JUDGMENT
Mukundakam Sharma, J.
1. By filing this writ petition the petitioner has sought for an order for quashing and setting aside confidential reports of the petitioner for the period June 1990 to May 1991 and May 1993 to September 1993 as also the proceedings of the Selection Boards held in 2000, 2001 and 2002 for promotion to the rank of Brigadier.
2. The respondents have raised a preliminary objection regarding the maintainability of the writ petition. It was submitted that this writ petition is required to be dismissed on the ground of inordinate delay and laches as challenge is made to annual confidential reports of the petitioner given for the period June 1990 to May 1991 and May 1993 to September 1993 after a lapse of more than 12 years from the date of accrual of the cause of action. It is also submitted that even the statutory complaint assailing the said confidential reports was filed after a delay of about four years. Whereas the order rejecting the statutory complaint was passed on 27th of September, 1996, and the writ petition was filed only in March, 2005.
3. We have heard learned Counsel for the petitioner, who submitted that after disposal of the statutory complaint a fresh cause of action has arisen in favor of the petitioner and, therefore, the date of accrual of the cause of action should be considered as 27th of September, 1996. It is also submitted that since in the Selection Boards the petitioner could not be promoted in view of the adverse remarks contained in the confidential reports for the aforesaid years, therefore, cause of action should be considered to have accrued after results have been announced in respect of the Selection Boards held in 2000, 2001 and 2002.
4. In the light of the aforesaid submissions of the Counsel for the parties, we have considered the said objections. Upon a careful perusal of the records and particularly the pleadings of the parties it is established that what is sought to be challenged herein is the confidential reports for the period June 1990 to May 1991 and May 1993 to September 1993 as due to the remarks contained in the said confidential reports the petitioner was superseded and was not promoted to the rank of Brigadier. The said reports are more than 12 years old. There is no whisper in the petition giving any explanation regarding the delay of the aforesaid 12 years. A statutory complaint assailing the said confidential reports was filed after four years. In any case the statutory complaint was also disposed of by the respondents under order dated 27th September, 1996. There is no earthly reason why the petitioner could not have sought for his remedy immediately thereafter. He has slept over his rights. No explanation for the delay for the said period is forthcoming in the petition filed and, therefore, the petition is definitely barred by inordinate delay and laches. Notwithstanding the said fact, arguments were advanced by the Counsel for the parties on the merit of the petition and therefore, we propose to deal with the said contentions as well in this judgment and order.
5. It was submitted by the Counsel appearing for the petitioner that the confidential reports for the period June, 1990 to May, 1991 and May, 1993 to September, 1993 were initiated by the Reporting Officers and accepted by the respondents in violation of the policies, rules and regulations as enunciated in the circular No. SAO 3/S/89. It was also submitted that Colonel G.R.C. Rajan was a junior officer and, therefore, he was not qualified to initiate the confidential reports of the petitioner for the aforesaid period. It was also submitted that he, namely, Col. Rajan, who was the initiating officer, did not follow the procedure as enunciated by the respondents for giving advisory/adverse remarks. It was also submitted that the Reporting Officer also failed to comply with Paras 80 and 81 of SAO 3/ S/89 in which the written performance counselling had to be attached to the confidential report if an advisory/adverse remark was endorsed in the pen-picture. It was also submitted that there were mala fides involved in the present case as Col. Rajan, who was junior to the petitioner, had given the confidential reports of the petitioner and had downgraded him.
6. In the light of the aforesaid submissions, we have examined the records while hearing arguments of the Counsel appearing for the parties.
7. It must be stated at the very outset that scope of judicial review in a matter like this is limited only to the inedeficiency in the decision making process, if there be any and this Court does not have the right and the jurisdiction to sit over either the assessment made by the initiating officer or the Accepting Officer regarding the performance of the petitioner for the relevant period nor it could sit over the assessment made by the Selection Board. It is, therefore, necessary to ascertain as to whether or not in the present case there was any error or arbitrariness in the decision making process by the respondents.
8. It is not disputed that as per the promotion policy which was applicable till 15th December, 2004 the promotions in the Army up to the rank of Major were by time scale whereas promotions from the rank of Major to Lt. Col. and above were decided through Selection Board. It was required to consider all the officers of a particular batch together with same cut off ACRs and inputs and on the basis of individual profiles of the officers and on their batch merit they were either approved or not approved for promotion. In the matters of such promotions seniority in itself was of no consequence for the Selection Board for approval or non-approval of the concerned officer. As per the applicable policy, each officer was entitled to three considerations only for promotion to the selection ranks i. e. from Major to Lt. Colonel and above. In terms of the aforesaid provision, the petitioner also received three looks for the purpose of consideration of his case for promotion to the post of Brigadier. The petitioner was promoted to the post of Colonel in 1992. He was thereafter considered for promotion to the grade of Brigdaier in September 2000 along with all other eligible candidates. Thereafter his case was first reviewed for promotion to the said rank in the month of March, 2001. The third and the last look for the petitioner for considering his case for promotion to the rank of Brigadier was in September, 2002. It is also to be noted at this stage that in all the aforesaid selections, the Selection Board was constituted of different officers and, therefore, there is no question of any mala fide involved. Each time the petitioner was considered for his promotion to the rank of Brigadier by a new set of officers in the Selection Board and on the basis of the overall profile of the petitioner and comparative merit of eligible officers he was not found fit for promotion. While considering an officer for promotion to a selection rank including the rank of Brigadier, the Selection Board takes into consideration a number of factors such as war/operational reports, course reports, ACR performance in command and staff appointments, honours and awards, disciplinary background, and also the ACRs for the relevant period. The case of the petitioner was also considered in the light of the aforesaid criteria and norms and he could not make the grade based on his overall profile and comparative merit with his batchmates as evaluated by the Selection Board.
9. On scrutiny of the records including the confidential reports for the period from 1 st June, 1990 to 31st May, 1991 we find no adverse/advisory remarks indicated either by the initiating officer or by the Reviewing Officer in his confidential reports for the said year. Therefore, there was no necessity of communicating any part of the assessment of the Reviewing Officer to the petitioner. The petitioner was graded ‘high average’ in the Personal Quality (PQ) of ‘Adaptability’ and as such no counselling/justification was necessary. So far the question of downgrading in the confidential reports of the petitioner is concerned, it is to be noted that even if there be any downgrading remarks, the same are not required to be communicated unless there is such a requirement in the relevant rules. To that extent there is dilution of law laid down by the Supreme Court in U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. . In Union of India v. Major Bahadur Singh , the Supreme Court has held that U.P. Jal Nigam’s case (supra) has no universal application and that the said judgment itself shows that it was intended to be meant only for the employees of the U.P. Jal Nigam. In Paragraph 21, the Supreme Court has recorded that according to the modalities provided for recording and communication of adverse entries clearly indicate as to in which case the communication of adverse or advisory remarks are to be made. It was also held that the word ‘advisory’ is not necessarily adverse.
10. The allegation made against Col. Rajan is also found to be without any merit. Confidential report for the period June 1990 to May 1991 was initiated by Col. G.R.C, Rajan and it was reviewed by Brigadier S.M. Endley. Col. Rajan in his capacity as initiating officer of the petitioner had given an overall box-grading of 8 out of 9 and had endorsed a positive pen-picture. In the personal qualities and demonstrated performance, he had graded him Above Average (8/7) barring the quality of Adaptability wherein he graded him High Average (6).
11. The aforesaid assessment given to the petitioner in Adaptability is in consonance with the profile of the petitioner as he had earned a similar award when he served as Brigade Major during the period June, 1984 to February, 1985. Therefore, the contention of the petitioner that he was not empanelled for promotion to the rank of Brigadier because of the adverse report for the year June, 1990 to May, 1991 is misconceived and is rejected in view of the fact that no adverse/advisory remarks had been recorded by the initiating officer or the Reviewing Officer in his confidential report for the aforesaid period. It is true that in his confidential report for the period 1st of June, 1990 to 31st May, 1991 there is an amendment in the assessment in Paragraph 11(n) of the confidential report but the said amendment is advantageous to the petitioner as the same was amended from ‘7’ to ‘8’ which was advantageous to the petitioner. The aforesaid amendment has also been authenticated by full signatures of the initiating officer as well as of the petitioner and, therefore, it cannot be said that the said amendment has in any manner affected the confidential report or has invalidated the said report.
12. Therefore, considering the facts and circumstances of the case, we are of the considered opinion that no case for interference is made out in the present case even on merit. The petition being devoid of merit is dismissed leaving the parties to bear their own costs.