Avadh Behari Rohatgi, J.
(1) This is a case of a Havildar. He was enrolled as a combatant clerk (Store) in the Army Services Corps of the defense Department under the Chief of the Army staff on 15th February, 1963. He worked diligently in that post. He was promoted on l-6-1968 to the rank of Havildar. From the rank of Havildar the next promotion is to the post of Naib-Subedar. For promotion to the post of Naib-Subedar, the petitioner was considered in April 1978. He was not promoted. He was 'superseded' on the ground that he 'does not fulfill criteria for promotion in regard to grading in character rolls'. This is all that he was told by an order dated 4th August, 1978. He made several representations. against this decision of the army authorities. His case is that he fulfills the criteria for promotion and that the authorities are not applying to him the correct criteria.
(2) When the petitioner entered the army service in 1964, the rule regarding promotion was the following :
'2.(ii) (a) to (e) : Prior to 16th August 1977 an individual who obtained grading 'B' (Average) and recommended for further promotion in his Annual Confidential Report was eligible for promotion provided he was in medical category 'AYE' and had not incurred any red ink entries during the last one year.'
(3) _THE petitioner found his claim on this rule. According to the rule in force prior to 16th August, 1977, the petitioner had obtained grading 'B' that is, 'Average' in all the years right from 1964 to 197/except 1969 when he was awarded 'C' which means 'below average'.
(4) Mr. Anand on behalf of the army authorities, has produced the annual confidential reports of the petitioner. For the years 1971, 1972 and 1973, the annual confidential reports are not available. This he frankly conceded. It may as well be that the petitioner may have got 'A' in those years or if not 'A' at least 'B'. On his past performance it will be legitimate to infer that on the whole he is an average man and so must be his grading in 1971, 1972 and 1973, namely 'B', if not 'A', even though the records are not available. It is not in dispute that he was medically fit. Nor is it in dispute that the petitioner had not incurred any red ink entry during the last one year. So if the eligibility criteria for promotion as laid down prior to 16th August, 1977 is applied to the petitioner, he qualifies for promotion because he has got grading 'B', 'Average' all through except in 1969.
(5) But this is not all. On 16th August, 19 77 the eligibility criteria for promotion was changed with immediate effect. The new rule is this :
'(B)For promotion to the rank of Nb Ris/Nb Sub (i) Majority of reports in the rank of Dfr/Hav must be 'Above Average' out of which at least two should be on regimental duty or as an Instructor in any Army School of Instruction. (ii) No report should be less than 'Average' in the last three years. (iii) Should have been recommended for promotion in the last three reports'.
(6) It appears to me that the army authorities applied the criteria laid down in the letter dated 16th August, 1977 which I have quoted above and found the petitioner wanting in his grading. It is true that the majority of his reports do not show that he is 'above average'. From all the reports it will be seen that he is an average man except the 1969 report, as I have said. So the petitioner's case for promotion was rejected.
(7) There were others also who were similarly rejected by the Army authorities. They represented to the authorities that the rule framed on 16th August, 1977 was working hardship. The petitioner also made representations. As a result of these representations the Army Head Quarters reconsidered the matter and issued letter dated 26th December, 1978 in which it was observed that the letter dated 16th August, 1977 'has operated harshly on the promotion prospects of NCOs/JCOs. Since this criteria did not exist in the past, its implementation without adequate notice has been tantamount to applying this criteria with retrospective effect and it has resulted in the super-session of a number of deserving NCOs/JCOs'. The letter further says 'it is not proposed to change this criteria. However, to obviate the hardship caused due to it being applied without adequate notice, it has been decided to cater for some relaxation in the application of this criteria up to 1981. Accordingly the following decisions have been taken:-
A)The Dept. Promotion Committee (DFOs) are delegated the powers to screen individual cases meriting relaxation of ACR/CR. grading prescribed in the current criteria for promotion to NCO/JCO ranks. In Regt/Corps where there is no system of holding DPCs to screen cases of promotion the authority competent to order promotion should be empowered to 'screen cases meriting such relaxation. However, in no case should relaxation be allowed below the standard laid down for such promotion in the concerned Regt/Corps prior to 16 Aug. 77'.
(8) The letter goes on to say that 'cases of JCOs/NCOs considered for promotion and found ineligible earlier in terms of para 3 of the letter under reference may also be considered on the basis of this relaxation and where approved their seniority restored without effect on pay and allowances'.
(9) Mr. Anand says that in pursuance of the decision taken by the Army Head Quarters in their letter dated 26th December, 1978, the army authorities formulated a revised criteria of eligibility for promotion to the rank of Naib-Subedar by letter dated 28th February, 1979. The revised criteria is the following :
'2.(b) For Promotion to the rank of Nb/Sub/Nb/Ris (i) Two out of the last five reports rendered on the Nco must be 'Above Average' and one 'High Average'. (ii) No report should be less than 'Average' in the last three years. (iii) Should have been recommended for promotion in the last three reports.'
(10) There is nothing to show that the petitioner's case was reconsidered on the basis of the relaxation as ordered by the Army Head Quarters on 26th December, 1978. At long last the petitioner filed this writ petition on 9-7-1981 when he was unable to get relief at the hands of the army authorities.
(11) The short question in this case is this : Can the eligibility criteria as laid down prior to 16th August, 1977, be altered to the prejudice of the petitioner From 196i till 1977 he was getting throughout category 'B' except in 1969. He was an average officer. According to the rule in force prior to 16th August, 1977 there can be no doubt that he was entitled to promotion because he had 'average' reports to his credit, medically he was fit, and red entries there were none against his name.
(12) On 16th August, 1977 with immediate effect the army authorities decided to lay down rigorous standards in order to Improve the services. The result of these rigorous standards is that the officer in order to get promotion to the post of Naib-Subedar must be 'above average' in the majority of the reports as was laid down in the letter dated 16th August, 1977. This standard was slightly toned down on 28th February, 1979. Instead of majority of the reports, they required two out of the last five reports to be 'above average' and one 'high average'. To the rule in force prior to 16th August, 1977, all these terms 'high average', 'above average' were unknown. Even if we take 'B' as a 'high average' it is not clear as to that is meant by 'above average'. I should think that the requirement was that the officer must have at least got one 'A'. According to the old standard prevailing prior to 16(h August, 1977, 'A' was 'above average', 'B' was 'average' and C' was 'below average'. All these standards have been changed, in my opinion, to the great prejudice and detriment of the petitioner when new rules were brought into force with immediate effect on 16th August, 1977 and modified on 28th February, 1979.
(13) In my opinion the petitioner's case ought to be governed by the plain rule which prevailed prior to 16 the August, 1977. The required rating then was 'average' i. e. 'B'. If the officer is 'B' he is entitled to promotion to the rank of Naib-Subedar provided he is medically fit and has not got any red ink entry. The subsequent changes in these rules on 16th August, 1977 and 28th February, 1979 cannot apply to the petitioner as these criteria did not exist in the past. The army head quarters rightly felt that 'since this criteria did not exist in the past, it has operated harshly on the promotion prospects of NCOs and JCOs'. The application of this criteria with retrospective effect, they held, has resulted in the supersession of a' number of deserving NGOs and JCOs. To obviate this hardship they brought in the rule of relaxation. All the cases of persons who were held ineligible earlier were ordered to be reconsidered on the basil of relaxation. Individual cases were required to be screened.
(14) But in no case relaxation was allowed below the standard laid down for such promotion in the concerned regiment/corps prior to 16th August, 1977.
(15) The petitioner's claim is that in his case the standard laid down prior to 16th August, 1977 should be applied. It would be highly unjust to apply to the petitioner a new standard which was formulated in August 1978 when he was being considered for promotion in April 1978. To the cases of April 1978, the standard laid down in August 1978 cannot be applied because the standards of 16th August, 1978 did not exist at that time. The petitioner's case must be considered on the basis of the standard laid down for promotion prior to 16th August, 1977. The army authorities were aware that if they adopt any other criteria, it will work hardship and the retrospective application will result in the supersession of a number of deserving officers. The petitioner is a non-commissioned officers (N.C.O.) The application of the criteria laid down in 1977 and 1979 has resulted in his supersession. In my opinion, the petitioner's case is governed by the rules prevailing prior to 16th August, 1977. According to those rules, the petitioner is entitled to promotion.
(16) To old cases the new rules regarding promotion cannot be applied without injustice. If this is done the man will be deprived of his right to promotion. A right to be considered for promotion is a term of service. (Sec State Bank of Mahamshtra v. Chandrakant : (1981)IILLJ433SC ). When the petitioner entered army service in 1963 the rules of promotion applicable then applied to him. On that basis he was promoted from a combatant clerk to Havildar. From Havildar to Naib Subedar the rules in force in 1968 ought to apply. That is what he was given to understand. The authorities are estopped from applying different standards to him. It is not so much a question of promissory estoppel as of retrospective application of a later standard of promotion to a man of 1968. The army authorities rightly came to the conclusion that retrospective application will be unjust as it will result in the supersession of many deserving JCOs. The new standards 'operated harshly on the promotion prospects of NCO's/JCO's' they concluded. A rule formulated later and applied will take away and impair vested rights acquired by the petitioner under the rule operating prior to 16.8.1977. It creates a new disability for a man who entered service before it was promulgated. The inevitable conclusion thereforee is that new rules cannot be applied retrospectively to old cases without causing grevious injury. The promotion prospects will be completely marred by retrospective application.
(17) I thereforee, quash and set aside the order dated 4th August, 1978 denying to the petitioner promotion to the post of Naib-Subedar. The petitioner is entitled to be promoted to the post of Naib-Subedar in accordance with the rule as it existed prior to 16th August, 1977. The writ petition is allowed. The petitioner will be promoted to the post of Naib- Subedar with effect from 31st October, 1977 when his juniors were promoted. He will be also given consequential benefits as a result of his promotion. There will be no order as to costs.