CHATUR SINGH THAPA Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ petition, the petitioner is aggrieved by his non- promotion to the rank of Subedar Major/GD in Assam Rifles and of his supersession by the respondent No. 5, who is junior to him. The factual matrix is not really in dispute. He was initially enrolled as a recruit in the Assam Rifles on 7-2-1973, was promoted to the rank of Lance Naik (GD) on 24-2-1979 and was further promoted to the rank of Naik/GD on 1-12-1980. He was again promoted to the rank of Havildar/GD on 21-10-1983, was then promoted to Naib Subedar (GD) on 1-11-1989 and was further promoted to the rank of Subedar (GD) on 1-10-1996. On 31-10-2009, the vacancy for the post of Subedar Major arose following the retirement on superannuation of Subedar Major, Shri K.M. Gurung. As a senior-most Subedar, he was allowed to officiate in the post of Subedar Major with effect from 1-11-2009. IN the meantime, the process for promoting him to the post of Subedar Major got started: he was strongly recommended by his Commandant by forwarding his case along with the relevant documents to the Directorate-General of Assam Rifles (respondent 2). He was also strongly recommended by all formation Headquarters i.e. Commander Headquarters, 7th Sector, Assam Rifles, INspector General of Headquarters and INspector General of Assam Rifles. However, much to his consternation, the respondent No. 5, who is junior to him, was promoted to the post of Subedar Major with effect from 1-11-2009 vide the impugned order. On coming to know of this development on 5-2-2009, he promptly on 8-2-2010 submitted his representation to the respondent No. 2 through proper channel. He is admittedly not only the senior-most in his battalion but also in the entire Assam Rifles. This is how this writ petition came to be filed by him.

(2.) AS the petitioner has been admittedly superseded his junior, it is necessary to find out the justification of the respondent authorities by referring to the affidavit-in-opposition filed by them, who have contested the writ petition. At the outset, they point out that a candidate for promotion to the rank of Subedar Major (General Duty) is required to meet the eligibility criteria laid down in Appendix 'B' to the ASsam Rifles Record Officer Instructions No. 4/2002 issued by the Directorate General of ASsam Rifles. According to them, though the petitioner meets most of the criteria laid down therein, he did not fulfill criteria ? of Clause 4, which stipulates that out of the last five Annual Confidential Reports, the two reports must be from Bn/ARTCandS/NSG. It is also the case of the answering respondents that one of the essential qualifications for promotion to the rank of Subedar Major is passing Army Certificate of Education-One or matriculation examination from a recognized Board of School Education. According to the answering respondents, in the year 1989, the petitioner produced a Certificate of High School Leaving Certificate Examination along with the mark sheet from the Central Board of Higher Education, Uttam Nagar, New Delhi- 110059, which, on verification from the Central Board of Secondary Education vide their letter dated 10-2-2006, was found to be issued by a fake Board. The petitioner was obviously procuring a fake matriculation certificate to secure promotion, for which a case of forgery initiated against him is pending and being finalized soon. The petitioner again produced another matriculation certificate from National Institute of Open Schooling issued in the year 1989, which is yet to be verified. It is contended by the answering respondents that the recommendation of the Departmental Promotion Committee are merely advisory in nature and not binding upon the appointing authority: the Director General of ASsam Rifles, who is the appointing authority, is not the rubber stamp of the Departmental Promotion Committee. The appointing authority, after due scrutiny of the DPC proceedings with reference to the educational qualifications, ACRs criteria, medical and discipline criteria in accordance with the standing instructions at Annexure-R/1, found the petitioner unfit for promotion to the rank of Subedar Major (General Duty). On the contrary, the respondent No. 5 fulfilled all the criteria and was accordingly promoted to that post from the date of vacancy i.e. on 1-11-2009. Thus, no interference is called for in the impugned promotion order, which is in order and does not suffer from the vice of illegality, procedural impropriety or irrationality.

(3.) IT is against the aforesaid legal principles that I propose to examine the legality of the denial of promotion to the petitioner. As per Appendix 'B' to ROI 04/2002, three out of the last five ACRs should be "Above Average" or above, while the remaining two ACRs should not be below 'High Average'. Then again, out of the last five ACRs, two must be from Bn/ARTC and S/NSG (Not applicable to GD personnel forming part of any AR team of any discipline attached to AR/Army formation]. Furthermore, he should be recommended for promotion in his last three ACRs. IT is the pleaded case of the petitioner that he fulfilled all the above criteria, and the denial of promotion to him is consequently contrary to law. On perusing the service record of the petitioner, it is quite clear that his services as Subedar were mostly utilized at No. 1, Construction Company at Assam Rifles, Laitkor from 1-4-2004 to 4-11- 2007, which resulted in a shortfall of one CR for the year 2007 for the purpose of promotion vide the statement of the case prepared by the Commandant dated 27-10-2009. Interestingly, this is the official who recommended the promotion of the petitioner. But this official also, while strongly recommending the promotion of the petitioner, has also remarked that the vacancy caused by the retirement of the incumbent on 1-11-2009 be kept pending for the duration of two months i.e. from 1-11-2009 to 1-1-2010 so as to enable him to become eligible for the promotion on 1-1-2010 by earning one requisite CR from the unit. This clearly shows that when the vacancy occurred, he was not yet fit promotion. In this connection, I have also perused the notings of the respondent authorities produced by the learned CGC. The noting dated 30-12-2009 prepared by the Lieutenant Colonel, OIC (Legal Cell) indicated that as per the promotion policy, a vacancy in the higher rank could not be kept vacant for the reason stated by the unit. The reason is found at para 7 of ROI 04/2002, which says that personnel qualified between 1st January and 31st December can be considered for promotion in the next year's DPC. According to the respondent authorities, as the petitioner would be eligible for promotion only on 1- 1-2010 by earning the required ACR from his unit, he could not be considered for the promotion and it was under the aforesaid circumstances that the private respondent, who was qualified in all respects, was promoted to the rank of Subedar Major by overlooking the case of the petitioner. These observations were apparently the basis of the impugned order of promotion. In my opinion, the view taken by the respondent authorities in denying promotion to the petitioner and, conversely, in promoting the private respondent does not suffer from the vice of illegality, irrationality or procedural improprieties warranting the inference that something has gone wrong of a nature and degree which requires the intervention of this Court.