L.P.A. No. 955 of 2002 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No. 955 of 2002 Date of decision: October 08, 2010. Union of India and others …..Appellants Versus Lt. Col. I.S. Sabharwal …...Respondent **** CORAM : HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. Gurpreet Singh, Advocate, for the appellants. Mr. G.S. Chahal, Advocate, with Mr. Arun Singla, Advocate, for the respondent. **** A.N. JINDAL J. Assailed in this Letters Patent Appeal, preferred by Union of India and others, respondents-appellants (hereinafter referred to as 'the appellants'), is the judgment dated 18.01.2002 passed by the learned Single Bench of this Court in Civil Writ Petition No.18264 of 1991, whereby they were directed to reconsider the case of the petitioner- respondent (hereinafter referred to as 'the respondent') by comparing his merit with his batch mates having regard to the number of vacancies existing at that time and while considering his case appellants would not take into consideration the Annual Confidential Report (in short ‘the ACR’) initiated on 18.11.1984. L.P.A. No. 955 of 2002 - 2 - Few facts as essential for disposal of this appeal are that the respondent Lt. Colonel I.S. Sabharwal was commissioned into the Armed Forces on 06.10.1963. By dint of his intelligence and hard work, he earned promotion and reached the rank of Lt. Colonel. However, the promotion in the Armed Forces up to the rank of Major is of time scale and promotion thereafter, is based on the selection which is to be made by a Board constituted under the Regulations for the Army, 1962. On promotion to the rank of Lt. Colonel, the respondent was handed over the command of 9th Sikh Regiment, which he took over on 16.09.1982. During his command, the Unit achieved the following distinctions in the formation under which, he was serving:- a) Recoilless gun competition – First b) 84 mm Rocket launcher competition – First c) Battle Physical Efficiency test – First d) Mine laying competition – Second e) Pioneer Platoon Competition – First f) Boxing _ First g) Athletics – First It is further reiterated that promotion up to the rank of Major is time scale promotion and granted after completion of particular years of service. Thereafter, the promotion of the officer depends upon selection by the Board constituted by Chief of Army Staff regularly every year. The Chief of the Army Staff has been empowered, vide para No. 107 of the Regulation for the Army, 1962, to constitute the L.P.A. No. 955 of 2002 - 3 - Selection Board. The Chief of the Army Staff could either head the Board himself or detail any of the senior officers on his behalf to perform such duties. No minimum criteria, except for seniority, which would make an officer eligible for promotion, is fixed. All the officers are placed before the Selection Board and the assessment of the officer is based on comparative merit of the overall profile of the officers within his own batch, as given in policy issued vide letter No.31525/P/MS5B dated 06.05.1987. Thus, promotions are made primarily on the basis of assessed fitness of an officer to hold the command appointment in his own Army Service and to provide a pool of officers to be rotated in Staff/Extra Regimental Employment appointments. While assessing the officer, no mention is made to the number of vacancies in the next rank. It has been further alleged by the respondent that he had a comparative better merit amongst his batch- mates and his performance while commanding 9th Sikh Regiment could be seen from the performance of his Unit as reflected above. All his ACRs were also good. In his first report in the rank of Lt. Colonel, he was assessed as above average officer with 7-point figurative assessment. Thus, his career profile upto the year 1983 remained unblemished and upto the mark. It was quite unfortunate that during the Operation Blue Star ( which occurred on the night of June 7/8, 1984 at Amritsar), his conduct was not appreciated. His report for the year 1983-84, which could be initiated on 01.06.1984, was not initiated on that date. However, by discussing the Operation Blue Star happenings, his report was initiated on 18.11.1984, whereby he was conveyed L.P.A. No. 955 of 2002 - 4 - ‘severe displeasure’ and he was reverted from the rank of Lt. Colonel. Consequently, petitioner approached the High Court by filing a Civil Writ Petition No.3846 of 1988 challenging the action of the Army authorities in not re-granting him the rank of Lt. Colonel from the date he was made to relinquish the same. The said writ petition was admitted and was finally vide judgment dated 05.10.1989, the adverse remarks of “severe displeasure” were expunged and respondents were directed to re-grant the rank of Lt. Colonel to the respondent with effect from 18.11.1984. The Letters Patent Appeal filed by Union of India against the said judgment, was also dismissed. The Special Leave to Appeal filed by Union of India, was also dismissed by the Apex Court. Despite that the appellants did not implement the said judgment, therefore, the respondent had to initiate the proceedings by filing COCP No. 181 of 1990. Consequently, he was re-granted his rank and various other reliefs including the grant of substantive promotion to the rank of Lt. Colonel and also his consideration to the post of Colonel having regard to the criteria, which was made applicable to his batch-mates at that time. In the said contempt petition, the appellants had made statement that all reliefs had been granted to the respondent. When it was pointed out in the said contempt petition that officers junior to him had been promoted, which was a consequent relief, must also be given to him, on this the appellants submitted the reply that the respondent had been considered for promotion to the rank of Colonel, but has been superseded. The case pleaded by the respondent at that time was that his case for promotion would be considered by applying the L.P.A. No. 955 of 2002 - 5 - same criteria as was applied to his batch mates in the year 1984, but the consideration of the petitioner in the year 1990 was meaningless as he was required to be considered having regard to the comparative merit of officers of his batch, who were promoted in the year 1984 depending upon the number of vacancies existing at that time. The appellants did not dispute this position and this Court discharged the Rule on 28.01.1991 while directing the appellants to consider the case of the respondent as per parameters recorded in the aforesaid judgment. It has been further averred by the respondent that the appellants again took into notice of the ACR for the year 1983-84, which was not initiated at the relevant time and was quashed by the High Court and refused to grant him promotion. It was further submitted that after 1983-84, the respondent on termination of his attachment, was assessed as above average with 8- point figurative assessment by Commander Head Quarter 36 Sector; he was further assessed as above average with 8-point figurative assessment in the Interim Confidential Report initiated in the year 1987- 88 and the ACR for the year 1988-89 was not initiated, as he did not complete the service under any of the IOs. Thereafter, for the year 1990- 91, he was again assessed above average. Thus, he has reiterated that except for the report for the year 1983-84, he earned reports upto the mark and there was no reason to ignore him for promotion, as his overall performance was also good. The appellants filed the reply to the writ petition, wherein they took preliminary objection that the petition was not maintainable. L.P.A. No. 955 of 2002 - 6 - On merits, it was submitted that promotion in the Army depends on various factors including his ACRs, inputs and his overall performance. The Selection Board is constituted, who after examining the case of each individual, grades him ‘fit’ or ‘unfit’ on the basis of one’s overall career profile and comparative merit. It was further alleged that the competition for the promotion of the higher rank posts becomes tougher, therefore, selection is competitive and is not based purely on seniority but on merit; It could not be expected from the respondent that he would not take remedial measures to the “likely reaction” of his men, with whom, he as a Commanding Officer, had very intimate and daily contacts. He should have also anticipated the desertion/breach of discipline by his troops and in the light of false/exaggerated version given by hostile media of Pakistan, BBC and Voice of America in the wake of Operation Blue Star he should have taken corrective measures which he had failed to do. Certain incidents also took place within the respondent’s command period which are detailed in para No.8 of the written statement. The ACR for the year 1983-84 reflects that the respondent’s performance in various spheres, as noticed by the assessing /reporting officers during the period with effect from 01.06.1983 to 31.05.1984, bears no reference to the events that took place after 31.03.1984. The respondent has tried to confuse the case by mixing the matter. After scrutinizing all the facts and records of the case, the Hon'ble Single Judge, allowed the petition and directed the appellants to reconsider the case of the respondent as per the criteria prevailing at the L.P.A. No. 955 of 2002 - 7 - time when his batch-mates were promoted and after taking into consideration the number of vacancies existing at that time. The Court had further directed not to take into consideration the ACR initiated on 18.11.1984 against him. Arguments heard. Record perused. The appellants have time and again taken us to appreciate the conduct of the respondent during the operation Blue Star and the ‘displeasure’ conveyed to him. Reference has also been made to the incidents as per findings of the Court of Inquiry ordered by General Officer Commanding 24 Infantry Division, which are as under: “(a) Signature campaign, to enlist volunteers to go to Amritsar in case the need arises were started on 04th June 1984. (b) On 06 June 1984 at about 2130 hr no.3353986 Hav. Gurmail Singh of ‘C’ Coy was shouting after drinks “Hamara Harminder Sahib loota gaya, Sikh Kaum looti gayi” or words to that effect. (c) On 07 June 1984 a conference was held at unit Gurdwara premises at 1330h, 1730h and 2130h to finalise the plan and ascertain the number of persons to go to Amritsar. (d) MT Platoon was warned to move at short notice and all vehicles were topped up on 07 June 1984 by 2100 h. (e) A number of activities took place in unit till 0040h on 08 June 1984 which were the clear indication for mass desertion. (f) Playing of recorded tapes of Sant Jarnail Singh Bhindrawala in unit area.” Thus, on the aforesaid findings, the respondent's conduct was condemned saying that he lacked control and supervision and the appellants have tried to justify his exclusion from promotion on the aforesaid ground. L.P.A. No. 955 of 2002 - 8 - Nonetheless, the respondent was conveyed ‘severe displeasure’ as per the report for the year 1983-84. On the basis of the aforesaid allegations against the respondent in this regard, it may primarily be observed that there was allegations of misconduct, dereliction of duty or lack of control till 4th of June, 1984. Some of the persons from artilary started exciting emotions when whole of Punjab was burning due to “operation blue star” which could never be anticipated by any one. Except the aforesaid outbrust of emotions, no further overt act on the part of these constables has been indicated for which the respondent could be held to be responsible. Rather, it indicates that the respondent being the incharge, took control of it. That apart, the respondent challenged the said report by way of filing the writ petition, which was accepted and the High Court vide judgment dated 05.10.1989, while quashing the ACR, made the following observations:- “The petitioner has also challenged the award of “severe displeasure (Recordable)” given to him vide Annexure P-8. The ground of challenge advanced by the petition is that there is no provision in the statute in which the administrative action of this nature can be taken. In this regard, the petitioner has relied upon Paragraph 17 of the decision in Major J.S. Kang’s case (supra). As is clear from Paragraph 17 of the judgment, the power to grant this punishment is regulated by a confidential circular dated April 18, 1979. After making elaborate reference to various provisions of the case law, D.V. Sehgal, J., in Major J.S. Kang’s case (supra) held that the award of such punishment cannot be sustained as there is no sanction of law behind it.” L.P.A. No. 955 of 2002 - 9 - The Court in the aforesaid judgment had also observed that the respondent actually was not blamed for the incident as the authorities, after his attachment, continued to keep him with Head Quarter 180 Inf Bde, till his posting was issued by the Army Head Quarter on 08.12.1986. It was also decided by the authorities not to bring him to trial and to post him out and that brought his attachment order to an end. Moreover, after awarding him recordable censure on 25.09.1986, he was posted out with effect from 08.12.1986. The argument advanced by the counsel for the appellants that the act of the respondent was not appreciable in the year 1984 and he could be ignored from promotion on that basis, could not be considered well founded in view of the earlier judgment passed by the High Court expunging the remarks awarded by the appellants in the year 1984. As regards the application of the principle of res-judicata, since the respondent was not awarded promotion while considering the criteria which was prevailing in the year 1984 when his other batch mates were promoted and on the basis of the vacancies existing at that time, the same does not apply to the subsequent writ petition filed by the respondent on a fresh cause of action. Similar observations were made in case of Supreme Court Employees Welfare Association Vs. Union of India & others, AIR 1990 (SC) 334, wherein, it was observed as under:- “The doctrine of res judicata is a universal doctrine laying down the finality of litigation between the parties. When a particular decision has become final and binding between the parties, it L.P.A. No. 955 of 2002 - 10 - cannot be set at naught on the ground that such a decision is violative of Article 14. So far as the parties are concerned, they will always be bound by the said decision. In other words, either of the parties will not be permitted to reopen the issue decided by such decision on the ground that such decision violates the equality clause under the Constitution.” The aforesaid judgment delivered in Supreme Court Employees Welfare Association’s case (supra) conveys that decision on abstract question of law unrelated to facts which give rise to a right cannot operate as res-judicata nor also can a decision on the question of jurisdiction be res-judicata in a subsequent suit or proceeding. But, to the contrary an erroneous decision on the same issue between the same parties in a subsequent suit or proceeding amounts to res-judicata when the cause of action is the same. In the instant case, since the respondent was refused consideration of his promotion on the basis of a report, which has already been ignored by the High Court; he was not considered on the basis of the criteria prevailing at that time; amongst his batch mates and against the vacancies existing at the relevant time, then certainly he had a fresh cause of action and could initiate action for not reconsidering him while ignoring said report. The argument of the counsel for the appellants that the selection process has not been challenged and that the selection to the defence services has its own specialties and peculiarities and it is based on overall profile of the officer, is without any merit. The legality and validity of the Special Army Order No.3-S/89 or of the Selection system is specifically under challenge. In Lt. Col. Krishan Chand Vs. Union of L.P.A. No. 955 of 2002 - 11 - India and others, 1996 VAD (Delhi) 199, it has been held that the aim of the Selection Board while making the selection is as under:- (a) To assess all eligible officers of a batch who reekon seniority during one calendar year, and their equivalent seniority in other Arm/Services for promotion to the next rank. (b) To screen officers of earlier batches who have been placed on Review for promotion to the next rank. (c ) To assess the suitability of officers, who have been approved earlier to the next higher rank whilst in low medical classification, for their physical promotion and recommend restrictions, if any, on their employment in that rank. (d) To ensure selection through objectivity, impartiality and in the best interest to the service, in accordance with the guidelines laid down by the COAS.” In this case, the Selection Board has not assessed the respondent on the same criteria, which was laid down at the time when his batch-mates were selected. Similarly, the suitability of the officers, who have been approved earlier to the next higher rank whilst in low medical classification for their physical promotion and recommended restrictions, if any, on their employment in that rank, have not been examined. In Lt. Col. Krishan Chand’s case (supra), the Court had observed that the same considerations do not apply to the selection in the Army Services as are applicable to the other Government Services. But at the same time the Board cannot eschew aside the acts undone by the Courts of law and sit with unprejudiced mind keeping in view the length of service, loyalty, performance, ACRs, profile and his devotion to duty while considering him for the selection to a higher grade. The Army authorities should sit with open mind and not like enemies wielding guns against those who were once accused for certain reasons L.P.A. No. 955 of 2002 - 12 - and exonerated and their honour was restored. After that isolated act (that too was condoned) the authorities should not always adopt a policy of ‘once bad always bad’. No other argument has been raised. The Judgment dated 18.01.2002 passed by the learned Single Judge in Civil Writ Petition No.18264 of 1991 conforms to all judicial norms and does not suggest anything to be intruded therein. Resultantly, finding no merit in the appeal, the same is dismissed. (M.M. KUMAR) (A.N. JINDAL) JUDGE JUDGE 08.10.2010 ajp