OA 593/2016. Case: Arun Kumar Vs Union of India and Ors.. Armed Forces Tribunal

Case Number:OA 593/2016
Party Name:Arun Kumar Vs Union of India and Ors.
Counsel:For Appellant:S.S. Pandey, Advocate and For Respondents: K.S. Bhati, Sr. CGSC and Dillip Kumar Nayak, Advocate
Judges:Babu Mathew P. Joseph, J. (Member (J)) and Lt. Gen. S.K. Singh, Member (A)
Issue:Constitution of India - Article 14
Judgement Date:February 14, 2017
Court:Armed Forces Tribunal
 
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Order:

Babu Mathew P. Joseph, J. (Member (J)), (Principal Bench, New Delhi)

  1. This original application has been filed for a direction to the respondents to promote the applicant to the rank of Major General with effect from 21.09.2015 and for other reliefs.

  2. Heard Shri S.S. Pandey, learned counsel appearing for the applicant, and Shri Karan Singh Bhati, learned Senior Central Government Standing Counsel appearing for the respondents.

  3. The facts that are necessary for disposing of this original application as stated by the learned counsel for the applicant are as follows:- The applicant was commissioned in the Corps of Engineers in the Army on 13.06.1981. He was promoted from time to time to higher ranks. On his promotion as Brigadier, he was posted as Chief Engineer, Project Himank, on 28.07.2008. The Project Himank was to be executed at Leh, Ladakh. It is a project concerning development of road, air fields, bridges etc. The applicant served in the Project Himank from 28.07.2008 to 31.12.2008. During this period road sign boards, tarpaulins, plywoods, steel shuttering plates and paints were procured for executing different works in connection with Project Himank involving approximately Rs. 70 Lakhs. For executing all the works, there were 42 Staff Officers under the applicant. Before the procurement of the said items, the proposals were pre-audited by Integrated Financial Advisor, an independent authority. The works were executed with the financial concurrence of the Integrated Financial Advisor. 90 roads and 03 airfields were under the Project Himank. One officer in the rank of Colonel was in charge of works and planning. For planning, design, resources, budget and contract there were five Lieutenant Colonels separately in charge. All these six officers were under the applicant. There were three task forces for executing the work. The requirement of stores is placed by these task forces. The annual resource appreciation is also done by them. Owing to extreme climatic conditions i.e. the temperature even goes down to minus 20 to 30 degrees, normally such type of works could be carried out only during the months of July to November in a year. Other months are not suitable for execution of such works. If the works were not executed during the period July to November, it is extreme difficult, if not impossible, to execute such works in that region. Therefore, all efforts have been taken for executing the work during that period.

  4. The Chief Technical Examiner of Border Road Development Board conducted a vigilance check in respect of the execution of work of Project Himank for the period 2007 to 2010. (i) The applicant (Brigadier Arun Kumar), (ii) Brigadier D. Palit and (iii) Brigadier S.K. Wadhawan had worked as Chief Engineers during the said period for the execution of Project Himank. (i) Colonel R.V. Godake, (ii) Colonel G. Santosh Kumar, (iii) Colonel A.K. Dass and (iv) Colonel S.B. Moharil were the Commanders of two task forces for the execution of Project Himank during the said period. During the vigilance check by the Chief Technical Examiner of Border Road Development Board, procedural irregularities were found against these seven officers. The Central Bureau of Investigation (CBI), based on some source information, had registered a case on 15.01.2013 in regard to the execution of Project Himank. The CBI had conducted a preliminary inquiry into the matter. During that inquiry, the applicant was never called or questioned by the CBI. After such enquiry, the CBI in their report dated 30.09.2013, recommended for a Regular Departmental Action (RDA) for major penalty against the said seven officers for irregularities/misconduct. The CBI also sent copies of their recommendations to the Chief Vigilance Officer, Ministry of Defence and to the Director General of Border Road. Nothing was heard about the matter thereafter quite a long time.

  5. The applicant was considered for promotion to the rank of Major General by the No. 1 Selection Board on 17.10.2014. The Selection Board recommended his name for promotion to the rank of Major General. The Ministry of Defence (MoD) approved the empanelment of the applicant for promotion to the rank of Major General in the 'Staff Only' stream in General Cadre. That fact had been communicated to different commands by the Military Secretary's Branch, Army Headquarters, by Annexure A-2 letter dated 29.12.2014. The applicant was granted Sl. No. 45(a) in the select list as evident from the letter dated 07.01.2015 issued by the Military Secretary's Branch, Army Headquarters (part of Annexure A-2). The approval of the selection of the applicant for promotion to the rank of Major General was granted by the MoD only after necessary Discipline and Vigilance (D.V.) clearance by the concerned authorities. Sl. No. 45(a) was the first person to be appointed as Major General in the 'Staff Only' stream.

  6. In September, 2015, the Army Headquarters sent the names of applicant [Sl. No. 45(a)] and Brigadier Amardeep Bhardwaj (Sl. No. 46) to MoD for appointment as Major Generals. Accordingly, Brigadier Amardeep Bhardwaj was given promotion to the rank of Major General and posted him as such on 21.09.2015.

  7. While so, a Court of Inquiry was ordered as per Convening Order dated 09.10.2015 of the General Officer Commanding (GOC), 14 Corps, Leh, in respect of Project Himank for the period 2007 to 2010. Irregularities and violations of prescribed procedures, rules and regulations, if any, in the procurement and purchase of various items during the period 2007 to 2010 were the subject matter of such Inquiry. The applicant was called as a witness in that Inquiry. The Inquiry was concluded on 27.10.2015. After Inquiry, the findings had been entered by the Inquiring Authority. Only some minor irregularities and procedural lapses were found against the officers. No financial loss or financial embezzlement was found against the officers.

  8. The GOC, by order dated 20.11.2015, agreed with the findings of the Court of Inquiry. The GOC, after considering the matter, directed that administrative action in the form of suitable censure be initiated against the applicant, Brigadier A.K. Dass and Brigadier S.B. Moharil for the lapses mentioned against them in the procurement of various items. Thereafter, the applicant received Annexure A-5 Show Cause Notice dated 01.12.2015 from the GOC directing the applicant to submit his explanation within a period of 30 days from the date of receipt of the Show Cause Notice as to why censure in an appropriate form shall not be awarded against him. The applicant submitted his reply dated 05.12.2015 to the Show Cause Notice explaining the reasons for not imposing the proposed punishment. The D.V. ban already imposed was confirmed by Annexure A-8 order dated 21.12.2015 with effect from 20.11.2015. Thereafter, by Annexure A-6 order dated 23.12.2015, the GOC imposed censure in the form of Severe Displeasure (Non Recordable) on the applicant. The D.V. ban imposed was lifted by order dated 31.12.2015 w.e.f. 23.12.2015 (Part of Annexure A-8).

  9. In January, 2016, the file for giving posting to the applicant in the rank of Major General was forwarded from the Army Headquarters to the MoD for their approval. Since the MoD did not take any decision regarding the promotion of applicant to the rank of Major General, he was constrained to file this Original Application. During the pendency of this O.A., the Army Headquarters issued order dated 30.06.2016 for the retirement of the applicant and others on 28.02.2017. Similarly, during the pendency of this O.A., the MoD issued a communication to the Army Headquarters in July, 2016 observing that the punishment imposed on the applicant was insufficient and hence, it should be reviewed. Thereafter, the Army Headquarters reconsidered the entire matter and informed the MoD that the...

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