Supreme Court clarifies criteria for Permanent Secondment in DGQA: Union of India vs. Lt. Col. Sameer Singh (2 December 2019)

Introduction

Date of the Judgment: 2 December 2019
Citation: Civil Appeal No(s). 9143 / 2019 (@ Special Leave Petition (Civil) No(s). 25611 of 2018)
Judges: Deepak Gupta, J., Aniruddha Bose, J.
Can an employer use criteria for promotion that is not explicitly mentioned in the policy? The Supreme Court of India addressed this question while deciding whether the Technical Assessment Reports (TARs) of an Army officer should be considered when evaluating their case for Permanent Secondment in the Directorate General Quality Assurance (DGQA). The Court clarified that only the criteria explicitly mentioned in the office memorandum dated 12.05.2011 should be considered for the grant of Permanent Secondment. The judgment was delivered by a two-judge bench comprising Justice Deepak Gupta and Justice Aniruddha Bose.

Case Background

The respondent, Lt. Col. Sameer Singh, was commissioned into the Indian Army in 1994 and subsequently posted to the DGQA. After serving two years in the Collectorate of Quality Assurance, he was considered for Permanent Secondment. The Quality Assurance Selection Board (QASB) did not recommend him for Permanent Secondment. He later found out that this was because his Technical Assessment Reports (TARs) for 2014-15 and 2015-16 deemed him ‘NOT YET FIT’ and ‘NOT FIT’, respectively, for Permanent Secondment in DGQA. Aggrieved, Lt. Col. Singh filed a writ petition in the Delhi High Court, arguing that he met all the criteria outlined in the office memorandum dated 12.05.2011, which governs Permanent Secondment for Lt. Colonels in DGQA.

Timeline

Course of Proceedings

The Delhi High Court ruled in favor of Lt. Col. Sameer Singh, stating that the TARs could not be considered for evaluating his case for Permanent Secondment. The Union of India then appealed this decision to the Supreme Court.

Legal Framework

The case revolves around two key office memorandums issued by the appellants:
✓ Office memorandum dated 08.04.2004: This memorandum laid down the criteria for Permanent Secondment to the DGQA, which included consideration of the Technical Assessment Reports (TARs). The relevant part of the criteria reads as under:

“Part­II: Assessment by the Reporting Officer
1.Technical
(a)Nature of work assigned : to the Reportee
(b)Aptitude of the Reportee : towards Quality
        Assurance related work
(c)Technical   Knowledge   of   the   officer   and
practical ability to apply the theoretical  
knowledge
(d)Sense   of   dedication   and   responsibility  
towards QA work.
(e)Details of outstanding/notable work done
by the reportee, if any
3Signature
Name of the officer Rank/Designation
Part III: Remarks of the Technical Director
1.Remarks with reference to specific 
comments given by the Reporting Officer
2.Fitness or otherwise for Permanent 
Secondment in DGQA Organisation. 
Signature:
Part IV: Remarks of DGQA
1.is fit/not yet fit for Permanent 
Secondment in DGQA Organisation
2.Performance of should, be watched for 
another months before consideration for 
Permanent Secondment.
Signature”

✓ Office memorandum dated 12.05.2011: This memorandum revised the criteria for Permanent Secondment, and the relevant portion reads as follows:

“1. xxx xxx xxx
4(i)Offrs of the rank of Lt Col (Substantive) only
will be considered for grant of Permanent
Secondment
(ii)Officer should have minimum of two years
of regular service from the date of reporting
to   DGQA   organisation   before   being
considered by QASB for grant of Permanent
Secondment.
(iii)Officers   should   not   have   been   finally
superseded   as   on   date   of   acceptance   by
DGQA on tenure (the date of approval of
board proceedings for acceptance of officers
on tenure by DGQA)
(iv)Mean   value   of   all   box   grading   for   seven
years should not be less than ‘7’ including
ACRs earned in DGQA.
(v)Mean value of box grading in 3 Mandatory
Qualities   (LOAYLITY,   DECISIVENESS   &
DEPENDABILITY) should not be less than
‘7’ and in respect of INTEGRITY should not
be less than ‘8’.
(vi)Should be in acceptable medical category as
stipulated   in   Appendix   ‘A’   to   MOD   OM
No.67952/Q/DGI(Adm­)/10412/D(PRODN)
dated 28 Oct 1978 as amended from time to
time
(vii)The   officer   should   have   undergone   Basic
Quality   Management   Course   (BQMC)   at
DIAQ, Bangalore and should have obtained
above average grading.
(viii)The   disciplinary   record   of   the   officers
should not be adverse. Note:
xxx xxx xxx
2. xxx xxx xxx
3. These revised criteria will be applicable to
all   Service   Officers   inducted   into   DGQA   on
tenure prospectively from the date of issue of
this OM.  In the interim period QASBs will be
held as per policy in vogue.
4.This   supersedes   all   previous
instructions/guidelines   issued   on   the
subject.
5. This issues with the approval of Hon’ble
Raksh Mantri.”

The 2011 memorandum does not explicitly mention TARs but states that it supersedes all previous instructions.

Arguments

The appellants (Union of India) argued that:

• 
  Though the office memorandum dated 12.05.2011 does not refer to the TARs, it does not specifically overrule the office memorandum dated 08.04.2004.
• 
  The office memorandum dated 08.04.2004 has been invariably applied by the appellants and the TARs of every Military officer who has been granted Permanent Secondment in DGQA have been taken into consideration.
• 
  The purpose of TAR is different from the Assessment Report and as such essential to assess the suitability of the candidate for Permanent Secondment into the DGQA.
• 
  The employer could apply any criteria which it deems fit and it is not for the employee to suggest what criteria should be made applicable.

The respondent (Lt. Col. Sameer Singh) argued that:

• 
  A reading of the office memorandum dated 12.05.2011 squarely indicates that only the criteria mentioned therein could be taken into consideration and none else.

Submissions of the Parties

Issues Framed by the Supreme Court

The core issue before the Supreme Court was:

1. Whether the Technical Assessment Reports (TARs) of an Army officer are to be taken into consideration while considering his case for Permanent Secondment in the Directorate General Quality Assurance (DGQA), after the office memorandum dated 12.05.2011 came into force?

Treatment of the Issue by the Court

Authorities

The Court considered the following authorities:

• Office memorandum dated 08.04.2004: This memorandum provided for the consideration of TARs for Permanent Secondment.
• Office memorandum dated 12.05.2011: This memorandum laid down the revised criteria for Permanent Secondment, without mentioning TARs and stated that it supersedes all previous instructions.
• Office memorandum dated 14.06.2011: This memorandum stated that officers rejected in QASB for Permanent Secondment will not be reconsidered in subsequent QASBs.
• Letter dated 14.07.2014: This letter emphasized the importance of TARs and reiterated the need to indicate whether an officer is FIT/NOT FIT/NOT YET FIT for Permanent Secondment in DGQA.

Authorities Considered by the Court

Judgment

The Supreme Court analyzed the submissions made by both the parties and how the authorities were viewed by the court is given below:

The Supreme Court analyzed the authorities and how they were viewed by the Court is given below:

✓ The office memorandum dated 08.04.2004 was **overruled** by the office memorandum dated 12.05.2011. The Court held that the 2011 memorandum specifically stated that it superseded all previous instructions on the subject.

✓ The office memorandum dated 12.05.2011 was upheld as the governing criteria for Permanent Secondment after its issuance.

✓ The letter dated 14.07.2014, which emphasized the importance of TARs, was not considered as it could not override the clear language of the office memorandum dated 12.05.2011.

The Supreme Court dismissed the appeal and upheld the judgment of the Delhi High Court. The Court held that the Technical Assessment Reports (TARs) could not be taken into consideration for evaluating the case of Permanent Secondment of the respondent in the DGQA, after the office memorandum dated 12.05.2011 came into force.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the clear and unambiguous language of the office memorandum dated 12.05.2011. The Court emphasized that:

• 
  The 2011 memorandum explicitly stated that it superseded all previous instructions on the subject.
• 
  The 2011 memorandum laid down a comprehensive set of criteria for Permanent Secondment.
• 
  If the appellants wanted to include TARs as a mandatory requirement, they should have amended the 2011 memorandum or issued a new one.

The following table shows the ranking of sentiment analysis of reasons given by the Supreme Court:

The ratio of fact to law is:

Logical Reasoning

Key Takeaways

The key takeaways from this judgment are:

• 
  Employers must adhere to the criteria explicitly mentioned in the relevant policy documents.
• 
  Once a policy is superseded, it ceases to be applicable.
• 
  Any changes or additions to existing policies must be made explicitly through amendments or new policy documents.
• 
  The importance of clear and unambiguous language in policy documents.

Directions

The Supreme Court did not give any specific directions, but upheld the judgment of the Delhi High Court.

Development of Law

The ratio decidendi of the case is that when a policy document explicitly supersedes all previous instructions and lays down a comprehensive set of criteria, only those criteria can be considered for the purpose for which the policy is made. This case clarifies that the employer cannot rely on previous policies or practices that are not explicitly included in the current policy.

Conclusion

The Supreme Court held that the Technical Assessment Reports (TARs) of an Army officer cannot be considered while evaluating their case for Permanent Secondment in the Directorate General Quality Assurance (DGQA) after the office memorandum dated 12.05.2011 came into force. The Court emphasized that the 2011 memorandum superseded all previous instructions and laid down a comprehensive set of criteria that did not include TARs.