Supreme Court Refuses To Entertain Brigadier's Plea Seeking Promotion As Major General In JAG Dept Of Army

Refusing to exercise Article 32 of the Constitution of India in the matter, a Bench comprising Justices M.R. Shah and B.V. Nagarathna asked the petitioner to approach the executing court for relief.

The Petitioner, a 1989 batch JAG officer presently working in the post of Brigadier (Deputy Judge Advocate General) has been cleared for promotion to the post of Major General, which is the highest post in the Judge Advocate General's Department, by the selection board confirmed by the Central Government. However, since he was not promoted, the petitioner approached the Armed Forces Tribunal, Lucknow Bench ("AFT"). Vide order dated 07.01.2022, it allowed the application directing the petitioner to be promoted 'forthwith' with effect from 05.05.2021.

Thereafter, an application was submitted to the Military Secretary's Branch to intimate them about the order dated 07.01.2022. Since no steps were initiated to promote the Petitioner and considering the fact that the petitioner is to retire on 28.02.2022, he filed an execution application before the concerned AFT. The matter was adjourned to 07.03.2022. In the meanwhile, the appeal from the order dated 07.01.2022, filed by the respondents before the AFT was rejected. On 03.01.2022, another officer, subordinate to the Petitioner, was promoted to the rank of Judge Advocate General bypassing him.

In the Writ Petition filed by Advocate-on-Record, Mr. Javedur Rahman, the Petitioner sought to enforce his fundamental rights under Article 14 and Article 21 of the Constitution of India. The Petitioner is to retire on 28.02.2022 and his promotion to the post of Major General would extend his tenure till 28.02.2023. Senior Advocate, Mr. Devdutt Kamat appearing for the petitioner argued that once the petitioner resigns the order of the AFT permitting him to be promoted would be rendered otiose.

It was averred that the Respondents' conduct is arbitrary and lacks bona fides. Citing H.M. Singh v. Union of India (2014) 3 SCC 670, it was submitted in the petition that 'right to promotion' even in armed forces have been recognised by the Court to be a facet of Article 14.

"…In the above view of the matter, if the appellant was the senior most serving Major-General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India…

[...]

The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant-General would have resulted in violation of his fundamental right under Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary."

To satisfy the Court on the issue of maintainability, Mr. Kamat averred that there exists a statutory bar in filing appeals against interlocutory orders of AFT and Special Leave Petitions against orders of AFT under Article 137(2) of the Constitution. In view of the same and considering that the consideration ought to be time sensitive, the petitioner has approached the Apex Court under Article 32.

Mr. Kamat emphasised that the petitioner was to retire on 28.02.2022 and the matter has now been adjourned by AFT, the Executing Court till 07.03.2022. Justice Nagarathna suggested that in case of urgency the petitioner can go and urge the executing court for an early hearing, but the Bench refused to pass any formal order observing the same.

[Case Title: Brigadier Javed Iqbal v. UOI And Ors. W.P.(C) No. 73 of 2022]