CWP No.4689 of 2013 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.4689 of 2013 Date of Decision:21.01.2014 Chandreshwar Shukla ....Petitioner Versus Union of India and another ...Respondents CORAM:HON'BLE Mr.JUSTICE HEMANT GUPTA HON'BLE Mr.JUSTICE FATEH DEEP SINGH Present: Mr.R.A.Sheoran, Advocate for the petitioner.
Mr.Kunal Dawar, Advocate for the respondents.
HEMANT GUPTA, J.
The challenge in the present writ petition is to order dated 4th December, 2012 passed by Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir, whereby, claim of the petitioner for promotion to the rank of Subedar Major was dismissed.
The petitioner joined Indian Army on 27th June, 1975 and retired on 30th June, 2005 after attaining age of supperannuation on completion of 30 years of service.
The petitioner was promoted as Subedar on 1.2.1998.
As per the petitioner he was considered thrice for promotion to the post of Subedar Major in the years 2001-02, 2002-03 and 2003-04 but was not promoted and instead Rajiv Lochan, junior to the petitioner, was promoted.
Initially, the petitioner filed a civil suit before the Civil Judge (Senior Division).Jalandhar on 8th April, 2008 on the Sharma Aarti 2014.01.28 17:09 I attest to the accuracy and integrity of this document CWP No.4689 of 2013 -2- ground that rule of promotion is seniority-cum-merit, therefore, the petitioner who is senior, is entitled to be promoted.
The claim of the petitioner was resisted by the respondents.
In the written statement filed by the respondent the criteria of grading for promotion to the rank of Subedar Major was disclosed.
Such criteria is as under:- “(a) Grading in confidential reports ..90 Points (b) Grading in Army Courses ...05 Points (c ) Profile in field/modified Field/ops ...05 Points service.
(d)Honours and Awards ...05 Points Total 105 Points" It is further averred that petitioner was examined thrice by the Departmental Promotion Committee for selection to the rank of Subedar Major but he could not come up in the select panel for promotion in the meetings held on 17th August, 2001, 16th/17th September, 2002 and 16th October, 2004.
The minutes of the said meetings were attached with the written statement.
After the commencement of Armed Forces Tribunal Act, 2007 the matter was transferred to the Tribunal.
The Armed Forces Tribunal declined the claim of the petitioner inter alia for the reason that the track record of the petitioner was clean and good but he did not meet the cut off marks during the three DPCs, consequently, dismissed the petition.
Learned counsel for the petitioner vehemently argued that the petitioner is senior and the rule of promotion is seniority-cum- merit and, therefore, once there is nothing adveRs.against the petitioner, he is entitled to be promoted.
Sharma Aarti 2014.01.28 17:09 I attest to the accuracy and integrity of this document CWP No.4689 of 2013 -3- Learned counsel for the petitioner has referred to the rules of promotion contained in Circular dated 10th October, 1997 Annexure P/4.
The relevant extract of the said rules is as under:- “For promotion to the rank of Ris Maj/Sub Maj:- In view of the importance job content and prestige attached to the rank of Sub Maj.
an OAP based system of selection will be followed.
The qualifying criteria for consideration by the DPC under OAP based system will be as follows:- (a) Last five reports in the rank of JCO will be counted out of which at least three reports should be 'Above Average' and remaining two 'High Average'.
(b) Two out of the last five reports should be on Regimental duty/ or as an Instructor in an Army School of Instructions including IMA, NDA, OTA and ACC one of these two reports must be 'Above Average'.
(c) The individual should have been recommended for promotion in the last five reports in the rank of JCo.(d) Merely qualifying for consideration by DPC does not entitle a Sub for promotion to the rank of Sub Maj.
Selection will be based on seniority-cum-merit depending upon the vacancies available.
See Appendix C for details.
The rules for consideration by the Departmental Promotion Committee are contained in the Appendix-C under the heading DPC-SUBEDAR MAJORS.The relevant extract of these rules is as under:- “Out of those Risaldars/Subedars who qualify for consideration by DPC, a select panel equivalent to the number of anticipated vacancies will be drawn based on the points scored by the candidates in accordance with the procedure laid down vide paragraphs 2 to 6 of this appendix to short-list the candidates.
Risaldars/Subedars who form part of such select panel will only be entitled to promotion.
The promotions of candidates out of this panel will be made strictly on the basis of the original seniority of candidates included in this select panel unless the DPC, if at all recommends, an out of turn promotion on exceptionally justifiable grounds.
However, for Armd Corps, Mech.
Irf.
and Inf.
Battalion/ Sharma Aarti 2014.01.28 17:09 I attest to the accuracy and integrity of this document CWP No.4689 of 2013 -4- Regt.
Sub.
Maj, senior most Subedar of that particular unit will be promoted irrespective of his overall seniority.”
.
A perusal of rule of promotion shows the criteria for promotion and also the qualifying criteria for consideration by the DPC is under overall performance based system.
The select list has to be prepared as per the criteria laid down in the Circular dated 10th October, 1997 i.e.on the basis of last five reports.
Even if, one has good reports, which the petitioner has, the merits of the candidates falling within zone of consideration is to be determined.
Once a candidate crosses the benchmark, the senior most Subedar has to be promoted irrespective of his overall seniority.
The petitioner was within zone of consideration and his overall performance was assessed in terms of Para 8 of Circular dated 10th October, 1997.
But in proceedings before the DPC, the petitioner could not make it to the select list having secured 78.92 marks as against 88.78 marks assigned to Rajiv Lochan.
It is on the basis of assignment of marks by the DPC on the basis of criteria mentioned above, the petitioner could not make it to the select list for promotion to the post of Subedar Major.
Since the petitioner has not crossed the benchmark in three Departmental Promotion Committee's meetings, the petitioner cannot claim promotion on the basis of seniority.
It may be further noticed that Courts including Armed Forces Tribunal examines the decision making process and not the decision itself.
Since the decision making process is based upon instructions contained in Circular dated 10th October, 1997 therefore, we do not find that such process is illegal or arbitrary Sharma Aarti 2014.01.28 17:09 I attest to the accuracy and integrity of this document CWP No.4689 of 2013 -5- which may warrant interference.
Consequently, the present writ petition stands dismissed.
(HEMANT GUPTA) JUDGE2101.2014 (FATEH DEEP SINGH) aarti JUDGE Sharma Aarti 2014.01.28 17:09 I attest to the accuracy and integrity of this document