Decided on December 31,1993

Rajbir Singh Khanna (Col ) Appellant
UNION OF INDIA Respondents


- (1.)THE petitioner was promoted to the acting rank of Brigadier in the general category. His promotion has been withheld on the ground of his alleged Drop in Performance . He feels aggrieved and has filed this petition seeking direction to the respondents to give him the benefit of this promotion and prays for quashment of all proceedings taken against him.
(2.)THE facts are chequered and complicated and are surrounded by interplay of two many, rules and instructions but all that would have to be examined to appreciate the rival contentions. The petitionerâ„¢s service profile indicates that he was commissioned in the army on 9.2.1964. He is a post -graduate of the Defence Services Staff College and was awarded PSC  in 1975. He held a number of staff appointments and also had a stint in Indian Embassy at Nepal from May 1983 to June 1986. He was decorated with VSM  for his good performance abroad. He was engaged in operation in the Indo -Pak war of 1971 and was also assigned missions against LTTE in Sri Lanka. He was posted in 26 Inf Div till June 1989 when he was shifted to HQ 61 Inf Bde then located in Sri Lanka and placed as its Deputy Commander.
(3.)THE petitioner asserts that on suspension of active operations against LTTE in Sept. 1989, he found certain irregularities in the sale of brigade regiment and officers mess assets which pointed towards the involvement of respondent No.3 Brig, Jaspal Singh and submitted a complaint to the Military Secretary (MS, for short hereafter) for redress. He also claims to have held discussions with the said Brigadier in Oct/Nov 1989 but without any result. This, according to him, turned Brig. Jaspal Singh Inimical towards him and when 61 Inf Bde de -inducted and settled down in Ranchi, respondent No.3 rejoined there on 15.1.1990 and the petitioner proceeded on leave to his home station, Jammu, from 17 Jan. to 28 Feb., 1990. The petitioner further submits that meanwhile he was informed about the approval of his promotion to the acting rank of brigadier on 23.2.1990 and was placed at S.No.32 in the list of selected candidates and was tipped to replace Brig. Jaspal Singh who had completed his tenure as Commander 61 Inf Bde. Fearing his personal implication in the irregularities pointed out by the petitioner said Brigadier pre -empted with making false frivolous allegations against him to thwart his promotion. He accordingly convened three courts of inquiry (COI, for short hereafter) on 21.1.1990, 7.2.1990 and 9.2.1990 at the back of the petitioner when he was on leave. The first two Cols were asked to inquire into the circumstances in which two VCPs were sold in Nov 1989 and the 3rd COI was to inquire into the circumstances under which 5 other ranks were detailed for duty to Jammu. Respondent No.3 while recording his opinion on three COIâ„¢s found them inconclusive and directed that the evidence collected be made available to the petitioner and presented before a Staff Court of inquiry in case it was convened. At the same time he issued a warning letter on 6.2.1990 to petitioner pointing out certain short comings and informing him that he would be put on adverse report  without being granted 60 daysâ„¢ time to improve his performance which stood  waived off by the competent authority. The petitioner relied to this on 5.3.1990 rebutting all the allegations against him culminating in the letter dated 8.3.1990 issued by respondent No.3 absolving him of all but two allegations, administering him performance counseling  and extending warning for adverse report to a full period of 60 days in terms of para 80 (D) of special Army Order (SAO) No.3/S/89 with effect from 19.2.1990. But all the same, he was placed on "adverse report" on 14.3.1990, by and large, on the same allegations which formed the subject matter of three COFS referred to above.
As a sequel to this petitioner was denied the rank of brigadier by MS Branch in or about early -April 1990. This was followed by the fourth COI ordered against him by the GOC HQ 23 Inf Div on 17.4.1990 which was headed by a brigadier. The court returned the opinion on 27.4.1990 absolving the petitioner of all charges except the two which related to: (a) overdrawal of Sri Lankan currency, and (b) sending other rank on temporary duty to home station (Jammu), which was considered by the GOC 23 Inf Divn. who directed disciplinary action against the petitioner by his order dated 3.5.1990. The petitioner, was thereafter attached to Chief Engineer, Calcutta Zone vide order dated 11.7.1990 in terms of Army Instruction 255/62. A tentative charge sheet was prepared against him which contained 7 charges including the one that he had availed of excess leave while posted in Jammu in 1989. Pursuant thereto proceedings were conducted against him under Army Rule 22. This led to the recording of summary of evidence against him and upon which on 14.2.1991 commanding office (CE) Calcutta, found him guilty of offence under sections 45 & 63 of the Army Act and recommended his trial by the General Court Martial (GCM). The GOC, however, took a. different stand and by his order dated 28.4.1991 absolved him of all charges except 4th & 7th charges and recommended only administrative action against him. The matter was thereafter referred to the Deputy Judge Advocate - General (DJAG) Eastern Command who recommended disciplinary action against the petitioner. The GOC -in -C, however, opined against disciplinary action against him but recommended initiation of his termination from service. This was turned down by the chief of Army Staff (COAS) who directed convening of court Martial against him vide order dated 18.11.1991. Meanwhile he was ordered to be posted at Army Headquarters, New Delhi, vide order No.380289/MS/IB dated 25.10/1991 and when this order was not implemented, he filed the present writ petition.

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