In a writ petition concerning promotion grievances and vacancy shifting in the Indian Army, the High Court of Bombay dismissed the petition as the petitioner failed to exhaust the statutory alternative remedy of filing a complaint under Army Regulations before approaching the Court.
Writ petition dismissed for failure to exhaust alternative remedy.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITIONNO. 7627 OF 2008
| RHM MAHENDER SINGH, ) |
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|---|---|
| aged 44 years, son of ) |
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| Shri Bane Singh, posted at ) |
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| 38 Medium Regiment C/o 56 ) |
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| APO. )... |
.... Petitioner. |
| Versus | |
| 1) UNION OF INDIA, through) Secretary, Ministry of ) |
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| Defence, New Delhi - 011 ) | |
| 2) Chief of Army Staff, ) through Adjutant General, ) |
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| (ADG PS), Army Head- ) quarters, New Delhi - ) |
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| 110 011. ) |
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| 3) The SRO, Artillery Records) |
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| Nasik. ) |
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| 4) The Commanding Officer, ) |
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| 38, Medium Regiment, ) |
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| 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.:
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(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.
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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.
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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.
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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.
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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.
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petition and dismiss the same on this count alone.
Sd/-
[SMT. RANJANA DESAI, J.]
Sd/-
2 issues framed by the court
Whether a retired petitioner can approach the Court via Article 226 without exhausting the alternative remedy of filing a complaint under Army Regulations.
Whether the shifting of vacancies between Army units violates the petitioner's seniority rights or legitimate expectation of promotion.
1 provisions across 1 enactments
Mahender Singh
Union of India
Ranjana Desai
A.A. Sayed
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
