Armed Forces: Permanent Secondment – Eligibility criteria – Office Memorandum dated 12.05.2011 – Respondent was commissioned in the Indian Army in 1994 – While holding the post of Lt. Colonel in the Indian Army, he was posted in Directorate General Quality Assurance (DGQA) – After completion of two years of service therein, he fell in the zone of consideration of Permanent Secondment – Respondent’s case was considered by the Quality Assurance Selection Board (QASB) held on 17.02.2016, however, he was not recommended for Permanent Secondment as in the Technical Assessment Reports (TAR) for the year 2014-15, he was declared ‘Not Yet Fit’ for permanent secondment in DGQA and for the year 2015-16, in the TAR, he was declared ‘Not Fit’ – Thereafter, he was reverted to the Indian Army – Respondent filed writ petition before 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 – High Court held that TARs are not to be taken into consideration – Whether TARs of an Army officer are to be taken into consideration while considering his case for Permanent Secondment in DGQA after the office memorandum dated 12.05.2011 came into force – Held: Initially, as per Office Memorandum of 8.4.2004, the consideration for Permanent Secondment to the DGQA was based on the TARs – Office Memorandum dated 12.05.2011 does not refer to the TARs – Office Memorandum dated 12.05.2011 clearly lays down that the criteria laid down therein would only apply to all service officers inducted into DGQA – Office Memorandum of 2011 supersedes all previous instructions/guidelines issued on this subject – This also includes the guidelines of 8.4.2004 as there is no exception for the same – No interference with the order of High Court called for. Dismissing the appeal, the Court
HELD: 1. When 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. Clause 3 of the office memorandum 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. 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) earned in DGQA. A minimum grading in the medical category and mandatory qualities have been laid down. It 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, would also include the guidelines of 08.04.2004, because there is no exception for the same. [Para 10][420-B-E]
2. Plea on behalf of the appellants was 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. The plea is not tenable. Office memorandum dated 12.05.2011 is also in the nature executive instruction, issued with the approval of the Raksha Mantri. The authorities who issued the said office memorandum must have been 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. It is further seen 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 re-considered 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. 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, the TAR is the criteria which could not have been taken into consideration. [Paras 11-13][420F-H; 421-A-B, E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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