IN THE HIGH COURT OF JAMMU & KASHMIR AT JAMMU SWP No. 625 of 07 Col. Rajan Bakshi Petitioner Union of India and ors Respondent !M/s SS Lehar, Sr.Adv. with Akshay Anand and Meharbaan Singh ^Mr V.K. Magoo, ASGI, with Respondent No.4 in person Hon'ble Mr Justice Nirmal Singh, Judge DATE : 04/03/09 :J U D G M E N T :
Petitioner is seeking writ in the nature certiorari quashing
order dt. 16th of Jan’06, passed by respondent No.4, whereby the
statutory complaint dt. 3rd of March’04, filed by the petitioner has
been accepted partially and further expunging the entire assessment
recorded by the respondent No.3 in the ACR of the petitioner w.e.f.
March’98 to June’98. Direction is also sought for quashing order dt.
22nd of Feb’07, passed by the respondent No.4, whereby the statutory
complaint of the petitioner dt. 8th of May’06, has been dismissed and
expunging the low grading awarded to the petitioner in the ACR
pertaining to the period Sept’01 to 30th of June’02.
Writ is also sought in the nature of mandamus commanding
upon the respondents to consider the case of the petitioner for
appointment/promotion to the rank of Brigadier w.e.f. the date his
juniors were so promoted.
The case set up by the petitioner is that in the month of Oct’95,
he was posted as SPO in Central Ordinance Depot (COD) which
posting was given to him solely on the basis of merit and outstanding
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performance.It is stated that during the above posting, the petitioner
earned 5 CRs out of which three were outstanding for which nine
points were given and two were assessed above average for which
he was awarded 8 points. It is stated that the petitioner was getting 9
points consistently i.e. outstanding CRs from June’96 to Nov’96,
Dec’96 to May’97 and June’97 to Feb’98.
The grievance of the petitioner is that for the period w.e.f.
March’98 to June’98 i.e. only for three months, his CRs which were
initiated by the concerned Initiating Officer were graded low by
respondent No.3,who was the Reviewing Officer and this was done
with malafide intention. To substantiate the assertion regarding
malafide on the part of said respondent, it is stated that the
Reviewing Officer-respondent No.3 after taking over the duties of
ADG OS(TS) asked the petitioner as to how the distribution of Rate
Contract Batteries is to be made to various suppliers. It is stated that
as per the prevailing practice, the order was to be placed before two
firms i.e. M/s Geep India, New Delhi and M/s Novino which is a
Japanese Collaboration firm, but the said respondent told the
petitioner to place more orders to the M/s Geep India, which was
declined by the petitioner. It is stated that the petitioner thereafter
brought the matter to the notice of Commandant, who directed the
petitioner to follow the past norms unless there is some direction
otherwise by the Army Headquarters. It is stated that the orders were
placed before the two firms as per the practice as a result of which
respondent No.3 was annoyed and it was only on this basis, the said
respondent who was the Reviewing Officer, with a malafide intention
degraded the CRs of the petitioner for the aforementioned three
months which resulted in non consideration of the petitioner’s case
for further promotion.
The petitioner further submitted that as he was not
communicated about the low gradation of his CRs for the
aforementioned period and this fact came to his notice only in
March’04, he without any delay, filed the statutory complaint in
March’04 itself, which was partially allowed and the authority
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concerned expunged the assessment made by the RO on twelve
points but no relief regarding further promotion was given to the
petitioner as the assessment made by the RO was not expunged in
toto.
The further case as projected by the petitioner is that in April’01,
the petitioner was transferred and posted as Dir. (OS) (Col), HQ
Southern Command, where respondent No.3, became his Initiating
Officer. It is stated that in the month of April/May’02, when the
marriage of daughter of respondent No.3 was fixed, number of
functions were arranged in the house of said respondent with the
help of Resources available in Rajinder Singh Institute, Pune. It is
stated that it was during this period again that the official relations of
the petitioner and the respondent No.3 who was now his Initiating
Officer became extravagant and this resulted in downgrading of the
CRs of the petitioner for the period Sept’01 to June’02, by the
Reviewing Officer namely Lt. Gen.MA Gurbaxani. It is stated that this
was done due to the adverse feed back by the respondent No.3 (IO)
to the Reviewing Officer of the petitioner. It is stated that the
petitioner thereafter filed another Statutory complaint on 8th of May’06
before the competent authority, which was rejected vide order dt. 22nd
of Feb’07. It is stated that while deciding the second statutory
complaint of the petitioner, the respondents did not consider the
service record of the petitioner and his previous CRs. It is stated that
the downgraded CRs of the petitioner were never communicated to
him and it was only when No.2 Selection Board held in Jan’06 , did
not empanel the petitioner for promotion to the rank of Brigadier, that
he came to know about his adverse CRs for the period Sept’01 to
30th of June’02. It is the above action of respondents regarding
downgrading of CRs of the petitioner for the period March’98 to
June’98, Sept’01 to June’02, and the resultant rejection of the
statutory complaints filed in this regard and non consideration of his
case for promotion to the next higher rank, which is the subject
matter of challenge in the present petition.
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Counter has been filed by respondent-Union of India, stating
therein that the assessment of the officers in the CRs is regulated by
Special Army Order (SAO) of 1989 dt. 3rd of May’89, which stands
replaced by Army Order 45 of 2001, and other relevant policies
issued from time to time. The entire assessment of an officer in any
CR consists of the assessment made by three different reporting
officers i.e. IO, RO and SRO and these assessments are made
independent of each other. While considering an officer for
promotion to the next rank above the rank of Colonel, the Selection
Board takes into consideration number of facts and the
selection/rejection of an officer for further promotion depends upon
his overall service profile and the comparative merit within his batchmates.
It is stated that in the present case, the petitioner whose case
was considered by the Selection Boards, was not found suitable for
further promotion after taking into consideration his overall service
profile. It is stated that on considering the petitioner’s earlier statutory
complaint, the competent authority partially accepted the same and
expunged those remarks of the RO which were inconsistent with the
service profile of the petitioner. It is stated that the second complaint
filed by the petitioner dt. 8th of May’06 was also considered but the
same having been found without any basis was rightly rejected vide
order impugned dt. 22nd Feb’07. It is thus stated that the petitioner
cannot have any grievance.
Learned counsel for the petitioner submits that it was the
malafide intention on the part of respondent No.3 which ultimately led
to the downgrading of CRs of the petitioner and his resultant non
consideration for promotion to the next higher rank. In order to justify
the stand taken in this regard, learned counsel for the petitioner drew
my attention to the circumstances which led to such a situation. It was
stated that non fulfilment of the desire of the respondent No.3
regarding placing the order for supply of batteries to M/s Geep India
Ltd, was one of the reason which led to downgrading of the CRs of
the petitioner for the earlier period i.e. March’98 to June’98, by the
aforementioned respondent who was the Reviewing Officer of the
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petitioner at the relevant time. It was further stated that it was again
due to uncongenial atmosphere during the initiation of the CRs for the
period Sept’01 to June’02, when the respondent NO.3 was the
Initiating Officer that the CRs of the petitioner for the aforesaid period
were downgraded by the Reviewing Officer on the feedback of
respondent No.3. It was thus stated that in both the cases,
respondent No.3 was instrumental in downgrading the CRs of the
petitioner which resulted in spoiling his career.
Learned counsel for the petitioner further submitted that when
the respondent authorities considered the earlier complaint filed by
the petitioner against his down-gradation for the period March’98 to
June’98, and expunged 12 downgraded qualities as assessed by the
respondent No.3 as Reviewing Officer, then there was no reason not
to expunge the remaining assessment made by the said officer. It
was further stated that even while rejecting the second complaint
filed for expunging the adverse remarks made during the period
Sept’01 to June’02, no reasons have been given by the authority
concerned. It is submitted that in terms of amendment made in para
33 of Special Army Order, 1989, referred to above, (here-in-after
referred to as Order of 1989), all Confidential Reports which are
endorsed by the IO and the RO are to be forwarded to the SRO and
in terms of para 101, it is incumbent upon the Senior Reporting
Officer to endorse specific remarks on the assessment made by the
junior reporting officer by indicating reasons. In terms of para 102 of
the said Order, it is obligatory on the part of Senior Reporting Officer
to see that the Confidential Report has been made keeping in view
the provisions of the Order of 1989. It is stated that in the present
case, the reports of the petitioner were not forwarded to the SRO in
terms of para 33 of Order of 1989 and therefore, in absence of any
endorsement to be made by the SRO as per the provisions of paras
101 and 102, the said Confidential Reports which have been
downgraded cannot be made the basis of rejecting the claim of the
petitioner for promotion to the next higher rank. It is further submitted
that the downgraded CRs of the petitioner were never communicated
to him and he was not warned verbally or in writing by his superior
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officer regarding any shortcoming. It is stated that the Reporting
officers of the petitioner have otherwise not done the spot visit in
order to assess the performance of the petitioner. It is stated when
the Confidential report of the petitioner is not based on the material
available on record, then this should not be taken into consideration
by the authorities concerned and direction may be issued to reassess
the same. Reliance in this regard is being placed on a
judgment passed by this Court in the Case of Capt. Rajiv Ranjan v.
UOI and ors, SWP No. 1525/94 decided on Ist of Jan’2000.
The further plea put forth by the learned counsel for the
petitioner is that when no reasons are mentioned for downgrading the
CR of an officer or nor the change is communicated to the said
officer/employee, such entries should not be allowed to continue on
record. Reliance in this regard is being placed on a judgment of the
Apex Court reported as JT 1996 (1) SC 641, UP Jal Nigam and
others v. Prabhat Chandra Jain and ors.
Learned counsel for the respondent-Union of India, however,
countered the above pleas of the counsel for the petitioner by
projecting that in terms of para 33 referred to above, when there is a
difference of 2 or more marks between the assessment made by the
IO and RO, only then the report is to be forwarded to the SRO for his
endorsement. It is stated that in case, the difference is less than 2
between the assessment made by the IO and RO, then, the SRO
need not to make any endorsement or to record any reasons. In the
case of the petitioner also, as the difference was less than 2,
therefore, the CR of the petitioner was not forwarded to SRO for his
endorsement. It is stated that the provisions of the Order of 1989
have thus been fully complied with. So far as plea of the petitioner
that no spot visit was done, placing reliance on a judgment passed by
the High Court of Delhi in the case of CWP No.6925/01, Col RK
Thakar v. UOI, decided on 29th of Aug’08, it is stated that no spot
verification is necessary by any of the Reporting Officer. Placing
reliance on a judgment of the Apex Court reported as (2001)10 SCC
424, Amrik Singh v. UOI and two other judgments of Delhi High Court
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rendered in the case of D.S. Pandey v. UOI, CWP No.6575/02,
decided on 31st of May’05 and Col Amarjeet v. UOI, CWP
No.5632/08, decided on 5th of Aug’08, it is stated that this court in writ
jurisdiction cannot sit as an appellate court over the decision of the
Selection Board.
Before adverting to the pleas raised by the counsel for the
parties, it would be apt to notice paras 33 (amended), 101 and 102 of
Order of 1989, on which reliance has been placed by both the sides.
The said provisions read as under:-
“33.All CRs will be endorsed by the IO and the RO and
forwarded to the SRO as specified in the channel of Reporting. The
SRO will be required to endorse the CR under the following
conditions:-
(a) When there is difference of 2 or more marks between the
assessment of IO and RO in the Box Grading.
(b) When between IO and RO only one person has endorsed.
(c) Outstanding, low and Below Average assessment by IO and/or
RO.”
“101: It will be incumbent upon the senior reporting officers (i.e.
RO/SRO/NSRO and HTO/Head of Arm or Service) to endorse
specific remarks on the assessment by the junior reporting officer for
the following in pen picture:-
(a) Whether the assessment by junior reporting officer is “Liberal”,
“Justified” or “Strict”.
(b) Recommendations for expunction of assessment which is not
considered to be objective. These recommendations will need
to be supported by reasons.
“102: In addition, it will also be obligatory for the senior reporting
officers to ensure that the CR has been rendered in accordance with
the provisions contained in the SAO and that the conditions for
consistency in reporting have been complied with.”
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A perusal of para 33 of the Order of 1989, as amended, shows
that all CRs are to be endorsed by the IO and RO and these are to be
forwarded to the SRO as specified in the Channel of Reporting. The
SRO is to endorse the CR if there is difference of two or more marks
between the assessment made by the IO and RO in Box Grading or
when out of two reporting officers i.e IO and RO ,only one has
endorsed the CR or when the CR has been endorsed as outstanding,
low and below average by the IO and RO. But in each case, the CR
has to be forwarded to the SRO. Further, a perusal of paras 101 and
102, noticed above, shows that it is incumbent upon the Senior
Reporting officer to endorse specific remarks on the assessment
made by the Junior reporting officer as to whether the same is
‘liberal’, justified’ or strict and it is further obligatory on the part of
Senior Reporting Officer to ensure that the CR has been endorsed in
accordance with the provisions contained in the Order of 1989.
So far as the CRs of the petitioner for the period March’98 to
June’98, are concerned, the adverse entries made in the said CRs
were not communicated to the petitioner. As noticed above, he came
to know about degradation of his CRs in the month of March’04 and
thereafter he filed a statutory complaint before the authority
concerned. The said authority after examining the record, considered
and decided the statutory complaint of the petitioner by passing order
dt. 16th of Jan’06. The operative part of the said order reads as
under:-
“666..The statutory complaint of the officer has been
examined in the light of his career profile, relevant records and
analysis/recommendations of the Army HQs. It is observed that all
the CRs in the reckonable profile are fair, objective, well
corroborated and performance based except the following
assessment of RO in CR 03/98-06/98:-
a/ Para 11) -Decisiveness.
b/ Para 11(d) -Dependability.
c/ Para 11(e) -Drive and determination.
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d/ Para 11(k) -Maturity.
e/ Para 11(l) -Stamina
f/ Para 11(m) -Tenacity
g/ Para 12(a) -Knowledge of Own Arm/Service and its
practical application on ground
h/ Para 12(b) -Knowledge of other Arms and Services.
i/ Para 12) -Effectiveness in training of his Command
j/ Para 12(e) -Effectiveness in carrying out administration
of his Command
k/ Para 12(f) -Equipment management and ability to utilise
resources economically.
l/ Box grading at Para 19.
7. The Central Government, therefore, orders expunction
of above mentioned assessment of RO on grounds of
inconsistency.
8. Subject to the partial relief ordered as above to IC-
36939F Col Rajan Bakshi, AOC, the Central
Government, rejects his Statutory Complaint dated 03rd
March 2004 submitted against CR 03/98-06/98.”
The petitioner in his statutory complaint had alleged malafide
against the RO, which is apparent from the order itself referred to
above, passed by the competent authority, stating that the RO was
interested in favouring a particular supplier of ANPRC battery. It was
stated that due to his forthright approach, the RO could not succeed
in granting benefit to a particular firm. The petitioner had also
narrated the incident regarding distribution of rate contract batteries
to various suppliers which is also borne out from order dt. 16th of
Jan’06, passed by the competent authority. The said order of the
competent authority which makes mention of the stand taken by the
petitioner in his statutory complaint reads as under:-
“6..3. The officer alleges that the RO was interested in
favouring a particular supplier of ANPRC battery. However, due to his
forthright approach, the RO could not succeed. In the Statutory
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Complaint, he has given detail regarding the distribution of rate
contract battery to various suppliers.
4. As per the officer, he resisted the move to work out the cost
of battery on transportation model. As a result, the RO could
not oblige the firm he wanted to. He alleges that the RO was
also interfering in orders of other items as well. The RO
became more demanding as this was the time when the
impugned CR was initiated. The officer also states that the
RO continued to ask favours after his departure from COD.
The RO did not visit the COD during his tenure and did not
listen to briefing as well which SPO gives to all VIPs. He has
interacted with him only on telephone and never met him.
The RO’s knowledge about the performance of the officer
was inadequate and he was never given any performance
counselling6666″
The competent authority, as noticed above, after considering
the statutory complaint of the petitioner expunged twelve adverse
remarks made by the respondent No.3- RO concerned of the
petitioner, in his CRs for the period March’98 to June’98. The said
adverse entries were expunged on the basis of inconsistency
whereas the ground taken by the petitioner regarding the malafide on
the part of RO was not considered at all, which malafide is writ large
on the face of it. Even on filing of the said statutory complaint by the
petitioner, comments were invited from DDG (Proc), namely IDS
Boparai. The said officer submitted his parawise comments. In his
comments to sub para (ii) to (v) of the complaint filed by the
petitioner, it has been observed as under:-
“(b) Sub Para (ii) to (v): On going through the correspondence
att, I recall that the petitioner had come to me and told me that Maj
Gen GS Kohli, VSM (Retd) desired that Ms Geep India, New Delhi be
allotted heavy portion of the sanctioned ANPRC Btys. Allotment of hy
portion of the btys to one firm had serious repercussions for the Army
when there were only two sources in the country and the btys did not
have any civil end use. I told the petitioner to follow the correct norms
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as in past, and distribute btys in proportion as per firms capacity so
as to ensure both sources are kept alive and competitiveness
ensured thereby. I also told the petitioner categorically that no
deviation in the allotments would be made unless written directions
contrary to our recommendations are received from the Army HQ.
Subsequently, we received letters from DDG OS (L&E) to work out
transportation model cost matrix for distributi9on of btys to the firms.
This would have given clear advantage to Ms Geep- India located in
Central India (Allahabad) over the o0ther firm Ms Novino located at
Vadodra and would have proved extremely damaging for the Army
subsequently, if the other source had dried and Army had to deal with
only one firm. Accordingly, Army HQ was apprised of the
consequences of allotting btys on transportation model Cost Matrix
vide our letter No. 14021/Y3/FS/Prov/BC dt. 07 Aug 98 (Appx G) and
asked for clear cut policy. I had given clear instrs to the petitioner to
follow the correct procedure and transparency in all transaction
irrespective of the auth approaching him. I am sure that the Offr
(Petitioner) had followed my instrs scrupulously and apprised me time
to time if any higher official approached him.”
In para 5 of the comments furnished by the aforesaid officer, it
has been observed as under:-
“5. Notwithstanding the above, the Petitioner is an extremely
hard working Offr who has carried out his duties with utmost
dedication till last day of his stay in COD Agra. The fact that COD
Agra could meet all the requirements of the Fd Army in OP
RAKSHAK & PARAKRAM is testimony of the sound provisioning and
procurement made during his tenure as SPO.”
Ultimately, after making the above noticed comments, the
officer concerned made following recommendation:-
” Recommendation: I recommend that the complaint be
examined on its merit and if the assessment of the RO is out of tune
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with the performance of the petitioner in that appointment/overall
performance, the same may be expunged.”
A perusal of the above comments and the ultimate
recommendation made by the DDG(Proc), shows that the petitioner
had rightly alleged the malafide against his RO-respondent No.3 in
his statutory complaint but the authority concerned while disposing of
the said complaint filed by the petitioner in this regard did not rightly
consider the above aspect of the matter and partially accepted the
statutory complaint by expunging only twelve adverse entries made
by the RO only on the basis of inconsistency, which in my opinion, is
not in accordance with the law. When the malafide on the part of the
RO of the petitioner stood proved, which is apparent from the perusal
of the comments furnished by the DDG(Proc) noticed above, then, all
the adverse entries made in the CRs of the petitioner by the then RO
i.e. respondent No.3 for the period March’98 to June’98, should have
been expunged and should not have been taken into consideration by
the authority concerned in rejecting the claim of the petitioner for
further promotion, if any. All these adverse entries made in the CR
of the petitioner for the period referred to above, by the RO
concerned with malafide intention, thus, would be deemed to have
been expunged. The order dt. 16th of Jan’06, passed by respondent
No.4 whereby the first statutory complaint of the petitioner has been
partially accepted without adverting to the plea of the petitioner
regarding malafide is also not sustainable.
The other adverse entries which are also being sought to be
quashed pertain to the period Sept’01 to June’02. Again the malafide
on the part of respondent No.3 who was IO of the petitioner for the
said period is projected to be the cause of downgradation of the CR
for the relevant period.
As noticed above, the stand of the petitioner in this regard is
that respondent No.3 who was not having cordial relations with the
petitioner was instrumental in downgrading the CRs of the petitioner
by giving a wrong feed back to the RO of the petitioner, who himself
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was an honest officer. The other plea for not taking into consideration
the said adverse entries is that as per relevant Order/instructions, the
CRs of the petitioner for the aforementioned period were not
forwarded to the SRO for his endorsement. It is further stated that
even the above adverse entries were not communicated to the
petitioner.
The record pertaining to the assessment made by the IO and
RO concerned during the above period has been produced by the
respondent-Union of India. A perusal of the same shows that the
respondent No.3 who was the IO of the petitioner during the said
period of dispute has not downgraded the CRs of the petitioner but it
is the RO who has downgraded his CRs for the relevant period. The
petitioner, as noticed above, has taken a specific stand in the writ
petition that officer concerned who remained the RO of the petitioner
during the above period i.e. Sept’01 to June’02, was an honest officer
and it is only the respondent No.3, the then IO who was instrumental
in getting his CRs downgraded from the RO concerned, which plea of
the petitioner without any evidence on record is difficult to be
accepted. The officer concerned, in his individual capacity as a
Reviewing Officer, has every right to make the assessment taking
into consideration the service profile of an officer working under him ,
which assessment has to be believed as it is unless it is shown that it
emanated from bias and vindictiveness, which is not the case herein.
The petitioner as indicated above, has not alleged any malafide on
the part of RO, therefore, in the absence of any such stand taken by
the petitioner against the RO concerned, it cannot be said that RO
was influenced by the IO (respondent No.3) to make adverse entries
in the CRs of the petitioner for the above period.
One aspect of the matter which, however, requires
consideration is regarding forwarding of the CRs of the officers after
these are endorsed by IO and RO concerned to the SRO.
The specific stand taken by the respondent-Union of India is
that when there is a difference of two or more points between the
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assessment of IO and RO, only then the CRs are to be forwarded to
the SRO for his endorsement. I am of the opinion that the said stand
of the respondents is not in line with the relevant provisions of Order
of 1989. In terms of para 33 of the said Order as amended noticed
above, even though there is a difference of less than two marks
between the assessment made by the IO and RO in the box grading,
it is obligatory on the part of authorities concerned to forward the CRs
of the officers to the SRO, which in the present case has not been
done. Even otherwise, when an assessment is made by the IO and
the RO differs with the same, then, he has to record the reasons for
doing so, so that when the CR is forwarded to the SRO, he may
make his own assessment taking into consideration the reasoning
given by the RO in downgrading the CRs. But in the present case, a
perusal of the CRs of the petitioner for the period Sept’01 to June’02
shows that no reasoning has been given by the RO while
downgrading the CRs of the petitioner. Even the CRs recorded for
the above period are not in accordance with the Special Instructions
as framed in the Order of 1989, for the Reporting Officers.
In the Order of 1989, there is a clause “Guidance for
improvement” under the Special Instructions for the Reporting
Officers. Paras 150 and 151 under the heading “Guidance for
Improvement” are relevant and are being reproduced below:-
“150. The information given in the Confidential Reports is not
for the exclusive use of the MS Branch for Personal management
functions but is also intended to promote the professional
development of the officer reported upon. It is for the development
aspect which many times is overlooked by the reporting officers. They
should counsel and guide the officer as well as apprise him of his
shortcoming when noticed throughout the reporting period. This
obligation of duty should not be deferred to the time of initiation of the
report so that adverse remarks, if any, do not come as a surprise to
the officer reported upon.”
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“151. Some reporting officers carry an erroneous impression
that only the IO and the First TO are required to carry out
performance counselling before endorsing any adverse remarks. It
may be stated that the professional development of the subordinates
is a function of all echelons of command and is not the exclusive
responsibility of the IO and the First TO. Hence it is the duty of all the
reporting officers in the chain of initiation of reports to counsel and
guide the ratees. The counselling may be done in person or in
writing.”
In the case in hand, as indicated above, the above instructions
have not been followed by the officer who was the RO of the
petitioner during the above period. There is nothing on record to
show that in order to promote the professional development or any
shortcomings on the part of the petitioner which resulted in
downgradation of his CRs, he was ever counselled or guided in
person or in writing by the RO or any other superior authority.
Therefore, without any hesitation, it can be concluded that the CRs of
the petitioner for the above period in dispute i.e. Sept’01 to June’02,
have not been assessed by the RO keeping in view the standing
Instructions on the subject issued vide Order of 1989, referred to
above. The said CRs of the petitioner, thus, having not been
assessed in terms of the relevant provisions aforementioned cannot
be taken on record. In arriving at such a conclusion, I am conscious
of the fact that judicial review in such like administrative decisions is
not permissible but there can be no denial of the fact also that
wherever a finding to the extent is recorded that authority concerned
in taking an administrative decision has failed to comply with the
relevant provisions/Rules governing the field or that the process in
reaching such a decision has not been observed correctly, then this
court in writ jurisdiction under Article 226 of the Constitution of India
can interfere in such like matters. In expressing such an opinion, I am
guided by the observations made by the Apex Court in the case
reported as Union of India v. Lt. Gen. Rajendra Singh Kadyan, (2000)
6 SCC 698. The relevant observations made in this regard in para 29
of the judgment are being reproduced below:-
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“66666It is a well known principle of administrative law that
when relevant considerations have been taken note of and irrelevant
aspects have been eschewed from consideration and that no relevant
aspect has been ignored and the administrative decisions have nexus
with the facts on record, the same cannot be attacked on merits.
Judicial review is permissible only to the extent of finding whether the
process in reaching decision has been observed correctly and not the
decision as such666..”
In the case in hand, the respondent Union of India has not
correctly observed the process of initiation of CRs of the petitioner in
terms of the provisions of para 33 of Order of 1989, noticed above
under which provision, as indicated above, it is obligatory on the part
of authorities concerned to forward all the CRs endorsed by the IO
and RO to the SRO as specified in the Channel of Reporting. Even,
the authority concerned in its capacity as RO, before making the
assessment, has not taken into consideration the provisions of Order
of 1989 as contained in paras 150 and 151 noticed above. In terms of
para 150, quoted above, it is obligatory on the part of any Reporting
officer to counsel and guide the officer concerned and apprise him of
his shortcomings and this has to be done prior to the initiation of the
reports. The petitioner during the aforementioned period in dispute
was not ever guided by the RO and not even apprised of his
shortcomings, if any. Even, the RO while downgrading the CRs of the
petitioner has not given any reason. Therefore, the method adopted
by the RO while making the assessment for the period in dispute and
the resultant action of respondent Union of India in not forwarding the
CRs of the petitioner for the said period to the SRO is held to be not
in accordance with the relevant provisions of Order of 1989, noticed
above, and has to be struck down. The judgments cited by the
learned ASGI, appearing on behalf of respondent Union of India
regarding non visit of the Reporting Officer and non interference by
this court over the decision of Selection Board would, therefore, be of
no avail to them when the initial action of respondent authorities in
making the assessment by the RO and non forwarding of the same to
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the SRO is held to be in violation of the standing Instructions as laid
down in Order of 1989.
For the reasons mentioned above, this petition is disposed of
with the following directions:-
1/ That the downgradation of the CRs of the petitioner for the
period March’98 to June’98, having been done with extraneous
considerations by respondent No.3 in his capacity as RO, cannot be
allowed to continue on record and is struck down. The resultant order
dt. 16th of Jan’06, passed by respondent No.4 while deciding the first
statutory complaint of the petitioner, whereby the said complaint was
accepted partially can also not be sustained and is accordingly
quashed;
2/ That the assessment made by the RO in the CRs of the
petitioner for the period Sept’01 to June’02, is held to be in violation
of the provisions of Paras 150 and 151 of the Standing Instructions of
Order of 1989, and thus cannot be taken into consideration by the
authority concerned in rejecting the claim of the petitioner for further
promotion;
3/ That the CRs of the petitioner for the period Sept’01 to June’02,
can also not be allowed to be taken into consideration as the same
have not been assessed in terms of provision of Para 33 of Order of
1989, and therefore, order dt. 22nd of Feb’07, passed by respondent
No.4 in rejecting the second statutory complaint is also held to be bad
and is accordingly quashed;
4/ That in case any Selection Board was held for considering the
cases of the officers for promotion to the rank of Brigadier during the
period March’98 to June’02, and any of the junior of the petitioner
was promoted, then, the case of the petitioner shall also be
considered for such promotion keeping in view his CRs for the period
prior to March’98;
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5/ That so far as CRs of the petitioner for the period Sept’01 to
June’02, are concerned, these would be forwarded to SRO for reassessment
in accordance with the relevant Rules governing the field
and if on re-assessment by the SRO, in case, the petitioner falls
within the consideration zone for promotion to the next higher rank,
his case shall be considered accordingly;
6/ The authority concerned shall pass appropriate orders within a
period of three months from the date, a copy of this order is made
available to it by the petitioner. Till this is done, the interim order dt.
29th of July’08, so far as it relates to providing the official
accommodation and transportation to the petitioner is concerned,
shall continue to operate.
Disposed of accordingly.
(Nirmal Singh)
Judge
Jammu
Dt.4.3.09
SS/
