- (1.) The challenge in the present writ petition is to an order passed by the Armed Forces Tribunal on 14.08.2012 (Annexure P-3) whereby the claim of the petitioner for promotion as Naib Subedar (Junior Commissioned Officer-for short "JCO") remained unsuccessful. The petitioner is serving as X-ray Assistant in Armed Medical Corps (AMC) in the rank of Havildar (Non Commissioned Officer-for short "NCO"). The criteria for promotion is detailed in the circular dated 10.10.1997 appended with the reply of the respondent filed before the Armed Forces Tribunal. Clause 3(f) of such criteria contemplate that an individual will not be considered for promotion within one year of the award of red ink entry/recordable censure, as the case may be. Clause 6 of the said circular in respect of promotion reads as under:-- "6. For Promotion to the rank of Nb Ris/Nb Sub (a) Only last five reports will be considered, out of which minimum three reports must be in the rank of Hav and in case of shortfall rest may be in the rank of Nk. (b) At least three out of last five reports should be 'Above Average' with a minimum of two in the rank of Dfr/Hav and remaining should be not less than 'High Average'. (c) The individual must have a minimum of two reports on Regimental Duty or as an Instructor in an Army School of Instructions, including IMA, NDA, OTA and ACC, out of which at least one should be Above Average. One of the Regimental Reports should have been earned in the rank of Dfr/Hav. (d) The individual should have been recommended for promotion in all the five reports.
(2.) Exception. ACR criteria for promotion to the rank of Nb Sub of remustered categories of RHM (AISG/TISFC) of Arty/AD Arty, HMT of EME as well as Directly Enrolled Havs will be as follows :-- (i) For promotion to the rank of Nb Sub in Arty and AD Arty from RHM (AISG/TISFC) One report in the rank of RHM is mandatory which should be at least 'High Average' and should be on Regimental Duty or as an instructor in an Army School of Instructions, including IMA, NDA, OTA and ACC. (ii) For promotion to the rank of Nb Sub in EME from HMT-Three Reports in the rank of Hav/HMT are mandatory out of which one should be 'Above Average'. One Report should be on Regimental Duty or as an 'Instructor in an Army School of Instructions including IMA, NDA, OTA and ACC. (iii) For promotion of the Directly Enrolled Havs to the rank of Nb Sub-Four reports in the rank of Hav are mandatory out of which Two should be ' Above Average' and no report should be lower than 'High Average'. One Report should be on Regimental Duty or as an Instructor in an Army School of Instructions including IMA, NDA, OTA and ACC. The Annual Confidential Report (for short 'ACR') grading of the petitioner from the year 2003 to 2010 has been extracted by the respondent in reply, which is reproduced as under:--
(3.) The grievance of the petitioner is that initiating Officer has given 'Above Average' report to the petitioner for the year 2009 but same was down-graded to 'Average' by the Reviewing Officer and maintained by Senior Reviewing Officer. It is contended that such down-grading is without any material. Such report adversely affects the promotion chances of the petitioner and is also contrary to Para 44, 45 and 46 of the Army Order No. 1/2002/MP, and thus cannot be taken into consideration.;