CWP No. 10780 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 10780 of 2008 Date of decision: .10.2010 Ram Mehar Singh, Commandant, 12th Bn. (Now Commandant NITSRDR) Ramgarh, Haryana ...... PETITIONER VERSUS Union of India and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Dr. Surya Parkash, Advocate, for the petitioner. Mr. Gurpreet Singh, Sr. Panel Counsel, for respondents No. 1 to 3. None for respondents No. 4 to 6. *** AUGUSTINE GEORGE MASIH, J. Challenge in this writ petition is to the order dated 30.05.208 (Annexure P-1), vide which respondents No. 4 to 6, who were junior to the petitioner, have been promoted to the rank of Additional Deputy Inspector General (hereinafter referred to as 'Addl. DIG) in the Indo Tibetan Border Police Force (hereinafter referred to as 'ITBP') ignoring the petitioner on the basis of adverse remarks recorded in the Annual Confidential Report CWP No. 10780 of 2008 2 (ACR) for the year 2006-07 as also for expunging the same, which was conveyed to the petitioner vide memorandum dated 27.08.2007 (Annexure P-2) being in violation of Regulations and Instructions. The petitioner, who was selected as an Assistant commandant in ITBP on 13.06.1986, was promoted as Commandant on 09.12.2004. He continued to work with full dedication and earned very good reports and received commendation certificates for his excellence in duty. The petitioner along with others became eligible for consideration for promotion to the post of Addl. DIG. A Departmental Promotional Committee (hereinafter referred to as 'DPC') was constituted for making recommendation. The Annual Confidential Reports of the five preceding years were to be taken into consideration for assessing the suitability of the eligible persons for promotion. The cut off date for consideration was 1st January, 2008 as the DPC was held on 14.05.2008 and thus, last five ACR's would be from the year 2002-03 to 2006-07. Because of the recording of the adverse remarks against the petitioner in the year 2006- 07, which was conveyed to the petitioner vide letter dated 27.08.2007 (Annexure P-2), the petitioner was ignored for promotion to the post of Addl. DIG whereas his juniors were recommended and promoted. Hence, this petition. It is the contention of the petitioner that adverse remarks have been recorded in total violation of the rules, regulations and guidelines issued by the respondents. It is further the contention of the petitioner that the said remarks have been recorded without any basis and, therefore, cannot be sustained. These were recorded with an intention to stop the promotion of the petitioner, especially when the petitioner was not conveyed and informed about any shortcomings in performance of his CWP No. 10780 of 2008 3 duties. The remarks are vague, cryptic and self contradictory as is apparent from the memorandum dated 27.08.2007 (Annexure P-2). It cannot be treated as adverse as it is advisory in nature. The adverse ACR recorded on the basis of memorandum dated 26.07.2007 (Annexure P-3) and memorandum dated 27.08.2007 (Annexure P-2) cannot be sustained. The petitioner has also assailed these orders on the ground that similarly placed officers have not been conveyed such adverse remarks. Discrimination has also been alleged on the ground that Assistant Commander Brij Mohan and Sh. B.Sinha, Commander Sh. Sanjeev Raina and Sh. Nalin Parbhat stood promoted despite their Long Range Patrolling (hereinafter referred to as 'LRP') having failed as also when casualties of the jawans and porters had taken place during the said mission whereas adverse ACR has been recorded because of LRP 'Radha' where no casualties occurred. The grading of the unit under the command of the petitioner during the year 2006-07 has been excellent and, therefore, the adverse ACR of the petitioner is totally unjustified and cannot be sustained. Counsel for the petitioner submits that despite having earned excellent record, the petitioner has been ignored for promotion because of one adverse ACR of the year 2006-07, which has been recorded without following the mandatory instructions as issued by the respondents. According to the 'Hand Book containing procedure and instructions for recording Annual Confidential Reports of the officers of ITBP Force' and the 'Brochure on preparation and maintenance of Confidential Reports' issued by the Department of Personnel and Training, Ministry of Home Affairs, Government of India, the defect, if any, found in the working of the Government servant is required to be communicated to him, which should serve as a guide and counsel for improving his performance. The main CWP No. 10780 of 2008 4 thrust and focus of the Reporting Officer should be for development rather than judgmental and it should not be a mere tool to control or discipline him. The principal aim is thus to improve the performance of the subordinate and to assess the potentialities and prepare him through appropriate feed back and guidance for future possible opportunities in service. It is necessary that every Government servant should know what are his defects and how he could remove them. He contends, thus, that since not even a single adverse communication was addressed to the petitioner which required any type of improvement from the petitioner during this period, the recording of the adverse comments against the petitioner cannot be sustained. In support of this contention, he relies upon a judgment of the Hon'ble Supreme Court in the case of Sukhdeo vs. Commissioner, Amravati Division, Amravati and another, (1996) 5 Supreme Court Cases 103 and State of U.P. vs. Yamuna Shanker Misra and another, (1997) 4 Supreme Court Cases 7. He contends that the adverse remarks communicated to the petitioner are vague and cryptic without any instance of any specific failure of the petitioner in respect of these adverse remarks. The adverse remarks were recorded in a bias manner. The assessment has to be made on the basis of monthly bench mark of the unit, which was achieved as the same was more than 80%, therefore, the petitioner should have been assessed and graded as 'Very Good' especially when the unit, under the command of the petitioner, was also assessed 'Very Good' by the head-quarters. He contends that it was known that the Departmental Promotional Committee was to be held at the end of the year 2007 and, therefore, intentionally the adverse remarks were recorded and conveyed to the petitioner. The basis for conveying such remarks was done in a planned manner in order to CWP No. 10780 of 2008 5 secure promotion of the private respondents, who are much junior to the petitioner. The warning was issued on 26.07.2007 regarding LRP conducted under the petitioner during September, 2006. The said LRP was conducted on the direction of the Directorate General during sector Garhwal level exercise SHAKTI conducted in the month of September, 2006 in the un-explored area of 12th Battalion with an aim to explore, if any enemy from China could come and attack them. The planning note to this effect was prepared by the unit, which was approved by the Directorate General vide Additional DIG Operation message No. 2422 dated 22.09.2006. This LRP was constituted under the leadership of Pawan Malik. Deputy Commandant. The LRP explored the area and found that enemy could not enter through that unexplored area because after entering/reaching the middle of the area, enemy/intruder neither can go back nor come forward and could only be airlifted as such, their attack would have failed. The LRP , which was named as 'Radha' was thus successful and it has been termed to have been failed merely because LRP party had to be airlifted from the area although it fulfilled its mission. Sh. Pawan Malik, who was leader of the LRP 'Radha' has been promoted to the rank of 2nd in Command whereas the petitioner has been conveyed the adverse remarks and thus denied promotion. He further contends that similarly placed officials, who were holding the rank of Commandant, namely, Sh. Sanjeev Raina, Sh. Nalin Parbhat, stood promoted despite the LRP conducted under their supervision failed, which resulted in death of jawans and serious injuries to the members of the parties. Therefore, he contends that discriminatory approach qua the petitioner has been adopted by the respondents when no action was taken against similarly placed officers. In the past also, a number of LRP's conducted by various ITBP CWP No. 10780 of 2008 6 units had failed causing loss of precious lives but the concerned Unit Commandants of these LRP's were promoted at their turn. He, on this basis, contends that memorandum dated 27.08.2007, vide which adverse remarks in the ACR of the petitioner for the year 2006-07 have been conveyed to him, be expunged and the petitioner be promoted from the date his juniors have been promoted vide order dated 30.05.2008 with all consequential benefits. On the other hand, counsel for respondents No. 1 to 3 submits that the petitioner has been rightly ignored for promotion as he could not make the bench mark because the petitioner was assessed as 'Average' for the year 2006-07 whereas the bench mark is 'Good' or 'Very Good'. He contends that the Annual Confidential Report for the year 2006-07 assessing him as an 'Average' has not been impugned by the petitioner and, therefore, the writ petition itself is not maintainable. His further contention is that the bench mark for promotion was that one should have earned at least three 'Very Good' ACRs and two 'Not below Good' for the last 5 years and there should be no adverse entry in any of the ACRs under consideration. As the petitioner has been assessed for the year 2006-07 as 'Average', the petitioner was not found fit for promotion to the post of Addl. DIG. He contends that the instructions, as issued by the respondents, have been duly complied with in the case of the petitioner. The remarks, as communicated to the petitioner vide memorandum dated 26.07.2007 and 27.08.2007, Annexures P-3 and P-2 respectively, are fully justified as they are based on the facts, which were duly supported by related evidence regarding LRP 'Radha'. The petitioner was found to be seriously wanting in the leadership qualities. There was no co-ordination between the petitioner and the leader of the LRP. The planning and CWP No. 10780 of 2008 7 preparation of the LRP was not up to the mark. He was required to move towards the problem area to rescue his men but he did not do so. The petitioner and his two Deputy Commandants were looking at two different directions at the time of crisis. The achievements of any unit are assessed on the collective efforts in different fields of the unit by all members posted in the unit, whereas the ACR is written on an individual's performance. Therefore, the achievement of the unit cannot be equated with that of an individual's performance. The monthly bench mark of the report is an appraisal of activities undertaken by the unit in its functioning whereas the ACR contains opinion of Reporting Officer regarding the general work and conduct of an officer reported upon. These are two different spheres of grading and cannot be compared with each other. He further contends that the discrimination, which has been alleged by the petitioner qua other similarly situated that they have not been conveyed such adverse remarks, cannot be used as a ground for claiming benefit. No action of an employee, which could not be, in the given facts and circumstances, justified, made a basis for claiming a negative right. He contends that the jurisdiction of this Court, while exercising its powers under Article226 of the Constitution of India, is very restricted. The Court does not sit as an appellate authority. Judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly. The decision itself cannot be subjected to judicial review. In support of this contention, he relies upon a judgment of the Hon'ble Supreme Court in the case of Amrik Singh vs. Union of India and others, (2001) 10 SCC 424 and M.V.Thimmaiah and others vs. Union Public Service Commission and others, (2008)2 SCC 119. He, on this basis prays for dismissal of the writ petition as the same is devoid of any merit. CWP No. 10780 of 2008 8 I have heard the counsel for the parties and have gone through the records of the case. The original records were also called for and were submitted by the counsel for respondents No. 1 to 3. I have perused the same as well. There can be no dispute with regard to the contention of the counsel for the petitioner that the intent, purpose and object of writing the confidential report is primarily to give an opportunity to the official to remove deficiencies and to inculcate discipline, which would improve quality and excellence and efficiency in public service. For this, the official is required to be advised and made aware of the shortcomings, defects and deficiencies, if any, in the opinion of the reporting officer. The employee should be given an opportunity to improve and excel which would be in the public interest as his endeavour would be beneficial to the efficiency of administration. Before forming an opinion to be adverse, the reporting officer writing confidential report should share the information and confront the officer with the same. This amounts to an opportunity given to an officer to correct his shortcomings and improve himself. If despite that, the officer fails to correct his conduct or improve himself in performance of his duty, the reporting officer is obliged to record the same in his confidential report. This would be correct where such an observation is made on the assessment of the work and conduct but where an action or assessment on an act or incident or conduct is based on fact, which is duly supported by the related evidence, absence of prior opportunity to the officer to correct his conduct or improve himself would not be called for. In the present case, memorandum dated 26.07.2007 (Annexure P-3) is based upon the report of the LRP 'Radha', which reads CWP No. 10780 of 2008 9 as follows:- “ MEMORANDUM While going through the report of LRP “Radha” as well as remarks endorsed by Zonal IG thereon, it has been observed that some lapses have occurred on your part which could have been avoided with proper planning and fore-thought. 2. On analysis of the report, following points come to the fore:- (i) Planning and preparation of LRP was not up to the mark keeping in view the unexplored and difficult route. (ii) Failure to elect properly motivated, physically tough and mentally robust members. (iii) Staying at Nelong instead of being at Bn HQ to Co-ordinate. (iv) Lack of proper co-ordination and communication by the Unit Commandant. (v) Shirking responsibility and putting blame on the subordinate reflects poor leadership, ineffective command & control and lack of diligence. 3. You are therefore, warned to be more careful in future which planning, and executing the important operational assignments as any casual approach would have adverse impact on the morale as well as operational efficiency of the Force. Sd/- (V.K.Joshi) - Director General” CWP No. 10780 of 2008 10 The adverse remarks, as recorded in the ACR for the period 01.04.2006 to 31.03.2007 as communicated to the petitioner vide memorandum dated 27.08.2007 (P-2) read thus:- “___________________________________________________________ Knowledge of sphere of works I Operationally competent but needs I more attention in application of rules/ I regulations. _________________________ I_________________________________ Initiative I Needs more responsible & involved I attitude. __________________________I_________________________________ Willingness to accept I responsibility and take decision I Needs to be participative type leader I who leads from the front. __________________________I_________________________________ 2. In addition to above, the following advisory remark has also been recorded in your ACR:- “Has further capacity to improve” ” I have gone through the original records. These observations are based upon the records which point out the shortcomings of the petitioner. The representations submitted by the petitioner against this memorandum have been in detail dealt with, duly considered and rejected by the competent authority. The representations preferred by the petitioner against the adverse remarks for the period 01.04.2006 to 31.03.2007 have also been duly considered by the competent authority but have been found to be without any merit, which is justified. There can be no dispute with regard to the preposition as laid down by the Hon'ble Supreme Court in the cases of Sukhdeo and Yamuna Shanker Misra and another (supra), reliance whereon has been placed by the counsel for the petitioner which deals with the purpose and CWP No. 10780 of 2008 11 procedure to record the Confidential Report of the Government servant but keeping in view the facts and circumstances of the present case and the records, which have been produced, no interference in the adverse comments communicated to the petitioner vide memorandums dated 26.07.2007 and 27.08.2007 is called for, especially in the light of the restricted jurisdiction of this Court of judicial review. While exercising writ jurisdiction under Article 226 of the Constitution of India, the Court does not act as an appellate authority but has limited scope to interfere where the recorded ACR actuated with mala-fide or statutory provisions have not been followed. In the present case, the assessment of the petitioner has been made on an incident, which is based on facts duly supported by the related evidence where prior opportunity to the officer to correct his conduct or improve himself could not have been given. The observation of the assessing officer is fully justified and is not based on mere conjectures and surmises which would bring it within the power of this Court to exercise the judicial review. It would also not be out of way to mention here that through the present writ petition, challenge has been posed to the recommendations made by the Departmental Promotional Committee, where again the jurisdiction of the Court is restricted. The Hon'ble Supreme Court in the case of Union of India vs. Lt. Gen. Rajendra Singh Kadyan, (2000) 6 SCC 698, in para 29 has held as follows:- “29. xxx xxx xxx xxx xxx Prima facie, we cannot say, having gone through those records, that these notings are baseless. Critical analysis or appraisal of the file by the Court may neither be conducive to CWP No. 10780 of 2008 12 the interests of the officers concerned or for the morale of the entire force. May be one may emphasize one aspect rather than the other but in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we cannot substitute our view to that of the authorities. It is a well-known principle of administrative law that when relevant considerations have been taken note of and irreverent aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such. In that view of the matter, we think there is no justification for the High Court to have interfered with the order made by the Government.” The above observations of the Court in the light of the fact that the adverse remarks, as recorded in the case of the petitioner for the year 2006-07 which were based on the records, leave no scope for this Court to interfere with the recommendations of the Departmental Promotional Committee when this ACR falls within the period which was to be taken into consideration while assessing the suitability of the officials within the zone of consideration for promotion to the post of Additional Deputy Inspector General. The contention of the counsel for the petitioner that there has been discrimination while considering the case of the petitioner for CWP No. 10780 of 2008 13 recording adverse remarks against the petitioner and not taking similar action against some officers, namely, Sh. Sanjiv Raina and Sh. Nalin Parbhat, suffice it to say that the decision of the competent authority depends upon the facts and circumstances of the concerned case, which cannot be generalized, especially while dealing with the assessment of the officer, it cannot be said that wherever there is some casualty or injury to the jawan during LRP, adverse remarks had to be recorded in the Annual Confidential Report of the Commanding Officer or his Deputy Commandant, who is leader of the LRP. It has been alleged that Sh. Pawan Malik, Deputy Commandant, leader of LRP 'Radha' has been promoted to the rank of 2nd in Command despite the LRP having been taken as unsuccessful, would again be of no help to the petitioner as the explanation submitted by the concerned officer has been accepted by the competent authority. In any case, a Government employee does not have a negative right nor can he press the same as a ground for discrimination, especially when the assessment of the official has been made on the basis of the facts on record and supportive relevant evidence on record. An employee has to stand on his own feet and is responsible for his personal assessment and cannot blame his subordinates for his non-performance or inaction on his part. The lapses, which have been pointed out vide memorandum dated 26.07.2007 are personal to the petitioner and are not dependent on the act and conduct of his subordinate. Thus, no benefit, as has been strived to be achieved by the petitioner by pressing into service the ground of discrimination, can be granted to him. In view of the above, no ground for interference by this Court in the present case is made out for expunging the adverse remarks as CWP No. 10780 of 2008 14 recorded in the Annual Confidential Report for the year 2006-07 conveyed to the petitioner vide memorandum dated 27.08.2007 (Annexure P-2). It would not be out of way to mention here that the Annual Confidential Report for the year 2006-07, which assessed the petitioner as 'Average', is not under challenge in the present writ petition. Finding no merit in this petition, the same stands dismissed. ( AUGUSTINE GEORGE MASIH ) JUDGE October , 2010 pj