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2009 DIGILAW 219 (DEL)

MAJOR GENERAL A. K. KAPUR, VSM v. UNION OF INDIA

2009-02-19

MOOL CHAND GARG, SANJAY KISHAN KAUL

body2009
SANJAY KISHAN KAUL, J. (Oral) 1. The petitioner joined the Army on 14.11.1971 and has had a successful career reaching up to the level of a Major General. The petitioner was considered for promotion to the rank of Lieutenant General in the Army Ordinance Corps (AOC) as per a Special Selection Board (SSB) held on 5.11.2007. The grievance of the petitioner is that the result of this SSB has been delayed and withheld despite a lapse of ten (10) months time. .2. The aforesaid was a peculiar situation and thus we called for the records of the SSB in a sealed cover and opened the same. It was found that the petitioner had been recommended for selection and his name forwarded to the Appointments Committee of the Cabinet (ACC), which was the competent authority. The competent authority conveyed the decision of the Central Government to hold in abeyance the approval of the .recommendations of the SSB qua the petitioner and that the case of the petitioner be treated as a case barred on vigilance consideration, i.e. DV Ban. 3. The aforesaid scenario has arisen on account of the fact that just prior to the SSB an FIR was registered by the Central Bureau of Investigation (CBI) on 8.10.2007 on the basis of a sourced information (which could possibly be an anonymous complaint as alleged by the petitioner). The allegation against the petitioner was of having assets disproportionate to his known sources of income. A raid was also carried out at the premises of the petitioner. It is the case of the petitioner that nothing incriminating was found and all his properties were either inherited or acquired from sale of properties, which were inherited. The petitioner claims to be belonging to a landed class having assets and the petitioner claims to have explained all this in writing. 4. It is also the grievance of the petitioner that normally the CBI hold a preliminary inquiry prior to the registration of an FIR so as to maintain a balance between the requirement of accountability and an honest officer not being harassed. We may note that the incidents of complaints coming against officers due for promotion is not unknown and is apparently occurring more often than not. We may note that the incidents of complaints coming against officers due for promotion is not unknown and is apparently occurring more often than not. The object in such cases can be to benefit somebody lower in the merit so as to keep the appointment of a senior meritorious candidate in abeyance or to cast doubts on his character. 5. The matter in controversy is within a limited contour as it is undisputed that the approval of ACC is mandatory. It is also not really in question that the fitness and merit of an officer is determined by the SSB, which would normally be approved by the ACC subject to the right of the ACC to differ from the recommendation for good reasons or on account of special facts, which may have come to its knowledge. 6. It is the submission of the learned Additional Solicitor General that there was sufficient material before the ACC to direct that the case of the petitioner be treated as one of a DV Ban as when the choice is available between a person with a clean record as against one where there may be even a slight suspicion, the ACC can certainly give precedence to the appointment of a person with a clean record. 7. We do not find any reason why we should disagree with the broad principle urged by the learned Additional Solicitor General but cannot simultaneously lose sight of the fact that false and motivated allegations should not cast doubt on an unblemished career of a serving officer. The armed forces and the police have to be treated a little differently on the aspect of promotion as no amount of subsequent monetary compensation is a substitute for holding the rank. The privilege to wear the uniform and the rank is only of the armed services, paramilitary services or police and it is the aim of any officer to hold the highest rank and wear the same on his shoulder. Thus, we are of the view that the issue of accountability as against chances of harassment of an honest officer has to be balanced in such a decision. .8. Thus, we are of the view that the issue of accountability as against chances of harassment of an honest officer has to be balanced in such a decision. .8. If we analyze the basis of the decision and the result in the form of a deemed DV Ban, we find that even as per the case of the respondents, the petitioner is not a case of DV Ban per se in accordance with the policy decision dated 4.7.2000. The relevant provision in this behalf is Clause 5(a) of the Policy which reads as under: 5. For imposition of Provisional DV Ban each case is examined by the AGs Branch (DV Dte.) on its merits. Provisional DV Ban is imposed in the under mentioned specific cases:- (a) SPE/CBI Cases (Type C). When the competent authority accords approval for prosecution of the affected personnel (officers only) by the CBI in civil court, the officer is put under Provisional DV Ban type C. When the CBI recommends departmental action, the officer will be put under Provisional DV Ban type D/T, as the case may be, after the competent authority has taken cognizance of the offence and directs appropriate action against the officer. 9. The pre-requisite for a DV Ban is where a competent officer accords approval for prosecution of the affected personnel by the CBI. The stage for the CBI making any recommendation has not even arisen though further time has elapsed since then and the FIR is almost sixteen (16) months old. It is, of course, the case of the learned Additional Solicitor General that the CBI is still in the process of unearthing the assets of the petitioner and has made considerable progress. The fact, however, remains that the CBI as yet, has not shown any result after taking so much time and has not recommended any departmental action against the officer. Thus, ex facie it is not a case of DV Ban. We may also notice that the SSB was held some time after the FIR was registered and yet the SSB in its wisdom has considered it appropriate to recommend the case of the petitioner alone for promotion, finding nothing adverse in his career profile. 10. We fail to appreciate as to how there can be any deemed DV Ban. We may also notice that the SSB was held some time after the FIR was registered and yet the SSB in its wisdom has considered it appropriate to recommend the case of the petitioner alone for promotion, finding nothing adverse in his career profile. 10. We fail to appreciate as to how there can be any deemed DV Ban. Any authority even at the highest level is to be governed by the law of the land and the norms laid down by itself. This is to ensure that there is no unfettered discretion in any authority. The respondents in their wisdom have framed the policy as to when a DV Ban comes into operation and that situation has not arisen. No different rule or norm in this behalf, which permits the ACC to do so has been brought to our notice other than the plea that the competent authority has the widest of discretion. 11. We are of the considered view that such wide discretion cannot imply unfettered discretion and the ACC has obviously been guided by the factum of the CBI registering an FIR against the petitioner which has produced no results for the last sixteen (16) months. 12. We are, thus, of the considered view that the aforesaid is a fit case where the ACC must re-examine the complete matter in terms of what we have observed aforesaid and take a fresh decision within a maximum period of one (1) month from today. 13. We have consciously fixed a reasonable period of time keeping in mind that the petitioner has to demit office in November, 2009 with entitlement to serve for two (2) more years if he gets his promotion. It is also not desirable that any post remain vacant as there is a stay against the filling up of the vacancy of Director General (Ordinance Services) which has to naturally remain in operation till a fresh decision is taken. 14. The writ petition is allowed in the aforesaid terms leaving the parties to bear their own costs. 15. Dasti to learned counsels for the parties.