{"id":128481,"date":"2002-05-31T00:00:00","date_gmt":"2002-05-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lt-col-p-n-chaturvedi-vs-union-of-india-uoi-and-ors-on-31-may-2002"},"modified":"2016-04-12T01:46:08","modified_gmt":"2016-04-11T20:16:08","slug":"lt-col-p-n-chaturvedi-vs-union-of-india-uoi-and-ors-on-31-may-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lt-col-p-n-chaturvedi-vs-union-of-india-uoi-and-ors-on-31-may-2002","title":{"rendered":"Lt. Col. P.N. Chaturvedi vs Union Of India (Uoi) And Ors. on 31 May, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Lt. Col. P.N. Chaturvedi vs Union Of India (Uoi) And Ors. on 31 May, 2002<\/div>\n
Author: A Sikri<\/div>\n
Bench: S Sinha, A Sikri<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 A.K. Sikri, J.  <\/p>\n
 1.  The petitioner, who is Lt. Colonel in the Army
\nand posted as Assistant Judge Advocate General,
\nHeadquarters Central Command, Lucknow, has filed this
\nWrit petition with the following prayers:\n<\/p>\n
 This Hon’ble court be graciously pleased
\nto issue a writ of Certiorari Mandamus or
\nany other appropriate writ, order or
\ndirection:-\n<\/p>\n
 (a) Directing the respondents to produce
\nthe following original records of the
\ncase-\n<\/p>\n
 (i) All files concerning processing of
\nStatutory complaint dated 22.5.95,
\nincluding comments of IO, RO and SRO, on
\nthe said complaint.\n<\/p>\n
 (ii) File dealing with statutory
\ncomplaints dated 26.03.97 and 20.06.97.\n<\/p>\n
 (iii) Complete ACR Dossier of the petitioner.\n<\/p>\n
 (iv) Selection Board proceedings.\n<\/p>\n
 (b) Quashing the entire ACR for the year
\n1988-89 on grounds of subjectivity and
\ninconsistency.\n<\/p>\n
 (c) Quashing the ACR for the year 1989-90
\nexcept for the assessment of initiating
\nofficer Brigadier TPS Bakshi.\n<\/p>\n
 (d) To consider the petitioner to the
\nrank of Colonel on the basis of his ACRs
\nanterior to 1988-89 and posterior to
\n1989-90 to date, and promote him to such
\nrank with all consequential benefits
\nincluding pay, perks and seniority
\nadmissible to his batchmates.\n<\/p>\n
 2.  As can be inferred from the aforesaid prayers
\nitself, the main grievance of the petitioner is against
\nrecording of the ACRs for the years 1988-89 and
\n1989-90. It is his case that because of wrong
\nrecording of the ACRs for the aforesaid periods, the
\npetitioner’s case for promotion to the post of Colonel
\nwas not considered properly by the selection Board with
\nthe result he was wrongly denied the promotion and his
\njuniors superseded him.\n<\/p>\n
 3.  For the purpose of deciding this writ
\npetition, it is not necessary to trace out the history
\nof the career progression of the petitioner in the
\nArmy. Suffice is to state that the petitioner joined
\nas Commissioned Officer in the Army Education Corps as
\nSecond Lt. in the year 1970. In April, 1974 he was
\ntransferred to the Judge Advocate General’s Department
\n(JAG for short). Since then he is working in JAG and
\nhas got promotions from time to time and stands
\npermanently transferred to this department. As
\nmentioned above, he is at present holding the post of
\nLt. Colonel to which post he was promoted in July, 1987.\n<\/p>\n
 4.  The petitioner states in this writ petition
\nthat his first ACR as Lt. Colonel for the year 1987-88
\nwas initiated by Brig. K.N. Mishra (as he then was who
\nhas retired as Major General). Joint JAG, Army
\nHeadquarters and was reviewed by the Reviewing Officer
\nMajor General A.B. Gorthi and as Superior Reviewing
\nOfficer by Lt. General C.A. Baretto, DGDC & W. He was
\nrated ‘above average’ with 8 points which was his
\nrating for the previous year as well, i.e., for the
\nyear 1986-87. However, for the year 1988-89, i.e., his
\nrating was downgraded and also certain remarks about
\nhis integrity and loyalty were made in paragraph 11 (h)
\nand paragraph 11 (j) respectively of the ACR. He
\nsubmitted statutory complaint on 22nd May, 1995 to the
\nCentral Government, in response to which he received
\norder dated 21st June, 1996 reading as under:\n<\/p>\n
 No. 36500\/293\/JAG\/90\/Ms Compls\/2539\/D(MS) <\/p>\n
Government of India <\/p>\n
Ministry of defense, <\/p>\n
New Delhi, the 21st June, 1996  <\/p>\n
  ORDER  <\/p>\n
 The Central Government, after considering
\nthe statutory complaint dated 22 May 95
\nsubmitted by IC-2984F
\nLt. Col. P.N. Chaturvedi, JAG against his CR
\n6\/88-5\/89 and after examination of
\nrelevant records, hereby rejects the
\ncomplaint subject to expunction of IO and
\nR-O’s assessment against para 11 (h) a
\n(Integrity) and 11 (j) (Loyalty), in CR
\n6\/88-5\/89, on grounds of inconsistency.\n<\/p>\n
 By order and in the name of the President  <\/p>\n
Sd\/-\n<\/p>\n
(Ravi Mathur) <\/p>\n
Director to the Government of India”\n<\/p>\n
 5.  The petitioner was, thus, given partial relief
\nbut he still felt aggrieved as his grievance against
\nfigurative assessment, box grading and recommendation
\nfor promotion was left unredressed.\n<\/p>\n
 6. The petitioner also had apprehensions that for
\nthe period from 7th June, 1989 to 31st May, 1990 i.e.
\nfor the year 1989-90 as well the assessment made would
\nnot be proper inasmuch as the Initiating Officer, the
\nReviewing Officer as well as the Superior Reviewing
\nOfficer for that year were the same officers who had
\nrecorded the ACR for the previous year and their
\nmindset must have influenced the ACR for this year
\nalso. Further, his apprehension was that as
\nBrig. K.N. Mishra had acted in a mala fide manner while
\ninitiating his ACR for the year 1988-89, the same bias
\nmind must have influenced his ACR for the year 1989-90
\nby the same officer again. In these circumstances, the
\npetitioner submitted a statutory complaint dated 26th
\nMarch, 1997 not only against ACR for the year 1989-90
\nbut also against that part of the ACR for the year
\n1988-89 the grievance in respect of which was not
\nredressed by the respondent. This statutory complaint
\nwas, however, returned inactioned by the respondent
\nNo. 3 on 20th May, 1997 stating that as his earlier
\nstatutory complaint had been decided vide order dated
\n21st June, 1996 and that no substantial fresh facts had
\nbeen brought by him which warranted re-examination. He
\npreferred appeal on 20th June, 1997 to consider his
\nappeal on the ground that the earlier order dated 21st
\nJune, 1996 was in respect of the ACR for the year
\n1988-89, and therefore, the statutory complaint made on
\n26th March, 1997 which related to the year 1989-90 as
\nwell needed consideration. This was again rejected
\nvide communication dated 29th November, 1997 which
\ncommunication was received by the petitioner on 12th
\nJanuary, 1998.\n<\/p>\n
 7.  After waiting for one year and nine months,
\nthe petitioner filed the instant petition in October,
\n1999 with the prayers already indicated above.\n<\/p>\n
 8. Col. G.K. Sharma, learned counsel appearing on
\nbehalf of the petitioner, submitted that following
\npoints arise for consideration by this court:\n<\/p>\n
 I. Whether Balance of ACR for 1988-89 left
\nafter decision of respondent No. 1 is
\nliable to be set aside\/quashed on grounds
\nof inconsistency and subjectivity.\n<\/p>\n
 II. Whether assessment of RO in the ACR for
\n1989-90 is liable to be set aside\/quashed
\non grounds of continuing bias,
\nsubjectivity and inconsistency.\n<\/p>\n
 9.  It may be stated at this stage itself that
\nduring arguments, the learned counsel for the
\npetitioner gave up his challenge to assessment in
\nrespect of ACR for the year 1989-90. The reasons and
\nthe circumstances under which this challenge was given
\nup, would be mentioned at the appropriate stage while
\ndealing with the arguments of the parties and stating
\nas to how the matter progressed.\n<\/p>\n
 10. Coming back to the challenge in respect of ACR
\nfor the year 1988-89, the primary submission of learned
\ncounsel for the petitioner was that when the
\npetitioner’s statutory complaint was partially
\nredressed by the Central Government and the remarks
\nagainst him in respect of his integrity and loyalty
\nwere expunged, the respondents were bound to have
\nproper figurative assessment, box grading as well as
\nrecommendation for promotion which were not redressed.
\nFurther, mala fides were attributed against
\nBrig. K.N. Mishra who delayed the initiation of
\npetitioner’s ACR for the petitioner’s ACR for the year
\n1988-89 by four months. Further, the petitioner’s
\nassessment for this period both of Initiating Officer
\nand the Reviewing Officer was inconsistent with his
\noverall career profile. Although, according to the
\nlearned counsel, the pen picture contained the
\nfollowing adverse remarks he was not counselled for the
\nsame at any time during the year which was essential:\n<\/p>\n
  “As a transferee from Army Education
\nCorps, the Officer was expected to
\ndisplay much better potentialities of his
\nconduct and personality. His performance
\nduring the period under review could not
\nreach at its peak.”\n<\/p>\n
 11. It was submitted that the pen picture in the
\nform of remarks mentioned above, smacks of bias as it
\nwas subjective and inconsistent with the overall
\nprofile of the petitioner. Such remarks according to
\npetitioner were liable to be expunged and in support of
\nthis submission, reliance was placed on the following
\njudgments:\n<\/p>\n
 1.   State of U.P. v. Yamuna Shankar Mishra<\/a>
\n  .\n<\/p>\n
 2.    Gurdial Singh Fiji v. State of Punjab<\/a>
\nreported in  1979 SLJ 299 (SC)  .\n<\/p>\n
 3.    U.P. Jal Nigam v. Prabhat Chandra Jain<\/a>
\n  .\n<\/p>\n
 4.   Brig. A.S. Saharan v. Union of India
\nreported in  2000 (1) SLR 80  .\n<\/p>\n
 5.   Col. Rakesh Mohan v. Union of India &
\nOrs.   (SB CWP No. 4244 of 1997 Rajasthan
\nHigh court.\n<\/p>\n
 6.    Prabhu Dayal v. State of Haryana
\nreported in  2001 (4) SCT 293  .\n<\/p>\n
 7.   Lt. Col. S.J. Singh v. Union of India &
\nOrs.<\/a>   reported in  2000 (1) SLR 618  .\n<\/p>\n
 8.   Maj. General R.S. Tyagi v. Union of India
\n& Ors.   (Misc. Pet. No. 2157 of 93 M.P. High
\nCourt, Indore Bench.).\n<\/p>\n
 12. In so far as ACR for the year 1989-90 is
\nconcerned, the submission of the learned counsel for
\nthe petitioner was that this ACR also must have
\ncontained some adverse remarks which were not
\ncommunicated to him. This apprehension was founded on
\nthe ground that the Reviewing Officer on account of
\nlack of contact and continuing bias and already
\nsubjective in respect of ACR for the year 1988-89 must
\nhave awarded low rating\/assessment to the petitioner.\n<\/p>\n
 13. It was further submitted that when such
\nadverse ACRs for the years 1988-89 and 1989-90 were
\nconsidered for promotion of the petitioner to the rank
\nof Colonel, he was not promoted and superseded by the
\njunior officers. Had these ACRs not been considered,
\nthe petitioner would have got promotion to the next
\nhigher rank of Colonel.\n<\/p>\n
 14.  We may immediately deal with the ACR for the
\nyear 1989-90 in the first instance. As already
\nmentioned above, the learned counsel for the petitioner
\nconceded that his statutory complaint submitted against
\nthe ACR for the year 1989-90 was only on the
\napprehension that it would be adverse although this
\nadverse assessment of the Reviewing Officer was not
\ncommunicated to the petitioner and no performance
\ncounselling was given to him during the period under
\nreport. He, therefore, stated that before proceeding
\nfurther, the ACR of this year should be seen by the
\ncourt. It was, under these circumstances, this court
\nlooked into the ACR for the year 1989-90. The
\nexamination of the said ACR revealed that not only
\nthere were no adverse remarks, on the contrary, the
\nInitiating Officer had made positive assessment about
\nthe petitioner by commenting as under:\n<\/p>\n
  “I have found Lt. Colonel Chaturvedi to be
\na hard working and sincere officer. His
\nprofessional knowledge is commensurate
\nwith his appointment and length of
\nservice in the department. He maintains
\ncordial relationship with the staff and
\ncommands at all levels. He is even
\nwilling to shoulder additional
\nresponsibilities. He takes kindly to
\ncriticism and is responsive to advise.
\nHe is dependable and forms happy member
\nof the team.”\n<\/p>\n
 15.  The Reviewing Officer has endorsed the
\naforesaid comments by stating as under:\n<\/p>\n
  “I agree with the remarks of the
\nInitiating Officer.”\n<\/p>\n
 16. Even the box office grading given the
\npetitioner is ‘above average’ and better than the
\ngrading given for the year 1988-89. The Initiating
\nOfficer gave him grading of ‘8’ whereas the Reviewing
\nOfficer gave him ‘7’. When the counsel for the
\npetitioner was read out the aforesaid comments and
\ninformed about the box office grading, the learned
\ncounsel conceded that his apprehension in respect of
\nthe ACR for the year 1989-90 was misplaced and the
\nlearned counsel made the statement that he was not
\npressing his prayer in respect of the ACR for the year
\n1989-90.\n<\/p>\n
 17. In the aforesaid scenario, we proceed to
\nexamine the contentions of the learned counsel for the
\npetitioner in respect of the ACR for the year 1988-89.
\nAdmittedly, the statutory complaint dated 22nd May,
\n1995 of the petitioner in respect of the ACR for the
\nyear 1988-89 was considered by the Central Government
\nand the Central Government accepted it partially
\nwhereby it was ordered that assessment against para 11\n<\/p>\n
(h) regarding integrity and para 11 (j) regarding
\nloyalty be expunged. Order dated 21st June, 1996 to
\nthis effect categorically states that the
\nrepresentation of the petitioner was otherwise rejected
\nmeaning thereby other reliefs sought for by the
\npetitioner in his representation dated 22nd May, 1995,
\nnamely, relating to figurative assessment and box
\ngrading were rejected. Therefore, there may not be any
\nforce in the contention of the learned counsel for the
\npetitioner about non-consideration of petitioner’s
\nstatutory complaint dated 26th March, 1997 which was
\nreturned vide commination dated 20th May, 1997 stating
\nthat his earlier statutory complaint had been decided
\nvide order dated 21st June, 1996 and no substantial
\nfresh facts had been brought out by him which were
\npending re-examination. It may be mentioned that in
\nthis statutory complaint although the petitioner made
\nrepresentation against the ACR for the year 1989-90 as
\nwell, however, as there was nothing adverse in so far
\nas ACR for that year in concerned and the learned
\ncounsel for the petitioner has also dropped his relief
\nto this, effect, the action of the respondents in
\nreturning the statutory complaint vide order dated 20th
\nMay, 1997 cannot be faulted with.\n<\/p>\n
 18.  Coming back to the submissions of the learned
\ncounsel for the petitioner in respect of the ACR for
\nthe year 1988-89, it may be mentioned that the whole
\npremise on the basis of which ACR for this year is
\nchallenged is that the pen picture contained in the
\nsaid ACR was subjective and inconsistent with the
\noverall career profile of the petitioner and
\nallegations of mala fides against Brig. K.N. Mishra
\nSuch contention is ill-founded as would be clear from
\nthe following circumstances:\n<\/p>\n
 a) The portion of ACR for the year 1989-89
\nwhich was expunged, namely para 11 (h) and para 11 (j)
\nrelating to integrity and loyalty respectively was on
\nthe ground of inconsistency. Therefore, the Central
\nGovernment thought it fit to expunge the same.
\nHowever, that will have no relevance with figurative
\nassessment and box grading. This is as per the
\nassessment of the Initiating Officer with which even
\nthe Reviewing Officer had agreed.\n<\/p>\n
 b) Although allegations of mala fides are
\nalleged against Brig. K.N. Mishra on the ground that he
\nhad a biased mind and on that there was apprehension
\nnurtured by the petitioner to the effect that his
\nbiased mind must have influenced his ACR for the year
\n1989-90, it is already observed above that same
\nBrig. K.N. Mishra was appreciative of the petitioner
\nwhile writing his ACR of the aforesaid year 1989-90.
\nThis factor alone proves that the apprehensions of the
\npetitioner qua Brig. K.N. Mishra were clearly
\nmisconceived even relating to ACR for the year 1988-89.\n<\/p>\n
 19.  We may state here that Brig. K.N. Mishra was not
\neven made party in the present writ petition although
\nmalafides on the part of Brig. K.N. Mishra are imputed.
\nThe petitioner had, of course, filed belatedly a CM
\nbeing CM No. 11120\/2001 seeking impleadment of
\nBrig. K.N. Mishra as a party. However, the following
\norder was passed on the 8th November, 2001 in this
\napplication:\n<\/p>\n
  “Before the application is taken up for
\nconsideration, let the petitioner file a
\nsummary of the imputations made against
\nMajor General (retd.) K.N. Mishra, who is
\nsought to be imp leaded in the writ
\npetition. The present application will
\nbe taken up for consideration when
\narguments in the main petition are heard.\n<\/p>\n
 List on 28th January 2002.”\n<\/p>\n
 20. It appears that, prima facie, the court was
\nnot convinced that the allegations made against
\nBrig. K.N. Mishra would constitute malafides inasmuch as
\nthe petitioner was directed to file summary of
\nimputations made against him.\n<\/p>\n
 21. We have gone through the allegations made
\nagainst Brig. K.N. Mishra. As already remarked above,
\nthe same appeared to be figment of petitioner’s
\nimagination as he nurtured this erroneous feeling that
\nBrig. K.N. Mishra acted malafide whereas the records
\nreveal otherwise.\n<\/p>\n
 22.  Moreover, even the allegations, when taken on
\ntheir face value, would not constitute malafides.\n<\/p>\n
 As held by the supreme court in the case of
\n  E.P. Royappa v. State of Tamil Nadu and Anr.<\/a>   ,   the burden of establishing
\nmalafides is very heavy on the person who alleges it.
\nThe allegations of malafides are often more easily made
\nthan proved, and the very seriousness of such
\nallegations demands proof of a high order of
\ncredibility. (See also:    M\/s Sukhiwinder Pal Bipan
\nKumar and Ors. v. State of Punjab and Ors.      and   Kedar Nath Bahl v. State of
\nPunjab & Ors.     .)  <\/p>\n
 c) The petitioner filed his remedy of
\nstatutory complaint in respect of the ACR for the year
\n1988-89. The Central Government applied its mind as is
\nclear from the fact that certain remarks have been
\nexpunged. The reason is also given, namely, ‘on the
\nground of inconsistency’. However, apart from that the
\nstatutory complaint of the petitioner was rejected.
\nThus, the pen picture contained in the said ACR which
\nis sought to be challenged is the assessment made by
\nthe Initiating Officer and accepted by the Reviewing
\nOfficer. What is stated in these remarks is that the
\npetitioner was expected to display much better
\npotentialities of his conduct and personality and that
\nhis performance during the period in question could not
\nreach at its peak. This was the subjective assessment
\nof the Officers concerned who had adjudged his
\nperformance during the year. We do not see any
\ninfringement of any Rules in recording this pen
\npicture. No malafides are also proved. In such
\ncircumstances, this court cannot, while exercising its
\njurisdiction of judicial review, interfere with the
\nsubjective assessment made by the petitioner’s superior
\nofficers. There is no illegality, irrationality or
\nprocedural impropriety. It is not the function of the
\ncourt to examine the performance of the petitioner or
\nsubstitute its own opinion in respect of the
\npetitioner’s performance not it is capable of doing so.\n<\/p>\n
 d) In fact we had examined the original record
\ncontaining the ACRs of the petitioner not only for the
\nyear 1988-89 but of previous year also. The allegation
\nof the petitioner that only in this year his box office
\ngrading was less, was found to be factually incorrect
\nas similar grading the petitioner had got even in the
\nyear 1983-84 as well. It is not in dispute that box
\noffice grading of the petitioner which he got for this
\nyear is not ‘below average’.\n<\/p>\n
 e) Records also reflect that the petitioner
\nwas given oral counselling on several occasions.\n<\/p>\n
 In view of the aforesaid factual matrix of
\nthis case, none of the judgments cited by the
\npetitioner have any application to the facts and
\ncircumstances of the present case.\n<\/p>\n
 23.  In so far as promotion of the petitioner to
\nthe rank of Colonel is concerned, it is not in dispute
\nthat the petitioner was duly considered for promotion
\nbut could not make his mark. There are no allegations
\nof impropriety made against the selection committee.\n<\/p>\n
 24. In this respect, we find force in the
\nsubmission of Ms. Rekha Palli, learned counsel appearing
\nfor the respondents to the effect that the Army is a
\npyramidical organisation and as one goes higher,
\nsupersession is a common incidence of service.
\nPromotions from Major to Lt. Colonel and above are
\nthrough selection Board. As per applicable policy
\neach officer is entitled to three considerations,
\nwhere after if not approved, he deemed to be finally
\nsuperseded. It is also submitted that however, in case
\nany officer gets any relief through complaint etc. he
\nis entitled to a special corresponding consideration by
\nboard with his changed profile. It is further
\nsubmitted that the petitioner had been promoted as
\nLt. Colonel based on the assessment of his overall
\nprofile and comparative batch merit by a duly
\nconstituted Selection Board. She also pointed out that
\nthe petitioner has been considered six times by
\ndifferently constituted Selection Boards, but he could
\nnot be promoted to the rank of Colonel due to his batch
\nand comparative merit based on various factors such as
\nACRs, course reports, performance in staff, honours and
\nawards, disciplinary backgound, war\/operational
\nreports etc.  <\/p>\n
 25. Learned counsel for the petitioner wanted this
\ncourt to compare the comparative merit of the
\npetitioner vis-a-vis other candidates who were
\npromoted. This is not the function of the court.\n<\/p>\n
 26.  In any case, it may be mentioned that the only
\ngrievance made by the peitioner was that his case for
\npromotion should have been considered without taking
\ninto consideration ACRs for the year 1988-89 and
\n1989-90. As far as ACR for the year 1989-90 is
\nconcerned, the learned counsel for the petitioner
\nconceded that the same was properly recorded. We have
\nnot found anything wrong as far as recording of ACR for
\nthe year 1988-89 is concerned. Therefore, such a
\nprayer of the petitioner cannot be allowed.\n<\/p>\n
 27. The writ petition is, thus, without any merit
\nand is accordingly dismissed.\n<\/p>\n
 28.  No Costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Lt. Col. P.N. Chaturvedi vs Union Of India (Uoi) And Ors. on 31 May, 2002 Author: A Sikri Bench: S Sinha, A Sikri 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-128481","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nLt. Col. P.N. 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