Sub/Stg Kaushal Kishor Sharma vs Chief Of Army Staff And Ors.
2007 Latest Caselaw 921 Del

ORDER

T.S. Thakur, J.

1. In this writ petition, the petitioner has prayed for a writ of certiorari quashing order dated 23rd February, 2007 promoting respondent No. 6 to the rank of Subedar Major w.e.f 1st March, 2007.

2. The petitioner is working as a Subedar in the Indian Army. He is eligible for promotion to the next higher rank of Subedar Major. A vacancy in that rank having occurred, a Departmental Promotion Committee was constituted which considered the cases of the eligible Subedars based on their inter se merit and recommended the promotion of Subedar Arvind Singh Negi against the same. Aggrieved by the said promotion, the petitioner filed a representation to the Chief of Army Staff through his counsel Sh. C.M. Khanna, advocate in which the only grievance made by the petitioner was that Subedar Arvind Singh Negi was completing his 25 years of service only on 11th March, 2007 and was, therefore, ineligible for consideration or promotion to the next higher rank on the date the Departmental Promotion Committee was held. The representation was forwarded to the Records Office of Bengal Engineer Group, Roorkee, from where came a detailed reply dated 11th April, 2007 addressed to Sh. Khanna, counsel for the petitioner inter alia informing the petitioner that Subedar Arvind Singh Negi was eligible for promotion and had been rightly considered and promoted by the respondents. The reply pointed out that Subedar Arvind Singh Negi had forwarded a request in terms of a letter dated 31st October, 1998 deferring his promotion till December, 2006 which request was accepted in terms of Army Headquarter letter dated B/33513/AG/PS2(c) dated 30th May, 1995. The communication further stated that since the deferment request of Subedar Arvind Singh Negi was not made in terms of policy letter dated 26th December, 2003 referred to by the petitioner, the petitioner's grievance that Subedar Negi was not eligible for consideration for promotion to the next higher rank was untenable. The communication sent to the petitioner which by far sums up the case of the respondents may at this stage be extracted in extenso:

Coord & Pers Dte/E1A Engineer-in-Chief's Branch Integrated HQ of MoD(Army) Kashmir House DHQ PO, New Delhi-11

REPRESENTATION ON BEHALF OF JC-325046M SUB/STG KAUSHAL KISHORE SHARMA OF CAMS, DELHI CANTT-10 AGAINST DENIAL OF PROMOTION TO THE RANK OF SUB MAJ AND MALAFIDE GRANT OF THE SAID PROMOTION TO SUB/STG ARVIND SING NEGI WITHOUT fulfillLING THE ELIGIBILITY CONDITION FOR CON SIDERATION FOR SAID PROMOTION

1. Refer to Legal notice No Nil dated 29 Mar 2007 served by Shri C.M Khanna, Advocate Delhi High Court recd under Coord & Pers Dte/E1A, Engineer-in-Chief's Branch, Integrated HQ of Mod (Army), New Delhi letter No 39382/Legal/Gen/1666/6A/E1 A dt94 Apr 2007.

2. The representation on behalf of JC-325046M Sub/STG Kaushal Kishore Sharma of CAMS, Delhi Cantt has been examined in detail. The reply on the representation is furnished in succeeding paragraphs:

(a) The information mentioned in representation against denial of promotion to the rank of Sub Maj and malafide grant of the said promotion to Sub/STG Arvind Singh Negi without fulfillling the eligibility condition for consideration for said promotion is totally baseless, it seems that the JCO does not have the kn owledge of rules and regulations.

(b) Option once exercised is final and no alteration/revision is accepted at any cost. The JCO has alleged about the promotion of JC-322560W Sub/STG Arvind Singh Negi to the rank of Sub Maj and has requested to cancel his promotion. It is not understood as to how he can justify his request as both the indl i.e. Sub/STG Kaushal Kishore Sharma and Sub/STG Arvind Singh Negi have been considered in the DPC-2006 and the later was selected in DPC-2006 whereas the applicant could not make the place in DPC-2006 due to his low merit.

(c) Further Sub/STG Arvind Singh Negi had fwd his deferment up to Dec 2006 vide 501 FSEG letter No 39753/229/A dt 31 Oct 1998 and the same has been accepted in the light of Army HQ letter No B/33513/AG/PS2(c) dt 30 May 1995 earlier, not as per Integrated HQ of MoD (Army), New Delhi Letter No. B/33513/DPC/AG/PS2(c) dt 26 Dec 2003 which was issued later and cam into force wef 01 Jul 2004.

(d) As regards non intimation of result of the DPC in respect of JC-325046M Sub/STG Kaushal Kishore Sharma, it is submitted that only those Subedars who were selected for promotion as per vacancy are being intimated about their promotion through Do letter to his CO/OC unit as per para 17 of Adjutant General's Branch, Integrated Headquarter of MOD (Army), New Delhi letter No B/33513/AG/PS2(c) dated 10 Oct 1997. However, it is also intimated for your information that JC-325051X Sub/STG Daya Singh and JC-325046M Sub/STG Kaushal Kishore Sharma were screened in DPC-2005 for promtoion to the rank of Sub Maj for the year 2006. JC-325046M Sub/STG Kaushal Kishore Sharma was placed in 2nd position due to low merit against the one vacancy and in DPC-2006 JC-325560W Sub/STG Arvind Singh Negi, JC-326153A Sub/STG Yusuf Khan and JC-325046M sub/STG Kaushal Kishore Sharma were screened for promotion to the rank of Sub Maj for the year 2007. JC-325046M Sub/STG Kaushal Kishore Sharma was also again placed in 3rd position due to low merit against the one vacancy. Hence he could not be intimated about the result of DPC due to low merit as well as non selection for promotion as per policy in vogue on the subject matter.

3. It is further added for your kind information that the procedure for selection of Sub for promotion to the rank of Sub Maj is based on Over All Performance basis and not on seniority as stated by the petitioner. The DPC is presided over by the Col Comdt of the Group having the rank of Lt Gen/Maj Gen and no chance is left for any malafide and prima-facie as claimed by the individual.

4. In view of above facts, the points mentioned by the petitioner are baseless, not justified and not permissible as per rule in vogue, hence the representation rejected." 3. Dissatisfied with the above, the petitioner filed another representation dated 23rd April, 2007 through his counsel finding fault with the view taken by the respondents. Barely a week after the making of the said representation, he has filed the present writ petition for a mandamus seeking disposal of the same and in the alternative, a writ of certiorari quashing order dated 23rd February, 2007 promoting respondent No. 6 to the rank of Subedar Major. 4. We have heard Mr. Khanna, counsel for the petitioner at considerable length and perused the record. As seen above, the petitioner's grievance is against the promotion of respondent No. 6, Subedar Arvind Singh Negi to the next higher rank of Subedar Major. It is however common ground that the said promotion has been ordered on the basis of an assessment of inter se merit of eligible Subedars by a duly constituted Departmental Promotion Committee. On behalf of the petitioner, it was fairly conceded by Mr. Khanna that the petitioner was not challenging the assessment of the inter se merit of the candidates by the DPC. Even otherwise, neither in the representation filed by the petitioner nor in the writ petition, has the petitioner assailed the method of evaluation of the inter se merit of the candidates by the DPC or asserted that the petitioner was more meritorious than Subedar Arvind Singh Negi. The short point which Mr. Khanna urged before us with considerable tenacity was that Subedar Negi was not eligible for promotion to the next higher rank, keeping in view the fact that the deferment of promotion in his case would come to an end only on 12th March, 2007 and not on the date he was actually considered for promotion by the DPC or promoted by the impugned order of promotion. The respondents, on the other hand, maintain that Subedar Arvind Singh Negi had exercised his option of deferring his promotion to the next higher rank till December, 2006 in terms of a deferment policy promulgated in May, 1995. That request was accepted by the competent authority. The respondents assert that the said deferment had nothing to do with subsequent policy letter dated 26th December, 2003 which came into force w.e.f. 1st July, 2004. It is also the case of the respondents that an option for deferment of promotion once exercised could not be withdrawn or revised. There was, therefore, no question of Subedar Arvind Singh Negi, revising his option in terms of the subsequent policy or being rendered ineligible on that account.

5. A reading of the promotion policy of the year 1995, a copy whereof has been produced by the petitioner as Annexure P-2, would show that individuals could forego or defer their promotion till completion of 28 years of service or attaining 48 years of age, whichever was earlier. The need for introducing a policy permitting deferment of promotion, it appears, arose because of the fact that Army Personnel in the rank of Subedars are entitled to a tenure of only four years. Consequently, such of them as pick up their rank early would retire without completing the minimum pensionable service. In order to enable them to render standard service for pension, the government came out with a policy wherein such JCOs could defer their promotion and pick up the rank on a future date subject to the fulfilllment of the conditions stipulated under the policy. The policy came into force in the year 1979 in terms of a circular letter dated 7th September, 1979 issued by the Adjutant General in the Army Head Quarter. The circular was in the following words:

Tele: 690451/791 Vyaktik Seva Nideshalaya (PS 2) Adjutant General Shakha Thal Sena Mukhyalaya Personal Services Directorate (PS 2) Army General's Branch Army Headquarters West Block No. 5, RK Puram New Delhi-110022

94930/AG/PS2(c) 7 Sep 79

The Officer-in-Charge Records All Regts/Corps Record Offices

PROMOTION TO THE RANK OF SUBEDAR MAJOR

1. Refer to the HQ letter No. 94930/AG/PS 2(c) dated 7 Jul 79.

2. The matter has been examined in depth. It is not desirable in the interest of service to effect any increase in the existing tenure of Sub Majs, with a view to enabling some of them, where promoted in the early years of service, to complete the standard service for pension. Any increase in the existing tenure would, besides resulting in a decline in the efficiency of the incumbent, result in promotion blockage, which is not desirable. Moreover, under normal circumstances, few Subedars should come up for promotion to Subedar Major before 24 years of service.

3. Some Regts/Corps have recommended a procedure, whereby, a Sub, who names up for promotion to Sub Maj in the early years of service, renders in option certificate to elect one of the following options:

(a) That the individual is willing to forego or defer his promotion till completion of 24 years of service, and take a chance for promotion on occurrence of a vacancy; or

(b) He is willing to accept the promotion and retire without earning the standard pension of the rank, on completion of the existing tenure/service limit.

It is considered that adoption of the above procedure would, besides helping the individual in making the final choice, also provide an option best suitable in individual circumstances. Adoption of the procedure would also significantly reduce representations from adversely affected individuals.

Sd/-

(Krishan Chand) Civilian Staff Adhikari/CSO Sthnapan Sahayak Adjutant General/Offg AAG PS 2 Adjutant General.

6. By another circular dated 30th May, 1995, the above was partially modified in that a JCO could defer his promotion till he completed 28 years of service or attained 48 years of age whichever was earlier. The amendment reads as under:

That the individual is willing to forego or defer his promotion till completion of 28 years of service or attaining 48 years of age, whichever is earlier take a chance for promotion on occurrence of a vacancy: or

7. The exercise of option by Subedar Arvind Singh Negi could therefore be not only by reference to completion of 28 years by him but also by reference to his attaining the age of 48 years. It is not the case of the petitioner that Subedar Negi had not deferred his promotion by reference to his age. In any event, the exercise of the option by Subedar Arvind Singh Negi by reference to the 1995 policy is not under challenge before us. That apart once the option exercised by Subedar Negi has been accepted by the competent authority, there was no question of any other Subedar finding fault with that exercise or questioning its acceptance. We have, thus, no difficulty in accepting the respondents version that Arvind Singh Negi had exercised his option in terms of the 1995 policy and deferred his promotion up to December, 2006 to be factually correct. This would mean that for any vacancy occurring any time after December, 2006, Subedar Arvind Singh Negi was eligible for consideration and promotion. There could have been no legal impediment or irregularity in the promotion of Subedar Arvind Singh Negi against a vacancy that occurred at any time after December, 2006. The vacancy in this case having occurred in February, 2007, there was no illegality in the appointment of Subedar Negi to the same.

8. We must before parting observe that after the hearing of the matter had concluded and we were proceeding to dictate the order, Mr. Khanna, counsel for the petitioner rose to make a personal grievance. He submitted that over the past three months or so, he has got a feeling that the court is unduly hostile towards him inasmuch as he has not been able to secure any favorable order. He submitted that although he does not recall any case where this Court may have dismissed a writ petition filed by him, yet certain interim orders passed by this Court have not been to his liking. When asked to give any particulars of the orders where this Court has been unfairly harsh to him, Mr. Khanna submitted that he does not recall the orders but has a feeling that he has not been dealt with properly.

9. There is no gainsaying that every counsel who appears before this Court is entitled to expect a fair treatment to be given to the case in which he appears. That does not however mean that a counsel must win every case that he pleads. So also if an order does not properly deal with the merits of the contentions urged before the Court, the same can be questioned in appropriate proceedings before this Court of before the Apex Court. A counsel who loses a case cannot, instead of adopting legal recourse, make a grievance that since he is not getting favorable orders, the court ought to transfer the matter to some other Court. If allowed to do so, the counsel can choose benches of their choice. There is no gain saying that bench hunting would neither be proper nor permissible as a healthy practice. Mr. Khanna is a very senior counsel and is entitled to show perseverance in his arguments but to say that every matter that he contests must result in a judgment to his liking may be taking the expectations of a professional advocate too far. While we donot recall having passed any order which could be termed as unfairly harsh, we consider it appropriate to direct that the Registry shall not list any matter in which Mr. Khanna appears before this bench.

10. With the above observations, the writ petition fails and is hereby dismissed but in the circumstances without any order as to costs.