SBCWP No.784/1999 – Ex Sub Bachi Ram Arya v. UOI & ors Date of order:26.03.2009 1 of 4 S.B.C.W.P. No.784/1999 Ex Sub Bachi Ram Arya v. Union of India & others Date of Order: 26th March, 2009 HON'BLE MR JUSTICE GOVIND MATHUR Mr K.K. Shah, for the petitioner Mr Ravi Bhansali, for the respondents On 06th February, 1970, the petitioner was enrolled with Indian Army in its Engineering Regiment. A promotion was given to him as Subedar and he was also awarded as “Junior Commissioned Officer”. While working with 57 Engineering Regiment, he was promoted as Subedar Major, however, he was not relieved to join the duties and report as Subedar Major by the Commanding Officer, 57 Engineering Regiment. The Commanding Officer also communicated remarks of the Reviewing Officer made in Annual Confidential Report of the petitioner for the year 1996, mentioning therein that - “otherwise competent, the JCO's excessive drinking habits have adversely affected his performance consistently. Repeated advise has not improved him”. The petitioner was ultimately discharged from service on 12th July, 1997 for medical reasons. By this petition for writ, the petitioner is claiming to accord promotion to him as granted in the month of February, 1997 to the post of Subedar Major. SBCWP No.784/1999 – Ex Sub Bachi Ram Arya v. UOI & ors Date of order:26.03.2009 2 of 4 The contention of learned counsel for the petitioner is that once promotion was accorded to him by the competent authority, the Commanding Officer, 57 Engineering Regiment was having no authority for not relieving him to join the promoted post. It is also stated that the adverse remark communicated to the petitioner in the year 1996 too were not as per procedure prescribed for entering adverse remarks. According to learned counsel for the petitioner, before making such remarks, a warning should have been given to him as required under policy prescribed by the Army Headquarters under letter dated 26th August, 1992. As per letter aforesaid, action whether to place a JCO on adverse report or not should be taken only after administering suitable warning to give him adequate time to show the desired improvement. Per contra, as per respondents, the petitioner was not behaving properly under the drunken state and therefore, his posting-cum-promotion as Subedar Major was held in abeyance by the Records Office. Pertinent to note here that in reply to the writ petition, the respondents admitted that the petitioner was a good instructor and had remained posted at Pune due to his qualification but his capability as good instructor was limited to those hours or the day/night when he was not drunk. SBCWP No.784/1999 – Ex Sub Bachi Ram Arya v. UOI & ors Date of order:26.03.2009 3 of 4 In rejoinder to the reply, the petitioner reiterated the facts averred in the writ petition and also stated that before making promotion to the post of Subedar Major, the ACRs for the year 1996 must have been considered and therefore, on the basis of those ACRs, promotion could have not been denied to him at a subsequent stage. Heard learned counsel for the parties. As per respondents, the petitioner was promoted as Subedar Major in the month of February, 1997, however, the promotion so given was held in abeyance by the Records Office. The respondents have not produced any order passed by the Records Office or even the directions given by the Records Office to hold the promotion given to the petitioner as Subedar Major in abeyance. Even as per respondents, the petitioner was a good instructor and therefore, not only promotions as and when occasion arose were given to him but he was also awarded junior commission-ship. Once the petitioner was promoted and his promotion was not cancelled by the competent authority, there was no reason for not relieving him to join the post on which the promotion was made. The Commanding Officer, 57 Engineering Regiment could have detained relieving of the petitioner for some time for administrative reasons but not for an indefinite period, that ultimately resulted in denial of promotion to the SBCWP No.784/1999 – Ex Sub Bachi Ram Arya v. UOI & ors Date of order:26.03.2009 4 of 4 petitioner. As said earlier, no order is available on record cancelling promotion of the petitioner or keeping the same in abeyance; as such, I am of the considered opinion that denial of promotion to the petitioner on the count of non-relieving by the Commanding Officer, 57 Engineering Regiment is highly unjust and arbitrary. The petitioner, therefore, is entitled to be treated as Subedar Major on the day he was discharged from duties on medical grounds. Accordingly, this petition for writ is disposed of with a direction to the respondents to treat the petitioner as Subedar Major from the date he was so promoted till the date of his retirement. The petitioner shall also be entitled for all consequential benefits flowing as a result of directions above. No order as to costs. [GOVIND MATHUR],J. mma