UMESH KUMAR TYAGI Vs. UNION OF INDIA

JUDGEMENT

(1.) Rule D.B.

(2.) This writ petition has been filed by the petitioner, inter alia, praying for a writ of mandamus for giving a direction to the respondents to write fresh ACR for the year 1996 and to get the petitioner assessed by a Promotion Board for promotion to the post of Naib Subedar after taking into consideration his fresh ACR for the year 1996 and for further direction that in case petitioner is found fit for promotion, he shall be given seniority and shall be promoted to the rank of Naib Subedar w.e.f. the date when batchmates of the petitioner were promoted to the rank of Naib Subedar.

(3.) In short the controversy which has emerged in the writ petition is on account of the ACR for the year 1996. It is the case of the petitioner that the petitioner was given an ACR 'high average' in 1996 by an officer with whom the petitioner has worked for 39 days only. This fact has been admitted by the respondent in their comments on non-statutory complaint of the petitioner which is at page 43 of the paper-book that the petitioner has served only for 39 days from 15th March, 1996 to 22nd June, 1996 in the Unit and not rendered mandatory physical service of 90 days in the unit i.e. under IO 2 LT A.K. Madhusudan. Since the petitioner had not served physically for 90 days under IO 2 Lt A.K. Madhusudan, the ACR for the year 1996 initiated by the officer is techinically wrong and recommended to be set aside. Thereafter, the ACR for the year 1996 was set aside on 2.1.1999 by Major General S.P. Singh, Dy. Commandant being technically incorrect. In the event of the ACR of 1996 being set aside, the petitioner was entitled for re-writing of his ACR on the basis of fresh appraisal of the petitioner. However, that was not done. Petitioner made a representation that his juniors have been promoted and he be also promoted. Learned counsel for the petitioner has relied on a copy of the letter No.B/33507/AG/PS2(c) dated 27.2.1992 addressed to all commands and copy to record office which finds mention in para 5 of the counter affidavit of the respondent regarding refixing of seniority, when an ACR has been set aside and is to the following effect :- "Point regarding refixation of seniority after setting aside ACRs by competent authority has been under examination at this HQ. It has been decided that on setting aside of an ACR, the JCO/NCO will be assessed afresh by the DPC/Promotion Board on the basis of promotion criteria. In case found fit for promotion they will be given notional seniority w.e.f. the date when their colleagues were promoted to the higher rank."