[(See rule 11(1)] ORDER SHEET ARMED FORCES TRIBUNAL REGIONAL BENCH, JABALPUR 2. Laltu Mondal By Legal Practitioner for Applicant Versus UOI & Ors By Legal Practitioner for the Respondents Notes of Orders of the Tribunal the Registry Petitioner Respondents 22.08.2017 HON BLE MR. JUSTICE AMAR SARAN, MEMBER (J) HON BLE LT GEN NB SINGH, MEMBER (A) 1. Present: Shri KC Ghildiyal, Ld counsel for the applicant and Shri Vikram Singh, Ld counsel along with Maj Gourav Verma, OIC Legal Cell for the respondents. 2. The applicant, Havildar Laltu Mondal, who is a serving Non Commissioned Officer (NCO) in the Army has filed this Original Application (OA) against the impugned order No 31243/PO-23/Prom/CA-2 dated 02 Mar 2017 declaring him unfit for promotion to the rank of Naib Subedar wef 01.01.2017. He submits that he was enrolled as a Driver (Mechanical Transport) in Army Ordnance Corps on 28.08.1991 and promoted to rank of Naik on 01.02.2001. He was later remustered as Storekeeper (GS&C) hereafter referred to as SKT on 12.08.2002 and promoted as Havildar on 02.01.2005. As per the policy letter dated 06.02.1960, the seniority of the applicant should have been reckoned from the date of initial enrollment i.e. 28.08.1991 and not 12.08.2002. 3. This mistake was corrected by the respondents in Feb 2017 and he was given the seniority of Havildar wef 01.05.2003 in place of 02.01.2005. The applicant contends that with revised seniority he becomes eligible for promotion to the rank of Naib
Subedar wef 01.07.2016 and his juniors were promoted to this rank vide order dated 03.05.2016 wef 01.07.2016 whereas he was informed vide the said order dated 02.03.2017 (supra) that he was found unfit for promotion being overage wef 01.01.2017. The same was reiterated vide signal no. 31243/PROM/SKT/CA-2 dated 16.03.2017. He contends that the respondents have denied him promotion in an illegal and arbitrary manner by incorrectly fixing his seniority by wrong adoption of policy. After having corrected their mistake, they are denying him promotion on the grounds that he is overage now wef 01.01.2017. If he is not promoted to the next rank, he will retire wef 31.08.2017. He has prayed for grant of promotion to the rank of Naib Subedar wef 01.07.2016 with all consequential benefits such as pay and allowances, seniority and future promotions to higher ranks and for payment of arrears of difference of salary due to retrospective promotions to the rank of Naik and Havildar. He has also prayed for the respondents to be restrained for retiring him from service wef 31.08.2017 during the pendency of the OA as an interim measure. 4. The respondents in their reply have stated that the applicant has been found unfit for promotion to rank of Naib Subedar on account of the policy wherein the maximum age has been prescribed as less than 46 years. Based on a number of representations received for re-fixation of seniority post remuster, a case was taken up with Integrated HQ of MoD which was considered by the Competent Authority and sanction granted on 10.12.2016. On receipt of the sanction, the applicant s seniority has been refixed as under:- Sr No Rank Date of Prom earlier Date of prom re-fixed notionally without Pay and Allce Part II order No. (a) Naik 01 Feb 2001 01 Jul 1998 1/0245/002/2017 dated 27 Feb 2017
(ANNEXURE-R4) (b) Havildar 02 Jan 2005 01 May 2003 1/0246/0004/2017 dated 27 Feb 2017 (ANNEXURE-R5) 5. On re-fixation of seniority, the applicant became due for promotion against next available vacancy which may have occurred earliest on 01.01.2017, However as he was overage on 01.01.2017, he was found ineligible for promotion as per policy letter dated 12.06.1999 and 10.10.1997. They have sought for dismissal of the OA being infructuos, lacking substance and devoid of merits. 6. Appearing on behalf of the applicant Shri KC Ghildiyal said that it has not been disputed by the respondents that with the revised seniority in rank of Havildar, the applicant was entitled to be considered for promotion wef 01.07.2016 by which time he was not overage. It is evident that if his seniority had been correctly fixed in the rank of Havildar i.e. 01.05.2003, he would have been considered and granted promotion wef 01.07.2016. It is well settled principle in law that a party to litigation cannot take benefit from its own mistakes and follies. Once the respondents have admitted the fact that the seniority of the applicant had been fixed incorrectly and later the same mistake was corrected it was incumbent on their part to undo the injustice meted out to the NCO who otherwise had an outstanding service record and meets all criteria for promotion to rank of Nb Sub. He drew the attention of the Court to para 16 of the counter affidavit where the respondents have not denied that many juniors had been promoted and their stance was tantamounting to saying that the applicant can suffer for the mistake of the respondents. He drew the attention of the Court to Annexure A5 and stated that all personnel promoted vide order dated 03.05.2016 from ser No.55 downwards to 66 were junior to him.
7. Appearing on behalf of the respondents, Shri Vikram Singh, brought out the facts of the case and stated that as the applicant had become overage on 01.01.2017 and his seniority was re-fixed in Feb 2017, he has become ineligible for promotion. Promotion is only possible if there is a vacancy and it cannot be demanded as a right. 8. We have perused the pleadings and heard both the parties. It is noticed that the respondents have accepted that sanction of Competent Authority for re-fixing seniority of the applicant was received on 10.12.2016. At the first instance, if they had taken a facilitative stance, promotion could have been ordered in these 20 days before the applicant became overage. Moreover, it is noted that vide para 149 (c), Regulation for the Army, Volume I there is a provision for the age and service limits to be waived with the permission of the Chief of Army Staff. This was the second course open to the respondents if they had taken a beneficial stance in this case. 9. It is also seen that vide para 13 of the policy letter dated 10.10.1997 governing the grant of promotion to the rank of Naib Subedar, specifically incorporates a para on age criteria for promotion to the rank of Naib Subedar as under:- 13. Age Criteria for promotion to the rank of Nb Sub has been laid down vide Para 149 (c) of Defence Service Regulations (Army) Revised Edition 1987 Relaxation in age criteria is normally not permissible. Exceptional cases for relaxation of age criteria may, however, be projected to Army HQ (AG/PS 2 (c) ) through staff channel duly vetted by OIC Records as per the procedure laid down vide Army HQ letter No 92209/AG/PS 2 (c) dated 14 Sep 1962. Para 2 and 3 of the aforesaid letter is reproduced below:- 2. In order to out down unnecessary correspondence on
this account at all levels and to safeguard the interests of Junior personnel, it will be ensured that such request are carefully scrutinized before submission and only exceptionally genuine cases are referred to this Headquarters for sanction. For recommendations of this nature, when initiated, will be submitted through normal staff channels to Personnel Sections at this Headquarters and will invariably contain the following information:- (a) Special reasons for the grant of relaxation e.g. the individual for whom the relaxation is sought is well decorated and / or has achieved some singular distinction like service championship in some event and / or has been earning outstanding / above average reports for several years. (b) Whether or not other qualified / eligible personnel are available for promotions. (c) If qualified / eligible persons are available, a certificate accompanied by necessary details, will be submitted to the effect that no promotion block will be caused by the grant of relaxation. In other words proposed relaxation should not adversely affects the prospects of junior personnel. (d) IAFD 903 (Character Roles) for the last three years in respect of the individuals recommended and the other three senior most qualified and eligible Havildars for promotion to JCO rank will also be forwarded. 3. Recommendations for relaxation of age / service limits for promotion to the rank of Jamadar in respects of Havildars of Clerical and Storemen Technical categories will be submitted in view of the provisions of this Headquarter letter of even no dated 09 Jan 1962 laying down the conditions of exceptionally merited cases. 10. It is obvious that this provision has been included to allow meritorious NCOs to get the benefit of being promoted as a
JCO. Court have repeatedly stressed that administrative provisions specially a beneficial provision should be interpreted liberally so as to give a wider meaning than a restrictive meaning which would negate the very object of this rule (1999) 6 SCC 459 Madan Singh Shekhawat Vs UoI & others. Hence a pragmatic, positive and facilitative interpretation of the aforesaid instructions was called for from the respondents. 11. It is seen that the rigid view of the Ld counsel for the respondents, Shri Vikram Singh that promotion is not a right and the applicant is overage and hence cannot be promoted need to be tempered in view of the accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution, Union of India Vs Hemraj Singh Chauhan AIR 2010 SC 1682. After putting almost 26 years of service, the NCO, who was missing out on his promotion to the rank of a JCO for no fault of his, an accomplishment which is a landmark achievement for any soldier; an achievement which would have made a substantial difference in his status and standing in the unit and back home in his village / amongst his folks, and which would have also given him an extension in the age of retirement by 2 years, has been given a raw deal despite existence of enabling instructions to this effect. Administrative authorities vested with powers of promotion and career management of soldiers have to have a pragmatic and positive approach, more so as simple, diligent soldiers relentlessly march on to the drum beats in the unit, with the explicit belief system and faith that the Commanding Officer will take care of all their concerns. Hence a one size fits all approach generally adopted by authorities needs to be tempered with specific facts and merits of each case. We therefore conclude that the applicant s was a case fit to be considered for grant of promotion with / without age
extension through proactive actions by respondent No 3. 12. The facilitative provisions have been incorporated specially for promotion from Havildar to Naib Subedar, possibly to enable deserving NCOs to be promoted to the rank of Naib Subedar and not miss out on this singular milestone in their career due to a disadvantageous date of birth. In the case of the applicant, this disadvantage of date of birth has been a creation of the respondents for which the applicant cannot be held responsible. 13. The applicant s case therefore succeeds on grounds of equity and law. The OA is allowed. We direct that the applicant be given a fresh consideration for promotion to the rank of Naib Subedar at the earliest and certainly before 31.08.2017 and if found suitable be given his promotion before 31.08.2017, the date of his superannuation with all consequential benefits such as pay and allowances, seniority and future promotions. No order as to costs. 14. At this stage, Ld counsel for the respondents has orally prayed for leave to appeal to the Apex Court under Section 31(2) of the Armed Forces Tribunal Act, 2007. As no point of law of general public importance is involved in this case, the prayer is declined. (Lt Gen N.B. Singh) Member (A) (Justice Amar Saran) Member (J) Sarkar/21.08.2017