SHIVANAND PRASAD Vs. CHIEF OF ARMY STAFF

JUDGEMENT

(1.) THE learned counsel appearing for the petitioner is perfectly justified in submitting that the order passed by this Court in M.P. No. 4966/89, decided on 23.9.91, has been misinterpreted by the Departmental Promotion Committee and the writ issued by this Court has not been carried out or implemented in letter and spirit to deliberately deprive the petitioner of the Court verdict. Once the reviewing officer's remark of down -grading the petitioner was held by us to be unjustified, deserving its complete obliteration, the remark made by the initiating officer should have been taken to be the existing remark in the A.C.R. of the petitioner for the year 1988. The petitioner, thus, had the requisite number of minimum 3 "above average" remarks in his A.C.Rs. for the preceding 5 years and he was fit for promotion.

(2.) AS a result of the decision of this case in favour of the petitioner, we would have issued a fresh writ in his favour, directing re -convening of second review D.P.C. for consideration of his case for promotion. In the peculiar circumstances obtaining before us, however, directing fresh review D.P.C. would entail further delay and expense and perpetuate injustice, which the petitioner has already suffered because of the unfair stand and malafide attitude adopted by the members of the D.P.C. It may be mentioned here that the petitioner has been retired from the rank of Havaldar on 30.9.89. On his promotion to the rank of Naib -Subedar, he would have served in the Army upto the age of 58 years, or for 24 years of pensionable service. The date of birth of the petitioner is 1.1.1947. On his promotion to the post of Naib Subedar, he would have served in the Army upto the year 1997. His non -promotion, therefore, to the rank of Naib Subedar has cut short his service career in the Army. On his retirement in the rank of Havaldar, he is now out of the Army and to add insult to the injury was forcibly evicted from his quarter which he was occupying, although he had made request to the Army authorities that till his case was pending before the review D.P.C. for promotion, he may be permitted to occupy the quarter on rent as admissible as per rules. On his retirement, the petitioner is not getting any salary from Sep. 1989 and he is compelled by the Army authorities to approach this Court repeatedly by way of second petition as also by way of review petition and action for contempt against the respondents. Sending back the case, therefore, now to the D.P.C. again, when we have found that the conduct of the D.P.C. is totally unfair and malicious, would be an empty formality. If a writ of the same nature, as was passed in the earlier petition - M.P. No. 4066/89 - - is passed in this petition, it is likely to be rendered futile. The settled law is that normally the Court will direct only consideration for promotion by the appropriate promoting authority and would not assume the power to promote the officer concerned. But in this peculiar case, where the Court has found that by machanisation and ingenuity a legitimate claim of an Army Officer has been frustrated, we adopt a course in this case, which appears to be unusual but seems reasonable in view of the above mentioned peculiar circumstances.

(3.) BEFORE concluding, we may observe that the action of the D.P.C. in this case is not only unfair and unjust, but highly reprehensible. We condemn the same. To avoid recurrence of such action and consequent dernoralisation of sincere and well deserving army officers, we direct that the conduct of the three members of the D.P.C. be examined by the Chief of Army Staff and the necessary corrective or disciplinary steps be taken against those erring officers. Petition allowed.