Abtar Raj vs Union Of India And Others

Even though M.A. No. 128 of 2021 has been filed under Rule 25 of the Armed Forces Tribunal (Procedure) Rules, 2008 with a prayer to grant

certain interim protection, as prayed therein, but having heard the learned counsel for the parties on the application on an earlier date, we found that in

view of the issues involved in the matter, the dispute can be decided based on the counter affidavit filed by the respondents and, therefore, we decided

to hear the matter. Accordingly, having heard learned counsel for the parties, by this order, we are not only disposing of O.A. No. 1353 of 2020 but

M.A. No. 128 of 2021 also.

The prayer made by the applicant invoking the jurisdiction of the Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007 in O.A. No.

1353 of 2020 is to grant waiver of the age criteria in terms of certain orders passed b y the respondents and to consider his case for grant of

promotion to the rank of Naib Subedar Clerk (Nb Sub Clk) as has been done in the case of other employees.

Facts in brief go to show that the applicant was enrolled into the 126 Infantry Battalion (Territorial Army), Jammu and Kashmir Rifles on

01.11.2001 at the age of 29 years as per the rules applicable. The applicant served the Territorial Army with full dedication and passed the required

cadre and classes and was promoted to the rank of Havildar Clerk. The applicant is said to have won various medals and has to his credit various

achievements which are detailed in the body of the petition.

It is the case of the applicant that the Additional Directorate General Territorial Army, Integrated HQ of Ministry of Defence has issued a letter

dated 24.12.2009 vide which it was proposed that TA Personnel should be allowed to be promoted to the rank of Junior Commissioned Officer (JC0)

before completing 50 years of age i.e. age of superannuation or there should not be any cut-off age for promotion to the rank of JCO in respect of TA

personnel. It was stipulated that TA personnel, who have completed terms of engagement and have been retained beyond the term of engagement

due to requirement of the Unit and their embodiment to the Unit for military service under Rule 33 of the TA Regulations, should also be entitled to

grant of higher promotion during the retaining period provided they are within the age limit which is upto the age of 50 years. It is also stipulated that if

promotion of TA NC0s, who are above 44 years of age and have passed JCO promotion cadre and meet the QRs requirements, they may be granted

certain benefits.

Grievance of the applicant is that inspite of the fact that the applicant meets the requirement for grant of promotion, he is not being granted waiver

of age criteria and, therefore, denied promotion to the rank of Nb Sub Clk. It is his case that two of his junior Clerks, who were selected for promotion

cadre vide letter dated 25.09.2020, have been permitted to participate and granted the benefit of promotion. In sum and substance, grievance of the

applicant is that the respondents should take note of the stipulation contained in the promotion cadre of TA personnel, who form a different class than

an Army personnel and by notgranting age-waiver, despite the merit and comparing TA personnel with the regular army, which form different cadre

altogether, denial of promotion to the applicant is unsustainable.

On notice being issued, respondents have filed counter affidavit and in Para 1(d) and (e), the respondents have so stated:

d. Though the age for enrolment in TA is 21 years more than regular Army, age criteria for promotion to the rank of Naib Subedar in TA has not

been laid down in TA Regulations 1948 Edition-1976. However, as per Additional Directorate General of TA, Integrated Headquarters of Ministry of

Defence Army letter No. 81655/GS/TA-3 (a) dated 21 Mar 2001, TA Havildar can be promoted to the rank of Junior Commissioned Officer before

completion of 50 years i.e. retirement age of Other Rank and there is no cut-off age for promotion in r/o TA personnel.

e. ""Recommendation Roll"" for promotion to the rank of Naib Subedar Clerk in r/o Number 10362998F Havaldar Clerk Abtar Rai has been rejected

due to his age (47 years), which is unfair and against the natural justice, as enumerated in letter given in Para (d) above."" [Emphasis supplied]

Thereafter again in reply to the facts in Para f(ii), the respondents made the following averments :

(ii) That the individual also informed that another personnel having Army Number 10260287 Havaldar (General Duty) Kruti Das Katua of 120 Inf Bn

(TA) BIHAR have also been promoted to the rank of Naib Subedar (in the yr 2012) by exceeding more than 2 years i.e. at the age of 46 years.

In fact, recommendations in the case of the applicant have been made and the respondents fairly state in the counter affidavit that the applicant is

entitled to waiver claim and he is entitled for consideration and in reply to Para 8 regarding the relief sought, the respondents have made the following

averments:

(a) Though the age for enrolment in TA is 21 years more than regular Army, age criteria for promotion to the rank of Naib Subedar in TA has not

been laid down in TA Regulations-1948 Edition-1976),Theindlcanbe promoted as per Additional Directorate General of TA, Integrated Headquarters

of Ministry of Defence Army letter No 81655/GS/TA-3 (a) dated 21 Mar 2001 (copy attached as Annexure-I) vide which TA Havildar can be

promoted to the rank of Junior Commissioned Officer before completion of 50 years i.e. retirement age of Other Rank and there is no cut-off age for

promotion in r/o TA personnel.

(b) Keeping In view the OA and service profile of Havildar Clerk Abtar, it is recommended that the Individual be promoted to the rank of Naib

Subedar Clerk (Head Clerk) in 126 Inf Bn (TA) JAK RIF as per directions contained in letter mentioned in Para 8 (a) above."" [Emphasis supplied]

From the aforesaid, it is clear that though the age of enrolment in TA is 21 years, more than the regular Army personnel, age criteria for promotion

to the rank of Nb Sub in Territorial Army has not been laid down and the individual, namely, the applicant, can be promoted as per the Circular dated

21.03.2001 (Annexure-I) and it is clearly indicated that the applicant can be promoted to the rank of Junior Commissioned Officer before completing

50 years i.e. retirement age of other rank, and there is no cut-off age for promotion in respect of TA personnel. Finally, in Para 8(b), it is clearly stated

that in view of the averments made in the OA and the service profile of the applicant, Havildar Clerk, Abtar Raj, recommendations have been made

that the individual be promoted to the rank of Naib Subedar Clerk (Head Clerk) as per directions contained in letter mentioned in Para 8 (a) above.

Taking note of the aforesaid admission made by the respondents, we see no reason to keep the matter pending. Based on the stipulations contained

in the counter affidavit filed by the respondents, we allow this application and direct the respondents to consider the case of the applicant and without

applying age-criteria, grant benefit to the applicant for promotion to the rank of Naib Subedar Clerk with all consequential benefits with effect from the

date of his entitlement as per rules. Respondents are further directed to comply with the above directions and pass appropriate orders within a period

of two months from the date of receipt of the copy of this order.

With the aforesaid, OA as well as MA stand disposed of.