Air Vice Marshal Ms Brar, Avsm, Vm vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1024 Del

JUDGMENT

S.B. Sinha, C.J.

1. An order of the AIR Officer In-charge Personnel dated 1st March 2002 is in question in this writ petition. The said order reads thus:

"EXTENSION OF SERVICE : AVM MS BRAR (8715) F (P) (RETD.)

1. In pursuance to the Hon'ble Delhi High Court judgment dated 07 Jan 03 in the CWP 3242/01 filed by you, a fresh decision regarding grant of extension of service has been taken by the Competent Authority. It has been decided not to grant you extension of service beyond 57 years i.e. 31 Aug 01."

2. The petitioner is a commissioned officer in the Air Force. At all material times, the petitioner was an Air Vice Marshal. The retiring age of the officers of the rank of Air Vice Marshal in Flying Branch was 56 years extendable to 57 years. The same was raised to 57 years extendable to 58 years. However, in the equivalent rank in Army and Navy, the retiring age is 58 years. In or about January/February 2001, the matter relating to extension of service of the petitioner and others eligible candidates was considered. he, was not granted any extension. The said decision was communicated to the petitioner on or about 2nd March 2001. Six other officers whose case were also considered, however, got the benefit of extension and were promoted to the rank of Air Marshal. On 23rd March 2001, a statutory petition was filed by the petitioner in terms of Section 27 of the Air Force Act. In the said application, he prayed for expunction of inconsistent assessment/remarks made in his ACR. Such a contention had been raised as the petitioner suspected that the respondent No. 2 was prejudiced against him and might have awarded adverse remarks to damage his career prospects. As the said statutory complaint was not being attended to, the petitioner submitted a representation to the Chief of Air Staff on 20th April 2001. In the said representation, the petitioner also raised a suspicion to the effect that he might even be denied consideration for promotion to the rank of Air Marshal. The petitioner's apprehension came true as he was informed by a letter dated 14th May 2001 that he had not been cleared for promotion to the rank of Air Marshal. It is not in dispute that the petitioner has filed a writ petition before this court questioning the said order which is pending consideration. The petitioner filed a writ petition questioning the order denying him the extension of service. On 29th May 2001, the Hon'ble Court issued notices and directed that the counter-affidavit be filed within four weeks. On 11th June 2001, this court issued notices in CWP 3807/2001 filed by the petitioner against denial of promotion to the rank of Air Marshal and direction it to be tagged with CWP 3242/2001. The petitioner was made to retire by the respondents on 31st August 2001. Although both the writ petitions filed by the writ petitioner were to be heard analogously, having regard to the fact that the matter relating to non-grant of promotion to the rank of Air Marshal to a large extent depended upon the out come of first writ petition, the learned single Judge thought it expedient to hear out the said writ petition first. The argument in the said CW 3242/2001 was allowed by a judgment dated 7th January 2002 in terms whereof the communication impugned therein dated 2nd March 2001 was set aside.

3. According to the petitioner, having regard to the fact that the order impugned was set aside, thereby the second prayer of the petitioner namely, he be deemed to be in service despite his retirement w.e.f. 31st August 2001, must be held to have been set aside.

4. It is not in dispute that the matter relating to extension of age of retirement is governed by the following criteria:

"1. The officer should be medically fit for the rank in which extension in service is granted.

2. The performance of the officer in the rank should be of a sufficiently high order, as laid down.

3. The retention of the officer in service should not seriously block promotion deserving block of junior officers.

4. An officer whose performance or medical fitness deteriorates during the period of his retention in service beyond the lower retirement age, shall be retired from service before attaining the outer retirement age."

For Air Vice Marshals, the further criteria is:

"During the last 5 years, there should be a least 3 gradings of '7' and no grading below '6'.

"In addition to the numerical gradings, the pen picture of the officers, i.e. IO, RO and SRO's remarks will also be taken into account."

5. There exists also instructions for completion of appraisal report, the relevant portions whereof are as under:

INSTRUCTIONS APPLICABLE TO ALL APPRAISERS

"26. The pen picture should be written in a free and frank manner. These must match the gradings given in para 8 & 9. Apparent anomalies between the assessments, recommendations and remarks are to be explained in the pen picture / narrative remarks. Reviewing officers should try to eliminate or explain any inconsistencies in earlier paragraphs of the report. Senior Reviewing Officer should endeavor to resolve any difference of opinion / evaluation between earlier reporting officers.

27. Nine points on the rating scale have been grouped under five grades as describes below:-

Exceptional Above Average Average Below Average Poor 9 8-7 6-5 4-3 2-1

29. Adverse Reports. Reporting Officers in the appraisal channel are to inform the appraisee in writing of the particular aspects of his failings as stated below:-

(a) Poor assessments (1,2) in paras 8 and /or 9 of P-57C. An officer who earns a grading of 2 or less in one or more of the mandatory qualities in two ARs within a span of 5 years from different reporting officers, would be considered inefficient. The following traits in the ARs are to be considered as Mandatory Qualities in the assessment of an officer for his retention in service:-

(i) Professional Competence

(ii) Result Orientation and Task Achievement.

(iii) Integrity.

(iv) Command and Control.

(b) Any adverse remarks in paras 10, 11 and 13 to 19 in IAFF (P)--57C. Examples off Adverse Remarks are given at para 34(f) of AFO.

42. At para 11(a), specify whether this Report contains any adverse comment or adverse assessment. If the answer to the above is yes give the relevant details of these comments or assessments entered in paras 8, 9 and 10 of the Appraisal form.

44. At para 11(c), mention whether the appraise has shown any improvement since he has been appraised of his shortcomings. If the answer is yes, state what improvement has been shown by the appraisee.

58. Should you disagree with the remarks or gradings of the IO, give the reasons thereof in your narrative at para

13."

6. A dispute arose as whether the remarks / comments against the petitioner were adverse or negative in nature or not. It is not in dispute that whereas negative comments are not to be communicated, adverse remarks are liable to be communicated.

7. The learned Judge in his judgment dated 7th January 2002 arrived at the conclusion upon perusal of the remarks of the Returning Officer and the Reviewing Officer that they are per se adverse in nature and were required to be communicated. In the said judgment, it was directed:

"21. For the foregoing reasons, the writ petition is allowed; the impugned communication is set aside and the rule is made absolute. The respondents are directed to communicate the remarks in question to the petitioner in terms of paragraph 33 of AFO-50 and take a fresh decision on the question of grant of extension in the age of the petitioner. The said exercise shall be completed as expeditiously as practicable but not later than eight weeks from the date of this order. There will, however, be no order as to costs."

8. Despite the same, the petitioner was not taken back in service. A contempt notice was issued. The respondents in the meantime on 6th February 2002 filed an intra court Appeal under Clause 10 of Letters Patent, which was marked as LPA No. 95/2002. The appeal was heard in part by a Division Bench of this court on 19th February 2002 but at the request of the appellant, the same was adjourned to 26th February 2002 by an order dated 21.02.2002. In the meantime, on 21st February 2002, the following appraisal report was communicated:

"APPRAISAL REPORT : AVM MS BRAR (8715) F (P)

1. In pursuance of the Hon'ble Delhi High Court order dated 07 Jan 2002 in CWP No. 3242/2201 following remarks made by the IO (the then Air Mshl) SK Swamy, AOC - in-C, SWAC and endorsed by then Air Chief Marshal SK Sareen, in the AR for the period 01 Dec 1997 to 30 Sep 1998 are communicated to you in terms of para 33 of AFO-50/97:-

"... ... ... However, his professional knowledge and application are not commensurate with his seniority and appointment. He depends on his subordinates to the efficiency and effectiveness of his department. His conceptual ability and analytical skills are below the expectations to make any contribution. He could at best take up moderate workload of routine nature..... but has limitations in being able to motivate his subordinate to any high degree. Lacking sufficient depth and confidence, he hesitates at times in directing briefings or chairing discussions... ... He is overweight and paunchy. His personality in 'senior' air rank would not be inspiring. His potential to head in a senior management post is extremely limited."

2. If you wish to submit any representation against the above mentioned remarks, the same may be immediately so as to reach the undersigned by cease work on 25 Feb 2002.

3. This communication is endorsed without prejudice to our rights and contentions in the LPA (No. 95/02) filed by Union of India & IAF."

9. The petitioner in response to said letter by a letter dated 25th February 2002 inter alia stated:

"...The aforesaid letter was delivered to me at 1700 hours on 21.2.2002 and I have been given time till 1700 hours on 25.2.2002, to submit my representation. By any standards, this is a most unreasonable direction and smacks of serious ill will against me. In the facts and circumstances of this case, it is only reasonable if atleast 15 clear days are given for submitting a representation. This again establishes clear unfair treatment to me.

My counsel has explained to me that this communication has been issued to mislead the Hon'ble High Court, in the contempt case, which is also listed for hearing on the 26.2.2002, particularly so when you have failed to secure stay of the operation of the order of the Hon'ble High Court, dated 7.1.2002.

Therefore I request you to withdraw your aforesaid letter dated 21.2.2002, until the finalization of the LPA or alternatively permit me to join forthwith and thereafter give 15 clear days to submit the representation."

Thereafter the impugned judgment had been passed.

10. Mr. Bhati, learned counsel appearing on behalf of the petitioner would submit that in the instant case, there has been a flagrant violation of the principles of natural justice in so far as sufficient and reasonable time had not been granted to the petitioner for filing an effective representation. The learned counsel would contend that having regard to the fact that adverse remarks were required to be communicated which having not been done, the same must be held to be in flagrant violation of the principles of natural justice. The learned counsel would contend that the petitioner's career was marred because of the biased attitude towards him on the part for the respondent No. 3. He would submit that in the earlier writ petition, the single Judge did not have any occasion to go into the said question.

11. The learned counsel for the respondents Ms. Pinki Anand, on the other hand, would submit that in his representation dated 25th February 2002, the petitioner did not ask for grant of any further opportunity to make his representation and merely stated that he may be permitted to join his duties forthwith and thereafter 15 days' clear time to submit his representation. The learned counsel would contend that having regard to the directions issued by the learned Judge in CW No. 3242/2001, it cannot be said that the petitioner was entitled to join his services. It was further submitted that the matter relating to extension of service is governed by a policy decision and the same having been followed, no case has been made out for interference with the impugned order.

12. Paragraph 33 of the Air Force Order 50 dated 12th December 1997 is as follows:

"33.(a) An Appraisal Report of an officer will be considered Adverse if any one of more of the following are observed in his/her AR:

(i) Assessment of 1 or 2 in any of the traits in para 8 and/or 9 in forms P-57A/B/C or para 7 and/or 8 of form P-57D.

(ii) Comments which match in their significance and meaning with description given under '2' or '1' of the transit cover.

(iii) Any unqualified remarks/comments which convey a definite and clear negative trait in paras 10, 11 & 15 to 18 of P-57As in paras 10, 11 & 15 to 21 of P-57Bs, in paras 10, 11 & 13 to 19 of P-57C and paras 9, 10, 12 of P-57D.

13. A perusal of the afore-mentioned para would clearly show that failing of the officer are required to be brought to his notice in writing before the report is due so as to give him an opportunity to improve himself. Before raising the adverse report, a warning had also to be given. Furthermore, if the failings are observed very near to the date of rendition of report thereby denying reasonable time for issue of warning etc, the rendition of the report is required to be delayed. It is now not in dispute that the said orders were required to be communicated. Such communication was made pursuant to or in furtherance of the directions of the learned single Judge. The respondents while, on the other hand, implementing the order of the learned single Judge, had also preferred an appeal. As noticed hereinbefore, even on 21st February 2002, they sought for an adjournment and the matter was adjourned to 26th February 2002. In the meanwhile, such adverse remarks were not only communicated but the petitioner was asked to make a representation within a period of four days. It may be true that the petitioner in his representation did not specifically ask for further time but the same, if read as a whole, would be clearly a pointer to the fact that the petitioner did protest against non-grant of reasonable time. It was thus incumbent upon the respondent to grant an opportunity of hearing to the petitioner.

14. Principles of natural justice are required to be complied with in such a manner that the affected person may obtain an opportunity to make an effective, purposeful and meaningful representation. Grant of an opportunity cannot be an empty formality. Communication of adverse remarks was to be made in terms of the statutory rules and/or the policy decision issued by the respondents themselves. Such communication having not been made, no reliance thereupon could have been placed by the respondents in passing the impugned order. Furthermore, no reason has been assigned in support of the said order. Such reasons were required to be assigned particularly having regard to the fact that mala fide had been alleged as against the respondent No. 3. In the instant case, the petitioner fulfills the criteria of numerical assessment. He had been denied extension for alleged remarks in his ACR dated 1st December 1997 and 30th December 1998. Accordingly to the guidelines operating in this behalf, in addition to numerical gradings, pen picture officer i.e. IO, RO and SRO's remarks were also required to be taken into consideration. The guidelines provide for the manner in which the pen picture is required to be written. Had an opportunity been granted to the petitioner, the petitioner could have shown that he did not deserve the adverse remarks.

15. In Gurdayal Singh Fizzi v. State of Punjab and Ors., , while noting the adverse report, it was found by the apex court that the explanation of the officer was not considered and held that the opportunity required to be given in this regard is not an empty formality.

16. In Union of India and Ors. v. E.G. Namboodri, , while referring to Gurdayal Singh Fizzi v. State of Punjab and Ors. (supra), it was held that communication is necessary to give opportunity of making a representation.

17. Yet again in AVM S.L. Chhabra v. Union of India and Anr., , it was held

"12. The question as to whether the appellant was entitled for one year extension w.e.f the date of his retirement i.e. October 31, 1990, has to be examined with reference to the criteria laid down for the same. The age of retirement fixed for the Air Vice Marshal is 55 years. The guidelines for extension of service, say in clear and unambiguous terms that extension will not be granted automatically but will be subject to fulfillling the requisite conditions, to be determined separately by the Ministry of defense in consultation with Ministry of Finance (defense) and Air Headquarters. On the relevant date the criteria fixed for considering the extension of service beyond the retirement age were:

xxx xxx xxx xxx

(a) The Officer should be medically fit for the rank in which extension in service is granted.

(b) The performance of the officer in the rank should be of a sufficiently high order, as laid down.

(c) The retention of the officer in service should not seriously block promotion of deserving junior officers.

(d) ... ... ...

2. It has also been decided that the following grading should be adopted for the grant of extension of service in various ranks:

(a) For Group Captains... ...

(b) for Air Commodores... ...

(c) For Air Vice Marshals.-- During the last 5 years, there should be at least 3 gradings of '7' and no grading below '6'.

In addition to the numerical gradings, the pen picture of the officers, i.e. IO, RO and SRO's remarks will also be taken into account."

13. On behalf of the respondents, it was pointed out that it is an admitted position, that appellant did not have the grading, which are necessary for extension of service. During the last give years not only he should at least three gradings of '7', but no grading below '6'. Our attention was drawn that his grading for the year 1987 was '5.3', as such below '6'. From the records, it appears that numerical gradings of the appellant from 1983 up to 1988 were as follows:

1983 1984 1985 1986 1987 1988 7 7.4 7.5 7 5.3 7

The appellant, who appeared in person, did not contest the stand of the respondents that because of his getting '5.3' in the year 1987, no extension could have been given to him, in view of the criteria fixed for consideration of the extension, to be given to Air Vice Marshal, after his retirement. But according to the appellant, the High Court should have and now this Court can moderate the grading for he year 1987, in view of the fact that adverse remarks for the year 1986 have been expunged. According to us, neither the High Court nor this Court can moderate the appraisal and the grading of the appellant for a particular year. While exercising the power of judicial review, a court shall not venture to assess and appraise the merit or the grading of an officer. If the Appraisal Report of the year 1987 giving the appellant '5.3' stands, then according to the criteria fixed, the case of the appellant could not have been considered for extension.

14. The appellant fairly conceded that unless an extension for a year is granted to him, he could not have been considered for the post of Air Marshal, because no post of Air Marshal was available till October 31, 1990 when the appellant retired.

15. Accordingly, taking all facts and circumstances into consideration, we direct the respondents to consider the case of the appellant for promotion to the post of Air Vice Marshal with reference to the year 1988, ignoring the adverse remarks which have already been expunged. Any such decision should be taken within four months from the date of this judgment. The appeals filed on behalf of the appellant as well as Union of India are disposed of in terms of the order passed above."

18. Reference in this connection may also be made to Maj Gen IPS Dewan v. Union of India and Ors. , wherein the apex court has clearly held that when the adverse remarks have been inconsistent with the records, the same have to be ignored. In para 13 of the decision, the apex court had considered the work sheet of all the concerned officers.

19. Yet again in UP Jal Nigam v. Prabhat Chandra Jain and Ors., , it was held that before a person is downgraded, an opportunity of hearing is essential.

20. Yet again in Sukhdev v. Commissioner Amravati Division and Anr., , it was held that adverse remarks must not be vague and the controlling officer should use due diligence.

21. However, the contention of the petitioner as regards mala fide against the respondent No. 3 of the earlier writ petition cannot be looked into inasmuch as he has not been imp leaded as a party in this writ petition.

22. The learned Judge while disposing of CW No. 3242/2001 had no occasion to consider the said matter at all and the said order has attained finality. The plea of mala fide, therefore, cannot be permitted to be raised. The Letters Patent Appeal as we were informed across the bar, has also been dismissed having become infructuous.

23. The petitioner has been deprived of his valuable rights. He had not been given a reasonable opportunity of hearing. The conduct of the respondents is also not appreciable. However, at this stage, we cannot direct that the services of the petitioner be extended. It is said that the matter relating to denial of promotion to the position is pending considering before this Court in another writ petition.

24. As the respondents appear to have already made up its mind as regard grant of extension of his services, no useful purpose would also be served in remitting the matter back to the respondents for considering the matter once over again upon grant of an opportunity of hearing to the petitioner.

25. We, therefore, are of the opinion that interest of justice would be subserved if the respondents are imposed with a heavy costs which is quantified at Rs. 50,000/-.

The writ petition is disposed of accordingly.