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2006 DIGILAW 2163 (PNJ)

Raghbir Singh v. Union of India

2006-05-16

M.M.KUMAR, M.M.S.BEDI

body2006
JUDGMENT M.M. KUMAR, J. 1. This petition filed under Article 226 of the Constitution prays for quashing order dated 19.2.2005 (P- 8) superseding the petitioner for promotion to the next higher rank of Naib Subedar on the ground that he lacked the ACR criteria. It has further been prayed that direction be issued to the respondents to re-assess his ACR for the year 2000 (1999- 2000) based on record and recall the petitioner to rejoin the service and to consider him for promotion to the rank of Naib Subedar from 1.2.2004 when persons junior to him were promoted. A further direction has been sought to the effect that consequential benefits including pension in the rank of Naib Subedar be given to him after his promotion. 2. The petitioner was enrolled in the Indian Army in Grenadier Regiment on 13.11.1980. He earned medals, decorations including Special Service Medals. A total of seven times the petitioner had rendered the war services showing theaters of operation. The claim of the petitioner is that in February, 2004 persons junior to him have been promoted to the post of Naib Subedar without considering his meritorious claim for promotion. On 30.11.2004, he has been discharged from Army which has resulted in cutting short of his period of service by four years. On 15.1.2005, the petitioner served a legal notice through his counsel. Respondent No. 4 replied to the legal notice by rejecting the claim of the petitioner for promotion to the post of Naib Subedar on the ground that he did not fulfill the ACR criteria. It is claimed that the ACRs of the petitioner have been down graded and in any case he fulfills the criteria. 3. In his written statement filed by respondent No. 4, the stand taken is that the petitioner has superannuated on 1.12.2004. With regard to promotion, it has been pointed out that the petitioner was eligible for promotion as Naib Subedar on 1.2.2004 but he could not be promoted due to lack of ACR criteria. The criteria for promotion is given in Section 9(P-4), which reads as under :- “380. For Promotion to the Rank of Nb. Sub. (a) Only last five reports will be considered. Out of which minimum three reports must be in the rank of Hav. and in case of shortfall rest may be in the rank of Nk. The criteria for promotion is given in Section 9(P-4), which reads as under :- “380. For Promotion to the Rank of Nb. Sub. (a) Only last five reports will be considered. Out of which minimum three reports must be in the rank of Hav. and in case of shortfall rest may be in the rank of Nk. (b) Atleast three out of last five should be ‘Above Average’ with a minimum of two in the rank of Hav. and remaining should not be less than ‘High Average’. (c) The individual must have a min. of two reports on Regtl. Duty or as an Instructor in an Army School or Instrs. Incl. IMA, NDA, OTA and ACC, out of which at least one should be Above Average. One of the Regtl. Reports should have been earned in the rank of Hav. (d) The individual should have been recommended for promotion in all the five report. (e) Exception. For promotion of the Directly Enrolled Havs. to the rank of Nb. Sub - Four reports in the rank of Hav. are mandatory out of which two should be ‘Above Average’ and no report should be lower than ‘High Average’. One report should be on Regtl. duty or as an instructor in an Army School of Instructions inclusion IMA, NDA, OTA and ACC.” 4. The ACR of the petitioner for the last years, has been disclosed in the written statement viz. : i] 2000 - Average ii] 2001 - High Average iii] 2002 - Above Average iv] 2003 - Above Average v] 2004 - Above Average 5. It is claimed that the petitioner did not fulfill the required mandatory provisions of having at least 3 out of last 5 years report as ‘Above Average’ and remaining were not to be less than ‘High Average’. The report of the petitioner for the year 2000 is ‘Average’ and, therefore, he could not be promoted. Accordingly, he was superannuated on 1.12.2004. 6. Mr. R.S. Panghal, learned counsel for the petitioner has argued that there is requirement of communicating even the ‘Average Report’ to the officer as per instructions dated 19.2.2002 (P-3). According to para 44 of the instructions, average grading adversely affecting promotion prospects of a JCO/NCO would be required to be communicated. Accordingly, he was superannuated on 1.12.2004. 6. Mr. R.S. Panghal, learned counsel for the petitioner has argued that there is requirement of communicating even the ‘Average Report’ to the officer as per instructions dated 19.2.2002 (P-3). According to para 44 of the instructions, average grading adversely affecting promotion prospects of a JCO/NCO would be required to be communicated. Learned counsel has also drawn our attention to the averment made in para 11 of the petition and argued that even an un-communicated average report cannot be taken into consideration for denying promotion to the petitioner. 7. Mrs. Daya Chaudhary, learned Assistant Solicitor General of India, has however pointed out that the average report is not required to be communicated, as is evident from the averments made in para 11 of the written statement filed by respondent No. 4. According to the learned counsel, the instructions dated 19.2.2002 (P-3) would not come to the rescue of the petitioner as these instructions would not apply to the average report earned by the petitioner in the year 2000. She has also pointed out that the petitioner fail to fulfill the primary criteria of ACR as per para 380 of the promotion policy (P-4). Therefore, no fault can be found with the order dated 19.2.2005 (P-8) declining the request made by the counsel for the petitioner to consider his case for promotion on the post of Naib Subedar. 8. We have thoughtfully considered the submissions made by the learned counsel for the parties and are of the view that this petition lacks merit and is, thus, liable to be dismissed. The right of the petitioner for promotion to the post of Naib Subedar has been admitted. It has also been conceded that according to the seniority, the case of the petitioner was considered and he was not able to answer the criteria of ACR on account of defect in his ACR for the last five years. The report for the year 2000 has been graded as average whereas the requirement of the promotion policy as per para 380 is that at least three out of last five years reports should be above average and remaining should not be less than high average. The report for the year 2000 has been graded as average whereas the requirement of the promotion policy as per para 380 is that at least three out of last five years reports should be above average and remaining should not be less than high average. However, in the case of the petitioner his report of the year 2000 is average and, thus, he fails to answer the criteria of ACR as indicated in para 380 of the promotion policy (P-4). We are further of the view that ordinarily average reports are not required to be communicated. They are not used against the officer while considering his case either for promotion or granting him proficiency step-up or allowing him crossing of efficiency bar. However, the respondents have issued instructions dated 1.2.2002 (P-3) which reveals that average report has to be communicated. Para 44 and 49 of the those instructions are extracted below for facility of reference :- Copy of Letter No. 1/2002/MP, dated 19.02.2002. XXX XXX XXX XXX XXX XXX XXX XXX XXX Communication of ‘Average Grading’. 44. Average assessment in any personnel quality or demonstrated performance or in overall grading is not an adverse grading, thus need no justification in the pen picture. However, since ‘Average’ grading adversely affects promotion prospects of a JCO/NCO including grant of honorary commission/rank, it will be communicated. However, where a Ratee has though been graded ‘Average’ but “Not recommended” for promotion, the same will be justified in the pen picture by the Reporting Officer(s) and the grading including pen picture will be communicated to the Ratee.” “ 49. Grading Marks. Outstanding - 9 Above Average - 8 or 7 High Average - 6 or 5 Average - 4 Low. - 3 or 2.” 9. According to the aforementioned directive, average report which is likely to affect an officer adversely in promotional prospects, is also required to be intimated. However, the decision has been taken on 19.2.2002 and, therefore, it would not be retrospective in its operation so as to require the respondents to communicate the average report of all the officers of all the periods prior to 2002. Such an interpretation would result into impossible situation which we cannot concur. It is well settled that such instructions are prospective in nature and effect. Therefore, communication of average report recorded in the year 2000 was not mandatory. Such an interpretation would result into impossible situation which we cannot concur. It is well settled that such instructions are prospective in nature and effect. Therefore, communication of average report recorded in the year 2000 was not mandatory. Accordingly, we hold that average report has been rightly taken into consideration while considering the case of the petitioner for promotion. The argument raised to the contrary by the learned counsel for the petitioner is liable to be rejected. 10. For the reasons aforementioned, this petition fails and the same is dismissed.