- (1.) This petition filed under Article 226 of the Constitution prays for quashing order dated 19.2.2005 (P-8) superseding the petitioner for promotion to the next higher rank of Naib Subedar on the ground that he lacked the ACR criteria. It has further been prayed that direction be issued to the respondents to re-assess his ACR for the year 2000 (1999-2000) based on record and recall the petitioner to rejoin the service and to consider him for promotion to the rank of Naib Subedar from 1.2.2004 when persons junior to him were promoted. A further direction has been sought to the effect that consequential benefits including pension in the rank of Naib Subedar be given to him after his promotion.
(2.) The petitioner was enrolled in the India Army in Grenadier Regiment on 13.11.1980. He earned medals, decorations including Special Service Medals. A total of seven times the petitioner had rendered the war services showing theaters of operation. The claim of the petitioner is that in February, 2004 persons junior to him have been promoted to the post of Naib Subedar without considering his meritorious claim for promotion. On 30.11.2004, he has been discharged from Army which has resulted in cutting short of his period of service by four years. On 15.1.2005, the petitioner served a legal notice through his counsel. Respondent No. 4 replied to the legal notice by rejecting the claim of the petitioner for promotion to the post of Naib Subedar on the ground that he did not fulfill the ACR criteria. It is claimed that the ACRs of the petitioner have been down graded and in any case he fulfills the criteria.
(3.) In his written statement filed by respondent No. 4, the stand taken is that the petitioner has superannuated on 1.12.2004. With regard to promotion it has been pointed out that the petitioner was eligible for promotion as Naib Subedar on 1.2.2004 but he could not be promoted due to lack of ACR criteria. The criteria for promotion is given in Section 9(P-4), which reads as under :- "380. For Promotion to the Rank of 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 ran of Nk. (b) Atleast three out of last five should be 'Above Average' with a minimum of two in the rank of Hav. and remaining should not be less than 'High Average'. (c) The individual must have a min. of two reports of Regtl. Duty or as an Instructor in an Army School or Instrs. Incl. IMA, NDA, OTA and ACC, out of which at least one should be Above Average. One of the Regtl. Reports should have been earned in the rank of Hav. (d) The individual should have been recommended for promotion in all the five report. (e) Exception. 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 Regtl. duty or as an instructor in an Army School of Instructions including IMA, NDA, OTA and ACC". The ACr of the petitioner for the last five years, has been disclosed in the written statement viz. : i] 2000 - Average ii] 2001 - High Average iii] 2002 - Above Average iv] 2003 - Above Average v] 2004 - Above Average It is claimed that the petitioner did not fulfill the required mandatory provisions of having at least 3 out of last 5 years report as 'Above Average' and remaining were not to be less than 'High Average'. The report of the petitioner for the year 2000 is 'Average' and, therefore, he could not be promoted. Accordingly, he was superannuated on 1.12.2004.;