SATYANANDA RATH Vs. UOI

JUDGEMENT

(1.) The petitioner was enrolled in the Indian Army on 14th July, 1980. He performed his duty with sincerity and to the satisfaction of all concerned. During his service, he was awarded medals and was also a recipient of a certificate of appreciation from the Commandant, Infantry School on the occasion of Infantry Day on 27.10.1999 because of his outstanding work . The petitioner was promoted to the rank of Havildar in category of Clerks. On 9th April, 2000 while the petitioner was serving at Infantry School, Mhow, his posting order was issued to 21 Bihar and he was to complete the movement by 04th May, 2000. The posting order was not implemented and the petitioner was not permitted by the respondents to move to the place of posting. During the period of May-June of that year, there was Infantry Commanders' Conference at the school and the school authorities had taken up the matter with the Army Headquarter to waive off one regimental ACR of the petitioner on 17th July, 2000. The Army Headquarter, however, directed to ensure that the petitioner was returned to his unit in time to earn the requisite ACR for promotion to the next higher rank vide their letter dated 31.7.2000. The petitioner could not, thus, earn his regimental ACR and a request was made for waiver off one regimental ACR to enable the petitioner to get his rightful promotion. The petitioner had unblemished 20 years' service record. The DPC was held in October, 2000 but the petitioner was not promoted due to lack of ACR criteria but juniors to the petitioner were promoted to the next higher rank and as such, the petitioner stood superseded. On 20.11.2000, the petitioner was relieved from Infantry School, Mhow and was allowed to join his duty at 21 Bihar and the request made through proper channels for waiving off the regimental ACR was rejected by the Army Headquarter on 29.1.2001. The petitioner preferred a statutory complaint to the competent authority on 10.4.2001 which was also rejected vide their letter dated 11.12.2001, resulting in filing of the present petition. According to the petitioner, lack of regimental ACR was for no fault of the petitioner. The respondents had not relieved the petitioner due to non-arrival of his relief and also the Conference of Infantry Commanders. The school authorities had failed to implement the posting order issued by the Army Headquarter to move the petitioner to his regiment so as to enable him to earn the regimental ACR. The career profile of the petitioner is stated to be outstanding and he has been victim by the circumstances created by the respondents. Consequently, in terms of the policy laid down by the Army Headquarter in their letter No. B/33513/AG/PS2(c) dated 18.1.1993, the petitioner was entitled to promotion and waiver off ACR criteria applicable to promotion. In his statutory complaint, the petitioner had raised all these issues but the said complaint has been rejected without proper application of mind and by a cryptic order. On these grounds, the petitioner challenges the correctness of the action of the respondents.

(2.) In the counter affidavit filed by the respondents, the facts are hardly controverted. It is not disputed that the petitioner had earned medals or awards by virtue of his deployment in different units but they were not of any gallantry/meritorious service. The petitioner is stated to have received Sainya Seva Medal with Clasp JandK, 9 years long service Medal and 50 years independence Medal. It is also not disputed that the petitioner had unblemished and meritorious service but as he did not satisfy the criteria of promotion, he could not have been promoted to the next higher rank. The petitioner was posted to Infantry School, Mhow w.e.f 5th May, 1007 on compassionate grounds at his own request on his application dated 6.12.1996 on release of one time Extra Regimental Employment vacancy. The case of the petitioner came up for consideration for promotion to the rank of Naib Subedar (Clerk) on 1.11.2000 along with his batch-mates and as per the Rules and Army instructions, only last five ACRs are required for consideration for promotion to the rank of Naib Subedar, out of which minimum three reports must be in the rank of Havildar and in case of shortfall rest may be in the rank of Nk. At least three, out of last five reports should be "above Average" and remaining should not be less than 'High Average". Out of this, two reports must be on Regimental Duty. The petitioner lacked one regimental report at the time of his consideration for promotion and did not have sufficient experience to normal unit administration which is essential for Head Clerk duties and resultantly, the petitioner was not promoted. It is also stated that the statutory complaint was examined and upon careful consideration, the same was rejected by the Chief of Army Staff being without merit. According to Army Headquarter, the petitioner was required to go to his unit in time so as to earn at least one regimental report.

(3.) It may be noticed at the very outset of discussion on the merits of the case, that the fault in non-earning of regimental ACR is not attributable to the petitioner. The petitioner was working at the Infantry School and it was for those authorities to relieve the petitioner to join 21 Bihar. However, he was retained at the Infantry School in the interest of the organization and was not relieved for a period of six months as a result of which he could not earn the regimental ACR. The request of the petitioner and the authorities of the Infantry School for waiver off the ACR, was declined by the authorities. In the entire counter affidavit, it has no-where been stated as to what ought to have been done by the petitioner which he failed to do. The petitioner was a mere Havildar and it was for the concerned administrative authorities at the Infantry School as well as at the Army Headquarter to resolve the issue timely rather than cause prejudice to the petitioner. It is not the case in the counter affidavit that the petitioner was at fault and he stayed at the Infantry School on his own accord or in a manner not expected from a member of the Force. His stay in the school is stated to be an administrative necessity. Otherwise, there was no occasion for the authorities concerned not to relieve the petitioner as per the directive of the Army Headquarter. In fact, during the pendency of this writ petition and despite the statutory complaint having been rejected, on 25th May, 2004, the respondents passed the following order:- <frm> Tele Mill : 6567 Bihar Regiment Abhilekh Karyalaya Records The Bihar Regiment Danapur Cantt - 801503 1017/I/43/RA 25 May 2004 21 BIHAR c/o 56 APO ZRO Jaipur 15 BIHAR c/o 56 APO GRANT OF NOTIONAL SENIORITY 1. Under the provisions of para 11 of AHQ letter No. B/33513/AG/PS2(c) dated 10 Oct 1997, notional seniority in respect of following JCOs Clks mentioned against each have been accorded vide Army HQs letter No A/00520/Rlx/Inf-6 (Pers) dated 24 Sep 2003 and even No of dt 07 Apr 2004 :- (a) JC-559102W Nb Sub (Clk) - 01 Nov 2000 S N Rath (21 BIHAR) (b) JC-558954Y Nb Sub (Clk) - 01 Sep 2001 Ram Pramod Singh (ZRO Jaipur) (c) JC-559103 Y Nb Sub (Clk) - 01 Sep 2002 Jaladhar Rout (15 BIHAR) 2. Part II Order for grant of notional seniority of ibid JCOs Clk is under publication and being fwd shortly. [3. Please ack. SD/- (R.K. Sharma) Major SRO For OIC Records </frm>