New Delhi: When one speaks of delay in justice delivery in our country, it often boils down to either lack of judges or cumbersome court procedures. But what if the government itself files 'false' affidavits, cites 'untrue' evidences and delays the process of justice, that too in one of the most respected institutions of the country — Army?
In a recent case, an Armed Forces Tribunal (AFT) bench has ruled that the forces have not only been unfair to an Army officer but also with the court by concealing facts, which amounted to playing ‘fraud on the court as well as opposite party’.
First was the case of Major General Narang who was asked to retire on January 1997 as a Major General and was stated that there was no vacancy available in the rank of Lieutenant General. Now, the government has been asked to promote Major General Narang to the post of Lt General after 18 years from the date of retirement.
It was in 1997 that Major General Narang, belonging to the Corps of Engineers, had filed a petition in the High Court in 1997, later transferred to AFT, averring that there were three vacancies available for the Corps out of which one vacancy of Director General Border Roads (DGBR) was available and further there were other vacancies also available, including the post of Director General National Cadet Corps (DGNCC).
The general further stated that appointment of DGNCC was kept vacant for five months and ultimately given to another officer of a junior batch, Lt Gen BS Malik, who was granted extension in service for three months and then promoted and appointed as DGNCC.
When this case was being adjudicated, severe discrepancies in the affidavits furnished by the government was discovered.
The tribunal in its order noted that the government had filed a false affidavit in the High Court saying that there were only two vacancies for the Corps of Engineers while in reality there were three.
Furthering the web of lies, the tribunal noted that the government had submitted before the Delhi High Court in another case that there were actually 56 vacancies of Lt Gen including 4 acting vacancies which had been hidden from the AFT in this case where only 52 vacancies had been spelt out.
AFT Bench, comprising Justice MS Chauhan and Lt General Munish Sibal, in a strongly worded order, finally held that the government have not only been unfair to the Petitioner but also with the Court by concealing facts, which amounted to playing ‘fraud on the court as well as opposite party’.
Directing the promotion of the officer to the rank of Lt Gen, the AFT has imposed costs of Rs 25,000 for depriving him of his well-deserved promotion on “non-existent, rather false grounds”.
This case had also shed light on the tenure of the 90’s during which the then Mulayam Singh Yadav government was accused of interfering in the promotions of armed forces through the Ministry of Defence. However, the controversies came to rest after General VP Malik took over.
But is Major General Narang a lone case of injustice being meted out with promotions in the army?
Perhaps not. In late 2016, in another glaring case of delayed promotion, a Brigadier of the Army Aviation Corps who retired in 2002 was finally promoted as a major general after 14 years of his retirement and endless rounds of litigation.
Brigadier (now Major General) NJS Sidhu wanted himself to be considered for promotion in the vacant position of the Major General of the Army Aviation Corps in 1997.
However, the army stated that it was an “unspecified” vacancy and that it wanted to post an officer from some other branch as the head of Army Aviation by seeking to retire him as a Brigadier without considering him for promotion.
A division bench of the High Court comprising Justice Swatanter Kumar and Justice S S Saron, however, stuck down the action of the Army in 2002 and directed the Government to consider him for promotion.
The Ministry of Defence (MoD) went into appeal and the Supreme Court granted a stay on the matter. Ultimately, even the SC upheld the HC decision by holding that chances of promotion of Aviation Corps officers had been “marred” by the Army.
After the top court verdict, a promotion board was held but he was again declared “not approved” for promotion. The rejection was thereafter challenged in the Armed Forces Tribunal (AFT). The army’s ego was questioned here in this appeal.
A bench of the AFT comprising Justice Surinder Singh Thakur and Lt Gen DS Sidhu came down heavily upon the Army’s Military Secretary’s Branch for raising wrong contentions that the officer could not make it to the next rank because of ‘comparative batch merit’ when there was no such batch and the Petitioner was the sole candidate.
The AFT had further noted that “at the highest level ways and means were devised to conceal the truth” while adding that such acts shook judicial conscience and encouraged other instrumentalities to follow illegal pursuits.
Now, at last, Ministry of Defence has finally promoted the officer to the rank of Major General, fourteen years after he retired.
Such cases of delayed promotions are certainly not without precedent.
Another case was of Major General VK Sharma, who was due to retire on 30th April, 1996. However, if he was to be promoted to the next higher rank of Lt. General, he would have got additional two years in service and he would have retired on 30th April, 1998. The only reason given by the army in the counter affidavit for not promoting the respondent to the rank of Lt. General is that no post was available in that rank on 30th April, 1996.
The case of Gen VK Sharma was dealt by a single bench of the Delhi High Court, which ruled that one post of Lt. General was available on 30th April, 1996 to which Sharma could have been appointed and therefore, the army was directed to treat Major General Sharma as an appointee to the Lt. General post on 30th April, 1996.
This was again challenged on an appeal by the army. However, the division bench of the Delhi High Court dismissed the said appeal and the government further challenged the judgment in the Supreme Court, which upheld the decision and dismissed the government's appeal.
The High Court stated that in the case of Sharma, it was not a case of mere approval of proposal by the Prime Minister. The approval of the proposal was followed by promotion order being issued by the Ministry of Defence.
Not only this court noted that the entire process was followed in the case of the Sharma. It was recommended by the Army Headquarters. It was approved by the Ministry of Defence. Finally it had approval of Prime Minister/Defense Minister and thus the army was directed to offer him the rank of Lt General.
But was the Ministry of Defence been completely away from this fact?
A committee of experts was formed by the Ministry of Defence in 2015 for the Review of Service and Pension Matters including Potential Disputes, minimizing litigation and strengthening institutional mechanisms related to redressal of grievances.
In that report, the experts had noted that “no introspection is taking place on the root cause of litigation as to why are cases being decided against the Government in this regard and what steps need to be taken to harmonize those policies to ensure lessening of litigation and promoting goodwill within the system and its personnel.”
The report noted that there was an attitude in the army that “system being in the right and judgments being in the wrong.”
The experts recommended that this needs to change and also the “lack of understanding of the basic concept of accepting judicial majesty and ‘Separation of Powers’ enshrined in our Constitution.”
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