In the Armed Forces Tribunal, Principal Bench New Delhi
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IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH NEW DELHI O.A NO. 48 of 2009 JC-338316P NB SUB VIKRAM SINGH S/O. SH. MAN SINGH R/O. QUARTER NO.P-125/08 VASANT RANGE COLONY SHANKAR VIHAR DELHI CANTT-10 THROUGH: SH.S.S.PANDEY, ADVOCATE …APPLICANT VERSUS 1. UNION OF INDIA, THROUGH THE SECRETARY MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI – 110 011. 2. THE CHIEF OF THE ARMY STAFF THROUGH ENGINEER-IN-CHARGE KASHMIR HOUSE INTEGRATED HQ OF MINISTRY OF DEFENCE DHQ PO NEW DELHI-110 011. 1 3. OFFICER IN CHARGE BENGAL ENGINEER GROUP AND RECORDS PIN-908 779 C/O. 56 APO THROUGH: SH. GAURAV LIBERHAN, ADVOCATE .. RESPONDENTS CORAM : HON’BLE MR. JUSTICE S.S KULSHRESHTHA, MEMBER HON’BLE LT. GEN. S.S DHILLON, MEMBER JUDGMENT Dated : 26.02.2010 1. The applicant is aggrieved by the illegal action of the respondents, wherein despite being fully qualified and eligible, he has been denied promotion to the rank of Subedar while his juniors have been promoted. He has been denied promotion on the ground that he is lacking adequate number of Annual Confidential Reports (ACRs). The 2 petitioner pleads that he is not to blame for such deficiency in ACR and that it was the respondents who were responsible for it. 2. Before getting onto the contenting view-points involved in this case, it would be appropriate to go into the background so as to understand the issues and their implications in the correct perspective. 3. The applicant belongs to a trade called “Survey Auto Carto (SAC)”. It is a specialised trade of the Military Survey Group. In normal course, selection to this post was made through direct recruitment. However, at a point of time, since there were large number of vacancies in this trade, it was decided by Army HQs to make up this deficiency through re-mustering from within the serving soldiers. This implied that instead of recruiting suitable individuals directly as SAC, volunteers would be asked for from other Arms/ Services who have the requisite qualifications for SAC and once 3 selected their trade would be changed to that of SAC. Therefore, instead of all SACs being directly enrolled, another category i.e. Sepoy who were re-mustered for this trade also come into existence. For whatever reasons the policy letter for promotion of this trade to the rank of Nb Sub specified that for directly enrolled SACs the number of ACRs required would be four, whereas for the re-mustered category, the number of ACRs required would be five. Against such disparity, Hav. Ravi Kumar Sharma and some others of the re-mustered category filed a writ petition before the Delhi High Court – WP (C) No. 6716 of 2007 and prayed that a common roster of this trade be maintained and there be no disparity whatsoever between the two separate entrants. A specific prayer was made that the number of ACRs required for promotion to Nb Sub should be only four and not four/five for different entrants. Accordingly, on 12.9.07 while admitting this writ petition, an order was passed by the Delhi High Court to the effect that “all further promotions shall be subject to the outcome of this writ petition”. 4 4. While the petitioner was entitled to be promoted to the rank of Nb Sub on 1.10.2007, he was not promoted till 3.3.2008, presumably because the Delhi High Court’s order of 12.9.2007 was mistakenly taken as a “stay order” for further promotion. This supposed confusion resulted in “freezing” fresh promotions and the petitioner who was entitled to be promoted with effect from 1.10.2007, actually assumed his rank only on 3.3.2008. Shortly thereafter, i.e. on 7.4.2008, he was sent for a course of instruction to Hyderabad and came back only on 17.6.08. Because of the authorities delaying his assumption of rank from 1.10.07 to 3.3.2008 and immediately thereafter sending him on the course, the petitioner was denied an ACR in the rank of Nb Sub which was due on 1.7.2008. The petitioner states that he would have earned the requisite ACR if he had been promoted on the due date i.e. 1.10.2007 or even if he was promoted on 3.3.2008 but not sent on the course. Therefore, on both 5 counts, it is the action of the authorities which is responsible for his being denied an ACR in the rank of Nb Sub on 1.7.2008. 5. Thereafter on 1.7.09 he and his colleagues earned another ACR but the traversity was that while for the petitioner it was his first ACR in the rank of Naib Subedar, for his colleagues it was their second ACR in this rank. Since two ACRs in the rank of Naib Subedar were required for promotion to Subedar, his batch mates, including Nb Sub Sanjay Yadav and Ram Swaroop who were junior to him were promoted as Sub with effect from 1.7.09 and the applicant was superseded. 6. Meanwhile on 31.7.08, the Delhi High Court gave its judgment on W.P No. 6716 of 2007. The decision of the High Court was favourable to the petitioners in that it upheld the necessity for a common roster and also directed that there not be any difference in 6 the number of ACRs to be earned for promotion irrespective of the type of entry. The salient extracts of the judgment are: “A writ of mandamus is issued quashing the policy decision of the respondents whereby they seek to discriminate between the number of ACRs to be earned from the two streams of direct recruits and remustered personnel for promotion to the post of Naib Subedar. The result would be that the petitioners are required to be considered for promotion as Naib Subedar on the basis of having earned the same number of ACRs as the direct recruits and on their being so promoted would be entitled to their seniority in the post of Naib Subedar as per the seniority list of Havildars (the original cadre). This would naturally entail that the said seniority would also prevail for promotion from the post of Naib Subedar to the Subedar when such an eventuality arises. The common seniority list of the Naib Subedar to be drawn accordingly would be the basis for promotion to the post of Subedar and thus both streams of personnel would be simultaneously considered 7 for the said post of Subedar irrespective of the number of ACRs as Naib Subedar”. 7. The executive directions with regard to ACR, as given in the judgment, were that “both streams of personnel would be simultaneously considered for the said post of Subedar irrespective of the number of ACRs earned as Naib Subedar.” Based on this judgment, the directly re-mustered Naib Subedar were promoted to Subedar only on one ACR earned as Naib Subedar. In this category, Naib Subedar Sneha Kumar Singha and Naib Subedar Sanjeev Singh were promoted. The resultant situation delivered a double jeopardy to the petitioner in that,-- (i). Since he did not earn an ACR as Nb Subedar on 1.7.08 while his batch mates junior to him earned such an ACR, they have been promoted to Subedar on 1.7.2009 and he would have to wait one additional year till 1.7.2010; (ii) The re-mustered category of SAC who benefitted from the ruling of the High Court of 31.8.08 8 could now be promoted to Subedar based only on one ACR, whereas he being a direct entrant is now being required to earn two ACRs. 8. On realizing the harm and injustice done to the petitioner, he immediately represented to the concerned authorities on 26.8.2009 requesting that he also be considered for promotion to Subedar with effect from 1.7.2009 on the principle of “similarly placed circumstances”, along with his batch mates as directed by the High Court. His unit even recommended to the concerned authorities that the ACR for the period 1.7.2007 to 30.6.2008 be accepted as an ACR earned in the rank of Naib Subedar as for all practical purposes, including pay and allowances his seniority date was 1.10.2007 and he had served 90 days under his initiating officer before 30.6.2008. The authorities could have permitted this ACR to be treated as an ACR earned in the rank of Nb Sub because the charter of his duties and 9 responsibilities were more or less similar irrespective of whether he was a Havildar or Naib Subedar. 9. The respondents urged that there was no illegality or arbitrariness in delaying the promotion of the petitioner. On receipt of the Delhi High Court’s order dated 12.9.2007 that “all further promotions shall be subject to the outcome of this writ petition”, they had some doubt as to the implications of such order and they sought legal advice on this issue. It was only on 23.2.08 that the Army Legal authorities informed them that this was not a stay order and that they could proceed with regular promotions as due. Accordingly, they promoted the petitioner at the earliest thereafter i.e. on 3.3.2008, and gave him full ante date benefits, including pay and allowances with effect from the date of occurrence of vacancy i.e. 1.10.2007. The respondents also placed on record the Army HQ promotion policy letter of 10.10.1997 wherein three ACRs were required by an individual 10 for promotion to Subedar of which only one of these ACRs could be in the rank of Havildar.