M.C. Sharma vs Union Of India
1997 Latest Caselaw 229 Del

JUDGMENT

Dalveer Bhandari, J.

(1) Major M.C. Sharma has approached this court with the prayer that the adverse remarks given by respondent no.4 to the petitioner be quashed. He has also prayed that the respondents be directed to consider and promote the petitioner to the rank of Lt. Colonel from the due date. He has also prayed that the orders dated 24.4.96 trans ferrying the petitioner from Delhi to Baramula be also quashed as the same is punitive and actuated with ulterior motives and mala fide considerations. The petitioner has also prayed that he be given consequential and other monetary benefits arising out of his promotion with interest at the rate of 18 per cent per arnnun.

(2) Brief facts which are necessary to dispose of this petition are recapitulated as under:- The petitioner was commissioned in the Indian Army in June, 1976 and is presently holding the rank of a Major. It is alleged that the petitioner was approved for promotion to the rank of Lt. Colonel vide letter dated 30th March, 1994. However, the petitioner could not be promoted to the rank of Lt. Colonel till April, 1995 on account of the fact that there was no vacancy available.

(3) It is submitted by the petitioner that When the turn for promotion to the rank of Lt. Colone. came, the petitioner was again not promoted by the respondents. He was informed by the Military Secretary Branch (respondent no.3) that he could not be promoted because there has been a drop in performance in his case. It was also stated in the letter by the respondents that the petitioner will he considered as a fresh case along with the Officers of 1977 batch, who were junior to him because he was of 1976 batch.

(4) The petitioner wrote to the Military Secretary for disclosure of the reason/basis on which the respondent had come to the conclusion that there has been a 'drop in his performance'. It is submitted by the petitioner that at a later date, the petitioner was forwarded remarks of respondent no.4, Superior Reviewing Officer for the period June 1994 to December 1994, wherein respondent (S.P. Saini) no.5 had stated that although the petitioner was a 'professionally sound Officer but he was lacking the ability to work in team and had a tendency to undermine the authority of his commanding Officer', etc.

(5) The petitioner made a statutory complaint against these adverse remarks which according to him were not communicated before 1.6.1995. The communication of adverse remarks made by any Reviewing Officer at the time of reviewing the ACR/ICR are a mandatory requirement as per the Special Army Order 3/S/89 must ensure communication of adverse remarks to the person before taking cognizance of the same. This was not ensured by M.S. Branch violating therein the orders on the subject. However, the statutory complaint was rejected. It is also alleged that the adverse remarks were made at the behest of respondent no.4 who was the Commanding Officer and the Initiating Officer of the ICR/ACR of the petitioner. It is submitted on behalf of the petitioner that the adverse remarks made by respondent no.4 pertained to the petitioner's working in his unit. It is the commanding Officer (respondent no.5) whose interaction with the petitioner had been on daily basis. He has not observed any of these weaknesses during the same period of Icr in question. Even the Brigade Commander who supervises the close functioning of the unit did not observe any of these weaknesses in respect of the petitioner. Respondent no.4 lacked objectivity and made the remarks on hearsay.

(6) It is alleged that respondent no.5 was holding malice against the petitioner, as the petitioner had pointed out some financial irregularities which were not taken kindly by respondent no.5. It is mentioned that respondents no.4 and 5 had written four letters within a span of one week pointing deficiencies in the professional weaknesses of the petitioner and subsequently these four letters were withdrawn. It is also mentioned that respondent no.4 had also reviewed the above average Acr of the petitioner in June, 1994, just six months prior to this. This Reviewing Officer while reviewing the Icr in question had not observed anything adverse.

(7) It is submitted that the petitioner could not have developed all the weaknesses as mentioned in the adverse remarks in six months. It was also contended that these adverse remarks were made to deprive the petitioner of his legitimate right of promotion.

(8) It was contended that this posting from Delhi to Baramula was arranged by respondent no.4 so that Icr could be initiated and during review he could make adverse remarks at the time of reviewing the same. At no stage, respondent no.4 gave any counselling or guidance to the petitioner in connection with the weaknesses observed by him throughout the period as per the Army Order. The adverse remarks were actuated out of mala fide, and arbitrary intention. It is also alleged that respondent no.5 is facing investigation on account of various irregularities in the functioning of the unit of which the irregularity pointed out by the petitioner is one.

(9) Another grievance of the petitioner is that on account of these adverse- remarks, he could not take up the rank of Lt. Colonel and therefore, on account of withdrawal of these remarks, the petitioner deserved to be promoted to the rank of Lt. Colonel from the due date. The petitioner has also made a grievance about his transfer to Baramula.

(10) This court issued a show cause notice on 13.5.1996 in the petitioner's writ petition and in pursuance of the show cause notice, a counter- affidavit has been filed. It is admitted in the counter-affidavit that the petitioner was approved for the rank of Lt. Colonel by the Selection Board and the same was intimated to the petitioner on 30.3.94. However, the petitioner was given adverse remarks prior to his physical promotion to the rank of Lt. Colonel. In other words, between empanelment for promotion and the actual promotion, there has been a 'drop in performance' of the Officer and his promotion was deferred. The policy with regard to such cases is as under:- "ANOfficer, who in the opinion of the Military Secretary during the intervening period between the approval for promotion and physical promotion docs not maintain a satisfactory level of performance, will be treated as case of 'Drop in performance'. Such an official will be given 'Special Review".

(11) It is mentioned in the counter-affidavit that once the drop in performance is established, then the Officer is given special review. In accordance with the policy, the case of the petitioner was placed before the Selection Board. However, in special review the case of the petitioner was rejected for promotion to the rank of Lt. Colonel. Thus, the petitioner could not be promoted to the rank of Lt. Colonel due to drop in performance and was rejected by the Selection Board. Thereafter, the petitioner filed a statutory complaint to the Central Government for being given adverse remarks. The said complaint was rejected after due consideration.

(12) It is specifically denied in the counter- affidavit that the remarks were given arbitrarily or that the petitioner was discriminated against or denied promotion arbitrarily.

(13) It is mentioned in the counter-affidavit that the relevant extracts were intimated to the petitioner vide letter dated 19.5.95 but the petitioner had known about them on 15.12.1994. It is also mentioned that the adverse remarks of Senior Reviewing Officer were communicated to the petitioner. It is specifically mentioned in the counter-affidavit that respondent no.4 had advised the petitioner to show more concern for service matters which is admitted by the petitioner in para 15.

(14) The respondents were also kept informed by his immediate subordinate Brig. S.N. Vishnu about the developments in the unit and he had his own sources of information which left no doubt in his mind that the petitioner could not work as a member of the team and was expecting undue privileges. The allegations of mala fide have been categorically denied. In the counter- affidavit, it is mentioned that the respondents had communicated the adverse remarks to the petitioner. The petitioner had agitated these remarks in his statutory complaint.

(15) Mr. Shali, learned counsel for the petitioner submitted that the adverse remarks which had been given to the petitioner by respondent no.4 arc in gross violation of statutory and other rules, regulations and orders which have been framed by the respondents.

(16) Mr. Shali also submitted that the respondents never communicated the adverse remarks to the petitioner in order to explain his position and there is violation of the principles of natural justice. He also submitted that the adverse remarks which have been given arc without any basis and do not fit in the past and future conduct/ reports earned by the petitioner.

(17) The petitioner's counsel submitted that the petitioner has been denied the rank of Lt. Colonel on extraneous considerations.

(18) Mr. Shali also submitted that the transfer order which has been passed in this case is also actuated by extraneous considerations and needs to be quashed.

(19) Mr. Mittal, learned counsel appearing for the Union of India submitted that between the empanclment for promotion and actual promotion, there has been drop in the performance of the petitioner and for that reason, the petitioner was not promoted to the rank of Lt. Colonel.

(20) Mr. Mittal specifically denied all the allegations of mala fides and arbitrariness. He submitted that the petitioner's case has been considered according to rules and there has not been the slightest deviation or departure from rules in the case of the petitioner.

(21) Mr. Mittal also submitted that the petitioner had been counseled about this weaknesses before command and he submitted that the petitioner has signed the ibid assessment of 10 on 15.12.94 which contained adverse remarks. Therefore, there is no substance in the stand of the petitioner that he was not counseled about his weaknesses or was not communicated any adverse remarks before 1.6.1995.

(22) Mr. Mittal also submitted that the petitioner was fully aware of the adverse remarks contained in the assessment of the 10 in December, 1994. Mr. Mittal also submitted that after endorsement by the Reviewing Officer and the Senior Reviewing Officer, the Icr was received at Army Headquarters, Military Branch in February, 1995. The analysis of the Icr revealed that the assessment of the 10 together with the assessment of Sro constituted 'drop in performance'. He submitted that the assessment of Sro needed to be communicated to the petitioner. Accordingly, after approval of the competent authority, the Senior Reviewing Officer was directed to communicate the adverse assessment to the petitioner and on 30.3.95, the concerned group dealing with the issuance of promotion orders (MS- 17) was informed about the 'drop in performance' who in turn informed the petitioner.

(23) Mr. Mittal submitted that the petitioner was communicated the adverse remarks of Senior Reviewing Officer and his signatures as acknowledgement of the same bear the date 6.6.95.

(24) He submitted that only in August, 1995, the petitioner was put through special review "drop in performance" by another a Board comprising of different set of Officers and was found 'unfit'. Subsequent to that, the petitioner was first reviewed only in July, 1996 and finally in November, 1996 and was not found fit, and ultimately, the petitioner was superseded.

(25) Mr. Mittal submitted that in order to maintain objectivity, the identity of the Officer under consideration is not disclosed to this Board members who arrived at their decision on the basis of over all profile of each Officer.

(26) Mr. Miltal also submitted that even the statutory complaint filed by the petitioner was also considered in proper perspective and thereafter it was rejected. He submitted that the petitioner's case has been thoroughly considered at various levels and the decision has been taken after serious considerations and deliberations. There has been no violation of any rule or departure from any established method of evaluating the performance of the petitioner in the instant case.

(27) I have heard the learned counsel for the parties at length and have perused the original record concerning the petitioner. It is clear from the original record that the petitioner was counseled about his weaknesses before the command and assessment of 10 on 15.12.94 also bears his signatures. Therefore, there is no merit in the submission of the petitioner that he was not informed about his weaknesses or was not counseled before hand.

(28) I do not find any merit in the allegations of mala fides levelled by the petitioners against respondents 4 and 5 and they are accordingly rejected.

(29) The petitioner has been denied promotion because between the empanelment of promotion and actual promotion, there is a drop in performance and the case of the petitioner has been considered and reconsidered as first review and final review in July, 96 and November, 96 respectively and he was not found fit and consequently he was denied promotion.

(30) From time to time, the petitioner's performance has been evaluated by a number of Officers and there is no basis to presume that all those Senior Officers were prejudiced and acted in a partial manner to spoil the career of the petitioner. Even the statutory complaint of the petitioner has also been considered at the highest level and was rejected. .PA

(31) On consideration of the rival contentions of the parties and perusal of permanent dossier of the petitioner, in my opinion, no interference is called for.

(32) The writ petition, being devoid of any merit is accordingly rejected. But in the facts and circumstances of this case, I direct the parties to bear their own costs.