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IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, JAIPUR.

J U D G M E N T

ARJUN SINGH v. UNION OF & OTHERS.

ORIGINAL APPLICATION NO. 17 OF 2009

DATE OF JUDGMENT : 6TH MAY, 2010.

PRESENT

HON’BLE MR.JUSTICE BHANWAROO KHAN(J)

HON’BLE Lt Gen SUSHEEL GUPTA (A)

Mr. S.B.Singh, for the applicant.

Mr. Sanjay Pareek, for the non-applicants.

Lt Col Veerendra Mohan, Officer-in-charge.

BY THE TRIBUNAL (PER HON’BLE Lt Gen SUSHEEL GUPTA) :

The applicant, Naib Subedar Arjun Singh has filed an application under Sec. 14 of the Armed Forces Tribunal Act, 2007 praying for implementation of the promotion order for promotion to the rank of Subedar issued on 6.3.2006. 2

2. Brief facts of the case are, that the applicant joined the

Army on 20.6.1984 in the Corps of Engineers and was posted thereafter to 236 Engineer Regiment in December, 1986. During

25 years of service, he has been posted in various appointments and in the year 2000, the applicant was given an option to opt for Military Engineering Service (hereinafter referred to as

“MES”). He was transferred to MES and was given the trade of

Store Keeper Technical and posted to Kolkata. Subsequently, on completion of his tenure, he was transferred to GE(I) Army, Port

Blair and in the meantime, he was promoted to the rank of Naib

Subedar on 31.12.2003.

3. Whilst serving under GE(I) Army Port Blair, an incident occurred, due to which, a court of inquiry was convened against him in the last week of December, 2005. During pendency of the court of inquiry, the applicant received a copy of the promotion order dated 6.3.2006 issued by the non-applicant No.2 promoting him to the rank of Subedar with seniority w.e.f. 12.12.2005.

However, in Para 2(c) of the promotion order, a condition was indicated, that the JCOs should not be involved in any court of inquiry/discipline/vigilance/criminal case as per Army Order 3

No. 1/2001. As a court of inquiry was pending against the applicant, the promotion order of the applicant could not be implemented.

4. On completion of the court of inquiry, Summary of

Evidence was held and thereafter General Court Martial was convened against the applicant. During trial, the applicant was found guilty and was awarded the following sentence on

7.8.2008 :-

(i) to forfeit seven years past service for the purpose of

pension, and

(ii) to be severely reprimanded.

5. On finalization of the disciplinary proceedings against the

JCO, the applicant filed many requests for implementation of his promotion order, which was issued on 6.3.2006. On the contrary, the non-applicants issued a Discharge Order dated 23.9.2009 asking the applicant to report to STB(O)/Disch on 6.6.2010. Also, a letter was issued to the applicant on 28.10.2009, wherein, his contention for promotion was rejected and was informed that as he had been awarded recordable censure/red ink entry under

Section 69 of the Army Act, hence he will not be promoted for a 4

period of next three years from the date of award of the recordable censure/red ink entry. Since he could not be promoted before his due date of retirement, hence, his retirement order has been issued to retire from service on 30.6.2010.

6. In the application, the applicant has submitted that it is settled principle of law that a person cannot be penalized twice for one offence. As per him, he was punished once for committing an offence and the non-applicants have once again punished the applicant for the same offence by denying him promotion to the rank of Subedar, which was already granted to him from

12.12.2005 on the basis of his past service record prior to occurrence of the offence. The double punishment for one offence is illegal and bad in the eyes of law and deserves to be quashed and set aside. The applicant has further contended that the promotion order issued on 6.3.2006 was based on service record from the date of promotion of the applicant to the rank of Naib

Subedar up to the year 2005. During that period, there was no adverse entry in the service record of the applicant, which might have effected his promotion. The promotion order clearly indicates that the seniority on the implementation of promotion order was granted from 12.12.2005 and the incident for which the 5

applicant was punished happened in the last week of December,

2005, therefore, the incident and the subsequent proceedings can not come in the way of promotion of the applicant.

7. The applicant also states that if he is accorded promotion to the rank of subedar, he will continue to serve beyond 30.6.2010

(from the date of discharge from the present rank) else he would be retired without being promoted because of the fault of the non-applicant in delaying the promotion.

8. The non-applicants, in their reply, have stated that the promotion order dated 6.3.2006 was issued for the promotion of the applicant to the rank of Subedar with seniority effective from

12.12.2005 based on his performance and past service record.

However, the promotion for JCO/OR was issued/executed based on the Policy/Instructions issued vide AG’s Branch Army Head- quarters, letter No.B/33513/AG/PS2(c) dated

10.10.1997.

9. As per Para 15 of the Promotion Policy, the discipline criteria will be applied at the time of holding promotion Board as well as physical promotion. As per Para 3 of the aforesaid letter, 6

a JCO/NCO, who has been awarded recordable censure/red ink entry for any offence under Sec.69 of the Army Act, will not be eligible for further promotion for a period of next three years from the date of the award of the recordable censure/red ink entry.

10. The applicant was tried by the General Court Martial for an offence under Sec.69 of the Army Act, 1950 and was awarded the following punishments :-

(i) to forfeit seven years past service for the purpose of

pension and

(ii) to be severely reprimanded.

Thus, it is manifest that the applicant has become ineligible for further promotion for three years with effect from 7.8.2008 to

6.8.2011. The applicant was enrolled in the Army on 20.6.1984 and will be completing the term of engagement of 26 years in the month of June, 2010. Accordingly, his discharge order has been issued for discharge from service w.e.f. 30.6.2010.

11. The non-applicants have further contended that the promotion order dated 6.3.2006 was issued with certain conditions and in case, the JCO does not fulfill the said conditions, his promotion order could not have been given effect 7

to. As per condition No.2(c) mentioned in the aforesaid promotion order, the JCO must not be involved in any court of inquiry/discipline/vigilance/criminal case. Since at the time of issuance of promotion order, the applicant was not fulfilling the conditions indicated at Para 2(c), his promotion order could not be implemented. Now, after having been punished by the General

Court Martial vide order dated 7.8.2008, the applicant cannot be promoted for the next three years from the date of the award of the recordable censure/red ink entry. In view of the above Policy, the applicant is not eligible for promotion to the rank of Subedar.

12. During the course of argument, learned counsel for the applicant has placed reliance on the decision rendered by Hon’ble

Jammu & Kashmir High Court in the case of Ramesh Chander v.

G.O.C. and others (1977(2) SLR 364), wherein, the Hon’ble Judge has opined that the order of promotion once passed cannot be cancelled or kept in abeyance on the ground of some pending enquiry or investigation. The

Hon’ble Judge has stated that cancellation of the order of promotion or keeping the order in abeyance on account of some pending enquiry would amount to imposing punishment on the petitioner before the case is actually established against him. 8

Such a course would be a complete violation of the Constitutional rights guaranteed to the petitioner under Article 16 of the

Constitution of India. The power to withhold the actual grant of promotion to the petitioner or to cancel the promotion already granted is a power, which curtails his rights and the constitutional protection available to him and has to be exercised strictly in accordance with law and not arbitrarily.

13. Learned counsel for the applicant has further argued that the promotion order was issued on 6.3.2006 and the non- applicants have taken over three years to finalize the disciplinary proceedings and have further laid a ban of three years thereby delaying the promotion for six years. Any enquiry against the applicant should have been finalized in a stipulated time and having taken unduly long time in finalizing, only indicates inefficiency of the non-applicants, for which, the applicant cannot be penalized. Also, during this period, the services of the applicant have been totally satisfactory and unblemished, therefore, he certainly deserves to be promoted to the rank of

Subedar.

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14. Learned counsel for the non-applicants has cited the case of Hon’ble Supreme Court in Union of India Etc. v.

K.V.Jankiraman Etc. Etc.(decided on 27.8.1991), wherein, it has been held that an employee who is facing departmental enquiry or criminal proceedings, cannot be promoted pending such proceedings against him. His promotion order would be subjected to final out-come of departmental enquiry or criminal proceedings.

15. Relying on the same judgment, the learned counsel for the non-applicants has quoted as under :-

“It cannot be said that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. The officer cannot be rewarded by promotion as a matter of course even if penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. The qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated 10

differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date, he is penalized in presenti. When an employee is held guilty and penalized and is, therefore, not promoted at least till the date on which he is penalized, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date that authority considers the promotion.”

16. Thus, it is clear that not promoting the applicant considering the fact that enquiry was pending against him and later on, he was punished in the said enquiry, does not amount to double jeopardy. During arguments, learned counsel for the non-applicants has also brought out that the promotion order was conditional and, therefore, in true sense, the promotion 11

could be implemented if all the conditions spelt out were met.

Since the applicant was not meeting one of the important conditions, this promotion order, in fact, cannot be implemented.

17. Having gone through the record and having heard the learned counsel for the parties, it is evident that the applicant was denied promotion despite issuance of the promotion order since he was not fulfilling the conditions as spelt out in the posting order. The promotion order issued was not absolute as it had specified certain conditions, which had to be fulfilled before the applicant could be promoted. Since the applicant did not fulfill all the conditions, he cannot demand his right of promotion. The applicant cannot take relief or advantage from the judgment rendered in the case of Ramesh Chander (supra) as the same has been amplified by Hon’ble Supreme Court of

India in the case of K.V.Jankiraman(supra).

18. With the above observations, the Original Application is dismissed with no order as to costs.

(Lt Gen SUSHEEL GUPTA) A. (BHANWAROO KHAN) J.