Ex Sub Maj Prem Nath Soni vs.union of India and Ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/1202994
CourtDelhi High Court
Decided OnJan-24-2017
AppellantEx Sub Maj Prem Nath Soni
RespondentUnion of India and Ors
Excerpt:
* in the high court of delhi at new delhi date of decision:24. 01.2017 + w.p.(c) 7677/2013 ex sub maj prem nath soni ........ petitioner through: versus... petitioner in person. union of india and ors. ........ respondents through: mr. nitish negi for mr. ankur chibber, advocate. coram: hon'ble ms. justice indira banerjee hon'ble mr. justice anil kumar chawla judgment indira banerjee, j1 in this writ petition, the petitioner has challenged an order dated 08/04/2013 passed by the armed forces tribunal, dismissing the application being oa no.45/ 2012 filed by the petitioner, seeking a direction on the respondents to inter alia grant the petitioner honorary commission taking into consideration and properly awarding points to the petitioner, for his achievements, medals, etc, wp(c). 7677/2013 1 2. according to the petitioner, the petitioner was enrolled in the army as sepoy on 02.02.1980 and retired from service on 30.11.2012. the petitioner contends that by dint of his hard work and commendable annual confidential reports, the petitioner was promoted subedar major, which is the highest rank to which a sepoy could be promoted.3. the petitioner contends that, as per paragraph 177 and 184 of the army regulations, 1987, all subedar majors are considered for grant of honorary commission in the last year of their service, on independence day and on republic day.4. according to the petitioner, having regard to his service profile, he ought to have been granted honorary commission on republic day in 2012. the petitioner contends that he has wrongfully not been awarded marks for achievements in the form of medals, and also for the russian language interpreter course that he had undergone at the school of foreign languages under the ministry of defence in new delhi.5. the petitioner also contends that the respondents change d the policy regarding awarding of points on 26.05.2009. the petitioner contends that the said new policy cannot have retrospective effect to deprive jcos of the benefit of wp(c). 7677/2013 2 medals awards etc received by them and / or courses completed by them prior to the change of policy.6. according to the petitioner, when he came to know that his name had not been published in the list of personnel who had been granted honorary commission in august 2012, he sought information under the right to information act, regarding the points given to him and the cut-off points for grant of honorary commission, but the information was not supplied to him.7. the petitioner has stated that other subedar majors, with inferior service profile compared to the petitioner were awarded honorary rank of lieutenant and honorary rank of captain on 26th january 2012 and on 15th august, 2012.8. the... respondents contend that the case of the petitioner was duly considered in accordance with law, but the petitioner did not qualify. it is the case of the respondents that for grant of honorary commission, credit marks are awarded to subedar majors who complete a course with distinction from an „a‟ category establishment.9. the petitioner has completed the russian language interpreter course with distinction from the school of languages under the ministry of defence. however, the school of languages is not a category „a‟ establishment. wp(c). 7677/2013 3 10. by the impugned judgment and order dated 08/04/2013, the learned tribunal declined the prayers sought by the petitioner. the learned tribunal only directed the respondents to consider if the school of foreign languages under the ministry of defence could be treated as category “a” establishment for the grant of points for grant of honorary rank/commission.11. the petitioner submitted that the petitioner who had been appointed as sepoy clerk on 02/02/1980, had, due to his hard work, dedication to duty and excellent performance, been promoted subedar major, which is the highest rank to which a sepoy could be promoted.12. it was argued that the petitioner had rendered 33 years of distinguished service, with a good service record. he had served in high altitude areas, counter insurgency areas and field areas. he had done two army courses and had been awarded above average grading in his annual confidential reports and had also been commended by the chief of army staff and vice chief of army staff.13. the petitioner argued that his name was considered for grant of honorary commission on 26/01/2012 and on 15/08/2012, but was rejected for extraneous and irrelevant reasons. the non-statutory wp(c). 7677/2013 4 complaint filed by the petitioner was decided belatedly after the petitioner retired from service on 30th november 2012.14. it was argued that the application of the petitioner was disposed of by the learned tribunal by its impugned order dated 08/04/2013, without appreciating the legal nuances of the case and without adverting to the judgment of the jaipur bench of the armed forces tribunal. it is, however, not for this court exercising jurisdiction under articles 226 and 227 of the constitution of india to sit in appeal over decisions taken by tribunals. there was no such procedural infirmity in arriving at the aforesaid decision, that calls for intervention of this court, exercising its extra ordinary writ jurisdiction.15. the petitioner argued that the learned tribunal did not examine the reason why the full-time russian language interpreter course undertaken by the petitioner was not given weightage for grant of honorary commission. instead of deciding the issue, the learned tribunal asked the respondents to decide whether the school of foreign languages, ministry of defence could be included as category “a” establishment, which the respondents have not done as yet.16. the categorization of establishments is a policy decision with which courts and tribunals do not generally interfere. the wp(c). 7677/2013 5 petitioner has not been able to discharge his onus of making out a case for interference with the policy decision by the learned tribunal or by this court.17. as argued, the right to be fairly considered for career progression is a fundamental right under article 16 read with article 14 of the constitution of india. however, there are no materials to hold that the petitioner had been denied fair consideration.18. counsel strenuously argued that the petitioner had done the full- time russian language interpreter course from the school of foreign languages of the ministry of defence as an army sponsored candidate from july 1986 to may 1988. at that time, it was the policy that the russian language interpreter course from the school of foreign languages as an army sponsored candidate was to be given weightage for grant of honorary commission, as stated in army headquarters letter dated 19/03/2003. the letter dated 26th of may 2009 of army headquarters, whereby, there has been a change in policy, cannot be given retrospective effect. the petitioner, however became due for consideration for grant of honorary commission in 2012 and the petitioner‟s case was considered in 2012. furthermore the petitioner has not given the instance of a single subedar major, who has been awarded honorary commission after being given credit marks for an interpreter‟s course from the school of wp(c). 7677/2013 6 languages or an interpreter‟s or any other course from any other institution which is not a category „a‟ establishment.19. it appears that army headquarters issued another letter on 24th of february 2009 giving a list of category “a” establishments. according to the petitioner, the respondents, as also the learned tribunal construed the said letter dated 24/02/2009 to amend paragraph 9 of the yardstick to the effect that only army courses done from category “a” establishments as given in the letter dated 24/02/2009 would be given weightage.20. it was argued that the school of foreign languages from which the petitioner had passed the russian language interpreter course is an institute of the ministry of defence like the national defence college, which is also not “a” category establishment. there was no reason not to award points for the russian language interpreters course undertaken at the school of foreign languages. unfortunately the decision regarding categorization of institutions as category „a‟ institutions is a policy decision, which is not interfered with. this court, exercising jurisdiction under article 226 of the constitution of india, does not sit in appeal over policy decisions.21. it was also argued, and rightly, that personal assistants to corps commanders and above are considered for honorary commission. wp(c). 7677/2013 7 the petitioner had performed the duty of personal assistant to the director general of eme corps from 02.11.2006 till 31.12.2007. the director-general is the senior most lieutenant-general and the petitioner is therefore entitled to one mark.22. as per the policy guidelines of the respondents, the school of languages under the ministry of defence is not considered a category “a” establishment for the purpose of computation of points for grant of honorary commission. the petitioner was, therefore not entitled to points for the course in question.23. the tribunal and/or the writ court does not sit in appeal over decisions not to grant honorary commission, based on policy guidelines. the onus was on the petitioner to demonstrate that the respondents acted illegally in not awarding points for courses undertaken at the school of languages. the petitioner has also not been able to demonstrate that the courses conducted at the school of languages are identical in every respect to the courses conducted at establishments which have been categorised “a”.24. the writ petition is, therefore, dismissed. indira banerjee, j anil kumar chawla, j january 24, 2017 wp(c). 7677/2013 8
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:

24. 01.2017 + W.P.(C) 7677/2013 EX SUB MAJ PREM NATH SONI ........ Petitioner

Through: versus... Petitioner

in person. UNION OF INDIA AND ORS. ........ RESPONDENTS

Through: Mr. Nitish Negi for Mr. Ankur Chibber, Advocate. CORAM: HON'BLE MS. JUSTICE INDIRA BANERJEE HON'BLE MR. JUSTICE ANIL KUMAR CHAWLA JUDGMENT INDIRA BANERJEE, J1 In this writ petition, the petitioner has challenged an order dated 08/04/2013 passed by the Armed Forces Tribunal, dismissing the application being OA No.45/ 2012 filed by the petitioner, seeking a direction on the respondents to inter alia grant the petitioner Honorary Commission taking into consideration and properly awarding points to the petitioner, for his achievements, medals, etc, WP(C). 7677/2013 1 2. According to the petitioner, the petitioner was enrolled in the Army as Sepoy on 02.02.1980 and retired from service on 30.11.

2012. The petitioner contends that by dint of his hard work and commendable Annual Confidential Reports, the petitioner was promoted Subedar major, which is the highest rank to which a sepoy could be promoted.

3. The petitioner contends that, as per Paragraph 177 and 184 of the Army Regulations, 1987, all Subedar majors are considered for grant of Honorary Commission in the last year of their service, on Independence Day and on Republic Day.

4. According to the petitioner, having regard to his service profile, he ought to have been granted Honorary Commission on Republic Day in 2012. The petitioner contends that he has wrongfully not been awarded marks for achievements in the form of medals, and also for the Russian language Interpreter course that he had undergone at the School of Foreign Languages under the Ministry of Defence in New Delhi.

5. The petitioner also contends that the respondents change d the policy regarding awarding of points on 26.05.2009. The petitioner contends that the said new policy cannot have retrospective effect to deprive JCOs of the benefit of WP(C). 7677/2013 2 medals awards etc received by them and / or courses completed by them prior to the change of policy.

6. According to the petitioner, when he came to know that his name had not been published in the list of personnel who had been granted Honorary Commission in August 2012, he sought information under the Right to Information Act, regarding the points given to him and the cut-off points for grant of Honorary Commission, but the information was not supplied to him.

7. The petitioner has stated that other Subedar Majors, with inferior service profile compared to the petitioner were awarded honorary rank of Lieutenant and honorary rank of Captain on 26th January 2012 and on 15th August, 2012.

8. The... RESPONDENTS

contend that the case of the petitioner was duly considered in accordance with law, but the petitioner did not qualify. It is the case of the respondents that for grant of Honorary Commission, credit marks are awarded to Subedar Majors who complete a course with distinction from an „A‟ category establishment.

9. The petitioner has completed the Russian Language Interpreter Course with distinction from the School of Languages under the Ministry of Defence. However, the School of Languages is not a Category „A‟ establishment. WP(C). 7677/2013 3 10. By the impugned judgment and order dated 08/04/2013, the learned Tribunal declined the prayers sought by the petitioner. The learned Tribunal only directed the respondents to consider if the School of Foreign Languages under the Ministry of Defence could be treated as category “A” establishment for the grant of points for grant of honorary rank/commission.

11. The petitioner submitted that the petitioner who had been appointed as Sepoy Clerk on 02/02/1980, had, due to his hard work, dedication to duty and excellent performance, been promoted Subedar Major, which is the highest rank to which a sepoy could be promoted.

12. It was argued that the petitioner had rendered 33 years of distinguished service, with a good service record. He had served in high altitude areas, counter insurgency areas and field areas. He had done two army courses and had been awarded above average grading in his Annual Confidential Reports and had also been commended by the Chief of Army staff and Vice Chief of Army staff.

13. The petitioner argued that his name was considered for grant of Honorary Commission on 26/01/2012 and on 15/08/2012, but was rejected for extraneous and irrelevant reasons. The non-statutory WP(C). 7677/2013 4 complaint filed by the petitioner was decided belatedly after the petitioner retired from service on 30th November 2012.

14. It was argued that the application of the petitioner was disposed of by the learned Tribunal by its impugned order dated 08/04/2013, without appreciating the legal nuances of the case and without adverting to the judgment of the Jaipur bench of the Armed Forces Tribunal. It is, however, not for this Court exercising jurisdiction under Articles 226 and 227 of the Constitution of India to sit in appeal over decisions taken by Tribunals. There was no such procedural infirmity in arriving at the aforesaid decision, that calls for intervention of this Court, exercising its extra ordinary writ jurisdiction.

15. The petitioner argued that the learned Tribunal did not examine the reason why the full-time Russian Language Interpreter Course undertaken by the petitioner was not given weightage for grant of Honorary Commission. Instead of deciding the issue, the learned Tribunal asked the respondents to decide whether the School of Foreign Languages, Ministry of defence could be included as category “A” establishment, which the respondents have not done as yet.

16. The categorization of establishments is a policy decision with which Courts and Tribunals do not generally interfere. The WP(C). 7677/2013 5 petitioner has not been able to discharge his onus of making out a case for interference with the policy decision by the Learned Tribunal or by this Court.

17. As argued, the right to be fairly considered for Career Progression is a fundamental right under Article 16 read with Article 14 of the Constitution of India. However, there are no materials to hold that the petitioner had been denied fair consideration.

18. Counsel strenuously argued that the petitioner had done the full- time Russian Language Interpreter Course from the School of Foreign Languages of the Ministry of defence as an Army sponsored candidate from July 1986 to May 1988. At that time, it was the policy that the Russian Language Interpreter Course from the School of Foreign Languages as an Army sponsored candidate was to be given weightage for grant of Honorary Commission, as stated in Army headquarters letter dated 19/03/2003. The letter dated 26th of May 2009 of Army headquarters, whereby, there has been a change in policy, cannot be given retrospective effect. The petitioner, however became due for consideration for grant of Honorary Commission in 2012 and the petitioner‟s case was considered in 2012. Furthermore the petitioner has not given the instance of a single Subedar Major, who has been awarded Honorary Commission after being given credit marks for an Interpreter‟s Course from the School of WP(C). 7677/2013 6 Languages or an Interpreter‟s or any other course from any other institution which is not a Category „A‟ establishment.

19. It appears that Army headquarters issued another letter on 24th of February 2009 giving a list of category “A” establishments. According to the petitioner, the respondents, as also the learned Tribunal construed the said letter dated 24/02/2009 to amend paragraph 9 of the yardstick to the effect that only army courses done from category “A” establishments as given in the letter dated 24/02/2009 would be given weightage.

20. It was argued that the School of foreign languages from which the petitioner had passed the Russian Language Interpreter course is an Institute of the Ministry of Defence like the National Defence College, which is also not “A” category establishment. There was no reason not to award points for the Russian language interpreters course undertaken at the School of Foreign Languages. Unfortunately the decision regarding categorization of institutions as category „A‟ institutions is a policy decision, which is not interfered with. This Court, exercising jurisdiction under Article 226 of the Constitution of India, does not sit in appeal over policy decisions.

21. It was also argued, and rightly, that Personal Assistants to Corps Commanders and above are considered for Honorary Commission. WP(C). 7677/2013 7 The petitioner had performed the duty of Personal Assistant to the Director General of EME Corps from 02.11.2006 till 31.12.2007. The Director-General is the senior most Lieutenant-General and the petitioner is therefore entitled to one mark.

22. As per the policy guidelines of the respondents, the School of languages under the Ministry of Defence is not considered a category “A” establishment for the purpose of computation of points for grant of honorary commission. The petitioner was, therefore not entitled to points for the course in question.

23. The Tribunal and/or the writ Court does not sit in appeal over decisions not to grant Honorary Commission, based on policy guidelines. The onus was on the petitioner to demonstrate that the respondents acted illegally in not awarding points for courses undertaken at the School of languages. The petitioner has also not been able to demonstrate that the courses conducted at the School of languages are identical in every respect to the courses conducted at establishments which have been categorised “A”.

24. The writ petition is, therefore, dismissed. INDIRA BANERJEE, J ANIL KUMAR CHAWLA, J January 24, 2017 WP(C). 7677/2013 8