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IN THE ARMED FORCES TRIBUNAL
REGIONAL BENCH, GUWAHATI. T.A. NO. 55 OF 2010
(Arising out of Writ Petition (C) No. 102(K)/2009)
P R E S E N T HON’BLE MR. JUSTICE H.N.SARMA,Member (J) HON’BLE CMDE MOHAN PHADKE (Retd),Member (A)
No15336088L Naik/Clerk(GD) Dinesh Kumar Shukla Hq.137 Works Engineers C/O.199 APO Dimapur,Nagaland
…… Appellant
Mr.R.Dhar Mr.Tiatemsu Ao Legal Practitioner For Appellant.
-Versus-
1. The Union of India, Represented by Secretary to the Government of India, Ministry of Defence, New Delhi.
2. The Engineer-in-Chief, Army Headquarters DHQ, New Delhi.
3. The Chief Engineer, Headquarter, Eastern Command Engineering Branch, Fort William, Kolkata-21.
4. The Garrison Engineer 866 Engineer Works Section C/o.99 APO 2 of 22
5. The Commandant BEG & Centre Roorkee-247667.
6. The Senior Record Officer Abhilekh Bengal Abhiyanta Samooh, Bengal Engineer group Records, C/O 56 APO
7. Mr.Bipin Kr. Pandey,Havildar C/O.Commandant BEG & Centre Rookrkee-347669.
…… Respondents
Mr.S.Bhattacharjee,CGSC Ms.M.Bhattacharjee Legal Practitioner for Respondents.
Date of Hearing : 21-11-2011 Date of Judgment & Order : 02-12-2011
JUDGMENT & ORDER
( Cmde Mohan Phadke)
The petitioner, in this case, was enrolled in the
Indian Army on 14.01.1999 as a Sepoy and was promoted to the rank of Naik in due course. He was nominated for a promotion cadre course for promotion from Naik to Havildar in the year 2006 but could not qualify as he failed in the 5 Km run test. In 2007, he was nominated for the second time to appear in the
Promotion Cadre Course vide Abhilekh Bengal Abhiyanta 3 of 22
Samooh, Bengal Engineers Group Records C/0 56 APO letter No.3002-PC2/R/02/CA6 dated 14.10.2006
(Annexure-B to the petition). His name appeared at Sl.19 of the list enclosed with the said letter. The petitioner could not, however, qualify in the second attempt also as he could not complete the 5 KM run test. He was, thereafter, nominated for the third time for SN-03/2006
CLK (GD)SKT Promotion Cadre Course commencing from
30.04.2007 to 16.06.2007 vide letter No.3007–
CLK/R/02/CA6 dated 07.03.2007 (Annexure- C to the petition). He was asked to report to PC.Coy BEG &
Centre, Roorkee, 2 days prior to the commencement of the promotion cadre course with relevant documents such as Identity Card, Movement order etc. vide Para 3 of the order dated 07.03.2007( Annexure-C) which reads as follows :
“3. NK CLK(GD)SKT at Appx ‘A’ to this letter are
detailed for SN-03/2006 Clk(GD)/SKT promotion cadre. They will
report to PC Coy BEG & Centre Roorkee two days prior to
commencement of promotion course and will be in possession of
Identify Card, AB-64,Mov Order, LRC and med fitness cert from
their RMOs.”
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2. The petitioner claims that based on the aforesaid communication, a convening order dated 15.05.2007 was issued by the Garrison Engineer GE 865 EWS (Annexure
C(1) to the petition) to assemble a Board of Officers to conduct BPET ( 5 KM run only) final test in respect of
No.15336088L Nk/Clk(GD), Dinesh Kumar Shukla , the petitioner herein, as a special case for promotion to
Havildar. The said Board was held on 19.05.2007 and the result of the run-test was forwarded to the respondents vide letter No.1201/172/EIG dated
19.5.2007 (Annexure-D to the petition). The petitioner was declared passed with the grading ‘good’, but by letter
No.20304 /SN-03 /06Clk (GD) /SKst /36/G(T) dated
25.7.2007 (Annexure-F to the petition) issued by
Headquarters, Bengal Engineers’ Group & Centre,
Roorkee, (hereinafter referred to as BEG & C, Roorkee), however, he was shown to have failed in the BPET vide entry at Sl.70. Aggrieved by the decision to declare him
‘failed’, the petitioner submitted several representations for redressal of his grievance. His representation dated
24.03.2008 was forwarded vide Annexure–I to the petition and the representation dated 28.02.2009 was forwarded vide Annexure-J to the peittion. In the 5 of 22
representation at Annexure-J, the petitioner had contended that he failed in the BPET (5 KMs run only ) conducted during the Promotion Cadre Course held from
03.07.2006 to 19.08.2006 due to a minor injury on his left leg. Besides, he did not get any opportunity to maintain or improve his physical fitness as he was earlier serving in counter insurgency area and high altitude area for the past 41 months where no PT/ BPET practice was conducted in the said location. He could not qualify in the second run test also as he got only 6 days BPET practice. Thereafter, he was nominated for the SN Course
SN -03/2006-2007 commencing from 30.04.2007 to
16.06.2007 along with his batch mate No.15336193F
NK/Clk (GD) Bipin Kumar Pandey for the third time. But in the meantime, the Garrison Engineer 865 EWS convened a Board of Officers for conducting BPET test ( 5
KM run only) for Naik to Havildar( Clk/GD) promotion cadre and the petitioner was declared passed. As directed, he submitted a copy of said proceedings to HQ
BEG & Centre Roorkee to Major Vikram Singh, AST but the latter refused to accept the said Board proceedings and directed the staff concerned not to accept the Board proceedings from him. The petitioner claims that even 6 of 22
though his batch mate Nk/Clk Bipin Kumr Pandey was promoted based on the result of the same Board of
Officers, his case was overlooked although he had passed with the grading – ‘good’. The petitioner contends that the respondents had, however, vide letter No. 4602-
2B/R/08/CA6 dated 08.04.2009, questioned the proceedings of the Board of Officers that had conducted the BPET 5 KM test run of the petitioner with reference to the authority under which the said test was conducted and asked the Presiding Officer of the Board to explain the correctness of holding a Board for the petitioner at the unit level. After the second representation, the petitioner was transferred from his place of posting to
CEEC (MES), Kolkata vide letter dated 26.03.2009
(Annexure-K).
3. The principal grievance of the petitioner is that the case of his junior No.15336193F Nk/Clk (GD) Bipin
Kumar Pandey was accepted for promotion based on the run test carried out by the same Board of Officers whereas his case was not accepted. The petitioner has alleged discrimination and arbitrariness on this count.
Aggrieved by his non-promotion, the petitioner filed 7 of 22
WP(C)No.102(K)/2009 before the Gauahti High Court praying for the following directions to the respondents :-
“A. To promote the petitioner to the
post of Havildar on the basis of
recommendation of Board of Officers
forwarded vide letter
No.1201/172/EIG dated 19.05.2007
(Annexure-D);
B. To give retrospective effect to
promote the petitioner to the post of
Havildar with retrospective effect from
the date of his juniors were promoted
with back wages and all consequential
service benefits.
C. To quash and set aside the
impugned Posting Order bearing
No.75571/466/CA5 dated 26.05.2009
(Annexure-K) transferring the
petitioner from HQ 137 WE, Dimapur
to CEEC (MES) Kolkata.”
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4. The petitioner subsequently filed an amended petition before this Tribunal being TA No.55/2010. In the amended petition, while the prayers at Para (a) and (b) remained the same, Para C above has been dropped and instead the prayer “to count the ACR of the petitioner as
Havildar rank with effect from the date of promotion from
Naik to Havildar w.e.f. 19.05.2007” has been included.
5. The respondents have, on the other hand, denied all the allegations made by the petitioner and contended that all Promotion Cadre Courses are conducted at the
Promotion Company BEG & Centre, Roorkeee but in exceptional cases, permission, if any, asked by the Unit is granted by the Headquarters, BEG and Centre, Roorkee to conduct the test at the Centre by convening a Board of
Officers. In such cases, the result is forwarded to BEG &
Centre, Roorkee. In the present case, the petitioner’s Unit had not asked for any such permission nor was such permission ever granted by BEG and Centre, Roorkee. The respondents also submitted that the letter bearing
No.1201/172/EIG dated 19.5.2007 under which the
Board proceedings were said to have been forwarded to
BEG and Centre, Roorkee was not received by the Centre. 9 of 22
Further, whilst an individual can only avail of maximum
of three chances to pass the Promotion Cadre Course in
terms of Army Order No. 45(60), the petitioner had
already availed of the maximum number of chances as
permissible and had failed on each occasion in the 5 KM
BPET (Battle Physical Efficiency Test) run as per details
given below :
Sl No. Promotion cadre period Result
1. SN-01/2006-07 03.07.2006- Passed in Clerical portion but failed in BPET 5 km run. Clk (SD) SKT 19.08.2006 2. SN-02/2006-07 04.12.2006- Re-nominated for BPET portion only but failed. Clk (SD) SKT 26.01.2007 3 SN-03/2006-07 30.04.2007 - Re-nominated for BPET portion only but again failed. Clk (SD) SKT 16.06.2007
6. With reference to the contention of the petitioner
that No.15336193F Nk/Clk (SD) Bipin Kr.Pandey of
GE(E) 866 EWS was declared passed based on the same
Board Proceedings held at the unit level, the respondents
have stated that specific permission was sought and
granted in his case for the conduct of the BPET run test
at Unit level and consequently, the findings of the Board
were accepted and the result published along with SN- 10 of 22
03/ 2006 - 2007 Clk (SD) SKT Promotion Cadre Course.
Nk.Clk Bipin Kr.Pandey thus duly passed the PTT and qualified for promotion to the rank of Havildar based on the availability of vacancy. He was accordingly promoted.Whilst denying the allegations contained in
Paras 13 and 14 of the rejoinder affidavit dated
18.11.2011 about the petitioner having been transferred out with a view to harass him, the respondents have submitted that the petitioner himself, vide application dated 28.02.2009 represented that he was continuously given field posting. The field tenure, as per him, was a gross injustice done to him. It was keeping this in view that his posting to the peace station was approved by the
Officer-in charge Record and he was posted to CEEC
(MRS), Kolkata. The respondents further submitted that there is no substance in the petitioner’s contention that as a result of his continuous placement in the field/high altitude areas, he did not get the opportunity to improve or maintain his physical fitness as individuals posted in much harder areas have successfully completed the physical test at the Centre. With reference to the conduct of the 5 KM run test at the Unit level, the respondents reiterated that whereas the recommendations of the 11 of 22
Board of Officers of similarly situated persons were considered in cases where they got permission for conducting the failed portion of BPET test (5 KM run only), the petitioner’s Unit had not been granted any such permission by HQ BEG and Centre, Roorkee. The respondents have accordingly submitted that no injustice has been done to the petitioner and this petition is, therefore, liable to dismissed being devoid of merit.
7. In response to the counter affidavit filed by the respondents, the petitioner submitted in the rejoinder affidavit dated 13.03.2011 that the Unit had, in fact, sought permission from BEG & C, Roorkee for constitution of the Board of Officers for the conduct of the BPET (5 KM run only) by the petitioner and the Board was assembled on 19.05.2007 by the Garrison Engineer
865 EWS C/O. 56 APO and in the convening order
No.1201/171/E1G dated. 15.05.07 it is mentioned that that the said proceedings were being conducted under the authority and permission of the Superintendent of
Training, HQ BEG and Centre, Roorkee. Reference was also made to the telephonic conversation held between the Supdt. of Training. HQ BEG and Centre, Rookeee and GE Lt Col, Harshad Chati C/O 56 APO. The 12 of 22
petitioner further submitted that the respondent authorities vide their letter dated 07.03.2007 (Annexure-
C to the petition) directed the petitioner to attend the
BPET ( 5 KM run only) run and he was ordered to report
PC Coy BEG and Centre, Roorkee two days before the termination of the course on 04.06.2007 at the examination centre. But, in the Board of Officers that was convened to conduct the BPET (5 KM run only) as per the order and authority of the BEG and Centre,
Roorkee on 19.5.2007 - i.e. 16 days earlier before reporting to the examination Centre - he was declared passed.
8. The petitioner was further declared failed vide SN-
02/2006-2007 CLK/GD/SKT Promotion Cadre Test as the respondent authorities did not consider him to have passed due to Board of Officers not having been conducted with permission of BEG and C, Roorkee.
Hence, in contesting the respondents contention that no permission was taken for the conduct of the said test by the Board, the petitioner submitted that no written or documentary permission was ever taken for conduct of the test by the Board at unit level in case of Nk./Clk 13 of 22
Bipin Kr.Pandey who was junior to the petitioner. This was also apparent from the respondents’ contention that permission based on telephonic conversation was granted in case of Nk/Clk Bipin Kr.Pandey. The petitioner finally submitted that his legal and natural rights have been violated. Along with his rejoinder, the petitioner has also produced copy of the convening order dated 15.5.2007 of
Harshad Chati, Lt. Col, Garrison Engineer (Annexure-
C(1) to the petition) which states that the test was to be conducted as a special case. Letter No.120/171/EIG dated 19.5.2007 (Annexure-D to the petition) of Garrison
Engineer, 865 Engr Wks Sec C/ 56 APO which forwarded the Board Proceedings containing the result also clearly mentioned in para-1 about the telephonic conversation between Superintendent of Training HQ
BEG and Centre, Roorkee and GE 865 EWS C/ 56
APO,Lt.Col Harshad Chati. The said letter is extracted below: BY HAND
Garrison Engineer 865 Engr Wks Sec C/O. 56 APO
1201/172/EIG 19 May 2007
Headquarters Bengal Engineer Group and Centre(‘G’ Branch) Roorkee-247 667. 14 of 22
FINAL RESULT OF SN 03/2007 CLK(GD)/ SKsT PROMOTION CADRE COURSE COMMENCING WEF 30 APR 2007 TO 16 JUN 2007.
1. Ref of tele conversation between Supdt of Trg BEG & Centre Roorkee & GE 865 EWS C/O.56 APO.
2. The bd proceeding (IAFD-9321), a certificate ( for BPET 5 KM Run only) along with Appx ‘A’ in r/o No.15336088L Nk/Clk(GD) Dinesh Kumar Shukla of this unit/est is fwd herewith duly signed by the bd of offrs for your further necessary action.
3. An early action is requested please.
Sd/ (Harshad Chati) Lt Col Garrison Engineer. Enclo: (As above).”
9. The fact that the Board was convened in pursuance of a verbal direction of Supdt of Trg BEG & Centre
Roorkee was further found recorded in the convening order at Annexure-C(1) which is attached to the said letter. Also attached to the said letter is the resolution declared by the Board which gave the grading ‘good’ to the petitioner, No.15336088L Nk/Clk(GD) Dinesh Kumar
Shukla in promotion cadre No.SN-03/2006-2007
Clk(SD)SKT.
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10. In a further affidavit in opposition dated
08.09.2011, the respondents clarified that GE 865 EWS was not the competent authority to convene the Board of
Officers to conduct the BPET ( 5 KM run only) for the
Promotion Cadre Course without the approval of the competent authority i.e. the Commandant, BEG and
Centre, Roorkee. The action of GE 865 EWS to constitute the Board of Officers without the approval of the competent authority was thus illegal and technically invalid. Specific sanction of the competent authority i.e. the Commandant, BEG and Centre, Roorkee was sought vide GE 866 EWS Signal No. A-7174 dated 17.5.2007
(Annexure R-7) in respect of No.15336193F Nk/Clk(GD)
Bipin Kr.Pandey and approved vide BEG and Centre,
Roorkee letter No.20304 / SN-03 / 06 (Clk /G (T) dated
26.05.2007(Annexure R-8) and he was promoted. The constitution of the Board of Officers of GE in respect of
Nk./Clk(GD) Bipin Kr. Pandey was, therefore, technically valid as it had been done with the specific approval of the competent authority. Besides Nk/Clk Bipin Kr.Pandey was also qualified in all respects. He was accordingly promoted w.e.f. 1.10.2007 by Bengal Engineers’ Group &
Centre, Roorkee. 16 of 22
11. Since the Board conducted for the petitioner was treated as nullity, no action was required to be initiated by the respondents in his case. On completion of his normal tenure, the petitioner had requested for posting in field area and he was accordingly posted in field areas.
Subsequently, when he submitted an application dated
28.2.2009 that he was being harassed for continuous field posting, the said posting was side stepped and he was posted in a unit located in peace area under the same command. The petitioner was given ample opportunities to pass the Promotion Cadre Course but he failed in all the opportunities that were given to him. The
Board proceedings which declared the petitioner passed in the BPET (5 KM run only) on 19.5.2007 were not accepted by the competent authority as convening of the said Board was technically invalid.
12. Heard Mr.R.Dhar, learned counsel appearing for the petitioner/appellant and Ms.M.Bhattacharjee, learned counsel appearing on behalf of
Mr.S.Bhattacharjee, learned Central Govt. Standing
Counsel for the respondents. 17 of 22
13. The basic contention of the petitioner in this case is that even though he had passed BPET (5 KM run only) for the Promotion Cadre Course, the respondents did not promote him. The petitioner has relied upon the proceedings of the Board of Officers convened at unit level to support his contention and to show that he had been graded ‘good’ by the Board. In this regard, the petitioner has also alleged discrimination vis-à-vis his junior Nk./Clk Bipin Kr. Pandey, who had been examined by the same Board of Officers and who was promoted on the basis of the Board’s recommendation. The respondents have, on the other hand, contended that in case of Nk/Clk Bipin Kr. Pandey a specific sanction of the competent authority had been sought, and obtained, for the conduct of the test run at unit level and he was accordingly promoted. In case of the petitioner, no such sanction of the authority was either sought or obtained.
The explanation offered by the respondents with regard to the promotion of Bipin Kumar Pandey is duly supported by the record and has to be accepted. The charge of discrimination will therefore not survive. The case, therefore, hinges upon whether or not sanction of 18 of 22
the competent authority was, in fact, obtained to conduct the test at the unit level.
14. In this context, the respondents have contended that the competent authority for the purpose of according sanction is the Commandant BEG and Centre, Roorkee and his sanction had not been accorded for the conduct of the test in question. Perusal of the Board of Officers proceedings at Annexure-D show that the Board was assembled on the basis of a verbal order of
Superintendent of Training, BEG & Centre, Roorkee. This fact is also mentioned in the covering letter
No.1201/172/EIG dated 19.5.2007 addressed by the
Garrison Engineer,865 Engr Wks Sec C/O 56 APO to
Headquarters, BEG and Centre (‘G’ Branch) Roorkee-
247667 which is reproduced in para 8 above. This, prima facie, shows that the concurrence of HQ BEG and Centre,
Roorkie, was, in fact, sought - though telephonically.
Further, mentioning of this fact in the forwarding letter by the Commandant of the unit does in fact establish the bonafide-nature of the transaction.
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15. It is further apparent from the pleadings that the petitioner in the present case was not sent for the SN-
03/2006-2007 Clk(SD)SKT for the period 30.04.2007 to
16.06.2007 Promotion Cadre Course on the basis of the discussion that had taken place between Superintendent of Training HQ BEG and Centre, Roorkee and GE 866
EWS C/ 56 APO,Lt.Col Harshad Chati. This discussion was then referred to in the forwarding letter dated
06.06.2007 of Garrison Engineer (1),866 Engineer Works
Section C/99 APO No. 1308/EG/163A (Annexure-D), whereby the Proceedings of the Board of Officers convened to conduct the requisite test for the petitioner were forwarded to BEG and Centre, Roorkee. The letter is extracted at para 8 above.
16. The aforesaid letter which was addressed to the
Headquarter COP Branch Bengal Engr Group and
Centre, Roorkee has not, as per records, been shown to have been countermanded. If the respondents had any reservation on the conduct of the test at the unit level they could have immediately informed the unit of the impropriety of conducting such test and the reason therefor. There is nothing on record to show that this was done. Except for stating that the test in question was 20 of 22
required to be carried out at the BEG and Centre,
Roorkee and in exceptional cases at the unit level, if sanction of the competent authority, viz the
Commandant of BEG & Centre, is obtained and given, the respondents have not said anything about their response to Garrison Engineer’s letter dated 19.5.2007
(Annexure-D to the petition). Once the proceedings were received by HQ BEG Centre, Roorkee, it was the duty of the respondents to either promote the individual on the basis of the declared result or in the alternative seek an explanation from the unit, whilst at the same time staying action on the proceedings. The respondents not only failed to do so but also failed to suitably respond when the petitioner represented. This failure on the part of the respondents has affected the career of the petitioner who had, as a result missed his promotion.
17. The position that emerges is that the Commandant of the unit in which the individual was working at the material time viz. Garrison Engineer, 865 Engineer
Works Sec C/O 56 APO did not apparently send the petitioner for SN-03/2006-2007 Clk(SD)SKT for the period 30.04.2007 to 16.06.2007 Promotion Cadre
Course as he had some discussion with BEG and Centre, 21 of 22
Roorkee and based on the said discussion he had convened a Board of Officers for conducting the test in question. The Board of Officers had duly tested the petitioner and declared the result vide the proceedings at
Annexure-B of the rejoinder affidavit in opposition dated
30.3.2011 (Annexure-D to the petition). This result was duly forwarded to BEG & Centre and there was no objection received thereon except for the final result that was promulgated by Headquarters BEG and Centre,
Rookee letter No20304/SN-03/06 CLK (GD) / SKST
/36/G(T) dated 25.07.2007 ( Annexure-F to the petition) whereby the petitioner was declared failed at Sl. 70. The result declared was quite obviously inconsistent with the finding and recommendation of the Board conducted at the unit level for the petitioner. Since the petitioner was shown to have appeared only before the Board at the unit level and not before any other Board, the remark which shows the petitioner to have failed in BEG and Centre letter at Annexure-F is obviously not correct. If the permission of the Commandant was necessary and was not obtained, the respondents should have objected to the conduct of the test in question at the unit level by the
Garrison Engineer,865 Engineer Works Sec C/O 56 APO. 22 of 22
This was not done. This signifies that the respondents thereby acquiesced with the conduct of test run at the unit level.
18. As per the letter of Senior Record Officer, BEG and
Centre, Roorkee No.3007 / CLK / R / 02 /CA6 dated
07.03.2007 (Annexure-C to the petition), the petitioner was required to appear only for 5 KM run test in his third attempt. That being so, and the petitioner having finally passed the test as mentioned above, the petitioner must be considered entitled to promotion to the rank of
Havildar subject to his being eligible in all other respects as per rules. The petition is accordingly allowed and the respondents are directed to promote the petitioner to the rank of Havildar with all consequential benefits.
Necessary action, as directed above, has to be completed by the respondents within a period of two months from the date of receipt of a copy of this Judgment and Order.
19. With the above observations and directions, the petition stands disposed of. However, in the facts and circumstances of the case, parties are directed to bear their own costs.
MEMBER(A) MEMBER(J)
Chakravarti 23 of 22
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