WP(C) No.3831-07 Page 1 of 35 WP(C)No. 3904-07 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Reserve : 27.03.2008 Date of Decision : 02.06.2008 + WP(C) No.3831/2007 Major General Rakesh Kumar Loomba .... Petitioner Versus 1. Union of India, Through Secretary 2. Chief of the Army Staff 3. Military Secretary ....Respondents Advocates who appeared in this case : For the petitioner : Mr. Valmiki Mehta, Sr. Advocate with Ms. Jyoti Singh, Mr. Ankur Chhibber and Mr. Aditya Chhiber, Advocates For the respondents : Mr. Rajeeve Mehra with Mr. Arvind Sharma, Mr. Priyanka, Advocates and Brig. T. Parsad, Dy. JAG And + WP(C) No.3904/2007 Major General Rakesh Kumar Loomba .... Petitioner Versus 1. Union of India, Through Secretary 2. Chief of the Army Staff 3. Lieutenant General P K Singh 4. Adjutant General 5. Lieutenant General N S Brar ....Respondents WP(C) No.3831-07 Page 2 of 35 WP(C)No. 3904-07 Advocates who appeared in this case : For the petitioner : Mr. Valmiki Mehta, Sr. Advocate with Ms. Jyoti Singh, Mr. Ankur Chhibber and Mr. Aditya Chhiber, Advocates For the respondents : Mr. Rajeeve Mehra with Mr. Arvind Sharma, Mr. Priyanka, Advocates and Brig. T. Parsad, Dy. JAG CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE J.M. MALIK 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? J.M.MALIK, J. * 1. This judgment shall decide two writ petitions detailed above, which are between the same parties and deal with identical facts and similar questions of law. The key controversy which revolves around the present writ petitions is about the rights of a delinquent in context of Army Rule 180. Petitioner Major General Rakesh Kumar Loomba was awarded a recordable censure on 07.04.2007. A court of inquiry(hereinafter referred as COI) was convened by Head Quarter South dated 6th December, 2006 to investigate the circumstances “under which a swimming pool measuring approximately 25 metre X 13 metre with average WP(C) No.3831-07 Page 3 of 35 WP(C)No. 3904-07 depth of 1.8 metre was constructed at Hisar in the garb of providing Static Water Tank (SWT) by irregular utilization of funds for the purpose other than the sanctioned works.” The COI was also required to enquire into the source of funds for construction of the said swimming pool, and whether or not sanction of competent authority was obtained and financial irregularities, if any, committed. Consequent upon that the petitioner was not promoted. Thereafter, two above mentioned writ petitions were filed with the prayers to quash the recordable censure award passed by the respondents along with other connected proceeding and qua second writ petition the petitioner be promoted to the rank of Lieutenant General on the basis and foundation of the selection made by the competent authority with all consequential benefits. 2. Adumbrated in brief the facts of these writs are these. The petitioner was commissioned in the Armoured Corps on 14.06.1970. In the year 1983, the petitioner attended Defence Services Staff College, Wellington and obtained degree of M Sc (Defence Studies). He was posted as a Brigade Major of an Infantry Brigade on The Line of Control, deployed opposite Pakistan during January 1984 to February 1986 on promotion to WP(C) No.3831-07 Page 4 of 35 WP(C)No. 3904-07 the rank of Colonel. He was posted as Colonel Military Secretary of a Corps during the period August 1988 to June 1990 and commanded an Armoured Regiment from December 1990 to June 1993. Thereafter he was selected for the Higher Command Course at College of Combat, Mhow and obtained the qualification of M.Phil. from Devi Ahilya Vishwa Vidyalaya, Indore during July 1993 to April 1994. He was then posted as Colonel General Staff of an Armoured Division in June 1994 to August 1996. He became Colonel Instructor at School of Armoured Warfare, Armoured Corps Centre and School, Ahmednagar in September 1996 to December 1997. The petitioner was awarded General Officer Commanding-in-Chief Central Command, Commendation on 26.01.1997. The petitioner commanded an independent Armoured Brigade, including during 'Operation Vijay' beween the period January 1998 to 2001. The petitioner was again awarded General Officer Commanding-in-Chief Western Command, Commendation on 26.01.2001. He also attended the prestigious National Defence College Course, New Delhi during January 2001 to November 2001. He was Brigadier General Staff of a Corps, including the period of 'Operation Parakram' during December 2001 to January 2004. The petitioner assumed the WP(C) No.3831-07 Page 5 of 35 WP(C)No. 3904-07 command of 33 Armoured Division on 16.02.2004 and was awarded General Officer Commanding-in-Chief Southern Command, Commendation on 17.02.2004. 3. However, the problem started when the petitioner accorded Administrative Approval for construction of a Static Water Tank(hereinafter referred as SWT) for Hisar Military Station while working as Major General. The petitioner vide letter dated 29.02.2004 gave the approval on the following terms : “1. Under the provisions of Government of India Ministry of Defence letter No.95533/POL/CSS/E2/WPC /687/DO-II/D(W-1) dated 17 January 86, as amended vide Government of India, Ministry of Defence letter No 3(7)/93/D(Works) dated 26 August 98, General Officer Commanding 33 Armoured Division accepts the necessity and accords administrative approval for construction of a static water tank of 110 KL capacity and a water pump for fire fighting in Hisar Military Station amounting Rs.9,81,000/-(Rupees nine lac eighty one thousand only) as per approximate estimate Part I and II attached. 2. The works cater for long term requirement in terms of Para 16A(b), Defence Works Procedure 1986 and will be carried out by MES or under arrangements by them. 3. The expenditure involved will be debitable to Major Head 2076 Defence Service (Army) Minor Head III, Sub Head „B‟ Low Budgeted Work. 4. X X X X” WP(C) No.3831-07 Page 6 of 35 WP(C)No. 3904-07 4. Sanction of General Officer Commanding 10 Corps including technical approval of Chief Engineer Bhatinda Zone was obtained and there were no observations regarding dimensions, costing, technical specifications or any other related issues. The operational role of the Armoured Division was changed in February 2004, necessitating establishment of encounter crossings across canal obstacales, including in the forward tier of enemy defences. As such the petitioner directed the Brigade Commanders and Commanding Officers to carry out extensive training in negotiating water obstacle systems, specially swimming across canals in full battle loads, with improvised expedients and for this purpose they were to ensure that all troops were proficient in watermanship to rule out any loss of life due to drowning. The petitioner‟s Brigade Commanders and Commanding Officers recommended dual usage of the SWT to include watermanship training. The sanction of the Lieutenant General T.S. Pathak, AVSM, YSM, the then General Officer Commanding 1 Corps was also obtained. Subsequently, other facilities were added as and when projected for its dual utilistaion. In order to enable dual use of the SWT for WP(C) No.3831-07 Page 7 of 35 WP(C)No. 3904-07 watermanship training, the requirement of a water re-cycling and purification plant was projected. 5. The above said proposal was sanctioned vide order dated 09.03.2004 by Mr. J.S. Kohli, Brigadier Administration for GOC. The relevant portion runs as follows : “3. Sanction of GOC 10 Corps is hereby conveyed for execution of the following work under Major head 4076 Capital Outlay on Defence Services Sub Head 01, Major Head 202 construction works (2) New Expenditure during financial year 2003-04:- Ser No. Stn Job No Name of Wk Ceiling (Lakhs) Funds (Lakhs) 81 Sub Area (a) Hisar 33AD/LBW /W-3/ 2003-04 Construction of a static water tank of 110 KL capacity and water pump for fire fighting in Hisar Military Station 9.81 9.81 6. Again petitioner had forwarded “statement of case for obtaining sanction of competent financial authority for incurring expenditure of Rs. 3 lakhs on training cum welfare facility” vide letter dated 17.04.2004. In para nos. 1 & 3, he gave its justification. The same are reproduced as follows : WP(C) No.3831-07 Page 8 of 35 WP(C)No. 3904-07 “1. Presently Hisar Military Station does not have facility for training of troops in crossing of canal/water obstacles. A water storage tank of 1,10,000 Gallon capacity (Size 28 meters by 13 meters) is under construction for fire fighting purpose. By installing a water filtration plant, it can be used not only for storage of water for fire fighting but also for swimming by troops and families of all ranks in the station. An expenditure of Rs.3,00,000/-(rupees three lacs only) is likely to be incurred for installation of the filtration plant. 2. X X X X 3. Hisar Military Station accommodates troops and families of 33 Armoured Division. Being an armed division, troops of the fmn have to be trained for offensive operations in developed and semi developed terrain involving crossing of water obstacles. Facility for training of troops in swimming presently does not exist in the station. Construction of a full fledged swimming pool in the station is unlikely to fructify in the near future. A water storage tank of 1.1 lakh Gallon capacity is already under construction for storing of water for fire fighting purpose. Installation of a water filtration plant at the tank would enable use of the tank for dual purpose i.e. for storage of water for fire fighting as well as for training of troops in swimming and crossing water obstacles. The tank would also be used by families of all ranks in station for swimming as a welfare measure.” 7. The said proposal was sanctioned vide order dated 27.04.2004 which runs with the caption : “Sanction of the GOC 1 Corps to incur an expenditure of Rs.3,00,000.00 (Rupees three lakhs only) out of GOC fund HQ 33 Armoured Division for installation of water filtration plant. It is noteworthy that sanction was not given by 10 corps. WP(C) No.3831-07 Page 9 of 35 WP(C)No. 3904-07 8. The petitioner commanded 33 Armoured Division from 16.02.2004 to 27.05.2005 and was thereafter posted as Commander, Higher Command Wing. Thereafter, 19 months later a COI was convened by respondent no. 3 on 06.12.2006 and finalized on 31.01.2007. Thereafter, the show cause notice dated 06.02.2007 was served to the petitioner. Its relevant extract is produced as follows : “1. A court of inquiry was convened by this HQ vide Convening Order No. 55933/C of I/Hissar/Q3W dated 06 Dec 2006, to investigate the circumstances under which a swimming pool measuring approximately 25 mtr x 13 mtr with an average depth of 1.8 mtr was constructed at Hissar Military Station in the garb of providing Static Water Tank (SWT) by irregular utilization of funds for the purpose other than the sanctioned works. The court was also required to enquire into the source of funds for construction of the said swimming pool and whether or not sanction of competent authority was obtained and financial irregularities, if any committed. 2. On perusal of the court of inquiry proceedings, it is revealed that Major Work Projects (MWP) for swimming pool was projected by HQ 33 Armd Div as part of their projections for MWPs in the years 2000- 2001 and 2001-2002, however this was not listed in the approved list as issued by QMG Branch vide their letters dated 13 April 2000(Annx I). This work was again projected by HQ 33 Armd Div to HQ 10 Corps for the year 2005-2006 but the same was not included in the MWP fwd by HQ 10 Corps to HQ Western Command. Thereafter, a Board of Officers was convened by HQ 33 Army Div vide Convening Order No. 4204/13/MW/Q3W(PC-9) dated 27 Feb 04 to WP(C) No.3831-07 Page 10 of 35 WP(C)No. 3904-07 examine the requirement for construction of Static Water Tank of 110 KL capacity and a water pump for fire fighting at Hissar Military Station. The board of officers visited the site on 27 Feb 04 and recommended the following :- (a) A Static Water Tank of size 25 mtr x 13 mtr with average depth approx 1.8 mtr i.e 110 KL capacity along with water pump and necessary connection should be provided at Hissar Military Station. (b) The location of Static Water Tank should be in close vicinity of Centralized Ammunition Dump in the Station. (c) Since the work is of important nature and authorized in the scale of accommodation, therefore, the same should be sanctioned on top priority. Consequent thereof, you as GOC 33 Armd Div had vide orders dated 29 Feb 2004 accorded administrative approval for construction of a Static Water Tank of 110 KL (amended to 1.10 lac gallons) capacity and a water pump for fire figting in Hissar thereof. The said work was executed through the MES and on ground a swimming Pool was constructed at distance of approx 2.5 Km from the Central Ammunition Dump, thereby contravening the terms of administrative approval and therein willfully Swimming Pool at Hissar. For the construction of the said swimming pool, expenditure was incurred out of Public Fund, Regimental Fund and Environmental Fund as follows : (a) Public Fund - Rs. 16,43,700/- (b) GOC Fund - Rs. 7,72,156/- (c) Environment Fund - Rs. 1,05,000/- 3. The said court of inquiry was placed before the GOC – in – C this HQ, who has observed the following lapses on your part : WP(C) No.3831-07 Page 11 of 35 WP(C)No. 3904-07 (a) That you as GOC 33 Armd Div had failed to carry out the expenditure of Public Funds for the purpose for which they were sanctioned in violation of the duty cast upon you in terms of Para 20 of the Financial Regulations, Parts I, 1983. (b) That you improperly sanctioned expenditure out of GOC Fund and Enviornmental Fund, details as mentioned in Para 2 (b) and (c) above. 4. It appears to the GOC-in-C that his censure in appropriate form is called for, or the above lapses on your part. 5, 6 & 7 x x x x” 9. The petitioner submitted his reply to the above-said show cause notice vide reply dated 15th March, 2007. Thereafter, the petitioner received a censure order by respondent No.3 dated 7th Apri, 2007. The relevant extract reads : “2. Having considered the reply submitted by the General Officer, I have come to the conclusion that the same is devoid of merit and lacks substance. He has committed the following lapses:- (a) He as GOC 33 Armd Div, had accorded Administrative Approval for the construction of a Static Water Tank of 110 KL capacity alongwith a water pump. The manner in which the Static Water Tank was constructed without any water pump, at a distance of approx 2.5 KM from the Central Ammunition Dump had thus defeated the purpose for which Administrative Approval had been accorded. He, being the controlling officer of the Public funds. Deviated the use of said funds from the purpose for which they were provided for. He thus violated Para 20 of the Financial Regulations, Part – I, 1983. WP(C) No.3831-07 Page 12 of 35 WP(C)No. 3904-07 (b) As GOC 33 Armd Div, he improperly accorded sanction of expenditure out of GOC‟s Fund for creation of ancillaries for the said swimming pool, contrary to the instructions contained in Army Order 9/2001/PS. 3. For the said lapses, I direct my „Severe Displeasure (Recordable)’ be conveyed to IC- 24283L Maj Gen R.K. Loomba of HC Wing, Army War College, Mhow.” 10. The Special Selection Board was held at Army Headquarters comprising of Chief of Army Staff, Vice Chief of Army Staff and all Army Commanders for consideration of officers of the rank of Major General for promotion to the rank of Lieutenant General on 30.09.2005. The petitioner was approved for the acting rank of Lieutenant General, General Cadre in 'Command and Staff' stream by the Government on 05.04.2006. 11. The petitioner was placed at serial 13. However, Major General D S Bartwal, VSM, who was placed at serial 15 was promoted to the rank of Lieutenant General. Again Lieutenant General (then Major General) BS Jaswal, AVSM, VSM, who was placed at serial 14, was also promoted. As on 1st January, 2007 there was no ban imposed on the petitioner for promotion to the rank of Lieutenant General. Since there was a clear vacancy available in “command and staff” stream, the petitioner‟s performance continuing to be satisfactory and he being in WP(C) No.3831-07 Page 13 of 35 WP(C)No. 3904-07 medical category SHAPE-1, the petitioner should have been promoted before officers junior to the petitioner. 12. The Court of Inquiry examined few witnesses at the petitioner‟s back, took a number of documents on record without the same being produced in evidence and committed other illegalities. Colonel D.V.S. Rana, Colonel Q (Works), was examined on 26th December, 2006 in the absence of the petitioner and all documents were taken on record during petitioner‟s absence. No opportunity was granted to the petitioner to cross-examine the said witness. HQ 10 Corps letter dated 9th March, 2004 states, “sanction of GOC 10 Corps is hereby conveyed for execution of the following works under Major Head 4076 capital outlay on Defence Services Sub Head 01, Major Head 202 Construction Works (2), new expenditure during FY 2003-2004”. The said document was not intentionally produced by Colonel DVS Rana which if produced would have exonerated the petitioner completely. The report of the “Comptroller of Auditor General of India, Union of Government, Defence Services (Army and Ordnance Factories) for the year ending March 2006” should have been processed by HQ Western Command and in case of any anomaly, the COI should have been WP(C) No.3831-07 Page 14 of 35 WP(C)No. 3904-07 ordered by GOC-in-C Western Command. There is jurisdictional error in convening of the COI. 13. The Auditor had incorrectly clubbed the works of different nature, sanctioned by difference CFAs, in different time frames and at different sites. The petitioner had only sanctioned a LBW costing Rs. 9.81 lacs which was in his financial powers and for which sanctions had been accorded but has now been blamed for misuse of delegated powers of sanctioning authority amounting to Rs. 23.38 lakhs as per the censure order, whereas in para 2(a) of the show cause notice the petitioner was found blameworthy for incurring expenditure out of public fund amounting to Rs.16,43,400/- even though Administrative approval by petitioner is meaningless till sanctioned by the higher authorities. 14. The respondents have contested both these writ petitions. The main objection raised by the respondents is that the work in question was not accomplished as per requirements and the petitioner transgressed the limits. The alleged duality of purpose of construction was raised at late stage. The same was increased from 110 KL to 1.10 Lakh Gallons. This stage was sought by communication dated 14.03.2004. The relevant portion of the letter is reproduced as follows : WP(C) No.3831-07 Page 15 of 35 WP(C)No. 3904-07 “(a) Capacity erroneously mentioned as 110 KL may please be amended to 1.10 LG (size remaining the same), at following places : (I) Adm Approval Para 1, line 5. (II) BOO, Para 3(a) line 2. (III) S of C, Para 4. (IV) S of C, Para 6, line 9. (V) Scrutiny certificate of GE, line 2. (VI) AE Part I, Name of wk. (VII) AE Part II – Name of wk and coln No. 2(Description. (b) Authority in AE Pt II may please be corrected from 12 (a to f), which are reproduced as follows. Ser. No. Description of Items Floor Area (SM)/ Scale Special Facilities Planning Notes 12. Static Water Tanks Capacity (a) Ammunition Depots 225 KL There should be suitable arrangements for replenishing the static water tanks expeditiously. Irrespective of its location and distance from source of water supply it should not take more than 18 hrs to completely refill the tank. Distance from the area under protection should be as under – (a) 100M to 200M (b) 100M to 200M (c) 100 M to 200M (d) 100M to 150 M (e) 100M to 200M (f) 100M to 200M (b) Explosive Magazines, Ammunition and Explosive Storage Areas 225 KL (c) POL Depots holding more than 2250 KL of POL 225 KL (d) Installations holding more than 2750 Cubic Metres of timber 225 KL (e) Bomb Dumps 110 KL (f) Explosive Process Area 110 KL WP(C) No.3831-07 Page 16 of 35 WP(C)No. 3904-07 15. On 14.05.2004 tenders were invited. On 11.12.2004 works stand completed. The photographs were attached with the counter affidavit which clearly go to show that : “(i) in place of a Static Water Tank, a Swimming Pool is constructed; (ii) in place of Class Rooms, Changing Rooms are constructed; (iii) the entire area is bounded by a Wall; (iv) obviously, the same would be inaccessible for vehicles necessary to be deployed at the time of a Fire at the Depot or elsewhere; (v) besides the main Swimming Pool, a Baby Pool / Child Pool is also constructed as well as a Jacuzzi; (vi) no Water Pump installed; (vii) no necessary Pipe Lines for the purposes of fire fighting installed; (viii) the Swimming Pool, admittedly, exists at a distance of about 2.5 kilometers from the Ammunition Depot.” 16. The petitioner contends that he approached 1 Corps for release of funds and same were sanctioned for Filtration Pump. On 09.04.2004, 1 Corps was approached for expenditure of Rs.3 Lakhs. Whenever public funds are utilized, the approval is required from 10 Corps. It is explained that for use of Regimental Funds, administrative approval was required from 1 Corps. Thus, WP(C) No.3831-07 Page 17 of 35 WP(C)No. 3904-07 the approvals of the Works Branch and Administrative Branch are different. At any cost, 1 Corps confirmed that it did not accord any sanction for dual use. 17. Vide letter dated 27.04.2006, the Director of Audit, Defence Services, Western Command, conveyed and enclosed the draft photographs for the report of CAG for the year ending March, 2006 relating to the regular construction of works etc. Ministry of Defence made request for information, documents and comments. The commends were forwarded but were found not satisfactory by Ministry of Defence. A detailed inquiry was ordered by the Ministry of Defence. Pursuant to the directions Brigadier Manik Sabharwal from 1 Corps was appointed for investigation. Brigadier Manik is an Engineering Officer and a Commander of an Engineering Brigade. On 24.11.2006 recommendations of General Officer Commanding 1 Corps on the One Man Inquiry were received. On 06.12.2006 court of inquiry was convened. Lt. General N.S. Brar was appointed as the Presiding Officer of the Court of Inquiry. He was not posted as Corps Commander at that time. He took over as Corps Commander on 01.04.2006. It is explained that GOC 1 Corps WP(C) No.3831-07 Page 18 of 35 WP(C)No. 3904-07 would have been ineligible to be appointed as Presiding Officer, since he had given recommendations for the One Man Inquiry. 18. Entire proceedings including statements of witnesses were placed on the record. The court itself decided to invoke AR 180 as statement of witness no. 6 was likely to affect the reputation of Major General R.K. Loomba, the petitioner, Brigadier R.C. Chadha, Colonel B.S. Badwal, Colonel M.K. Bindal. Major General R.K. Loomba, the petitioner himself cross-examined witness no. 6 in exercise of his rights in terms of AR 180. Colonel M.K. Bindal and Colonel B.S. Badwal cross examined witness no. 6 in exercise of their rights in terms of Army Rule 180. Major General R.K. Loomba also cross examined witness no. 8 Colonel B.S. Badwal, witness no. 9 Brigadier R.C. Chadha in exercise of his rights in terms of AR 180. Major General R.K. Loomba cross examined witness no. 3 in exercise of his rights in terms of Army Rule 180. 19. We have heard the counsel for the parties at considerable length. The principal argument urged by the learned counsel for the respondents has two prongs. Firstly, the AR 180 was not violated and secondly that an employee of a State is not entitled to a promotion to a higher post as a matter of right. The learned counsel for the respondent had placed reliance