Lt. Col. Shrawan Kumar Jaipuriyar vs Union Of India & Ors.
2012 Latest Caselaw 3508 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision: 25.05.2012

+                        W.P.(C) No.3043/2012


Lt. Col. Shrawan Kumar Jaipuriyar                ...      Petitioner

                                 versus

Union of India & Ors.                            ...      Respondents


Advocates who appeared in this case:

For the Petitioner       :     Mr.Vishal Bhatnagar, Advocate
For Respondents          :     Mr.Sumeet Puskharna, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

*

1. The petitioner has challenged the order dated 28th February, 2012

passed by the Armed Forces Tribunal, Principal Bench, New Delhi in

T.A.No.428/2009 (WP(C) No.6453/1998) titled as „Lt. Col. Shrawan

Kumar Jaipuriyar v. Union of India & Ors.‟, dismissing the petition of

the petitioner seeking the quashing of orders dated 25th August, 1998

and 14th September, 1998 and 13th May, 1999 and also declining to

issue a direction to the respondents to conduct a fresh Medical

Selection Board for considering the petitioner for promotion from Lt.

Colonel to Colonel.

2. The petitioner had filed the writ petition before another bench of

this High Court by contending, inter-alia, that he has been denied

promotion to the rank of Col. from Lt. Col., although his juniors have

been granted promotion, with break in services while he had not even

been considered for the same. The petitioner also disclosed that he is an

MBBS Doctor in the Indian Army having specialty in Surgery, as well

as, in Orthopedics. According to the petitioner, he had even made a

statutory complaint against his omission for promotion, however, the

complaint was rejected by order dated 14th September, 1998. The

petitioner further disclosed that in the year 1986-1987 weak remarks

were endorsed in his ACR by the then initiating officer/FTO. Thereafter,

the petitioner was not recommended for promotion by the Medical

Selection Board No.3 held on 1st May, 1996, even though his juniors

were considered and recommended for promotion. The petitioner also

alleged that no reasons were communicated to him for his omission.

3. The petitioner aggrieved by the said omission, had made statutory

complaint dated 16th September, 1997 against his supersession and

against his ACRs for the year 1986-1987 and 1990-1991 which was

rejected by orders dated 25th August, 1998 and 14th September, 1998.

4. Thereafter, another Medical Selection Board was held on 7th

March, 1997 whereby the petitioner was placed in category "R" i.e. unfit

to be promoted. According to the petitioner, even pursuant to the

Medical Selection Board No.3 held on 7th March, 1997 the list of officers

who were considered for selection was not circulated before holding the

Medical Selection Board and the selection ought to have been quashed

on this ground alone as the selection lacked any semblance of

transparency. The petitioner, therefore, filed a writ petition seeking

quashing of order dated 25th August, 1998 and 14th September, 1998.

The petitioner had also been superseded a second time on 13th May,

1999 as the petitioner was found unfit for promotion by the Medical

Selection Board No. 3. The petitioner had also filed another statutory

complaint which was dismissed by an order dated 1st June, 2000. This

order too was challenged by the petitioner by contending that the

promotion of juniors of the petitioner is arbitrary, mala fide and

patently discriminatory. The petitioner also contended that the reasons

for the omission of the petitioner from the consideration for promotion

ought to have been communicated to the petitioner. The petitioner

asserted that even those officers against whom court of inquiries had

been conducted were promoted, however, the said promotion has been

denied to the petitioner for no fault of his own. The proceedings of the

second Medical Selection Board No.3 held on 7th March, 1999 were also

alleged to have been vitiated on account of non-circulated list of officers

prior to holding Medical Selection Board.

5. The writ petition filed by the petitioner was thereafter transferred

to Armed Forces Tribunal, Principal Bench, at New Delhi and during the

course of arguments, the petitioner had made specific allegations that

Col. H.K.Sharma, Col. K.B.Kumar and Col.R.K.Bal who were junior to

the petitioner have been promoted and the name of the petitioner has

been omitted and thus, the petitioner has been discriminated against.

The petitioner, thereafter, also filed an affidavit detailing the facts

pertaining to these junior officers.

6. The respondents contested the petition contending, inter-alia,

that the promotion up to and including the rank of Lt. Colonel is by

time scale, however, promotion to the rank of Colonel and above is by

selection and is based on the principle of merit-cum-seniority. The

respondents also disclosed that there are two separate cadres i.e.

Specialist and Administrative Cadres in the Armed Force Medical

Services upto the rank of Colonel. Officers in their respective cadre are

considered for promotion separately. The petitioner was considered in

the cadre of "Specialist" as per his seniority by the Medical Selection

Board No.3 held on 13th May, 1997, however, he could not be

recommended for promotion on the basis of the average ACR earned by

the petitioner in the rank of Lt. Colonel. Since he did not find a place in

the merit list for selection to the rank of Colonel in the Specialist Cadre,

he was graded "R". Regarding his ACRs of 1986-1987 and 1990-1991,

the respondents disclosed that the petitioner had made a statutory

complaint dated 16th September, 1997. The complaint was examined in

detail and was rejected by order dated 25th August, 1998 as the ACRs

were found well corroborated and the petitioner was also rightly

considered along with his batch-mates in the Specialist Cadre in his

term.

7. Before the Armed Forces Tribunal, the petitioner also raised his

grievance about the change of policy as according to the earlier policy 5

years ACRs were to be considered for promotion from Lt. Colonel to

Colonel, whereas, as per the new policy dated 26th February, 1996, all

the ACRs in the rank of Lt. Colonel were to be taken into account for

the purpose of promotion. According to the petitioner, if 5 years‟ ACRs

had been taken into consideration as per the earlier policy, then his

ACRs for the year 1986-1987 and 1990-1991 would not have come in

his way and therefore, the previous policy would have benefited him.

8. This plea of the petitioner was contested by the respondents by

contending that the policies are changed by the Government from time

to time and this is the privilege of the Government. Change of policy

may benefit some officers, while being disadvantageous to other officers,

however, that cannot be a ground to challenge the finding of the

Medical Selection Board for not recommending the petitioner for

selection. The respondents also relied on the judgment, Union of India

& Others v. S.L.Dutta & Anr., (1991) 1 SCC 505 wherein the Supreme

Court held that mere chances of promotion are not conditions of service

and the fact that there is reduction in the chances of promotion would

not tantamount to change in the conditions of service. It was further

held that a right to be considered for promotion is a term of service,

however, chances of promotion are not.

9. The tribunal after careful considering the cases of Col.

H.K.Sharma, Col. K.B.Kumar and Col. R.K.Bal, rejected the pleas and

contentions of the petitioner and also declined to interfere regarding the

rejection of the representation of the petitioner in respect of his ACR for

the period 1986-1987 and 1990-1991. This order of the Tribunal is

challenged by the petitioner in the present writ petition, inter-alia, on

the grounds that the officers in the particular batch were to be

considered conjointly, regardless of their cadre i.e. whether belonging to

the Specialist Cadre or Administrative Cadre. To augment his allegation,

the petitioner has contended that Lt. Colonel K.B.Kumar was placed in

"R" category in the year 1996 in the Specialist Cadre but the very next

year in 1997 he was in "B" category in the Administrative Cadre.

According to the petitioner, Lt. Colonel K.B.Kumar was not qualified as

per Training, Grading and Qualification Rules for Officers of the Armed

Force Medical Services. Learned counsel appearing for the petitioner

also vehemently contended that if Lt. Colonel K.B.Kumar could be

considered in the Administrative Cadre then the petitioner should also

have been considered in the Administrative Cadre, even though the

petitioner belongs to the Specialist Cadre.

10. Learned counsel, Mr. Sumeet Pushkarna, who appears on

advance notice on behalf of respondent Nos.1 and 2 has refuted the

pleas and contentions raised by the petitioner. Learned counsel has

pointed out that there was no plea by the petitioner that his cadre

should have been changed from Specialist Cadre to Administrative

Cadre. Learned counsel also contended that in case the petitioner wants

to challenge the eligibility of Col.H.K.Sharma, Col.K.B.Kumar and

Col.R.K.Bal then they should have been impleaded as parties in the

petition filed by him. Learned counsel has also contended that there is

no rule or regulation that before the Selection Medical Board, the copy

of the eligible officers who were to be considered by the Medical

Selection Board had to be sent to the petitioner as has been alleged by

him. Learned counsel further emphasized that the petitioner was

considered for the promotion and his ACRs were also taken into

account according to the prevalent policy. However, since he was not

recommended by the Medical Selection Board he was not given the

promotion from Lt. Colonel to Colonel. The learned counsel also

contended that the petitioner has failed to point out any procedural

lacunae or shortcomings except for alleging that his juniors have been

promoted. It is asserted that since the post of Colonel is of selection,

therefore, the petitioner cannot claim his promotion as a matter of right

on the ground that if his juniors have been selected for promotion, then

he too ought to have been selected.

11. This Court has heard the learned counsel for the parties in detail.

Learned counsel for the petitioner is unable to show any request on

behalf of the petitioner for the change of his Cadre from Specialist

Cadre to that of Administrative Cadre. No rule or regulation has also

been pointed out under which it is given that the officers of different

cadres should have been considered together for selection and

promotion to the next post. This also cannot be disputed that on

account of the change of policy, all the ACRs in the rank of Lt. Colonel

had to be considered by the Selection Board for recommending the

selection of an officer to the post of Colonel. On account of the earlier

policy under which 5 ACRs of an officer had to be considered, the

petitioner cannot contend that the change of policy is unconstitutional

as the chances of promotion are not the conditions of services as has

been held by the Supreme Court in the case of Union of India & Others

v. S.L.Dutta & Anr., (1991) 1 SCC 505, relied on by the Tribunal as

well. No illegality or irregularity in this aspect has been established by

the learned counsel for the petitioner in the facts and circumstances.

12. The Tribunal had considered the case of Col.H.K.Sharma,

Col.K.B.Kumar and Col.R.K.Bal. This has not been disputed and cannot

be disputed by the petitioner that the petitioner belongs to the

Specialist Cadre and that therefore he was considered along with the

other officers of the Specialist Cadre by the Medical Selection Board for

promotion to the post of Colonel. Colonel H.K.Sharma belongs to the

Administrative Cadre and therefore, the petitioner could not contend

that he should have been considered along with Colonel H.K.Sharma or

that the petitioner being not recommended for the post of Colonel is

vitiated as Col.H.K.Sharma belonging to the Administrative Cadre was

recommended by the Medical Selection Board. Similarly, for

Col.K.B.Kumar who was considered and recommended for selection in

the Administrative Cadre, no grievance can be made out by the

petitioner. Even with respect to the promotion of Col.R.K.Bal, the

petitioner cannot contend that his name ought not to have been

recommended by the Selection Board on any ground. Col.R.K.Bal was

rather not selected for promotion by the Medical Selection Board held

on 13th March, 1997 and thereafter on 13th April, 1998 and on 30th

August, 2000 Col. R.K.Bal was graded as unfit for promotion.

Col.R.K.Bal was, however, selected for promotion to the post of Colonel

after 2000 and the petitioner has not challenged the Selection Board

held after 2000. No cogent grounds or illegality has been disclosed on

behalf of the petitioner for the respondents rejecting his complaint

against his ACRs for 1986-1987 and 1990-1991. The petitioner was

given due opportunity to make his representation against the ACRs in

question, which representations were considered and rejected by the

respondents. This Court in exercise of its jurisdiction under Article 226

of the Constitution of India will not sit in appeal over the decision of the

respondents rejecting the representation of the petitioner against his

ACRs in the present facts and circumstances of the case.

13. In the totality of the facts and circumstances, learned counsel for

the petitioner has failed to point out any irregularity, illegality or any

perversity in the order of the Tribunal dated 28th February, 2012

dismissing the petition of the petitioner which shall require any

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India.

The writ petition is, therefore, without any merit and it is

dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

MAY 25, 2012 vk