Delhi High Court
Sedu Ram (Havildar) vs The Chief Of Army Staff & Ors. on 19 July, 1999
Equivalent citations: 2000IIIAD(DELHI)134, 84(2000)DLT687, 2000(53)DRJ395
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
ORDER K. Ramamoorthy, J.
1. The petitioner on the date of the writ petition was working as Havildar and he is still on the same post. According to him, he was wrongly denied his promotion to the rank of Naib Subedar while his junior Subedar Mahender Singh, respondent No. 4, was promoted overlooking the claims of the petitioner on the basis of the adverse remark made by the third respondent, Col. Ravi Mohan, who wanted the fourth respondent to be promoted. The facts of this case lie in a very narrow compass.
2. The petitioner was due for promotion w.e.f. 12.11.1994. He was superseded by his junior Hav. Om Prakash. The fourth respondent, Mahender Singh, was given promotion w.e.f. 1.8.1996 superseding the petitioner. According to the petitioner, for the purpose of getting promotion, a Havildar should have earned two 'Above Average" Grades and should be three 'Above ,and three 'High Averages' in the grading in the Annual Confidential Reports.
3. When the petitioner's case was considered in 1996, for five years from 1990 to 1995 the grading of the petitioners are as under:-
Year grading Figurative
Marks given
1990 Above Average 4
1991 High Average 3
1992 High Average 3
1993 High Average 3
1994 Above Average 4
1995 Average 2
4. In the year 1995, the Initiating Officer, Cap. Adesh Yadav has graded the petitioner as 'High Average'. But the third respondent, Col. Ravi Mohan, who was the Commandant, down graded the petitioner to 'Average' and that had affected the petitioner's career. Even though he was down graded, that was not communicated to the petitioner, and the respondents had committed illegality in this behalf. It may be noticed, at this stage, that the petitioner had been graded 'Above Average'.
5. The petitioner in his writ petition has stated that on 15.8.1995, the petitioner was awarded the Meritorious Service Medal by his excellency the President of India and the letter dated 11.9.1995 is filed as Annexure P-2 to show this.
6. It is stated by the petitioner in paragraph 19 of the writ petition:-
"It would be pertinent to mention that during the period or report, not even a single warning was given to the petitioner nor any performance counselling was aver administered on the petitioner and he was downgraded to 'AVERAGE' from 'ABOVE AVERAGE' in an arbitrary manner in order to show favouritism to Havildar Mahender Singh (respondent No.4 herein) in spite of the fact that the Service Record of the said Havildar Mahender Singh was not as meritorious as that of the petitioner."
This is denied by the respondents in the counter.
7. It is well settled that uncommunicated 'adverse remarks' cannot be the basis for considering the Government servant for the purpose of promotion. He should have been given an opportunity to explain and on the facts and circumstances of this case when there was no even a warning, the Commandant, the third respondent, had acted for reasons best known to him in down grading the petitioner to 'Average' and not communicating the same to the petitioner.
8. In the coutner-affidavit, it is stated that 'Average' grading is not an adverse entry, and, therefore, the authority concerned was not obliged in law to communicate the same to the petitioner. This is clearly illegal. The petitioner, as is evident from the records, has been rendering good service and he has not been the subject of any disciplinary action and as a matter of fact, he has been recipient of medals. Therefore, the remarks made by the Initiating Officer as 'High Average' should be maintained and the remark 'Average' recorded by the third respondent is liable to be quashed. Accordingly, the same stands quashed.
9. The resultant position is that the petitioner is entitled to be promoted as Naib Subedar. Therefore, the ACR of the petitioner for the 1995 stands as 'High Average' and the petitioner is declared to have been promoted as Naib Subedar from the date in which the fourth respondent was promoted as Naib Subedar, i.e. 1.8.1996. The seniority of the petitioner in the post of Naib Subedar shall be maintained accordingly. The petitioner shall be entitled to all consequential benefits.
10. The respondents shall pass appropriate orders in this behalf on or before the 31st of August, 1999.
11. The writ petition stands allowed.
12. There shall be no order as to costs.