THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition Nos.19973 and 21919 of 1998 Date: 17.03.2006 Between: Col. R.R. Kumar, S/o late R.V.Rama Rao, aged about l57 years, R/o Secunderabad. … Petitioner. And The Union of India rep.,by its Secretary, Ministry of Defence, New Delhi. … Respondents. THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition Nos.19973 and 21919 of 1998 COMMON ORDER: Questioning the proceedings of the 2nd respondent dated 26.3.1998 in rejecting the statutory complaint filed by the petitioner on 1.1.1998, W.P.No.19973 of 1998 is filed. Questioning the action of the respondents, in retiring the petitioner from service on 18.12.1997, as illegal, arbitrary and discriminatory, W.P.No.21919 of 1998 is filed. Both the writ petitions were heard together and are now being disposed of by a common order. The facts, to the extent necessary, are that the petitioner, on completing his graduation in Medicine from Guntur Medical College, joined the Army in 1965. He was promoted as a Colonel in the year 1994 and was working as the Senior Registrar at the Military Hospital in Secunderabad. The petitioner was due for promotion as Brigadier and his case was considered by the Selection Committee in its meeting held on 19.12.1996. Petitioner was informed, vide letter dated 25.2.1997, that he had been over looked for promotion to the rank of Brigadier as he was graded (R) (unfit for promotion at present). Subsequent thereto, the petitioner submitted an application in February, 1997 seeking premature retirement. On 27.3.1997, he submitted a statutory complaint, under Regulation 364 of the Defence Service Regulations, against his being overlooked for promotion. The petitioner’s application for premature retirement was accepted, vide proceedings dated 23.9.1997, and he was informed that he would retire from service with effect from 17.12.1997. The petitioner, vide letter dated 21.11.1997, informed the respondents of the withdrawal of his application for premature retirement and requested that he be permitted to continue in service. The petitioner filed W.P.32069/97 questioning the proceedings dated 23.9.1997 wherein his application for premature retirement had been accepted. He also filed W.P.29679 of 1997 seeking a direction to the respondents to consider his statutory complaint first and till then not to enforce the proceedings dated 23.9.1997 whereby he was to retire from service on 17.12.1997. Both the writ petitions were disposed of by a common order on 9.2.1998. This court, on taking note of the averments, in the counter affidavit filed in W.P.29679 of 1997, that the petitioner was free to submit a fresh statutory complaint if he so desired and the same on receipt would be considered by the Government on merits, held that since the respondents had agreed to consider the petitioner’s case once again and to decide the representation, there was no reason to refuse the prayer of the petitioner. This Court accordingly directed the respondents to consider the application made by the petitioner on 1.1.1998 and dispose of the same within three months. Though the proceedings dated 23.9.1997, (wherein the petitioner’s application for premature retirement had been accepted), was also the subject matter of challenge in W.P.29679 of 1997, no relief was granted in the said writ petition. The order passed by this Court, in W.P.Nos.32069 and 29679 of 1997, on 9.2.1998, has attained finality. In the proceedings dated 23.9.1997, it is stated that the Government had approved the premature retirement of certain officers, including the petitioner, and that the officers may be relieved of their duties as early as possible and not later than 17.12.1997. The petitioner’s application dated 21.11.1997 for withdrawal of his earlier application for premature retirement was rejected, vide proceedings dated 17.12.1997 and the petitioner was informed that he would be required to retire from service on 17.12.1997 (AN)/18.12.1997 (FN). Capt.K.M.Saxena, learned counsel for the petitioner, would submit that since the petitioner’s statutory complaint dated 1.1.1998, against his supersession for promotion to the rank of Brigadier, was rejected, vide proceedings dated 26.3.1998 on the ground that it lacked substance, W.P.No.19973 of 1998 was filed and questioning the order of the respondents in retiring him from service on 18.12.1997, W.P.21919 of 1988 was filed. Capt.K.M.Saxena, would submit that since the petitioner had withdrawn his application for premature retirement, vide his letter dated 21.11.1997, prior to the date on which his retirement was to come in to effect from 17.12.1997, he was entitled to continue in service till he reached the age of superannuation of 59 years. Learned counsel would refer to Rule 16(a) of the Army Rules, 1954 in support of his submission that the petitioner is entitled to continue in service upto 59 years and since he was 56 years when he was retired from service, the petitioner was entitled to continue in service up to 30.9.2000. Learned counsel places reliance on Balram Gupta v. Union of India and Major K.K.Sethi v. Union of India in support of his submission that the petitioner was entitled to withdraw his application for premature retirement at any time prior to the date on which it came into effect. In so far as the petitioner’s supersession, for promotion to the rank of Brigadier, is concerned, Capt.K.M.Saxena, would submit that since the petitioner’s commandant had graded him as an outstanding officer in the year 1995 and above average in the year 1996 and while forwarding the petitioner’s statutory complaint, the very same commandant, Brigadier Sri S.V.Vatve, had strongly recommended the petitioner’s case for promotion and for reappraisal of his ACRs, the petitioner ought to have been promoted as Brigadier and his supersession is arbitrary and illegal. On the question as to whether the order passed by this Court in W.P.Nos32069 and 29679 of 1997 dated 9.2.1998 precluded the petitioner from filing a fresh writ petition seeking the same relief , Capt. Saxena would refer to Section 27 of the Army Act to contend that a statutory complaint can be filed only by a serving army officer and since the petitioner’s statutory complaint was regarding his promotion and a person can only be promoted if he is in service or he has retired and cannot claim promotion if he has resigned, the concession of the respondents, in their counter affidavit, in effect, meant that they had conceded that the petitioner continued in service and his request for withdrawing his earlier application for premature retirement, had been accepted. Learned counsel would submit that in view of this concession, in the counter filed in W.P.29679/97, the petitioner would be entitled to continue in service till he reached his age of superannuation on 30.9.2000. In so far as denial of promotion to the petitioner is concerned, learned counsel would submit that where there are adverse remarks or reduction in the marks assigned in the overall grading, the employee who suffers such an adverse rating is required to be put on notice. Learned counsel would submit that since the petitioner was not put on notice, it must be inferred that the petitioner’s ACRs, for the relevant years 1994-95 and 1995-96, were not less than his rating for the earlier years. Sri A.Rajasekahr Reddy, learned Assistant Solicitor General, would submit that none of the contentions urged by Capt.K.M. Saxena, learned counsel for the petitioner across the Bar, are supported by necessary pleadings in this regard. Learned Assistant Solicitor General would submit that since the petitioner’s request for premature retirement had been accepted and the order dated 23.9.1997, retiring him from service, was subject matter of challenge in W.P.32069/97, the order in the writ petition is binding on the petitioner and since no relief was granted in favour of the petitioner, it was not open to the petitioner to file a subsequent writ petition questioning the very same proceedings dated 23.9.1997. Learned Assistant Solicitor General would submit that during the pendency of W.P.32069/97 and W.P.29679/97, before this Court, the petitioner had withdrawn his statutory complaint and at the time of disposal of the writ petition, he had stated that he would file a fresh statutory complaint. Learned Assistant Solicitor General would submit that all that has been stated in the counter affidavit, filed in those writ petitions, was that the petitioner was free to submit a statutory complaint. According to the learned Assistant Solicitor General this did not amount to a concession that the petitioner was in service or that he is deemed to continue in service or even that the government had put its seal of approval on the petitioner’s request to withdraw his earlier application seeking premature retirement. Learned Assistant Solicitor General would submit that the principles of res judicata would apply and since the order, passed in the earlier writ petitions, had worked itself out and had attained finality, the petitioner was estopped from contending otherwise. Learned Assistant Solicitor General would refer to Regulation 105(e), of the Defence Service Regulations, and submit that withdrawal of resignation cannot be as a matter of course and since the petitioner, pursuant to Regulation 105(e), had submitted an undertaking that he would not withdraw his application seeking voluntary retirement, the petitioner must be deemed, in law, to have waived his right to withdraw his application for premature retirement. In so far as supersession of the petitioner to the rank of Brigadier is concerned, learned Assistant Solicitor General would submit that the selection committee, consisting of the Chief of Army Staff and other Senior Officials of the Armed Forces, on a comparative assessment of the merits of the eligible candidates, as reflected by their ratings in the ACRs for the years 1994-95 and 1995-96, had selected officers for promotion to the rank of Brigadier, and since the petitioner was rated as (R), (unfit for promotion), he was denied promotion. Learned Assistant Solicitor General would refer to the ratings of the petitioner, by different officials, and submit that since these ratings reflect assessment of the petitioner’s performance, by senior officials, this Court would not sit in appeal over the decision of the Selection Committee, more so where the selection is for appointment to a senior rank of Brigadier in the Army. He would contend that while the scope of judicial review, in matters of selection, is extremely limited, it is more so in the case of the armed forces where this court would, normally, defer to the wisdom of the selection committee. Learned counsel would place reliance on Major General J.K.Bansal v. Union of India and Lt. Col.K.D.Rana v. Chief of Army Staff, Army Headquarters, DHQPO, New Delhi. Before examining the rival contentions it is necessary to briefly take note of the relevant statutory provisions. Sections 26 and 27 of the Army Act, 1950 read as under: “26.Remedy of aggrieved persons other than officers:- (1) Any person subject to this Act other than an officer who deems himself wronged by any superior or other officer may, if not attached to a troop or company, complain to the officer under hose command or orders he is serving; and may, if attached to a troop or company, complain to the officer commanding the same. (2) When the officer complained against is the officer to whom any complaint should, under sub-section (1), be preferred, the aggrieved person may complain to such officer’s next superior officer; (3) Every officer receiving any such complaint shall make as complete an investigation into it as may be possible for giving full redress to the complaint; or when necessary, refer the complaint to superior authority. (4) Every such complaint shall be preferred in such manner as may from time to time be specified by the proper authority; (5) The Central Government may revise any decision by the Chief of the Army Staff under sub-section(2), but, subject thereto, the decision of the Chief of the Army Staff shall be final. 27. Remedy of aggrieved officers:- Any officer who deems himself wronged by his commanding officer or any superior officer and who on due application made to his commanding officer does not receive the redress to which he considers himself entitled, may complain to the Central Government in such manner as may from time to time be specified by the proper authority. “ Regulation 364, of the Defence Service Regulations, relates to complaints including statutory complaints and provides that the complaint may be of two kinds, (1) statutory complaints under Sections 26 and 27 of the Army Act and (2) non-statutory complaints. Regulation 364 prescribes the manner and the procedure for submission of statutory complaints. While it is no doubt true that a statutory complaint can be filed only by a serving officer, the question which falls for consideration is as to whether the respondents, in conceding that it was open for the petitioner to file a statutory complaint, had, in effect, conceded, by implication, that the petitioner was still in service and that the respondents had acceded to his request to withdraw his earlier application seeking premature retirement. It is therefore necessary to briefly examine as to what was in issue before this Court in W.P.Nos.29679 and 32069 of 1997. The petitioner herein had filed W.P.No.29679 of 1997 seeking a direction to the respondents to consider his statutory complaint first and not to enforce the proceedings dated 23.9.1997, whereby the Government had approved request of premature retirement in respect of certain officers, including the petitioner herein, and had informed that they may be relieved of their duties as early as possible, not later than 17.12.1997. W.P.No.32069 of 1997 was filed by the petitioner seeking a declaration that the order of the 3rd respondent in proceedings dated 23.9.1997 and the consequential order dated 10.11.1997 were illegal and void. In the counter affidavit filed in W.P.32069 of 1997, it is specifically stated that along with other eligible officers, the petitioner was considered for promotion, to the rank of Brigadier, by the Selection Committee in its meeting held on 19.12.1996 and since the average of the ACRs of the petitioner, as considered by the Board, did not come up high in merit, his case for promotion was rejected and he was graded as ‘R’ (unfit for promotion to the next higher rank at present). It was also stated therein that the petitioner had submitted an application for premature retirement from service on 4.2.1997 on the ground of supersession for promotion, that as per rules, every officer desirous of leaving Army service should apply for the same after seriously weighing the pros and cons of premature retirement, because applications for withdrawal of requests for premature retirement made subsequently, at an advanced stage of consideration of such request, would cause severe administrative difficulties and problems and that premature retirement could only be as a last resort when no other alternative remedies were available. It was further stated therein that if he had any grievance with regard to his promotion, the petitioner could have first sought redressal through the channels available under the Army Act and the rules of service, that while his application for premature retirement was being processed, the petitioner submitted a statutory complaint on 27.3.1997 and since these two applications – one for premature retirement and another relating to statutory complaint, were contrary to each other, the respondents decided to process the application for premature retirement, after finalization of the statutory complaint. It is stated that in the meanwhile, the petitioner withdrew his statutory complaint, by certificate dated 11.6.1997, and consequent thereto the complaint was closed as ‘withdrawn’ and the petitioner’s application for premature retirement was processed further, and since the petitioner’s statutory complaint had been withdrawn, there was no question of processing a non-existing statutory complaint. It is stated that the petitioner’s request for premature retirement was processed and the Government granted approval, for acceptance of his request for premature retirement, on 19.9.1997. It is further stated in the counter affidavit, filed in W.P.32069 of 1997, that the petitioner again changed his stand and though there was no provision in the Army Act or in the service rules for withdrawal of the certificate dated 11.6.1997, (request for withdrawal of statutory complaint), the petitioner had submitted such an application on 3.9.1997 which was received by the government on 30.9.1997. Since it had already approved the petitioner’s request for premature retirement on 19.09.1997, the government could not agree for canceling the certificate dated 11.6.1997 and the petitioner was communicated accordingly on 10.11.1997. It is further stated that this Court passed an interim order, in W.P.29679 of 1997, on 10.12.1997 to continue the petitioner till his request for withdrawal of premature retirement, vide letter dated 21.11.1997, was disposed of, that the respondents had considered his request, and had, vide proceedings dated 17.12.1997, rejected his request for withdrawal of his application for premature retirement, and the same was communicated by order dated 18.12.1997. Respondents state that since no statutory complaint filed by the petitioner was pending, there was no ground to process his closed statutory complaint. Having stated thus, the respondents stated as under: “Further the petitioner is free to submit a fresh statutory complaint if he so desires and the same on receipt will be considered by the Government on merits” The respondents had taken a categorical stand, in their counter affidavit filed in W.P.No.32069/97, that withdrawal of application for premature retirement would not be permitted as a matter of course, that the petitioner’s application for premature retirement was processed only after he had withdrawn the statutory complaint and that his request for premature retirement had been accepted. The respondents had also referred to the interim order of this Court to continue the petitioner till the disposal of his request for withdrawal of premature retirement and to the proceedings dated 18.12.1999 whereby the petitioner was informed that his application for withdrawal of his request for premature retirement was rejected on 17.12.1997. Since a conscious decision was taken by the respondent to accept the petitioner’s request for premature retirement and his subsequent application seeking permission to withdraw the application in this regard was expressly negatived and he was informed accordingly, vide proceedings 18.12.1997, it cannot be said that the respondents, in stating that the petitioner was free to submit a fresh statutory complaint, had, by inference, agreed that the petitioner was deemed to be in service and that his request to withdraw his earlier request for premature retirement had been accepted. The contention of Capt. K.M. Saxena, in this regard, has necessarily to be rejected. This Court, by order in W.P.Nos.32069 and 29779 of 1997 dated 9.2.1998, took note of the fact that the learned counsel for the petitioner while arguing the matter had only sought the relief that the respondents be directed to decide and pass appropriate orders on the statutory complaint filed on 1.1.1998 and as the respondents had themselves stated in the counter that the petitioner was free to submit a fresh complaint, this court directed the respondents to consider the complaint submitted by the petitioner on 1.1.1998 and dispose of the same within three months. As stated supra, the statutory complaint filed on 1.1.1998, was with regards, denial of promotion to the rank of Brigadier and had no connection with the petitioner’s request for withdrawal of his application seeking premature retirement. Despite W.P.No.32069/97 being filed, questioning the proceedings of the 3rd respondent dated 23.9.1997, in accepting the petitioner’s request for premature retirement, and though this court did not grant any relief in this regard, the petitioner chose not to prefer an appeal and the order of this court in W.P.No.32069 of 1997 attained finality. This Court, in its common order dated 9.2.1998, specifically held that the only relief sought for by the petitioner was for a direction, that his statutory complaint filed on 1.1.1998 be decided. It is clear therefrom that the petitioner did not press for an adjudication on the validity of the proceedings dated 23.9.1997 whereby his request for premature retirement had been accepted. The order of this Court in W.P.No.32069 of 1997 is a judgment inter parties and since the said order has attained finality, it is not open for the petitioner to challenge the very same proceedings by way of a subsequent writ petition. Since the order of this Court in W.P.No.32069 of 1997 has attained finality, the petitioner is not entitled to challenge the very same proceedings subsequently in W.P.No.21919 of 1998. Challenge in the present writ petition to the impugned proceedings dated 23.9.1997 must therefore be rejected at the threshold. Learned Assistant Solicitor General would place reliance on Regulation 105 (e) of the Defence Service Regulations, which reads as under: “Every officer desirous of leaving the Army Service by resigning or retiring prematurely should apply after weighing the pros and cons of premature retirement/resignation because requests for withdrawal of such requests subsequently, when the same are at advanced stages of considerations cause administrative difficulties. The applicant officer should, therefore, resort to premature retirement/resignation as a last resort when no other practical alternative is available to him. If he has any grievances with regard to posting, adverse remarks in ACR, punishment and so on, he, should first seek redressal through prescribed channels and submit his application only when he finally decides to leave the service unconditionally. While making an application, he should give an undertaking that he will not withdraw his request after it has been accepted” Learned Assistant Solicitor General would also place before this Court a copy of the petitioner’s application dated 4.2.1997 wherein the petitioner had requested that he be permitted to immediately and unconditionally retire prematurely. The contents of the said application dated 4.2.1997 are as under:- “1. I MR-04117 K.Col RR Kumar have the honour to submit this application and would like to go on premature retirement immediately and unconditionally for the following reasons:- a. I am the eldest son of the family and my father is no more. My mother is aged about 75 years and is ailing. We have lot of property and said property has to be distributed amicably to my brothers and sisters as per the wish of my late father. I being the eldest son of the family it is my solemn duty to take up the responsibility which I can only achieve it b leaving the service at the earliest opportunity. b. I had put in more than 31 years of service in Army and I have commanded three units including a tenure as Instructor in AMC Centre and School, Lucknow before I came to MH Secunderabad on posting during April 1994. Till date I had served the Corps with lot of initiative, zeal, sincerity and wit total loyalty to my superiors. Wherever I served, I proved to be an asset to the unit/institution. In view of my above qualities, to the best of my belief and knowledge, I have been earning out standing reports n my ACR from my IO and RO’s for the past five years. And yet, to my utter surprise and disappointment I have learnt that I could not be found fit for promotion to the rank of Brg in the recent promotion board held on 19 Dec 1996. It is certainly disheartening and demoralizing to me and I think that I should not aspire beyond Colonel rank in the present scenario being an Adm Care Officer. c. My career in AMC has been most cherishable and memorable. I really consider it as a privilege to have enjoyed the comraderie, love and affection of my superiors including my subordinates and colleagues. 2. In view of the above afore said reasons, I have decided o seek premature retirement with a heavy heart before I turn into a frustrated and disgruntled officer. An asset officer should not become a liability to the Corps in view of my supersession and I feel it is better to quit the service with honour and dignity rather than to serve under humiliation. I therefore request that my premature retirement application may be considered sympathetically and I be released from service immediately” Petitioner also gave an undertaking that he would not withdraw his request after the same had been accepted. He also submitted a certificate, counter signed by his Commandant, that he would not withdraw his request for premature