AFT stays retirement of officer after Defence Ministry fails to comply with order

With a view to deflating the impression that the Armed Forces Tribunal (AFT) is “toothless” in ensuring implementation of its orders, the Principal Bench of the AFT at Delhi has seen it fit to stay the retirement of an officer.

An order to this effect was passed by a Bench headed by AFT Chairperson Justice Virender Singh, in a miscellaneous application filed by Major General VK Singh. The case pertains to the Army’s new promotion policy of Generals, which the AFT in earlier orders described as arbitrary and violative of the principles of natural justice.

The applicant Army officer had earlier filed an execution application seeking that the AFT’s order passed on October 5 this year be implemented by the Union Ministry of Defence.

By the October 5 order, the AFT had directed the Defence Ministry to consider the applicant for promotion to the rank of Lieutenant General in accordance with the same promotion policy as was applied for his batch. If found fit by the Services Selection Board (SSB), the applicant was directed to be promoted to the rank of Lieutenant General. It was also directed that the Board results be declassified “well in time” before November 30, the retirement date of the applicant.

When the matter came up for hearing on November 12, the Ministry sought three weeks’ time to intimate the final decision on the same. As the AFT observed,

“Two weeks or so from the said time have already elapsed and the third week will also lapse by 30.11.2018, which will bring this execution petition at very close to the date for execution of the said order.”

On November 19, the Tribunal was informed that on the instructions of Military Secretary (Legal) Colonel Ajeen Kumar, a final decision was yet to be taken. It was also submitted that the question as to whether the Centre was planning to approach the Supreme Court against the AFT order was under consideration of the Additional Solicitor General. Thus, much to the chagrin of the AFT Bench, additional time was sought for by counsel appearing for the Ministry, Barkha Babbar.

The Centre had earlier sought leave to appeal against the AFT order under Section 31 of the Armed Forces Tribunal Act, but the same was declined on October 29.

In view of the Centre’s failure to implement the October 5 order, counsel for the applicant Giriraj Subramanium contended that as per a conjoint reading of Section 25 of the AFT Act and Section 29 of the AFT (Procedure) Rules, the Bench is empowered to pass orders so as to ensure enforcement of its decree.

After hearing the parties, the Bench noted in its order,

“We find that not only has no preliminary action been initiated to comply with the said order, a perusal of the communication sent by the Ministry of Defence dated 09.11.2018 indicates that the direction given by this Tribunal on 05.10.2018 have also not been complied with.

In fact, the letter indicates that the applicant has been considered by a Selection Board on 13/14.11.2018 in a manner that is entirely in contravention to the order dated 05.10.2018. Furthermore, it also indicates that it is perhaps unlikely that the respondents will be able to either comply with the order or obtain requisite relief from the Hon’ble Supreme Court by the date given in our order i.e. 30.11.2018.”

The Bench observed that it could not take any action against the Centre as per the Contempt of Courts Act, as the question as to whether the AFT could initiate contempt proceedings for wilful disobedience or non-implementation orders was pending consideration by a larger bench.

“However, in the interest of justice, it is imperative not to allow an impression to go across that the Armed Forces Tribunal is totally toothless in getting its order implemented under Section 29 of the Armed Forces Tribunal Act.”

In view of the above, the AFT partly allowed the application, ordering that the applicant will continue to remain in service even after his retirement date, until its October 5 is complied with. If the applicant is considered unfit for promotion, it has been ordered that he refund the salary earned by him after November 30.

Read the order: