ORDER
N.K. Patil, J.
1. The petitioner in this petition has sought for calling the records from the third respondent and to peruse the complete case of recommendation to the Honorary rank of Lieutenant/Captain, which is to be conferred on the petitioner on 26th January, 2003 and sought for a writ of certiorari, quashing the impugned communication dated 16th August, 2002 at Annexure-A issued by fourth respondent. The petitioner has further sought for a mandamus to first and second respondents to grant the rank of the Honorary Lieutenant/Captain to the petitioner on the occasion of Republic Day and Independence Day, since the petitioner is meeting all other criteria of the said Honorary rank and to direct second respondent to extend all consequential benefits including monetary benefits from the date the petitioner would have been given the Honorary rank and the juniors of the petitioner have been given Honorary rank.
2. This is rather an unfortunate case. The case of the petitioner is that, he was enrolled into the elite Indian Army on 26th November, 1973 as a recruit after successful completion of training with the Unit commanded by the third respondent. Petitioner was attested as Sepoy in the Madras Engineering Group and posted in the 7 - Engineer Regiment at Chandimandir which was considered a Hard Field Area at that time. From August 1980 to March 1982, the petitioner was posted in the same Regiment in the far-flung High Altitude Area of Leh wherein the petitioner performed his duties to the fullest satisfaction of his superiors and petitioner's work was praised by the higher officers in the Regiment. The petitioner in his entire service has performed his duties to the satisfaction of the superiors and his services have been appreciated and he has been awarded several medals and given necessary promotions and at no point of time in his entire service, there is any blemish against him. Be that as it may. When the petitioner was discharging his duties from November 2000 to June 2002, the petitioner was posted to 16, Engineer Stores Platoon at Ambala. At this place, the petitioner was given the important assignment of MT Junior Commission Officer and Junior Commission Officer Quarter Master. Petitioner was also officiating as Subedar Major at frequent occasions and this rank is awarded only to such persons for the excellent work done by the respective cadet. But, it is unfortunate that, when he was discharging his duty, at the fag end of his service, to the shock and surprise of the petitioner, he received a confidential communication of adverse/weak point in ACR for the year 2002 in respect of J.C. No. 305076H (petitioner herein) which reads as follows:
'17. Initiating Officer:
(a) Pen-picture: 'A sincere and hard working JCO. His dealing of subordinate is quite abrasive and needs monitoring'.'
Immediately after receipt of the adverse communication dated 16th August, 2002 from the superior officer-the Initiating Officer, the petitioner has sent the salient details of the complaint in confidential on 28th August, 2002 giving therein the background information from 1 to 6, main points of the complainant from (a) to (j), redress sought (a) and (b), supporting documents attached (a) and (b) and the Certificates (a) and (b) duly signed vide Annexure-B. After receipt of the confidential complaint given by the petitioner vide Annexure-B, the matter was placed before the second respondent-Chief of the Army Staff, COAS's Secretariat, he being the Competent Authority. The said Officer in turn, without appreciating the status, the length of service rendered by the petitioner and the unblemished service rendered that, at no point of time, the petitioner has given any scope for any sort of complaint against him, and that, wherever he has been posted he has discharged his duties with great satisfaction and with appreciation from his superiors regarding the excellent work done by him, and without taking into consideration the background of the matter, has rejected the statutory complaint given by the petitioner and has issued the impugned order dated 17th September, 2003 bearing No. 4009/SC/79/AIDB along with a covering letter vide Annexure-Al. Being aggrieved by the impugned order, as stated supra, the petitioner felt necessitated to present the instant writ petition.
3. The bone of contention of the learned Senior Counsel appearing for petitioner is that, the adverse remarks issued vide Annexure-A will affect the future promotion prospects of the petitioner and the Competent Authority has failed to consider the details furnished by the petitioner in the statutory complaint given by him vide Annexure-B. In the statutory complaint, the entire history has been narrated regarding his length of service that too, he has specifically contended that, the complainant-petitioner was not only shocked but dazed and surprised to receive the adverse remarks without any notice, warning or Counselling of any kind to the petitioner. The petitioner was neither informed verbally nor in writing about the adverse remarks as stipulated by the order on the subject. Further, as per Sl. No. 3(c), Part III - Pen-picture of the Instructions for Compilation of Confidential Reports - JCOs, vide Annexure-E (internal page 8), no Counselling for the said adverse remark as such was given to the petitioner. Further, it is specifically mentioned that, the petitioner could not think of any adverse remark in the previous Units. This aspect of the matter has not at all been considered and appreciated by the second respondent before passing the impugned order enclosed to Annexure-Al and the adverse remarks made against the petitioner in the year 2002 in respect of JC (petitioner herein) by the Initiating Officer is contrary to Sl. No. 3(c), Part III -Pen-picture of the Instructions for Compilation of Confidential Reports -JCOs to AO5/90 Annual Confidential Reports - JCOs vide Annexure-E (at ink page 40 of writ petition and internal page 8). The learned Senior Counsel pointed out the relevant portion, that is, 'it is desirable that only those weaknesses for which a JCO has been counseled to improve in writing during reporting period need be reflected. In addition reporting officers are required to give overall figurative assessment in the box provided for in Part III (under pen-picture). This grading should generally conform to the assessment in Personal/Demonstrated/ Supervisory qualities and submitted that, this mandatory provision has not been looked into by the Initiating Officer who has recorded the adverse remarks against the petitioner. Further, he vehemently submitted that, the impugned communication dated 16th August, 2002 vide Annexure-A and the order dated 17th September, 2003 enclosed to Annexure-A1 issued by the second respondent are wholly illegal and clearly against the policy on the subject framed by second respondent-Chief of the Army Staff and is in clear violation of the fundamental right of the petitioner as envisaged under Articles 14 and 16 of the Constitution of India. Further, he submitted that, the impugned communication and the order passed are biased, arbitrary, discriminatory, mala fide, malice in law, unreasonable and are against the very principles of natural justice and violates the Rules of initiation of the ACR and the mala fide intention of the fourth respondent has been sufficiently established by evidence displayed and no performance Counselling has been given to the petitioner before issuing the impugned communication vide Annexure-A. Further, he submitted that, the petitioner has served and discharged his duties by putting in 29 years of unblemished service in defence and the minimum he expects is to get the Honorary rank which is likely to be conferred upon the Junior Commissioned Officers (JCOs) who are similarly placed as that of the petitioner on the Republic Day on 26th January, 2003 and on Independence Day on 15th August, 2003. The Counsel appearing for petitioner further contended that, the petitioner had unblemished record of service and due to his own merit, the petitioner would have got the Honorary rank but due to the impugned communication, the petitioner has been deprived of the same. Therefore, he submitted that, the impugned communication 16th August, 2002 vide Annexure-A and the order passed by the second respondent dated 17th September, 2003 are liable to be set aside.
4. Having heard the learned Counsel appearing for petitioner for considerable length of time, after thorough evaluation of the entire material available on record, it emerges on the face of the impugned communication vide Annexure-A and the order passed by the second respondent dated 17th September, 2003 enclosed to Annexure-Al that, both the communication and the order are contrary to the material on record and the Competent Authority has committed an error of law, much less illegality. It is significant to note, as rightly pointed out by the learned Senior Counsel appearing for petitioner that, as per AO5/90 Annual Confidential Reports - JCOs, vide Annexure-E, under the Instructions for Compilation of Confidential Reports - JCOs, Sl. No. 3(c), Part III - Pen-picture, it is mentioned that, the purpose of writing pen-picture is to give a soul to the skeleton of figurative assessment. Further, it is stated that, 'the weaknesses mentioned should be of a nature that need to be reflected for use while considering employability of the JCO. It is desirable that, only those weaknesses for which a JCO has been counseled to improve in writing during reporting period need be reflected. In addition reporting officers are required to give overall figurative assessment in the box provided for in this Part (under pen-picture). This grading should generally conform to the assessment in Personal/Demonstrated/Supervisory qualities'. This aspect of the matter has not at all been looked into by the fourth respondent while recording the adverse remarks against the petitioner and by the second respondent while passing the impugned order dated 17th September, 2003. When it is the case of the petitioner that he has furnished all the particulars regarding his length of service and explained in detail, the said aspect has been completely overlooked by the second respondent. The second respondent has only stating that, after due consideration, the statutory complaint has been rejected by the COAS. The second respondent ought not to have rejected the statutory complaint given by the petitioner without scrupulously analysing the details furnished by the petitioner and taking into consideration the track record of service that, wherever he has been posted, he has been appreciated and recorded that his performance is excellent, very good, satisfactory. The respondents ought to have looked into the matter and taken a lenient view considering the case of the petitioner sympathetically taking into consideration the fact that, the petitioner is at the fag end of his service and is supposed to get promotion in the near future. Bearing in mind all these factors, the second respondent ought not to have rejected the statutory complaint given by the petitioner when the adverse remarks recorded by the Initiating Officer is contrary to Sl. No. 3(c), Part III - Pen-picture of the Instructions for Compilation of Confidential Reports - JCOs, which is mandatory in nature. The maximum that, the authority could have done was, he could have warned the complainant and that, before recording adverse remarks, the authority ought to have offered an opportunity as envisaged under Sl. No. 3(c), Part III - Pen-picture of Instructions for Compilation of Confidential Reports of JCOs. Therefore, in my considered view, at any stretch, the impugned order passed by the second respondent dated 17th September, 2003 enclosed to Annexure-Al, cannot be sustained and the same requires reconsideration afresh by the Competent Authority.
5. Having regard to the facts and circumstances of the case, as stated above, and taking into consideration the factual legal aspect of the matter, enumerated above, the impugned order passed by the second respondent dated 17th September, 2003 enclosed to Annexure-Al cannot be sustained.
6. For the foregoing reasons, the writ petition filed by the petitioner stands disposed of with the following directions:
(i) The writ petition filed by the petitioner is partly allowed;
(ii) The impugned order dated 17th September, 2003 in No. 4009/SC/79/AIDB on the file of the second respondent enclosed to Annexure-Al is hereby set aside and the matter stands remitted to the second respondent for reconsideration afresh and to decide the same in accordance with law, after considering the statutory complaint given by the petitioner vide Annexure-B and also taking into consideration the Instruction for Compilation of Confidential Reports of JCOs at Sl. No. 3(c), Part III - Pen-picture and also taking into consideration the observations made by this Court in the course of its order and dispose of the same within three months from the date of receipt of a copy of this order.
7. With these observations, the writ petition filed by the petitioner stands disposed of.