MAJOR PRITHVIRAJ PATNAIK Vs. UNION OF INDIA

JUDGEMENT

(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. : [1979]3SCR518 , Amar Kant Choudhary v. : [1984]2SCR299 , Mahabir Prasad Santosh Kumar v. : [1971]1SCR201 , U.P. Jal Nigam and Ors. v. : [1996]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.

(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. : [1995]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.