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In the Armed Forces Tribunal

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In the Armed Forces Tribunal 1 of 22 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.” 4 of 22 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.” 8 of 22 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.
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