No. 4260311A Hav (Clk) Satyananda ... vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 2055 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was enrolled in the Indian Army on 14th July, 1980. He performed his duty with sincerity and to the satisfaction of all concerned. During his service, he was awarded medals and was also a recipient of a certificate of appreciation from the Commandant, Infantry School on the occasion of Infantry Day on 27.10.1999 because of his outstanding work . The petitioner was promoted to the rank of Havildar in category of Clerks. On 9th April, 2000 while the petitioner was serving at Infantry School, Mhow, his posting order was issued to 21 Bihar and he was to complete the movement by 04th May, 2000. The posting order was not implemented and the petitioner was not permitted by the respondents to move to the place of posting. During the period of May-June of that year, there was Infantry Commanders' Conference at the school and the school authorities had taken up the matter with the Army Headquarter to waive off one regimental ACR of the petitioner on 17th July, 2000. The Army Headquarter, however, directed to ensure that the petitioner was returned to his unit in time to earn the requisite ACR for promotion to the next higher rank vide their letter dated 31.7.2000. The petitioner could not, thus, earn his regimental ACR and a request was made for waiver off one regimental ACR to enable the petitioner to get his rightful promotion. The petitioner had unblemished 20 years' service record. The DPC was held in October, 2000 but the petitioner was not promoted due to lack of ACR criteria but juniors to the petitioner were promoted to the next higher rank and as such, the petitioner stood superseded. On 20.11.2000, the petitioner was relieved from Infantry School, Mhow and was allowed to join his duty at 21 Bihar and the request made through proper channels for waiving off the regimental ACR was rejected by the Army Headquarter on 29.1.2001. The petitioner preferred a statutory complaint to the competent authority on 10.4.2001 which was also rejected vide their letter dated 11.12.2001, resulting in filing of the present petition. According to the petitioner, lack of regimental ACR was for no fault of the petitioner. The respondents had not relieved the petitioner due to non-arrival of his relief and also the Conference of Infantry Commanders. The school authorities had failed to implement the posting order issued by the Army Headquarter to move the petitioner to his regiment so as to enable him to earn the regimental ACR. The career profile of the petitioner is stated to be outstanding and he has been victim by the circumstances created by the respondents. Consequently, in terms of the policy laid down by the Army Headquarter in their letter No. B/33513/AG/PS2(c) dated 18.1.1993, the petitioner was entitled to promotion and waiver off ACR criteria applicable to promotion. In his statutory complaint, the petitioner had raised all these issues but the said complaint has been rejected without proper application of mind and by a cryptic order. On these grounds, the petitioner challenges the correctness of the action of the respondents.

2. In the counter affidavit filed by the respondents, the facts are hardly controverter. It is not disputed that the petitioner had earned medals or awards by virtue of his deployment in different units but they were not of any gallantry/meritorious service. The petitioner is stated to have received Sainya Seva Medal with Clasp JandK, 9 years long service Medal and 50 years independence Medal. It is also not disputed that the petitioner had unblemished and meritorious service but as he did not satisfy the criteria of promotion, he could not have been promoted to the next higher rank. The petitioner was posted to Infantry School, Mhow w.e.f 5th May, 1007 on compassionate grounds at his own request on his application dated 6.12.1996 on release of one time Extra Regimental Employment vacancy. The case of the petitioner came up for consideration for promotion to the rank of Naib Subedar (Clerk) on 1.11.2000 along with his batch-mates and as per the Rules and Army instructions, only last five ACRs are required for consideration for promotion to the rank of Naib Subedar, out of which minimum three reports must be in the rank of Havildar and in case of shortfall rest may be in the rank of Nk. At least three, out of last five reports should be ?above Average? and remaining should not be less than 'High Average?. Out of this, two reports must be on Regimental Duty. The petitioner lacked one regimental report at the time of his consideration for promotion and did not have sufficient experience to normal unit administration which is essential for Head Clerk duties and resultantly, the petitioner was not promoted. It is also stated that the statutory complaint was examined and upon careful consideration, the same was rejected by the Chief of Army Staff being without merit. According to Army Headquarter, the petitioner was required to go to his unit in time so as to earn at least one regimental report.

3. It may be noticed at the very outset of discussion on the merits of the case, that the fault in non-earning of regimental ACR is not attributable to the petitioner. The petitioner was working at the Infantry School and it was for those authorities to relieve the petitioner to join 21 Bihar. However, he was retained at the Infantry School in the interest of the organization and was not relieved for a period of six months as a result of which he could not earn the regimental ACR. The request of the petitioner and the authorities of the Infantry School for waiver off the ACR, was declined by the authorities. In the entire counter affidavit, it has no-where been stated as to what ought to have been done by the petitioner which he failed to do. The petitioner was a mere Havildar and it was for the concerned administrative authorities at the Infantry School as well as at the Army Headquarter to resolve the issue timely rather than cause prejudice to the petitioner. It is not the case in the counter affidavit that the petitioner was at fault and he stayed at the Infantry School on his own accord or in a manner not expected from a member of the Force. His stay in the school is stated to be an administrative necessity. Otherwise, there was no occasion for the authorities concerned not to relieve the petitioner as per the directive of the Army Headquarter. In fact, during the pendency of this writ petition and despite the statutory complaint having been rejected, on 25th May, 2004, the respondents passed the following order:

REGD SDS/BY POST

Tele Mill : 6567 Bihar Regiment Abhilekh Karyalaya

Records The Bihar Regiment Danapur Cantt -

801503

1017/I/43/RA 25 May 2004

21 BIHAR

c/o 56 APO

ZRO Jaipur

15 BIHAR

c/o 56 APO

GRANT OF NOTIONAL SENIORITY

1. Under the provisions of para 11 of AHQ letter No. B/33513/AG/PS2(c) dated 10 Oct 1997, notional seniority in respect of following JCOs Clks mentioned against each have been accorded vide Army HQs letter No A/00520/Rlx/Inf-6 (Pers) dated 24 Sep 2003 and even No of dt 07 Apr 2004:

(a) JC-559102W Nb Sub (Clk) - 01 Nov 2000 S N Rath (21 BIHAR)

(b) JC-558954Y Nb Sub (Clk) - 01 Sep 2001 Ram Pramod Singh (ZRO Jaipur)

(c) JC-559103 Y Nb Sub (Clk) - 01 Sep 2002 Jaladhar Rout (15 BIHAR)

2. Part II Order for grant of notional seniority of ibid JCOs Clk is under publication and being fwd shortly.

3. Please ack.

SD/-

(R.K. Sharma)

Major

SRO

For OIC Records

4. In view of the above order, the only limited question that remains to be adjudicated by the court is whether the petitioner is entitled to the promotional benefits w.e.f. October, 2000 when the DPC met and the petitioner was not granted promotion while his juniors were granted the same or from any other date subsequent thereto. The statutory complaint of the petitioner was rejected by a two lines order that his complaint has been considered and rejected. This order, even apparently, did not consider the reasons for non- earning of regimental ACR and whether the petitioner was at fault or not. Absence of such consideration would certainly vitiate this order and it can hardly stand to judicial scrutiny. The issuance of the letter dated 25.5.2004 itself shows that the petitioner was fit to be promoted w.e.f. 1st November, 2000. Why the respondents have opted to grant the petitioner only a notional seniority and promotion and not given him the benefits again remains unexplained on record. The case of the petitioner is squarely covered by a Division Bench judgment of this Court in the case of Rhm Rajinder Singh v. UOI and Ors. WP(C) No. 4979/2003, DECIDED ON 1.11.2004 wherein the court held as under:

A bare reading of the same indicates that the petitioner has a total of five Annual Confidential Reports in rank of Havilder but out of the same, only one was regimental report. In case the petitioner would have been relieved in time from the Headquarters, that is, 18, Artillery Brigade Camp, the petitioner would have earned the second regimental report and in that event there was no necessity of obtaining any waiver of regimental report also. In the above report, it was also specifically mentioned that the petitioner is a good and deserving candidate for promotion to the next rank which is disclosed from his ACRs to which mention is made in the said report. It is also established from the said report that the petitioner had become overage for fulfillling the qualitative requirement of the mandatory two regimental reports as he was not relieved from Headquarters, 18, Artillery Brigade Camp. The said report although was considered by the Competent Authority but no waiver was granted. As a result, the petitioner could not get his promotion to the rank of Junior Commissioned Officer although it is established from the record that he was an eligible and deserving candidate for promotion to the next rank.

7. Considering the entire facts and circumstances of this case especially the fact that it is the respondents who were responsible for not reliving the petitioner in time, we direct that a waiver, as contemplated in the Army Headquarters letter dated 4th October, 1997, should be given to the petitioner as he deserves such a waiver in the facts and circumstances of the present case. After giving waiver of the same, the case of the petitioner for promotion to the rank of Junior Commissioned Officer shall be considered by the respondents within three weeks from today and, thereafter, appropriate orders in accordance with law shall be passed by the respondents. If the petitioner is found fit for such promotion to the said post on consideration of the records, an order shall be passed by the respondents giving such promotion to the petitioner with all consequential benefits.

8. In terms of the aforesaid observations, the writ petition is allowed leaving the parties to bear their own costs.?

5. In somewhat similar case wherein no fault was attributable to the petitioner, this Court while deciding CW No. 820/97 on 9.9.1997, held as under:

?There being no fault of the petitioner he cannot be deprived of his right for promotion to the rank of Subedar Major (Clerk). Applying the principle of natural justice and the rules of the respondent, directions are given to the respondent to constitute a Special Board for consideration of the petitioner for the vacancy which was due to him as per his slot. The Special Board be constituted before the end of September, 1997 or first week of October, 1997 so that the case of the petitioner for promotion to the post of Subedar major for the slot of 1995-96 could be considered otherwise the petitioner would get retired in October, 1997. In case he is promoted he would get four years.

It is in this background that above directions are given.

With these observations, the petition stands disposed.?

6. In view of the fact that the petitioner was found ineligible for promotion only for the reason that he had not earned regimental ACR and now the respondents have granted him notional promotion from that very date, we are unable to accept the plea of the respondents that the petitioner would not be entitled to actual benefits of the promotion. In fact, earlier, the petitioner has been wronged as a result of administrative inaction and settlement of issue between the Infantry School and the Army Headquarter and now he is again sought to be wronged by the respondents for no fault in any way attributable to the petitioner. If the stand of the respondents is accepted, it will tantamount to perpetuating a wrong at the cost of the petitioner. We may also notice that it is nobody?s case that any fault is attributable to the petitioner or he could have helped in resolving the tangle of his posing to 21, Bihar particularly when his posting was conditional upon joining of a relief and that he was handling mess accounts. As such, his relieving from the school was not in the interest of the organization. This fact is eminently clear from the record of the court file where vide letter dated 25th October, 2000, it was stated as under:

1. I am approaching you in connection with a case of No 4260311A Hav/Clk SN Rath for waiving off one mandatory regimental report in terms of Para 12 Army HQ letter No B/33513/AG/PS-2(c) dt 10 Oct 97. The NCO Clk is highly proficient, sincere and hard working. He could not earn regimental report as he was not relieved by the Infantry School for the following reasons:

(a)His posting was to be carried out on relief. The relief reported late by 5 months.

(b)The NCO Clk is handling Mess Acct and could not be sent without relief during the period of Infantry Cdrs conf and for other official commitments thereafter, in the interest of the organisation.

2. It is therefore a genuine case and there is no fault of the indl. In accordance with the rules, statement of case has been fwd to Records The Bihar Regt for endorsement and onward submission to Inf Dte (Inf-6). May I request you for favorable comments at your end.

3. Advance copy of statement of case is encl herewith.?

7. None of these events can even remotely be suggested to be attributable to the action or inaction on the part of the petitioner. The respondents cannot be permitted to take advantage of their wrong decisions to the disadvantage of the petitioner.

8. Consequently, this writ petition is allowed. The respondents are directed to grant to the petitioner all promotional benefits w.e.f. 1, November, 2000. However, in the facts and circumstances of the case, the parties are left to bear their own costs.