Lt. Col. Suresh Chand vs Union Of India & Ors.
2008 Latest Caselaw 1129 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        WP (C) No.3702/2003


%                                   Date of decision: 24.07.2008

LT. COL. SURESH CHAND                              ...PETITIONER
                    Through:          Major K. Ramesh, Advocate with
                                      Petitioner in person.


                                  Versus


UNION OF INDIA & ORS.                             ...RESPONDENTS
                    Through:          Mr. A.K. Bhardwaj, Advocate with
                                      Major S.S. Pandey for the
                                      Respondents.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?           No

2.        To be referred to Reporter or not?            No

3.        Whether the judgment should be                No
          reported in the Digest?

SANJAY KISHAN KAUL, J. (Oral)

1. The petitioner is aggrieved by his non-selection as a

Colonel despite three boards held and has filed the

present Writ Petition praying for quashing of the ACR for

the period October, 1993 to May, 1994 which according to

the petitioner has come in his way of promotion. The

petitioner alleges that the ACR for this period was initiated

with malice towards petitioner.

2. In order to satisfy ourselves, we have called for the ACRs

of the petitioner and the proceeding of the Selection

Board. We have seen the profile of the petitioner. Certain

aspects which emerged from the same are required to be

noted.

3. The relevant period under consideration related to the

ACRs of October, 1993 to July, 2002. Undoubtedly, the

only ACR which is not very high is for the period October,

1993 to May 1994 which the petitioner seeks to challenge.

The previous ACRs have been perused to see whether the

impugned ACR was an abberassion in the overall profile of

the petitioner. We do not find the same as an

abberassions when compared to his previous records.

Interestingly, the immediately previous ACR shows that

both the RO and the SRO have given the same grading to

the petitioner.

4. The improvement in the performance of the petitioner

occurs from the ACR of June 1995 to May 1996 and

thereafter it is consistently the same.

5. An important aspect to be noted in respect of the

impugned ACR is that a show cause notice was issued

pursuant to a court of inquiry for an incident relating to

the said period but a non-recordable censure was issued.

Thus the profile of the officer for the impugned year was

not affected and, in fact, was the same as the previous

year.

6. The proceedings of the Selection Board show that there is

a reprimand which has entered in the red ink. This

reprimand is dated 19.03.1997. The reprimand did not

affect the ACRs for that year of the petitioner but is an

aspect which appears to have been naturally considered

by the Selection Board.

7. We have even seen the profile of the officers who were

selected. It is obvious that the two factors which have

come in the way of the petitioner are the impugned ACR

and the reprimand recorded in the red ink. No legal

proceedings were initiated to challenge the reprimand.

8. We cannot lose sight of the fact that it is not the function

of this Court to sit as an appellate body over the Board but

we wanted to satisfy ourselves that there is no procedural

infirmity and there is no element of bias or mala fide. We

do not find any of the two elements which would require

us to interfere under Article 226 of the Constitution of

India.

9. Learned counsel for the respondent has drawn our

attention to a decision in Civil Appeal No. 250/2008

titled as Surinder Shukla Versus Union of India &

Ors. decided on 9.1.2008 where it is observed in para 9 as

under:

"The post of 'Colonel' is a selection post. A large number of factors are required to be taken into consideration therefor, viz:

(i) Annual Confidential Reports profile of the officer in the relevant ranks.

      (ii)         War Reports.
      (iii)        Battle Awards and Honours earned by the
                   officers during his service.
      (iv)         Professional courses done by the officer, his

performance during the course and grading obtained therein.

(v) Special Achievements and weaknesses.

(vi) Appointments held by the officers including criteria Command/ staff appointments.

(vii) Disciplinary background and punishments.

(viii) Employability and potential including consistent recommendations for promotion to the next higher rank.

10. The aforesaid would thus show that any punishment (like

of reprimand in the case of the petitioner) would be

considered for selection to the post of Colonel.

11. The Selection Board which examined the case of the

petitioner for promotion was constituted of senior officers.

We are informed that the Selection Board is not even

aware of the identity of the candidates considered by

them as the information relating to the candidates for

consideration for selection is contained in the member

data sheet but the identity of the officer is not disclosed.

There is no malafide alleged against the members of the

Selection Board. It is informed from the record that four of

the five members of the Board did not favour

empanelment of the petitioner.

12. The Selection Board on consideration of the comparative

merit did not recommend the petitioner for promotion to

the rank of Colonel. It is not the function of this Court in

exercise of judicial review to, once again, go into the merit

of this decision. There is no irrelevant aspect which has

been taken into consideration. The decision making

process is not tainted.

13. Dismissed.

SANJAY KISHAN KAUL, J.

JULY 24, 2008                             MOOL CHAND GARG, J.
mv