UNION OF INDIA & ORS.versusLT. COL. SAMEER SINGH

414                      [2019]REPORTS
               SUPREME COURT    14 S.C.R. 414             [2019] 14 S.C.R.


A                         UNION OF INDIA & ORS.
                                       v.
                          LT.COL. SAMEER SINGH
                        (Civil Appeal No. 9143 of 2019)
B                            DECEMBER 02, 2019
            [DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
             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
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      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,
D     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
E
      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
F     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
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      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.
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                                      414
    UNION OF INDIA & ORS. v. LT.COL. SAMEER SINGH                      415


      Dismissing the appeal, the Court                                 A
       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           B
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    C
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              D
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]
                                                                       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          F
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            G
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
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416            SUPREME COURT REPORTS                       [2019] 14 S.C.R.


A     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
B
      memorandum dated 12.05.2011, the TAR is the criteria which
      could not have been taken into consideration. [Paras 11-13][420-
      F-H; 421-A-B, E]
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9143
      Of 2019.
C
            From the Judgment and Order dated 16.04.2018 of the High
      Court of Delhi at New Delhi in Writ Petition (Civil) No. 9233 of 2016.
           A.N.S. Nadkarni, ASG, Ms. Aakanksha Kaul, Ms. Rukmini Bobde,
      Manek Singh, Arvind Kumar Sharma, Advs. for the Appellants.
D          Ms. Arati Mahajan, Ms. Malvi Balyan, Ms. Swati, Rakesh K.
      Sharma, Advs. for the Respondent.
            The Judgment of the Court was delivered by
            DEEPAK GUPTA, J.
E           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
F     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
G     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 respondent’s 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
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     UNION OF INDIA & ORS. v. LT.COL. SAMEER SINGH                             417
                  [DEEPAK GUPTA, J.]

recommended since in the TAR for the year 2014-15, it was found that           A
he was ‘NOT YET FIT’ for Permanent Secondment in DGQA. In the
next year, i.e. 2015-16, 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       B
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           C
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        D
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:-
      “Part-II: Assessment by the Reporting Officer
      1. Technical                                                             E
      (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          F
          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                                                                  G
                                                                 Signature
                                  Name of the officer Rank/Designation


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418                SUPREME COURT REPORTS                       [2019] 14 S.C.R.


A           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.
B
                                                                        Signature:
            Part IV: Remarks of DGQA
            1. is fit/not yet fit for Permanent Secondment         in     DGQA
               Organisation
C
            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
D     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
E     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

F           (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
G
                     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.
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     UNION OF INDIA & ORS. v. LT.COL. SAMEER SINGH                            419
                  [DEEPAK GUPTA, J.]

      (v)     Mean value of box grading in 3 Mandatory Qualities              A
              (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-)/                    B
              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.                     C
      (viii) The disciplinary record of the officers should not be adverse.
             Note:
                 xxx              xxx              xxx
      2.         xxx              xxx              xxx                        D
      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     E
              on the subject.
      5.      This issues with the approval of Hon’ble Raksh Mantri.”
       8. It has been urged by Ms. Kaul, that though the second office
memorandum dated 12.05.2011does not refer to the TARs but at the
same time it does not specifically overrule the office memorandum dated       F
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          G
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.

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420             SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A            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
B     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
C     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
D     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
E     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
F     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
G     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.

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     UNION OF INDIA & ORS. v. LT.COL. SAMEER SINGH                                421
                  [DEEPAK GUPTA, J.]

       12. Another fact which has been brought to our notice by                   A
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 re-
considered in subsequent QASBs. In case the appellants wanted to make
TAR a mandatory requirement for fulfilling the eligibility criteria they
                                                                                  B
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                C
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         D
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             E
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            F
any, shall also stand disposed of.


Devika Gujral                                                 Appeal dismissed.

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