Delhi High Court
Havildar Chand vs Union Of India And Others on 17 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17.09.2014
+ W.P.(C) 5138/2013
HAVILDAR CHAND ..... Petitioner
Through: Mr. K. Ramesh, Adv.
Versus
UNION OF INDIA AND OTHERS ..... Respondents
Through: Dr. Ashwani Bhardwaj, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. In this writ petition under Articles 226/227 of the Constitution of
India, the petitioner seeks quashing and setting aside of his ACR for the
period from 1st January, 1998 to 31st December, 1998 (not in possession
of the petitioner) and the judgment dated 26th November, 2010 of the
learned Armed Forces Tribunal (AFT), Principal Bench, as also the order
dated 24.11.2011 of the AFT passed in the Review Application of the
petitioner. The petitioner further seeks mandamus directing the Army to
re-fix his seniority as Hawaldar and to give him consequential benefits by
promoting him to the rank of Naik Subedar.
2. The petitioner's case is that he was enrolled as a Sepoy in the
Rajputana Rifles on 6th November, 1982. He alleged that he had put in
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military service of only 71 days under the Initiating Officer (IO) and the
Reviewing Officer (RO) for the period from 1st January, 1998 to 31st
December, 1998, therefore, the latter could not have written his ACR for
that calendar year since the mandatory period of 90 days under the IO and
75 days under the RO had not been complied with to write his ACR.
3. He filed a writ petition before this Court in 2006 challenging the
said ACR. Later, the case was transferred to the AFT, Principal Bench in
the year 2009 where it was dismissed on 26th November, 2010. On the
basis of an order of the AFT dated 10th March 2011 in the case of
Havildar Devi Singh v. Union of India in Original Application No.
126/2009 holding that any ACR without the "mandatory 90 days physical
service" would be bad in law, as laid down in the Army rules, the
petitioner sought review of the AFT decision dated 26.11.2010, but, this
too was dismissed on 24th November, 2011.
4. The learned counsel for the petitioner would submit that insofar as
the requisite period of 90 days under the IO and 75 days under the RO
was not met and furthermore, since signatures obtained in the ACR were
not that of the petitioner, the ACR itself was not maintainable in law. He
submits that the learned AFT has erred both in fact and in law. Therefore,
the impugned order should be set aside. The petitioner had sought
promotion to the rank of Havildar with effect from the year 1999 with
consequential benefits.
5. The learned AFT noted that the petitioner was promoted to the rank
of Naik Havildar in 1996 and to the rank of Havildar in January 2003, but
the petitioner had a grievance that he was incorrectly superseded in the
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interim because of the ACR of 1998 otherwise he would have been
promoted to Havildar in the year 1999 itself.
6. The respondents had defended their position on the ground that the
criteria for promotion was that the candidate should not have had less than
higher average in the rank of Naik Havildar in the last two records; that
upon the petitioner having met the ACR criteria in 2001 and 2002, he was
accordingly promoted in January, 2003.
7. The learned AFT had noted the affidavit of respondent No. 5 which
had recorded that the signature of the petitioner was obtained in his
presence and there being no rebuttal by the petitioner to such deposition,
the statement of the respondent No. 5 was to be believed. Neither had the
petitioner produced relevant documents to indicate his absence during the
period concerned in 1998. Therefore the AFT held that the petitioner had
completed the mandatory period under the IO and the RO and the ACR
was correctly recorded. The application before the AFT was accordingly
dismissed. So also was the review application, since it did not show any
mistake apparent on the face of the record.
8. This Court is of the view that insofar as the petitioner had accepted
his promotion in the rank of Havildar in 2003 and had filed a writ petition
only in 2006, and furthermore he had not rebutted the deposition, through
affidavit, of respondent No. 5 that the petitioner/applicant had signed the
ACR in the presence of the respondent No. 5, no ground is made out for
interference with the impugned order or with the ACR. In the affidavit
dated 28th October, 2008 filed on behalf of respondent Nos. 1 to 4, filed in
the writ petition, it was stated as under:
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"That the petitioner had worked under the
supervision of the initiating officer Maj. Rajesh
Bhardwaj from 10.01.1998 to 31.12.1998 to
31.12.1998 and during that period, Maj. Rajesh
Bhardwaj was absent only for a period of 57 days.
That the petitioner had worked under the
supervision of the Reviewing Officer Col. Lalit
Dutt from 01.01.1998 to 31.12.1998 and during
that period, he was absent only for a period of 30
days.
That as far as the signatures of the
Petitioner on the ACR/certificate is concerned, the
respondent No. 5 had filed an affidavit, inter-alia,
stating that the said certificate was signed by the
Petitioner physically in his presence, however, he
had not matched his signatures from his past
signatures, which was not required in the normal
course. He had further mentioned in his affidavit
that he had no ill will against the Petitioner at any
point of time, which is also apparent from the fact
that no such allegations have been levelled by the
Petitioner in his CWP also and he had initiated the
ACR of the Petitioner as per the rules and he had
written the ACR of the Petitioner on the basis of
the performance, observed by him."
The details of absence of respondent Nos. 4 and 5 i.e. Major Rajesh
Bhardawaj and Colonel Lalit Dutt are given in the afore-noted affidavit
dated 28th October, 2008.
Furthermore, in his personal affidavit, respondent No. 5 Major
Rajesh Bhardawaj had deposed as under:
"That I was the Initiating Officer of the
Petitioner, who had initiated his ACRs for the
relevant period in the year 1998. The Petitioner
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had worked under my supervision at the relevant
time. The exact position regarding the date and
place of postings/duties can only be ascertained
from the records, which can not be provided by
me, as I had already taken VRS w.e.f. 15.11.2003
and as such, I am not privy to records.
That the Petitioner had worked with the
undersigned for a period of 90 days and as such, I
was competent to initiate the ACR of the
Petitioner. The Petitioner had also given a
certificate to the effect that he had worked under
my supervision for a period of 90 days and as
such, I am competent to write his ACRs. The
certificate was signed by the Petitioner physically
in my presence, however, I had not matched his
signatures from his past signatures, which was not
required in normal course."
9. In view of the above, this Court is of the view that there is no case
made out for interference with the impugned order of the AFT. The
petition is without merit and is accordingly dismissed.
NAJMI WAZIRI, J.
KAILASH GAMBHIR, J.
SEPTEMBER 17, 2014/acm
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