O.A. No. 34 of 2012. Case: Ram Surat Yadav Vs The Secretary, Ministry of Defence and Ors.. Armed Forces Tribunal
| Case Number | O.A. No. 34 of 2012 |
| Counsel | For Appellant: Prabhakar Mishra and T. Miranda and For Respondents: Mr. B. Shanthakumar, SPC |
| Judges | V. Periya Karuppiah, J. (Member (J)) and Anand Mohan Verma, Member (Ad.) |
| Issue | Navy Act, 1957 - Section 23 |
| Judgement Date | April 30, 2013 |
| Court | Armed Forces Tribunal |
Order:
V. Periya Karuppiah, J. (Member (J)), (Regional Bench, Chennai)
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This application is filed by the applicant a retired MCEAR-II from Navy, seeking relief's of promoting the applicant to the rank of MCEAR-I with effect from 1.9.2005 after promotion to the rank of MCEAR-II on 1.9.2001; payment of difference of back wages and allowances and retirement benefits for the said post; grant the rank of Honorary Sub. Lieutenant (SDMCEAR-I) with effect from 26.1.2011; promote to the rank of Honorary Lieutenant with effect from 15.8.2011 and for payment of back wages, allowances, retirement benefits such as gratuity, commutation of pension and other benefits for the rank of Honorary Lieutenant with effect from 15.8.2011 and also for any other relief just and proper in the circumstances of the case. The case of the applicant as stated in the application would be as follows:-
The applicant joined Indian Navy on 11.1.1986 as an Artificer Apprentice. After undergoing 04 years training in Electrical Engineering Branch, he was promoted to the rank of Electrical Artificer (Radio) 5th Class (EAR-V). The applicant completed a total service of 25 years 10 months 20 days and retired on 30.11.2011. The applicant scored 60% of average marks during his training period and was awarded 08 weeks paid seniority for accelerated promotion. After the training, he was transferred to INS Sandhayak, where he had undergone various trainings and courses required for qualifying promotion to various ranks in his cadre. Because of his good performance and technical knowledge, he got promotions in time with an accelerated seniority till he reached the rank of MCEAR-II. The applicant was appreciated by his superior officers and Commanding officers and was posted to operational ships during most of his service career. He served as Instructor at Electrical Engineering Establishment INS Valsura, Jamnagar. He also qualified the 'Methods Course' and carried out duties for three years. He imparted technical instructions to senior sailors and trainee officers including foreign naval officers. He was awarded additional seniority for carrying out the instructional duties. He singly carried out installation of HUMSA SONAR Installation &Commissioning which was appreciated by the Commanding Officer of INS Valsura and he was given cash award as a token of his appreciation. He has always been awarded higher score at 4 to 5 out of 5 from his superior officers.
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The Promotion Board for the rank of MCPO-I and MCPO-II is annually held in the month of August and September and the service documents of all eligible candidates would be sent by the respective Commanding Officers for the consideration of MCPO's Promotion Board in the month of May/June. No examination or personal interviews would be conducted by the Promotion Board. It is guided by Navy Order No. STR05/06, other policies and regulations promulgated from time to time by Naval Headquarters. Along with the documents, the Commanding Officers would send their recommendation in Form IN 1032A with respect to eligible and potential sailors to Respondent No. 4 for consideration of Promotion Board. The 4th respondent is responsible to maintain the service records of the sailors of Indian Navy, who would in turn, submit the service records along with the recommendation of the Commanding Officers to the Promotion Board. The Promotion Board would value and scrutinize the records and promulgate a list of sailors for promotion as per the merit in the particular branch. The 4th respondent will promulgate the details of sailors placed on selection list after the approval of the 2nd respondent. A sailor who was not placed in selection list is to be considered again in the following years, by the Promotion Boards and a maximum of three chances are given to sailors before he is finally declared as unsuitable for promotion. On 10.5.2006, the applicant was transferred to INS Ranjit, where he carried out ships education officers' duties apart from his own professional duties. The applicant became due for promotion to the rank of MCEAR I, on 28.9.2005. Applicant's documents along with recommendation were sent to the Office of 4th respondent by Commanding Officer of INS Ranjit for consideration by MCPO's Promotion Board for the year 2006. However, the applicant's name was not reflected in the selection list of sailors. The applicant's documents were once again forwarded by the Commanding Officer INS Ranjit in the year 2007 for selection of MCPO-I with a strong recommendation, since the applicant continued performing his duties excellently. In the second Selection Board also, the applicant was not selected. When the applicant approached the Commanding Officer to know the reason for not getting selected, he was not made known that those matters are confidential. Again, the applicant's service documents were sent to the 4th respondent for consideration by the Promotion Board with a strong recommendation for the year 2008. Despite the applicant's performance, evaluation sheet reflects, the applicant's discipline and professional attitude and the Commander Vikram Singh's evaluation that the applicant is a hard working and dedicated individual carried out duties as Education Officer and a cheerful individual and a rapid learner with the recommendation of promotion, the applicant was not selected in the 2008 year also, which was the final chance for promotion. Shocked by the non-selection, the applicant took up the matter before proper channel. The applicant had no adverse remarks or points in the service records. The persons, who are having inferior service records and professional records, for e.g. one Manoj Kumar, who failed in EAR-III qualifying Board in the year 1992 held at Visakhapatnam, was selected by the Promotion Board in the first attempt for the year 2006. Similarly, one Kailash Chand, failed in EAR-III qualifying Board was selected for promotion to MCEAR-I by the Promotion Board for the year 2008. On visiting the web site of the 4th respondent, the applicant found many anomalies and inaccuracies in his service records. The professional qualification and achievements are necessary for being promoted as MCEAR-I. The applicant, who is very much confident of his high performance and having eligibility criteria for promotion, would suspect that the 4th respondent had submitted wrong and incorrect service records to all the three Promotion Boards and hence the applicant could not get selected by any of them. When it was clarified with the 4th respondent through an ROG (Redressal of Grievances) under Section- 23 of the Navy Act, 1957 and Regulation-235 of Regulations for Navy, Part-II, the respondent replied in his letter that the applicant's record for promotion to MCEAR-I for all the three Boards has been examined and found to be in order. Some error occurred in data uploading from RS 6000 to SIRIMS in the year 2006, and has been rectified. Quoting the said reply, the applicant submits that the reply given by the 4th respondent is mutually contradictory and the documents of the applicant sent by the 4th respondent for all the three Promotion Boards were defective and with errors and, therefore, the applicant's opportunities to promotion as MCEAR-I was shut down by these documents sent by the 4th respondent to the Promotion Boards erroneously for the year 2006, 2007 and 2008. The applicant scored 60% on 20.7.1996 for the courses undergone by him and the person, who obtained 60% marks was said to have not qualified to the promotion. The annual assessment of the applicant for the year 2006 was not held by the 4th respondent which is a very important criteria for judging promotion and potential of the candidate. The non-availability of annual assessment for the year 2006 and the incorrect records of the applicant held by the 4th respondent would make the Promotion Board not selecting the applicant. The selection done for the year 2006, 2007 and 2008 by the Promotion Boards for MCEAR-I rank should have selected the applicant if correct records were provided and the annual assessment of the year 2006 was furnished to the Promotion Boards. The 3rd respondent also did not take any action for the letter dated 20.9.2010 addressed to 4th respondent, the copy of which was forwarded to the 3rd respondent. Therefore, the applicant may be promoted to the rank of MCEAR-I, after going through the records considered by the Promotion Boards and to promote the applicant accordingly.
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The claim for promotion to the rank of Honorary Sub-Lieutenant and Lieutenant, the procedure for promotion is guided by Navy Officers, which are revised by the Naval Headquarters from time to time. Such grant of Honorary Commission are made bi-annually i.e. on Republic Day and Independence Day on the recommendation of the Chief of the Naval Staff, the 2nd respondent after obtaining approval from the 1st respondent. The MCPOs, who are in their last year of service with two chances will be considered for the grant of honorary commission. The individuals, who have completed 25 years of service are eligible for being considered, the applicant was denied the rank of Honorary Sub-Lieutenant by saying that he completed 25 years of service on 4.11.2011 since he was in a boy entry and, therefore, was not considered for promotion on 15.8.2011. The applicant actually joined the Navy through the Artificer Apprentice entry scheme and the requirement for Artificer Apprentice Entry Sailors was only 23 years and it was wrong to say that they also should complete 25 years of service. The Judgment of Hon'ble Apex Court made in Anuj Kumar Dey Vs. Union of India, reported in (1997) 1 SCC 366, would make the qualifying period of service along with the service of Artificer Apprentice and the boy service. Therefore, the applicant was entitled to the honorary promotion of Sub-Lieutenant even on 26.1.2011. Similarly, the applicant...
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