R SAINI Vs. UNION OF INDIA

JUDGEMENT

(1.) Present petition has been instituted by Dr. 10305 N Lt. Col. R. Saini canvassing the validity of the impugned orders dated 20.12.2000 bearing No. 01098/SB (M)/No. 3/2000/DGAFMS/Denta-1 Annexure-3 to the petition. The reliefs sought are to quash the aforestated impugned orders by a writ of certiorari and to command the respondents to consider the case of the petitioner for promotion to the rank of Colonel discounting the punishment inflicted on him in the year 1983 by a writ of mandamus.

(2.) Sequential details of the case are that the petitioner was commissioned to Army Dental Corps (A.D.C.) on December 21, 1977. As captain in the A.D.C., the petitioner was tried by General Court-martial and the guilt of outraging the modesty of one Miss P. daughter of a Sqn. Ldr. in the family ward of Military Hospital, Jodhpur was brought home to him and accordingly, the General Court-martial commended forfeiture of 20 months' service for the purpose of promotion and punishment of 'severe reprimand'. The finding and sentence of the Court Martial received approbation of General Officer Commanding-in-Chief on February 8, 1985 and the sentence visited upon the petitioner was promulgated on 27.2.1985 in accordance with the provisions of the Army Act, 1950 and the rules made thereunder.

(3.) Though the petitioner was visited with the penalties as aforestated while he was holding the rank of Captain, yet he earned promotion to the rank of Major with effect from July, 1986 and thereafter, he was granted next promotion to the rank of Lt. Colonel on 21.8.1994 and was considered in his turn for promotion to the post of Colonel by the Selection Board (MD) No. 3 on 30.8.2000. Time scale promotion to the rank of Lt. Colonel in Army Dental Corps., it brooks no dispute, falls due after completion of 16 years of reckonable commissioned service "provided that the officer is recommended for such promotion" as visualised in para 66 (e) of the Defence Services Regulations. However, promotion to the next higher rank, i.e., to the rank of Colonel and above, as envisaged in Regulation 67 (c), is made by "selection", "subject to the officer being found fit in all respects" and having to his/her credit the prescribed period, i.e., 21 years of reckonable commissioned service. It is not repudiated that over-all ACR average of the petitioner was 7.83. It appears that there was a tie between the petitioner and one Dr. Lt. Col. D. S. Saini who too had the same overall ACR average 7.83. The tangle of tie between the two officers was resolved by the Selection Board by "selecting the senior of the two", i.e., Lt. Col. D. S. Saini, who was graded 'B', i.e., fit for promotion in his turn and placed at merit No. 7 while the petitioner was graded 'R', i.e., 'unfit for promotion in the next higher rank at present' and placed at merit No. 8 as per the provisions of the Government Policy on promotion dated February 26, 1996. The Board's decision was submitted to the Ministry of Defence for approval of the Government. The scrutiny of the documents carried out by the Ministry of Defence, however, unfolded that there was an arithmetical error by the Initiating Officer (I. O.) in A.C.R. 1996-97 in respect of Lt. Col. D. S, Saini (Merit No. 7) which was used in the Selection Board's proceedings without correction. The correct A.C.R. average of Lt. Col. D. S. Saini was 7.82. The Ministry of Defence on the basis of the change in the A.C.R. average of Lt. Col. D. S. Saini from 7.83 to 7.82 found that his grading would change from 'B' to 'R' and that of the petitioner with A.C.R. average 7.83 who had been graded 'R' by the Selection Board, "would now be eligible for grading 'B' (fit for promotion)". The Board's proceedings were accordingly returned vide note 9 dated September 29, 2000 in file PC/18883/SB (M) No. 3/Col/ ADC/2000/DGAFMS/DG-1 (ix), dated 29.9.2000 with the request that A.C.R. average may be rechecked in the light of the above analysis and the revised recommendations/Board's proceedings be sent for consideration of MoD. The Selection Board reassembled on November 9, 2000 and notwithstanding his higher position in the order of merit, the petitioner was again graded 'R', i.e., 'unfit for promotion in the next higher rank at present' ostensibly in view of his disciplinary background, i.e., on the basis that he was visited with punishment of forfeiture of 20 months' prospective services for promotion and severe reprimand while he was holding the rank of Captain. The documents were sent to the Ministry of Defence for approval. The Ministry of Defence approved the proceeding of the Selection Board, held on August 30, 2000 and November 9, 2000 and returned the record containing relevant Dossiers vide letter dated 13.12.2000 notwithstanding the fact that earlier the petitioner was found fit for promotion by MoD and the matter was remitted to the Selection Board only for the qualified purpose of rechecking of the A.C.R. average.