OA 1481 of 2012 Brig (Retd) NJS Sidhu A
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1 OA 1481 of 2012 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 1481 of 2012 Brig (Retd) NJS Sidhu …… Applicant Vs Union of India and others …… Respondent(s) -.- For the Petitioner (s) Mr. Navdeep Singh,Advocate For the Respondent(s) Mr Gurpreet Singh, Sr PC Coram: Justice Surinder Singh Thakur, Judicial Member. Lt Gen DS Sidhu (Retd), Administrative Member. -.- ORDER 15.12.2015 -.- By means of the present Application preferred under Section 14 of the Armed Forces Tribunal Act, 2007 (in short „the Act‟) the Applicant craves the indulgence of this Tribunal precisely to test the veracity, technical soundness and the correctness of the Special Review (Fresh) No. 1 Selection Board held on 7.1.2011 pursuant to the Army Head Quarter Noting PC No. A/47052/SB/GC/MS(X) and PC No. A/ 47053/ISB ac-1/MS X) dated 31.1.10211. It is further prayed that in case Special Review (Fresh) No. 1 Selection Board held on 7.1.2011 is found technically invalid, in that event the Applicant being the only seniormost eligible officer be promoted to the rank of Maj Gen to a vacancy existing in the year 2002 to the rank of Maj General in Army Aviation Corps (permanent cadre). A. BACKGROUND FACTS 2. The Applicant was commissioned in the Indian Army on June 23, 1968 in the rank of second Lieutenant, but seniority in Army was 2 OA 1481 of 2012 refixed w.e.f. August 21,1969. Thus for the purpose of promotion, he became an officer of 1969 Batch. 3. The Govt. of India, Ministry of Defence, had sanctioned formation of nucleus Addl. Directorate General Army Aviation at Army Head Quarters, by order dated 29th October, 1986. 4. The selection grade vacancies including the post of Major General were to be from within the sanctioned cadre of the Army and were to remain unfilled for a period of one year till the post of Additional Director General Army Aviation was sanctioned by the Government of India. 5. The Chief of the Army Staff approved the establishment of permanent cadre of officers as per terms and conditions set out, therein, for the Army Aviation Corps by an order dated April 17, 1997. As a consequence, thereof on September 1, 1997 a letter was issued by Army Headquarters seeking application from volunteers for transfer to Army Aviation. In May, 1997, the Applicant was already promoted to the rank of Brigadier in the Artillery Regiment. 6. On 14.12.1997, the Applicant had voluntarily applied for permanent transfer from the „Regiment of Artillery‟ to „Army Aviation Corps‟ vide communication dated November 6, 1998. The transfer of the Applicant to Army Aviation Corps was approved with immediate effect by the Army Headquarters. In the year 1997-1999, the Applicant had commanded 37/3 (1) Artillery Brigade in the Regiment of Artillery. He had assumed appointment of Brigadier 3 OA 1481 of 2012 (Aviation) HQ Western, Command at Chandimandir on 24th June, 1999. B. REMEDIES EXHAUSTED 7. The Applicant BEING SENIORMOST, had submitted a non statutory complaint ON December 22, 2001 for promotion to the rank of Maj Genl, when it was not decided he filed CWP No. 6558 of 2002 wherein the Hon‟ble Division Bench of the Punjab and Haryana High Court on 29.4.2002 directed the respondents to consider the case of the Applicant and pass appropriate orders. But thereafter his statutory complaint was rejected on 10.6.2002 giving rise to the filing of another petition i.e. CWP No. 10037 of 2002 in the High Court of Punjab and Haryana, claiming that he being the senior most Brig in the Army Aviation Corps was entitled to be considered for promotion to the post of Major Gen in the same corps and the respondents cannot bring officers from other corps to head the Aviation Corps. which was resisted and contested by the respondents on various grounds, inter- alia also that the Army Aviation Corps was not authorised to fill up the post of Major General and the Applicant had the choice to revert back to his parent cadre of Artillery where he would be considered as and when his batch mates of 1968 are considered for promotion to the rank of Major General. 8. While dealing with the contentions raised by the respondents, the High Court before evaluating the points raised had noted the following facts which were not disputed: “ There is no dispute to the fact that petitioner has a reasonably good service profile and has been awarded various distinctions as noticed in 4 OA 1481 of 2012 the judgement above. He had been promoted upon selection to the rank of Brigadier in the corps of Artillery in the year 1997. Applications for conversion to Army Aviation Corps were invited by the respondents in response to which the petitioner submitted application on 14.12.1997. The petitioner was permanently converted to the Army Aviation Corps on 16.11.1998. We may noticed that before the petitioner was permitted to convert his Corps from Artillery to Aviation, he was required to exercise his option only in terms of the letter issued by the Military Secretary Branch Army Head Quarters dated 28.5.1977. The condition precedent specified in this letter related to career progression which in turn included induction and criteria appointments. The relevant clause reads as under: Career Progression 4, Induction. Initial induction into Avn Corps will be on voluntary basis with an irrevocable one time option i.e. an officer will have no option to revert to his parent Arm after induction. The detail O Rs for this will be worked out in consultation with ADG Avn by MS Br. Eligible cases will be screened by No. 2 SB along with other IAST cases. Criteria Appointments. Aviation officers will be groomed in stipulated criteria appointments. Due career protection will be given to those posted in ‘hi-tech’ appointments like test pilots. The criteria appointments are as follows: (a) Major IR Pilots (b) Col. Aviation Sqn Cdrs. (c )Brigs. Brig Aviation staff On the basis of the above clear mandate, the petitioner had applied for conversion to the Aviation Corps on permanent basis. The petitioner obviously considering various aspects including the chances of future promotion in the Aviation Corps came out of his permanent corps. At that time the fate of the post of Major General in the Aviation Corps was still to be decided. The process of exercising an option was irreversible one and the officer was left with no option to revert back to his parent Corps. The parties were given an option, but the option once exercised could not be altered.” After deliberating upon the rival contentions and the law on the point, the Hon‟ble High Court while allowing the writ petition vide its judgement dated 10.10.2002 issued the following directions;- “ In view of our discussion afore stated we are of the considered view that the petitioner is entitled to be considered for promotion to the rank of Major General in accordance with the rules and on his own service profile in the Army Aviation Corps. To state the direction of the Court and avoiding ambiguity we reiterate that it is the right of consideration for which we have granted the relief to the petitioner. His actual promotion would obviously depend upon the respondents. The writ petition is allowed to the above limited extent, leaving the parties to bear their own costs.” (Emphasis ours) 9. Since the Applicant was due to retire on 31.10.2002, as such he filed another CWP No. 17160 of 2002 and also sought interim order 5 OA 1481 of 2012 restraining the respondents from retiring him on 31.10.2002. Vide order dated 31.10.2002, the Hon‟ble Court observed that it will not be appropriate at this stage to injunct the respondents, from retiring the petitioner if the retirement under rules is otherwise due. Therefore, by an interim order a direction was issued to the respondents to consider the case of the petitioner for promotion/ selection to the post of Major General in the Army Aviation Corps forthwith, also keeping in mind Rule 16A of the Army Rules. Such consideration of the petitioner was ordered to be subject to further orders which may be passed by the Court in the pending petition. It was further clarified that retirement of the Applicant, if directed as on 31.10.2002 would not hamper his consideration by the Selection Board and will not be construed in any manner prejudicial to his interest. 10. In the meantime, the respondents had laid a challenge by filing CA No. 80 of 2003 in the Hon‟ble Supreme Court against the earlier judgement/ order passed by the Punjab and Haryana High Court in CWP No. 10037 of 2002 whereby the respondents were directed to consider the case of the petitioner for promotion as aforesaid. 11. The Hon‟ble Supreme Court examined the entire issue and also the service career profile of the Applicant, which was also noted by the High Court in the judgement impugned as quoted supra and reiterated in its judgement, by the Supreme Court while affirming the findings of the High Court observing that the inevitable effect of filling up the post of Major General sanctioned in Army Aviation Corps by bringing Major General from other corps had the adverse effect of marring the chances of promotion of the officers belonging to 6 OA 1481 of 2012 Army Aviation Corps. But, however, after creating a permanent cadre and specifying the post of Major General in the Army Aviation Corps, the respondents were treating the same as an unspecified vacancy to be manned by an officer to be brought from the other corps which was held to be erroneous and not justified at all.