(PER HONBLE LT GEN SUSHEEL GUPTA)
1. The applicant, Naib Subedar C.K. Yogesan has filed an application under Sec. 14 of the Armed Forces Tribunal Act, 2007 praying for grant of promotion to the rank of Subedar and quashing of discharge order dated 24.7.2009.
2. Brief facts of the case are, that the applicant, after completion of Platoon Commanders Course at MEG and Centre, Bangalore was granted 13 days part of Annual Leave from 18.1.2009 to 30.1.2009. The applicant was to report back on duty to his present Unit i.e. 14 Engineering Regiment on termination of the said leave. Whilst the applicant was under-going course at Bangalore, he received a promotion order dated 10.1.2009, vide which, he was to be granted promotion to the rank of Subedar w.e.f. 1.2.2009.
3. On completion of his course and part of Annual Leave, the applicant rejoined his Unit on 1.2.2009 at 2000 hrs after being late for two days from his leave. Since the applicant had reported late from leave, he was denied promotion and the promotion order was not executed. Subsequently, the applicant was tried summarily for an offence under Sec. 39(b) of the Army Act and was awarded âsevere reprimandâ on 14.3.2009. Due to this punishment, the Junior Commissioned Officer (for short âthe JCOâ) could not be promoted for the next three years. Since he would be completing his term of engagement prior to his promotion, the pension/discharge order was issued vide letter dated 24.7.2009, by which, the applicant was to be discharged from service w.e.f. 31.8.2010. Since the applicant could not be promoted despite issuance of the promotion order and he was to be discharged from service from 31.8.2010, he filed an application against the denial of promotion and for quashing of the discharge order.
4. The applicant, in his application, has categorically stated that he had fulfilled all the eligible conditions for grant of higher promotion as he was medically fit on the date of promotion, there was no red ink entry in the past one year prior to the date of promotion and there was no disciplinary proceedings pending against him. Under such circumstances, it was wholly illegal not to have granted promotion to the applicant.
5. The applicant has stated that delay of two days in rejoining the Unit after termination of leave was primarily since he had left his identity card at his sisters house after leave. He went back to collect the identity card and therefore, this delay of two days has taken place. There was no intention to report late for duty deliberately. Thus, the award of punishment and denial of promotion is not justified.
6. The applicant was not aware of the correct policy on the subject of punishment and promotion and he was made to believe that effect of punishment would last for only one year and that he would be promoted after one year of grant of punishment i.e. in March, 2010. However, he was informed that as per Rules, no promotion could be granted for three years after individual has been given punishment of âsevere reprimandâ.
7. The non-applicants, in their written statement, have raised preliminary objection that the applicant has not exhausted all the remedies available to him and as such, the application should not be allowed. However, we feel that in the present circumstances, since the individual would be retiring on 31.7.2010, it would not be possible for him to go for alternate remedy in the time available, thus, this application has been allowed.
8. In their written submissions, the non-applicants have stated that a JCO is not only supposed to ensure safe custody of his own identity card but also of the troops, who are placed under his command, therefore, misplacing the identity card by the applicant at his sisters house, reflects callous attitude of the applicant towards the instructions on handling of accountable document. The applicant did not inform his Unit nor his superiors regarding the delay anticipated in rejoining the Unit after leave on account of his having to go back to retrieve his identity card from his sisters house. Further, to qualify for promotion to the rank of Subedar, a Naib Subedar should not be involved in any disciplinary/vigilance/criminal case. In the present case, the applicant had committed an offence and pleaded guilty, which amply shows that on the date he was due to be physically promoted in accordance with the promotion order, he did not fulfill the criteria of not being involved in a disciplinary case. His contention that there was no disciplinary case pending against him on the date, he was to be promoted, is not right.
9. Continuing further in their reply, the non-applicants have stated that the assumption of physical promotion even after a JCO has otherwise been found fit to be promoted is governed by the policy on promotion issued by the Army Head-quarters letter dated 10.10.1997. Since the applicant was absent without leave in terms of the penal provisions of Army Act Sec.39(b), it amounted to existence of a prima facie disciplinary case against him as on the date he became due to be physically promoted. Hence, he could not have been promoted as per the said policy irrespective of his being in medically fit condition or that there was no red ink entry in his conduct sheet. Any order of promotion is assumed to be completed and implemented only after a certificate of assumption of the next higher rank is issued. In the event of award of a punishment, the promotion order is deemed to be cancelled.
10. During the course of arguments, Mr. K.K.Shah, learned counsel for the applicant, has stated that on the day, the applicant was to be promoted i.e. on 1.2.2009, there was no disciplinary proceedings pending against him, therefore, he ought to have been promoted immediately on rejoining his Unit after leave on 2.2.2009. No offence had been committed by the applicant and therefore, he fulfilled all the disciplinary criteria required for promotion to the rank of Subedar. Since the disciplinary proceedings are deemed to have commenced only after hearing of the charge under Rule 22 of the Army Rules, which was held much later in March, 2009, therefore, there were no disciplinary proceedings pending against the applicant on the date he was due for promotion.
11. Col Veerendra Mohan, Officer-in-charge(Legal) arguing on behalf of the non-applicants, has stated that the promotion order dated 10.1.2009 was not an absolute order but a conditional order. In paragraph 4(c) of the said order, it has been categorically stated that â if any JCO is having a red ink entry within one year prior to his date of promotion or involved in any disciplinary case, he will not be promoted but the particulars will be intimated to this office immediately on receipt of this promotion order for further actionâ. Not only this, paragraph 5 of the same promotion order makes it mandatory for the CO/OC of the Unit to forward assumption certificate on the date of physical assumption of the higher rank by the JCOs. In sub-para (b) of Para 5 of the assumption certificate, the CO/OC of the Unit has to certify that an individual is not involved in any disciplinary/vigilance or criminal case on the date of promotion. Since the applicant was not fulfilling the conditions as referred to in Para 4(c) of the promotion order, nor could the CO forward the assumption certificate, promotion was denied to the applicant. Subsequently, when the applicant was tried for an offence under Sec.39(b) of the Army Act, he pleaded guilty and was awarded punishment of âseverally reprimandedâ. As per laid down policy, an individual who has been severally reprimanded, cannot be promoted to the next higher rank for three years after award of punishment. Accordingly, since the individual could not have been promoted, his retirement order was issued, by which, he is to retire from service on 31.7.2010.
12. We have gone through the case and heard the learned counsel for the parties and also studied the relevant rules on this issue. Honble Supreme Court, in the case of Union of India v. K.V.Jankiraman Etc. Etc. (decided on 27.8.1991), has held that an employee who is facing departmental enquiry or criminal proceedings, cannot be promoted pending such proceedings against him. His promotion order would be subjected to final out come of departmental enquiry or criminal proceeding. The relevant portion of the aforesaid judgment is quoted below :-
âIt cannot be said that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. The officer cannot be rewarded by promotion as a matter of course even if penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. The qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date, he is penalized in present. When an employee is held guilty and penalized and is, therefore, not promoted at least till the date on which he is penalized, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date that authority considers the promotion.â
13. Having gone through the record, it is evident that the applicant was denied promotion despite issuance of the promotion order, since he was not fulfilling the conditions as spelt out in the promotion order. The promotion order issued, was not absolute as it had specified certain conditions, which had to be fulfilled before the applicant could be promoted. Since the applicant did not fulfill all the conditions, he cannot demand his right of promotion.
14. With the above observations, the Original Application is dismissed with no order as to costs.