Delhi High Court
Hav Rakesh Saini vs Union Of India & Ors. on 21 January, 2015
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : January 19, 2015
Judgment Pronounced on : January 21, 2015
+ W.P.(C) 562/2015
HAV DADASO SAMPATRAO PHADTARE ..... Petitioner
Represented by: Mr.S.S.Pandey, Advocate with
Mr.H.S.Tiwari, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Represented by: Mr.Arjun Mitra, Advocate for R-1 to
R-3
W.P.(C) 563/2015
HAV RAVINDRA SINGH ..... Petitioner
Represented by: Mr.S.S.Pandey, Advocate with
Mr.H.S.Tiwari, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Represented by: Mr.Arjun Mitra, Advocate for R-1 to
R-3
W.P.(C) 565/2015
HAV CHAVHAN HEMANAND KRISHNA ..... Petitioner
Represented by: Mr.S.S.Pandey, Advocate with
Mr.H.S.Tiwari, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
W.P.(C) Nos.562/2015 & conn.matters Page 1 of 14
Represented by: Mr.Arjun Mitra, Advocate for R-1 to
R-3
W.P.(C) 566/2015
HAV RAKESH SAINI ..... Petitioner
Represented by: Mr.S.S.Pandey, Advocate with
Mr.H.S.Tiwari, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Represented by: Mr.Arjun Mitra, Advocate for R-1 to
R-3
W.P.(C) 568/2015
HAV BIMAL CHANDRA MANDAL ..... Petitioner
Represented by: Mr.S.S.Pandey, Advocate with
Mr.H.S.Tiwari, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Represented by: Mr.Arjun Mitra, Advocate for R-1 to
R-3
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. The above captioned writ petitions lay a challenge to the judgment
dated December 11, 2014 disposing of a batch of Original Applications filed
by the writ petitioners and a few others before the Armed Forces Tribunal.
2. The Original Applications which have resulted in the impugned
decision being passed were third in the series of Original Applications filed
before the Armed Forces Tribunal. The first set of Original Applications,
filed before the Principal Bench of the Armed Forces Tribunal at New Delhi
were decided on March 19, 2012 and the second set were decided by the
Kolkata Bench of the Armed Forces Tribunal on February 22, 2013.
3. The origin of the dispute is that the personnel enrolled in the Indian
Army had an option to join the Military Engineering Service (MES),
provided of course they were eligible for the cadre posts in the Military
Engineering Service. Under the said option available personnel enrolled in
the Indian Army opted for and on permission being granted joined Military
Engineering Service. There being less promotional avenues in the Military
Engineering Service vis-à-vis the promotional avenues in the Indian Army,
there was a murmur of protest by those who had shifted to the Military
Engineering Service and considering the stagnation of the personnel in the
Military Engineering Service the Government of India took a policy
decision on January 01, 2009 declaring merging of cadre, whereby persons
who had joined the service in the MES from the combatant units of the
Indian Army were required to be repatriated back to the combatant units of
the Indian Army. The said policy decision created a serious anomaly since
the persons who had joined the Military Engineering Service did not earn
promotion while their batch mates as also their juniors who remained in the
Indian Army earned promotions. Thus, upon repatriation, pursuant to the
merger order, the personnel who had joined the MES Cadre were required to
serve not only under their batch mates but also under their juniors in the
combatant units.
4. Aggrieved by the above policy decision of the Government, a batch
of Original Applications were filed by the aggrieved personnel of the MES
Cadre before the Principal Bench of the Armed Forces Tribunal, lead matter
being Havaldar Pratap Chander Sahu. Another set were filed before the
Kolkata Bench of the Armed Forces Tribunal, lead matter being Sub. (BS)
S.K.Shaw.
5. The decision dated February 19, 2012 by the Principal Bench of the
Armed Forces Tribunal at New Delhi and the decision dated February 22,
2013 by the Kolkata Bench of the Armed Forces Tribunal upheld the policy
decision of merger of cadres, but with a rider, that the personnel who were
absorbed in the MES Cadre but reverted back to the Indian Army cannot be
made to serve under their juniors. Therefore, it was directed that before
repatriation, if the personnel were otherwise eligible for promotion in the
MES Cadre, they should be promoted before merger, and if not eligible,
then they should be given an opportunity to acquire the qualification so that
they may get a promotion. In the case of Sub. (BS) S.K.Shah, the Kolkata
Bench further held that the seniority of the MES personnel has to be
protected in the merged cadre.
6. A fact needs to be noted by us to throw clarity on the reasoning of the
aforenoted two views taken by the Principal Bench and the Kolkata Bench
of the Armed Forces Tribunal. The same was that the personnel in the MES
who had joined the cadre after having worked in the Indian Army had not
only become eligible for promotion and there were promotional posts
available, but were not promoted in the MES because the Government was
contemplating the policy decision to effect the merger. The grievance of
these persons was that had they been promoted in the year when
promotional posts were available, on merger, they would have joined
service in the Indian Army not at the post held by them but at the promoted
post.
7. The said decisions of the two Benches of the Armed Forces Tribunal
have since attained finality because the Government of India did not
challenge the said decisions and the impugned decision would reveal that
the learned Additional Solicitor General, who appeared before the Armed
Forces Tribunal, Principal Bench at Delhi fairly conceded that the Union of
India was following the directions issued by the two Benches of the
Tribunal.
8. The problem seems to have arisen again because while implementing
the decisions of the two Benches of the Tribunal, the Union of India
directed certain personnel to report to the combatant units without they
being promoted to the rank in which their batch mates and juniors were
working in the combatant units. The claim of the personnel before the
Authorities was that before repatriating them to the Indian Army, their cases
for promotion in the Military Engineering Service be considered with
retrospective dates when promotional posts were available and the personnel
had attained eligibility to be considered for promotion.
9. Aggrieved by the omission of the authorities to do the needful, the
applicants before the Tribunal filed Original Applications praying that they
should not be transferred to the combatant units till they were granted
promotions to bring them at par with their juniors. In other words, the
applicants before the Tribunal wanted effectively a postponement of the
policy of merger till they were given promotions to such ranks so as to bring
them at par with their batch mates and needless to state, their juniors.
10. Observing as under in paragraph 31 of the impugned order:-
"31. Yet it is not the end of the matter. It has been pointed by
the learned counsel for the petitioners that the petitioner of OA
273/2014, OA 275, OA 276, OA 277, OA 279 and OA 280/2014
already completed their eligibility criteria for promotion when
they were in the MES in the year 2011 itself. Only because of
the policy of the Government and according to the learned
counsel for the Union of India, because of the stay order passed
by the Kolkatta Bench of the Tribunal, the entire policy of the
Government came to a stand-still and because of that reason
these petitioners who, otherwise could have been considered for
further promotion in the rank of Hav, their matters were not
considered. If these petitioners cases would have been
considered, they would have got the promotion to the rank of
HAV while they were in the MES and they would have got the
rank of Hav also in their parent department upon merger."
the Tribunal has disposed of the Original Applications issuing
directions in paragraphs 34 and 35 as under:-
"34. We are making it clear that the petitioners be given
opportunity for obtaining the ACRs. We are further making it
clear that, if any of the petitioners has already acquired the
ACRs for a particular period, then the other required ACRs
may be completed within a period which according to the
respondents can be just after the 90th day of physical service for
any one ACR. The complete exercise can be done within a
period of seven months, (Seven recommended as a cushion for
leave absence, conduct of DPC, etc. since each CR is 90 days
physical service) including allowing the petitioners to earn the
(two), special ACRs of requisite period. The respondents are
also directed to facilitate the test of Junior Leader Proficiency
Test (JLPT) where applicable. The process should be
completed within a period of seven months for those petitioners
lacking two ACRs (The period will commence from the date of
reporting of the individual to the Unit). For those petitioners
lacking three ACRs, the outline calculations given in para 28
preceding, would apply (with the additional cushion of 30 days
to cater for leave absence, conduct of DPC etc, since each ACR
is 90 days physical service). The interim orders passed in these
matters stand vacated. The petitioners shall without any delay
report to the Combatant Units of the Army and in all cases in a
maximum period of three weeks from the date of this order. It
is also made clear if any promotion order has already been
given and any person has already undertaken the movement
from the MES to their parent unit, their orders are not being
touched and they shall remain as it is.
35. Consequently, for the reasons mentioned above the OA's
No.273/2014, OAs 275 to 277 of 2014 and OA 280/2014 are
partly allowed. Other all OAs are dismissed. No order as to
cost."
11. A perusal of the observations made by the Tribunal in paragraph 31
and the final directions issued in paragraphs 34 and 35 would evince that
partial relief has been granted to the applicants before the Tribunal,
inasmuch as the Tribunal has held that such applicants who had completed
the eligibility criteria for promotion when they were working in the Military
Engineering Service (MES) in the year 2011 would be considered for
promotion as of the said year i.e. 2011, and those who were found eligible to
be promoted would be granted promotion before being placed in the merged
cadre. The relief which has been denied is that they will not be kept in the
MES Cadre till they are further promoted to the ranks to which the persons
junior to them, but who continued to serve under the Indian Army, or their
batch mates were promoted. We note that the relief granted earlier to other
similarly placed applicants, of not being made to serve under their batch
mates or juniors has been maintained.
12. To appreciate the directions issued by the Tribunal, it would be
necessary to note certain facts, as has been done by the Tribunal. In the
Indian Army as well the Military Engineering Service, the lowest rank is
that of a Sepoy. The promotional avenues are : Naik : Havaldar : Naib
Subedar : Subedar : Subedar Major.
13. Enrolled in the Indian Army as a Sepoy and earning promotion to the
post of Naik and above, when the Government of India permitted personnel
of the Indian Army to opt for service under the Military Engineering
Service, some having earned promotion to the post of Naik and some to the
post of Havaldar, they opted for and were absorbed under the Military
Engineering Service. Due to the non-availability of promotional posts,
these persons stagnated in the Military Engineering Service. Their brethren
and even juniors who remained in the Indian Army, due to availability of
promotional posts stole a march over them. When the decision was taken to
merge the cadre of the Military Engineering Service those who had joined
the service after having served the Indian Army, with the cadre in the Indian
Army, faced the problem of being required to work and report to either their
batch mates or persons junior to them.
14. It was in this background that the two earlier Benches of the
Tribunal took the view which we have already expounded above and the
batch of Original Applications with which we are concerned were decided
by the Principal Bench of the Tribunal at Delhi on December 11, 2014
giving directions in paragraphs 34 and 35 of the decision, with observation
made in paragraph 31.
15. The grievance of the writ petitioners before us, who were the
applicants before the Tribunal, is that in spite of the two decisions of the
Tribunal dated March 19, 2012 and February 22, 2013 mandating the Union
of India not to post any petitioner under their batch mates or their juniors,
without considering them to earn promotions till they attained the rank of
their batch mates or their juniors, they could not be repatriated under the
policy of merger and thus the direction was to retain them in the MES till
they earned promotion to attain parity in rank with their batch mates or
juniors.
16. It was contended by the petitioners that some of them had already
completed the requisite period of service when they were in the MES so as
to earn promotion to the rank of Havaldar in the year 2011 i.e. even before
the implementation of the Government's merger policy. These persons had
not been given the rank of Havaldar because of the issuance of the policy
decision and for no fault of their. They highlighted that these persons had
been considered for being promoted in the year 2013 and had been given
promotion to the rank of Havaldar in the year 2013. They urged that if the
promotion is given retrospective effect, their qualifying service to earn
further promotion would have to be reckoned accordingly. They urged that
they could not be put to a disadvantageous position because of the
Government decision to keep in hold promotions pending implementation of
the merger policy.
17. It was further argued by the petitioners that even otherwise, also in
view of the earlier two decisions of the Tribunal, the respondents were
bound to ensure that the petitioners should not be sent back to the combatant
units where they would have to serve under their juniors. They thus pleaded
that they should be permitted to continue to serve in the MES till they
acquired ranks equal to their counterparts who had continued to serve in the
Indian Army.
18. The said contention of the petitioners was vehemently opposed by the
learned counsel appearing for the Union of India on the ground that the
eligible and suitable candidates have already been given promotion pursuant
to the two earlier decisions of the Tribunal. It was further urged that all
personnel who had acquired the eligibility criteria for further promotions
have been promoted by giving notional seniority from the date their juniors
had been promoted. But it was highlighted that those who have not fulfilled
the said eligibility conditions for promotions to further ranks would be
required to complete the said eligibility and an assurance was given that on
fulfilling the same even they would be promoted with retrospective effect
i.e. from the date when persons junior to them were promoted. It was
highlighted that the two earlier decisions of the Tribunal relied upon by the
petitioners did not declare a right to continue in the MES till promotions
were earned to the rank equivalent to the one held by their batch mates or
juniors who had continued to serve in the Indian Army. It was highlighted
that the department would ensure that nobody was posted at a place where
he would be required to report to a batch mate or a junior.
19. The same contentions have been advanced before us by the respective
learned counsel for the parties.
20. To appreciate the submissions of the learned counsel for the parties it
would be necessary to quote the relevant paras of the decision of the
Tribunal dated March 19, 2012 in Hav.Pratap Chandra Sahu's case. They
read as under:-
"11. Now coming to the next question raised by learned
counsel for the petitioner that as a result of repatriation of
these employees/petitioners who were working in the MES
when they are going back to their parent cadre then it is going
to create a lot of disturbance in the existing status of the parent
department. It is submitted that some people while working in
the MES were not promoted while the juniors to them in their
parent unit were promotion. When these employees working in
the MES go back to their parent unit, they will be placed below
to their juniors and this action will seriously affect their further
right of promotion and will create great hardships to the
petitioners.
12. We realize that the persons who were working in the
MES when they go back to their unit, they should get their due
place in that unit without affecting their seniority or promotion.
It is likely that persons in their parent unit got promotion and
when persons working in the MES go back to their parent unit,
they will be placed below to their juniors who got promotion
while working in parent unit. This will be discriminatory and
violation of Articles 14 and 16 of the Constitution of India. The
person junior in his cadre is promoted and person who has
been sent out of cadre in the public interest and when he is
reverted back, he is placed below to his junior. This will cause
a great hardship to him and this will be unfair to the person,
therefore, we directed learned counsel for the respondents to
seek instructions that when these persons are being repatriated
to their parent unit, they must be given their dues and they
should not be placed below to their juniors and create a
discrimination in their parent cadre. In case a person who is
junior is promoted, then the person who is being repatriated
from the MES to his parent unit should also be promoted in
case he is eligible for promotion and if not then he may be
given opportunity to acquire that qualification so as to get his
promotion.
13. Learned counsel for the respondents after seeking
instructions submitted that the authority will take proper care
of the persons who are being repatriated to their parent cadre
and if they are otherwise qualified then they will be considered
for promotion from the date persons junior to them have been
promoted. In case, they are not eligible then they will be
promoted after acquiring necessary qualification and their
seniority of unit will be maintained vis-à-vis their juniors. He
also submitted that seniority of these people who are being
repatriated will be looked into and they will be placed
accordingly. In case any person junior to these persons is
being promoted to a higher rank then the case of these persons
will be considered vis-à-vis such junior person and if they are
found suitable then they will be given their due promotion and
their seniority will be restored.
14. We hope and trust that all these aspects will be examined
by the Government and thereafter all the personnel who are
repatriated to their parent department will be restored back to
their original seniority and they will be given their due. In
case, if one is required to pass certain eligibility test for the
promotion then he will be given that opportunity. This whole
exercise will be undertaken and completed within a period of
six months from the date of this order. It is also observed that
in case these persons who are being repatriated from the MES
to their parent cadre are lacking a regimental report then the
report obtained by them while working the MES will be taken
into consideration because they are working in the MES as a
combatant."
21. In the above mentioned decision, though the Tribunal has protected
the right of the personnel, to the extent that they would not be directed to
serve under their juniors, but in the same paragraph it has been held : 'the
persons who is being repatriated from the MES to Parent Unit should also
be promoted in case he is eligible for promotion and if he is not then he may
be given opportunity to acquire that qualification so as to get his
promotion'.
22. Thus, it is clear that the said decision has not held that the personnel
have to be given the opportunity to be promoted by retaining them in the
Military Engineering Service.
23. It is relevant to note that to earn promotion from the post of Havaldar
to Naib Subedar 5 years' service record has to be considered, meaning
thereby one has to work at least for 5 years as a Havaldar. It is permissible
to consider two ACRs in the rank of Naik. In other words, it is permissible
for a Havaldar to be considered for promotion to the post of Naib Subedar if
3 years' service is rendered. The other eligibility norms such as clearing pre
promotional cadre courses has to be met. Thus, to earn further promotions,
the petitioners are required to fulfill various criteria and eligibility as laid
down in the Rules and for that purpose, the Tribunal, in paras 28 and 30 has
directed the respondents to make sure that the eligibility for promotion of
the personnel be completed immediately, and if found suitable, they should
be promoted to the ranks to which persons junior to them have been
promoted with effect from the date the juniors were promoted. Moreover,
the said criteria required for further promotion, can be acquired by the
petitioners in about 270 days as has been clarified by the Armed Forces
Tribunal in para 28 of its judgment. Therefore, on completing the said
eligibility, the petitioners will be promoted to the rank to which persons
junior to them have already been promoted and their promotion would be
from back date, and thus the question of keeping the petitioners in the MES
till they acquire the said eligibility does not arise. Moreover, even if for the
sake of argument the submission of the learned counsel for the petitioners is
accepted, then it will be a never ending process since once the petitioners
were to fulfill the criteria for further promotion, they would have to be
promoted in the MES and this would become a never ending process
because there may be a situation where the batch mates or juniors who
continued to remain in the Indian Army would earn promotion in the
meanwhile.
24. As far as certain petitioners who had already completed their
eligibility criteria for promotion when they were in the MES in the year
2011, it has already been directed by the Tribunal in para 31 of the
impugned judgment that such of them who are found eligible to be
promoted would be first promoted before merger is effected and the
promotion would be notionally with effect from the year 2011.
25. There is accordingly no merit in the writ petitions which are
dismissed but without any order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
JANUARY 21, 2015
mamta
