ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

O.A.No. 137 of 2015

THURSDAY, THE 22ND DAY OF SEPTEMBER, 2016/31ST BHADRA, 1938

CORAM:

HON'BLE MR. JUSTICE S.S. SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)

APPLICANT: SUB MAJ (RETD) A.ALAGESAN, NO.EX JC – 69852 A, LAST POSTING STATION WORKSHOP EME – BANGALORE, AGED ABOUT 76 YEARS, RESIDING AT: G-1, SRINIVAS RESIDENCY, 8TH CROSS, KODIHALLI, HAL 2ND STAGE, BANGALORE – 560 008.

BY ADV. SRI. SUNIL.S.CHOUDHARI. Versus

RESPONDENTS :- 1. THE UNION OF THROUGH THE SECRETARY, MINISTRY OF DEFENCE (ARMY), DHQ P.O., SOUTH BLOCK, -110 001.

2. THE CHIEF OF ARMY STAFF, DHQ P.O., INTEGRATED HQRS, MINISTRY OF DEFENCE (ARMY), DHQ P.O., SOUTH BLOCK, NEW DELHI – 110 001.

3. ADJUTANT GENERAL'S BRANCH, INTEGRATED HQRS, MINISTRY OF DEFENCE (ARMY), DHQ P.O., SOUTH BLOCK, NEW DELHI – 110 001.

4. DIRECTOR GENERAL OF EME (EME PERS) MASTER GENERAL OF ORDINANCE BRANCH, INTEGRATED HQRS, MINISTRY OF DEFENCE (ARMY), DHQ POST, NEW DELHI – 908 704. O.A.No. 137 of 2015 -: 2 :-

5. SENIOR RECORDS OFFICER, CORPS OF EME RECORDS, TRIMULGIRI – PO, SECUNDERABAD – 21, ANDHRA PRADESH.

BY ADV. SRI.M.RAJENDRAKUMAR, SENIOR PANEL COUNSEL

ORDER

Satheesachandran, Member (J):

The applicant, viz. A. Alagesan, Ex-JC No.69852 A, Subedar

Major (Retd.), has filed the above application under Section 14 of the Armed Forces Tribunal Act, 2007 (for short 'the Act') for quashing Annexure A9 order and to issue direction to the respondents to grant him Honorary Commissions awarding him the rank of Lieutenant w.e.f. 15th August, 1988 and rank of

Captain w.e.f. 26th January, 1989, extending full benefits thereof including arrears along with difference of pay with interest.

2. The applicant was enrolled in the Army as Technical entry on 8th July 1957 in the Corps of EME and later promoted to the rank of JCO on 1st December, 1972 and to the rank of

Subedar Major on 9th April, 1985. He was discharged from Army O.A.No. 137 of 2015 -: 3 :-

service as Subedar Major (JCO) on 30th April, 1989. He had served the Army for 31 years, 9 months and 29 days. The applicant claims of having participated in Indo - China war of

1962 and Indo – Pak war of 1965. During his Army service he had served in several field and high altitude areas and also in remote locations with uncongenial climate. He had earned

“PASCHIMI STAR” and many distinguished medals during his career. While he continued in service as JCO his name was recommended for consideration for the grant of Honorary

Commission/ranks, but he was not awarded such Commission on the eve of Independence day, 15th August, 1988 and on Republic

Day, 26th January, 1989. The applicant impugns that the list published over the grant of Honorary Commission dated 15th

August, 1988 without following the alphabetic order was materially altered and the JCOs selected for Honorary

Commission were not in the order of merit.

3. The applicant had made a statutory appeal, Annexure

A2, while he was in service, over the non-granting of Honorary O.A.No. 137 of 2015 -: 4 :-

Commission to him on the eve of Independence day, 15th August

1988 and Republic day, 26th January 1989. Despite sending two more representations, his complaint was not properly considered.

The applicant later made a grievance petition/representation to the Hon'ble on 23.4.2001 over non- consideration of his statutory complaint and non-granting of

Honorary Commission to him. The grievance appeal was acknowledged and he was also informed that it had been forwarded to the Ministry of Defence for proper consideration.

Much later, he was served with Annexure A6 order informing that he did not make the grade for grant of Honorary Commission.

Annexure A6 order was a non-speaking order indicating that his statutory complaint was disposed of without application of mind.

The applicant therefore approached this Tribunal filing O.A.No.

21 of 2010 for issue of directions to the respondents to consider his statutory complaint, which, after hearing both sides, was disposed with directions to the respondents to consider his complaint and pass appropriate orders within the time limit of four months. Pursuant thereto, much later to the time fixed, he O.A.No. 137 of 2015 -: 5 :-

was served with Annexure A9 order by the 5th respondent informed that his statutory complaint after consideration had been rejected by the second respondent, Chief of the Army Staff, holding that he was not selected in the list of Honorary

Commissioner for Independence day 1988 and Republic day 1989 since he did not make the grade in relative merit and that the selection of Honorary Commission on both occasions was held as per the policy on the subject and with correct inputs.

4. Annexure A9 order is impeached by the applicant contending that it is not a speaking and reasoned order and no justifiable reason is shown why he was not selected for grant of

Honorary Commission and what was his merit and how much merit would be required for consideration of the Honorary

Commission and awarding of ranks. There was no application of mind over the merits of his complaint impeaching the non- granting of Honorary Commission to him, according to the applicant. His meritorious service, including participation in two wars and distinctions awarded, was not appreciated nor O.A.No. 137 of 2015 -: 6 :-

considered in adjudging his eligibility for selection in awarding of

Honorary Commission on both occasions. His request made for passing a speaking order on his statutory complaint, imputing that it was disposed in a routine manner, was rejected by the respondents. He had initially approached the Honourable High

Court of Karnataka with a Writ Petition, No. 58484 of 2014, challenging the rejection of his statutory complaint under

Annexure A9 order, which was turned down vide Annexure A17 order for want of jurisdiction, but with liberty to approach this

Tribunal for redressal of his grievance. He has thereupon moved the present Original Application seeking the aforementioned reliefs.

5. The respondents filed a reply statement contending that grant of Honorary Commission is purely based on merit and since the applicant had not come in the merit list he was not granted Honorary Commission in the active service. Applicant was recommended for grant of Honorary Commission in active service on the occasions of Independence Day, 1988 and O.A.No. 137 of 2015 -: 7 :-

Republic Day, 1989, but, on both occasions he had not come in the merit list. The applicant had moved a statutory complaint dated 1.2.1989, which, after careful examination, was turned down. The applicant later moved a grievance appeal before the

President of India, which being referred to the Headquarters of

MOD (Army) was duly examined by the competent authority and he was informed that being low in order of merit he could not make the grade for grant of Honorary Commission during the occasion of Republic Day 1989. The applicant pursued the matter further by moving representations, which were suitably replied informing that grant of Honorary Commission was based purely on merits and since he was low in order of merit Honorary

Commission was not granted. The applicant thereupon preferred O.A.No. 21 of 2010 before this Tribunal and pursuant to the direction given to consider his complaint and issue suitable orders at the earliest, complaint of the applicant was carefully examined at the appropriate level and a speaking order was issued informing that he was not selected in the list of

Honorary Commission for Independence Day, 1988 and Republic O.A.No. 137 of 2015 -: 8 :-

Day, 1989 since on both occasions he did not make his grade in the relative merit. The applicant even thereafter pursued his claim challenging the denial of Honorary Commission in active service moving petitions and representations and later filing a

Writ Petition before the Hon'ble High Court of Karnataka, in which he sought for issue of directions granting him Honorary

Commission to the rank Lieutenant w.e.f. 15.8.1988 and to the rank of Captain with effect from 26.1.1989 with all consequential benefits. That Writ Petition was turned down for want of jurisdiction, but with liberty to the applicant to approach this

Tribunal for redressal of his grievance. He has thereupon filed the present O.A. challenging the order passed in his statutory complaint rejecting his claim for Honorary Commission in active service.

6. Procedure for grant of Honorary Commission is after an elaborate process, wherein the recommendation roll of eligible candidates undergo detailed three tier scrutiny and evaluation for award of weightage to various service aspects of the profile O.A.No. 137 of 2015 -: 9 :-

of an individual, and based on such evaluation a merit list is drawn and candidates drawing cut off merit are then awarded

Honorary Commission, according to the respondents. Since the applicant did not make that considerable grade in relative merit he was not selected in the list of Honorary Commission on both occasions, i.e. for Independence Day, 1988 and Republic Day,

1989. Refuting the claim of the applicant it is contended by the respondents that his service records available do not indicate of his participation in Indo – China war, 1962 and Indo – Pak war,

1965. He was given due weightage for the medals/stars which are recognised under the policy instructions in evaluating his grade for grant of Honorary Commission. Whatever factors favourable to him in accordance with the policy directions were duly taken into account in fixing and considering his merits for the grant of Honorary Commission and there is no merit in his challenges that he was denied Honorary Commission overlooking his distinctions and such other matters connected with his service. Selection for the grant of Honorary Commission on both occasions viz. Independence Day, 1988 and Republic Day, O.A.No. 137 of 2015 -: 10 :-

1989 was purely on the basis of merit list, which was prepared in accordance with the policy instructions applicable evaluating the comparative merits of all the persons, including the applicant, recommended for grant of Honorary Commission and since the applicant was much low in the merit list and did not make the grade, he was not granted Honorary Commission on both occasions, according to the respondents. The O.A. is devoid of any merit and deserves only to be dismissed, contends the respondents.

7. We heard learned counsel on both sides.

8. Learned counsel for the applicant assailed the rejection of the statutory complaint under Annexure A9 contending that there was total non-consideration of the grounds raised in the complaint questioning the denial of Honorary Commission to him as illegal and unsustainable. Statutory complaint was disposed of in a routine manner without application of mind and without following due procedure and it is not a reasoned order, is the O.A.No. 137 of 2015 -: 11 :-

submission of the learned counsel to contend that Annexure A9 order is void ab initio and non est in the eye of law. The respondents have not considered the merit of the claim of the applicant with reference to the policy applicable for grant of

Honorary Commission, but, based on a later policy which came into force even after the discharge of the applicant from service and for that reason alone Annexure A9 order is liable to be quashed and set aside. The applicant had exemplary and meritorious military service and the distinctions and medals conferred on him during such service have not been given due weightage in considering his merit for grant of Honorary

Commission, is the further submission of the counsel to urge that setting aside Annexure A9 order the statutory complaint preferred by him has to be re-considered and decided, in accordance with the procedure applicable, for the respective period –

Independence Day 1988 and Republic Day 1989. The applicant stood on a higher merit than his counter parts who had been granted Honorary Commission in active service, is the further submission of the counsel to urge that he too deserved to be O.A.No. 137 of 2015 -: 12 :-

conferred with Honorary Commission for the period covered and the denial thereof was totally unjustified and unsustainable.

9. After careful consideration of the materials tendered in the case by both sides with reference to the submissions canvassed by learned counsel for the applicant, we find that the challenges canvassed to assail Annexure A9 order rejecting the statutory complaint of the applicant are not having much force.

Nothing has been placed on record by the applicant to show that the applicant was unjustifiably denied the grant of Honorary

Commission and the exercise thereof was faulty or irregular in any manner. The respondents have contended that the relative merit of JCOs recommended for the grant of Honorary

Commission in active service for Independence Day 1988 and

Republic Day 1989 was considered and scrutinised with reference to the yardsticks fixed by the policy guidelines, and, on such evaluation the applicant was found in low merit not eligible for the grant. In fact when compared with those JCOs granted

Honorary Commission, his position was much below and there O.A.No. 137 of 2015 -: 13 :-

were 24 JCOs who were above him in merit, who too could not be granted Honorary Commission on active list for the two occasions as they were below the cut off grade. Though the applicant had contended that his statutory complaint was rejected in a routine manner canvassing a case that it was disposed following the guidelines of 1998, but not of the previous policy in 1982, which, according to him, was applicable in his case to examine his grievance that denial of grant of Honorary

Commission for Independence Day 1988 and Republic Day 1989, we do not find any merit or substance in that challenge to assail

Annexure A9. What, if any, is the difference between the policy of 1982 and 1988 in considering and disposing the statutory complaint has not been placed on record by the applicant to substantiate that there was an improper consideration of his statutory complaint by a later policy issued and not applicable to the period covered. The applicant had filed a statutory complaint in 1989 and later a series of representations, including a grievance petition/appeal to the President of India in 2001.

His complaint and petitions were not considered was his case to O.A.No. 137 of 2015 -: 14 :-

approach the Tribunal earlier by filing O.A.No. 21 of 2010, which was disposed of by order dated 7th October, 2010. The Tribunal, after expressing the view that “ a well formulated and detailed procedure with adequate checks and balances is in place to ensure fair play and equal chance to all candidates” in evaluating their comparative merit in granting Honorary Commission observed that though there is no need to interfere with the procedure adopted in the grant of Honorary Commission in the case, the complaint of the applicant to the Chief of the Army

Staff and to the Honourabale President of India need to be responded to by competent authority. In that view of the matter the O.A. was disposed with direction to the respondents to consider the complaint of the applicant and issue suitable orders at the earliest fixing a time limit thereof. When a statutory complaint preferred by the applicant in 1989 is directed to be considered and disposed of by an Order passed by the

Tribunal on 7th October 2010, the applicant cannot insist for consideration of such complaint under a pre-existing policy guidelines which was later modified. Even assuming that the O.A.No. 137 of 2015 -: 15 :-

policy guidelines of 1982 differ from the policy guidelines of

1998, which, according to the applicant, was followed in disposal of his statutory complaint, that would not confer any right on the applicant to impeach the procedure followed in disposal of his statutory complaint. The applicant had no vested right to have consideration of his statutory complaint in accordance with the previous policy, but only with respect to the policy that is applicable at the time when the direction was issued by the

Tribunal to consider his complaint. In fact where the applicant has not shown that the policy prescribed in 1982 and in 1998 has much variance from one another producing both such policy guidelines any challenge raised against Annexure A9 on the premise that it was on the basis of a later policy not applicable has no value or merit at all.

10. In a press note dated 15th August 1988 over the grant of Honorary Commission the names of the recipients were stated not in the alphabetic order, is the case of the applicant to contend that the list was materially altered and the JCOs were O.A.No. 137 of 2015 -: 16 :-

not selected in the order of merit. Other than reference to this press note, (Annexure A1), the applicant has not alleged or shown that any one who was of lesser merit than him had been granted Honorary Commission on the two occasions –

Independence Day 1988 and Republic Day 1989. Needless to point out, even if the press note was issued showing the names of the recipients of Honorary Commission not in the alphabetic order, it would no way show that the selection was not made in accordance with the policy guidelines and also on merits. The applicant has referred to the medals given to him and also the distinctions conferred during his service. He has not shown that weightage was not given to him for the medals and other distinctions, to which it is applicable, in awarding marks to evaluate his merit for grant of Honorary Commission. No specific instance is pointed out that any of the policy guidelines in the evaluation of his merit has been flouted in assessing his merit. Yardsticks fixed under the policy applicable have to be strictly followed in evaluating the merit of the JCOs with O.A.No. 137 of 2015 -: 17 :-

reference to the cut off grade fixed when such grant is limited and selection is to be made on comparative merits from too many

JCOs recommended from the Units.

11. As already pointed out, the applicant has not shown that grant of Honorary Commission on the two occasions –

Independence Day 1988 and Republic Day 1989 – had been granted to any JCO who had lesser merit than him, but only questioned the selection on the premise that in view of his meritorious service he too deserves to be granted Honorary

Commission. Whatever be his perception over his qualities and entitlement where, selection is made on the basis of policy guidelines evaluating comparative merit of the JCOs recommended those who are having better merit than him and who had satisfied the cut of merit they alone could have been selected and conferred with the Honorary Commission. As observed in the previous Order of the Tribunal disposing O.A.No.

21 of 2010 filed by the applicant there cannot be any doubt that O.A.No. 137 of 2015 -: 18 :-

a well formulated and detailed procedure with adequate checks and balances is in place to ensure fair play and equal chance to all candidates in the selection of JCOs for grant of Honorary

Commission. Where a selection has been so made, in the absence of materials showing unmistakably that policy guidelines applicable had been flouted and the evaluation of the merit of the competing candidates has not been properly made, it cannot be interfered with. In this connection we may also point out that the applicant has not impeached the assertion of the respondents that the position of the applicant was below 24 JCOs who too could not reach the cut of grade for grant of Honorary

Commission on evaluation of their comparative merit.

12. The applicant was not selected for Honorary

Commission on the two occasions essentially due to his not making the grade in relative merit as stated in Annexure A9 order has only to be accepted in the given facts of the case. There is no merit in the challenges raised against Annexure A9 order O.A.No. 137 of 2015 -: 19 :-

rejecting his statutory complaint.

13. We also notice that in the present application the applicant has styled himself as a Subedar Major to question and assail the non-granting of Honorary Commission to him in active service. However, it is seen, in the previous application, O.A.No.

21 of 2010, the applicant has been shown as a Honorary

Lieutenant. Evidently, he was granted Honorary Commission in the rank of Lieutenant after his retirement and he is currently enjoying all the benefits thereof. Suppressing grant of such

Commission in the present application, wherein he has sought for grant of Honorary Commission to the rank of Lieutenant and

Captain in active service assailing the rejection of his statutory complaint, is not appreciable, but, we say no more where on the merits of the case we have already come to the conclusion that the challenges against Annexure A9 order are devoid of any merit. O.A.No. 137 of 2015 -: 20 :-

14. The Original Application is dismissed.

15. There will be no order as to costs.

16. Issue free copy of this order to both sides.

Sd/- Sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN, MEMBER (A) MEMBER (J) tm.

/True Copy/

Prl. Private Secretary