T.A. No. 39 of 2010. Case: Ambati Suryachandra Rao @ A.S. Rao S/o A.N. Rao Vs Government of India rep. by its Secretary and Ors.. Armed Forces Tribunal

Case NumberT.A. No. 39 of 2010
CounselFor Appellant: K.V. Vani, Adv. and For Respondents: R. Priyakumar, CGSC and Sandeep Kumar, JAG Officer
JudgesA.C. Arumugaperumal Adityan, J. (J) and S. Pattabhiraman (A), Members
IssueArmy Act - Section 26; Army Regulations, 1987
Judgement DateJuly 28, 2010
CourtArmed Forces Tribunal


A.C. Arumugaperumal Adityan, J. (Member (J)), (Regional Bench, Chennai)

  1. The unfortunate petitioner, who had a long battle before the High Court of Andhra Pradesh at Hyderabad, had filed second round of litigation by way of filing W.P. No. 27201 of 1999 challenging the impugned order of the respondents in P.C. No. 77760/Q/VIII/ST12, dated 12.09.1997, as illegal and arbitrary.

  2. The short facts in the affidavit to the petition relevant for the purpose of deciding this petition sans irrelevant particulars are as follows:The petitioner was serving in the Army with effect from 12.11.1971. The petitioner was serving as Naib Subedar with effect from 01.03.1991. At that time, when he was serving in HQ 76 INF DBE/HQE 54 Inf DIV/HQ Southern Command, the third respondent was the Reporting Officer of his Confidential Reports. During the year 1991, the petitioner was awarded 7 points with high average performance by the Initiating Officer as well as the Recording Officer. Similarly in the year 1992 also the petitioner earned 7 point from both the said Officers. In the year 1993, the Initiating Officer had awarded 7 points and the Recording Officer had awarded 5 points in the Annual Confidential Report (ACR) of the petitioner. Similarly, in the year 1994 also the Initiating Officer had awarded 7 points and the Recording Officer had awarded 5 points for the petitioner in his ACR. But, to his dismay the petitioner was awarded 4 points by the Initiating Officer and also by the Recording officer in his ACR for the year 1995. Both the recording Officer and the Initiating Officer have recommended the petitioner for promotion to the post of Subedar. Even though the recommendation for promotion was there, because of the average granted in the last ACR i.e., for the year 1995 ACR, the petitioner was not promoted to the post of Subedar. The petitioner had earned in his ACR by his Junior Commissioned Officer 'above average and outstanding'. The higher officials of the petitioner have also appreciated the services rendered by the petitioner in the Army during his service. Only in the year 1995, the Initiating Officer Lt Col G.V. Rao DAAG HQ 76 Infantry Bde and the Reviewing Officer Col M.S. Dahia, Dy. Cdr, HQ 76 Inf, Bde, have awarded only 4 points in the ACR. Because of the award of 4 points by the Initiating Officer confirmed by the Reviewing Officer in the year 1995 in the ACR, the petitioner was denied his promotion to the rank of Subedar. Before awarding 4 points in the year 1995 neither the Initiating Officer nor the Reviewing Officer had noticed or observed any adverse remarks against the petitioner and he was also not sent for counselling. In the mean time, the juniors of the petitioner were promoted to the rank of Superior by order dated 19.04.1996 of the second respondent, which made the petitioner to approach the Honourable High Court of Andhra Pradesh by way of filing W.P. No. 25741 of 1996. The Honourable Single Judge of the Andhra Pradesh High Court, in His order dated 11.08.1997 in W.P. No. 25741 of 1996 was pleased to dispose of the said Writ Petition with the following observations and directions:

    I may take judicial note of the fact that if an average report is given, it is not considered to be an adverse remark and the officer concerned will have no recourse to have it expunged while it prevents his chances of promotion as it goes to reduce the overall ranking when average is taken over the years. The requirement for promotion is that the petitioner should have obtained five marks in each year for a period of three years. In the present case, the petitioner was given seven marks for two years and was given only four marks for the third year. Such a difference cannot be easily explained. I am also satisfied that there is an unreasonable and arbitrary reduction in the rank of the petitioner particularly when he is at the verge of his retirement. I also find that the earlier record shows that he has been consistently getting seven marks almost every year and the report for the last year is glaringly different and does not contain any particular reason except remarking him as barely average when he has been taken as above average which is more than five which is high average.

    In view of the said order, the petitioner was ultimately expecting that he will be given promotion before the date stipulated in the said order of the Honourable High Court of Andhra Pradesh. But, the respondents instead of complying with the directions of the Honourable High Court have preferred Writ Appeal against the verdict in W.P. No. 25741 of 1996.

    2(a) While the Writ Appeal was pending, the fifth respondent passed an order in proceedings No. PC-77760/Q/VIII/ST12, dated 12.09.1997 stating that the case of the petitioner for promotion to the post of Subedar in the light of the observations of the Single Judgment was reviewed in consultation with the JAG Branch and AG/PS-II and that the said promotion cannot be given to the petitioner on the ground that the ACR criteria for...

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