Delhi High Court
J.S.Shahi vs Uoi & Ors. on 28 March, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: February 18, 2011
Judgment Delivered on : March 28, 2011
+ W.P.(C) 831/2008
J.S.SHAHI ..... Petitioner
Through: Mr.Anil Gautam, Advocate
versus
UOI & ORS. .....Respondents
Through: Ms.Preeti Dalal, Advocate with
Tanu Goswami, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. The writ petitioner who has been superseded for
promotion at the DPC held on 14.3.2007 has questioned his
supersession alleging that the adverse remark in the ACR for
the period 1.4.2003 to 31.3.2004, which was considered by the
DPC and is responsible for petitioner‟s supersession be
quashed and a direction be issued to the respondents to
convene a Review DPC to re-consider the candidature of the
petitioner by ignoring the adverse remark entered in the ACR.
The adverse remarks are as under:-
"A young and smart officer. Needs more exposure
to border duties. Should inculcate the value of
physical fitness and mental robustness to lead the
men with professional competence."
2. It may be noted that for the year in question the
Initiating Officer graded the petitioner „Very Good‟ which was
scaled down to „Average‟ by the Reviewing Officer and which
downgrading was accepted by the Accepting Officer.
3. We may highlight at the outset that the petitioner
has not questioned his ACR grading being „Average‟ as finally
recorded. He only questions the adverse remarks entered in
the ACR.
4. As per the petitioner his performance in the
previous years as also the subsequent years was always either
„Good‟ or „Very Good‟ and never was any adverse comment or
remark communicated to him. The petitioner asserts being a
good sportsperson having earned awards in competitive
tournaments where members of the Central Para Military
Forces have participated.
5. The petitioner asserts that the adverse remarks are
the probable result of his Reviewing Officer being annoyed
with the fact that the team of the frontier concerned headed
by the petitioner stood 6th in position in the Inter Frontier
Obstacle Competition. These assertions are to be found in
para 22 of the writ petition.
6. The petitioner claims in the alternative that the
remarks are not adverse and have been treated as advisory
evidenced by the fact that he was granted the senior time
scale on 16.11.2005 and urges that had the remark been
treated as adverse, petitioner could not have earned the
senior time scale. Thus petitioner claims that the „DPC‟ which
met on 14.3.2007 could not have considered the remark in
question.
7. It is not in dispute that the adverse remark was
communicated to the petitioner and he submitted a
representation there against, which representation was
rejected vide order dated 5.4.2005.
8. Denying that the adverse remark was occasioned
due to the team headed by the petitioner not performing very
well at an Inter Frontier Competition, it is asserted that the
Reviewing Officer had noted slackness in the mental and the
physical condition of petitioner and had found him wanting in
border duties. It is asserted, in para 7 of the counter affidavit
that petitioner performed border duties by remaining at the
border outpost only from 25.11.2003 to 30.11.2003 and
thereafter from 7.1.2004 till 14.1.2004 and remained at the
battalion headquarters for the remainder period.
9. In the rejoinder filed, the petitioner states that he
remained at the border outpost for 3 months.
10. The adverse remark in question has been penned
on 7.5.2004 and justifying the opinion, in the counter affidavit
filed it is pleaded that what was recorded as an opinion of an
superior officer qua petitioner‟s lack of mental and physical
agility and lack of exposure to border areas, proved to be true
when on 20.6.2004 the petitioner strolled into the border area
in his PT dress without arms and an escort and was dragged by
civilians into Bangladesh and handed over the Bangladesh
Rifles. At a flag meeting held with Bangladesh Rifles‟ Officials,
the petitioner was brought back and the incident had caused
embarrassment.
11. Relevant would it be to note that in the rejoinder
filed the incident has not been denied and the plea taken is
that the date of the incident is beyond the period for which
ACR is recorded and hence could not be accounted for in the
ACR for the period 1.4.2003 - 31.3.2004.
12. Pertaining to the incident dated 20.6.2004, suffice
would it be to state that it is not the case of the respondents
that the adverse remark was the result of the incident in
question. The respondents have highlighted the incident to
bring home the point that much prior to the incident, the
Reviewing Officer had noted callousness in the mental attitude
of the petitioner and his falling physical standards. With
reference to the incident it has simply been highlighted that
the attendant circumstances enwombing the incident establish
the mental callousness of the petitioner who would stroll into a
border area without his arms and without escorts. He would
not even take care to wear his uniform. He would stroll like a
civilian in PT dress. He invited trouble for himself by so acting.
He could not even physically resist civilians dragging him
across the border.
13. Thus, the stand of the petitioner that the incident in
question could not form the basis of the ACR adverse entry is
ex-facie misplaced and suffice would it be to state that rarely
one comes across instances of a behavioral tendency or an
attitudinal deficiency recorded by a superior officer being
subsequently proved to be true through an incident which is a
living proof of the truth.
14. That apart, lack of physical fitness and lack of
mental robustness is a matter of perception and can only be
perceived by the superior officer watching a junior officer and
can never be a subject matter of a judicial debate. Unless
mala-fides are shown against the officer concerned, it would
be difficult for any judge to comment upon the wisdom of the
superior officer. After all, sloppiness is a matter of
observation. Be that as it may, in the instant case, the
respondents have prima facie, objectively proved what stands
recorded by way of the adverse comment in the ACR
concerned.
15. The submission that the petitioner was granted
senior time scale on 16.11.2005 and there from it could be
inferred that the department did not treat the adverse remark
to be adverse but a mere advisory, has been countered by the
respondents by pleading that fitness for being granted senior
time scale is on a different parameter than a promotion. It is
justified that the different parameter of fitness for being
granted senior time scale and for being promoted is premised
on the basis that a senior time scale does not require
responsibilities of a higher post to be discharged and therefore
a lower standard of fitness to be determined.
16. We find merit in the submission urged by the
respondents and would simply highlight that by conveying the
adverse remark to the petitioner informing him that the same
was being treated as adverse and being entered in the service
book and thus seeking a response from the petitioner is proof
enough that the respondent treated the remark to be adverse
and even the petitioner understood the same to be adverse.
17. It is pleaded by the petitioner that where the
Reviewing Officer records anything which is contrary to the
opinion of the Initiating Officer, reasons have to be recorded.
18. Now, as we have already opined herein above, qua
mental slackness and physical sloppiness, except for so
observing, it would be very difficult for any officer to record
objective facts. But it is not that the Reviewing Officer has not
justified his remarks for the reason we find that the ACRs of
the petitioner have been written on the prescribed proformas
and pertaining to Part IV of the proforma various parameters
have been listed. 20 parameters have been listed till the year
2006 - 07 and for the years 2007 - 08 and the year 2008 - 09,
6 more. Marks have to be awarded between 1 to 5. If the
appraisee did not meet the requisite qualification, 1 mark has
to be awarded. If the appraisee just meets the quality, 2
marks have to be awarded. If the appraisee fairly meets the
quality, 3 marks have to be awarded. If the appraisee fully
meets the quality, 4 marks have to be awarded and if the
appraisee more than fully meets the quality, 5 marks have to
be awarded.
19. The petitioner has been appraised, post completion
of his training, for the periods 29.11.2001 till 31.3.2002;
1.4.2002 till 31.3.2003; 1.4.2003 till 31.3.2004; 1.4.2004 till
31.3.2005; 1.4.2005 till 31.3.2006; 1.4.2006 till 31.3.2007;
1.4.2007 till 31.3.2008 and 11.10.2008 till 31.3.2009.
20. The Initiating Officer and the Reviewing Officer
have separately awarded the marks, and in a tabular form, the
same would be as under:-
S. QUALITIES IO RO
No.
1. Appearance and bearing (2001-02): 5 5
(2002-03): 5 5
(2003-04): 5 4
(2004-05): 4 4
(2005-06): 4 4
(2006-07): 5 -
(2007-08): 4 4
(2008-09): 4 4
2. Temperature in crisis (2001-02): 4 4
(2002-03): 4 4
(2003-04): 4 3
(2004-05): 4 4
(2005-06): 4 4
(2006-07): 5 -
(2007-08): - -
(2008-09): - -
3. Physical fitness and
stamina (2001-02): 4 4
(2002-03): 5 4
(2003-04): 4 2
(2004-05): 5 4
(2005-06): 3 4
(2006-07): 5 -
(2007-08): 5 5
(2008-09): 5 5
4. Courage both Physical and
Moral (2001-02): 4 4
(2002-03): 4 5
(2003-04): 4 2
(2004-05): 5 4
(2005-06): 4 4
(2006-07): 5 -
(2007-08): 3 3
(2008-09): 5 5
5. Initiative, drive and
determination (2001-02): 3 4
(2002-03): 4 4
(2003-04): 4 3
(2004-05): 5 4
(2005-06): 5 4
(2006-07): 5 -
(2007-08): 4 4
(2008-09): 4 4
6. Dedication to the organization
and service and selflessness
determination (2001-02): 5 5
(2002-03): 4 4
(2003-04): 4 3
(2004-05): 5 4
(2005-06): 4 4
(2006-07): 5 -
(2007-08): 4 4
(2008-09): 4 4
7. Sobriety and maturity (2001-02): 4 4
(2002-03): 5 4
(2003-04): 3 2
(2004-05): 3 3
(2005-06): 4 4
(2006-07): 4 -
(2007-08): 3 3
(2008-09): 4 4
8. Discipline (2001-02): 4 4
(2002-03): 5 5
(2003-04): 4 3
(2004-05): 4 4
(2005-06): 5 5
(2006-07): 5 -
(2007-08): 4 4
(2008-09): 5 4
9. Dependability (2001-02): 5 5
(2002-03): 4 4
(2003-04): 3 3
(2004-05): 5 5
(2005-06): 5 4
(2006-07): 5 -
(2007-08): 3 3
(2008-09): 5 5
10. Communication skills (2001-02): 5 5
(2002-03): 4 4
(2003-04): 3 3
(2004-05): 4 4
(2005-06): 4 4
(2006-07): 5 -
(2007-08): 4 4
(2008-09): 4 4
11. Creativity (2001-02): 5 5
(2002-03): 4 4
(2003-04): 4 3
(2004-05): 4 4
(2005-06): 4 3
(2006-07): 5 -
(2007-08): 3 3
(2008-09): 4 4
12. Professional readings,
Contributions and knowledge
of current affairs (2001-02): 4 5
(2002-03): 4 4
(2003-04): 4 2
(2004-05): 4 4
(2005-06): 4 3
(2006-07): 4 -
(2007-08): 4 4
(2008-09): 5 5
13. Professional knowledge and
application to assigned
duties (2001-02): 4 4
(2002-03): 4 5
(2003-04): 4 3
(2004-05): 5 4
(2005-06): 4 4
(2006-07): 5 -
(2007-08): 4 4
(2008-09): 5 5
14. Ability to lead and
motivate subordinate (2001-02): 4 4
(2002-03): 5 5
(2003-04): 4 2
(2004-05): 5 4
(2005-06): 3 3
(2006-07): 5 -
(2007-08): - -
(2008-09): - -
15. Ability to train (2001-02): 3 4
(2002-03): 4 4
(2003-04): 3 2
(2004-05): 4 4
(2005-06): 4 4
(2006-07): 5 -
(2007-08): - -
(2008-09): - -
16. Ability to work in a team (2001-02): 4 4
(2002-03): 4 5
(2003-04): 4 2
(2004-05): 5 4
(2005-06): 5 4
(2006-07): 5 -
(2007-08): 4 4
(2008-09): 5 5
17. Decisiveness (2001-02): 5 4
(2002-03): 4 4
(2003-04): 4 3
(2004-05): 4 4
(2005-06): 4 4
(2006-07): 4 -
(2007-08): - -
(2008-09): - -
18. Resource management of
men and materials (2001-02): 5 5
(2002-03): 4 4
(2003-04): 4 3
(2004-05): 4 4
(2005-06): 4 4
(2006-07): 5 -
(2007-08): - -
(2008-09): - -
19. Interpersonal skills, liaison
with sister organizations (2001-02): 4 4
(2002-03): 4 4
(2003-04): 4 3
(2004-05): 3 3
(2005-06): 4 4
(2006-07): 5 -
(2007-08): - -
(2008-09): - -
20. Man management &
Welfare (2001-02): 4 4
(2002-03): 4 5
(2003-04): 5 3
(2004-05): 3 3
(2005-06): 4 4
(2006-07): 5 -
(2007-08): 3 3
(2008-09): 5 5
21. Office Management
and resource utilization (2007-08): 4 4
(2008-09): 4 4
22. Thoroughness and efficiency
of work (2007-08): 4 4
(2008-09): 5 4
23. Ability to display foresight
and plan beyond
immediate requirements (2007-08): 3 3
(2008-09): 5 4
24. Quality of noting, drafting
and reports (2007-08): 3 3
25. Provides frank and important
26. Relationship and rapport at
all levels and ability in team building
21. If we look at the marks given by the Reviewing
Officer vis-à-vis those given by the Initiating Officer for the
year in dispute we find that the Reviewing Officer, has more
than fully justified the adverse remark, with reference to the
marks awarded by him to the petitioner.
22. We would terminate our decision by highlighting
that the incident of 20.6.2004 has more than amply proved the
Reviewing Officer to be correct. The remarks have been
justified by the gradings.
23. An interesting facet of the marks earned by the
petitioner in the preceding and the subsequent years needs to
be highlighted. Earning marks justifying an ACR grading „Very
Good‟ in the preceding years, we find that when the petitioner
was given a wrap on his knuckles for the year in question, his
performance has again earned a quantum jump. The ACR
gradings and the marks do bring home the point that people
become complacent when they perform well and this
complacency becomes their nemesis. The downfall awakes
the person from his slumber and hence the improvement.
24. Since the point was not argued we do not deal with
the issue of delay and laches. The adverse remarks were
conveyed to the petitioner on 14.9.2004. He represented
against the same on 14.10.2004. The rejection was
communicated to him on 5.4.2005. The writ petition was filed
on 29.1.2008.
25. The writ petition is dismissed.
26. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
MARCH 28, 2011
dk/ mm
