Col. Arun Dattaji Potele Vs. Union of India Service Through the Secretary and Others - Court Judgment

Excerpt:

Judgment:

LT Gen K P D Samanta, Member (Administrative):

1. The petitioner, Col. Arun Dattaji Potele, veteran of 1971 war in Bangladesh as a part of an Infantry Battalion (19 MARATHA LIGHT INFANTRY), a battle casualty being wounded in the said war with bullet injuries. Subsequently, he also participated in various counter insurgency operations. Considering the graveness of his battle injury, the petitioner asked for an inter-arm/service transfer that was granted. Accordingly, he changed his arm from infantry to Army Ordnance Corps (AOC).

2. The petitioner rose to the rank of Colonel but was not promoted to the next higher rank of Brigadier, that he considered as an injustice done to him with justification that have been elucidated in the contents of the said Writ Petition. The details may be re-counted as under:-

(a) The petitioner reached the rank of Lieutenant Colonel (Selection Grade) on his merit. While in the rank of Lieutenant Colonel, he was tried by a General Court Martial (GCM), but was found ‘not guilty and acquitted honourably from the charge of moral turpitude.

(b) The petitioner was approved to the rank of Colonel in 1993, but was promoted in 1995, being delayed due to finalization of the said GCM. He has re-counted his excellent service record during the period from 1995 to 1998 in the rank of Colonel. He had applied for study leave in the year 1998 for two years that was sanctioned to him.

(c) The petitioner was considered for promotion to the rank of Brigadier for the first time in May, 1998 and subsequently in May, 2000 and March, 2001 as a fresh case, first review case and final review case respectively. He was ‘deferred on all the three occasions for “Lacking Command Criteria Reports”, which amounted to “not adequately exercised” in the parlour of the Military Secretary Branch of the Army. Strangely, however, he was not communicated of the fact that he was deferred from ibid Promotion Boards by the authorities (Military Secretary Branch) during such considerations, except once in August 2001. He was sanctioned study leave in the year 1998 ( from 1st September,1998 to 2nd August, 2000) while Military Secretary , Branch was perhaps aware that the petitioner was continuously getting deferred from promotion boards on account of shortfall in criteria Command Report. The petitioner in his application claimed that he was for the first time intimated by the authorities of the fact that he was deferred due to lacking in Command Criteria in the year 2001 which was after his Final Review Board ( 3rd Promotion Board ).

3. The petitioner was surprised that he was deferred on account of lacking Command Criteria whereas he, as a “Battle Casualty”, was not required to earn any “Command Criteria Report”. The details were explained by the petitioner in his letter of 3rd October 2001 addressed to the Military Secretary Branch (C/25546L/ADP/Pers dt. 3rd October, 2001), as attached in Annexure X/8 of the petition. In the ibid communication, the petitioner has clearly quoted all relevant policy letters that provided relaxation in terms of earning Command Reports with regard to war wounded officers. Despite enjoying the concession for being a battle casualty, he even volunteered to be placed in a ‘Command Criteria appointment as deemed appropriate by the authorities.

4. The respondents had no reasonable response to justify as to why the applicant was subjected to three consecutive Boards but deferred each time for a reason like “lacking in Command Criteria Report”, which was exempted for battle casualties as per rules on the subject, admitted by the opposition.

5. This aspect was clarified by the respondents, when Lt. Col. Manish Kumar, Director, Military Secretary (Legal) from MS Branch appeared in person on 31-01-2011. He explained these issues and admitted that the authorities missed out the fact that the petitioner was a ‘Battle Casualty. He further reiterated that on account of this admitted mistake, the officer was deferred on all the three promotion Boards in the years 1998, 2000 and 2001 which was on account of a mistake by the Military Secretary Branch.

6. He further submitted that the authorities rectified their mistake and again re-considered him as a fresh case in September 2001, but he could not be empanelled due to low in comparative merit. He was subsequently given two other review Boards, once in March, 2002 and final review in September, 2002 for consideration for promotion to the rank of Brigadier. The petitioner still could not come up on comparative merit and therefore, could not be promoted. The above aspects have been conceded by the respondents in their Affidavit-in-Opposition (in short the ‘A/O) as well. They did not contest the fact that the petitioner was a battle casualty and he was thus not to be put on Command Criteria Assignment. They further admitted that insistence for Command Criteria Reports in the case of the petitioner was an erroneous decision. All mistakes were compounded because of one mistake that the Military Secretary Branch missed out the endorsement in their records classifying him as “Battle casualty”.

7. Mr SS Banerjee, the learned counsel for the petitioner, argued his case to justify his prayer to quash the rejection order for promotion to the rank of Brigadier that was communicated to him through the impugned order dated 26-12-2000. In order to strengthen his argument, the learned counsel for the petitioner has relied upon few Apex Court judgments in the case of Surinder Shukla Vs. Union of India and Others (2008) 2 SCC 649, Union of India and Others Vs. Sangram Keshari Nayak (2007) 6 SCC 704, Union of India and Another Vs. Major Bahadur Singh (2006) 1 SCC 368 and K .K. Parmar and Others Vs. H.C. of Gujarat through Registrar and Others (2006) 5 SCC 789.

8. The respondents submitted the Member Data Sheet ( in short the ‘MDS) for the No. 2 Promotion Boards where the petitioner was considered and found quite low in merit compared to those who were selected for promotion to the rank of Brigadier. While, perusing the documents, we however noted that the petitioner was considered for the promotion Board in September 2001 as a “Fresh Review” and not as a “Special Review” case. We found that his confidential Report of the year 2001 was also considered. Moreover, the fact that the petitioner was on study leave from 1998 to 2000 was not kept note of. The petitioner pointed out that though he was considered in as many as six promotion boards, but was seldom allowed to have any fresh inputs. Therefore, the Mr Banerjee, the learned counsel for the petitioner, concluded that no doubt the authorities gave him three chances and later three more chances for consideration for promotion to the rank of Brigadier, but the result was mostly a foregone conclusion since the ACR inputs were repetitive.

DECISION

9. The Petitioner, Col Arun Dattaji Potele is a war veteran, who was wounded in 1971 War. Being a battle casualty, he was allowed to change over from Infantry to Army Ordnance Corps. In AOC, he attained the rank of Colonel. He served in that rank from 1995 to 1998 and proceeded on study leave from September 1998 to August 2000. He could not, however, be promoted to Brigadier, though considered for such promotion six times from 1998 to 2002. The applicants main point of grievance emanates from the manner he was brought before these promotion boards, where on three occasions he was deferred for reasons that were not applicable to him being a war wounded officer. The applicant was ultimately intimated by the MS Branch through a communication dated 26th December 2002 (the impugned order) that he was not selected for Brigadier. The applicant, through this TA, has prayed to quash the ibid impugned order alleging various defects and unfairness in conduct of above promotion boards where he was considered.

10. We have examined the manner in which this officer was put through promotion boards for Colonel to Brigadier six times and finally rejected for such promotion (No. 2 SB held on 17-18 Sep 2002) vide Army Headquarters, MS Branch letter dated 26th December 2002, which is the impugned order that the petitioner has prayed to be quashed. While considering the main prayer of the petitioner, where he has sought to be considered afresh for promotion to Brigadier, we called for and examined all relevant papers including data sheets (MDS) presented as part of all such promotion boards from the authorities (Military Secretarys Branch). Moreover, one officer (Lt Col Manish Kumar) appeared in person to explain all technical queries with regards to the process of promotion boards that were conducted in order to consider the applicant for promotion to the rank of Brigadier. We have heard him, perused all documents, examined all facts and considered every reason, explanations and clarifications submitted by the counsels and representatives of the respondents in person and through affidavits. We have also considered the circumstances, grievances and prayers made by the petitioner including the ratio and substance of various reported decisions from the apex court as brought before us.

11. Mr SS Banerjee, the Ld. Counsel for the petitioner, emphasised on the point that the Petitioner was a Battle Casualty, being war wounded, for which he was in permanent low medical category (A-3); but this aspect was lost sight of by the authorities all through, when they considered him for promotion to the rank of Brigadier for six times from May 1998 to September 2002. They insisted for his ‘command criteria reports that he was exempted; being a battle casualty, in terms of a policy letter dated 18th May 1982 (MS Branch letter No 08974/ GOSC-in-C dated 18 May 1982, annexed with the Petition at page 54) that governs the career prospects of war wounded officers. The opposition have admitted to this fact that they missed out on the fact that he was a war wounded officer while conducting the first three promotion boards (Fresh in May 1998, First Review in May 2000 and Final Review in Mar 2001), but the error dawned on them later and they claim to have compensated him by considering him thrice again in September 2001, March 2002 and September 2002. The officer from MS Branch (Lt Col Manish Kumar) was apologetic in open court on 31st January 2011. We, however, note that no amount of apology can undo the anguish and grievance caused to a war wounded soldier, whose own Organisation, the MS Branch, forgot that he was a Battle Casualty.

12. The second issue that was brought forth by Mr. Banerjee that, despite being war wounded and thus being in low medical category, he had volunteered to be placed in a criteria command assignment, but the authorities did not do so; yet, very strangely, he was told that he lacked command reports, for which he was ‘deferred on three occasions, although the petitioner was informed only once when he was ‘deferred in March 2001, which was his final review. The opponents had no answer to it except that it was an inadvertent mistake to forget that he was a war wounded officer and all subsequent staff actions were resultant to it. The MS Branch officer also made an oral admission to this error on 31 Jan 2011.

13. We also noted that the respondents, having realised their mistake, decided to accord a fresh opportunity to the applicant and accordingly, he was put through another No.2 promotion board (Colonel to Brigadier) in September 2001, as a fresh case. This point was reiterated by the MS Branch officer while appearing in person. We, however, noticed from the perusal of documents, submitted before us by the respondents, that the applicant was not considered as per his profile as obtaining during the first ever board held in May 1998. We are of the view that a sincere way to undo the wrong would have been to hold a ‘special review board for this wounded war veteran officer with inputs as was available at the time of the May 1998 board; then compared with those who were selected. In case his merit was higher or equal to the selected officer who was lowest in merit, then he should have been promoted. The authorities have expressed no remorse to the officer for their gross error in denying him a fair and just platform to compete for promotion.

14. The petitioner has also pointed out that he was considered for subsequent chances as first and final review in March 2002 and September 2002 without any fresh ACR (Annual Confidential Report) input. It is evident to us that the authorities, even after realising their error as late as, for the first time, on 21st May 2001 (Annexure X-5 of WP), did nothing special except to put his name in the next promotion board as a fresh case. The MS Branch of Army HQ (Respondent No.3), all through, in this case, has shown reservation to comprehensively, transparently and truthfully communicate with the applicant, though they were responsible to plan his career and maintain his dossiers and records. We cannot but quote following instances to substantiate the careless attitude of Respondent No. 3, the MS Branch, that have indeed given rise to all grievances of the applicant:-

a) MS Branch letter dated 21 May 2001 (Annexure ‘X 5) addressed to the applicant was a cryptic communication, merely conveying, “You were considered as a FRESH DEFER CASE OF 1971 BATCH and you were deferred for not being AE”. They should have explained the implication of not being adequately exercised (AE) as applicable to a battle casualty or a low medical category officer. It was the responsibility of the MS Branch to plan his transfers in a manner that he would be adequately exercised as was applicable to him. Arrogance of the might of the authorities over its employees stems from such attitude.

b) Subsequent communication that was made by MS Branch to the officer on 14 September 2001 (Annexure ‘X 7) was no better. They just mentioned that the officer was not placed in criteria appointment for being low medical category with employability restrictions. Indeed self contradicting, when they in their earlier communication blamed him for not being AE, without being aware of his war wounded status. They also informed him that he would be considered by No. 2 selection board as per rules, without even elaborating as to which rule and when. Ironically, ibid letter was dated Sep 2001 and his promotion board was held in Sep 01 as well; but the MS preferred neither to divulge dates nor to explain whether he would be given the AE relaxation as due to a war wounded officer. Such attitude makes the employees lose confidence over their secretive and mighty authorities.

c) MS Branch letter dated 01 Nov 2001 (Annexure ‘X-9), communicating to the applicant that he was not selected for promotion, was again cryptic and brief that did not even explain as to why he was not selected for promotion. Was it due to comparative merit at that time or when compared with his original batch? This communication lacked basic transparency, desirable while dealing with ones own officers even in routine administration. The tone and tenor of such communication was expected to be far more dignified and laced with reasons. Remember, in this case, the officer, a war wounded veteran, was a victim of staff errors by the Organisation for three years. Least he deserved was a polite ‘sorry, ample reasons explaining why he was finally rejected and also suggesting him what he could do next; may be a compassionate re-employment offer at a place of his choice, or a personal interview by the Military Secretary, all within rules as would be applicable.

d) MS Branch letter dated 10 Jan 02, intimating the applicant that there were gaps in his ACRs in September 2000, was again strange; because the keepers of records, i.e. the MS, realised as late in Jan 02 that one of his war wounded officers, a prospective Brigadier, had gaps in his ACR of Sep 2000, while his was already put through promotion boards in March 2001 and in September 2001.

15. The next point that we would like to discuss is about grant of study leave to the applicant from 01 September 1998 to 02 August 2000. The applicant would have been well aware that he, along with his batch-mates in AOC, was being considered for promotion in 1998. In that event, how could he have applied for two years study leave in 1998? Did he have a premonition that he would not make the grade and it was thus wiser to acquire some higher studies through study leave? It was the timing of study leave (1998 to 2000) that gives rise to such observations; because he was considered for promotion thrice around that period (May 1998, May 2000 and March 2001). It is most likely that he would have got no ACRs from Sept 1998 to Aug 2000, being on study leave. It is also evident that the MS Branch went ahead with the Boards, surely for May 2000, without any additional input. Were they going through a mere formality? Notwithstanding the error of judgement by the applicant while applying for study leave, how could the MS Branch recommend such long leave knowing that the officer was in promotion zone, and had he been promoted in May 1998, his being on study leave would have come on the way to implement such promotion. Did they indeed pre-decide his fate on promotion while such leave was recommended/ sanctioned? We are also conscious of the MS Branch practice of obtaining an ‘adverse career certificate from the applicant prior to consideration of study leave mainly to protect them from being later blamed, in case the applicant lost out on any of his career opportunities on account of such study leave.

16. The Ld. Counsel for the petitioner, while bringing forth the infirmities of the promotion boards, made a point that the petitioner was an Ordnance officer, but there were no members from AOC in the said Board. The opposition explained the rules and procedures in composition and conduct of such promotion boards and we found the provisions were in consonance with rules and reasoning. Promotion boards are conducted batch-wise after clubbing various arms and services and there are policies laid down for composition, periodicities and charter of such boards. All these aspects were followed by the authorities. Grievances, if any, should be confined to the petitioner only.

The Ld Counsel for the applicant to further support his arguments cited few decisions from the Apex court. They are discussed bellow:-

a) In the case of Surinder Shukla Vs. Union of India and Others (2008) 2 SCC 649, the Honble Supreme Court held “mere fact that appellants service record appeared to be better than that of selected candidates, was not enough for promotion to the rank of Colonel, there were other relevant factors like war reports, battle awards, etc”. Going by the ratio of the ibid judgement; it was a grossly unfair for the respondents not to take note of the fact that the applicant was war wounded officer, while considering the officer for promotion to the rank of Brigadier.

b) In the case of Union of India and Others Vs. Sangram Keshari Nayak (2007) 6 SCC 704, it has been held that “Promotion is not a fundamental right but right to be considered for promotion is a fundamental right and such right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable there for.” In the instant case the, applicant officer was considered for promotion with inadequate and defective inputs, thus denying him a purposeful and meaningful consideration for promotion.

c) Placing reliance in the case of Union of India and Another vs. Major Bahadur Singh (2006) 1 SCC 368, the learned counsel for the petitioner has highlighted the necessity of communication of adverse entry and absence of parameters specified for assessment.

In the instant case there were no adverse entry, but the fact that the applicant was deferred twice in May 98 and May 2000 was not communicated to him thus to some extent violating the ratio of this decision of the Apex court.

d) Learned counsel for the petitioner, relying in the case of K .K. Parmar and Others Vs. H.C. of Gujarat through Registrar and Others (2006) 5 SCC 789 urged that due procedure for promotion by the Selection Board was not adopted.

In our opinion, this case has no application to the present case at hand as due procedure was followed in Selection Process and the petitioner was deferred only due to lacking of ‘Command Criteria Report, which was on account of an error of judgement, as conceded by the Respondent No.3.

17. We have heard the submissions and affidavits from both sides and have perused the promotion board proceedings, MDS and other documents that were put before us by the respondents and also amplified by the MS Branch officer on 31st Jan 11 while appearing in person. We have also taken note of his oral apologies in person on behalf of Respondent No.3 (MS Branch) on following issues:-

a) Despite all documentations they missed to notice that the applicant was a battle casualty, being war wounded; therefore they did not endorse such remark on the Board papers, thus keeping the promotion board members in dark on this aspect during the No. 2 promotion boards held in May 1998, May 2000 and March 2001when the applicant was considered.

b) It was an error to expect the applicant to render ‘command criteria reports that he was exempted being a battle casualty.

c) It was technically incorrect to defer the applicant in first three boards held as above.

d) It was an error not to communicate to the applicant that he was deferred, with reasons thereof, in the promotion boards held in May 98 and May 2000.

e) Admitted that while considering him as a special case in a fresh board in September 2001, he should have been considered with the profile as obtaining during the board in May 98, which was not done inadvertently. They undertook to do a promotion board once again as a special case.

18. The petition (TA-14/2010) is disposed off on contest, granting partial relief to the petitioner, with no cost to either side, with following directions to the respondents:-

a. The Military Secretary Branch shall hold a special review No. 2 promotion board for the applicant and consider him as a fresh case for promotion to Brigadier with same inputs as was in May 1998, when he was considered for the first time with his batch-mates from AOC.

b. The ibid promotion board shall be held under rules as was in vogue in May 98, with all considerations and relaxations to him as was then applicable to a war wounded officer.

c. In case he makes it in comparative merit as being equal to or higher than the merit of the last officer approved in that board of May 98; he shall be accorded a notional promotion to the rank of Brigadier with no back-wages or claim for reinstatement or change to the date of superannuation that has already been implemented.

d. In case of ‘c above, the petitioner shall be eligible to the pension of a Brigadier with effect from the day he has retired. His pension shall be re-fixed accordingly with arrears of such enhanced pension as admissible.

e. In case, however, he remains low on comparative merit and does not make it to the higher rank, the MS shall give him a personal hearing and explain the reasons in a fair, transparent and dignified manner as befitting to a war wounded veteran.

19. Let the respondents ensure compliance on the directions given above within 90 days of receipt of this order. Let a plain copy of this Order be handed over to counsels for both sides.