Decided on July 18,2007

UOI Respondents


- (1.) The petitioner was empaneled for promotion to the rank of Acting Colonel in terms of a communication dated 28th February, 2003, a copy whereof has been annexed as Annexure P2 to the writ petition. The communication made the empanelment subject to two conditions viz; (a) his performance must continue to remain satisfactory and (b) he must continue to remain in an acceptable medical classification. The communication may be extracted for ready reference :- IC41581 Lt. Col. Arvind Yadav, Mech Inf GSO 1(OPS) HQ 25 INF DIV C/O 56 APO Result of No. 3 Selection Board : Feb 2003 1.You were considered by the above Selection Board for promotion to the rank of Acting A/Col as a FRESH (D/W) case of 1983 Batch. 2.You have been empanelled for promotion to the rank of Acting A/Col. 3.You will be promoted as per the approved sequence. The promotion will be subject to your continued satisfactory performance and remaining in acceptable medical classification. (D. D. Kapoor) Brig Dy MS(B) For Military Secretary
(2.) Shortly after his empanelment, the petitioner was given what is described as a local rank of Full Colonel and the command of 12, Mechanised Infantory Battalion. While the petitioner was still in command, a Court of Inquiry was held into certain allegations made in a newspaper report suggesting improper and illegal disposal of Coal Dust from the Military Station at Ratnuchak, Jammu. The Court of Inquiry eventually culminated in an order awarding Severe Displeasure (Recordable) as a punishment to the petitioner. The validity of the said punishment order is not under challenge before us. It is also not in dispute that the punishment awarded to the petitioner would constitute a drop in his performance. Since the petitioner's continuance in the list of empaneled officers was subject to his performance remaining satisfactory and since there was a drop in his performance, his case was placed before No.3 Selection Board for consideration for the second time in September, 2006. This happened pursuant to a decision taken by the Military Secretary by which the drop in performance clause incorporated in the empanelment order of the petitioner was invoked and the petitioner held disentitled to continue on the panel of approved officers for promotion to the higher rank. Aggrieved, the petitioner has filed the present writ petition, in which he has prayed for a Certiorari quashing the results of the Selection Board held in September, 2006 insofar as he is concerned.
(3.) Appearing for the petitioner, Major Ramesh argued that the drop in performance of the petitioner in the instant case was not sufficient to disentitle him to the benefit of his earlier empanelment. He submitted that the drop in performance of the petitioner was relevant till such time, the petitioner picked up the next rank regardless whether the said rank was allowed to him as local rank or on acting basis. Once the petitioner had, according to Major Ramesh, assumed the rank of a Full Colonel and started working as a Commanding Officer of the Battalion, any drop in his performance became academic and irrelevant to his continuance on the panel of officers approved for promotion.;

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