REGIONAL BENCH, KOCHI

O.A.NO. 120 of 2014

TUESDAY, THE 1ST DAY OF SEPTEMBER, 2015/10TH BHADRA, 1937 CORAM:

HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) APPLICANT: EX SUBEDAR MAJOR/HONORARY LIEUTENANT SREEDHARAN KODAKKATT, NO JC 306636W, S/O.LATE KUNJAN NAIR.K., LAKSHMI NILAYAM, ULLAD, ANCHAMAIL, POOKKOTTUMPADAM.P.O., MALAPPURAM DISTRICT, KERALA – 679 332.

BY ADV.SRI.V.K.SATHYANATHAN.

Versus

RESPONDENTS:

1. UNION OF , REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW – 110 011.

2. THE CHIEF OF THE ARMY STAFF, INTEGRATED HQRS, MINISTRY OF DEFENCE (ARMY), NEW DELHI 110 011.

3. THE OFFICER COMMANING IN CHIEF, HQ SOUTH WESTERN COMMAND, PIN 914002, C/O.56 APO.

4. THE COMMANDING, HQ 1 CORPS, PIN 914002, C/O.56 APO.

5. THE GENERAL OFFICER COMMANDING, HQ ATNK & K AREA, ISLAND GROUND, CHENNAI – 600 009.

6. THE COMMANDANT, HQ MEG & CENTRE, PIN 900 493. C/O.56 APO.

7. THE OIC RECORDS, RECORDS, THE MEG, PIN 900 493, C/O.56 APO.

BY ADV.MR.K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL.

OA 120 of 2014 : 2 :

O R D E R

VAdm.M.P.Muralidharan, Member (A):

1. The Original Application has been filed by

Honorary Lieutenant (Ex Subedar Major) Sreedharan

Kodakkatt, No. 306636 of , aggrieved by non grant of Honorary Commission prior to his retirement from service.

2. The undisputed facts of the case are that the applicant was enrolled into the Army (Madras Engineer

Group) on 23 June 1979 and in due course was promoted to the rank of Subedar Major with effect from 12 February

2009. The applicant retired from the Army on 28 February

2013. The applicant was granted Honorary Commission to the rank of Honorary Lieutenant on retirement with effect from 01 March 2013, on the occasion of Independence Day

2013 (Annexure A5).

3. Sri V.K.Sathyanathan, the learned counsel for the OA 120 of 2014 : 3 : applicant submitted that the applicant had more than 33 years of unblemished service of which more than 10 years he had served in field area/Counter Insurgency area/high altitude area. The applicant had also participated in Kargil

War for which he had been awarded Operation Vijay Star

Medal. The learned counsel further submitted that the applicant was first considered for grant of Honorary

Commission to the rank of Honorary Lieutenant to be awarded on the eve of Independence Day 2012 and recommendations were duly processed by the concerned authorities. However he did not figure in the list of those granted Honorary Commission in the Independence Day of

2012. The learned counsel further submitted that if the applicant had been granted Honorary Commission on 15th

August 2012, he would have been entitled for consideration for the rank of Honorary Captain on the occasion of Republic Day 2013. The learned counsel was also of the view that incorrect calculation of marks allotted to the applicant at the consideration stage resulted in his not being granted Honorary Commission. The allocation of OA 120 of 2014 : 4 : marks has a significant role in the award of Honorary

Commission as it is based on relative merit and the yardstick for grant of Honorary Commission has been promulgated by Army Headquarters letter

No.B/43435/Policy/AG/CW-2 dated 26 May 2009 (Annexure

A3). In accordance with the parameters, apart from other considerations, marks are also allocated for various Stars and Medals received and for performance in prescribed

Army Courses. The submission of the learned counsel was that the marks were not allocated to the applicant for Op

Vijay Star Medal as well as for Transport Supervisor's

Course for NCOs conducted by the Army School of

Mechanical Transport in the year 1991 wherein the applicant had obtained AX grading. Even though the name of the course and the school conducting the same had been changed since the time the applicant had done the course, it was required to be considered.

4. The learned counsel further brought out that the second chance for the applicant for Honorary Commission OA 120 of 2014 : 5 : while he was in service was on the occasion of Republic Day

2013. However he did not figure in the list for the same.

Being aggrieved, a statutory complaint was submitted by the applicant (Annexure A4). Soon thereafter the applicant superannuated on 28 February 2013 and after retirement he was granted Honorary Rank of Lieutenant from the retired list on the eve of Independence Day 2013. As the applicant had not received any response to the statutory complaint, he raised the issue at a Ex-serviceman rally conducted in November 2013 to which he received a reply

(Annexure A6) stating that the statutory complaint was with Headquarters of South Western Command/ HQ 1

Corps. Eventually, in February 2014 almost a year after submission, the statutory complaint was returned to him stating that it had not been submitted in the correct format

(Annexure A7). The learned counsel was of the view that the appeal had not been acted upon stating frivolous grounds. He therefore requested that after examining the records for grant of Honorary Commission on 15 August

2012 and 26 January 2013, the applicant be declared OA 120 of 2014 : 6 : eligible for Honorary Commission in the active list with award of the rank of Honorary Lieutenant on 15 August

2012 and Honorary Captain on 26 January 2013. He further requested that the applicant be given all consequential benefits.

5. Sri K.M.Jamaludheen, learned Senior Panel

Counsel for the respondents submitted that JCOs are considered for grant of Honorary Commission two years prior to their retirement. Details of JCOs are to be forwarded by the concerned Unit and every JCO would be given two chances for Honorary Commission in the active list and one chance in the retired list. The applicant's claim was duly considered for the first time on the eve of

Independence Day 2012 and for the second time during

Republic Day 2013, but did not merit selection. He was granted the rank of Honorary Lieutenant on retirement on the occasion of Independence Day 2013 with effect from 01

March 2013. He further submitted that the statutory complaint of the applicant had not been submitted in the OA 120 of 2014 : 7 : correct format and while the applicant had been informed of the same in February 2014, no fresh complaint as per the format provided by Record Office MEG has been received from the applicant. The learned counsel further submitted that during consideration of the applicant for grant of Honorary Commission, there were observations in respect of the award of Op Vijay Star and NCOs Transport

Supervisor Course. These issues were therefore processed for rectification with parent Unit of the applicant ie 2

Engineer Regiment and IHQ, MoD (Army) for clarifications, but as they were not resolved in time, weightage for them were not given to the applicant when considered for

Honorary Commission on the eve of Independence Day

2012 and Republic Day 2013. The learned counsel further brought out that in accordance with Regulation 177 for the

Army, extract of which is placed at Annexure R4, there is a prescribed ratio as regards Honorary ranks that can be granted based on the overall strength of JCOs and the selection is purely merit based. The applicant did not merit selection in the first two chances and was awarded OA 120 of 2014 : 8 :

Honorary Commission on retirement.

6. Heard rival submissions and perused records.

7. In accordance with Regulation 177 (Annexure R4),

JCOs are considered for grant of Honorary ranks on the occasion of Republic Day and Independence Day in the ratio of 12 Honorary Lieutenants for every 1000 JCOs and one

Honoaray Captain for every four Honorary Lieutenants.

The selection for the award is based on relative merit which is drawn out by assessing the profile of a JCO against specified quantifiable set of service parameters promulgated by Army Headquarters, a copy of which is at

Annexure A3/R12. Weightage is awarded for the prescribed criteria and there are also deductions laid down for disciplinary issues. As regard the two specific contentions raised by the applicant, it is observed that weightage is allocated for specified Army courses completed with AX grading and for each Star/Medal awarded in an area where active hostilities were involved. Since the selection is OA 120 of 2014 : 9 : based on comparative merit, every weightage added will improve the chances of award of Honorary Commission.

8. Records of the applicant for his selection produced before us by the respondents indicate that no weightage was allocated to the applicant for Op Vijay Star or for the

Transport Supervisor Course which he had attended.

Individual course report submitted by the applicant

(Annexure A2) indicates that he had been graded as AX which would make him eligible for weightage and further weightage was due to him for Op Vijay Star. These were not included while he was being considered for Honorary

Commission in his first two chances.

9. Written submissions by the respondents in the reply statement indicate that there were discrepancies on the aspect of Op Vijay Star such as not indicating the exact location and some other details which were to be indicated and apparently clarifications were sought between various authorities among the respondents. This was so OA 120 of 2014 : 10 : during his consideration for award on both occasions when he was in service. Similarly his performance in the course was also not considered, as the establishment conducting the course was not in the list of Establishments (Annexures

R13 and R14). However some clarifications were sought between various authorities among the respondents. It is also observed that the Engineer Chief Branch, Army

Headquarters has requested that the Transport Supervisor's

Course be given weightage for Honorary Commission

(Annexure R16), but as per submissions by the respondents, no clarification on the same has been issued.

So it is not clear as to whether the concerned course would get any weightage. However, as per submissions, the applicant is entitled for benefit of Op Vijay Star, but the same was not considered in his first two chances for award of Honorary Commission.

10. In our view, it was the responsibility of the respondents to ensure that applicant and others like him who were considered for grant of Honorary Commission OA 120 of 2014 : 11 : were given due weightage for their performance in prescribed parameters. While we agree that all submissions/tabulations made in any recommendation form should be scrutinised for their correctness, that should not become a reason to deny personnel such as the applicant weightage due to them. Giving due weightage for Op Vijay Star Medal for which the applicant was eligible was squarely on the respondents. Additional weightage so gained, could have made considerable difference in the comparative merit. Similarly, it is evident that the

Transport Supervisor Course undergone by the applicant where he has earned a grading which would have given him additional weightage has not been considered. It is apparent from Annexure R16 that the course should have been included in the list of courses to be given weightage.

However, no clarification is available in the records placed before us. Similarly only individual records of the applicant was shown to us. Since selection is based on comparative merit we are not in a position to decide whether merely an increase of weightage for Op Vijay Star to which the OA 120 of 2014 : 12 : applicant was eligible would have merited his selection.

We are therefore of the view that the case of the applicant for weightage of Honorary Commission requires a re-look after giving him additional weightage for Op Vijay Star and for the course undergone by him, in case it is now in the list of specified courses due to be given weightage.

11. In view of the foregoing, the Original

Application is partly allowed. The respondents are to review the case of the applicant for grant of Honorary

Commission as on 15 August 2012 and 26 January 2013 granting him additional weightage for Op Vijay Star. He is also to be granted additional weightage for the

Transport Supervisor Course undergone by him if it is now included in the list eligible for weightage. Based on the revised allocation of weightage, the respondents are to consider the applicant's case and if meriting selection the applicant is to be awarded Honoraray Commission with ante-dated seniority and all consequential benefits.

In case he is found eligible for grant of the rank OA 120 of 2014 : 13 :

of Honorary Lieutenant on his first chance on 15 August

2012 his case is also be considered for grant of Honorary

Captain on 26 January 2013. If meriting selection the

applicant is to be granted the Honorary rank of Captain

with all consequential benefits. The above exercise is to be

completed and result communicated to the applicant within

a period of four months from the date of receipt of a copy

of this order. If eligible, the applicant is to be paid all

monetary benefits due to him within two months from

completion of the finalisation of the results, failing which

the unpaid amount will carry a simple interest at the rate

of 8% per annum.

12. There will be no orders as to costs.

13. Issue free copy of the order to the parties.

Sd/- sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J)

OA 120 of 2014 : 14 :

14. After pronouncement of the order, learned counsel

for respondents requested for leave to appeal to the

Supreme Court. In our opinion, no question of law of

general public importance is involved in the matter. Hence

leave requested for is refused.

Sd/- sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J)

an. (true copy)

Prl.Pvt.Secretary