Ige Sora Jc113838 vs Union Of India &Ors.

This writ petition under Article 226 of the Constitution of India has been filed by IGE Sora, JC 113838, who is presently working on the post of Naib Subedar at Tamenlong, in the State of Manipur with the Assam Rifles. The petitioner has prayed for issuance of a writ of mandamus setting aside and quashing the impugned promotion order dated 01.01.2016 issued in favour of the respondent No. 4, who is junior to him and directing the respondents to consider his case for promotion to the post of Subedar (GD), with all consequential service benefits including seniority. It may be noted at the outset that despite service of notice by registered post, the respondent No. 4 has chosen not to contest the matter.

The brief facts of the case are that the petitioner was appointed as Rifle Man in Assam Rifles in 1981. The petitioner was promoted to the post of Lance Naik in the year 1993 and thereafter promoted to the post of Naik during the year 1995. Petitioner was further promoted to the grade of Havildar (GD) in the year 1997.Thereafter, he was promoted to the cadre of Naib Subedar w.e.f. 01.08.2007 in 11 AR, C/O 99 APO at Moreh in the District of Chandel, Manipur. Petitioner was thereafter sent to HQ, IGAR (N), Nagaland, Kohima to work as Intelligence JCO in public interest. He joined the post on 10.04.2010 and continued to discharge his duties there till August, 2013. During that period, the petitioner was awarded Very Good/Outstanding bench mark in his ACR/APAR. Petitioner was repatriated from there in the month of August, 2013. One post of Subedar (GD) fell vacant in the month of April/May, 2013 due to the retirement on superannuation of Ex-Subedar, JC 113600 Tagia Dai. According to the petitioner, he was the only candidate in ST category available in the zone of consideration for promotion to the vacant post of Subedar (GD), but inspite of his repeated approach, his case was not considered for promotion on the alleged ground that the bench mark of ACR/APAR given during the period of deputation at IGAR (N) Nagaland, Kohima, could not be taken into consideration for the purpose of promotion to the cadre of Subedar (GD).

Mr. M. Chanda, learned counsel for the petitioner has submitted that there is no provision anywhere in the relevant rule that ACR/APAR earned by an employee during the period of deputation would not be considered for the purpose of promotion. The respondents illegally did not consider the case of the petitioner for promotion during the year 2013, 2014 and 2015 although one vacancy for ST category existed all along, on the unfounded premise that the petitioner is not having 5 ACR/APAR in the grade of Naib Subedar (GD) from 11 Assam Rifle. The vacant post of Subedar (GD) was kept unfilled for a long period from May 2013 till 31.12.2015. In the meanwhile, another JCO-114030 X Subedar/GD, Shri Nich Anil of 11 Assam Rifle, C/O 99 APO, who was junior to the petitioner, was considered and promoted to the vacant post of Subedar (GD) in supersession of the claim of the petitioner. It is argued that the said Shri Nich Anil not only did not fall within the zone of consideration, but had also not completed the regular service of five years as Naib Subedar (GD) during the year 2016.

The learned counsel for the petitioner further argued that the petitioner submitted a representation to the respondent No. 2 on 25.07.2016 praying for revocation/cancellation of the impugned promotion order dated 01.01.2016 issued in favour of Shri Nich Anil and further prayed for granting of promotion to him to the post of Subedar (GD) with retrospective effect, at least from the date of occurrence of vacancy, with all consequential benefit including seniority, but no heed was paid to him.

Mr. K. Paul, learned CGC for the respondents opposed the submissions made by the learned counsel for the petitioner and submitted that the petitioner was enrolled with the Assam Rifles on 04.06.1981 as Recruit/General Duty and posted to 11 Assam Rifles on completion of training. He was thereafter, appointed as Lance Naik (GD) on 20.04.1993. Subsequently, he was promoted to the rank of Naik(GD) on 01.09.1995 and then to the rank of Havildar (GD) on 10.10.1997 and thereafter, as Naib Subedar (GD) on 01.08.2007. Learned counsel further submitted that the petitioner was posted to Headquarters IGAR (North) on Extra Regimental Employment (ERE) duty with effect from 03.03.2010 to 19.08.2013. He earned four Annual Confidential Reports (ACRs) during that period there. The learned CGC argued that the promotion of personnel in the force is regulated strictly as per Record Office Instruction (ROI) 04/2002. The following ACR criteria are required for promotion from Naib Subedar to Subedar (GD) as per ROI 04/2002:-

(i) Three (3) out of last five (5) reports should not be below

"Above Average".

(ii) Remaining two (2) reports should not be below "High Average".

(iii) Out of five (5) reports three (3) reports must be from Battalion/ARTC & S/NSG.

Learned CGC argued that since the petitioner was posted at

Headquarters IGAR (North) on ERE with effect from 03.03.2010 to 19.08.2013 and earned four ACRs there for the assessment years 2010, 2010-11, 2011-12 and 2012-13, he was screened by the DPC only on the basis of ACRs for the year 2013, 2014 and 2015. He was not recommended for promotion, as he was found lacking in ACR criteria because he did not possess three reports from the Battalion/ARTC & S/NSG out of five reports. After the reversion of the petitioner to his unit from ERE duty from Headquarters IGAR (North), the petitioner was assessed "Average" in the ACR for the assessment year 2014-15 with the remarks "Recommended" for further promotion. Accordingly, the low figurative assessment "Average" was not communicated to the petitioner in terms of para 6 (b) of Appendix 'B' to ROI 04/97.

Mr. K. Paul, learned CGC has denied that the petitioner was sent on deputation. In fact, he was sent on Extra Regimental Employment (ERE) duty to Headquarters IGAR (North) within the same organization. It was also submitted that the petitioner was the only ST candidate in the unit during the year 2014-2015 falling within the zone of consideration against the existing vacancy of Subedar (GD) in ST category vice JC-113600 Subedar (GD) Tagia Dai who had proceeded on superannuation pension on 01.04.2013, but the vacancy remained unfilled till 31.12.2015 since no qualified (ST category) Naib Subedar (GD) was available in the unit.

It is submitted that above referred to vacancy remained unfilled till 31.12.2015 since no qualified Naib Subedar (GD) in ST category was available in the unit. In the meantime, JC-114030X Naib Subedar (GD) Shri Nich Anil, immediate junior of the petitioner in ST category, who had completed all qualitative requirements, was also screened by the DPC held in the year 2016 and was found eligible for promotion. Therefore, Shri Nich Anil was promoted to the rank of Subedar (GD) w.e.f. 01.01.2016 superseding the petitioner. The petitioner was screened for promotion by the DPC during the year 2016 once again and this time also he was found lacking in ACR criteria mentioned at para b (ii) and (iii) above. Since the petitioner had not earned three mandatory reports from Battalion/ARTC & S/NSG which rendered him ineligible for promotion to the rank of Subedar (GD).

I have given my thoughtful consideration to the rival submissions advanced by the learned counsels for the parties and perused the material on record. Even though the petitioner has asserted in the memo of writ petition that he was sent on deputation at Headquarters IGAR (North) Nagaland, Kohima as Intelligence JCO in public interest on 10.04.2010 and he continued to discharge his duties there till August, 2013, but the respondents have candidly submitted in para 7 of their affidavit-in-opposition that the petitioner was not sent on deputation, but in fact, he was sent on Extra Regimental Employment (ERE) to Headquarters IGAR (North), within the same organization.

It is not that the petitioner had not earned any ACRs grading during the period he was discharging his duties as Intelligence JCO on Extra Regimental Employment (ERE). It is not disputed that the petitioner discharged his duties as Intelligence JCO at Headquarters IGAR (North) Nagaland, Kohima, where he was sent on ERE duty in public interest. He was not sent on ERE on his own request, but was sent there by respondents themselves in public interest. The respondents have admitted the fact that the Headquarters of IGAR (North) Nagaland, Kohima where the petitioner was sent on ERE is part of the same organization i.e. Assam Rifles.

The respondents in para 4 (c) of their affidavit-in-opposition have also admitted that the petitioner earned four ACRs while working at the Headquarters of IGAR (North) for the assessment years 2010, 2010-11, 2011-12 and 2012-13. Assertion of the petitioner in memo of writ petition that during that period he was awarded Very Good/Outstanding bench mark in his ACR/APAR, has not been disputed by the respondents in their affidavit-in-opposition. It therefore emerges out from the record that the respondents have not considered the petitioner eligible for promotion relying on Record Office Instruction (ROI) 04/2002, though the post of Subedar (GD) meant for ST category was available during the year 2013-2015.

The respondents in para 7 of their affidavit-in-opposition have categorically admitted that "the Petitioner was not sent on deputation but was sent on Extra Regimental Employment (ERE) duty to Headquarters IGAR (North), a formation headquarter within the same organization. "Yet the ACRs of the petitioner were ignored altogether and the petitioner not recommended for promotion, even though the post of Subedar (GD) reserved for ST category was available. Respondents have sought to justify their action by relying on Record Office Instruction (ROI) 04/2002 laying down the basic qualitative requirements of ACR criteria for promotion to obtain three (3) reports out of 5 (five) reports from Battalion/ARTC & S/NSG.

This Court is not persuaded to approve of the action of the respondents as to why, when the petitioner was sent on Extra Regimental Employment (ERE) duty to Headquarters IGAR (North), Nagaland, Kohima as Intelligence JCO in public interest on 10.04.2010, within the same organization, the ACR grading earned by him should not be considered for promotion. Legitimate right of the petitioner to consideration for promotion cannot be stultified by involving such arbitrary executive instruction and his junior could not be preferred over him owing to such fortuitous circumstance, which was not in his control. Since the respondents have not disputed the assertion of the petitioner that he earned ACR grading of Very Good/Outstanding during 2010, 2010-11, 2011-12 and 2012-13, the action of the respondents in not granting promotion to the petitioner is declared to be illegal, arbitrary and discretionary, being violative of Article14 and 16 of the Constitution of India.

Consequently, the impugned order dated 01.01.2016 is quashed and set aside. The writ petition succeeds and is hereby allowed. The respondents are directed to consider the case of the petitioner and to grant him promotion with effect from 01.04.2013 when the post of Subedar (GD) became vacant, with all consequential benefits, together with interest @ 9% per annum. The whole exercise shall be completed within 3(three) months from the date of receipt of a copy of this order, so as to make compliance of this judgment.

With the above noted directions, the writ petition is accordingly allowed.