OA No. 1890 of 2011 --1-
ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 1890 of 2011
Mohinder Singh …… Petitioner(s) Vs Union of India and others …… Respondent(s) -.-
Coram: Justice Rajesh Chandra, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. -.- For the Petitioner (s) : Mr. Surinder Sheoran, Advocate For the Respondent(s) : Mr.Rajesh Sehgal, CGC. -.- JUDGMENT 11.02.2013
1. By this petition, the petitioner prays for the following reliefs:
(i) For quashing the impugned letter dated 11.10.2011 (Annexure A-5) vide which the claim for promotion to the rank of Subedar Major of the petitioner has been rejected by the respondents.
(ii) For conducting a proper DPC to consider the name of the petitioner for promotion to the rank of Subedar Major as per his seniority.
(iii) Directions for reinstatement of the petitioner by granting ante date seniority in the rank of Subedar Major with all consequential benefits as per his seniority and
(iv) To grant 18% annual interest on the amount due to the petitioner from the date of his seniority till final payment.
2. The brief facts of the case are that the petitioner was enrolled in the Army on 6.8.1981 and promoted to the rank of Naib Subedar w.e.f. 1.9.2000 and further promoted to the rank of Subedar w.e.f. 1.2.2008. Due to non consideration for promotion to the rank of Sub Maj by the DPCs held in 2010 and 2011 he was retired from service w.e.f. 31.8.2011. 3. The contention of the counsel for the petitioner is that as per letter dated 14.09.2007 of Integrated Headquarters of Min of Defence (Annexure A-1), the complete batch of substantive Subedars of a calendar year will be considered in the DPC irrespective of the number of vacancies. Further the letter dated 27.4.2010 of OA No. 1890 of 2011 --2-
Integrated HQ. Ministry of Defence (Annexure A-2) clarifies that all Subedars promoted in a calendar year from 1st January to 31st December will be regarded as a batch. The petitioner was promoted to the rank of Substantive Subedar w.e.f. 1.2.2008 and comes under the batch of 1st January, 2008 to 31st December 2008 and, therefore, the petitioner was required to be considered by the DPC which was held for the batch from 1st January 2008 to 31st December, 2008. However, the petitioner‟s name was not included in the DPC and was not promoted to the rank of Subedar Major. It is further contended that the petitioner is entitled for promotion to the rank of Subedar Major as per his seniority vide policy letter dated 14.9.2007 vide which all Subedars promoted in a calendar year from 1st January to 31st December of a year will be regarded as a batch. It is further contended that the petitioner requested respondent No.4 for non-consideration of his name in the DPC which was rejected vide letter dated 11.10.2011 (Annexure A-5). The non consideration of name of the petitioner for promotion to the rank of Subedar Major by the DPC is illegal, arbitrary, unjust and against the policy as applicable and violation of fundamental rights of the petitioner. Hence the petition. 4. The respondents have filed written statement in which they have controverted the claim of the petitioner. It is averred in the preliminary submissions that as per Letter No. B/33513/AG/PS-2 ( c) dated 18th January, 1993, promotion of Subedar Major in the Army is based on Merit –cum-Seniority basis. The petitioner came up in seniority along with his batch mates for consideration for screening in DPC 2011 against the vacancy occurring during 2012 as first look vide EME Records letter No. 1412/CA-1/DPC/2011/T-8 dated 03 March 2011 he was not considered for the same as he was superannuating from the Corps Roster before 2012 (i.e. occurring first foreseeable vacancy of 2012). 5. Heard the learned counsels for the parties. 6. The learned counsel for the petitioner drew our attention to the fact that despite being promoted to the rank of Subedar wef 01.02.2008, the petitioner was not even once considered for promotion by the DPCs held before his retirement on 31.08.2011 violating Para 2 of the letter B/12504/DPC/MP/(A)/EME Pers dated 14.09.2007 which reads as under:- 2. As per the erstwhile policy two Subedars were being considered against each vacancy of Sub Maj till Dec-2006. This policy led to approx 82% of Subedars retiring every year, without even getting a single look for the promotion to the coveted rank of Sub Maj. To ensure that every Subedar gets at least one look in DPC before retirement and also in org interest of selecting the best JCOs, change in policy has been approved wherein OA No. 1890 of 2011 --3-
complete batch of substantive Subedars of a calendar year will be considered in the DPC, irrespective of the vacancies. The revised policy will be effective wef DPC-2007 scheduled in the last week of Sep 2007.
7. Our attention was also drawn by counsel for the petitioner to Para 2&3 of letter B/33513/AG/PS-2(c) dated 27.04.2010 which are as under:- 2. Definition of a Batch. The size of a Batch has been defined vide Para 3 of PS Dte letter No B/33513/AG/PS 2(c) dtd 11.09.2008 as under:
“All Subs promoted in a calendar year from 01 Jan to 31 Dec of a year will be regarded as a batch. This will be read in conjunction with our letter No B/33098/AG/PS 2(c) dtd 10.10.1997 and elaboration there of issued vide letter no. B/33090/AG/PS 2(c) dtd 06.05.2002. This definition would be applicable prospectively and is applicable only to amplify the „batch‟ that finds mention in letter quoted in para 2 above for promotion to Sub Maj only and for no other purpose.”
3. Clarification on Double the No. of vacancies vis-à-vis a Complete Batch of DPC of Sub Maj. Para 7 of PS Dte letter No. B/33513/AG/PS-2( C) dt 06 May 202 provides clarification on guidelines for consideration of No. of Subs for DPC of Sub Maj vis-à-vis No of vacancies which was further amended vide para 2 of the DTe letter No. B/33513/AG/PS-2( C) dt 11 Sep 2008 which reads as under: “This has been further clarified vide Army HQ letter NO. B/33513/AG/PS-2(C ) dt 06 May 02 which states that „double the number of candidates vis-à-vis vacancies or a complete batch, whichever is more may be considered for DPC includes only part of a batch, the complete batch will be considered by the DPC, prospectively.”
8. Then the circular for DPC 2011 for promotion to the rank of Sub Maj in 2012, promulgated vide letter No 1412/CA-1/DPC-2011/T8 dated 03.03.2011 was quoted by the learned counsel for the petitioner and the relevant portion reads as under:- (a) Para 1 brings out the details of the consideration of SKT trade iro of the petitioner as under:- Ser Trade/Cat Promoted Sub upto Remarks the calendar year Incl 2nd & 3rd look (f) SKT 01 Jan 2005 to 31 Dec 2010 JCOs of proceeding yrs
(b) Para 2 amplifies the cut off dates for consideration for promotion
“2. However, the Sub of above calendar year batches who will be retiring during year 2011 are not considered in DPC 2011.”
9. Amplifying the point on the non consideration of the petitioner for promotion to the rank of Subedar Major by the DPCs held in 2010 and 2011, the learned counsel stated that this action was illegal, arbitrary, unjust and against the policy as applicable and violative of fundamental rights of the petitioner. OA No. 1890 of 2011 --4-
10. The respondents during their arguments brought out that the petitioner had not preferred any Statutory/non-statutory complaint towards redressal of his grievance. Further the Annx A-1 letter No. B/12504/DPC/MP/(A)/EME Pers dated 14.09.2007 is a personal communication between Addl DGEME (P&A) and MGEME, HQ Northern Command. In addition Annx 3, the circular for DPC 2011 for promotion to the rank of Sub Maj in 2012, promulgated vide letter No 1412/CA-1/DPC-2011/T8 dated 03.03.2011 is not under challenge. Petitioner is of 2008 batch Subedar SKT and was not due for DPC for the promotion to the rank of Sub Maj in the year 2010 as only Subedar of 2003 and 2004 batches were considered in the DPC for 2010 against the 10 vacancies occurring in 2011 meeting the provisions of „double the number of candidates vis-à-vis vacancies or a complete batch whichever is more‟. His batch of Subedar SKTs came up for consideration for screening in DPC-2011 against the vacancies occurring in 2012 as first look vide EME Records letter No 1412/CA-1/DPC-2011/T-8 dated 03 Mar 2011. Since the petitioner was superannuating from the Corps roster wef 31 Aug 2011, ie, before 2012, he was not considered in the DPC-2011, wherein only considered Subedars of 2005 to 2010 batch for promotion of Sub Maj against vacancies occurring in 2012. The letter dated 7.4.2010 referred to by the petitioner has a reference to letter dated 6.5.2002 and the relevant portion of that letter is as under:
Tele : 3375054 Addl Dte General Personnel Services Adjutant General‟s Branch Army Headquarters „A‟ Wing, Sena Bhawan DHQ PO, New Delhi-110011 B/33513/AG/PS-2(c ) 06 May 2002
Headquarters1 Southern Command, Pune Eastern Command, Calcutta Central Command, Lucknow „A‟ Branch Western Command, Chandimandir Northern Command, C/O 56 APO Army Trg Command, Shimla.
Promotion criteria – JCOS/NCOs
1. x x x x
2. x x x x 7. Explanation of double the Number of vacancies or a Complete Batch for DPC of Sub Maj. OA No. 1890 of 2011 --5-
(a) Where the guideline “double the number of candidates vis-à-vis vacancies or a complete batch whichever is more may be considered for the DPC” includes only a part of a batch, the complete batch will be considered by the DPC.
(b) In the corps/regiment, where DPC is held on a centralized roster basis (ie, not on unit basis) the corps/regiment will themselves decide the size of the batch suited to the corps/regiment. The size of the batch may be such as to give adequate opportunity to merit and at the same time avoid large scale supersession. The size of a batch once decided will be uniformly applied to subsequent DPC for promotion to Sub Maj/Ris Maj. If a corps/regt finds it expedient to change the size of the batch, the same may be altered by a DPC, in which the Col of the Regt must preside, after sufficient prior information to affected units on the reasons for change. The change in the size of batch may be brought into effect from the second subsequent DPC onwards. For example, change in size of batch may be brought about by a DPC selecting a panel for 2003, for the panel 2005 onwards.
(c ) The provision „ double the number of candidates vis-à-vis vacancies whichever is more‟ will apply to Sub/Ris who are not superannuating before occurrence of first foreseeable vacancy. The DPC will, however, place on the panel such eligible but superannuating Sub/Ris of the batch/batches who have an OAP equal or more than the cutoff point of the panel selected. If an unforeseen vacancy arises, senior most serving and eligible Sub/Ris on the panel will fill that vacancy. 11. x x x x x Sd/-(U.K.Dhar) Col Dir PS 2 For Adjutant General
12. Para 7(a) of the letter dated 6.5.2002 clarified that in case “double the number of candidates vis-à-vis vacancies or a complete batch whichever is more” comes to include only a part of a batch, then complete batch will be considered by the DPC. This was re-affirmed by para 3 of the letter dated 27.4.2010. Para 2 of this letter dated 27.4.2010 reproduced definition of size of the batch as defined in letter dated 11.9.2008 and it was clarified that all Subedars promoted in a calendar year from 1 Jan to 31st Dec of a year will be regarded as a batch. The letter dated 14.9.2007 as relied upon by the petitioner is only a reminder of the fact that a complete batch of Substantive Subedars of a calendar year is to be considered in the DPC irrespective of the number of vacancies. This is what Para 7(a) of letter dated 6.5.2002 stipulates. Letter dated 14.9.2007 does not mean that a Subdar has to be considered for promotion before retirement even if there is any OA No. 1890 of 2011 --6-
vacancy or not. It only meant that if vacancy is there then the entire lot of Subedars of a calendar year was to be considered for promotion by the DPC. The respondents have clearly brought out that at the time the DPC was held in the year 2010, the Subedars of 2003 and 2004 batches were considered and since the petitioner was of 2008 batch, he was not in line. Then the DPC held in 2011 was selecting the Subedars for the vacancies which were to fall in 2012. Hence, although the batch of the petitioner was also considered in 2011, the petitioner could not be considered as he was retiring in 2011 itself. 13. The circular for DPC 2011 for promotion to the rank of Sub Maj in 2012, promulgated vide letter No 1412/CA-1/DPC-2011/T8 dated 03.03.2011 placed at Annx A-3 is not under challenge. At para 2 it is clearly brought out that Subedars of the above calendar year batches, who will be retiring during the year 2011 will not be considered in DPC-2011. 14. Keeping above aspects in mind we are of the opinion that the policy criteria for promotion to the rank of Sub Maj in respect of the petitioner were faithfully followed in letter and spirit. Due to prevalent vacancy situation the petitioner was not looked even once for promotion to the rank of Sub Maj before retiring. 15. The petition is devoid of merit and is dismissed.
(Justice Rajesh Chandra)
[Air Marshal (Retd) SC Mukul] 11.02.2013 raghav Whether the judgment for reference is to be put on internet? Yes / No.