H L SETHI (LT COL ) Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER seeks the quashing of the order of commendation of the dis -approval of the Chief of the Army Staff and the punishment of censure. He has also prayed for quashing the order of superannuation by which he was superannuated on 30 -1 -1980 on the grounds that the cancellation of his approval for promotion had been made without issuance of any show cause notice or asking for an explanation, the awarding of severe displeasure based on the report of the Chief of the Army Staff was the result of one sided inquiry in which the petitioner was not associated or given any show cause notice, his superannuation was against rules and usual procedure and practice in respect of the retirement of officers which was effected despite the fact that the writ petition in respect of quashing of the order of severe displeasure was pending in this court, the superannuation had been effected by singling out the petitioner during the past long course without any cause or reason, the petitioner was discriminated while others similarly situated and circumstances had been superannuated at the age of 55 years, the superannuation of the petitioner was the result of his not having been cleared for promotion as full colonel to which he was entitled, the action was motivated by malafides, the punishment of severe displeasure was based upon no material and the order was passed against the principles of natural justice, it was imperative for the respondents to have the case of the petitioner examined denovo and a fresh after the adverse remarks made in his ACRs for the year 1977 -78 had been expunged in as much as the same is allowed to be the sole criteria under which the decision was taken to superannuate him and the petitioner being in acceptable medical category and having efficiency as contemplated in the Army order of 5/2/77 he was entitled to continue in service till the age of 55 years as other officers similarly situated had been continued.

(2.) THE facts giving rise to the filing of the petition are that the petitioner was originally commissioned in the Army in the year 1950. By virtue of letter dated 30th Oct 1971 and on the basis of suitability, efficiency and performance allegedly adjudged from the ACRs, he was placed on the approved panel for promotion to the rank of acting colonel. He sustained injuries in a Helicopter crash while performing duties as G.S.O.I (Int.) and (OPs) HWs 8 Mountain Division. He was admitted in the army hospital Delhi Cantonement on 18 -7 -1969 for operation which was performed on 1 -8 -1969. On 5 -10 -1969 the petitioner was placed in low medical category CEE temporarily for three months and discharged from the hospital. During the hospitalisation the petitioner is alleged to have received a letter dated 11 -9 -1969 from Military Training Directorate addressed to the Director School of Foreign Languages Delhi informing him that he alongwith another officer has been directed to report to him from 15 -9 -1969 for intensive training in Bhasa Indonesia on a special course. Deviating from the normal procedure the petitioner was permitted to attend the school where he was visited by the then Field -Martial General on a staff college course. The medical recategorising Board was held on 24 -12 -1969 and the petitioner was placed in Medical category E -I for a period of six months. On the termination of his staff college course in March, 1971 the petitioner was posted to Military Attache to Indonesia and acredited to Phillpines vide HQ M.S.O. Branch letter No. 33400/4/II/MS dated 20 -1 -1971. The petitioners claims that his performance was excellent during that period and he was placed II on the merit list out of total 160 students including foreign students. As a Military Attache in Indonesia, the petitioner earned ACRs. He claims to have received commendation from the Army authorities of Indonesia and Phillpines and was awarded Vishist Seva Medal in 1974 for the work with HQ 8 Mountain Division. It is further alleged that on account of his hardship and dedication to duty, the petitioner was approved for promotion to a colonel and was graded well above average. On return to India, the petitioner was placed in Medical category Shape -I as a result of medical Board held for promotion on 3 -6 -1974. During this period the Chief of the Army Staff is alleged to have ordered court of inquiry covering his No. 3334/2/A -l dated 27 -6 -19/4 which proposed to investigate the circumstances under which the petitioner proceeded to Indonesia in March, 1970 despite his having been placed in Medical Category CEE temporarily for three months. It is further alleged that on account of the inquiry held at his back, he was awarded severe displeasure by the Chief of the Army Staff on 20 -3 -1975 and he was posted as General Staff Officer Grade I (Intelligence) HQs 15 Corps. The petitioner was informed about the displeasure on 6 -6 -1975 and his selection for promotion to the rank of acting coloney vide letter dated 13 -10 -1971 was cancelled reiterating that the petitioners performance had not been satisfactory after the issue of the letter dated 30th Oct. 1971. The statutory appeal filed by the petitioner was rejected and the order of reduction was communicated to him on 7 -1 -1977. In the year 1977, the petitioner had been graded for promotion to full colonel with the result that he received a letter from army authorities HQs However vide letter dated : 5 -4 -1977 the petitioner was declared unfit for promotion by the Selection Board. It is submitted that the cancellation of approved promotion and the subsequent awarding of severe displeasure in March, 1975 was unjustified and uncalled for. It is alleged that severe displeasure was not a punishment either under the Army Act or the Rules made thereunder and is claimed to be customary note which is not governed by any regulation. Alternatively it is alleged if displeasure is equated with censure then the authority awarding such punishment was under an obligation to obtain written explanation of the Officer concerned which is clear from letter No. 32708/PSI dated 5 -10 -1979, a copy of which is attached with the petition as annexureD -1. The order of awarding severe displeasure to the petitioner is alleged to be against the principles of natural justice and the provisions of Army Rules. On the petitioners assignment to Indonesia he was interviewed by the Chief of the Army Staff in the office Army Headquarters, who was fully cognizant with his physical and mental condition and while at the time of interview the petitioner was walking with subordinate supporting stick and his leg was also bandaged which according to him implied that inspite of his physical state, Chief pf the Army Staff concurred to his assignment in, Indonesia. The petitioner was superannuated at the age of 52 years on 31 -1 -1980, whereas he was entitled to be retained in the service upto the age of 55 years had he been promoted as full colonel. It is further alleged that removal of his name from the panel of promotion as full colonel was the basis of severe punishment (censure). It is alleged that his superannuation was the result of the petitioner having not been promoted as full colonel to which he claims to be entitled on account of the malafides against him in view of the censure passed by the Chief of the Army Staff. It is alleged that he was not continued in service upto the age of 55 years on account of censure by the Chief of the Army Staff and on account of adverse remarks by Lt. Gen. A. N. Mathur in his confidential report for the year 1977 -78. The adverse remarks made against the report of the petitioner by A. N. Mathur in his ACRs for the year 1977 -78 could also be not taken into consideration by the authorities before arriving at the conclusion at the relevant army order as to whether he should be continued upto the age of 55 years or not. It is alleged that the aforesaid remarks were without any basis and the result of the whim and caprice of Lt. General A. N. Mathur. The petitioner filed statutory complaint against the adverse remarks made by Lt. Gen. A. N. Mathur for the year 1977 -78 which were directed to be expunged and communicated to him vide letter of the Station HQ Delhi bearing No. 179/2/R/Estt dated 20th August, 1979. It is further submitted that the Board constituted by the respondents to decide as to whether the petitioner -is to continue in service upto the age of 55 years held its deliberations at a time when the adverse remarks made by Lt. Gen. A. N. Mathur were continued in his file and till then had not been expunged. The Board is alleged to have influenced by the said adverse remarks in the ACRs for the year 1977 -78 to come to the conclusion that the petitioner should not be retained upto the age of 55 years. It is further submitted that if the said adverse remarks of Mr. A. N. Mathur Lt. Gen. were not taken into consideration by the Board, there was no record or factor in his service record which could have influenced the decision of the Board to continue the petitioner in service upto the age of 55 years. The petitioner further submits that it was incumbent upon the respondents to have reviewed the entire matter and taken fresh decision regarding his continuation in service after the expunging of his remarks made by Mr. A. N. Mathur. It is alleged by the petitioner that in view of his statutory complaint, the office of the Judge Advocate General advised that the said order of severe displeasure be set aside and the advice is alleged to have been tendered on 24th Sept. 1976 but despite such advice the respondents continued in their objective of unnecessarily harassing and victimising the petitioner.

(3.) IN the reply affidavit filed on behalf of the respondents on the affidavit of Lt. General R, Kumar Jasbir Singh it is submitted that the writ petition was liable to be dismissed as no fundamental or legal right of the petitioner was violated. It is alleged that the members belonging to the armed force cannot claim the protection of Art. 311 of the Constitution of India and that the rules of natural justice are inapplicable in their favour. The petitioner is alleged to have been proceeded against in a duly constituted court of inquiry, the finding of which is not justiciable and cannot be subject to challenge in this Court. It is further submitted that the writ petition was liable to be dismissed as the same suffered from unexplained and inordinate laches. The order of the Chief of the Army Staff was passed on 23 -12 -1974 and immediately communicated to the petitioner. The petitioner kept quite and filed this petition after a period of four years. It is admitted that the petitioner was placed in an acceptable grade of acting colonel by the Selection Board vide MS Branch letter No. 36510/S/INT/MSSB dated 30th Oct. 1971. As the petitioner performance did not remain satisfactory after the issuance of the aforesaid letter, his case was reviewed by the selection board which did not place him in an acceptable grade. No deviation was made in procedure. The petitioner with the verbal permission of the MO I/C Ward or the MO on duty attended the training course in Indonesia Babasa and was driven by his wife from the Army Hospital to the school of Foreign languages. Passing of the orders dated 22 -1 -71 is not denied and it is alleged that nothing untoward against the petitioner was found in his confidential report and there was nothing extra -ordinary to his credit in the record. The receipt of vishist seva medal by the petitioner is also not denied. As the duly constituted selection board did not place the petitioner in the acceptable grade, his proposed promotion was cancelled. The court of inquiry was constituted to inquire into the circumstances under which the petitioner proceeded to Indonesia on a staff course although he was in a low medical category. It is stated that petitioner was present throughout the proceedings of the court of inquiry and tendered his evidence on 1 -7 -1974 and 12 -7 -1974. On 15 -7 -1974 the petitioner volunteered to tender his evidence. The court opined and found the petitioner blame worthy for not undergoing a medical examination prior to his departure to Indonesia in terms of Army order No. 337/68 which was deliberate and wilful and also for making a false statement dated : 27th July, 1972 which resulted in the secere displeasure of the Chief of the Army Staff which was properly conveyed to the petitioner on 20 -3 -1975. It is submitted that the conduct of the petitioner was highly unbecoming and not expected of a senior officer of the rank of the petitioner. It was alleged that it was a grave offence which could have been tried by the Court Martial and a laniency was shown to the petitioner by awarding him the severe displeasure, which was governed by pure 327 of Defence Service -Regulation (Regulations of the Army) and the prevalent custom of the service. It is conceded that the petitioner had earlier been considered for promotion to the rank of acting colonel based on his over -all record of service existing at the time of such consideration. However such a standard fitness as assessed then was to be continued and maintained uninterruptedly till promotion was actually effected. The decline in the standards, as was noticed in the case of the petitioner called for a review by the selection board to assess that whether he was still fit for consideration to such promotion and was not found to be so. It is alleged that the petitioner cannot be promoted as a matter of right and as the promotion is based on over -all merit of the individual, unblemished record of service, courses of instructions, command and staff performance etc. The court of inquiry was justifiably convened for the purposes of investigating into the circumstances under which the petitioner proceeded for Indonesia in March, 70 without submitting himself for a medical examination and his culpability stood established through his own documentary evidence and statements made before the Court. It is submitted that no show cause notice was necessary to be given to the petitioner as the petitioner was aware of the allegations against him. He was not prejudiced in any manner. It is further alleged that the petitioner was afforded ample opportunity to explain his views and to plead his defence before the court of inquiry. The punishment of displeasure alone was not the cause for the stoppage of his promotion. Punishment provided under Section 71 of the Army Act did not debar an officer from promotion. Overall record of service and other factors are taken into consideration for promotion by the selection Board and the provisions of Army Rule 180 are not attracted in the case. It is submitted that promotion is based on the basis of selection and fitness as assessed by the selection Board after taking into consideration various factors detailed hereinabove and the fitness for promotion has to be consistently maintained. It is alleged that approval for promotion does not manifest a blanket sanction even when fall in the standard of such fitness is noticed by the authorities and the selection board concerned. It is alleged that the principles of natural justice were strictly followed but it is stated that the show cause notice was uncalled for. The order passed are claimed to be legal, valid and according to law which do not require any interference by this Court.