No retrospective application of promotion: AFT

Since the wrong in the case of the petitioner has now been corrected, he is to be considered as a ‘fresh’ review case based upon the then existing policy by reverting him to the original position.

AFT’S PRINCIPAL BENCH

CHANDIGARH: In a decision which will shield army officers from arbitrary retrospective application of fresh promotion policies resulting in changing of goal posts, the Armed Forces Tribunal (AFT) has held that a subsequent policy cannot take away the rights of an officer under an existing policy.

Petitioner Maj Gen VK Singh of the Armoured Corps was considered for promotion to the rank of Lt Gen in October 2017, but was not promoted. He had represented against some of his confidential reports, which were finally set aside. Thereafter, his case was to be considered by a special review board. However, the army issued a fresh policy in December 2017 stating that there would only be one promotion board in a year, which can take up special review cases.

The petitioner contended before the tribunal that his case was to be considered under the existing guidelines applicable in October 2017 as it involved a review of the decision of the original board. If the new guidelines are applied to his case, he would retire before being promoted, he argued.

Agreeing with the petitioner, AFT’S principal bench comprising justice Virender Singh and Lt Gen Sanjiv Chachra (retd) on Friday said, “Since the wrong in the case of the petitioner has now been corrected, he is to be considered as a ‘fresh’ review case based upon the then existing policy by reverting him to the original position”.

The AFT held that his “position cannot be altered by any new policy” and placing him at a “disadvantageous position because of any implication of the new policy would be highly discriminatory and thus viola- tive of Articles 14 and 16 of the Constitution”.

The AFT has directed the government to consider the petitioner’s case as per the then applicable policy and declassify the result prior to his retirement on November 30, 2018, based on vacancies available to his original batch.

The AFT has also rejected the contention of the government that the tribunal cannot test the “validity or vires of policies” issued by the government.

The AFT, relying on a Constitution Bench decision of the Supreme Court in the case of L Chandra Kumar Vs Union of India, has reiterated its powers to strike down even statutory provisions.

The AFT also asked the government to revisit the promotion policy of October 23, 2017 for its effective implementation in the right perspective, so as to avoid any further litigation.

Notably, the then defence minister Manohar Parrikar had, in August 2016, accepted the observation of an expert committee stating that promotion policies would not be suddenly changed and fresh policies would be brought into effect only after a time lag. However, the orders of the minister have not been implemented, said a defence ministry official, on condition of anonymity.