Judgment · High Court · 2012

We have heard Mr KN Choudhury, Senior Advocate assisted by Mr G Rahul, A dvocate for the petitioner and Mr R Sharma, learned Assistant Solicitor General of India, Gauhati High Court, Guwahati. Filtering out the unnecessary details, the facts necessary for the dispo sal of the instant interim application disclose that the petitioner had joined t he Indian Army on 15.12.84 and while he was posted as a Major at Aizawl as O.C. No.4 Eastern Command IS Group, a Summary General Court Martial was convened agai nst him on the imputation of abetment of civil offence of transportation of liqu or in contravention of Section 8 of the Mizoram Liquor Total Prohibition Act, 19 95 and on the culmination thereof he was convicted of the charge and was penaliz ed therefor. The General Officer Commanding while confirming the finding of the Summary General Court Martial, commuted the sentence already awarded to (i) forf eiture of three years past service for the purpose of promotion; and (ii) severe reprimand.

Being aggrieved, the petitioner approached this Court with WP(C) 519 9/2002 which was allowed by the judgment and order dated 19.11.2004. Thereby, im pugned proceedings of the Summary Court Martial as well as the penalties imposed on him were quashed and the respondents were directed to accord to him the serv ice benefits including consideration for promotion to the next higher grade. Wri t Appeal No. 249/2005 preferred by the respondents was dismissed on 6.9.2006 af firming the conclusions and directions recorded in the judgment and order dated 19.11.2004. It is a matter of record that the Special Leave to Appeal (C) No. 92 57 of 2007 preferred against this decision was eventually dismissed by the Apex Court. In between, the Military Secretary Branch vide its letter No. 37569/Misc /MS-11C re-fixed the petitioner’s seniority by forfeiting three years of past se rvice for promotion in terms of the penalty to that effect awarded to him.

In ot her words, his seniority for promotion was reckoned from 15.12.87 in lieu of 15. 12.84. As this was sought to be effected vide Military Secretary Branch communic ation dated 30.3.2005 and subsequent thereto, by order dated 11.4.2005, the peti tioner was granted substantive promotion to the rank of Lieutenant Colonel with effect from 16.12.2004 in conformity with the Ministry of Defence Letter No. 18( 1)/2004-D(GS-I) dated 21.12.2004, he initiated a proceeding for contempt registe red as Cont. Case (C) No. 289/2005 construing the same to be in violation of the judgment and order dated 19.11.2004. This letter dated 11.4.2005, amongst other s, reveals that the petitioner had been awarded the promotion as referred to the rein on completion of 13 years of reckonable commissioned service on 15.12.2000 computed from 15.12.87 as a result of forfeiture of three years of service in te rms of the penalty confirmed in the Summary General Court Martial as above.

As a forestated, the contempt proceeding was closed in view of the judgment and order dated 6.9.2006 rendered in Writ Appeal No. 249/2005. The petitioner has returned to this Court with the grievance that inspite of the adjudication made the effect whereof is the effacement of the imputation as wel l as the penalty on the basis thereof awarded in the Summary General Court Marti al, his case has not been considered for promotion to the post of Lieutenant Co lonel in the year 2002 when his juniors were so promoted as per the directions c ontained in the judgments and orders dated 19.11.2004 and 6.9.2006. The respondents in their affidavit-in-opposition in substance have denie d the accusation of non-consideration of the case of the petitioner for promotio n in deference to the determinations made by this Court. According to them, prio r to the implementation of AF Singh Committee (AVSC) report on 16.12.2004, promo tions in the Army upto the rank of Major were time scale promotions and the offi cers were entitled for promotion upto the rank of Major on completion of eleven years of reckonable commissioned service and other criteria i.e. passing of the mandatory promotional examination etc.

They clarified that promotion to the rank of Lieutenant Colonel and above were selection based promotions and every offic er therefor was entitled to three considerations i.e., Fresh Consideration, Firs t Review and Final Review. They averred that the officers who were empanelled by the Selection Board were promoted to the rank of Lieutenant Colonel (Selection Grade) and those not empanelled were entitled for time scale promotion to the ra nk of Lieutenant Colonel (TS) on completion of 21 years of service. Vis-à-vis the petitioner, the answering respondents have averred that he had been promoted to the rank of Major on 15.12.95 on completion of 11 years of reckonable commissioned service and, thus, the penalty awarded on 20.11.2000 in the Summary General Court Martial did not have any impact thereon. They asserte d that the punishment of ’forfeiture of past service’ also did not have any effe ct on his seniority for consideration for selection based promotion to the rank of Acting Lieutenant Colonel and, therefore, his case was duly considered by No.

4 Selection Board during August/ September, 2002 but he was not empanelled on ac count of overall profile vis-à-vis his batchmates. The respondents, however, adm itted that at that stage he was considered ’with the disciplinary award forming part of his service record’. According to them, the AVSC report was implemented by the Government with effect from16.12.2004 as a consequence whereof the petiti oner was promoted to the rank of Lieutenant Colonel with effect from that date o n completion of 13 years of reckonable commissioned service and no further consi deration for promotion to the rank of Lieutenant Colonel was made after that dat e i.e.16.12.2004. Referring to the letter No. A/21509/Gen/MS-5 dated 9.3.2005, embodying t he guidelines for consideration of officers by No.3 Selection Board based on the AVSC recommendations, the respondents seem to suggest that the petitioner was c onsidered again thereafter and that the process was contemplated to be repeated in June, 2012 for his promotion to the rank of Colonel (Selection Grade).

Accor ding to them, therefore the allegation of deliberate violation of the directions of this Court is unfounded. Whereas Mr Choudhury has urged that the promotion of the petitioner as L ieutenant Colonel on time scale basis on and from 16.12.2004 is not as a result of consideration of his case therefor as a consequence of the directions of this Court contained in the judgments and orders dated 19.11.2004 and 6.9.2006 and, thus, the respondents are guilty of contempt, Mr Sharma with reference to the ex tracts of the selection proceedings has urged to the contrary. We have extended our anxious consideration to the pleadings on record as well as the arguments advanced. We have perused the relevant documents as well. There is no shade of doubt that as on 6.9.2006 the petitioner stood exonerated of the charges on which the Summary General Court Martial was held and that the penalty awarded to him in connection therewith had been rendered non-est thereby . A conjoint reading of the Mod Letter No.

18(1)/2004-D(GS-I) dated 21.2.2004 an d the Notification dated 11.4.2005 would reveal that the promotion of the petiti oner to the rank of Lieutenant Colonel was pursuant to the AVSC report/ recommen dations on completion of 13 years of reckonable commissioned service computed fr om 15.12.87. In other words, this promotion was granted to the petitioner by app lying the penalty of forfeiture of three years of service though by then by the judgment and order dated 19.11.2004 the same had been interfered with in unequiv ocal terms. In our view, having regard to the tone and tenor of the judgments and or ders dated 19.11.2004 and 6.9.2006, his seniority stood restored to be reckonabl e from 15.12.84 and he was, thus, entitled to be considered for promotion as per the normal norms as applicable at least in the year in which his juniors had be en promoted. A perusal of the extracts of the official records pertaining to the processes claimed to have been conducted by the respondents reveals that the ca se of the petitioner though considered for promotion to the rank of Lieutenant C olonel in September, 2002, the same was with the conscious note of the award of penalty of forfeiture of three years of past service and severe reprimand.

In th e teeth of the decisions of this Court this is no consideration of his case as i ntended by the adjudications made. Though the records in the form as produced disclose further proceedings involving the petitioner for promotion to the rank of Lieutenant Colonel in June , 2003; December, 2003; September, 2008 and June, 2012, the manner of evaluation / assessment of his candidature is not very clear therefrom. In the proceedings conducted in June and December, 2003 reference of the disciplinary proceedings v is-à-vis him is apparent. That the claimed consideration of his case in Septembe r, 2008 and June, 2012 has been with reference to his candidature in the year 20 02 is also not apparent therefrom. In all, the respondents’ plea of consideratio n of the case of the petitioner in the year 2002 when his juniors were promoted to the rank of Lieutenant Colonel as was the inevitable consequence of the adjud ications of this Court does not stand unimpeachably authenticated and/or corrobo rated by the excerpts of the selection proceedings laid before us.

In the above view of the matter, we are unable to accept the respondents ’ contention that the case of the petitioner had been considered for promotion t o the rank of Lieutenant Colonel as required in terms of the adjudications made by this Court. At the same time, conscious and deliberate violation of the direc tions contained in the judgments and orders dated 19.11.2004 and 6.9.2006 is als o not decipherable. In the above premise, we close the instant Miscellaneous Case with a di rection to the respondents to consider afresh the case of the petitioner for pro motion to the rank of Lieutenant Colonel de hors the disciplinary proceedings or the penalty imposed therein as in the year 2002 when his juniors were so promot ed and on the basis of his service record as it stood then and other relevant co nsiderations as permissible in law. Needless to say, depending on the outcome of the exercise as ordered, hi s case would consequentially be considered for promotion to the higher rank of C olonel in the year in which he would be so eligible therefor under the relevant administrative instructions governing the field.

The exercise as ordered would be completed within a period of one month from the date of receipt of the certified copy of this order. Any failure to comply with this direction would be viewed per se to be i n conscious and deliberate violation thereof. The petition is, thus, closed in the above terms. No costs.