TA No.75 of 2010 Harish Chandra Joshi IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH (Court No.2) T.A NO. 75 of 2010 Writ Petition (C) No.6602 of 2003 of Delhi High Court

IN THE MATTER OF:

HARISH CHANDRA JOSHI ...... APPLICANT Through : Mr. K. Ramesh, counsel for the applicant

Vs.

UNION OF AND OTHERS ...... RESPONDENTS Through: Mr. Ankur Chibber counsel for the respondents

CORAM:

HON’BLE MR. JUSTICE MANAK MOHTA, JUDICIAL MEMBER HON’BLE LT. GEN. M.L. NAIDU, ADMINISTRATIVE MEMBER

JUDGMENT

Date: 24.02.2012

1. This case was originally filed before the Hon‟ble High Court of Delhi as WP(C) No.6602 of 2003 and later on it was transferred to this Tribunal on 07.01.2010 and registered as T.A. No.75/2010.

2. Vide this petition, the applicant has prayed to promote the applicant to the rank of w.e.f. 01.04.1995, as Naib Subedar from 07.05.1997, and further to promote the applicant to the post of

Subedar from October 2003 with all consequential benefits.

3. Brief facts of the case are that the applicant was enrolled in the Army, Kumaon Regiment on 28.2.1978 and was posted to 4

KUMAON on completion of his training. While attached to the 17

GARH RIF under 25 Infantry Division, the applicant became a case of

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TA No.75 of 2010 Harish Chandra Joshi Battle Casualty due to mine blast. He was also awarded the “Army

Commander‟s Commendation Card” for his gallantry act. The applicant was thus placed in permanent medical category „CEE‟. The applicant continued to serve to the best of his ability both in field and peace stations.

4. The applicant was promoted paid acting Havildar by the Unit w.e.f. 01.4.1995. At that time he had not passed the “Map Reading

Standard One” on the presumption by the respondent authority that

Map Reading Standard One is not applicable to battle causality. As such he was not detailed to attend “Map Reading Standard One” class as the unit was under the impression that Map Reading Standard One is not applicable to battle causalities. The applicant was made substantive Havildar w.e.f. 01.04.1995.

5. After completion of one year, the Record Office observed that the promotion of the applicant was irregular since he had not passed

“Map Reading Standard One” exam. For about 8 months, the unit corresponded with the Record Office but the Record Office prevailed and the applicant was directed to pass the “Map Reading Standard

One” exam which he did so on 07.05.1997 at first attempt.

6. The applicant submitted that the Commanding Officer of the applicant assured him that his seniority would not be affected. It is alleged that however, he was shocked when his seniority was

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TA No.75 of 2010 Harish Chandra Joshi cancelled and a fresh date of seniority was given from 07.05.1997 i.e., the date he passed the Map Reading Standard One Exam.

7. The applicant appealed to the Commanding Officer from time to time through normal channels but to no avail.

8. The applicant was detailed for promotion cadre from Havildar to Nb Subedar during September-December 2002 based on his fresh seniority i.e. 07.05.1997. He successfully completed the cadre and qualified in the Havildar to Nb Subedar cadre.

9. Consequent to this cadre, all those seven candidates who qualified, except for one who was overage, the other five were promoted in their turn. The applicant was not promoted being shown junior. Another promotion cadre was run by the unit between February to April 2003 and some more who were not eligible for promotion cadre earlier became eligible to attend the cadre and qualified. Thus, they all became senior to the applicant.

10. The applicant was given to understand that one Havildar

Janak Chand who passed his promotion cadre in 2003 was made Nb

Subedar superseding the applicant. The applicant was ranked the junior most in the list of Havildars just because of the date of substantive rank of Havildar having been amended to 07.05.1997. The applicant has further averred in his application that lowering his seniority was consequent to faulty documentation and ambiguous promotion policy of the unit. He could have been given the original

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TA No.75 of 2010 Harish Chandra Joshi seniority in the rank of Havildar. His seniority could have been saved had the Unit and the Record Office acted promptly. In this case the

Unit and the Record Office took nearly two years to decide as to whether the applicant should be directed to do “Map Reading Standard

One” or not. He has also averred that there was no comprehensive promotion policy in the Unit and promotions are made in an arbitrary manner. In this case, the Unit should know whether the Map Reading

Standard One was applicable to the applicant who was battle causality. Besides, the publication of occurrence was delayed considerably. Part-II Order is required to be published within 48 hours of occurrence. The Record Office also failed to inform the unit in time the discrepancy and objections to the promotion until one year after the promotion was made by the unit.

11. Learned counsel for the applicant argued that the substantive promotion once made cannot be cancelled by a simple administrative order. No show cause notice was served on the applicant. The CO gave false assurances about the retention of the original seniority to the applicant. The applicant continued to wear the badges and rank of

Havildar and he was never asked to wear the badges of rank of Naik despite the applicant not having done the Map Reading Standard One.

12. Learned counsel for the applicant argued that the second promotion cadre was conducted before the applicant who was one of the seven approved in the year 2002 could pick up his rank. In the

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TA No.75 of 2010 Harish Chandra Joshi cadre which was held in 2003, some NCOs who had qualified and were became senior to the applicant were promoted and thus the applicant was denied of a chance of promotion to the Nb Subedar. It is further contended that the applicant was said to be denied promotion due to ACR criteria, but detail of ACRs has not been given.

It is stated that his ACRs have been destroyed, but the writ petition was filed in the year 2003 and before that the representation was filed and it is not convincible that his ACRs have been destroyed. It was also contended that the applicant was on strength at the time of filing writ petition and superannuated in February, 2004.

13. Learned counsel for the applicant further argued that the respondents have failed to produce despite the court‟s directions to submit the DPC proceedings in case the ACRs are not available. The respondents have also been unable to produce the DPC proceedings though they have made an averment that the individual did not meet the ACR criteria for being considered for promotion to Nb Subedar. He further stated that the respondents have also not produced any evidence to show that the proceedings were destroyed. Learned counsel further stated that the sheet-roll of an individual has to be retained for a period of 50 years in the case of pensioner and 25 years in the case of an individual becoming non-effective as stated in DSR

Para 595 of the Regulations for the Army 1962. Further, Para 592 of the same Regulations do not permit destruction of documents as is made out to be by the respondents. Thus, even if the ACRs are not

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TA No.75 of 2010 Harish Chandra Joshi upto the expected standards, then his name would have been considered by the DPC and rejected on ACR criteria itself whereas even the DPC records have been destroyed as is made out, which is difficult to comprehend. Further, he says that the writ petition was filed in 2003 when the applicant was still in service and there is no question of the records having been destroyed. The applicant had also filed a statutory complaint in June 2003 which has not yet been disposed off.

The applicant retired on 28.02.2004. Since the case was already subjudice by then, it is difficult to comprehend that the records have been destroyed. It tantamounts to contempt of court. As such, he stressed that adverse inference should be taken.

14. Learned counsel for the applicant also drew our attention to the several representations made by the applicant to the respondents.

15. In support of his contentions, Learned counsel for the applicant also cited following citations:-

16. 145(2007) DLT 53 (DB) in the matter of Lt. Col. Mukul Dev

Vs Union of India & Ors., wherein the Hon‟ble High Court has held that “Once a decision has been taken by the as regards the eligibility prescribed and the possession of the necessary qualification, the decision of the President cannot be questioned.”

17. In (2009) 6 SCC 298 “Union of India & Anr. Vs. Ex. Major

Sudershan Gupta” the Hon‟ble Supreme Court has held as under:

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TA No.75 of 2010 Harish Chandra Joshi “4. However, the records disclose that the writ petition was filed in the Delhi High Court by the respondent before the expiry of 7 years‟ period and since the matter was sub judice before the Court, the army authorities were required to preserve the records so as to make the same available to the Court to effectively decide the issue with regard to the legality or validity of the order of convening the General Court Martial. It would not be possible to decide the issue raised, as has been rightly held by the High Court, namely, as to whether or not there was proper application of mind by the competent authority while passing the convening order.

5. Learned counsel appearing for the respondent has stated that adverse inference should be drawn against the inability of the Department to produce the records. However, in view of non-availability of records, we find no reasonable ground to interfere with the order of the Division Bench of the High Court.”

18. He also cited order of the Principal Bench, AFT passed in

T.A. No.407/2009 decided on 05.05.2010 in the matter of “L/Hav Ran

Singh Vs Union of India & Ors.”, wherein the Hon‟ble Tribunal has held as under:-

“The applicant was not able to establish that he had passed Hindi Class II qualification that was a pre requisite qualification for promotion to the rank of Hav. It is thus clear that the applicant was incorrectly detailed for the Hav cadre. The applicant states that he had passed the test while serving in J&K Rifles. There is, however, no record to support his contention. Subsequently the applicant did pass Hindi Class II. He however claimed that he was never

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TA No.75 of 2010 Harish Chandra Joshi detailed for Hav cadre again despite having residual service of more than three years. The applicants cadre test result (Annexure –A) is on record. It reveals that he passed the same. We feel that the applicant deserves the redressal since he was earlier promoted Hav. In view of the fact that he had qualified in the Cadre and then in reverse order subsequently passed Hindi Class II, partial redress is warranted to meet the ends of justice.”

He prayed that similarly, in this case the applicant should be considered as having passed the Map Reading Standard One exam despite the fact that he had not qualified for the Map

Reading Standard One earlier.

19. He also cited order of the Principal Bench, AFT passed in

T.A. No.516/2009 decided on 06.09.2011 in the matter of “Hav

Bhagmal Vs Union of India & Ors.”, wherein the Hon‟ble Tribunal has held as under:-

“The applicant has not been able to prove that he was fully qualified for promotion, however, the ACRs and Promotion Board proceedings were kept in the custody of respondents therefore they can not escape from liability since the facts can not be ascertained as the records have been destroyed. Grant of promotion is not warranted but the applicant deserves compensation on the count of fault of the respondents. We, therefore, direct that the respondents pay a sum of 25,000/- to the applicant as damages.”

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TA No.75 of 2010 Harish Chandra Joshi 20. He also cited order of the Principal Bench, AFT passed in

O.A. No.64/2011 decided on 18.10.2011 in the matter of “Hav Amarjit

Singh Vs Union of India & Ors.”, wherein the Hon‟ble Tribunal has held as under:-

“Petitioner is required to be promoted from the date when these three persons who were junior to him were promoted irrespective of the fact whether he has passed the Promotion Cadre Course or not. As it was not possible for him to pass the Promotion Cadre Course for the period when he was facing the disciplinary ban from 1985 till he superannuated on 30th June 1988. Hence, in a peculiar situation like the present one there is no except to promote the Petitioner as Naib Subedar from 1st April 1988.”

21. Learned counsel for the respondents stated that the applicant received injury of severe nature on 17.06.1988 while on duty and it was declared as attributable to military service in field area and was treated as “Battle Causality”. He was declared permanent category “A-3” w.e.f. 29.9.1989 with the diagnosis

“AMPUTATION SYMES (RT) MINE BLAST INJURY”.

22. Learned counsel for the respondents further stated that the applicant was promoted to the rank of paid acting Havildar w.e.f. 01.4.1995 before his passing Map Reading Standard One exam on the “assumption” that the applicant is exempted from

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TA No.75 of 2010 Harish Chandra Joshi passing “Map Reading Standard One” being Battle Casualty case. It was pointed out by the Record Office that the Map

Reading Standard One exam is essential even for battle casualty case and is a mandatory requirement for the promotion to the

Havildar. In the meantime the applicant was promoted to the rank of Substantive Havildar. Since the Part II Order regarding promotion to the rank of Paid Acting Havildar was rejected, the unit sought a clarification regarding exemption of Map Reading

Standard One in respect of the applicant as is a Battle Casualty.

In reply, the Record Office clarified that Map Reading Standard

One is mandatory. Based on the above clarification, Part-II Order regarding Substantive Havildar was cancelled by the respondent

No.2 in 1997.

23. Learned counsel for the respondents further argued that the applicant passed his Map Reading Standard One exam on

07.05.1997. The applicant was thus promoted the rank of Paid

Acting Havildar w.e.f. the same date i.e., 07.05.1997 and was made substantive Havildar w.e.f. 01.01.1998. The applicant came up for promotion to the rank of Nb Subedar alongwith personnel with seniority of 01.01.1998. However, he could not be promoted because he was lacking ACR criteria. While considering an NCO for promotion to the rank of Nb Subedar, last five ACRs are to be

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TA No.75 of 2010 Harish Chandra Joshi taken into account and out of the five ACRs, minimum three should be „Above Average‟ and two should be „High Average‟ gradings. The applicant had earned only two „Above Average‟ reports since 1997 and therefore, was not promoted to the rank of

Nb Subedar. The applicant would also not have been promoted to the rank of Naib Subedar had he been exempted from passing

“Map Reading standard One” exam and given the seniority on

01.04.1995 as claimed by the applicant, as NCOs with seniority of

01.04.1995 were considered for promotion w.e.f. 01.10.2001 only.

Learned counsel further argued that the applicant had been superseded only because of lacking in ACR criteria and not due to any other reasons as alleged by the applicant.

24. In support of his contentions, learned counsel for the respondents cited the following judgments:-

(i) 1998 (9) SCC 327 in the matter of “Chairman Public Service Commission, J& K and Anr. Vs Sudarshan Singh Jamwal and Anr.” it was observed that in absence of rule, Government has no power to relax the upper age limit.

(ii) 2007 (7) SCC 140 in the matter of “State of Kerala and Others Vs K. Prasad and Anr.” it was observed that any benefit conferred on the basis of violation of prescribed procedure, reiterated, cannot be extended.

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TA No.75 of 2010 Harish Chandra Joshi (iii) 2000 (10) SCC 383 in the matter of “M. Mazharuddin Ali and Others Vs Govt. Of A.P. and others” it was observed that failure to pass test, held, entailed reversion.

(iv) 2011 (8) SCC 108 in the matter of “Orissa Public Service Commission and Anr. Vs Rupashree Chowhdary and Another” it was observed that extension of relief was improper since ordering of rounding off itself was de hors rules.

25. Having heard both the parties at length, having examined the records and keeping in mind the principles laid down in the judgments cited by both the sides, we are of the opinion that the applicant was not eligible to be promoted as

Havildar on 01.04.1995 since he had not passed his “Map

Reading Standard One” exam which is mandatory requirement having its own importance in army service. No one is exempted from passing of this examination even if the person is a battle casualty nor it can be relaxed, therefore, he was rightly directed to pass said test and just after passing the test he was promoted to the rank of Havildar. To this extent the contentions of the applicant that he be deemed promoted w.e.f. 1995 in the rank of

Havildar are not sustainable. The judgment cited by the applicant does not help his contentions. In case of Lt. Col. Mukul Dev

(supra) the order under challenge was of Hon‟ble President,

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TA No.75 of 2010 Harish Chandra Joshi being Supreme Command of Defence forces of the Union, that is not the position in the present case.

26. We have now considered the issue of promotion. The respondents have stated that the applicant was eligible to become a Nb Subedar and he was considered in October 2003 but he was lacking in ACR criteria. Their contentions are that under the existing circumstances when his seniority was amended from 07.05.1997 he had only two “Above Average”

ACRs against the requirement of three “Above Average” ACRs during the period of consideration. Learned counsel for the respondents has further stressed that had the applicant been considered in October 2001 taking into account his notional seniority of 01.04.1995 even then he was lacking in ACR criteria which require three „Above Average‟ ACRs and two ACRs of not less than „High Average‟.

27. The present petition was first filed in the Hon‟ble High

Court of Delhi in 2003 challenging the denial of promotion. The case pertains to the year 2001. Thus to say that the records pertaining to ACRs have been destroyed in spite of the fact that the case was pending in the Court is inconceivable. We are unable to understand that till the time the applicant was on strength, how his ACRs were destroyed. Since the record is not

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TA No.75 of 2010 Harish Chandra Joshi available, we cannot ascertain the veracity of the averment made by the respondents as regards the fact that the applicant was lacking in ACR criteria. In addition to that, there is no allegation of any disciplinary proceedings against the applicant, no warning letter in respect of any ACR is stated to have been issued nor any adverse report has been communicated. On the contrary, the commendation card was granted to him and he passed the “Map

Reading Standard One” exam on first attempt. Furthermore, in this case on 04.05.2011, 25.07.2011, 07.09.2011 and 16.12.2011 respondents were directed to produce ACRs and DPC records, but

ACRs were not produced and it was reported that ACRs have been destroyed. Again direction was given to produce the “destruction certificate” to understand that how and when ACRs were destroyed, but that too has not been produced. Thus, in the absence of any adverse record, we are unable to accept the contentions of the respondents. Arriving at this view, we are guided by the view taken by the Hon‟ble Supreme Court in the matter of “UOI Vs Major Sudershan

Gupta” (2009) 2 SCC (L&S) 197 and as such we are forced to take an adverse inference from the statements of the respondents that the applicant was fit for promotion. To this extent, the judgments cited by the respondents do not help their case and are not coming in the way of the applicant.

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TA No.75 of 2010 Harish Chandra Joshi 28. In the light of above discussion, the applicant should be deemed to have been promoted to the rank of Naib Subedar w.e.f. October 2003 i.e. the date when he became eligible to be considered for JCO with the seniority of Havildar w.e.f.

07.05.1997 with all financial benefits from the date when any junior to him in the said rank is promoted to the rank of Naib

Subedar. The applicant will further be deemed to be superannuated in the rank of Naib Subedar as applicable in the rules and also will be entitled to financial benefits thereto. But, he will not be entitled to further promotion to the rank of Subedar as he has not worked in that rank. This exercise should be completed within a period of 120 days from the date of this order failing which the applicant will be entitled for interest @12% p.a. on the amount due. The T.A. stands partly allowed. File be consigned to records.

(M.L. NAIDU) (MANAK MOHTA) (Administrative Member) (Judicial Member)

Announced in the open Court on this 24th day of February, 2012.

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