MAHESH PRAKASH Vs. UNION OF INDIA

JUDGEMENT

(1.) Mahesh Prakash, the petitioner, was appointed as Sepoy in the Indian Army on 9.1.68. Because of his hard work and in due course of time, the petitioner has earned his time-bound promotion first as Lance Naik then as Havaldar in the year 1981. After completing 24 years of service, the petitioner retired from the post of Havaldar on 1.2.92.

(2.) The petitioner was posted in 54 Field Regiment from where he was directed to proceed on temporary duty to 49 Air Defence Regiment. During the period of his temporary duty, the petitioner was granted annual leave w.e.f 1.6.86 to 6.8.86. During the period, when he was on leave, the petitioner claims to have been falsely implicated in a criminal case by the tenant under Section 147, 149, 451, 427 and 323/34 IPC. The petitioner was entitled to be promoted to the rank of Naib Subedar in the pay scale of 1420-2150 w.e.f 1.11.88 but he was denied this promotion on superficial grounds like pendency of criminal case against him, which could not have been permitted to hamper the promotional avenues of the petitioner and in any case not before its conclusion. In October, 1988 the petitioner came to know that a vacancy of the post of Naib Subedar has arisen due to the retirement of Subedar Rati Ram and the petitioner being the senior most Non-commissioned Officer in his trade in his unit was entitled to be promoted to the said post. The petitioner, thus, made a representation to the respondents on 5.10.1988 demanding his promotion but the same was not granted. The petitioner thereafter on 23.1.89 became overage and vide letter dated 19.1.89, the petitioner was informed that he was beyond promotion zone and could not be promoted to the said rank without assumption of duties in his parent unit. The petitioner even submitted a statutory complaint which was also rejected vide letter dated 24.6.91 stating the appeal to be without substance. It is the case of the petitioner that he had put in 24 years of service and in terms of Army Rules he was entitled to be promoted to the post of Naib Subedar. The said promotion has been denied wrongfully by the respondents and respondents made the petitioner beyond promotion zone for no fault attributable to the petitioner. Ultimately, the petitioner retired on 1.2.92. The complaint of the petitioner dated 24.6.91 was rejected after the retirement of the petitioner by the Chief of Army Staff on 28.4.92. With this grievance, the petitioner has approached this Court under Article 226 of the Constitution of India praying that the respondents be directed to give him promotion and all consequential benefits w.e.f 1.11.88.

(3.) The respondents filed a counter affidavit wherein it was stated that petitioner was granted leave from the temporary duty till 30.5.86. While on annual leave the petitioner had purchased a house at Nai Basti (Delhi). While getting his house vacated during his annual leave, the petitioner is alleged to have committed a criminal offence under Section 146, 149, 451, 427, 324, 232 IPC and the said criminal case was pending in the Court of competent jurisdiction. Since the petitioner got involved in a criminal case, he was attached with one of the local artillery units in Delhi w.e.f 3.8.1986 to 14.8.89 while his parent unit was deployed in Eastern sector. The case of the petitioner was referred to Army Headquarters where it was decided that since criminal case was pending against the petitioner, promotion cannot be given effect to. Vide letter dated 11.5.89 and due to this fact, he was not promoted. Since the petitioner was neither acquitted nor his criminal case was finalised till 1.2.92, the date on which he retired the petitioner could not have been promoted and as per relevant rules the age for promotion to the post of Naib Subedar is 42 years and the petitioner completed 42 years on 22.1.89 when his case was still pending. In these circumstances, according to the respondents, the petitioner could not be promoted.