HIGH COURT OF JAMMU AND KASHMIR AT JAMMU ************ SWP No. 714/07 Dated:16.11.09 Col. Yatish Chandra Mishra v Union of India and Others Coram: Hon’ble Mr Justice Sunil Hali, Judge Appearing counsel: For the petitioner(s) : Mr Rahul Pant For the respondent(s) : Mr PS Chandel, CGSC Whether approved for reporting in Yes/No Digest/Journal/Media. Promotion to the post of Brigadier made by the Promotion Board Medical No. 2 held on 2nd February, 2007, which resulted in exclusion of the petitioner, is subject matter of challenge in this writ petition. In order to appreciate the controversy, the backdrop of the case is enumerated herein below: The petitioner is working as Colonel in Army Dental Corps (herein-after referred as AD Corps). He was commissioned in the Army as Lieutenant in the year 1978, and earned promotion during tenure of his service. He was considered by the Selection Board for being appointed as Colonel on 13.8.2000, but was not selected. He filed a non statutory complaint on 2 6.8.2000. The ground for his exclusion was down grading of his ACRs for the year 1995-1996. Inconsistency in ACRs was expunged by the Chief of Air Staff by allowing the non statutory complaint of the petitioner. Necessary implications of expunging of inconsistency in ACRs, was to consider the petitioner for the post of Colonel. This was to be done by holding a Review Promotion Board. It transpires that the Review Promotion Board did not hold any meeting till 10.6.2002, and the result of the Review Board was intimated to the petitioner after delay of seven months i.e. on 3.1.2003. The order was implemented six months thereafter when the petitioner was posted as Colonel on 3.7.2003. In the month of December, 2005, a Regular Selection Board was held to consider all the eligible candidates for one available vacancy of Brigadier existing in the Army Dental Corps. The petitioner was also considered but was not selected by the Board. Non-statutory complaint came to be filed by him on 8.6.2006 in terms of para 364 of Regulations for the Army 1987, and para 79 of the Special Army Order 8/S/91. In the complaint, stress was laid by the petitioner for reviewing the low gradings of ACRs, if any, awarded to him, which were not in consonance with the actual performance of the 3 petitioner. It specifically prayed for removing the aberrations in reporting by any Senior/ Higher Technical Officer by comparing it with the grading awarded by Initiating Officer and First Technical Officer. It is to be noted that the respondent no. 5 and 6 were also not considered by the Selection Board. The respondent no. 5 was considered by the Selection Board for the post of Brigadier held on 31st of July'03, but was not selected; he filed a statutory complaint against his non selection by the said Board on 29th of September, 2003. The said Statutory complaint was decided on 15.9.2004 and partial redressal was granted to the said respondent by setting aside the assessment made by the First Technical Officer in the ACR of 2001 and SCR of 2002 on the ground of inconsistency. After redressal of his grievance, he was again considered but not selected for promotion by the Review Promotion Board held on 15.3.2005. On 7th of Dec'2005, the respondent No.5 alongwith petitioner was again considered by the Promotion Board (Medical) 2, but both were not selected. After the non selection of the petitioner as also private respondent No.5, the said respondent submitted a non statutory complaint on 23rd of Jan'06, against his supersession by the said Board. The said 4 complaint was rejected by the authority concerned. It seems that he filed one more Statutory complaint on 28.11.2006 against his supersession. The Central Government vide its order dt. 11th of Jan'07, partially accepting the said complaint granted the relief to the private respondent No.5, by way of expunction of complete numerical assessment of ACR of 2001 on the ground of inconsistency. It be noted that ACRs for the year 2001 with respect to which respondent no. 5 got relief, the statutory complaint was already considered by the authority concerned and at that time no relief with respect to the ACRs of 2001 initiated by IO and RO was given and relief was granted only with respect to the assessment made by the First Technical Officer in the ACR of the years 2001 and SCR for the year 2002. The second statutory complaint in which relief of complete expunction of ACRs for the year 2001 has been granted, as indicated above, was decided on 11.01.2007. It transpires from the record that the aforementioned statutory complaint was received on 21.12.2006 and within seven days, it was forwarded to the respondent no. 1 and the relief was granted to the private respondent No.5. His case was finalized by the respondent no. 1 on 12.1.2007. The Review Board was held on 2.2.2007 and the case of the respondent no. 5 was cleared 5 for promotion to the post of Brigadier, which resulted in supersession of the petitioner. So far as respondent no. 6 is concerned, he had filed non statutory complaint against Special Confidential report initiated by the Initiating Officer in the year, 2002. Resultant effect of the complaint was that Higher Technical Officer upgraded the ACRs of respondent no. 6, which resulted in his selection by the Selection Board (Medical) No. 2 on 2.2.2007. It is in these circumstances the present writ petition has been filed by the petitioner. I have heard learned counsel for the parties and perused the record. Mr. Rahul Pant,learned counsel appearing for the petitioner has challenged the order of his supersession on the following grounds: a) That the selection of respondent no. 5 & 6 was the result of malicious exercise of power by the official respondents. He contends that the non statutory complaint filed by the petitioner in June 2006, against the decision of the Selection Board held in December, 2005 remained undecided till the impugned orders were passed. The complaint filed 6 by the respondents no. 5 & 6 were decided on neck breaking speed, resultant effect of the same was their promotion to the rank of Brigadier. b) Removal of aberrations which were inconsistent with the overall profile of the officer was done in case of respondent no. 5 and 6 and not in case of the petitioner. Same principle was required to be followed in the case of petitioner which was not done. c) That the assessment made by the Higher Technical Officer is based upon the report that he receives from the First Technical Officer. In case, he does not assess the officer personally, any down grading of ACRs by the Higher Technical Officer without personally assessing the work of the officer cannot be done arbitrarily. This down gradation in the ACRs will be aberration, which is required to be expunged. On the other hand, the stand taken by the respondent-Union of India is that every officer in the chain of reporting is free to record his objective assessment as observed by him irrespective of what the other officers in the chain have recorded/observed. The contention of 7 the petitioner that the views expressed by the Initiating Officer/First Technical Officer are vital and are to be given weightage is not correct. The assessment made by the Higher Technical Officer in down grading the ACRs was done on objective basis. The rejection of the officer for promotion to the higher rank necessarily does not mean that he has been down graded or underrated by his reporting officer. It is further contended that the disposal of non-statutory complaint filed by the petitioner depended upon various inputs and the contents of the said complaint. It may get delayed due to non-availability of inputs mentioned here-in- above. There was no intention in delaying the disposal of non statutory complaint of the petitioner. It is, however, admitted that the statutory complaint filed by the respondent No. 5 on 28.11.2006 was disposed of on 11th January, 2007, and he was granted the relief by way of expunction of comlete numerical assessment of ACR of 2001, and after the grant of said redressal,his case for promotion was reviewed by the Review Promotion Board(Med) 2, on 2.2.2007 as per procedure given in para 18 of promotion policy letter dated 14.1.2004. It is further contended that there was no bar in making second statutory complaint by the respondent No. 5 as contended by the petitioner. So far as 8 respondent No.6 is concerned, it is stated that his case was also considered as per the policy. It is, however, admitted that on 27.11.2006, the Promotion Board (Medical) No. 2 was convened for AMC & AD Corps officers by the DGAFMS, who was the convening authority. The promotion of the AD Corps Officer was withdrawn after certain observations were made before the Board proceedings. It is denied that the promotion Board was deferred with any intend of malice. The stand of petitioner that nothing has been disclosed by the official respondents to indicate the principles which are required to be followed in removing the aberrations which are inconsistent with overall profile of the officer is stated to be incorrect. I have heard learned counsel for the parties and perused the record. Armed Forces Medical Service is a tri service organisation in which medical and dental officers can be posted from one service to another depending upon the vacancies in the overall categories. Promotions in the Army Dental Corps from the rank of Colonel to Brigadier is done in accordance with the policy as per letter No. 10(1)/2004/D(Med) dt. 14th of Jan'04, as amended by a duly constituted 9 Promotion Board. In terms of the said policy, the officers/fresh candidates numbering twice the available vacancies in addition to the officers not selected by the previous Promotion Boards are considered for promotion as per seniority. Each officer is considered three times after which he is permanently passed over. The officers who are not selected have the option of making non statutory complaint under Army Act Section 27 and para 364 of DSR,referred to above. The final authorities to dispose of the complaints are the Chief of Army Staff, Chief of Naval Staff and Chief of Air Staff, depending upon the service to which the officers belong. The officers who are not satisfied with the decision of any of the authorities' mentioned above, on their non statutory complaints, may make representation to the Central Government, whose decision is final. Whenever any officer is granted redress in his complaint, then, his case is reviewed on the basis of changed ACRs as against the boards to which he was earlier exposed. After the assessment so made which includes the ACR average, marks for the qualifications, marks for awards and board marks become higher than the ACR average as last empanelled officer in that Board, then, the said officer is graded fit for promotion in his own turn. If on the basis of such review, the officer is found fit for promotion, his seniority is also protected. 10 As is evident from the record, promotion to the next higher rank is made on the basis of ACRs of the officer. It is to be noted that for promotion from the rank of Colonel to Brigadier, five ACRs of the previous years are required to be examined and taken note of for the said promotion. As indicated above, since the officers belonging to dental and other medical services can be posted from one service to another, their immediate officers may not be having the knowledge of assessment of professional qualities of the officers, therefore, such a procedure has been prescribed for grading the ACRs of Dental officers or other officers belonging to the Medical service in Special Army Order 8/S/91. As and when the Initiating Officer who does not belong to the Dental Services initiates the ACR of the officer belonging to the said service, then, the said initiation of the ratee is done regarding his personal qualities, comprehension, employability and administrative capabilities. So far as professional qualities of an officer are concerned, the technical reporting in this regard is done by the immediate officers belonging to the Dental Service only. The ACRs are initiated in two parts; the first part is Confidential report covering the administrative capabilities and the second part is regarding professional capabilities which is termed as 11 technical reporting. Regarding the professional qualities, the first reporting is done by the First Technical Officer who is the immediate superior of the ratee and thereafter, second reporting is done by the Senior Technical Officer/Higher Technical Officer. So far as administrative part of the ACR is concerned, the same is initiated by the Initiating Officer who is immediate superior officer of the ratee at the place of his posting and the same is then reviewed by the Reviewing Officer and finally by the Senior Reviewing Officer. So far as the procedure for writing the ACRs is concerned, it be seen that on the administrative side, the Initiating Officers writes the reports taking into consideration 20 administrative attributes on the personality of the officer and the reporting officer has to award points to the ratee out of 9 points fixed for each of the 20 attributes. Same procedure is followed by the Reviewing Officer. However, when it comes to the Senior Reviewing Officer, he awards the points out of 9 marks keeping in view the overall grading to the officer concerned without going into 20 attributes. Thereafter the average of the ACR is calculated by adding the average of the ACR graded by the Initiating Officer plus average of the ACR graded by the Reviewing Officer and the ACR grading done by the Senior Reviewing Officer. 12 Similarly, the average of technical ACR is worked out and then the total average of the complete ACR is taken. The average of the first part of ACR i.e., the Initiating Officer plus Reviewing Officer plus Senior Reviewing Officer and the average of the other part of ACR i.e. Technical Report (FTO+HTO) is calculated and then these two averages are re-averaged to give a final average of a particular report. The ACRs of the petitioner as also private respondents for the year 2001 to 2005 were considered by the Promotional Board constituted in the year 2005. Before proceeding further, it would be important to note the overall profile of the petitioner as also private respondent No. 5 from 2001 to 2004. This is as under:- Petitioner: Period IO RO SRO DGMS AVG.ACR 2001ACR 8.90 8.90 9.00 9.00 8.95 2002ACR 8.90 8.90 9.00 8.00 8.70 ICR 8.95 8.00 8.00 8.31 2003ACR 8.70 8.70 8.70 2004ACR 8.80 8.00 8.40 ICR 8.90 8.70 8.80 FTO STO HTO AVG. AVG Period TR ACR AVG TR 2001ACR 8.90 8.00 8.45 8.70 8.7 13 2002ACR 8.90 8.00 8.45 8.57 8.47 ICR 8.90 8.00 8.45 8.38 2003ACR8.20 8.00 8.10 8.40 8.4 2004ACR 8.90 8.00 8.45 8.42 8.52 ICR 8.90 8.00 8.45 8.62 Respondent No.5 Period IO RO SRO DGMS AVR ACR 2001ACR 7.90 7.80 7.85 2002ACR 8.70 8.75 9.00 8.81 SCR 8.25 8.25 2003ACR 8.95 8.80 9.00 8.91 SCR 8.80 8.80 9.00 8.86 2004ACR 8.90 8.90 9.00 8.93 ICR 8.55 8.85 8.00 8.46 FTO STO HTO AVG. AVG Period TR ACR AVG TR 2001ACR 8.00 8.00 7.92 7.92 2002ACR 8.10 8.00 8.05 8.43 8.27 SCR 8.00 8.00 8.12 2003ACR 9.00 9.00 8.95 8.69 SCR 8.00 8.00 8.43 2004ACR 8.80 9.00 8.90 8.91 ICR 8.80 9.00 8.90 8.68 8.79 A perusal of the above table shows that for the year 2001, the IO, RO and SRO has graded the 14 petitioner as 8.90, 8.90 and 9.00. The average ACR grading has been shown as 8.95 for the said period and the period average is 8.7. So far as respondent No.5 is concerned, his rating as per IO and RO for the same year is 7.90 and 7.80. The average rating is 7.85 and the period average is 7.92, though the same was expunged lateron after he was granted the relief on filing the second statutory complaint. Similarly for the year 2002, the IO, RO and SRO has given the petitioner 8.90, 8.90 and 9.00 respectively whereas the grading in favour of private respondent No.5 is 8.70 and 8.75. For the year 2004, in the ICR, the the IO and RO has rated the petitioner as 8.90 and 8.70. His average ICR is shown as 8.80 whereas the average ICR for the said period of respondent No.5 is 8.46. A perusal of the said record pertaining to the ACR/ICR of the petitioner as also private respondent No.5 shows that upto the year 2002, the petitioner was higher in grading than the said respondent and even in the ICR of 2004, the petitioner is above than the said respondent but it is for the year 2004 that the private respondent No.5 stole a march over the petitioner so far as ACR for the said period is concerned. A perusal of the ACR/ICR of the petitioner and private respondent No.5 shows that the petitioner all-along has been given 8 points by the Higher Technical Officer whereas for the ACR/ICR of 2003 and 2004, the 15 respondent No.5 has been awarded 9 points by the HTO. It may also be noted that in the average profile of other officers, record whereof was produced by the official respondents pertaining to the year 2005 to 2007, the HTO has continued its consistency by giving 8 points to the petitioner whereas in the case of other officers i.e. GK Thapliyal, JP Singh, TK Bandhopadhyay, the HTO has consistently given 9 points. As the rating awarded by the HTO plays an important part so far as calculation of average ACR/ICR of an officer is concerned which further leads to his promotion/rejection, the principle adopted by the HTO in according such ratings is not discernible from record. This is clear from the fact that earlier for the year 2002, when the respondent No.5 was given 8.10 marks by the FTO,the HTO has given him 8 points. The petitioner for the said year has been accorded 8.90 points by the FTO but the HTO has given him 8 points, thus, lowering his period average. Similar is the position for the ACR of 2004. The FTO for the said period has granted 8.80 points to the respondent No.5 and the HTO has awarded him 9 points, whereas, the petitioner even though has been accorded 8.90 marks from 16 the FTO, the HTO has still persisted with 8.00 marks only in his favour for the said period. Therefore, as indicated above, the HTO has continuously awarded the petitioner 8 points right from 2001 to 2007. Even after 9 points given by the HTO in favour of private respondent No.5 in the ACR for the period 2003 and 2004 and in ICR of 2004, did not help his cause and he continued to have an average of 8.41, as is apparent from the record, which is less than the average ACR of the petitioner upto 2004 which has been assessed at 8.46. It be seen that as the grading of respondent No.5 showed upward trend by the IO and FTO, the HTO also started increasing his grading. It is evident from the table reproduced here-in-above that for the year 2004, his ACR and ICR has been assessed at 8.80, the HTO has awarded him 9 points whereas, in the case of petitioner, he having been assessed higher than private respondent No.5 by FTO at 8.90, the HTO still has awarded him 8.00 points. Even for the year 2001-02, the IO and FTO all-along have awarded the petitioner 8.95 and 8.90 marks, but the HTO has downgraded him by awarding 8.00 points only. As noticed above, the respondent No.5 after his second statutory complaint was accepted, his ACR initiated by the IO and RO for the year 17 2001 was expunged, as a result of which, his average ACR which was earlier assessed at 8.41 became 8.58. Therefore, it is clear that in case, the same yardstick as adopted in the case of private respondent NO.5 would have been adopted in the case of petitioner regarding considering his statutory complaint and the aberration in the ACR would have been removed keeping in view his overall profile and the assessment made by the HTO, who as indicated above, has given him 8 points all-along, the petitioner would have made the grade. It be further seen that so far as service profile of respondent No.6 is concerned, the same has not been produced. However, it be noted that he was averaging 8.51 on the administrative side and 8.00 on the technical side. The HTO upgraded him by awarding 9.00 points for the year 2005, as a result of which he made the grade and was selected. However, as indicated, no record in this respect has been produced. Even the affidavit filed by the official respondents does not make any mention regarding upgrading his ACRs by the HTO and whether he could make the grade. In the absence of any averments in this regard and non production of record, the allegations levelled by the petitioner in the writ petition against 18 respondent No.6 would be deemed to have been accepted. From the aforementioned factual discourse, following two things emerge: a/ As to what is the principle on the basis of which aberrations in the ACRs of an officer are to be expunged; and b/ as to what is the basis and manner on which the second statutory complaint of private respondent No.5 was accepted which ultimately resulted in his selection and the expeditious manner in which the said complaint of private respondent NO.5 was decided , which process, as alleged by the petitioner was actuated by malafides. The case of the petitioner will have to be dealt in view of the formulations here-in-above. It be seen that the partial relief given to respondent No.5 vide order dt. 17th of July'04, by the Chief of Army Staff was by way of expunging the complete assessment of FTO in ACR of 2001 and Special CR of 2002. While allowing the second statutory complaint of the said respondent, the Central Government again granted partial redress and this was by way of 19 expunction of complete numerical assessment of ACR of 2001 on the ground of inconsistency and thus, the assessment made by IO, RO i.e. 7.90, 7.80 and that made by HTO at 8.00 was expunged. It clearly emerges from the aforementioned facts that the principle of expunging the aberrations was to only maintain the consistency in the overall profile of the officer. In the case of the petitioner, the assessment recorded by the HTO all-along has been 8.00, which is not in consonance with the assessment made by the FTO who has al-along assessed the petitioner above 8.90 except for the ACR of 2003 when his assessment is at 8.20. Therefore, as indicated above, the yardstick which has been applied in the case of private respondent No.5 for expunging his remarks which were found inconsistent with his service profile, has not been applied in the case of the petitioner. The grievance of the petitioner, as noticed above, is that the principle adopted by the official respondents in the matter of expunging the aberrations in the ACRs of respondent Nos. 5 and 6, should have been adopted by keeping his overall profile into consideration. The assessment of the FTO who is the initiating officer on the technical side and who personally assesses the officer has to be given weightage. I say so because, it is only the FTO who assesses the work of the officer concerned and 20 then submits his report to the HTO. Although, the officers of the Army Dental Corps work within the control of their own Commanding Officers but the overall control of the Dental Services remains with the officers who head the Army formation in a particular station