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2007 DIGILAW 64 (DEL)

SQN. LDR. I. B. SINGH v. UNION OF INDIA

2007-01-11

G.S.SISTANI, SWATANTER KUMAR

body2007
SWATANTER KUMAR, J. ( 1 ) IN this petition under Article 226 of the Constitution of India, the petitioner prays that the adverse remarks recorded in the Annual Confidential report of the petitioner for the year 1. 1. 2001 to 30. 9. 2002 be expunged and the respondents be directed to promote the petitioner to the rank of Wing Commander with effect from the date his contemporary Officers had been promoted as a consequence of Promotion Board, PB-III held in March 2003. In addition to these reliefs, the petitioner also prays for issuance of an order of restraint. The above claim of the petitioner is on the premise that the petitioner was commissioned in the administrative branch of the Indian Air Force on 21. 12. 1984 as Pilot Officer. He performed his duties to the satisfaction of all concerned and with devotion and excellence that resulted in his regular promotion to the rank of Sqn. Leader. According to the petitioner, the respondents had issued AR feedback on 10. 11. 2002 for the last 5 years i. e. from 1997 to 2001 wherein the petitioner's AR-grading was 7. 28 out of grading of 9 and the highest AR grading in the peer group was 7. 65 and the peer group average was 7. 03. The respondents held the Promotion Board for the year 2003, PB-III for promotion of Sqn. Leaders to the rank of Wing Commanders. Result of the Board was declassified and published on 10. 4. 2003 and the persons junior to the petitioner were promoted to the rank of Wing Commander ignoring the claim of the petitioner. Copy of this impugned order is attached to the writ petition by the petitioner as Annexure p/2. Being aggrieved from the said action of the respondents, the petitioner submitted a statutory complaint under Section 27 of the Air Force Act, 1950 (hereinafter referred to as 'the Act' ). On 9. 6. 2003 the respondents served a letter upon the petitioner communicating to him that there were adverse remarks in the Annual Confidential Report of the petitioner for the relevant period, which reads as under:- "communication OF ADVERSE REMARKS sqn LDR IB SINGH (17734) ADM 1. In your AR for the period 01 Oct 10 to 30 Sep 02, the following adverse remarks have been recorded by the RO. Adverse Remarks by RO ". . . . . . . . . . In your AR for the period 01 Oct 10 to 30 Sep 02, the following adverse remarks have been recorded by the RO. Adverse Remarks by RO ". . . . . . . . . . the officer can not be trusted in financial matters. He has difficulty relating to people. While being loyal to his Boss, his loyalty to the Service is less than desirable. I do not trust this officer. ? 2. This is for your information. " ( 2 ) ON 12. 8. 2003 the petitioner also filed a statutory complaint which was not attended to within time and the same remained pending under consideration by the Ministry of Defence. Pendency of both statutory complaint and delay in taking a final view on the matter caused prejudice to the petitioner. These were followed by another representation dated 8. 12. 2003. According to the petitioner he was SO to SASO, HQ-CAC, Air Marshal, who was the IO of the petitioner, for the period in question. It is submitted that once his report was written by the Officer, any review by the RO or SRO is contrary to the instructions issued by the Air Force Authorities. Raising these issues, the petitioner also filed another representation dated 17. 2. 2004 As none of these representations were adequately dealt with by the concerned quarters, the petitioner filed the present writ petition claiming the above reliefs. ( 3 ) THE respondents filed a counter affidavit where they have taken the stand that the Officer was placed at serial no. 41 in the order of merit in the administrative branch but the promotion in respect of the Officer was held in abeyance due to nature of observations provided by Directorate of Int. , which clearly affect the character and professional reputation of the officer. This was a deliberate decision taken by the Promotion Board Members during holding of the Promotion Board emphasizing that these were serious offences and the Officer could not be cleared for promotion, if the observations in respect of the officer were later found proved. Since the matter affecting the character and professional reputation of the Officer, was to be investigated, his promotion was withheld pending finalisation of the investigations. Since the matter affecting the character and professional reputation of the Officer, was to be investigated, his promotion was withheld pending finalisation of the investigations. This was in view of the fact that certain inputs were received from the Director of Intelligence in respect of the Officer where allegations were with regard to the misuse of his intelligence background for getting petty personal benefits from service indulging in financial improprieties. The ACR for 2002 in respect of the officer is stated to be initiated by the IO, SASO Headquarters. The report should have been forwarded by the IO to RO, AOC-in-C, HQ CAC being next higher in the chain of command. Since the report was received without review by the RO the same was dispatched to the RO by Air HQ for completion prior to the holding of PB-3/03. The RO had then remarked that the Officer could not be trusted in financial matters. For these reasons, the Officer was not promoted at that relevant time as the Court of Inquiry was underway to investigate the intelligence inputs. Officer's statutory complaint dated 17. 4. 2003 was forwarded to the Ministry of Defence which at the time of the filing of the counter affidavit was stated to be pending. ( 4 ) AT the very outset, it may be noticed that at the time of issuance of notice of the writ petition, no interim order was granted in favour of the petitioner, as such one of the reliefs prayed for by the petitioner has been rendered infructuous and inconsequential. The other reliefs are with regard to the consideration of the petitioner by the Promotion Board and setting aside of the adverse remarks. It may also be noticed at this stage that during the course of hearing of this petition, the learned counsel appearing for the respondents had placed on record a copy of the message dated 5. 7. 2005 which reads as under:- "substantive PROMOTION OFFICERS (-) SQN LDR IB SINGH (17735) ADM IS AUTHORISED for SUBSTANTIVE PROMOTION TO THE RANK OF WG CDR WEF DEC/16 YEAR 2004 (R) DEC/16 year 2004 (.) PARA TWO (.) UNIT ADJT TO ENSURE THAT THE OFFICER SHOULD HAVE passed PROMOTION EXAM ?c? 7. 2005 which reads as under:- "substantive PROMOTION OFFICERS (-) SQN LDR IB SINGH (17735) ADM IS AUTHORISED for SUBSTANTIVE PROMOTION TO THE RANK OF WG CDR WEF DEC/16 YEAR 2004 (R) DEC/16 year 2004 (.) PARA TWO (.) UNIT ADJT TO ENSURE THAT THE OFFICER SHOULD HAVE passed PROMOTION EXAM ?c? CMA NOT INVOLVED IN ANY RECENT DISCIPLINE CASE AND medical CATEGORY SHOULD NOT BE LOWER THAN A4g4 (.) PARENT UNIT OF THE OFFICER TO promulgate FOR IMMEDIATELY AND FORWARD A COPY OF SAME TO ORIG JDPO-3 (D) (.)COMMAND HQ TO MINITOR (sic) STRICT COMPLIANCE (.) DRAFTER's NAME sgt MS POONIA office jdpo-3 (D)TELE 6350 releasing OFFR?s ( 5 ) A bare reading of the above message shows that the petitioner has been granted the promotion to the rank of Wing Commander with effect from 16. 12. 2004 before this the petitioner in accordance with the rules and the instructions could not have been granted the promotion. The contention of the petitioner that there were no proceedings pending at the relevant time when the Board of 2003 considered the case of the petitioner is factually in correct. We had called upon the counsel appearing for the respondents to place on record the inputs with regard to receipt and initiation of the proceedings on the basis of the Intelligence report. The same was furnished in the Court under the signatures of the counsel which reads as under:- 1. Date on which the Intelligence Report was forwarded by the Directorate of intelligence against the petitioner. 21st November, 2002. 2. Date on which the Intelligence Report was received by Directorate of intelligence through Directorate of Personal Officers 22nd November 2002. 3. Date on which the Promotion Board Sat. for making decision with regard to the promotion of the officers. 25th March, 2003 4. Date on which the Promotion Board forwarded their Recommendations to Chief of the Air Staff. 25th March 2003. 5. Date on which the Promotion Boards recommendation was approved by the Chief of the Airstaff. 10th April, 2003. ( 6 ) IN face of the above record based dates this court cannot accept the contention of the petitioner that the petitioner was entitled to be promoted in furtherance to the selection held by the PB-III of the Board held in 2003. 10th April, 2003. ( 6 ) IN face of the above record based dates this court cannot accept the contention of the petitioner that the petitioner was entitled to be promoted in furtherance to the selection held by the PB-III of the Board held in 2003. This prayer is thus declined, and in fact, it was not even seriously argued that despite pendency of the intelligence report the petitioner could have been promoted. We may also notice here that the petitioner has already submitted an application for premature retirement from the Force on 5. 3. 2006, and the petitioner filed a separate application that the respondents be directed to consider the said request of the petitioner at the earliest. As far as the question in regard to expungment of adverse remarks made in the ACR are concerned the petitioner had filed a statutory representation to which he also submitted reminders and according to the petitioner the said petition has still not been disposed of by the Ministry of Defence. Vide letter dated 13. 4. 2004, the petitioner was informed that his application for expungement of the remarks in the ACR 2002 has been rejected. This letter was obviously issued after the institution of the present writ petition and the petitioner made no efforts to amend the writ petition to question the correctness or otherwise of this order. Even otherwise, the jurisdiction of this court to examine the correctness of the remarks made entry in the confidential report of an officer is very limited. The court cannot sit as an appellate authority and examine whether the remarks made are correct or not. No case of malafides or arbitrariness has been made out. The respondents are stated to have acted in accordance with the policy and the confidential report of the petitioner for that year was channelized properly though it was initiated by SASO Headquarters. Particularly keeping in view the independent report, we do not think that the authorities have acted improperly or discriminately while recording the said remarks. As such we are not able to grant even that relief to the petitioner. ( 7 ) IN view of the above observations, this writ petition is dismissed while leaving the parties to bear their own costs.