Sub Dharampal Singh Verma (Retd) vs The Chief Of The Army Staff And ...
1999 Latest Caselaw 931 Del

ORDER

A.K. Sikri, J.

1. The petitioner was enrolled in the Army (Corps of Electrical) and Mechanical Engineering i.e. EME) on 11.4.69 and he retired from service on 30.4.97 as Subedar. However, even after his retirement he is fighting for promotion to the rank of Subedar Major.

2. The case of the petitioner in brief is that he was promoted as Subedar w.e.f. 1.2.92. Persons senior to him in the seniority list of Subedar were to retire, in normal course, between August 1996 to November, 1996 and he was to become senior most Subedar by then. Accordingly, he was expecting to become Subedar Major after November, 1996. Vacancy of Subedar Major arose and one JCO, Sub. Rajan Thomas who was at Serial No. 36 in the seniority list was promoted to the rank of Subedar Major. The name of the petitioner in the seniority list was at Serial No. 52 and as per his calculations persons above him would have retired including Rajan Thomas. He was surprised to note that Rajan Thomas at Serial No.36 was promoted. Accordingly, petitioner submitted a complaint dated 26.1.97 through proper channel addressed to Director General of EME Army Head Quarters, New Delhi against non-grant of his promotion. Thereafter, on 1.3.97 Sub. Rajan TM who was at Seria No. 39 promoted to the rank of Subedar Major. His complaint was not decided and in the meantime petitioner retired on 30.4.97. Since no decision was forthcoming on his complaint dated 26.1.97, petitioner filed Writ Petition No.3648/97 in this Court. This writ petition was disposed of vide Order dated 5.9.97 directing respondents to dispose of the complaint dated 26.1.97 by a reasoned order within 8 weeks. Petitioner was given liberty to get the writ petition revived in case he was still aggrieved by the order. After the order dated 5.9.97 passed by this Court in CWP.No. 3648/97, the respondents disposed of complaint dated 26.1.97 by passing a reasoned order dated 14.10.97 and rejecting the same. In the circumstances, petitioner filed an application in CWP. No. 3648/97 seeking revival of the writ petition. However, vide order dated 5.5.98, petitioner was permitted to withdraw the said application with liberty to file a consolidated writ petition challenging order dated 14.10.97. It is in these circumstances, present writ petition has been filed.

3. It is contended by Counsel for the petitioner that in the seniority list, which was circulated, the date of enrollment of JCOs at Serial No.35 to 40 except 38 was shown as 21.5.68 and in case of JCO at Serial No. 38 it was shown as 20.5.68. Petitioner's name was at Serial No. 52 and his date of enrollent in service was shown as 11.4.69. Accordingly, the petitioner always presumed that as these JCOs at Serial Nos. 35 to 40 had entered into service prior to him they were senior to the petitioner. However, on the basis of their date of enrollments 21.5.68 they would have retired in May, 1996. Petitioner was surprised to know when they were not retired and rather promoted as Subedar Major between August, 1996 to March, 1997. It is further contended by the petitioner that only when impugned order dated 14.10.97 was passed it was for the first time mentioned by the respondents in the said order that date of entry into service of JCOs at Serial Nos.35 to 40 was 28.5.70 and the dates i.e. 21.5.68 and 20.5.68 were in fact dates of enrollment which were not to be counted for any purpose. In the said decision date 14.10.97 it was further mentioned that although JCOs at Serial Nos. 35 to 40 were junior to the petitioner on the basis of entry into their service, however, they became senior to the petitioner by virtue of their dates of promotion to the rank of paid acting Naik in the year 1974/1975 and they remained senior to the petitioner ever thereafter including Subedars. Petitioner contends that only from this decision dated 14.10.97 he came to know that he was superseded by these JCOs mentioned at Serial Nos. 35 to 40 when they wee promoted as Naik. Accordingly, petitioner challenges his supersession to the post of Naik while promoting the JCOs mentioned at Serial No.35 to 40 and on that basis he claims his promotion as Subedar Major with other consequential benefits. The prayer clause reads as under:

"In the view of the above and in the interest of justice, it is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to call for the entire relevant records of the case which are in the power and possession of the respondents; and after examining the same, may be further pleased to allow the present writ petition and to issue appropriate writ, direction or order in the nature for:

(a) Set aside the impugned EME Records letter No. JC-201316/Court Case/Pen dated 14.10.97 being arbitrary, discriminatory and illegal.

(b) Direction that the supersession of the petitioner to the rank of Naik was improper and illegal.

(c) Direction to the respondents to grant promotion to the rank of Subedar Major to the petitioner and to declare the non-promotion of the petitioner as arbitrary, discriminatory and illegal.

(d) Direction to the respondents that the petitioner be reinstated forthwith into the service with all the consequential benefits including the promotion, pay and allowances, to which he was entitled as per law as if he was continuously in service.

(e) Any other or further writ, direction or order that may be deemed fit and proper in the circumstances of the case including the costs of this writ petition be also passed."

4. The Respondents have filed the counter-affidavit refuting various averments made by the petitioner. It would be sufficient to quote the following portions of the counter-affidavit to appreciate the stand taken by the respondents:

"That the contents of para-3 are denied. It is respectfully submitted that the petitioner did not come up in the promotion zone to the rank of Sub. Major prior to the date of his superannuation being too junior. Hence he could not be promoted to the rank of Sub. Major. The petitioner was discharged from service on 30th April, 97 (AN) on completion of terms of service prescribed for the rank of Subedar vide para 163 of Regulations for the Army 1987, under Item 1(i) (a) annexed to rule 13(3) of Army Rule 1954. As regards grant of Honorary Commission, it is submitted that his name was recommended to Army Headquarters for consideration for award of Honorary Commission on the occasion of Independence Day 1996, but be probably could not make the grade in the merit list and as such he was not granted the Hony. Commission. His name was again considered for the Honorary Commission on the occasion of the Republic Day 1997 but the petitioner did not meet the ACR criteria. He was graded as "Average" in his ACR for the year 1996. As per Army Headquarters letter No.A/62204/AG/CW-2 dated 20th August, 82, a JCO should have at least three outstanding above average and two right Average ACRs in the last five year at the time of initiation of the recommendations for the award. Hence, his name was not recommended. A Sub. is given two chances during last year of his service, for grant of Hony. Commission. Hence, the JCO was discharged in the rank of Subedar only as per his service limits. The contention of the petitioner is false, fabricated and without authority.

In reply to para-8 of the writ petition it is submitted that Subedar Rajan Thomas, whose name appears at Serial No. 36 of the seniority roll is senior to the petitioner by virtue of his date of promotion to the rank of paid acting Naik. Name of the petitioner was correctly shown at Serial No.52 because he was promoted paid acting Naik w.e.f 1st May, 1977 with ante-date seniority w.e.f 1st March, 1975. Other JCOs appearing at Serial Nos. 35 to 40 were also senior to the petitioner by virtue of their dates of promotion to the rank of paid acting Naiks. It is pertinent to mention that the seniority of a person is counted from the date of promotion to the rank of Naik. Subedars mentioned at Serial No. 35 to 40 were promoted to the rank of paid acting Naik on 1st March, 1975. It is further submitted that the service of a recruit enrolled first as Boy/in Apprentices category is counted from the date of their transfer to men's service. The Subedars mentioned at Serial No.35 to 40 were junior to the petitioner before promotion to the rank of Naik. But they became senior to him after promotion to the rank of Naik by virtue of their date of promotion to the rank of Naik. The petitioner became eligible for promotion to the rank of Naik on 1st February, 75 after passing his technical trade test class Two (Armr) and as such his seniority for promotion to the rank of Naik was fixed as 01 March, 75 i.e. from the date of first available vacancy. The petitioner is repeatedly quoting his date of enrollment for determining seniority ignoring the date of promotion to the rank of paid acting Naik from which the seniority for further promotion is actually determined. In view of the above facts, the contention of the petitioner in this para is misleading and lack of substance.

The contents of para 9 of the writ petition are denied. In reply to this para the contention of para 5 above is reiterated. It is also clarified that the petitioner was considered for promotion to the rank of Naik during February, 1975 along with the men of his seniority, but he was not promoted due to lack of his technical standard, Class-II (Two) in his trade, which is one of the basic requirement for promotion to the rank of Naik as per Army Headquarters letter No. 60398/MG/EME/28 dated 18th September, 68. The petitioner was detailed to attend upgrading course class-II along with his batchmates as per his seniority. However, on perusal of service records, it is seen that he achieved the lacking technical qualification only on 21 February, 1975. It appears that he had either failed in upgrading course or did not attend it due to some personal reasons. He was subsequently detailed on the said upgrading course which he passed only on 21 February, 75. On attaining the requisite technical standard, his case for promotion to the rank of Naik was reviewed, but in the mean time the petitioner overstayed leave for three days. He was tried summarily by the CO under Army Act Section 39(h) and was awarded forefeiture of Pay and allowances for 3 days on 20 April, 76 debrarring him from promotion for next one year from the date of award of ibid punishment. Hence the petitioner was superseded for promotion to the rank of Naik. On completion of one year after summary award and on availability of a vacancy, he was promoted to the rank of Naik w.e.f. 01 May, 1977. Later on, the petitioner had put up a statutory complaint to the competent authority for restoration of his seniority in the rank of Naik. On examination of his complaint, the competent authority directed that the punishment awarded to the individual may be set aside and he be given the national seniority w.e.f 1 March, 1975 without effect on pay and allowances. Therefore, his seniority to the rank of Naik was restored w.e.f 1 March, 1975 and his further promotion was regulated accordingly. In view of the above the averments labelled by the petitioner in this para are misconstrued only."

5. A perusal of the facts mentioned above would show that the petitioner was promoted as paid acting Naik w.e.f. 1.5.77 with ante-date seniority w.e.f. 1.3.75 whereas JCOs mentioned at Serial Nos.35 to 40 of the seniority list were promoted to the rank of paid acting Naik much earlier to him in the year 1975. Therefore, they admittedly became senior to the petitioner as Naik. Thus their promotion as Subedar prior to the petitioner or for that matter as Subedar Major while denying the same to the petitioner cannot be faulted with inasmuch as they were senior to the petitioner as Subedar. The petitioner was also considered for promotion to the post of Subedar Major but was not recommended. In the meantime, he retired as Subedar.

6. Counsel for the petitioner, being aware of the fact that JCOs mentioned at Serial Nos.35 to 40 in the seniority list became senior to him and they were promoted to the rank of paid acting Naik, tried to contend that they wrongly superseded him and petitioner should have been promoted to the rank of paid acting Naik before them. However, this aspect cannot be gone into at this stage after almost 24 years of promotion of JCOs at Serial Nos. 35 to 40 i.e. w.e.f. 1.2.75 as that of petitioner who became promoted to the rank of paid acting Naik w.e.f 1.3.75. For this reason alone, viz, the challenge of the petitioner to this aspect is highly belated. This petition warrants to be dismissed. Not only promotions to the rank of paid acting Naik were made in the year 1975, thereafter further promotions of these JCOs were made to higher ranks and this settled position cannot be unsettled at this point of time when petitioner, in the meantime, has even retired from service. Therefore, the respective dates of promotions of JCOs at Serial Nos.35 to 40 and that of petitioner to the rank of Naik have to be maintained once this position is accepted. No infirmity can be found in the action of the respondents in promoting the JCOs mentioned at Serial Nos. 35 to 40 in the seniority list to the post of Subedar Major who were admittedly senior to the petitioner in the said seniority list. The petitioner is, therefore, without any merit and is, accordingly, dismissed.