IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 WP(C).No. 36867 of 2007(L) -------------------------- PETITIONER: ------------ M.VENUGOPALAN, AGED 47 YEARS, S/O GOVINDAN NAIR, SERVICE NO.1372328M, HAV/DED(RETD.), KADISSERY HOUSE, AMBALAVATTOM P.O., PANAMANNA, OTTAPPALAM, PALAKKAD DISTRICT. BY ADV. SRI.M.P.KRISHNAN NAIR SRI.KRISHNAN NANDAKUMAR SRI.RENI JAMES RESPONDENTS: ------------- 1. UNION OF INDIA, REP. BY SECRETARY TO DEFENCE DEPARTMENT, GOVERNMENT OF INDIA, NEW DELHI. 2. CHIEF OF ARMY STAFF, ARMY HEAD QUARTERS, NEW DELHI. 3. CHIEF COMMANDANT, BENGAL ENGINEERING GROUP & CENTRAL, ROORKEE, UTTAR PRADESH. 4. DEPUTY COMMANDER, WORK ENGINEERING BRANCH, BARELI. 5. CHIEF RECORD OFFICER, BEG & CENTRAL, ROORKEE, UTTAR PRADESH. 6. SENIOR RECORD OFFICER, BEG & CENTRAL, ROORKEE, UTTAR PRADESPH. BY ADV. SRI.M.A.FAYAZ, ADDL.CGSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ========================= W.P.(C) NO. 36867 OF 2007 ========================= Dated this the 4th day of March 2008 JUDGMENT The petitioner was recruited to the Madras Engineering Group and thereafter he claims to have undergone a Diploma course in Draftsman, Estimating and Designing at College of Military Engineering. He claims that in 1993 he was recommended for promotion to the post of Naik Subedar Grade I which is a junior commission rank. But it seems that on account of certain adverse remarks in the annual character report, he was not granted such promotion. It further seems that the petitioner had sought for a discharge from service as early as in 1996, after he had completed 16 years of service. He submits that his application for discharge was not considered without any justification. In the meanwhile the petitioner was diagnosed with an illness. There is a dispute as to whether the illness was aggravated by the service or whether the petitioner had been suffering from the said ailment (affective psychosis depression) even earlier. Be that as it may, the petitioner was initially W.P.(C)36867/2007 2 downgraded to low medical category (CEE temporary) on 11.7.l1994 and BEE (permanent) from 23.12.1996. He remained in low medical category till he was invalidated out of service with effect from 10.9.2003. 2. It seems that the petitioner had thereafter made representations before the competent authorities. The request made by the petitioner related to the non-granting of promotion to him from 1993 onwards. This was inter alia met by Ext.P8 which reads as follows:- 1. Reference to your letter No.Nil dtd.30 August 2007. 2. It is once again reiterated that as per policy, minimum three ACRs in the rank of Hav with appropriate grading are mandatory for nomination in `J' promotion cadre and subsequent promotion to the rank of Nb sub on qualifying the cadre and not three ACRs required in any rank for the same as stated by you. You were promoted to the rank of Hav n 9.Jan.1993. After earning one ACR for the year 1993 in the rank of Hav, you were initially downgraded to medical category `CEE' (temporary) on 11 July 1994 for the disease diagnosised as `AFFECTIVE PSYCHOS DEPRESSED'. On review, you were downgraded to medical category `BEE' (permanent) from 23 Dec.1996 and you were remained in low medical category till you invalided out of W.P.(C)36867/2007 3 service on 10 Sep 2003. As per policy, a person who placed in low medical category, whether temporary or permanent due to psychological case is not eligible for nomination/promotion, therefore, no injustice with regards to your promotion has been done". Petitioner thereafter sent Ext.P9 representation. He then moved this Court seeking several reliefs including a direction to the respondents to pay him an amount of Rs.20 lakhs by way of monitory compensation loss. He also sought for a direction to dispose of Ext.P9. 3. On 13.12.2007, I required the standing counsel to get instructions whether Ext.P9 had been received and if so, whether it is maintainable. 4. A statement has been filed by the Central Government Standing Counsel inter alia stating that Ext.P9 has been responded to by Ext.R1(a) dtd.15.1.2008. The petitioner's request had been considered even earlier. 5. I have heard the learned counsel for the petitioner and the learned Central Government standing counsel. On going through the averments in the writ petition and on hearing the learned counsel for the petitioner. I find that the issue raised W.P.(C)36867/2007 4 herein relates to the alleged impropriety on the part of the competent authorities not discharging the petitioners in 1996 in spite of his application in that behalf. Obviously, the correctness of the action taken by the competent authority in the defence services, not accepting an application for discharge by a serving soldier, cannot be considered at this stage, especially taking note of the fact that the petitioner was actually discharged on 10.9.2003. 6. The second aspect relates to non-granting of promotion to the petitioner from the year 1993. I have already referred to Ext.P8 in that behalf. There is nothing on record to indicate that the decision so reflected in Ext.P8 is otherwise illegal or unjustified. Even the reasons given therein seems to be correct. At any rate, this Court, obviously, cannot considered whether the petitioner was illegally denied promotion in the year 1993. I also take note of the fact that from 1996 petitioner himself had sought for a discharge. Therefore the competent authority cannot be faulted with for not considering such a person for promotion. This is apart from the fact that the petitioner seems to have been downgraded to low medical category. This also apparently stood W.P.(C)36867/2007 5 in the way of he being considered for promotion. I do not find any reason to interfere in the writ petition. The same is bereft of merits. Hence dismissed. But I make it clear that this judgment will not stand in the way of the petitioner prosecuting any statutory appellate remedy provided the same is available to him and if he so advised. V.GIRI, JUDGE css/