Col. V.M. Mathur vs Union Of India (Uoi) And Anr.
2007 Latest Caselaw 808 Del

ORDER

T.S. Thakur, J.

CM 4611/2005

1. Heard. For the reasons stated in the application, we recall our order dated 13th March, 2007 imposing cost of Rs. 5,000/- upon Lt. Col. B. Sridhar for his failure to comply with the Court order.

WP(C)23692/2005

The petitioner is working as a Colonel in the Army Medical Corps. He was considered for promotion to the next higher rank of Brigadier by Selection Board No. 2 on 9th December, 2002 but not recommended for promotion. Aggrieved, the petitioner made a statutory representation dated 12th April, 2003 to the Central Government inter alia complaining that the ACR for the year 2001 was vitiated on account of the same having been initiated by an officer holding an equal rank as that of the petitioner and who was a competitor for promotion to the next higher rank. The Central Government granted to the petitioner partial redress in the said representation inasmuch as the grading of 7 marks given by the DGMS for the year 1999 was expunged. Dissatisfied with the partial redressal, the petitioner made a second statutory complaint dated 11th February, 2004 once again agitating the issue regarding the competence of Col. P.L. Gupta to initiate a report on him. That representation was examined by the Central Government but turned down in terms of a communication dated 19th August, 2005. Aggrieved the petitioner has filed the present writ petition challenging the correctness of the said communication and also for a mandamus commanding the respondents to initiate a fresh ACR for the year 2001 or to reconsider his case for promotion to the next higher rank after excluding the said ACR.

2. The respondents have appeared through Sh. Sanjay Katyal and filed a counter affidavit in which they have inter alia stated that even if the evaluation made by Initiating Officer for the year 2001 and that by the FTO are both excluded from consideration on the ground that Col. P.L. Gupta who initiated the said reports was not competent to do so, the petitioner would remain below the cut off for Promotion Board held in December, 2002. According to the respondents, after excluding IO's and FTO's assessment for the year 2001, the over all average of the petitioner for 3 years, namely, 1999, 2000 and 2001 works out to 8.19 as against the cut off of 8.23 at which the last candidate was selected for promotion in December, 2002.

3. We have heard learned Counsel for the parties and perused the record. The profile of the petitioner, as considered by the Promotion Board held on 9th December, 2002 based on the assessments made by the IOs, ROs, SROs as also the FTOs, STOs and HTOs, may be reproduced in a tabular form as under:

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 ACR   IO    RO   SRO  DGMS  AVG   FTO   STO   HTO AVG  Final Avg.
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2001  8.30  8.00   8   8.10  8.10  8.10   8     8.06     8.08 
2000  8.30  8.10   8   8     8.10  8.60   8.20  8.40     8.25 
1999  8.50  -      7   7.75  8.20  -      8     8.10     7.92  
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                OVERALL AVG. 8.08       CUT OFF 8.23
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4. It is evident that the reports initiated by Col. P.L. Gupta against whom the petitioner makes a grievance in the present writ petition had awarded 8.30 marks to the petitioner in his report whereas the RO and the SRO had awarded only 8 marks each to him. Similarly as FTO, Col. P.L. Gupta had awarded 8.10 marks to the petitioner for the year 2001 as against 8.10 marks given by STO and 8 marks awarded by the HTO. The petitioner's grievance now is that Col. P.L. Gupta being one of the persons aspiring for promotion to the next higher rank of Brigadier in Army Medical Corps and holding an equivalent rank to the petitioner was not competent to initiate a report on the petitioner as IO or as FTO for the year 2001. The evaluation of the IO and the FTO therefore needs to be excluded from consideration according to the petitioner. It was further contended by learned Counsel for the petitioner that since the evaluation by the first Reviewing Officer and the Second Reviewing Officer are also to a great extent influenced by the evaluation of the IO, the entire report for 2001 would be liable to be excluded from consideration. The petitioner's case could then, according to the learned Counsel, be considered by reference to a third report essential for such consideration either previous to the year 1999 or subsequent to the year 2001.

5. On behalf of the respondents, it was on the other hand submitted that even if the evaluation of the IO and the FTO was excluded from consideration as suggested by the petitioner for the reason that Col. P.L. Gupta was holding an equivalent rank and was himself aspiring for promotion to the next higher rank, the evaluation of the other officers involved in the process, namely, the first Reviewing Officer and the Second Reviewing Officer could not be obliterated from or excluded from consideration. It was submitted that while the first Reviewing Officer was under the Rules then prevalent required to assess the petitioner by reference to 20 different parameters, the Second Reviewing Officer also had to give an overall box grading on the basis of his own assessment of the officer's capacity, potential and merit. These assessments could not therefore be excluded from consideration for purposes of promotion to the next higher rank simply because there was some error or legal infirmity in the assessment made by the Initiating Officer or the Highest Technical Officer. It was further contended that if the entire report for the year 2001 was excluded from consideration, the petitioner would not have been eligible for consideration by the Promotion Board held in December, 2002 as he then would not have the minimum three ACRs in the rank of a colonel. Having been promoted to the rank of a Colonel only in the year 1999, the petitioner's report for the year 1998 earned in the lower rank of a Lieutenant Colonel could not be taken into consideration as suggested by him nor could the report of a subsequent year, i.e. 2003 be taken into consideration in a Selection Board held in December, 2002.

6. We have given our anxious consideration to the submissions made at the bar and perused the record. The position that emerges from exclusion of the report initiated by Col. P.L. Gupta as IO and as FTO may be summarised as under:

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 ACR   IO    RO   SRO  DGMS  AVG   FTO    STO   HTO AVG  Final Avg.
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2001  8.00   8     -   8.10  8.10   8     8.06   8.08      8.25
2000  8.30   8.10  8   8     8.10   8.60  8.20   -         8.40 
1999  8.50   -     -   7.75  8.20   -     8      8.10      7.92  
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          OVERALL AVG. 8.08      CUT OFF  8.23
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7. It is evident from the above that even if the reports given by the IO and the FTO against which the petitioner makes a grievance are excluded, the petitioner's final average remains much below the cut off of 8.23, no matter the petitioner's merit assessment marginally improves from 8.08 to 8.19. The question however is whether the report for the year 2001 should be excluded in its entirety on the ground that the first Reviewing Officer and the Second Reviewing Officer and so also the Second Technical Officer and the Highest Technical Officer are guided by the evaluation of the Initiating Officer and the FTO. There is however nothing on record to suggest that the Reviewing Officers whether technical or otherwise are in any way influenced by the evaluation of the initiating officers. It is possible that a Reviewing Officer may marginally lower the evaluation of an Initiating Officer but it is equally true that the reviewing officer may give a higher grading to an officer than what has been done by the IO. That is precisely what has happened in the instant case also. A perusal of the record which was produced before us by learned Counsel for the respondents would show that the first Reviewing Officer's evaluation at least in respect of three parameters made relevant under the Rules and instructions graded the petitioner higher than the grading given to him by the Initiating Officer. So also there are 8 other parameters in which the first Reviewing Officer has given him the same grading as the IO. In the case of 4 other parameters, the RO has given to the petitioner a grading lower than the IO for the year 2001. Suffice it to say that the evaluation of the first Reviewing Officer by reference to the relevant parameters depicts an independent assessment and evaluation of the merit of the petitioner by the first Reviewing Officer not necessarily matching the assessment and evaluation of the IO. It is therefore difficult to see how the exclusion or expunging of the evaluation of the IO must necessarily result in exclusion or expunging of the evaluation of the first or the Second Reviewing Officer also especially when the said evaluations are based on an independent assessment of the merit of the petitioner. Such being the position, we have no hesitation in rejecting the submission made on behalf of the petitioner that the entire report for the year 2001 ought to be excluded from consideration. Reliance placed by learned Counsel for the petitioner upon the decision of the Supreme Court in S.P. Kapoor v. State of Himachal Pradesh and Ors. AIR 1981 SC 2181 is of no assistance to the petitioner. That was not a case where the Court was considering evaluation in the context of the method followed in the Armed Forces. The observation made by their lordships that the revision of a report by a higher authority would not save the report from the vice of illegality where the person who had made the report was not otherwise competent to do so may not apply to a situation where the evaluation is not a revision as was the position in the said case but an independent evaluation of the merit of the candidate as is the position in the instant case.

8. That apart, the exclusion of the entire report from consideration would render the petitioner wholly ineligible for consideration in the board in 2002 keeping in view the common ground that only such officers in the rank of Colonel as have already earned three ACRs could be considered for promotion to the next higher rank. If the report for the year 2001 is excluded, the petitioner would be left with only two previous reports for the year 1999 and 2000 which were insufficient for his consideration for promotion. Even assuming that the petitioner could be considered by reference to his report earned as a Lieutenant Colonel for the year 1998, the position would not improve. That is because the petitioner's final grading for the year 1998 is 8.03 which would further lower the over all grading vis-a-vis the cut off of 8.23 for the year 2002. We therefore see no reason to interfere with the view taken by the Government or to issue any direction for the promotion of the petitioner. This writ petition fails and is hereby dismissed but in the circumstances without any order as to costs.