Rahul Jain vs Union Of India & Ors.
2013 Latest Caselaw 1230 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                   Decided on :13th March, 2013

+                                  W.P.(C) 6457/2012

        RAHUL JAIN                                      ..... Petitioner
                                   Through:   Mr. S. S. Pandey, Advocate.

                          versus

        UNION OF INDIA & ORS.                           ..... Respondents

                      Through:                Mr.Ankur Chhiber, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE S. RAVINDRA BHAT

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

S. RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner impugns the order of the Armed Forces Tribunal (hereinafter referred to as the "AFT") dated 30th July, 2012 rejecting his application. The petitioner was commissioned in the Infantry, Unit No.10, Garhwal Rifles, after completing the training in the National Defence Academy and Indian Military Academy. It is stated that at the time of recruitment, the Army was aware that the petitioner was a heavily built individual and a Boxer of national repute. He weighed 80 kg. against the ideal weight of 67 kg. Between 1993 and 2008, he served his Unit. It is also stated that the petitioner was given posting in the field area, including those of high altitude and counter insurgency areas such as Kargil; and was involved in Operation Vijay (Kargil), Operation Parakram (J & K) and Operation Rakshak ( J & K and Punjab). The petitioner contends that he kept getting promotion according to his performance. Whilst so, pursuant to a medical evaluation done some time in December, 2008, his categorization

was temporarily downgraded to P2 F(1)(A)(T24). This medical evaluation persisted till the end of May 2009-the period with which this Court is concerned. On account of Confidential Reports filed by his Initiating Officer for this period for the, "command criteria", posting that he was serving, the evaluation by his Initiating Officer was not considered favourable. This was one of the considerations which weighed with the Army authorities while overlooking his candidature for promotion to the rank of Colonel.

3. Premising his submissions on a policy instruction of 6th March, 1991, Army Headquarters, DHQ, PO, New Delhi, specially paragraph 3, the petitioner approached the AFT. After considering the submissions of the parties, the petitioner's Original Application was rejected. The reasoning and the operative portion of the impugned order of the AFT dated 30th July, 2012 is extracted below :-

".........

9. We have seen and perused the record including the medical board proceedings as well as the impugned ACR and the Master Data Sheet. In the impugned ACR, petitioner has been given a box grading of "8" and an assessment of 8/9 by the IO and the RO in all qualities other than physical attributes for which he has been given "6". The overall status of this ACR is "above average" and there is no bias/malafides. It is also apparent from the record that the petitioner has eelier got an endorsement of 6/7 for the same quality of physical attributes in some of his earlier ACRs. Therefore, learned counsel for the respondents argued that it was not because of obesity that the petitioner has not been approved for the next rank. He was not empanelled for promotion to the rank of Col because of his overall profile, relative merit and comparative evaluation.

The selection board held in May, 2009 deferred any consideration in his case because he had not earned the requisite number of ACR. After initiation of his report of 20.06.2009, he was considered for the first time for promotion in December, 2009 and was not empanelled. The subsequent promotion boards held in December, 2010 and July, 2011 also did not approve him for promotion.

10. Learned counsel for the respondents also argued that the petitioner has himself shown his appointment in the impugned ACR as company Commander/Second-in-Command at para 7 and had verified to the correctness of this data, therefore, at this point of time he cannot take the plea that this data was misrepresented and it should not be treated as command criteria ACR.

11. Learned counsel for the respondents further argued that in the case of Lt. Col. J.S. Bhandari the authorities were of the opinion that other than the infringement of the policy letter of 06.03.1991, there were certain other inconsistencies in the ACR and various assessments of the RO and SRO were expunged. Therefore, authorities had given Col. Bhandari some relief by re-editing his report as non command criteria report. Similarly, the case of Lt. Col Harpreet Singh in OA no.49 of 2009 it was clearly distinguished from the present case, in that the authorities had placed on record that the IO had conceded "may have assessed the officer strictly as per the medical category", while the RO had conceded that "perhaps my report was based on limited interaction". Therefore, the AFT had granted relief to Lt. Col Harpreet Singh based on these different facts and circumstances, which were not applicable in the present case of the petitioner.

12. Keeping in view all these facts and having

perused the entire record, we are convinced that there is no merit in the petition and it does not warrant any interference on our part. Consequently, petition is dismissed. No order as to costs."

4. The petitioner places heavy reliance upon the policy of 6th March, 1991. The relevant extract of that policy reads as follows:

".....TENABILITY OF CRITERIA APPOINTMENT BY MAJORS PLACED IN LOW MEDICAL CATEGORY (LMC)

1. Tenability of criteria command appointments by LMC officers was one of the aspects considered by a study group on „Management of LMC Officers‟. The study group has recommended relaxation of the existing restrictions and placing LMC Majors on criteria command appointments to enable the deserving officers to attain higher ranks.

2. Consequently, it has now been decided that LMC officers with following medical classifications may be placed on criteria command appointments :-

(a) Officers with upto medical classifications 2 in any SHAPE factor except S and P. In S factor, the officers must be S1: Officers who are P2 for heart ailments (such as hypertension or ischemic heart disease) and obesity will however, not be placed on criteria command appointment.

(b) Officers who are in classification 3 in H or E factors.

(c) Officers having combined category of E2 H2.

3. Placement/Removal of such officers to/from criteria command appointments will be subject to the following conditions :-

(a) The concerned officers will give their willingness to be placed on criteria command appointment and this should be further recommended by their initiating officer and have approval of the reviewing officer.

(b) The officers may be removed from criteria command appointment in case of unsatisfactory performance, by senior reviewing officer on recommendations of initiating officer and reviewing officer.

(c) In case an officer gets downgraded temporarily or permanently to unacceptable medical category, while on criteria command appointment, he will be removed from it and placed back only when he regains his medical category.

4. Initiating officers will mention the details of such cases in para 11 (b) of the ACR form. This policy will not apply to war wounded or equivalent category of officers as the policy has been laid down for them separately.

5. This supersedes our letter of even number dated 16 Dec. 86."

5. It is argued that, immediately upon the petitioner's evaluation in the lower medical category, albeit for a temporary period, Army authorities were under duty to ensure that he was removed from the, "common criteria", posting and placed elsewhere. Counsel urged that this

would have ensured equity to the petitioner and would not have resulted in any harm to his records. The failure of the Army authorities to do so, it is urged, has resulted in the petitioner's name not being considered for promotion to the rank of Colonel.

6. Learned counsel for the respondents argued that the policy instructions of 1991 are intrinsically related to the pre-existing criteria spelt out in the policy of 1987, which articulated the criteria upon which an officer could be promoted as Colonel. This underwent a change by a policy dated 18th November, 2005. Counsel emphasised that the Army authorities are bound to follow both the instructions of 1991 as well as instructions of 2005, which outlined the relevant criteria for promotion. Counsel further emphasised the fact that in the letter of the latter policy of 2005, emphasis has also been given to the employability and further categorization is insisted upon having regard to the medical evaluation done in individual cases. In view of these, counsel argues that the petitioner would, in any event, have been eligible to be considered for the promotion to the rank of Colonel.

7. Learned counsel for the respondents also relies upon the circumstances referred to in the Original Application before the AFT. The petitioner relied upon the assessment given during the relevant time, that is December 2008 to May 2009, to say that he performed his duties diligently and sincerely, and that medical category did not hinder him in performing his duties. Such being the case, argues counsel, the petitioner could not now state that his placement in the lower medical category, in any manner, prohibited evaluation of those duties and, therefore, rely upon the instructions of 6th March, 1991.

8. As is evident from the above discussion, the dispute which this

Court has to resolve, is limited, which is whether the policy instructions of 6th March, 1991 restrained the respondents from considering the CR record of the petitioner whilst on a, "criteria command", appointment; even when his medical category was downgraded temporarily. The petitioner relies solely upon paragraph 3 (C) of the policy instructions of 6 th March, 1991. The said policy has been extracted in the previous portion of this judgment. Paragraph 3(C) unequivocally enjoins the Army authorities to ensure that all the officers who are downgraded, "temporarily or permanently", to unacceptable medical categories, would be removed from it and placed back only when the official regains his medical category. The entire reading of the AFT order would reveal that the most relevant part of the policy instructions of 6th May, 1991-paragraph 3(C) was nowhere discussed. Instead, the AFT discussed and analysed in paragraph 4 of its order paragraph 2 of the policy, which delineated medical classifications. The objective of the policy instruction, in particular paragraph 3(C) thereof, as this Court discerns it to be, was to do justice to the career of the individual who was downgraded even if temporarily, and, at the same time, balance larger interest of the Indian Army. Obviously, public interest would not lie in, "command criteria", duties to a person deemed unfit to man that post. In such an event, the Army has to take immediate steps to remove him and assign him other suitable duties. By doing so, it would also achieve the objective of public interest of protecting such officers' career since he would not be able to perform against onerous responsibilities. As this Court sees, that can be the only objective, rational and logic of paragraph 3(C) of the policy.

9. If the Army's contention that regardless of its action in continuing the official with lower medical category in, "command criteria"

posting has to, nevertheless, be taken into account for his further career advancement, the very objective of paragraph 3(C) would be defeated. As regards the submissions that the petitioner himself chose to rely upon the observations recording the period December 2008 upto the end of May 2009, this Court is of the opinion that the occasion for the petitioner to challenge the rank assigned during that period arose when his name was considered for the higher rank and he was overlooked. Claim made before the AFT, especially paragraph (b) of the relief clause, was categorical; the petitioner sought for quashing of the ACR for the relevant period.

10. In the light of the above discussion, this Court is of the opinion that the evaluation of the petitioner during the period 8th December 2008 to 31st May 2009, when concededly he was downgraded in lower medical category, could not have been taken into account. Consequently, the said determination of the respondent is hereby set aside. The Army Authority is directed to take consequential action and, if necessary, to assign a fresh posting to the petitioner to enable him to earn new criteria report; and depending upon his performance, take further such action as is warranted.

11. The writ petition is allowed in the above terms.

S. RAVINDRA BHAT (Judge)

SUDERSHAN KUMAR MISRA (Judge) MARCH 13, 2013 dr