{"id":221137,"date":"2009-03-04T00:00:00","date_gmt":"2009-03-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/in-the-high-court-of-jammu-kashmir-vs-union-of-india-and-ors-on-4-march-2009"},"modified":"2015-10-03T23:31:57","modified_gmt":"2015-10-03T18:01:57","slug":"in-the-high-court-of-jammu-kashmir-vs-union-of-india-and-ors-on-4-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/in-the-high-court-of-jammu-kashmir-vs-union-of-india-and-ors-on-4-march-2009","title":{"rendered":"In The High Court Of Jammu & Kashmir … vs Union Of India And Ors on 4 March, 2009"},"content":{"rendered":"
Jammu High Court<\/div>\n
In The High Court Of Jammu & Kashmir … vs Union Of India And Ors on 4 March, 2009<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n IN THE HIGH COURT OF JAMMU & KASHMIR AT JAMMU            \nSWP No. 625 of 07  \nCol. Rajan Bakshi\nPetitioner\nUnion of India and ors\nRespondent  \n!M\/s SS Lehar, Sr.Adv. with Akshay Anand and Meharbaan Singh   \n^Mr V.K. Magoo, ASGI,  with Respondent No.4 in person  \n\nHon'ble Mr Justice Nirmal Singh, Judge\nDATE : 04\/03\/09 \n:J U D G M E N T :\n<\/pre>\n
Petitioner is seeking writ in the nature certiorari quashing
\norder dt. 16th of Jan’06, passed by respondent No.4, whereby the
\nstatutory complaint dt. 3rd of March’04, filed by the petitioner has
\nbeen accepted partially and further expunging the entire assessment
\nrecorded by the respondent No.3 in the ACR of the petitioner w.e.f.
\nMarch’98 to June’98. Direction is also sought for quashing order dt.
\n22nd of Feb’07, passed by the respondent No.4, whereby the statutory
\ncomplaint of the petitioner dt. 8th of May’06, has been dismissed and
\nexpunging the low grading awarded to the petitioner in the ACR
\npertaining to the period Sept’01 to 30th of June’02.
\nWrit is also sought in the nature of mandamus commanding
\nupon the respondents to consider the case of the petitioner for
\nappointment\/promotion to the rank of Brigadier w.e.f. the date his
\njuniors were so promoted.\n<\/p>\n
The case set up by the petitioner is that in the month of Oct’95,
\nhe was posted as SPO in Central Ordinance Depot (COD) which
\nposting was given to him solely on the basis of merit and outstanding
\n2<\/span>
\nperformance.It is stated that during the above posting, the petitioner
\nearned 5 CRs out of which three were outstanding for which nine
\npoints were given and two were assessed above average for which
\nhe was awarded 8 points. It is stated that the petitioner was getting 9
\npoints consistently i.e. outstanding CRs from June’96 to Nov’96,
\nDec’96 to May’97 and June’97 to Feb’98.\n<\/p>\n
The grievance of the petitioner is that for the period w.e.f.
\nMarch’98 to June’98 i.e. only for three months, his CRs which were
\ninitiated by the concerned Initiating Officer were graded low by
\nrespondent No.3,who was the Reviewing Officer and this was done
\nwith malafide intention. To substantiate the assertion regarding
\nmalafide on the part of said respondent, it is stated that the
\nReviewing Officer-respondent No.3 after taking over the duties of
\nADG OS(TS) asked the petitioner as to how the distribution of Rate
\nContract Batteries is to be made to various suppliers. It is stated that
\nas per the prevailing practice, the order was to be placed before two
\nfirms i.e. M\/s Geep India, New Delhi and M\/s Novino which is a
\nJapanese Collaboration firm, but the said respondent told the
\npetitioner to place more orders to the M\/s Geep India, which was
\ndeclined by the petitioner. It is stated that the petitioner thereafter
\nbrought the matter to the notice of Commandant, who directed the
\npetitioner to follow the past norms unless there is some direction
\notherwise by the Army Headquarters. It is stated that the orders were
\nplaced before the two firms as per the practice as a result of which
\nrespondent No.3 was annoyed and it was only on this basis, the said
\nrespondent who was the Reviewing Officer, with a malafide intention
\ndegraded the CRs of the petitioner for the aforementioned three
\nmonths which resulted in non consideration of the petitioner’s case
\nfor further promotion.\n<\/p>\n
The petitioner further submitted that as he was not
\ncommunicated about the low gradation of his CRs for the
\naforementioned period and this fact came to his notice only in
\nMarch’04, he without any delay, filed the statutory complaint in
\nMarch’04 itself, which was partially allowed and the authority
\n3<\/span>
\nconcerned expunged the assessment made by the RO on twelve
\npoints but no relief regarding further promotion was given to the
\npetitioner as the assessment made by the RO was not expunged in
\ntoto.\n<\/p>\n
The further case as projected by the petitioner is that in April’01,
\nthe petitioner was transferred and posted as Dir. (OS) (Col), HQ
\nSouthern Command, where respondent No.3, became his Initiating
\nOfficer. It is stated that in the month of April\/May’02, when the
\nmarriage of daughter of respondent No.3 was fixed, number of
\nfunctions were arranged in the house of said respondent with the
\nhelp of Resources available in Rajinder Singh Institute, Pune. It is
\nstated that it was during this period again that the official relations of
\nthe petitioner and the respondent No.3 who was now his Initiating
\nOfficer became extravagant and this resulted in downgrading of the
\nCRs of the petitioner for the period Sept’01 to June’02, by the
\nReviewing Officer namely Lt. Gen.MA Gurbaxani. It is stated that this
\nwas done due to the adverse feed back by the respondent No.3 (IO)
\nto the Reviewing Officer of the petitioner. It is stated that the
\npetitioner thereafter filed another Statutory complaint on 8th of May’06
\nbefore the competent authority, which was rejected vide order dt. 22nd
\nof Feb’07. It is stated that while deciding the second statutory
\ncomplaint of the petitioner, the respondents did not consider the
\nservice record of the petitioner and his previous CRs. It is stated that
\nthe downgraded CRs of the petitioner were never communicated to
\nhim and it was only when No.2 Selection Board held in Jan’06 , did
\nnot empanel the petitioner for promotion to the rank of Brigadier, that
\nhe came to know about his adverse CRs for the period Sept’01 to
\n30th of June’02. It is the above action of respondents regarding
\ndowngrading of CRs of the petitioner for the period March’98 to
\nJune’98, Sept’01 to June’02, and the resultant rejection of the
\nstatutory complaints filed in this regard and non consideration of his
\ncase for promotion to the next higher rank, which is the subject
\nmatter of challenge in the present petition.\n<\/p>\n
4<\/span><\/p>\n
Counter has been filed by respondent-Union of India, stating
\ntherein that the assessment of the officers in the CRs is regulated by
\nSpecial Army Order (SAO) of 1989 dt. 3rd of May’89, which stands
\nreplaced by Army Order 45 of 2001, and other relevant policies
\nissued from time to time. The entire assessment of an officer in any
\nCR consists of the assessment made by three different reporting
\nofficers i.e. IO, RO and SRO and these assessments are made
\nindependent of each other. While considering an officer for
\npromotion to the next rank above the rank of Colonel, the Selection
\nBoard takes into consideration number of facts and the
\nselection\/rejection of an officer for further promotion depends upon
\nhis overall service profile and the comparative merit within his batchmates.
\nIt is stated that in the present case, the petitioner whose case
\nwas considered by the Selection Boards, was not found suitable for
\nfurther promotion after taking into consideration his overall service
\nprofile. It is stated that on considering the petitioner’s earlier statutory
\ncomplaint, the competent authority partially accepted the same and
\nexpunged those remarks of the RO which were inconsistent with the
\nservice profile of the petitioner. It is stated that the second complaint
\nfiled by the petitioner dt. 8th of May’06 was also considered but the
\nsame having been found without any basis was rightly rejected vide
\norder impugned dt. 22nd Feb’07. It is thus stated that the petitioner
\ncannot have any grievance.\n<\/p>\n
Learned counsel for the petitioner submits that it was the
\nmalafide intention on the part of respondent No.3 which ultimately led
\nto the downgrading of CRs of the petitioner and his resultant non
\nconsideration for promotion to the next higher rank. In order to justify
\nthe stand taken in this regard, learned counsel for the petitioner drew
\nmy attention to the circumstances which led to such a situation. It was
\nstated that non fulfilment of the desire of the respondent No.3
\nregarding placing the order for supply of batteries to M\/s Geep India
\nLtd, was one of the reason which led to downgrading of the CRs of
\nthe petitioner for the earlier period i.e. March’98 to June’98, by the
\naforementioned respondent who was the Reviewing Officer of the
\n5<\/span>
\npetitioner at the relevant time. It was further stated that it was again
\ndue to uncongenial atmosphere during the initiation of the CRs for the
\nperiod Sept’01 to June’02, when the respondent NO.3 was the
\nInitiating Officer that the CRs of the petitioner for the aforesaid period
\nwere downgraded by the Reviewing Officer on the feedback of
\nrespondent No.3. It was thus stated that in both the cases,
\nrespondent No.3 was instrumental in downgrading the CRs of the
\npetitioner which resulted in spoiling his career.
\nLearned counsel for the petitioner further submitted that when
\nthe respondent authorities considered the earlier complaint filed by
\nthe petitioner against his down-gradation for the period March’98 to
\nJune’98, and expunged 12 downgraded qualities as assessed by the
\nrespondent No.3 as Reviewing Officer, then there was no reason not
\nto expunge the remaining assessment made by the said officer. It
\nwas further stated that even while rejecting the second complaint
\nfiled for expunging the adverse remarks made during the period
\nSept’01 to June’02, no reasons have been given by the authority
\nconcerned. It is submitted that in terms of amendment made in para
\n33 of Special Army Order, 1989, referred to above, (here-in-after
\nreferred to as Order of 1989), all Confidential Reports which are
\nendorsed by the IO and the RO are to be forwarded to the SRO and
\nin terms of para 101, it is incumbent upon the Senior Reporting
\nOfficer to endorse specific remarks on the assessment made by the
\njunior reporting officer by indicating reasons. In terms of para 102 of
\nthe said Order, it is obligatory on the part of Senior Reporting Officer
\nto see that the Confidential Report has been made keeping in view
\nthe provisions of the Order of 1989. It is stated that in the present
\ncase, the reports of the petitioner were not forwarded to the SRO in
\nterms of para 33 of Order of 1989 and therefore, in absence of any
\nendorsement to be made by the SRO as per the provisions of paras
\n101 and 102, the said Confidential Reports which have been
\ndowngraded cannot be made the basis of rejecting the claim of the
\npetitioner for promotion to the next higher rank. It is further submitted
\nthat the downgraded CRs of the petitioner were never communicated
\nto him and he was not warned verbally or in writing by his superior
\n6<\/span>
\nofficer regarding any shortcoming. It is stated that the Reporting
\nofficers of the petitioner have otherwise not done the spot visit in
\norder to assess the performance of the petitioner. It is stated when
\nthe Confidential report of the petitioner is not based on the material
\navailable on record, then this should not be taken into consideration
\nby the authorities concerned and direction may be issued to reassess
\nthe same. Reliance in this regard is being placed on a
\njudgment passed by this Court in the Case of Capt. Rajiv Ranjan v.
\nUOI and ors, SWP No. 1525\/94 decided on Ist of Jan’2000.
\nThe further plea put forth by the learned counsel for the
\npetitioner is that when no reasons are mentioned for downgrading the
\nCR of an officer or nor the change is communicated to the said
\nofficer\/employee, such entries should not be allowed to continue on
\nrecord. Reliance in this regard is being placed on a judgment of the
\nApex Court reported as JT 1996 (1) SC 641, UP Jal Nigam and
\nothers v. Prabhat Chandra Jain and ors.\n<\/p>\n
Learned counsel for the respondent-Union of India, however,
\ncountered the above pleas of the counsel for the petitioner by
\nprojecting that in terms of para 33 referred to above, when there is a
\ndifference of 2 or more marks between the assessment made by the
\nIO and RO, only then the report is to be forwarded to the SRO for his
\nendorsement. It is stated that in case, the difference is less than 2
\nbetween the assessment made by the IO and RO, then, the SRO
\nneed not to make any endorsement or to record any reasons. In the
\ncase of the petitioner also, as the difference was less than 2,
\ntherefore, the CR of the petitioner was not forwarded to SRO for his
\nendorsement. It is stated that the provisions of the Order of 1989
\nhave thus been fully complied with. So far as plea of the petitioner
\nthat no spot visit was done, placing reliance on a judgment passed by
\nthe High Court of Delhi in the case of CWP No.6925\/01, Col RK
\nThakar v. UOI, decided on 29th of Aug’08, it is stated that no spot
\nverification is necessary by any of the Reporting Officer. Placing
\nreliance on a judgment of the Apex Court reported as (2001)10 SCC
\n424, Amrik Singh v. UOI and two other judgments of Delhi High Court
\n7<\/span>
\nrendered in the case of D.S. Pandey v. UOI, CWP No.6575\/02,
\ndecided on 31st of May’05 and Col Amarjeet v. UOI, CWP
\nNo.5632\/08, decided on 5th of Aug’08, it is stated that this court in writ
\njurisdiction cannot sit as an appellate court over the decision of the
\nSelection Board.\n<\/p>\n
Before adverting to the pleas raised by the counsel for the
\nparties, it would be apt to notice paras 33 (amended), 101 and 102 of
\nOrder of 1989, on which reliance has been placed by both the sides.
\nThe said provisions read as under:-\n<\/p>\n
“33.All CRs will be endorsed by the IO and the RO and
\nforwarded to the SRO as specified in the channel of Reporting. The
\nSRO will be required to endorse the CR under the following
\nconditions:-\n<\/p>\n
(a) When there is difference of 2 or more marks between the
\nassessment of IO and RO in the Box Grading.\n<\/p>\n
(b) When between IO and RO only one person has endorsed.\n<\/p>\n
(c) Outstanding, low and Below Average assessment by IO and\/or
\nRO.”\n<\/p>\n
“101: It will be incumbent upon the senior reporting officers (i.e.
\nRO\/SRO\/NSRO and HTO\/Head of Arm or Service) to endorse
\nspecific remarks on the assessment by the junior reporting officer for
\nthe following in pen picture:-\n<\/p>\n
(a) Whether the assessment by junior reporting officer is “Liberal”,
\n“Justified” or “Strict”.\n<\/p>\n
(b) Recommendations for expunction of assessment which is not
\nconsidered to be objective. These recommendations will need
\nto be supported by reasons.\n<\/p>\n
“102: In addition, it will also be obligatory for the senior reporting
\nofficers to ensure that the CR has been rendered in accordance with
\nthe provisions contained in the SAO and that the conditions for
\nconsistency in reporting have been complied with.”\n<\/p>\n
8<\/span><\/p>\n
A perusal of para 33 of the Order of 1989, as amended, shows
\nthat all CRs are to be endorsed by the IO and RO and these are to be
\nforwarded to the SRO as specified in the Channel of Reporting. The
\nSRO is to endorse the CR if there is difference of two or more marks
\nbetween the assessment made by the IO and RO in Box Grading or
\nwhen out of two reporting officers i.e IO and RO ,only one has
\nendorsed the CR or when the CR has been endorsed as outstanding,
\nlow and below average by the IO and RO. But in each case, the CR
\nhas to be forwarded to the SRO. Further, a perusal of paras 101 and
\n102, noticed above, shows that it is incumbent upon the Senior
\nReporting officer to endorse specific remarks on the assessment
\nmade by the Junior reporting officer as to whether the same is
\n‘liberal’, justified’ or strict and it is further obligatory on the part of
\nSenior Reporting Officer to ensure that the CR has been endorsed in
\naccordance with the provisions contained in the Order of 1989.
\nSo far as the CRs of the petitioner for the period March’98 to
\nJune’98, are concerned, the adverse entries made in the said CRs
\nwere not communicated to the petitioner. As noticed above, he came
\nto know about degradation of his CRs in the month of March’04 and
\nthereafter he filed a statutory complaint before the authority
\nconcerned. The said authority after examining the record, considered
\nand decided the statutory complaint of the petitioner by passing order
\ndt. 16th of Jan’06. The operative part of the said order reads as
\nunder:-\n<\/p>\n
“666..The statutory complaint of the officer has been
\nexamined in the light of his career profile, relevant records and
\nanalysis\/recommendations of the Army HQs. It is observed that all
\nthe CRs in the reckonable profile are fair, objective, well
\ncorroborated and performance based except the following
\nassessment of RO in CR 03\/98-06\/98:-\n<\/p>\n
a\/ Para 11) -Decisiveness.\n<\/p>\n
b\/ Para 11(d) -Dependability.\n<\/p>\n
c\/ Para 11(e) -Drive and determination.\n<\/p>\n
9<\/span><\/p>\n
d\/ Para 11(k) -Maturity.\n<\/p>\n
e\/ Para 11(l) -Stamina
\nf\/ Para 11(m) -Tenacity
\ng\/ Para 12(a) -Knowledge of Own Arm\/Service and its
\npractical application on ground
\nh\/ Para 12(b) -Knowledge of other Arms and Services.
\ni\/ Para 12) -Effectiveness in training of his Command
\nj\/ Para 12(e) -Effectiveness in carrying out administration
\nof his Command
\nk\/ Para 12(f) -Equipment management and ability to utilise
\nresources economically.\n<\/p>\n
l\/ Box grading at Para 19.\n<\/p>\n
7. The Central Government, therefore, orders expunction
\nof above mentioned assessment of RO on grounds of
\ninconsistency.\n<\/p>\n
8. Subject to the partial relief ordered as above to IC-
\n36939F Col Rajan Bakshi, AOC, the Central
\nGovernment, rejects his Statutory Complaint dated 03rd
\nMarch 2004 submitted against CR 03\/98-06\/98.”\n<\/p>\n
The petitioner in his statutory complaint had alleged malafide
\nagainst the RO, which is apparent from the order itself referred to
\nabove, passed by the competent authority, stating that the RO was
\ninterested in favouring a particular supplier of ANPRC battery. It was
\nstated that due to his forthright approach, the RO could not succeed
\nin granting benefit to a particular firm. The petitioner had also
\nnarrated the incident regarding distribution of rate contract batteries
\nto various suppliers which is also borne out from order dt. 16th of
\nJan’06, passed by the competent authority. The said order of the
\ncompetent authority which makes mention of the stand taken by the
\npetitioner in his statutory complaint reads as under:-
\n“6..3. The officer alleges that the RO was interested in
\nfavouring a particular supplier of ANPRC battery. However, due to his
\nforthright approach, the RO could not succeed. In the Statutory
\n10<\/span>
\nComplaint, he has given detail regarding the distribution of rate
\ncontract battery to various suppliers.\n<\/p>\n
4. As per the officer, he resisted the move to work out the cost
\nof battery on transportation model. As a result, the RO could
\nnot oblige the firm he wanted to. He alleges that the RO was
\nalso interfering in orders of other items as well. The RO
\nbecame more demanding as this was the time when the
\nimpugned CR was initiated. The officer also states that the
\nRO continued to ask favours after his departure from COD.
\nThe RO did not visit the COD during his tenure and did not
\nlisten to briefing as well which SPO gives to all VIPs. He has
\ninteracted with him only on telephone and never met him.
\nThe RO’s knowledge about the performance of the officer
\nwas inadequate and he was never given any performance
\ncounselling6666″\n<\/p>\n
The competent authority, as noticed above, after considering
\nthe statutory complaint of the petitioner expunged twelve adverse
\nremarks made by the respondent No.3- RO concerned of the
\npetitioner, in his CRs for the period March’98 to June’98. The said
\nadverse entries were expunged on the basis of inconsistency
\nwhereas the ground taken by the petitioner regarding the malafide on
\nthe part of RO was not considered at all, which malafide is writ large
\non the face of it. Even on filing of the said statutory complaint by the
\npetitioner, comments were invited from DDG (Proc), namely IDS
\nBoparai. The said officer submitted his parawise comments. In his
\ncomments to sub para (ii) to (v) of the complaint filed by the
\npetitioner, it has been observed as under:-\n<\/p>\n
“(b) Sub Para (ii) to (v): On going through the correspondence
\natt, I recall that the petitioner had come to me and told me that Maj
\nGen GS Kohli, VSM (Retd) desired that Ms Geep India, New Delhi be
\nallotted heavy portion of the sanctioned ANPRC Btys. Allotment of hy
\nportion of the btys to one firm had serious repercussions for the Army
\nwhen there were only two sources in the country and the btys did not
\nhave any civil end use. I told the petitioner to follow the correct norms
\n11<\/span>
\nas in past, and distribute btys in proportion as per firms capacity so
\nas to ensure both sources are kept alive and competitiveness
\nensured thereby. I also told the petitioner categorically that no
\ndeviation in the allotments would be made unless written directions
\ncontrary to our recommendations are received from the Army HQ.
\nSubsequently, we received letters from DDG OS (L&E) to work out
\ntransportation model cost matrix for distributi9on of btys to the firms.
\nThis would have given clear advantage to Ms Geep- India located in
\nCentral India (Allahabad) over the o0ther firm Ms Novino located at
\nVadodra and would have proved extremely damaging for the Army
\nsubsequently, if the other source had dried and Army had to deal with
\nonly one firm. Accordingly, Army HQ was apprised of the
\nconsequences of allotting btys on transportation model Cost Matrix
\nvide our letter No. 14021\/Y3\/FS\/Prov\/BC dt. 07 Aug 98 (Appx G) and
\nasked for clear cut policy. I had given clear instrs to the petitioner to
\nfollow the correct procedure and transparency in all transaction
\nirrespective of the auth approaching him. I am sure that the Offr
\n(Petitioner) had followed my instrs scrupulously and apprised me time
\nto time if any higher official approached him.”\n<\/p>\n
In para 5 of the comments furnished by the aforesaid officer, it
\nhas been observed as under:-\n<\/p>\n
“5. Notwithstanding the above, the Petitioner is an extremely
\nhard working Offr who has carried out his duties with utmost
\ndedication till last day of his stay in COD Agra. The fact that COD
\nAgra could meet all the requirements of the Fd Army in OP
\nRAKSHAK & PARAKRAM is testimony of the sound provisioning and
\nprocurement made during his tenure as SPO.”\n<\/p>\n
Ultimately, after making the above noticed comments, the
\nofficer concerned made following recommendation:-
\n” Recommendation: I recommend that the complaint be
\nexamined on its merit and if the assessment of the RO is out of tune
\n12<\/span>
\nwith the performance of the petitioner in that appointment\/overall
\nperformance, the same may be expunged.”\n<\/p>\n
A perusal of the above comments and the ultimate
\nrecommendation made by the DDG(Proc), shows that the petitioner
\nhad rightly alleged the malafide against his RO-respondent No.3 in
\nhis statutory complaint but the authority concerned while disposing of
\nthe said complaint filed by the petitioner in this regard did not rightly
\nconsider the above aspect of the matter and partially accepted the
\nstatutory complaint by expunging only twelve adverse entries made
\nby the RO only on the basis of inconsistency, which in my opinion, is
\nnot in accordance with the law. When the malafide on the part of the
\nRO of the petitioner stood proved, which is apparent from the perusal
\nof the comments furnished by the DDG(Proc) noticed above, then, all
\nthe adverse entries made in the CRs of the petitioner by the then RO
\ni.e. respondent No.3 for the period March’98 to June’98, should have
\nbeen expunged and should not have been taken into consideration by
\nthe authority concerned in rejecting the claim of the petitioner for
\nfurther promotion, if any. All these adverse entries made in the CR
\nof the petitioner for the period referred to above, by the RO
\nconcerned with malafide intention, thus, would be deemed to have
\nbeen expunged. The order dt. 16th of Jan’06, passed by respondent
\nNo.4 whereby the first statutory complaint of the petitioner has been
\npartially accepted without adverting to the plea of the petitioner
\nregarding malafide is also not sustainable.\n<\/p>\n
The other adverse entries which are also being sought to be
\nquashed pertain to the period Sept’01 to June’02. Again the malafide
\non the part of respondent No.3 who was IO of the petitioner for the
\nsaid period is projected to be the cause of downgradation of the CR
\nfor the relevant period.\n<\/p>\n
As noticed above, the stand of the petitioner in this regard is
\nthat respondent No.3 who was not having cordial relations with the
\npetitioner was instrumental in downgrading the CRs of the petitioner
\nby giving a wrong feed back to the RO of the petitioner, who himself
\n13<\/span>
\nwas an honest officer. The other plea for not taking into consideration
\nthe said adverse entries is that as per relevant Order\/instructions, the
\nCRs of the petitioner for the aforementioned period were not
\nforwarded to the SRO for his endorsement. It is further stated that
\neven the above adverse entries were not communicated to the
\npetitioner.\n<\/p>\n
The record pertaining to the assessment made by the IO and
\nRO concerned during the above period has been produced by the
\nrespondent-Union of India. A perusal of the same shows that the
\nrespondent No.3 who was the IO of the petitioner during the said
\nperiod of dispute has not downgraded the CRs of the petitioner but it
\nis the RO who has downgraded his CRs for the relevant period. The
\npetitioner, as noticed above, has taken a specific stand in the writ
\npetition that officer concerned who remained the RO of the petitioner
\nduring the above period i.e. Sept’01 to June’02, was an honest officer
\nand it is only the respondent No.3, the then IO who was instrumental
\nin getting his CRs downgraded from the RO concerned, which plea of
\nthe petitioner without any evidence on record is difficult to be
\naccepted. The officer concerned, in his individual capacity as a
\nReviewing Officer, has every right to make the assessment taking
\ninto consideration the service profile of an officer working under him ,
\nwhich assessment has to be believed as it is unless it is shown that it
\nemanated from bias and vindictiveness, which is not the case herein.
\nThe petitioner as indicated above, has not alleged any malafide on
\nthe part of RO, therefore, in the absence of any such stand taken by
\nthe petitioner against the RO concerned, it cannot be said that RO
\nwas influenced by the IO (respondent No.3) to make adverse entries
\nin the CRs of the petitioner for the above period.
\nOne aspect of the matter which, however, requires
\nconsideration is regarding forwarding of the CRs of the officers after
\nthese are endorsed by IO and RO concerned to the SRO.
\nThe specific stand taken by the respondent-Union of India is
\nthat when there is a difference of two or more points between the
\n14<\/span>
\nassessment of IO and RO, only then the CRs are to be forwarded to
\nthe SRO for his endorsement. I am of the opinion that the said stand
\nof the respondents is not in line with the relevant provisions of Order
\nof 1989. In terms of para 33 of the said Order as amended noticed
\nabove, even though there is a difference of less than two marks
\nbetween the assessment made by the IO and RO in the box grading,
\nit is obligatory on the part of authorities concerned to forward the CRs
\nof the officers to the SRO, which in the present case has not been
\ndone. Even otherwise, when an assessment is made by the IO and
\nthe RO differs with the same, then, he has to record the reasons for
\ndoing so, so that when the CR is forwarded to the SRO, he may
\nmake his own assessment taking into consideration the reasoning
\ngiven by the RO in downgrading the CRs. But in the present case, a
\nperusal of the CRs of the petitioner for the period Sept’01 to June’02
\nshows that no reasoning has been given by the RO while
\ndowngrading the CRs of the petitioner. Even the CRs recorded for
\nthe above period are not in accordance with the Special Instructions
\nas framed in the Order of 1989, for the Reporting Officers.
\nIn the Order of 1989, there is a clause “Guidance for
\nimprovement” under the Special Instructions for the Reporting
\nOfficers. Paras 150 and 151 under the heading “Guidance for
\nImprovement” are relevant and are being reproduced below:-
\n“150. The information given in the Confidential Reports is not
\nfor the exclusive use of the MS Branch for Personal management
\nfunctions but is also intended to promote the professional
\ndevelopment of the officer reported upon. It is for the development
\naspect which many times is overlooked by the reporting officers. They
\nshould counsel and guide the officer as well as apprise him of his
\nshortcoming when noticed throughout the reporting period. This
\nobligation of duty should not be deferred to the time of initiation of the
\nreport so that adverse remarks, if any, do not come as a surprise to
\nthe officer reported upon.”\n<\/p>\n
15<\/span><\/p>\n
“151. Some reporting officers carry an erroneous impression
\nthat only the IO and the First TO are required to carry out
\nperformance counselling before endorsing any adverse remarks. It
\nmay be stated that the professional development of the subordinates
\nis a function of all echelons of command and is not the exclusive
\nresponsibility of the IO and the First TO. Hence it is the duty of all the
\nreporting officers in the chain of initiation of reports to counsel and
\nguide the ratees. The counselling may be done in person or in
\nwriting.”\n<\/p>\n
In the case in hand, as indicated above, the above instructions
\nhave not been followed by the officer who was the RO of the
\npetitioner during the above period. There is nothing on record to
\nshow that in order to promote the professional development or any
\nshortcomings on the part of the petitioner which resulted in
\ndowngradation of his CRs, he was ever counselled or guided in
\nperson or in writing by the RO or any other superior authority.
\nTherefore, without any hesitation, it can be concluded that the CRs of
\nthe petitioner for the above period in dispute i.e. Sept’01 to June’02,
\nhave not been assessed by the RO keeping in view the standing
\nInstructions on the subject issued vide Order of 1989, referred to
\nabove. The said CRs of the petitioner, thus, having not been
\nassessed in terms of the relevant provisions aforementioned cannot
\nbe taken on record. In arriving at such a conclusion, I am conscious
\nof the fact that judicial review in such like administrative decisions is
\nnot permissible but there can be no denial of the fact also that
\nwherever a finding to the extent is recorded that authority concerned
\nin taking an administrative decision has failed to comply with the
\nrelevant provisions\/Rules governing the field or that the process in
\nreaching such a decision has not been observed correctly, then this
\ncourt in writ jurisdiction under Article 226 of the Constitution of India
\ncan interfere in such like matters. In expressing such an opinion, I am
\nguided by the observations made by the Apex Court in the case
\nreported as Union of India v. Lt. Gen. Rajendra Singh Kadyan, (2000)
\n6 SCC 698. The relevant observations made in this regard in para 29
\nof the judgment are being reproduced below:-\n<\/p>\n
16<\/span><\/p>\n
“66666It is a well known principle of administrative law that
\nwhen relevant considerations have been taken note of and irrelevant
\naspects have been eschewed from consideration and that no relevant
\naspect has been ignored and the administrative decisions have nexus
\nwith the facts on record, the same cannot be attacked on merits.
\nJudicial review is permissible only to the extent of finding whether the
\nprocess in reaching decision has been observed correctly and not the
\ndecision as such666..”\n<\/p>\n
In the case in hand, the respondent Union of India has not
\ncorrectly observed the process of initiation of CRs of the petitioner in
\nterms of the provisions of para 33 of Order of 1989, noticed above
\nunder which provision, as indicated above, it is obligatory on the part
\nof authorities concerned to forward all the CRs endorsed by the IO
\nand RO to the SRO as specified in the Channel of Reporting. Even,
\nthe authority concerned in its capacity as RO, before making the
\nassessment, has not taken into consideration the provisions of Order
\nof 1989 as contained in paras 150 and 151 noticed above. In terms of
\npara 150, quoted above, it is obligatory on the part of any Reporting
\nofficer to counsel and guide the officer concerned and apprise him of
\nhis shortcomings and this has to be done prior to the initiation of the
\nreports. The petitioner during the aforementioned period in dispute
\nwas not ever guided by the RO and not even apprised of his
\nshortcomings, if any. Even, the RO while downgrading the CRs of the
\npetitioner has not given any reason. Therefore, the method adopted
\nby the RO while making the assessment for the period in dispute and
\nthe resultant action of respondent Union of India in not forwarding the
\nCRs of the petitioner for the said period to the SRO is held to be not
\nin accordance with the relevant provisions of Order of 1989, noticed
\nabove, and has to be struck down. The judgments cited by the
\nlearned ASGI, appearing on behalf of respondent Union of India
\nregarding non visit of the Reporting Officer and non interference by
\nthis court over the decision of Selection Board would, therefore, be of
\nno avail to them when the initial action of respondent authorities in
\nmaking the assessment by the RO and non forwarding of the same to
\n17<\/span>
\nthe SRO is held to be in violation of the standing Instructions as laid
\ndown in Order of 1989.\n<\/p>\n
For the reasons mentioned above, this petition is disposed of
\nwith the following directions:-\n<\/p>\n
1\/ That the downgradation of the CRs of the petitioner for the
\nperiod March’98 to June’98, having been done with extraneous
\nconsiderations by respondent No.3 in his capacity as RO, cannot be
\nallowed to continue on record and is struck down. The resultant order
\ndt. 16th of Jan’06, passed by respondent No.4 while deciding the first
\nstatutory complaint of the petitioner, whereby the said complaint was
\naccepted partially can also not be sustained and is accordingly
\nquashed;\n<\/p>\n
2\/ That the assessment made by the RO in the CRs of the
\npetitioner for the period Sept’01 to June’02, is held to be in violation
\nof the provisions of Paras 150 and 151 of the Standing Instructions of
\nOrder of 1989, and thus cannot be taken into consideration by the
\nauthority concerned in rejecting the claim of the petitioner for further
\npromotion;\n<\/p>\n
3\/ That the CRs of the petitioner for the period Sept’01 to June’02,
\ncan also not be allowed to be taken into consideration as the same
\nhave not been assessed in terms of provision of Para 33 of Order of
\n1989, and therefore, order dt. 22nd of Feb’07, passed by respondent
\nNo.4 in rejecting the second statutory complaint is also held to be bad
\nand is accordingly quashed;\n<\/p>\n
4\/ That in case any Selection Board was held for considering the
\ncases of the officers for promotion to the rank of Brigadier during the
\nperiod March’98 to June’02, and any of the junior of the petitioner
\nwas promoted, then, the case of the petitioner shall also be
\nconsidered for such promotion keeping in view his CRs for the period
\nprior to March’98;\n<\/p>\n
18<\/span><\/p>\n
5\/ That so far as CRs of the petitioner for the period Sept’01 to
\nJune’02, are concerned, these would be forwarded to SRO for reassessment
\nin accordance with the relevant Rules governing the field
\nand if on re-assessment by the SRO, in case, the petitioner falls
\nwithin the consideration zone for promotion to the next higher rank,
\nhis case shall be considered accordingly;\n<\/p>\n
6\/ The authority concerned shall pass appropriate orders within a
\nperiod of three months from the date, a copy of this order is made
\navailable to it by the petitioner. Till this is done, the interim order dt.
\n29th of July’08, so far as it relates to providing the official
\naccommodation and transportation to the petitioner is concerned,
\nshall continue to operate.\n<\/p>\n
Disposed of accordingly.\n<\/p>\n
(Nirmal Singh)
\nJudge
\nJammu
\nDt.4.3.09
\nSS\/ <\/p>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court In The High Court Of Jammu & Kashmir … vs Union Of India And Ors on 4 March, 2009 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 […]<\/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":[8,17],"tags":[],"class_list":["post-221137","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nIn The High Court Of Jammu & Kashmir ... vs Union Of India And Ors on 4 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/in-the-high-court-of-jammu-kashmir-vs-union-of-india-and-ors-on-4-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"In The High Court Of Jammu & Kashmir ... vs Union Of India And Ors on 4 March, 2009 - 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