Patna High Court
Union Of India (Uoi) And Ors. vs Ic-37203-F Lt. Col. Vijay Kumar Sharma on 23 June, 2003
Equivalent citations: 2003(2)BLJR1374
Author: R.S. Garg
Bench: R.S. Garg
JUDGMENT R.S. Garg, J.
1. The appellant Union of India being aggrieved by the judgment and order dated 12th July, 2001 passed in C.W.J.C. No. 4669 of 1999 directing that case of the petitioner be reconsidered for his promotion from the rank of Lt. Colonel to Acting Colonel/Colonel after ignoring the A.C.Rs. of the years 1990-91 and 1992-93 and a further direction that the No. 3 Selection Board shall be constituted and convened to consider petitioner's case for promotion, was come to this Court inter alia submitting that the directions issued by the learned single Judge are not in accordance with law and tantamounts to interference into the selection process of the Armed Disciplined Forces.
2. The facts necessary for disposal of the present writ application are that the petitioner joined the Armed Forces as Second Lieutenant in the Bihar Regiment on 18-3-1978. He earned awards/rewards and due promotions in time and in November, 1989 he was given charge as Commanding Officer when he was a Major which marked the start of reckonable service for promotion to the rank of Lt. Colonel and Colonel.
3. Undisputedly the promotion to the rank of Lt. Colonel and Colonel are by selection on merit. The petitioner was promoted to the rank of Lt. Colonel by No. 4 Selection Board on 20-3-1995. The No. 3 Selection Board considered the selections in December, 1996 for the 1978 Batch Officers to consider promotions to the rank of Acting Colonel/Colonel. The petitioner was not selected in December, 1996 in first review in December, 1997 or in second review in December, 1998 and it was further observed that as on three occasions the petitioner has not been found fit for promotion to the rank of Acting Colonel/Colonel, his case would not be considered in future. The petitioner being aggrieved by the result of the considerations and communications has come to this Court inter alia submitting that the result of No. 3 Selection Board, proceedings held during December, 1996, December, 1997 and in December, 1998 affecting the petitioner adversely, be quashed. In the writ application he also submitted that the A.C.Rs. for the period between June, 1990 to May, 1991 and June, 1992 to May, 1993 be directed to be ignored from consideration as the same were invalid and were not correctly recorded.
4. The respondents in their counter-affidavit have submitted that the Army is a pyramidical organization, and therefore, supersessions is a common incidence of service. According to them, promotions in the Army upto the rank of Major are by time scale while promotions from the rank of Major to Lt. Colonel and above are through Selection Board. All Officers of a particular batch are considered together with the same cut off A.C.Rs. and inputs, and on the basis of individual profile of the officers and the batch merit, they are approved/not approved. Seniority in itself is no consideration before the Selection Board for approval or non-approval. If the A.C.Rs. are corrected in the statutory/non-statutory complaint and there is a direction for reconsideration of the merits and the officer is selected for the rank then his seniority is restored but in case his case is approved in the first review or in the second review then he loses his seniority and would be given the rank/promotional rank from the date of the first review or second review order. According to them after three considerations if an officer is not approved he is deemed to be finally superseded. It is also contended that assessment of the Officer in A.C.R. is regulated by SAO 3/S/ 89 and other relevant policies in force at a given time. The gradings are numerical from 1 to 9 and in the form of pen picture also. The assessment of officer in any A.C.R. consists of assessment of various reporting officers whose assessments are independent of each other. According to them the petitioner was considered as a fresh case in 1996, his case was considered in the first review in December, 1997 and as second/final review in December, 1998 and as every time the relief was not granted to him, the appellants were justified in directing that he stood superseded.
5. The writ petitioner had submitted and the facts have not been denied by the present appellants that other A.C.Rs. except for these two years show that the petitioner had been given box grading by the Investigating Officer (I.O.) and by the Reviewing Officer (R.O.). According to him for the period between 1-6-1990 to 31-5-1991 in which the box grading by the I.O. and the R.O. had been reduced to 7 and the other A.C.Rs. of intervening period i.e., 1-6-1992 to 31-5-1993 in which the box grading by the R.O. was reduced to 7 did not correctly reflect the career profile of the petitioner and as the entries were not communicated to the petitioner with an advised for improvement, as such A.C.Rs. were not in accordance with norms and guidelines laid down for recording of A.C.Rs. The petitioner also contended that if the said A.C. Rs. were taken for consideration for his promotion to the rank of Lt, Colonel by the No. 4 Selection Board and the said A.C.Rs. did not hamper or made any impediment in his promotion to the rank of Lt. Colonel then the same could not be considered adversely while considering his case of promotion to the rank of Acting Colonel/Colonel.
6. The argument in fact is that if No. 4 Selection Board after taking into consideration these two A.C.Rs. has promoted him to the higher rank then any adverse effect of these A.C.Rs. would stand washed off and in any case could not act contrary to his interest.
7. The respondent (appellant before us) submitted before the learned single Judge that the factual position relating to A.C. Rs. was not in dispute but the dispute mainly was that the No. 3 Selection Board was justified in taking into consideration the A.C.Rs. for the years 1990-91 and 1992-93. It was contended by them the No. 3 Selection Board was absolutely justified in taking into consideration the total materials of the A.C. Rs. and overall picture of the personality and the career of the petitioner and were also justified in rejecting his case.
8. From the order passed by the learned single Judge it appears that the learned single Judge was impressed by the fact that the two A.C. Rs. of the years 1990-91 and 1992-93 were not technically valid because timely communication was not made, the petitioner was not given any information or advice to improve his performance and as there was denial of making an effective representation and further that reasons as required under the service rules for downgrading the A.C. Rs. were not recorded and no communication was made to the petitioner, the said A.C.Rs. were invalid. The learned single Judge was also of the opinion that non-communication of downgrading defeated the very purpose of writing the A.C.R's. In relation to the other arguments, the learned single Judge observed that on the material including the A.C.Rs. of the petitioner for the years 1990-91 and 1992-93 since the petitioner was found fit for promotion to the rank of Lt. Colonel in February, 1995, in absence of any material adverse to the petitioner, he could not be rejected. The learned single Judge placing his strong reliance upon the judgment of Madhya Pradesh High Court in the matter of K.K. Sood v. Union of India, reported in 1994 Labour and Industrial Cases 1150 held that in absence of any special qualities and standards of efficiency shown to be required for holding promotional post, the personnel if otherwise entitled cannot be denied promotion when the records at the time of subsequent promotion remain the same. The learned single Judge also observed that in the case on hands not only the past records and after petitioner's promotion to the rank of Lt. Colonel remained the same and there was improvement in his performance as evinced by the A.C.Rs. of the later period. In view of these findings, the learned single Judge allowed the writ application and issued the directions aforesaid,
9. Learned Counsel for the appellant-Union of India vehemently argued that in cases of promotion/selection, only one or two A.C.Rs. are not considered but the overall picture of the candidate is to be seen. According to him the judgment of the Madhya Pradesh High Court in the matter K.K. Sood (supra) is under consideration before the Supreme Court and the operation of the said judgment has been stayed. He has placed his reliance upon the judgment of the Supreme Court in the matter of Amrik Singh v. Union of India and others (Civil Appeal No. 5651 of 1997) decided on 16-11-2000 and the judgment in the matter of Union of India and Ors. v. Mahavir Singh and Anr., (Civil Appeal No. 13241 of 2000) decided on 11-10-1996. It is contended that in matters of armed forces of the High Court should not lightly interfere in the matter and when cases of officers are considered by the high officials of the high ranks then there is no scope for any interference unless mala fides are attributed. It is submitted by him that in the matter of Amrik Singh (supra), the Supreme Court refused the relief while in the matter of Union of India v. Mahavir Singh (supra), the appeal of the Union of India was allowed. On the other hand learned Counsel for the respondent (original petitioner) submitted that non-communication of the A.C.Rs. in fact denied him an opportunity to make an effective representation in form of statutory/ non-statutory complaint and as the effect of those of A.C.Rs. for the years 1990-91 and 1992-93 were already taken into consideration, the same now cannot come in the way of the petitioner in getting further promotion.
10. We have heard learned Counsel for the parties and have perused the records.
11. In the matter of Mahavir Singh (supra), the Supreme Court issued a direction to the department to produce documents, if any containing the principles applicable for promotion from the rank of Lt. Colonel to that of Acting Colonel, and the document was produced before the Supreme Court which mentioned the policy for promotion to the rank of Colonel. The Supreme Court noted the following :
"1. The point raised has been examined. It is pointed out that the system of selection imbibes the theory to select the best man for the job. Accordingly, the factors which lead to the selection has been identified. One of the most important factors in the selection system is overall profile of the officer which includes among other things all ACRs earned in the rank of Major and Lt. Cols, for promotion upto A/Cols.
2. Since the Selection Boards have to select the best of the review cases by their overall performance, it is incorrect to suggest that once an officer has been placed on reviews, the entire previous record should be erased from the scrutiny of the Selection Board and only the fresh input be considered.
3. Moreover, since such Selection Board comprises of a different set of members, it is totally incorrect to suggest that members would be able to gauge the merit of the officer under review by just merely looking at the ACR earned after he has been once superseded."
12. In the said policy the emphasis was on consideration of overall profile of the officer which includes amongst other things all ACRs earned in the rank of Major and Lt. Colonel for promotion upto Acting Colonel/Colonel. The policy further said that it would be incorrect to suggest that once an officer has been placed on review, the entire previous record should be erased from the scrutiny of the Selection Board and only the fresh input the considered.
13. From the above referred policy it would clearly appear that the best are to be selected and while considering the review, the complete records are again opened before the reviewing authority.
14. In the matter of Amrik Singh, the Supreme Court observed that so far as promotion to the rank of Lt. Colonel is concerned it is done by way of selection process, the A.C.Rs. of previous five years would be considered. With regard to the A.C.R, of an year there is an assessment made by the immediate superior officer called the Investigating Officer (I.O.), then a Senior Officer above to him or the Reviewing Officer (R.O.) and finally a Senior Officer above to the Reviewing Officer called Sr. Reviewing Officer (S, R.O.) of a very high rank. The Supreme Court further observed that the total performance of the officer has to be looked into and each candidate is to be considered on his own merits. In the said matter, relying upon its earlier judgment in the matter of Union of India and Ors. v. Lt. Gen. Rajendra Singh Kadyan and Anr., (2000)6 SCC 698), the Supreme Court observed that the scope of the judicial review is limited and quoted paragraph 29 of the said judgment which reads as under:
"The contention put forth before us is that there are factual inaccuracies in the statement recorded by the Cabinet Secretary in his note and, therefore, it must be deemed to be vitiated so as to reach a conclusion that the decision of the Government in this regard is not based on proper material. The learned Attorney General, therefore, took great pains to bring the entire records relating to the relevant period which were considered by the Cabinet Secretary and sought to point out that there were notings available on those files which justify these remarks. Prima facie, we cannot say, having gone through those records, that these notings are baseless. Critical analysis or appraisal of the file by the Court may neither be conductive to the interests of the officers concerned or for the morale of the entire force. May be one may emphasize one aspect rather than the other but in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we cannot substitute our view to that of the authorities. It is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such. In that view of the matter, we think there is no justification for the High Court to have interfered with the order made by the Government."
15. The Supreme Court also observed that the adverse remarks could be taken into consideration and there was nothing wrong in it.
16. True it is that the Supreme Court in the matter of D. Ramaswamy v. State of Tamil Nadu, AIR 1998 SC 793 observed :
"Sometimes, past events may help to assess present conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past." The said observations in fact would be of general importance. In the matter of Vaidnath Mahapatra v. State of Orissa, AIR 1989 SC 2218, the Supreme Court observed that "to the effect that after promotion to a higher post, the adverse entry, if any, in the service record lose their significance and remain on record as part of past history and it would be unjust to curtail the service career on the basis of those entries in absence of any significant fall in performance after promotion."
17. It is not in dispute before us that promotion to the rank of Lt, Colonel is given after selection by No. 4 Selection Board. The said two A.C.Rs. were taken into consideration by the No. 4 Selection Board and the No. 4 Selection Board did not find the said entries to be adverse or causing any impediment in promotion of the petitioner from the rank of Major to the rank of Lt. Colonel. True it is that for promotion to the rank of Acting Colonel/Colonel, the past records are to be seen but at this point of time it cannot be said that an entry which did not adversely affect the candidate earlier in securing promotion, would be considered to be an adverse entry. Nothing has been brought on record to show to us that for promotion to the rank of Colonel any additional gallantry or any additional service records are required. It would be correct to say that the best are to be promoted but persons who are not bad or do not have anything adverse cannot be rejected. In the present matter, in our opinion, the learned single Judge was unjustified in observing that the entries for the years 1990-91 and 1992-93 were technically incorrect. However, the learned single Judge was absolutely right in observing that if the entries were not treated to be adverse by one Selection Board then unless something further is brought on the record or applicability of different standards are shown, the very same entries would not become adverse. We are of the considered opinion that the true effect of these two entries have not been taken into consideration. If these two entries are to be taken to be bad or adverse or affecting the petitioner's right to further promotion to the rank of Acting Colonel/Colonel then something was required to be brought on the record to show that what is considered good for promotion to the rank of Lt. Colonel may not be considered good for promotion to the rank of Acting Colonel/Colonel.
18. Taking into consideration the totality of the picture and the materials before us, we are also of the opinion that the case of the petitioner deserves to be considered afresh. All the three decisions of the years 1996 (fresh), 1997 (first review) and 1998 (final review) are quashed. The appellants-Union of India are hereby directed to reconsider the case of the petitioner afresh. They would certainly be entitled to consider the entries for the years 1990-91 and 1992-93 but if they do not have any policy, rules, regulations or circulars which provide for any other considerations then these entries would not be taken to be adverse but if there is anything else available with them either under the statutes, policies, circulars, rules, regulations or considerations then they may taken into consideration the effect of these two entries.
19. With the above modifications, the appeal stands disposed of.