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ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI 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 ADMIRAL 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, ERNAKULAM, PIN – 682 004, KERALA. BY ADVS.M/S K.S.HARIDAS, T.R.JAGADEESH & COL. S. VIJAYAN. VERSUS RESPONDENTS: 1. UNION OF INDIA, 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, SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI – 682 004. 4. THE COMMODORE (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.
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