Delhi High Court
Naib Subedar Dhian Singh Chauhan vs The Chief Of Army Staff And Ors. on 26 August, 2002
Author: J.D. Kapoor
Bench: J.D. Kapoor
JUDGMENT Khan, J.
1. Petitioner has retired from army as JCO on 30.9.2000 but he is still insisting on his promotion to the rank of Subedar.
2. Petitioner was enrolled in the Army on 29.9.1974. He was thereafter promoted as Naik and then as Naib Subedar. However, he was allegedly denied promotion to the rank of Subedar as he had failed to obtain "high average grading" in the ACR on 1997 and 1998. The movement order dated 2.9.2000 was also later passed asking him t move to Pension Establishment. He has challenged these two actions in the present petition and has prayed for quashing of his ACRs recorded in 1997 and 1998 or any other ACR which was not in consonance with his career profile and for his promotion to the rank of Subedar with retrospective effect from 24.6.1999. He also seeks a restraint order against respondents from implementing movement order dated 2.9.2000.
3. Petitioner's second relief has become redundant and is not required to be examined. Coming to his claim for promotion to the post of Subedar, his case is that he had maintained the above/high average career profile all along. Later he was apprised of downgradation of ACRs of 1996-97 and 1997-98. But on 4.6.1999, his ACR for 1996-97 was duly rectified and graded as 'above average' and handed over to his Commanding Officer. But he was still superseded and was not conveyed any performance counselling in terms of Army Order dated 5/90. He thereafter made a statutory complaint dated 10.11.1999 and also served a legal notice dated 15.2.2000 through counsel, but still no action was taken in the matter by respondents. He claims that since his ACR for 1997-98 was downgraded from 'high average' to 'average', he was not communicated any adverse or weak points and that this downgrading was violative of AO-5/90. He has placed reliance in this regard on the Supreme Court judgment in Gurdial Singh v. State of Punjab (AIR 1979 SC 1662) laying down that uncommunicated adverse report in a confidential roll could not be acted upon to deny promotional opportunity.
4. The stand taken by respondents is that petitioner was not eligible for promotion to the rank of Subedar in terms of the criteria laid down for such promotion whereby his last three ACRs were to be considered out of which two should have been not less than 'high average grading'. As against this, petitioner had earned two "Average" reports in ACRs for 1997 and 1998 while serving in 12 Dogra. It is explained that there were no weak/adverse remarks endorsed in his two ACRs and there was no question of conveying these to him. His performance, on the other hand, as JCO was assessed both by the Initiating and Reviewing Officer and was graded 'Average' which assessment was consistent and objective and made in accordance with law. It is denied that any statutory complaint dated 10.11.1999 was received by it but his legal notice was duly replied. On the contrary, he had submitted a handwritten complaint unaccompanied by requisite 10 copies which was returned to him. It is also denied that his ACRs for 1996-97 and 1997-98 were rectified or that any performance counselling was required to be given to him.
5. Petitioner has also filed a rejoinder to the reply filed by respondents reiterating his stand and it is not necessary to reproduce the averments made by him which refute the contentions of respondents.
6. All that falls for consideration is whether petitioner was unjustifiably denied promotion to the rank of Subedar and whether his ACR for 1997-98 could be ordered to be reviewed or re-written by the concerned authority.
7. There is no dispute that promotion to the rank of Subedar is accorded in accordance with the criteria which stipulates taking in regard the last three confidential reports on the JCO, two in the rank of Naib Subedar and one in the rank of Havaldar. All the three reports have to be of not less than 'high average grading'. It is also admitted position that petitioner did not possess all the three ACRs of 'high average grading' thereby falling shot of promotion criteria in the process.
8. The only question that remains to be examined is whether his ACR for 1996-97 was rectified and upgraded to 'high average' and whether his next year's ACR was downgraded as he claims. Both contentions are refuted by respondents and rightly so because there is nothing to show that his ACR for 1996-97 was either rectified nor upgraded to 'high average'. It is also not the case that his ACR for next year (1997-97) was downgraded in the strict sense of the term. His performance for this year was assessed at 'Average' both by the Initiating Officer and the Reviewing Officer which could not be treated as any downgrading from 'high average' to 'average' grading warranting and attracting any reasoning to be given in support. Nor does it appear to us a case that where average grading awarded to him for 1997-98 could be branded as adverse to invite terms of Army Order 5/90 requiring respondents to convey any weak/adverse points to him or subject him to any performance counselling.
9. Petitioner's reliance on the judgments cited by him is also misplaced. There is no quarrel with the proposition that uncommunicated adverse remarks could not be acted upon to deny promotional avenues or that for any sharp downgrading of an ACR, was to be supported by some reason. But all this has no application to petitioner's case. Because firstly no adverse remark was recorded in his ACR and, therefore, the question of communicating and acting upon it did not arise. Nor had any sharp downgrading of his ACR taken place because on petitioner's own showing his previous ACR for 1996 was also average which was later sought to rectified which, however, is not borne by the record. Therefore, if his performance was assessed by the competent authority as average for two years, it could not be said to be a case of any arbitrary downgrading from a high grading to a low one.
This petition accordingly fails and is dismissed.