ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI
O.A.No. 18 of 2017
TUESDAY, THE 28TH DAY OF NOVEMBER, 2017/7TH AGRAHAYANA, 1939
CORAM:
HON'BLE MR. JUSTICE BABU MATHEW P. JOSEPH, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)
SHYAM SUNDER …...... APPLICANT AGED 45 YEARS, S/O. HAZARIL LAL TAILOR, CPOAF NO. 175499-N. INS VIKRAMADITYA, C/O. NAVY OFFICE, NAVAL BASE, KARWAR, KARNATAKA – 581 308.
BY ADV. SRI. K.S. HARIDAS
versus
1. UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF DEFENCE, NEW DELHI – 110 011.
2. THE CHIEF OF NAVAL STAFF, FOR DIRECTOR OF PERSONNEL INTEGRATED HEADQUARTERS OF MINISTRY OF DEFENCE, (NAVY) DIRECTORATE OF PERSONNEL, NEW DELHI – 110 011. ...…...RESPONDENTS
3. THE FLAG OFFICER COMMANDING IN-CHIEF (FOR SENIOR STAFF OFFICER (PERSONNEL) HEADQUARTERS, SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI – 682 004. O.A. No. 18 of 2017 - 2 -
4. THE FLAG OFFICER COMMANDING IN-CHIEF (FOR WESTERN NAVAL COMMAND) HEADQUARTERS, WESTERN NAVAL COMMAND, BALLARD PIER, NEAR TIGER GATE, NAVAL DOCKYARD, MUMBAI – 400 001.
5. THE COMMODORE FOR SSO (ROG) BUREAU OF SAILORS, CHEETAH CAMP, MANKHURD, MUMBAI – 400 800.
6. THE DIRECTOR NAVAL INSTITUTE OF AERONAUTICAL TECHNOLOGY NAVAL BASE, KOCHI, KOCHI – 682 004.
7. THE COMMANDING OFFICER INS VIKRAMADITYA, C/O. NAVY OFFICE, NAVAL BASE, KARWAR, KARNATAKA, PIN – 581 308.
8. THE COMMANDING OFFIER INS DEGA (FOR STATION AIR ENGINEERING OFFICER), NAD POST, VISAKHAPATANAM, ANDRA PRADESH, PIN – 530 009.
ADDL. 9th AND 10th RESPONDENTS IMPLEADED.
*ADDL. R9. VIVEKANANDA SAHU MCPOAF – IIP NO.175289K BSF/INS RAJALI, POST. CAMP (ARKONAM) TAMILNADU – 631006.
• ADDL.R10. G.D TRIPATHI MCPOAF -IIP NO.171866F, INS SHIKRA/330 SQDN COLABA, MUMBAI – 05.
ADDL.R9 AND R10 IMPLEADED VIDE ORDER IN MA. 600/2017 IN O.A.18/2017 DATED 20.10.2017.
BY ADV. DR. RAJENDRA KUMAR M., SENIOR PANEL COUNSEL O.A. No. 18 of 2017 - 3 -
O R D E R
VAdm M.P.MURALIDHARAN, MEMBER (A)
1. The Original Application has been filed by
Syam Sundar, CPOAF No. 175499-N, a serving Senior
Sailor of the Navy, essentially aggrieved at not being selected for promotion to the rank of MCPO (AF) II.
2. The applicant was enrolled in the Navy as MER entry on 05 January 1991 and in due course was promoted to the rank of Chief Petty Officer (AF) with effect from 01 July 2011. The applicant was considered for promotion to the rank of MCPO II by the Selection
Boards held in 2014, 2015 and 2016, but was not placed on the select list.
3. Sri. K.S. Haridas, the learned counsel for the applicant, submitted that the applicant who has O.A. No. 18 of 2017 - 4 -
completed nearly 26 years in the Navy has always excelled professionally. Apart from serving as Instructor at NIAT, Kochi, the applicant has also served on board various ships as part of their operational flights, including during Kargil Operations. The applicant, who is currently serving on board the Aircraft Carrier of the Navy, is a qualified technical supervisor on different air craft. Despite his consistent high professional performance, the applicant was not selected for promotion to the rank of MCPO II. The learned counsel also submitted that the applicant despite medical advise to avoid lifting weights and prolonged standing duties
(Annexure A5), has continued to perform his duties as an Instructor.
4. The applicant on not being promoted to the rank of MCPO II by the Selection Board in 2013, submitted a Redressal of Grievance (Annexure A6). O.A. No. 18 of 2017 - 5 -
Since he did not receive any response to his ROG, the applicant sought information under the RTI Act
(Annexure A7). However, he was informed by the respondents that most of the answers to his questionnaire cannot be provided under the RTI Act
(Annexures A7(a)/5).
5. The learned counsel further submitted that the applicant had earlier served in the Material Organisation at Mumbai. While the applicant carried out his duties with utmost diligence, he later became aware that the duties carried out by him would not earn additional weightage for MCPO selection. The learned counsel submitted that in case of aviation sailors, the appointments where they are entitled to additional weightage has been specified (Annexures A8, A9). The learned counsel further submitted that the applicant has no control as to where he should be posted and O.A. No. 18 of 2017 - 6 -
therefore all personnel should get equal opportunity for serving in billets which give them additional weightage.
6. The learned counsel contended that the applicant had been posted to various billets without true application of mind. Despite the fact that he did not have marks to undergo Method Course which is mandatory for instructional duties, the applicant was appointed for instructional duties. The learned counsel contended that if the applicant was appointed as
Instructor he should have been granted points for such duties, but was not granted the same. However, another Sailor who did not have the necessary qualification was sent for the Method Course and was also awarded instructional duty point which enabled him to get selected as MCPO II in 2016. While the applicant has been carrying out duties as Instructor and was also recommended for nomination to Training Technology O.A. No. 18 of 2017 - 7 -
(Sailors) Course (Annexure A13), he was not deputed for the same. The applicant, despite being non qualified instructor, conducted classes for all trainees which included officer trainees. Despite all these, he was denied promotion to the rank of MCPO II.
7. The learned counsel further submitted that the
Navy Order which specifies eligibility criterion for promotion to the post of MCPO II (Annexure A16), does not state anywhere that sea service is compulsory and further specifies that a person who is carrying out instructional duties should be given points for the same when considered for selection. The learned counsel also submitted that his service records and ACRs have not been updated as evident from the Website of CABS
(Annexure 17). The applicant therefore believes that lack of the same may also have adversely affected his chance of promotion. O.A. No. 18 of 2017 - 8 -
8. The learned counsel also submitted that the applicant perceives that his ROG or his appointment to various billets have not been dealt with in the appropriate manner and he has also not been provided with the documents sought for. The learned counsel therefore prayed that all the documents pertaining to the selection of Sailors to the post of MCPO (AF) II be scrutinised and the applicant be declared eligible for promotion with retrospective effect from 2014 with consequential benefits.
9. The respondents in their reply statement submitted that the applicant, who had been enrolled in the Navy as MER entry on 05 January 1991, was promoted to the rank of CPO(AF) with effect from
01 July 2011. The applicant was considered for selection to the post of MCPO by the Selection Boards held in
2014, 2015 and 2016. He was, however, not select O.A. No. 18 of 2017 - 9 -
listed as he was low in inter se merit. The present term of engagement of the applicant is till 31 January 2019.
10. The respondents further submitted that MCPO and equivalent ranks are the only select list ranks in the Navy for Sailors. Selection is based on overall performance of a Sailor and the Board takes cognizance of various attributes of eligible Sailors.
Weightages are awarded to specified criteria, in accordance with the approach paper promulgated by the Navy Headquarters prior to the Selection Board.
The Selection Board then prepares a merit list. The applicant was found to be low in the order vis-a-vis the vacancies available for promotion and therefore he was not selected for promotion to the rank of MCPO. The respondents further submitted that in view of the ROG raised by the applicant, all his records were examined thoroughly and cross-checked. The applicant has been O.A. No. 18 of 2017 - 10 -
awarded correct weightages by the Selection Boards and missed out on promotion only because of inter se merit.
11. The respondents further submitted that many of the contentions raised by the applicant in his O.A. were without merit. His claim that he had always excelled professionally and academically, are not borne out from the records available. It was only in a few courses that he excelled. Since the applicant had not secured the requisite percentage in his Leading 'Q' course and in the POAF Board, he was not considered for Method Course. The respondents further submitted that all Senior Sailors posted to NIAT, are to undertake both instructional and administrative duties. They are also employed on instructional duties for training of specific type of aircraft, based on their experience. The respondents further submitted that even though Bureau of Sailors endeavours to place Sailors in sea time billets, O.A. No. 18 of 2017 - 11 -
it is not always feasible to do so in view of the requirement of providing manpower to other non sea billets. The applicant had served more than 5 years continuously in sea billets and, therefore, was transferred to NIAT to meet the manning requirements of that unit.
12. Respondents also submitted that the applicant in March 2007 when transferred to Goa from Mumbai, had requested for retention at Mumbai on compassionate grounds. Accordingly, the applicant was sent to MO(MB). Therefore his transfer to a billet in
Goa which was considered as sea time for Aviation sailors, was cancelled. Respondents further submitted that individual concerns of Sailors, such as the applicant, were always addressed, but within the overall constraints and requirements of the Navy. Respondents further submitted that some of the sailors selected for O.A. No. 18 of 2017 - 12 -
promotion to MCPO had less sea time/instruction duty time as compared to the applicant, indicating that the applicant had failed to meet the overall requirements for promotion. The respondents therefore submitted that no injustice had been done to the applicant and he had missed out on promotion purely on inter se merit.
13. Heard rival submissions and perused records.
14. The learned Central Government Senior Panel
Counsel for the respondents was assisted by
Lt Cdr Akarshan Agarwal, who placed before us the approach papers and proceedings of Selection Boards of
2014, 2015 and 2016.
15. No(Str)05/06 (Annexure A16), specifies duties and responsibilities and procedure for selection of MCPOs. The Navy Order also specifies eligibility O.A. No. 18 of 2017 - 13 -
conditions and points to be considered by the Selection
Board. It is also specified that the Selection Board is to be guided by the Approach Paper forwarded by the
Naval Headquarters. It is observed that Approach
Papers have been prepared in accordance with the guidelines specified in the Navy Order. Calculation of marks and the proportion to be allocated to each of the criteria assessed have also been specified in the
Approach Paper. As seen, the marks were allocated for
10 specified criteria. While there are marks allocated for performance in courses and professional examinations/other specified courses, sea service, instructional duties, performance in sports and awards, major weightage of the marks is for the actual performance of the Sailor based on his ACRs. It is also observed that the Board has 10 marks to be allocated based on the generic guidelines given in the Approach
Paper which are based on the overall performance of a O.A. No. 18 of 2017 - 14 -
Sailor as it emerges from the pen pictures in his Annual
Confidential Reports and service documents. There are also marks for recommendations for accelerated promotion, which are given by the Commanding Officers of a Sailor.
16. The applicant was considered for selection for the first time by the Selection Board in 2014, where there were 39 candidates against 9 vacancies and the applicant's merit was at Sl. No.15. In his second consideration in 2015, there were 42 candidates against 6 vacancies and the applicant was at Sl.No.25.
In his third and final consideration in 2016, there were
33 candidates against 4 vacancies and the applicant was
Sl.No.16 in the order of merit. Therefore, the applicant was well below the cut off list for selection in all the three Boards. O.A. No. 18 of 2017 - 15 -
17. One of the contentions raised by the applicant is that he essentially missed out on selection due to lack of sea service and as his appointments and transfers are not controlled by him, the competent authority should have positioned in billets which would enable him to meet promotion criteria. In our view, appointments/ postings of personnel to various billets in an Armed
Force like the Navy, are primarily based on requirements of the service and operational needs. While individual needs and aspirations are considered, service requirements always take priority. We also observe that the applicant himself has requested for changes in his transfers and the service has accommodated his needs keeping the overall service requirements in view.
18. We also observe that the applicant has been awarded due sea service points and in some cases, it is higher than those who have been placed in the merit O.A. No. 18 of 2017 - 16 -
list. It is apparent that it is the overall performance of a Sailor across all the specified criteria that matters.
Further, the actual performance of a Sailor as assessed through his Annual Confidential Reports gets the maximum weightage and therefore the performance of a
Sailor in his duties during the period under consideration would give him a better chance for selection. In this regard, it is observed that all the Sailors select listed in the three Selection Boards that the applicant was considered, had much higher marks than him in the
ACRs indicating better performance vis-a-vis those of the applicant. It is also observed that there were a few
Sailors who had higher marks than the applicant in the
ACR, but were ranked well below him, indicating that it is overall performance across all the specified criteria that matters for selection to the rank of MCPO and not any individual criteria. It is also observed that
Respondents 9 and 10, who the applicant had compared O.A. No. 18 of 2017 - 17 -
with himself, were both clearly well ahead of the applicant in the overall merit list.
19. On the aspects of promotion and decision of a
Selection Committee, the Hon'ble Apex Court in State
Bank of India and Others v. Mohad. Mynuddin,
(1987) 4 SCC 486, held that whenever promotion to a higher post is made on the basis of merit, no officer can claim promotion to the higher post as a matter of right. The Hon'ble Court also held that only when the process of selection is vitiated on the grounds of bias, mala fides or any other similar vitiating circumstances should court intervene. This view was also held by the
Hon'ble Apex Court in Hardev Singh v. Union of
India and Another, (2011) 10 SCC 121, that no employee has a right to get promotion but has a right to be considered for promotion. We have not found anything on record to indicate that the applicant was O.A. No. 18 of 2017 - 18 -
discriminated against or that the procedures for
Selection laid down in the Navy Order or the Approach
Paper were violated.
20. In view of the foregoing, we do not find any
merit in the claim of the applicant that he should have
been promoted to the rank of MCPO (AF) II and the OA
is accordingly dismissed.
21. There will be no order as to costs.
22. Issue free copy to the parties.
Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE BABU MATHEW P. JOSEPH, MEMBER (A) MEMBER (J) krs.
// True Copy // Private Secretary