LT. COL. VIJAYNATH JHA v. UNION OF INDIA & Ors.

Judgment

560 SUPREME COURT REPORTS [2018] 4 S.C.R. 560 [2018] 4 S.C.R. A B C D E F G H LT. COL. VIJAYNATH JHA v. UNION OF INDIA & ORS. (Civil Appeal No. 2020 of 2013) MAY 18, 2018 [A. K. SIKRI AND ASHOK BHUSHAN, JJ.] Armed Forces Tribunal Act, 2007 : s. 3(o) – Commissioned Officer (appellant) in Indian Army – Inducted in an organization (DGQA) functioning under Ministry of Defence – Refusal of permanent secondment to the appellant in DGQA – Refusal order challenged before Armed Forces Tribunal – Dismissed as not maintainable – On appeal, held: Enumerations under s. 3(o) indicate that they all relate to matters relating to conditions of service pertaining to the conditions of service of persons subject to Army Act, Navy Act and Air Force Act – Impugned order before the Tribunal was by a different organization – Therefore, cannot be held to be service matter within the meaning of s. 3(o) – ss. 27 and 33 of Army Act are also not applicable in the present case – Army Act, 1950 – ss. 27 and 33 – Navy Act, 1957 – Air Force Act, 1950. Dismissing the appeal, the Court HELD: 1. The Armed Forces Tribunal Act, 2007 has been enacted to provide for the 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. [Para 12] [566-A-B]

#2. The definition of service matters is an inclusive definition. A look into the enumerations as contained in Section 3(o) of 2007 Act indicates that they all relate to matters relating to the conditions of the service of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950. Last enumeration, i.e., (iv) of s. 3(o) is “any other matter whatsoever”, at first blush; it appears that the said enumeration is very wide 560 LT. COL. VIJAYNATH JHA v. UNION OF INDIA & ORS. 561 which may cover all other residual categories. But, the phrase “any other matter whatsoever” is to take colour from the other three enumerations and the main provision of Section 3(o). The pre-condition of a matter to be a service mater has to be relating to the conditions of their service. Thus, for a matter to be treated as a service matter, it must relate to the conditions of their service. [Para 14][567-C-E]

#3. From the facts, it is clear that the appellant was given a tenure of two years in Directorate General of Quality Assurance (DGQA) in accordance with the guidelines issued by the Ministry of Defence, Department of Defence Production. After completion of tenure of two years, the appellant returned back to the Army. On 06.06.2007, the appellant’s claim for permanent secondment in the DGQA was considered by the Quality Assurance Selection Board (QASB), wherein he was not found fit for the permanent secondment by the QASB, with regard to which a complaint was filed, which w as rejected by the Ministry. DGQA is an Organisation functioning under the Ministry of Defence, Department of Defence Production and the question of permanent secondment of an Army Officer was considered by the Selection Board of DGQA. The decision not to grant permanent secondment to the appellant in DGQA does not in any manner affect the service conditions of the appellant as Commissioned Officer. [Para 15][567-F-H; 568-A]

#4. In the present case, the action, which was impugned before the Armed Forces Tribunal was the refusal of permanent secondment of the appellant in DGQA by QASB. For permanent secondment of a Commission Officer, there were orders issued by the Ministry of Defence, which regulated the permanent secondment, i.e. Government Order dated 28.10.1978, as amended from time to time and the Government of India O.M. dated 22.12.1993. Non-selection of the appellant which was impugned in the application was by a different organisation, i.e., by QASB of DGQA. Therefore, action impugned before the Tribunal cannot be held to be service matter within the meaning of Section 3(o) of the Armed Forces Tribunal Act, 2007. [Paras 22, 23][573-C-E] A B C D E F G H 562 SUPREME COURT REPORTS [2018] 4 S.C.R.

#5. In the present case, Section 27 has no application. Section 27 of the Army Act, 1950 provides a remedy to aggrieved officers to submit a complaint to the Central Government, if he has been wronged by a commanding officer or any superior officer. Present is not a case where any action of commanding officer or any superior officer of appellant was complained or questioned. [Para 25][574-B]

#6. Section 33 of the Army Act, provides for “saving of rights and privileges under other laws”. The said provision indicates that the provision saves the rights and privileges conferred on persons subject to Army Act, by any other law for the time being in force.” Section 33 has no application in facts of the present case. Present is not a case where the appellant is claiming any privilege conferred on persons subject to Army Act or by any other law in force. [Paras 26, 27][574-C, F]