- (1.) SUNIL Ambwani, J. Heard Sri Chandrajeet Yadav Counsel for petitioner and Sri Narendra Kumar Chatterjee, Additional Standing Counsel appearing for respondents.
(2.) BRIEF fact giving rise to this writ petition are that petitioner was enrolled in Defence Security Corps on 21st March, 1986. He was last posted at 103 D. S. C. Platoon, Company Defence Security Corps, Rifle Factory, Ishapore, 24 Parganas (North), West Bengal which comes under Defence Security Corps, Eastern Command, Fort William, Kolkata. Petitioner was promoted to the rank of Naib Subedar with effect from 9th March, 1998. On promotion to the rank of Naib Subedar for the year 1998-99 he was graded in Annual Confidential Report as 'high Average'. As per D. S. C. , R. O. I. (Record Office Instruction) 1/94, which amended in para 5 (c) of R. O. I. 14/92 a Naib Subedar is entitled to promotion as Subedar and thus extension in service, if he has atleast one 'above Average' and one 'high Average' report, and does not have any 'below Average' report. If he has earned only two reports, one should be Above Average, and one High Average. If he has earned only one report it should be Above Average. If no report has been earned in the rank, A. C. R. criteria is not to be applied. The note appended to the amended para 5 (c) (iv) provides that no cognizance of the report initiated after initiation of recommendation, will be taken into consideration, for the purpose of regulating extension of service. Petitioner applied and filled up all necessary forms for extension of service. The application for extension with all completed formalities was forwarded to next higher authority through proper channel. The petitioner was not informed of any order on his application. By order No. CA- 1/1612/c/do/ser 09 dated 4th May, 2000, including petitioner's name in appendix 'c' at serial No. 12, the petitioner was discharged from service, with effect from 31-3-2001/1-4-2001, on the ground of his re-transfer to pension establishment, not fulfilling the ACR criteria of ex-pensioner. It is averred the petitioner was surprise to receive the order of discharge, as his services were always excellent and he was not served with any kind of counseling/warning nor any disciplinary action was taken against petitioner during his entire service. He was promoted as J. C. O. (Junior Commissioned Officer) in the rank of Naib Subedar, after fulfilling all eligible conditions which included Above Average and High Average ACRs in the last five years, preceding his promotion on 9-3-1998, and was thus entitled to extension of service. Counsel for petitioner submitted that petitioner's initial ACR as JCO was initiated on 31st May, 1999. He had performed his duties as Platoon Commander of 103 Platoon Coy. , DSC, Rifle Factory Ishapore, with full satisfaction of his superior officer. There was no comment made in his ACR. Petitioner was assessed as 'high Average', which is just below Above Average. It is contended that in the next year the petitioner was assessed as 'above Average', and thus according to his last assessment made upto 31st May, 2000, during the calendar period from 1st June, 1999 to 31st May, 2000, his two assessments made him eligible for extension. According to him even under the amended record of instruction 1/94 which amended in para 5 (c) of ROI 14/92, the petitioner was entitled for promotion and consequential extension of service.
(3.) PETITIONER made representation dated 3-6-2000, 22-11-2000 and 29-12-2000 to next higher authority through proper channel but no response was received. By this writ petition he has prayed for quashing the order of his discharge dated 4th May, 2000 and for a writ of mandamus directing respondents to grant extension of service with all consequential benefits. During the pendency of Writ Petition, Statutory complaint dated 22nd November, 2002 submitted by petitioner was rejected by COA's on 19th June 2001, and an order was communicated to petitioner vide letter dated 28th June, 2001, by Service Records Officer, for OIC Records. In the counter-affidavit of Major V. N. Apaswamy, Personnel Officer (Civ) of COD Chowki, it is stated that petitioner initially served with Raj Rifles from 31st January, 1969 to 30th September, 1984. He is drawing service pension with effect from 1st October, 1988 for services rendered with Raj Rifles. The petitioner was re-enrolled into DSC (Defence Security Corps), on 21st March, 1986, in the rank of Naik initially for five years upto 20th March, 1991. His term of engagement was extended for five years each from 21st March, 1991 to 20th March, 1996, and thereafter 21st March, 1996 to 30th March, 2001, as he was meeting the eligibility criteria for such extensions. As per Government of India, Ministry of Defence letter dated 5th December, 1981 the initial period of employment of Naik rank with five years which can be extended by five years each upto age of superannuation i. e. 55 years, subject to granting selection for further extension. ACR criteria required for granting further extension to DSC personnel is laid down in ROI 2/96. Petitioner was promoted to the rank of the Naib Subedar on 9th March, 1998. His term of engagement was due to expire on 20th March, 2001. He sent willingness certificate for further extension of his service from 21st March, 2001 to 28th March, 2006. As per para I (IV) of ROI 2 of the ACR grading required for granting extension in respect of Naib Subedar and Subedar is one 'above Average' and one 'high Average' , and that he should not have any below average report. The petitioner had earned one ACR for the year 1999, at the time of considering his extension of service. It was graded as 'high Average' by his officer commanding. As per ACR grading laid down in ROI 2/96 the JCO was found lacking in required criteria for extension of his service. His case was thereafter referred to Army Headquarter vide DSC record letter dated 25th January 2000, for decision of DDG/dsc, Army Headquarter. They did not agree for further extension of service vide Army Headquarter letters No. 7/00585/bsc-1 dated 8th February, 2000 and as such discharge order was issued vide DSC record letter dated 4th May, 2000. As per note given in ROI 2/96 no cognizance of any report initiated after initiation of recommendations is to be taken into consideration for the purposes of regulating extension of service. The petitioners representation is still under process and has not been finalised.;