Comm. Ashok Kumar v. Chief Of Army Staff

This application u/s. 14 of Armed Force Act has been brought for quashing the ACR for the year 2004-2005 & 2006-2007 of the applicant and also to promote him to the rank of Naib Subedar w.e.f. 01.08.2008. It is contended by the applicant that he was enrolled in the Army on 06.05.1985 and he completed about 24 years in service having unblemished service record. He worked with all sincerity, devotion and efficiently discharged his duties. His integrity was never questioned by the superior officers. His work was throughout appreciated wherever he remained posted. He passed Class I Operator test in March 1993 and was assessed to be fit for promotion to the rank of Naik w.e.f. 01.02.1994 and Havaldar on 01.01.1998. The applicant also served as Incharge Det 8 Mtn. Div. Sig. Regt. (56 Brigade), Daraz, Kargil from 12.03.2002 and his grading remained above average during this period.

It is further submitted that on 06.07.2004, he was posted to Delhi area Signal Company and was selected and performed the duties of CQMH. There he also performed his duties to the satisfaction of all superior officers. Captain Sanjay Kumar the then Incharge, was unhappy with the applicant because of personal reasons and he downgraded the ACR's of the applicant for the relevant years. It is also submitted that such ACRs down grading him were made with a malafide intention so as to deprive him from further promotion in the rank of Naib Subedar. In as much the applicant's tenure was complete but his relieving was also delayed so as to make him suffer the next down-grading ACR. As against these ACR's he made non statutory complaints and they were also rejected by the authorities concerned. It has also been said that sudden downgrading in the ACR was with malafide intention to further block his career. Even he was not informed either verbally or in writing about any of lapses/short comings committed by him during his tenure and such non communication would tantamount that at the time of giving entry there was no basis for downgrading his ACR. It was also contended that such down grading entries ought to have been communicated to him.

Heard the Learned Counsel for the applicant at length. The primary question as to what extent this court may interfere with the so called down graded entries for the year 2004-2005 and 2006-2007. Such entries are said to be given on the basis of personal bias of keeping Capt Sanjay Kumar.

The applicant has not impugned any action by establishing a reasonable possibility of bias on proving circumstances from which the operation of influences effecting a fair assessment on the merits of the case can be inferred. He has cast only casual aspersions with a view to harm his career, making departure from the previous years good entries, Capt Sanjay Kumar proceeded to make degradation in ACR. It may be mention that every performance does not vitiate action. If it is rational and unaccompanied by considerations of personal interest, pecuniary or otherwise, it would not vitiate a decision. This principle was enunciated by the Apex Court in the case of G.N. Nayak v. Goa University (2002) 2 SCC 712. Here before the assessing authority there was no occasion for him to have any access to the previous years confidential entries so as to make evaluation of his past performance and to purposely down grade his entries.

The reason for malafide alleged by him that he purposely delayed his relieving so as to harm him by writing his ACR for the year 2006-2007. This has been conceded by the Learned Counsel for the applicant that he was an officer who has also recorded the ACR for the year 2005-2006 and as against that the applicant had no grievance. This would mean that Capt Sanjay Kumar had no grudge against the applicant. In our view his not earlier relieving the applicant would not hold any water. From the records we do not notice any strong motive for the assessing officer to be having any anymous against the applicant.

Learned Counsel placing reliance in the case of Rajinder Singh Sehrawat v. UOI 2001 V AD (Delhi) 237 and Union of India v. P.R. Sagar 2008 (3) SLR mentioned that the applicant should have been communicated the reasons for his downgrading. As has also been mentioned that the assessing authority was not supposed to know as to what grading the applicant earned in previous years. Merely because one disagrees with the assessing authority, one cannot jump to a conclusion that the other harvors a grudge against the former. We do not find any merit in the present application. Accordingly the present application is dismissed.