,,
1. Invoking the jurisdiction of this Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007, the applicant has called in question the tenability",,
of intimations (Annexure-A/1) issued to the applicant on 29.05.2019 rejecting his first representation dated 24.04.2019 and order dated 06.08.2019,,
Annexure-A/2, whereby Respondent No. 4 has rejected the repeat representation submitted by the applicant on 11.06.2019.",,
2. The applicant was a Lieutenant Commander (Lt Cdr) in the Indian Navy recruited in 2007 as a Short Service Commission Officer in the Logistics,,
Cadre and it is said that he was released from service in the evening of 06.08.2019. Inter alia contending that before his release on 06.08.2019, the",,
applicant had completed 11 years of service as a ‘Lt Cdr’ and, therefore, in view of the policy issued by the respondents dated 11.03.2005",,
(Annexure-A/4) with regard to ‘Restructuring of Officers Cadre in Navy, the applicant is entitled to be promoted to the substantive rank of",,
Commander (Cdr) and this, having not been done, he has invoked the jurisdiction of this Tribunal.",,
3. Facts in brief indicate that in pursuance to the advertisement issued in the year 2007, the applicant was inducted as a Short Service Commission",,
(SSC) Officer in the Indian Navy Logistics Branch with effect from 06.08.2007. It is said that on account of his outstanding training and in recognition,,
of his outstanding performance during the training, the applicant, the only member of his batch i.e. July, 2007- Logistics, was awarded 12 months in",,
seniority. Vide Policy letter dated 11.03.2005, the Ministry of Defence and subsequently by letter dated 14.03.2005, the Integrated Headquarters Navy",,
introduced and formulated the procedures in the matter of Restructuring of Officers Cadre in Navy and the implementation of the same in accordance,,
to the Ajay Vikram Singh Committee’s recommendations were laid down at Annexure-A/4 and Annexure-A/5 dated 11.03.2005 and 14.03.2005,,
respectively. Since as per the policy in vogue, after completing the training and as the applicant had been granted full 12 months seniority on account",,
of his meritorious performance during the training, the applicant gained promotion to the rank of Sub-Lieutenant on 06.08.2008 i.e. one calendar year",,
from the date of his appointment and additional one year seniority having been granted on account of his meritorious performance in the training. In,,
this regard, reliance is placed on the communication made to the applicant on 14.05.2009, Annexure-A/7, wherein the applicant is shown to have been",,
promoted to the rank of ‘Lt’ in Logistic Cadre with effect from 06.08.2008. After completing 4 years on the substantive post of Lt. an officer is,,
entitled to promotion to the next rank of Lt Cdr. The applicant is said to be the first person in his batch who was promoted as Lt Cdr with effect from,,
06.08.2012 vide order issued on 10.07.2012 Annexure-A/9. Name of the applicant appears at Serial No. 39 and his date of promotion as ‘Lt,,
Cdr’ is shown as 06.08.2012.,,
4. The applicant’s original term of Short Service Commission was scheduled to expire in the year 2017. However, vide order dated 06.09.2016,",,
Annexure-A/10, the applicant was granted extension of 2 years of service with effect from 06.08.2017 upto 05.08.2019. However, the applicant was",,
not granted further extension of 2 years to complete 14 years of Short Service Commission. Even though he has furnished his willingness but vide,,
order at Annexure-A/11 dated 12.08.2018, the applicant was approved for release from the SSC service and in the said order, the Competent",,
Authority directed that the applicant be released on 06.08.2019. The applicant’s name appears at Serial No. iv of list of officers to be released and,,
from Para 2 onwards, various procedural formalities to be completed before their release were indicated. According to the applicant, his date of",,
release from service was 06.08.2019 and in fact he was released on 06.08.2019 in the post-meridian session i.e. in the evening. Referring to the,,
scheme for upgradation or restructuring of officers cadre in the Navy and the stipulations contained in the instructions issued for implementation of the,,
restructuring scheme i.e. Annexure-A/4 dated 11.03.2005 and Annexure-A/5 dated 14.03.2005, it is the case of the applicant that a Lt Cdr who has",,
substantially held the post for 11 years, on completing the period of 11 years as a substantive Lt Cdr, is deemed to have been promoted to the next",,
higher post of Commander (Cdr). According to the applicant, as he was inducted and substantially appointed as a Lt Cdr of 06.08.2012, he completed",,
11 years substantive posting on the promoted post of Lt Cdr on 05.08.2019 and as he was released on 06.08.2019, he is deemed to have been",,
promoted as a ‘Cdr’ on 06.08.2019 i.e. on the very day when he was released from service in the evening of 06.08.2019. Even though the,,
applicant’s promotion to the rank of ‘Cdr’ would be only for one day, this appointment of the applicant holds great significance to the",,
applicant firstly as it is a right which had accrued to him for being promoted as Cdr on substantially completing 11 years as a substantive Lt, and",,
secondly, the promotion confers certain honour and prestige to the applicant and that apart, the higher rank would benefit him in his placement,",,
designation and salary in any civil department or organisation where he would be joining after his release on 06.08.2019. When the respondents did not,,
give promotion to the applicant on the rank of Cdr which had accrued to him as a matter of right, by virtue of the policy and scheme formulated by the",,
respondents, applicant submitted a representation/letter dated 22.04.2019 seeking promotion to the rank of Cdr with reference to Govt, of India letter",,
dated 11.03.2005 and the Integrated HQ, MoD (Navy) dated 14.03.2005. Even though the chain of command and the superior officers of the",,
applicant including the Vice Chief of Naval Staff recommended for grant of promotion to the applicant, however, by the impugned order dated",,
29.05.2019, the respondents rejected the request of the applicant on the grounds that the applicant would be out of service on the date the promotion is",,
due to him and in similar situation, Logistic officers from the 2006 batch who were commissioned as SSC officers in the Navy on 07.08.2006 were",,
released from service on 06.08.2018 without putting them in the rank of Cdr which fell due on 07.08.2018. It is the case of the applicant that while,,
rejecting his representation, the respondents have treated the same as if the applicant was seeking an extension of his tenure and grant of promotion.",,
However, it was the case of the applicant that as he was released only on 06.08.2019 and he was in service upto 06.08.2019, he was entitled for",,
automatic promotion to the rank of Cdr once he has completed 11 years of service as a Substantive Lt on 05.08.2019. He, therefore, pointing out the",,
error, again represented on 11.06.2019 and by the second impugned order dated 06.08.2019, his second representation was again rejected. It is the",,
case of the applicant that he was on active service on 06.08.2019 was released from services only in the evening of 06.08.2019 and after his release,",,
the applicant has joined the Central Warehousing Corporation with effect from 04.09.2019 as a Deputy General Manager (General). His salary and,,
emoluments in this Government Undertaking is determined by way of reference to his last pay drawn from the Navy i.e. on the basis of the rank as Lt,,
Cdr but in case the applicant was released after grant of permission as Cdr, this would substantially make great difference in the basic pay,",,
designation and other benefits to be granted to the applicant while serving in the Civil department.,,
5. Â Inter alia, contending that the respondents have arbitrarily and in illegal manner rejected claim of the applicant, learned counsel for the applicant,",,
Shri Santhosh Krishnan, took us through various documents available on record, particularly the policy for ‘Restructuring of Officers’ Cadre in",,
the Navy’ Annexure/A-4 dated 11.03.2005, the stipulation for grant of substantive promotion contained in Para 2 of the said policy, which reads as",,
under :,,
“2. Substantive Promotion. To reduce the age profile and supersession levels in the Navy, as also to improve vertical mobility, promotion to substantive ranks",,
will be made based on eligibility criteria indicated below Rank Eligibility Criteria,,
(a) Sub Lieutenant On commissioning,,
(b) Lieutenant                                                 02 Years as SLt,,
(c) Lieutenant Commander                          04 Years from date of promotion to Substantive Lt,,
(d) Commander                               11 Years from date of promotion to Substantive Lt,,
(e) Â Captain (Time Scale) Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 26 Years of reckonable commissioned service,,
6. Â The criteria laid down for promotion in the implementation instructions issued by the Integrated Headquarters of Ministry of Defence (Navy) vide,,
Annexure-A/5 dated 14.03.2005, the fact of the applicant’s fulfilling all the criteria laid down therein, which have been clearly approved and",,
reiterated by the line of command in Annexure- A/ 13 dated 24.04.2019, while forwarding the applicant’s representation. Referring to the file-",,
noting Annexure-A/13 available at Page 51 and summary of the applicant’s case tabulated in Para 6 and Paras, 7, 8 and 9 of the Note-sheet,",,
which read as under :,,
SI
No.","Criteria for Promotion to the
Rank of Cdr",Officer’s Particulars
(a),"Completed 11 years of service
since promotion to the rank of
substantive Lt","Promoted Substantive Lt w.e.f. AM 06 Aug
08. Would complete 11 years on 05 Aug 19
(b),Qualified PME,Qualified PME in 2014
(c),Sea Service in the rank of Lt Cdr,"Not mandatory law Para 13 of IHQ MoD
(N) letter at Flag A since SSC Log Officers
not considered for PC
(d),Appropriate Med Cat,Med Cat S1A1
(e),"Vigi lance/Discip linar y
clearance","N o vigilance/disciplinary case pending
against the Officer
to an end on 05.08.2017 and thereafter he was granted two years’ extension which came to an end on 05.08.2019. According to the respondents,",,
as the appointment of the applicant, an SSC Officer was a tenure post and after completion of initial tenure of 10 years and two years extension on",,
05.08.2019, he would have been deemed to be out of employment or his contract of service would come to an automatic end on 05.08.2019 and,",,
therefore, as he was struck- off from the rolls of the respondents on 05.08.2019 on his completing his tenure appointment, it cannot be said that he has",,
completed 11 years of service on 06.08.2019, his date of release. However, the counter affidavit filed by the respondents is silent as to why the",,
applicant was not released on 05.08.2019; why he was permitted to continue up to 06.08.2019 and was only released on 06.08.2019 evening, which",,
fact is admitted by the respondents and is also apparent from various documents that have come on record. Even though on 06.09.2016 vide,,
Annexure-A/10, the Integrated Headquarters of Ministry of Defence (Navy) granted extension of the tenure of the applicant as an SSC Officer of",,
2007 batch upto 05.08.2019, when the Integrated Headquarters of Ministry of Defence, Navy which had granted extension upto 05.08.2019, issued",,
the release order more than a year prior to his release vide Annexure-A/11 dated 02.08.2018, indicated that the applicant shall be released on",,
06.08.2019. In this communication Annexure-A/11, it is indicated that the Competent Authority has approved release of the SSC Officers detailed",,
therein with effect from the date mentioned against their names and the date of applicant’s release as an SSC Officer approved and mentioned by,,
the Competent Authority is 06.08.2019. Thereafter, in this release order, certain procedural formalities to be completed before release of the applicant",,
were indicated from Paras 2 to 5. It is, therefore, clear from these two orders i.e. 06.09.2016 and 02.08.2018, that even though the applicant was",,
shown to have been granted a tenure appointment as an SSC Officer upto 05.08.2019, but the same Authority, which fixed the said tenure, directed",,
for his release only on 06.08.2019 while passing and issuing order of release Annexure-A/11 dated 02.08.2018. In pursuance to this direction,",,
Annexure-A/15, the GEN FORM issued to the applicant with regard to his release indicates that the applicant, an SSC Officer, is released from active",,
service with effect from ‘PM of 06.08.2019 by virtue of release order dated 02.08.2018’. The respondents do not dispute this document and,",,
therefore, it is clear from this that the applicant was in the rolls of the respondents on 06.08.2019. He discharged his duties on 06.08.2019 and was",,
released in the evening of 06.08.2019 only. That apart, when the applicant sought for information with regard to the amounts credited to his account at",,
the time of release, a communication Annexure-A/16 dated 17.09.2019 was made to him, wherein it was indicated that a sum of Rs.33,396/- was",,
credited to the applicant’s account. The amount so credited indicates that he was paid salary for the period 01.08.2019 to 06.08.2019, amounting",,
to Rs.22,414/-; he was paid arrears of TPT-DA for the period from 01.08.2019 to 06.08.2019 amounting to Rs. 864/- and he was paid arrears of TPT",,
for the period from 01.08.2019 to 06.08.2019 amounting to Rs. 7,200/-. That apart, licence fee, service/garage fees were also recovered from the",,
applicant amounting to Rs. 103/- and Rs. 12/- respectively for the period 01.08.2019 to 06.08.2019. Accordingly, the documents available on record",,
and on account of the respondents’ own showing, it is clear that the applicant was in active service on 06.08.2019. Salary and all other monetary",,
benefits due to him in accordance to the terms and conditions of the contract of service were paid to him upto 06.08.2019 Â and it is only on,,
06.08.2019 that he was released from service. Taking note of all these factors, we have no hesitation in holding that the applicant was in service on",,
06.08.2019. Â Even though the Competent Authority has fixed his tenure upto 05.08.2019 but the same Competent Authority, while ordering his",,
release, a year prior to the conclusion of his tenure appointment vide order dated 02.08.2018, fixed the tenure upto 06.08.2019; permitted him to work",,
on 06.08.2019; treated him to be in service upto 06.08.2019, paid all dues payable to him including the salary and allowances upto 06.08.2019 Â and,",,
therefore, an assumption can be drawn that the tenure appointment of the applicant, even though ordered to come to an end on 05.08.2019 and in fact",,
it was terminated by the respondents on account of their own action only on 06.08.2019 Â as a result of which, the applicant had completed 11 years",,
of service as a Substantive Lt on 05.08.2019 and on 06.08.2019, Â having completed 11 years of substantive appointment as a Lt was entitled to be",,
deemed to have been promoted to the post of ‘Cdr’.,,
11. The contention of the respondents that the appointment of the applicant came to an automatic end on 05.08.2019 cannot be accepted for two,,
reasons. The first being that the respondents’ themselves, inspite of tenure being over on 05.08.2019, permitted the applicant to continue to be on",,
their roll till 06.08.2019 and released him on 06.08.2019 after permitting him to work till 06.08.2019 and treating him to be on duty on 06.08.2019 and,,
secondly, merely because a period of tenure is fixed in the offer of appointment or the order for release of a person on completion of tenure, certain",,
administrative and procedural formalities have to be completed and until and unless these formalities are not completed, release of a person in",,
accordance to the law cannot be given effect to. In this case also, the release of the applicant was fixed for 06.08.2019, certain formalities were",,
directed to be completed before that date and permitting the applicant to work till 06.08.2019, he was only released on 06.08.2019, meaning thereby",,
that his contract of service stood extended by one day by virtue of the acts of the respondents fixing his release date knowing fully well that his,,
contract as an SSC Officer extended upto 05.08.2019 can be brought to an end on 05.08.2019 itself. The respondents, on their own, without any undue",,
influence, misrepresentation or any acts of commission and omission on the part of the applicant, having permitted to work till 06.08.2019, Â cannot",,
now say that by operation of contract of appointment or the tenure of appointment granted to the applicant, his services came to an end on 05.08.2019",,
and, therefore, he cannot be granted the benefit of promotion as prayed for. It is the case where the applicant, having completed 11 years of service,",,
as a substantive Lieutenant by virtue of the Policy dated 11.03.2005 (Annexure-A/4) and implementation procedure letter dated 14.03.2005,,
(Annexure-A/5), was entitled to be treated and considered to have been discharged his duties on 06.08.2019 and the respondents treating the applicant",,
so, should pass appropriate orders granting promotion to the applicant on the post of Commander prior to his release on 06.08.2019.",,
12. Accordingly, we allow this OA quashing the impugned orders dated 29.05.2019 and 06.08.2019 and direct the respondents to grant promotion to",,
the applicant on the post of Commander before his release in accordance to the Policy letters dated 11.03.2005 (Annexure-A/4) and 14.03.2005,,
(Annexure-A/5), subject to, however, applicant fulfilling all the criteria laid down therein. Necessary orders in this regard be issued within a period of",,
one month from the date of receipt of the certified copy of this order.,,
13. There is no order as to costs.,,
Pronounced in open Court on this 5th day of January, 2022",,
