Swatanter Kumar, J. -
(1.) THE then Major P. Patnaik submitted a Statutory Complaint on 10th January, 2001 to the Central Government against the Confidential Reports recorded for the period 01st June, 1998 to 31st May, 1999, 01st June 1999 to 19th September, 1999 and BPR (Battle Performance Report) from 24th May, 1999 to 13th July, 1999 which was rejected by the competent authority vide its Order dated 30th April, 2002 stating that no element of bias/subjectivity or vindictiveness is discernible in these reports and hence none of these reports merit any interference. The correctness of this Order is questioned by the petitioner on the ground that the case of the petitioner was not considered in a just and a fair way. The remarks were motivated as a result of a personal bias of one Col S.K. Chakravorty, respondent No. 4 and are also in complete variance to regular reports recorded by the competent authority. In order to substantiate his arguments, the petitioner has relied upon the judgments in the cases of Gurdial Singh Fijji v. : 3SCR518 , Amar Kant Choudhary v. : 2SCR299 , Mahabir Prasad Santosh Kumar v. : 1SCR201 , U.P. Jal Nigam and Ors. v. : 1SCR1118 , Bishwanath Prasad Singh etc. v. : 2000(8)SCALE437 .
(2.) THE necessary facts are that the petitioner was commissioned as a Permanent Regular Commissioned Officer from the Indian Military Academy, Dehradun on 14th June, 1986. According to the petitioner, he served to the satisfaction of all concerned and in due course was promoted to the rank of Major. The petitioner further claims that he took part in military operation brasstacks - war situation with Pakistan, Operation Pawan in Jaffna, actual war with LTTE in Sri Lanka during the period October, 1986 to December, 1989. On 15th December, 1990, the petitioner sustained multiple injuries - Blunt injury in the abdomen and fracture Patella. A Court of Inquiry was conducted which declared that the injuries sustained by the petitioner were not due to the negligence on his part. According to the findings recorded by the Commanding Officer, Lt Col S.K. Bali, injury sustained by the petitioner was stated to be attributable to military service in peace area and the petitioner was admitted to the Military Hospital at Gwalior where he was operated upon and sent on sick leave after he was medically downgraded from A -1 to A -3. The petitioner was upgraded back to A -1 after improvement of his medical condition as examined in the Command Hospital, Chandimandir. Despite injuries, the petitioner took part in Operation RAKSHAK in Punjab in April, 1992 and received a letter of appreciation from the Commanding Officer, Col S.K. Bali on 29th June, 1992. Thereafter, the petitioner moved to J & K and was posted in high altitude area Karu, a field area in Indo -Pak border. There also the petitioner took part in Operation MEGHDOOT in Siachen Glacier during December 1992 to October, 1993. In recognition of his exemplary military service, the petitioner was transferred to the prestigious National defense Academy, Khadakvasla, Pune, as an Instructor Class 'C' to impart Specialized Training to the cadets -would be officers in the Army, Navy and Air Force. The petitioner was then selected in a competitive vacancy for defense Services Staff College, Wellington, Ooty in June, 1997 where after the petitioner was likely to be posted to his parent unit and he got a letter from Col S.K. Chakravorty on 7th December, 1997 stating that the petitioner should come to the unit only if he was willing to play the game as per his rules. Copy of this letter has been placed by the petitioner on the record of this case as Annexure 'E' to the Writ Petition. The petitioner claims to have received a letter dated 15th March, 1998 from one Major Raju Baijal that it may not be in his interest to go to the unit in view of the public criticism given by Col S.K. Chakravorty.
The petitioner received an appreciation letter from Col D.S. Jolly dated 27th April, 1999 for his role as Officer Commanding Advance party and then he took part in the Military Operation RAKSHAK in Kupwara in counter -insurgency operations with terrorists in J & K with an intention and zeal to serve the country. In spite of adverse report, the petitioner chose to take part in Operation VIJAY - war with Pakistan in Close Combat Range on or about 24th May, 1999. According to him, when the petitioner was returning from his post at about 17,000 ft. height, the petitioner struck at a boulder and fell down 300 -350 ft. and injured his left knee severely which had been operated upon and Patella removed. The petitioner was examined by a team of doctors and recommended to be referred by Captain K.S. Judge, Medical Officer, to Advance Dressing Station for opinion. Even another doctor Captain Akhilesh Rao had initially examined the petitioner and recommended that the petitioner be referred to Orthopedic Surgeon 92 Base Hospital for expert opinion. The petitioner has specifically averred in the Writ Petition that this medical document was tampered by cancelling/cutting the medical opinion of the Medical Officer, Captain Akhilesh Rao, at the behest of respondent No. 4. The petitioner received a shocking letter of revelation from doctor Captain K.S. Judge dated 2nd August 1999 indicating foul play and mal -intention of respondent No. 4 requiring the said Medical Officer to act contrary to the medical ethics and change the medical report given by him to the petitioner.
Despite such distinguished service career, the petitioner was faced with adverse remarks which were recorded by Col S.K. Chakravorty in regard to his war performance and the periods afore -indicated. These remarks were communicated to the petitioner somewhere in January, 2001. Aggrieved there from, the petitioner filed a Statutory Complaint to the Central Government. In the Complaint, the petitioner had raised various issues, and particularly in relation to his performance during the war periods, that his Commanding Officer had directed him not to lead the company but to look after other duties and also that the said Commanding Officer was annoyed and/or had a bias against the petitioner for the reason that he had raised specific objection with regard to deposit and utilization of the money to the extent of Rs. 1,13,000/ - which was recovered from the militant hide -out during the search operation VARNOU in October, 1998. According to him, the said money was neither declared nor shown in any Situation Report and as a result of this, Inquiry Commanding Officer had threatened him of dire consequences. This Complaint was rejected by the Government by the afore -said Orders.
(3.) SEPARATE counter -affidavits have been filed on behalf of respondent No. 1 -3 and 4 respectively. The stand of the respondent is that Army is a paramedical organization and Therefore super session is a common incident of service. Promotion in Army up to the rank of Major is of a time -scale where after they are through Selection Boards. Depending on the inputs of ACR, individual profile of the officer and its evaluation by the Selection Board, they are approved or found unfit for promotion by the Selection Boards. It is stated that ACR was regulated by SAO -3/S/89 which was later replaced by AO -45/2001. The entire assessment of an Officer in any ACR consists of assessments of various Reporting Officers whose assessments are independent of each other. The petitioner was considered as a fresh case of 1986 batch for promotion to the rank of Lt. Colonel in February 2002 but was not empanelled based on his overall profile and comparative merit as evaluated by the Selection Board. While relying upon the judgments of the Supreme Court in the cases of Union of India v. Lt. Gen RS Kadyan, 2000 AIR SCW 2692, Maj Gen IPS Dewan v. : 2SCR532 , AVM Chabbra, VSM v. : (1993)IILLJ658SC , the respondents contend that the selection being on merit and the petitioner having been found unfit for empanelment, the action of the respondents cannot be faulted with. With regard to challenge to the Confidential Report and Battle Performance Report, the claims of the petitioner is again disputed on the fact that the reports were initiated in accordance with rules and referring to his actual performance, the remarks were recorded by the concerned authorities. The performance of the petitioner during Operation VIJAY was unsatisfactory and thus the remarks recorded by the concerned authorities are proper and the Statutory Complaint of the petitioner was rightly rejected by the Government vide its Order dated 30th April, 2002. In regard to recovery of money, it is stated that an amount of Rs. 1,13,000/ - was recovered from the militant hide -out on 21st September, 1998 and was deposited with the Headquarters 11 Sector, i.e., the next higher Headquarters, based on specific directions given by the General -Officer -Commanding 8 Mountain Division. No policy or guidelines in regard to initiation and completion of the Confidential Report was violated.
In the counter -affidavit filed by the respondent No. 4, somewhat similar stand was taken. He has stated that the petitioner sustained the injury on 15th January, 1990 and was upgraded to Medical Category Shape 'I', i.e., fit for all medical duties on 3rd April, 1992 and his performance in the years 1998 and 1999 is in no way connected with war or exigencies of service. According to this respondent the petitioner was unable to withstand the stress and strain of war and abandoned his Company when his Company needed him the most. It is stated that Captain Akhilesh Rao was an officer of the Advance Dressing Station located at Drass and the petitioner neither knew him nor had even met him. He was wrongly stated to be under the command of respondent No. 4 and the allegation of influence is stated to be baseless. Annexure 'K', the letter written by Captain K.S. Judge to the petitioner is stated to be an after -thought as it does not find any mention in the non -Statutory Complaint dated 10th February, 2000 and Statutory Complaint dated 10th January, 2001. Denying the allegation of bias and arbitrariness, the said respondent prays for dismissal of the Writ Petition. The Order dated 30th April, 2002, which has been impugned in the present Writ Petition, reads as under:
1. Major P Patnaik (IC -43708 N), Inf has submitted a Statutory Complaint, dated 10th January 2001, to the Central Government against CRs 6/98 - 5/99, 6/99 -9/99 and BPR 5/99 -7/99. The officer has alleged that his CO, Lt Col S.K. Chakrovorty developed disliking for him and started harassing him. He did not give any reasons for the disliking allegedly developed by his IO (CO), but has claimed that the latter had threatened to ruin his career. He gave details of the military campaigns undertook by him thus far and said that in view of an injury sustained in the course of one such campaigns his left knee got weakened, which further aggravated in cold climates during 'Op Vijay'. He has also nursed a grouse against his CO for what he called "deliberately keeping him out of battle despite volunteering to lead the attack". The complainant has also doubted the motive behind initiation of the BPR on 30th October, 1999. He believed that it should have been initiated after 13th July and saw "malafide intention" on the part of the IO behind the delay. The officer also felt that, he was poorly graded by the IO in CR 6/98 -5/99, 6/99 -9/99 and BPR 5/99 -7/99 due to bias, subjectivity and vindictiveness. He has also leveled allegations against the IO, for not accounting the money discovered from a militant hideout. Finally, he has requested for the following relief:
(i) Complete assessment of IO and RO in CR 6/98 -5/99 and BPR 5/99 -7/99 may be set aside on grounds of bias, vindictiveness and subjectivity.
(ii) Complete assessment of the IO in CR 6/99 -9/99 may be set aside on grounds of bias, vindictiveness and subjectivity.
2. The Statutory Complaint of the officer has been examined in the light of his career profile, relevant records, and analysis/recommendations of AHQ. It is seen that the impugned CRs 6/98 -5/99, 6/99 -9/99 and BPR 5/99 -7/99 are objective, well corroborated and performance -based. No element of bias/subjectivity or vindictiveness is discernible in these reports and hence, none of these reports merit any interference.
3. Therefore, the Central Government rejects the Statutory Complaint, dated 10th January, 2001, submitted by Major P. Patnaik (IC -43708), Inf, against CRs 6/98 -5/99, 6/99 -9/99 and BPR 5/99 -7/99.
By order and in the name of the President
Sd/ -(GURDIAL SINGH)Deputy Secretary to the Government of India
The Chief of the Army Staff. (in quadruplicate): - For communication to the officer through the staff channels with the necessary administrative instructions and for further action in accordance with the existing procedure.;