DALAI R K Vs. UNION OF INDIA

JUDGEMENT

(1.) One R.K. Dalai, J.C. 74795/P Subedar (Tech.) working in the Corps of E.M.E. filed this writ petition questioning the action of the respondents in not giving him promotion as Naib Subedar in January 1989 as per the existing policy on that date, as arbitrary, illegal and offends Article 14 of the Constitution of India, and for a consequential direction to the respondents to promote the petitioner to the post of Naib Subedar with effect from 8-1-1989 and further promote him to the next rank of Subedar with ante-date seniority with effect from 1-1-1992 and grant all consequential benefits.

(2.) The petitioner joined the Army as Sepoy on 15-1-1974, and thereafter, he was promoted to the post of Lans Naik. As per the channel of promotion, a Sepoy is eligible to be promoted as Lans Naib, and from that category, to Naik and thereafter Havaldar Major (Tech.) But, under the Rules any of the employees working in the category of Sepoy and Lans Naik are eligible to be appointed to the post of Havaldar Major (Tech) skipping the intermediary category by appearing for the Common Entrance Test conducted by the authorities. It is hot in dispute that the petitioner, having improved his educational qualifications and passed his Common Entrance Test in 1986, was promoted as Havaldar Major (Tech) on 21-10-1986; the next promotion being Naib Subedar. Though the respondents did not produce the relevant Circulars before this Court, the Officers, who are present at the time of hearing, categorically admitted that as per Para - 149 of the Defence Service Regulations, the guidelines relating to the Annual Confidential Reports for consideration to the promotional posts can be changed to suit the exigencies of the administration. In Circular No. 9430/AG/ PS.2 (c), dated 18-12-1985, the Rules relating to the Annual Confidential Reports for promotion to certain posts are given. This promotion policy was in force from 1-1-1986 to 31-12-1987. We are concerned with the promotion to the post of Naib Subedar. Para 3(b) of the said Circular dated 18-12-1985 deals with the Annual Confidential Reports for promotion to the post of Naib Subedar from the post of Haveldar Major (Tech), and for better appreciation of the case of the respondents, the said Para 3(b) is reproduced hereunder:

(3.) From this, it is seen that for promotion to the post of Naib Subedar, one must earn five Annual Confidential Reports, out of which, three must be above average and one should be in the category of Deffedar/ Havaldar, while he was on regimental duty or as an Instructor in any Army School. Hence, by any stretch of imagination, it cannot be contended that all five Annual Confidential Reports should be in the category of Deffedar/Havaldar for promotion to the post of Naib Subedar. But, the respondents started interpreting the language of this circular as that one must necessarily have five Annual Confidential Reports, out of which, one should be as Deffedar/Havaldar on regimental duty or as an Instructor in the Army School. While it is the case of the respondents that no Annual Confidential Reports are maintained for Sepoys and Lans Naibs and Annual Confidential Reports are maintained only for the rank of Naibs, it is the case of the petitioner that Annual Confidential Reports are maintained for Lans Naibs also. It is his further case that he earned one Annual Confidential Report while he was working as Lans Naib. But, he has not placed any material to substantiate his contention in this regard. Likewise, the respondents also have not placed the Rules with regard to the maintenance of Annual Confidential Reports for the Military personnel. To dispose of this writ petition, I am proceeding on the presumption that no Annual Confidential Reports are maintained for Lans Naibs. From the facts of the case, it has also come to light that most of the personnel working in the lower categories are being appointed as Havaldar Major (Tech) through the process of Common Entrance Test and no one is able to satisfy the criteria prescribed for promotion as per the interpretation by the respondents on Circular dated 18-12-1985, with the result, as on 31-12-1988, as many as 189 posts of Naib Subedars were left unfilled. Having realized the difficulties faced by the Department in filling up the vacancies, the Army Headquarters issued proceedings No. B/12500/EME. Pers., dated 25-1-1988 amending the Circular dated 18-12-1985. It is useful to extract the Circular dated 25-1-1988, which runs thus: "A.C.R. CRITERIA FOR PROMOTION: HMsT to NB SUB TECH: