Delhi High Court

Lt. Col. Sanjay Kashyap vs Union Of India & Anr. on 1 June, 2012

Author: Anil Kumar

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Decision: 01.06.2012

+                         W.P.(C) No.3649/2012

Lt. Col. Sanjay Kashyap                          ...       Petitioner

                                 versus

Union of India & Anr.                            ...       Respondents


Advocates who appeared in this case:

For the Petitioner        :    Major K.Ramesh, Advocate.
For the respondents       :    Ms.Barkha Babbar, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

1. The petitioner has sought a writ of certiorari for the quashing of

order dated 10th September, 2007 passed by the Ministry of Defence

rejecting the statutory complaint of the petitioner in the light of his

career profile, relevant records and analysis/recommendations of the

Army Headquarters and holding that the petitioner had not been

empanelled for promotion to the rank of Colonel on account of his

overall profile and comparative merit, and also the order dated 20th

October, 2009 passed by the Principal Bench, Armed Force Tribunal in

T.A.No.122/2009, titled as "Lt.Col. Sanjay Kashyap, v. Union of India &

Ors." dismissing his original petition seeking the setting aside of the

order of the Ministry of Defence dated 10th September, 2007 holding

that it was for the Selection Committee to assess and give the

appropriate weightage to the conflicting ACRs of the petitioner given by

the Initiating Officer and another by the Reviewing Officer and the

remarks given by SRO and also rejecting the petition on the ground of

delay.

2. The relevant facts in brief are that the petitioner had made a

statutory complaint dated 13th May, 2007 against his non-empanelled

for promotion to the rank of Colonel by No.3 Selection Board held in

April, 2005, wherein the petitioner was considered as a fresh case. This

complaint was filed after his earlier complaint was dismissed which

dismissal was not challenged by the petitioner. The grievance of the

petitioner was that he was awarded outstanding ACR with grading of

9/9 by the Initiating Officer for June, 2000 and May, 2001, whereas the

Reviewing Officer had awarded him 7/9. Since there was a difference of

two points between the Initiating Officer and the Reviewing Officer, it

was mandatory for the SRO (Senior Reviewing Officer) as a balancer to

endorse the petitioner‟s report objectively. The petitioner contended that

his one Annual Confidential Report was required to be quashed and set

aside on technical grounds of being contrary to the Special Army Order

on the subject. The complaint of the petitioner was, however, dismissed

by order dated 10th September 2007 whereby the petitioner had sought

that all the assessments done by the Reviewing Officer be examined and

in those case where the Reviewing Officer had given him "7" points or

below, such assessment be set aside being subjective and inconsistent

and his case for promotion be reviewed de novo.

3. Ministry of Defence examined the grievance of the petitioner in

the light of his career profile, relevant records and analysis/

recommendation of Army Headquarter and inferred that all confidential

reports impugned by the petitioner in the reckonable profile including

confidential report impugned by the petitioner are fair, objective,

performance based, well corroborated and devoid of any

bias/inconstancy. The confidential report 01/02-05/02 was also found

to be technically valid and it was held that the petitioner had not been

empanelled for promotion to the rank of Colonel on account of his

overall profile and comparative merit and, therefore, the statutory

complaint of the petitioner dated 13th May, 2007 was also rejected.

4. Aggrieved by the rejection of his statutory complaint by order

dated 10th September, 2007, the petitioner had filed a writ petition in

the High Court of Delhi at New Delhi contending, inter-alia, that in his

ACRs of June, 2000 to May, 2001 the Reviewing Officer might have due

to his animosity with the petitioner diluted his report from 9/9 awarded

by the Initiating Officer to 7/9 and this is evident from endorsement

made by the SRO on the matter as a balancer as he did not comment

about it and only wrote "Inadequate Knowledge". The petitioner also

relied on the instructions regarding the aspect of "Inadequate

Knowledge" and, therefore, contended that the said comment has

seriously affected his ACRs and consequently, his promotion to the post

of Colonel.

5. The writ petition was contested by the respondents contending,

inter-alia, that the SRO (Senior Review Officer) had returned

"Inadequate Knowledge" (IK) because he had no opportunity to see the

performance of the petitioner, and, therefore, the SRO was justified in

writing IK.

6. The writ petition filed by the petitioner was thereafter, transferred

to the Armed Forces Tribunal, Principal Bench and was registered as

T.A.No.122/2009. The Tribunal while hearing and deciding the petition

noticed Clause 86 and 87 relied on by the petitioner. However, relying

on Clause 148 held that if the SRO did not have sufficient opportunity

to see the performance of a candidate and assess him meaningfully

then it was fair on the part of such SRO to have said that he is unable

to comment due to Inadequate Knowledge. The Tribunal noted that the

instructions to the SRO are very clear, and where the officer has not

worked under the SRO, then in such cases the SRO should be fair to

make his comment and to give his reasons that he did not have the

opportunity to see the performance of the concerned officer and in the

circumstances, the plea of the petitioner that the SRO should not have

been given remarks "IK‟ (Inadequate Knowledge) was returned.

7. The Tribunal also noted that the complaint of the petitioner was

rejected on 13th June, 2006 and the petitioner had kept quiet and did

not challenge the same. Thereafter, the petitioner made another

representation on 13th May, 2007 which was rejected on 10th

September, 2007. The Tribunal noticed that by merely filing a statutory

complaint in May, 2007 will not extend the limitation for challenging

the rejection of the first complaint on 13th June, 2006, which the

petitioner had failed to disclose and had also failed to give adequate

reasons for the delay in filing the writ petition. The Tribunal thus, while

dismissed the petition of the petitioner took delay also in consideration.

8. The petitioner has challenged the order of the Tribunal reiterating

the pleas and contentions raised by the petitioner before the Tribunal

and he has also tried to distinguish para 141 of the Instruction to the

SRO. The petitioner has reiterated that if the difference in points

between the Initiating Officer and the Reviewing Officer was of only two

marks, then the Senior Reviewing Officer ought not to have given "IK" to

the petitioner.

9. Learned counsel for the respondents who appears on advance

notice, Ms.Barkha Babbar, has raised preliminary objection that though

the petition of the petitioner was dismissed by the Tribunal by order

dated 20th October, 2009 and the present petition has been filed on 30th

May, 2012 without giving any justification or reasons for this undue

delay. Even on the merits, it is contended that in terms of the

Instructions regarding the ACR, the SRO, if was not aware about the

performance of the petitioner, was justified in giving the remarks "IK" in

the facts and circumstances. Learned counsel has contended that the

Tribunal has considered these pleas and contentions and that there are

no grounds to interfere by the High Court with the order of the Tribunal

in exercise of its jurisdiction under Article 226 of the Constitution of

India.

10. This Court has heard the learned counsel for the parties. This

cannot be disputed that the petition of the petitioner was rejected by

the Tribunal by order dated 20th October, 2009, and that the present

writ petition has been filed after almost two years on 30th May, 2012.

Perusal of the writ petition discloses that there is no reason given for

explaining this delay in filing the present writ petition. Learned counsel

for the petitioner is also unable to explain as to how the original

complaint filed by the petitioner which was dismissed by the

respondents by order dated 13th June, 2006 was not challenged by the

petitioner. After the rejection of the first statutory complaint on 13th

June, 2006, instead of challenging that order, the petitioner rather filed

another statutory complaint on 13th May, 2007, which was also

dismissed on 10th September, 2007. In the circumstances, the

observations of the Tribunal that the fate of the petitioner was sealed on

13th June, 2006 when his statutory complaint was first dismissed, and

that it could not be re-agitated by filing another statutory petition in

May, 2007 cannot be faulted. The observations of the Tribunal in this

regard in para 6 of the impugned order are as under;-

"6. Learned counsel for the respondents has seriously contested the petition that this very statutory complaint for said ACR was considered by the Government and same was rejected on 13th June, 2006. This order of rejection of his ACR is not subject matter of this writ petition. It is pointed out that after the rejection of the statutory complaint, petitioner kept quite and did not challenge for the period two years. It is true that incumbent had made a statutory complaint and it was rejected way back on 13th June, 2006 that sealed his fate. Though it is submitted that he had made another representation and it was rejected in the year 2007 but that would not extend time for him so as to come within the period of limitation. Without going in the question of limitation the facts remains in situation like present case where SRO had no opportunity to assess the performance of the petitioner, it is well within his right to write "Inadequate Knowledge."

11. Learned counsel for the petitioner is unable to show any rule or

regulation or precedent holding that repeated representations will

extend the time for filing the complaint by the petitioner or that after

rejection of first complaint, the petitioner could file another complaint

without challenging the order passed on his first complaint. Though the

Tribunal has noted this, however, the petition was not dismissed merely

on account of delay. The merits of the pleas raised by the petitioner

have also been considered. Learned counsel for the petitioner, Major

K.Ramesh, is also unable to point any rule or regulation or precedent

on the basis of which it can be inferred that an SRO, who is not

conversant with the performance of the petitioner, was obliged to give a

grading to the petitioner instead of writing „Inadequate Knowledge" in