WP(C) 87/2007 BEFORE HON’BLE JUSTICE B.K. SHARMA JUDGEMENT AND ORDER 1. The petitioner, serving in the Air Force as Sergeant (Sgt), is aggrieved by denial of promotion to the next higher rank of Junior Warrant Officer (JWO). 2. The petitioner joined Indian Air Force on 04.11.88 as a regular Airman. Presently he is serving as Sgt. It is his case that the Airmen much junior to him have been illegally included in the promotion penal for the year 2006-2007 f or promotion to the next higher grade of JWO in the capacity of Acting Paid JWO . 3. According to the petitioner, the respondents while preparing the penal for promotion to the rank of JWO in the capacity of Acting Paid JWO have violate d the Air Force Instruction (AFI) (Annexure-A). The petitioner has put to challe nge the Circular dated 23.09.02 issued by the Air Force authority which accordin g to the petitioner is in contravention and deviation of the AFI referred to abo ve which has got statutory force. It is the case of the petitioner that the Chie f of Air Staff (CAF) who has issued the Circular dated 23.09.02 is not authorize d to make any deviation from the AFI. It will be apposite to refer to the relev ant provision of the AFI at this stage. Para-15- Substantive Promotion- Groups I to IV (reconstituted from earlier Grou ps I to V): Service for the purpose of promotions will reckon from the date of C ommencement of ab initio Course in which an airman successfully passes out. Enro lment date will, however reckon for all purposes other than seniority for promot ion, such as pay, allowances, pension, gratuity etc. In the case of airmen repor ting late for the Courses, the seniority for promotion will reckon from the actu al date of reporting, except that the following categories of airmen joining the ab-initio training after the Basic Phase will be deemed to have joined that tra ining from the date of its commencement for the purpose or reckoning seniority f or promotion. (a) Airmen who were initially selected and detailed for training in Technica l trades, but are subsequently re allotted non technical trades on being found unsuitable for Technical trades after they have successfully undergone the Basic Phase (b) Airmen who were remustered to non-allied trades in higher Trade Groups. Provided the Airmen are otherwise considered fit, the normal periods of Substan tive promotion will be as under: (i) Promotion to Corporal will be confined to LACs who have served in that c lassification for three years or have completed five years total service and hav e passed the appropriate tests. (ii) Promotion to sergeant will be made by selection within the authorized es tablishment and will be confined to Corporals who have served in that rank for f our years or have completed 8 years total service. (iii) Promotion to Junior Warrant Officer will be made by selection within the authorized establishment and will be confined to sergeants who have served in t hat rank for four years or have completed 16 years total service. Whichever is l ater. (iv) Promotion to Warrant Officers will be made by selection within the autho rized establishment and will be confined to Junior Warrant officers with 2 years service as such. Para 16 Acting (paid) Promotions: (I) Acting (paid) Promotions will be made whe n establishment vacancies exist, but individuals of requisite ranks are not avai lable for substantive promotion. Acting rank will not become paid acting rank un til it has been held for a continuous period of 28 days, when it will be convert ed into paid acting rank with retrospective effect. Provided the airmen are othe rwise fit and until further orders the minimum qualifying periods which will ren der an airman eligible for consideration for acting (paid) promotion to higher r anks will be as given below: Groups I, II and III- One year’s minimum service in each rank (substantive, temp orary or acting) Example- an individual who has completed one year’s service as a Corpora l (substantive, temporary or acting) may be promoted to acting (paid) sergeant. Group IV and V LAC to CPL 1 ‰ year’s service as LAC Cpl. to Sgt 1 ‰ year’s service as CPL (substantive temporary or acting ) Sgt to F/sgt 1 year’s service as Sgt. (substantive, temporary or acting) F/Sgt to W/O 1 year’s service as F/Sgt (substantive temporary or acting) (ii) In exceptional cases, the above periods may, however, be relaxed at the dis cretion of the Officer i/c R.I.A.F. Records, in the case of airmen for the rank of Sgt. and below by the Air H.Q. in the case of F/Sgt. and above. (iii) An airmen, who has been granted acting (paid rank, will retain it during l eave, sickness or temporary duty, unless it is found essential in the interest o f the service to post another airman of that rank in his place in which case the absentee airman will relinquish his acting rank. (iv) An airmen is, however, to relinquish the acting (paid) rank if he is posted to a vacancy established in a lower rank. (v) If the airman is posted to another unit unless he is posted to a similar establishment vacancy at his new unit, in which case the draft note will be end orsed to state that the acting rank is retained on posting he shall relinquish t he acting rank held. Grant of the rank of the new appointment will be subject to the conditions specified in clause (i) above. (vi) I- Absence due to sickness (excluding wounds and attributable injuries) Retention of acting rank - An airman, whose sickness is not due to his own fault , will retain his acting paid rank for a maximum period of two months as under: a) Whilst in India- against the unit establishment for the first 28 days an d supernumerary to the establishment for the balance of two months. b) Whilst on duty ex-India- supernumerary to the establishment for the enti re period of his sickness from the first day of absence from duty. II- Absence on account of wounds or injuries- If an airman cease to perform his duty on account of wounds or injuries attributable to Air Force Service he will retain, without counting against the establishment of his unit or formation, his acting paid rank from the date of first absence from duty for a period of four months or until reposted to duty, which ever is earlier. (vii) The acting rank will also be relinquished if there ceases to be a vacanc y in the establishment, owing to the posing to his unit of an airman of the appr opriate acting or substantive rank or to a reduction in the establishment of the unit. (viii) If the airman is considered by his CO to be unsuitable to continue to ho ld the acing rank, he will be reverted to his substantive rank. In such cases, t he authority of the AOC group concerned is to be obtained before reversion I eff ected. & (xi) On substantive promotion to a higher rank, the periods already served in that rank in an acting (paid) or temporary capacity will count collectively for determining the initial pay of the airman in that rank. &.. (xiii) There will be no temporary promotions after the issue of this Instruction . Unpaid acting rank can, however, be granted under the provisions of para 188 R egulations for the R.I.A.F. (instruction). 4. From the impugned promotion penal (Annexure B), it appears that the incu mbents named therein at serial No. 29, 30, 31 and 92 are having seniority in the present rank of Sgt. w.e.f. 01.07.03, 11.08.03, 01.07.04 and 01.07.03 respectiv ely, while the persons named at serial No. 25, 26, 27 and 28 are having seniori ty w.e.f. 01.12.02, 01.12.02, 01.12.02 and 01.01.03 respectively. According to the petitioner, they are all juniors to him and have superseded in the matter o f promotion as JWO. The circular dated 23.09.02 which according to the petitione r contravenes the AFI laying down the promotion policy speaks of eligibility cri teria, time frame for promotion, distribution of vacancies, assessment criteria for ACR etc. The relevant clauses are extracted below: Eligibility Criteria for Promotion 2. All airmen who have completed the minimum length of service as mentioned below for promotion to the rank of JWO and above as on 30 Jun of the year (proc eeding the promotion panel), would be considered for promotion (eg. 30 Jun 03 fo r promotion year 2003-04) Rank Min length of service a) Sgt. To JWO 17 Yrs. b) JWO to WO 23 Yrs. c) WO to MWO 28 Yrs. Time frames for promotion 5. Time frames for promotion for the purpose of redistribution of vacancies woul d be under the following categories rank wise: Grade-III Grade-II Grade-I a) Sgt. To JWO 17-19th Yr 20th-23rd Yr Above 23 Yr b) JWO to WO 23-25th Yr 26th- 29th Yr Above 29 Yr c) WO to MWO 28- 30th Yr 31st -34th Yr Above 34 Yr. Note: 17-19th Yr implies 17 yrs of service to less than or equal to 19 yrs. Of s ervice. 20th-23rd yr implies 19 yrs one day of service to less than or equal to 23 yrs of service. e.g. if DOE is 01 Jul 84 length of service as on 30 Jun 2003-18 yrs 11 months 29 days therefore airman wi ll be eligible for promotion from Sgt. to JWO in Grade-III Distribution of Vacancies: 6. The vacancies would be allotted in the promotion of 1:3:6 for Grade 3: Grade 2: Grade1 respectively. Thus 0% of the vacancies would be for the seniormost gro up, 30% for the middle level and 10% for the relatively junior level. A similar method would be employed for promotion to WO and MWO ranks. If the total vacanci es are less than 10 in a year, the distribution of vacancies for a particular ra nk and trade between Grade-III, Grade-II and Grade-I categories would be in the ratio 0:1:2. However, if the total trade wise/rank wise vacancies for a year are equal to or more than 10, then the ratio would be 1:3:6. For any trade and rank , if the number of eligible airmen are less than to number of available vacancie s, then the excess would be distributed as under: a) If Grade I vacancies are in excess, redistribution between Grade III Gra de II would be 1:3 Eg. Trade= AF Fit Rank =Sgt. No. of Grade I eligible airmen = 6 No. of Grade I vacancies = 85 Excess vacancies (85-6) = 79 Redistribution of excess vacancies between Grade-II and Grade-III would be as fo llow: Grade-III: Grade II (at 1:3) = 20:59 b) If Grade II vacancies are in excess, distribution between Grade -III Gra de I would be 1:6 c) If Grade III vacancies are in excess, distribution between Grade-II, Gra de I would be 1:2. 5. It will be pertinent to mention here that the aforesaid policy guideline impugned in this proceeding has been issued by the authority of the Air Force H ead Quarters. On the other hand, the AFI has been issued by the higher authority of the Air Force. It has been agreed by the parties that the said AFI has got s tatutory force. 6. The respondents in their counter affidavit have justified the aforesaid circular dated 13.09.02 and have stated that the said promotion policy is within the frame work of AFI. It has been stated that having regard to the rapid chang e in the technical environment and security scenario of the Air Force, certain amendments and additions to the earlier policy guidelines were felt. According t o the respondents, the AFI only speaks of conditions of promotion by selection , but it does not lay down the detailed procedural aspect for selection and cons equently such guidelines by way of policy had to be adopted. Thus, according to the respondents, the impugned circular dated 23.09.02 is not violative of the AF I. 7. According to the respondents, the promotion being based on merit cum sen iority, superssession by the juniors is a common phenomenon which is bound to ta ke place. The respondents have gone to the extent of making a statement that if the petitioner is aggrieved by promotion of his juniors, there is no embergo in seeking discharge from service. It is the case of the respondents that although the petitioner was considered for promotion in the year 2006-2007 as per the le ngth of service, but his merit position did not make him eligible for inclusion in the promotion penal. According to the respondents, juniors to the petitioner included in the promotion penal excelled in merit than the petitioner. 8. According to the respondents, the condition precedent for grant of subst antive promotion is to be mandatorily followed for grant of Acting Paid promoti on. The respondents have justified the distribution of vacancies into three grad es as per the length of service which is 10%, 30% and 60%. In paragraph 12 and 1 3 of the affidavit, the respondents have stated thus: 12. That with regard to the statements made in paragraph-14 of the petition, th e deponent states that para 16 of AFI. 12/S/48 Acting (Paid) Promotions (i) stip ulates- Acting (Paid) Promotions will be made, when establishment vacancies exi sts, but individuals of required ranks are not available for substantive promoti on. It can be seen that though there are airmen fulfilling the eligibility cond itions required for substantive promotion are available in large number but the substantive cadre vacancies are less. Thus, authorization of substantive promoti on directly is not feasible in the present scenario. Thus action promotions are authorized in the first instance against the establishment vacancies, as per the organizational requirement and subsequently substantive promotions are authoriz ed in order of acting paid rank seniority as per the availability of substantive cadre vacancies which are sanctioned by Ministry of Defence, Government of Indi a. 13. That with regard to the statements made in paragraph 15 of the petition, the deponent states that the contentions of the petitioner are not tenable in l aw and hence denied by the deponent. It is stated that acting paid promotions ar e granted initially against the establishment vacancies and subsequently substan tive promotions are granted as per the acting seniority against the substantive cadre vacancies. The deponent reiterates what has been stated in paragraph 14 of this affidavit. Thus grant of action paid promotions are well within the frame- work of AFI 12/S/48. 9. During the course of hearing of the matter, this Court by order dated 10 .04.07 granted time to Mr. D. Das, learned C.G.S.C. to obtain clarification rega rding inconsistency, if any, between the aforesaid AFI and the promotion policy of 2002. Again on 14.06.07 Mr. Das prayed for further time to obtain instructio n which was granted with the following order: 1) As per Annexure-A Air Force Instruction (AFI), promotion to the rank of Junior Warrant Officer will be made by selection within the authorized establi shment and will be confined to Sergeants who have served in that rank for four years or have completed 16 years total service, which ever is later. But in the circular annexed to the counter affidavit as Annexure-I, prima facie there is de viation in laying down the minimum length of service as 17 years. Further in the circular time frame for promotion has also been indicated with distribution of vacancies which according to the petitioner is a clear deviation from the AFI w hich does not provide for any such distribution. 2) It is the submission of the learned counsel for the petitioner that Acti ng (paid) promotions is an exception and at the first instance substantive promo tion should be made. It is only in the case when the requisite rank being not av ailable for substantive promotion, such Acting (paid) promotion can be granted. 3) In the affidavit in opposition an indication has been given that Acting (paid) promotion will be later on converted to substantive promotion. No such i ndication is there in the AFI. In the affidavit, it has been contended by the re spondents that in all cases, Acting (paid) promotion will be first considered a nd thereafter it will be converted to substantive promotion which according to M r. Bhuyan is a clear deviation from what has been laid down in AFI. The documents produced by Mr. Das, learned C.G.S.C. indicate that the case of th e petitioner vis-à-vis his 8 juniors was considered for assessment of ACRs and t he mark was allotted on that basis. It will be appropriate for the respondents to produce the ACRs of the said 8 officers along with the petitioner as indicat ed in the said documents and also the minutes of the selection committee. 10. Pursuant to the aforesaid orders passed by this Court, the respondents h ave filed an additional affidavit on 06.08.07. In the additional affidavit, the respondents have reiterated their stand made in the counter affidavit. Accordin g to them, the policy guideline laying down the procedure for promotion does not supersede the AFI and/or violates the provisions of AFI. 11. Upon hearing the petitioner in person as well as Mr. D. Das, learned C.G .S.C. for the respondents and having found that the petitioner faced difficulty in expressing himself, Mr. M. Bhuyan, learned counsel was requested to render assistance to the petitioner as well as to the Court which he readily agreed. He has argued the case on behalf of the petitioner with the assistance of the p etitioner. Mr. Das, learned C.G.S.C. has also argued the case on behalf of the r espondents with the assistance of the Air Force personnel present in the Court. 12. The moot question which falls for consideration is as to whether the pro motion policy of 2002 makes any deviation from AFI and if so, whether the same i s permissible. 13. The AFI came up for consideration before the Apex Court in the case of Union of India and others vs. Mahesh Kumar Nag and another reported in (2001) 3 SCC 97. In the said case before the Apex Court the issue was relating to the pro motion from the rank of Flight Engineer- (ii) to the rank of Flight Engineer-(i) . Upon a reference to the AFI applicable to the case, the view expressed by the High Court that the AFI is statutory in nature and that any additional conditi ons imposed by way of issuing circular was impossible would have the effect of amending the AFI, has been upheld by the Apex Court. In the said decision, it ha s been held that the AFI is statutory in nature. While holding that the Chief of Air Staff is entitled to impose the criteria for suitability by way of a circul ar, but such circular cannot lay down the additional conditions or vary or amend the AFI. 14. Once it is held that the AFI has the statutory force, it will have to b e seen as to whether the circular dated 23.09.02 issued from Air Force Head qua rters has the effect of making additional conditions for promotion and/or amendi ng the AFI itself. 15. As per the requirement of para-15 of AFI, the Airman otherwise considere d fit, is entitled to substantive promotion on completion of the prescribed peri od of service which is 4 years in the rank of Sgt or completion of 16 years of t otal service whichever is earlier. There is no dispute that the petitioner has fulfilled both the conditions for promotion. Both the conditions are essential f or promotions. Admittedly, the incumbents named at serial No. 25 to 31 and 92 at the time of their empanelment for promotion as Acting Paid JWO, going by the re spective dates of their seniority in the substantive grade of Sgt. did not have the requisite four years of service in the rank of Sgt. However, the respondent s have tried to justify such promotion on the ground that the promotions being not substantive and being only Acting (Paid) promotions, a deviation could be ma de from the requirement of the AFI. 16. It is the case of the respondents that in due course such Acting Paid pr omotion would be made substantive. However, on being pointed out that if the inc umbents at the time of selection held in June, 2006 were not eligible for subst antive promotion having not rendered four years of service in the substantive gr ade of Sgt., whether by efflux of time, their ineligibility would get cured en titling them substantive promotion as JWO, the Officers present in the Court inc luding Mr. D. Das, learned C.G.S.C. furnished the answer to the effect that alth ough the said incumbents were not eligible for substantive promotion at the time of their empanelment for Acting (Paid) promotion, but they having been promoted as such, the requirement of four years of service as Sgt. would be fulfilled, b y the time they are provided with substantive promotion. On being further asked as to whether for substantive promotion any further selection would be held, the answer was in the negative. It was stated that the substantive promotion would be effective on the basis of the selection conducted for Acting Paid promotions. 17. If the aforesaid explanation furnished by the respondents is to be accep ted, then in that case, the persons ineligible even for promotion as Acting Pa id JWO having not fulfilled the requirement of four years of service in the grad e of Sgt. would get automatic promotion as JWO on the basis of the selection con ducted for promotion as Acting Paid JWO although they were not eligible for such promotion on the date of selection held in June, 2006. This will amount to rela xation of eligibility criteria as laid down in the AFI, which in my considered view, is not permissible. 18. According to AFI (para-16), Acting Paid promotions will be made when es tablishment vacancies exists, but individuals of requisite rank are not availabl e for substantive promotion. Thus, the Acting Paid promotion is an exception. It is to be provided only when the individuals of requisite rank are not available for substantive promotion. In the instant case it is not the case of the respo ndents that the individuals of requisite rank were not available for substantive promotion. On the other hand, it is seen that the incumbents ineligible for pro motion were also considered for Acting Paid promotion. 19. Para-15 of AFI speaks of substantive promotion in terms of which promoti on to JWO will be made by selection within the authorized establishment and will be confined to Sgt. who have served in that rank for 4 years or have completed 16 years of total service, whichever is latter. The condition precedent for subs tantive promotion having been prescribed in the AFI, the respondents could not h ave deviated from the same so as to provide Acting Paid promotion to ineligible persons. 20. The basic contention of the petitioner that the circular dated 23.09.02 makes a total deviation from the AFI and the same has got the effect of amendin g the AFI. The relevant provisions have been quoted above. As against the requis ite length of service of 16 years and 4 years, the Circular dated 23.09.02 provi des for 17 years as minimum length of service. While the AFI does not make any d istinction among the officers eligible for promotion on completion of 4 years an d 16 years of service as the case may be, the circular classifies the officers i nto three categories on the basis of the length of service