Hav/Clk Venkatagireppa DN vs Union of India

S.S. Saron, J.—The petitioner is a serving Havildar in the Indian Army and a Clerk by trade. By way of the present petition under Article 226/227 of the Constitution of India, he seeks the quashing of the order dated 24.08.2012 (Annexure P-1) passed by the learned Armed Forces Tribunal, Chandigarh Regional Bench, Chandimandir (respondent No. 4) whereby his transfer application No. 06 of 2012 arising out of OA No. 321 of 2011 has been dismissed. A further prayer has been made for quashing the order dated 11.05.2011 as conveyed through Army Head Quarter letter dated 13.05.2011 whereby the statutory complaint in respect of the petitioner has been rejected by the Chief of Army Staff (respondent No. 2). A further prayer has been made for setting aside two ACRs of 2008 and 2009 being violative of Army Order 1/2002/MP on the ground of subjectivity, being biased and totally inconsistent with the overall ACR profile of the petitioner and for grant of all consequential benefits. The petitioner was enrolled as Clerk in the Gorkha Rifles Regiment on 26.06.1996. Later he opted for intelligence corps and was permanently absorbed in Intelligence Corps from 01.04.1999. In accordance with general instructions of Army Head Quarters/MP-1 dated 09.02.2009, the petitioner submitted his application for foreign embassy selection to OC/IO on 12.03.2009. According to the petitioner the latter deliberately kept his application pending. Thereafter on 20.03.2009, the IO proceeded on 7 days'' casual leave from 20.03.2009 to 26.03.2009 without taking any decision on his application for foreign embassy selection. Later Capt. Suresh Babu took charge of OC in place of Lt. Col. I.V. Raghu, SM in his absence as OC, 6 Det SCLU. The officiating OC on 24.03.2009 in routine after having a conversation on telephone with the permanent OC who was on leave, signed and forwarded the application of the petitioner to the CO for his recommendation. The CO Col. Anoop Kumar in concurrence to permanent IO/OC''s daily briefing about each and every activities of detachment on 31.03.2009 recommended the petitioner''s foreign embassy application. The competency of the petitioner as asked for on page 3 of the application was certified in his own handwriting. The application was then forwarded to the intelligence record office on 02.04.2009 for their necessary action. The petitioner on 06.04.2009 found that the carbon true copy of the field conduct sheet that was required to be forwarded along with the foreign embassy application out of mistake had been left out. The petitioner got endorsement on the same of the permanent OC/IO who had by then rejoined his duty from leave. The same was then forwarded to the intelligence record office. After scrutiny of the application of the petitioner by the Board of Officers of the intelligence record office as per para. 24 of the Army Order 26/2001/MP, the application was forwarded to Army Head Quarters/MP-1 on 13.04.2009. On the basis of the same, the Army Head Quarters/MP-1 issued letter to all record offices for the detainment of candidates in their respective examination centres. The petitioner in terms of the same was required to appear in the foreign embassy written examination at Pune to be held on 15.07.2009. For the said purpose the petitioner was sent on temporary duty to appear in the written examination at BEG Centre, Kirke, Pune. After having appeared in the written examination which he cleared, he was further detailed under movement order signed by permanent OC/IO to undergo the typing test and interview to be conducted at Delhi in September, 2009. The petitioner cleared the same. After being provisionally selected the petitioner on 14.10.2009 under movement order signed by permanent OC/IO was detailed to undergo special intelligence course for JCOs/NCOs-32 at Military Training School and Depot, Pune from 21.12.2009 to 16.01.2010. The petitioner acquired ''A'' grading. Thereafter, as per AO-26/2001/MP, a final merit list was prepared by Army Head Quarters/MP-1 in which the petitioner was finally selected. He was listed in the first five on 02.02.2010 and was issued a call letter to report at Delhi on 25.02.2010 for pre-dispatch formalities to go abroad along with family for three years and was supposed to be posted to the Embassy of United States of America. However, due to the IO giving unwanted Annual Confidential Reports (ACRs) to the petitioner, the Army Head Quarters/MP-1 cancelled the petitioner''s name from the selection citing the reason viz. "not fulfilling the ACR criteria". It is submitted that the ACRs of the petitioner for every assessment year that commences from 1st October to 30th September is filling by the initiating officer on 1st of October every year. The petitioner along with six other Havildars on 01.10.2008 and 01.10.2009 had submitted their ACR form but without putting dates of submission on them as per verbal orders of the IO/OC which were taken as standing orders in the Army. The ACR for the year 2008 was submitted by the petitioner to his initiating officer Lt. Col. I.V. Raghu, SM, which was adversely initiated on 04.04.2009 after delaying it for six months. This was communicated to the petitioner on 20.10.2009 after one year of submitting his ACR to the IO. The ACR for the year 2009 covering the period from 01.10.2008 to 30.09.2009 was submitted by the petitioner to his initiating officer Lt. Col. I.V. Raghu, SM on 01.10.2009. It was initiated on 12.02.2010 after delaying it for a period of four and a half months. It was reviewed by Col. Anoop Kumar, CO, SCLU on 15.02.2010. Therefore, on the one hand the petitioner was permitted to apply for foreign embassy selection-2009 by the same IO and RO beginning with the forwarding application vide letter dated 24.03.2009 till the issue of his final selection/call letter dated 02.02.2010. Simultaneously on the other hand his 2008 and 2009 ACRs were spoiled by them. This had a cascading affect on the career of the petitioner for all times to come. The petitioner aggrieved by the said action of the respondents approached the Armed Forces Tribunal, New Delhi. The said Tribunal vide its order dated 28.04.2010, directed the petitioner to file a statutory complaint before the Chief of Army Staff. The petitioner in the light of the order passed by the learned Tribunal submitted a statutory complaint which has been rejected by the Chief of Army Staff on 11.05.2011. The finer aspects were not looked into by the Chief of Army Staff in gross violation of the Army order insofar as the two impugned ACRs for the years 2008 and 2009 were concerned. The petitioner then assailed the order passed by the Chief of Army Staff on the statutory complaint filed by him before the learned Armed Forces Tribunal at New Delhi. The learned Tribunal at New Delhi transferred the petition of the petitioner to the learned Armed Forces Tribunal at Chandigarh wherein the same was numbered from OA No. 321 of 2011 to TA No. 06 of 2012. The petition of the petitioner has been dismissed by the Armed Forces Tribunal, Chandigarh vide impugned order dated 24.08.2012 (Annexure P-1) which is impugned by way of the present petition. It is submitted that the learned Tribunal failed to adjudge and nail the actual sinner in the case and indirectly sheltered him just because he is an officer and the petitioner is a Havildar.

In fact the law of natural justice requires that every one is equal before the law. It is submitted that in the present case the IO Lt. Col. I.V. Raghu is the real pivotal person who had taken undue advantage of his position being an OC. He had manipulated and forged the things in a very calculative manner by accepting the ACRs from the petitioner along with six Havildars on 01.10.2008 and 01.10.2009 signed by the rates but without dates. This was because he had bad design in his mind at that time itself for passing the illegal orders and had asked the petitioner not to put the date of submission of the ACR forms. It is submitted that Army Order is like a Bible in the Army and its violation is like a sin/offence in the organization. However, in the present case it is crystal clear that all the ACRs of the Havildars including that of the petitioner were handed over to the IO Lt. Col. I.V. Raghu on 01.10.2008 and 01.10.2009 on due dates but without putting dates of submissions as per the subjective orders of the OC. The Army functions on the faith/trusts on officers. The verbal orders of the OC/CO are taken as standing orders because the troops trust their words and the troops cannot anticipate that the officers would have ill intentions behind his orders. The Army Order 1/2002/MP Paras. 10 and 11 of appendix ''D'' mentions that if a ratee does not submit the ACR form on due date, the OC is empowered to ask for ACR form with explanation. If the ratee still fails in submitting his ACR form, the OC can initiate with certain remarks and forward it to the reviewing officer and subsequently to the intelligence record office even without the signatures of the individual. Even if the ACR form is not submitted, the CO of the Unit is to apprise the formation Commander about the incident of not filing the ACR form by the individual. The Army order 1/2002/MP para. 55, it is submitted goes further and clarifies that on every last day of the month, the report of non-submission of ACRs is to be forwarded by the CO Unit to the record officer for their information. Army Order 1/2002/MP para. 57 further says that the concerned record office is also to confirm in writing the case of the pending ACR of the JCOs/NCOs who has not submitted their forms on the due date to the formation Commander. It is submitted that surprisingly not even a single action was taken in the present case by the OC/IO of the Unit because none of the aforesaid actions was applicable since the ACR forms of the petitioner were already submitted with the IO.

However, the IO was waiting for an appropriate time to harm the ratee in the ACR in which the IO succeeded without caring for the Army order and its provisions. In Para. 9-A it is provided that ACR duly filled up is to be forwarded to the record office within sixty days from the day of affective date of initiation of ACR. Therefore, IO Lt. Col. I.V. Raghu is the mastermind behind the self designed conspiracy to harm the petitioner. However, the learned Tribunal has not touched this aspect and has accepted the reply/affidavit of the respondents which contains lies. In the reply, the respondent is relying upon the fact that the ACR form was not submitted on due date by the ratee. It is stated that the form was submitted by the petitioner on 25.03.2009. If that is to be taken as correct then, there is no reason as to why the IO had remained silent for six months. However, since the ACR form was intentionally kept without taking any action by the IO so as to take advantage of undated ACR form accepted from the ratee. The IO did not consider it the ACR form till first week of April, 2009 because he was calculating his own figures to harm the petitioner. The respondent in their reply states that the IO was on leave from 24.03.2009 to 31.03.2009. This also according to the petitioner is incorrect because he was on leave from 20.03.2009 to 26.03.2009 for which there is documentary proof, that is, DO Part II published in the Unit in this regard. If the IO was actually on leave from 20.03.2009 to 26.03.2009, then he could not have accepted the 2008 ACR form from the ratee on 25.03.2009. Further the IO in his reply states that he received the ACR of the petitioner on 28.03.2009 is also incorrect because he admits that he was on leave from 24.03.2009 to 31.03.2009. Therefore, the position that he receives the ACR of the ratee when he was on leave from 24.03.2009 onwards itself is a contradictory statement. The IO, it is submitted, as per his own will and wish without caring of the Army order 1/2002/MP decides to fill up the ACR of the ratee on 04.04.2009 and give adverse remarks in the pen picture of ACR in a fully biased and subjective manner. He grades the petitioner as ''average'' and without communicating the same to the petitioner which is in contravention of the Army Order 1/2002/MP being a technical flaw sends it for the review of RO. The IO delayed the ACR for six months intentionally from 01.10.2008 to 03.04.2009 keeping it under his own lock and key and even without bringing it to the notice of the RO/record office or even to the petitioner. Further the RO review from 26.05.2009 after a gap of 52 days from the date of initiation of ACR by IO on 04.04.2009; besides, creates doubt as to whether the IO had even initiated the said ACR on 04.04.2009. This was because the ACR which had been pending with IO and delayed by six months could be further delayed for 52 days by the IO himself. This according to the petitioner shows the ill will and mind of the officers who are least bothered for the welfare of the troops. The petitioner was a known competitor for the foreign embassy selection, which in fact should have been appreciated by the IO as his Clerk had tried and proved to be efficient in the national level selection of Clerks to foreign embassy posting. Unfortunately, according to the petitioner, the IO instead of appreciating the petitioner felt jealous and did whatever was possible to harm him. The intelligence record office sends back the ACR of the petitioner on 30.06.2009 to the IO under observation for not communicating the adverse remarks to the petitioner. Still not reacting to the situation in a speedy manner, the IO communicates the adverse remarks in pen picture and grading of the ACR of the petitioner on 20.10.2009 after a gap of 110 days from the date of observation raised by the record office. This according to the petitioner is enough to prove the guilty mind of the IO against him. The warning/counselling, if any, is to be communicated to the ratee in writing and a period of sixty days to show improvement is granted as per Army order. If the NCO shows the desired improvement, he is neither to be placed under adverse report nor reflected adversely in the ACR which has been proved by the recommendations of the RO in the petitioner''s foreign embassy application. This would mean far better improvement have been noticed. The sixty days period as given in the Army order Para. 34, it is submitted had lapsed in both the warning letters. Therefore, the warning orders were can no weightage for filling up the ACR of the individual. For the ACR of the year 2009, the ratee submitted the ACR form duly signed but without putting the date as per order of the OC. The petitioner proceeded on six days casual leave from 08.02.2010 to 13.02.2010. As per the affidavit of the respondent, the petitioner had submitted his ACR to the IO on 10.02.2010. This again according to the petitioner is a manipulated and forged date by the IO as he had done in the earlier ACR. In fact the petitioner on 10.02.2010 was on six days casual leave. The fact was that the IO had again kept the ACR of the petitioner for the year 2009 in his custody w.e.f. 01.10.2009 onwards. The IO initiated this ACR for 2009 on 12.02.2010 with weak remarks and forwarded to the RO without communicating it to the petitioner. This ACR of the petitioner was initiated subsequent to his final selection for foreign embassy posting on 02.02.2010 without informing the ratee that weak remarks were sent to the reviewing officer on the same date by a special courier by the IO which had never been done so far in the Unit during the three years tenure of the petitioner. The RO reviews the ACR of the petitioner for 2009 on 15.02.2010 as weak and based on the IO''s feed back only which is in contravention to the special ACRs where IO recommends in his own handwriting the qualities of the petitioner in the foreign embassy application on 31.03.2009. It is submitted that the learned Armed Forces Tribunal has dismissed the claim of the petitioner that the statutory complaint of the petitioner was rejected by a detailed speaking order and without going into the merits of the case it has merely put a rubber stamp on the orders which were under challenge. The same is completely unsustainable in the eyes of law. Firstly, because the blatant misuse and bias of the IO is visible on the record which has been neglected and ignored by the learned Tribunal. Secondly, both the ACRs were initiated and reviewed after a gap of six months in 2008 ACR and four and a half months in 2009 ACR raises unfair intentions of the IO to spoil foreign embassy selection of the petitioner and also his career forever.

In the reply filed by the respondents before the Armed Forces Tribunal, it was submitted that the statutory complaint submitted by the petitioner was rejected by the Chief of Army Staff vide order dated 11.5.2010 being devoid of merit. It was stated that no cause of action accrued to the petitioner within the territorial jurisdiction of the Armed Forces Tribunal (Principal Bench) at New Delhi and nor was the matter within time under the Armed Forces Tribunal Act. The Integrated Headquarters of the Ministry of Defence vide letter dated 09.02.2009 asked for application for selection of staff to Indian Embassies abroad by 17.04.2009. The petitioner applied for the same on 24.03.2009 in the absence of his Initiating Officer (i.e. Permanent Officer Commanding). The application was processed to Integrated Headquarters of Ministry of Defence (Army) by Record Office on 13.04.2009 awaiting/pending ACR for the year 2008 as the ACR dossier was required to be submitted to Integrated Headquarters of Ministry of Defence (Army) on asking for it in terms of paragraph 24 of AO 26/2001/MP. Based on Integrated Headquarters of Ministry of Defence (Army) letter dated 09.06.2009, the Record Office, Intelligence Corps issue administrative instructions to candidates for appearing in the written test on 15.07.2009. The application of the petitioner for selection for posting to Indian Embassies was processed by the Record Office pending his ACR for the year 2008. The petitioner, it is stated, was aware about the said position as he himself submitted his blank ACR form for the year 2008 on 25.03.2009 belatedly, which in fact should have been committed to his Initiating Officer for initiation on 01.10.2008. This, according to the reply filed by the respondent, had been cleverly done because he was aware that if his ACR was initiated in time, he would not get a chance to apply for selection for posting at Indian Embassies as he had already been issued warning/counselling letters by his Initiating Officer. Therefore, knowingly the petitioner submitted his application to the Officiating Officer Commanding, then his Initiating Officer (Permanent Officer Commanding) who had given him warnings in the past, was away on leave. The petitioner was provisionally selected for posting to Indian Embassies on 14.10.2009. However, Integrated Headquarters of Ministry of Defence (Army) finally asked for confirmation of "Above Average" mandatory grading in ACR for the years 2006 to 2009 vide their letter dated 02.02.2010. Record Office, Intelligence Corps vide letter dated 16.02.2010 informed Integrated Headquarters of Ministry of Defence (Army) that his ACR dossier had already been forwarded vide letter dated 09.09.2009 and the petitioner had "High Average" grading in ACR for the years 2008 and 2009 which were initiated after submission of application for selection of staff to Indian Embassies. The contention of the petitioner regarding rejection of his statutory complaint without looking into the facts was totally incorrect as the statutory complaint was rejected by the Chief of Army Staff after minute examination of each related fact. It is stated that the petitioner was transferred to the Intelligence Corps at his own request on 17.10.1999. It is stated that though the petitioner cleared the tests conducted for selection of candidates for posting to Indian Embassies, however, the way he adopted for submission of his application in the absence of his Initiating Officer, when the Permanent Officer Commanding was away on leave, was not correct as he knew that his Initiating Officer may not recommend him because he had already issued him warnings/counselling in writing. More so the petitioner was very much aware that he may be not get the mandatory grading i.e. "Above Average" in the ACR for the year 2008 which was due to be initiated on 01.10.2008. Instead his efforts were to process his application for selection to mission abroad. Thus, he tried to cheat the system by submitting ACR form or initiation five months later than the due date. Cleverly he submitted his application on 24.03.2009 and his ACR form on 25.03.2009 knowing that the Initiating Officer was on leave upto 31.03.2009. The system in fact is well established that finally the Integrated Headquarters of Ministry of Defence asked for confirmation of "Above Average" grading in reports for the years 2006 to 2009. The Record Office, Intelligence Corps vide letter dated 16.02.2010 informed Integrated Headquarters of Ministry of Defence (Army) that the ACR dossier of the petitioner had already been forwarded vide letter dated 09.09.2009 and the petitioner had "High Average" grading in his ACR for the years 2008 and 2009, which were initiated after submission of application for posting to Indian Embassies abroad. Accordingly, Integrated Headquarters of Ministry of Defence (Army) vide signal dated 15.02.2010 informed that the petitioner was not fulfilling ACR criteria for posting to Embassies abroad and his name was dropped. The petitioner had not submitted his ACR form for the year 2008 in time, otherwise his application would not have been processed by the Record Office, Intelligence Corps. Keeping in view the interest of the petitioner, his application for selection for posting to Indian Embassies abroad was processed pending ACR for the year 2008. Not only in the year 2008 and 2009, even in 2006 while serving in 5 Mountain Division, Field Security Section, he was warned by his Officer Commanding in writing and having seen no sign of improvement, it was reflected by his Initiating Officer in the pen picture that he was casual and graded "High Average". With sufficient time to improve upto 2008 and 2009 his behavior and working style did not improve. Rather than improving himself, he played a trick by submitting his application for selection for posting to Indian Embassies abroad in the absence of his Initiating Officer who was fully aware about his performance. The petitioner also avoided submitting his ACR form before processing his application for selection for posting to Embassies abroad. Other comments have been made with regard to the past disparaging conduct of the petitioner in respect of other matters. It is primarily submitted that the petitioner submitted his ACR for the year 2008 to his Initiating Officer Lt. Col. I.V. Raghu, Sena Medal on 25.03.2009 and not on 01.10.2008 as mentioned by him. The ACR was received by the Initiating Officer on 28.03.2009 and initiated by him on 04.04.2009. The ACR was reviewed by the Reviewing Officer Col. V.S. Panchpor on 26.05.2009. Had the ACR form being submitted in time by the petitioner, his application for selection for posting to Indian Embassies abroad would not have been processed. Therefore, knowingly he had not submitted his ACR form in time. As regards the ACR for the year 2009, the petitioner submitted his ACR form to the Initiating Officer on 10.02.2010 after a delay of four months. It was initiated on 12.02.2010 and reviewed on 15.02.2010. Therefore, there was no unusual delay.

The Learned Armed Forces Tribunal in its impugned order considered the case of the petitioner. It was observed that the petitioner contested his rejection for Embassy posting on the grounds that the application was forwarded and processed culminating in his provisional selection. It should, therefore, be taken as valid and any subsequent impediment by way of below criteria of ACR could not be made the grounds of his rejection. It was held that mere processing of an application does not provide grounds for overriding the stipulated criteria for any selection which was also noticed that all short-listed candidates were provisionally selected implying thereby the their selection was subject to all conditions and criteria. No irregularity in the assessment and endorsements in the ACRs was found. If these ACRs resulted in the petitioner not meeting the selection criteria, it could not be said to be invalid. It was noticed that the photocopy ACRs forms appended with the rejoinder were totally blank bearing only the signatures of the petitioner. Dates of handing over, as required in the form, had not been entered. Filing them at the said stage and claiming them to be the forms submitted at the time of initiation of these ACRs did not inspire any confidence on their authenticity. On the other hand, the delay being intention appeared to be credible in the light of he being administered warning and counselling and the anticipated unfavorable ACRs. Delay in initiation of the ACRs for whatever reasons, it was observed, did not by itself did lead to any suggestion of mala fide intent specially in the background of the circumstances of existing warning and the dates related to calling of application for selection for Embassy posting. Distinction was noticed between an ''Annual Confidential Report'' under para. 9(a) of the Army order 1/2009/MP and an ''Adverse Report'' under para. 9(d). The ''Annual Confidential Report'' is initiated on yearly basis on the stipulated date covering a stipulated period. An ''Adverse Report'' on the other hand can be initiated at any time by the IO when noticing adverse traits warranting removal of the individual from the appointing held. The petitioner''s contention that his ACR being adverse and the procedure outlined in para. 9(d) of the Army Order should have been adopted cannot be sustained as his reports were ''Annual Confidential Reports'' under para. 9(a) and not ''Adverse Reports''. It was held that his statutory complaint was rejected by a detailed speaking order having considered all aspects of the matter no force was found by the learned Armed Forces Tribunal to interfere with the ACRs and consequently, selection for posting. The petition was, accordingly, dismissed.

Aggrieved against the order dated 24.08.2012 (Annexure P1) passed by the learned Armed Forces Tribunal, the petitioner has filed the present petition. We have heard learned counsel for the petitioner and have perused the record. The contention of the learned counsel for the petitioner is that it is primarily due to the bias and mala fide intention of the Initiating Officer that the ACRs of the petitioner for the years 2008 and 2009, even though submitted within time, were delayed and taken up just at that moment so that the foreign posting of the petitioner to Indian Embassies abroad is stalled and career of the petitioner ruined. It is submitted that the petitioner has been treated unfairly and has not been given due consideration for foreign posting to Indian Embassies abroad. Besides, his ACRs for the years 2008 and 2009 were deliberately and intentionally spoiled with the clear intent to cause harm to him.

We have given our thoughtful consideration to the entire matter. It is to be noticed that the petitioner is a serving Havildar and Clerk by trade in the Indian Army. He was enrolled as Clerk in the Gorkha Regiment Riffles on 26.08.1996. Later he opted for Intelligence Corps and was absorbed permanently in the same w.e.f. 01.04.1999. In compliance to the general instructions dated 09.09.2009, the petitioner submitted his application for Foreign Embassies selection to the Officer Commanding/Initiating Officer on 12.03.2009. According to the petitioner, the OC/IO Lt. Col. I.V. Raghu, Sena Medal deliberately kept his application pending and on 20.03.2009 the OC/IO proceeded on seven days casual leave till 26.03.2009 without taking any decision on his application. In the absence of OC/IO Capt. Suresh Babu, officiated as O.C. and he in routine on 24.03.2009 after conversation on telephone with the permanent O.C. Lt. Col. I.V. Raghu, Sena Medal signed and forwarded the application of the petitioner to the CO. for his recommendations. The CO. Col. Anoop Kumar on 31.03.2009 in concurrence to permanent I.O./O.C''s. daily briefing about each and every activities of the detachment recommended the petitioners Foreign Embassy application certifying the competence of the petitioner as asked on page 3 of the application in his own handwriting. The application was forwarded to Intelligence Record Officer for their further necessary action on 02.04.2009. After scrutiny by the Board of Officers of the Intelligence Record Office, his application was forwarded to Army Headquarters/MP-1 on 13.04.2009. In between the petitioner noticed that the carbon true copy of the field conduct sheet that was required to be forwarded along with the Foreign Embassy application had been left out by mistake. He got an endorsement of the Permanent OC/IO Lt. Col. I.V. Raghu on 06.04.2009 as he had rejoined from his leave. The same was then forwarded to the Intelligence Record Room. On the basis of the recommendations the Army Headquarters/MP-1 issued letters to all record offices for detailing the candidates in their respective examination centers. In terms of the same, the petitioner was required to appear in the Foreign Embassy written examination at Pune on 15.07.2009. The petitioner appeared in the written examination which he cleared. He was then detailed under movement of the signed by permanent OC/IO to undergo the typing test and interview to be conducted at Delhi in September 2009. The petitioner cleared the same as well. After being provisionally selected on 14.10.2009, the petitioner under movement order signed by permanent OC/IO was detailed to undergo Special Intelligence Course for JCOs/NCOs-32 at Military Training School and Depot, Pune from 21.12.2009 to 16.01.2010.

The petitioner acquired ''A'' grading. The petitioner was finally selected in the merit list prepared by Army Headquarters/MP-1 and was listed in the first five on 02.02.2010. He was issued a call letter to report at Delhi on 25.02.2010 for pre-dispatch formalities to go abroad along with family for three years and was posted to the Embassy of United States of America. However, due to the unwanted ACRs given by the I.O., the Army Headquarters/MP-1 cancelled his name for selection citing reasons "not fulfilling the ACR criteria". According to the petitioner, this was a deliberate attempt on the part of the IO/OC and even though his ACRs had been submitted within time, the same were with ill-intentions retained by the IO/CO and deliberately delayed. The petitioner initially filed a case before the Armed Forces Tribunal at New Delhi and the learned Tribunal vide order dated 28.04.2010 noticed that the petitioner had not filed a statutory complaint. The learned counsel for the petitioner prayed for withdrawing the application before the Armed Forces Tribunal at New Delhi with liberty to file a fresh application as and when needed. The application of the petitioner was dismissed as withdrawn and liberty was given to file a fresh application before the Tribunal as and when needed. The petitioner in view of the order of the learned Armed Forces Tribunal at New Delhi submitted a statutory complaint, which was rejected by the Chief of Army Staff on 11.05.2011. According to the petitioner, the same was rejected without looking into the finer aspects in gross violation of the Army order insofar as the two impugned ACRs for the years 2008 and 2009 were concerned. The petitioner aggrieved against the rejection of his statutory complaint filed OA No. 321 of 2011 before the Armed Forces Tribunal at New Delhi. His case was transferred to the learned Chandigarh Bench at Chandimandir. The learned Tribunal vide impugned order dated 24.08.2012 (Annexure P1) has rejected the OA which is assailed by way of the present petition.

The grievances of the petitioner have been considered. It is to be noticed that the primary grievance of the petitioner is that though he had submitted his ACR forms within time in the first week of October 2008, however, his IO Lt. Col. I.V. Raghu, Sena Medal deliberately delayed the process and he initiated the same on 04.04.2009 after a delay of six months. The IO recorded disparaging remarks which were communicated to the petitioner on 20.10.2009. The petitioner has not placed on record the ACR of the year 2008 containing the disparaging remarks, however, in the impugned order of the learned Tribunal it is mentioned that he lacks professional reliability and integrity and he habitually commits mistakes, violation instructions and does not show any regrets when counseled. It is further mentioned that he is rigid mind and self centered and was found giving wrong advise to his subordinates. Lastly, it is mentioned that he is not desirable in war. Similarly, the ACR for the year 2009 according to the petitioner was submitted on 01.10.2009 to his IO Lt. Col. I.V. Raghu, Sena Medal. This was initiated on 12.02.2010 after a delay of four and a half months. It was reviewed by RO Col. Anoop Kumar on 15.02.2010. This was written subsequent to the call letter dated 02.02.2010 which was call up notice for attachment with Integrated Headquarters of MOD (Army) for briefing and language study prior to posting to the missions abroad. The said letter was addressed by Director MP-1 to Intelligence Corps Records. The petitioner was directed to report to the said Headquarters (AG Branch/MP-1) on 25.02.2010 for briefing pre-dispatch formalities. It was asked to be confirmed if the petitioner had maintained above average in his ACRs for the years 2006 to 2009, has no red ink entry in Field Conduct Sheet, involved in any disciplinary case and is in medical category SHAPE-

Besides, the details of his family members were also asked to be intimated. According to the petitioner, at the said stage on 25.02.2010, the ACR of 2009 was communicated. The remarks of the RO in the ACR for 2009 endorsed that the ratee had ''improved his professional integrity''. This according to the petitioner amounted to justifying the ACR of 2008. Therefore, on the one hand it is submitted that the petitioner was allowed to apply for foreign posting and on the other hand, his ACRs were spoiled. The learned Tribunal held on the aspects of the ACRs that the petitioner had been duly warned about his performance and the ACRs were endorsed thereafter. The petitioner had been given a written warning by the IO vide letter dated 05.07.2010 and again on 29.12.2007. Thereafter, he was warned on 27.09.2007. In the circumstances, the ACRs were appropriately endorsed when there was no improvement despite the warnings. The ACR of 2008 was commensurate to the warnings that had given to him. The warnings that were issued have not been denied by the petitioner. The photocopies of the ACRs forms that were appended by the petitioner with his rejoinder before the Tribunal were totally blank and contained only his signatures. The dates on which the forms were handed over, as required in the form, were not entered. The learned Tribunal held that filing the ACR forms at the said stage did not inspire any confidence on their authenticity. The delay appeared to be credible in view of the warnings administered to him and also counselling which was given to him. Delay in the initiation of ACR for whatever reason, it was held, did not by itself lead to any suggestion of mala fide intent especially in the background of the circumstances of existing warnings and the dates related to calling of applications for Embassy posting. It was also noticed that there was a clear and distinct difference between an ''Annual Confidential Report'' under para. 9(a) of Army Order 1/2009/MP and an ''Adverse Report'' under para. 9(d). The Annual Confidential Report is initiated on yearly basis on the stipulated date covering a stipulated period. An Adverse Report on the other hand can be initiated at any time by the IO when noticing adverse traits warranting removal of the individual from the appointment held. The contention of the petitioner that his ACR being adverse and the procedure outlined in Para. 9(d) of the Army Order should have been adopted, it was held, cannot be sustained as his reports were ''Annual Confidential Reports'' under Para. 9(a) and not ''Adverse Reports'' in terms of Para. 9(d). The forms purported to have been submitted also state ''report initiated in terms of para. 9(a)(i)(aa) of AO 1/2002/MP''.

The reasoning and conclusion reached at by the learned Tribunal are correct and do not warrant any interference of this Court in exercise of its supervisory writ jurisdiction under Articles 226/227 of the Constitution of India. The question whether the petitioner had submitted his ACR forms for the years 2008 and 2009 on time in the first week of October of both the years or not, is a question of fact. The respondents in their reply have categorically denied this. However, even assuming that the petitioner had submitted his forms in time as is alleged by him and thereafter, there is a delay in filing the forms and forwarding them and writing the ACRs is not such a circumstance to hold that the action of the respondents was with any mala fide intent. The instructions issued by the Department for the recording of ACRs are in the nature of guidelines for the officers to comply and these do not confer any right leave alone a statutory right on an employee to seek a mandamus from the Court for their compliance or of any advantage for their non-compliance. In Government of A.P. Vs. V. Sivaraman, it was held that the instructions of the Government which required the Government to review an order of suspensions within six months had no statutory force and suspension beyond six months does not become automatically invalid or non est. The instructions therefore which are issued by the Army Authorities for the mode of writing ACRs are for the guidance of the officers in the matter of regulating the procedure for the same. The violation of these would not confer any immunity to an employee for recording adverse or disparaging remarks in case there is a violation of the same. An employee cannot claim any benefit on the violation of mere instructions. Besides, it is to be noticed that the allegations of mala fide have been levelled against Lt. Col. I.V. Raghu, Sena Medal. He has not been impleaded as a party to the case so as to answer the charge. In State of Punjab and Others Vs. Chaman Lal Goyal, , it was observed on the charge of mala fide, it was held that in the absence of any clear allegation against any particular official and in the absence of impleading such person as nominee so as to enable him to answer the charge against him, the charge of mala fides could not be sustained. Therefore, in the absence of impleading the person against whom the charge of mala fide is alleged would clearly be unsustainable. Even otherwise, it is to be noticed that the petitioner is in the rank of Havildar and it is quite unreasonable to comprehend that the IO/OC who is in the rank of Lt. Col. in the Army would act in a manner to delay the ACR of the petitioner so as to stall his posting in Foreign Embassies abroad. Besides, it is not as if the ACRs had suddenly come in and deprived the petitioner of foreign posting. The ACRs as observed by the learned Tribunal are based on earlier warning letters and counselling. A reference has been made to the written warnings issued by the IO vide letter dated 05.10.2007, 29.12.2007 and 27.09.2008, besides, the counselling given to him. Therefore, the petitioner had been warned from time to time and graded ''High Average'' in 2008, besides, it was recorded that he lacks professional reliability and integrity. He habitually commits mistakes, violates instructions and does not show any regrets when counselled. It is further recorded that he is rigid in mind and self-centered and was found living wrong advise to his subordinates and that he was not desirable in war. In the ACR for 2009 it is recorded ''improved his professional integrity''. The ACR of an official is based on the subjective satisfaction of the Initiating Officer of the conduct of the official concerned. The satisfaction of the Initiating Officer though is subjective, but is based on objective consideration of the conduct and demeanor of an assessee or a ratee. The subjectiveness is not justiciable although objectiveness may be subject to judicial review. In the present case, the Initiating Officer on the basis of his subjective satisfaction after assessing the conduct of the petitioner. The same, therefore, in the facts and circumstances, does not warrant any interference of this Court in exercise of its supervisory writ jurisdiction under Articles 226/227 of the Constitution of India. Therefore, there is no merit in the petitioner and accordingly, the same is liable to be dismissed.

For the foregoing reasons, the writ petition is dismissed.