97 P Ill of200908Ml V r IN THE HIGH COURT FOR THE STATES OF PUNJAB 84 HARYANAAT CHANDIGARH eee Lctters PatentAppealNo69 of 200908Ml Decidedon 07 2010 Ombir Singh OeeAppellant 0 VERSUS 0 I UnionofIndia and others C5 eee I CORAM 1 Z HONBLEMRJUSTICE MKUMAR HONBLEMRJUSTICE ANJINDAL m r Presentl Bakshi Advocatefor the I MsGeeta Advocate for 08 MsRenu Bala SharmaCentralGovernmentStanding OO Counsel for the a7 A N JINDAL J Z CM Noe1818of2010 Om CM is allowed as prai for 31 daysdelayin OIingthe CM No1819 of2010 CMis allowedandthe Letters Patent Apjoeal is restoredto its numberand takenup for hearing rl LPA Noe69of2009 1 This Letters Patent filed by Ombir Singh herein referredto as the is against 1 dated5998 bylearnedSingleJudgeofthis Court Rashmi 2014.07.04 10: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document 98 LPeAeNoe69of20008M9 121 The case has historyThe havingIosthis VOlCe ln thesoundofgunsstill maintainedhishopeofhearing hisvoiceby theCourtof law andhastriedto thecourt thathe wasentitledto as Havaldarwef 111990insteadof 11993 The was enrolledin the Armyin 1983 to 1 therankoEClerk in January1987andwas to be to the rankof HavaldarlClerkwef l 1 1990 but he was lgnoredhavingbeen 0 0 graded as averagenot recommendedfor lll his Annual I C ConfidentialReportfor theyear 1989 The madebyhim was I allowed by hls superior officer videorderdated81993 P Z 19andhe was heldeligiblefor we 631990 He m flled a statutory on the groundthat since annual confidential I reportfor theyear 1989was set aside thereforehe was entitledto seniority 08 we 11 1990 when his immediatejuniorYam Bahadur Chhetrywas The said requestwas allowed vide coininunicationdated wm Z 1631994 l2I and a directionfor grantof notionalseniority Il was issued to the he was wef 11990 However lateron vide orderdated3081994 4nnexureP4 his notional seniority was cancelledon theground that the Officer who set asidethe ACR was not competent to do SO Againhe fi led a statutory c dated781996 I51 but he was not heard and his seniontywas byfixingthe same w 1993 vide order dated 112998 AnnexureI69 He made further but of no avail Thereafter he knocked the door of RajasthanI4ighCout1 by filing Civil Writ Petition No34 of 1998 wherein vide order dated 22102005 it has been observed that thoughthe OfflcertCharge Rashmi 2014.07.04 10: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document 99 Jr LPAN069 of20008Ml 131 e4 records9 was not to decidethe statutory yetinstead of passing any orderon such heshouldhaveforwardedthesame tothe AuthorityThe HighCourtfurtherobservedas underl Havingconsideredtheentirefactsandcircumstancesin m theinterestofjusticethe are now directedto refer 1Z of the 8led 0 0 against the adverse entriesfor the year 1989to a competent C who may decidethe same andpass necessaryorders I within60 days om thedateofreceiptofcertifiedcopy ofthis Z order In case the is decidedin favourof the m C necessary ordersmay also be passed I within 30 daysthereafler With the above observationand 06 directionsthewrit petition is of m 17 Z Thereafter vide COlllllllllllcation dated1162006 0m P89 the was of his bythe same he a writ petition the validity of the adverse confidential remarks for the year 1989 and claimed his seniority wef 111990 Replywas filed in the writ petitionThe learned SingleJudgedismissedthe writ petitionmainlyon the ground that adverse remarkswere passed in consonance with the as mentionedin the ArmyOrder 7 of 1995 He was conveyedthe weak remarks which were duly receivcd by hlm under his therefore he cannot come to contendthat he was never inforined about these weak remarks recorded 111 his Annual Rashmi 2014.07.04 10: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document 400 Yd LPANo69 141 1 4 ConfldentialReport Thecrux of the issue raised by the in thiS Writ remarksfor the year 1989 were passed in petitionis that the violationof subvclauses39 41 43 45 and47 ofArmyOrder 70f 1995 He was never warnedat any tiine or issuedany letterand thereforethe 1 with no was illegalon the C faceofit None of theOfficershadtried to go through the ArmyOrders 0 0 to above The counselhasalso contendedthatthe has C5 thereportin para 15ofthe writ petitionwhilerefenngto Ariny I Order70f 1995 but the have not deniedthe Z whilestatingthat the instructionsmentionedin the aforesaid order were coniplied with Before to decidethevalidityofthe L Reportthe suleclausesof ArmyOrder70f 1995with regard 08 totheNCOsare being as under m l In theinterestoftheOrganizal as also oftheNCOs 2 Z it is essential that of dutes and character QU of all NCOs observed duringthe are of the reportingyear and the same be rejlected in their annual report 2 ACR are documents and will be held in numericalorderunder thecustodyofan 07cer 3 Therewill befourgradingsnamelyAboveAverage4 marks HighAverage3 mclrks Average2 marks and below Average I mcwksl The award of two or lessmarks U7 any of the orland in overall gradingis requiredto be elaborated lYl the penpicturebolhoy the initiatingand Rashmi 2014.07.04 10: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document 401 V I5I 1 LPAeNoe69of2009408MJ ad Ofcer 8 TheAct on NCOswill be initiatedbytheir immediate Oicers ovl thedatesgivenbelow a9Naik Ol Jareveryyear b1Havildar Ol Oevery year 1 Communication or weak Remarksl Below Figurative Assessnent 0 0 39 ACRs will not be shown to the NCOs concerned I C5 Adverse weak pointsorl and Below Average under Para 12 or ACR figurative assessment ln any Z form will becommunicated in in theformofa letterto e bytheinitiatingofcer In case the10 is L theNCOs I postedout or is not availablethe unit concernedwilIebe 08 for the weak pointsladverse 00 remarkslbelowaverageflgurative grading ln anv qualiolA Wmo Z ofthe communicationdulysignedand datedbytheNCO C Qm and bytheIO or theofcer commlinicating the will be enclosedwith the ACR Letter No and date same under whichthe same are colnInunicatedwill be mentloned para 17 ofpart Il ofACR Form Reconlmendationl nonrecommendationsforpromotion and overaUgradingwill not becommunicated Nonecommendationfor promotion 40 Non recommendations forfurtherpromotion ln case f NCOs gradedAverageby10 RO will bejustifted in thepen pictureNCOs gradedAbove Average and HighAverage Il Rashmi 2014.07.04 10: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document 402 1 161 IV LPAN069 of200910 1 will be WeakpointsIAdverse Remarks 43 Suitable shouldbe to the NCO beforeendorsingweak in hisACR Fair anddue 1 begivento theNCOfor Ifhe guidance due weak remarksneednot 0 shows 0 beendorsed I C 45 All administered to the NCO will be maintainedin theurlit Let Nos and dates Z counselIgs will bementioned in theACRform m 47 Beforean adversereport is initiatedOn an NCOhe I will be in writivlg hisshortcomingsand warned 06 fairopportunityand due guidance to show He will be gjven Cll The 08icerinitiatingan adversereportwill 7 Z thereportthe dalesI which Ihe warningsl mention in on CL andthe stepstakenbyhim to helpthe waslwereadministered NCO to improve aspect7s will bestrictIykeptin Vlew c Justice andfairplay are ensuredin all cases and at all times b Action whether to placeon NCO an adverse report or not is take11onlyafieradministering suilable iJ warnlngs andgNinghim due guidance and adequate tine to show thedesiredimprovem1t c1 A periodof inimum 60 daysis provided to the Rashmi 2014.07.04 10: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document 403 4 LPAN069 of2000 171 0 a show beforehe is placedon NCO to adversereport d9 The of the NCO is keptunderclose observation 31 j The has referredto all the and Ievellcd C as underl 0 C0 a9 The subclause39 41 43 45 and 47 ofthe AnnyOrder I C5 havenot beencomplied withe b9 he was never warnedat any tiine or issuedany letterand Z the average with no promotion itselfwasillegal c9 he was not provided any timeto show the C45 beforehe was giventhe adverseremarks and QO d9 his was not keptunderclose observation 7 Z Qm reply to para No5 of thc writ petitlonreveals that it The contains a vague answer It is also wellsettlcd by llOW that where allegations are not denied then those are to be as No document worththe name hasbeen on record in order to provethat the adverseremarksfor the year 1989 were passed lll with the sub clauses39 41 43 45 and 47 ofthe ArmyOrder7 of 1995 Subclause 39 indicates that the Unit was to cominunicatethe weak pointsl adverse remarksl below average gradingin any A copy of thecommunicationdulysignedand datedbythe NCO and bythe IO or the Officer the same will be Rashmi 2014.07.04 10: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document P 1 1 404 e LePANo69 of20008M1 181 4y enclosedwith the ACR Letter No and dateunderwhich the same was communicatedwill be mentionedagainst para 17 of partII of ACR Form for and overallgrading was not to be communicated Rule 43 furtherinentlonsthat suitablc warningsl shouldbe administeredto the m NCO before weak pointsladverse remarksin his ACRe Fair and due should be givento the NCO for 0 0 If he showsdue weak reinarkS I C werenot to be endorsed In orderto avoidany doubt andto inakethethings Rule 45 has been which saysthatall Z administeredto the NCO are to be maintainedlll m theUnit Lettetnumbersanddates are to I be mentionedln theACR form Rule 47 furtherreOectsthat beforean 08 adversereportis initiatedon an NCO he lS to beinformedin writingofhis OO and warned He is to be givenfair and due 7 Z to show The officer initiating an adversereport1S to mentlon lIl the reportthe on which the waslwere administered andthestepstakenbyhim to helptheNCO to improve The aforesaid havebeen0issuedin order to avoid any frustrationin the Armed Forces and in order to provide an to theNCOs for before placing adverserept beforehim The malll purpose behindit was to improve an NCO and not to spoilhis career Nther any documentshave been placedon record nor any mention has been made in the written statement indicating if any counscling was administeredor any periodicalwarning was givenor and guidancewas given so that the appellantcould improvehlinself Rashmi 2014.07.04 10: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document e 3 405 a 1 LPeANoe69of20008Ml 191 T r9 in the absenceof such defect theACR for theyear 1989beingin violation of the aforesaidsulclauses would bc treatcdas sheer having no effect on the rightof thc The learnedSingle Judgethough madereferenceto the ArmyOrder70f 1995but erredin if therewas any inadebythe m beforeplacing adversereportupon the As such hasarisento interferewiththe 0 0 lt may furtherbe observedthat no such adversereportwas I 40 earnedbythe rightfrom 1985to 1988and thereafterfrom 1990 I till 1998 and he was in 1993 The solitaryadverse Annual Z Reportfor the year 1989beingwithout any basiscenainly deserves to be nullified I For the aforesaid reasons this appealis and the 08 of the learnedSingleJudgeis set aside The advcrse relnarks CtO against the in the Annual ConOdentialReportfor the 7 Z year1989 are nullified and he is held entitled to be consideredfor C from the date junior to him was and 111 casc of he wouldbeentitledto all benets The parties are left to beartheir own costs 6MMKUMARI AlVINDAL I JUDGE e JUDGE September 07 2010 glatl It 1 l 1 r Rashmi 2014.07.04 10: 17 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:58 I attest to the accuracy and integrity of this document