Ex. Captain Gulab Singh Rana vs Union Of India
2008 Latest Caselaw 940 Del

                     Reportable
 *            HIGH COURT OF DELHI AT NEW DELHI


+                 WP (C) No. 3068/2003


%                               Reserved on : May 23, 2008
                              Pronounced on : July 04, 2008



# Ex-Captain Gulab Singh Rana         .....Petitioners
!             through :       Petitioner in person


                          VERSUS


$ Union of India                         .....Respondent
!               through :           Ms. Maneesha Dhir, Adv.


CORAM :-
* THE HON'BLE MR. JUSTICE A.K.SIKRI
  THE HON'BLE MR. JUSTICE J.M. MALIK

      (1) Whether reporters of local paper may be
          allowed to see the judgment?

      (2) To be referred to the reporter or not?

      (3) Whether the judgment should be reported
          in the Digest ?


A.K. SIKRI, J.

1. The petitioner is aggrieved by order No. 12(2)/99-

D(MS) dated 31.10.2001 vide which his services have

been terminated by the Central Government in

exercise of powers conferred by Section 19 of the

Army Act 1950 read with Rule 15 of the Army Rules,

1954. This order reads as under:-

"No. 12(2)/99-D(MS) Government of India Ministry of Defence New Delhi, dated 31st October 2001

After considering the performance regarding inefficiency of IC-40157 Captain G S Rana, AD Arty, his reply No. 40157H/14/A dated 20th December 1999 to the Central Government Order No. 12(2)/99-D(MS) dated 06th December 1999 served on him and the recommendation of the Chief of the Army Staff in the matter, the Central Government in exercise of the powers conferred by Section 19 of the Army Act 1950 read with Rule 15 of the Army Rule 1954 hereby order that the said IC-40157 Captain G S Rana, AD Arty shall be removed from service with such terminal benefits as admissible under the rules.

(By order and in the name of the President)

sd/

(Gurdial Singh)

Deputy Secretary to the Government of India

To

The Chief of the Army Staff (in quadruplicate):- For communication to the officer through the staff channels with the necessary administrative instructions for

further action in accordance with the existing procedure."

2. Petitioner has prayed for quashing of the aforesaid

order. He has also asked for various other

consequential as well as additional reliefs. The

necessary facts, shorn of avoidable details, are

recapitulated in the first instance.

3. A perusal of the petition unfolds these averments:

The petitioner started his career with the Indian Air

Force as Airman in the year 1974. After serving there

for little over three years, he was selected for

Commission into the Army and from 1.1.1978 to

31.12.1980 underwent Officer‟s Training at Indian

Military Academy, Dehradun. After passing out the

said Academy, he was given permanent regular

commission in the Army in the rank of 2 nd Lieutenant

on 19.12.1981. From 1.1.1982 to 13.6.1984 he was

posted in 129 Air Defence Regiment at Srinagar (J &K)

which is a field area posting. During this period, he

also did Young Officer‟s Course of Air Defence

Artillery in the year 1982 and Platoon Weapon

Officer‟s Course in the year 1984. From 14.6.1984 to

21.9.1988 he was posted in Gurdaspur, where he took

part in Operation Blue Star and Oepration Trident.

With effect from 1.11.1984 he was promoted as acting

Captain.

4. It is further averred that during his service in the

Army he kept on improving his credentials by

undertaking various courses, details whereof are as

under:

   Date                              Course


   1.4.1986      to    Advance Gunnery Officer‟s Course
   28.6.1986

   27.10.1986 to       Basic Missiles Officer‟s Course
   20.12.1986

   29.12.1986 to       Electronic Warfare Officer‟s Course
   24.1.1987

   5.10.1987  to       Kvadrat/Strela Officer‟s Course
   24.12.1987

   5.12.1988     to    Junior Command (All Arms) Course
   4.3.1989

   3.12.1989     to    Western     Command        Pre-Staff
   13.1.1990           Course

5. During this period, he was posted to different places

namely filed area as well as peace area. On 10.7.1990

he was appointed Battery Second-in-Command. This

appointment was upgraded from Captain to Major by

Army Head Quarter on 31.10.1991. He officiated as

Battery Commander seven times between 8.10.1990 to

27.5.1992. Vide orders dated 16.7.1993 with effect

from 19.12.1992 he was granted substantive Major‟s

rank. However, vide notification dated 17.3.1994, the

Substantive Major‟s rank granted to him was

cancelled which was published in Gazette

„Corrigendum‟ No. 306. The petitioner was not happy

with this cancellation and perceived it as illegal

notification. He accordingly submitted first

application for pre mature retirement on 20.5.1994.

This application was returned by the Army Head

Quarter vide its letter dated 20.6.1994 asking

petitioner to give specific reasons. Pursuant thereto,

second application for pre mature retirement dated

23.8.1994 was submitted by him. Giving his reasons

for seeking pre mature retirement, the petitioner also

mentioned that he had neither been given „Local Rank‟

even after doing the duties seven times, in service

interest, of the higher appointment of Battery

Commander in High Altitude Area nor was he given

any substantive promotion by time scale to the rank of

Major. On 17.1995 the Army Headquarters asked the

petitioner to substantiate the grievance and

application for pre mature retirement was kept

pending till grievance of the petitioner is settled. The

petitioner, under these circumstances, submitted a

statutory complaint dated 23.8.1995 substantiating

the reasons/grievance given by him in his application

for pre mature retirement dated 23.8.1994. The

petitioner, however, states that statutory complaint

was not finalized.

6. The petitioner thereafter also preferred statutory

complaint dated 30.3.1998 against non grant of Local,

Acting and Substantive rank of Major but the same

was rejected by the Ministry of Defence vide its order

dated 16.9.1999. This was followed by show cause

notice dated 6.12.1999 under Section 19 of the Army

Act, inter alia, stating that after considering the

performance regarding inefficiency of the petitioner

and the recommendations of Chief of Army Staff in the

matter, the Central Government was of he considered

view that he should not be retained in service due to

his inefficiency. He was asked to submit papers either

for retirement or resignation. He was also given

opportunity to make his submissions, if any, within 15

days of receipt of the said show cause notice. The

petitioner submitted his reply dated 20.12.1999.

Thereafter, he also sent letter dated 7.1.2000

requesting Complaints Advisory Board to put up

application for pre mature retirement dated 23.8.1994

to the Central Government for decision. His request

for pre mature retirement was ultimately turned down

by the Government of India vide letter dated 6.9.2001.

Thereafter, petitioner submitted his third application

dated 9.10.2001 for pre mature retirement. However,

request in this application was not considered and

instead on the basis of show cause notice issued to the

petitioner on 6.12.1999 under Section 19 of the Army

Act, orders dated 31.10.2001 were passed ordering

the petitioner‟s removal from service. Pursuant to this

order, the petitioner was removed from service on

28.11.2001. Representation given by the petitioner

was turned down on 6.3.2002. The petitioner

submitted fresh representation dated 10.6.2002

through the Department of Administrative Reforms &

Public Grievances and as no action was taken on this

representation, present writ petition was filed in May,

2003.

7. Apart from challenging the removal order, the

petitioner has asked for grant of local rank of Major

during the period from 8.10.1990 to 31.12.1990,

acting rank of Major w.e.f. 31.10.1991 to 18.12.1992

and substantive rank of Major w.e.f. 19.12.1992. In

the alternative, it is prayed that the petitioner be

allowed to avail his entitled thirty days balance of

annual leave for the 2001 from 27.11.2001 to

26.12.2001 as requested by him when he was in

service to enable him to complete twenty years of

commissioned service thereby making him eligible for

time scale promotion to the rank of Lieutenant Colonel

and then retire the petitioner from service in the rank

of Lieutenant Colonel with consequential benefits.

Petitioner has also asked for quashing of Reprimand

awarded to him on 17.2.1998.

8. Having given this factual background, we may now

proceed to discuss the submissions of the parties and

our conclusion on each relief sought by the petitioner

herein.

i) The petitioner had made statutory complaint

dated 30.3.1998 to the Central Government

against non-grant of local rank, acting rank

and substantive rank of Major. This

representation was considered by the

Ministry of Defence, Government of India, but

rejected vide order dated 16.9.1999. The first

relief which the petitioner claims in these

circumstances is that the aforesaid order be

quashed and he be given these ranks.

A. LOCAL RANK:

His plea was that he has not been

granted Local Rank to the appointment held

by him, though he was posted in service

interest during his High Altitude Area tenure

in 326 Light Air Defence Regiment

(Composite) between 8.10.1990 to 5.10.1991

from time to time. Submission of the

petitioner was that out of this period, from

8.10.1990 to 31.12.1990 he was Battery

Commander. This is about 12 weeks‟ period,

which, inter alia, is more than 10 weeks.

However, his request to give the Local Rank

was rejected vide order dated 16.9.1999 on

the ground that "an officer cannot be granted

Acting Rank and pay and allowance of higher

rank in case the absence of permanent

incumbent is less than 10 weeks. In the

instant case, the officer has never officiated

for the period exceeding 10 weeks". His

submission was that this was a wrong factual

basis on which his request was rejected. The

submission of the respondents, on the other

hand, is that the grant of Local Rank is

discretionary as per Para 82 of the

Regulations for the Army (Revised Edition),

1987 read with Army Order 139/74. It is

granted in very exceptional cases. Local Rank

is personal to an individual and is not granted

automatically to incumbent of an

appointment. Therefore, no right as such is

available to the petitioner to claim the Local

Rank. Relevant Para 2 of Army Order 139/74,

to which reference is made in this behalf, is as

under:-

"2. Local rank is granted in very exceptional cases. It will not be granted in cases where it involves an unauthorized revision of the rank considered adequate for an appointment by Army HQ and promulgated in a war/interim/peace establishment."

It may be that the grant of Local Rank is

discretionary and is granted in exceptional

cases. However, it is not the case of the

respondent that the petitioner‟s case was

considered in the light of the aforesaid Army

Order and rejected. On the contrary, the

request of the petitioner to grant Local Rank

was shot down on the ground that he was not

even eligible to be considered, namely, he had

not officiated for the period exceeding 10

weeks. Thus, on this ground alone, at the

outset his case was not considered for Acting

Rank in the light of Army Order 139/74.

During arguments it could not be disputed

that the petitioner had, in fact, worked for

more than 10 weeks as Battery Commander,

i.e., from 8.10.1990 to 31.12.1990. It

constitutes more than 10 weeks‟ period. His

case was rejected on the wrong premise. The

Supreme Court has held, in no uncertain

terms, in the case of Mohinder Singh Gill v.

Chief Election Commissioner, AIR 1978 SC

851, that the respondent can justify the order

only on the reasons contained therein. We

are, therefore, of the opinion that case of the

petitioner needs to be considered, on merits,

for the grant of Local Rank.

B) ACTING RANK:

The plea of the petitioner was that he

should have been granted rank pay of Acting

Major from 31.10.1991 to 18.12.1992 when

he held the appointment of Battery Second-in-

Command, tenable by Major in Light Air

Defence Regiment. This request of the

petitioner was turned down vide order dated

16.9.1999 giving the following reasons:-

"6. An officer is granted acting rank by the CO depending upon the availability of vacancy and when he is fully satisfied with his work and not by merely completing requisite period for eligibility for acting rank. More importantly, however, the officer was put on adverse report by the IO in report ending 1/91. The officer was subsequently put on review report and therefore, in accordance with the provision contained in para 85 of SAO 3/S/89 and SAI 1/7/84, he was debarred from grant of acting rank carrying higher responsibilities. The question of publishing his Acting promotion in the Gazette, therefore, does not arise."

It is clear from the above that the

reasons given are: (i) Acting Rank is given

depending upon the availability of vacancy

and when the Commanding Officer is fully

satisfied with the officer‟s work. The

petitioner was put on adverse report by the IO

in the report ending 1/91.

(ii) He was subsequently put on review

report and therefore, was debarred from

grant of Acting Rank carrying higher

responsibilities.

It is not in dispute that the petitioner had

worked in the rank of Major from 31.12.1991

to 18.12.1992. The communication dated

31.10.1991 is enclosed by the petitioner as

per which, 1423 appointments held by the

Captains have been upgraded to the rank of

Major as per the details given in Appendix A

attached to the said letter. It included the

appointment of the petitioner as well. Thus,

he was upgraded to the rank of Major vide the

said letter. Other documents to this effect are

also enclosed about which there is no dispute.

In fact, the respondents have not disputed

and aforesaid period during which the

petitioner was given the duties of the rank of

Major. Therefore, the entire controversy is as

to whether the petitioner could be denied the

acting rank as the Commanding Officer was

not fully satisfied with his work, which is

because of the purported reason that he was

put on adverse remarks by the IO in his report

ending 1/1991 and subsequently on review

report. It was submitted by the petitioner

that Army Headquarters had removed the

petitioner from review report on 9.8.1995.

This communication was sent by the Army

Headquarters to Headquarters Northern

Command (MS) c/o 56 APO in which it was

stated:-

"1. Reference your letter No.10501/3/MS 4 dated 14 Jul 95 addressed to HQ 16 Corps (MS) and copy of this Branch.

2. It is confirmed that IC - 40157H Capt. GS Rana has been removed from Review Report."

It was the contention of the petitioner

that when orders dated 16.9.1999 were

passed denying the benefit of acting rank to

the petitioner on the ground that he was on

review report, error was committed in making

the decision on that basis because of the

reason that the aforesaid communication was

put up to the higher authorities. He

submitted that it was again confirmed.

However, vide letter dated 3.7.2001 sent from

Military Secretary Branch, MS: ADA (MS-17),

Army Headquarters to 129 AD Regiment c/o

56 APO, following communication was sent:-

"1. Ref your letter No. 406101/GSR/44/A dt 31 May 2001.

2. MS-4C2 has confirmed that placing or removing an offr on adverse report is the prerogative of his immediate CO vide Para 79 of SAO 3/S/89. Therefore the offr cannot be on adverse report as contended by him unless he has been intimated the same by his CO."

On the basis of this communication, the

petitioner contended that the Army

Headquarters admitted that the petitioner

could not be on adverse report as he had not

been intimated about the same by his

Commanding Officer. The petitioner had laid

much stress on this document on the basis of

which he contended that putting the

petitioner on adverse report, without

intimation, was clearly invalid as accepted by

the Army Headquarters itself. This plea of

the petitioner, based on the aforesaid, is not

subsequently refuted by the learned counsel

for the respondent at the time of arguments.

It is, thus, clear that after this

communication, case of the petitioner for

grant of acting rank needed a fresh look

inasmuch as, vide orders dated 16.9.1999, the

petitioner was denied the acting rank because

of the said adverse report. We are, therefore,

of the opinion that the case of the petitioner

needs to be reconsidered for grant of acting

rank as well for the period from 31.10.1991 to

18.12.1992.

C) Substantive Rank of Major:

The petitioner claims substantive rank of

Major on the basis of entry published in the

Gazette Notification No.734 of 1993. It is not

in dispute that as per the said notification,

many officers are given permanent

commission from Captain to Major and name

of the petitioner finds mention therein. Army

List Part II was also revised including the

name of the petitioner in the category of

Majors holding permanent commissions.

Relying upon the said entry in the notification

the petitioner contends that Section 142(2) of

the Army Act clearly stipulates that

notification is to be treated as invalid

authority and evidence for all purpose and

therefore, it has to be held that the petitioner

was granted substantive rank of Major with

effect from 19.12.1992. He submitted that

Para 65 of the Defence Service Regulations

(DSR), as existed on that date, provided for

substantive promotion by time-scale up to and

including the rank of Major. Certain

eligibility conditions are stipulated for

promotion to the rank of Major which include

completion of specific number of reckonable

commissioned service, subject to being found

fit in all respects for such promotion and after

qualifying prescribed examinations/courses.

His submission was that all these conditions

were fulfilled by the petitioner because of

which he was given the said promotion.

The respondents have not denied the

aforesaid notification and preparation of Army

List on that basis, including the name of the

petitioner to the substantive rank of Major.

The entire explanation of the respondent is

that name of the petitioner appeared in the

said notification by mistake, which mistake

was corrected by issuing amendment. In this

behalf, explanation is that error took place

due to oversight. Thus, the controversy on

this aspect revolves around the fact that the

notification issued was erroneous, which was

ultimately corrected vide Corrigendum

No.306 dated 16.4.1994. Answer to this

would depend upon the question as to

whether the petitioner was eligible for

promotion to the substantive rank of Major.

It is because of this reason that though the

petitioner contends that he was eligible, the

respondents pleaded otherwise.

The argument of the respondents, in this

behalf, is that as per Para 85 of SAO 3/S/89

read with Para 65 of DSR 1987, an officer

would be eligible for substantive promotion to

the rank of Major on completion of 11 years

of reckonable commissioned service subject

to being fit in all respects for such promotion

and upon qualifying prescribed examinations/

courses. The petitioner was commissioned on

19.12.1981 and therefore, it is not disputed

that as on 19.12.1992 he completed 11 years

of service. However, what is contended is

that he had to be fit in all respects. But in the

case of the petitioner it was found that he was

adversely reported upon in the CR for the

period September 1989 to November 1989

and was placed on four successive Review

Report for the periods July 1990 to January

1991, August 1991 to February 1992,

February 1992 to February 1993 and May

1994 to November 1994. It is further argued

that as per the policy, cases of officers who

are on adverse or review report are pended

till the officers is removed from

Adverse/Review Report and he earns a

positive recommendation for promotion and

for retention in service in the Review Report.

Here again, the sole ground for denying the

substantive rank is that the petitioner was on

review report. We have already indicated

above that vide communication dated

9.8.1995, reiterated on 3.7.2001, the

petitioner had been removed from review

report. In so far as other conditions of

eligibility are concerned, namely, minimum

qualifying service and qualifying in the

prescribed courses/examinations, it is not at

all the case of the respondents that the

petitioner did not fulfill those eligibility

conditions. The respondents have not at all

explained as to whether the name of the

petitioner was included in the notification

granting substantive rank of Major after the

recommendations of the Promotion

Committee. The respondents are silent about

it. Normally, it has to be inferred that the

Promotion Committee would have

recommended his case inasmuch as, without

such recommendation notification would not

be issued. Furthermore, vide corrigendum

dated 17.3.1994 the name of the petitioner

was removed from the list of those who were

given promotion from Captain to the rank of

Major. The petitioner had contended that it

could not have been done without even

issuing show cause notice to the petitioner.

Be as it may, since the petitioner was

removed from adverse reports, we are of the

view that the case of the petitioner is to be

considered by the Review Departmental

Promotion Committee. If it is found that

there are no adverse/review reports, the

petitioner is entitled to promotion to the rank

of Major with effect from 19.12.1992.

D. Reg. Termination:

We may recapitulate, in brief, that the

petitioner was given show cause notice dated

28.8.1997 proposing his discharge under

Section 19 of the Army Act read with Rule 15

of the Army Rules. We may note that

whenever there is a proposal to discharge an

army official under these provisions,

opportunity is given to him to seek

retirement/resignation. These provisions for

discharge are invoked on the ground of

inefficiency on the part of the petitioner. The

petitioner had not given reply to the said

show cause notice and instead he referred to

his complaint submitted vide letter dated

23.8.1994 in which he asked for premature

retirement. It was, however, found that the

aforesaid complaint was returned to him vide

letter dated 6.2.1995 and he was advised to

submit a fresh application de-linking his

request for premature retirement and other

issues raised by him. He had not re-

submitted his application. Instead, he had

submitted separate statutory complaint dated

30.3.1998 for grant of substantive promotion

to the rank of major and its rank pay. The

case of the petitioner was accordingly

processed further on the ground that there

was no resignation from him. However, the

Ministry sought information about the

outcome of the statutory complaint dated

30.3.1998. As noted above, this was rejected

on 16.9.1999 whereafter the case of the

petitioner for discharge under Section 19 was

again processed. We may also note at this

stage that there were subsequent applications

given by the petitioner for voluntary

retirement/resignation but they were also

treated as conditional. Ultimately decision

was taken to terminate his services and order

dated 31.10.2001. Though after show cause

notice dated 28.8.1997, an order of discharge

ultimately came to be passed in October

2001, this much time took place because of

the reasons stated above in brief. We had

perused the relevant file as well which was

handed over to us by the respondents.

Following two aspects are discernible from

the record:

a) The note for discharge was initiated

alleging ground of inefficiency primarily

keeping in view the fact that the

petitioner had not been granted the

acting/substantive rank of Major due to

being on adverse/review CRs and was

also not recommended for promotion. At

the same time, details of his weak points

as well as weaknesses displayed during

the last 10 years were also stated. Fact

remains that the non-grant of

acting/substantive rank of Major and

adverse report were the prime forces

which led the initiation of this action. In

respect of these, we have already

concluded that the petitioner was taken

off adverse/review CRs as per the

communications shown by him and we

have opined that his case for

local/acting/substantive rank as Major

needs to be reconsidered. On this basis

his case for action under Section 19 of

Army Act will also have to be considered

afresh. This can be done after the

exercise regarding local/acting/

substantive rank is redone and outcome

thereof is known.

b) At the same time we also find that the

petitioner had submitted his resignation

from service time and again and his

intention was that he should be relieved

from service.

9. In these circumstances, without interfering with the

orders dated 31.10.2001, at this stage, we are of the

view that after the exercise qua

local/acting/substantive rank is done by the

respondents, case of the petitioner shall be considered

under Section 19 of the Army Act read with Rule 15 of

the Army Rules. If no change is found in its decision

regarding local/acting/substantive rank, it would be

permissible for the respondents to stick to its decision

dated 31.10.2001. However, if the petitioner is found

entitled to acting/substantive rank of Major, the

decision will have to be taken afresh by the

respondents as to whether on that basis they would

still like to proceed under Section 19 of the Army Act

read with Rule 15 of the Army Rules. At that stage,

the petitioner shall be given option to seek voluntary

retirement/resignation from service. Entire exercise

in this behalf shall be done within four months from

today.

10. With these directions, this writ petition is disposed

of.

11. No costs.

A.K. SIKRI (JUDGE)

J.M. MALIK (JUDGE) July 04, 2008 Jk/hp