JUDGMENT
Mukundakam Sharma, J.
1. The present appeal is directed against the judgment passed by the learned Single Judge in CWP No. 1547/1981, which was disposed of on 23.2.2000. The appellant herein filed the aforesaid writ petition in this court seeking the following reliefs:
(a) issue a Writ of Certiorari calling for the records of the Respondents and quash the order / letter No. 30399/1908 dated 10th July 1980 and order/letter No. 30386/R/MS (X) dated 25th May 1981 and declare that the Petitioner is continuing and discharging his duties on the upgraded post of Director Pioneer Corps in the rank of Brigadier with effect from 1.4.81; and permit the Petitioner to work on the upgraded post of Brigadier up to 30.6.1983.
(b) issue an order of Mandamus commanding the respondents not to retire the petitioner after 30th June 1981 and allow him to work on the present post in the rank of Brigadier till the decision of this Hon’ble Court,
(c) x x x x x x x x x x x x x x x x x x x
(d) x x x x x x x x x x x x x x x x x x x”
2. The said writ petition was contested by the respondents, who filed their counter affidavit as against which a rejoinder affidavit was also filed. In the light of the aforesaid pleading of the parties, the learned Single Judge heard the counsel for the parties and by his judgment and order dated 23.3.2000, dismissed the writ petition holding that there was no merit in the writ petition. While dismissing the writ petition, it was clearly held by the learned single Judge that he did not find any merit in the allegations made by the appellant alleging malafide or alleging vitiating circumstances. The learned single Judge also recorded the contention and the allegation of the appellant that his annual confidential reports were not properly recorded. However, it is also categorically and clearly recorded by the learned single Judge that the appellant did not challenge the recording of those ACRs earlier. He also perused the entire writ petition and found that there is no averment made to that effect in the body of the writ petition and, therefore, held that the appellant could not be permitted to raise such issue by filing a written synopsis before the Court. The learned single Judge scrutinised the grounds on which the appellant claimed promotion, which are stated in paragraph 15 of the writ petition. According to the learned Single Judge, the said submissions were replied to properly by the respondents in the counter affidavit.
3. In that view of the matter and since no such issue was raised regarding challenge to the ACRs in the writ petition, the learned judge refused to look into the same allegations which are brought out for the first time in the written submissions submitted before the court. It is also disclosed from the records that the original records were placed before the learned single Judge, who had the opportunity of also looking into the said records.
4. In the light of the aforesaid background facts, the present Letters Patent Appeal was filed in which two specific contentions were raised. It was submitted by the appellant that he was not found fit for promotion based on his overall record and that the decision would have been otherwise had the respondents not concealed from the Selection Board the fact of awarding of Ati Vishisht Sewa Medal only three months before he was considered by the Selection Board and also the fact that the adverse remarks which were part of the records and were considered by the Selection Board were not communicated to the appellant. It was submitted that the Selection Board, which considered the records of the appellant for finding his suitability or otherwise for promotion, was presented with misleading data containing imaginary adverse remarks which were not communicated to the appellant and, therefore, the appellant was not given the opportunity of being evaluated properly and the decision of the Selection Board is vitiated on that count.
5. In support of the said contention, the counsel for the appellant brought to our notice the relevant facts including the copy of the MDS and also the records showing the award of Ati Vishisht Sewa Medal to the appellant.
6. In order to appreciate the aforesaid contention, it is necessary to refer to some of the facts leading to filing of the aforesaid writ petition in this court.
7. The appellant was granted permanent regular commission in Signal Corps on 11.12.1949. On 13.1.1973 he was transferred to Pioneer Corps and was appointed as Assistant Director (Pioneer Corps) Hqrs. Northern Command. In December 1974, he was approved for promotion to Colonel by Selection Grade and by order dated 28.4.1975 he was promoted as Colonel and appointed as Director (Pioneer Corps.) at Army Hqrs.
8. To overcome the stagnation in higher ranks and to improve the career prospects of service officers in the Army, Government had ordered a Cadre Review in 1979, in which 125 additional posts of Brigadier were created by upgrading certain posts of Lt. Col./Col. It is pointed out that the post of the appellant i.e. Director, Pioneer Corps. was one of the posts accepted by Government for upgradation from Colonel to Brigadier and the said upgraded post was to be filled specifically by an officer of the Pioneer-Corps and its upgradation was not linked with any other posts. In August / September 1980, respondents identified 98 posts including the post of Director, Pioneer Corps. for upgradation from Colonel to Brigadier. On 3.3.1981 the formal sanction for phase-I for upgrading 42 posts of Colonel to Brigadier was issued by the Government. Thereafter on 30.3.1981 formal sanction for phase-II upgradation of 59 posts which included the post held by the appellant was issued by the government. Consequent thereto a Selection Board was constituted which considered the case of the appellant in May 1981 for promotion to the post of Brigadier but the appellant was not recommended for promotion as he was not found suitable for such promotion based on overall record. The statutory complaint filed by the appellant was dismissed and thereafter the appellant filed the writ petition. It was submitted before the learned single Judge by the appellant that since the upgradation of the post of Colonel to Brigadier was with the objective to remove stagnation and improve career prospects and therefore on such upgradation the appellant should have been automatically given the upgraded post of Brigadier and that there was no requirement to consider the case by the Selection Board for promotion as the same should have been given to the appellant as a matter of right. It was also contended that he was not only the senior most officer in the Pioneer Corps but was also the only Colonel already holding the post and, therefore, he should have been promoted. It was also submitted by the appellant before the Writ Court that the appellant had been performing the duties of Director Pioneer Corps for nearly six years to the entire satisfaction of his superiors and that he was never communicated any adverse from his ACRs. It has been contended that the petitioner was awarded Ati Vishisht Sewa Medal on the recommendation of his superiors and therefore, he could not possibly be held unfit to such promotion to perform the same duties particularly when there is no change in his job content.
9. The contention of the respondents was that the reasons for cadre review was to overcome the stagnation in the higher ranks and to improve the career prospects of service officers in the Army for which the aforesaid 125 additional posts of Brigadier were created by upgrading certain posts of Lt. Colonel / Colonel. Thus the posts were upgraded to remove stagnation. The post of Brigadier was higher in rank and was a promotion post which had to be filled up as per the relevant Recruitment Rules for filling up the posts of Brigadier. There could be no automatic promotion as the post of Brigadier was a selection post. In the counter affidavit, it was also stated that several incumbents of appointments on posts which were upgraded to higher ranks under the Cadre Review have been replaced and a number of such instances have been stated in the counter affidavit.
10. In the light of the aforesaid rival contentions as disclosed from the pleadings of the parties, the question which was urged by the parties and was considered by the learned single Judge was whether an officer had to compete for promotion and undergo selection to the post of Brigadier after the upgradation of these posts or one could get promotion to the post of Brigadier automatically merely by virtue of occupancy of an appointment to the post which stood upgraded. The said issue was considered by the learned single Judge with reference to the Army Order dated 30.3.1981 and the other records and in the light thereof it was held that a person as the appellant has only a right to be considered for promotion and there could be no automatic right to be promoted to the post of Brigadier as the same is only by selection. The allegation of the appellant that his ACRs were not properly recorded was not considered and discussed by the said Court as there was no challenge to the recording to those ACRs earlier and because there was no statement to that effect in the body of the writ petition.
11. We have also scrutinised the writ petition carefully and also find no challenge in respect of the ACRs. It was, however, sought to be submitted by learned senior counsel for the appellant that the appellant at the time of filing of the writ petition did not know of any adverse remarks recorded in his annual confidential report and, therefore, at that stage he could not challenge any of the aforesaid ACRs and, therefore, when during the course of pendency of the writ petition it came to his knowledge that there has been some adverse remarks recorded in his ACRs, he had challenged the same.
The said contention has also been scrutinised by us in the light of the records placed before us. So far as the contention of the appellant that there should have been automatic promotion of the appellant to the post of Brigadier is concerned, the same is held to be without merit as admittedly the post of the rank of Brigadier is a selection rank and, therefore, there cannot be automatic promotion when the higher rank is to be by selection. The cases of all the eligible candidates for promotion are to be considered. The appellant was also one of the eligible candidates and accordingly his case was considered in the light of the records. The Selection Board did not find him fit for promotion based on his overall records. Therefore, the contention that there should have been automatic promotion of the appellant to the rank of Brigadier is rejected.
12. The next contention of the counsel for the appellant that the respondents did not place the relevant fact of his getting the award of Ati Vishisht Sewa Medal before the Selection Board, was considered by us in the light of the records. The records of the Promotion Board indicate that the Promotion Board was aware of the fact that the appellant was awarded a Ati Vishisht Sewa Medal and the said fact is clear and apparent from the very fact that when the Promotion Board recorded their decision rejecting the case of the appellant for promotion to the rank of Brigadier, they have specifically mentioned the award of merit after the name of the appellant. Therefore, in our considered opinion, the respondents were fully aware and conscious of the conferment of the award of the merit to the appellant at the time of consideration of his case for promotion.
13. The next and the last contention of the appellant before us was that the respondents had recorded adverse remarks against the appellant for some years, namely, for the year June 1971 – February 1972; June 1975 – May 1976; June 1976 – May 1977; June 1977 – May 1978. The said contention is made on the basis of MDS, which is placed on record.
14. However, at this stage, it is required to be pointed out that the appellant never made any challenge in his writ petition in respect of any adverse remarks in his confidential report. We have hereinbefore extracted the reliefs sought for in the writ petition. A look at the same would indicate that none of the aforesaid reliefs was directed towards maintainability and quashing of said remarks, which are recorded by the respondents in the annual confidential reports of the appellant. The present appeal is restricted to the pleadings of the parties before the Writ Court and the scope in the appeal cannot be expanded by filing further documents on record in support of the contention, which was not raised in the writ petition specifically. The learned single Judge scrutinised the records and recorded his decision clearly to the effect that no such plea was raised in the writ petition and the same was urged and placed only in the written submissions placed before the learned single Judge. Even at that stage the appellant could have sought for amendment of the writ petition, which was not done. Therefore, it was held that the petitioner is not entitled to raise the said plea and challenge ACRs at the time of hearing of the writ petition.
15. In that view of the matter, we also hold that no such contention having been raised in the writ petition the same could not be made a ground for challenge to the judgment thus rendered as in the Letters Patent Appeal, the scope of the appeal cannot be expanded and extended to an issue which was not specifically raised and urged before the learned single Judge.
16. Even otherwise, we find from the records that the appellant was aware of the aforesaid remarks, which were recorded in his annual confidential reports, which is disclosed from the annual confidential reports, which are placed along with the record. The appellant has put his signature on the said ACRs which fact proves that he was at least aware of the remarks of the Initiating Officer.
In this connection, we may appropriately refer to a circular issued by the respondents on 28th July, 1975. Para 3 thereof provides the manner in which adverse remarks of superior reporting officers are to be communicated. In the said paragraph, it is provided that the adverse remarks of the reporting officers other than that of the Initiating Officer and the First Technical Officer are not required to be communicated to the officer reported upon by the reporting officers. It was also stated therein that no further action is, however, required to be taken in cases where such reporting officers have already communicated their remarks. In terms of such existing policy, the adverse remarks of the Initiating Officer were required to be communicated whereas the adverse remarks recorded by the Reviewing Officer and Senior Reviewing Officer were not required to be communicated.
17. On consideration of the records, we are satisfied that the respondents have communicated to the appellant, such remarks which were required to be communicated and such communication was in terms of the aforesaid policy. This policy is not under challenge in the writ petition and, therefore, if it is found that the action has been initiated and taken in the light of the aforesaid army instructions, the same is required to be upheld.
18. It is also to be noted at this stage that the appellant has urged for the first time in the appeal that the adverse entries were not communicated to him. This ground was available to the appellant as he was aware of the remarks recorded by the Initiating Officer, some of which, according to him, are adverse, as submitted before us.
Admittedly, the fact that the appellant was given some adverse remarks was also known to the appellant is clear and apparent when the statutory complaint filed by the appellant himself before filing of the writ petition is looked into and examined. In clause (c) thereof it was specifically stated that the appellant was not eligible for promotion to the higher rank, he did not expect the Initiating Officer / Reviewing Officer / Senior Reviewing Officer to make any positive recommendations in his ACRs initiated during his service in the Pioneer Corps and, therefore, he stated that he did not take a serious view of a lukewarm remarks, if any, that might have been made in his ‘pen picture’ in those ACRs.
19. Therefore, we hold that the appellant was aware of the said remarks in his ACRs, which are now the bone of contention in the appeal. Despite this fact, the appellant did not take up a plea in his writ petition challenging the said remarks and, therefore, the same were not considered by the learned single Judge. We are, therefore, of the view that this court should not embark upon a review of the same. Even in the memorandum of appeal filed in this court, no such specific plea is raised specifically challenging the adverse remarks in his ACRs.
20. In the light of the aforesaid discussion, we find no merit in the contention raised by the appellant. Consequently, this appeal is found to be without any merit and is dismissed.