COMMODORE F H 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:-