COMMODORE FH DUBASH VSM Vs. UOI

JUDGEMENT

(1.) The petitioner, a senior Naval Officer of the Indian Navy has approached this Court under Article 226 of the Constitution of India feeling aggrieved by the recommendation of the Promotion Board No.1/2004 dated 18th June, 2004 as according to him he was wrongfully denied promotion to the next higher rank of Rear Admiral of Indian Navy for which he was fully qualified. The respondents acted arbitrarily and contrary to the Government's directive dated 25th August, 2000 while calculating the vacancies available and wrongly denied promotion to the petitioner to the post of Rear Admiral even though he was ranked second in merit. A proper calculation according to the said guideline showed that the two vacancies were available which proper calculation as per the aforesaid binding guideline would have ensured the promotion to the petitioner. The respondent No.1 is the Union of India through Secretary, Ministry of Defence and the respondent No.2 is the Chief of Naval Staff.

(2.) The petitioner's case is as under:- (a) The petitioner was selected as a gentleman cadet to the National Defence Academy in the year 1965. Having completed his training, he was commissioned in the Indian Navy on 1st January, 1970 and rose to the rank of Commodore and was also awarded the Vishist Sewa Medal in 2004 It is the case of the petitioner that promotions from the rank of Commodore to Rear Admiral are held twice in a year, once between Ist January to 30th June and another between Ist July to 31st December. However this is subject to availability of vacancies. It is further the case of the petitioner that in 2002 there was one vacancy for the rank of Rear Admiral, against which promotion Board No.1/2002 was convened. The petitioner was considered and found fit for promotion but since he had been placed at serial No.2 in the merit list, another officer namely Commodore Ramsay being at serial No.1 in the merit list was promoted as the Rear Admiral in 2003. On June 18, 2004 another promotion Board No.1/2004 was convened for consideration of promotion to the rank of Rear Admiral. In this petition the relevant promotion Board is No.1/2004 Though two vacancies for the rank of Rear Admiral were available as per the counter affidavit filed by respondent No.2 but selection was erroneously made on the basis that only one vacancy was available. Vital facts were suppressed from promotion Board No.1/2004 by the officials of the respondent No.2 with a view to deprive the petitioner of his promotion, despite there being a note of the respondent No.2 communicating to the respondent No.1, i.e. the Union of India that though the petitioner had a good career record and was found fit for promotion, he could not be promoted as there was no vacancy available. (b) Since the petitioner was again placed at serial No.2 in the merit list, Commodore K. Raina was promoted as Rear Admiral thus denying the promotion to the petitioner despite there being two vacancies which were to and in fact had actually arisen within a period of 12 months from the date of convening of the promotion board on 18th June, 2004 The petitioner made a statutory complaint followed by representations dated 2nd July, 2004 and 16th July, 2004 The respondents did not respond to the said statutory complaints and representations of the petitioner but ordered a Re-board(hereinafter called the `new Board') which was held on 24th August, 2004 The constituted new Board was nothing but a sham as the respondents this time included the list of candidates for the purposes of promotion from the batches of 93-A and 93-B who were admittedly much junior to the petitioner. According to the petitioner, the Board dated 18th June, 2004 had considered only one vacancy on a wrong premise although two clear vacancies were available at that time and therefore, the action of the respondents denying promotion to the petitioner is contrary to law.

(3.) The contentions of the respondents are as under:- (a) The promotion Boards are ordered by the Chief of the Naval Staff when required. No specific time slot is fixed for the scheduling of Promotion Board as per the Para 11 (b) of the NO (S) 4/99 which reads as under:- "(b) Selection to the rank of Rear Admiral and below: For promotion to the rank of Rear Admiral and below, officers of each branch will be divided into half- yearly batches depending on their seniority, i.e. Officers of 01 Jan to 30 Jun seniority forming one batch and of 01 Jul to 31 Dec seniority forming the other. The number of half-yearly batches to be considered on a particular occasion will be decided on the basis of the long-and short-term requirements of the Service and the number of vacancies likely to become available". (b) The promotion is based upon the `equitable distribution of vacancies' (Promotion factor or PF) amongst the consecutive batches. This is to ensure that there is no undue benefit to one batch due to the accrual of large number of vacancies in a particular year and thus the officers of the subsequent batch are not penalized by allotment of large number of vacancies to the previous batch. This policy of `equitable distribution of vacancies' has been accepted by the Government. (c) The petitioner belongs to Select List Year (SLY) 1989. The Promotion Board 1A held on 19 Apr 02 considered four First Look Commodores of Select List Year-1989 (including the petitioner) and Select List Year-1990A (18 months batch), in addition to five review cases, for promotion to Rear Admiral, against only one vacancy available during 2002. On comparative merit, the petitioner was rejected and was graded R1 (to be reviewed next time). Since there was no vacancy in 2003, there was no Board. (d) The promotion Board dated 18th June, 2004 considered only one vacancy due to the retirement of Vice Admiral Barin Ghose on 30th September, 2004 The second vacancy arising due to retirement of Rear Admiral Rao was not considered. (e) The Promotion Board dated 18th June, 2004 listed Commodore Raina who stood at Sl. No.1 in the merit list for promotion. Since the petitioner was lower in merit list compared to Commodore Raina, he was again rejected and was graded R2 (to be reviewed next time, if still eligible) (f) Pursuant to the referal of the Ministry of Defence dated 17th August, 2004 a fresh Promotion Board was held on 24th August, 2004 which considered two additional vacancies arising in 2005, with a view to ensuring equitable distribution of promotion factor, as per NO (S) 4/99 five First Look Officers of next 18 months batch (Select List Years 1993 and 1994A) were also considered, in addition to officers considered by Promotion Board 1-A/04 held on 18th June 2004 including the petitioner, making the total number of officers considered as nine against the 3 vacancies. The Board after examining the records of all the nine officers, recommended select listing of three officers, as per their order of merit for promotion to the rank of Rear Admiral (X/Log) against the three vacancies. Commodore Dubash was again rejected for promotion and was graded R2, as he was figuring lower in the order of merit as compared to the other three select listed candidates. (g) In the interests of natural justice and in accordance with time tested Flag Rank promotion policies, the endeavour of the respondents has been that the current batch (2004) should get one vacancy to provide a promotion factor of 50% and the next batch should get two retirement vacancies of 2005, to provide an equitable promotion factor of 40%. (h) The respondent No.2 received and analyzed petitioner's representations dated 2nd July, 2004 and 16th July, 2004 and forwarded its response of the same to the Ministry of Defence for further consideration or communication to the petitioner. The third representation dated 3rd August, 2004 was unsuccessfully preferred by the petitioner directly to the Ministry of Defence. (i) That the respondent No. 2 did not communicate to the respondent No. 1 that the petitioner was found fit for promotion. In fact the Promotion Board held on 18th June, 2004 had rejected the petitioner for promotion and grade him R2 (to be reviewed).