Lt. Cdr. K. Kochhar vs Union Of India And Anr.
2008 Latest Caselaw 1674 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+     WP(C)2661/2003

%                            Reserved on     : 4th September, 2008
                             Date of decision: 18th September, 2008


      LT. CDR. K. KOCHHAR               ...PETITIONER
                      Through:     Major K. Ramesh, Advocate

                                Versus

      UNION OF INDIA AND ANR.         ...RESPONDENTS
                    Through: Mr.A.K.Bhardwaj, Advocate

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 reported in Digest ?         No


MOOL CHAND GARG, J.

1. The petitioner was posted as a Lt. Commander in the Indian

Navy at the time of filing of this writ petition. He was aggrieved by

his non-promotion consecutively by the three promotion Boards, on

the ground, that his ICRs/ACR for various period had not been

written properly. He was also aggrieved on account of rejection of

the representation made against his non-promotion vide order

dated 31st May, 2001. He prayed for quashing of the aforesaid order

and holding of a fresh selection board for considering him for

promotion to the rank of Commander after setting aside his

ICRs/ACR.

2. The petitioner claims that he is one of the excellent officers in

the Indian Navy with proven track record. It is stated that the

petitioner on successful passing out from the Naval Academy was

granted permanent commission in Indian Navy on 1st January, 1986

and was considered for the prestigious „Sword of Honour‟ amongst

the first five cadets in overall merit and also won the coveted

Western Fleet, Astro Navigation prize and has been a highly

motivated officer having taken part in operation Brasstacks,

operation Pawan and operation Vijay. It is the grievance of the

petitioner that despite being a true soldier, he was denied his dues

right from 1991 to 2002 by his non-promotion to the rank of

Commander and was also denied the prestigious Staff Course whose

criteria the petitioner meets fully. In this writ petition, besides

challenging the order dated 31st May, 2001, he has also assailed the

Interim Confidential Report (for short "ICR") from 11th February,

1996 to 18th September, 1996, ICR from 19th September, 1996 to

31st May, 1997, ICR from 1st June, 1997 to 31st October, 1997, ICR

from 1st November, 1997 to 30th April, 1998 and ACR from 1st May,

1998 to 21st October, 1998.

3. The petitioner before filing this petition had also filed a

complaint in terms of Rules 235 and 236 of Navy Regulations Part II,

which was rejected. This necessitated the petitioner to address his

complaint to the next superior authority in accordance with Rule

239 of the Navy Regulations Part II requesting for forwarding his

complaint to the next superior authority and to the Chief of the

Naval Staff to be dealt with in accordance with sub regulations (1)

and (2) of the said Rule. The Division Bench which dealt with the

matter on 4th March, 2005 gave directions to the Navy Authorities to

dispose of the complaints filed within the time fixed and disposed of

the writ petition. However, later on it transpired that before passing

of the order dated 4th March, 2005, the statutory complaint of the

petitioner had been disposed of and therefore, on an application

filed by the petitioner, the petition was revived.

4. The relevant portion of the order dated 23rd March, 2004

rejecting the statutory complaint is reproduced hereunder:

"ORDER

WHEREAS, Lt. Cdr. K. Kochhar (02955R) has submitted a statutory representation dated 29.1.2003 pleading expunction and review of his CRs as under:-

(i) The reports for the period 10.2.96 to 18.9.96 and from 19.9.96 to 31.5.97, rendered by very senior officers, be set aside, being technically invalid as he was attached to the Western Fleet staff during this period without defined duties, thus, depriving him of opportunity to show his potential.

(ii) Report for the period 1.6.97 to 31.10.97 and 1.11.97 to 30.4.98 be set aside due to lack of interaction with his Reviewing Officer and delay in reporting.

(iii) Report for the period 1.5.98 to 20.10.98 be moderated by PARB.

(iv) His all reports in the rank of Lt Cdr be re-PARBed and a fresh Selection Board be ordered to consider him for promotion to the rank of Cdr.

AND WHEREAS, this Ministry has carefully considered the officer's representation and has found that as regards Point (I) raised by the officer, he had got CRs keeping in view the duties assigned to him in view of his being low in medical category. As these reports matched with his past profile, the question of having deprived him an opportunity to show his potential does not arise. As regards his contention that during the period June-October, 97 he did not have interaction with his RO, it is clarified that CR for this period was rendered not form the fleet staff but from WATT (MB) and, therefore, the RO was not Fleet Commander but the Chief of the Staff who rightly endorsed the CR as RO. Delay

in rendering of the ACR does not constitute an infirmity. The question of setting aside the CRs, as desired by the officer does not arise as these reports were already PARBed and re- PARBed and suitable relief was given to him wherever necessary. Therefore, no injustice has been done to the officer.

NOW THERFORE, the representation submitted by Lt Cdr K.Kochhar is rejected, being devoid of merit.

By order etc.

Under Secretary to the Government of India"

5. One more fact which has come on record in the synopsis filed

by the respondents is that the petitioner had been promoted to the

rank of Commander with effect from 16th December, 2004,

consequent to the implementation of the AVSC recommendation. In

fact, the petitioner was also superannuated, yet he has pressed the

writ petition on merits.

6. In a nutshell, it is the case of the petitioner that the five

ICRs/ACR, as aforesaid, suffered from material infirmities and needs

to be set aside and as a consequence thereof the petitioner is

required to be considered by a Review Promotion Board. Once he is

promoted, he would also be entitled to all consequential benefits.

7. The petitioner has detailed the infirmities in the aforesaid

ICRS/ACR in Para 9 of the writ petition, which are as under:

(i) About the ICR (from 11th February, 1996 to 18th

September, 1996) , it is the case of the petitioner that he

was never given any appointment with Rear Admiral De'

Silva who had given an arbitrary and an irrational report in

the capacity of Initiating Officer (for short "IO") as well as

Reviewing Officer (for short "RO") without having fair

assessment of the petitioner's performance. It is also

submitted that the said ICR is contrary to para 27(e) of the

Naval Regulations. It is also submitted, that the petitioner

was being assessed for a seagoing designation of FNBCDO

i.e. Fleet Nuclear Biological Chemical Damage Control

Officer, whereas being a Low Medical Category of S3A2

Unfit for sea service and practically away from his IO he

was not even going for sea combat duties at all. The

petitioner should have been posted either to a designation

in a Shore Establishment or Fleet HQ and assessed therein

in a distinct appointment for a fair appraisal.

(ii) Regarding ICR (from 19th September, 1996 to 31st

May, 1997), the petitioner claimed that he was away on

official temporary duties for 176 days and even the IO was

absent for 32 days and thus there was only 42 days

remaining left when the petitioner was on duty whereas

the mandatory period was 90 days of physical service and,

therefore, according to the petitioner, there was hardly any

occasion for the IO to judge the performance of the

petitioner and as such, there was no occasion to make

assessment of the petitioner's performance only for 42

days particularly when mandatory period prescribed for

making assessment was 90 days.

(iii) While challenging the third ICR commencing from 1st

June, 1997 to 31st October, 1997, the petitioner urged that

it was a tainted report as the IO Capt. P.R. Choudhary did

not have any interaction with his RO, Rear Admiral Y.

Prasad and, therefore, in the absence of these two

mandatory requirements, the RO instead of making

assessment of the petitioner's performance ought to have

endorsed remarks "inadequate knowledge".

(iv) Regarding the fourth ICR (from 1st November, 1997

to 30th April, 1998) it has been alleged that this report had

been initiated in 2001 i.e. almost three years after it was

due and after the petitioner had been considered by the

promotion board, therefore, according to the petitioner,

this report was only an eye wash and not based on the

actual performance of the petitioner.

(v) Regarding the fifth ACR (i.e. from 1st May, 1998 to 21st

October, 1998), the allegation of bias has been levelled against

the IO. In this regard, it is also the case of the petitioner that

during the aforesaid period the petitioner was on the strength

of Head Quarter Fleet Office. The immediate superior of the

petitioner, namely, Captain S. Chakravorty was apparently

biased against him being a close relative (brother-in-law) of

Captain S. Neogi, the erstwhile officer in charge of Signal

School against whom the petitioner had represented in the

year 1993. Although the petitioner forwarded a lot of

misgivings to his superiors on this IO's conduct in dealing

with him the important aspect of him not even being

interviewed on joining or any other time or even at the time

of his transfer out which are important considerations for a

strong malice and bias as these Performance Appraisal

Discussion (PAD) had to be conducted in accordance with the

stipulated rules and regulations. The petitioner submits that

lack of PAD's led to a few communication gaps with his

superior officers besides being against the letter and spirit of

appraisal system. In the light of above two reasons, the

petitioner apprehended that he did not got a confidential

report commensurate to his potentials and outstanding

demonstrated performance and his service profile.

8. Respondents have denied the allegations made by the

petitioner. About the first ICR, it is stated that the respondents that

the petitioner was sent for Long „C‟ course in 1991 but he failed to

clear the course. Subsequently he underwent Nuclear Biological

and Chemical Damage (NBCD) Control Course in 1995. During the

period, the Petitioner performed such duties which were assigned to

him in accordance with his Low Medical Category, and, on the basis

of his performance the petitioner has been assessed in the

impugned CR. The CR form was filled up and submitted by the

petitioner himself to the IO for assessment. Even his primary duties

were also similarly mentioned by him as Fleet NBCD (FNBCD). His

contention that he did not have any fixed designation or charter of

duties is, therefore, incorrect. In the impugned report, his IO has

clearly mentioned that the officer was attached to the Fleet Staff

(Officer) since he was downgraded in medical category. Since he

did not go to sea, he was given the charge as FNBCDO 1 and then 2

for most of the time. The fact that he was assisting the entire Fleet

Staff in general and the Fleet Nuclear Biological Chemical Defence

and Damage Control Officer (FNBCDO) in particular in the

performance of his tasks, has been admitted by the petitioner

himself. In fact, even the comments made by the RO are similar to

what have been made by the IO. Even otherwise the petitioner had

not challenged the CR in his first complaint dated 12th March, 2001

and, therefore, it is evident that the challenge to the first ICR is an

afterthought.

9. Regarding the second ICR which is for the period 19th

September, 1996 to 31st May, 1997, it has been submitted by them

that there is no provision for discounting periods of leave from the

duration of CR. Further, the petitioner himself has submitted CR for

this period to his IO for his assessment. It is evident that the

petitioner, as an afterthought, has requested to set aside the same

CR which he himself has submitted for initiation. The impugned CR

is technically valid and there is no ground to expunge the same. It

is submitted that the very fact that the petitioner filled up the CR

himself and did not request for non-initiation report during the

period shows that he was aware that he had completed 90 days

period.

10. Dealing with the allegation of the petitioner qua the third ICR,

the respondents have submitted, that prior to 1st March, 1999,

although a minimum period of three months service was necessary

under the IO, no such period was prescribed for the RO. Since the

impugned report relates to the period from June, 1997 to October,

1997, there is no technical infirmity in this regard. A minimum

period of three months for RO/SRO has, however, been prescribed in

1999 vide Naval Headquarters letter No. RS/1250/98 dated 19th

February, 1999 made effective from 1st March, 1999. The petitioner

has been observed for the entire period of the report by his IO. It is

also submitted that the gradings awarded by the RO are better than

those awarded by the IO. More so, petitioner has not challenged the

CR in his first complaint dated 12th March, 2001 and, therefore, it is

evident that the challenge to this CR is an afterthought.

11. In respect of the fourth ICR pertaining to the period 01

November, 1997 to 30th April, 1998, the respondents submitted that

the petitioner‟s impugned CR was delayed and it was not available

in 2000 when he was considered first time by the Promotion Board

(PB 3/2000). However, as per the practice followed in all cases,

petitioner‟s all available rank reports were considered by the Board

along with those of his peers. The petitioner was not selected

primarily due to his being very low in the merit list (last officer

selected for promotion was at merit position - 84 (threshold) while

the position of the petitioner was 111. It has been stated that in

2001 and 2002, the impugned report, along with other reports were

considered by PB3/01 and PB3/02 but on both the occasions the

petitioner could not be selected as he was found well below the

respective threshold. It is also submitted, that even if the impugned

report is taken into account for PB 3/2000, the petitioner would have

remained well below the selection threshold.

12. Regarding the fifth ACR i.e. for the period (1st May, 1998 to

21st October, 1998), the respondents have stated that the

petitioner‟s apprehension are incorrect inasmuch as, the grades are

in tandem with his overall profile in the rank, which was considered

by the Promotion Boards on three occasions. The impugned CR is,

therefore, well within the petitioner‟s normal CR profile. No element

of bias, as alleged by the petitioner, is visible anywhere in the

remarks column of his IO. In fact, the IO has been quite

appreciative in his comments on the petitioner‟s performance.

13. Dealing with the highlights mentioned by the petitioner

about his achievements, the respondents have denied the stand

of the petitioner and have submitted that it is not entirely correct

for the petitioner to hold in this petition that he qualified training

courses mostly with distinction. He stood 26th out of 45 as a

cadet in the Naval Academy in which he was graded „Average‟ in

all respects and it was remarked in his report that he needed to

show more initiative. In his Training ship, the petitioner‟s

performance was judged to be „below average all throughout‟.

He subsequently failed in Seamanship in the final examination.

In his Midshipman‟s course the petitioner was judged to have

officer like qualifications (OLQ) of only 70 per cent. He was sent

for Long „C‟ course in 1991 but failed and had to be withdrawn.

Subsequently, he underwent Nuclear Biological and Chemical

Damage (NBCD) Control course in 1995. His subsequent

appointments have been in accordance with his specialization. It

is submitted for the consideration of this Court that the career of

an officer with such failures in training courses cannot be

expected to soar very far. Insofar as petitioner‟s achievements

during his tenure as Lt Cdr rank is concerned, it is submitted that

he, like other officers, has been assessed by his respective

IOs/ROs/SROs during the period and his overall profile along with

those of his peers was considered by three Promotion Boards

held in 2000, 2001, 2002. However, in all the three looks, the

petitioner could not meet the respective thresholds due to his

lower inter se merit and, hence, was not selected for the rank of

Commander on all the three occasions.

14. It is also the case of the respondents that the structure of

the Armed Forces is steeply pyramidal and only 60% (Approx.) of

Lt Cdrs can be promoted to the rank of Commander (Pre-AVSC

recommendations). As a result, there are many officers who

cannot be promoted to higher rank due to lack of vacancies. In

order to make sure that no deserving officer is held back, the

promotion system allows for each officer to be considered by

three Promotion Boards but failed to secure promotion because

each time he was considered for promotion, other officers were

found to be more deserving than the petitioner. He has not been

able to reconcile to the fact that he missed out promotion in just

and fair competition, like many other officers - some of whom

possessed service profile better than that of petitioner. As a

result, he has been representing to various authorities by picking

up certain CRs out of those considered by the Promotion Board,

with the request to set them aside on one ground or the other.

His representations have been examined both by the Naval HQ

and the Ministry of Defence in the past, and rejected being

devoid of merit. Now he has submitted this petition to the High

Court for setting aside 5 out of 11 CRs which were considered by

the Promotion Board, on invalid grounds. The petitioner could

not be selected for the higher rank solely because of his lower

position in the respective merit lists coupled with limited number

of vacancies in the higher rank and that the petitioner‟s request

to set aside 5 out of 11 CRs is devoid of merit.

15. We have considered the rival submissions made by the

parties and have also perused the written submissions filed by

them along with the original ICRs/ACR and the record of the three

Promotion Boards for the purpose of satisfying ourselves.

16. Having gone through the submissions made by the parties

and the records produced before us, we are satisfied that the

apprehensions in the mind of the petitioner have no legs to

stand. While considering him for promotion, the three Promotion

Boards have taken into consideration the overall profile of the

petitioner as well as the confidential reports as given to him by

his superior officers which shows that there is no difference

between the gradings given to the petitioner by his IO and the

RO, which are „above average‟. Except for the first ICR, that is,

for the period 11th February, 1996 to 18th September, 1996, the

grading of the petitioner is „above average‟. There is no

difference of opinion between the IO and the RO. Rather on

several occasions the RO‟s gradings are better than that of the

IO. Same is the position of the pen picture. Even regarding the

last ACR assailed by the petitioner alleging bias, we find that the

grading given to him by the RO as well as by the IO is „above

average‟ and is in accordance with his overall profile. Insofar as

the first ICR impugned by the petitioner is concerned, the same

was given at the time when, admittedly, the petitioner was in a

low medical category and was posted in Fleet NBCD (FNBCD)

which fact has been written by the petitioner himself while filling

the CR forms. Here also, the rating given by the RO is similar to

that given by the IO. The CR form had been signed by the

petitioner.

17. Perusal of the comparative charts prepared by the

respondents on the basis of the record of the Selection Board also

supports the stand of the respondents that it is neither on

account of any bias nor on account of lesser gradings given in the

ICRs/ACR by the IO or the RO that the petitioner could not be

selected but in fact his non-selection is on account of his ranking,

which is much lower than the last selected candidate. Those

charts for the sake of reference is reproduced hereunder:

"CONFIDENTIAL

Position of Lt. Cdr. K. Kochar (02955-R) in

Promotion Boards-2000, 2001 and 2002

(WP(C) No. 2661/2003)

PROMOTION BOARD - 2000

Rank Reports Grading Selection Threshold Petitioner's Position Remarks considered by s the Board

ACR Order of ACR Order of Average Merit Average Merit (A/A) (OOM) (A/A) (OOM)

Feb 96-Sep 96 73 72 Excluding CR from Nov 97- Apr 98 which was Oct 96-May97 72 72 not available at the time Jun97-Oct 97 of PB 2000 72 72

Dec98-May99 73 74

May99-Oct 99 73 73

Position after inclusion of CR from Nov 97 - Apr 98

Feb96-Sep96 73 72 It may kindly be noted that although the Oct96-May97 72 73 petitioner's position in Jun97-Oct 97 the merit list improved 72 73 from111 to 87 after Nov97-Apr98 74 74 inclusion of CR from Nov 97-Apr 98, he still May98-Oct98 73 73 remains below the Dec98-May99 14.613 84 14.600 87 threshold OOM which is 73 74

84. There are 08 more May99-Oct99 73 73 officers with the same OOM (87) who have also not been selected due to remaining below threshold

CONFIDENTIAL

Promotion Boards-2001

Rank Reports Gradings Yearly Gradings Selection Threshold Petitioner's Position considered by the Board

ACR Order of ACR Order of Average Merit Average Merit (A/A) (OOM) (A/A) (OOM)

Feb 96- Sep 96 73 72 7.3 7.2

Oct 96- May97 72 73 7.2 7.3

Jun97- Oct 97 72 73

May98- Oct98 73 73

Dec98- May 99 73 74 7.3 7.4

May99- Oct99 73 73

Nov99- Jun00 73 73 7.4 7.4

Jul00- Oct00 74 74

7.320 7.340

CONFIDENTIAL

Promotion Boards-2002

Rank Reports Gradings Yearly Gradings Selection Threshold Petitioner's Position considered by the Board

ACR Order of ACR Order of Average Merit Average Merit (A/A) (OOM) (A/A) (OOM)

Feb 96- Sep 96 73 72 7.3 7.2

Oct 96- May97 72 73 7.2 7.3

Jun97- Oct 97 72 73

May98- Oct98 73 73

Dec98- May 99 73 74 7.3 7.35

May99- Oct99 73 73

Nov99- Jun00 73 73 7.33 7.33

Jul 00- Oct00 74 74

Nov00-Jun01 75 75 7.5 7.5

7.330 7.338

18. The respondents have even given the position of the

petitioner after the inclusion of CR for the period November, 1997

to April, 1998, which was submitted late. Even then the petitioner

does not gain any advantage and cannot be promoted.

19. Thus, taking into consideration all the facts of this case and

having perused the records including the gradings given to the

petitioner by his IO/RO as also the record of the Selection Board,

we find no merit in the case of the petitioner. Hence, the writ

petition is dismissed with no orders as to costs.

MOOL CHAND GARG, J.

September 18, 2008                     SANJAY KISHAN KAUL, J.
dc/mv