Ex-Captain Gulab Singh Rana v. Union of India

application for pre mature retirement on 20.5.1994. This application was returned by the Army Head Quarter vide letter dated 20.6.1994 asking petitioner to give specific reasons. Pursuant thereto, second application for pre mature retirement dated

23.8.1994 was submitted by him. Giving his reasons for seeking pre mature retirement, the petitioner also mentioned that he had neither been given „Local Rank‟ even after doing the duties seven times, in service interest, of the higher appointment of Battery Commander in High Altitude Area nor was he given WP (C) No. 3068/2003 any substantive promotion by time scale to the rank of Major. On 17.1995 the Army Headquarters asked the petitioner substantiate the grievance and application for pre mature retirement was kept pending till grievance of the petitioner is settled. The petitioner, under these circumstances, submitted a statutory complaint dated 23.8.1995 substantiating the reasons/grievance given by him in his application for pre mature retirement dated 23.8.1994. The petitioner, however, states that statutory complaint was not finalized.

6. The petitioner thereafter also preferred statutory complaint dated 30.3.1998 against non grant of Local, Acting and Substantive rank of Major but the same was rejected by the Ministry of Defence vide its order dated 16.9.1999. This was followed by show cause notice dated 6.12.1999 under Section 19 of the Army Act, inter alia, stating that after considering the performance regarding inefficiency of the petitioner and the recommendations of Chief of Army Staff in the matter, the Central Government was of he considered view that he should not be retained in service due to WP (C) No. 3068/2003 his inefficiency. He was asked to submit papers either for retirement or resignation. He was also given opportunity to make his submissions, if any, within 15 days of receipt of the said show cause notice. The petitioner submitted his reply dated 20.12.1999. Thereafter, he also sent letter dated 7.1.2000 requesting Complaints Advisory Board to put up application for pre mature retirement dated 23.8.1994 to the Central Government for decision. His request for pre mature retirement was ultimately turned down by the Government of India vide letter dated 6.9.2001. Thereafter, petitioner submitted his third application dated 9.10.2001 for pre mature retirement. However, request in this application was not considered and instead on the basis of show cause notice issued to the petitioner on 6.12.1999 under Section 19 of the Army Act, orders dated 31.10.2001 were passed ordering the petitioner‟s removal from service. Pursuant to this order, the petitioner was removed from service on

28.11.2001. Representation given by the petitioner was turned down on 6.3.2002. The petitioner submitted fresh representation dated 10.6.2002 WP (C) No. 3068/2003 through the Department of Administrative Reforms & Public Grievances and as no action was taken on this representation, present writ petition was filed in May,

7. Apart from challenging the removal order, the petitioner has asked for grant of local rank of Major during the period from 8.10.1990 to 31.12.1990, acting rank of Major w.e.f. 31.10.1991 to 18.12.1992 and substantive rank of Major w.e.f. 19.12.1992. In the alternative, it is prayed that the petitioner be allowed to avail his entitled thirty days balance of annual leave for the 2001 from 27.11.2001 to

26.12.2001 as requested by him when he was in service to enable him to complete twenty years of commissioned service thereby making him eligible for time scale promotion to the rank of Lieutenant Colonel and then retire the petitioner from service in the rank of Lieutenant Colonel with consequential benefits. Petitioner has also asked for quashing of Reprimand awarded to him on 17.2.1998.

8. Having given this factual background, we may now WP (C) No. 3068/2003 proceed to discuss the submissions of the parties and our conclusion on each relief sought by the petitioner herein. i) The petitioner had made statutory complaint dated 30.3.1998 to the Central Government against non-grant of local rank, acting rank and substantive rank of Major. This representation was considered by Ministry of Defence, Government of India, but rejected vide order dated 16.9.1999. The first relief which the petitioner claims in these circumstances is that the aforesaid order be quashed and he be given these ranks. A. LOCAL RANK: His plea was that he has not been granted Local Rank to the appointment held by him, though he was posted in service interest during his High Altitude Area tenure in 326 Light Air Defence Regiment (Composite) between 8.10.1990 to 5.10.1991 from time to time. Submission of the petitioner was that out of this period, from WP (C) No. 3068/2003

8.10.1990 to 31.12.1990 he was Battery Commander. This is about 12 weeks‟ period, which, inter alia, is more than 10 weeks. However, his request to give the Local Rank was rejected vide order dated 16.9.1999 on the ground that “an officer cannot be granted Acting Rank and pay and allowance of higher in case the absence of permanent incumbent is less than 10 weeks. In the instant case, the officer has never officiated for the period exceeding 10 weeks”. His submission was that this was a wrong factual basis on which his request was rejected. The submission of the respondents, on the other hand, is that the grant of Local Rank is discretionary as per Para 82 of Regulations for the Army (Revised Edition), 1987 read with Army Order 139/74. It is granted in very exceptional cases. Local Rank is personal to an individual and is not granted automatically incumbent appointment. Therefore, no right as such is WP (C) No. 3068/2003 available to the petitioner to claim the Local Rank. Relevant Para 2 of Army Order 139/74, to which reference is made in this behalf, is as under:- in cases where “2. Local rank is granted in very exceptional cases. It will not be granted involves an unauthorized revision of the rank considered adequate for an appointment by Army HQ a war/interim/peace establishment.” promulgated It may be that the grant of Local Rank is discretionary and is granted in exceptional cases. However, it is not the case of the respondent that the petitioner‟s case was considered in the light of the aforesaid Army Order and rejected. On the contrary, the request of the petitioner to grant Local Rank was shot down on the ground that he was not even eligible to be considered, namely, he had not officiated for the period exceeding 10 weeks. Thus, on this ground alone, at the outset his case was not considered for Acting Rank in the light of Army Order 139/74. During arguments it could not be disputed WP (C) No. 3068/2003 that the petitioner had, in fact, worked for more than 10 weeks as Battery Commander, i.e., from 8.10.1990 to 31.12.1990. It constitutes more than 10 weeks‟ period. His case was rejected on the wrong premise. The Supreme Court has held, in no uncertain terms, in the case of Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851, that the respondent can justify the order only on the reasons contained therein. We are, therefore, of the opinion that case of the petitioner needs to be considered, on merits, for the grant of Local Rank. B) ACTING RANK: The plea of the petitioner was that he should have been granted rank pay of Acting Major from 31.10.1991 to 18.12.1992 when he held the appointment of Battery Second-in- Command, tenable by Major in Light Air Defence Regiment. This request of the petitioner was turned down vide order dated

16.9.1999 giving the following reasons:- WP (C) No. 3068/2003 An officer is granted acting rank “6. the CO depending upon availability of vacancy and when he is fully satisfied with his work and not by merely completing requisite period for eligibility More for acting rank. importantly, however, the officer was put on adverse report by the IO in report ending 1/91. The officer was subsequently put on review report and in accordance with the therefore, provision contained in para 85 of SAO 3/S/89 and SAI 1/7/84, he was debarred from grant of acting rank carrying higher responsibilities. The question of publishing his Acting promotion in the Gazette, therefore, does not arise.” It is clear from the above that the reasons given are: (i) Acting Rank is given depending upon the availability of vacancy and when the Commanding Officer is fully satisfied with the officer‟s work. The petitioner was put on adverse report by the IO in the report ending 1/91. (ii) He was subsequently put on review report and therefore, was debarred from grant of Acting Rank carrying higher responsibilities. WP (C) No. 3068/2003 It is not in dispute that the petitioner had worked in the rank of Major from 31.12.1991 to 18.12.1992. The communication dated

31.10.1991 is enclosed by the petitioner as per which, 1423 appointments held by the Captains have been upgraded to the rank of Major as per the details given in Appendix A attached to the said letter. It included the appointment of the petitioner as well. Thus, he was upgraded to the rank of Major vide the said letter. Other documents to this effect are also enclosed about which there is no dispute. In fact, the respondents have not disputed and aforesaid period during which petitioner was given the duties of the rank of Major. Therefore, the entire controversy is as to whether the petitioner could be denied the acting rank as the Commanding Officer was not fully satisfied with his work, which is because of the purported reason that he was put on adverse remarks by the IO in his report ending 1/1991 and subsequently on review WP (C) No. 3068/2003 report. It was submitted by the petitioner that Army Headquarters had removed the petitioner from review report on 9.8.1995. This communication was sent by the Army Headquarters to Headquarters Northern Command (MS) c/o 56 APO in which it was stated:- letter “1. Reference No.10501/3/MS 4 dated 14 Jul 95 addressed to HQ 16 Corps (MS) and copy of this Branch.

2. It is confirmed that IC – 40157H Capt. GS Rana has been removed from Review Report.” It was the contention of the petitioner that when orders dated 16.9.1999 were passed denying the benefit of acting rank to the petitioner on the ground that he was on review report, error was committed in making the decision on that basis because of the reason that the aforesaid communication was put up to the higher authorities. He submitted that it was again confirmed. However, vide letter dated 3.7.2001 sent from Military Secretary Branch, MS: ADA (MS-17), WP (C) No. 3068/2003 Army Headquarters to 129 AD Regiment c/o 56 APO, following communication was sent:- “1. Ref 406101/GSR/44/A dt 31 May 2001. letter No.

2. MS-4C2 has confirmed that placing or removing an offr on adverse report is the prerogative of his immediate CO vide Para 79 of SAO 3/S/89. Therefore the offr cannot be on adverse report as contended by him unless he has been intimated the same by his CO.” On the basis of this communication, the petitioner contended the Army Headquarters admitted that the petitioner could not be on adverse report as he had not intimated about the same by his Commanding Officer. The petitioner had laid much stress on this document on the basis of which he contended that putting petitioner on adverse report, without intimation, was clearly invalid as accepted by the Army Headquarters itself. This plea of the petitioner, based on the aforesaid, is not subsequently refuted by the learned counsel for the respondent at the time of arguments. WP (C) No. 3068/2003 It is, thus, communication, case of the petitioner for grant of acting rank needed a fresh look inasmuch as, vide orders dated 16.9.1999, the petitioner was denied the acting rank because of the said adverse report. We are, therefore, of the opinion that the case of the petitioner needs to be reconsidered for grant of acting rank as well for the period from 31.10.1991 to

18.12.1992. C) Substantive Rank of Major: The petitioner claims substantive rank of Major on the basis of entry published in the Gazette Notification No.734 of 1993. It is not in dispute that as per the said notification, officers permanent commission from Captain to Major and name of the petitioner finds mention therein. Army List Part II was also revised including the name of the petitioner in the category of Majors holding permanent commissions. Relying upon the said entry in the notification WP (C) No. 3068/2003 the petitioner contends that Section 142(2) of the Army Act clearly stipulates notification is to be treated as invalid authority and evidence for all purpose and therefore, it has to be held that the petitioner was granted substantive rank of Major with effect from 19.12.1992. He submitted that Para 65 of the Defence Service Regulations (DSR), as existed on that date, provided for substantive promotion by time-scale up to and including the rank of Major. Certain eligibility conditions are stipulated promotion to the rank of Major which include completion of specific number of reckonable commissioned service, subject to being found fit in all respects for such promotion and after qualifying prescribed examinations/courses. His submission was that all these conditions were fulfilled by the petitioner because of which he was given the said promotion. The respondents have not denied aforesaid notification and preparation of Army WP (C) No. 3068/2003 List on that basis, including the name of the petitioner to the substantive rank of Major. The entire explanation of the respondent is that name of the petitioner appeared in the said notification by mistake, which mistake was corrected by issuing amendment. In this behalf, explanation is that error took place due to oversight. Thus, the controversy on this aspect revolves around the fact that the notification issued was erroneous, which was ultimately corrected vide Corrigendum No.306 dated 16.4.1994. Answer to this would depend upon the question as to whether the petitioner was eligible promotion to the substantive rank of Major. It is because of this reason that though the petitioner contends that he was eligible, the respondents pleaded otherwise. The argument of the respondents, in this behalf, is that as per Para 85 of SAO 3/S/89 read with Para 65 of DSR 1987, an officer would be eligible for substantive promotion to WP (C) No. 3068/2003 the rank of Major on completion of 11 years of reckonable commissioned service subject to being fit in all respects for such promotion and upon qualifying prescribed examinations/ courses. The petitioner was commissioned on

19.12.1981 and therefore, it is not disputed that as on 19.12.1992 he completed 11 years of service. However, what is contended is that he had to be fit in all respects. But in the case of the petitioner it was found that he was adversely reported upon in the CR for the period September 1989 to November 1989 and was placed on four successive Review Report for the periods July 1990 to January 1991, August 1991 to February 1992, February 1992 to February 1993 and May 1994 to November 1994. It is further argued that as per the policy, cases of officers who are on adverse or review report are pended officers removed Adverse/Review Report and he earns a positive recommendation for promotion and WP (C) No. 3068/2003 for retention in service in the Review Report. Here again, the sole ground for denying the substantive rank is that the petitioner was on review report. We have already indicated communication dated

9.8.1995, reiterated on 3.7.2001, petitioner had been removed from review report. In so far as other conditions of eligibility are concerned, namely, minimum qualifying service and qualifying in the prescribed courses/examinations, it is not at all the case of the respondents that the petitioner did not fulfill those eligibility conditions. The respondents have not at all explained as to whether the name of the petitioner was included in the notification granting substantive rank of Major after the recommendations Promotion Committee. The respondents are silent about it. Normally, it has to be inferred that the Promotion Committee recommended his case inasmuch as, without WP (C) No. 3068/2003 such recommendation notification would not be issued. Furthermore, vide corrigendum dated 17.3.1994 the name of the petitioner was removed from the list of those who were given promotion from Captain to the rank of Major. The petitioner had contended that it could not have been done without even issuing show cause notice to the petitioner. Be as it may, since the petitioner was removed from adverse reports, we are of the view that the case of the petitioner is to be considered by the Review Departmental Promotion Committee. If it is found that there are no adverse/review reports, the petitioner is entitled to promotion to the rank of Major with effect from 19.12.1992. D. Reg. Termination: We may recapitulate, in brief, that the petitioner was given show cause notice dated

28.8.1997 proposing his discharge under Section 19 of the Army Act read with Rule 15 of the Army Rules. We may note that WP (C) No. 3068/2003 whenever there is a proposal to discharge an official under these provisions, opportunity is given to him to seek retirement/resignation. These provisions for discharge are invoked on the ground of inefficiency on the part of the petitioner. The petitioner had not given reply to the said show cause notice and instead he referred to his complaint submitted vide letter dated

23.8.1994 in which he asked for premature retirement. It was, however, found that the aforesaid complaint was returned to him vide letter dated 6.2.1995 and he was advised to submit a fresh application de-linking his request for premature retirement and other issues raised by him. He had not re- submitted his application. Instead, he had submitted separate statutory complaint dated

30.3.1998 for grant of substantive promotion to the rank of major and its rank pay. The case of the petitioner was accordingly processed further on the ground that there WP (C) No. 3068/2003 was no resignation from him. However, the Ministry sought information about outcome of the statutory complaint dated

30.3.1998. As noted above, this was rejected on 16.9.1999 whereafter the case of the petitioner for discharge under Section 19 was again processed. We may also note at this stage that there were subsequent applications given by the petitioner for voluntary retirement/resignation but they were also treated as conditional. Ultimately decision was taken to terminate his services and order dated 31.10.2001. Though after show cause notice dated 28.8.1997, an order of discharge ultimately came to be passed in October 2001, this much time took place because of the reasons stated above in brief. We had perused the relevant file as well which was handed over to us by the respondents. Following two aspects are discernible from the record: WP (C) No. 3068/2003 a) The note for discharge was initiated alleging ground of inefficiency primarily keeping in view petitioner had not been granted the acting/substantive rank of Major due to being on adverse/review CRs and was also not recommended for promotion. At the same time, details of his weak points as well as weaknesses displayed during the last 10 years were also stated. Fact remains non-grant acting/substantive rank of Major and adverse report were the prime forces which led the initiation of this action. In respect of these, we have already concluded that the petitioner was taken off adverse/review CRs as per communications shown by him and we opined local/acting/substantive rank as Major needs to be reconsidered. On this basis his case for action under Section 19 of WP (C) No. 3068/2003 Army Act will also have to be considered afresh. This can be done after the exercise regarding local/acting/ substantive rank is redone and outcome thereof is known. b) At the same time we also find that the petitioner had submitted his resignation from service time and again and his intention was that he should be relieved from service.

9. In these circumstances, without interfering with the orders dated 31.10.2001, at this stage, we are of the exercise local/acting/substantive is done by respondents, case of the petitioner shall be considered under Section 19 of the Army Act read with Rule 15 of the Army Rules. If no change is found in its decision regarding local/acting/substantive rank, it would be permissible for the respondents to stick to its decision dated 31.10.2001. However, if the petitioner is found entitled to acting/substantive rank of Major, the WP (C) No. 3068/2003 decision will have to be taken afresh by the respondents as to whether on that basis they would still like to proceed under Section 19 of the Army Act read with Rule 15 of the Army Rules. At that stage, the petitioner shall be given option to seek voluntary retirement/resignation from service. Entire exercise in this behalf shall be done within four months from today.

10. With these directions, this writ petition is disposed of.

11. No costs. A.K. SIKRI (JUDGE) (JUDGE) J.M. MALIK July 04, 2008 Jk/hp WP (C) No. 3068/2003