IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11352 of 2007 Ram Prawesh Singh, son of late Dasai Singh, Ex. No. 13947061 – Y.Hav./A.A. resident of Village Sasana, P.O. Dangari, P.S. Kudra, District Kaimur at Bhabua. --------- Petitioner Versus 1. The Union of India through the Secretary, Ministry of Defence, South Block, New Delhi. 2. Chief of the Army Staff, South Block, New Delhi. 3. General Officer, Commanding-in-Chief, Central Command, Lucknow. 4. Major, Army Medical Corpos Records, Lucknow-226002. 5. Commandant, A.M.C. Centre & School, Lucknow-226002. ---------- Respondents ----------- 3 25.4.2011 Heard Mr. Bishwnath Chaudhry, learned counsel for the petitioner and counsel for the Union of India. Counsel for the petitioner, while pressing for the following reliefs:- “1(a) That this is an application for the issuance of an appropriate, writ, order or direction to quash the order No. 170602/Gen/A2(B) (PC) dated 9th April 2007 of the GOC-in- Cr. Misc. No. Central Command, Lucknow communicated through letter No. 1723/SC/RPS/D.D. dated 20.4.2007 of the Head Quarters, A.M.C. Centre and school, PIN- 900150 C/o 56 A.P.O. (Annexure-11) whereby the non statutory complaint of the petitioner against his supersession for promotion to the rank of N. Subedar (Amb. Asstt) has been rejected. b. To direct the respondents to give promotion to the petitioner to the rank of Ns. Subedar w.e.f. 1.4.04 2 with all consequential benefits.” would concentrate on the aspect that if under the Army Instruction, the manner of consideration for promotion from the post of Hawaldar to Nayak Subedar has been laid down, the same has to be followed strictly and in this context, it was highlighted that the petitioner, despite having a good service record, was superseded and not promoted to the post of Nayak Subedar. In this context, counsel for the petitioner would submit that even when the relevant rules for promotion requires of having three out of last five reports in the ACR, grading the person concerned as ‘above average’ and rest two as ‘high average’, the petitioner, despite having the same, was not promoted. To that extent, counsel for the petitioner would rely on paragraph no.18 of the writ application, which reads as follows:- “18. That the details of the ACR grading of the petitioner for the years 1999 to 2004 are as follows:- Year ACR Grading by I.O. (R.O.) (Recommen- dation for P. ACR by Unit Rank 1999 Above A(4) H.A.(3) R. 316Fd. Amb. Hav. 2000 A.A.(4) A.A.(4) R. 1TN.Md. Unit NCC Hav. 2001 H.A.(3) H.A.(3) R. 1TN. Md.Unit Hav. 3 2002 H.A.(6) H.A.(6) R. 1 TN ” Hav. 2003 A.A.(8) A.A.(8) R. 1 TN Hav. 2004 H.A.(5) H.A.(5) R. MT Hav.” In the opinion of this Court, the petitioner reels under some misconception as with regard to the his entry and grading in the ACR, an aspect which has been clarified by the respondents in paragraph no.19 of the counter affidavit, which reads as follows:- “19. That with regard to the statement made in paragraph no.20(iii)(b) under reply it is most humbly stated that the petitioner had earned 2 above average and 3 higher average ACRs from year 1999 to 2003 and not the 3 above average and 2 High Average as stated by the petitioner in C.W.J.C. The year wise details of Annual confidential reports are as under:- Year ACR grading by IO RO ACR Grading 1999 Above Average (4)’R’ High Average (3)’R’ High Average 2000 Above Average (4)’R’ Above Average (4)’R’ above Average 2001 High Average (3)’R’ High Average (3)’R’ High Average 2002 High Average (6)’R’ High Average (6)’R’ High Average 2003 Above Average (8)’R’ Above Average (8)’R’ Above Average Hence the averment made by the petitioner is incorrect and misleading.” It has to be noted that there is no denial to this paragraph no.19 of the counter affidavit and, therefore, whatever has been stated therein as with regard to the early grading of the petitioner and earning his 4 above average/higher average, has to be accepted to be correct. From the table shown in the counter affidavit, it is also clear that the petitioner had only been given grading of ‘above average’ in two years and for the rest of the year it was ‘high average’. The requirements of the rule, however, for such promotion, reads as follows:- “I. Only last five reports will be considered, out of which three reports must be in the rank of Hav and in case of shortfall rest may be in the rank of NK. II. At least three out of last five reports should be above average with minimum of two in the rank of Hav and remaining should be not less than Hav and Average. III. The individual must have a minimum of two reports of Regimental duty or as an Instructor in Army school of Instructions, including IMA, NDA, OTA and ACC, out of which at least one should be „Above Average‟. One of the Regimental reports should have earned in the rank of Hav. IV. The individual should have been recommended for promotion in all the five reports.” Once this aspect becomes clear that the petitioner did not possess the minimum required grading of three out of last five 5 ACR entries as ‘above average’, it will have to be held that he did not qualify for such promotion in view of the aforementioned rules. Thus, no error can be found in the said decision superseding the petitioner. Counsel for the petitioner would submit that in the given circumstances where if higher average would lead to an inference of there being an average entry, it ought to have been communicated before its being acted upon. In the considered opinion of this Court, this argument is one of desperation. A ‘high average’ entry in ACR in the army service by itself will not mean an adverse entry but, in the given context of making an average evaluation, the grading, having been defined as if a person does not have ‘above average’ ACR entry for three years and continues to get the grading of ‘high average’ (which is below in performance appraisal as ‘above average’), he will have to suffer the consequence of not being promoted. For that purpose, neither the rule of natural justice has to be followed nor the petitioner was required to be given any show- 6 cause notice. As a matter of fact, in the order that was passed on the representation of the petitioner pursuant to the direction of this Court, this aspect of the matter has again been considered by the authority, wherein, it has been held as follows:- “1. I have perused the Non Statutory Complaint dated nil against the Annual Confidential Report for the year 2004 in respect of Number 13947061Y Ex Havildar/ Ambulance/Assistant Ram Parwesh Singh of 1. Mechanical Transport Battallion of Army Medical Corps Centre and School, Lucknow and his resultant supersession for promotion to the rank of Naib Subedar and examined the same against his profile and relevant Rules and Regulations on the subject. 2. After consideration of all aspects of the complaint and redress sought by the complainant, I am of the opinion that the complainant has been graded as per his demonstrated performance during the reporting years. He does not meet the Annual Confidential Report criteria for promotion to the rank of Naib Subedar, as stipulated in Integrated Headquarters of Ministry of Defence (Army) letter number 7 B/33513/AG/PS2(c) dated 10 October 1997. Further, the Non Commissioned Officer was counseled by Initiating Officer in May 2004 vide Army, Medical Corps Centre and School letter Number 940283/1MTB/ADM dated 18 May 2004 in writing, for negligent attitude in the performance of his duties as Company Havildar Major. 3. In view of the above, I, direct that the said complaint be rejected as it lacks substance and is devoid of merit. 4. The Non Commissioned Officer be informed accordingly.” From the reading of the aforesaid order sought to be impugned in this writ application, two things are very clear. One that it was a criteria of grading in the ACR and the petitioner not fulfilling the same which made him to lose his promotion and secondly even such entries were made after properly issuing warning to the petitioner as has been clearly mentioned by the initiating officer in the month of May, 2004 noticing his negligent attitude in the performance of duties as Company Hawaldar Regent. The power of judicial review of this Court in such cases based on the performance appraisal on evaluation of ACR in the armed force service 8 will be very limited and in fact, this Court cannot go into the question of merit of such a decision and will have limit its its enquiry confining only to the decision making process. Based on the aforementioned settled principle, this Court would find no error in the decision making process wherein the army authorities were wholly justified in denying promotion to the petitioner on noticing that in the last five years of his ACR, he had not been given the grading of at least three above average. Accordingly, this Court would find no merit in this writ application and the same is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)