IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 4765 of 1998 Between: Capt.Satish Chandra maini S/o.Late Ramlal Maini R/o.Hyderabad ..... PETITIONER AND 1 Union Of India Rep by its Secretary Ministry of Defence , South Block New Delhi 2 Chief of the Naval Staff Naval Head Quarters , New Delhi 3 Director General Naval Armamant Inspection , Naval Head Quarters New Delhi 4 Addl.Director, Misile Sytems Quality Assurance Agency Kanchan Bagh PO Hyderabad-058 .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to To issue a writ of Mandamus or any other appropriate writ or order or direction in the nature of a writ declaring the action of the respondents in particular that of a writ declaring the action of the respondent in particular that of 2nd respondent in not constituting the petitionewr as Commodore wef 1-7-97 and inserting adverse remarks in the ACR for the period 1-3-95 to 29-2-96 by the Present incumbent Admiral Vishnu Bhagwat on 21-5-97 as illegal, arbitrary , unjust, without Jurisdiction , in Violation of the Principles of natural Justice and in contravention of relevant rules, regulatins and instructions and to direct the respondents to constitute the petitioner as Commodore wef 1-7-97 by setting aside/expunging the adverse remarks inserted by the present incumbent 2nd respondent on 21-5-97 in Th ACR for the period 1-3-95 to 29-2-96 and by calling for the records and to pass such other order ort orders Counsel for the Petitioner:MR.S.KRISHNA Counsel for the Respondents: Sri A.Rajasekhara Reddy, Asst. Solicitor General The Court made the following : THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.4765 of 1998 ORDER: The petitioner seeks, a mandamus from this Court to declare the action of the respondents, particularly the Chief of Naval Staff, in not constituting the petitioner as a Commodore with effect from 1.7.1997 and inserting the adverse remarks in his ACR for the period 1.3.1995 to 29.2.1996 by proceedings dated 21.5.1997 as arbitrary and illegal. The petitioner was denied being constituted as a Commodore consequent to the entry made in the ACR on 21.5.1997 which reads as under: “This officer failed to discharge his duties resulting in not only loss to the State but could have endangered life and property n board ships, if the defective primers of 4.5” gun ammunition, cleared by him, had been allowed to go through. The officer is henceforth NEVER TO BE GIVEN INDEPENDEN CHARGE, NOR CONSTITUTED COMMODORE NOR PROMOTED further” Sri S.Krishna, Learned Counsel for the petitioner, would place before this Court the order passed in W.P.No32787 of 1998 dated 27.6.2007 wherein, for the very same incident involving loss of property on account of testing and accepting defective primers of 4.5” gun ammunition, the action of the respondent in seeking to recover, the alleged loss caused on account of the petitioner’s negligence, from his salary was set aside by this Court holding that such a proposal was not preceded by giving any notice and opportunity to the petitioner. This Court, while setting aside the order of recovery, left it open to the respondents to initiate fresh action after putting the petitioner on notice and giving him an opportunity of representing his case. Learned Counsel would submit that as a result of the order in W.P.No.32787 of 1998 dated 27.6.2007, and as Admiral Vishnu Bhagwath who made the adverse entry on 21.5.1997 was not the senior reviewing officer of the petitioner’s ACR for the year 1995-96, the adverse remark is liable to be expunged. Sri A.Rajasekhara Reddy, Learned Assistant Solicitor General, appearing on behalf of the respondents, would contend, placing reliance on the extant policy in this regard, that even imposition of the punishment of reprimand would justify denying a Captain in the Navy the privilege of constitution of the rank of a Commodore. Learned Assistant Solicitor General would place reliance on the judgment of this Court in Lt.Col.K.D.Rana v. Chief of Army Staff, Army Headquarters, DHQPO, New Delhi[1] in this regard to contend that since irrelevant aspects have been eschewed from consideration, and only relevant aspects have been taken into consideration, this Court would not sit in appeal over the decision taken by the competent authority. Sri S.Krishna, Learned Counsel for the petitioner, on the other hand, would contend that the punishment of reprimand was imposed on the petitioner while he was holding the substantive post of Commander and was an acting Captain in the Navy. Learned counsel would submit that, subsequent to imposition of the punishment of reprimand, the petitioner has been substantively promoted from the post of Commander to that of Captain and as such the order of reprimand would not bar his being constituted as a Commodore in the Navy. It is wholly unnecessary for this Court to examine these rival contentions since the only ground, on which the petitioner has been denied constitution as a Commodore, is on account of the incident which had earlier led to the proposal to recover a portion of the loss and the consequent adverse entry in the ACRs, which, as noted hereinabove, has been set aside by this Court in W.P.No.32787 of 1998 dated 27.6.2007. As the adverse remark in the service records of the petitioner, for the period from 1.3.1995 to 29.2.1996, relates to the very same incident in which recovery proceedings were initiated, which in turn has been quashed by this Court on the ground of violation of principles of natural justice, the adverse remark must necessarily be expunged for the very same reason. It is, therefore, unnecessary for this Court to go into the question whether Admiral Vishnu Bhagwat, who was the senior reviewing officer of the petitioner on 21.5.1997 could have passed the adverse remark for the period 1.3.1995 to 29.2.1996 when he was not the petitioner’s senior reviewing officer. Since the petitioner could not have been denied constitution of commodore, on the basis of the ACR relating to this incident, it is but appropriate that the 2nd respondent be directed to reconsider the case of the petitioner for constitution as a Commodore without reference to the aforesaid adverse entry in the ACR and in accordance with the extant guidelines in this regard. Since the petitioner has since retired from service it is appropriate that the entire exercise in this regard be completed within a period of four months from the date of receipt of a copy of this order. The writ petition is, accordingly, disposed of. No order as to costs. ___________ 25-2-2008 asp [1] 2005(1)ALD 468