IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH NEW

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 , THROUGH THE SECRETARY MINISTRY OF DEFENCE, SOUTH BLOCK, – 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.

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3. OFFICER IN CHARGE 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

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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

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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”.

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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

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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

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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

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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

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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

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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

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for promotion to Subedar of which only one of these ACRs could be in the rank of Havildar. It was, therefore, mandatory that two ACRS be earned as a Naib Subedar. Therefore, they had no leeway to make any exceptions or to arbitrarily change the rules in favour of the petitioner.

10. The respondents are also of the view that it was for the petitioner to have planned his career well in advance and should have informed his seniors that he was not willing to go on the course, thereby avoiding this unnecessary delay in promotion. The respondents gave an assurance that while the screening board of the petitioner would be held on 1.7.2010, on approval for Subedar, the seniority of the petitioner would be protected and that he would get an ante date seniority of 1.7.09. Therefore, there was no substance in the petitioner’s plea for early promotion and he would attain the due rank in the natural course of promotion policy of the Army.

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11. Learned counsel for the petitioner urged that misconstruing the context of the High Court order of 12.9.2007 was the fault of the respondents on account of which promotion of the petitioner was delayed. The respondents therefore cannot abdicate their accountability and responsibility in this regard. If they have erred in correctly interpreting this order, they need to make amends and grant redress to the petitioner. The authority concerned was under fiduciary duty to promote the petitioner when vacancy was available for him. The authority, taking into account the grievance of the petitioner that his promotion was delayed by misconstruing the order of the High Court dated 12.9.2007, allowed his representation by notionally regularizing the intervening period from 1.10.2007 to

3.3.2008 and further accorded all benefits of promotion including monetary benefits. The effect of date of regularisation order would be relevant for the purpose of determination of his seniority. It shall be beneficial to refer to the observations made by the Supreme Court in

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M.P Palaniswamy v. A. Krishan (2009(6) SCC 428). Furthermore, the plea of the respondents that the petitioner himself is required to look after his own career planning, including foreseeing the implication of attending a course on his future career is totally misconceived. The petitioner attended the course in organizational and service interest and it was not his personal decision to attend the course. He was detailed by the organisation and it was for the organisation to have foreseen the outcome of such detailment and to have taken necessary corrective measures. At this stage to put blame on the petitioner is misplaced and a very lame excuse. The participation of the petitioner in the training under the orders of the respondent cannot be an estoppel for the petitioner to agitate for the promotion. It is all of no substance that the petitioner ought to have planned his future scheme. The participation of the petitioner in the training without any demur or protest would not come in the way as an estoppel.

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12. The anomaly between the promotion policies for the two separate entrants in the SAC cadre was apparent even to the Delhi

High Court. While delivering the judgment, the Delhi High Court has commented on this anomaly as below:

The respondents in their wisdom have, in fact, even provided for removal of a possible anomaly which arises where two persons in the remustered category may be affected in as much as if one of them is senior and has not earned an ACR he would not get the chance of further promotion till he earns that ACR. In such a situation a notional seniority is given when the person is promoted to the post of Naib Subedar which implies that such a person attains his original seniority as existed in his post prior to promotion as a Naib Subedar yet simultaneously the respondents are unwilling to remove the anomaly between the two categories.

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13. From such observation of the High Court, there ought to have common roster. Promotion to senior person cannot be denied unless he is found unfit. The petitioner was not taken into the zone of consideration as he was not awarded ACR for the training period. The petitioner himself has not defeated the ACR for the period available to him under the equity. He has not waived his right of promotion either expressly or by necessary implication. It is not a case that by way of attending training for the ACR period, he has disentitled himself from obtaining equitable relief especially when there is nothing to show that he allowed a thing to come to an irreversible situation.

14. While it may be argued that the order of the High Court dated 31.7.2008 gave relief only to the re-mustered category of SAC who had filed the writ petition, but the all encompassing directive contained in the judgment i.e. “thus both streams of personnel would be simultaneously considered for the said post of Subedar

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irrespective of the number of ACRs as Naib Subedar” leaves no scope for any doubt that the High Court was addressing a common roster including both types of entrants. It was urged that the petitioner was in the category of “similarly placed circumstances” as the other petitioners who have been promoted based on one ACR in the rank of

Naib Subedar. Furthermore, while the respondents may give assurance of seniority being protected, but this does not compensate for the arbitrariness of the respondents or the unforeseen consequences of such delay on the part of the respondents. It was within the realm of possibility that the petitioner being a litigant may not find favour with his seniors and may fall foul of some of his reporting officers against whom he may have complained resulting in an inappropriate ACR and consequent denial of promotion! The effect of delayed promotion on his career with regard to Honorary Commission or such other matters cannot be predicted. Therefore, it would be unjustified to accept that

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the petitioner be governed by a separate set of rules while his peers and juniors are being promoted over his head.

15. Consequently, the plea of the petitioner is accepted. We direct that he be treated in the category of “similarly placed circumstances” as given in the Delhi High Court’s order dated

31.7.2008 and his promotion board to Subedar be held on the basis of one ACR in the rank of Naib Subedar. This action is to be completed within two months. The petition is allowed in terms of aforesaid.

S.S. DHILLON S.S KULSHRESHTHA MEMBER MEMBER

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