Challenge to orders of Armed Forces Tribunal, Principal Bench, New Delhi dismissed: The High Court of Delhi

2 to 5 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 11.06.2021 W.P.(C) 5913 2021 & CM APPL. 18644 46 2021 WG CDR KUSUM THAKURI UNION OF INDIA Through: Ms.Garima Sachdeva Adv. Respondent Petitioner Through: Mr.Satya Ranjan Swain CGSC with Mr.Sahaj Garg GP & Mr.Kautilya Birat Adv. W.P.(C) 5914 2021 & CM APPL. 18647 49 2021 WG CDR SUCHETA UNION OF INDIA Through: Ms.Garima Sachdeva Adv. Respondent Petitioner Through: Mr.Satya Ranjan Swain CGSC with Mr.Sahaj Garg GP & Mr.Kautilya Birat Adv. W.P.(C) 5915 2021 & CM APPL. 18650 52 2021 WG CDR REENA UNION OF INDIA Through: Ms.Garima Sachdeva Adv. Through: Mrs.Bharathi Raju CGSC. Petitioner Respondent W.P.(C) 5916 2021 & CM APPL. 18653 55 2021 WG CDR DARSHANA SONKAR UNION OF INDIA Through: Ms.Garima Sachdeva Adv. Through: Mrs.Bharathi Raju CGSC. Respondent Petitioner HON’BLE MR. JUSTICE NAVIN CHAWLA HON BLE MS. JUSTICE ASHA MENON WP(C) 5913 16 2021 Digitally SignedBy:SHALOO BATRA11.06.2021 21:49:14Signature Not Verified NAVIN CHAWLA J.These petitions have been heard through video conferencing. These petitions have been filed challenging the orders dated 04.06.2021 passed by the learned Armed Forces Tribunal Principal Bench New Delhi in a batch of petitions filed by the petitioners herein refusing grant of interim protection to the petitioners. The petitioners were commissioned as Short Service Commissioned Officers 5913 2021: “(A) Set aside the Policy dated 16.01.2019to the extent that it is unfair and arbitrary in terms of implementation B) Direct Respondents to grant Permanent Commission to the Applicant C) Direct the Respondents to produce WP(C) 5913 16 2021 Digitally SignedBy:SHALOO BATRA11.06.2021 21:49:14Signature Not Verified vacancies with respect to the SSC Officers for the BOO of 2019 2020 and 2021 ” The learned Tribunal by way of the Impugned Orders has refused to grant interim protection to the petitioners which is in challenge before this Court in the present batch of petitions. The learned counsel for the petitioners submits that the petitioners have been unfairly denied the grant of Permanent Commission without assigning any reason for the same. She submits that even if a relief is later granted to the petitioners the petitioners may suffer prejudice in form of seniority and rank. She submits that the learned Tribunal has also erred in placing reliance on the judgment dated 04.06.2021 of this Court in Wg. Cdr. Nidhi Badhani vs. Union of India & Ors. W.P.(C) 5871 2021 inasmuch as in the present case there is no challenge to the HR Policy dated 16.01.2019 of the respondent the only challenge is to the retrospective application thereof to the petitioners. 5. We have considered the submissions made by the learned counsel for the petitioners however find no merit in the same. The prayers made by the petitioners in the O.A.have been reproduced hereinabove. The first prayer is a challenge to the HR Policy dated 16.01.2019 while the third prayer is a challenge to the consideration of the petitioners by the Board of Officers in the years 2019 2020 and 2021. As noted hereinabove the petitioners approached the learned WP(C) 5913 16 2021 Digitally SignedBy:SHALOO BATRA11.06.2021 21:49:14Signature Not Verified Tribunal only on 03.06.2021. The petitioners have also participated in the consideration process for grant of Permanent Commissions in terms of the HR Policy of 2019. Therefore prima facie there appears to be not only considerable delay in filing of the petitions before the learned Tribunal but also the petitioners may be considered as estopped from challenging the retrospective application of the HR Policy of the respondents having participated in the selection process in terms thereof. This Court in Wg. Cdr. Nidhi Badhani had rejected a similar plea of interim protection by observing as under: that by “8. Once the position in law is as aforesaid interim order none can be permitted to occupy a public office and once the balance of convenience is in favour of the respondents and not in favour of the petitioner inasmuch as if ultimately the petitioner succeeds can always be reinstated to the same position no perversity impugned order of AFT. service would 9. The counsel for the petitioner contends that difficulties to the petitioner. However neither are the said difficulties described nor is the counsel for the petitioner on our asking also able to enumerate the same.” In view of the above we find no infirmity in the orders Impugned before us. The petitions are accordingly dismissed making it clear that any observation made by us in the present order will not in WP(C) 5913 16 2021 Digitally SignedBy:SHALOO BATRA11.06.2021 21:49:14Signature Not Verified any manner prejudice either party in the petitions pending before the learned Tribunal. There shall be no order as to costs. JUNE 11 2021 rv ns U. NAVIN CHAWLA J) VACATION JUDGE ASHA MENON J) VACATION JUDGE WP(C) 5913 16 2021 Digitally SignedBy:SHALOO BATRA11.06.2021 21:49:14Signature Not Verified 

Summary: Once the position in law is as aforesaid, i.e. that by interim order none can be permitted to occupy a public office and once the balance of convenience is in favour of the respondents and not in favour of the petitioner, inasmuch as the petitioner if ultimately succeeds can always be reinstated to the same position. Such was the verdict declared in the case of Wg. Cdr. Nidhi Badhani vs. Union of India &amp; Ors., W.P.(C) 5871/2021 while dismissing a similar petition and the particular case also laid the premise for the Delhi High Court to follow in the case of WG CDR Kusum Thakuri and others v. Union Of India [W.P.(C) 5913/2021 &amp; CM APPL. 18644-46/2021]. The case was adjudged by a two judge bench comprising Justice Navin Chawla and Justice Asha Menon on 11th June 2021. The facts of the case are as follows. The petitioners were commissioned as Short Service Commissioned Officers (SSC). The respondent released an HR Policy on January 16, 2019, outlining the requirements for such officers to be considered for a Permanent Commission. The petitioners were considered for Permanent Commission in 2019 and 2020 under the specified policy. They were considered again in 2021, but were judged unfit for the grant of the Permanent Commission on all three occasions. The petitioners petitioned the learned Tribunal on 03.06.2021, expressing common pleas, after being aggrieved by the order dated 24.05.2021 declining to award Permanent Commission. The petitioners’ learned counsel claims that the petitioners’ request for a Permanent Commission was denied unfairly and without explanation. She claims that even if the petitioners are ultimately given relief, they may face bias based on seniority and rank.