BRIG H S NANDA Vs. UNION OF INDIA

JUDGEMENT

(1.) This order will dispose of Civil Writ Petition Nos. 14230 of 1992 and 16898 of 1992, both of which have been filed by Brig. H.S. Nanda. Whereas the claim of petitioner in Civil Writ Petition No. 14230 of 1992 is that the respondents be commanded to promote him to the rank of Major General w.e.f. August 1, 1992, the date from which a vacancy existed or to promote him w.e.f. October 1, 1992 when an officer junior to him was promoted to the aforesaid rank, in Civil Writ Petition 16892 of 1992 which was filed during the pendency of the first petition, he seeks quashing of show-cause notice issued to him which pertains to the same allegations which had earlier been considered and disposed of by a competent authority and have been reopened without there being any power under the Statute to do so. Before the points canvassed by Mr. Randhawa, learned counsel appearing on behalf of petitioner are noticed, discussed and answered, the facts of the case need a necessary mention.

(2.) Petitioner was commissioned into the Army Service Corps of the Indian Army in the rank of 2nd Lieutenant in the year 1962. He pleads that having regard to his high career profile, he did not face any difficulty in getting his name approved for promotion to various ranks in due course of his service career. Promotion in the Armed Forces upto the rank of Major is a time scale promotion and granted on completion of particular years of service. However, promotion from the rank of Major to that of Lt. Colonel is done on the basis of time scale as well as by selection. The officers who are not found suitable for promotion to the rank of Lt. Colonel on the basis of selection done by the Board constituted by Chief of Army Staff, can be promoted to the rank of Lt. Colonel on time scale basis on completion of 21 years of service. The promotion beyond the rank of Lt. Colonel is always done by selection by a board constituted under the orders of the Chief of Army Staff. Petitioner pleads that his name was considered for promotion in due course of his service career. Having regard to the performance and the nature of reports and various other inputs required in this regard, he did not face any difficulty in getting approval for promotion to the rank of Lt. Colonel. Similarly he was considered and approved for promotion to the rank of Colonel followed by his promotion to the rank of Brigadier. In the rank of Brigadier, he performed admirably and held various coveted appointments. Thus, having regard to his performance, his name was considered for promotion to the rank of Major General in 1992. He was informed through letter dated May 28, 1992 that his name had been approved for promotion to the rank of Acting Major General by the Central Government. A copy of the letter aforesaid has been placed on records as Annexure P-1. Earlier, his name was deferred for consideration for want of certain reports. Meanwhile, the officers of his batch were considered and approved for promotion. However, once his name was considered in April, 1992, petitioner also did not face any diffculty in getting approval for promotion. He was expecting that he would be promoted especially so when a vacancy in the Army Service Corps was in existence since August, 1992 but when he was not receiving his due posting order in the promoted rank, he made informal and formal enquiries to know the reasons, but was not given any justifiable reason to deny him promotion. Since, however, there was some enquiry against him in the past, it remained lingering in his mind that the same may not be a reason for his non-promotion to the rank of Major General. Petitioner has detailed the enquiry that was made against him on different counts and results thereof but it would be more appropriate to deal with the same while dealing with the facts of second case as in the present petition the only prayer of petitioner is that once he was exonerated of all the charges that were levelled against him in appropriate proceedings and by an appropriate authority and when there was nothing against him as also his name had since been approved for promotion to the post of Major General, there was no reason for the respondents not to have promoted him and in the wake of the aforesaid facts and circumstances, Mr. Randhawa contends that the petitioner could not be denied promotion particularly when his name had been approved for the same and there was nothing pending against him on the two crucial dates. The post being vacant w.e.f. August 1, 1992, the action of the Army Authorities in not promoting the petitioner would be discriminatory, thus, offending Article 14 of the Constitution of India, contends the learned counsel.

(3.) Notice of motion in this case was issued on October 29, 1992 and the writ, after two adjournments, was admitted on March 12, 1993. Second writ (C.W.P. No. 16898 of 1992) was filed on December 17, 1992 when notice of earlier petition had already been issued. As mentioned above, prayer of the petitioner in this writ is to quash the show-cause notice issued to him which pertains to the same very allegations which were earlier disposed of by a competent authority. It is pleaded that once notice in the first writ petition was served upon the respondents they resorted to illegal action in order to justify their stand in not promoting him.