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Judgment
Shiva Kirti Singh, J.—Petitioner is an Army Officer who joined as 2nd Lieutenant in the Bihar Regiment on 18.3.1978. He rendered satisfactory (sic) vice on various postings, earned (sic) promotions and in November 1989 (sic) was given charge as Commanding Office when he was a Major which marked (sic) start of reckonable service for promotion to the rank of Lt. Colonel and Colonel Promotion to these ranks are by selection on merit. On 20.3.1995, petition earned promotion as acting Lt. Colonel by No. 4 Selection Board. For the (sic) batch officers like the Petitioner, No. (sic) Selection Board held the selected December 1996 to consider promotion to the rank of acting Colonel/Colonel. After consideration Petitioner was not selected either in December 1996 or in December 1997 and December 1998 which were the first and 2nd review meetings of the No. 3 Selection Board for selecting officer from 1978 batch from the rank of Lt. Colonel to that of Colonel. Petitioner has prayed for quashing the result of No. 3 Selection Board proceedings held during December 1996, December 1997 and finally in December 1998 insofar as it relates to the Petitioner. He has also prayed for directing the Respondents to hold fresh Selection Board proceeding and consider Petitioner''s case after expunging from the records the Petitioner''s ACR pertaining to period June 1990 to May 1991 and June 1992 to May 1993.
On behalf of the Petitioner emphasis was laid on the fact that Petitioner''s ACR of the year 1989 showed pat the Petitioner had been given Box Grading of 8 by the enquiry officer (IO) as well as by the reviewing officer (RO). Same was the assessment in the ACR of 1988-89 (June 1988 to May 1989) as well as in the ACR of 1991-92 (June 1991 to May 1992) and in the year 1993-94 (June 1993 to March 1994). On that basis it was submitted that ACR for the intervening period i.e. 1.6.1990 to 31.5.1991 in which the Box grading by the IO and RO had been reduced to 7 and the other ACR of intervening period 1.6.1992 to 31.5.1993 in which the Box grading by RO was reduced to 7 did not correctly reflect the career profile of the Petitioner and since such entries were not comunicated to the Petitioner with an advice improvement although they lowered Petitioner''s assessment from earlier years hence, such ACRs were not in accordance with norms and guidelines laid down for recording of ACRs. The other in argument advanced by learned Counsel for the Petitioner was that upon the same ACRs Petitioner''s career profile s found good enough to grant him promotion to the rank of Lt. Colonel in 1995 and the ACR''s of the Petitioner thereafter has shown regular improvement placing him in the category of extraordinary or above average hence, there was no material or reasonable ground to hold that the Petitioner''s career profile was not of the standard to allow his selection to the rank of acting Colonel/Colonel in December 1996, December 1997 or December 1998. In other words, the second argument is that even on the existing materials, since the Petitioner was promoted to the rank of Lt. Colonel in 1995 and there is no adverse material thereafter and rather, the ACRs of later periods are quite superlative, Petitioner''s case has not been considered fairly and in accordance with law and his non-statutory complaint as well as statutory complaint have been wrongly turned down by the authorities.
At the time of admission of this case the counsel for the Union of India was directed to keep the relevant records available for perusal of the Court and the same were shown to the Court at the time of hearing. Upon going through the ACRs of different years this Court finds that the factual assertions made on behalf of the Petitioner are correct and there has been downgrading in the ACRs of two years against which, Petitioner lodged a statutory complaint dated 4th June, 1998 which was rejected by order dated 30.3.1.999 (Annexure-2). It is also found correct that after his selection and promotion to the rank of Lt. Colonel in March 1995, the Petitioner has shown further improvement as reflected by ACRs of later years wherein he has been consistently given Box grading of above average i.e. rating of 8 and even 9 which denotes outstanding, by the IO for the period June 1995 to December 1995. Thus, it is clear that Petitioner''s claim for promotion to the rank of acting Colonel/Colonel has been rejected on three occasions due to ACRs of 1990-91 and 1992-93 adversely affecting his overall profile. This and comparative merit with the batch is the reason given by the Respondents also in their counter affidavit wherein no dispute has been raised so far as relevant facts are concerned.
The contention advanced on behalf of the Respondents is that the two ACRs of the year 1990-91 and 1992-93 are technically valid and hence, rightly taken into consideration to assess overall profile of the Petitioner. According to Respondents, the structure in the Army is a Piramidical structure and hence, higher the rank, lesser is the number of officials selected for promotion and hence, no arbitrariness should be inferred only because on the same ACRs Petitioner was selected and promoted to the rank of Lt. Colonel but rejected for the rank of Colonel.
In the aforesaid facts and circumstances, the questions falling for consideration and decision in this case are whether the ACRs of the year 1990-91 and 1992-93 are technically correct or not? and whether such ACRs could have been considered to hold that Petitioner''s overall profile for promotion to the rank of Colonel is not of requisite standard?
On the basis of judgment of the Supreme Court in the case of U.P. Jal Nigam and others Vs. Prabhat Chandra Jain and others, it has been submitted that since the ACRs in the present case are maintained on the basis of graded entry hence, where the grade recorded for a particular year shows stepping down like from very good to good then although good may not be an adverse entry but still reasons should be recorded for such downgrading on the personal file of the officer concerned with information of such downgrading in the form of an advice. There is no denial that no such reasons were recorded while downgrading the performance of the Petitioner in the impugned ACRs and no comment was made to the Petitioner in the form of any advice. This clearly defeated the very purpose of writing annual confidential reports. The reasons alone, in such a case would have served the purpose of guiding the Petitioner in improving his performance. On behalf of the Respondents nothing was cited to meet the aforesaid submissions and hence, it has to be held that the Petitioner''s ACR of the year 1990-91 and 1992-93 contained downgrading without reasons and consequent advice. Hence, those ACRs must be held to be technically incorrect.
The other submission on behalf of, the Petitioner is that even on the materals including the ACRs of the year 1990-91 and 1992-93, since the Petitioner was found fit for promotion to the rank of Lt. Colonel in February 1995 hence, in absence of any material adverse to the Petitioner thereafter, it was not reasonable and fair to hold that Petitioner''s over all profile made him unsuitable for promotion to the rank of acting Colonel/Colonel in December 1996 or thereafter. In support of this proposition learned Counsel for the Petitioner has placed reliance upon a Division Bench Judgment of Madesh Pradesh High Court in the case of K.K. Sood v. Union of India reported in 1994 Lab. I.C. 1150. The facts of the case were almost similar so far as this point is concerned. In that case Brigadier K.K. Sood had been found fit for holding the rank of Brigadier but on the basis of same record he was found unfit for the rank of Major General. The Division Bench noted that in absence of any special qualities and standard of efficiency shown to be required for holding promotional post the personnel if otherwise entitled cannot be denied promotion when records at the time of subsequent promotion remain the same. The said Principle clearly covers the case of the present Petitioner also. As noticed earlier, in this case not only past records after Petitioner promotion to the rank of Lt. Colonel remained the same but there was improvement in the performance of the Petitioner as evidenced by ACRs of the later period. Learned Counsel for the Petitioner was right in submitting that in such a situation digging out past would arbitrary as observed by the Supreme Court in the case of D. Ramaswami Vs. State of Tamil Nadu, following words:
Sometimes, past events may help to assess present conduct. But when there is nothing in present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past.
Learned Counsel for the Petitioner support of aforesaid contention rightly placed reliance upon observations of Supreme Court in the case of Baidyanath Mahapatra Vs. State of Orissa and Another, to the effect that after promotion to a higher post, the adverse entry if any in the service record lose their significance and remain on record as part of past history and it would be unjust to curtail the service career on the basis of those entries in absence of any significant fall in performance after promotion.
Learned Counsel for the Respondents did not cite any judgment to meet the aforesaid specific submissions. However he placed reliance upon a recent judgment of the Supreme Court in the case of Union of India and Others Vs. Lt. Gen. Rajendra Singh Kadyan and Another, In this judgment the Supreme Court laid down the test to determine whether a post is a selection post o� not and also dealt with the criteria for selection and promotion in three different categories of selection. Hence, the said judgment does not meet the contentions advanced on behalf of the Petitioner as noticed earlier. It may be useful to record here that nothing was produced before the Court from the records to show that any comparative assessment was made of all the officers nor it was shown that the number of posts were limited and have been filled up by better candidates.
Once this Court has come to the findings that the ACRs for the year 1990-91 and 1992-93 were not prepared fairly and that nothing was shown that promotion to the rank of acting Colonel/Colonel required some special qualities and standard of efficiency than what was required for promotion to the rank of Lt. Colonel, it must be held that Petitioner''s case for promotion to the rank of acting Colonel/Colonel was not considered fairly and in accordance with law.
In the result, this writ application is allowed. The two ACRs of the years 1990-91 and 1992-93 wherein Petitioner''s overall performance was downgraded are held to be unacceptable and should be kept out of consideration when the No. 3 Selection Board, in pursuance of this judgment, shall be constituted and convened to reconsider Petitioner''s case for promotion to the rank of acting Colonel/Colonel. The result of the selection process with regard to Petitioner alone as contained in Annexure-1 dated 15.4.1999 is accordingly quashed and the matter is remitted back for fresh consideration in accordance with law and the observations and directions given above, within a period of six months. In the facts of the case there shall be no order as to costs.