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Judgment
Vide our detailed order of even date, we have dismissed the OA No..244/2019 and OA No.775/2017. Faced with this situation, learned counsel for
the applicant makes an oral prayer for grant of leave for impugning the order to the Hon'ble Supreme Court in terms of Section 31(1) of the Armed
Forces Tribunal Act, 2007.
After hearing learned counsel for the applicant and going through our order, in our considered view, there appears to be no point of law much less any
point of law of general public
As the facts and questions of law in both these cases are identical, they are being decided by this common order.
In OA 244/2019 the applicant who joined the Indian Navy on 6th July, 1982 and rose to the rank of Master Chief Petty Officer-II (MCPO) submits
that he was to be released from the Navy on attaining the age of superannuation on 31st July, 2014, in the meanwhile a comprehensive Policy was
issued by the Navy vide letter dated 15th July, 2014, wherein instructions to extend the maximum service permissible in the rank of Sailor by two years
were issued. This Policy was implemented with an aim to make good the shortage of personnel in the Navy. According to Para 4 (c) of the said
Policy letter the following stipulations have been incorporated therein:
“(c) first time applicants for Honorary Commission in the rank of Hon Sub Lt (SD) on 15 Aug 14, who wish to avail the option of extending their
service limit, will be requited to withdraw their application for Honorary Commission. Towards this end, an undertaking (as per Enclosure) is to be
submitted to the Commodore, Bureau of Sailors by 21 July 14. Subsequent consideration of these Sailors for Honorary Commission will be on rendition
of fresh application ia.w. No.25/ 11."" (emphasis supplied)
It is the case of the applicant that he was in an illegal and wrongful manner considered for Honorary Commission held in the year 2013-14 but his
claim was rejected. It is the contention of the applicant that even though his services were extended for two years as per the Policy letter dated 15th
July, 2014, but consideration of his claim for grant of Honorary Commission in the year 2013-14 was not in accordance to the Policy contemplated in
the Integrated Headquarters of Ministry of Defence in the letters dated 4t1July, 2013 and 15th July, 2014. Referring to these letters in detail, learned
counsel for the applicant emphasized that the applicant fulfilled all the criteria laid down in the said Policy letters. He referred to the Cadre Review
Scheme for Sailors as contained in Annexure R-1 collectively, the criteria and guidelines laid down therein, the eligibility criteria, the approach paper,
procedure and various other aspects to submit that the applicant fulfilled all the criteria laid down therein and 2 was eligible for being granted the
Honorary Commission in the year 2013-14 but the respondents in an arbitrary and illegal manner, in violation to all norms laid down in this regard,
rejected his claim and it is tried to be demonstrated before us that this is done in an arbitrary manner by reducing the vacancies of Honorary
Commision to be awarded to MCPO-II. 4. It is said that the respondents in an illegal manner for this particular year concocted the vacancies of
Honorary Commission and instead of calculating the vacancies based on the percentage of sanctioned strength of CPO, MCPO-II and MCPO-I
excluded the strength of CPO who are almost triple or four times of the strength of MCPO-II, MCPO-I. Resultantly, the quota vacancies available to
the applicants were curtailed. It was argued that this action was undertaken by the Navy contrary to the laid down Policy as it could be done only by
the Ministry of Defence and not by the authorities of the force. Referring to the information dated 21d August, 2017 received by the applicant under
the Right .to Information Act, 2005, it was submitted that it was only when the Appellate Authority, Vice Admiral, informed the applicant that the
issue was to be examined by the Competent Authority at the IHQ, MoD (N), the applicant came to know that not only the decision was taken by an
authority not competent to do so but the decision to reduce the vacancies or to work out the vacancies for Honorary Commission was taken in an
arbitrary manner in the particular year in question, this application has been filed and prayers made read as under:
(a) The applicant be granted all consequential benefits by setting aside and quashing the impugned order dated 30.06.2016 and 26.11 .2018 and the
applicant be deemed to have been awarded promotion to the rank of Honorary SLT as on 26.01.2014 or in the alternative as on 26.01.2016.
(b) As a corollary of prayer at para 8(a) above, the respondents be directed to give effect to the award of promotion to the rank of Honorary SLT to
the applicant with effect from 26.01.2014 or 26.01.2016, with all consequential benefits @ 12% interest p.m.
(c) The applicant be granted other relief(s) which this Hon'ble Tribunal may deem appropriate, just and proper in the interest of justice and in the facts
and circumstances of the case.
Learned counsel took us through various documents that are available on record to emphasise the point that the applicant was entitled to be granted
the benefit of Honorary Commission in the year 2013 14 which was denied to him on account of illegal manner in which the vacancies were
calculated and the applicant ousted in an illegal manner in this consideration.
In sum and substance, it is the case of the applicant that he fulfills all the criteria laid down for grant of Honorary Commission. As per the Policy
filed collectively as Annexure R-2 and because of the illegality committed in consideration of his name, he has been denied the said benefit and now
on account of Para 4(c) of the Policy, an objection is raised that the applicant having taken advantage of two years service extension cannot claim this
benefit, i.e., of a Honorary Commission.
Similarly in OA 775/2017 the applicant also claims identical benefits. He was enrolled in the Navy on 2nd July, 1979 in the Medical Branch and rose
to the rank of MCPO. He also was due for release on superannuation on 31st July, 2014 and was granted the benefit of two years service extension
in accordance to the Policy dated 15th July, 2014. He also contends that his claim for grant of Honorary Commission was rejected in the year 2013-14
in the same manner as was done in the case of applicant in OA 244/2019 and he also refers to the same Policy and other material to canvass his
contention.
Mr. Sukhjinder Singh, learned counsel appearing for applicants in both the cases, took us through each and every document available on record and
argued that when the applicants were entitled for grant of Honorary Commission in the year 2013-14, as per the policy, consideration at that point of
time was made in a illegal and arbitrary manner, it was nothing but a fraud played on the applicants by calculating the vacancies contrary to the
requirement of the Policy which fact was brought to the notice of the applicants only when they received the information under the Right to
Information Act about the manner in which the authority had calculated the vacancies. It is stated that when fraud had been committed in denying the
applicants Honorary Commission, merely because they had accepted for extension of service, the benefit, as prayed for in the applications, cannot be
denied on the ground of estoppels or delay contending that promotion even though not a fundamental right but a meaningful and purposeful
consideration as per the requirement of the Rules is required to be made. Learned counsel invited our attention to the following three judgments in the
case of State of Bihar and Ors. Vs. Kameshwar Prasad Singh and Anr. ( JT 2000 (5) 389), State of Kerala and Ors. Vs. K. Frasad and Anr. [ (2007)
7 SCC 140] and Home Secretary, U.R. of Chandigarh and Anr. Vs. Darshit Singh. Grewal and Ors. [(1993) 4 SCC 25] to canvass his contention that
in this case the purposeful consideration as per the Policy would have been to calculate the vacancies available for MCP0- II in accordance to the
stipulations contained in the Policy memorandum marked as Annexure A-2 and other documents, allot the vacancies available to MCPOs to be
promoted as Honorary Commission -at the ratio of 12 for every1000 posts in each category and then calculate the vacancies available for promotion.
In this case for the year in question consideration of the claim of MCPOs was not made as per this requirement, vacancies were allotted improperly
and contrary to the policy as promotion has been denied to the applicants by calculating the vacancies contrary to the Rules and, therefore, based on
the judgments relied upon, it is stated that the applications should be allowed.
9.. That apart, with regard to the delay in approaching the Tribunal, particularly in the case of Jaswant Singh (OA No.775/2017), learned counsel
invited our attention to the principles laid down by the Hon. Supreme Court in the case of State of Bihar and Ors. (supra) in para 2 and 12 of the said
judgment to say that substantial justice to an aggrieved person should be done and it should not be denied to a person merely because there is some
delay. Delay cannot be a ground for denying substantial justice to a deserving person. Accordingly, it is the case of the applicants that as they have
been denied the Honorary Commission contrary to the Policies and Rules, these applications should be allowed and benefit be granted to the
applicants.
The respondents, represented by Mr. Harish Vaidyanathan Shankar, refuted the aforesaid contentions and argued that the applicants have come to
this Tribunal by suppressing material facts. He submitted that even though the applicants' claim is based on the consideration of grant of Honorary
Commission, as contemplated in the Policy contained in Navy Order 25/11 and they have challenged the manner in which the consideration has been
made, but it is the case of the respondents that both the applicants knowing fully well that they would be released on attaining the age of
superannuation approached the Competent Authority in pursuance to the provisions contained in the Policy circular dated 15th July, 2014 and gave
their undertakings strictly in accordance to the requirement of Para 4 (c) of the said Policy. Learned counsel argued that once the applicants got two
years extension of service as per this Policy and when they knew that they are getting the benefit of extension of service for two years because they
are not claiming promotion as Honorary Commission, they cannot now turn around and after taking advantage of the Policy, worked for additional two
years, claim the benefit of promotion as Honorary Commission because if the applicants were promoted as Honorary Commission in the year 2013-14,
they would have never got the benefit of extension of service. They, having got extension of service after agreeing by giving the undertaking, it is
agreed that now the applicants cannot turn around and claim the aforesaid benefit of Honorary Commission. Learned counsel for the respondents took
us through the undertakings given by the applicants and argued that on this ground alone, without going into any other aspect of the matter, the
applications are liable to be rejected. He further argued and pointed out to us by referring to the calculation of vacancies done and demonstrated in the
return, to say that the vacancies were calculated in accordance to the requirement of Rules and there is no illegality in the same.
We have heard learned counsel for the parties and perused the record. It is seen from the record that the Navy has a practice of granting
Honorary Commission to MCPOs I and II on 15th August and 26th January every year and Honorary Commission is granted to the rank of Sub Lt
and Lt respectively. It is only MCPO-II and I who can be granted Honorary Commission, the method for selection and various other aspects dealing
thereto, as already indicated hereinabove, are contained in Navy Order 25/11, Annexure R-1 and according to the applicants they fulfilled all the
criteria laid down therein. However, the fact remains that both the applicants were MCPO-II, they are in category-C of the Policy and they could be
considered only on one occasion in the last six months of their service. The applicant in OA 244/2019 was in the Logistic (A) Branch and was due to
retire on 31st July, 2014 and the applicant in OA 775/2017 was in the Medical Branch and was also due to retire on 31st July, 2014. Both these cases
were considered, as indicated hereinabove, they were not granted the Honorary Commission and the question posed by the applicants in both the
cases are that they were not considered in accordance to the requirement of law and the vacancies were calculated illegally and therefore the
applicants were denied the benefits, the moot question which we are required to answer at the very outset is with regard to the implication of the
Policy dated 15th July, 2014 (Annexure R-4), the import and the effect of Para 4 (c) of the said communication and Para 2 (a) of subsequent Ministry
of Defence letter dated 25th July, 2014. It is only after considering this aspect of the matter that we can proceed in the matter for consideration of the
other grounds.
As detailed hereinabove both the applicants, on attaining the age of superannuation, were due for retirement on 31st July, 2014 and as per the
Navy Order 25/11, just before their retirement, they were considered for grant of Honorary Commission. For reasons, which have come on record,
they •have not been granted the Honorary Commission. According to the applicants, the same is illegal on the grounds canvassed before us. We
will advert to this question, if required, at a subsequent stage. For the present, we are required to address the objection of Mr. Harish V. Shankar,
learned counsel for the respondents, to the effect that once the applicants have taken advantage of extension of service of two years in accordance to
the Policy dated 15th July, 2014, they are not entitled to any further benefit in the matter. He took us to Para 4(c) of the Policy dated 15th July, 2014,
reproduced hereinabove. A perusal of the aforesaid clause would show that a first time applicant seeking Honorary Commission in the rank of Hon
Sub Lt (SD) on 15th August, 2014, who wishes to avail the option of extension of his service in accordance to the Policy dated 15th July, 2014, is, at
the first instance, required to withdraw the application submitted for grant of Honorary Commission and thereafter he has to submit an undertaking, as
per enclosure, to the Commodore Bureau of Sailors by 21st July, 2014. It is clear from the aforesaid narration of facts that this Policy clearly stipulates
that in order to be eligible for consideration for extension of service up to two years, the employee has to withdraw his application for grant of
Honorary Commission, if already submitted, and also to give an undertaking that he will not seek consideration for Honorary Commission and will not
be considered for grant . of such commission. The applicant- Balbir Singh Saini in OA 244/2019 filed an undertaking (R-7) on 25th July, 2014 which
clearly indicated that he was considered for Honorary Commission on 26th January, 2014. Thereafter in Annexure R-7 he goes on to say that ""I
understand that I will not be considered for Honorary Commission again."" It is after giving this undertaking at, R-7 available at page 118 of the Paper
Book that he has been granted the benefit of two years extension of service. Similarly in the communication dated 25th July, 2014 (Annexure R-6) at
page 116 of the Paper Book, it is clearly stipulated as under:
(a) Sailors who have expended their attempts for Honorary Commission (one attempt for MCFO II and two attempts for MCP° I) and have not
been granted the same, can also apply for Re-engagement subject to the pro ViS O that they will not be considered for Honorary Commission again.
From the aforesaid, it is clear that a Sailor who has attempted for Honorary Commission, one attempt in the case of MCPO II, and was not
granted the same can only apply for re-engagement subject to the proviso that he will not be considered for Honorary Commission again. It is in the
backdrop of these two requirements in Para 4(c) of the Policy dated 15t1 July, 2014 and further explained in Policy letter dated 17t1July, 2014 and
Clause 2(a) of Annexure R-6 dated 25th July, 2014, reproduced hereinabove, that the applicant gave the undertaking vide Annexure R-7. Similarly, the
applicant - Jaswant Singh in OA 775/2017 gave a similar certificate as is evident from the documents submitted by him and filed by the respondents at
page 64 (Annexure R-3) of the Paper Book. That apart, in the applications for redressal of their grievances the applicants have clearly stated that they
were considered for grant of Honorary Commission but were not granted the same. In the case of Jaswant Singh in Annexure R-6 dated 20th
February, 2017, he says that he was considered for Honorary Commission to be awarded on 15th August, 2013 and 26th January, 2014 under the then
Policy but he was not awarded the Honorary Commission due to reduction of vacancies which resulted in his being down below in the merit.
However, he 'speaks about of the grant of benefit of Policy dated 15th July, 2014 and then the illegalities committed in the consideration made in the
year 2013-14.
From the aforesaid narration of facts, it is very clear that both the applicants were considered for grant of Honorary Commission just before their
retirement on 31st July, 2014. In the year 2013-14 they were down below in merit and were not granted the Honorary Commission. According to the
applicants this was because of the illegal and arbitrary action of the respondents in calculating the vacancies. It is said that had the vacancies been
calculated c9rrectly, they would have got the Honorary Commission. If this argument of the applicants is accepted and if it is assumed that they were
entitled to and would have been granted the Honorary Commission, then a question arises as to whether they could take advantage of the Policy for
extension of service by two years as well. The applicants cannot blow hot and cold at the same time. They could either claim the benefit of grant of
Honorary Commission or extension of service of two years by giving up their claim for grant of Honorary Commission in accordance to the
requirement of Para 4(c) of the Policy dated 15th July, 2014 subsequently amended or clarified on 25th July, 2014, as detailed herein above. That
being so, once the applicants had given the undertaking and gave up their right for being considered for grant of Honorary Commission and took
advantage of extension of service for two years, they cannot now turn around and seek relief after taking complete benefit of two years of extended
service. Both the applications are filed after 2016 after having taken the benefit of two years service extension in accordance to the law.
In our considered view, this objection of the respondents, in the facts and circumstances of the case, has got force and has to be accepted. The
applicants knew fully well that they had two options; either to challenge the action of the respondents in illegally denying them the benefit of grant of
Honorary Commission or by giving up that claim seek two years extension. The applicants opted for the second with open eyes. Having opted for the
second option they cannot now turn around and seek grant of Honorary Commission, the option which was given up by them while seeking the benefit
of Policy dated 15th July, 2014.
However, at this stage, we may refer to the arguments advanced by the applicants to the effect that a fraud was committed upon them in the year
2013-14 because they were not aware that the vacancies were not calculated properly as a result of which they were denied the benefit of promotion
illegally and this made them to submit to the acceptance of the Policy for extension of service. Their contention is that they came to know about it only
when they got information in the year 2017 under the Right to Information Act, 2005 and that the vacancies were reduced by incompetent authority
and not by the Government, the Competent Authority. We cannot accept this contention now for the simple reason that if the applicants had any
grievance with regard to their Ron consideration or improper consideration in the year 2013-14, they should have made enquiries in the year 2014 itself
as to why they were not considered and granted the Honorary Commission and they should have been promoted. They should have challenged the
same at that point of time. Once by accepting the requirements of the Policy dated 15th July, 2014 and the subsequent amendment to the said Policy,
they undertook and submitted a willingness to give up their claim for promotion as Honorary Commission and sought extension of service of two years,
in our considered view the principle of estoppels would clearly apply in the facts and circumstances of the present case.
Accordingly, finding the objection raised by learned counsel for the respondents to be substantiated by cogent reasons and justification, we uphold
the same and dismiss both the Original Applications. No order as to costs.
With the dismissal of both the Original Applications, all pending MAs also stand disposed of.
Pronounced in open Court on this 13th day of March, 2020.