M M SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution of India, the petitioner prays for issuance of appropriate writ, order or direction quashing the letters dated 26.3.97 and 5.8.97 annexed to the writ petition and further prays for a direction to the respondents to promote the petitioner w.e.f. 1.7.96 in terms of order dated 11.11.96 with all consequential benefits.

(2.) The case of the petitioner is that the petitioner joined and was working in the cadre of Artificer with Indian Navy. From that post he claims to have earned different promotions from time to time and was promoted from EAR-5 to Ag. EAR-4 and then Ag EAR-4 to EAR-3. He claims to have become eligible for promotion from EAR-3 to CHEAR and a competency certificate was issued by his then Commanding Officer on 24.4.93. In August, 1994 he further qualified his CHEAR 'Q' and was promoted to the post of EAR-2 by his Commanding Officer in the month of August, 1995. It is the claim of the petitioner that he was actually promoted as CHEAR by respondent no.3 vide promotion order dated 11.11.96 which order was forwarded from respondent no.3 to respondent no.4 for implementation. The above order of promotion was not implemented by respondent no.4 for eight and a half months and was withheld illegally vide letter dated 26.3.97 against the provision of law as contained in sub-para 5 of para 8 of Chapter-I of NI 12/5/91. The promotion order of the petitioner was returned only in August, 1997 by respondent no.4 in which vague allegations were levelled against the petitioner and which according to the petitioner were wishful thinking of respondent no.4. These grounds were never communicated to the petitioner at any point of time. The conduct of the petitioner, in fact, was very good and he always got good reports. As a result of denial of his promotion, the petitioner has filed the present writ petition claiming the above reliefs.

(3.) Upon notice, the respondents have filed the counter affidavit wherein the respondents have taken the stand that the petitioner is not entitled to the relief claimed and have referred to the procedure for promotion. The relevant procedure for promotion is laid down in NI 2/96. The sailor became eligible for consideration for promotion to the rank of CHEAR (Chief Electrical Artificer Radio) in 1996. Promotion to the rank of CHEAR (Chief Electrical Artificer Radio) is regulated by promotion roster which is maintained by Commodore, Bureau of Sailors (CABS). The basis of roster is combination of seniority and qualifying professionally. Whenever a particular sailor becomes due for promotion, the CABS forwards Form IN-52 to the Commanding Officer of the unit/ship where the sailor is borne, who after verifying that the sailor is qualified for promotion in accordance with regulations, and unless he considers that the sailor is unfit for the duties of the higher rank, will promote him and return Form IN-52 duly completed to CABS. It is also averred that if on the receipt of the Form IN 52 or at the end of the two months period of consideration, the Captain decides not to promote the sailor, he shall return the Form IN 52 to the Commodore, Bureau of Sailors. Referring to the sequence of events of the petitioner, it has been stated that right from 1.7.96 till 16.3.99 the petitioner was cautioned about his professional competency. Despite counselling and several warnings, the petitioner did not improve. In view of this fact, the petitioner could not be given the promotion and keeping in view the overall suitability of the petitioner for promotion, the CO only assessed his performance and his attitude having not been found improved despite repeated warnings, the final opinion was expressed as not fit for promotion. The promotion of sailors from promotion roster is governed under Para 8 of Chapter-I of Navy Instructions 2/96 copy of which is annexed to counter affidavit as R-2. The case of the petitioner was considered and then returned to the Bureau of Sailors unimplemented with detailed reasons vide letter dated 5.8.97. It is incorrect that IN 52 was illegally withheld by the Commanding Officer. The respondents pray for dismissal of the writ petition.