High Court · 2009

2. The petitioner after serving with Garhwal Rifles from 19th November, 1973 to 30t h November, 1997 was re-enrolled into the Defence Service Corps on 27th March, 1 999 in the rank of Havildar (GD) and promoted to the rank of Naib Subedar (’Nb S ub’ for short) (GD) with effect from 14th May, 2005. Although the petitioner was re-enrolled in the Defence Service Corps in the rank of Havildar for an initial contractual period of five years with effect from March, 1999, the said period was extended for a further period of five years upto March, 2009. As per the ter ms and conditions of re-employment after completion of the contractual period, a n individual can opt for further extension of service by giving willingness cert ificate. This extension is subject to meeting the requisite qualitative requirem ents such as Discipline, ACR and Medical Category. The criteria with respect to ACR (the ’ACR criteria’, for short) for grant of extension stipulates that out o f last five years’ ACRs, at least three should be ’High Average’ and the two rem aining reports should be not less than ’Average’. Since the petitioner was due for further extension with effect from 27th March, 2009, the petitioner had given his willingness for further extension and accordi ngly, authority decided to retain him in service w.e.f. 24th December, 2000 to 2 3rd December, 2011 which was also approved vide Ser No.98 of DSC(R) SBP No.CA.1/ 1821/SCB/Gen dtd. 30th January, 2008 (Annexure-20 to the writ petition). However , on the ground of not meeting of the ACR criteria, he has not been granted exte nsion of service beyond 26th March, 2009. Consequently, orders to carry out the discharge of the petitioner on completion of the present terms of engagement has been issued vide Defence Service Corps Records Letter No.CA-1/1612/CTE/DO/Ser-1 46/2008 dated 25th June, 2008.

3. In the present writ petition, the petitioner has assailed the af oresaid order dated 25.06.2008 issued by the Senior Record Officer, Defence Secu rity Corps Records (Annexure-24 to the writ petition) by which the petitioner wa s ordered to be discharged from service w.e.f. 31.03.2009 due to non fulfillment of ACR criteria for extension.

4. Heard Mr PN Choudhury, learned counsel for the petitioner. Also heard Mr H Rahman, learned Assistant Solicitor General (’ASG’ for short) of Indi a assisted by Mr. N. Baruah learned Central Govt. counsel appearing for the resp ondents. Mr. Choudhury has submitted that the petitioner was never commun 5. icated the adverse remarks, if any, of the ACR or the fact that he has received a grading in the ACRs which potentially will have a detrimental effect on his pr ospects regarding extension of service. The competent authority vide letter date d 4th August, 2007 communicated the petitioner on the subject (cid:28)Observation 2006 (cid:29) directing him to explain as to why he had given his own rema rks on extract of para 17 instead of signing in the extract. The petitioner ha d written that (cid:28)this is not correct (cid:29), in view of the fact that he was not commun icated as to what negative remarks had been written and nor any written counseli ng given to improve his standard. Mr. Choudhury would further urge that the peti tioner also represented to the respondent No.5 through respondent no. 8 vide let ter dated 19.4.08 and to respondent No. 12 vide letter dated 21.4.08 regarding h is refusal to sign the ACR records which, as per the petitioner was given for si gnatures two years after the period was over. By the aforesaid representations t he petitioner also requested the authority to let him know as to why his signatu res were not taken at the relevant point of time. However the representations so submitted by the petitioner have not been disposed of till date and those are p ending before the authority since date of submission. Neverthele ss the competent authority thought it fit to extend the duration of his service period with effect from 24.12.2009 to 23.12.2011 vide Ser No.98 of DSC(R ) SBP No.CA.1/1821/SCB/Gen dtd. 30th January, 2008 (Annexure-20 to the writ peti tion).

6. Mr. Choudhury went on to submit that in light of the aforesaid a pproval order, it was very surprising for the competent authority to pass the im pugned order on the ground that the petitioner’s service cannot be extended due to non fulfillment of the ACR. On the point regarding non fulfillment of ACR cri teria, Mr. Choudhury has submitted that the petitioner was not at all made aware about any adverse remark made against him or the fact that the remark made agai nst him in the five previous ACRs were not meeting the aforesaid ACR criteria, w hich ultimately lead to his non-extension of service. Mr. Choudhury further con tended that had such communication been made to him, he could have filed statuto ry appeal as per provision laid down in the Army Order (’AO’, for short) 1/2002/ MP-Confidential reports (CRs): JCOs and NCOs. The relevant Army Order No. 44 con tained in AO 1/2002/MP is quoted hereunder: (cid:28) Communication of ’Average’ Grading.

44.’Average’ assessment in any personal quality or demonstrated perform ance or in overall grading is not an adverse grading , thus, needs no justificat ion in the pen picture. However, since ’average’ grading adversely effects promo tion prospects of a JCO/NCO including grant of honorary commission/rank, it will be communicated & &. (cid:29) Referring to Army Order 44 as quoted above, Mr Choudhury has submitted that only after receipt of the affidavit-in-opposition filed by the respondent in the instant writ petition, the petitioner came to know that he has not been a ble to meet the eligibility criteria for extension of service. Mr Choudhury has submitted that the criteria for extension of service contained in records offi ce instruction 40/92 amended vide record office instruction 2/01 as further amen ded vide office instruction 4/2008 is that out of the last five years ACRs, thre e should be ’High Average’ and the remaining two should be not less than ’Averag e’. However the respondents while not extending the service of the petitioner on the ground of not meeting of ACR criteria till date has not made it clear as t o which order the petitioner has been graded average/high average etc. The petit ioner is in dark about the grading made in his ACRs. Mr. Choudhury therefore submitted that denial of extension of service without co mmunicating the adverse entry or without communicating the fact that the remark made against him in the five previous ACRs were not meeting the aforesaid ACR cr iteria is improper which has adversely affected the petitioner’s legitimate expe ctation of extension of service up to 23.12.2011. Thus Mr Choudhury submitted th at the impugned order is to be interfered with in the facts and circumstances of the case by setting aside and quashing the same. Mr Rahman, learned ASG appearing on behalf of the respondents ha 7. s submitted that a detailed affidavit-in-opposition has been filed on behalf of the respondents contending inter alia therein that as per the terms and conditio ns of re-employment after completion of the contractual period, an individual ca n opt for further extension of service by giving willingness certificate. Howeve r, this extension is subject to meeting the requisite qualitative requirement su ch as discipline, ACR and Medical Category. In the instant case, since the peti tioner failed to meet the ACR criteria he could not be granted extension of serv ice beyond 31.3.2009 and accordingly, the impugned order dated 25.6.2008 came to be issued. Relevant para 19 is quoted hereunder: (cid:28)That as regards the statements made in paragraph 20 of the Writ Petitio n, I beg to state that the period in question referred to by the petitioner i.e. 24th December, 2009 to 23rd December, 2011 is meant for enhance period of servi ce which is different from periodical extension of service on completion of exis ting contracted period of engagement. The criteria for extension of service diff er from enhanced period of service. The screening for extension of such service is being done 10 months in advance from the date of completion of present engage ment. For the extension of service of Nb Sub/Sub, last three years ACR’s in the rank of JCO are being considered out of which two should be (cid:28)Above Average (cid:29) and one should not be less than (cid:28)High Average (cid:29) in accordance with Record Office Inst ruction 14/92 amended vide Record Office Instruction 2/2001 as amended vide Reco rd Office Instruction 4/2008. As for enhanced period of service of Nb Sub/Sub is concerned, the screen ing is being done two years in advance of the completion of 55 years of age in t he Defence Service Corps. As such, the screening of the petitioner for enhanceme nt of two years was held on 30th January 2008 i.e. two years in advance and was granted as he was meeting the conditions thereof and the last five years ACR’s w ere being considered out of which three reports irrespective of rank should be H igh Average and two should not be less than average in accordance with Record Of fice Instruction 2/1999. However, when the petitioner’s periodical extension cas e was considered on 23rd May, 2008 it was found that he was not meeting the crit eria for the same. Since the petitioner was not fulfilling the ACR criteria for periodical extension of service with effect from 27th March, 2009 to 23rd Decemb er, 2009 discharge order in his respect has been issued. Furthermore, on being not eligible for periodical extension of service w ith effect from 27th March, 2009 to 23rd December, 2009 due to non meeting of AC R criteria, the enhance period of service granted with effect from 24th December , 2009 to 23rd December, 2011 has no relevance as the petitioner will not be in service and the grant of enhancement is subject to continuous service. (cid:29)

8. Regarding willingness certificate of the petitioner for extensio n of service, it has been contended at para 17 of the affidavit-in-opposition as follows: (cid:28)That as regards the statements made in paragraph 18 of the writ petition, I beg to state that the willingness certificate of the petitioner for extension of se rvice for the period from 27th March 2009 to 23rd December, 2009, i.e. upto his superannuation age of 55 years was received in the Defence Service Corps Records during May, 2008. The petitioner had not been granted the extension of service beyond 27th March, 2009 as he did not fulfill the ACR criteria for grant of exte nsion as laid down vide Record Office Instructions 14/92 amended vide Record Off ice Instructions 2/2001 and 4/2008. As regards the recommendation on the willing ness certificate by the Medical Officer and the Commanding Officer, I beg to sta te that such recommendation on the willingness certificate by the Medical Office r and Commanding Official is normally done in all cases of periodical extension of service but the grant extension of service by the Defence Service Corps Recor d is done only after ensuring fulfillment of all eligibility conditions. As such the averments made by the petitioner is not factually correct and the same is c ategorically denied by the answering respondents. The relevant portion of the Record Office Instructions is quoted below a s follows:- (i) & & & & & & & & & & & & & & & & & & & & & & & (cid:28)(d) ACR Criteria. (ii) Nb Sub/Sub. At least three of the last five years reports irrespective o f rank, should be ’High Average’. The remaining two reports should be not less t han ’Average’. (iii) (iv) & & & & & & & & & & & & & & & & & & & & & & &.. & & & & & & & & & & & & & & & & & & & & & & & (cid:29) On a bare perusal of the statements made in the affidavit-in-opp 9. osition, it reveals that the only contention of the respondents for not granting extension of the petitioner’s contractual service is due to non fulfillment of ACR criteria. The contention of the respondents regarding other allegations made in the writ petition is therefore, found to be not relevant for deciding the is sue involved. Mr Rahman would urge that the petitioner is not eligible for furth er extension of service as he had failed to meet the eligibility criteria of ACR . As laid down in the Record Office Instruction of the Defence Service Corps, in itially the contract term of engagement is for a period of five years which is e xtendable by another five years subject to submission of written willingness by the concerned person and fulfillment of eligibility condition for such extension . Since the petitioner has failed to fulfill the eligibility condition for exten sion of service beyond 26.3.2009 he is being discharged from Defence Service Cor ps w.e.f. 31.3.2009. Other allegations made have been denied by the respondents. Mr Rahman has also submitted that the petitioner had only challenged the discha rge order dated 25.6.08 praying for setting aside and quashing the same. But, th e petitioner has not made any prayer to set aside and quash the ACR. Mr Rahman h as submitted that the discharge order is in accordance with the provisions as la id down in the Army Order Instruction on the subject and as such the petitioner’ s case for extension of service does not justify any merit. No case has been mad e out for interference by this Court and the writ petition is therefore liable t o be dismissed.

10. Heard the learned counsel appearing for the parties at length. A lso perused the materials on record. On a perusal of the materials on record, th is Court is of the opinion that in the instant case, the extension of the period of service of the petitioner was approved by the competent authority but benefi t of extension has been rejected on the ground that ACR criteria which is requir ed to be fulfilled was absent in the petitioner’s case. However, no specific det ails about the ACRs nor the ACR/records themselves were produced before the Cour t. In the above circumstances, I am constrained to hold that the respondents hav e failed to substantiate the ground of denial of benefit of extension of service of the petitioner from 24.12.2009 to 23.12.2011.

11. The Court also observes that the petitioner has submitted repre sentations before the respondent No. 5 and 12 in the month of April, 2008 itself in connection with his refusal to sign the ACR which as per the petitioner was given for his signature only after a gap of two years. However, those representa tions have not been disposed of till date. Furthermore, as per Rule 44 quoted he reinabove, the petitioner is also entitled to be communicated any grading advers ely affecting his prospects of getting extension of service.

12. I find no material to substantiate that the impugned order was p assed in accordance with law and in the interest of justice. Therefore, inevitab le conclusion is that the impugned order is not sustainable in law and is liable to be set aside and quashed. The impugned order dated 25.6.2008 is accordingly set aside and quashed but only so far the writ petitioner is concerned.

13. The Writ Petition is allowed. However, considering the facts and circumstances of the case, there shall be no order as to costs.