Col. D.P. Singh vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1470 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was commissioned in the Indian Army in the year 1969 in the Electrical Mechanical Engineering Branch. The petitioner served for 20 years in that Branch and was posted to Quality Assurance Organization of Ministry of defense, Production and Supplies in the year 1989. Subsequently, he was selected on the basis of merit by Quality Assurance Selection Board (in short 'QASB') for permanent absorption in the Directorate General, Quality Assurance Organization of Ministry of defense in the year 1993. According to the petitioner, he served with great dedication and diligence. His reports were above average and he was selected for the rank of Lt. Col. in October, 1993. On arrival of Brig. J.L. Sood in June, 1993 as Controller CQA(HV), there was a change in the style of functioning and sub-standard items pertaining to war like equipment were being supplied to which the petitioner had objected, which was not liked by the immediate superior of the petitioner Col. A. Acharya as well as Brig. J.L. Sood. With an intention to harm the petitioner, the petitioner was suddenly deputed to a course on 31 January, 1995 and was struck off the strength w.e.f. 3rd February, 1995. Without following any guideline, the petitioner was forced to move for the course, the sole aim being to send the petitioner out of the line so as to victimize the petitioner and punish him. The petitioner was charged for disobedience of the order. The petitioner faced the General Court Martial under the false charge and the General Court Martial acquitted the petitioner on the ground of no case which was confirmed by the General Officer Commanding-in-Chief. The same officer who had forced the petitioner to General Court Martial, wrote his ACRs for the year 1994-95 and from 1st April, 1995 to 17th October, 1995. The ACRs of the petitioner were recorded with a bias mind as adverse entries were recorded in the said ACRs. The petitioner preferred a statutory complaint to the Government against recording of these adverse remarks which was disposed of by the competent authority and para 2 of the order dated 18th August, 1999 reads as under:

the complaint of the officer has been considered. After examination of the relevant records, it is found that

a) there is merit in request of Lt. Col. D.P. Singh for setting aside his ACR for the period 1994-95.

b) As the officer has been assessed by QASB based on 1994-95 ACR also, there is a case for De-Novo consideration of this promotion.

2. In the meanwhile, officers junior to the petitioner had been promoted and he was even apprehensive whether the order of the Government would be duly implemented by the respondents or not. The petitioner made a request to the authorities and even made a representation to the Raksha Rajya Mantri. Even after lapse of considerable time, the matter was not looked into. On the contrary, vide letter dated 1st May 2000, the petitioner was directed to desist from sending representation to the higher officer unless he had exhausted the provided channels. After repeated reminders and great persuation, the petitioner's name was reconsidered by Quality Assurance Selection Board in its meeting held on 16th May 2000 for promotion to the acting rank of Col. The petitioner was subsequently informed that he had not been placed in an acceptable grade for promotion to the next higher rank and his case would be reviewed at appropriate stage. According to the petitioner, the respondents held a mock and sham selection board on 16th May, 2000 wherein they again considered the result of old boards against which the petitioner had made representations and statutory complaints and rejected the case of the petitioner as noticed above. In an arbitrary manner, the petitioner was also served with a warning letter dated 31 August, 2000 for sending his representations to Raksha Rajya Mantri. The petitioner claims that he was harassed without any reason and even the statutory complaints filed by the petitioner and his reminder sent on 16th July, 2002 seeking to know the result of his statutory complaint, could not result in grant of any relief to the petitioner. As per the seniority list circulated on 26th April, 1997, seniority of Col. K.R. Singh who was promoted to the rank of Brigadier was fixed as 28th July, 1995 in the rank of Lt. Col. though he was junior to the petitioner being the petitioner's seniority as 27.07.1995 in the rank of Lt. Col. Aggrieved by the above-mentioned inaction and arbitrary action of the respondents, the petitioner has filed the present writ petition with a prayer that the respondents be directed to promote the petitioner to the rank of Brigadier from the date of his original seniority before his retirement i.e. 31.07.2003. It is also the prayer of the petitioner that the promotion of the junior officers made during the pendency of the petition be stayed.

3. We may notice that no stay was granted to the petitioner during the pendency of the petition and, in fact, the petitioner retired from service on 31st July, 2003.

4. As per the counter affidavit filed by the respondent, they had denied the allegations of bias and arbitrariness. It was stated that various complaints of the petitioner had been dealt with and the same were even communicated to the petitioner. In the counter affidavit, it is, inter alia, stated as under:

8. Col D.P. Singh (then Lt Col) preferred a statutory complaint on 26-11- 2002 addressed to Secy (DPandS) and the Competent Authority directed the setting aside of the ACR for the period 01 April 95 to 17 Oct 1995 purely on technical grounds and directed that the petitioner be considered for de novo promotion by the QASB consequent to exclusion of his CR for the period 1st April 1995 to 17 October 1995.

9. The Review QASB i.e., the 1(2003) QASB held on 20 February 2003 reassessed the petitioner for promotion as part of Review 1(97), 3(97), 1(98), QASBs, and graded him 'R' (Unfit for promotion at present). In the review of the 3(2000) QASB the officer was graded as 'B' (Fit for promotion in his turn). The seniority of Lt Col D.P. Singh was notionally fixed in the rank of Colonel with effect from 07 Dec 2000 above IC-31270 Lt Col SC Aggarwal, Engrs, as per the seniority list available to the 3(2000) QASB.

10. The applicant having not been found fit for promotion to the rank of Col. In the 1(97), 3(97) and 1(98) QASB the following officers who were junior to him in the rank of Lt. Col have gained seniority, and as a consequence have become senior to him as Colonel:

i) IC-29757 Lt Col KR Singh

ii) IC-30105 Lt Col VA Bhat

iii) IC-31306 Lt Col MS Prakash

iv) IC-36520 Lt Col A S Bhatti

v) IC-26623 Lt Col S.K. Markenday

vi) IC-33609 Lt Col GPK Murthy

11. 1(2003) QASB considered the applicant along with other Colonels for promotion to the rank of Brigadier for the vacancies falling during the year 2003-04. Uptill now two promotions to the post of Brig have been made. Col VA Bhat and Col MS Prakash, who figure above the applicant in the seniority of Col, have been promoted so far. The next vacancy is the grade of Brig falls on 31.12.2003, whereas the applicant retires on 31.07.2003.

5. The counsel for the petitioner while relying upon the judgment of a Division Bench of this Court in the case of Nb. Sub. (MT) Umesh Kumar Tyagi v. Union of India 2004 (2) SCT 210 argued that the action of the respondents is arbitrary and the ACRs of the petitioner having been recorded with bias mind and in violation of the rules, cannot be considered to deny promotion to the petitioner.

6. On the other hand, the learned Counsel appearing for the respondents while relying upon the judgments of the Supreme Court in the cases of Dalpat Abasaheb Solunke and Ors. v. Dr. B.S. Mahajan and Ors. and Union of India and Anr. v. Samar Singh and Ors. 1996(7) Scale 460, contended that the relative merit of candidates who have been selected is beyond the scope of judicial review by the High Court and also that where a Board or a body is responsible for selection, the plea of bias can hardly have any application.

7. On the previous occasions, having heard the learned Counsel for the parties at some length, we had directed the respondents to produce the records. The records were produced before us and from the records which have been produced, it is clear that the criteria for selection to the post of acting rank of Colonel was decided by the authorities not only at the initial stage but even at the review stage as well. The criteria for review was that a person should have 8 'Very Good'/'Above Average' and 2 'High Average'/'Good' reports for considering him for promotion to the next higher rank. The minutes of the Board have been produced before us which show that the criteria adopted by the Committee was uniformally applied to the candidates considered at the relevant time. The case of the petitioner was considered on both occasions i.e. prior and after passing of the order dated 26.12.2002 by the Government. The government had directed that the petitioner be considered de novo which meant that the petitioner should be considered as if he was being considered afresh on the basis of and in accordance with the criteria provided in the year 1997. From the records produced before us, it is also clear that the petitioner was considered de novo and was rightly found unfit as on the dates of consideration i.e. in the year 2000 as well as in the year 1997 (de novo). The petitioner did not satisfy the criteria prescribed as the petitioner had 7 'very good'/8 point entires and he fell short by one very good entry. This has been done by the Board after following the order of the Central Government and not considering the ACR for 1994-95 which had been set aside and even after deletion of the said ACR, the petitioner could not make the grade.

8. As far as the judgment relied upon by the petitioner in the case of Umesh Kumar Tyagi (supra ) is concerned, it has no application to the present case. The facts of that case were totally different. In that case, an ACR had been recorded by an officer who had not observed the petitioner for the mandatory period of 90 days and that ACR was not to be considered and the respondents were to consider that person after the said ACR was treated to have been set aside. In the present case, the Board had already considered the petitioner without taking into consideration the ACR of the petitioner for the year 1994-95.

9. We are unable to accept the contention of the petitioner that the rejection by the Board is arbitrary or is a result of bias. Having perused the records, we are of the view that no injustice has been done to the petitioner.

10. Consequently, we find no merit in this writ petition. The same is dismissed while leaving the parties to bear their own costs.