Wg. Cdr. A. Bhakoo vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 1037 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present petition is filed by the petitioner praying for quashing and/or setting aside the adverse annual confidential report of the petitioner for the period of 1.10.2000 to 17.6.2001 and also the letter dated 10.4.2003, which is annexed to the petition as Annexure P-12 finding the petitioner unfit for promotion to the rank of Group Captain as illegal, arbitrary, ultra vires with a further direction to the respondents to re-convene the Promotion Board 2/2002 and PB II/2003 to consider the case of the petitioner without taking into consideration the adverse entry recorded for the period 10/2000 to June 2001.

2. The petitioner was posted as Commanding Officer, 14 Squadron with effect from 26.4.1999. While he was so posted, the petitioner's annual confidential report for the period 1.10.2000 to 17.6.2001 was initiated and written by his Initiating Officer. Lawyer on the petitioner was informed on or about 1.5.2002 that the petitioner was found unfit for promotion to the rank of Group Captain by the Promotion Board 2/2002. The petitioner thereafter filed a representation to the Air Headquarters pursuant to which on 27.8.2002 the petitioner was informed that the annual report for the period 1.10.2000 to 17.6.2001 contained adverse remarks. On 23.9.2002, the petitioner made a second representation whereby he specifically informed the respondent that he was not informed by any writing before execution of adverse comments in the annual report of 2000 - 2001. The aforesaid representation of the petitioner was not disposed of by the respondents but instead they held Promotion Board II/2003 wherein the petitioner was considered for promotion and the Board considered the reports of the petitioner including that of AR 2000 - 2001. The petitioner again sought for disposal of the representation, which was filed on 23.9.2002. The petitioner was thereafter by a letter issued on 9.4.2003 informed that the Ministry of defense has ordered that the adverse remarks of AR 2001 of the petitioner be ignored and the petitioner be reconsidered for promotion in PB-2/2002 to the next rank. The re-convened Board found the petitioner fit for promotion and he was placed at serial No.47 in the overall merit in his stream in PB-2/2002. Thereafter by a letter dated 10.4.2003, the respondents also informed the petitioner that the Promotion Board-2, was held in February 2003 and that he had been found unfit in the said reconvened Board for promotion to the rank of Group Captain. As against the aforesaid action of the respondent, the petitioner filed a representation contending, inter alia, that as the respondents have taken into consideration the AR 2000 - 2001, which was to be kept out of the consideration in terms of the order of the Ministry of defense, the recommendation and decision of the Promotion Board given after considering the said adverse remark is liable to be set aside and quashed. Being aggrieved of the aforesaid action and non-disposal of his representation filed by the petitioner, the present petition is filed seeking for the aforesaid reliefs.

3. Counsel appearing for the petitioner, during the course of his submissions, submitted that the respondents could not have taken notice of the adverse remarks recorded in the annual reports of the petitioner for the year 2001 while considering his case for promotion to the post of Group Captain both in the Promotion Board of 2/2002 and Promotion Board of II/2003 and same having been considered and noticed while making the recommendation that the petitioner is not fit for promotion, the entire process is to be cancelled and the Promotion Board is to be reconvened after issuing a direction that the aforesaid adverse remarks be kept out of consideration.

4. Counsel for the respondents, however, placed before us the entire service records of the petitioner, which also contained the AR of the petitioner for the period 2001 as also the representations submitted by the petitioner.

5. We have gone through the same in the light of the pleadings of the parties. The case of the petitioner for promotion was taken up for consideration by the Promotion Board 2/2002 for considering his case for promotion to the rank of Group Captain. However, in the aforesaid meeting of the Promotion Board, the AR of the petitioner for period from 1.10.2000 to 17.6.2001 was also considered. The said position is also accepted by the counsel for the respondents. On perusal of the records, we find that the said report contained certain adverse remarks against the petitioner. However, the said report, when initiated by respondent No.5, was not construed as adverse to the petitioner but only as a frank and an accurate assessment of the petitioner. However when the said AR was received by the Air Headquarters, it was found by the respondents themselves that the remarks by the initiating officer were adverse in respect of certain traits under 'professional' factors as also 'behavioral' factors. The remarks of the Initiating Officer have been endorsed by the Reviewing Officer as also by the Senior Reviewing Officer. Therefore, for all practical purposes the aforesaid remarks, which were recorded against the petitioner, were considered and held as adverse remarks even by the Air Headquarters.

6. We have also considered the said remarks. On a perusal thereof, we are of the considered opinion that the aforesaid remarks, which are recorded by the Initiating Officer and later on endorsed by the higher officers, were adverse and, therefore, the same were required to be intimated to the petitioner and the petitioner was required also to be counseled. Since the aforesaid adverse entries were considered by the Promotion Board-2, while considering his case for promotion to the post of Group Captain, Therefore, the respondents rightly ordered that the adverse remarks AR/2001 be ignored and the petitioner be re-considered for promotion to the next rank i.e. to the post of Group Captain. The said fact was also intimated to the petitioner by the respondonts by their letter dated 9.4.2003. Consequent thereto, the Promotion Board was re-convened and the said re-convened Board found the petitioner fit for promotion and he was placed at serial No.47 in overall order of merit in his stream in PB-2/2002.

7. Being aggrieved by the aforesaid entry of adverse remarks in his AR, the petitioner submitted a representation to the respondents. The said representation has not been considered by the respondents and is yet to be disposed of by the competent authority. Without considering and disposing of the said representation, the respondents considered the case of the petitioner for promotion in PB-II/2003, which was held in February 2003 wherein the said adverse remarks were taken notice of on the ground that the same have already been intimated to the petitioner but without being conscious of the fact that that the representation filed by the petitioner as against the said adverse remarks is yet to be considered and disposed of by the respondents. Since the representation filed by the petitioner against the adverse remarks has not been attended to and not disposed of by the respondents, therefore, the said adverse entries which are contained in AR 2001 could not have been considered and should have been ignored by the respondents in PB-II/2003 while considering the case of the petitioner for promotion to the rank of Group Captain. Admittedly, the same was not done. Rather the said adverse entries were also considered and were also made part of the records, which were placed before the Board, which considered the said fact also while considering the case of the petitioner for promotion to the post of Group Captain. Consequently, the Promotion Board was definitely influenced by the aforesaid adverse remarks which were to be left out of consideration until and dependant upon the disposal of the representation, but made part of the records. Accordingly the decision of the Promotion Board was actuated by non-existent and irrelevant consideration, which vitialed the entire process and proceeding.

8. We, therefore, set aside the decision/recommendation of the Promotion Board in PB-II/2003 finding the petitioner unfit for promotion to the post of Group Captain, and issue a direction to the respondents to proceed in the matter in accordance with law. Fresh decision shall be taken in accordance with law as expeditiously as possible preferably within a period of three months.

9. The writ petition is allowed to the aforesaid extent leaving the parties to bear their own costs.