Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 895 (JK)

Swarn Singh v. Union of India

2017-09-28

ANURAG GOPALAM THAPLIYAL, BANSI LAL BHAT

body2017
JUDGMENT : 1. That the petitioner seeks directions to the respondents to give deemed date of seniority to the petitioner placing him above five NCOs (Havaldars) who were later promoted to the rank of Naib Subedar. He also seeks the consequential and future retrial benefits. Brief facts of the case may be noticed. Petitioner was enrolled in JAKLI Regiment on 26.11.1984. On completion of basic military training he was posted to 11JAKLI Unit. He was discharged from service on 30.11.2012 on completion of 28 years and 05 days of service (including extension of service by two years) on fulfilling the terms of service. The petitioner was provided chances to pass Havildar to Naib Subedar promotion cadre. First chance was provided to him when he was detailed to attend the same cadre from 03 March 2008 to 02 April 2008. He attended the first promotion cadre but could not qualify/pass the mandatory tests and was declared failed. Petitioner was provided 2nd chance to qualify the promotion cadre conducted w.e.f. 02 Nov. 2009 to 28 Nov. 2009. This time the applicant passed the mandatory tests of the cadre and was declared passed in promotion cadre on 18 April 2010. Consequently the petitioner was promoted to the rank of Naib Subedar on 17 September, 2010. Occurrence to this effect was duly promulgated and published vide JAKLI Record office part (II) Order. However, the petitioner could not be promoted to the rank of Subedar as he was discharged from service on 30 Nov 2012 after fulfilling the terms and conditions of service including extension of service by two years in the rank of Naib Subedar. 2. It is contended on behalf of the petitioner that the cadre result was declared on 26.06.2010 i.e. after a time lapse of more than six months and five NCOs (Havildars) junior in service to the petitioner were promoted to the rank of Naib Subedar. Though, these five individuals happened to pass the promotion cadre earlier than the petitioner but the same was irrelevant and had no bearing on the seniority. It is further contended that these five individuals were still junior to the petitioner but they became senior only from the date of their promotion to the rank of Naib Subedar. Though, these five individuals happened to pass the promotion cadre earlier than the petitioner but the same was irrelevant and had no bearing on the seniority. It is further contended that these five individuals were still junior to the petitioner but they became senior only from the date of their promotion to the rank of Naib Subedar. It is further contended that the petitioner suffered irreparable loss due to arbitrary, illegal action, abuse of power and personal bias on the part of the respondent No. 6 who was the Commanding Officer. It is further contended that the delay in publishing of promotion cadre result by more than 6 months was an arbitrary action solely taken by respondent No. 6 displaying personal bias on his part as he sought to promote all the five juniors at the cost of petitioner. Respondent No. 6 is alleged to have favoured these five junior individuals resulting in immense loss to the petitioner. Per contra it is contended on behalf of respondents that the allegations of arbitrariness and personal bias are unfounded. It is pointed out that the petitioner failed in the first chance and passed the mandatory tests of the promotion cadre only in the second chance which accounted for his delayed promotion to the rank of Naib Subedar. It is further submitted that the maximum service limit for the rank of Naib Subedar is 28 years including extension of service of two years and since the petitioner was discharged from service on 30.11.2012 after fulfilling the terms of his engagement, he could not be promoted to the next higher rank which depended upon the availability of vacancy vis-a-vis date of retirement of petitioner. 3. Heard learned counsel for the parties and perused the record. 4. Admittedly the petitioner failed in the first chance and qualified for promotion to the rank of Naib Subedar only in the second chance from Havildar to Naib Subedar conducted by the unit w.e.f. 02.11.2009 to 28.11.2009. Petitioner has not been able to place any material on record to demonstrate that the respondent No. 6 who was his Commanding Officer, bore animosity against him and was personally biased. There is nothing on record to suggest that respondent No. 6 was unfair to petitioner and the promotion of five junior individuals who admittedly passed promotion cadre earlier than the petitioner was as a result of nepotism and favouritism. There is nothing on record to suggest that respondent No. 6 was unfair to petitioner and the promotion of five junior individuals who admittedly passed promotion cadre earlier than the petitioner was as a result of nepotism and favouritism. Respondents have admitted the factum of the result of Havildar to Naib Subedar promotion cadre being delayed, however, said delay is attributed to bad weather conditions creating impediment in conducting physical efficiency test and physical proficiency test. Extreme cold climatic conditions prevailing in the region where the battalion was deployed during the relevant period and the fact that the region remained snow-bound from December to March, resulting in delay in conduct of Battle Physical Efficiency Test and Physical Proficiency Test is said to have contributed to delay in publishing the result. It is further pointed out that even on 02.12.2009 three individuals senior to the petitioner, were available for promotion from the batch who passed the previous promotion cadre. It is further pointed out that the respondent No. 6 assumed the Command of 11 JAKLI on 06.11.2009 when promotion cadre was already underway and he had decided to conduct all the mandatory tests except BPET and PPT which had to be deferred due to extreme cold conditions. Moreover, the Board Members were not readily available which also delayed the declaration of result. It is pointed out that the failure of petitioner to qualify the first chance of promotion cadre delayed the promotion to the rank of Naib Subedar in due time which subsequently delayed his eligibility for his further promotion before his retirement. Respondents have demonstrated that even on 02.12.2009 three individuals, senior to the petitioner, were available for promotion from the previous batch. It is further pointed out that even if the petitioner would have been granted the rank of Naib Subedar on 01.04.2010, he would have been eligible for promotion to the rank of Subedar only on 01.02.2013. However, the petitioner would still have superannuated from service as Naib Subedar on 30.11.2012 on completion of 28 years service including extension of service by two years. Viewed from all possible angles petitioner would not have been able to lay claim to further promotion of Subedar/Subedar Major as on the date of his retirement as Naib Subedar on 30.11.2012. 5. In view of the foregoing discussion, we find no merit in the petition, the petition is accordingly dismissed. Viewed from all possible angles petitioner would not have been able to lay claim to further promotion of Subedar/Subedar Major as on the date of his retirement as Naib Subedar on 30.11.2012. 5. In view of the foregoing discussion, we find no merit in the petition, the petition is accordingly dismissed. File be consigned to record after its due completion. Petition Dismissed.