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20.07.2017 Hon'ble Mr. Justi ARMED FORCES TRIBUNAL, REGIONAL BENCH, JABALPUR OA/40(J)/2016 Inre MA/02(J)/2016 Date of Order : 20.07.2017 Hon’ble Mr. Justice Amar Saran, Judicial Member Hon’ble Lt Gen N.B. Singh, Administrative Member Madan Kumar Sahu, S/o Shri Puran Lal Sahu, 108 Inf Bn (TA) MAHAR R/o E-9, Basant Bihar Colony, Tili Road, Shivaji Ward, Sagar (MP). .….Applicant Versus 1. Union of India, Through the Secretary, Government of India, Ministry of Defence, New Delhi. 2. Chief of the Army Staff, Army Headquarters, New Delhi- 110011. 3. The Addl Dir Gen of Territorial Army, GS Branch, IHQ of MOD (Army), New Delhi. 4. The Commander TA Gp HQ, Southern Command, C/o 56 APO. 5. The Commanding Officer, 108 Inf Bn (TA) MAHAR, C/o 56 APO. ..…Respondents Ld. Counsel appeared for the Applicant - Shri KC Ghildiyal Advocate. Ld. Counsel appeared for the Respondents - Shri RK Jaiswal Central Govt. Counsel. OA/40(J)/2017 Inre MA/02(J)/2016 ORDER Delivered by Hon’ble Lt Gen NB Singh, Member (A) 1. This is an OA under Sec 14 of the Armed Forces Tribunal (AFT) Act 2007 against the impugned order dated 19.10.2012 (Annex A1) cancelling the result of the NCO cadre held in 2009 which resulted in denial of promotion to the applicant. Consequently, the applicant retired from service on completion of 20 years service on 31.07.2014 (AN) in the rank of Havildar (Hav). The brief facts of the case are given in succeeding paras. 2. The applicant underwent the promotion cadre held in 2009 and was declared passed vide Part II order of unit published in Jan 2010. One vacancy of JCO Clerk in the unit was arising in Nov 2012 and hence his case for promotion was processed but was returned by the Commander, Territorial Army, Group Headquarters, Southern Command (Respondent No 4) with directions to process it in Oct 2012. The Commanding Officer (CO) put in request on 15.12.2012 for a JCO Clerk to be posted to the unit and cancelled the result of the NCO cadre held in 2009. 3. The applicant contends that the impugned order resulted in denial of promotion to him whereas out of the six NCOs who had passed in the cadre, three were promoted as Naib Subedar. The applicant represented against the denial of promotion but the said representation has not been decided till date. The CO issued a direction on 16.10.2012 that the suitability of the applicant for promotion will be considered afresh as the previous board of officers was headed by a Lieutenant instead of a Lieutenant Colonel and that the board was conducted almost three years back and was time barred. In Aug & Sep 2013 the CO wrote to higher Headquarters to consider the promotion of the applicant in some other unit as he was due for superannuation in Jul 2014. If he had been promoted he 2 OA/40(J)/2017 Inre MA/02(J)/2016 would have become entitled for service upto 26 years of service and even beyond. He has prayed for quashing of the impugned order and promotion to the rank of Naib Subedar wef 01.12.2012 and concomitant reinstatement into service with all consequential benefits. 4. The respondents in their response have stated that the applicant had passed the promotion cadre in 2009 alongwith four others. Subsequently, two vacancies for the General Duty trade occurred in Sep & Oct 2010 and two NCOs were promoted. The applicant could not be promoted due to non-availability of vacancy in his trade of clerk in the unit. However, a case was projected to higher ups to consider promoting him against a vacancy in some other unit. On 20 Aug 2012 the Territorial Army Directorate at Integrated Headquarters of Ministry of Defence (Army) vide letter No 63903/Policy/GS/TA-3 dated 13 Apr 2012 directed that the composition of Board for promotion of Hav to Nb Sub would be as stipulated in the Territorial Army Regulations 1948 (Edition 1976), as per details below :- (a) Presiding Officer - Lieutenant Colonel (b) Members - Two Majors or one Major & one Captain. 5. Consequently, as on scrutiny of the earlier board of 2009, it was found that as the Presiding Officer was a Lieutenant and other members was not of ranks conforming to the Territorial Army Regulations, the old Board had to be made invalid. A fresh board of officers was ordered and the NCO was tested but he failed in two subjects – Computer Knowledge & Office Procedure / Territorial Army Rules & Regulations. He was found wanting not only in service subject but also in his core competency of clerk. It is only after he had not qualified that a request for posting of a JCO clerk from outside was made and Subedar/Clerk Jasbir Singh was posted in to the unit. He was given adequate opportunities to improve and on 23 Mar 2014 a surprise test was held wherein the applicant refused to write and deposited a blank answer sheet. 3 OA/40(J)/2017 Inre MA/02(J)/2016 6. They have clarified that promotion of JCOs in the Territorial Army is governed by the policy formulated by the Territorial Army Directorate and not as per policy letter referred to by the applicant which is for the regular Army personnel. The two NCOs of GD trade were promoted prior to issue of the new guidelines by the TA Directorate. They have amplified that the post of Head Clerk of a unit is very vital and as the applicant was not fulfilling the necessary criteria, the vacancy could not be kept vacant and a request for posting of a JCO Clerk had to be made. They have concluded that the application is barred by limitation and should be dismissed. 7. The applicant in the rejoinder affidavit has submitted that vide letter dated 18.11.2011 a request for his posting to some other unit was made so that he could be promoted. Also on 01.12.2012, despite the fact that a vacancy was occurring and he was sitting qualified for promotion, a request was made to post some JCO Clerk from outside. He has stated that the policy for promotion board has been in existence since 1948 and units have been detailing officers as per availability, thus deviating from the policy. He has pointed that 2 x NCOs who had passed the same cadre had been promoted but he was not promoted. He has further contended that for the second test which was conducted he should have been trained before conduct of test through a cadre course of 6-8 weeks but in his case test was conducted at 2-3 days notice and hence there was a malafied on the part of respondents. 8. In their response, the respondents have stated that all along a facilitative stance had been taken to grant promotion to the applicant. But upon issue of fresh directions from the TA Directorate in Apr 2012 they had to cancel his earlier test result as it was not conducted as per the provisions given in the TA Regulations. The NCO was tested again and he failed in the re-tests which was conducted under the 4 OA/40(J)/2017 Inre MA/02(J)/2016 authority of the new directions dated 13 Apr 2012. They have concluded by reiterating their submission for dismissal of the OA. Arguments 9. Appearing for the applicant Shri KC Ghildiyal, Ld counsel summarised the facts of the case and stated that if two NCOs could be promoted based on the old promotion cadre results, the exclusion of the applicant only, is something that needs to be taken a note and has not been explained by respondents. In addition, he drew the attention of the Court to Annex CA-8 wherein an extract of para 4 of Appx XIII to TA Regulations 1948 (Edition 1976) was reproduced. PROMOTION EXAMINATION – NCOS (TA) (ALL ARMS) CONDUCT OF EXAMINATION 4. Examination will be oral and the examining boards will be comprised as under :- (a) For promotion to Havildar or equivalent rank – President : A Major or Lt Col. Members : One officer not below the rank of a Captain and one JCO not below the rank of a Subedar. (b) For promotion to Nb Sub – President : A Lt Col. Members : Two Majors or one Major and one Captain. (c) Convening Authorities – (i) For 4(a) above- Unit Commander. Where the unit commander is below the rank of Major, the OC Station. (ii) For 4(b) above – Sub Are/Brigade/Independent Sub Area/Bde Area Commander. Note - With effect from 1st January 1964, in the case of Infantry, for promotion to Nb Sub, the Examining Board will be as per para 4(a) above and convening authority will be the unit commander not below the rank of Lieutenant Colonel. Sd/xxxxxxxxx Major Adjutant 108 Infantry Battalion (TA) Mahar 5 OA/40(J)/2017 Inre MA/02(J)/2016 10. Vide para 4(c) the convening authority for the Board should be Sub Area/Brigade/Independent Sub Area/Bde Area Commander. The new Board was illegal as it was constituted by CO and Presiding Officer was changed later. He further contended that Lt Col RK Singh was detailed on paper only as he was away from unit and the tests were conducted only to fail him. As he had already cleared the cadre, subjecting him to another test was wholly illegal. Two NCOs had been promoted based on the result of the earlier cadre, so treating him with a different yardstick was violative of Article 14 of Constitution.
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