Amrik Singh v. Union Of India And Others

Order

1. This is an appeal preferred by the appellant, who is a Lt. Colonel in the Indian Army, against the judgment of the High Court of Patna in CWJC No. 8083 of 1994 dated 18-2-1997. The writ petition filed against that judgment was dismissed by the learned Chief Justice of the Patna High Court, Justice D.P Wadhwa (as he then was) and learned Justice Radha Mohan Prasad, the other Judge on the Bench, writing separate judgments. So far as the judgment of the learned Chief Justice is concerned, it states that the non-promotion of the appellant along with his batchmates who were promoted in 1990, could not be interfered with in writ jurisdiction and that the fresh assessment that was made pursuant to an earlier direction of the High Court in CWJC No. 175 of 1992 dated 25-3-1994 could not be interfered with under writ jurisdiction. The other learned Judge in his separate judgment, made certain observations stating that the appellant's previous records were good and that the appellant otherwise deserved promotion but the learned Judge said, in writ jurisdiction he could not interfere, because it would amount to a review of the decision of the Selection Committee, as an Appellate Authority. Thus, in spite of certain observations made in favour of the appellant, learned Justice Radha Mohan Prasad ultimately concurred with the judgment of learned Chief Justice, in dismissing the writ petition. It is against this judgment that this appeal has been preferred.

2. On an earlier occasion, the appellant filed CWJC No. 175 of 1992 challenging the orders dated 15-5-1990 and 30-4-1991 by reason of which promotion of the appellant to the rank of Lt. Colonel was refused on the basis of ACR of the year 1985-86. It was prayed in that writ petition that the order dated 15-3-1987 and the other orders of January 1989 communicated on 3-2-1989, rejecting the promotion should be quashed. A further direction was sought to issue a writ of mandamus for considering the case of the appellant for promotion along with his batchmates who were promoted in 1990.

3. It will be noticed that the appellant was subsequently promoted as Lt. Colonel (time scale). But in the present proceedings he is claiming that he ought to have been promoted as Lt. Colonel from an anterior date, from 1990 when his batchmates were promoted to higher posts as Lt. Colonel.

4. So far as the promotion to the post of Lt. Colonel is concerned, it is done by way of a selection process. During the course of the selection, ACRs of the previous 5 years would be considered. With regard to ACRs of each year, there is an assessment made by the immediate superior officer called “Investigating Officer”, then a senior officer above him called “Reviewing Officer” and finally a senior officer above the Reviewing Officer called “Senior Reviewing Officer” of a very high rank.

5. The records relating to this case were produced before the High Court and also before us. It appears that for the year 1985-86, the Investigating Officer had given a fairly good report about the appellant on 7-2-1986. The Reviewing Officer while giving him a good report in various respects, made a particular remark which was adverse to the appellant in the sense that the appellant was “advised to display resoluteness during execution of operations”. While the IO granted an assessment marking as 7, the RO's assessment was 5. The SRO, who thereafter gave his remarks, gave him an assessment of 5. In other words, the assessment, so far as the year 1985-86 was concerned, was 7, 5, 5, as assessed by the IO, RO and SRO respectively. The assessment by the SRO was on 14-11-1986. For 1990, ACRs of previous 5 years were relevant.

6. In subsequent ACRs of the later years, invariably the appellant got various rankings on assessment at 7, 8 and 9 also. Assessment at 9 appears to be a case where the performance is “outstanding”.

7. But in the context of the dispute raised in the case, material was produced for 5 years prior to 1990, among which ACR for 1985-86 was definitely adverse and relevant.

8. In the earlier judgment of the High Court, it directed a fresh review or reconsideration of the appellant's case de novo for promotion in 1990 along with his batchmates, in accordance with the guidelines which were filed as Annexures ‘A’ and ‘B’ which have now been set out in the judgment under appeal before us. The High Court on that occasion, noticed that certain contentions raised by the appellant in the writ petitions were not specifically denied in the counter filed by the Department, namely, that he was awarded medals in earlier years and also in regard to an allegation that the guidelines in Annexures ‘A’ and ‘B’ were not followed. It was also observed that the Selection Board did not observe the directions which were annexed as Annexure 13. It was thus on the ground that the Selection Board did not follow the guidelines of their own, the non-promotion of the appellant was held to be contrary to the guidelines and therefore arbitrary and illegal. The writ petition was allowed by judgment dated 25-3-1994 and a de novo consideration was directed.

9. Subsequently, the appellant's case was reconsidered by another Board. But the matter went against the appellant once again. That is how the present writ petition was filed in 1994.

10. We have already referred to the views of the learned Judges who decided the present writ petition. We have already stated that, though the reasoning is different, the ultimate conclusion is that the writ petition is to be dismissed.

11. In this appeal, we have heard Shri M.N Krishnamani, learned Senior Counsel appearing for the appellant and Shri Mukul Rohatgi, learned Additional Solicitor-General. We called for the files relating to ACR of the year 1985-86 containing remarks of the IO, RO and SRO which are placed before us. We also directed to be informed as to in what manner the case of the appellant was considered along with other members of his batch who were promoted in 1990. In response to the directions, certain material has been placed before us.

12. As already stated, any reconsideration of the appellant's case for promotion from 1990-91 when his batchmates were promoted, will depend upon the assessment to be made on the basis of ACRs of the previous 5 years including ACR for 1985-86. While the remarks of the IO were favourable to the appellant and even the remarks of the RO were by and large favourable to him, there was an adverse remark relating to “non-display of resoluteness of execution during operations”. It was on this basis that the RO gave him 5 marks while the IO gave him 7 marks. The RO was of the rank of a Brigadier. The SRO was a Major General and in his remarks dated 14-11-1986, the Major General thought fit to agree with the RO by awarding him only 5 marks.

13. It may be that, before the year 1985-86 and even subsequently the performance of the officer had been so good that he got marks 7, 8 and 9 in a number of years. But ultimately, what is relevant for the purpose of this case are ACRs for 5 years prior to 1990 which includes the year 1985-86 and that contains one adverse remark. It is true that the earlier writ petition was allowed. There was no direction to exclude the adverse remark of 1985-86. In fact, it will not be permissible for the High Court to direct exclusion of the same from consideration.

14. The scope of judicial review in such matters of assessment of merit for purpose of promotion has been dealt with by this Court recently in the case of Union of India v. Lt. Gen. Rajendra Singh Kadyan (2000) 6 SCC 698, (2000) 5 Scale 327.

15. In para 29 of the said judgment, this Court stated as follows:

“29. The contention put forth before us is that there are factual inaccuracies in the statement recorded by the Cabinet Secretary in his note and, therefore, must be deemed to be vitiated so as to reach a conclusion that the decision of the Government in this regard is not based on proper material. The learned Attorney-General, therefore, took great pains to bring the entire records relating to the relevant period which were considered by the Cabinet Secretary and sought to point out that there were notings available on those files which justify these remarks. Prima facie, we cannot say, having gone through those records, that these notings are baseless. Critical analysis or appraisal of the file by the Court may neither be conducive to the interests of the officers concerned or for the morale of the entire force. Maybe one may emphasize one aspect rather than the other but in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we cannot substitute our view to that of the authorities. It 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 such. In that view of the matter, we think there is no justification for the High Court to have interfered with the order made by the Government.”

16. In that case, this Court referred to the advisory remarks both by the IO and the RO that the officers should be bold and aggressive in operation and should lead their men personally to difficult objectives. The RO had said that the officer's performance as a Rifle Coy Commander in the “recent” operations had been satisfactory though not up to the expected level. All the Reporting Officers gave him above-average ratings with a sprinkling of outstanding ratings. It was held by this Court that the High Court was in error in interfering with the non-promotion of the respondent in that case (writ petition) and in directing fresh consideration.

17. In our view, the observations made in the said judgment are apt in this case also. The adverse remarks for the year 1985-86 in the present case cannot be said to be irrelevant matter for the purpose of consideration of the appellant for promotion as Lt. Colonel along with his batchmates in 1990.

18. So far as the very adverse remark itself is concerned, our attention was invited to the letter written by Lt. Colonel Patwardhan on 25-2-1991 making certain allegations against the RO who gave the said adverse remark to the appellant. But inasmuch as no specific allegations of mala fides have been made in the writ petition and the RO was not impleaded as a party to the case, it could not be said that the adverse remark in ACR of the year 1985-86 by the RO was mala fide.

19. So far as the consideration of the appellant's case along with others is concerned, learned Additional Solicitor-General placed before us ACRs of 3 of the officers against whom the appellant had made specific allegations. In regard to each of the 3 officers, we find they were graded 6, 7 and 8 by the IO, RO and SRO and therefore, the appellant cannot have any grievance that his case was not properly considered along with the batchmates of the appellant. Learned Additional Solicitor-General brought to our notice the cases of certain officers who had got higher gradings than the appellant and who did not have any grading as 5 in any particular year, but who had still not been promoted as Lt. Colonel in that year. The point here is that even when such persons were not promoted, the appellant could not have any grievance. The direction of the High Court in the earlier writ petition that the appellant should be considered along with the members of his batch of 1990 should be considered from a practical standpoint. It is not as if the appellant's gradings should be considered side by side with hundreds of officers who were considered and where only 140 were promoted.

20. We have been informed that while fresh consideration was made, the Selection Board, in fact, had before it the files relating to all the officers of the appellant's batch who were promoted in 1990. Having regard to the statement in the counter-affidavit filed in the High Court as well as in this Court by the respondents, we cannot reject the contention of the Department that the cases of other officers of the same batch were placed before the Selection Board while reconsidering the matter.

21. In the result, we are not inclined to grant any relief to the appellant in spite of the fact that his performance in the subsequent years has been shown to be very good and his ratings were very high. Ultimately the single adverse remark of 1985-86 by the Reviewing Officer had stood in his way, not only at the time of original consideration but also when the matter was considered afresh pursuant to the directions of the High Court. The result may be unfortunate. But the scope of the jurisdiction of the High Court being very limited, we cannot go into the correctness of the adverse remarks nor into the assessment made by the Selection Board on the two occasions.

22. It is, however, made clear that in this case, we are only concerned with the case of the appellant for reconsideration for promotion in 1990 along with his batchmates of 1990. We are not concerned with his promotion with effect from any later date.

23. For the reasons stated above, the appeal is dismissed. There will be no order as to costs.