IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14199 of 2010 1. IC 38558Y COLONEL SARAT CHANDRA MISHRA SON OF LATE SRINIBAS MISHRA POSTED AT HEADQUARTERS JHARKHAND, ORISSA AND BIHAR SUB AREA, DANAPUR CANTONMENT, DANAPUR, PATNA, BIHAR, R/O DANAPUR CANTONMENT Versus 1. THE UNION OF INDIA THROUGH THE MILITARY SECRETARY, SOUTH BLOCK INTEGRATED HEADQUARTERS OF THE MINISTRY OF DEFENCE (ARMY), DHQ P.O. NEW DELHI-110011 2. THE DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI- 110011 3. THE CHIEF OF THE ARMY STAFF INTEGRATED HEADQUARTERS OF THE MINISTRY OF DEFENCE (ARMY), DHQ, P.O. NEW DELHI-110011 4. THE MILITARY SECRETARY, SOUTH BLOCK INTEGRATED HEADQUARTERS OF THE MINISTRY OF DEFENCE (ARMY), DHQ, P.O. NEW DELHI-110011 5. LT. GEN. P.K. RAMPAL, EX-COMMANDANT INDIAN MILITARY ACADEMY, DEHRADUN-248007 6. MAJ. GEN. T.P.S. BAKHSHI, EX-DEPUTY COMMANDANT INDIAN MILITARY ACADEMY, DEHRADUN-248007 ----------- For the Petitioner :M/s Sudhir Singh, Raghwanand, Ranjit Kumar, & Rabindra Kumar Tiwari, Advocates For the Union of India :M/s Raghib Ahsan, Assistant Solicitor General of India & Shiv Kumar, CGC 09. 19.11.2010 Re : I.A. No.9763 of 2010 Having heard counsel for the petitioner and the Union and having perused the contents of I.A. No.9763 of 2010, this Court asked the counsel for the petitioner as to why he did not impugn the contents of letter dated 29.1.2010 along with the writ petition itself as the writ petition was 2 filed on 26.8.2010, learned counsel for the petitioner submitted that petitioner received the copy of the letter dated 29.1.2010 from the authorities when he applied for the same under Right to Information Act under letter of the RTI Cell, ADG AE dated 10.11.2010 and earlier petitioner was not aware about the contents of the said letter. The prayer made in the interlocutory application is allowed and letter dated 29.1.2010, Annexure-13 to the interlocutory application is permitted to be challenged in the instant writ petition. 2. I.A. No. 9763 of 2010 is, accordingly, disposed of. 3. Heard learned counsel for the petitioner and Sri Raghib Ahsan, Assistant Solicitor General of India for the Respondents. 4. Petitioner along with 19 others was short-listed for promotion on the post of Brigadier vide proceeding conducted by the Selection Board held on 17-19.1.2007, the panel of officers approved for promotion to the acting rank of Brigadier (Artillery) was published in March 2007 and is contained in Annexure-2 to this application. Under in box message dated 12.7.2007, Annexure-3, petitioner was given acting rank of Brigadier directing him to join the place of 3 posting by 20.8.2007. Before the petitioner could take the acting rank of Brigadier and join the post, his confidential remark was initiated by the Initiating Officer on 13.7.2007 who assessed him above average and gave 8 points in rating scale. Such statement has been made in paragraphs 11 and 12 of the writ petition. The Reviewing Officer and Superior Reviewing Officer noted their pen picture about the petitioner on 4.8.2007 in which Drop-in-Performance was recorded. Petitioner challenged the Drop-in-Performance recorded by the Reviewing Officer and the Superior Reviewing Officer before the Chief of the Army Staff vide his non-statutory appeal, which was rejected and the order was communicated to the petitioner by the office of the Military Secretary under communication dated 24.4.2008, Annexure-11, operative portion whereof is quoted below: “ 4. The COAS examined the complaint of the officer in detail alongwith his overall profile, comments of reporting officers and other relevant documents. After consideration of all aspects of the complaint and viewing it against the redress sought, it is observed that the 4 impugned CR 09/06-07/07 is fair, objective, well corroborated, technically valid and performance based. There being no sign of any bias or subjectivity, the impugned CR merits no interference. 5. The COAS has therefore, directed that the Non Statutory complaint of the office be rejected. The officer may be informed accordingly.” 5. Against the aforesaid order of the Chief of Army Staff, petitioner filed his statutory appeal before the competent authority of the Ministry of Defence, Government of India, which was rejected and the rejection order was communicated by the Deputy Secretary under order dated 10.8.2009 which is contained in Annexure-12 to this application. Operative portion of the order passed by the competent authority of the Ministry of Defence is quoted hereinbelow: “ The statutory complaint of the officer has been examined in detail alongwith his overall profile, 5 comments of reporting officers and other relevant documents. After consideration of all aspect of the complaint and viewing it against the redress sought, it has been emerged that- (a) The impugned CR 09/06-07/07 is fair, objective, well corroborated and performance based. (b) The CR is technically valid and has been initiated under the laid down provisions. The CR is not an „Adverse Report‟ and hence provisions of para 110 and 111 of AO 45/2001/MP are not applicable.” After rejection of the statutory appeal of the petitioner, his case was again considered for promotion to the acting rank of Brigadier by the Selection Board during their meeting held on 27, 28 and 30 October, 2009. Petitioner, 6 however, was not found fit for promotion and the order was communicated to the petitioner under letter dated 29.1.2010, Annexure-13 to the interlocutory application, which was served on the petitioner under letter dated 10.11.2010 after he applied for the same under the Right to Information Act. 6. It is submitted on behalf of the petitioner that letter dated 29.1.2010, Annexure-13 was not served on him by the authorities on their own and thereby the authorities deprived the petitioner of the opportunity to challenge the same along with the writ petition. After filing of the present writ petition, petitioner requested the authorities under the Right to Information Act to furnish him information regarding consideration made by the Selection Board, whereafter letter dated 29.1.2010, Annexure-13 was served along with other letters through information furnished under letter of the RTI Cell, ADG, AE dated 10.11.2010 and having received the same he has also impugned the contents of the letter dated 29.1.2010 which is in continuation of the Drop in Performance recorded by the Reviewing Officer and Superior Reviewing Officer on 4.8.2007 and the orders dated 24.4.2008, 10.8.2009, Annexures-11 and 12 by filing I.A. No. 9763 of 2010, which was allowed under the orders 7 passed today itself permitting the petitioner to challenge the contents of the letter dated 29.1.2010 in this writ petition itself. In this connection, it is also pointed out that although the impugned orders dated 24.4.2008, 10.8.2009, Annexures- 11 and 12 to this application were served on the petitioner while he was posted at Deolali in the State of Maharastra, but soon after service of those orders on the petitioner on 13.9.2009, he moved out to join Danapur within the jurisdiction of this Court and left Deolali on 30.9.2009 reporting for duty at Danapur after availing the joining time on 27.10.2009. In the background of the aforesaid facts, it is submitted that within a short span of 17 days, it was not practically possible for the petitioner to have challenged the aforesaid two impugned orders before the Bombay High Court and he filed the present writ petition in Patna High Court on 26.8.2010. 7. Counsel for the Union of India has raised the question of maintainability of the writ petition in this court on two grounds, namely, that Drop in Performance of the petitioner vide Annexure-6 was recorded on 4.8.2007 while he was posted at Dehradun, the order dismissing the non- statutory and statutory appeal of the petitioner filed against 8 the Drop in Performance recorded on 4.8.2007 passed by the Chief of Army Staff and the competent authority of the Ministry of Defence respectively, Annexures-11 and 12 was served on the petitioner at Deolali in the State of Maharastra, as such, the writ petition filed before this Court assailing the remarks and the order rejecting the appeal is not maintainable before this Court. Petitioner should have been well advised to challenge the impugned assessment and the order rejecting the non-statutory and statutory appeal either before the High Court of Uttarakhand or Bombay. The other ground about the maintainability of the writ petition, raised by the counsel for the Union of India, is that the Army Tribunal under the provisions of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as the Act) having been established at Kolkata in November, 2009, petitioner at the first instance should have been well advised to move the Tribunal for the relief prayed for in the writ case and the present writ case be dismissed to avail the alternative remedy before the Tribunal at Kolkata. In this connection, he referred to Section 14 of the Act and submitted that service dispute of the Officers and Men of the Armed Forces is required to be first adjudicated by Tribunal and if the petitioner is not satisfied with the 9 decision of the Tribunal, he should approach this Court and in support of such submission, he relied on the judgment of the Hon’ble Supreme Court in the case of L. Chandra Kumar Vrs. The Union of India & Ors., reported in 1997(1) PLJR (S.C.) 84, paragraph 101. Perusal of the judgment rendered by the Hon’ble Supreme Court in the case of L. Chandra Kumar (Supra) would indicate that thereunder the Hon’ble Supreme Court considered the scope of Article 323A, whereunder Parliament enacted the Administrative Tribunals Act, 1985 (hereinafter referred to as “the Administrative Tribunal Act”) providing for Central Administrative Tribunal to adjudicate the service dispute of the Officers, Employees of the Government of India and others connected with the affairs of the Union. Section 14 of the Administrative Tribunals Act excluded the jurisdiction of all the courts including High Court from adjudicating the service dispute of the Central Government employees. Hon’ble Supreme Court having considered the import of the Constitutional provisions and the provisions of the Administrative Tribunal Act, concluded in paragraph 101 of the judgment that clauses 2(d), 3(d) of Articles 323A, 323B to the extent exclude the jurisdiction of the High Court under 10 Articles 226, 227 of the Constitution of India to adjudicate the service dispute of the Officers and Employees of the Central Government is unconstitutional and directed that the service dispute of the Officers and Employees of the Central Government after adjudication by the Tribunal, shall be considered by the Division Bench of the High Court. Taking a cue from the aforesaid judgment of the Hon’ble Supreme Court, Parliament in its wisdom while enacting the Armed Forces Tribunal Act providing for Armed Forces Tribunal to adjudicate the service dispute of the officers and men of the Armed Forces never excluded the High Court from adjudicating the service dispute of the Officers and Men of the Armed Forces under Article 226 of the Constitution of India, as such, in my opinion, this Court has the jurisdiction to adjudicate the service dispute of the Officers and the Men of the Armed Forces. The question, however, arises as to which of the service disputes of the Officers and Men of the Armed Forces may directly be entertained by the High Court and which of the disputes may be relegated for adjudication by the Tribunal. To my mind, order(s) impugned by the Officers and Men of the Armed Forces while raising the service dispute, which appear to be erroneous on mere 11 perusal of the records may be entertained and adjudicated directly by the High Court and if the High Court is satisfied that the error in the decision of the authorities is apparent on the face of the record, such dispute may directly be entertained and adjudicated by the High Court without relegating the Officers/ Men raising the dispute to avail the alternative remedy before the Tribunal. In case the dispute involves adjudication of disputed question of fact, the Officer/ Men raising the dispute may be relegated to avail the remedy before the Tribunal. The other objection of the counsel for the Union that petitioner should have filed the writ petition either before the High Court of Uttarakhand or Bombay, I am to state that order rejecting the statutory appeal was served on the petitioner at Deolali in Maharastra on 13.9.2009 but he left Deolali to join Danapur within the jurisdiction of this Court on 30.9.2009, in the circumstances, petitioner hardly had any time to challenge the impugned orders before the Bombay High Court. In this connection, I may also refer to the judgment of Hon’ble Supreme Court in the case of Dinesh Chandra Gahtori vrs Chief of Army Staff and another, reported in (2001) 9 SCC 525 laying down the law that Chief of Army Staff may be sued any 12 where in the country. In the present case order rejecting the non-statutory appeal of the petitioner dated 24.4.2008, Annexure-11 was passed by the Chief of Army Staff which is also impugned in the case. 8. Having held as above, now I proceed to consider the dispute raised by the petitioner in the present case. From perusal of the panel of the officers approved for promotion to the acting rank of Brigadier (Artillery) notified in March, 2007 contained in Annexure-2, it appears that the petitioner along with 19 other Colonel was empanelled for promotion to the acting rank of Brigadier in the Regiment of Artillery. Under in box message, Annexure-3, he was asked to report on 20.8.2007 for taking the acting rank of Brigadier. Before he could join in the light of the instruction contained in Annexure-3, his assessment for recording confidential Remarks was initiated by the Initiating Officer on 13.7.2007 and the Initiating Officer assessed the petitioner Above Average. Such statement is made in paragraphs 11 and 12 of the writ petition. Having recorded the assessment of the petitioner, the Initiating Officer forwarded the assessment to the Reviewing Officer, who recorded his remarks on 4.8.2007. On the same day, the Superior Reviewing Officer 13 also recorded the pen picture about the petitioner. The pen picture recorded by the Reviewing Officer and Superior Reviewing Officer was shown to the petitioner on 6.8.2007 which is evident from perusal of Annexure-6 as petitioner having seen the pen picture, put his signature over the same on 6.8.2007, which is also evident from bare perusal of Aannexure-6. 9. It is submitted on behalf of the petitioner that perusal of the pen picture recorded by the Reviewing Officer and the Superior Reviewing Officer indicates that both the authorities recorded Drop in Performance of the petitioner on the same day, i.e. 4.8.2007. In this connection, it is submitted that the Superior Reviewing Officer before approving the Drop in Performance recorded by Reviewing Officer should have counselled the petitioner in writing about his short- comings and ought to have given the petitioner 60 days time for improvement. In this connection, reference is made to the provisions of paragraph 127 of the Army Orders 45/01/MS and paragraphs 110, 111 thereof. Further, it is submitted that the Superior Reviewing Officer issued counselling letter dated 3.8.2007, Annexure-10, even before the Reviewing Officer recorded his pen picture on 4.8.2007 and counselling 14 undertaken by the Superior Reviewing Officer prior to the recording of the pen picture by the Reviewing Officer indicates that Superior Reviewing Officer and the Reviewing Officer were acting in tandem and not independent of each other. In this connection, it is also pointed out with reference to Appendix O of the Army Orders that in case of negative recommendations for promotion, the officer reported upon is required to be served with the confidential remarks before the same is forwarded to the next Reporting Officer. In the present case, it is submitted that both the Reviewing and the Superior Reviewing Officer recorded negative remarks on the same day i.e. 4.8.2007 without forwarding the remarks of the Reviewing Officer to the petitioner and the Superior Reviewing Officer undertaking counselling with further opportunity to the petitioner to improve, thereby violated Army Order, paragraphs 110, 111 and 127 read with Appendix O thereof. In this connection, with reference to clause B of Appendix O, it is submitted that the Initiating Officer initiated the assessment proceeding on 13.7.2007 and the Reviewing Officer should have recorded his remarks within 10 days of the receipt of the remarks from the Initiating Officer, but in the instant case, Reviewing Officer 15 and the Superior Reviewing Officer kept the recommendation of the Initiating Officer pending for about three weeks infracting paragraph 4 of Clause B of Appendix O of the Army Orders. 10. Aforesaid submissions were highlighted by the petitioner in his non-statutory and statutory appeal, but perusal of the order passed by the Chief of Army Staff and the competent authority of the Ministry of Defence does not indicate that such submission has been considered by the Chief of Army Staff and the competent authority of the Ministry of Defence, which is evident from perusal of the operative portion of the orders extracted above. The operative portion of the order passed by the Chief of the Army Staff and competent authority of the Ministry of Defence indicates that thereunder it has been observed that the confidential report is not adverse report and hence provisions contained in paragraphs 110 and 111 of the Army order are not applicable. 11. Mere perusal of the pen picture recorded by the Reviewing Officer and the Superior Reviewing Officer indicates that thereunder adverse / negative remarks (Drop in 16 Performance) has been recorded about the petitioner which is extracted below: “Notwithstanding the foregoing he had exhibited certain negative character traits i.e. doubtful loyalty, questionable integrity and speaking half truths.” “The Officer lacks moral courage and his loyalty to the organization is suspect.” 12. Counsel for the Union of India, with reference to the contents of paragraph 4 of the counselling letter dated 3.8.2007, Annexure-10, submitted that if it is a fact that petitioner was responsible for gross violation of the existing orders and rules on financial management, his integrity, truthfulness and loyalty to the organization and superior officers, in the opinion of the Superior Reviewing Officer is doubtful and in appreciation of such fact the Reviewing, Superior Reviewing Officer under their pen picture dated 4.8.2007, recorded Drop in Performance by the petitioner, he 17 cannot be granted promotion to the acting rank of Brigadier, as promotion to the acting rank of Brigadier is subject to the continued fitness of the officer. After recording of Drop in Performance, fitness of the petitioner for holding the acting rank of Brigadier became a matter of concern and in appreciation of such Drop in Performance recorded by the Reviewing, Superior Reviewing Officer, petitioner is unfit for holding the acting rank of Brigadier. Reliance in this connection is placed by the learned counsel for the petitioner on the judgment of the Hon’ble Supreme Court in the case of Union of India and others Vrs. Lt. Gen. Rajendra Singh Kadyan and another, reported in (2000) 6 Supreme Court Cases 698 and it is submitted that post of Brigadier is a selection post and is filled up by promotion on the basis of relative merit assessed by the designated selection Board. It is also pointed out that the officer included in the panel of officers approved for promotion to the acting rank of Brigadier must continue to maintain the same standard of fitness on the basis of which he was included in the panel. In the instant case, after recording of Drop in Performance by the petitioner, he is not fit for being promoted to the acting rank of Brigadier. 18 13. Having considered the aforesaid submissions, it appears that in March, 2007 petitioner was short-listed for promotion to the acting rank of Brigadier (Artillery) along with 19 other Colonel. He was asked to report on 20.8.2007 for being promoted to the acting rank of Brigadier. Before he could join for being decorated with the acting rank of Brigadier, his assessment was initiated by the Initiating Officer on 13.7.2007 for recording the confidential remarks. The Initiating Officer assessed the petitioner Above Average and statement to that effect has been made by the petitioner in paragraphs 11 and 12 of the writ petition. Having assessed the petitioner, the Initiating Officer forwarded the assessment to the Reviewing Officer, who recorded his assessment on 4.8.2007 and forwarded the assessment to the Superior Reviewing Officer, who also recorded his assessment on the same day i.e. 4.8.2007 with reference to the counselling letter dated 3.8.2007 and made available his assessment for perusal by the petitioner on the same day i.e. 4.8.2007. The assessment made by the Reviewing Officer was shown to the petitioner on 6.8.2007. In the light of the provisions contained in paragraphs 110, 111, 127 and Appendix O of the Army Orders, the adverse assessment (Drop in Performance) 19 recorded by the Second/ Higher Level Reporting Officer i.e. Reviewing Officer is required to be communicated to the Ratee before the Superior Reviewing Officer considers the assessment made by the Reviewing Officer, the Ratee is also required to be counselled with opportunity to improve. In the instant case, petitioner was not communicated the assessment of the Reviewing Officer dated 4.8.2007 before the same was considered by the Superior Reviewing Officer on 4.8.2007 itself in the light of the contents of the counselling letter dated 3.8.2007, as the assessment made by the Reviewing Officer on 4.8.2007 was shown to the petitioner on 6.8.2007. Assessment made by the Reviewing Officer dated 4.8.2007 having not been shown to the petitioner, the counselling undertaken by the Superior Reviewing Officer with reference to the letter dated 3.8.2007 is wholly misconceived and without any opportunity to the ratee to improve, as is required under clause (d) of paragraph 111 of the Army Orders. 14. In view of the discussions above, there is no difficulty in concluding that the Reviewing, Superior Reviewing Officer have recorded Drop in Performance of the petitioner under their assessment dated 4.8.2007, but while 20 recording such Drop in Performance, the Reviewing, Superior Reviewing Officer have not observed the procedure, which is required to be observed by them before recording the Drop in Performance by the ratee . Petitioner raised the aforesaid submissions in his non-statutory and statutory appeal filed against the assessment (Drop in Performance) recorded by the Reviewing, Superior Reviewing Officer. The Chief of Army Staff and the competent authority of Ministry of Defence dismissed the non-statutory and statutory appeal under orders dated 24.4.2008 and 10.8.2009, Annexures-11 and 12 to this application without appreciating the submission made by the petitioner that before recording the Drop in Performance by the petitioner under assessment dated 4.8.2007, the Reviewing, Superior Reviewing Officer was obliged to have observed the procedure provided in paragraphs 110, 111, 127 and Appendix O of the Army Orders inasmuch as the assessment recorded by the Reviewing Officer was required to have been communicated to the petitioner and after he was counselled and given opportunity to improve, the Superior Reviewing Officer should have recorded his assessment. 15. For the failure on the part of the Chief of 21 Army Staff and the competent authority of the Ministry of Defence to have appreciated the aforesaid aspect of the matter, orders passed by them dated 24.4.2008 and 10.8.2009, Annexures-11 and 12 to this application are quashed and it is observed that the Drop in Performance recorded against the petitioner by the Reviewing, Superior Reviewing Officer under assessment dated 4.8.2007 being in teeth of the afore-discussed provisions of the Army Orders will have no bearing on his future prospect and the matter is remitted back to the competent authority of the Ministry of Defence to reconsider the same afresh in the light of discussions made above. 16. In the result, the writ petition is allowed. AFR/ Arjun/ Rajesh/ (V.N. Sinha, J.)