Rajasthan High Court - Jaipur
Wg.Cdr. D.K. Saxena And Ors. vs Union Of India (Uoi) And Ors. on 11 November, 2002
Equivalent citations: 2003WLC(RAJ)UC565, 2003(1)WLN179
Author: Prakash Tatia
Bench: Prakash Tatia
JUDGMENT Prakash Tatia, J.
1. Heard learned Counsel for the parties.
2. At the request of both the learned Counsel both the petitions were heard together and facts of the case in S.B. Civil Writ Pet. No. 3076/1998 will be sufficient to refer in judgment.
3. According to the learned Counsel for the petitioner the petitioner was commissioned as Medical Officer in Army Medical Corps (AMC) on 05.5.1971. The petitioner was serving to Airforce since then as Medical Officer. The petitioner was allotted permanent service Number as MR 02905 F by Army Medical Corps which is referred as AMC. The promotion of Medical Officer though mentioned in the writ petition is up to the rank of Major (Equivalent to Wing Commander in Air Force and Commander in Navy) are time scale promotion but the learned counsel for the petitioner submitted that this promotion is up to the rank of Lt. Colonel in Army, Wing Commandar in Air Force and Commander in Navy and not as mentioned above. It is also submitted that promotion of medical officers is by common promotion board irrespective of service of Medical Officer in any of three wings i.e. Army, Navy or Airforce and all the Medical Officers are considered for promotion together irrespective of their service in any wing, by Common Board. Promotion is granted on the basis of confidential reports of the officers. Since 1982 there was a procedure prevailing in the Army by which the officers are shown their ACRs and it continued for a few years but it was found that some reporting officers have perceived notion that if a statutory complaint is initiated against a report rendered by them it is not taken well by Senior Officers in chain of reporting and, therefore, it was ordered that assessment of I.O./F.T.O. will not be communicated to the officers reported upon. The learned Counsel for the petitioner referred Annexure/4 dated 20.02.1992 in support of above plea. According to the learned Counsel for the petitioner had the officers who were serving in the Army and were eligible for promotion in next higher post alongwith petitioner and officers in the Airforce, been shown their ACRs at relevant time they could have improved their ACRs. It is also submitted that reporting officer in Army always gave better report in ACR's of their juniors to avoid any complaint against them to higher authorities by his anoyed junior officer who comes to know his poor assessment by reporting officer. This difficulty was taken note of and therefore, it was decided vide order dated 20.02.1992 Annexure/4 not to show ACRs to the Army Officers. It is also submitted that even after officially stopping procedure of showing the ACRs to the officers, the I.O.s and F.T.Os continued with the procedure of showing the ACRs to the officers and even they obtained the signatures of the officers for which learned Counsel for the petitioner referred Annexure/5. The thrust of the arguments of learned Counsel for the petitioner is that the petitioner and other officers who are similarly situated and eligible for promotion to the next higher post were treated differently and the advantage of looking into the ACRs which was available to the officers serving in the Army was not available to the petitioner and the officers serving in the Airforce which resulted into two fold effect one is that the officers of the Army were benefited and the officers of the Airforce were put to the disadvantageous position when their case for promotion was considered.
4. learned Counsel for the petitioner also referred the minutes of the Commanders' Conference Annexure/10 wherein it was observed that new policy of 1996 has resulted in certain adverse effect on the Airforce Medical Officers and to demonstrate that, facts were recorded and it was observed that out of total 11 Gp Captains exposed to Promotion Board on 12.3.1996 for promotion, only one officer had made the grade whereas out of 51 colonels from the Army exposed to the Selection Board 17 have been selected and out of three naval officers one was successful. It was also observed that since numerical grading is only criteria for promotion. It is suggested that any medical or dental officer who is considered fit for promotion to the next rank whould not be assessed lower than 8 marks. These all documents placed on record by the petitioner are to substantiate the ground of discrimination faced by the doctors serving in the Airforce against the doctors serving in the Army.
5. The facts relating to the petitioner are also relevant. The petitioner who was commissioned on 05.5.1971 completed his requisite service of 14 years on 05.5.1985. He was eligible for consideration for the post of Lt. Colonel and his case was considered in the year 1996. The petitioner was not found suitable for grant of promotion and his candidature was rejected by order dated 11.10.1996 Annexure/15. The petitioner submitted a representation on 28.2.1997, copy of which is Annexure 16. Again the petitioner submitted representation on 23.5.1977 but it appears that no decision was taken over his representations. Petitioner's case for promotion was further considered in the year 1997 and was rejected on 06.6.1997, copy of the order dated 06.6.1997 is Annexure/18. It is also submitted by the learned counsel for the petitioner that once more petitioner's candidature for promotion was considered in the year 1998 but at that time also petitioner's candidature was rejected and he was not accorded promotion. According to the learned Counsel for the petitioner, petitioner was not aware of the procedure which was prevailing in the Army for the Officers (doctors) by which the Army Officers were shown ACRs and because of this reasons ACRs of the officers serving in Army stand improved and it is the cause of rejection of the candidature of the petitioner.
6. The petitioner's representations dated 23.5.1997 was rejected which was communicated to the petitioner by the letter dated 20.11.1997 Annexure/19. Petitioner came to know about these orders by which ACRs were shown to the officers serving in Army and also came to know about the various documents in which the anomaly in the procedure was accepted by even Airforce Authorities, therefore, petitioner preferred the present writ petition challenging the order dated 20.11.1997 by which petitioner's representation dated 23.5.1997 was rejected. It is relevant to mention here that the representation 23.5.1997 was submitted by the petitioner after rejection of his case for promotion to the next higher post. It is also relevant to mention here that though the petitioner in his writ petition stated that the petitioner is aggrieved against rejection of the representation by order Annexure/19 but he has not prayed for quashing of Annexure/19 in the prayer of the writ petition.
7. After careful consideration of the facts it is clear that a decision was taken to show the ACRs to the officers serving in the Army Wing of the force and not to show the ACRs to the officers serving in the Airforce as back as in the year 1982 which continued for a period of few years is an admitted fact. It is also stated that the petitioner's case was considered as per procedure which was prevailing on the date when the meeting of the Board took place for consideration of the promotions to the officers and promotions were granted on the basis of the ACR's of the officers and that is not wrong. The petitioner by this writ petition wants to challenge the procedure by which ACR's of officers serving in Army were prepared in the year from 1982 that too after rejection of his candidature for promotional post thrice in the years 1996, 1997 and 1998 by taking a plea that petitioner was not aware of the orders which were passed for Army Officers and even order passed by his own wing. Such a explanation of delay deserves to be rejected summarily. If the petitioner was not vigilant for such a long period he deserves no sympathy and not entitled for any relief under Article 226 of the Constitution of India. Not only this but writ petition further deserves to be dismissed because after lapse of so many years neither the petitioner's performance of duties can be re-assessed nor the officers who have been selected can be punished for no fault of theirs.
8. In addition to above the petitioner is seeking relief on the basis of the certain assumptions like if the petitioner would have come to know about the comments mentioned in his ACR he would have improved and on the basis of assumption that if ACR would not have been shown to the officers serving in the Army, they could not have better ACRs. Though there are certain documents placed on record by the petitioner in which doubts have been raised by the Airforce Officers and a note was taken in their minutes that because of showing ACRs to the concerned officers they are getting better ACRs but these all are the opinion of the officers serving in the Airforce. The apprehensions which in the mind of the petitioner as well as in the minds of the Officers of the Airforce, it was since 1982 then it should have been brought to the notice of the concerned authority at appropriate time but even the Airforce Officers by order dated 29.11.1997 Annexure/9 who were having all the documents with them which petitioner wants to rely, considered the grievance of the petitioner and rejected the representation of the petitioner, therefore, in the year 1997 itself, the Airforce Officers have taken a different view by rejecting the contention of the petitioner and not found even for referring matter to the highest authority or to the Govt. Therefore, the earlier opinion which might have prevailed on the day when the decisions were taken might have been relevant but lost the significance now.
9. It is submitted by the learned Counsel for the petitioner that the petitioner's grievance aggravated when the policy decision was taken to consider all the previous ACRs instead of ACRs of last 5 years only. By this now the ACRs of all those years will also to be considered in which the Officers of the Army had opportunity to look into the ACR. The contention of the petitioner has no force because of the simple reason that unless and until it is held that procedure of showing ACR. to the officer necessarily resulted in improvement of ACR's and is bad in law and which was not in consonance with decisions. The officers who got their ACRs inaccordance with procedure prevailing for them cannot be challenged by the other person after taking chance of selection even if he can show that he was entitled for same treatment of having access to the ACR. It is also clear from the fact of this case that the petitioner was not vigilant enough to find out the reasons if they were worth consideration. The petitioner's submission that he was not aware about procedure of showing ACRs to the Officers of Army and petitioner only came to know about these orders after rejection of his candidature first in the year 1997, such a bad allegations cannot be accepted.
10. In view of the above reasons there is no force in the writ petitions and the same are hereby dismissed.