1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITIONNO. 7627 OF 2008 RHM MAHENDER SINGH, ) aged 44 years, son of ) Shri Bane Singh, posted at ) 38 Medium Regiment C/o 56 ) APO. )... .... Petitioner. Versus 1) UNION OF INDIA, through) Secretary, Ministry of ) Defence, New Delhi - 011 ) 2) Chief of Army Staff, ) through Adjutant General, ) (ADG PS), Army Head- ) quarters, New Delhi - ) 110 011. ) 3) The SRO, Artillery Records) Nasik. ) 4) The Commanding Officer, ) 38, Medium Regiment, ) C/o 56 APO. ).... ... Respondents. Mr. P. A. Pol for the Petitioner. Mr. Y. S. Bhate with Mr. N. R. Prajapati for the respondents. CORAM : SMT. RANJANA DESAI and A.A.SAYED, JJ. DATED : AUGUST 17, 2009. P. C.: 1. By this petition, filed under Article 226 of the Constitution of India, the Petitioner has prayed for the following relief :- 2 (a) that this Honourable Court be pleased to issue appropriate writ, order or directions in the form of writ of Mandamus to the Artillery Records, Nasik to release vacancy and promote the petitioner immediately with ante date seniority of 27th November, 2007 when vacancy existed in 38 Medium Regiment. 2. It is stated by the petitioner in the petition that the Indian Army have units of Infantry, Artillery and Armoured, which are categorized as 'Fighting Arms' and there are also units in Rashtriya Rifles (for short "RR"), purely designed for Counter Insurgency purpose in Jammu & Kashmir (for short J & K). All the jawans right from the time they are Sepoys to the highest rank of Subedar Major continue their service in “one unit only” unless they are sent out of the unit to RR, NSG, NCC, etc. which is called ERE-Extra Regimental Employment ("ERE") so that they have multifarious exposures. 3. It is the case of the petitioner that 38 Medium Regiment of Artillery had an ERE vacancy for one JCO (Junior Commissioned Officer) i.e. in the rank of Naib Subedar/Subedar in 32 RR in J & K. According to the petitioner when the Naib Subedar proceeds from 38 Medium Regiment to 32 RR on ERE, a vacancy is created and a Havildar can be promoted to a Naib Subedar in the unit 38 Medium Regiment. Similarly, if a Subedar from 3 38 Medium Regiment proceeds to 32 RR on promotion as a Subedar then simultaneously a vacancy is created in the rank of a Subedar in the unit and consequentially for the rank of a Naib Subedar also. It is averred that whether it is 32 RR or 38 Medium Regiment or any unit for that matter, the vacancy of a Naib Subedar or a Subedar cannot be shifted to other unit as otherwise it would drastically affect the promotional pattern of that unit. It is further the case of the petitioner that based on release of a vacancy of a Naib Subedar in 32 RR, the Artillery Records directed Battery Havildar Major (BHM) Dashrath of 38 Medium Regiment to proceed on ERE to 32 RR in J&K on promotion but as he was a good BHM, the unit retained him and sent one Naib Subedar Ajit Singh instead. 4. On 26th November, 2007 one Subedar Jai Singh died in a road accident and based on his unfortunate demise a vacancy was created and the petitioner who is Regiment Havildar Major being the senior most Havildar, he should have been promoted with effect from 27th November, 2007. It is the grievance of the petitioner that instead of promoting the petitioner to Naib Subedar, the Artillery Records committed a mistake by promoting Naib Subedar Vinod of 29 RR as Subedar. Petitioner, however, admits that the said Naib Subedar Vinod is senior to the petitioner, however, not at the cost of vacancy of 38 Medium Regt. when the person who died as also the petitioner belong to the same 38 Medium Regiment. 4 5. On 30th November, 2007, one Subedar Vijay Singh of 38 Medium Regiment retired. According to the petitioner as per the correct procedure, the petitioner being the senior most Havildar, should have been promoted with effect from 1.12.2007. However, the Artillery Records promoted Naib Subedar Ajit Singh to Subedar in situ in 32 RR. It is further contended by the petitioner that this promotion was not wrong but the Artillery Records again transferred the vacancy from 38 Medium Regiment to 32 RR. On account of this, the petitioner has lost his promotion for the 2nd time for no fault of his. 6. Learned Counsel for the petitioner submitted that the Artillery Records are doing jugglery by shifting of vacancies from one unit to the other without realizing the consequential harm done to the senior most eligible person. According to the learned Counsel for the petitioner the vacancy for promotion of the petitioner existed on 27th November, 2007 as also on 1st December, 2007. However, both the vacancies were wrongly shifted to other units and and if the vacancy was rightly given to the unit, as recommended by the Commanding Officer, the petitioner would have been automatically promoted. 7. Reply has been filed by Major Mukesh Kumar Panjiyar of 131 AD Regiment on behalf of respondent Nos. 1 to 4. In the reply it is pointed out that the petitioner had an alternative remedy inasmuch as the petitioner 5 failed to file a statutory or non-statutory Complaint under the provisions of paragraph 364 of the Regulations for the Army, 1987 (Revised). It is pointed out that the petitioner was enrolled in the Army on 2nd November, 1982 and he was discharged from Service with effect from 1st December, 2008 on completion of 26 years of Service. 8. Perusal of the reply further discloses that all Units, including ERE Units have fixed authorized strength of JCOs (Junior Commissioned Officers), NCOs (Non Commissioned Officers) and other ranks. Personnel required for ERE Units are posted from colour units on tenure basis of 2 to 3 years. On completion of ERE tenure, the Personnel are reverted back to parent Units with or without relief from the same Unit, depending upon the policy instructions issued by Army Head Quarter. It is further averred in the reply that if the posting is one to one basis, no vacancy for Promotion is created because one JCO/NCO goes from Donor Unit to ERE Unit and the person of the same rank reverts back to the Unit, on completion of ERE tenure. In case of Re-Rationalization of ERE vacancies by Army Head Quarter or Reversion of Personnel posted on ERE Unit out of Stagnation Panel vide the Army Head Quarter Letter No 1328/MP/Rationalization/45/RA-4, dated 20th February,2007, JCO on ERE Unit reverts back to his Unit and relief is provided from the Unit as per revised Rationalization as approved by Army Head Quarter or from the Stagnation Panel, strictly based on Seniority. It is stated that in the event of 6 JCOs returning back to Units after completion of ERE tenure but their Relievers are provided either from Units as per Revised Rationalization of ERE vacancies or from Stagnation Panel, the Unit has to keep a vacancy to accommodate such JCOs as per Army Head Quarter Letter No. A/10031/01/Common/Arty-7(A), dated 1st August, 2007. In order to accommodate such JCOs no promotion is permissible for Six months because the Units cannot hold surplus JCOs as it causes loss to the State and violates the policy instructions. 9. Affidavit-in-reply specifically states that it is incorrectly stated by the petitioner that when the Naib Subedar on ERE Unit with 32 RR reverts back to 38 Medium Regiment, a clear vacancy is created. It is further stated in the reply that it is also incorrect to say that if a Subedar proceeds to 32 RR, a vacancy of Subedar and Naib Subedar are created to 38 Medium Regiment, because the Subedar with 32 RR reverts back to 38 Medium Regiment and thus no clear vacancy is created and thus, the vacancies were never shifted except for the facts brought out in the aforesaid Rationalizations of ERE Vacancies by Army Head Quarter and postings out of Stagnation Panel. 10. As per the reply of the respondents one BHM Dashrath Singh was senior to the petitioner and he came up in Seniority for Promotion out of Stagnation Panel. Accordingly, one ERE vacancy of Naib Subedar as relief 7 of JC-267634 Naib Subedar (GD) Prem Bahadur ex 313 Medium Regiment was allotted to 38 Medium Regiment to promote BHM Dashrath Singh. Accordingly, the Unit had dispatched JC-268028H Naib Subedar (OPR) Ajit Singh to 32 RR Battalion and BHM Dashrath Singh was promoted to the rank of Naib Subedar against the ERE vacancy because no JCO was reverted backs to the Unit. It is further stated that on a untimely demise of JC-270864L Naib Subedar (TA) Jai Singh, who was held in COs Pool Vacancy, Naib Subedar (DMT) Vinod Kumar, who was earlier adjusted against Subedar (DMT) vacancy being surplus in Naib Subedar Rank due to Premature Reversion was shifted to Naib Subedar CO's Pool vacancy as per Seniority for CO's Pool Vacancy.. It is further stated that Naib Subedar Vinodkumar was not promoted against the vacancy of late Naib Subedar (TA) Jai Singh as alleged by the petitioner but he was promoted to the rank of Subedar from 1st July, 2008. 11. It is further stated in the reply that Naib Subedar(OPR) Ajit Singh of 38 Medium Regiment was posted to 32 RR Battalion with effect from 20th December, 2006 against Naib Subedar Vacancy, but he was promoted to the Rank of Subedar from 1.12.2007. Consequent upon his promotion, he was reverted back to 38 Medium Regiment and relief was provided from 237 Fd Regiment as per revised Rationalization of 'ERE vacancies of RR Battalions. The vacancy was not transferred to 32 RR as alleged by the petitioner. 8 12. The learned Counsel for the respondents, therefore, urged that the petition is devoid of merit and the same be dismissed. 13. Affidavit in rejoinder is filed by the petitioner denying the averments made by the respondents in their reply. However, the petitioner admits that the alternate remedy of Statutory Complaint as mentioned in the reply of the respondents has not been availed by him, however, according to him the same is not a sine qua non for approaching this Court. It is contended that he being senior most he has a legitimate expectation of promotion. 14. We have heard the learned Counsel for the parties and perused the material on record. 15. We find that the petitioner, though has admitted that there exists an alternative remedy of filing a Complaint under para 364 of the Regulations for the Army, 1987 (Revised), he has failed to avail the same. Except to say that the existence of the alternative remedy is not a sine qua not for the petitioner to approach this Court, the petitioner has not given any explanation as to why the alternative remedy could not have been exhausted by him. It is not even the case of the petitioner that the alternative remedy is not an efficacious remedy. In the circumstances, in view of the admitted position that there exists an alternative remedy, which the petitioner has failed to exhaust, we are not inclined to entertain the 9 petition and dismiss the same on this count alone. 16. Even otherwise, we find that the petitioner, who has now retired, has not placed on record or relied upon, much less challenged any policy of the Army Head Quarter, which the petitioner is aggrieved by. Shifting of vacancies etc and transfer of Havildars, Naib Subedars and Subedars are policy matters of the Army. In any case in absence of any challenge to the same, no such relief can be granted to the petitioner. We note that the respondents in their reply have specifically stated that seniority is maintained at all times. We find that the assertions by the petitioner in the petition in respect of promotions and shifting of vacancies are based on misinformation, as is evident from the reply filed on behalf of the respondents. 17. For the reasons aforestated, we find no substance in the petition. The petition is dismissed. No order as to costs. Sd/- [SMT. RANJANA DESAI, J.] Sd/- [A.A.SAYED, J.]