Lt. Col. P.N. Chaturvedi vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 912 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner, who is Lt. Colonel in the Army and posted as Assistant Judge Advocate General, Headquarters Central Command, Lucknow, has filed this Writ petition with the following prayers:

This Hon'ble court be graciously pleased to issue a writ of Certiorari Mandamus or any other appropriate writ, order or direction:-

(a) Directing the respondents to produce the following original records of the case-

(i) All files concerning processing of Statutory complaint dated 22.5.95, including comments of IO, RO and SRO, on the said complaint.

(ii) File dealing with statutory complaints dated 26.03.97 and 20.06.97.

(iii) Complete ACR Dossier of the petitioner.

(iv) Selection Board proceedings.

(b) Quashing the entire ACR for the year 1988-89 on grounds of subjectivity and inconsistency.

(c) Quashing the ACR for the year 1989-90 except for the assessment of initiating officer Brigadier TPS Bakshi.

(d) To consider the petitioner to the rank of Colonel on the basis of his ACRs anterior to 1988-89 and posterior to 1989-90 to date, and promote him to such rank with all consequential benefits including pay, perks and seniority admissible to his batchmates.

2. As can be inferred from the aforesaid prayers itself, the main grievance of the petitioner is against recording of the ACRs for the years 1988-89 and 1989-90. It is his case that because of wrong recording of the ACRs for the aforesaid periods, the petitioner's case for promotion to the post of Colonel was not considered properly by the selection Board with the result he was wrongly denied the promotion and his juniors superseded him.

3. For the purpose of deciding this writ petition, it is not necessary to trace out the history of the career progression of the petitioner in the Army. Suffice is to state that the petitioner joined as Commissioned Officer in the Army Education Corps as Second Lt. in the year 1970. In April, 1974 he was transferred to the Judge Advocate General's Department (JAG for short). Since then he is working in JAG and has got promotions from time to time and stands permanently transferred to this department. As mentioned above, he is at present holding the post of Lt. Colonel to which post he was promoted in July, 1987.

4. The petitioner states in this writ petition that his first ACR as Lt. Colonel for the year 1987-88 was initiated by Brig. K.N. Mishra (as he then was who has retired as Major General). Joint JAG, Army Headquarters and was reviewed by the Reviewing Officer Major General A.B. Gorthi and as Superior Reviewing Officer by Lt. General C.A. Baretto, DGDC & W. He was rated 'above average' with 8 points which was his rating for the previous year as well, i.e., for the year 1986-87. However, for the year 1988-89, i.e., his rating was downgraded and also certain remarks about his integrity and loyalty were made in paragraph 11 (h) and paragraph 11 (j) respectively of the ACR. He submitted statutory complaint on 22nd May, 1995 to the Central Government, in response to which he received order dated 21st June, 1996 reading as under:

No. 36500/293/JAG/90/Ms Compls/2539/D(MS)

Government of India

Ministry of defense,

New Delhi, the 21st June, 1996

ORDER

The Central Government, after considering the statutory complaint dated 22 May 95 submitted by IC-2984F Lt. Col. P.N. Chaturvedi, JAG against his CR 6/88-5/89 and after examination of relevant records, hereby rejects the complaint subject to expunction of IO and R-O's assessment against para 11 (h) a (Integrity) and 11 (j) (Loyalty), in CR 6/88-5/89, on grounds of inconsistency.

By order and in the name of the President

Sd/-

(Ravi Mathur)

Director to the Government of India"

5. The petitioner was, thus, given partial relief but he still felt aggrieved as his grievance against figurative assessment, box grading and recommendation for promotion was left unredressed.

6. The petitioner also had apprehensions that for the period from 7th June, 1989 to 31st May, 1990 i.e. for the year 1989-90 as well the assessment made would not be proper inasmuch as the Initiating Officer, the Reviewing Officer as well as the Superior Reviewing Officer for that year were the same officers who had recorded the ACR for the previous year and their mindset must have influenced the ACR for this year also. Further, his apprehension was that as Brig. K.N. Mishra had acted in a mala fide manner while initiating his ACR for the year 1988-89, the same bias mind must have influenced his ACR for the year 1989-90 by the same officer again. In these circumstances, the petitioner submitted a statutory complaint dated 26th March, 1997 not only against ACR for the year 1989-90 but also against that part of the ACR for the year 1988-89 the grievance in respect of which was not redressed by the respondent. This statutory complaint was, however, returned inactioned by the respondent No. 3 on 20th May, 1997 stating that as his earlier statutory complaint had been decided vide order dated 21st June, 1996 and that no substantial fresh facts had been brought by him which warranted re-examination. He preferred appeal on 20th June, 1997 to consider his appeal on the ground that the earlier order dated 21st June, 1996 was in respect of the ACR for the year 1988-89, and therefore, the statutory complaint made on 26th March, 1997 which related to the year 1989-90 as well needed consideration. This was again rejected vide communication dated 29th November, 1997 which communication was received by the petitioner on 12th January, 1998.

7. After waiting for one year and nine months, the petitioner filed the instant petition in October, 1999 with the prayers already indicated above.

8. Col. G.K. Sharma, learned counsel appearing on behalf of the petitioner, submitted that following points arise for consideration by this court:

I. Whether Balance of ACR for 1988-89 left after decision of respondent No. 1 is liable to be set aside/quashed on grounds of inconsistency and subjectivity.

II. Whether assessment of RO in the ACR for 1989-90 is liable to be set aside/quashed on grounds of continuing bias, subjectivity and inconsistency.

9. It may be stated at this stage itself that during arguments, the learned counsel for the petitioner gave up his challenge to assessment in respect of ACR for the year 1989-90. The reasons and the circumstances under which this challenge was given up, would be mentioned at the appropriate stage while dealing with the arguments of the parties and stating as to how the matter progressed.

10. Coming back to the challenge in respect of ACR for the year 1988-89, the primary submission of learned counsel for the petitioner was that when the petitioner's statutory complaint was partially redressed by the Central Government and the remarks against him in respect of his integrity and loyalty were expunged, the respondents were bound to have proper figurative assessment, box grading as well as recommendation for promotion which were not redressed. Further, mala fides were attributed against Brig. K.N. Mishra who delayed the initiation of petitioner's ACR for the petitioner's ACR for the year 1988-89 by four months. Further, the petitioner's assessment for this period both of Initiating Officer and the Reviewing Officer was inconsistent with his overall career profile. Although, according to the learned counsel, the pen picture contained the following adverse remarks he was not counselled for the same at any time during the year which was essential:

"As a transferee from Army Education Corps, the Officer was expected to display much better potentialities of his conduct and personality. His performance during the period under review could not reach at its peak."

11. It was submitted that the pen picture in the form of remarks mentioned above, smacks of bias as it was subjective and inconsistent with the overall profile of the petitioner. Such remarks according to petitioner were liable to be expunged and in support of this submission, reliance was placed on the following judgments:

1. State of U.P. v. Yamuna Shankar Mishra .

2. Gurdial Singh Fiji v. State of Punjab reported in 1979 SLJ 299 (SC) .

3. U.P. Jal Nigam v. Prabhat Chandra Jain .

4. Brig. A.S. Saharan v. Union of India reported in 2000 (1) SLR 80 .

5. Col. Rakesh Mohan v. Union of India & Ors. (SB CWP No. 4244 of 1997 Rajasthan High court.

6. Prabhu Dayal v. State of Haryana reported in 2001 (4) SCT 293 .

7. Lt. Col. S.J. Singh v. Union of India & Ors. reported in 2000 (1) SLR 618 .

8. Maj. General R.S. Tyagi v. Union of India & Ors. (Misc. Pet. No. 2157 of 93 M.P. High Court, Indore Bench.).

12. In so far as ACR for the year 1989-90 is concerned, the submission of the learned counsel for the petitioner was that this ACR also must have contained some adverse remarks which were not communicated to him. This apprehension was founded on the ground that the Reviewing Officer on account of lack of contact and continuing bias and already subjective in respect of ACR for the year 1988-89 must have awarded low rating/assessment to the petitioner.

13. It was further submitted that when such adverse ACRs for the years 1988-89 and 1989-90 were considered for promotion of the petitioner to the rank of Colonel, he was not promoted and superseded by the junior officers. Had these ACRs not been considered, the petitioner would have got promotion to the next higher rank of Colonel.

14. We may immediately deal with the ACR for the year 1989-90 in the first instance. As already mentioned above, the learned counsel for the petitioner conceded that his statutory complaint submitted against the ACR for the year 1989-90 was only on the apprehension that it would be adverse although this adverse assessment of the Reviewing Officer was not communicated to the petitioner and no performance counselling was given to him during the period under report. He, therefore, stated that before proceeding further, the ACR of this year should be seen by the court. It was, under these circumstances, this court looked into the ACR for the year 1989-90. The examination of the said ACR revealed that not only there were no adverse remarks, on the contrary, the Initiating Officer had made positive assessment about the petitioner by commenting as under:

"I have found Lt. Colonel Chaturvedi to be a hard working and sincere officer. His professional knowledge is commensurate with his appointment and length of service in the department. He maintains cordial relationship with the staff and commands at all levels. He is even willing to shoulder additional responsibilities. He takes kindly to criticism and is responsive to advise. He is dependable and forms happy member of the team."

15. The Reviewing Officer has endorsed the aforesaid comments by stating as under:

"I agree with the remarks of the Initiating Officer."

16. Even the box office grading given the petitioner is 'above average' and better than the grading given for the year 1988-89. The Initiating Officer gave him grading of '8' whereas the Reviewing Officer gave him '7'. When the counsel for the petitioner was read out the aforesaid comments and informed about the box office grading, the learned counsel conceded that his apprehension in respect of the ACR for the year 1989-90 was misplaced and the learned counsel made the statement that he was not pressing his prayer in respect of the ACR for the year 1989-90.

17. In the aforesaid scenario, we proceed to examine the contentions of the learned counsel for the petitioner in respect of the ACR for the year 1988-89. Admittedly, the statutory complaint dated 22nd May, 1995 of the petitioner in respect of the ACR for the year 1988-89 was considered by the Central Government and the Central Government accepted it partially whereby it was ordered that assessment against para 11

(h) regarding integrity and para 11 (j) regarding loyalty be expunged. Order dated 21st June, 1996 to this effect categorically states that the representation of the petitioner was otherwise rejected meaning thereby other reliefs sought for by the petitioner in his representation dated 22nd May, 1995, namely, relating to figurative assessment and box grading were rejected. Therefore, there may not be any force in the contention of the learned counsel for the petitioner about non-consideration of petitioner's statutory complaint dated 26th March, 1997 which was returned vide commination dated 20th May, 1997 stating that his earlier statutory complaint had been decided vide order dated 21st June, 1996 and no substantial fresh facts had been brought out by him which were pending re-examination. It may be mentioned that in this statutory complaint although the petitioner made representation against the ACR for the year 1989-90 as well, however, as there was nothing adverse in so far as ACR for that year in concerned and the learned counsel for the petitioner has also dropped his relief to this, effect, the action of the respondents in returning the statutory complaint vide order dated 20th May, 1997 cannot be faulted with.

18. Coming back to the submissions of the learned counsel for the petitioner in respect of the ACR for the year 1988-89, it may be mentioned that the whole premise on the basis of which ACR for this year is challenged is that the pen picture contained in the said ACR was subjective and inconsistent with the overall career profile of the petitioner and allegations of mala fides against Brig. K.N. Mishra Such contention is ill-founded as would be clear from the following circumstances:

a) The portion of ACR for the year 1989-89 which was expunged, namely para 11 (h) and para 11 (j) relating to integrity and loyalty respectively was on the ground of inconsistency. Therefore, the Central Government thought it fit to expunge the same. However, that will have no relevance with figurative assessment and box grading. This is as per the assessment of the Initiating Officer with which even the Reviewing Officer had agreed.

b) Although allegations of mala fides are alleged against Brig. K.N. Mishra on the ground that he had a biased mind and on that there was apprehension nurtured by the petitioner to the effect that his biased mind must have influenced his ACR for the year 1989-90, it is already observed above that same Brig. K.N. Mishra was appreciative of the petitioner while writing his ACR of the aforesaid year 1989-90. This factor alone proves that the apprehensions of the petitioner qua Brig. K.N. Mishra were clearly misconceived even relating to ACR for the year 1988-89.

19. We may state here that Brig. K.N. Mishra was not even made party in the present writ petition although malafides on the part of Brig. K.N. Mishra are imputed. The petitioner had, of course, filed belatedly a CM being CM No. 11120/2001 seeking impleadment of Brig. K.N. Mishra as a party. However, the following order was passed on the 8th November, 2001 in this application:

"Before the application is taken up for consideration, let the petitioner file a summary of the imputations made against Major General (retd.) K.N. Mishra, who is sought to be imp leaded in the writ petition. The present application will be taken up for consideration when arguments in the main petition are heard.

List on 28th January 2002."

20. It appears that, prima facie, the court was not convinced that the allegations made against Brig. K.N. Mishra would constitute malafides inasmuch as the petitioner was directed to file summary of imputations made against him.

21. We have gone through the allegations made against Brig. K.N. Mishra. As already remarked above, the same appeared to be figment of petitioner's imagination as he nurtured this erroneous feeling that Brig. K.N. Mishra acted malafide whereas the records reveal otherwise.

22. Moreover, even the allegations, when taken on their face value, would not constitute malafides.

As held by the supreme court in the case of E.P. Royappa v. State of Tamil Nadu and Anr. , the burden of establishing malafides is very heavy on the person who alleges it. The allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. (See also: M/s Sukhiwinder Pal Bipan Kumar and Ors. v. State of Punjab and Ors. and Kedar Nath Bahl v. State of Punjab & Ors. .)

c) The petitioner filed his remedy of statutory complaint in respect of the ACR for the year 1988-89. The Central Government applied its mind as is clear from the fact that certain remarks have been expunged. The reason is also given, namely, 'on the ground of inconsistency'. However, apart from that the statutory complaint of the petitioner was rejected. Thus, the pen picture contained in the said ACR which is sought to be challenged is the assessment made by the Initiating Officer and accepted by the Reviewing Officer. What is stated in these remarks is that the petitioner was expected to display much better potentialities of his conduct and personality and that his performance during the period in question could not reach at its peak. This was the subjective assessment of the Officers concerned who had adjudged his performance during the year. We do not see any infringement of any Rules in recording this pen picture. No malafides are also proved. In such circumstances, this court cannot, while exercising its jurisdiction of judicial review, interfere with the subjective assessment made by the petitioner's superior officers. There is no illegality, irrationality or procedural impropriety. It is not the function of the court to examine the performance of the petitioner or substitute its own opinion in respect of the petitioner's performance not it is capable of doing so.

d) In fact we had examined the original record containing the ACRs of the petitioner not only for the year 1988-89 but of previous year also. The allegation of the petitioner that only in this year his box office grading was less, was found to be factually incorrect as similar grading the petitioner had got even in the year 1983-84 as well. It is not in dispute that box office grading of the petitioner which he got for this year is not 'below average'.

e) Records also reflect that the petitioner was given oral counselling on several occasions.

In view of the aforesaid factual matrix of this case, none of the judgments cited by the petitioner have any application to the facts and circumstances of the present case.

23. In so far as promotion of the petitioner to the rank of Colonel is concerned, it is not in dispute that the petitioner was duly considered for promotion but could not make his mark. There are no allegations of impropriety made against the selection committee.

24. In this respect, we find force in the submission of Ms. Rekha Palli, learned counsel appearing for the respondents to the effect that the Army is a pyramidical organisation and as one goes higher, supersession is a common incidence of service. Promotions from Major to Lt. Colonel and above are through selection Board. As per applicable policy each officer is entitled to three considerations, where after if not approved, he deemed to be finally superseded. It is also submitted that however, in case any officer gets any relief through complaint etc. he is entitled to a special corresponding consideration by board with his changed profile. It is further submitted that the petitioner had been promoted as Lt. Colonel based on the assessment of his overall profile and comparative batch merit by a duly constituted Selection Board. She also pointed out that the petitioner has been considered six times by differently constituted Selection Boards, but he could not be promoted to the rank of Colonel due to his batch and comparative merit based on various factors such as ACRs, course reports, performance in staff, honours and awards, disciplinary backgound, war/operational reports etc.

25. Learned counsel for the petitioner wanted this court to compare the comparative merit of the petitioner vis-a-vis other candidates who were promoted. This is not the function of the court.

26. In any case, it may be mentioned that the only grievance made by the peitioner was that his case for promotion should have been considered without taking into consideration ACRs for the year 1988-89 and 1989-90. As far as ACR for the year 1989-90 is concerned, the learned counsel for the petitioner conceded that the same was properly recorded. We have not found anything wrong as far as recording of ACR for the year 1988-89 is concerned. Therefore, such a prayer of the petitioner cannot be allowed.

27. The writ petition is, thus, without any merit and is accordingly dismissed.

28. No Costs.