Lt. Col. Ramesh Singh Rathore vs Union Of India And Others
2001 Latest Caselaw 769 Del

ORDER

Dr. Mukundakam Sharma, J.

1. In this writ petition the petitioner has sought for setting aside of the order passed by the respondent No. 1 on 8.1.98 and also for quashing of the proceedings of the Selection Board rejecting he claim of the petitioner for his promotion to the post of Colonel.

2. The petitioner was appointed as a Commissioned Officer in the Indian Army on 21.12.1969 and he was promoted to the rank of acting Major. The petitioner got the rank of substantive Major on 21.12.1979 and was given the rank of Lieutenant Colonel on 29.5.87. The petitioner was considered for promotion to the rank of Colonel by the Selection Board held in January/May/July, 1990. The petitioner was, however, not selected and according to the petitioner the same was due to the adverse entry recorded for the year 1986-87 due to bias of one Col. J.S.Chopra.

3. Being aggrieved by the said non-selection, the petitioner moved a statutory complaint on 22.3.90 under Section 27 of the Army Act. The aforesaid statutory complaint of the petitioner was disposed of by the respondents by passing a non-speaking order dt.12.2.91. The said order was challenged by the petitioner before the Allahabad High Court. By an order dt.3.7.96 the Allahabad High Court disposed of the writ petition directing the first respondent to consider the statutory complaint dated 22.3.90 afresh and to pass a reasoned order. The said order of the Allahabad High Court was challenged before the Supreme Court by the respondents by filing a Special Leave Petition, which was dismissed by the Supreme Court on 13.11.97. In terms of the aforesaid direction of the Allahabad High Court the Allahabad High Court the respondent again considered and disposed of the statutory complaint. It is alleged that the fresh disposal of the appeal was also again by a non-speaking order dt.8.1.98 whereupon the present petition is filed in this court of seeking for the aforesaid reliefs.

4. It was contended on behalf of the petitioner that the aforesaid disposal of the complaint by the respondents was again by a non-speaking order in violation for the directions of the Allahabad High Court and, therefore, the said order of the respondents is required to be set aside and quashed. It was submitted that even in spite of pendency of the statutory complaint as against the decision of the Selection Board meeting held in January, 1990 and without disposing of the same, the respondents proceeded to consider the case of the petitioner for promotion to the post of Colonel in the first review and in the final review held in May, 1990 and July, 1990, which action was in violation of the selection system as notified by the respondents themselves on 6.5.87 (Annexure E-1). It was submitted that consideration of the case of the petitioner within a span of seven months during the year 1990, without ensuring that fresh material is available on record which could enable the said Selection Board to review in terms of the aforesaid guidelines for selection system, is in violation of the guidelines issued by the respondents on 6.5.87 with the heading "Selection System." It was further submitted by the counsel appearing for the petitioner that it was necessary for the Selection Board to give brief reasons for their assessment as to why the petitioner was no found suitable for promotion and in absence of the same, the entire proceeding before the Selection Board is required to be quashed. It was also submitted that the Selection Board also considered the Annual Confidential Report of the petitioner for 1986-87 where presumably he was given as adverse report in view of bias of Col. J.S. Chopra without communicating the same to the petitioner and the same had affected the chances of promotion to the petitioner to the post of Colonel.

5. Counsel appearing for the respondents, however, refuted the aforesaid submissions and contended that the order passed by the respondent No. 1 on the representation filed by the petitioner pursuant to the orders of the Allahabad High Court, contains reasons and the same is a speaking order and, therefore, the allegation contrary to the same is misplaced. It was also submitted that there was no adverse entry in the Annual Confidential Report of the petitioner of the year 1986-87, as alleged, but the petitioner was not selected for promotion to the rank of Colonel considering his overall profile and comparative merit by the three successive Boards held in January/May/July, 1990 and that the said consideration was on fresh materials, for the Selection Board in the Special Review case, first review and final review held respectively in the months of January/May/July, 1990 considered fresh materials in the nature of Annual Confidential Reports of the petitioner for the years 1987-88, June, 1988 to March, 1989 and June, 1989 to March, 1990 and, therefore, the contention of the counsel appearing for the petitioner is baseless. It was also submitted that in spite of pendency of a statutory complaint filed by the petitioner as against the assessment of the Selection Board in the month of January, 1990, it was permissible for the Selection Board to assess the petitioner for promotion in subsequent selections as the same is permissible under he extent rules and the guidelines issued for the purpose.

6. In the context of the aforesaid submissions of the counsel appearing for the parties, I have also looked into the pleadings of the parties as also to the records of the case placed before me.

7. The Allahabad High Court, before whom the writ petition was initially filed by the petitioner, disposed of the said writ petition on 3.7.96 whereby the Division Bench of the Allahabad High Court remitted to the Central Government for disposal of the statutory complaint of the petitioner dt. 22.3.90 for fresh disposal. In terms of the aforesaid direction of the Allahabad High Court, the respondent, namely, the Government of India, considered the statutory compliant of the petitioner filed on 22.3.90 afresh. It was indicated therein that the Annual Confidential Report of the petitioner for the year 1986-87 was fully corroborative without any element of bias and is in consonance with his profile and, therefore, it did not merit any interference. It was also recorded therein that keeping in view the grievance of the petitioner and having examined all the relevant records, the Government was satisfied that no injustice was done to the officer and that the officer had not been approved for promotion to the post of Colonel considering his overall performance in the three successive Boards held in January/May/July, 1990.

8. The respondents have also filed a counter affidavit in the present case and in the counter affidavit it is stated that the promotion from the rank of Major to Lieutenant Colonel and above are through Selection Board in terms of the policy dt.6.5.87. It is also stated therein that the petitioner was given consideration for promotion to the rank of Colonel by three Selection Boards consisting of different members in the following manner:-

---------------------------------------------------------------------------------------------------

Sr.     Consideration     Inputs              Board       Grading       Remarks
No.                       Cut of              held
---------------------------------------------------------------------------------------------------

1.      Fresh case        CR-1987-88          Nov. 88     R(Reject)

2.      Special
        Review Case       -do-                Jan.90      Z(unfit)       On grant of
                                                                         redressal in
                                                                         CR 1984/85 in
                                                                         which RO's
                                                                         recommendation
                                                                         for promotion
                                                                         converted to
                                                                         "Yes"from
                                                                         Major to Col.

3.       First Review     CR Jun. 88/        May 90       Z(unfit)
                          Mar.89

4.       Final Review     June.89/-          July-90      Z(unfit)
                          Mar.90

 

9. It is also stated that the case of the petitioner for promotion was considered on four occasions by the differently composed Selection Board and those Selection Boards took into consideration a number of factors such as war/operational reports, course reports, Annual Confidential Reports, performance in command and staff honours and awards, disciplinary background and not only the Annual Confidential Reports. In view of the aforesaid position, it cannot be said that the order of the Central Government passed pursuant to the order of the Allahabad High Court is devoid of reasons. Besides when such an order is challenged in a court of law, it is always open to the competent authority to place reasons before the court, which may have led to the rejection of the representation, as was held by the Supreme Court in the cases of Union of India and Others vs. G.Nambudiri . In my considered opinion, the order itself contains reasons and even if it is assumed, as submitted by the counsel appearing for the petitioner, that no detailed reason was given in the said order, such detailed grounds and reasons regarding assessment by the three Selection Boards could be found in the counter affidavit filed by the respondents. The first contention as raised by the counsel for the petitioner is, therefore, found to be devoid of any merit.

10. The contention that the consideration by the three successive Selection Boards of the case of the petitioner for his promotion to the rank of Colonel, was on the basis of the same material appears to be without any merit as is apparent from the records placed before me. Initially, the case of the petitioner for consideration of his case for the purpose of promotion to the post of Colonel was put before the Selection Board in November, 1988 and he was not found fit for such promotion. However, the respondents ordered for reconsideration by the Selection Board and a special review Board was held and the case of the petitioner was considered by the said Review Selection Board in the month of January, 1990 wherein the Annual Confidential Report of the petitioner for the year 1987-88 was considered and in the said selection process he was found unfit for promotion. The case of the petitioner for first review was placed before the Selection Board in May, 1990 and in the said Selection Board meeting new material in the form of Annual Confidential Reports, for the period between June 1988 and March, 1989, was placed and, therefore, the Selection Board had the opportunity of considering fresh material. Similarly, the final review case of the petitioner was placed before the Selection Board in July, 1990 wherein also a fresh Annual Confidential Report for the period between June, 1989 to March, 1990 was placed before the Selection Board. Therefore, in all the three selection process fresh material was available and was considered by the Selection Board and, therefore, the contention of the counsel appearing for the petitioner that the Selection Board on all the three occasions did not have the opportunity to consider fresh material, is devoid of merit. Three differently constituted Selection Boards on all the three occasions had the opportunity to consider fresh material in terms of letter and spirit of the aforesaid guidelines contained in the memorandum dt.6.5.87. The original records of the Selection Boards were also placed before me and on perusal thereof, I find that the eligibility of the petitioner was considered by the Selection Board and he was given the grading by the members of the said Board. Incidently, the case of the petitioner on all the three occasions was considered by differently constituted Selection Board consisting of five members and on two of the meetings, all the five officers, have graded the petitioner as unfit for promotion whereas on one occasion, four officers have graded him unfit for promotion whereas only one officer graded him fit for promotion. Since the matter relating to the promotion of the petitioner to rank of Colonel was considered by the three Selection Board consisting of different members and consisting of five responsible officers of the Army, I am not satisfied that any ground of bias is made out by the petitioner in the present case. It is also apparent from the records that there was no adverse remarks recorded in the Annual Confidential Report of the petitioner for the year 1986-87 and, therefore, the allegation of bias of Col.J.S.Chopra is without any basis and foundation.

11. The contention of the counsel appearing for the petitioner that consideration of the case of the petitioner that consideration of the case of the petitioner for promotion to the rank of Colonel could not have been placed before the First Review and Final Review Board in view of pendency of the statutory complaint as against the initial selection, was also considered by me giving due consideration. In the said context, reference could be made to the Circular issued by the respondents on 22.6.89. Paragraph 7 therefore indicates that it was decided that the cases of officers, who have put in complaints against ACR's supersession, disciplinary, administrative awards and awaiting decision legal courts would not be withdrawn from the Selection Boards. The complaint of the petitioner was pending against his ACR and, therefore, his case could not have been withdrawn from the Selection Board. Vacancies in the post of Colonel had arisen, in view of which the case of the petitioner was required to be considered by the Selection Board held in May and July, 1990 as he was within the zone of consideration. If the name of the petitioner would not have been considered for the first review and final review, the petitioner himself would have raised a grievance for such non-consideration. It is also provided in para 8 of the said memorandum that on finalisation of the complaint if the officer gets redress, he would be given special review(s) as applicable and if the complaint is rejected, the Selection Board results held earlier would stand valid. The same being the mandate and since the complaint of the petitioner was dismissed, the results of the Selection Board held earlier have been regarded as valid. In case of finalisation of the complaint in his favor, the petitioner would have been given redress and then his case would have been considered in special review as applicable. Nothing of the nature had happened and as his complaint was rejected, therefore, it is not a case to be considered by a special review. In the light of the aforesaid facts and circumstances and the discussion, no case is made out by the petitioner for any interference. There is no merit in this petition and the petition stands dismissed.