Case: UNION OF INDIA Vs. LT. COL. SAMEER SINGH

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 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 recommended since in the TAR for the year 2014-15, it was found that 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 Army4. Aggrieved by the said action, the respondent filed a writ petition in the Delhi 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 DGQA5. The Delhi High Court allowed the writ petition and held that the TARs could not be taken into consideration. Hence this appeal by the Union of India.

Court's reasoning:
10. We have carefully gone through the various instructions and 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 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 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 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 sameWe 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 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 subjectThe 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.