- (1.) COL . D. S. Sandhawalia, the Petitioner herein, seeks directions from this Court against the Respondents who are Union of India through the Ministry of defence, General Officer Commanding, H Qrs Western Command and Lt. General Y. S. Tomar, Adjutant General, Army H Qrs New Delhi, to promote him to the rank of Brigadier with effect from May 1985 or the date when Col. Shivpuri (not impleaded as a party) who was junior to the Petitioner, was promoted.
(2.) THE claim of the Petitioner is directly based on letter dated October 20, 1983, Annexure P -l, whereby he was informed by the Army Headquarters that he had been approved for promotion to the acting rank of Brigadier in his turn subject to continued satisfactory performance and medical fitness. On September 29, 1987, - - vide letter Annexure P -2, he was informed that after the letter of October 20, 1983, afore -referred to, his performance had not remained satisfactory and his case for promotion to the acting rank of Brigadier was specially reviewed by the Selection Board held in September 1984, with the result that he had not been placed in an acceptable grade. He was also informed that his selection for promotion to the rank of Brigadier in the general cadre be treated as cancelled. Then a letter dated October 8, 1987, Annexure P -3, was sent to the Petitioner as information, and in the context of the performance of the Petitioner having not remained satisfactory, it was clarified that there is a difference between adverse remarks/assessment which are to be communicated as per the existing rules and the term 'unsatisfactory service' related to the standard required for promotion. It necessarily did not mean adverse remarks or very low figurative assessment. Annexures P -2 and P -3 are confidential documents and yet have been placed on record. It is the claim of the Petitioner that as deducible from the letter of professional counselling, Annexure P -4 dated October 10 1983, he was given an adverse report which was never communicated to him and this had led to the cancellation of selection for promotion. His statutory complaint (again confidential) Annexure P -5, was dismissed, - -vide order of the Central Government on October 7, 1988. His nonstatutory complaint (again confidential) Annexure P -6, was dismissed on September 20, 1988, by the Army Authorities. These have given rise to this petition,
(3.) HAVING heard Mr. J. L. Gupta, learned Counsel for the Petitioner, we regret our inability to interfere in a matter like this. His main claim is on the basis of Articles 14 and 16 of the constitution, more emphatically when, according to him, as yet no law has been passed by the Parliament so as to restrict or abrogate fundamental rights conferred in Part -Ill of the Constitution in their application to the members of the Armed Forces. The spirit of the Constitution is that if the Parliament so chooses it can, for the purposes of Armed Forces, restrict or abrogate any of the fundamental rights so as to ensure the proper discharge of the duties of the Armed Forces and the maintenance of discipline amongst them. He has referred to Romesh Chander v. G.O.C. Northern Command and Ors., 1977 (2) SLR 865, a decision of a Single Bench of the Jammu and Kashmir High Court, which Mr. Gupta concedes, was upset by a Letters Patent Bench of that Court, though the judgment of that case is not available to us. He, however, says that this case was followed in Lt. Colonel (Now Major) Surjit Singh v. G.O.C. 33 Mechanised Division and Ors., 1988 (3) SLR 439, holding that the protection of Article 16 of the Constitution is available to the members of the Armed Forces. Another case cited was Major K.D. Gupta v. Union of India and Anr. : AIR 1983 S.C. 1122, which led to Lt. Colonel K.D. Gupta v. Union of India and Ors. : AIR 1988 S.C. 1178, and finally a contempt petition in Colonel K.D. Gupta v. Union of India and Ors., 1989 II SVLR. (L) 14. All these cases are cases on their own facts, but nowhere has it been ruled that in all events must the High Court enter the army thicket and intermeddle with their affairs. It is ex facie patent from the confidential letters Annexures P -2 and P -3, which regretfully have been made public, that the employment of the term 'unsatisfactory service' is not as if writing any adverse remarks concerning an officer but is rather relating to a standard required for promotion to the higher rank of service. Nothing apparently is wrong with such view. Besides in the' disciplinary force of the Army, we express our reluctance to make inroads under Article 226 of the Constitution. Our view gets indirect support from Lt. Colonel K. D. Gupta's case (supra) where their Lordships have observed that the said case is not to be taken as a precedent and the Court would like the discipline of the Defence Department to be maintained by itself in the interest of nation.;