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Judgment
By this writ petition, a challenge is made to the order dated 01st March, 2018 passed, by the Armed Forces Tribunal (for short “the Tribunalâ€),
granting interim relief to the non-petitionerapplicant pending consideration of the Original Application.
The non-petitioner-applicant preferred an Original Application before the Tribunal to seek a direction for promotion to the post of Subedar pursuant to
the order dated 31st January, 2018. The consequential relief apart from interest on pay and allowance was also claimed.
The case set out by the non-petitioner-applicant was that despite an order of promotion dated 31st January, 2018, it has not been given. The Original
Application was filed to seek implementation of the order of promotion dated 31st January, 2018.
The non-applicants-petitioners herein contested the Original Application in reference to a condition imposed in the order of promotion dated 31st
January, 2018. The order of promotion was on certain conditions, which include, that no disciplinary/vigilance/criminal case is pending against the
promotee officer. It is stated that a vigilance case was pending against the non-petitioner-applicant thus he could not have been given promotion.
Learned Tribunal has passed an interim order to direct the petitioners herein to give promotion to the non-petitionerapplicant.
Learned counsel for the petitioners Mr.Anand Sharma submits that interim order under challenge grants final relief to the non-petitioner-applicant,
which is not permissible. In fact, nothing remains now for passing final order hence, on the aforesaid ground itself, impugned order deserves to be set
aside. Learned Tribunal could have considered the matter after hearing the parties and pass the final order of the appropriate nature but could not
have given final relief by interim order.
Learned counsel for the non-petitioner-applicant has contested the petition. It is not only on maintainability of the writ petition but on merit of the case.
It is submitted that challenge to the interim order passed by the Tribunal cannot be made through a writ petition before this Court. A reference of the
judgment of the Supreme Court in the case of Union of India & Ors. Vs. Major General Shri Kant Sharma & Anr. reported in (2015) 6 SCC 773 has
been given, wherein, it is held that only an appeal would be maintainable against the final order of Tribunal and not a writ petition. It is further stated
that the non-petitioner-applicant is entitled to get the benefit of promotion not only for the reason that no disciplinary action is pending against him but
otherwise also mere pendency of disciplinary enquiry cannot debar him to get benefit of promotion. His rights have been affected by not implementing
the order of promotion on the pretext of alleged pendency of disciplinary action, whereas, no enquiry is pending. Learned Tribunal has thus passed an
equitable order in the facts and circumstances of the case hence it may not be interfered. It is moreso when the issue has already been settled by the
Supreme Court in the case of Union of India, etc. etc. Vs. KV Jankiraman, etc. etc., AIR 1991 SC 2010.
We have considered rival submissions made by learned counsel for the parties and perused the record.
We are required to first decide the issue of maintainability of the writ petition against an interim order passed by the Tribunal. It is not in dispute that a
writ petition is not maintainable against final order passed by the Tribunal in view of Section 30(1) of the Armed Forces Tribunal Act, 2007 (for short
“the Act of 2007â€). There, an appeal lies to challenge the final order. The aforesaid has been observed by the Supreme Court in the case of
Major General Shri Kant Sharma & Anr. (supra). The order under challenge is not final order but an interim/interlocutory order passed by the
Tribunal. There is no provision to challenge the interim order. The Section 30(1) of the Act of 2007 does not reveal that even an interim order can be
challenged. The provision further shows that it can be filed only with leave of the Tribunal. It can be granted only on passing of final order and not
against the interim order.
In view of the above, we are unable to accept the preliminary objection raised by learned counsel for the nonpetitioner-applicant regarding
maintainability of the writ petition.
Learned counsel for the petitioners has otherwise referred a judgment of Kerala High Court in the case of Joby Varghese Vs. Armed Forces Tribunal
& Ors., 2010 (4) ILR (Kerala) 564. Para 5 of the said judgment deals with the issue thus is quoted hereunder for ready reference :
“5. So far as interim orders of the Tribunal are concerned, we have already noted the express prohibition against right of appeal under second
proviso to Section 30(1) of the Act. So much so, the only remedy available to aggrieved persons against interim orders of the Tribunal is to approach
the High Court under Article 226 of the Constitution. We are, therefore, of the view that writ is maintainable against interim orders of the Tribunal.â€
So far as merit of the case is concerned, the only argument raised by learned counsel for the petitioners is about nature of the order passed by the
Tribunal.
The perusal of the order shows nothing but a final relief to the non-petitioner-applicant at the interim stage. It would come out from bare perusal of the
relief clause of the Original Application. The relief claimed by the applicant was for his promotion pursuant to the order dated 31st January, 2018. It is
settled law that final relief cannot be granted by way of interim order otherwise nothing remains for passing final order. In view of the above, we are
in agreement with learned counsel for the petitioners for questioning the order on the pretext aforesaid.
Learned counsel for the non-petitioner-applicant, however, argued the case on merit. We are not deciding the Original Application. The issue as to
whether disciplinary/vigilance case was pending against the non-petitioner-applicant at the time of passing of order of promotion and what is the
consequence, if was pending, would be decided in the Original Application. Whether the nonpetitioner-applicant can be denied promotion on the
conditions given in the order of promotion. All these issues need to be answered by the Tribunal after hearing the parties and we are informed that the
Tribunal would start sitting again since 16th July, 2018. Accordingly, we request the Tribunal to fix the case at the earliest for final hearing and to
dispose it of after considering merit so that the controversy inter se between the parties can be settled finally and, thereby, the interim order under
challenge is set aside as final relief could not have been granted by way of an interim order.
The writ petition is allowed with the aforesaid.
Both the parties are directed to co-operate with the
Tribunal for final hearing on the date now fixed for it.