JUDGMENT
A.K. Sikri, J.
1. The petitioner, who is Lt. Colonel in the Army
and posted as Assistant Judge Advocate General,
Headquarters Central Command, Lucknow, has filed this
Writ petition with the following prayers:
This Hon’ble court be graciously pleased
to issue a writ of Certiorari Mandamus or
any other appropriate writ, order or
direction:-
(a) Directing the respondents to produce
the following original records of the
case-
(i) All files concerning processing of
Statutory complaint dated 22.5.95,
including comments of IO, RO and SRO, on
the said complaint.
(ii) File dealing with statutory
complaints dated 26.03.97 and 20.06.97.
(iii) Complete ACR Dossier of the petitioner.
(iv) Selection Board proceedings.
(b) Quashing the entire ACR for the year
1988-89 on grounds of subjectivity and
inconsistency.
(c) Quashing the ACR for the year 1989-90
except for the assessment of initiating
officer Brigadier TPS Bakshi.
(d) To consider the petitioner to the
rank of Colonel on the basis of his ACRs
anterior to 1988-89 and posterior to
1989-90 to date, and promote him to such
rank with all consequential benefits
including pay, perks and seniority
admissible to his batchmates.
2. As can be inferred from the aforesaid prayers
itself, the main grievance of the petitioner is against
recording of the ACRs for the years 1988-89 and
1989-90. It is his case that because of wrong
recording of the ACRs for the aforesaid periods, the
petitioner’s case for promotion to the post of Colonel
was not considered properly by the selection Board with
the result he was wrongly denied the promotion and his
juniors superseded him.
3. For the purpose of deciding this writ
petition, it is not necessary to trace out the history
of the career progression of the petitioner in the
Army. Suffice is to state that the petitioner joined
as Commissioned Officer in the Army Education Corps as
Second Lt. in the year 1970. In April, 1974 he was
transferred to the Judge Advocate General’s Department
(JAG for short). Since then he is working in JAG and
has got promotions from time to time and stands
permanently transferred to this department. As
mentioned above, he is at present holding the post of
Lt. Colonel to which post he was promoted in July, 1987.
4. The petitioner states in this writ petition
that his first ACR as Lt. Colonel for the year 1987-88
was initiated by Brig. K.N. Mishra (as he then was who
has retired as Major General). Joint JAG, Army
Headquarters and was reviewed by the Reviewing Officer
Major General A.B. Gorthi and as Superior Reviewing
Officer by Lt. General C.A. Baretto, DGDC & W. He was
rated ‘above average’ with 8 points which was his
rating for the previous year as well, i.e., for the
year 1986-87. However, for the year 1988-89, i.e., his
rating was downgraded and also certain remarks about
his integrity and loyalty were made in paragraph 11 (h)
and paragraph 11 (j) respectively of the ACR. He
submitted statutory complaint on 22nd May, 1995 to the
Central Government, in response to which he received
order dated 21st June, 1996 reading as under:
No. 36500/293/JAG/90/Ms Compls/2539/D(MS)
Government of India
Ministry of defense,
New Delhi, the 21st June, 1996
ORDER
The Central Government, after considering
the statutory complaint dated 22 May 95
submitted by IC-2984F
Lt. Col. P.N. Chaturvedi, JAG against his CR
6/88-5/89 and after examination of
relevant records, hereby rejects the
complaint subject to expunction of IO and
R-O’s assessment against para 11 (h) a
(Integrity) and 11 (j) (Loyalty), in CR
6/88-5/89, on grounds of inconsistency.
By order and in the name of the President
Sd/-
(Ravi Mathur)
Director to the Government of India”
5. The petitioner was, thus, given partial relief
but he still felt aggrieved as his grievance against
figurative assessment, box grading and recommendation
for promotion was left unredressed.
6. The petitioner also had apprehensions that for
the period from 7th June, 1989 to 31st May, 1990 i.e.
for the year 1989-90 as well the assessment made would
not be proper inasmuch as the Initiating Officer, the
Reviewing Officer as well as the Superior Reviewing
Officer for that year were the same officers who had
recorded the ACR for the previous year and their
mindset must have influenced the ACR for this year
also. Further, his apprehension was that as
Brig. K.N. Mishra had acted in a mala fide manner while
initiating his ACR for the year 1988-89, the same bias
mind must have influenced his ACR for the year 1989-90
by the same officer again. In these circumstances, the
petitioner submitted a statutory complaint dated 26th
March, 1997 not only against ACR for the year 1989-90
but also against that part of the ACR for the year
1988-89 the grievance in respect of which was not
redressed by the respondent. This statutory complaint
was, however, returned inactioned by the respondent
No. 3 on 20th May, 1997 stating that as his earlier
statutory complaint had been decided vide order dated
21st June, 1996 and that no substantial fresh facts had
been brought by him which warranted re-examination. He
preferred appeal on 20th June, 1997 to consider his
appeal on the ground that the earlier order dated 21st
June, 1996 was in respect of the ACR for the year
1988-89, and therefore, the statutory complaint made on
26th March, 1997 which related to the year 1989-90 as
well needed consideration. This was again rejected
vide communication dated 29th November, 1997 which
communication was received by the petitioner on 12th
January, 1998.
7. After waiting for one year and nine months,
the petitioner filed the instant petition in October,
1999 with the prayers already indicated above.
8. Col. G.K. Sharma, learned counsel appearing on
behalf of the petitioner, submitted that following
points arise for consideration by this court:
I. Whether Balance of ACR for 1988-89 left
after decision of respondent No. 1 is
liable to be set aside/quashed on grounds
of inconsistency and subjectivity.
II. Whether assessment of RO in the ACR for
1989-90 is liable to be set aside/quashed
on grounds of continuing bias,
subjectivity and inconsistency.
9. It may be stated at this stage itself that
during arguments, the learned counsel for the
petitioner gave up his challenge to assessment in
respect of ACR for the year 1989-90. The reasons and
the circumstances under which this challenge was given
up, would be mentioned at the appropriate stage while
dealing with the arguments of the parties and stating
as to how the matter progressed.
10. Coming back to the challenge in respect of ACR
for the year 1988-89, the primary submission of learned
counsel for the petitioner was that when the
petitioner’s statutory complaint was partially
redressed by the Central Government and the remarks
against him in respect of his integrity and loyalty
were expunged, the respondents were bound to have
proper figurative assessment, box grading as well as
recommendation for promotion which were not redressed.
Further, mala fides were attributed against
Brig. K.N. Mishra who delayed the initiation of
petitioner’s ACR for the petitioner’s ACR for the year
1988-89 by four months. Further, the petitioner’s
assessment for this period both of Initiating Officer
and the Reviewing Officer was inconsistent with his
overall career profile. Although, according to the
learned counsel, the pen picture contained the
following adverse remarks he was not counselled for the
same at any time during the year which was essential:
“As a transferee from Army Education
Corps, the Officer was expected to
display much better potentialities of his
conduct and personality. His performance
during the period under review could not
reach at its peak.”
11. It was submitted that the pen picture in the
form of remarks mentioned above, smacks of bias as it
was subjective and inconsistent with the overall
profile of the petitioner. Such remarks according to
petitioner were liable to be expunged and in support of
this submission, reliance was placed on the following
judgments:
1. State of U.P. v. Yamuna Shankar Mishra
.
2. Gurdial Singh Fiji v. State of Punjab
reported in 1979 SLJ 299 (SC) .
3. U.P. Jal Nigam v. Prabhat Chandra Jain
.
4. Brig. A.S. Saharan v. Union of India
reported in 2000 (1) SLR 80 .
5. Col. Rakesh Mohan v. Union of India &
Ors. (SB CWP No. 4244 of 1997 Rajasthan
High court.
6. Prabhu Dayal v. State of Haryana
reported in 2001 (4) SCT 293 .
7. Lt. Col. S.J. Singh v. Union of India &
Ors. reported in 2000 (1) SLR 618 .
8. Maj. General R.S. Tyagi v. Union of India
& Ors. (Misc. Pet. No. 2157 of 93 M.P. High
Court, Indore Bench.).
12. In so far as ACR for the year 1989-90 is
concerned, the submission of the learned counsel for
the petitioner was that this ACR also must have
contained some adverse remarks which were not
communicated to him. This apprehension was founded on
the ground that the Reviewing Officer on account of
lack of contact and continuing bias and already
subjective in respect of ACR for the year 1988-89 must
have awarded low rating/assessment to the petitioner.
13. It was further submitted that when such
adverse ACRs for the years 1988-89 and 1989-90 were
considered for promotion of the petitioner to the rank
of Colonel, he was not promoted and superseded by the
junior officers. Had these ACRs not been considered,
the petitioner would have got promotion to the next
higher rank of Colonel.
14. We may immediately deal with the ACR for the
year 1989-90 in the first instance. As already
mentioned above, the learned counsel for the petitioner
conceded that his statutory complaint submitted against
the ACR for the year 1989-90 was only on the
apprehension that it would be adverse although this
adverse assessment of the Reviewing Officer was not
communicated to the petitioner and no performance
counselling was given to him during the period under
report. He, therefore, stated that before proceeding
further, the ACR of this year should be seen by the
court. It was, under these circumstances, this court
looked into the ACR for the year 1989-90. The
examination of the said ACR revealed that not only
there were no adverse remarks, on the contrary, the
Initiating Officer had made positive assessment about
the petitioner by commenting as under:
“I have found Lt. Colonel Chaturvedi to be
a hard working and sincere officer. His
professional knowledge is commensurate
with his appointment and length of
service in the department. He maintains
cordial relationship with the staff and
commands at all levels. He is even
willing to shoulder additional
responsibilities. He takes kindly to
criticism and is responsive to advise.
He is dependable and forms happy member
of the team.”
15. The Reviewing Officer has endorsed the
aforesaid comments by stating as under:
“I agree with the remarks of the
Initiating Officer.”
16. Even the box office grading given the
petitioner is ‘above average’ and better than the
grading given for the year 1988-89. The Initiating
Officer gave him grading of ‘8’ whereas the Reviewing
Officer gave him ‘7’. When the counsel for the
petitioner was read out the aforesaid comments and
informed about the box office grading, the learned
counsel conceded that his apprehension in respect of
the ACR for the year 1989-90 was misplaced and the
learned counsel made the statement that he was not
pressing his prayer in respect of the ACR for the year
1989-90.
17. In the aforesaid scenario, we proceed to
examine the contentions of the learned counsel for the
petitioner in respect of the ACR for the year 1988-89.
Admittedly, the statutory complaint dated 22nd May,
1995 of the petitioner in respect of the ACR for the
year 1988-89 was considered by the Central Government
and the Central Government accepted it partially
whereby it was ordered that assessment against para 11
(h) regarding integrity and para 11 (j) regarding
loyalty be expunged. Order dated 21st June, 1996 to
this effect categorically states that the
representation of the petitioner was otherwise rejected
meaning thereby other reliefs sought for by the
petitioner in his representation dated 22nd May, 1995,
namely, relating to figurative assessment and box
grading were rejected. Therefore, there may not be any
force in the contention of the learned counsel for the
petitioner about non-consideration of petitioner’s
statutory complaint dated 26th March, 1997 which was
returned vide commination dated 20th May, 1997 stating
that his earlier statutory complaint had been decided
vide order dated 21st June, 1996 and no substantial
fresh facts had been brought out by him which were
pending re-examination. It may be mentioned that in
this statutory complaint although the petitioner made
representation against the ACR for the year 1989-90 as
well, however, as there was nothing adverse in so far
as ACR for that year in concerned and the learned
counsel for the petitioner has also dropped his relief
to this, effect, the action of the respondents in
returning the statutory complaint vide order dated 20th
May, 1997 cannot be faulted with.
18. Coming back to the submissions of the learned
counsel for the petitioner in respect of the ACR for
the year 1988-89, it may be mentioned that the whole
premise on the basis of which ACR for this year is
challenged is that the pen picture contained in the
said ACR was subjective and inconsistent with the
overall career profile of the petitioner and
allegations of mala fides against Brig. K.N. Mishra
Such contention is ill-founded as would be clear from
the following circumstances:
a) The portion of ACR for the year 1989-89
which was expunged, namely para 11 (h) and para 11 (j)
relating to integrity and loyalty respectively was on
the ground of inconsistency. Therefore, the Central
Government thought it fit to expunge the same.
However, that will have no relevance with figurative
assessment and box grading. This is as per the
assessment of the Initiating Officer with which even
the Reviewing Officer had agreed.
b) Although allegations of mala fides are
alleged against Brig. K.N. Mishra on the ground that he
had a biased mind and on that there was apprehension
nurtured by the petitioner to the effect that his
biased mind must have influenced his ACR for the year
1989-90, it is already observed above that same
Brig. K.N. Mishra was appreciative of the petitioner
while writing his ACR of the aforesaid year 1989-90.
This factor alone proves that the apprehensions of the
petitioner qua Brig. K.N. Mishra were clearly
misconceived even relating to ACR for the year 1988-89.
19. We may state here that Brig. K.N. Mishra was not
even made party in the present writ petition although
malafides on the part of Brig. K.N. Mishra are imputed.
The petitioner had, of course, filed belatedly a CM
being CM No. 11120/2001 seeking impleadment of
Brig. K.N. Mishra as a party. However, the following
order was passed on the 8th November, 2001 in this
application:
“Before the application is taken up for
consideration, let the petitioner file a
summary of the imputations made against
Major General (retd.) K.N. Mishra, who is
sought to be imp leaded in the writ
petition. The present application will
be taken up for consideration when
arguments in the main petition are heard.
List on 28th January 2002.”
20. It appears that, prima facie, the court was
not convinced that the allegations made against
Brig. K.N. Mishra would constitute malafides inasmuch as
the petitioner was directed to file summary of
imputations made against him.
21. We have gone through the allegations made
against Brig. K.N. Mishra. As already remarked above,
the same appeared to be figment of petitioner’s
imagination as he nurtured this erroneous feeling that
Brig. K.N. Mishra acted malafide whereas the records
reveal otherwise.
22. Moreover, even the allegations, when taken on
their face value, would not constitute malafides.
As held by the supreme court in the case of
E.P. Royappa v. State of Tamil Nadu and Anr. , the burden of establishing
malafides is very heavy on the person who alleges it.
The allegations of malafides are often more easily made
than proved, and the very seriousness of such
allegations demands proof of a high order of
credibility. (See also: M/s Sukhiwinder Pal Bipan
Kumar and Ors. v. State of Punjab and Ors. and Kedar Nath Bahl v. State of
Punjab & Ors. .)
c) The petitioner filed his remedy of
statutory complaint in respect of the ACR for the year
1988-89. The Central Government applied its mind as is
clear from the fact that certain remarks have been
expunged. The reason is also given, namely, ‘on the
ground of inconsistency’. However, apart from that the
statutory complaint of the petitioner was rejected.
Thus, the pen picture contained in the said ACR which
is sought to be challenged is the assessment made by
the Initiating Officer and accepted by the Reviewing
Officer. What is stated in these remarks is that the
petitioner was expected to display much better
potentialities of his conduct and personality and that
his performance during the period in question could not
reach at its peak. This was the subjective assessment
of the Officers concerned who had adjudged his
performance during the year. We do not see any
infringement of any Rules in recording this pen
picture. No malafides are also proved. In such
circumstances, this court cannot, while exercising its
jurisdiction of judicial review, interfere with the
subjective assessment made by the petitioner’s superior
officers. There is no illegality, irrationality or
procedural impropriety. It is not the function of the
court to examine the performance of the petitioner or
substitute its own opinion in respect of the
petitioner’s performance not it is capable of doing so.
d) In fact we had examined the original record
containing the ACRs of the petitioner not only for the
year 1988-89 but of previous year also. The allegation
of the petitioner that only in this year his box office
grading was less, was found to be factually incorrect
as similar grading the petitioner had got even in the
year 1983-84 as well. It is not in dispute that box
office grading of the petitioner which he got for this
year is not ‘below average’.
e) Records also reflect that the petitioner
was given oral counselling on several occasions.
In view of the aforesaid factual matrix of
this case, none of the judgments cited by the
petitioner have any application to the facts and
circumstances of the present case.
23. In so far as promotion of the petitioner to
the rank of Colonel is concerned, it is not in dispute
that the petitioner was duly considered for promotion
but could not make his mark. There are no allegations
of impropriety made against the selection committee.
24. In this respect, we find force in the
submission of Ms. Rekha Palli, learned counsel appearing
for the respondents to the effect that the Army is a
pyramidical organisation and as one goes higher,
supersession is a common incidence of service.
Promotions from Major to Lt. Colonel and above are
through selection Board. As per applicable policy
each officer is entitled to three considerations,
where after if not approved, he deemed to be finally
superseded. It is also submitted that however, in case
any officer gets any relief through complaint etc. he
is entitled to a special corresponding consideration by
board with his changed profile. It is further
submitted that the petitioner had been promoted as
Lt. Colonel based on the assessment of his overall
profile and comparative batch merit by a duly
constituted Selection Board. She also pointed out that
the petitioner has been considered six times by
differently constituted Selection Boards, but he could
not be promoted to the rank of Colonel due to his batch
and comparative merit based on various factors such as
ACRs, course reports, performance in staff, honours and
awards, disciplinary backgound, war/operational
reports etc.
25. Learned counsel for the petitioner wanted this
court to compare the comparative merit of the
petitioner vis-a-vis other candidates who were
promoted. This is not the function of the court.
26. In any case, it may be mentioned that the only
grievance made by the peitioner was that his case for
promotion should have been considered without taking
into consideration ACRs for the year 1988-89 and
1989-90. As far as ACR for the year 1989-90 is
concerned, the learned counsel for the petitioner
conceded that the same was properly recorded. We have
not found anything wrong as far as recording of ACR for
the year 1988-89 is concerned. Therefore, such a
prayer of the petitioner cannot be allowed.
27. The writ petition is, thus, without any merit
and is accordingly dismissed.
28. No Costs.