Amar Pratap Singh Bedi (Col.) vs Union Of India & Ors.
1998 Latest Caselaw 969 Del

ORDER

K. Ramoorthy, J.

1. The writ petitioner was appointed as Col. in the Indian Army on 01.11.1995. The next promotion post is Brigadier. Even with reference to the appointment of Col. the petitioner filed CW 2891 of 1993. During the tendency of the writ petition he was appointed as Col. The Division bench which dealt with the matter had observed:

Accordingly his case was reviewed on 16.12.1994 under the policy using the cut off points fixed by the Board held on 5.5.1994. The petitioner's average during the relevant period being above the cut off marks, he was graded as 'B'. The Government has also approved the proceedings of the Selection Board held on 16.12.1994.

The petitioner has since been selected and found fit for promotion to the rank of Colonel, which was the prayer made by him in the petition and it is respondents' case that he will be duly promoted in his own turn, which statement we take on record. In view of the above discussion, no further relief can be granted to the petitioner. The petition is accordingly disposed of.

2. The appointment of the petitioner in the post of Colonel is not under challenge. His grievance now is that he has not been promoted as Brigadier when as per the Army Regulations 62 reckoning 23 years of commissioned service. The case of the respondents is that from the post of Colonel to Brigadier it is by a process of selection. Prior to 1996, the officers holding the post of Colonel were considered on the basis of 5 ACRs. On 26.02.1996, Ministry of defense, took a policy decision, inter alia, with reference to the number of ACRs to be taken into account. On 18.03.1996, another Circular was issued by the Ministry of defense, reducing the number of ACRs to be considered.

3. On 19.03.1996, the Selection Board met. According to the criteria prescribed, candidates were considered as per the policy decision and the petitioner could not be selected because he did not satisfy the requirements. There was a selection Board met on 28.02.1997 wherein also the petitioner's case was considered and because of the fact that he did not satisfy the requirement he was not selected.

4. In the counter affidavit filed, it is stated:

The petitioner did not meet the ACR criteria and therefore, his promotion has been deferred. Others though were junior to him, had fulfillled the eligibility & ACR criteria and were given promotions after selection by the Selection Board. The petitioner will also be considered in the next Board and if he fulfills the criteria and found fit in all respect, he will also be promoted. In such an event, his seniority vis-a-vis his juniors will also be protected by granting him notional seniority.

5. The main challenge of the petitioner is that this policy decision dated 26.02.1996 and 18.03.1996 are contrary to Regulation 67 and the Respondents cannot prescribe something which is not contemplated in the Regulation. The petitioner further contended that the respondents have no power to prescribe any such further criterion or criteria for selecting the candidates.

6. Mr. Mahendra Pal, the learned counsel for the petitioner vehemently contended that when the petitioner had put in 23 years of reckonable commissioned service, he is entitled to be considered and when there had been no adverse remarks against him he ought to have been considered and promoted as Brigadier. The learned counsel also contended that the statutory complaint and the supplementary complaints preferred by the petitioner had not been disposed of within the time limit fixed and the complaints were rejected after the expiration of the prescribed time limit. The learned counsel contended that the respondents while considering the case of the petitioner for the post of Col. did not consider his case at the proper time and that had affected his case now when the Selection Board met for consideration the candidates for the post of Brigadier.

7. Learned counsel for the petitioner submitted that:

i) Two policy decisions should be the first respondent on 26.02.1996 and 18.03.1996 are not valid in law inasmuch as they run counter to Regulation 67E of the Regulations.

ii) Selection Board (Medical) which met had considered the officers who were junior to the petitioner and he had deferred the case of the petitioner which was not permissible in law.

iii) Grading of 'D' which means deferred is not tenable in law.

iv) The Selection Board (Medical) had considered a few candidates on the basis of re-initiated ACRs which was not permissible in law.

8. Mr. Mahendra Pal, the learned counsel for the petitioner relied upon the following authorities:

i) Brig. R.K. Sinha Vs. UOI & Ors. CW Nos 4944/97 and 1936/98 decided on 26.05.1998 by this Court.

ii) Brig. S.P. Chawla Vs. The U.O.I & Ors CW No. 888/97 decided on 08.09.1997 by Hon'ble Ms. Justice Usha Mehra.

iii) Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi .

iv) Bal Krishan Vs. Delhi Administration

v) Upjal Nigam Vs. Prabhat Chandra .

vi) IJS Boparai Vs. UOI & Ors. 1998 (I) AD(Delhi) 895.

vii) N.K. Prasad Vs. Govt. of India 1979(1) S.L.R. 377.

9. The learned counsel for the Respondents Mr. Rakesh Tikku submitted that:

1) The case of the petitioner was considered for promotion to the rank of Bragider by the Selection Board (Medical) held on 19.03.1996 on the basis of the policy formulated by the first respondent on 26.02.1996 which provided that minimum 3 ACRs in the rank of Colonel should be looked into. The most of the officers did not mtaintain this requirement. The first respondent, therefore, had to grant regularisation reducing the same to consideration of two ACRs in the rank of Colonel covering a period of 18 months and that was done by an order dated 18.03.1996.

2) In the Board meeting held on 19.03.1996, the petitioner was graded 'D', deferred from consideration because he had earned only one ACR (Special) in the rank of Col.(covering three months and 12 days).

3) The Selection Board meeting which was again held on 28.02.1997. The case of the petitioner was considered and against was deferred as the petitioner had not completed 18 monhts. Those he had two ACRs (one regular and one special).

4) On 18.02.1998, the Selection Board (Medical) met and the case of the petitioner was duly considered. The result of the selection is to be approved by the Ministry of defense. If the petitioner is selected for promotion he will be given notional seniority but maintained his seniority over respondents 11 to 14. Respondents 5 to 10 would remain senior to the Petitioner as they were selected Colonel earlier to the petitioner.

10. The respondents had been following criterion of considering of 5 years ACRs in the earlier orders. The details are as under:

 DATE OF   DATE OF        DATE OF        PROGRESS-      NO OF 
BOARD     SENIORITY      SENIORITY      SION IN        ACRs IN 
          OF 1ST         OF LAST        MONTHS         THE RANK
          FRESH          OFFICER                       OF COL 
          CANDIDATE      GRADED IN                     SELECTION 
                         BOARD.
21.12.89  12.07.1959     04.09.1961     26 MONTHS      3-4
04.03.89  25.09.1962     -              00 MONTHS      5
30.03.93  17.09.1962     01.07.1963     10 MONTHS      5
15.02.94  29.10.1963     09.12.1963     02 MONTHS      4-5
16.01.95  25.01.1964     05.10.1964     5/1/2MONTHS    1-3
 

11. The first respondent had acted in accordance with law and the petitioner had not made out any case for interference by this court under Article 226 of the Constitution.

12. When the main point raised by Mr. Mahendra Pal, the learned counsel relying upon the two policy decisions and the other points raised by the learned counsel for the petitioner cannot be gone into by this Court because the consideration of suitability of the candidates is within the province of the Selection Committee and this court sitting under Article 226 cannot deliver judgment over the same as an appellate authority and that position is well settled.

13. For the purpose of considering the argument it is better to notice the provisions of Regulation 67. Regulation 67(E) reads as under:

Regulation 67(E)

Army Dental Corps - Substantive promotion to the rank of Colonel and above will be by selection to fill vacancies in the cadre as authorised from time to time and subject to the officer being found fit in all respects and having to his credit the following periods of reckonable commissioned service:-

      To Colonel         ...     21 years
     To Brigadier       ...     23 years
     To Major General   ...     25 years
 

14. The Regulation does not speak of the consideration of the case of the officers on the basis of the ACRs. It is common ground that prior to 1996 5 ACRs in the feeder post had to be considered. On 26.02.1996 the Ministry of defense, issued the Circular prescribing the procedure for selection and promotion of AMC, AD Corps and MNS Officers. The Circular reads as under:

NO. 9(2)/92-D (MED)

Government of India

Ministry of defense, New Delhi.

TO

The Chief of Army Staff,

The Chief of Air Staff,

The Chief of Naval Staff.

Sub: Procedure for selection and promotion of AVC AD Corps and

       MNS Officers.

Sir,

I am directed to say that the procedure to be followed in future for selection and promotion of AMC (including Non-Technical), AD Corps and MNS officers will be as given in the succeeding paragraphs.

2. Composition of Selection Boards (Med). The composition of the Selection Boards (Med) of the Armed Forces Medical Services will be as per the Ministry of defense letter No. 301/ DGAFMS/DG-IX/87-S/D (Med) dated 8th February, 1980. the DGAFMS, will be the convening authority of the Selection Boards.

Approach paper. The Office of the DGAFMS will prepare an Approach paper for guidance of various Selection Boards in details, bringing out the following:-

a) Policy decisions that pertain to that particular Board.

b) Number of officers to be selected including 10% reserve based on the vacancy position and detailed date wise vacancy position.

c) Nominal Roll of officers in consideration zone with their inter-se seniority.

d) Nominal roll of officers in consideration zone according to merit.

e) Number of chances the officers have been exposed.

f) Details regarding Statutory Complaint and disciplinary cases/punishment.

g) Confirmation that disciplinary/vigilance/administrative actions are not pending/contemplated.

4. Vacancies: The number of vacancies for the period under consideration, normally a calender year, will be indicated. This will include number of anticipated retirement vacancies and promotion vacancies plus 10% reserve. Vacancies arising out of retirements on 31st December of a year will be taken into account in the same year for purposes of calculation of vacancies. For calculation of reserve, a digit of 5 or above will qualify for one reserve vacancy. In case of Selection Board for Lt. Colonel to Colonel (& equivalent), vacancy position will be worked out for Administrative and Specialised Cadres Separately.

5. Zone of consideration: this will be worked out by taking fresh candidates equal to two times the number of vacancies arising for the period under consideration in order of the seniority in addition to the officers graded 'R' (i.e. not selected) by the previous Board(s).

6. Frequency of Boards: Selection Boards will generally be convened once a year, except where it is necessary to assemble more than once.

7. Number to be Selection: The Selection Board will grade all the officers in the zone of consideration in order of merit. From the merit list, the number of officers required as per vacancies identified in para 4 above will be selected in order of merit. The rest of the officers in the list will be marked 'R' or 'U' as the case may be. The Select List will then be arranged according to seniority for placement on promotion. In case of a tie, the senior of the two officers will take precedence. where certain officers graded fit for promotion will actually retire before a vacancy for their promotion will actually retire before a vacancy for their promotion arises, the number of officers on select List will have to be in excess by a figure equal to the number of officers who will so retire.

8. Number of ACRs taken: All ACRs in the present rank will be taken into account for the purposes of promotion from Lt. Col to Col (& equivalent), Col to Brigadier (& equivalent) and Brigadier to Maj General (& equivalent). In case two ACRs are available for a particular assessment year, their average will be taken of final average of the particular period. A minimum of two/three/four ACRs should be available for consideration for promotion to Major General/Brigadier/Colonel respectively in the present rank.

9. Method of Calculation

a) Major to Lt. Col (Non-Technical & MNS Officers) and Lt Col to Col (& equivalent) (Admn. Cadre).

The average of ACR (IO+ RO+SRO+NSRO+DGMS+DGAFMS) and TR (FTO+STO+HTO) will be worked out separately for each report for each officer being considered. In case of there being more than one report for a particular assessment year, then the average of the individual reports will be taken to calculate the final average of that particular assessment year. Thereafter, the final average of all the ACRs in the present rank will be computed.

b) Lt Col to Col. (& equivalent)). Calculation will be same as for Administrative Cadre Ex. that the technical report (TR) includes the Profession capability report (PCR) also.

c) Col to Brigadier (& equivalent) and Brigadier to Maj General (& equivalent: The same procedure as for Lt. Col to Col. (& equivalent) (Adm. Cadre) will be applicable.

10. There will be no change in the policy of promotion from Maj General to Lt. General (&equivalent).

11. Number of considerations: Each officer is entitled to be considered thrice for promotion in each rank. If he is rejected thrice, he will be graded 'U' (i.e. unfit for further promotion). The grading of the Promotion Board will be as follows:

Grading 'A': Fit for accelerated promotion to the next higher rank.

Grading 'B': fit for promotion in his own turn.

Grading 'D': Defer consideration of the case till assessment by the Review Board.

Grading 'R': Unfit for promotion at present.

12. Grading 'D': Officers are graded 'D' due to some administrative or technical reasons (like non-availability of latest ACR, finalisation of pending disciplinary proceedings etc.). Such officers on finalisation of the above reasons are reviewed as per the parameters of the Board in which they were originally ex-posed, and graded 'B' or 'R' as the case may be. If selected, their inter se- seniority will be restored. Officers whose Statutory Complaints are pending finalisation will be graded by the promotion Board on the basis of their available records without reference to the Statutory Complaint. In case the Statutory Representation is accepted or relief, granted, such cases will be considered afresh by the promotion Board on the basis of modified records, and if found fit, these officers will be placed on the select list with their original seniority.

13. On finalisation of the proceedings of the Selection Board, all proceedings of the Board will be forwarded to the Ministry of defense for obtaining approval of the Central Government.

14. The procedure outlined above will be applicable with immediate effect.

15. The policy will be reviewed after three years.

Sd/-                                 

( GHAZALA MEENAI )                        

Dy. Secretary to the Govt.of India                

15. On 18.03.1996, Ministry of defense, issued another Circular undertak-

ing the procedure for selection. The same reads as under:

MINISTRY OF defense

Sub: Procedure for Selection and

promotions of AMC, AD Corps and

MNBS Officers.

1. DGAFMS may kindly refer to letter No. 5006/DGAFMS/DG-IX dated 27 Feb 76 regarding difficulties anticipated in meeting the stipulation of a minimum of two/three/four ACRs in the present rank for consideration for promotion to Maj Gen/Brig/Col respectively in the case of some officers.

2. In this connection it has been decided that cases of officers with a minimum of two regular ACRs covering a period of not less than 18 months may also be considered for promotion to the rank of Brigadier. This dispensation will be applicable for a period of one year from the date of issue of this letter.

3. It is further clarified that the cases of officers who do not fulfill the minimum ACR criteria will be withdrawn as is being done in the Army and will be considered only when they have earned the minimum prescribed number of ACRs. When promoted, however, their seniority will be protected as in the case of the Army.

Sd/-           

( Ghazala Meenai )      

Dy. Secretary (OG)   

DGAFMS

MOD, ID no. 9(2)/92/D(Med) dated 18.3.1996.

16. The submission of Mr. Mahindra Pal, the learned counsel for the petitioner was that it is in violation of the Regulation 67 and therefore, these two policy decisions are not valid in law.

17. I am not able to appreciate the submission of the learned counsel for the petitioner. What is not covered by the Regulation for the purpose of selecting candidates, it would be open to the respondents to prescribe relevant criteria for selecting the candidates. Officers who had been promoted as Col. cannot aspire to become Brigadier without serving as Col. for at least 18 months as prescribed before they are considered for the posts of Brigadier. The respondents could assess the suitability of a Col. only if he had worked in that post for minimum period and that is required to consider whether the officer who was appointed as Col. had performed his duty in such a way that the respondents could consider him for being appointed as Brigadier on the basis of the ACRs which would go to show the performance of the officer. It is well settled that the Government has got the power to act in public interest and prescribe the guidelines or the criteria for selecting the candidates for promotion. That proposition was not challenged before me. But what was contended by Mr. Mahendra Pal was that when Regulation states that if an officer who had 23 years of reckonable service for being considered for the post of Brigadier, the government cannot add further criteria and the Regulation does not empower the Government. The language of the Regulation does not admit of any such position. It only prescribed that the sine quo non for being considered fit one must have 23 years of reckonable commissioned service if one has to be considered for being appointed as Brigadier. The regulation does not prohibit the government from prescribing any suitable conditions for selection. The language of the provision is clear and unambiguous. In the light of the law laid down by the Supreme Court in several cases relating to interpretation of statutes and rules, it is not necessary to repeat the same now.

18. Therefore in my view, the policy decisions announced by the Government on 26.02.1996 and 18.03.1996 are in accordance with law and the respondents are well within their rights in considering the case of the candidates on 19.03.1996 and 28.02.1997.

19. The learned counsel Mr. Mahendra Pal for the petitioner relied upon the judgment of this court in CW. 888/97. The facts in that case do not resemble facts of the instant case. The judgment reads as under:

CW No. 888/97 & CM No.4113/97

Rule.

The petitioner a Brigadier was due for promotion to the rank of Major General. He was, however, not considered for promotion because he had not earned requisite number of ACRs in the rank of Brigadier (i.e. two ACRs in the rank of Brig.) which according to respondent was a mandatory requirement.

Before dealing with this aspect of the matter let us have quick glance to the facts of this case. Petitioner was promoted as Brigadier vide respondent's letter dated 26th July 1989. He was posted to Military Hospital. Ambala Cantt. Petitioner, however, could not take charge of his new posting till 7th March 1995 because the person from who he was to take charge had not relinquished his charge as the person from whom he was to take charge at Lucknow had not relinquished that charge. thus there was chain reaction. As per Army Rules if any Brigadier joins the rank after 3rd March of that year then he cannot earn the ACRs of that year in the rank of Brigadier. Since petitioner was allowed to join only on 7th March, 1995 hence he could not earn the ACR as Brigadier in that year. The Selection Board for the post of Major General met in 1996. By that time petitioner had only one ACR in the rank of Brigadier instead of two.

That because of no fault of the petitioner his service and promotion prospects got marred and effected vis-a-vis his batch mates and even junior colleagues, who got promoted to the rank of Brigadier after him. They earned two ACRs as they were placed against clear vacancies and became eligible for consideration by the Promotion Board from Brigadier to Major General in December 1996. The delay in assumption of appointment by the petitioner at Ambala Cantt. was entirely due to the Administrative lapse and fault of the respondent. Because it allowed the incumbent at Ambala Cantt. to continue thus depriving the petitioner his rightful due.

The respondent in its counter affidavit has taken the plea that since petitioner had not earned two ACRs which was a mandatory requirement hence his name could not be considered for promotion. Secondly non-joining due to administrative reasons does not give any benefit to the petitioner. Finally even if petitioner had cleared the Selection Board in December 1996 he would still have not made to the rank of Major General due to non-availability of vacancy in his turn before he retires in the rank of Brigadier.

After hearing counsel for the parties and going through the army rules and regulations one thing becomes clear that petitioner cannot be condemned for no fault of his. Respondent cannot shirk its responsibility by saying that there was no administrative slip on its part. Firstly respondent allowed the officer at Ambala Cantt. to continue inspite of petitioner having been posted there. This process of his promotion and joining took almost nine months. If it is not administrative slip then what else it can be called? Secondly, the respondent in similar circumstances have been adopting different yard sticks. Admittedly, in the case of Col. Sethi, Senior Dental Advisor, this very respondent waived the condition requiring three ACRs for promotion from Col. to brigadier. Col. Sethi was considered for promotion on the basis of only two ACRs. This shows respondents have been exercising its power of relaxation wherever it liked. If in the case Col. Sethi rule of relaxation was made applicable then why discrimination against the petitioner. Contention of Mr. Mittal that in the case of petitioner requirement was of two ACRs, hence one could not be waived. If that be so then the respondent could have called for special ACRs as was done in the case of Dental Corps/AD Corps Officers vide letter dated 22nd November 1996 and Nursing Officers vide Annexure 'F' at page 30 of the petition. In both these cases the respondent on priority basis procured Special ACRs because the case of those officers was likely to come up for consideration for promotion. But in the case of petitioner even special ACR was not called for. No reason has been assigned nor any explanation rendered as to why the same treatment was not given to him. To my mind, it amounts to dis-crimination and the petitioner has been made to suffer for the lapse on the part of the respondent.

That even the GOC of the petitioner vide his letter dated 4th June 1997 strongly recommended the case of the petitioner. he too pleaded that either apply the rule of relaxation which respondent had been applying in other cases or call for his special ACRs. Inspite of strong recommendation by GOC, respondent did not do either. This shows respondent's indifferent attitude towards the petitioner.

Contention of Mr. Mittal that even if petitioner had been considered in the Board held in December 1996 he still would not have got the posting because by them he would retire. To my mind, this argument does not cut any ice. What is due to petitioner must be given irrespective of the fact as to whether the actual fruit he will be able reap or not. Respondent could not deprive the petitioner his right of being considered for the slot of 1996. He is not asking for posting. He only wants to be considered for the post of Major General for the slot of 1996. By now the petitioner has earned two ACRs. Earlier he was deprived of being considered because of the act of the respondent when it allowed the officer at Ambala Cantt. to overstay. Thus depriving the petitioner his right of earning ACRs in the rank of Brigadier. Because of inaction on the part of respondent, the petitioner cannot be allowed to suffer twice. Mr. Sharma told at the bar that the next Board will meet in November 1997 by which time the petitioner will retire. it is in this background directions are given to the respondent to convene a special Selection Board and consider the case of the petitioner for the slot of 1996 so that he can retire with the satisfaction that he was selected to the rank of Major General irrespective of the fact whether he would take up the post or not. The satisfaction that he was selected to be Major General would be big achievement for a serving personnel. The Special Board be held before the end of September 1997.

With these observations, the petition stands disposed.

20. Mr. Mahendra Pal, the learned counsel for the petitioner also relied upon the judgment in CW No. 4944/97 & 1936/98. This court had followed the earlier judgement and here also the facts are entirely different.

21. The petitioner has again been considered by the Selection Board held on 18.02.1998 and the outcome of the selection board is not known. If the petitioner is selected by the Selection Board as stated by the Respondents in the counter affidavit, he will get all the benefits in accordance with the policy declared by the Respondents including his due seniority.

22. The challenge by the petitioner of the promotions of Respondents 5 to 14 fails. In the light of the view taken by me upholding the validity of the policy decisions dated 26.02.1996 and 18.03.1993, I am not inclined to exercise my discretion to accept the submissions made on behalf of the petitioner. Accordingly, the writ petition stands dismissed. There shall be no order as to costs.