If by an interim order an employee is allowed to continue in service and then if the writ petition is ultimately dismissed, it would tantamount to usurpation of public office without any right to the same : Delhi High Court

26 28 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 9633 2021 & C.M.Nos.29776 29777 2021 LT. COL. VANDANA SHARMA ..... Petitioner Through Mr.Rakesh Kumar Advocate. UNION OF INDIA AND ORS. ..... Respondents Through Mr.Vijay Joshi with Mr.Sahaj Garg W.P.(C) 9643 2021 & C.M.Nos.29793 29794 2021 LT. COL. ARCHANA SHUKLA ..... Petitioner Through Mr.Rakesh Kumar Advocate. UNION OF INDIA AND ORS. ..... Respondents Through Mr.Rakesh Kumar CGSC with Col. S.Prabhu MS Legal Army. W.P.(C) 9743 2021 & C.M.Nos.30044 30045 2021 LT. COL. KIRTI SHINTRE ..... Petitioner Through Mr.Rakesh Kumar Advocate. UNION OF INDIA AND ANR ..... Respondents Through Mr.Harish Vaidyanathan Shankar CGSC with Ms.S.Bushra Kazim Date of Decision: 08th September 2021 WP(C) 9633 2021 & connected CORAM: HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J:The petitions have been heard by way of video conferencing. Present writ petitions have been filed challenging t he in terim order dated 27th August 2021 passed by the Armed Forces Tribunal Principal Bench New Delhi Appraisal System was in force. He states that efficiency of UAC Appraisal Syst em in WP(C) 9633 2021 & connected judging an officer for Permanent Commission was su spected even by t h e respondents and consequently the said appraisal System was dispensed with vide letter dated 22nd September 2005 and Annual Confidential Report ACR) based appraisal system was introduced. He emphasises that no women officer whose ACRs were only taken into account by t h e Special Selection Board No.5 has secured less than 60% marks. He further emphasises that fifteen women officers could not secure 60% m arks du e t o inefficient and defective UAC appraisal System and contends t hat all UAC affected women officers being in highly disadvantageous position are a distinct class. He states that all UAC affected women officers are t herefore entitled to differential treatment and for them benchmark ought t o be m u ch lower than 60%. Learned counsel for the petitioners also submits that the action of t h e respondents is violative of the Supreme Court judgment in the case of Lt. Col. Nitisha & Ors. Vs. Union of India & Ors. dated 25th March 2021 wherein it has been held as under: “(v) It has been admitted in the counter affidavit that the confidential reports discipline and vigilance reports if any and honours and awards as on the 5th or 10th years of service were considered in the case of the women officers. As a consequence of this the qualifications achievements and performance of women officers after the 5th or 10th year of servicehave been ignored. At this stage it is necessary to note that para 13(b) of AO 18 1988 specifically contemplates the “last ACR before assessment for PC” being taken into reckoning for grant of PC. Similarly MoD’s Policy Letter dated 24 February 2012 specifically contemplates that in evaluating the overall performance of the officer “the average will be worked out for each year as well as for the entire period of officers’ services”. Para 4(a) stipulates thus: WP(C) 9633 2021 & connected “(a) QAP: Overall performance of the officer is evaluated by taking the average of figurative assessment of all reporting officers other than FTO and HTO. Average will be worked out for each year as well as for the entire latter QAP will be period of officers service. The converted into a proportion of 75 marks.” the Supreme Court did not quash the same or direct that it shall not be taken into account while deciding the overall percentage of the candidates for permanent commission. This Court cannot lose sight of the fact that many short service commission officers may have been selected to permanent commission on WP(C) 9633 2021 & connected the basis of the marks obtained by them in UAC appraisal system. It cannot be that in the interim the UAC appraisal system is disregarded for petitioners and taken into account for promoting other candidates. 10. Further if the UAC appraisal system is to be disregarded for petitioners for the period 1999 2005 then it is n ot u nderstood as t o wh at marking system is to replace it in the interregnum. 11. This Court is of the opinion that paragraph 93referred t o in t h e judgment Lt. Col. Nitishaoffers no assistance to t he pet itioners as that is not one of the directions given by the Apex Court. 12. This Court is also in agreement with the AFT and the learned predecessor Division Bench in WG CDR Nidhi Badhani Vs. Union of India Ors. W.P.(C) No.5871 2021 wherein it has been observed t hat if by an interim order an employee is allowed to continue in service an d t hen if t h e writ petition is ultimately dismissed it would tantamount t o u surpation of public office without any right to the same. However this Court has no doubt that the AFT shall try to dispose of the original applications filed by the petitioners as expeditiously as possible. Accordingly the present writ petitions along with pending applications are dismissed. 14. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J SEPTEMBER 08 2021 KA NAVIN CHAWLA J WP(C) 9633 2021 & connected 

Summary: Every citizen has the right occupy public office; however, it must be done so only when the that right is rightfully obtained. This was held in the judgment passed by a two-judge bench comprising HON’BLE JUSTICE MR. JUSTICE MANMOHAN and MR. JUSTICE NAVIN CHAWLA, in the matter of LT. COL. KIRTI SHINTRE V. UNION OF INDIA AND ANR [W.P.(C) 9633/2021 &amp; C.M.Nos.29776-29777/2021], dealt with an issue where the petitioner filed a petition challenging the interim order dated 27th August 2021 passed by the Armed Forces Tribunal, Principal Bench, New Delhi [AFT]. Petitioners also seek a direction to the Respondents not to release the Petitioners from service on 12th September, 2021. The counsel for the petitioners stated that the AFT has by way of an evasive order rejected the prayer of the petitioners for staying the operation of release order dated 15th July, 2021 vide which the petitioners have been ordered to be released on 12th September, 2021. He stated that the AFT has fixed the next date of hearing on 27th September, 2021 and if stay on release is not granted by this Court, the petitioners will be released from service on 12th September, 2021. Counsel for the petitioners stated that the AFT erred in not appreciating that out of 615 Women Officers, who were considered for Permanent Commission by Special Selection Board No.5, only fifteen women officers, who opted for Permanent Commission, have secured less than 60% marks. He contends that all women officers who could not secure 60% marks, are senior officers, whose first five years of service fell between the years 1999 and 2005 i.e. when Unit Assessment Card (UAC) Appraisal System was in force. He stated that efficiency of UAC Appraisal System in judging an officer for Permanent Commission was suspected even by the respondents and consequently the said appraisal System was dispensed with vide letter dated 22nd September, 2005 and Annual Confidential Report (ACR) based appraisal system was introduced. He emphasised that no women officer, whose ACRs were only taken into account by the Special Selection Board No.5, has secured less than 60% marks. He further emphasised that fifteen women officers could not secure 60% marks due to inefficient and defective UAC appraisal System and contends that all UAC affected women officers being in highly disadvantageous position are a distinct class. He stated that all UAC affected women officers are therefore entitled to differential treatment and for them benchmark ought to be much lower than 60%.