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Hav/Shgd Muneshwar Mishra v. Union Of India And Others - WRIT - A No. 28318 of 1996 [2004] RD-AH 239 (11 May 2004)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No.23

Civil Misc. Writ Petition No.28318 of 1996

Hav/SHGD Muneshwar Mishra Vs. Union of India and others.


Hon'ble V.C. Misra, J.

Heard Colonel Ashok Kumar, learned counsel for the petitioner and Sri K.N. Pandey, learned standing counsel on behalf of the respondents. On the joint request of the counsels for the parties, this writ petition is being disposed off finally at this stage in terms of the High Court Rules.

The petitioner has filed this writ petition seeking prayer in the nature of mandamus directing the respondents to consider the case of the petitioner for being considered by Departmental Promotion Committee (hereinafter referred to as ''DPC') for promotion to the rank of Naib Subedar with effect from the date when his batch-mates were considered.

The admitted facts of the case, in brief are that the petitioner was enrolled on 23.10.1971 and was promoted as Lans Naik, Naik and subsequently as Havildar  (Non Commissioned Officer) on 1.1.1990. Being eligible he was entitled for being considered by DPC, which was held on 19.4.1995. On the scrutiny of the service documents of the petitioner for the last five Annual Confidential Reports (hereinafter referred to as the ''A.C.R.') he was found unfit by the DPC for further promotion to the rank of Naib Subedar since his ACR for the year 1994 was graded as ''average', since the criteria for the promotion was that out of five A.C.Rs. in the rank of Havildar, it was mandatory that three should be ''above average' and the remaining two should be ''high average'. This fact was duly communicated to the petitioner. His other batch-mates who were found suitable were promoted.

The petitioner being aggrieved by the said decision of the DPC vide his statutory complaint dated 31.8.1995 sought redressal from the Chief of the Army Staff under Section 26 of the Army Act, 1950 through proper channel seeking redressal against his ACR 1994, which was received by the Head Quarter Southern Command on 4.1.1996 for comments. The statutory complaint was returned with comments on 15.1.1996 with specific remarks that the petitioner already stood discharged from services with effect from 1.11.1995.

The Chief of the Army Staff on receiving the complaint and on being satisfied after considering all the aspects, vide its order dated 3.4.1996 directed that full redress be granted by way of setting aside the complete confidential report for the year 1994. On the ground of inconsistency, it was further directed that the said ''aberration be removed from the CR dossier of the NCO'. A copy of which has been filed as annexure-1 to the writ petition, which was received on 24.4.1996 by the concerned authority. The direction of the Chief of the Army Staff was complied with and the petitioner was informed accordingly vide letter dated 24.5.1996 received by the petitioner in June 1996. The true copy of which has been filed as annexure-3 to the writ petition.

The petitioner, on receiving the above said information, vide his letter dated 12.6.1996 requested the concerned authority to look into the matter and proceed further and informed about the further action in response to the said request of the petitioner through his letter dated 12.6.1996, the authority concerned intimated the petitioner that the order of Chief of the Army Staff had been complied with and since he had already retired from service with effect from 31.10.1995 (A.N.) with full pensionary benefits, no further action in this regard was suggested. A true copy of the same has been filed as annexure-5 to the writ petition. The petitioner being aggrieved by inaction on the part of the concerned authorities filed the present writ petition.

Counter, rejoinder and supplementary affidavits have been exchanged between the parties. The respondents in their counter affidavit in support of their case, have stated that since the petitioner had already been discharged from the service on completion of his terms/tenure of service with effect from 1.11.1995, there was no scope left to reconsider him for promotion after his ACR of 1994, due to which he was disqualified for promotion had been set aside. Inspite of the fact also that on the directions of Chief of the Army Staff, his ACR for the year 1994 have been removed from his ACR dossier, but his name could not be considered for promotion. It has also been stated that under similar circumstances none of his batch-mates were reconsidered. More so, since, the petitioner was lacking one of the pre-requisite criteria for promotion to the rank of Naib Subedar, he was correctly superseded as per existing promotion policy and, thus, the petitioner had not qualified for promotion and therefore, he did not become entitle for the pension of Naib Subedar automatically. The petitioner has in his supplementary rejoinder affidavit, submitted, that, in case the respondents, especially respondent no.2 had acted bonafidely, the petitioner's services ought to have been extended under the provisions of para-146 of the Defence Services Regulation (Revised Addition), 1987 as in the case of Havaldar Shiv Babadur Singh (Civil Misc. Writ Petition No.30141 of 1995) till the petitioner's statutory complaint under Section 26 had been decided and his DPC held. It has also been submitted that in large number of cases the incumbents even after retirement have been called back and DPC was held and promotion was granted. In view of such cases and the circumstances present in the petitioner's case, he ought to have been considered for promotion in the in the next DPC with the same record along with the record of the erstwhile batch-mates and consequently granted notional promotion.

Learned counsel for the petitioner, Col. Ashok Kumr has during the course of the arguments, submitted that in the circumstances of the case, the respondents may be directed to hold a DPC in respect with the petitioner and promote him notionally on the rank of Naik Subedar and make the payment with effect from 19.4.1995 from the date his batch-mates were promoted and further make the payment of four years salary with all consequential retiral benefits. Paragraphs 6 and 8 in terms of the orders issued by the Chief of the Army Staff dated 3.4.1996 as well as in terms of Army Head Quarter Military Secretary's Branch Policy letter No.32666/P/MS-5B dated 22.6.1989 has been filed by the respondents in their counter affidavit in Civil Misc. Writ Petition No.26506 of 1994. Paragraphs-6 & 8 read as under :-

Para-6 to make sure that the Officers who gets redress based on their complaints are given Special Reviews as entitle to them, it will be ensured that such officers are considered by the next Appropriate Board to enable them to catch up with their batch.

Para-8 on finalization of the complaint if the officer gets redress he will be given a Special Review as applicable, and in case if the Statutory Complaint is rejected the Selection Board held earlier will be valid.

 The learned standing counsel Sri K.N. Pandey has no objection if the matter is sent back to the concerned authority to reconsider the case of the petitioner in respect with his notional promotion by holding a DPC in accordance with law.

I have looked into the record of the case in detail and heard the learned counsels for the parties at length and in view of the facts and submissions mentioned herein, I find that the petitioner ought to have been continued in service in accordance with the relevant provisions of the rules and regulations applicable in the present case such as Regulations 142, 144, 145 and 146 of the Defence Services (Regulations for the Army), 1987 (hereinafter referred to as the DSR) and duly considered for promotion by holding a DPC with the record of the erstwhile batch-mates of the petitioner. The authority failed to take the necessary action and deprived the petitioner of his legal right, which would have accrued to him as in service. Under the said circumstances, the respondents are directed to hold a DPC for considering the case of the petitioner for notional promotion in saccordance with law preferably within a period of three months from the date a certified copy of this order along with copy of the writ petition, counter and other affidavits with all annexures to the writ petition, are filed before the Chief of the Army Staff.

With these observations, the writ petition is disposed off finally. No order as to costs.

May 11, 2004



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