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The Technical Assessment Reports of an Army not be considered for Permanent Secondment in the

UNION OF INDIA & ORS.VS. LT.COL. SAMEER SINGH., CIVIL APPEAL NO(S). 9143 / 2019 @ SPECIAL LEAVE PETITION (CIVIL) NO(S). 25611 OF 2018. – 2 December 2019.

The bench encompassing Justice Deepak Gupta and Justice Aniruddha Bose collectively pronounced judgment on the clear language of office memorandum pertaining to Technical Assessment Reports (TAR) of an Army officer. The respondent while holding the post of Lt. Colonel in the Indian Army, he was posted in the Directorate General Quality Assurance (DGQA). After completion of two years of service in the Collectorate of Quality Assurance, he fell in the zone of consideration of Permanent Secondment but he case was not recommended for the same. He made enquiries and came to know that in the TAR for the year 2014­15, he was declared ‘NOT YET FIT’ for Permanent Secondment in DGQA. Subsequently he was declared the same in the next year. Thereafter, he was reverted to the Indian Army. Aggrieved by the action, he filed a writ petition in the Delhi High Court contending that he fulfilled the requirements of Office Memorandum dated 12.05.2011 and yet he was declared “NOT YET FIT”. The Delhi High Court allowed the writ petition and held that the TARs could not be taken into consideration.

Thereby, it lead to the present appeal in the Hon’ble Supreme Court. Mr. A.N.S. Nadkarni, ASG assisted by Ms. Aakansha Kaul, learned counsel appeared on behalf of the appellants. Ms. Arati Mahajan, learned counsel appeared on behalf of the respondent. The appellants argued that 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. It was submitted that the TARs of every Military officer who had been granted Permanent Secondment in DGQA were taken into consideration. They further contented that the employer could apply any criteria which it deemed fit and it was not for the employee to suggest what criteria should be made applicable. On the other hand, Ms. Mahajan, submitted that a reading of the office memorandum dated 12.05.2011 squarely indicated that only the criteria mentioned therein could be taken into consideration and none else. Further, they contended that clause 4 of the office memorandum superseded all previous instructions/guidelines issued on the subject and that also included the guidelines of 08.04.2004.

After a deep deliberation, the Hon’ble Supreme Court was of the opinion that:

  1. As per the office memorandum of 08.04.2004, the consideration for Permanent Secondment to the DGQA was based on the TARs. There were four portions.

  2. 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.

  3. They did not agree with the submission 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.

  4. The office memorandum of 2011 is broader than the office memorandum of 2004 and the office memorandum of 2011 which was later in time specifically superseded all previous instructions/guidelines issued on the subject.

  5. 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 would not be re­considered in subsequent QASBs.

  6. 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.

  7. One of the mistakes pointed out was that it had not been indicated in the TAR whether the officer was FIT/NOT FIT/NOT YET FIT, for Permanent Secondment in DGQA.

  8. It was true that this letter emphasized the importance of the TAR but in view of the clear language of office memorandum dated 12.05.2011; the same cannot be taken into consideration.

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.

The Court then pronounced the following:

“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. 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.”

Jumanah Kader

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