AIR VICE MARSHAL S.L. CHHABRA VSM (RETD.) A

UNION OF INDIA AND ANR.

MAY 11, 1993

[KULDIP SINGH AND N.P. SINGH, JJ.] B

Selection by Selection Board for promotion to rank of Air Vice Marshal-Adverse remarks in Appraisal report for 1986 communicated in 1988, and expunged in 1989-Whether appellam emitted to promotion since selection in 1987 and moderation of appraisal report for 1987. c

Appellant had been cleared for all selection grade promotions up to rank of Air Commodore. Selection Board for promotions to rank of Air Vice Marshal considered the appellant in 1987, but did not recommend him for promotion as only one appraisal report was available. The Board decided that appellants performance be watched at least for a year more. Appellant not D selected by Selection Board in 1988 also, but no. reasons on record as to wh.y he was not recommended for promotion. Adverse remarks in appraisal report for 1986, were communicated to the Appellant in 1988 and on representation by him, adverse remarks were expunged in 1989. Appellant cleared for promotion by the Selection Board in 1989. Appellant filed writ petition in High Court seeking directions for promotion since selection in 1987 E and also moderation of appaisal report for 1987 and consequential extension of service for one year w.e.f. the date of his retirement i.e. 31.10.1990. The High Court held that appellant was entitled to promotion to rank of Air Vice Marshal by Selection Board in 1988 with all consequential benefits and directed the respondents to fix appropriate date of promotion on bsis of the selection by the Selection Board in 1988.

On appeals, filed by special leave petitions, by both parties, this Court,

HELD : That the Selection Board while considering suitability of an officer for promotion to a higher post takes into consideration sel'eral factors G ;,.. and its decision is not based solel)' on appraisal report of Controlling Officer.

As the Selection Bard had decide in 1987 that performance of the appellant be watched for at least one year more, it was neither possible for the High Court nor this Court to act as a court of appeal against the decision of the Selection Board. Public interest should be the primary consideration of all selection Boards constituted for selecting candidates for promotion to higher H 669

A post. ... The court cannot encroach over this power by substituting its own view and opinion. There is no scope to interfere with the decision of the selection board for 1987. (672-F, 673-B)

The appellant would ha\•e been promoted.to the higher post in 1988, in the normal course. It appeared that he was not promoted because of the adverse remarks in 1986, No other explanation was furnished by the respondents. The Court directed that the appellant be reconsidered for promotion with reference to the ear 1988, as the adverse remarks had been expunged.

(673-E-F)

c This Court, further held that neither the High Court nor this Court can moderate the appraisal and grading of the appellant for a particular year.

While exercising the power ofjudicial review, Court shall not venture to assess and appraise the merit or the grading of an officer. This Court did not give any direction for moderation of appraisal report of 1987, and concluded thatthe appellate was not entitlCd to extension of service for one year, claimed D by him. (675-A)

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2811-2812 of 1993.

E From the Judgment and Order dated 16.11.1990 of the Delhi Hig~ Coun in

C.W.No. 1711of1990.

S.L. Chhabra-in-person.

Altaf Ahmed, Addi. Solicitor General, K. Lahiri, Mrs. Sushma Suri, T.C.

Sharma, C.V.S. Rao and S.N. Terdol for the Respondents.

The Judgment of the Coun was delivered by

N.P. SINGH, J. Leave granted.

The appellant, while holding the post of Air Vice Marshal, filed a writ application, questioning the validity of the decision of the Union oflndia, refusing to moderate the Appraisal Report of 1987; to promote the appellant to the rank of Air Vice.Marshal from a prior date, and to grant extnsion of the service of the appellant for one year, in the rank of Air Vice Marshal.

There is no dispute that the case of the appellant had been cleared for all A selection grade promotions up to the rank of Air Commodore. A meeting of the Selection Board, to consider the cases for promotion to the rank of Air Vice Marshal, was held in February, 1987. In that meeting, the case of the appellant was also considered, but his name was not recommended for promotion, on the ground that there was only one report available by that time. A decision WaJ! taken by the Selection Board to watch the performance of the appellant for at least a year more, to assess his potentiality and suitability, for discharging the higher responsibility attached to the rank of Air Vice Marshal. He was also not found fit for promotion by the Selection Board of 1988.

By a letter dated 22nd February, 1988, the appellant was informed of the C adverse remarks made in his Appraisal Report for the year 1986. The following remarks were communicated to him :-

"One gets the impression that he is constantly trying to get round his superiors, by sweet talk/visits/gifts, to get what he wants-by way of good reports, postings, courses, decorations etc." D

The app!!llant made statutory complaints to different authorities. On basis of the representation made, the aforesaid remarks were expunged sometime in

anuary/February. 1989. His request for moderation of the Appraisal Report for 1987 wa,<;, however, not accepted. As the adverse remarks aforesaid made in his E Appraisal Report of 1986 were expunged, he was cleared for promotion by Selection Board of 1989.

According to the appellant, because of the aforesaid adverse remarks made in his Appraisal Report of 1986, he was denied promotion to the post of Air Vice Marshal in the years 1987 and 1988. As such, when the said adverse remarks were F expunged in the year 1989, the question of his promotion to the post of Air Vice Marshal should have been considered afresh with reference to the year 1987. It was . asserted that the adverse remarks, given in his Appraisal Report of 1986, did create a bias against the appellant. It was pointed out that although the adverse remarks aforesaid had not been communicated to the appellant. still they had been placed before the Selection Board in the year 1987.

According to the respondents, the aforesaid remarks were never treated as adverse and because of that it was not considered necessary to communicate them to the appellant, before they were placed before the Selection Board. The learned

Additional Solitor General, however, could not give any explanation as to why those remarks were later communicated to the appellant for his comment and explanation. Apart from that, it is an admitted position that later, those remarks have been expunged. We fail to appreciate as to how remarks in the Appraisal Report, saying.that the officer concerned "is constantly trying to get round his superiors, by sweet talk/visits/gifts, to get what he wants-by way of good reports, postings, courses, decorations etc.", could be considered to be not adverse remarks, especially in context with Indian Air Force, where an officer is expected to be straightforward, upright, conscious of the fact that his recognition and promotion are dependent, only on the merit and the service, he has.rendered to the nation.

The High Court has come to the conclusion that in view of the remarks, having been expunged in the year 1989, the case of the appellant has to be reconsidered. It has been held, that the appellant was entitled to be promoted, to the rank of Air Vice Marshal by the Selection Board of 1988, with all consequential benefits. A direction has been given to the respondents to fix the appropriate date D of the promotion of the appellant on basis of his selection by the Selection Board of 1988.

But, according to the appellant, a direction should have been given to promote the appellant to the rank or Air Vice Marshal by the Selection Board of 1987 instead of 1988, when it has been established that the adverse remarks, made in the Appraisal Report of the year 1986; were placed before the Selection Board of 1987 and those adverse remarks. have been later expunged.

It is well-known that a Selection Board, while considering the suitability of an officer for promotion to a higher post or rank, takes into consideration several F factors and it i5 not solely based on the Appraisal Report of the controlling officer.

The learned Additional Solicitor General produced the proceedings of the Selection Board of.1987 and pointed out that the Selection Board had postponed the promotion of the appellant on the ground, that only one report was available by that time and as such decision was taken to watch the performance of the appellant at least for a year more, to assess his potentiality and suitability for discharging the G higher responsibility attached to the rank of Air Vice Marshal. The aforesaid fact has been mentioned in the proceedings of the Selection Board of the year 1987. In such a situation, it was neither possible for the High Court, nor is possible for this Court to act as a court of appeal against the decision of the Selection Board, which has been vested with the power of selection of an officer for being promoted to the rank of Air Vice Marshal. No oblique motive has been suggested on behalf of the H

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, .. AIR VICE MARSHAL v. U.0.1. 673 . . , : ...... _j .,. . appellant against any of the members of the Selection Board and there is no reason A or occa5ion for us to infer such motive on the part of the members of the Selection

->-

' - . ' \ Board for denying the promotion to the appellant with reference to the year 1987.

Public interest should be the primary consideration of all Selection Boards, constituted for selecting candidates, for promotion to the higher posts, but it is all the more important in respectof Selection Boards, meant for selecting officers for higher pcisiSJiithe Indian Air Force. The couit cannot encroach over this power, by substituting its.own view arid opinion.-Ai:conling to us, there is no scope to interfere with the decision of the Selection Board of 1987, merely on the grqund that adverse remarks, in the Appraisal Repon of 1986, which were placed before the Selection Board in the year 1987, were lter expunged.

c '. / So far the direction to fix the appropriate date of promotion of the appellant With ref.,,;, nce to uie selection Board of 1988 is concerned, the learned Additional Solicitor General took a stand that only a direction to' consider the case of the appellant for promotion with effect from 1 ?88 should have been given, instead of directing the respondents to. fiXthe.appropriate date of his promotion on basis of selection being lllllde by the Selection Board of 1988. The High Coun bas pointed D out. that re.Son given fornot promoting the appellant in uie year 1987 w~ that there was only one Appraisal Repon of the appellani in February, 1987, but nor reason has been furnished for ignoring him for the yeai 1988.As per the guidelines for promotion, the appellant had minimum of three '7's in the preceding five years and two Ts in the preceding three years. Jn noini3I course he should have been promoted ill the year 1988, in view of the {uidelines framed by respondents E themselves. ltappears. he was ignored for promotion_ in the year.1988, because of the adverse remarks in the Appraisal Repon of the year 1986.No other explanation - bas been furnished on behalf of the resliondents. Accordingly, we direct the . respondents to reconsider uie case of the appellant for promotion to the post of Air Vice Marshal with reference to the year 1988, i!' view of the fact that adverse F remarks aforesaid have been expunged in the year 1989. , .

The question as to whether the appellant was entitle4 for one year extension w.e.f. the date of his retirement i.e. 31.10.90. has to be ei<amined with reference to the criteria laid down for the same. The age of retiremeritfixed for the Air Vice Marshal is 55 years. The guidelines for extension of service, say in °clear and G unambiguous terms that extension will not be granted automatically but will be subject to fulfilling the requisite conditions, to be de!er\)lined separately by the . Ministry of Defence in consultation with Ministry of finance (Defence) and Air Headquaners. On the reli:vant date the criteria'fixed for considering the extension of serVice btiyond the rearemeni'age was:- . . .

"(a) The Officer should be medically fit for the rank in which extension in service is granted.

(b) The performance of officer in the rank should be of a sufficiently high order, as laid down.

(c) The retention of the officer in service should not seriously block promotion of deserving junior officers. ·

(d) ................... .

2. It has also been decided that the following gradings should be adopted for the grant of extension of service in various ranks :

(a) For Group Captains ..... '. .....

(b) For Air Commodores .......... .

(c) For Air Vice Marshals. During the last 5 years, there should be at least 3 gradings of •7• and no grading below '6'.

In addition to the numerical gradings. the pen picture of the officers, i.e. IO, RO and SRO's remarks will also be taken into account."

On behalf of the respandents, it was pointedouttbatitis an admitted pasltion, that appellant did not have the gradings. which are necessary for extension of F service, During the last five years not only he should have at least three gradings of7' but no grading below '6' (emphasis supplied). Our attention was drawn that his ~--ading for the year 1987 was '5.3', as such below '6'. From the records, it appears that numerical gradings ofthe appellant from 1983 upto 1988 were as follows:-

G 1983 7 1984 7.4 1985 7.5 1986 7 1987 5.3 1988 7

The appellant, who appeared in person, dicl. not contest the stand of the ·

reondents that because of his getting '5.3' in the year 1987. no extension could H have been given to him. in view of the criteria fixed for consideration ,),. the

extension, to be given to Air Vice Marshal, after his retifement. But according to the appellant, the High Court should have and now this Court can moderate the grading forthe year 1987, in view of the factthat adverse remarks forthe year 1986, in view have been expunged. According to us, neither the High Court not this Court can moderate, the appraisal and the grading of the appellant. for a particular year. While exercising the power of judicial review, a Court shall not venture to assess and appraise the merit or the grading of an officer. If the Appraisal Report of the year 1987 giving the appellant '5.3' stands, then according to the criteria fixed, the case of the appellant could not have been considered for extension.

The appellant fairly conceded that unless an extension for a year is granted to him, he could not have been considered for the post of Air Marshal, because no post of Air Marshal was avrulable till 31.10.90. when the appellant retired.

Accordingly, taking all facts and circ_umstances into consideration, we direct the respondents to consider the case of the appellant for promotion to the post of Air Vice Marshal with reference to the year 1988, ignoring the adverse remarks which have already been expunged. Any such decision should be taken within four months from the cate of this judgment. The appeals filed on behalf of the appellant as well as Union of lm1ia are disposed of in terms of the order passed above.

I.S.G.

Appeal disposed of.