Punjab-Haryana High Court
Lt. Col. S.S. Chahal vs Union Of India (Uoi) And Ors. on 15 September, 2004
Equivalent citations: (2005)139PLR49
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. This order will dispose of C.W.P. No. 7581 of 1989 and C.W.P. No. 17603 of 1991. 2. In the aforesaid writ petitions under Articles 226/227 of the Constitution of India, the petitioner prays for the issuance of a writ, order or direction, commanding the respondents to cancel the order of premature retirement and to release the promotion of the petitioner on the rank of Colonel. The relevant facts as culled out from the pleadings of the parties, are as under:-
The petitioner was commissioned as Second Lieutenant on 27.9.1963. He was promoted on the rank of Major in his own turn. The promotion upto the rank of Major is a time-scale promotion and granted after completion of a particular period of service. Thereafter, the promotion is selection based. The petitioner was duly promoted as Lieutenant Colonel on 30.8.1983. On 13.2.1985, the petitioner made an application for premature retirement due to family circumstances. The petitioner claims that unknown to him, his case for promotion on the rank of Colonel had been considered and approved in September, 1985. The approval of the promotion on the rank of Colonel was communicated to the petitioner by letter dated 18.3.1986 (Annexure P1 in C.W.P. No. 17603 of 1991). The name of the petitioner had been placed in the select final list for physical promotion. Petitioner's request for premature retirement was sanctioned by order dated 10.10.1985 (Annexure P-3 in C.W.P. No. 7581 of 1989). The petitioner was released on 26.10.1985. On 27.10.1985, the petitioner went on leave pending retirement. By order dated 19.11.1985 the premature retirement of the petitioner which was kept in abeyance and the petitioner was re-called to face disciplinary proceedings. On the same allegations, the petitioner was also court-martial led, on three charges. In August, 1988, the Court Martial found the petitioner not guilty on all the charges. Even the Review Court Martial which was directed to be held by the GRC (Western Command) concluded onl8.11.1988 that the charges against the petitioner have not been proved. During this period, the respondents passed an order dated 11.3.1988 (Annexure P-4 in C.W.P. No. 7581 of 1989) directing the cancellation of premature retirement orders in respect of the petitioner. Thus, the earlier order of sanction dated 10.10.1985 and the order keeping the premature retirement in abeyance were cancelled. Although the Court Martial had twice found the charges to be not proved, the disciplinary proceedings against the petitioner were kept alive. By letter dated 27.5.1988, the petitioner was informed that he had cleared the Efficiency Bar for grant of increment beyond Rs. 4200/- in the integrated pay scale. The order was passed by the competent authority on 29.4.1988. Aggrieved against the order dated 11.3.1988, the petitioner filed C.W.P. No. 11030 of 1988. The petition was admitted on 4.1.1989. The petitioner also filed C.W.P. No. 7581 of 1989 seeking promotion on the rank of Colonel with effect from the date his course-mates have been promoted on the ground that he had been duly approved for promotion. The petitioner had earlier filed C.W.P. No. 3551 of 1988 wherein he had prayed for the grant of rank during the pendency of the enquiries. It was rendered infructuous on dissolution of the Court Martial. The petitioner was given liberty to approach this court on a fresh cause of action as also on any cause of action which still survives. The petitioner, therefore, filed CWP No. 4934 of 1988 which was dismissed as premature on 27.7.1988. As noticed earlier, the petitioner had filed C.W.P. No. 11030 of 1988 challenging his recall. During the pendency of these writ petitions, a show- cause notice was issued to the petitioner dated 14.2.'990. The petitioner challenged the issuance of the show-cause notice in C.W.P. No. 4778 of 1990. In this petition, notice of motion was issued for 8.5.1990 and passing of final order was stayed. Subsequently, the writ petition was admitted on 1.8.1990. At this stage, respondent No. 3- Brig. S. Behl, Brigadier (Admn.), HQ Western Command, Chandimandir is said to have approached the petitioner and persuaded him to withdraw the two writ petitions i.e. C.W.P. Nos. l 1030 of 1988 and 4778 of 1990. The petitioner, therefore, made applications for withdrawing the writ petitions which was allowed. C.W.P. No. 4778 of 1990 was permitted to be withdrawn by order dated 18.4.1991 with permission to file fresh petition, in case an adverse order is passed by the Army authorities on the statutory complaint which was pending final disposal. Similar order was passed in CWP No. 11030 of 1988. After withdrawing the writ petitions, the petitioners approached GOC-in-C Western Command by his letter dated 9.4.1991 with a request that his premature retirement may please be considered favourably as applied for already. In this letter, the petitioner had categorically mentioned that the applications for withdrawal of the writ petitions had been made, as a result of the telephone conversation between Brig "A" HQ Western Command and the petitioner on 3.4.1991 as well as the subsequent discussion with Brig "A" of date. The premature retirement of the petitioner was approved on 21.6.1991 (Annexure P-6 in C.W.P. No. 17603). Incidentally, it may be noticed that in this communication, the petitioner is referred to as "IC-15724 Col S.S. Chahel, Engrs". The petitioner was relieved from duty in the month of June, 1991. However, by letter dated 5.7.1991, the petitioner was forwarded two copies of the letter issued by the Army Authorities dated 26/30.4.1991. The petitioner was asked to return one copy duly signed in token of having received the letter. In this letter, the petitioner was informed that his reply to the show cause notice and the recommendations of the Commander-in-Chief were placed before the CDAS, who has directed on 4.3.1991 that the Officer be awarded his severe Displeasure (to be recorded). This took the petitioner by complete surprise. He then realised that he had been tricked and misled to seek premature retirement. The case against him for which he had been given show cause notice for termination had been finalised on 4.3.1991 much prior to the petitioner was approached for withdrawing the writ petitions. Had the petitioner known this fact, he would not have sought premature retirement and would have decided to continue in service. This would have enabled him to earn the promotion to the rank of Colonel w.e.f. February, 1986, the date when his juniors were promoted for which he had been duly approved. The petitioner claims that respondents No. 2 and 3 misled him into believing that they are prepared to withdraw the show cause notice, if he was ready and willing to withdraw the cases filed by him before this Court. There would be no other reason for the petitioner to withdraw the writ petitions as the award of recordable displeasure would not have affected the service of the petitioner in any manner. The petitioner further claims that he was approached by respondents No. 2 and 3, as the Government had taken a serious view of the action of respondent No. 2 to recall the petitioner from premature retirement which had been duly sanctioned by the Government without obtaining the approval of the government. Respondent No. 1 was also concerned about the illegalities in regard to the manner in which the petitioner was made to face disciplinary action. Instead of replying to the queries and objections raised by respondent No. 1, respondent No. 2 chose a convenient method of approaching the petitioner through respondent No. 3 and misled him into seeking premature retirement, without telling him that this his case had already been finalised by the award of censure.
3. The respondents have denied the allegations of mala fide levelled against respondents No. 2 and 3. They further state that the petitioner voluntarily submitted an application on 13.2.1985 for premature retirement. The request was accepted and the decision was conveyed to the Unit of the petitioner for implementation by letter dated 10.10.1985. The respondents also accept that the name of the petitioner for promotion to the rank of Colonel had been approved and his name had been placed in the selection panel awaiting his turn for the physical promotion. The delay in passing the order in disciplinary proceedings was in obedience to the orders passed by this Court in C.W.P. No. 4778 of 1990. At the time of issuance of notice of motion, this Court had stayed the passing of the final order in the disciplinary proceedings. Before petitioner's turn for promotion could reach, his application dated 13.2.1985 for premature retirement was sanctioned on 10.10.1985. The petitioner proceeded on leave pending retirement on 26.10.1985. He was to proceed on retirement after the expiry of the leave, but before that, the order dated 19.11.1985 was passed keeping the order of premature retirement in abeyance. The petitioner was called back to face disciplinary proceedings. The premature retirement of the petitioner was cancelled on 11.3.1988. The disciplinary proceedings against him ultimately culminated into award of "severe displeasure (recordable)" given by the Chief of Army Staff on 4.3.1991. Therefore, his case for promotion was required to be re-assessed as a "Special Review" (drop in performance) case by the Selection Board in terms of the policy letter dated 10.6.1995 read with the policy letter dated 2.5.1985. Before the next meeting of the Selection Board could take place, the petitioner again applied for premature retirement by application dated 5.4.1989. This request of the petitioner was sanctioned by the Government on 21.6.1991 and the petitioner was retired w.e.f. 30.6.1991. Having sought premature retirement, it does not lie with the petitioner to now seek promotion and reinstatement into service. The petitioner was placed on D.V. Ban w.e.f. 29.8.1986. The ban was lifted on 6.5.1991.
4. Mr. Randhawa, learned counsel appearing for the petitioner, has submitted that the petitioner is not pressing for reinstatement. He is now only interested to retire on the rank of Colonel from the date persons junior to him were promoted. If promoted, the petitioner would be entitled to retiral benefits on the rank of Colonel. In support of his claim, learned counsel submits that respondents cannot take advantage both ways (a) cancel the premature retirement and (b) not release the promotion also. The case of the petitioner for promotion has to be considered on the date his approval was granted by the Selection Committee. On that date, nothing was pending against the petitioner. D.V. Ban was not operative at the time when the petitioner was considered and approved for promotion. Learned counsel has also argued that even "severe displeasure" would not result in drop in performance. He has further argued that the petitioner having been exonerated by the Court Martial, the show cause notice on the basis of which the "severe displeasure" had been recorded, would be without jurisdiction as well as being arbitrary exercise of power. In support of this proposition, learned counsel has relied on the judgments in the following cases:-
Ramesh Chander v. G.O.C. Northern Command and Ors., 1977(2) S.L.R. (J&K) 865, Major J.S. Kang v. The Union of India and Ors., 1987(5) S.L.R. (Pb. & Hy.) page 66 and G.R. Vinayak It. Col. v. The Union of India and Anr. 1996(1) S.L.R. (Pb. & Hy.) page 220.
5. Learned counsel has further argued that the promotion of the petitioner on the post of Colonel was in fact accepted by the respondents. Till date the promotion order dated 18.3.1996 (Annexure P-l in C.W.P. No. 17603 of 1991) had not been cancelled. There cannot be a drop in performance on the basis of severe displeasure as it is not a punishment under the Army Act. This punishment is prescribed only under the Administrative Instructions which cannot be taken into consideration. The respondents did not move against the petitioner under Section 19 of the Army Act, 1950 read with Rule 14 of the Army Rules 1954. The 1978 instructions had not contained any provision to place a D.V. Ban, if action is contemplated under administrative instructions. In support of this submission, learned counsel relied on the judgments passed in the cases of Ramesh Chander (supra) and Major J.S. Kang (supra). Learned counsel further submitted that the respondents permitted the petitioner to cross the efficiency bar on 27.5.1988. The case of the petitioner was even considered for further promotion on the rank of Brigadier. Therefore, the conclusion of the respondents that there has been a drop in performance is not supported by reasons.
6. On the other hand, Mr. Gurpreet Singh, learned counsel for the respondents has submitted that the petitioner was anxious to leave the Army. Selection Board for promotion was held in September, 1985. It was communicated to the petitioner on 18.3.1986. Therefore, he knew that he had been promoted. But he was still interested in running away. Learned counsel further submitted that there is a marked difference in the procedure for promotion in Civil Services and the Army. The law laid down by the Supreme Court in the case of Union of India v. K.V. Jankiraman etc. etc., A.I.R. 1991 S.C. 2010, would not be applicable. According to the learned counsel, it was made clear in the letter dated 18.3.1986 that the petitioner would be promoted when a suitable vacancy is available provided his record of service remans satisfactory and he is in an acceptable medical classification at the time he becomes due to promotion. There was no vacancy available for the promotion of the petitioner till 29.8.1986 when D.V. Ban was imposed. The petitioner's drop in performance has to be adjudged on the basis of policy dated 10.6.1985. In support of this submission, the learned counsel relies on the judgment in the case of Union of India and Anr. v. Lt. Col. (T.S.) R.K. Bhagat, 2002(4) S.L.R. (Pb. Hy.) 494. The claim of the petitioner had, therefore, to be considered firstly with the 63 Batch, then 64 Batch, and thereafter 65 Batch. Premature retirement of the petitioner was accepted on 21.6.1991. D.V. Ban was lifted on 6.5.1991. Therefore, no special review could be held before his retirement. Learned counsel further submitted that Army authority can take action on the administrative instructions, even if proceedings under Section 19 read with Rule 14 are dropped. Acquittal by the General Court Martial is of no consequence as administrative action can still be taken. In support of his submission, learned counsel has relied on the judgment passed by the Supreme Court in the case of Chief of the Army Staff and Ors. v. Major Dharam Pal Kukrety, A.I.R. 1985 Supreme Court 703 (paras 4 and 16). Learned counsel has submitted that the petitioner cannot take any advantage of having been wrongly described as Colonel in the communication dated 21.6.91. In any event, the mistake has been corrected subsequently. Bona fide mistake committed by the authorities can always be corrected. In support of this submission, learned counsel relies on judgment passed by this Court in the case of Sunder Lal and Ors. v. The State of Punjab and Ors. A.I.R. 1970 Punjab and Haryana 241. Last, but no least, learned counsel for the respondents has submitted that the writ petition is barred by delay and latches. The petitioner is claiming promotion w.e.f. 1986 without impleading any of his juniors who may have been promoted superseding the petitioner. In support of this, learned counsel relies on the judgment passed by the Supreme Court in the case of P.S. Sadasivaswamy v. State of Tamil Nadti, A.I.R. 1974 Supreme Court 2271.
7. I have considered the submissions made by the learned counsel the parties.
8. Before adverting to the factual position, it would be appropriate at this stage to notice the judgments cited by the counsel for the parties. In K. V. Jankiraman 's case (supra), the Supreme Court considered a common question of law which was involved in a number of civil appeals and Special Leave Petitions, relating to, what in service juris- prudence has come to be known as "Sealed Cover Procedure". The Supreme Court for- mulated the following questions:-
"2..... (1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date? The "sealed cover procedure" is adopted when an employee is due for promotion, increment etc. but disciplinary/ criminal proceedings are pending against him at the relevant time and hence the findings of his entitlement to be benefit are kept in a sealed cover to be opened after the proceedings in question are over. Hence, the relevance and importance of the questions."
9. The salient conclusions which emerge from this judgment can be summed up as follows:-
A) It is only when a charge-memo in a disciplinary proceeding or a charge-sheet in a criminal prosecution is issued to an employee, it can be said that the departmental proceeding/criminal prosecution is initiated against the employee.
B) The Sealed Cover Procedure is to be resorted to only after the charge memo/ charge-sheet is issued.
C) The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure.
D) The promotion cannot be withheld merely because some disciplinary proceedings are pending against the employee.
E) When an employee is completely exonerated in criminal/disciplinary proceedings and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits, including the salary of the promotional post.
F) The normal rule of "No work, No Pay" is not applicable to such cases, where the employee, although he is willing to work, is kept away from work by the authorities for no fault of his.
G) Salary can be denied if the concerned authorities come to the conclusion that the disciplinary and criminal proceedings were delayed at the instance of the employee. The salary may also be denied if the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee.
I) For denial of salary, it would be necessary for the concerned authority to record its reasons for doing so.
J) The Officer cannot be rewarded by promotion as a matter of course, even if penalty is other than that of reduction in rank, as the severity of penalties ranges from dismissal to censure.
K) An employee has no right to promotion. He has only a right to be considered for promotion.
L) The promotion to a post and more so to a selection post dependents on several circumstances. To qualify for promotion, least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interest.
M) An employee guilty of misconduct cannot be placed on par with the other employee and his case has to be treated differently. There is therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee, with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti.
N) When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct.
O) Penalties imposed upon the employee can be taken into consideration for denying promotion. Such denial is not illegal and unjustified.
10. I am of the considered opinion that the aforesaid observations of the Supreme Court do not advance the case of the petitioner in any manner. In fact .the Supreme Court has categorically held that promotion can be denied, on the basis of the penalty of censure having been imposed on an employee. It has also been categorically held that no employee has a right to be promoted. He only has a right to be considered.
11. In the case of Ramesh Chancier (supra), Dr. A.S. Anand, J. observed as follows:-
"...... In my opinion no useful purpose will be served to pursue the line of argument suggested by the learned Advocate General as, in the absence of any law made by the Parliament, an order contravening Article 16 of the Constitution of India would be vitiated even in the case of a member of the armed forces where there has been arbitrary discrimination in the matter of equality of opportunity in the matter of promotion. The learned Advocate General has not been able to site any Rule or provision of the Army Act which may show that any law has been made by the Parliament under Article 33 of the Constitution of India restricting the enjoyment of rights available under Article 16 of the Constitution of India to the petitioner and in that view of the matter, I am of the opinion, that a member of the armed forces is entitled to maintain a writ petition under Articles 226 of the Constitution of India questioning the validity of the order whereby there has been violation of any of his fundamental rights guaranteed under Part III of the Constitution."
12. I am in respectful agreement with the aforesaid observations of learned Single Judge of the Jammu and Kashmir High Court. I, therefore, hold that the present petition under Articles 226/227 of the Constitution claiming that there has an infraction of Articles 14 and 16 of the Constitution of India, is maintainable.
13. In the case of Major J.S. Kang (supra), D.V. Sehgal, J. learned Single Judge of this Court has held as follows:-
"17. Now coming to the second point raised on behalf of the petitioner, it is not disputed by the learned counsel for the respondents that there is no provision in the Act and the Rules, under which fresh show-cause notice Annexure P-5 could be issued to the petitioner or that he could be communicated "severe displeasure" (to be recorded) vide Annexure P6. The learned counsel, however, took me through a confidential circular dated 18.4.1979 issued by the Adjutant General's Branch, Army Headquarters on the subject of 'award of censures to officers and junior quarters commissioned officers.' It lays down the procedure and the policy regarding the award of censure in the Army. This circular makes it clear that the award of censure to an officer or a junior commissioned officer is an administrative action, in accordance with the custom of the service, not governed by any rules or regulations. It takes the form of conveying the "severe displeasure" (either recordable or otherwise), or 'displeasure' of the officer awarding the censure. The authorities which can award censure to the officers of different ranks have then been enumerated. It also provides for issuance of a show cause notice and prescribes duration of the recordable censures in the form of 'displeasure' etc. To defend the order Annexure P.6, he placed reliance on Chief of the Army Staff and Ors. v. Major Dharam Pal Kukrety, A.I.R. 1985 S.C 703. That was a case where the Court Martial in the first instance returned the finding of 'Not guilty' on the charges against Major Kukrety. The confirming authority was not satisfied with the same. Therefore, a revision was ordered. The Court Martial once again returned the finding of 'Not Guilty'. The competent authority then proceeded to terminate the services of Major Dharam Pal Kukrety by taking resort to Rule 14 of the Rules. The Supreme Court observed that under Section 160, the confirming authority has the power to direct a revision of the finding of a Court Martial only once. There is no power in the confirming authority, if it does not agree with the finding on revision, to direct a second revision on such finding. In the absence of any such confirmation of the original finding or the finding on revision by reason of Section 153, the finding is not valid. Therefore, it was held that in the case of Major Dharam Pal Kukrety the finding of the General Court Martial on revision not having been confirmed was not valid. A question was, therefore, posed 'Can he, therefore be tried again by another Court Martial on the same charges?' The answer was in the negative keeping in view the provisions of Section 152 of the Act. It was further observed that there was no express provision in the Army Act which empowers the holding of a fresh Court Martial when the finding of a Court Martial on revision is not confirmed. Then, dealing with the order of termination under Rule 14 of the Rules, it was held that it was open to the Central Government or the Chief of the Army Staff to pass the same when the finding of a Court Martial even on revision is perverse or is against the weight of evidence on the record. It was further held that though it is open to the Central Government or the Chief of the Army Staff to have recourse to Rule 14 in the first instance without directing trial by a Court Martial of the concerned officer, there is no provision in the Act or in Rule 14 or any of the other rules which prohibits the Central Government or the Chief of the Army Staff from resorting in such a case to Rule 14. I find that the ratio of Major Dharam Pal Kukrety's case is not applicable to the case in hand. In that case, the authorities proceeded under Rule 14. In the present case fresh proceedings have been taken on the basis of administrative instructions. There can be no manner of doubt that such administrative instructions which contemplate an administrative action can neither supplement nor substitute the provisions of the Act or the Rules. The tenor of the reply filed by the respondents makes it abundantly clear that communication of "severe displeasure" (to be recorded) to the petitioner vide Annexure P6 was not administrative action pure and simple. In fact, it is aimed at holding that the petitioner does not stand absolved of the charges and that in view of the communication of "severe displeasure" (to be recorded) vide Annexure P6 the petitioner cannot claim restoration of acting rank of Lt. Colonel from the date he was reduced from this rank to that of Major. The so- called administrative action, therefore, visits civil consequences on the petitioner and in the garb of the same he cannot be awarded a punishment which was not even intended by the sentence awarded by the Court Martial and which was not confirmed by respondent No. 2.1 am, therefore, clear in my mind that the order Annexure P6 cannot be sustained in the facts and circumstances of this case as there is no sanction of law behind it.
xxx xxx xxx xxx xxx xxx xxx xxx
19. It is necessary to keep in mind that the confirming authority did not confirm the finding of 'Guilty' and sentence on the 4th charge against the petitioner. It also did not choose to modify or mitigate the sentence awarded by the Court Martial. As such, there could be no subsequent trial, forfeiture, reprimand or censure except on revision by the confirming authority under Section 160 of the Act. The reasons recorded to the contrary in Note 3(a) and l(a) ibid do not correctly interpret the law. I also find support for this conclusion from G.B. Singh v. Union of India and Ors., 1973 Crl. L.J. 485. The question which is posed is "could severe displeasure" (to be recorded) be conveyed to the petitioner under the garb of administrative instructions when the competent authority did not confirm even direct modification or by mitigation of the sentence the finding of 'Guilty' given by the Court Martial? The answer is a categoric 'No'. I am, therefore, of the firm view that the administrative proceedings initiated vide show cause notice Annexure P5 culminating in the order Annexure P6 amount to double jeopardy and are violative of Article 20(2) of the Constitution."
14. With utmost humility, I am unable to agree with the observations of the learned Single Judge, reproduced above. These observations run contrary to the law laid down by the Supreme Court in K. V. Jankiraman 's case (supra). It has been categorically held by the Supreme Court that penalties imposed on an employee can be taken into consideration for denying promotion. A denial of promotion in such circumstances is not a further penalty, but a necessary consequence of his conduct. In such circumstances, there would be no infringement of Article 20(2) of the Constitution of India.
15. It is also settled proposition of law that the administrative instructions can be issued to supplement the statutory rules, but cannot be permitted to supplant the rules. The aforesaid proposition of law has been laid down by the Supreme Court in the case of Sant Ram Sharma v. State of Rajasthan and Anr. 1967 S.L.R. 906. The Supreme Court has categorically held as follows:-
"6..... It is true that government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
16. Again in the case of State of Madhya Pradesh and Anr. v. M/s G.S. Dall & Flour Mills, J.T. 1990(4) S.C. 430, the Supreme Court observed as follows:-
"19. Execution instructions can supplement a statute or cover areas to which the statute does not extend. But they cannot ran contrary to statutory provisions or whittle down their effect...
17. In view of the above ratio of law laid down by the Supreme Court, it would not be possible to hold that no administrative action could have been taken against the petitioner on his exoneration by the General Court Martial.
18. It may, however, be noticed that the judgment rendered by the learned Singh Judge in Major J.S. Kang's case (supra), was approved by the Division Bench in L.P.A. No. 396 of 1987 decided on 14.3.1989,The same judgment' was reiterated by another Single Bench of this Court in the case of I.S. Sabharwal v. Chief of Army Staff and Ors., 1989(6) S.L.R. 236. A Division Bench of Rajasthan High Court in the case of Lt. Colonel M.S. Uppal v. Union of India DB Writ Petition No. 1433 of 1986, decided on March 17, 1989 has taken the same view. In C.W.P. No. 14230 of 1992 (Brig. H.S. Nanda v. Union of India and Ors., V.K. Bali, J. also followed the judgment rendered in the case of Major J.S. Kang (supra). However, a Division Bench of this Court in L.P.A. No. 884 (Union of India and Anr. v. Chief of Army Staff and Anr.), set aside the judgments of the learned Single Judge. It may be noticed at this stage that petition for Special Leave to Appeal (Civil) No. 18961 of 95 filed against the aforesaid judgment was dismissed by the Supreme Court on 16.8.1996. In support of this conclusion, the Division Bench had relied on the ratio of law laid down by the Supreme Court in the case Union of India and Ors. v. Brig J.S. Sivia M.L.J. 1996 S.C. 3. In paragraphs 8 to 10, the Supreme Court observed as follows:-
"8. It is obvious from various documents mentioned above that the award of censure is being regulated by "Customs of the service". The Army Order dated January 24, 1942 takes us to August 26, 1927 and as such there is reasonable basis to assume that the award of censure is being governed by the "Customs of the Service" right from the inception of the Indian Army. That being the position the award of censure is the binding rule of the army service. Section 3(v) of the Act and Regulations 9 of the Regulations recognise the existence of "customs of the service". The definition of "Commanding Officer" clearly says that in the discharge of his duties as a Commanding Officer, he has to abide by the "customs of the service". Similarly Regulation 9 which lays down the duties of the Commanding Officer, specially says that the Commanding Officer has to discharge his functions keeping in view the regulations and the customs of the service. From the scheme of the Act, Rules, Regulations and the various Army orders issued from time to time, it is clear beyond doubt that the award of censure is part of the custom of the Army and has the binding force.
9. Even otherwise, keeping in view the status, responsibility and functions of the Chief of the Army Staff, it would be permissible for him under law to issue Army Orders from time to time for the maintenance of discipline and keeping control of the Army which is under his command. A bare reading of Rule 15 shows that it is the satisfaction of the Chief of the Army Staff on the basis of which an Officer of the Army Staff on the basis of which an Officer can be declared unfit to be retained in the service due to inefficiency. The Chief of the Army Staff can lay down criteria by way of Army Orders to guide his discretion under Rule 15 of the Rules.
10. We are, therefore, of the view that the High Court fell into patent error in reaching the conclusion that the Army Authorities have no jurisdiction to award censure either in the form of displeasure or severe displeasure. We, therefore, set aside the impugned judgment of the High Court.
19. Keeping in view the law laid down by the Supreme Court, I am in all humility unable to agree with the observations of the learned Single Judge D.V. Sehgal, J. and V.K. Bali, J. in the two cases mentioned above. There is no merit in the submission of Mr. Randhawa that there was no legal sanction for the punishment of recordable "severe displeasure".
20. I am also of the considered opinion that the judgment of the Division Bench in the case of G.R. Vinayak Lt. Col. (supra) does not support the case put forward by the petitioner. In that case, the Division Bench of this Court has held that in view of the judgment of the Supreme Court in the case of Brig. J.S. Sivia (supra), the Army authorities have the jurisdiction to award censure either in the form of displeasure or severe displeasure. It has also been held that the principles laid down in K. V. Jankiraman 's case (supra) would be applicable. Applying the principles of K. V. Jankiraman's case (supra), the Division Bench has held that in the peculiar circumstances of that case, the respondents have failed to give any justification for withholding the. promotion of the petitioner therein. In that case, by letter dated 29.10.1996, the petitioner had been informed that he had been approved for promotion as a fresh case of 1965 Batch. The petitioner had stated categorically that his juniors were promoted to the rank of Colonel w.e.f. July, 1987 onwards. In reply to these contentions, the averments made by the petitioner were not denied by the respondents. It was also admitted that an Officer junior to the petitioner was promoted as Colonel in July, 1987. The Division Bench also noticed that the petitioner had been placed in Low Medical Category for 12 weeks w.e.f. 20.3.1987. He was upgraded to medical Category SHAPE-I by order dated 6.8.1987. A Court of Inquiry was held on 12.11.1986 to investigate the deficiencies of various steel items and salvage stores held on charge of 1332 Base Depot (GREF) had blamed the petitioner. By letter dated 17.C.I987, it was intimated that disciplinary action was contemplated against the petitioner. On 7.8.1987, promotion of the petitioner was withheld till further communication. Subsequently, since the petitioner was awarded severe displeasure as intimated by letter dated 5.7.1988, he could only be promoted if cleared by No. 3 Selection Board by Special Review Board as a 'Drop in Performance' case. But the Division Bench then observed that nothing has been shown to the Court from record as to when the petitioner was given show cause notice for the censure to be awarded to him, in connection with the allegations which withheld his promotion in July, 1987. According to the Division Bench, this question goes to the root of the case. It was not shown to the Court that there was any Provisional Ban (PB) imposed against the promotion of the petitioner. There was no specific averment regarding the PB being imposed. The Division Bench also observed that the petitioner was placed in Low Medical Category for 12 weeks w.e.f. 20.3.1987. This period would end on or about 20.6.1987. No reason was given by the respondents as to why the petitioner was not then upgraded till the order dated 6.8.1967. On the next date of 6.8.1987, the DV Dte's letter was written withholding the promotion of the petitioner. In such circumstances, it was held that the gap after 12 weeks of 20.3.1987 till 7.8.1987 is not a small period in which the petitioner had a' right to gain his promotion which was withheld for a particular period only because of Low Medical Category. It was also held that this period of not granting promotion is not explained by the respondents. Therefore, the petitioner was held entitled to the benefit of promotion. The Division Bench further observed that the respondents did not show as to when the show cause notice was issued to the petitioner for censure which prevented him from being promoted in July, 1987.
21. To crystalies the undisputed factual position in this case it is necessary to note down the major dates and events during the course of the service career of the petitioner.
Dates Events
27.09.1963 The petitioner was commissioned as Second Lieutenant.
30.08.1983 He was promoted as Lieutenant.
13.2.1985 He made an application for premature retirement.
Sept. 1985 His case for promotion to the rank of Colonel was considered.
10.10.1985 Request for premature retirement was sanctioned.
26.10.1985 The petitioner released from service.
27.10.1985 The petitioner went on leave pending retirement.
19.11.1985 Sanction of the premature retirement kept in abeyance.
The petitioner recalled to face disciplinary proceedings.
18.03.1986 The petitioner was informed that he has been approved for
promotion on the rank of Colonel.
29.08.1986 D.V.Ban imposed against the petitioner.
11.03.1988 Premature retirement order cancelled.
29.4.1988 Competent authority permitted the petitioner to cross
efficiency bar.
27.05.1988 The petitioner was informed that he has been permitted
to cross efficiency bar and granted increment beyond
Rs. 4200/- in the integrated pay scale.
11.07.1988 to The petitioner was tried by General Court
24.08.1988 Martial on the basis of letter dated 18.9.1985.
The petitioner was tried on three charges, found not
guilty of all the charges.
18.11.1988 The Review Court Martial affirmed thefindings of the
earlier Court Martial.
05.04.1989 The petitioner again applied for premature retirement.
29.07.1989 Adjutant General's Branch was informed by CSO,
DAAG/DV-2 by letter dated 29.7.1989 that the
disciplinary case against the petitioner had been closed.
DV Ban is being lifted. However, administrative action
for termination of service under AA Section 19 read
with AR 14 being contemplated.
14.02.1990 Show cause notice issued to the petitioner.
24.04.1990 Reply to the show cause notice given.
08.05.1990 Notice of motion was issued for 8.5.90 in CWP No. 4778
of 1990. Passing of final order was stayed.
01.08.1990 Writ petition was admitted.
04.03.1991 CDAS award severe displeasure.
09.04.1991 The petitioner applies for acceptance of the premature
retirement request already made.
18.04.1991 Writ petition withdrawn. CWP No. 11030 of 1988 also
withdrawn.
05.06.1991 D.V.Ban lifted.
21.06.1991 Premature retirement of the petitioner approved.
June, 1991 Petitioner relieved from duty.
05.07.1991 The petitioner forwarded to copies of Army HQ AG
Branch Letter dated 26/30.4.1991.
22. A perusal of the facts narrated above shows that the petitioner was anxious to leave the Army Service. He first applied for premature retirement on 13.2.1985. Unfortunately, he was recalled as the Army authorities wished to take disciplinary action against him. He duly reported back for duty. He was subjected to Court Martial pro- ceedings. As the petitioner had not committed any criminal offences, the Court Martial found him not guilty of the three charges levelled against him. This is not surprising as the charges levelled against the petitioner themselves were to administrative lapses. The first charge was that he had delayed the handing/taking over charge from 16.10.1985 till 26.10.1985. During the period of 11 days, the petitioner had concluded 7 contracts valued at Rs. 44 lacs (approximately) and issued supply orders worth over Rs. 7 lacs. For this, the petitioner was tried under Army Act Section 63 for "an act prejudicial to good order and military discipline". In the second charge, it was stated that " he at Chandigarh, on 1.10.1985, while performing the duties of CWE Chandigarh, improperly accepted the tender......at a higher rate, that is to say 15-16% above standard Schedules of Rates, 1980...." The third charge again only stated that "on 25.10.1985, while performing the duties of CWE Chandigarh,improperly accepted the tender.... at a higher rate...". Keeping in view the nature of the charges, it is not surprising that General Court Martial found him not guilty of having committed any criminal offence. Much prior to this, in September. 1985 petitioner had been considered and approved for promotion on the rank of Colonel, His name was placed in the approved list. But before the actual promotion could be released, D.A. Ban was placed against his name on 29.8.1986. The petitioner was also issued a show cause notice on 14.2.1990 under Section 19 of the Army Act read with Rule 14 of the Army Act. The petitioner submitted the reply to the show cause notice on 24.4.1990, He also filed C.W.P. No. 4778 of 1990. On 8.5.1990, notice of motion was issued by a Division Bench of this Court. A direction was also issued that passing of final order is stayed. Although passing of the final order had been stayed on the show cause notice, but the competent authority had proceeded to record his severe displeasure against the petitioner on 4.3.1991. This, according to the petitioner, was not known to him. The writ petition was withdrawn on 18.4.1991. In such circumstances, it has to be seen as to whether the petitioner could be deemed to have been promoted with effect from the dates person junior to him were promoted. It has to be noticed that the petitioner has not impleaded any person junior to him who has been promoted.
23. I do not find any substance in the submission of Mr. Randhawa that the petitioner could not have been deprived of promotion on the basis of law laid down by the Supreme Court in the case of K, V. Jankiraman etc. (supra). In the present case, the petitioner had been facing Court Martial proceedings on the basis of the letter dated 18.9.1985. He was found not guilty as he had not committed any criminal offence. Merely because the petitioner has been found not guilty by the Court Martial of having committed any criminal offence, would not preclude the respondents from taking administrative action on the same allegations. The respondents had, therefore, decided to initiate proceedings against the petitioner under Section 19 of the Army Act, read with Rule 14 of the Army Act, much before, the DV Ban had been imposed against the petitioner. Therefore, even if the petitioner had been put in the select list for promotion, the respondents were within their right not to release the order of promotion. It is a settled proposition of law that mere selection for promotion does not entitle any employee to claim promotion as a matter of right Therefore, the respondents had the right to defer the actual promotion. In fact even in the order of promotion of the petitioner, dated 18.3.1986 it has been observed as follows:-
"PROMOTION TO HIGHER SELECTIVE RANKS A/C OL I am directed to inform you that you have been placed in an acceptable grade for promotion to the rank of A/C OL by No. 3 Selection Board as Fresh-1963 Batch.
2. You will be promoted according to the approved sequence as and when a suitable vacancy is available provided your record of service remains satisfactory and you are in an acceptable medical classification at the time you become due for promotion."
24. From the above it is apparent that the petitioner had only been selected and approved for promotion. He was to be actually promoted only on fulfillment of the conditions mentioned in the aforesaid order. It cannot be disputed that DV Ban was imposed against the case of the petitioner on 29.8.1986.It was lifted on 5.6.1991. Severe displeasure had been recorded against the name of the petitioner on 4.3.1991. Until the DV Ban was lifted, the case of the petitioner for review could not have been considered. But before that on 5.4.1989, the petitioner had again applied for premature retirement. He was only not permitted to prematurely retire as show cause notice had been issued under Section 19 of the Army Act read with Rule 14 of the Army Act on 14.2.1990. The petitioner had challenged the show cause notice by filing C.W.P. No. 4778 of 1990. In the aforesaid writ petition, passing of the final order had been stayed. Therefore, the respondents did not communicate the order dated 4.3.1991 to the petitioner. On 9.4.1991,the petitioner applied for acceptance of the premature retirement request already made. On 18.4.1991, the writ petition was withdrawn. It is only then that the DV Ban was lifted on 5.6.1991. The request for premature retirement of the petitioner was also accepted on 21.6.1991.
25. I may 'also be observed that the petitioner has failed to. give any particulars about any junior Officer who has been promoted during the period when the name of the petitioner was placed in the select list and 29.8.1986, when the DV Ban was imposed against his name. Nothing has been pleaded by the petitioner disclosing as to when any Officer junior to the petitioner had been promoted. In order to succeed on the plea of violation of Article 16 of the Constitution of India, it was necessary for the petitioner to positively allege the necessary facts with regard to his super-session by his junior. The writ petition cannot be maintained on the vague allegations, or on the bare allegation that the petitioner was senior to an Officer who had been promoted at the time when the petitioner ought to have been promoted. Discrimination has to be proved as a question of fact. Therefore, it is necessary to make the necessary allegations, supported by the relevant materials. It is well settled that burden of proof in cases of alleged discrimination is on the person who alleges it. Charge of discrimination cannot be sustained unless adequate material is placed on record. In the present case, the petitioner has placed no material on record that he has been treated in a discriminatory manner. In such circum- stances, it would not be possible to hold that there has been any breach of either Article 14 or 16 of the Constitution of India.
26. In view of the above, I find no merit in both the writ petitions and the same are hereby dismissed. No costs.