REGIONAL BENCH,

O.A.NO. 150 of 2015

TUESDAY, THE 22ND DAY OF NOVEMBER, 2016/ 1ST AGRAHAYANA , 1938 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)

APPLICANT: SANTOSH KUMAR, AGED 45 YEARS, S/O BIDHI CHAND, CPOAF NO. 174046-K, AIR ENGINEERING DEPARTMENT, I.N.S.GARUDA, NAVAL BASE, KOCHI, , PIN – 682 004, .

BY ADVS.M/S K.S.HARIDAS, T.R.JAGADEESH & COL. S. VIJAYAN.

VERSUS

RESPONDENTS:

1. UNION OF , REPRESENTED BY SECRETARY TO MINISTRY OF DEFENCE, NEW DELHI.

2. THE CHIEF OF THE NAVAL STAFF, FOR DIRECTOR OF PERSONNEL INTEGRATED HEADQUARTERS OF MINISTRY OF DEFENCE (NAVY) DIRECTORATE OF PERSONNEL, NEW DELHI – 110 011.

3. THE FLAG OFFICER COMMANDING-IN-CHIEF (FOR SENIOR STAFF OFFICER (PERSONNEL), HEADQUARTERS, , NAVAL BASE, KOCHI – 682 004.

4. THE (FOR SSO (ROG)), BUREAU OF SAILORS, CHEETAH CAMP, MANKHURD, MUMBAI – 400 088.

5. SECRETARY, INDIAN NAVAL SPORTS CONTROL BOARD, INTEGRATED HEADQUARTERS OF MINISTRY OF DEFENCE (NAVY), OA No.150 of 2015 : 2 :

DIRECTORATE OF PERSONNEL, NEW DELHI – 110 011.

6. COMMAND SPORTS OFFICER, HEADQUARTERS SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI.

7. COMMANDING OFFICER INS GARUDA, NAVAL BASE, KOCHI – 682 004.

8. STATION AIR ENGINEERING OFFICER (SAEO) INS GARUDA, NAVAL AIR STATION, NAVAL BASE, KOCHI – 682 009.

BY ADV.SRI.S.PRASANTH, CENTRAL GOVERNMENT COUNSEL

O R D E R

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

1. The Original Application has been filed by Santosh

Kumar, CPOAF No.174046-K, a serving Senior Sailor of the

Navy, aggrieved at not being selected for promotion to the rank of MCPO (AF) II.

2. The applicant was enrolled in the Navy on 30

December 1989 and in due course was promoted to the rank of Chief Petty Officer (AF) with effect from 12 OA No.150 of 2015 : 3 :

January 2011. The applicant was considered for promotion to the rank of MCPO II by the Selection Boards held in 2013,

2014 and 2015, but was not placed on the select list.

3. Shri. K.S. Haridas, learned counsel for the applicant, submitted that the applicant who has completed more than

25 years in the Navy has always excelled in his professional courses and has been a consistent high performer. He was awarded commendation by the Flag Officer Commanding-in-

Chief (Annexures A2-A4) on three occasions. He has also been an outstanding sportsman and was selected for the

Navy Handball team and subsequently earned Diploma in

Sports Coaching from NIS Patiala ( Annexure A5). The applicant has also consistently been judged high in his annual assessment (Annexure A6). Despite the above performance, the applicant was not selected to the rank of

MCPO II. OA No.150 of 2015 : 4 :

4. The learned counsel further submitted that the data compiled by the applicant indicates that his performance in various courses in the Navy were far superior to some of those who have been selected for the rank of MCPO II

(Annexure A7). Learned counsel also submitted that the applicant was fully qualified for selection in terms of conditions specified in NO(Str)05/06 (Annexure A8) and being an Instructor was eligible for higher points towards the

Selection Board as specified in NI/2/96 (Annexure A9). The applicant feels aggrieved that the lack of sea service was held against him to deny him promotion, even though the promotion policy does not indicate anywhere that it is compulsory for promotion to the rank of MCPO (AF) II.

Further his earlier sea service was not counted for promotion to the rank of MCPO (AF) II. Admittedly, his instructional points as a Handball Coach were also ignored.

5. Aggrieved at his not being selected for promotion to OA No.150 of 2015 : 5 :

the rank of MCPO (AF) II by two successive Selection

Boards, the applicant submitted a Redressal of Grievance

(Annexure A10). It was rejected stating that while due weightage has been given to the applicant for each of his attributes in the Selection Boards in 2013 as well as in

2014, he was not placed on the Select List being low in inter-se-merit (Annexure A11). The applicant thereafter submitted another ROG seeking clarification as to whether points have been awarded to him for his coaching assignments (Annexure A12). Learned counsel also submitted that despite correspondence with the concerned authorities (Annexures A13-A16), the applicant's points for instructional duties were not counted towards his promotion and his second ROG was also rejected (Annexure A17).

6. The learned counsel further submitted that transfers and postings are decided by the competent authorities and the applicant has never sought for any transfer on OA No.150 of 2015 : 6 :

compassionate or other grounds and has always been willing to serve wherever he was posted. Therefore, the authorities should have transferred him, including for sea service, if necessary, to ensure that he had all the necessary qualifications for promotion to the rank of MCPO. Learned counsel therefore prayed that all documents pertaining to selection of Sailors to the post of MCPO (AF) II be scrutinised and the applicant be declared eligible for promotion with retrospective effect and all consequential benefits. Learned counsel further submitted that one M.K.

Yadav who had submitted an ROG stating that it was not his fault that he had not been sent for sea service or instructional duties, but was retrained in Headquarters, was given relaxation with regard to sea service and was granted promotion. Therefore the applicant be granted similar relief.

7. The respondents in their reply statement have OA No.150 of 2015 : 7 :

submitted that the applicant who had been enrolled with an initial engagement for a period of 15 years had been given extension of service from time to time and his current terms of engagement was till 31 December 2017. The professional performance of the Sailor in various promotion linked courses has only been above average and not excellent, as claimed by the applicant. Further, the applicant has served only around 10 years in professional billets and other 18 years were in sports/coaching assignments.

8. The respondents have further submitted that MCPO

II/MCPO I and equivalent ranks are the only select list ranks in the Navy and there is a laid down selection process for them. Selection is based on overall performance of a Sailor and attributes for consideration by selection board are specified with due weightage. Sea service is only one of the criteria for assessing a Sailor for promotion to the rank of MCPO II. An approach paper is promulgated by OA No.150 of 2015 : 8 :

the Naval Headquarters, based on which the Selection

Board compiles numerical marks and examines the attributes of all eligible Sailors. An overall merit list is prepared and based on the vacancies allocated, the selection is made. The applicant was considered by three successive

Selection Boards in 2013, 2014 and 2015 and was not recommended for promotion as he was below the cut off position based on inter-se-merit.

9. The respondents also submitted that on promotion to the rank of CPO (AF) in January 2011, the applicant was transferred to INS Garuda in June 2011 to enable him to acquire sea service points for MCPO selection.

Subsequently, based on requirements projected by

Headquarters, Southern Naval Command, he was transferred to the Headquarters in May 2013. Since the applicant did not merit selection in 2013 and 2014 and had cited lack of sea service as the only hindrance for selection OA No.150 of 2015 : 9 :

in his ROG, he was once again transferred to Garuda in 2014 to enable him to get additional sea time points. While the applicant has been awarded appropriate points for instructional duties carried out by him there is no policy decision on grant of instructional duty points for NIS

Coaches. However, there are points under Sports for

Coaching National/Services/Navy Teams. Respondents further submitted that appointments/transfers are made keeping in view the overall requirements of the Navy, specific qualifications and individual requirements.

Respondents also submitted that the Sailor had undergone the coaching course at NIS on voluntary basis and therefore once he had acquired NIS qualification his expertise was suitably used in Command Headquarters at Western and

Southern Naval Commands.

10. The respondents further submitted that while the applicant has claimed similar benefits as given to MK Yadav, OA No.150 of 2015 : 10 :

CHA (AH), facts differ. The ROG put up by the said Yadav had been rejected by the Ministry of Defence as devoid of merit. However in a subsequent Selection Board, the Sailor was selected based on his ranking in that Board.

Respondents also submitted that a similar case as that of the applicant had been examined by this Tribunal in O.A.96 of 2011 and dismissed as devoid of merit (Annexure R1).

11. Heard rival submissions and perused records. The learned Central Government Counsel for the respondents was assisted by Legal Officer, Lt Cdr Aditya Awasthi. On our directives the respondents also placed before us Approach

Papers and proceedings of Selection Boards 2013, 2014 and

2015.

12. In essence the applicant has contended that in view of his overall performance and the fact that he had also been commended by the Commander-in-Chief he should OA No.150 of 2015 : 11 :

have merited selection to the rank of MCPO II.

13. No(Str)05/06 (Annexure A8) specifies duties and responsibilities and procedure for selection of MCPOs. The

Navy Order also specifies eligibility 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 OA No.150 of 2015 : 12 :

based on the generic guidelines given in the Approach Paper which are based on the overall performance of a 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.

14. The applicant was considered for the first time in

Selection Board of 2013 where there were 37 candidates against 9 vacancies. The applicant stood 28th on the merit.

In his second selection ie Board of 2014, there were 39 candidates against 9 vacancies and the applicant's merit was at SL No. 17. In his final selection ie Board of 2015, there were 42 candidates against 6 vacancies and the applicant was at SL No.8 in the merit list. Therefore, while the applicant's position in the merit list improved with each year he was still below the cut off list for selection. OA No.150 of 2015 : 13 :

15. The applicant has contended that he essentially missed out on selection due to lack of sea service and as appointments and transfers are not made by him, but by competent authorities, they should have positioned him in billets which would enable him to meet promotion criteria. In our view, appointments/placements in an Armed Force like the Navy, are primarily based on service and operational requirements. While individual aspirations and needs are considered, service requirements always take priority. As observed, the applicant volunteered for the NIS Diploma

Course and therefore it was only natural that the Service would thereafter use his expertise in sports related duties.

As submitted by the respondents, the applicant has spent majority of his tenure in the Navy ie around 18 years in sports assignments and only about 10 years in professional billets. There is nothing on record to indicate that the applicant had ever objected to not being sent for professional assignments or sea billets. Evidently he was OA No.150 of 2015 : 14 :

enjoying the benefits of being in a shore based sporting billet vis-a-vis being posted to an operational ship/Air

Squadron billet. Notwithstanding the above, it is observed that on promotion to the rank of CPO, he was sent to an assignment where he could get sea service points. While he was moved to a headquarters job based on service requirements, he was once again moved to a sea service billet to enable him to acquire points for promotion.

16. While the applicant has been awarded due sea service points, as observed earlier, sea service is only one of the criteria for selection and it is the overall performance of a Sailor across all the specified criteria that matters. The actual performance of a Sailor based on his Annual

Confidential Reports gets the maximum weightage and therefore actual performance of a Sailor in his duties in the period under consideration would give him a better chance for selection. It is also observed that even candidates allotted maximum sea service marks have not merited OA No.150 of 2015 : 15 :

selection and some of them were below the applicant in merit. At the same time, those with negligible sea service marks, which were even lesser than that of the applicant, have merited selection because of their overall performance.

It is also pertinent that some with no marks allocated for instructional duties, honours/awards or for sports have merited selection due to high overall performance in other criteria.

17. As regards performance in sporting activities, it is observed that marks are awarded only for achievements in the rank in which they are considered for selection and are for representing/coaching the National, Services or the Navy team. It is also specified that sports achievements counted for out of turn promotions and awards are not to be counted to accord points in MCPO selection. OA No.150 of 2015 : 16 :

18. As noted earlier, recommendations by the

Commanding Officer for accelerated promotion carries marks towards selection. The applicant did not have any such recommendation in his first attempt but had it in his subsequent attempts. Whereas there were other candidates who had two to three such recommendations even in their first attempt. It is however pertinent to observe that some with no marks for it still merited selection while those with recommendations did not. Therefore, it is evident that it is not any one particular criteria, but the overall performance across all criteria that decides the overall merit for selection.

19. As observed earlier, the Board has 10 marks to be allocated which are based on the guidelines given in the

Approach Paper, which in turn is based on the overall performance of the Sailor as it emerges from pen pictures in his Annual Confidential Reports and service documents. In all three Selection Boards, the Board has placed the OA No.150 of 2015 : 17 :

applicant in the higher bracket of marks granted. In the second Board he has been given the second highest marks

(with some others) and in his final Board he has been allocated the highest marks by the Board. Therefore, the applicant cannot have any contention that he was discriminated against. However, as observed by us, it is the overall performance across all criteria that matters in the final merit. In our view, therefore, the applicant did not merit selection purely due to his position in the inter-se- merit.

20. While the applicant has compared his merit with some of his contemporaries who were selected (Annexure

A7), it is observed that none of them are parties in the OA nor are any of their other details placed before us.

Therefore, we would not like to go into the merits of the contentions raised by the applicant in this regard. OA No.150 of 2015 : 18 :

21. 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 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, in 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 discriminated against or that the procedures for Selection laid down in the Navy Order or the Approach Paper were violated. OA No.150 of 2015 : 19 :

` 22. 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.

23. There will be no order as to costs.

24. Issue free copy to the parties.

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

krs. OA No.150 of 2015 : 20 :

: 20 :

25. After pronouncement of the order, learned

counsel for the applicant 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)

krs.

// True Copy //

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