- (1.) The prayer made by the petitioner in the instant petition filed under Article 226 of the Constitution is for issuance of a direction to the respondents to consider his case for promotion to the rank of Subedar w.e.f. 1.3.1994 when the persons junior to him was considered and promoted. A further prayer has also been made that the petitioner be given the benefit of tenure of service/length of service provided for the post of Subedar which is upto 28 years of service and he be deemed to have superannuated on 1.10.1997 with all consequential benefits. The petitioner also claims that the action of the respondents in ante dating the date of promotion of respondent No. 6 by considering him senior to the petitioner be also set aside as the same is illegal, mala fide and contrary to the rules.
(2.) Brief facts of the case necessary for the disposal of the controversy raised in the instant petition are that the petitioner was enrolled in the Army on 16.9.1969. He was promoted as Lance Naik on 1.4.1981. He also secured promotion as Acting Naik, on 9.12.1983 and was further promoted as substantive Naik on 1.11.1985. On the basis of his service record he also acquired promotion to the post of Acting Havildar on 20.5.1988 and substantive Havildar from 1.6.1988. The petitioner was promoted as Naib Subedar on 13.4.1992 w.e.f. 1.1.1992. A comparative table showing the afore-mentioned data in juxta position with respondent No. 6 is as under : JUDGEMENT_213_LAWS(P&H)11_2006_1.html
(3.) The grievance made by the petitioner is that despite the fact that the petitioner was promoted as Acting Naik and Substantive Naik earlier to respondent No. 6 as also Acting Havildar and substantive Havildar and Naib Subedar the respondent No. 6 was declared senior to him vide order dated 16.4.1993/8.5.1993 (Annexure P.1). The date of promotion of respondent No. 6 as Naik and Substantive Naik were brought at par with the petitioner as is evident from the comparative table. On the basis of ante dating the date of promotion, the respondent No. 6 was promoted to the next rank of Naib Subedar w.e.f. 1.1.1992. The Piping Ceremony in that regard was held on 4.8.1993. According to the averments made in the petition all the changes were made at the back of the petitioner without issuing him any show cause notice. When a vacancy in the rank of Subedar occurred in the Regiment on 1.3.1994 the same was required to be offered to the petitioner as it is claimed that he fulfilled the promotion criterion in respect of his ACRs which were "All High Average Reports". However, the same could not be offered to him because respondent No. 6 after the grant of ante dated promotion was brought at par with the petitioner which resulted in his supersession for further promotion to the post of Subedar. Feeling aggrieved, he filed a non statutory complaint as per para 1(B) of the Army Order 133/77 and Para 364 of the Defence Services Regulations, Regulations for the Army, Volume I (Revised Edition) 1987 (for brevity 'the Regulations') read in conjunction with Sections 26 and 27 of the Army Act (Annexure P.2). The non statutory complaint submitted by the petitioner was forwarded to the Headquarters 9 Arty Brigade on 5.9.1994 alongwith relevant documents which fully supported his claim. The case was returned with the advise to put up a simple application for transfer out of the unit (Annexure P.3). The petitioner has alleged that respondent No. 6 did not fulfill the requisite ACR criterion and had not completed one year in the rank of Naib Subedar from the date of Piping Ceremony i.e. 4.8.1993 and was illegally promoted to the rank of Subedar on 20.9.1994 completely ignoring the claim of the petitioner. The petitioner filed statutory complaint on 25.9.1995 by attaching all documents claiming that notice was required to be issued to him when the dates of promotion of respondent No. 6 were ante dated (Annexure P.4). The petitioner retired from service on 30.9.1995 on completion of 26 years of service whereas on promotion he would have retired on the completion of 28 years of service as per Regulation 163 of the Army Regulations. It is claimed that respondent No. 6 remained junior to the petitioner for more than 10 years as Naik and Havildar and even as Naib Subedar. By supersession of the petitioner for promotion to the post of Subedar he lost the pleasure of wearing the batch of superior post and his tenure was shorten by two years as he was retired after rendering 26 years of service whereas as Subedar he was to render 28 years of service as per Regulation 163 of the Regulations. Eventually, the petitioner served a legal notice through his counsel on 18.11.1995 and also sent a reminder (Annexures P.5 and P.6 respectively). The claim of the petitioner is that the order dated 8.5.1993 (Annexure P.1) giving retrospective promotion to respondent No. 6 be set aside as the same has been passed at the back of the petitioner and without issuing any show cause notice or granting any opportunity of hearing to him. Accordingly, it has been claimed that the petitioner be declared senior to respondent No. 6 and thus his claim be considered for promotion to the post of Subedar with all consequential benefits.;