S.R. Singh, J-

Present petition has its genesis in a dispute centering around the endorsements recorded by First Technical Officer in petitioner's A.C.Rs. for the year 1984-85 and in seeking redemption from the perceived wrongs, the petitioner has filed the present petition basically for the follow­ing reliefs:

"(a) Issue a writ, order or direction in the nature of mandamus directing the respondents to consider the promotion of the petitioner expung­ing the endorsements recorded by F.T.O. in his ACRs for the years 1985 and 1986 "Annexure-2" dated 9 March 1994.

(b) Issue a writ, order or direction in the nature of certiorari summoning the records and quashing the impugned A.C.Rs."

2. Concededly, the relief (a) aforestated has not been couched in an intelligible

manner inasmuch as the expression "An­nexure-2 dated 9 March, 1994" has been pinned as a post-script to prayer (a) after the mark of full stop at the end of the figure '1986'. The learned counsel appearing for the petitioner stated that the order dated 9th March, 1994 by which the statutory com­plaint of the petitioner in re-AC.R. 1984-85 has been rejected, is also sought to be quashed besides the endorsement scripted by the FTO in SCR 1984-85 (incorrectly delineated in the prayer (a) as A.C.R. for the year 1985 and 1986).

3. The reliefs claimed herein, are premised on the allegations inter alia that while posted in 504 ASC, Battalion under 4 -Infantory Division (Uttar Pradesh), the petitioner was evaluated worth seven marks by Lt. Col. S.M. Panu, the then officer Com­manding, 504, ASC Battalion whereas he ought to have been acconded 8 marks in­stead of 7 in his ACR 1983, that in the year 1984, the petitioner was transferred from Allahabad to Siachin Glacier Area, where he had to brave the brunt of vagaries of precipitous climatic conditions and was ex­posed to the bullets of enemies for a period spanning over two years and three months as against the normal tenure of six months performing his duties satisfactorily, but he was eschewed from reckoning for promo­tion, which, according to him, fell due in the year 1984 and when he looked back, he found that Brig. Harjeet Singh, the then DDST, 15 Corps, had graded the petitioner worth 5 marks in the ACR for the year ending 31st May, 1985 and this sudden swing to 5 marks' abysmal grading, was not only manifestly illegal but had on its forehead the taint of perversity, infringing on Para 33 of the Special Army Order (in short 'SAO') 3/S/89; that this illegal grading by Brig. Harjeet Singh and seven marks grading while the petitioner was stationed at Allahabad in the year 1983, were the main obstacle operating in the way of the petitioner getting promotion to the next higher Rank and that his statutory com­plaint in re-ACR 1984-85 has been illegally rejected without elaborating any reason for the same.

4. Counter-affidavit filed by Capt. M. Ravi Kumar, unfolds that promotion upto the Rank of Major are time scale and con­tingent upon the length of service, passing applicable promotional examinations and absence of any disciplinary case etc. and that selection for higher ranks does not depend upon single A.C.R. but is made up on con­sideration of the over-all profile of an of­ficer and inter se batch-merit keeping in view the number of vacancies. Promotion policy laid down by the Government (as contained in Annexure C.A. 1 to the counter-af­fidavit), indicates that promotion in the Army to the Rank of Lt. Colonel and above is predicated upon selection and all officers of a particular batch are screened by a duly constituted Selection Board and assessed on their 'over-all profile' and batch merit. It is stated in the counter-affidavit that in his A.C.R. 1983-84, the petitioner was over-all graded with 7 points (above average) by his I.O. Lt. Col. M.S. Panu, but that being the closed period of reporting, the adverse as­sessment was not exhibited to him. It is further averred in the counter-affidavit that the petitioner earned two A.C.Rs. while serving in High Altitude; first, for the period between Oct. 1984 to May, 1985 and the second one, for the period between June, 1985 to May, 1986, but these assessments were not divulged to the petitioner as per policy then in vogue. The first report, it is stated, was 'high average' and the second one, 'above average. The assessment of 'high average' by Brig. Harjeet Singh is said to be "in tune with the established past profile of the petitioner".

5. According to rating scale, 'high average' is recorded as worth 6 and 5 points, while 'above average' carries 8 and 7 points and 'out-standing' over-all performance is categorised worth 9 points. The assessment for promotion, according to the policy indi­cated in Annexure CA 1, in respect of each officer is made by the members of the Selec­tion Board on the basis of (a) war reports, (b) All relevant Confidential Reports earned by the officer; (c) Professional Course done alongwith gradings obtained therein; (d) Honour and Awards; (e) Dis­ciplinary Awards, if any; (f) Special Achievements and weaknesses; (g) Service in High Altitude; Field/Op. Areas; and (h) Employability and potential including con­sistent recommendations for promotion to next higher ranks. It further reveals that an officer is given three considerations for each Selection Grade promotion to the next higher rank as (a) Fresh consideration; (b) 1st Review and (c) Final Review and if the officer is not found fit for promotion even after the final review, he is treated as finally superseded and his case is not considered any further except as a special review case. Army Headquarters Military Secretary's Branch letter dated 6-5-87 (Annexure C.A. II) contains detailed guidelines of assess­ment regulating selection for promotion of the officers to the Rank of Lt. Col. and above. Salient features of guidelines are as follows:

"(a) selection is to be based on the over -all profile of the officer with Special stress on the performance in criteria command appointment.

(b) due consideration is given to officer who show consistency in over-all performance and they are given preference over late starters.

(c) the Officers should have been consis­tently recommended for promotion to the next rank. Credit is given to those officers who have earned positive recommendations for promotion in their very first report in command.

(d) the officer should have done psc/ptsc/post graduate courses and/or worked well in staff/ERE/Instructional Apptts. However, qualification of psc, ptsc or HO is neither a sub­stitute for mediocre performance in command nor a licence for promotion.

(e) officer should have the potential for being employed or being rotated in staff, Instruc­tional or ERE appointments.

(f) character qualities, Disciplinary back­ground and decorations form an important input of the over-all profile of the officer and due con­sideration should be given while assessing border­line cases.

(g) while assessing officers with disciplinary background the gravity and nature of the offence and the service level at which the offence was committed should be taken into consideration.

(h) cases involving moral turpitude, gross negligence, acts of cowardice, or unofficer-like behaviour which reflects on the moral fibre of an officer will not be recommended for promotion.

(j) performance during war forms an impor­tant fact of the over- all record of the officer."

6. We have heard Col. Ashok Kumar, Advocate, appearing for the petitioner and perused the writ petition as well as counter-affidavit. There was no appearance on be­half of the respondents.

7. There is no denying the significance and vital bearing which the confidential reports reflect in the service career/prospects of an officer. In 5. Ramachandra Raju v. State of Orissa, JT 1994(5) SC 459, the need to writ confidential reports objec­tively, fairly and dispassionately in construc­tive manner either commending or degrad­ing the conduct, character, efficiency or in­tegrity of the officer, has been underscored by the Supreme Court. The decision aforesaid has been quoted with approval in State of U.P. v. Yamuna Shanker Misra and another, 1997(2) LBESR 400 (SC) and it has been re-emphasised that "writing confiden­tial reports bears onerous responsibility on the Reporting officer to eschew his subjec­tivity and personal prejudices or proclivity or predilection and to make objective as­sessment." It has been further emphasised that the career prospects of subordinate of­ficer or employee largely depends upon the correct assessment by the Reporting Of­ficer. Accordingly, the Supreme Court has ruled that the Reporting Officer" should adopt fair, objective, dispassionate and con­structive commends/comments in estimat­ing or assessing the character ability, in­tegrity and responsibility displayed by the officer/employee concerned during the relevant period for the above objectives if not strictly adhered to in making an honest assessment, the prospects and career of the subordinate officer being put to great jeopardy." In State Bank of India and others v. Kashi Nath Kher and others, 1996(2) LBESR 296 (SC); the Supreme Court has pointed out that the object of writing the confidential reports is two-fold; firstly, to give opportunity to the officer to remove his deficiencies and to inculcate discipline and sacondly, it seeks to serve improvement of quality and excellence and efficiency of public service. In Yamuna Shanker Misra's case (supra), the Supreme Court referred to its earlier decision in U.P. Jal Nigam v. Prabhat Chand, 1996(1) LBESR 832 (SC) and held that if the officer concerned is to be downgraded from the previous reports, then in that situation, the authority recording confidentials is to "record reasons for such down-grading on the personal file of the officer concerned and inform him of the change :n the form of an advice." The objects of writing confidential reports or character-rolls as indicated above, have been reiterated by the Supreme Court in a recent decision in Swatantra Singh v. State of Haryana, 1997(2) LBESR 682(SC).

8. The petitioner is aggrieved of the 'high average' assessment made in his A.C.R. 84-85 by Brig. Harjeet Singh as also the order dated 9th March, 1994 rejecting his statutory complaint under Section 27 of the Army Act, 1950 in re-A.C.R. 84-85.

9. On the facts stated in the counter-af­fidavit, it is patent that in his A.C.R. 83-84 (August 12, 1983 to May 31, 1984)" the petitioner was over-all graded with 7 points (above average) by his I.O. Lt. Col. S.M. Panu" and the same i.e. "above average" was his rating for the period between the June, 1985 to May, 1986. If we go by the numerical value of 'high average', the petitioner was awarded 5-6 points in his A.C.R. 1984-85 as against 7 points awarded to him in his A.C.R. anterior to and posterior to 1984-85 wherein the petitioner was rated 'above average'. What was the reason then to down-grade him to 'high average' during the period between October 1984 and May, 1985 has not been elaborated in the A.C.R. 1984-85 nor any cogent reason has been assigned in the counter-affidavit. The reasons for such down-grading were admit­tedly not recorded on the personal file of the petitioner, nor was he made aware of the change in the form of advice, when instruc­tions, particularly, the instruction No. 120 of the Instructions for Rendition of the Confidential Reports for officers upto the rank of Colonels, clearly postulate a duty cast upon the Reporting Officer to counsel and guide the officer concerned as well as apprise him of his fallibility and short- com­ings. The down-grading of the petitioner in A.C.R. 1984-85 without any perceptible or discernible reasons cannot but be given the appearance of arbitrariness and it speaks volumes on the objectivity of assessment by the F.T.O. Brig. Harjeet Singh, who does not appear to have performed his onerous responsibility of writing confidential reports as the First Technical officer in tune with the requirements of instructions issued in this regard and the law discussed hereinabove. It would be pertinent to ob­serve here that according to the inspection note scripted by the Commanding Officer, 503, A.S.C. Battalion, the petitioner's unit was found to be "A well administered Unit which has a high standard of technical ef­ficiency." and these remarks were counter­signed without qualms by Brig. Harjeet Singh himself in the words, "A very satisfactory report". It is thus not understandable as to why the petitioner down-graded from 'above average' to 'high average' in A.C.R. 1984-85. The Central Government while weighing up the petitioner's statutory com­plaint under Section 27 of the Army Act 1950, do not seem to have adverted itself to these aspects of the matter and rejected the statutory complaint without assigning any reason.

10. Section 27 of the Army Act, 1950, is a remedial provision and therefore, this Court is of the considered view that disposal of statutory complaint in a matter like the one on hand, is not an empty formality to be observed without proper-self direction to all the relevant factors. Before rejecting the statutory complaint, in the present case, the Central Government ought to have ad­dressed itself to the question whether the A.C.R. complained of, was scribed objec­tively, fairly, dispassionately and in a con­structive manner or it was born of the sub­jectivity supplemented by personal prejudices and/or proclivity of Brig. Harjeet Singh. The observation made by the Central Government in its order dated 9th March 1994" that no injustice has been done to him in this regard" cannot be equated to "reason" for rejecting the statutory complaint. It is at best 'conclusion' arrived at by the Central Government as held by the Division Bench of this Court in K. Ramesh Singh Rathore v. Union of India, 1996 (3) ESC 493 (Alld). The Supreme Court in S.N Mukherjee v. Union Of India., AIR 1990 SC1984 has clear­ly ruled that except in cases where the re­quirement had been dispensed with express­ly or by necessary implication, an ad­ministrative authority exercising judicial or quasi-judicial functions, is required to record the reasons for its decision." One more exception has been carved out by the Supreme Court in S.N. Mukherjee's case (supra) and that is where the appellate or revisional authority affirms an order passed by an original authority agreeing with the reasons contained in the original order. As. pointed out above, the personal file of the petitioner does not contain any reasons for down-grading him in his Annual Confiden­tial Report 1984-85. It was, therefore, im­perative for the Central Government to dis­close reasons for rejecting the statutory complaint filed by the petitioner against the Annual Confidential Report 1984-85. It is true, as held by the Supreme Court in Union of India v. E.G. Nambudiri, AIR 1991 SC 1216, that if the order as communicated to the Government Servant rejecting the rep­resentation does not contain any reasons, the order cannot be held to be bad in law, for if such an order is challenged in a Court of law it is always open to competent authority to place reasons before the Court, which might have led to the rejection of the repre­sentation and it is open to an Administra­tive Authority to produce evidence aliunde before the Court to justify its action, but in the instant case, no reasons have been set forth in the counter- affidavit nor any evidence aliunde has been brought on record of the writ petition to justify rejec­tion of the statutory complaint. The im­pugned order dated 9-3-1994 rejecting the petitioner's statutory application in re-A.C.R. 1984-85, therefore, cannot be sus­tained.

11. Now the question that begs an answer is what relief should be given to the petitioner. It is well settled that the High Courts exercise supervisory power under Article 226 of the Constitution as distin­guished from the appellate power and, therefore, it is not permissible for this Court to supplant petitioner's A.C.R. 1984-85 by a report which this Court may consider to be a proper one in the circumstances of the case, but the Central Government can do so while disposing of the petitioner's statutory com­plaint under Section 27 of the Army Act, 1950 in re-A.C.R. 1984-85 and this Court can certainly direct the Central Govern­ment to reconsider the petitioner's statutory complaint afresh and dispose it of in accordance with law and in the light of the observations made in this judgment and give appropriate relief to the petitioner in respect of his grievances as against A.C.R. 1984-85 as well as in the matter of promo­tion to next higher rank.

12. As a result of foregoing discussion, the petition succeeds and is allowed. The impugned order dated 9th March, 1994 (Annexure 2 to the petition), is hereby quashed and the Central Government is directed to reconsider the petitioner's statutory complaint and dispose it of afresh in accordance with law and in the light of the observations made in this judgment, extend­ing all consequential reliefs to the petitioner. In the facts and circumstances of the case, however, we make no order as to costs.

Petition allowed.