Gopi Chand vs Union Of India And Others

Vide separate order; OA stands disposed off.

Original record handed over by the respondents be returned against receipt.

This original application has been filed under Section 14 of AFT Act. 2007 by the applicant. a Subedar (now retired) of the Army Medical Corps

(AMC), who was not empanelled for promotion to the rank of Subedar Major (Ambulance Assistant) by the Departmental Promotion Committee

(DPC) conducted by the respondents on 22 08.2017. He has made the following prayers:-

-a) To call for the records and list of seniority which shows the retirement and promotion of various personnel including the applicant.

b) To expunge the adverse remarks/ACR of the year 2017 of the applicant and to restore the actual seniority of the applicant.

c) To direct the respondents to consider the applicant for the promotion to the rank of Substantive Sub Maj (Amb Astt.)

d) To set aside the release/discharge order issued vide 35000MP/RO(JC0)/SER-194 dated 09 11.2017.

e) To direct the respondents to retain the applicant in the service of nation till his superannuation period Le.. age of 58 years.

Heard the learned counsels for both the parties and perused the pleadings and records on file, including the ACR dossier of the applicant, the

proceedings of the DPC conducted by the respondents on 22.08.2017 and the supplementary DPC conducted on 16.01.2018, which were handed over

during the course of the final hearing on 02.07 2019.

The facts of the case, as averred by the applicant are that he was enrolled as an Ambulance Assistant (AA) in the Army Medical Corps on

19.12.1988. After 27 years of meritorious service, he was promoted to the rank of Subedar on 01.11.2015. As the applicant did not clear the DPC and

supplementary DPC for promotion to the rank of Sub Maj. in the Ambulance Assistant (AA) category conducted in 2017. the respondents issued

orders for his discharge from service w.e.f. 31.12.2018.

Learned counsel for the applicant has contended that the applicant was not successful in being selected for promotion by the DPC because of the

unjustified act of the respondents in taking into consideration the adverse remarks entered in the ACRs of his last year of service prior to conduct of

DPC, about which the applicant was not aware. as he. in clear violation of the law. had not been informed about these remarks. Counsel has averred

that the applicant had received a number of accolades and awards from his superiors during the course of his service. Further, it has been contended

that Respondent No. 8 (Colonel V. Kartik, who was his Initiating Officer) and Respondent No. 9 Brigadier (later Maj Gen.) A Chakravarthy. who

reviewed his ACR) were not in good terms with the applicant and have graded him poorly and written adverse remarks in his ACRs of 2017 due to ill

will and malice. Counsel has also argued that marks for three instructional tenures have not been considered by the DPC and he was unfairly posted

out after very short tenures. which put him at disadvantage.

Counsel submits that the applicant had filed a statutory complaint addressed to respondent No.1 (Govt. of India/MoD) on 13.02.2018 but the same

has not been responded to despite a number of reminders as well as orders by this Tribunal. Consequently. the applicant has retired from service,

without being provided redress for his genuine grievances. This being patently unfair. the impugned ACR(s) should be set aside and the applicant

should subsequently be provided a fresh DPC.

Learned counsel for the respondents has controverted the arguments made on behalf of the respondents. However, it needs mention that this

Tribunal, in its order dated 08.04.2019, had returned the counter affidavit filed by the respondents on the ground that it did not contain the order, if any,

passed by the respondents in response to the statutory complaint filed by the applicant on 13.02 2018, the same is reproduced as under:-

ORDER 08.04.2019

The counter affidavit does not contain the order if any passed on the statutory complaint moved by the applicant in February, 2018, despite

there being a specific direction to accord consideration to the same within four weeks only. We thus refrain from taking the counter

affidavit on record, which the respondents-Union of India intends to place on record by moving a Miscellaneous Application seeking

condonation of delay of 57 days in filing the same. Resultantly, it is directed that the Miscellaneous Application 1030 of 2019 and the

Counter Affidavit dated 25.03.2019 shall be taken out of the original records. Registry to return the M.A. and the counter affidavit to

learned counsel for the respondents against proper receipt.

We grant another three weeks' time to the respondents to file counter affidavit strictly in compliance of order dated 18.12.2018. Any delay

in doing the needful shall be taken very seriously by the Tribunal, as we have come across in several cases of the same type, where the

statutory complaints are not being decided even after consuming 12-13 months, whereas as per Para 364 of the Regulations for the Army, it

has to be considered within six months only.

List again on sth May, 2019.

Sd/-(Justice Virender Singh) Chairperson

Sd/-(Lt.Gen.Sanjiv Chachra) Member (A)

Thereafter. on 06.05.2019, the Tribunal after considering the fact that the statutory complaint moved by the applicant on 13.02.2018 had still not been

responded to. ordered that the right of the respondents to file counter affidavit stands closed. Respondent No.2 has since, on 02.07.2019, responded to

the statutory complaint, rejecting the same on the ground that it is devoid of merit.

7 We have given careful consideration to the arguments from both the sides and find that the primary issue before us is whether the applicant was

given fair consideration, both with regard to his ACRs for the affected period as also with regard to conduct of his DPC, for promotion to the rank of

Subedar Major.

On examination, we find that the box gradings by his lOs and ROs in his last four ACRs (Available in his ACR dossier) are as follows:-

(a) 18. by /0 and '8' by RO in ACR for 2013-14.

(b) '9 by /0 and '9. by RO in ACR for 2014-15.

(c) '8' by /0 and '8' by RO in ACR for 2015-16.

(d) '7' by /0 and '6' by RO in ACR for 2016-17

Pen Pictures on the said ACR is as follows:-

ACR 2016-17

PEN PICTURE BY THE INITIATING OFFICER

The JC0 has conducted all courses held at OTC taking Them to their successful completion. Conducts drill for MOBC with a sense of

commitment. Has strived hard to achieve requisite standards as JCO VC of Courses.

x x x

Col Kartik V

DS (Coord)

01 June 2017

PEN PICTURE BY THE REVIEWING OFFICER

A high average JCO with satisfactory performance

Sd/- x x x

Brig A Chakravarthy

Thus. we find that the applicant has been graded poorly in his ACR for the year 2016-17 covering the period from 01 06 2016 to 31.05.2017, both

by his Initiating Officer viz. DS (Coord) and his Reviewing Officer, viz. Deputy Commandant. Officers Training College (OTC), Army Medical Corps

(AMC). Lucknow. in that the quantified gradings for Personal/Demonstrated and Professional Qualities are well below the gradings that the applicant

had been receiving in his previous ACRs.

We also take note of the fact that the applicant was awarded the Best NCO award in 2013 by Commandant AMC College & Centre and that he

had attained 2nd position in Senior Cadre Course in 2013-14.

In our opinion, there is inconsistency clearly apparent in ACR gradings awarded to the applicant in the year 2016-17, both by the 10 and the RO

Further. we find that there is no explanation as to why there is a sudden drop in performance in 2016-17 compared to previous years, as reflected in

the applicant's ACR of that year. Furthermore, the applicant has not been informed about the drop in his quantified ratings by his 10 and RO. which

practice run contrary to the extant norms of service and principles of natural justice. Thus, ACR of the applicant for 2016-17 is liable to be quashed on

the ground of inconsistency and norms of service.

In the result, we set aside the ACR for 2016-17 in respect of the applicant. DPC for Sub Major (Amb Assistant) 2017 will be conducted again for

him accordingly and applicant will be provided consequential benefits, including reinstatement and promotion. in case he qualifies in merit for

promotion. Actions on same to be completed within a period of three months. No order as to costs.

Pending MA. if any also stands disposed of.

Pronounced in open Court on the 19th day of September, 2019.