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M/s. Uttarakhand Purv Sainikkalyan Nigam Ltd. Vs. Northern Coal Field Ltd. [27/11/19]

Section

Union of India Ors. Vs. Ltd. Col. Sameer Singh

[Civil Appeal No(S). 9143 / 2019 @ SPL (Civil) NoS. 25611 of 2018]

Deepak Gupta, J.

1.Leave
granted.

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

3. Briefly
stated, the facts of the case are that the respondent herein was commissioned
in the Indian Army in 1994. He earned various promotions and while holding the
post of Lt. Colonel in the Indian Army, he was posted in the DGQA. After
completion of two years of service in the Collectorate of Quality Assurance, he
fell in the zone of consideration of Permanent Secondment. His case was
considered by the Quality Assurance Selection Board (QASB for short) held on
17.02.2016.

The
respondents case was not recommended for Permanent Secondment. On finding that
his name has not been recommended, the respondent made enquiries and came to
know that his case has not been recommended since in the TAR for the year
201415, it was found that he was NOT YET FIT for Permanent Secondment in
DGQA. In the next year, i.e. 201516, he was declared NOT FIT in the TAR.
Thereafter, he was reverted to the Indian Army.

4.
Aggrieved by the said action, the respondent filed a writ petition in the Delhi
High Court contending that he fulfilled the requirements of Office Memorandum
dated 12.05.2011 which sets out the criteria to be followed for grant of
Permanent Secondment to service officers of the rank of Lt. Colonel in DGQA.

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

6. We have
heard learned Mr. A.N.S. Nadkarni, ASG assisted by Ms. Aakansha Kaul, learned
counsel for the appellants, and Ms. Arati Mahajan, learned counsel for the
respondent. It would be apposite to refer to the various instructions issued by
the appellants from time to time. Initially, as per the office memorandum of
08.04.2004, the consideration for Permanent Secondment to the DGQA was based on
the TARs, and relevant part of the criteria reads as under:

” PartII: Assessment
by the Reporting Officer

1.
Technical

(a) Nature
of work assigned : to the Reportee

(b)
Aptitude of the Reportee : towards Quality Assurance related work

(c)
Technical Knowledge of the officer and practical ability to apply the
theoretical knowledge

(d) Sense
of dedication and responsibility towards QA work.

(e) Details
of outstanding/notable work done by the reportee, if any

Signature:

Name of the officer Rank/Designation

Part III:
Remarks of the Technical Director

1. Remarks
with reference to specific comments given by the Reporting Officer

2. Fitness
or otherwise for Permanent Secondment in DGQA Organisation.

Signature:

Part IV:
Remarks of DGQA

1. is
fit/not yet fit for Permanent Secondment in DGQA Organisation

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

Signature:

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

7. On
12.05.2011 an office memorandum was issued, the relevant portion of which reads
as follows:”

1. xxx xxx xxx

(i) Offrs
of the rank of Lt Col (Substantive) only will be considered for grant of
Permanent Secondment

(ii)
Officer should have minimum of two years of regular service from the date of
reporting to DGQA organisation before being considered by QASB for grant of
Permanent Secondment.

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

(iv) Mean
value of all box grading for seven years should not be less than 7 including ACRs
earned in DGQA.

(v) Mean
value of box grading in 3 Mandatory Qualities (LOAYLITY, DECISIVENESS DEPENDABILITY)
should not be less than 7 and in respect of INTEGRITY should not be less than
8.

(vi) Should
be in acceptable medical category as stipulated in Appendix A to MOD OM No.67952/Q/DGI(Adm)/ 10412/D(PRODN)
dated 28 Oct 1978 as amended from time to time

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

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

2. xxx xxx xxx

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

4. This
supersedes all previous instructions/guidelines issued on the subject.

5. This
issues with the approval of Honble Raksh Mantri.”

8. It has
been urged by Ms. Kaul, that though the second office memorandum dated
12.05.2011 does not refer to the TARs but at the same time it does not
specifically overrule the office memorandum dated 08.04.2004, and it is
submitted that the said office memorandum has invariably been applied by the appellants
and the TARs of every Military officer who has been granted Permanent
Secondment in DGQA have been taken into consideration. It is further submitted
that the purpose of TAR is different from the Assessment Report and as such
essential to assess the
suitability of the candidate for Permanent Secondment into the DGQA. It is also
submitted that even otherwise
the employer could apply any criteria which it deems fit and it is not for the
employee to suggest what criteria should be made applicable.

9. On the
other hand, Ms. Mahajan, submits that a reading of the office memorandum dated
12.05.2011 squarely indicates that only the criteria mentioned therein could be
taken into consideration and none else.

10. We have
carefully gone through the various instructions and also considered the
averments of the parties. When the office memorandum dated 12.05.2011 is read,
it leaves no manner of doubt that it is only the criteria laid down in this memorandum
which would apply to all service officers inducted into DGQA on tenure basis,
after the issuance of this office memorandum. This is apparent from Clause 3 of
the office memorandum, which clearly mentions this fact and it is also mentioned
that in the interim period, QASBs shall be held as per the policy in vogue. The
earlier policy which was in vogue was the one which took into consideration the
TARs.

The office memorandum
of 12.05.2011 lays down a large number of criteria. It specifically mentions
that the grading for 7 years should not be less than 7, including the Annual
Confidential Reports (ACRs for short) earned in DGQA. A minimum grading in the
medical category and mandatory qualities have been laid down. It has been
specifically mentioned that the officer should have not only undergone the
Basic Quality Management Course at
Bangalore, but should also should have obtained Above Average grading. Clause
4 of this office memorandum mentions that this memorandum supersedes all
previous instructions/guidelines issued on this subject. This, in our opinion,
would also include the guidelines of 08.04.2004, because there is no exception
for the same.

11.It was
urged on behalf of the appellants that the office memorandum dated 08.04.2004
is in the nature of executive instructions approved by the Raksha Mantri, and
continued to apply and cannot be deemed to be superseded. We are not in agreement
with this submission. The office memorandum dated 12.05.2011 is also in the
nature executive instruction, issued with the approval of the Raksha Mantri. We
must assume that the authorities who issued the office memorandum dated 12.05.2011
were aware of the earlier office memorandum of 08.04.2004.
The office memorandum of 2011 is broader than the office memorandum of 2004 and
the office memorandum of 2011 which is later in time specifically supersedes
all previous instructions/guidelines issued on the subject.

12. Another
fact which has been brought to our notice by Ms. Mahajan is that the office
memorandum dated 12.05.2011 was amended on 14.06.2011 and it was specifically
mentioned that the officers rejected in QASB for grant of Permanent Secondment will
not be reconsidered in subsequent QASBs. In case the appellants wanted to make
TAR a mandatory requirement for fulfilling the eligibility criteria they could
have done that by making similar amendment or issuing another office memorandum
in this regard, but that did not happen.

13. On
behalf of the appellants it has been urged that another letter was issued on
14.07.2014, wherein it is noted that the TARs have been initiated by some
officers in a very casual manner. The importance of TAR has been reiterated and
it has been mentioned that this has serious implication on the consideration
and subsequent Permanent Secondment of tenure Colonels to the DGQA
Organisation, and one of the mistakes pointed out is that it has not been
indicated in the TAR whether the officer is FIT/NOT FIT/NOT YET FIT, for
Permanent Secondment in DGQA. It is true
that this letter emphasises the importance of the TAR but in view of the clear
language of office

memorandum
dated 12.05.2011, it still cannot be taken into consideration. It is not clear
as to why in this very letter it could not have been mentioned that TAR should
also be taken into consideration while considering the case for Permanent Secondment.
The TAR may be taken into consideration while grading the officer for the
purposes of ACR but once the ACR is being taken into consideration then in view
of the office memorandum dated 12.05.2011, we have no doubt in our mind that
the TAR is the criteria which could not have been taken into consideration.

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

…………………………..J.
(Deepak Gupta)

…………………………..J.
(Aniruddha Bose)

New Delhi

December
02, 2019

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