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Judgment
Amar Dutt, J.—The petitioner, Lt. Col. P.K. Hazra (since deceased) now represented by his widow Mrs. Dipti Hazra, seeks the quashing of order Annexure P-6 by which the statutory representation filed by him against his supersession was rejected on 24th of December, 1986.
The petitioner had joined the Army Medical Corps on 30th of July, 1958 as a Lieutenant. He was promoted as a Captain in January, 1959 and became a Major in 1966. He picked up the rank of Lt. Col, in July, 1974 and had worked as Classified Specialist in Pathology in the Command Hospital, Chandigarh since June, 1970. According to him, his next promotion was to the rank of a Colonel and then Brigadier was denied despite the fact that he had not been conveyed any weak point, any short ing-coming, any pitfall, any adverse remarks of any sort or any memo throughout his service career since his juniors in the service had been granted the promotions, the petitioner had through letter dated 19th of September, 1985, filed a statutory complaint under the provisions of the Army Act, 1950. In relation to the complaint, he received no immediate response and consequently he had filed a reminder on 21.2.1986 and thereafter sent another reminder on 2.8.1986. The rejection of the statutory complaint was communicated to him through orders dated 24.12.1986 and the same had prompted the filing of the present petition. While asserting that no adverse remarks had been communicated, the petitioner relied on a communication issued by the respondents on 3rd of January, 1978 to the following effect:-
"It is the responsibility of the IO and the FTO to counsel and guide the officer as well as to inform him of his short-comings, when noticed, throughout the reporting year. This obligation should not be deferred to the time of initiation of the ACR. It is desirable that a record of the communication of serious short-comings is kept by the IO and the FTO. If the officer does not show the desired improvement, the short-comings should be reflected in the report."
He also referred to another letter of the same date to the following effect:-
"At the time of the initiation of ACR or ICR the adverse grading or remarks of the IO and the FTO will be communicated verbatim, in writing to the officer reported upon. This will include any advice on aspects in which the officer should effect improvement. This communication duly signed by him or the forwarding letter if communicated by post, will be appended to the report. If the communication is sent by post, the same after receipt duly signed by the officer reported upon will be forwarded to Med Dte concerned direct."
and submits that as nothing adverse, displeasure, memo., short-comings and counselling had ever been conveyed to him, his supersession was not called for. In the petition, he also evince his assertion to the effect that from 1978 to 1981 he had worked with one Col. J.C. Sindhi, who too would not have given any adverse remarks, as if that had been done, the same would have been communicated to him. He, however, submitted that the action of the authorities in not promoting him to the rank of a Colonel, in these circumstances, is violative of the principles enshrined in Articles 14 and 16 of the Constitution of India and has to be set at naught by quashing Annexure P-6 and issuing a mandamus directing the respondents to consider his case for promotion to the rank of Colonel and then to the rank of Brigadier etc., on the date on which his juniors have been promoted and issuance of a further direction to the respondents to release all attendant benefits of the posts along with interest at the rate of 18 per cent per annum from the date, on which his promotion was due.
In the written statement filed on behalf of the respondents by the Lt. Gen., Director General, Armed Forces Medical Services, after taking a preliminary objection regarding the maintainability of the petition, it was submitted that the petitioner had been considered for promotion along with other officers of his batch on three separate occasions i.e. in the years 1981, 1982 and 1983 but he was not found fit for promotion. It was further submitted that according to the Rules, an officer is to be considered for promotion to next higher rank on three occasions and if he is not found it for promotion he is graded unfit for further promotion. According to Annexure R-1 "the officer graded ''R'' (Unfit for promotion to the next higher rank at present). If selected for promotion in the next Selection Board will take substantive seniority after the officers junior to him who were approved for promotion in the earlier Selection Board". The petitioner was duly considered by the Selection. Board on three successful occasions along with his seniors and juniors and the details of the selection were indicated as under: -
Selection Board No.3
Year of Selection
Candidates considered
Candidates selected
Candidates rejected. D
1)
1983
91
50
41 (2D)
2)
1982
63
20
43 (1D)
3)
1981
106
50
56 (2D)
The selection Board (Med) No.3 which considers officers of the rank of Lt. Col. (and equivalent) for promotion to the rank of Col. (and equivalent) is constituted under orders of Govt. and consists of:-
a) Chairman
- DOAFMS (Lt Gen)
(b) Members
- AG (Army)
) (Lt Gen &
- COP (Navy)
) equivalent)
- AOA (Air HQ)
)
- DMS (Army)
(Lt Gen)
- DMS (Navy)
(Maj Gen &
equivalent)
- DMS (Air)
(Maj Gen &
- Chief
equivalent)
Consultant
(Lt. Gen.)
(c) To be coopted as members When Officers belonging to then equivalent cadre are considered.
- Senior Consultant (Med)
) (Maj. Gen)
= Senior Consultant (Surgery)
(d) Secretary
- Dy DGAFMS
It is further submitted that selectivity is necessary in the higher ranks as the structure of Army Medical Corps is paramedical. Hence at times ''Average'' or ''High Average'' officers may not find a berth in promotion. It is also submitted that the selection is based on comparative merit amongst the candidates. The performance record of other officers was better in comparison with the petitioner and hence he was not selected. It is further submitted that only average and below average reports are conveyed to the officers and as the petitioner was never graded below average nor any adverse remarks were endorsed, therefore, no communication of these remarks to him were warranted.
I have heard Mr. K.L. Arora, Advocate on behalf of the petitioner and Mr. Gur-preet Singh, Additional Central Government Standing Counsel, on behalf of the respondents and with their assistance have gone through the record of the case.
The grouse of the petitioner is that despite the fact that during his entire service career he had never received an adverse entry nor he had been subjected to counselling yet he was not given the rank of a Colonel, which, according to his service profile, he was entitled to. The petitioner seems to attribute this to possible entries made in his A.C. Rs. by Col. J.C. Sindhi, in the years 1979 to 1981. He feels that these entries are not warranted and, therefore, the statutory complaint filed by the petitioner against his supersession for promotion to the rank of Colonel has been wrongly rejected by a non-speaking order.
On behalf of the respondents, it is submitted that the petitioners'' case is not that he was excluded from consideration for promotion on account of an alleged adverse entry given by Col. Sindhi. The respondents submit that the petitioner has been considered for promotion on three occasions as required by the rules and the fact that he was empanelled for consideration is indicative of his performance being rated above average. It was further argued that the failure of the petitioner to make to the rank of Colonel is not on account of his being not a good officer but on account of the fact that the Selection Board found that his comparative merit did not justify his promotion. In view of this, as upon consideration by the Selection Board, the petitioner was not fund to make the mark for being promoted from amongst the candidates selected, interviewed, this Court would not launch upon a review of the comparative merit of the candidates interviewed and repels the judgment of the Selection Board by its own assessment.
I have carefully considered the rival contentions of the learned counsel for the parties.
The basic grouse of the petitioner in the present case was an apprehension that adverse reports given by Col. J.C. Sindhi to him were the basis of the respondents'' denial to him to the rank of Colonel. The fact that the petitioner was .considered by the Selection Board in the years 1981, 1982 and 1983 by itself indicates that the reports that may have been given by Col. Sindhi for the period from 1979 to 1981 do not stand in his way. The non-comunication of any adverse entry would also be indicative of the fact that Col. Sindhi did not initiate any below average report that had to be communicated. Apart from this, the allegations made by the petitioner against Col. Sindhi cannot be taken into consideration for the simple reason that the petitioner has not arrayed this officer as a respondent nor has he alleged that any part of the assessment given by the officer was actuated by, mala fides. This lapse of the petitioner would disentitle this Court from drawing any adverse inference against the respondents as allegations of mala fides have got to be pieaded and established before they can be relied upon for granting relief to a litigant and the failure of the petitioner to do so would necessarily disable the Court from taking into consideration these allegations. For this view of mine, I find support from the judgments reported as Lt. Col. S.P. Kapoor (Retd.) v. Union of India and Anr., 1994(7) S.L.R. 98; Union of India v. Krishan Gopal Puri 2001(4) S.L.R. 783 and Union of India v. Col. Dr. Jiban Chandra Sana 2001(3) S.C.T. 309.
So far as the view taken by the Selection Board is concerned, one has to bear in mind that the Selection Board before which the petitioner appeared had interviewed and selected candidates as already indicated above. The petitioner has not brought on record any material from which it can be inferred that the Board was actuated by considerations other than a bona fide desire to make available the best talent available in the Army, Medical Corps for promotion and in the absence of any allegations which may be verifiable, the petitioner would not be entitled to any relief. During the course of arguments, I had also the occasion to go through the service record of the petitioner, which was produced on the directions of the Court by M.S. Branch. There is nothing in the record which would indicate that any of the assessment recorded in the case of the petitioner was in any manner motivated.
For the reasons recorded above, the writ petition being without any merit is dis missed.