BY THE TRIBUNAL (Lt Gen SUSHEEL GUPTA):
1. The applicant, Havildar Kishan Singh had filed a writ petition in the High Court of Judicature for Rajasthan at Jaipur praying for grant of promotion to the rank of Naib Subedar and other consequential benefits including seniority, pay and allowances, which may have accrued to him from the date his juniors were promoted. The writ petition was transferred under Sec.34 of the Armed Forces Tribunal Act, 2007 for adjudication by this Tribunal and admitted as Transferred Application No.108 of 2010.
2. Brief facts of the case are, that the applicant was enrolled in the Corps of Military Police on 31.5.1978, was promoted as Naik on 9.9.1989 and further promoted as Havaldar on 1.4.1993. Whilst serving Provost Unit at Jaipur, the applicants Annual Confidential Report (ACR) for the year 2000 was initiated and reviewed, in which, he was awarded an âAbove Average i.e.; 4 points by the Initiating Officer (IO) and average grading i.e.; 2 points by the Reviewing Officer (RO). The applicant was also awarded a punishment of âSevere Reprimand on 29.11.2000 by the same R.O. who had awarded him âAverage report.
3. The applicant was considered for promotion by the Departmental Promotion Committee (DPC) held on 19.3.2001 but was declared unfit due to the following reasons;-
(a) He was not meeting the ACR criteria as one of his reports was âAverage.
(b) He had been awarded punishment of âSevere Reprimand.
4. The applicant had forwarded two statutory complaints; one dated 27.12.2000 against the report of his RO for the year 2000 and other dated 28.1.2001 against the punishment of severe reprimand awarded by his Commanding Officer. Since both these complaints had not been adjudicated upon prior to DPC, he was declared unfit for promotion. Subsequently, the CR of the RO for the year 2000 and punishment of severe reprimand awarded were set aside by the competent authorities in the year 2001 based on the complaints submitted by the applicant. Thus, both the reasons because of which the applicant had not been approved by the DPC in 2001 for promotion to the rank of Naib Subedar were removed. The applicant was again considered by a DPC in January, 2002, however, by then a fresh in-put in the form of ACR for the year 2001 was also available, in which, the applicant was graded as âAverage. Thus, again, considering the report of 2001, the applicant was not approved for promotion by the DPC. Aggrieved by the denial of promotion, the applicant filed this writ petition in the High Court.
5. The applicant, in his written submission, has clearly brought out that he had been denied promotion by the DPC held in the year 2001 along with batch-mates on the ground that he did not meet the ACR criteria and had been awarded punishment of severe reprimand. Since both these factors have been addressed and he had been given redressal, therefore, he needed to have been promoted immediately along with his batch-mates and not considered by the second DPC when another in-put was also considered for his promotion. The applicant has also pointed out that since Average report of the RO and punishment awarded were expunged, the ill-facts of such endorsement is deemed to be completely washed out as if they had never formed a part of the record. Thus, a sealed cover procedure should have been adopted when a statutory complaint or an enquiry against the individual was pending at the time of DPC, which should have been reviewed on finalization of the statutory complaint. This procedure was not followed by the non-applicants and thus they denied him promotion along with his match-mates despite the fact that full redressal on both the issues had been granted to him by the competent authorities.
6. The non-applicants, in their reply, whilst agreeing with the basic facts of the case, have stated that there was no provision to hold a separate DPC once the applicant had been granted a redressal on his Statutory Complaint. Since the relief in the ACR and punishment awarded to the applicant was granted, he was considered as a fresh case by the DPC in 2002. By then, another in-put in the form of ACR for the year 2001 was also available and was considered by the DPC. Since the ACR for the year 2001 was an Average ACR, the applicant was found unfit for promotion by this DPC also.
7. We have heard Mr. R.S.Bhadauria, learned counsel for the applicant and Mr. Sanjay Pareek, learned counsel for the non-applicants assisted Col Veerendra Mohan, Officer-incharge(Legal) and Lt Col Sagar Sharma, Chief Record Officer, who has produced the Annual Confidential Reports of the applicant from the year 1996 to 2002 as also DPC proceedings conducted in respect of the applicant for promotion from Havildar to Naib Subedar in the year 2001 and 2002.
8. Learned counsel for the applicant has brought out that the applicant had been wrongfully denied his promotion as, when he was considered for promotion along with batchmates, the ACR for the year 2000 and punishment awarded came in his way for his promotion. Since both these were set aside, the final result was that, in all the five CRs which were considered by the DPC during 2001, the applicant was graded Above Average and he had no punishment awarded to him. If he had been considered along with his batch-mates, he would have been certainly approved for promotion to the rank of Naib Subedar. It is incumbent upon the non-applicants to consider the applicant afresh after the relief has been granted to him with the same in puts with which he was considered along with his batch-mates. In the instant case, by adding one more ACR before considering him for promotion, the non-applicants have unjustly denied promotion to the applicant.
9. Col Veerendra Mohan, Officer-in-Charge (Legal) whilst arguing on behalf of the non-applicants, has brought out that there was no provision to hold a separate DPC once the relief had been provided to the applicant. The applicant was considered by the next immediate DPC, which was held in the year 2002 by when, another in-put in the form of ACR for the year 2001 was available for consideration. Since the applicant was graded as Average in the ACR for the year 2001, he again did not meet the ACR criteria for promotion to the rank of Naib Subedar and hence, he was found unfit for promotion by the DPC.
10. We have examined all the relevant ACRs, and DPC proceedings in respect of the applicant held in the year 2001 and 2002 as also the relevant instructions on the subject.
11. The criteria for promotion of JCOs/NCOs has been laid down in letter No. B/33513/AG/PS 2(c) dated 10.10.1997 issued by the Adjutant General Branch, Army Headquarters, New Delhi. The ACR criteria for promotion to the rank of Naib Subedar is as follows :-
6. For promotion to the rank of Nb Ris/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 the case of short-fall rest may be in the rank of Nk.
(b) At least, three out of last five reports should be âAbove Average with a minimum of two in the rank of Dfr/Hav and remaining should be not less than âHigh Average.
(c) The individual must have a minimum of two reports on Regimental Duty or as an Instructor in an Army School of Instructions, including IMA, NDA, OTA and ACC, out of which at least one should be âAbove Average. One of the Regimental Reports should have been earned in the rank of Dfr/Hav.
(d) The individual should have been recommended for promotion in all the five reports.
The Discipline Criteria for promotion is as follows:-
3. Discipline Criteria:
(a) An individual should not have more than three red ink entries (including recordable censure in the case of a Nb Sub) during the entire service and not more than one red ink entry in the last five years; For promotion to the rank of Sub Maj, there should be no red ink entry including recordable censure in the rank of JCO.
(b) A JCO/NCO who has been convicted for an offence mentioned in Appendix âA to this letter will be permanently debarred for further promotion.
(c) A JCO who has been awarded recordable censure/Red ink entry for any offence at Appendix âB to this letter will not be eligible for further promotion for a period of next three years from the date of the Award of the recordable censure/red ink entry.
(d) An NCO who has been awarded red ink entry for any offence at Appendix âB to this letter will not be eligible for further promotion for a period of next three years from the date of Award of the red ink entry.
(e) In exceptional cases the stipulations as per sub-paras (a) to (d) above in respect of those individuals who have distinguished themselves in War or Peace may be waived by the GOC-in-C Command on the recommendation of the OIC Records.
(f) An individual will not be considered for promotion within one year of the award of red ink entry/recordable censure, as the case may be.
(g) Black ink entries awarded to JCOs/NCOs for offences at Appendix âB to this letter would not debar a JCO/an NCO from promotion.
12. From the above criteria for promotion to the rank of Naib Subedar, it is apparent that when the applicant was considered by the DPC held in the year 2001 his last five reports i.e. ACRs from 1996 to 2000 were considered by the DPC for the purpose of promotion. Whilst the ACR from 1996 to 1999 were all âAbove Average but the ACR given by the RO in the year 2000 was âAverage. Since the applicant was not meeting the ACR criteria or the Discipline criteria, he was rightfully rejected by the DPC for promotion as the statutory complaints had not been adjudicated by then.
13. Similarly, the DPC was held in the year 2002 and the reports considered were from 1997 to 2001 wherein the applicant had earned âAbove Average reports from 1997 to 2000(after expunging the ROs remarks). However, he had earned âAverage report for 2001 and thus was again rejected for promotion by the DPC.
14. The Army Headquarters letter dated 27.2.1992 and 09.3.1992 lays down the procedure for re-fixing the seniority after setting aside the ACRs. As per this policy, after setting aside of the ACRs, the JCO/NCO will be assessed afresh by the DPC on the basis of promotion criteria. In case, found fit for promotion, they will be given notional seniority with effect from the date when their colleagues were promoted to the higher rank. Thus, it is clear that once the relevant ACR because of which the applicant had been denied promotion was set aside, he should have been considered afresh with the same in-put and if found fit, he would be entitled to notional seniority with effect from the date his colleagues were promoted to the higher rank.
15. Apparently, the non-applicants did not hold fresh DPC immediately after the relief had been granted to the applicant and waited for one full year and considered him for promotion in the next DPC-2002 with fresh in puts whereas, as per instructions, he should have been considered with the same inputs with which his batch-mates had been considered once the relief had been granted to him. Since in the report of 2000, the ROs assessment which was âAverageâ, had been set aside the ACR still remained valid as an âAbove Average ACR. Thus, he had five âAbove Average ACRs from 1996 to 2000, which should have been considered by the DPC While considering him as a fresh case for promotion to the rank of Naib Subedar with his batch-mates. Apparently, they did not do so and considered him for promotion with fresh in-puts, which was not as per laid down instructions. Thus, the applicant was denied his right to promotion.
16. With the above observations, this application is allowed. The applicant be considered as promoted notionally to the rank of Naib Subedar from the date when his immediate juniors were promoted and be given all consequential benefits. There shall be no order as to costs.