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2007 DIGILAW 428 (DEL)

HOSHIAR SINGH v. UOI

2007-02-28

S.N.AGGARWAL, T.S.THAKUR

body2007
T. S. THAKUR, J. ( 1 ) THE petitioner is working as a Chief Petty Officer in the Indian Navy. He was considered for promotion to the next higher rank of Master Chief Petty officer by a Selection Board that met in the year 2000-2001. The Board did not, however, recommend the petitioner for promotion, aggrieved whereof the petitioner filed Writ Petition No. 250/2004 in the High Court of Judicature at bombay. A division bench of the said court by an order dated 21. 03. 2006 allowed the said petition holding that the Selection Board had, while considering the case of the petitioner, ignored the fact that the adverse remark recorded against the petitioner for the year April, 1998 to April, 1999 had been expunged. The court accordingly directed the constitution of a Review Selection board to consider the case of the petitioner for the year 2000-2001 on the basis of an independent assessment of the petitioner's merit bearing in mind letter dated 11th September, 2001 issued by the competent authority expunging the adverse remarks. ( 2 ) A review Selection Board was accordingly convened to consider the case of the petitioner by reference to the years 2000 and 2001. Upon consideration, the board was of the view that the petitioner could not be recommended for promotion to the next higher rank on account of his relative low position in the over all merit list for the said two years. A communication dated 14th September, 2006 to that effect was issued to the petitioner, aggrieved whereof the petitioner has filed the present writ petition for a writ of certiorari quashing the said communication. He has also challenged the validity of his performance assessment for the years 1995-1997 and prayed for a mandamus directing the respondents to upgrade his ACRs so as to make the same commensurate with outstanding/excellent performance for the year 1998-99. ( 3 ) WE have heard the learned counsel for the petitioner at some length and perused the record. ( 4 ) BEFORE we deal with the question whether the procedure adopted by the review Board was justified, we may at the threshold examine the challenge mounted by the petitioner to the performance assessments for the year 1995-97. Mr. Singh, counsel appearing for the petitioner argued that the petitioner's report on performance assessments for the said two years were unjustified and deserved to be set aside. Mr. Singh, counsel appearing for the petitioner argued that the petitioner's report on performance assessments for the said two years were unjustified and deserved to be set aside. We have no hesitation in rejecting that submission out of hand. The petitioner as already noticed above had an occasion to challenge his non-selection in the petition filed before the High Court of bombay. That petition, however, made a grievance only in so far as the consideration of the adverse reports for the year 1998-1999 was concerned, even when the said report stood expunged in terms of an order dated 11th September, 2001. The petitioner does not appear to have made any grievance in so far as performance assessments for the year 1995-97 were concerned. If the petitioner was indeed aggrieved of the performance assessment reports for the year 1995-1997, there was no reason why he should not have made such a grievance at the first available opportunity that came to him before the High Court of Bombay. Mr. Singh's argument that the reports had been brought to the notice of the High court of Bombay in the course of the hearing of the writ petition filed before that court does not find any support from the order passed by the said Court. There is neither any argument nor any direction visible in the order passed by their Lordships touching the validity of the assessment reports for the year 1995-97. If the grievance had indeed been made, the court would have dealt with the same and issued proper directions, if necessary. In the absence of any prayer in the writ petition filed before the High Court of Bombay and in the absence of any discussion in the order passed by that court regarding validity of the reports for 1995-97, his grievance made for the first time after nearly 10-12 years is afterthought and meaningless. The first limb of the petitioner's case accordingly fails and is rejected. The first limb of the petitioner's case accordingly fails and is rejected. ( 5 ) COMING then to the question whether the Review Board followed a proper and fair procedure in considering the petitioner's case for promotion, we notice that upon expuntion of the adverse reports for the year 1998-99, the Review board has, for the said period, given to the petitioner average of ACR points as well as efficiency points obtained in the preceding and the succeeding years to give to the petitioner the maximum benefit admissible to him. This is evident from a reading of the following paragraph from the impugned order: "3. The Review Board awarded an average of ACR points as well as efficiency points obtained in the preceding and succeeding years to provide maximum benefit to you. The pen pictures in ACR and service documents were also perused independently by the Review Board. The Board awarded appropriate marks for the pen pictures without considering the expunged ACR. The Review Board recalculated the marks for all points of consideration and arrived at a fresh total of marks to determine your position in the order of merit. " ( 6 ) THERE is, in our opinion, no illegality or perversity in the method adopted by the Review Board in giving to the petitioner the average points based on his performance in the preceding and the succeeding years. If upon consideration of the petitioner's case, even after he has been given the benefit of such average of the points, he continued to remain low in merit in comparison to others who had been selected for the year 2000-2001, the petitioner could not possibly be promoted by the Board. The petitioner's case that his performance for the year 1998-99 should have been rated as 'outstanding' and his merit for purpose of promotion determined on that basis, has neither any factual nor any juristic basis. Just because the earlier reports had been expunged did not mean that the petitioner was to be rated as 'outstanding' and promoted to the next higher rank on that assumption. The board was justified in taking the average of his performance for the preceding and following years. ( 7 ) THERE is no merit in this writ petition which fails and is hereby dismissed but in the circumstances without any order as to costs.