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2008 DIGILAW 745 (DEL)

COL. HARISH CHANDRA GOSWAMY v. UNION OF INDIA

2008-08-07

S.N.AGGARWAL, T.S.THAKUR

body2008
T.S. THAKUR,J: 1. The short question that falls for determination in this petition is whether the petitioners consideration for promotion to the rank of Brigadier was proper and valid in accordance with law. The challenge to the petitioners non-selection for promotion is based entirely on the plea that the Selection Board concerned had, contrary to the directions issued by this court and upheld by the Supreme Court in an earlier writ petition filed by the petitioner, considered the petitioner to be unfit for promotion, not because he was less meritorious than his batch mates of the 1963 batch of officers but because the Board was influenced by the petitioners trial and punishment which fact the Board could not have 0taken into consideration as the court martial proceedings as also the punishment imposed upon the petitioner had been quashed and the petitioner held entitled to all the benefits as if he had not been tried or punished. Before we advert to the merits of the contentions on either side, we may briefly summarise the facts as under: .2. The petitioner was commissioned in the Indian Army in the year 1963. In due course of time, he was promoted as a full Colonel. He was then posted as Commanding Officer in 316 Station Workshop (Maintenance) between 10th December, 1982 and 23rd .February, 1986. Based on certain complaints that were sent to the Chief of the Army Staff alleging irregularities in the local purchase of material for repair of vehicles, a charge sheet was framed against him accusing him of misconduct on as many as eight counts. A general court martial was then convened and the petitioner found guilty in regard to four of the charges framed against him while the remaining four were held not proved. He was sentenced to be cashiered and to suffer rigorous imprisonment for two years which sentence was confirmed even by the authority competent to do so. 3. Aggrieved by his trial and punishment, the petitioner filed Criminal Writ Petition No. 675/1989 in this court. That petition was heard and allowed by V.B. Bansal, J, as his lordship then was, holding that the court martial proceedings and the subsequent orders of punishment were wholly illegal and without the authority of law. The petitioner was consequently held entitled to all the benefits as if he had not been tried and punished. That petition was heard and allowed by V.B. Bansal, J, as his lordship then was, holding that the court martial proceedings and the subsequent orders of punishment were wholly illegal and without the authority of law. The petitioner was consequently held entitled to all the benefits as if he had not been tried and punished. The operative portion of the order passed by this court was as under: In view of my aforesaid discussion and conclusions the Court Martial proceedings and subsequent orders of punishment against the petitioner are quashed being illegal and without the authority of law. The petitioner shall consequently be entitled to all the benefits as if he has not been tried and punished. Petitioner shall also be entitled to costs of this writ petition. Counsels fees 1,000/- 4. The correctness of the above order was put to test by the respondent Union of India in appeal before the Supreme Court. The challenge to the order however failed and was rejected by the apex court holding that the view taken by this court was unassailable. The court observed: 9. In the facts and circumstances of the case, we have no hesitation to hold that the view taken by the High Court is unassailable. We agree with the same. There is no merit whatever in the appeal and it is hereby dismissed. There will be, however, no order as to costs. 5. The petitioners case was then put up for consideration for promotion to the next rank of Brigadier on 7th-8th September, 1999 before Selection Board No. 2. Based on the decision taken by the Board, the petitioner was informed by a letter dated 25th October, 1999 that he had not been found fit for promotion. The present writ petition assails the consideration and the consequent recommendation made by the Selection Board and the decision taken by the Government of India on the basis thereof. .6. Appearing for the petitioner, Ms.Pappu strenuously argued that the consideration of the petitioners case for promotion by the Selection Board aforementioned suffered from a palpable legal infirmity. She contended that in terms of the directions issued by this court in the earlier round of litigation which directions, as seen above, had been upheld by even the apex court, the petitioner was entitled to all the benefits as if he had never been tried and punished. She contended that in terms of the directions issued by this court in the earlier round of litigation which directions, as seen above, had been upheld by even the apex court, the petitioner was entitled to all the benefits as if he had never been tried and punished. One of the benefits which, according to the said direction, the petitioner was entitled to was fair and proper consideration of his claim for promotion to the next rank. Such a consideration had, according to Ms.Pappu, to be accorded without reference to and attaching any importance or value to the petitioners trial by the court martial and consequent punishments. Any information or reference to the petitioners trial and the punishment both of which were declared to be wholly illegal by this Court was bound to prejudice the members of the Selection Board and thereby cause irreparable injury and failure of justice. Far from excluding from consideration, the petitioners trial and the punishment illegally inflicted upon him, the Selection Board had taken specific note of the said fact and graded him unfit for promotion, not because the petitioner was less meritorious than his batch mates of 1963 batch but because he had been tried, cashiered and imprisoned, no matter in complete defiance of law. The petitioners consideration was, in that view, no consideration in the eye of law and that the recommendations made by the Board as also the approval thereof by the higher authorities were vitiated on account of grave irregularity, if not a patent illegality in the process of evaluation of the petitioners merit for promotion. 7. On behalf of the respondents, it was on the other hand contended by Ms. Jyoti Singh that the petitioner had been considered by the Selection Board No.2 which was the Board competent to take up his case for such consideration and found to be unfit not because he had been tried and punished but because of his relative low merit in comparison to his batch mates. She further argued that the consideration of the petitioner was based on the Master Data Sheet placed before the members of the Selection Committee which did not made any reference to the fact of the petitioner having been tried and punished by the court martial. She further argued that the consideration of the petitioner was based on the Master Data Sheet placed before the members of the Selection Committee which did not made any reference to the fact of the petitioner having been tried and punished by the court martial. Since the petitioners disciplinary records had been screened from members of the Board, they were totally uninfluenced in their assessment by the fact of his previous conviction and sentence. .8. We have given our careful consideration to the submissions made at the bar. The order passed by this Court in the Criminal Writ Petition No. 675/1989 clearly declared the court martial proceedings and the order of punishment to be illegal and without the authority of law. That finding has been affirmed by the Supreme Court. Such being the position, the petitioner was, as a matter of course, entitled to all the benefits as if he had never been tried or punished. That precisely was also the direction issued by this court extracted earlier. In the process of consideration of the petitioners case for promotion to the next rank which indeed was one of the benefit that he was entitled to, the disciplinary proceedings against the petitioner, his trial and punishment had to be totally excluded from consideration. The Selection Board could not either directly or indirectly rely upon or discuss the petitioners conduct leading to his trial and punishment while evaluating his performance and considering his case for promotion. That is not however what has happened in the instant case. The minutes of the meeting of Selection Board No.2 held on 7th-8th September, 1999 were produced before us by Ms.Jyoti Singh for perusal. In para 3 of the said minutes, the documents and the material which the Board has taken into consideration have been enumerated in the following words: 3 The following documents of the officers were placed before the Selection Board: (a) Master Data Sheets (MDS). The MDS broadly contained the year of birth, date of commission, date of seniority, honours and awards received, courses passed with gradings, disciplinary background, if any, and details of confidential reports earned in the rank of Lt. Col. and Col and any CR earned during 1971 war up to the cut off CR applicable in each case. The MDS broadly contained the year of birth, date of commission, date of seniority, honours and awards received, courses passed with gradings, disciplinary background, if any, and details of confidential reports earned in the rank of Lt. Col. and Col and any CR earned during 1971 war up to the cut off CR applicable in each case. The MDS also contained other CR details such as the serial number of each CR as appearing in the CR Dossier, period, rank and appointment in which CR was earned, the type of appointment, whether the CR was earned in peace, filed or high altitude, and the Unit/Formation in .which the officer was serving. It also included overall figurative grading awarded by different reporting officers, the ratings by the IOs and ROs in personal qualities and demonstrated performance and the recommendations for promotion. (b) The CR Dossier (CRD) of each officer. The CRD contains all CRs earned since commission, course certificates, citations in respect of honours and awards and details of disciplinary cases. (emphasis supplied) 9. A careful reading of the above would show that the Master Data Sheets broadly contain the information referred to in para 3(a) above which includes disciplinary background, if any, of the officer concerned. Apart from the Master Data Sheet, the Board also considers the CR dossier of each officer. The CRD contains all CRs earned since commission, course certificates, citations in respect of honours and awards and details of disciplinary cases. It is not the case of the respondents that the details of disciplinary cases in the CR dossier of the petitioner which would have contained the reference even to the petitioners trial and punishment by the court martial was withheld from the Selection Board. Even assuming that Master Data Sheet did not contain the disciplinary background of the appellant, as was suggested by Ms. Jyoti Singh, the said information being available to the Selection Board from the CR dossier was admittedly taken into consideration. To put the matter beyond the pale of any doubt, the minutes of the Selection Board specifically referred to the trial of the petitioner by the General Court Martial and the punishment of cashiering and rigorous imprisonment for two years imposed upon him. To put the matter beyond the pale of any doubt, the minutes of the Selection Board specifically referred to the trial of the petitioner by the General Court Martial and the punishment of cashiering and rigorous imprisonment for two years imposed upon him. The minutes in relation to Item VIII under which the petitioners case was considered, read as under: ITEM VIII PROMOTION OF EME OFFICER TO THE ACTING RANK OF BRIGADIER 13. IC-14848 Col HC Goswami of belonging to 1963 batch of EME was awarded the following sentence by a GCM on 07 Oct 1989:- (a) To be cashiered (b) To suffer RI for two years The offr later filed a Writ Petition challenging the award of the GCM. The Honble Delhi High Court quashed the proceedings of the GCM as well as the order of punishment and also ordered to grant all consequential benefits to the offr. The SLP filed by the UOI against the judgment of the Delhi High Court was dismissed by the Honble Supreme Court on 28 Apr 99. The Offr has been deemed reinstated in service and thus became eligible for consideration for promotion to the rank of Brig. 10. It is evident from a reading of the above that far from withholding of the Selection Board the details regarding the trial and punishment of the petitioner and far from Board itself excluding from consideration the said aspect of his case, it specifically refers to the trial and the punishment as also the subsequent orders that entitled him to consideration for promotion as a fresh case. The consideration of this material in our opinion was legally impermissible and had the effect of vitiating the consideration accorded to the petitioner. If the direction of this court implied that he would be considered for promotion as if he had never been tried or punished, there was no possibility of the said factors being considered and yet the consideration remaining unaffected by the same. .11. Ms.Jyoti Singhs argument that the minutes referred to above were prepared by the Military Secretary for presentation before the Chief of the Army Staff and did not reflect what transpired before the Selection Board, has not impressed us. The record .specifically describes the minutes in question to be the minutes of 71st (1999) Meeting of No.2 Selection Board held on 07-08 September, 1999. The record .specifically describes the minutes in question to be the minutes of 71st (1999) Meeting of No.2 Selection Board held on 07-08 September, 1999. It is not a note prepared by the Military Secretary for the consideration of the Chief of the Army Staff, as suggested by Ms.Jyoti Singh. It is on the contrary the record of the proceedings of the Selection Board, no matter prepared by the Military Secretary who remains present throughout the proceedings of the Board. The term minutes is not a term of art. It has a definite meaning and must be so understood. We may in this regard refer to the Oxford dictionary where the term minute is defined as: Minute : n.1 (minutes) a summarized record of the points discussed at a meeting. 2. an official memorandum. v.1 record or note (the points discussed at a meeting). 2 send (someone) a minute. 12. We may also refer to the Websters Dictionary where the term minute is given the following meaning: Minutes : the official record of the proceedings at a meeting of a society, committee, or other group; an informal written notation; note; memorandum. 13. In the light of the above, we have no hesitation in rejecting the contention of Ms. Singh that the Selection Board had not been aware of or had not considered the fact of the petitioner having been tried and punished by the court martial while considering the petitioner for promotion to the next higher rank. 14. Ms. Singh next contended that she could, by reference to the record, make an attempt to demonstrate that the petitioners merit was lower than the merit of his batch mates. It may have been possible to do so if the process of evaluation of the merit of the officers eventually gets translated in terms of marks and a cut off is clearly discernible from the record so that anyone falling below the cut off could be justifiably held to be unfit for promotion. That is not however so. The evaluation of officers is not based on any quantification of marks nor is the selection based on the aggregate of such marks. The assessment is no doubt made in respect of each parameter stipulated for assessment by the initiating and reviewing officer but comparison of the marks for different parameters and qualities may not be a simple task for the court to undertake. The assessment is no doubt made in respect of each parameter stipulated for assessment by the initiating and reviewing officer but comparison of the marks for different parameters and qualities may not be a simple task for the court to undertake. Besides, the question whether an officer is fit or unfit for promotion is a matter to be left to the Selection Board concerned. The court cannot step into the shoes of the Selection Board and itself embark upon a process of evaluation of the merit of the candidates. That jurisdiction must necessarily be conceded to the Selection Board. What is to be examined by a writ court is whether there is any procedural irregularity or any illegality in the matter of consideration of the candidate for promotion to the next rank. So long as the process by which the evaluation has taken place is fair and reasonable and so long as there is no irregularity causing any injustice to anyone, the court would not concern itself with the end result of such a process. In the instant case, however, as noticed earlier, the consideration of the petitioner was vitiated not by reason of incompetence of the authority who was considering his case but by reason of the inadmissibility of the material that was taken into consideration. Ignoring admissible material from consideration or considering inadmissible material both result in invalidating the selection process. In the present case, the Selection Board considered what ought not to have been considered against the petitioner. The consideration accorded to the petitioner is thus no consideration in the eyes of law. .15. In the result, we allow this petition; set aside the recommendations made by the Selection Board and the consequent orders passed by the Chief of the Army Staff and the Government and direct that the petitioners case be considered afresh by reference to the officers of the 1963 batch. Consequential benefits flowing from the promotion, if the petitioner is eventually held entitled to the same, shall also be released in his favour. The needful shall be done expeditiously but not less than six months from today.