authority i.e., Rajya
Raksha Mantri to initiate de novo fact finding inquiry
against the respondent and that the matter was being
processed accordingly. Vigilance clearance had been denied
by Adjutant General/Discipline and Vigilance. After
considering the matter, Quality Assurance Selection Board
decided that the matter be referred to DoPT for advice as to
whether the officer against whom fact finding inquiry is
being initiated but no charge sheet has been issued can be
considered for empanelment. Quality Assurance Selection
Board thereafter decided that one vacancy may be kept
unfilled and the matter be reconsidered after receipt of
advice of DoPT and vigilance clearance.
19. Thus from the above, it is seen that Quality
Assurance Selection Board was guided by DoPT office
memorandum dated 08.05.2017 and in case of the
respondent, it itself made a reference to DoPT for advice as
to whether the officer against whom fact finding inquiry
was being initiated but no charge sheet has been issued
could be considered for promotion.
20. That apart, as already noted above, what was the
advice received from DoPT has not been disclosed by the
appellants, not to speak of placing on record a copy of such
advice. It is in that light that we may advert to DoPT
guidelines pertaining to vigilance clearance for promotion.
Office memorandum of DoPT dated 02.11.2012 contains
instructions pertaining to vigilance clearance for
promotion.
20.1. After a threadbare analysis of the decision of the
Supreme Court in Union of India v. K.V.Jankiraman2, the
office memorandum says that vigilance clearance for
promotion may be denied only in the following three
circumstances:
(1) Government servant under suspension;
(2) Government servant in respect of whom a charge
sheet has been issued and disciplinary
proceedings are pending; and
(1991) 4 SCC 109 : AIR 1991 SC 2010
(3) Government servant in respect of whom
prosecution for a criminal charge is pending.
20.2. Thus, it was clarified that vigilance clearance cannot
be denied on the ground of pending disciplinary/criminal/
court cases against a government servant unless the above
three conditions are fulfilled.
21. Before proceeding ahead, it would also be apposite to
refer to policy of DV ban dated 20.04.2010 circulated by
the Additional Directorate General, Discipline and
Vigilance, Adjutant General's Branch, Integrated
Headquarters of Ministry of Defence (Army).
21.1. Introduction to the policy says that possession and
enjoyment of service rights, benefits and privileges in any
organization, institution or society are always subject to
such reasonable conditions as may be essential to the
functioning, general order and morale of the organization.
Organizational functionaries are therefore competent to
interfere with service benefits and privileges of its members
and impose such reasonable restrictions as are considered
necessary in the organizational interest. However, a duty is
alongside cast upon these functionaries to restore
immediately the service benefits and privileges which have
been withheld/withdrawn temporarily from the officer
concerned once the circumstances are removed, in
conformity with the principles of natural justice. Keeping
the above principles in view, the policy of DV ban attempts
to strike a balance between the career interest of the officer
concerned on the one hand and organizational interest on
the other.
21.2. Paragraph 2 of the policy says that DV ban is
imposed only when the competent disciplinary authority
comes to a conclusion that a prima facie case is made out
against an officer. Such a situation arises as soon as the
competent disciplinary authority applies its mind to the
facts and circumstances of the case and issues directions
for initiation of disciplinary or administrative proceedings
against the officer on the basis of Court of Inquiry
proceedings. Imposition of DV ban, therefore, has its origin
in the decision of the Commander to initiate disciplinary/
administrative action against an officer.
21.3. In case show cause notice has been issued while
conducting Court of Inquiry on the basis of documentary
evidence, then DV ban will be imposed from the date of
issuance of show cause notice by the competent authority.
Paragraph 6 is relevant and says as follows:
6. In cases of officers seconded to
organisations like DGBR, R&D Organizations etc, the
borrowing departments will carry out their preliminary
investigations into the alleged misdemeanour (in
which the seconded officer will be given a chance to
put across his case and defend himself) and forward it
to DV Dte (DV-2) along with their recommendations
for taking action as per the provisions of the Army Act.
This will be investigated through a formal inquiry as
prescribed under the Act and Rules made there under
on comd and cont aspects by SD Dte. The outcome of
the C of I/action under AR 22 (without carrying out a
C of I) will be processed by DV Dte (DV-2) to progress
ban imposition.
21.4. What paragraph 6 says is that in cases of officers
seconded to organizations like Directorate General of
Border Roads, Research and Development organizations
etc, the borrowing departments will carry out their
preliminary investigations into the alleged misdemeanour
in which the seconded officer will be given a chance to put
across his case and defend himself and thereafter forward
it to the discipline and vigilance department along with
their recommendations for taking action as per provisions
of the Army Act, 1950. This will be investigated through a
formal inquiry as prescribed under Army Act and the Army
Rules. Outcome of the Court of Inquiry or action under
Army Rule will be processed by the discipline and vigilance
department to progress ban imposition.
21.5. From the above, it is evident that DV ban is imposed
only when the competent disciplinary authority (in this
case Rajya Raksha Mantri) comes to the conclusion that
prima facie case is made out against the officer. Such
occasion would arise on the basis of Court of Inquiry
proceedings or where show cause notice has been issued
while conducting Court of Inquiry on the basis of
documentary evidence. In cases of officers seconded to
organizations like DGQA, there must be first a preliminary
investigation where the seconded officer will have to be
given a chance to defend himself and thereafter forward it
to the discipline and vigilance department along with the
recommendations of formal proceedings.
21.6. On the basis of the above, there would have to be a
formal inquiry under the Army Act, 1950 and the Rules
made thereunder. Outcome of the Court of Inquiry would
be processed by the discipline and vigilance department to
progress the ban imposition. Therefore, a DV ban cannot
be imposed on a service officer who is on permanent
secondment to DGQA unless the above conditions are
fulfilled.
22. Insofar the respondent is concerned, the first fact
finding inquiry was not accepted because it suffered from
violation of the principles of natural justice. While the
Rajya Raksha Mantri approved de novo fact finding inquiry,
the proceedings thereof have not been approved by the
Rajya Raksha Mantri. Consequently, there has been no
Court of Inquiry or other proceedings against the
respondent under the Army Act, 1950 or the Rules framed
thereunder. Even the General Court Martial proceedings
was closed on the ground that it was beyond the period of
limitation; the said decision of the Court Martial has also
not received the final approval of the competent authority.
Therefore, there is no case made out against the
respondent for imposition of DV ban. Though it is stated
that DV ban was imposed on the respondent on
12.12.2019, the same appears to be highly questionable.
However, since no challenge has been made thereto, we
refrain from expressing any final opinion thereon.
22.1. At this stage we may mention that as per paragraph
16 all cadre controlling authorities must obtain prior DV
clearance from Adjutant General/Discipline and Vigilance
Department before issuing any orders for promotion and
posting of officers including permanently seconded officers
to DRDO, DGQA etc., to sensitive departments, foreign
assignments etc., or while recommending their names for
honours and awards.
23. Be that as it may, there is no provision in the policy
of DV ban dated 20.04.2010 for withholding of DV
clearance. Paragraph 16 alluded to hereinabove cannot be
read as a source of power for withholding prior DV
clearance, that too in the absence of any formal
proceedings or even the preliminary proceedings not being
approved by the competent authority, thus not attaining
any finality. Though learned Additional Solicitor General
had argued that because show cause notice was issued to
the respondent on 12.01.2017 and thereafter on
02.08.2017 DV clearance has been declined, those notices
were in connection with the fact finding inquiry and not in
connection with any disciplinary proceedings by the DGQA
or Court of Inquiry by the army authorities. Those notices
cannot be the basis for withholding vigilance clearance.
Even otherwise, as per DoPT office memorandum dated
02.11.2012, vigilance clearance for the purpose of
promotion can be denied only when the government
servant is under suspension; the government servant in
respect of whom charge sheet has been issued and
disciplinary proceedings are pending; and the government
servant in respect of whom prosecution for a criminal
charge is pending. Therefore, neither under the policy of
DV ban dated 20.04.2010 nor on the basis of office
memorandum of DoPT dated 02.11.2012, withholding of
DV clearance can be justified in as much as on the date
when Quality Assurance Selection Board held its meeting
to consider promotion from Brigadier to Major General
i.e., 01.05.2018 there was neither any disciplinary
proceeding pending against the respondent nor any Court
of Inquiry pending against the respondent. Therefore, in
any view of the matter, withholding of DV clearance and
non-consideration of the case of the respondent for
promotion is wholly unsustainable in law as well as on
facts.
24. Delhi High Court in Col. K.P.Kumar (supra) has held
that DGQA was constituted or set up as an independent
organization under the Ministry of Defence Production with
a specific mandate i.e., dealing with technical matters and
examining the issue of merit substitution in regard to
requirements of armed forces. It is staffed from employees
from various streams - Indian Army, Indian Air Force and
Indian Navy. Besides, it is also manned by other civilian
personnel with engineering or scientific background. The
various disciplines that the 1978 memorandum envisions
are vehicles, engineering, equipment, armament and
stores. Personnel deployed or sent on initial tenure and
later permanently seconded from the Indian Army have to
possess specific qualifications.
24.1. Paragraph 5(b) of the 1978 office memorandum
specifically spelt out the eligibility for promotion i.e.,
through selection. Delhi High Court has observed that
ordinarily DGQA officials after permanent secondment are
not expected to be active armed force personnel. In the
case of Indian Army, provisions of the Army Act, 1950
apply only so far matters of discipline are concerned. With
respect to conditions of service, provisions applicable to
Indian Army officers do not apply. On the other hand,
policies evolved by the Central Government and made
applicable to DGQA are applicable. Thereafter, Delhi High
Court concluded that officers permanently seconded to
DGQA are expected to discharge functions quite differently
from what is expected of Indian Army officers in the normal
line of their duties - even technical and engineering
personnel. They function like their colleagues from other
forces and those drawn from civilian streams in their
technical disciplines with identical objectives that are
expected to be fulfilled by DGQA.
25. Though learned Additional Solicitor General at the
time of argument raised the issue that the writ petition
should not have been entertained by the learned Single
Judge in as much as case of the respondent is required to
be decided by the Armed Forces Tribunal under the Armed
Forces Tribunal Act, 2007, there was no such pleading in
the counter affidavit filed by the appellants to the writ
petition of the respondent. In fact, this issue was also not
argued before the learned Single Judge on behalf of the
appellants. It was only after filing of the writ appeal that a
Division Bench of this Court in its proceedings held on
25.03.2022 directed the Central Government to file a
detailed affidavit as to whether the respondent on his
secondment to DGQA had become an employee of DGQA or
not and whether employees of DGQA are amenable to the
jurisdiction of Central Administrative Tribunal or not
amongst others, that appellants filed an additional affidavit
on 21.04.2022 which has already been adverted to. While
acknowledging that respondent is a permanently seconded
service officer of DGQA, it is however, stated that
permanently seconded service officers of DGQA cannot
avail the jurisdiction of Central Administrative Tribunal.
Therefore, their service matters which are controlled by the
Ministry of Defence have to be adjudicated through the
High Court. However, contrary to the above, it is also
contended that the proper forum for adjudication in this
case would be the Armed Forces Tribunal.
26. The above contention flies on the face of the stand of
the appellants themselves before the Armed Forces
Tribunal, Regional Bench, Chennai in O.A.No.50 of 2021
(Brig. Pawan Kumar Sauntra v. Union of India). Brigadier
Sauntra was also a permanently seconded service officer in
DGQA. In fact, he was one of the members of the first fact
finding inquiry ordered in respect of the community hall at
Secunderabad. He had filed O.A.No.50 of 2021 against his
premature retirement. In that, appellants who were arrayed
as respondents took the stand in paragraph 15 of the reply
statement that promotion and medical criteria are different
from that of the service personnel employed in the Army.
Service matters of permanently retained officers in DGQA
though subject to the Army Act for disciplinary purposes
are not amenable to jurisdiction of the Armed Forces
Tribunal. This reply statement of the appellants in
O.A.No.50 of 2021 has been brought on record by the
respondent vide memo dated 08.02.2022. There is no
objection or clarification by the appellants to the above.
Therefore and having regard to the stand taken by the
appellants themselves in the case of Brigadier Pawan
Kumar Sauntra, it is not open to the appellants to
approbate and reprobate at the same time.
27. This question is also no longer res integra in view of
the decision of the Supreme Court in Lt. Col. Vijaynath Jha
(supra). Though learned Additional Solicitor General tried
to distinguish the above decision of the Supreme Court on
the ground that Supreme Court did not consider Section
3(o)(ii) of the Armed Forces Tribunal Act, 2007, we are not
persuaded to accept such a contention. Armed Forces
Tribunal Act, 2007 has been enacted by the Parliament to
provide for adjudication or trial by Armed Forces Tribunal
of disputes and complaints with respect to commission,
appointments, enrolment and conditions of service in
respect of persons subject to the Army Act, 1950, the Navy
Act, 1957 and the Air Force Act, 1950 and also to provide
for appeals arising out of orders, findings or sentences of
Courts Martial held under the aforesaid three Acts and for
matters connected therewith or incidental thereto.
27.1. It is in this context that the expression "service
matters" has been defined in Section 3(o) of the Armed
Forces Tribunal Act, 2007. Section 3(o)(ii) says that service
matters in relation to persons subject to the Army Act,
1950, the Navy Act, 1957 and the Air Force Act, 1950
would mean all matters relating to the conditions of their
service and include tenure, commission, appointment,
enrolment, probation, confirmation, seniority, training,
promotion etc. As already held by the Delhi High Court,
permanent secondment is in effect permanent absorption.
Therefore, on permanent secondment, respondent has
become an officer in the Directorate General of Quality
Assurance (DGQA). As Delhi High Court has explained, in
case of service personnel from the Indian Army serving in
DGQA, provisions of the Army Act would apply only so far
matters of discipline are concerned. With respect to
conditions of service, provisions applicable to Indian Army
officers would not apply. On the other hand, policies
evolved by Central Government and made applicable to
DGQA would be applicable.
28. In Lt. Col. Vijaynath Jha (supra), appellant Lt. Col.
Vijaynath Jha, an officer of the Indian Army, was inducted
into the DGQA but was not found fit for permanent
secondment. When his complaint was rejected, he filed
original application before the Armed Forces Tribunal,
Regional Bench, Lucknow under the Armed Forces
Tribunal Act, 2007. However, the Armed Forces Tribunal
rejected the original application as not maintainable vide
the order dated 03.08.2012. This came to be challenged by
Lt. Col. Vijaynath Jha before the Supreme Court. Supreme
Court referred to a decision of the Principal Bench of the
Armed Forces Tribunal in S.B.Akali v. Union of India
(T.A.No.125 of 2010), wherein the subject matter was
selection of the applicant in Defence Research and
Development Organization. Objection was raised by the
appellants and others that Armed Forces Tribunal had no
jurisdiction to entertain the matter. Principal Bench of the
Armed Forces Tribunal upheld the said objection. In that
case, it was held that service conditions of service officers
inducted into DGQA including those who are permanently
seconded are governed by the office memorandum dated
28.10.1978 as amended from time to time. Non-selection
was on account of service conditions mentioned in the
office memorandum dated 28.10.1978. Therefore, it was
held that Armed Forces Tribunal would have no
jurisdiction to interfere with the matter.
28.1. Supreme Court also considered its earlier decision in
Mohammed Ansari v. Union of India3. That was a case where
appellant was an assistant executive engineer in Border
Roads Engineering Service. He was not granted non-
functional financial upgradation. His representation in this
regard was turned down. Thereafter, he filed original
application before the Central Administrative Tribunal.
Central Administrative Tribunal decided the issue of
jurisdiction in favour of the appellant holding that it had
jurisdiction to entertain the appeal of the appellant.
Against such decision of the Central Administrative
Tribunal, Union of India filed a revision before the High
Court. High Court framed a question as to whether a
(2017) 3 SCC 740
member of General Reserve Engineering Force (GREF) can
be regarded as member of the armed forces. After referring
to the Armed Forces Tribunal Act, 2007 and the Central
Civil Services (Control, Classification and Appeal) Rules,
1965, High Court held that Central Administrative Tribunal
had no jurisdiction. Only remedy of the appellant was to
file an application under Article 226 of the Constitution of
India. Assailing the decision of the High Court, appellant
Mohammed Ansari filed the civil appeal before the Supreme
Court. In the above context, Supreme Court examined the
question as to whether after coming into force of the Armed
Forces Tribunal Act, 2007, it shall be the Armed Forces
Tribunal which shall deal with the controversy or the High
Court has jurisdiction under Article 226 of the Constitution
of India. Supreme Court referred to its decision in Union of
India v. G.S.Grewal4 and thereafter, observed as follows:
26. The judgment of this Court in Union of
India v. G.S. Grewal [(2014) 7 SCC 303 : (2014) 2 SCC
(L&S) 481] was extensively quoted by this Court and
after quoting para 26 of the judgment, the following
was stated in para 29: [Mohd. Ansari v. Union of India,
(2017) 3 SCC 740 : (2017) 1 SCC (L&S) 761] , SCC p.
755)
(2014) 7 SCC 303
"29. Thus, the Court in G.S. Grewal
case clearly held that merely because the
respondent is subjected to the 1950 Act
would not by itself be sufficient to conclude
that the Tribunal had 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 such a subject-
matter falls within the definition of "service
matter" as contained in Section 3(o) of the
2007 Act."
28.2. Thus, in G.S.Grewal (supra) Supreme Court examined
the contours of the definition of "service matters" as
contained in Section 3(o) of the Armed Forces Tribunal Act,
2007 and thereafter laid down the following proposition in
Mohammed Ansari (supra):
33. The situation insofar as jurisdiction of the
Armed Forces Tribunal (AFT) to hear the appeals
arising out of court martial verdicts qua GREF
personnel, however, appears to stand on a different
footing. It is because the provisions of Chapter VI i.e.
offences, Chapter VII i.e. punishment, Chapter X i.e.
"courts martial", etc. apply with full force, subject to
minor exceptions and modifications here and there, as
applied to GREF. Therefore, the provisions of the 1950
Act dealing with various punishments inflicted by way
of courts martial qua GREF personnel as applied can
be agitated before AFT and AFT shall have jurisdiction
to hear appeals arising out of courts martial verdicts.
There can be no doubt that in respect of said matters
AFT shall have jurisdiction. Denial of jurisdiction to
the said Tribunal would be contrary to the 1950 Act
and the provisions engrafted under the 2007 Act. To
elaborate, right to approach AFT by the personnel of
GREF who are tried by a court martial held under the
very same Act has to be recognised. At the same time,
if the punishment is imposed on GREF personnel by
way of departmental proceedings held under the CCS
(CCA) Rules, 1965 then obviously the same cannot be
agitated before AFT since the penalty in such cases
will not be one under the 1950 Act but will be under
the CCS (CCA) Rules, 1965. The distinction, as the
law exists in the present, has to be done.
34. From the aforesaid, the legal position that
emerges is that AFT shall have jurisdiction (i) to hear
appeals arising out of courts martial verdicts qua
GREF personnel. To this extent alone AFT shall have
jurisdiction. At the same time, if the punishment is
imposed on GREF personnel by way of departmental
proceedings held under the CCS (CCA) Rules, 1965
the same cannot be agitated before AFT; and (ii) AFT
shall have no jurisdiction to hear and decide
grievances of GREF personnel relating to their terms
and conditions of service or alternatively put "service
matters".
28.3. Based on the above, Supreme Court held that Armed
Forces Tribunal can exercise jurisdiction if the action
complained of flows from the Army Act, 1950, e.g., a court
martial verdict given against General Reserve
Engineering Force (GREF) personnel. However, if GREF
personnel had been administratively dealt with under the
Central Civil Services (Classification, Control and Appeal)
Rules, 1965, the same cannot be agitated before the Armed
Forces Tribunal. Finally Supreme Court expressed the view
that Armed Forces Tribunal had committed no error in
holding that application filed by Lt. Col. Vijaynath Jha was
not maintainable before the Armed Forces Tribunal.
29. Therefore, it is clearly evident that objection raised by
learned Additional Solicitor General that the subject matter
of the present appeal should have been agitated before the
Armed Forces Tribunal has no merit at all. The same has
been made and recorded only to be rejected.
30. Ultimately, what is the grievance of the respondent?
He is serving as Brigadier in DGQA on permanent
absorption. He seeks promotion from Brigadier to Major
General. His case for promotion was not considered by the
Quality Assurance Selection Board in the meeting held on
01.05.2018 on the specious ground that vigilance
clearance had been denied to the respondent. We have
already seen that there was no tangible proceeding against
the respondent as on 01.05.2018; there was neither any
disciplinary proceeding pending nor any charge sheet
issued against the respondent. The show cause notices
adverted to by the learned Additional Solicitor General of
India were issued in relation to the fact finding inquiry
which is in the nature of a preliminary inquiry; even that
has not reached any finality. Such a show cause notice
cannot be construed to be one in connection with a formal
disciplinary proceeding and on that basis, DV clearance
could not have been denied to the respondent. In the
circumstances, learned Single Judge was justified in
directing the appellants to consider the case of the
respondent for promotion from Brigadier to Major General.
31. A constitution bench of the Supreme Court in Ajit
Singh (II) v. State of Punjab5, laying emphasis on Articles 14
and 16(1) of the Constitution of India, held that if a person
who satisfies the eligibility and the criteria for promotion
but still is not considered for promotion, then it would be a
clear violation of his fundamental right to be considered for
promotion. It was held that right to be considered for
(1999) 7 SCC 207
promotion is indeed a fundamental right guaranteed under
Article 16(1) of the Constitution of India.
32. In Union of India v. Hemraj Singh Chauhan6, Supreme
Court reiterated the proposition that the right of eligible
employees to be considered for promotion is virtually a part
of their fundamental right guaranteed under Article 16 of
the Constitution of India. The guarantee of fair
consideration in matters of promotion under Article 16
virtually flows from the guarantee of equality under Article
14 of the Constitution of India.
33. Supreme Court in Jagdish Prasad v. State of Rajasthan7
held that governmental action must be fair. Rule of fairness
in government action is an essential feature.
34. Reiterating the above principle, Supreme Court in
Ajay Kumar Shukla v. Arvind Rai8 held that right to be
considered for promotion is a fundamental right.
35. Thus, on the conspectus of facts and law, we find no
error or infirmity in the decision of the learned Single
(2010) 4 SCC 290
(2011) 7 SCC 789
(2022) 6 SCC 105
Judge to warrant interference. On the contrary, a
reasonable view is possible that respondent has been
denied due consideration of his case for promotion from
Brigadier to Major General in DGQA arbitrarily and that he
has not been dealt with in a fair manner. This is more so in
the context of hardly a few months of service left for the
respondent.
36. Consequently and in the light of the above, we decline
to entertain the appeal. Writ appeal is accordingly
dismissed. However, there shall be no order as to cost.
Miscellaneous applications, pending if any, shall
stand dismissed.
______________________________________
UJJAL BHUYAN, CJ
____________________________________
N.TUKARAMJI, J
04.04.2023
Note: LR copy be marked.
(By order)
Pln
