K. Ramamoorthy, J.
1. The writ petitioner has prayed for the following reliefs :
'(a) issue a writ, order or direction in the nature of mandamus and/or any other appropriate writ, order or direction directing the respondents to promote the petitioner as Major General in the Army Service Corps with effect from 1.5.97, when a vacancy arose therein;
(b) issue an appropriate writ, order or direction in the nature of certiarari, calling for the records of Selections Boards held on 1.11.96 and 11.7.97 for promotion to the post of Major General in the Army Service Corps along with the nothings of the Ministry of defense and set aside the results of the Selection Board held on 1.11.96 and 11.7.97.
(c) issue a writ, order or direction in the nature of mandamus and/or any other writ, order or direction directing the respondents to investigate/ inquire into the allegations made by the petitioner against respondent No. 4 and thereafter take appropriate disciplinary action against Respondent No. 4.
(d) issue a writ, order or direction in the nature of certiorari quashing the appointment of respondent Nos. 8 as Major Generals in the Army Service Corp.'
2. The grievance of the petitioner to put it tersely is: Selection Board which met on 31.10.1986 find him fit for promotion as Major General but the Government of India rejected the assessment made by the Selection Board. In the meeting held by the No. 1 Selection Board on 10 and 11.4.1997 he was again found fit but the Government of India rejected the assessment made by the Selection Board this time also. According to the petitioner, the Government of India had not acted in accordance with law in making the decision.
3. A few facts necessary for the purpose of appreciating the contentions of the parties have to be noticed. On 1.4.1993 the petitioner was promoted to the rank ofBrigadier and was posted as Commandant, Army School of Mechanical Transport. The petitioner was selected for a one year Intensive Course at the National defense College, Delhi. In December, 1995 the petitioner was posted as Dy. Director, Supplies and Transport, 3 Corps, Transport, 99 APO. The predecessor of the petitioner was one Brig. C.P. Tiwari (now he is Major General). The said Mr. C.P. Tiwari had apprised the petitioner that respondent No. 4 had collected a sum of Rs. 24,000/- on two occasions from him as Brig, from the Regimental Funds of ASC Units of 3 Corps for the maintenance of the official residence of the 4th respondent; It is called ASC house. The sum of Rs. 24,000/- was sent in October and November, 1995 for the specific purpose of 'upkeep and maintenance of ASC house in Delhi'. The petitioner did not relish the way in which the money was collected by the 4th respondent and that was the cause for misunderstanding between the petitioner and the 4th respondent. The 4th respondent had taken it amiss is clear from the events that had followed. On 4.3.1996 Major General N.J. Chinoy, ASC, Eastern Command directed the petitioner to forward his comments on a HQ ARTC paper 'Study setting combat superiority'. The petitioner had a discussion in this behalf that Major General Krishan Pal, VSM, Chief of Staff of Corps and thereupon sent his comments on 22.3.1996. They were forwarded to the 4th respondent. On 30.4.1996 the 4th respondent advised the performance counselling of the petitioner marking a copy to Major General Jagdish Chander, Chairman, CSD. The same is as under:
'Study setting combat Superiority
Your views on the Study Setting Combat Superiority, having ref. of HQ ARTRAC letter No 733130/OTD/CP dated 17 Jan 96 have been recd. by us through MGASC Eastern Comd. On perusal of the contents of your views on the subject it is obs that this major issue has been treated rather casually by you.
2. The study had dealt with the aspect of examining the validity of the existing norm of 3:1 combat superiority ratio. In the study it was proposed to include aspects of gloss sp, which if sound, could act as force multipliers. It was in this regard that your comments were sought wherein such lgs aspects, which could act as force multipliers, could be identified and denned as such for the study.
3. On perusal of the views fwd by you, it is seen that the main issue of sups, tn by air and the FOL aspects have been superficially covered by you in just a few lines, whereas, issue like integrated tpt system has been covered in about seven pages, thus giving a skewed view of the whole study. You would also admit that the write up of the integrated tpt system, aired in your views, is a mere reproduction of your article published in the Special Reunion Issue of the ASC Journal, article which as a matter of fact bears no relevance to the subject being commented on.
4. I am disappointed with what you have presented since I expected some original thought provoking conceptual ideas from an offer of your rk, service and qualifications. inspire of being a graduate from the NDC, your perception and depth of understanding of the issues involved leaves much to be desired. Your approach also suggests a strong streak of professional dishonesty which has not been appreciated by me.
5. I have taken cognizance of the above mentioned issue and would advise you to be more careful in the future.'
4. On 20.5.1996 the petitioner sent his non statutory complaint against the later. The same reads as under:
'Circumstances, in brief, leading to the complaint.
1. I would like to kindly bring to your notice that vide HQ Eastern Command letter No 310140/6/ST of 04 Mar 96 (Appendix 'A' refers) it was desired by MG ASC Eastern Command that I forward my comments on HQ ARTRAC paper 'STUDY SETTING - COMBAT SUPERIORITY' (Refer Appendix 'B').
2. I discussed the issue with Maj Gen Krishan Pal, VSM, COS this Corps who has a very good lgs background as he has been DDG old at Army HQ and is the most appropriate person for such subjects.
3. Based on my experience and discussions with the COS, I forwarded my comments to the MG ASC vide my letter No 34000/ST1 of 22 Mar 96 (Appendix 'C' refers).
4. Vide letter No. 13021/P/25 dated 30 Apr 96 (Appendix 'D' refers) I received Counselling from Lt Gen JS Bhatnagar, AVSM, VSM, DG ST. in which he has outlined lapses with reference to the comments forwarded by me on the paper with the obvious intention of reflecting them in my ACR as Head of Service.
Main Points of the Complaint
5. I would like to humbly submit that the lapses pointed in the letter are baseless, motivated and calculated to harm my career.
6. paradise comments on the motivated observations of DG ST are :
(a) The DGST has pointed out that I have covered the issues superficially thus giving a skewed view of the whole study, whereas, I have given detailed comments on transportation and in point form for Supply and FOL. I would like to submit that at no stage was I a member of the Study Team and neither at any stage was I required to undertake a major study of this magnitude. My comments would at best form the inputs for the study which perhaps would have to be taken by the M&T; Directorate. Hence, expecting me to produce a full fledged study without having told me and without making me a member of the study is unfair, unjust and making such observations is totally subjective.
(b) I have been accused of 'plagiary' and consequently professional dishonesty. It would be pertinent to bring to the notice that 'plagiary', is stealing thoughts and writings of others as my own, whereas, in this case, in my own name, my own article titled 'Integrated Transport System', published in the Special Reunion Issue of the ASC Journal was made use of (Refer Appendix 'E' -- copy for ready reference) which by no stretch of imagination and objective thinking tantamounts to 'plagiary'. An accusation of such a baseless nature clearly indicates the prejudice and motivated approach of the DG ST and points to his attitude of trying to tarnish my career on flimsy pretext.
(c) The DG ST has also commented that my perception lacks depth and understanding of issues. However, he has not sustained as to how he has come to such a conclusion. Levelling a blame of this nature without any concrete basis indicates his subjectivity and prejudice against me. If this blame is purported to be supported by 'so-called' plagiary of my own article and thus being professionally dishonest and 'so-called' superficial treatment to the study, then these have already been explained in the preceding paras.
7. I may also kindly submit, that I have never served under Lt Gen JS Bhatnagar, AVSM, VSM on an earlier occasion. Motivation for this baseless and totally subjective Counselling with mala fide intentions to damage my career seems to be the resultant of my expressing inability to Brig CP Tiwari at the time of taking over charge from him as DD ST, 3 Corps to direct when told,the ASC units under technical control to contribute from their Regimental Funds for the maintenance of, ASC House at Delhi. Brig CP Tiwari mentioned that in Oct 95 Rs. 4,000/- paid by the ASC units of 3 Corps from their Regimental Funds was sent as desired by the DG ST for maintenance of ASC House. Again in Nov 95, Rs. 20,000/- collected in the same manner was sent for the maintenance of ASC House.
Prayer
8. I would like to kindly state that the Counselling is motivated, unjust and I apprehend that the DG ST is bent upon spoiling my ACR with a view to damage my career. I have had an unblemished career and request that necessary action be please taken to prevent DG ST from succeeding in his calculated mala fide designs.'
5. On 10.6.1996 the 4th respondent wrote to the Eastern Comd. :
'Hiring of Helicopters under Budget Head 105F
1. Ref your HQ letter No. 31020/3/Oct 95/ST1 dt 20 Apr 96.
2. During my visit to Tolloi, problems regarding provisioning of fresh rations to the adhoc in far flung areas were projected in view of long and tedious Ls of C in that sect. It was suggested by the then DDST 3 Corps that the problem could be resolved by hiring civ heptrs as was done by hiring Kalinga Airlines acs during early 1960's and the payment could be made from Budget Head 105F if permissible within the rules. Para 7 of my tour notes issued vide this Dte Gen letter No. 55247/13/95/GP III/STl dt 13 Dec 95 refers.
3. The paper submitted by DDST HQ 3 Corps is out of context; the subject has been covered in a per functionary manner without going into the details of the subject. Even the topic dealt with has been covered in just two double spaced typed pages. No details, no concrete proposal and no mtrl of value has been include in the paper which could provide adequate depth and imp to the subject. The problem has neither been defined nor its pros and cons analysed before arriving at a logical conclusion.
4. In the paper it has been proposed to auth heptrs to ASC and the acs to be piloted by ASC offers for providing lgs sp to the already existing air maint posts, a task hitherto fore being carried out by AF heptrs. The whole issue seems preposterous and far fetched in the context of our present mil thinking and resources availability. A copy of the paper is encl for yourperusal; at the first instance it should have been vetted at your HQ and returned to DDST 3 Corps for its lack of perception.
5. Such a casual presentation reflects on the lackadaisical approach and the cursory manner in which my directions have been dealt with.
6. I would like the study to be carried out afresh after examining the economic viability of the proposal. DDST 3 Corps may please be Counseled suitably under intimation to this HQ.'
6. On 22.6.1996 Major General N.J. Chinoy wrote to the petitioner following :
'Hiring of Helicopters under Budget Head 105F.
1. Ref tour notes of vis of DGST to Eastern Comd and 3 Corps from 16 to 21 Oct 95 received under Dte Gen of Sups & Tpt, Army Headquarters letter No. 55247/13/95/Gp-III/Q/STl dt 13 Dec 95.
2. Vide Para 7 of Appx 'A' to tour notes ibid you were required to submit a paper on auth and working of lgs heptrs to ASC particularly for use in CI grid environment. The paper submitted by you has, however, failed to measure up to the requisite standards and has consequently been adversely commented upon by the DGST. Anomalies pointed out by the DGST as also those observed by me in summarised form are as hereunder:
(a) The paper is totally out of context in that, the focal theme appears to have been lost sight of. This besides, no-meaningful factual analysis in support thereof has been attempted.
(b) The problem enunciation and methodology adopted for its evaluation, analysis, application and build up leading to logical deductions/conclusions to ameliorate difficulties experienced at ground level have left much to be desired.
(c) The paper suffers from lack of details, concrete proposals and mtrl value which ought to have provided depth, purpose and imp to a subject such as the one at issue. This gives an impression as if adequate research on the subject has not been carried out.
(d) The efficacy of adopting the proposed system i.e. 'Auth and Working of lgs Heptrs to ASC' vis-a-vis the one already in op with associated pros and cons of each have not been found discussed. This apart the economics of hiring heptrs on contract/ad-hoc basis vis-a-vis surface and air means presently in use and the desirability of making payments for such services rendered from Budget Head 105F have not been found evaluated at all.
(e) The viability of implementing the proposal under the prevailing CI ops environment and from other aspects such as op and main costs, trg, adm and lgs, economic and security pts of view do not find coverage to the extent that this subject legitimately deserved.
(f) No concrete recommendations have been made in the paper to resolve multifarious complicated practical problems faced on ground in the day to day main of far flung and isolated AM posts that are scattered all over.
3. In view of the foregoing I do not consider it appropriate to withhold anyreservations while stating that the paper submitted by you not only lacks substance but also macro and micro level perceptions about the application of this complicated problem to ground level realities that exist in the CI ops environment that is prevailing in 3 Corps Z.
4. The DGST desires that the Study should be carried out afresh and a comprehensively researched paper on the subject be submitted to Army Headquarters through this Headquarters at the earliest.
5. Please ack.'
7. On 1.7.1996 the I.O. (Major General Krishan Pal) made the following remarks in the ACR of the petitioner for the period 7/1995 to 6/1996 :
'A tall and smart officer with good military bearing. He is cheerful, articulate and conducts himself well. He is highly motivated, mission oriented, sincere and very hardworking. Has an eye for detail and an analytical mind with sound and practical application which enables him to resolve complex logistics problems in Cl ops environment. Honest, forthright and mature. Has high sense of integrity.
Professional competence is outstanding. Has planned, organized and executed supply & tpt ops in the Corps Zone with effective results. Due to his scrupulous honesty and outstanding technical efficiency, has broken the monopoly of supply and tpt contractors, bringing about competition, resulting in better supplies to troops and optimization as hired tpt. He has instituted efficient SOPs for utilisation and accounting of Head 105 Funds for hired tpt. Takes pains to visit firms and units to get first hand information about standard of rations and constantly strives to improve them. A dedicated, above average ASC Brigadier who is an asset to the Corps. Has high potential for senior staff & instructional assignments.'
On 4.7.1996 R.O. Lt. General Grewal made the following remarks in the ACR:
'1. A vivacious, spirited, excellent, inventive and a go getter. Smart, impressive, confident, determined and resolute. Quick on the uptake, lucid, logical, dedicated and energetic. Possesses a pleasing personality.
2. An outstanding DDST who in a short span got to grips with the main problem of quality of supplies,.... and availability of tpt. Having frequently visited all units/HQs within the Corps Z, he analysed the problem...... and bottlenecks which were effecting efficiency. To improve quality of fresh, additional contractors were encouraged to compete which broke the monopoly of few. It assisted in lowering the rates thereby providing financial savings to the Organisation. Personal involvement, monitoring, imposing his personality and goading the contractors, improved satisfaction levels of troops.
3. He evolved a maintenance policy for the third line fleet under his personal supervision which enhanced main and increased availability of vehicles. Extremely judicious in employment of man power thereby improving man management overhauled the procedures and documentation within the ST Branch which improved statistics control over expenditure of 105F and enhanced availability of CHT. In addition to his duties he has handled A Tioss where living standards food and ....culture improved tremendously. He took personal interest in the functioning of AWWA shops of Saini, Kiyar and bakery where with his efforts all commodities were being sold cheaper than the market and extremely popular with the troops. His handling and management of officers and men is above average. He is deeply involved and conscientious in executing allotted tasks. An outstanding ASC Officer who is an asset to the Organisation. Volunteers for difficult assignments. Excellent staff work with eye for details. Bold and indefatigble, is considerate and humane. Decisive and devoted soldier. Sobre, social and polite possess Expert-de-Corps.'
On 30.7.1996 F.T.O. (First Technical Officer) Major General Jagdish Chander, M.G. ASC, Eastern Comd noted in the ACR :
'Surendra is an energetic and enterprising offer ... has carried out his duties as a DDST in a difficult insurgency Core Zone with zeal and commitment to the satisfaction of the ... Professionally he has handled the conclusive and op of contracts satisfactorily, which ......... utilisation of MT resources at his disposal.Determined to attaining success in better ....... at times he is merciless with hissubordinates. Socially, pleasant and cheerful.'
On 7.8.1996 the petitioner wrote to the Major General (N.J. Chinoy) with a copy to Major General Krishan Pal explaining the position. On 9.8.1996 the 4th respondent had made his remarks :
'Brig S.K. Sahni is a smart and intelligent officer with cheerful disposition. As DDST 3 Corps the officer has put in considerable amount of hard work in providing supplies and transport support/cover to formations. However the officer lacks depth and micro and macro level perceptions required at higher command and staff appointments for which he has been suitably Counseled in writing.'
On 20.8.19% SRO Lt. Gen. Rai Elpe had made his remarks :
'A professionally Competent Officer who has performed very well as DDST of 3 Corps. He is reliable and trustworthy. Capable of producing good results under difficult circumstances.
The report of the TO and HOA on this officer are subjective and harsh. I recommend that they be expunged.'
8. On 22.8.1996 petitioner wrote to the Military Secretary making a request that steps may be taken to avoid writing of his ACRs by the 4th respondent as Head of Service:
'Debarring from Endorsing Remarks in ACR by HOS
1. Vide my letter No SKS/19234/C dated 20 May 96, I have submitted a Non-Statutory Complaint against Lt Gen JS Bhatnagar, AVSM, VSM, DGST.
2. In view of the provisions of Army HQ letter No A/17151/MS4 Coord of 28 Jun 96,1 kindly request that Lt Gen JS Bhatnagar, AVSM/VSM be please debarred from endorsing any remarks as HOS in my ACR for the period 01 Jul 95 to 30 Jun 96 as it will be totally subjective.'
9. On 24.8.1996 Major General Jagdish Chander wrote to the petitioner in reply to the letter dated 7.8.1996.
10. On the basis of oral complaint from Col. Gujral without verifying facts an officer of the rank of Lt. General Cadre, the 4th respondent had written a letter on 26.8.1996 alleging possible involvement of the petitioner in an extra marital affair with the wife of Brig. P.K. Mehta. It is a sheer injudicious act and that shows the attitude of the 4th respondent towards the petitioner. The 4th respondent in his counter though has filed a copy of the letter written by Col. Gujral dated 6.9.1996 had not recounted as to how he could come to a, prima facie, view to come on record to direct an inquiry without any foundation whatsoever. On 26.8.1996 the petitioner made a non-statutory complaint against the adverse remarks of FDO dated 30.7.1996. The same is as under:
Nan-Statutory Complaint Main Body
1. This complaint is against the Technical Report covering the period of 1 July, 95 to 30 Jun 96 rendered on me by the FTO Maj Gen Jagdish Chander VSM.
2. The FTO has given me a box figurative assessment of and a run down of my performance. I may kindly submit that, I feel he has been influenced by the performance Counselling issued to me by Lt Gen JS Bhatnagar, AVSM, VSM, DGST, a copy of which was endorsed to Maj Gen Jagdish Chander, VSM (Refer Appx 'B'-letter No 13021 /P/25 dated 30 Apr 96).
3. The FTO had never visited 3 Corps Zone during the period I have been DDST, hence his assessment could best be based on inputs from 3 Corps and reports of IO and RO, who, on account of my interaction with them daily have an intimate knowledge of my performance.
4. The FTO has stated in his report:
'Surendra is an energetic and enterprising offer who has carried out his duties as a DDST in a difficult insurgency Corps Zone with zeal and commitment to the satisfaction of the firm'. This endorsement apparently tantamounts to totally agreeing with the remarks of the IO, Maj Gen Krishan Pal, VSM, COS, who has figuratively assessed my 'Professional Competence' and 'Technical Efficiency' as 9 (Outstanding) (Refer Appx 'C'- Extract of report by IO) and in the pen picture, he has explicitly stated that my 'Professional Competence' and 'Technical Efficiency' is outstanding. Further, he has, elaborated my 'Technical Efficiency' in no uncertain terms. The FTO has stated nothing in contradiction to it. I have no doubts that the RO too would have assessed me similarly.
5. In view of above it would be out rightly apparent that the FTO has been subjective and has run down my performance by awarding a box grading of '7', knowing fully well, that with the' present trend of selection, I would stand no chance of being approved for promotion to the next rank with a box grading of '7'.
6. The FTO has also stated that 'at times I am merciless with my subordinates'. I feel, this a figment of his imagination as no subordinate has complained/ represented on this aspect against me and nor had the FTO every even casually mentioned of it to me. Also, he has not substantiated his statement with facts. It would be pertinent to mention that making a subordinate work and produce results cannot be termed as being merciless.
Redress Sought
7. I would like to kindly submit that the figurative assessment of '7' by the FTO is subjective and apparently an attempt to run down my performance, so that, I stand no chance .... for being approved for promotion to the next rank. In fairness and justice to me I kindly request that the box figurative assessment of '7' by the FTO be please set aside and my career saved from being ruined.
8. I also request that his remark of me being 'at times merciless with my subordinates' be please expugned as it is not substantiated by facts.'
11. On 29.8.1996 the petitioner wrote the Major General N.J. Chinoy in reply to his letter dated
28.4.1996. It is as under:
'Hiring of Helicopters under Budget Head 105F
1. Refer to your letter No 310203/3/ Oct 95/ST1 dated 24 Aug 96.
2. In response to your paradise obsns/comments, my paradise comments are appended in the succeeding paragraphs please.
3. Para 3
(a) I may kindly submit, that as you had to seek a clarification on the subject from the DGST, it clearly highlights, that you, even after issuing the counselling to me vide your letter No. 310203/3/Oct 95/ST1 dated 22 Jun 96 were not aware of the exact requirement. Its strange that despite my explaining to you vide para 2 (b) of my letter No SKS/19234/13-C of 07 Aug 96 that :
(i) The pt in the Tour Notes is at a variance to the subject now being contended.
(ii) No background to the discussion was conveyed to me by Brig CP Tiwari.
(iii) Despite my requesting your staff on telephone and request made vide para 5 of our letter No 34006/DGST/ST1 dated 03 Feb 96 that the background to the pt and the exact requirement be please intimated it was not done :
You have totally ignored all above and have gain conveyed what the DGST has stated to you.
4. From what the DGST has stated the following very clearly emerge:
(a) The subject now being stated is in reality different to what is in the Tour Notes.
(b) The clarification on the requirement has been spelt out now i.e. after issue of counselling by you to me on directions of the DGST.
(c) I am expected to carry out a thorough research and analysis of the topic and write a Mil Paper on the subject and also carry out a thread bare analysis on hiring of heptrs under budget head 105F.
(d) The paper is of utmost importance from the aspect of main of posts which cannot be maintained by rd in a CI environment.
5. It is also quite evident from what you have conveyed that, apparently the DGST because of my experience has selected me to undertake a study which he considers so important. I feel pained in pointing out the vide your letter No. 19558/MS/ Coord dated 21 Aug 96, you forwarded the extract of the report endorsed by the DGST as HOS on me, wherein he has endorsed that 'I lack depth and micro and macro level perceptions required at higher command and staff appointments'. The fact, that even after the date of endorsement of these remarks in my ACR, I am being directed to undertake a one-man study considered to be important, clearly reflects the subjectivity of the DGST in endorsing the above remarks in my ACR.
6. It is also pertinent to mention that whenever a study is ordered a comprehensive brief covering the background and requirement is spelt out. This was not done in this case. On the contrary, nothing was spelt out and I suppose I was expected to visualise it with my imagination. In view of it, I have no hesitation in stating that the direction given to you, and your issuing the Counselling to me was totally motivated with a view to damage my career further.
7. Para 4.1 regret for the typing error. The date of visit was 22 Mar 96. It is strange again that the guidelines given to me by the then MGASC, based on which the paper was written, is being conveniently ignored.
8. Para 5. There is no ambiguity in the direction given to you by the DGST vide his letter No 13021 /P/25 dated 10 Jun 96 to counsell me suitably under intimation to him. If contents of para 3 above were to be seen objectively then your perception would have been totally different, but this was not so. The rationale for my saying that by issuing the counselling you have been subjective and most unfair and unjust would perhaps be apparent now. Notwithstanding above, I agree that as a Senior Offer, you are well within your rights and entitled to formulate/pronounce your own views on a subject. But, at the same time, as your junior, I look upon you to be fair and just.
9. I would like to apprise you, that besides checking from the Col GS(Trg) this HQ, I had also checked from Maj Gen SP Singh, VSM, MGASC Northern Comd and Brig Avtar Singh, BGS(Ops) Northern Comd whether any mtrl on the subject was available with them but they conveyed their regrets as none was available with them. It is indeed strange that for a study considered so important by the DGST, you consider there is no requirement for me to move on TD to interact with concerned people. I may kindly mention that the study does not involve a mere conceptual thinking. Facts and financial viability have to be analysed for which factual inputs are required/and this can be done best by personal interactions.
10. Para 8.1 may kindly submit that I am well competent to undertake this study, considered so important by the DGST and the fact that he has directed that I undertake it, clearly reflects his confidence in my capability. However, I submit, that I be please not treated as a school kid wherein bonito my work is to be supervised and scrutinised by you.
Copy to :
Maj Gen Krishan Pal, VSM
COS, HQ3 Corps, C/O 99 APO
1. Refer :
(a) My letter No. SKS/19234/ E-C dt 07 Aug 96.
(b) Photo copy (enclosed) of letter No 310203/3/Oct95/STl dt24 Aug96 of MG ASC Eastern Comd.
2. I kindly submit that MG ASC Eastern Comd vide above quoted letter has directed me to undertake a very comprehensive study on 'Auth and Working of Lgs Heptrs to ASC particularly for use in CI grid environment', with a thorough research and analysis of the subject. I may also please mention that I am being denied, means whereby valued mtrl could be obtained to do justice to the paper.'
12. On 27.8.1996 the petitioner had sent, a non-statutory complaint against the remarks made by the 4th respondent as HOS covering the period 01 July 1995 to 30.6.1996. The same is as under :
'1. This Non-Statutory Complaint is against the ACR covering the period 01 Jul 95 to 30 Jun 96 rendered by HOS Lt Gen JS Bhamagar, AVSM, VSM, DGST on me.
2. The DGST has endorsed the following adverse remarks in my pen picture (Refer Appx 'A' -- Extract of remarks by HOS):
'However, the officer lacks depth and micro and macro level perceptions required at higher command and staff appointments for which he has been Counseled in writing'. I may kindly submit that the above is subjective, biased and pre-designed to damage my career and ensure that I do not get approved for promotion to the next rank.
3. The DGST had issued me a performance counselling vide his letter No 13021 / P/25 dt 30 Apr 96 (Refer Appx 'B' copy of the said letter). This was apparently a forerunner to ruin my career. It would be pertinent to mention that the DSGST in his above quoted letter has not substantiated as to how he has come to the conclusion that my perceptions lack depth and understanding of issue. Also no where in the letter is there any mention of the words 'Micro & macro level perceptions required at higher comd & staff appts'. The words mentioned are 'Your perception & depth of understanding of issues involved'. Vide my letter No. SKS/19234/C dt 20 May 961 submitted a Non-Statutory Complaint (Appx 'C'--Refer copy of Non-statutory Complaint) against the performance Counselling. Its would be very evident from the above mentioned Non-Statutory Complaint that I have with no ambiguity whatsoever demolished this as well as other observations made by the DGST.
4. The DGST had never visited 3 Corps Zone during the period I have been DST and the only ground on which he had issued endorse adverse remarks in my ACR as HCS are the comments forwarded by me to the RGASC Eastern Comd on HQ ARTRAC paper 'STUDY SETTING--COMBAT SUPERIORITY'.
5. This paper was discussed in detail by me with the COS Maj Gen Krishan Pal, VSM who is very knowledgeable on the subject and I had forwarded the comments after his approval. I would kindly request that comments if any by IO Maj Gen Krishan Pal, VSM COS and RO Lt Gen SS Grewal, AVSM, SM, VSM GOC HQ 3 Corps and SRO Lt Gen Ravi Eipe, AVSM, GOC-in-C Eastern Comd on my above quoted Non-Statutory Complaint may please be perused as I am confident that they would form a very valuable into see the subjectivity and motivated plan of the DGST.
6. I may also kindly mention, that the DGST has nothing adverse to comment on my professional and technical performance assessed as outstanding by the IO (Refer Appx'D')'--Extract of IOs report). The IO & RO who have been seeing me and interacting with me daily are the most competent persons to comment on my depth of knowledge and my micro and macro level conceptions required at higher command and staff appointments. It would be pertinent to mention that the IO in no uncertain terms has in my pen picture stated :
'Has high potential for senior staff and instructional assignments'. He has also stated :
'Has an eye for detail and an analytical mind with wound and practical application which enables him to resolve complex logistics problems in CI Ops environment'. The above clearly speaks that the adverse remarks of the DGST are totally subjective.
7. The RO too, I am sure would have assessed me similar to the IO. It would be pertinent to mention that by any standards of judgment comments by the IO and RO outweigh those of the DGST on my depth of knowledge and micro & macro level perceptions.
8. I may also kindly mention that though as per the rule the figurative assessment has not been communicated to me, I have no doubts that the DGST would have given, 6 or 5 which for the reason already explained is subjective & predesigned.
9. From above it would be very evident that the adverse remarks endorsed in my ACR and presumably low figurative assessment was predesigned and the performance Counselling served on me a forerunner for the mala fide designs to ruin my career. I am sure that the IO, RO & SRO would have given their comments on my earlier Non-Statutory Complaint and would also do so on this. All these comments would form very valuable inputs to assess the predesigned motive of the DGST to damage my career.
Redress Sought
10. I humbly request that in view of the foregoing details and in fairness & justice to me, the complete ACR by Lt Gen JS Bhatnagar, AVSM,VSM endorsed on me as HOS for the period 01 Jul 95 to 30 Jun 96 be please set aside and my career saved from being ruined.'
13. On 6.9.1996 Lt. Col. Gujral had written the following letter:
' 1. I am constrained to bring to your notice that the image of our Corps has been lowered by the personal conduct of Brig SK Sahni, DDST, HQ3 Corps. Ontermination of his annual leave, the officer brought Along with him one Mrs. Saroj Mehta, wife of Brig Pradeep Mehta. She was accommodated in Guest Room No.2, 'A' Officers Mess, HQ3 Corps from 29 Jul 96-01 Aug 96. The guest room was booked two months in advance on the name of Brig 8 Mrs P Mehra. Subsequently, they both travelled in civil car hired by HQ 3 Corps in Guwahati on 01 Aug 96 and caught the evening flight by Indian Air Lines in Calcutta. The officer had enhanced his date of temporary duty at HQ Eastern Command scheduled from 07-11 Aug 96 in 01-04 Aug 96. At Calcutta they stayed at MES 18 from 01-04 Aug 96. Brig SK Sahni reported back on 04 Aug 96 whereas Mrs Mehta was scheduled to fly back to Delhi by LA morning flight on 06 Aug 96.
2. I feel it as my moral obligation to bring the above facts to your notice as the Senior Colonel Commandant of our Corps.'
14. It is to be noticed here that the 4th respondent had not taken even the elementary precaution of enquiring Lt. Col. Gujral as to how did he come to know the facts whether there was any basis for such a complaint against a high ranking officer and how could Lt. Col. Gujral write without any material.
15. On 9.9.1996 Major Gen Krishan Pal (IO) had noted :
'Additional Background INFO by the Co
1. Gen Comments. (With respect to Background Info given by the complaint)
Since day of reporting, Brig SK Sahni has been functioning wherein I have daily contact and am in a very good position to comment on him and his functioning.
2. Disciplinary Background
Pediment/Censure Awarded Offence Date of award
--NIL-
Details of Non-Statutory or Statutory Complaints
Submitted Previously : Ref/Date of ComplaintSubject matterResult (Redress granted/rejected under examinationDate(Action Completed/(a)Forwarded to HQ3 Corps vide letter No SKS/19234/C dated 20 May 96.Against performanceCounselling issued by HOS Lt Gen JS Bhatnagar, AVSM, VSM.Still awaited. (b)Forwarded to HQ 3 Corps vide letter No KS/19234/ACR/ T/dated 26 Aug. 96Against theTechnical Report rendered by the FTO.Still awaited.
Involvement of other officers/JCOs/NCOs/OR / Civilians in the case and punishment if any awarded to the personnel involved.
--NIL-
On 11.9.1996 Major Gen Krishan Pal COS had made his comments:
'Comments of Reporting Officers of Impugned CRs.
COMMENTS BY PRESENT TOIC-14039XMAJ GEN KRISHAN PAL, VSM* CHIEF OF STAFF HEADQUARTERS 3 CORPS
1. Brig SK Sahni is the DDST of the Corps deployed in OP ORCHID & OP HIFAZAT since 25 Dec 95. I have frequent contact with him and as COS of the Corps am responsible to closely monitor his performance.
2. Brig Sahni is an honest and upright officer. He is technically and tactically efficient. He takes pains to go into minor details and precisely watches the logistics requirements to meet operational needs with optimal utilisation of resources. He is well read, articulate and has depth of understanding of macro level concepts of logistics and operations at Corps and Army levels. He will be an asset at higher level assignments as he is rapable of streamlining the structure and functioning of the Supplies and Transport Operations to compliment operational needs. He has displayed his conceptual skills, grasp and substantive depth in several discussions at the Corps.
3. I recommend that adverse comments and low figurative assessment of the DGST be set aside as represented by the officer. It is subjective and calculated to block the career of a fine and competent officer.'
On the same day i.e. 11.9.1996 Lt Gen S.S. Grewal, GOC had made his comments:
'Brig SK Sahni has been DDST 3 Corps since Dec 95. Besides my daily interaction with him, I have known him from earlier and hence am in a very good position to comment on his depth of knowledge and micro and macro level perceptions required at higher command and staff appointments.
2. Brig Sahni is a very well read articulate officer whose depth of professional knowledge are very highly appreciable. As a result of it, he can converse and put across his views on any subject in a methodical and analytical manner convincingly. His micro and macro level perceptions required at higher command and staff appointments are crystal clear and commendable. This he has amply demonstrated in the course of various discussions and its application in this very difficult CI environment. I have no reservation in saying that the officer is most ideally suitable for higher command and staff appointments to which beyond any doubt, he will be able to do appreciable justice.
3. The DGST, Lt Gen JS Bhatnagar has never visited the 3 Corps Zone ever since Brig SK Sahni has been the DDST. I fully endorse the view of the officer that the 'Performance Counselling' issued by the DGST to him was a forerunner and a very calculated plan to damage his career. It would be pertinent to say that no where in the Counselling has the DGST substantiated as to how he has come to the conclusion that the officer lacks depth and understanding of issues.
4. It would be pertinent to peruse this non-statutory complaint in conjunction with the officer's previous non-statutory complaint against the 'Performance Counselling' issued to him by DGST Along with my and Maj Gen Krishan Pal's comments. This would make transparently clear that the adverse remarks endorsed by the DGST in the Officers ACR for the period 01 July, 95 to 30 June, 96 are baseless, predesigned and a concerted and well organized effort to totally damage the above average career profile of the officer.
5. I strongly recommend that in fairness and justice to Brig SK Sahni, the complete report of the DGST be set aside and his career saved from being ruined.'
On 22.9.1996 Brig P. Mehta had written a letter to the petitioner explaining theposition. The same is as under:
'I became aware of some extremely malicious and demeaning allegations against my wife concerning her visit to Dimapur at the end of July 96. I have already apprised you earlier of the personal and private nature of her visit in connection with her own business. That these allegations have been made by no less a person than the DGST,......... the fan name of a lady and bringing my own reputation to question, without any reference to us, is a matter of deep anguish, regret and monstrous. I hereby declare that they are... and fabrication, and demand that appropriate action be taken against all concerned, who have apparently entered into a conspiracy to bring out reputations into disrepute.
I had sent my wife along with Brig S.K. Sahni, whom I have known for years as a man of known, is a deep and respected personal friend. To learn that unfounded allegations of extra marital relations have been heaped upon him and my wife is deeply dislinking, and entriguing. I have not complained to the DGST or to any one else in authority--so why did the DGST rake up allegations with which he had no concern, unless his motives were suspect and ulterior. It is my behalf that these allegations, which are fabrications, have been made with a view to settle personal.... with Brig S.K. Sahni, never mind if other innocent people are hurt in the process. If this is indeed the case, as an inquiry by you may reveal, then it is not the conduct of an offer and gentlemen occupying the highest position of authority in the office of the DGST -- it is usually unethical and reprehensible. The DGST, and the others involved in this calumay, do not know me or my wife,but this has not stopped them from character assassination, and image of my wife.
You are aware of the fact, which I reiterate again, that my wife and I had planned to visit Dimapur at the end of July, 96 on a personal visit. I had even arranged for accommodation at your mess. At the last moment, however, I could not get leave, and my official work have precluded my visit at that point of time--and I had to cancel my visit. Since my wife had to go to Dimapur and areas in vicinity in connection with her business, I requested Brig S.K. Sahni who was returning from annual leave (and is a very close and dear friend), to escort my wife to Dimapur, and see that she should be comfortable enroute and at Dimapur.
On reaching Dimapur on 30 July, 96 my wife spoke to me, and again on 31 July,96, when she informed me that due to serious security problems in the region, movement to towns was prohibited, and hence any business activity was inadvisable/impossible. Brig SK Sahni also apprised me that he regretted his inability to help her visit Dimapur or Kohima. I told my wife she should exist the area earliest, and go to Calcutta. I asked her to ask Brig SK Sahni to arrange for her to go to Guwahati, from where she could go to Calcutta by air. I told her I would make necessary accommodation and transport arrangements at Calcutta.
Brig S.K. Sahni spoke to me on 01 Aug., 96, and he apprised me he was to go to Calcutta on 02 Aug., 96 for some official work. I suggested that he could thereforee escort Beeta to Calcutta so that she should not have to travel alone. I had earlier already spoken to Maj Gen C Narain and Col Ajay Pahwa (Col Q-ops) at Eastern Comd to make arrangement for Beeta's stay from 04/05 Aug., 96.1 then rang up on 01 Aug 96 and again spoke to Gen C. Narain to propone accm to 02 Aug., 96 Since the COAS was visiting Calcutta on that day, my wife's accm was arranged at Zonal Engr Offer Mess by CE Eastern Comd wef 02 Aug., 96. Col Pahwa had arranged both transport and subsequent accm within the DSOI guest rooms for my wife.
But I am shocked and pained to learn that not only have attempts been made to falsify details of her accm stay at Guwahati & Dimapur, totally unwarranted malicious allegations and aspersions have been cast on my Wife character and person. This has occasioned her deep anguish, depression and agony.
I thereforee demand that suitably strong action be taken against all those who have been party to the conspiracy in intruding on the privacy of our lives, taking unwarranted interest, distorting facts culminating in character assassination through false allegations amounting to defamation, The conduct of the DGST has been particularly reprehensible, and he has brought the.....of the army and his office into disrepute.
May I request you to kindly pursue the matter vigourously, and bring the culprits to book, & account for their transgressions.'
The 4th respondent was fully aware of it and he had not taken any action against Col. Gujral for making a false complaint.
16. On 27.9.1996 the 4th respondent himself had made his comments :
'COMMENTS BY FTO, MAJ GEN JAGDISHCHANDER, VSM, EX-MGASC HQ EASTERN COMMAND ON NON-STATUTORY COMPLAINT OF IC-19234Y BRIG SK SAHNI, ASC, DDST HQ 3 CROPS
1. Brig SK Sahni was my DDST at HQ 3 Corps and I had been interacting with him quite frequently. On a couple of occasions the officer also visited my office at HQ Eastern Command to discuss ST matters. I also had previous knowledge of the officer as we had served together at 517 ASC Bn (Sikkim) where he was my Company Commander for nearly 2 years.
2. Brig SK Sahni is an honest and extremely efficient officer who takes great pains in accomplishing tasks assigned to him. He is also shrewd and sharp and would not mind being merciless when dealing with subordinates.
3. The issue in question is the remarks of DGST in the officer's reportwherein the DGST has stated that the officer lacks depth and micro andmacro level perceptions at higher command.
4. Apparently the remarks of DGST are based on his performance Counselling letter No. 13021 /P/25 dated 30 Apr., 96. I have had the privilege of going through the paper submitted by the officer as a result of which the officer was issued a performance Counselling. In fact, that paper was forwarded by me to the DGST at Army HQ to apprise him of the competence and ability of Brig Sahni, to assimilate issues at higher levels of command. As is known, this paper was to examine/identify force multipliers available in the ASC which could be utilised for assessing and enhancing combat superiority norms of the armed forces.
5. I am afraid Brig SK Sahni's paper submitted to me gave me animpression that the officer did not even understand what was expectedof him. His plea now, thereforee, that he had discussed the paper with theCOS HQ 3 Corps and forwarded it after his approval, is only to pass thebuck and absolve himself of inadequacies. I, thereforee, consider theremarks of DGST, that the officer lacks macro level perception and theunderstanding of issues being quite justified. In fact it would be worthwhile for reporting officers to read this paper so that they can arrive atjust conclusions of this officer's abilities at higher levels of command andstaff.
6. It is also pertinent to mention that performing routine functions efficiently does not qualify an officer automatically for higher command appointments. thereforee, while there is no doubt that the officer's performance has been very satisfactory, his potential for higher command and staff assignments based on his written performance is suspect. thereforee, I consider the remarks of the DGST justified and recommend that the non-statutory complaint be dismissed without favour.'
On 15.10.1996 again the 4th respondent made his comments and he would not say anything with reference to the letter received by him from Col Gujral about the extra marital affair already referred to.
17. On 23.10.1996 Lt Gen Ravi Eipe had given his comments :
'COMMENTS OF LIEUTENANT GENERAL RAVIEIPE, AVSM, GENERAL OFFICER COMMANDING-IN-CHIEF, EASTERN COMMAND, ON NON STATUTORY COMPLAINT OF IC-19234Y BRIG SK SAHNI, ASC, DDSTHQ 3CORPS
1. Having gone through the non-statutory complaint and the comments of various officers in the chain of reporting, I am of the view that the earlier non-statutory complaint of Brig SK Sahni, in which he has alleged the paymentsfrom regimental funds of units towards the maintenance of the ASC House in Delhi, has contributed to the straining of relations between the DGST and the ratee (Brig SK Sahni).
2.1, thereforee, recommend that the ACR by the Head of the Service be set aside being subjective.'
18. In the above setting so far as the petitioner is concerned the Selection Board had its 134th meeting on 31.10.1996. There were 8 officers who constituted the Selection Board are:
Chairman--General S Roychowdhury, PVSM, ADC COASMembers-- Lt Gen HMKlianna, AVSM GOC-in-C Southern Command -- Lt Gen Ravi Eipe,AVSM GOC-in-C Eastern Command -- Lt Gen ChandraShekhar, AVSM GOC-in-C Central Command -- Lt Gen SPadirumabhan, AVSM, VSMGOC-in-C Northern Command -- Lt Gen SK Sharma,PVSM, AVSM GOC-in-C ARTRAC -- Lt Gen VP Malik,PVSM, AVSM, ADC VCOASSecretary--Lt Gen MR Sharma, VSMMS
The following documents with reference to officers whose cases were placed before the Selection Board:
'(a) Master Data Sheets (MDS)--The MDS broadly contained the IC No., date 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, Col and Brig 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 Seriall number of each CR as they appear in the CR Dossier, period, rank and appointment, in which CR was earned, the type of appointment whether the CR was earned in peace, field 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, the recommendations for promotion and the names of Reporting Officers.
(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.'
19. thereforee, it cannot be disputed by the respondents that the Selection Board had all the particulars about the officers who had been considered by the Selection Board for promotion. The Chairman of the Selection Board (Chief of the Army Staff) had given his opening address explaining how the process selection is to be made:
'Opening Address by the Chairman Special & No. 1 Selection Board
1. We are assembled here to assess officers for promotion to the rank of Maj Gen and Lt Gen. In addition, we are required to assess few officers for induction into General Cadre. I wish to highlight certain guidelines which will enable an objective process of election to be adopted.
Assessment Guidelines
2. It is hardly necessary to stress the need for absolute objectivity while assessing the officers. Assessment should be based on the available record of service and should not be unduly influenced by personal knowledge, if any, of the officer being assessed.
3. Selection must be based on the overall profile of an officer, with special emphasis on his performance in command appointments and during operations. You will find in the folder, placed before you, the criteria for promotion of officers being considered by the Board for promotion to the rank of Maj Gens and Lt Gens. These criteria should serve as a guide and you are requested to be judicious in applying them. Due consideration should be given to consistency of performance, performance on courses and diversity of appointments held coupled with degree of difficulty, which enhance or restrict employability. Character qualities of an officer, disciplinary background, if any, and the decorations won by him should also be taken into account.
4. While recommendations for promotion must be taken note of, these should be examined Along with the figurative profile, pen-picture, results in important courses, the potential of the officer and his employability, Ultimately, you should be comparing the merits of the officers as also evaluating 'average', 'High average', 'Above average' and 'outstanding' ratings, against the prevailing norms in the Army.
5. Consistent performance should be given priority over late starters and those whose performance tends to fluctuate.
6. A note of caution would help at this stage. Please look out for the following:
(a) Element of magnanimity leading to sudden elevation in figurative assessment, especially in the case of officers who have been superseded or are in the zone of promotion.
(b) Element of subjectivity in reports.
(c) Moderation by superior reporting officer, particularly in case where officers have been over or under assessed.
7. I would like you to remember that grading 'A' for promotion is to be given only to those officers who have an 'outstanding record of service and not to those officers whose record of service appears to be the best in relation to others in the particular batch under consideration.
8. So far as selection of officers under the Two Stream' concept is concerned, General Cadre officers will be first screened to assess their suitability for promotion to the higher rank. Those considered fit will be subjected to anotherscreening for bifurcation into the two streams, i.e. 'Command and Staff and 'Staff only'.
9. While selecting the General Cadre officers for 'Command and Staff stream, you must keep in mind that his performance in Command assignment should have been of a higher order and he would have adequate exposure on Staff/ Instructional appointments. You must ensure that the officers, so selected have wide employability in higher ranks.
10. The General Cadre officers, for selection for promotion in 'Staff only' Stream should have satisfactory performance in command assignment and should be fit in all respects to hold various staff, instructional and ERE appointments in the higher rank.
11. So far as consideration of the Non-General Cadre Major Generals for 'Staff only' Stream is concerned, these officers will be first screened to assess their fitness for promotion to the rank of Lt Gen within own Corps. Those considered fit will be subjected to another screening to assess their suitability to hold unspecified staff appointments in the rank of Lt Gen.
12. I would like to draw your attention to the element of vacancies. It means while selecting officers, we are to keep in view the vacancies likely to be available for that batch during the year/following year. These vacancies will be indicated by the MS. Briefly, the parameters adopted for calculation of vacancies, are that vacancies are calculated on the basis of retirements and chain vacancies during the ensuing year. Comparative figures for the preceding and the two following years are examined, so that any moderation for extreme variations in batch sizes or vacancy pattern can be effected, if necessary.
Record considered
13. For promotion to the rank of Lt Gen, officers' CRs earned in the rank of Maj Gen and Brig and for promotion to Maj Gen CRs earned in the rank of Brig and Col/Lt Col are considered. However performance in the present rank (Maj Gen/Brig) will be of paramount importance.
Conduct of proceedings
14. You will find a folder containing computerised member data sheets (MDS) in respect of officers under consideration. You will also find a copy of scoring sheet, (GC SS-1) in case of General Cadre officers for both Special Selection Board and No. 1 Selection Board in which names of officers have been indicated exactly in the order of their consideration. The conduct of the Board will then proceed in the following manner:
Procedure for selection of 'Command & Staff and 'Staff stream in respect of Gen Cadre officers
(a) The Secretary will introduce relevant details of each officer from the MDs. He may also bring to the notice of the members certain relevant aspects from the MDs, as considered necessary.
(b) Should you then desire any other details to be read out from any of the reports or seek clarifications, it will be provided by the Secretary.
(c) Thereafter you will record one of the following grading on the score sheet 'GC SS-1' against the name of the officer.
Grading Interpretation
(i) 'A' Fit for accelerated promotion,
(ii) 'B' For for promotion in his turn.
(Select panel based on number of vacancies).
(iii) 'D' Defer,
(iv) 'W' Withdrawn,
(v) 'Z' Unfit for promotion.
(d) At a suitable interval the scoring sheets will be collected & results of your consideration collated.
(e) The Secretary will, then place scoring sheet No.2/.e., GCSS-2 before you and indicate the cases of split votes or major variations from internal assessment.
(f) At this stage discussion may be held with the permission of the Chairman to enable you to reconsider your grading.
(g) Your revised grading is now required to be recorded on the scoring sheet No 2. on the scoring Sheet No 2 you will indicate your grading and further indicate the stream of the officer for which he is considered suitable by you. The grading will be indicated as follows:
Grading Interpretation
(i) 'A' Fit for 'Command and Staff' (C&S;)
(ii) 'B' For for 'Staff Only'. (S)
(h) These scoring sheets will then be complied by the MS Staff. If considered necessary the Secretary will put up cases for reconsideration for which procedure as at (f) above will be adopted.'
Appendix C to the Address refers to promotion of ASC officers to the acting rank of Maj Gen:
Fresh Cases -1967 BATCH SB GRADING1. BRIG VEDA PRAKASH(IC17650) ASC Z2. BRIGSKSAHNI(IC19234),ASC B(Fit)
20. After the meeting the papers were duly forwarded to the Government of India. On 18.11.1996 Under Secretary in his note had said :
'Sub: No. 1 Selection Board-ASC
It is seen that the ASC is running much ahead of Arms and other Services as 1967 batch of ASC has been considered whereas officers of 1965 or earlier batch have only been considered for Arms/Other Services. The Board proceedings have been examined. The following observations are made:
(i) Brig Veda Prakash (Sl.No.1)--The officer has an above average profile and also SC and LDMC qualified. He has not earned any adverse remarks in any of the CRs earned in the rank of Brig. Brig SK Sahni (Sl.No. 2) has earned adverse remarks in CR 12/95-6/96. The Technical Of officer and the HOA have assessed him 7 and 6 respectively in that report. His first report is also an inflated report as per the internal assessment of the MS Br. It is thereforee considered that Brig Veda Prakash should be graded 'B' (fit) and Brig Sahni 'Z' (unfit).
(ii) Brig RS Solariki(Sl. No. 4)--This Final Review case deserves to be graded 'B' (fit). The high average figurative award by the HOS in CR 93-94 mismatches with his pen picture and CAB have already recommended its expunction on the officer's statutory complaint. The officer has earned five dear above average reports from 11 /92 onwards.
(iii) Brig NP Singh (Sl. No. 9)--The officer is LDMC qualified and has an above average profile except that in CR2/91 -8/91. RO has awarded him 5 in PQ 'Emotional Stability'. The officer deserves to be graded 'B' (fit) as a First Review case.
2. MS Br are requested to favor us with their comments.'
On 26.11.1996 Dir/Dy MS (x) dealing with the note of Under Secretary dated 18.11.1996 had given his opinion:
'No. 1 SELECTION BOARD--OCT 96- ASC
1. Please refer to your Id No. 4676/96/D(MS) dated 18 Nov 96.
2. Our comments on the cases mentioned in your note under reference are given in the succeeding paragraphs.
Brig Veda Prakash (Sl No. 1)
3. (i) Brig Veda Prakash is due to retire in the present rank on 30.4.97. The next vacancy of Maj Gen in EME is arising only on 1.5.97 i.e. one day after his retirement. Hence even if he is approved, he cannot be promoted.
(ii) Brig SK Sahni (Sl No. 2) is SC, LDMC & NDC qualified. While the TO & HOS have given lower rating with adverse remarks, the SRO (Army Cdr) in the same CR has given B points box grading with remarks that 'the reports of the IO & HOA on this officer are subjective and harsh.' The Selection Board thereforee feels that Brig Sahni deserves to be approved on the basis of his overall profile.
Brig RS Solanki (Sl.No.4)
4. Even if the high aver age figurative award by the HOS in CR93-94 is expunged his first two reports till contain a large number of high average (5) points. The officer is also not qualified in any 'all arm' courses.
Brig NP Singh (SL No. 9)
5. Besides a 5 point grading by RO in quality 'Emotional stability' in CR 2/91-8/91 he has been awarded a large number of 7 points (lower bracket of above average) in his CR at Sl. No. 4, 5, and 6 both in the box and in PQ/DP. He has, thereforee, rightly been graded Z (Unfit).'
On 1.12.1996 the petitioner had made a non statutory complaint against the 4th respondent:
'This complaint is against the continuous efforts of Lt Gen JS Bhatnagar, AVSM, VSM, DGST to damage my career and malign me and the harassment being caused to me.
Main Points of the Complaint
6. Vide HQ Eastern Command letter No 310140/6/ST of 04 Mar 96 it was desired by the MGASC Eastern Comd that I forward my comments on HQ ARTRC Paper 'STUDY SETTING COMBAT SUPERIORITY'. I had discussed the issue with Maj Gen Krishan Pal VSM* COS this Corps who has a very good lgs background as he has been DDGOL at Army HQ and is the most appropriate person for such subjects. Based on my experience and discussion with the COS, I forwarded my comments after his approval to MGASC, Eastern Comd vide my letter No 34000 /ST1 of 22 Mar 96, which were apparently forwarded to the DGST, who, vide his letter No 13021 /P/25 dated 30 Apr 96 issued a Counselling to me with a copy to Maj Gen Jagdish Chander VSM, who by then had taken over as Chairman CSD. I had put up a Non Statutory Complaint against this Counselling vide my letter No SKS/19234/C dated 20 May 96. The CAB Acknowledgement No for this complaint is NI38896. A copy of the salient details of my complaint less Appendices I am enclosing as Appx 'A' for ready reference please.
7. As apprehended by me, the DGST endorsed adverse remarks in my ACR based on the 'Performance Counselling' issued. I submitted a Non-Statutory Complaint against the ACR rendered by the DGST as HOS vide my letter No SKS/19234/HOS dated 27 Aug 96. The CAB Acknowledgement No allotted for this complaint is NI 38596. A copy of the salient details of my complaint less Appendices is enclosed as Appx 'B' for ready reference please.
8. During his visit to the Corps Z from 16 to 21 Oct 95, the DGST gave a pt to the then DDST(Brig CP Tewari) that a paper on Auth and Working of Lgs Heptrs to ASC particularly for use in CI grid environment be submitted but no action was taken by Brig Tewari. I took over as DDST on 29 Dec 95 and was directed by the then MGASC Maj Gen Jagdish Chander, VSM to submit the paper. Despite my seeking clarification from HQ Eastern Comd (ST) on what the exact requirement was, it was not given. During my visit to MGASC, Eastern Comd on 21/22 Mar 96 on seeking clarification I was told that I should suggest that heptrs be auth to ASC and to be piloted by ASC Offers. Also, a ref to main by Heptrs in 'OP Pawan' be given. This suggestion was considered preposterous and criticised by the DGST and vide his letter No 13021/8/25 dated 10 Jun 96 (Att as Appx 'C') directed Maj Gen NJ Chinoy MGASC Eastern Comd to issue a suitable Counselling to me. It is pertinent to mention that the above letter was 'Confidential' but was endorsed to the by appt and not by name as a result of which it was opened by the clerical staff and seen by others (Refer reverse of Appx 'C'). I feel this was an attempt to humiliate me.
9. I have now been directed by the MGASC, Eastern Comd vide his letter No310203/3/Oct 95/ST1 dated 24 Aug., 96 (Att as Appx 'D') to carry out a thorough research and threadbare analysis and write a mail paper on 'Hiring of Heptrs under Budget Head 105'. It is pertinent to mention that though the subject heading now given is different, it is considered that there is no difference in the two. My letter No SKS/19234/E-C dated 29 Aug 96 in reply to above is enclosed for perusal please (Att as Appx 'E'). From the two letters, the intentions to harass and corner the would be quite apparent.
10. The DGST, under his letter No A/60122/Q/ST2 dated26 Aug96 alleged my possible involvement in extra marital affair with Brig P Mehta's wife. I learn that an investigation has been got carried out by GOC 3 Corps and GOC-in-C Eastern Command are the best persons to give their comments on this aspect.
11. I would like to humbly submit that on personal request of Brig P Mehta I had only displayed courtesy of escorting Mrs. Mehta to Dimapur when returning from AL and then to Calcutta because I happened to be proceeding there for official discussion. This in no way constitutes 'Moral turpitude' as per the norms and customs of the service. It is intriguing to see the out of the way interest taken by the DGST in this issue. The very custom of extending Courtesy and providing assistance to a lady when requested to stands to be eroded when an offer of so high a rank and appt as the DGST resorts to such unethical and foulest means to damage a junior offer. This has shaken my confidence and damaged my reputation very badly. It is pertinent to mention that very conveniently the DGST has not even spoken to and checked from Brig Mehta and alleged such an accusation against me. The intention of the DGST to damage my career and reputation would become further clear on perusal of the letter dated 22 Sep 96 from Brig P Mehta to Lt Gen SS Grewal, AVSM, SM,VSM, a copy of which Brig P Mehta sent to me (Refer Appx 'F'). Had the DGST spoken to Brig P Mehta, he would have had no grounds to allege such an accusation.
12. I would like to kindly submit, that I have never served under Lt Gen JS Bhatnagar, AVSM, VSM on an earlier occasion. I feel quite convinced that the motivation for the efforts to damage my career and reputation seems to be the resultant of my expressing inability to Brig CP Tewari at the time of taking over charge from him as DDST 3 Corps to direct when told, the ASC units under technical control to contribute from their Regtl Funds for the main of ASC House at Delhi. Brig CP Tewari had also mentioned that in Oct 95 Rs.4,000/-paid by the ASC units of 3 Corps from their Regtl Funds was sent as desired by the DGST for main of ASC House. Again in Nov 95, Rs. 20,000/- collected in the same manner was sent for the main of ASC House. Letters enclosed as per Appx 'G' especially Annexures 9, 10, 18 & 19 would leave no doubts about this collection and purpose.
13. I would like to humbly submit that I apprehend that the DGST would continue in his efforts to damage my career and reputation. His continuous efforts have caused me a lot of harassment, and humiliation.
Prayers
14. In view of all above, I humbly that :
(a) I be please posted out imdtly to an appt out of ASC and be please kept in it till Lt Gen JS Bhatnagar, a VSM, VSM is in service.
(b) Lt Gen JS Bhatnagar, AVSM,VSM be please debarred from endorsing any remarks in my ACR in any capacity till he is in service.'
21. On 2.12.1996 it would appear from the files that there had been a discussion between the Military Secretary (Lt Gen M.R. Sharma, who was one of the members of the Selection Board meeting held on 31.10.1996) on the basis of which a note was prepared by the same Under Secretary who prepared a note on 18.11.1996 and 10.12.1996 which is in Hindi. In the file there is what is called English translation in manuscript and the same is as under :
'Brig Veda Prakash--The Officer has an above average profile and also Senior Command and Long defense Management Courses qualified. He has not earned any adverse remarks in any of the CRs earned in the rank of Brig. Brig SK Sahni (Sl No.2) has earned adversary marks in CR12/95-6/96. The technical officer and the HOS (Head of Service,vi, DGST) have assessed him 7'pts and 6 pts respectively in that report. His first report is also on inflated report as per the internal assessment of MS Branch.
MS agreed with this view point that Brig Ved Prakash deserves to be graded 'B' (Fit). He however pointed out that the next vacancy in the rank of Maj Gen in the ASC will arise only on 01.5.96, after the retirement of Brig Ved Prakash on 30th Apr' 96. In so far as Brig S.K. Sahni is concerned, MS agreed with the JS(G) that if the officer feels aggrieved with the adverse remarks of TO & HOS in CR 12/95-6/96, he can submit a statutory complaint and if his grievance is found genuine, suitable relief will be granted to him where after he can be considered again by No 1 SB as a Spl Rev (Fresh) case, with the original seniority for promotion. In the circumstances, the appropriate grading in Brig SK Sahni's case is 'Z' (unfit).
What was the need for an English translation is not stated, who had translated and at what time, is not stated. The English translation is not a true translation of the note dated 10.12.1996 which is in Hindi. What is stated in the English translation is all the reasons according to the respondents for differing from the view taken by the Selection Board.
22. On 7.12.1996 Maj Gen Krishan Pal COS had given his comments:
'DETAILED COMMENTS OF COMMANDING OFFICER IC-14039X MAJ GENKRISHANPAL,VSM*,CHIEFOFSTAFF,HEADQUARTERS3CORPS.
1. Brig Sahni has been DDST 3 Corps since 29 Dec 95. His functioning entails a daily contact with me and I am in a very good position to comment on him and his functioning.
2. Brig Sahni is an upright and honest officer with an impeccable integrity and character. He is a well read articulate officer, who has a deep understanding and very broad perspective of Logistics and their application in practical situations which he has commendably displayed in this difficult counter-insurgency situation.
3. On the issue of Logistics as a 'Force Multiplier' Brig Sahni was required to submit his comments to the MGASC who apparently forwarded it to the DGST, who issued a 'Performance Counselling' to the officer. The officer submitted a Non-Statutory Complaint against it. My comments given on this complaint may be perused. I may however, re-iterate that the comments were forwarded by Brig Sahni after a discussion with me and my approval. The issue of the 'Performance Counselling' I consider was totally subjective and motivated.
4. As apprehended by the Officer, the SDGST endorsed adverse remarks in his ACR as HOS. Brig Sahni submitted a Non-Statutory Complaint against this and my comments given on it may be perused. I may however add that the adverse remarks were totally subjective and calculated to block the career of a fine and competent officer.
5. The DGST during his visit to this Corps Zone in Oct 95 gave appoint to the then DDST (Brig CP Tewari) to write a paper on 'Auth and Working of Heptrs to ASC' particularly for use in CI grid environment. No action was taken by Brig Tewari. Brig Sahni, on taking over as DDST, was directed by the MGASC to write the paper, but even when sought, no clarification was given on what the exact requirement was. However, on meeting the MGASC on 21 / 22 Mar 96, the officer sought the clarification from him and was told that it may be suggested that Heptrs be authorised to ASC and to be piloted by ASC Officers and examples of maintenance by Heptrs in 'OP Pawan' could be given. This suggestion was considered preposterous by the DGST who directed the MGASC (Refer Appx 'C') to issue a 'Performance Counselling' to Brig Sahni. In an apparent bid to further humiliate the officer, though the letter was marked 'Confidential', a copy was endorsed to the officer by appt and not by name, whereby his staff opened it and read it. (Refer reverse of Appx 'E').
6. The DGST alleged Brig Sahni's involvement in an 'extra marital affair' with the wife of Brig P Mehta. An investigation has been done on this allegation which has been found as totally baseless and mala fide. Very conveniently the DGST has not checked from Brig Mehta, whose letter addressed to LT Gen SS Grewal, AVSM, SM, VSM (Refer Appx T') would highlight the dubious intention of the DGST. It is indeed a most unethical and a foul means employed by the DGST to malign and harm the officer.
7. I am quite convinced that the motivation for the DGST's continuous efforts to resort to any means to damage Brig Sahni's reputation and career is the Non-acceptance of the system of collection of money from the 'Regimental Funds' of the ASC units of this fmn for expenses of ASC House, New Delhi. Letters at Appx 'G', leave no ambiguity on its collection and purpose.
8. I agree with the apprehension of the officer that the DGST wouldcontinue in his efforts to damage his career and reputation. In view of this I strongly recommend that the prayer of the officer be accepted.'
On the same day i.e. 7.12.1996 Lt Gen S.S. Grewal had given his comments :
'COMMENTS OF FORMATION COMMANDER, LT GEN SS GREWAL AVSM,SM,VSM, GENERAL OFFICER COMMANDING 3 CORPS
1. I am aware of the case of harassment and continuous efforts on the part of the DGST to damage the career and reputation of Brig SK Sahni. Though I have given my explicit comments on the Non-Statutory Complaints put up by Brig SK Sahni, I would like to reiterate the following.
2. Brig SK Sahni reported to this HQ on posting as DDST on 25th Dec 95. During handing/taking over, Brig CP Tewari the out going DDST briefed Brig SK Sahni to direct when told, the ASC units under technical control to contribute from their Regtl Funds for the main of ASC House at Delhi. Brig CP Tewari further mentioned that in Oct., 95 Rs. 4000/- paid by the ASC units of 3 Corps from their Regtl Funds was sent as desired by the DGST for the main of ASC House. Again in Nov., 95 Rs. 20,000/- collected in the same manner, was sent for the main of ASC House. Brig Sahni expressed his inability to do so, if he was to be asked. I strongly feel this is the cause for the DGSTs continuous efforts to damage Brig Sahni's career and reputation. The incidents enumerated in the succeeding paras are a dear pointer to it.
3. Vide letter No 310140/6/ST1 dated 4 Mar., 96. MGASC, Eastern Comd, sent a photocopy of 'Study Setting Combat Superiority' reed from Army HQ to Brig SK Sahni to examine it and fwd his comments on it. The paper was discussed by Brig Sahni with Maj Gen Krishan Pal, VSM*, COS this HQ, who has a very good lgs back ground and is a very appropriate person for such subjects. Brig Sahni is a very well read articulate offer, who has a deep understanding and very broad perspective of lgs and their application. He has in his own right written articles. The offer produced the desired comments which had the approval of Maj Gen Krishan Pal, VSM* and these were sent to the MGASC, Eastern Comd vide his letter No 34000/ST1 of 22 Mar., 96.
4. The comments apparently were forwarded by the MGASC to DGST, who issued a 'Performance Counseling' to Brig Sahni vide his letter No 13021 /P/ 25 of 30 Apr 96 with a copy endorsed to Maj Gen Jagdish Chander, SM the then MGASC. The issue of the 'Performance Counselling' is totally subjective and I have no inhibition in saying that the motivation of the DGST appears to'be non-acceptance of the system of collection of money from the Regtl Funds of the ASC units of this fmn for expenses of ASC House New Delhi. Appx 'G' of the complaint clearly speaks of the purpose for which it was collected and no justification given on this could be sustainable.
5. Brig Sahni had put up a Non-Statutory Complaint against the 'Performance Counseling'. My comments which I forwarded with the complaint would be available with the CAB and could be perused.
6. Apprehension of Brig Sahni proved to be correct as the DGST endorsedadverse remarks in his ACR and assessed him low. Maj Gen Jagdish Chander, VSM the then MGASC, who had never visited this Corps Z from the time Brig Sahni took over as DDST, has also as FTO been subjective and figuratively assessed him low; apparently in view of the copy of the 'Performance Counselling' endorsed to him by the DGST. The Offer has put up a Non-Statutory Complaint against the report of FTO and DGST as HOS. My comments on both the complaints may be perused.
7. The DGST during his visit to this Corps Z from 16 to 21 Oct., 95 gave a pt to the then DDST (Brig CP Tewari) that a paper on 'Auth and Working of Lgs Heptrs' to ASC, particularly for use in CI Grid Environment be submitted, but no action was taken by him. From the records available it appears that no questions have been asked from Brig CP Tewari for not forwarding the paper. After Brig Sahni took over as DDST on 29 Dec., 95, he was directed by the then MGASC Maj Gen Jagdish Chander, VSM to submit the paper. Despite Brig Sahni seeking clarification on what the exact requirement was, it was not clarified. The Offer during his visit to MGASC on 21/22 Mar., 96 on seeking clarification was told cursorily that he should suggest that heptrs be auth to ASC and to be piloted by ASC Offers. Also, are to main by heptrs as was being done in 'OP Pawan' be given.
8. The suggestion given by MGASC to Brig Sahni, was considered preposterous and criticised by the DGST and vide his letter No 13021/8/25 dated 10 June, 96, directed Maj Gen Chinoy, the MGASC, Eastern Comd to issue a suitable Counselling to Brig Sahni and directed that a fresh study be carried out. It would be pertinent to mention that the above letter was confidential, but was endorsed to Brig Sahni by appt as a result of which it was opened by the clerical staff and seen by others (Refer reverse of Appx 'C to the complaint). I feel that this was an attempt to humiliate the offer.
9. The offer has now been directed by MGASC vide his letter No3l0203/3/Oct 95/ST1 of 24 Aug 96 to carry out a thorough research and threadbare analysis and write mail paper on 'Hiring of Heptrs under Budget Head 105' Appex 'D' & 'E' of the complaint would speak of the intentions of the DGST.
10. It would be pertinent to mention that the Study given to the offr has not been processed through staff at Comd HQ and neither mine has been apprised by the MGASC, despite the fact that as per the guidelines suggested by the MGASC vide his letter No 310203/3/Oct 95/ST1 dt 10 Oct 96 to Brig Sahni, the offer would have to obtain a lot of info from my staff. I do not find the subject really relevant and in any case, a study of this nature ought to be with the involvement of my staff. The study in Itself is irrelevant as we have no heptrs available off the shelf within the country for hiring. We are finding it extremely difficult to allot funds for CHT under head 105F for Operational purposes, so the question of hiring heptrs is rather far fetched when IAF has responsibility to execute main tasks. The offer had requested the MGASC that to do justice to the paper he would need about 10 days TD to Delhi to interact with the Civil Aviation Auth. This has not been accepted by the MGASC on the plea that only conceptual thinking is involved & if it was essential then interaction could have been done by the offer when on leave at Delhi. The above very evidently shows that the intention of the DGST is to harass the offer further.
11. I was apprised by the MGIC Adm HQ Eastern Comd vide his DO letter No 201004/1/Al of 18 Sep 96 of DGSTs letter No A/60122/Q/ST2 dated 26 Aug 96 in which he has alleged the possible involvement in extra marital affair of Brig Sahni and engineering of the visit to Calcutta on false pretences.
12. I have carried out an investigation on this complaint by the DGST. The allegation is false and baseless.
13. Regarding the modality, aim and purpose of the visit of Brig Sahni to HQ Eastern Comd, I want to point out that the visit was sanctioned by SD Branch HQ Eastern Comd, after my clearance. The visit was as a sequel to MGASC's visit to HQ 3 Corps & the follow up action required by my HQ which needed due interaction. It would be pertinent to mention that amgs for reception and acn for Brig Sahni were made by the Staff Offers of MGASC, who well knew that the offer was coming on TD. To say that he was taken by surprise by Brig Sahni's appearance in his office is unsustainable.
14. The allegation regarding extra marital relationship is incorrect and insidious. The accn. was booked in one of the Guest Room's of 'A' Mess in adv by the Brig Admn on a request from Brig P Mehta.. The mere fact that Brig Sahni displayed the courtesy of escorting the lady on a request from Brig P Mehta to Dimapur & then to Calcutta because he happened to be proceeding there for official discussion, does not constitute 'Moral Turpitude', as per the norms and customs of our service. Brig Mehta has spoken tome and confirmed of above and was quite anguished that his wife's image was unnecessarily being tarnished and issue being distorted and given unwanted colour. He also expressed pain over the harassment and character assassination being caused to Brig Sahni for no fault of his. The letter reed by me from Brig Mehta enclosed as Appx 'F' to the complaint would clearly highlight the dubious manner in which the allegation has been made.
15. From above it would be evident that the DGST has resorted to most unethical and foulest means with motive to malign and completely damage the career of Brig Sahni. It would also be intriguing to note of the out of the way interest taken by the DGST in this issue when he has nothing to do with this matter from the ST angle and no complaint has been lodged by Brig P Mehta.
16. Brig Sahni is a very competent and efficient offer. I have known him very well for a long time and with confidence state that he has a stainless character. Despite all the mental pressures on the offer caused by the DGST through the MGASC, he continues to perform his duties conscientiously and with perfection.
17. I feel very convinced that Brig Sahni having conveyed his regrets to Brig CP Tewari is apparently a prime motive of harassment to the offer as also character assassination and attempts to blocking his career. The means used by DGST are unethical, degrading and maligning.
18. As the offer is being continuously subjected to harassment in a calculated manner to damage his career and malign him, I strongly recommend that the prayers of the offer be accepted for immediate posting out to an appt out of ASC till Lt Gen JS Bhatnagar, AVSM, VSM is in service & also to debar him from endorsing any remarks in any capacity in his ACR while he is in service.'
On 14.12.1996 it is noted in the file that there was some discussion between the Hon'ble Minister and the Secretary. There is no record of the Minutes of the discussion. thereforee, what type of discussion they had is not known.
23. On 19.12.1996 the file was put up before the Hon'ble Minister. What is noted is 'discussed'. It is obvious that no discussion had taken place on that date. On 25.12.1996 Lt. Gen Ravi Eipe sent his comments:
'COMMENTS OF LIEUTENANT GENERAL RAVI EIPE, AVSM, GENERAL OFFICER COMMANDING-IN-CHIEF, EASTERN COMMAND ON NON STATUTORY COMPLAINT OF IC-19234Y BRIG SK SAHNI, ASC, DDST HQ 3CORPS,
1. I have gone through the non-statutory complaint submitted by IC-19234Y Brig SK Sahni, DDST HQ 3 Corps.
2. I recommend that the officer's request for posting to a non ASC staff appointment be considered favourably.
3. The other points may be considered on merit.'
On 17.1.1997 a note was put up by Lt Gen M.R. Sharma, Military Secretary, who was one of the members of the Selection Board:
'1. Reference verbal directions of COAS of 14 Jan 97.
2. The documents pertaining to earlier non-statutory complaint by Brig SK Sahni, ASC expressing his apprehensions that the DGST may harm his career owing to perceived bias in connection with alleged demand of funds by the DGST and refusal of the complainant to comply with are placed in a separate file taking these out from the main file.
3. The following facts emerge on perusal of these documents.
(a) Allegations leveled by Brig SK Sahni, ASC against DGST appear to be false as the funds were credited to Central ASC funds meant for maintenance of ASC mess.
(b) Brig (now Maj Gen) CP Tewari categorically denied assertion of Brig SK Sahni that funds were provided by him for maintenance of ASC house.
(c) There is no doubt that the paper submitted by Brig SK Sahni, ASC is substandard and the DGST has taken note of his indifferent work appropriately.
(d) The comments of FTD, Maj Gen Jagdish Chander are candid and balanced which do not reflect well on Brig SK Sahni, ASC.
4. Lt Gen SS Grewal and Brig SK Sahni, ASC had earlier served together inBangalore for a short term from Mar 93 to Aug 93 when the former was Cdr, Karnataka Goa Sub Area and the latter was Commandant, ASMT/Bangalore.
5. On viewing the matter in its entirety we feel that assessment of the FTO is entirely sustainable. The COAS may please consider partial or full redressal as far as the assessment of HOS is concerned. This too because of the recommendation of the Army Cdr.'
On 5.2.1997 the following note was put up by Col HR Sharma, Director (CAB):
'noneTATUTORY COMPLAINTS DATED 20 MAY 96, 26 AUG 96 AND 27 AUG 96 BY IC-19234 BRIG SK SAHNI, ASC, AGAINST PERFORMANCE COUNSELLING AND CR
1. Reference.
(a) MS Branch file No 36489/93/96/MS(X).
(b) CAB file NoA/00004/MS(X)/1234/CAB.
2. Complaint processed by Maj Gen JRK Bhattacharji and Col HR Sharma.
Background
3. Non Statutory Complaints.--By Brig SK Sahni, ASC, against performance Counselling and CR 12/95/06/96.
4. Personal Particulars
(a) Seniority : Dec 67.
(b) Decorations : Nil.
(c) Discipline : Nil.
(d) Career Courses: SC, ldmc, NDC.
(e) Board Results: NA.
(f) Past Complaints: Nil.
(g) Date Complaint: 03 Dec 96.
received in CAB.
Plea of the Brig
5. The Brig has submitted Non-Statutory Complaints against CR12/95-06/96 as under:
(a) Non Statutory Complaint dated 20 May 96 against Counselling administered by DGST (Lt Gen JS Bhatnagar, AVSM, VSM - HOS) vide letter dated 30 Apr 96 and apprehending that HOS was bent upon spoiling his CR.
(b) Non Statutory Complaint dated 26 Aug96 against assessment of the FTO (Maj Gen Jagdish Chander, VSM) in CR 12/95-06/96.
(c) Non Statutory Complaint dated 27 Aug 96 against assessment of HOS in CR 12/95-06/96.
6. In the stated Non Statutory Complaints, the Brig has highlighted the following:
(a) In Non Statutory Complaint dated 20 May 96, he has brought out that professional Counselling administered by DGST is motivated and unjust. He has also stated that DGST is bent upon spoiling his CR as the result of his (Brig) expressing inability to contribute from Regimental Funds for main of ASC House at Delhi to Brig CP Tiwari at the time of taking over charge from him.
(b) In Non Statutory Complaint dated 26 Aug., 96, the Brig has represented against the figurative award of 7 pts by the FTO in CR 12/95-U6/96 as well as his remark--quote, 'at times merciless with his subordinates', unquote. He feels that the FTO has been influenced by the performance Counselling issued by HOS. Also, FTO had never visited 3 Corps Zone and that his assessment is subjective and has not been substantiated with facts.
(c) In Non Statutory Complaint dated 27 Aug., 96, the Brig has impugned assessment of the HOS in CR 12/95-06/96. He feels that assessment of the HOS is subjective and has contested the remarks--quote, 'However, the officer lacks depth at micro and macro level perceptions required at higher command and staff appointments for which he has been Counseled in writing' unquote. He avers that HOS may have box graded 5 or 6 pts in CR 12/95-6/96.
Redress Sought
7. Concluding, the Brig has requested the following :
(a) Necessary action be taken to prevent HOS from endorsing his report.
(b) Assessment of FTO & HOS in CR 12/95-6/96 be set aside.
Comments of Intermediate Authorities
8. Maj Gen Krishan Pal (IO). He has commented as under:
(a) He feels that Brig Sahni is an upright and honest offer. He has recommended that collection of money for ASC House, New Delhi be investigated.
(b) He has not received any complaints against the Brig. The FTO's & HOS's figurative assessment and adverse remarks in CR 12/95-06/96 be set aside.
9. It Gen SS Grewal, GOC 3 Corps (RO). He has commented as under :
(a) The system of collection of money for ASC House needs to be investigated.
(b) He states that the Brig's performance has been commendable and has outstanding professional knowledge and technical efficiency.
(c) He has recommended that figurative assessment and adverse remarks of the FTO & HOS be set aside.
10. Lt. Gen Ravi Eipe, GOC-in-C Eastern Comd (SRO). He has stated as under:
(a) The matter relating to allegations by the Brig be investigated at Army HQ. If found to be correct, suitable measures should be taken to ensure that offer's CR is given due protection.
(b) He has agreed with GOC 3 Corps and has recommended that assessment of FTO & HOS in the impugned CR be set aside.
11. Brig CP Tewari - ex DDST HQ 3 Corps. He has stated that the Brig has made a wrong statement. There was no mention of any money being collected and sent to the DGST for main of the ASC House either in their conversation during the handing / taking over or in his notes thereof. However, the amounts quoted were collected as per the rules concerning Regtl accts which are recorded in the acct books. All transactions and correspondence on the subject are aboveboard, transparent and open to scrutiny.
12. Maj Gen Jagdish Chander - ex MG ASC (FTO). He has highlighted the following:
(a) He had been interacting with the Brig quite frequently. He is an extremely efficient officer and takes great pains in accomplishing assigned tasks. He is also shrewd and sharp and would not mind being merciless when dealing with subordinates.
(b) The report is based on frequent interactions with the offer, his COs/OCs of 5003 & 557 ASC Bns as also with minor units directly under the technical control of DDST HQ 3 Corps. Hence offer's contention that his (FTO) assessment is based on performance Counselling issued by DGST is ill-founded.
(c) He did visit HQ 3 Corps in Nov 95 and was aware of attempts made by Brig SK Sahni to have CO 5003 ASC Bn, Col SC Gujral (an outstanding bn cdr) posted out and the harassment caused to him on that acct. The Brig normally used to run down his subordinate offers. thereforee, he (FTO) had no hesitation in mentioning the merciless manner in which the offer with the subordinates at times. thereforee, facts mentioned in the report hold good.
(d) There marks of the DGST in CR12/95-06/96 are apparently based on the performance Counselling given to the Brig. He states that the paper submitted by the Brig, gave an impression that he did not even understand what was expected of him. He (FTO) considers that remarks of DGST are quite justified. He also feels that the Brig's potential for higher comd and staff assignments based on written performance, is suspect.
(e) The complaint be rejected as it lacks substance.
13. Lt Gen JS BHATNAGAR, AVSM, VSM - DGST (HOS). He has given details comments and has highlighted the following :
(a) He states that his adverse comments in CR12/95-6/96 have been based on concrete reasons. The basis of his opinion is not only based on two papers written by him, but also on feedback received by him from the MGs ASC Eastern Comd, other functionaries in his sector and documents.
(b) He feels that perusal of the papers submitted by the offer reveals his incompetence in dealing with professional matters with depth and knowledge. In the first paper -- Study setting combat superiority, the offer has dealt with the subject in the most casual and perfunctory manner. The disproportionate dispensation of an important matter speaks volumes of his attitude and professional competence and lack of potential for holding higher appts. in the Corps. Also, the offer had copied his article on transportation verbatim from ASC Journal Dec 95. Even in the second paper on 'Heptr in Lgs Sp in CI Environment,' it seen on perusal, it appears that the offer misunderstood the focal theme and has tackled the issue on different platform. The papers written by the offer also contain a number of spelling, grammatical and minor SD mistakes.
(c) He contends that his visit to 3 Corps Sector is wholly irrelevant to the whole case. He had visited the Corps Sector in Oct 95 only, and does not have to visit a Sector to assess the professional capability of an offer whenever a change takes place. Feedbacks from various channels, reports and returns, conveying of their views through staff of the Comd HQ and Dte Gen, professional attitude displayed under operational conditions in the overall interest of the functional efficiency of the service, cumulatively go to help him to assess an officer specially when holding a high rank.
(d) The Non Statutory Complaint dated 27 Aug., 96 of the officer was never sent to him (DGST) for his comments which in normal course, should have been reed by him for his comments, so that reviewing offers get the correct picture instead of a one sided statement.
(e) The allegation of the offer that he was asked by Brig CP Tewari to contribute to the 'ASC House' is baseless, unfounded and tainted. Brig CP Tewari in his reply has categorically refuted the allegation. It is evident that the offer is misrepresenting the facts to support his allegations to cover up his professional inadequacy. He feels that the uncalled insinuations are having a direct bearing on him which regrettably are echoed by his IO, RO & SRO without any evidence.
(f) He agrees with FTO's observation on the offer regarding his being merciless with his subordinates. He (DGST) has learnt from many sources that the Brig has been frequently issuing professional Counselling and warning letters to his subordinates and keeping them under extreme mental pressure which does not speak well of a senior manager who is expected to be more mature and accommodative. He is also not carrying a happy team of offers with him. He has also cited the case of Col SC Gujral, Col 'T' of HQ 3 Corps.
(g) He has recommended that the complaint be rejected.
Analysis
14. MDS is placed opposite. CR profile is as under:
CRIORO SRC TOHCA Remarks07/93-998----Comdt05/94 ASMT Bangalore (Maj Gen(Maj Gen(Lt. SKV Muley)Gen Kariappa A Joshi) @12/95-88876 06/96 (Maj Gen)(Lt Gen(Lt Gen(Maj(Lt KrishanSSRaviGenGen Pal)Grewal)Eipe)JagdishJS ChanderBhatnagar) @Impugned CR. 15. General Profile. A non psc but SC, LDMC & NDC qualified officer, whose performance on courses has been average/high average. He has earned two reports in the rank of Brig. The first CR 07/93-05/94 is a 9, 9, 8 report. On examination of the stated report, it is observed that the original box grading by the IO appears to have been erased. Also, the report has been edited by the MS Branch as 'inflated by the IO and RO' as the Brig had always been assessed above average (8 / 7) or less throughout his career. This report also formed part of his profile when considered for NDC Course. The Brig has impugned CR12/ 95-06/96 and hence, is being analysed subsequently.
16. The officer's first Non Statutory Complaint dated 20 May 96 against performance Counselling communicated by the HOS, is untenable as he apprehended future assessment and no military wrong had been done to him. Also, his assertion that performance Counselling has been issued by the HOS as he had expressed his inability to contribute from Regtl Funds for maintenance of ASC House has been denied by the ex DDST of HQ 3 Corps. As per him, the amounts quoted were collected for furnishing of newly constructed guest rooms at the ASC Officers Mess. The collections are as per the rules concerning Regtl accounts which are recorded in the account books. All transactions and correspondence on the subject are above board, transparent and open to scrutiny. DGST has also confirmed the same.
17. CR 12/95-06/96 (Impugned). This report has been earned as DDST HQ 3 Corps. He has been box graded 8,8,8,7,6. The IO has given 8/9 pts in PQs/DP whereas RO has confirmed all but one figurative award. In the command channel, the reporting officers have endorsed laudatory pen pictures indicating that the ratee's performance was good. However, in the technical channel, it is not really so. Hence, this aspect needs to be further analysed.
18. In the subsequent two Non Statutory Complaints, the Brig has separately represented against the assessment of the VTO and HOS where there is difference of one day between the dates of submitting the complaints. It is on receipt of the report of the FTO, the Brig feels the FTO has been subjective and has been influenced by the performance Counselling issued by HOS. He has also requested that remark of the FTO, quote 'at times merciless with his subordinates', unquote, be expunged. The FTO (Maj Gen Jagdish Chander) has stated that he had frequently inter acted with the Brig and has denied that he was influenced by the performance Counselling issued by the HOS. He has quoted examples to substantiate his remarks that the ratee is merciless with his subordinates.
Even HOS is in agreement with the FTO. Further, perusal of CRs earned in the rank of Col shows that he has been assessed similarly. Evidently, assessment by the FTO is with due deliberation and based on demonstrated performance of the ratee pertaining to technical matters. Hence, FTO's assessment does not merit any interference.
19. The HOS has carried out one point downward moderation in the box grading and has placed the Brig in the high average (6) bracket. The HOS has endorsed a compatible penpicture where in he has endorsed, quote 'However the officer lacks depth and micro and macro level perceptions required at higher command and staff appointments for which he has been suitably Counseled in writing' unquote. In his comments, the HOS has highlighted that adverse comments are based on concrete reasons. The basis of his opinion is not only based on two papers written by the Brig but on feed backs received from various channels, reports and returns, views conveyed through staff and command and Dte Gen and processional attitude displayed under operational conditions in the overall interest of the functional efficiency of the service. However, it is observed on validation that the officer has never been assessed less than 7 points in the technical channel. thereforee, the box award of 6 points by the HOA appears to harsh/ strict. In order to ensure fairplay and justice, box grading of 6 points by the HOA merits to be set aside on grounds of inconsistency.
Recommendations
20. CAB recommends setting aside box grading of 6 points by the HOS in KKR 12/95-06/96, on grounds of inconsistency.
Draft Directions of the CO AS
21.'I have perused the Non-Statutory Complaints dated 20 May 96, 26 Aug 96 and 27 Aug 96 by IC-19234Y Brig SK Sahni, ASC, against performance Counselling and Cr 12/95-06/96, and examined the same against overall profile and other relevant documents.
22. After consideration of all aspects of the complaint, and viewing it against the redress sought by the complainant, I direct that partial redress be granted by way of setting aside box grading of 6 points by the HOA in CR12/95-06/96,on grounds of inconsistency.
23. I also direct that the said aberration be removed from the CR Dossier of the officer.
24. The officer to be informed accordingly.
25. CRD of the officer is linked below.
26. Submitted for approval please.'
24. A perusal of this note and the comments given by the Officers Lt Gen Ravi Eipe and Lt Gen SS Grewal would show that the note is highly misleading and the officers concerned had not taken care to verify the correctness of what was noted by Col HR Sharma in his note. That is the reason why the comments made by the Lt Gen are extracted above. It is interesting to notice that the note itself suggests the order to be passed by the Chief of the Army Staff. On 6.2.1997 the Chief of Army Staff passed the following:
'1. I have perused the Non-Statutory Complaints dated 20 May 96, 26 Aug 96 and 27 Aug 96 by IC-19234Y Brig SK Sahni, ASC, against performance Counselling and CR 12/95-06/96, and examined the same against his overall profile and other relevant documents.
2. After consideration of all aspects of the complaint, and viewing it against the redress sought by the complainant I direct that partial redress be granted by way of setting aside box grading of 6 points by the HOA in CR 12/95-06/96, on grounds of inconsistency.
3. I also direct that the said aberration be removed from the CR Dossier of the Officer.
4. The officer to be informed accordingly.'
25. There is nothing on record to show that the Chief of Army Staff had applied his mind to the comments made by Lt. General Ravi Eipe and Lt. Gen S.S. Grewal and others. It is to be noticed that in the Selection Board the same Chief of Army Staff was the Chairman recommending the name of the petitioner for promotion.
26. On 24.2.1997 the order of the SCSO was issued by the respondents:
'NON-STATUTORY COMPLAINT:IC-19234 BRIG SK SAHNI, ASC
1. Reference your letter No. 192600//NS/503/MS-4 dt 05 Jun 96, 192600/NS/ 504/MS-4 (i) dt. 24 Oct 96 and 192600/NS/503/MS-4 dt 24 Oct 96 respectively.
2. Non-statutory complaints dated 20 May 96, 26 Aug 96 and 27 Aug 96 submitted by IC-19234 Brig SK Sahni, ASC. Against performance Counselling and CR 12/95-06/96, were placed before the Chief of the Army Staff.
3. The Chief of the Army Staff after examining the complaints against the overall profile and other relevant documents of the offer and consideration of all aspects of the same, and viewing it against the redress sought, the complainant, has granted partial redress by way of setting aside box grading of the HOKA CR-12/95-06/96, on grounds of inconsistency.
4. The officer maybe informed accordingly and his acknowledgement obtained and forwarded to this HQ.
5. Please ack.'
On 6.3.1997 a note was put up by Dy MS(X) :
'1. It appears Brig Salmi is getting all info from HQ 3 Corps and building up his case for further advancement. The issues raised are outside our purview and should be examined by AE.
2. Decisions on his posting can be taken later. In any case, this cannot be a subject matter of complaint.'
On 27.3.1997 the same Under Secretary who had made the note dated 18.11.1996 had made this note also:
Reference end 1-A
2. MS Br have stated that Brig SK Sahni, ASC has been granted some relief in CR 12/95-6/96 by the COAS after considering his non-statutory complaint. They have thereforee requested that this fact may be taken into account while finalising the result of the Selection Board held in Oct 96 in respect of ASC officers of 1967 batch.
3. The proceedings of No 1 SB held in Oct 96 in respect of ASC officers of 1967 and earlier batches were examined by us in our file No. 8(16)/96/D(MS). The file was submitted to RM on 12.12.96 for approval to the grading awarded by the SB subject to revision of grading in two cases. The grading 'B' (fit) awarded by the Board to Brig SK Sahni was recommended to be revised to 'Z' (unfit) because of lukewarm report by the Head of Service in CR 12/95-6/96. As per the order issued by the MS Br, COAS has granted only partial relief by setting aside the box-grading only and not the entire assessment. In his pen-picture, the HOS had also awarded some adverse remarks to the officer which have not been expunged. In any case, the relief granted by the COAS is after the MOD have taken action on the SB proceedings.
4. We may however bring this to the notice of the RM, with the request to accord his approval to this long outstanding case.'
From this it cannot be predicted who had discussed on behalf the Government and who had taken decision on behalf of the Government. On 28.3.1997 it is noted in Hindi below the note in Hindi dated 19.12.1996 'proposal as given above in the note is approved'.
27. From this it is clear, if it is correct that a decision had been taken on 28.3.1997 and that reasons are discernible from the proposal made in the note, what the defense Secretary on 4.4.1997 had noted is abstrusive. The defense Secretary noted:
'The preceding note may kindly be perused. The non-statutory complaints were filed by the officer on 20 May 96, 26 Aug 96 & 27 Aug 96 while the Board was held in October 96 towards the end. AHQ should have decided this matter before the Board. In any case, the relief granted is partial. The performance Counselling and the pen picture have not been quashed.
As such the recommendations of MOD to grade him 'Z' should till stand.
Again, we must not interfere with the proceedings at this stage. In any case,based on this relief, the officer will get a Special Review fresh when the Board will consider him on the basis of modified record. So the officer does not loose in any way.'
It is not stated what was the basis on which the recommendation was made by the MOD to grade the petitioner as 'Z'. The preceding note is already extracted above, as mentioned by the defense Secretary.
These things point to the fact that no one who had the authority to make a decision in the Ministry had applied his mind and there have been no decisions by the Competent Authority considering the materials on record.
28. On 9.4.1997 the petitioner had filed C.W.1538/97 claiming the relief that the result of the Selection Board held on 1.11.1996 should be declared.
29. On 10.4.1997, 11.4.1997 the Selection Board consisting of 9 officers again met for considering the case of officers including the petitioner.
30. The members of the Selection Board are as under:
Chairman -- General S Roychowdhury, PVSM, ADC COAS
Members -- Lt Gen HM Khanna, PVSM, AVSM GOC-in-C Southern Command
Lt Gen Ravi Eipe, PVSM, AVSM, ADC GOC-in-C Eastern Command
Lt Gen HB Kala, PVSM, AVSM, ADC GOC-in-C Western Command
Lt Gen Chandra Shekhar, PVSM, AVSM GOC-in-C Central Command
Lt Gen S Padmanabhan, PVSM, AVSM, VSM GOC-in-C Northern Command
Lt Gen SK Sharma, PVSM, AVSM GOC-in-C ARTRAC
Lt Gen VP Malik, PVSM, AVSM, ADC VCOAS
Secretary -- Lt Gen MR Sharma, VSM
The documents placed before the Board are:
'(a) Master Data Sheets(MDS)--The MDS broadly contained the IC No., date of birth, date of commission, date of seniority, honours and awards received, courses passed with grading, disciplinary background, if any, and details of confidential reports earned in the rank of Lt Col, Col and Brig 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 Seriall number of each CR as they appear in the CR Dossier, period, rank and appointment, in which CR was earned, the type of appointment whether the CR was earned in peace, field 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, there commendations for promotion and the names of Reporting Officers.
(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.'
31. By this date no decision had been taken by the Government of India on the assessment made by the Selection Board on 31.10.1996 and yet the name of Brig Ved Parkash was not placed before the Board and it was not stated that the Government had taken a decision contrary to what was decided by the Selection Board on 31.10.1996. The name of the petitioner was placed before the Selection Board. Appendix E mentions the name of the petitioner along with 1967 batch and the petitioner was found fit. The respondents must have placed all the details about the petitioner before the Selection Board including the comments made by officers and the complaints given by the petitioner against 4th respondent and the adverse remarks made by Maj Gen Jagdish Chander. The papers had been sent to the Ministry. The file shows an English translation exactly same as we find with reference to the 134th meeting of the Selection Board and the English translation reads as under:
'Brig Veda Prakash--The Officer has an above average profile and also Senior Command and Long defense Management Courses qualified. He has not earned any adverse remarks in any of the CRs earned in the rank of Brig. Brig SK Salmi (Sl No. 2) has earned adverse remarks in CR 12/ 95 -6 /96. The technical officer and the HOS (Head of Service,vi, DGST) have assessed him 7 'pts and 6 pts respectively in that report. His first report is also on inflated report as per the internal assessment of MS Branch.
MS agreed with this view point that Brig Ved Prakash deserves to be graded 'B' (Fit). He however pointed out that the next vacancy in the rank of Maj Gen in the ASC will arise only on 01-5-96, after the retirement of Brig Ved Prakash on 30th Apr '96. In so far as Brig S.K. Sahni is concerned, MS agreed with the JS(G) that if the officer feels aggrieved with the adverse remarks of TO & HOS in CR12OB/95-6/96, he can submit a statutory complaint and if his grievance is found genuine, suitable relief will be granted to him where after he can be considered again by No 1 SB as a Spl Rev (Fresh) case, with the original seniority for promotion. In the circumstances, the appropriate grading in Brig SK Sahni's case is 'Z' (unfit).
On 17.4.1987 there is a note about the CWP filed by the petitioner:
'This File was handed over to me by JS(G) this morning to indicate the status/ movement of the main File relating to No. 1SB-ASC.
2. The File in question is available in Def. Secy's Office. S.O. to Def. Secy has confirmed to me on telephone.
3. Incidentally, Brig S.K. Sahni, ASC has filed a writ petition in Delhi High Court against undue delay in approval to the No. 1 SB proceedings. The copy of the WP is placed in the linked older. MS Br. Gave requested for our comments to incorporate the same in the counter affidavit to be filed in the case.
Submitted for orders. ``
On 23.4.1997 there is a note by J.S. (G):
'PS to RM informed me that RM has approved the proposal on main file. Await report.'
32. If the Hon'ble Minister had approved the note dated 10.12.1996, on 28.3.1997 where was the need for any discussion and the note by the Under Secretary made on 27.3.1997 is not at all explained.
33. On 28.4.1997, the panel of officers approved for promotion on the basis of the decision taken by the Government of India after considering the evaluation made by the Selection Board on 31.10.1996 was issued by the Ministry Secretariat Branch. On 29.4.1997 the petitioner was informed about the fact that he was not selected :
'NON PROMOTION TO THE ACTING RANK OF MA] GEN
1.1 am directed to inform you that your case for acting promotion to the rank of Maj Gen was considered by No. 1 Selection Board held on 31 Oct 96 as a Fresh 1967 case. Their recommendations were submitted to the Government. I regret to say that you have not been selected for promotion.
2. Your case will be reviewed at the appropriate time in accordance with the rules on the subject.'
34. On 8.5.1997 there is a note by the same under Secretary who put up the note onl8.11.1996:
'Subject: No. 1 Selection Board - ASC
The Board proceedings have been examined. The following observations are made:
(i). Brig RL Kaul (Sl. No.3)
--The HOS has assessed the officer in lower bracket of above average in two criteria reports. He has also not done any long course. His CRD may be made available for our perusal. MS Branch may elaborate as to why the officer should not be graded 'Z' (unfit).
(ii) Brig SC Mohan (Sl. No. 7)
--Except for the lukewarm report by the RO in CR3/95-6/95, which is a three months' report, the officer has earned above average reports, both in the rank of Brig and Lt. Col./Col. The same RO after observing the performance for a longer period, has assessed the officer clear above average in the next report. The officer is SC and LDMC qualified and Sena Medal and Chief Commendation awardee. He deserves to be graded 'B' (fit). His CRD may also be made available for our perusal.
(iii) Brig DK Datta (Sl.No. 10)
--The officer has not done any all arm course. He has not been graded outstanding by any reporting officer in any of the CRs, which could offset his not having done any course. MS Branch may thereforee clarify as to why the officer should not be graded 'Z' (unfit).
(iv) Brig SK Sahni (Sl.No. 15)
--The technical officer has assessed him in the lower bracket of above average in CR 95-96. The officer has also earned adverse remarks in that CR. The previous CR for the period 93-94 has been treated as an inflated report by the MS Branch in their internal assessment. Tine officer deserves to be granted 'Z' (unfit).
2. MS Br may kindly favor us with their comments in the matter urgently.'
On 16.5.199 there is a note by the Director/Dy. MS(X):
'No. 1 SELECTION BOARD APR 97: ASC
1. Please refer to your ID No. 1624/D(MS)/97 dated 08 May 97.
2. Our comments on the cases mentioned in your note under reference are given in the succeeding paragraphs.
Brig RL Kaul (Sl No.3)
3.It is true that the HOA has box rated the officer '7' in Cr7/94-3/95 (9 months report) and 4/95 - 6/95 (3 months report). The same HO A has upgraded his rating to '8' in the next full one year 'OP Rakshak' Report 7/95-5/96 and a RO in CR 7/96=1/97. He is also SC and PSC qualified. His overall profits warrants grading of 8 (Fit). Hence the grading of B (Fit) by the Selection Board may please be accepted in this case.
4. The CRD of the officer is forwarded herewith, as desired.
Brig SC Mohan (Sl No.7)
5. The two criteria reports 3/95-6/95 and 7/95-6/96 earned by the officer are weak. Though the RO has upgraded his box grading of '7' in CR3/95 - 6/95 to 8 in the next report, both these reports contain a number of 7 points awarded by both IO and RO in personal qualities. While in the CR at Seriall 2 the IO had rated him 8 /9 in personal qualities, the same IO has downgraded his ratings to '7' in four qualities corroborated by the RO in two of them. Z (Unfit) grading in this case is, thereforee, appropriate arid same may please be upheld.
Brig DK Datta (Sl No 10)
6. Though the officer has not done any 'all arm' courses, the same has not come in the way of his performance. All the three CRs earned by him in the rank of Brig are command reports and his performance has been consistent with '8' point ratings by all reporting officers. He, thereforee, deserves grading of B (Fit) which may be approved by the Govt.
Brig SK Sahni (Sl No 15)
7. The officer has been considered as a Spl Review (Fresh) case of 1969 batch and hence his profile has to be compared with that of Brig Veda Prakash (Sl No 14) who has since been approved for promotion in No 1 Selection Board held in Oct 96. The SRO, while grading the officer '8' in the box in CR 12/95 - 06/96 has remarked in the pen picture, 'The reports of the TO and HOA on this officer are subjective and harsh. I recommend that they be expunged'. Hence boxgradingof 7' by the TO and the adverse remarks by the TO and HO A in this report have to be viewed inn the light of these remarks of the SRO. Brig Veda Prakash despite having seven '7' point ratings in different personal qualities in four CRs out of five earned by him in the rank of Brig has been approved for promotion by Min of Def though he was graded Z (Unfit) by the Selection Board. Infact Brig Sahni has a better course profile as he is NDC qualified besides having done SC and LDMC. Hence, his profile is very much comparable if not better to that of Brig Veda Prakash. B (Fit) grading in this case may, thereforee, please be approved.
7. MS has approved.'
35. The Chief of Army Staff who had considered the petitioner to be fit for promotion had rejected by order dated30.5.1997 the non-statutory complaint dated 1.12.1996 by the petitioner.
36. On 24.9.1997 the very same Under Secretary had put up a note to the Ministry:
'Reference encl. 1-A.
2. MS Br file on which non-statutory complaints filed by Brig SK Sahni were examined, is linked below. It is seen that the officer filed 4 non-statutory complaints as under :
(a) Non-statutory complaint dated 20.5.96 against performance Counselling administered by Head of Service (DGST) vide letter dated 30.4.96 and apprehending that HOS (DGST) was bent upon spoiling his CR. In this complaint he also mentioned that the performance Counselling administered by DGST was motivated and unjust as the result of his (Brig) expressing inability to contribute from regimental funds for maintenance of ASC House at Delhi.
(b) Non-statutory complaint dated 26.8.96 against assessment of the FTO in CR 12/95-6/96. In CR 12/95-6/96 the FTO remarked in the penpicture, quote 'At times merciless with his subordinates' unquote. Brig Sahni felt that the FTO has been influenced by the performance Counselling issued by HOS.
(c) Non-statutory complaint dated 27.8.96 against assessment of HOS in CR 12/95-6/ 96. He felt the assessment of HOS was subjective and contested the remarks, quote 'However, the officer lacks depth at micro and macro level perceptions required at higher command and staff appointments for which he has been Counseled in writing' unqote.
(d) Non-statutory complaint dated 1.12.96 seeking redress against superior officer. In this complaint, he highlighted the points raised earlier in his previous non-statutory complaints and also made certain allegations of malafide intentions against DGST.
3. On perusal of the linked file, it is revealed that the first non-statutory complaint was a sequel to the performance Counselling administered byDGST. The DGST had issued performance Counselling not only based on two papers written by Brig Sahni which were found to be substandard but also on feedback received by the DGST from the MG ASC Eastern Command and other functionaries in his sector and other documents. In his analysis, ADG Cab stated that the complaint was untenable as the officer apprehended future assessment and no military wrong had been done to him. As regards the collection of funds for maintenance of ASC House, this was not established, though it emerged that the amounts were collected for furnishing of newly constructed guest rooms at the ASC Officers Mess at New Delhi. The other two complaints dated 26.8.96 and 27.8.96 were recommended to be rejected subject to expunction of HOS box grading in CRs 12/95-6/96. Notes 2 to 8 and CO AS Minute 9 in the linked file may kindly be perused.
4. In the fourth non-statutory complaint the officer made certain allegations against DGST of mala fide intentions, in that the DGST had issued a letter on 26.8.96 alleging the officers' possible involvement in extra-marital affair with Brig P Mehta's wife. This complaint has been examined not only by MS Br but by the AG as well. Their analysis may kindly be seen at notes 12 to 16 of the linked file.
5. May be submitted for information of RM. Our file on No 1 Selection Board in respect of ASC is already under submission for his approval.'
On 25.11.1997 there is a note by the same Under Secretary stating that the Government had approved the grading:
' Reference preceding note.
2. Govt. have approved the grading awarded by No 1 SB held in April 97 in respect of ASC officers as per list plead opposite subject to revision of the grading in the following cases:
(ii) Brig SC Mohan (Sl.No.7) - 'B'(fit)'
(iii) Brig SK Sahni (Sl.No. 15) - 'Z' (unfit).
The list has been authenticated by the undersigned accordingly.
3. The MDS of the officers and the CRD Brig RL Kaul are returned herewith.'
On 11.12.1997 the Private Secretary to Hon'ble Raksha Mantri had noted :
'The file mentioned in par a 5 above has been returned with orders from RM on it.'
Para 5 referred to by the P.S. could be seen in the note dated 24.9.1997, extracted above. When did the Hon'ble Raksha Mantri approve the note, and on what basis, nothing could be culled out from the file.
37. The petitioner had filed the writ petition on 2.12.1997.
38. The counter affidavit on behalf of respondents 1 to 3 has been sworn to by Mr. A.J .S. Sahney, Director (MS), Ministry of defense. Reliance is placed on Regulation 108 of the defense Regulations to sustain the action of the Central Government. It is stated that the 4th respondent had no role to play either in the Selection Board orin the decision making process by the Central Government. It is stated that the statutory complaints were considered by the authority concerned and partial relief was granted to the petitioner which was taken into account. It is asserted :
'It is further submitted that it is for the Competent Authority to decide whether an Officer is fit for promotion or not and the petitioner has no locus standi to question the prerogative of the Competent Authority to accept or reject the recommendation of the Selection Board.'
It is further stated:
'In reply it is submitted that based on the relief granted to the petitioner by the CO AS in his Confidential Report 1995-96 the petitioner was again considered as a Special Review (Fresh) case in the Selection Board held on 10-11.4.97.'
It is not understandable as to what Mr. Sahney means by saying :
'The decision of the Central Government as regards the recommendations of the Selection Board was received on 26.11.97 and the results were declassified on the same date. The petitioner did not make the grade in his Board also and he was not promoted.'
It is asserted again in the counter:
'In reply it is submitted that the grading of the Selection Board are merely recommendatory in nature and the Central Government has the inherent power to accept or reject such recommendations. The petitioner has no right to question the selection of any other Officer by the Competent Authority. The Officer did not make the grade based on his overall profile.'
It is stated in paragraph 11 of the counter :
'It is denied that respondent Nos. 6 and 7 have granted the petitioner outstanding in Confidential Report 1995-96.'
It is again asserted in the counter:
'As already submitted in para 3 above, as per defense Service Regulations para 108 provides and empowers the Central Government to accept or reject or modify the recommendations of the Selection Board. It is further submitted that the petitioner was not considered fit for promotion by the Competent Authority based on his over-all profile and comparative merit and thereforee it is denied that the rejection of the petitioner's case was based on mala fide intentions or was arbitrary decision of the answering respondent.'
It is stated that the Competent Authority took the decision based on the petitioner's overall profile and the comparative merits of other officers.
39. The 4th respondent filed a separate counter. In paragraph 2, he would state:
'From the above it will be seen that the DGST and Senior Colonel Commandant has the same status and position in ASC as that of Chief of Army Staff for the entire Indian Army. thereforee, technical averment of an officer by the DGST assures great importance, while assessing the officer for further promotion. The Selection Board comprising the COAS and GOSC-IN- CHARGE Command aretherefore, duty bound to take note of technical assessment of MGASC and DGST rather than ignore it.'
The 4th respondent is trying to suggest that the Selection Board had failed to take note of his technical assessment about the petitioner. The 4th respondent is not the authority who is to sustain the action of the Government.
40. In paragraph relating to the complaint by Col. B.C. Gujral, the 4th respondent had filed a copy of letter received by him from Mr. S.C. Gujral dated 6.9.1996. In his counter affidavit, he would state:
'As regards allegation (b), IT is submitted that based on the allegations leveled by an officer vide letter No. 16173/SCG/ST-2 dated 6.9.1996 (Copy filed as Annexure-R-1). An enquiry was ordered to be conducted against the petitioner. The matter was also brought to the notice of the higher authorities and as such this Hon'ble Court maybe pleased to call for the records of the correspondence, to show the bona fides of the answering respondent.'
He would not say on what basis he ordered an inquiry to be conducted without any materials. The 4th respondent had only made an attempt to justify the stand taken by him about the petitioner. In paragraph 7(1) he would state:
'That the contents of para 7 (1) are denied being incorrect. In reply it is submitted that based on verbal report which was subsequently followed by a written one, from Col. S.C. Gujral, an enquiry had been ordered to be conducted against the petitioner. As such there was nothing illegal or irregular and the same was taken in good faith and Bona fiddly in discharge of respondent's duties. The answering respondent craves leave of this Hon'bleCourt to refer to the contents of para 4(c) of the preliminary submission which are not being repeated herein for the sake of brevity.'
The 4th respondent is still of the view that what he did was correct. This ground alone is sufficient to reject whatever the 4th respondent had stated about the petitioner. The 4th respondent as Lt. Gen. had not deported himself consistent with and in conformity to the expectations of his high office and it is to be appreciated that the Chief of the Army Staff who found the petitioner fit for promotion along with other Lt. Generals on 31.10.1996 that the petitioner was found fit had rejected the non-statutory complaint granting him partial relief on 24.2.1997 and again in the meeting held on 10-11.4.1997 the same COAS along with other officers had found the petitioner fit for promotion. thereforee, it is clear that the Members of the Selection Board, who had all the necessary information, had deliberately chosen to brush aside the remarks of the 4th respondent about the petitioner and found the petitioner fit for promotion. The Military Secretary, Lt. Gen. M.R. Sharma, who was one of the Members of the Selection Board, which had taken unanimous decision finding the petitioner fit for promotion could put up a note on 17.1.1997 contrary to his own decision while he was a Member of the Selection Board is intriguing. One can easily visualise his attempt to catalyse the decision of the Government towards nullifying the assessment of the Selection Board and it is mysterious that the Government could base its decision on nothing. For reasons best known to him, he had tried to contradict himself being oblivious to his duty and he was unaware while doing so he was only looking for a needle in a haystack or bundle of hay. For, whatever that is done by the Government would not be final and conclusive. The decision of the Selection Board can be upset by the Govt. of India, the Competent Authority, only on valid reasons. And those reasons should be perceptible from the records. If as asserted by the respondents that the Competent Authority acting under Regulation 108 of the defense Regulations, 1987 could do any thing it likes, then I am, afraid, we are not governed by rule of law and the citizens are not protected by the Constitution. I need not expatiate on this aspect of the matter because the Supreme Court has dealt with the point in clear cogent and unmistakable terms. It is a basic structure of our Constitution that ours is a Government of laws and not of men. The principle laid down by the Supreme Court of the United States in Cooper v. Aaron 358 US 1 has to be born in mind. The Supreme Court of the United States has said:
'Civilians involvement subjection of force to reason and the agency of this subjection is law'.
And it is axiomatic that the Government is bound by the law declared by the Supreme Court of India.
41. Mrs. Shyamla Pappu, the learned Senior Counsel for the petitioner submitted that the recommendation made by the Selection Board consisting of experts in the field cannot be interfered with by the Central Government unless there are good and valid reasons given by the Central Government. According to the learned Senior Counsel on the facts and circumstances of this case having regard to the assessment made by the Selection Board on two occasions there can be no justifiable reasons available on file to sustain the action of the Central Government. The learned Senior Counsel further submitted that assuming there are reasons given by the Central Government those will be totally perverse and no person properly instructed in law would take such a decision. The decision of the Central Government that Brig Ved Parkash, who was found not fit by the Selection Board, to be and the petitioner being not fit would come within the mischief of the rule enunciated by the House of Lords in Council of Civil Service Unions and Ors. v. Minister for the Civil Service 1984 (3) E.R. 935 which had been accepted by the Supreme Court in State of Andhra Pradesh and Ors., etc. v. McDowell and Co. and Ors. etc. : [1996]3SCR721 the House of Lords put the principles succinctly in the following words:
'My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time and further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned with suffice.
By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the state is exercisable.
By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corp [1947] All ER 680 : [1948] KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else thee would be something badly wrong with our judicial system. To justify the Court's exercise of this role, resort I think is today no longer needed to Viscount Tadcliffe's ingenious Explanationn in Edwards (Inspector of Taxes) v. Bairstow (1953) 3 All ER 48 : [1956] AC 14 of irrationality as a ground for a Court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision maybe attacked by judicial review.
I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an Administrative Tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an Administrative Tribunal at all.
My Lords, that a decision of which the ultimate source of power to make it is not a statute but the common law (whether or not the common law is for this purpose given the label of 'the prerogative') may be the subject of judicial review on the ground of illegality is, I think, established by the cases cited by my noble and learned Friend Lord Roskill, and this extends to cases where the filed of law to which the decision relates is national security, as the decision of this House itself in Burmah Oil Co (Burma Trading) Ltd. v. Lord Advocate [1964] 2 All ER 348 : [1965] AC 75 shows. While I see no a priori reason to rule out 'irrationality' as a ground for judicial review of a ministerial decision taken in the exercise of 'perogative' powers, I find it difficult to envisage in any of the various fields in which the prerogative remains the only source of the relevant decision-making power a decision of a kind that would be open to attack through the judicial process on this ground. Such decisions will generally involve the application of Government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questionsto which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the Court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another, a balancing exercise which Judges by their upbringing and experience are ill-qualified to perform. So I leave this as an open question to be dealt with on a case to case basis if, indeed, the case should ever arise.
As respects 'procedural propriety', I see no reason why it should not be a ground for judicial review of a decision made under powers of which the ultimate source is the prerogative. Such, indeed, was one of the grounds that formed the subject matter of judicial review in R. v. Criminal Injuries Compensation Board, ex p Lain [1967] 2 All ER 770 : [1967] 2 QB 864. Indeed, where the decision is one which does not alter rights or obligations enforceable in private law but only deprives a person of legitimate expectations, 'procedural impropriety' will normally provide the only ground on which the decision is open to judicial review. But in any event what procedure will satisfy the public law requirement of procedural propriety depends on the subject matter of the decision, the executive functions of the decision-maker (if the decision is not that of an Administrative Tribunal) and the particular circumstances in which the decision came to be made.'
The learned Senior Counsel submitted that administrative action can be set aside if it is illegal. The learned Senior Counsel amplified her submission by stating that administrative action would be illegal (a) if it contravenes or exceeds the terms of powers which authorises the making of the decision, (b) if it pursues an object other than that for which the power to make the decision was conferred.
42. The Central Government, according to the learned Senior Counsel had taken into account matters which ought not to have taken into consideration and had ignored to take into account which are relevant which should have gone into the decision making process. The learned Senior Counsel submitted that Regulation 108 of defense Service Regulations, 1987 would not apply and being non statutory the power conferred under Regulation 108 cannot be invoked by the Central Government. The learned Senior Counsel submitted that the Selection Board had acted on behalf of the President of India and when that power had been exercised by the President on behalf of the Central Government there can be no separate power vested with the Central Government to sit in judgment over the decision of the Selection Board. According to the learned Senior Counsel the scheme in the entire process of selection has not been properly understood by the Central Government.
43. Mr. Keshav Dayal, the learned Senior Counsel for the respondents submitted that the petitioner is trying to challenge the action of the Central Government on the so called processual solecisms when the Central Government had acted within the parameters of Regulation 108. The facts alleged by the petitioner do not spell illegality. The learned Senior Counsel submitted that the appointment was to one of the key posts in defense and the most Competent Authority to decide about the suitability of an officer is the Central Government and it is the Central Government alone that could assess the suitability and the judicial process is totally inept to deal with the sort of problems which it involves. The learned Senior Counsel submitted that the decision of the Central Government is beyond the ken of judicial review. The learned Senior Counsel submitted that this Court has no jurisdiction to go into the correctness or otherwise the decision of the Central Government. The language of Regulation 108 is categoric, clear and unambiguous. The Regulation would not admit of any other interpretation. The learned Senior Counsel submitted that the appointment to the post of defense Services cannot be compared to the post in Civil Services. There are peculiarities in the defense Services and the assessment of the officer would depend upon various factors including their suitability and adaptability to the basic assignment to them and those factors which go into the assessing process could be put into the frame of the individual concern only by the Central Government Mr. Keshav Dayal, the learned Senior Counsel, referred to the decision of the Supreme Court in Lt. Colonel KD. Gupta v. Union of India, and Ors. AIR 1989 S.C. 1393. The learned senior Counsel also referred to a judgment of the Division Bench of this Court reported in Lt Col Krishan Chand v. Union of India and Ors. : 60(1995)DLT597 .
44. I shall deal with the scope of defense Regulation 108 referred by the respondents. defense Regulation 108 reads as under:
' Constitution and Duties of Selection Boards.--Selection Boards (for officer other than Army Medical Corps, Army Dental Corps and Military Nursing Service) are constituted as required under the order of the Chief of the Army Staff. Their composition and duties are given below:
(a)Composition PresidingOfficer--Chief of theArmy Staff or any other senior officers as directed by him according tothe importance of the Selection Board.Members--Asdirected by the Chief of the Army Staff from time to time in accordancewith the nature of their duties.Secretary--MS/AddlMS/Dy MS(b)Frequency of Meeting: Arequired by the Chief of the Army Staff. (c) Duties.--(i) Assessment of officer for promotion to Lt Col and above, in accordance with the criteria laid down for selection.
(ii) Any other matter which the Chief of the Army Staff may direct the Board to consider.
(d) The assessment of the Selection Board shall be recommendatory in nature and not binding until approved by the Competent Authority viz. the CO AS or the Central Government as the case may be.
(e) The Central Government or CO AS have the inherent power to modifyreview, approve with variation or repeal recommendations of the selection Boards.'
45. The learned Senior Counsel for the petitioner Mrs. Shyamla Pappu and Mr. Keshav Dayal, the learned Senior Counsel for the respondents, in my view, put forth extreme contentions with regard to the scope of Regulation No. 108. As I had noticed above, the learned Senior Counsel for the petitioner submitted there is no power in the Central Government to go into the correctness of the assessment made by the Selection Board and the Regulation being non statutory when the Selection Board had acted on behalf of the President of India there cannot be any residual power with the Central Government to decide about the correctness or assessment made by the Selection Board. The learned Senior Counsel submitted that once the Selection Board representing the Central Government had undertaken the task of assessing the officers on behalf the same Central Government, the Department of Ministry of defense cannot act as an Appellate Authority. According to the learned Senior Counsel in the constitutional scheme the Minister of defense has absolutely no authority to decide about the correctness of the decision of the Selection Board.
46. Per contra, Mr. Keshav Dayal, the learned Senior Counsel for the respondents submitted that the decision of the Central Government under Regulation 108 is final and conclusive on the question and this Court under Article 226 of the Constitution of India has no power or jurisdiction to go into the reasonableness of the decision taken by the Central Government or whether there was any material in support of the decision taken by the Central Government, though the learned Senior Counsel on the merits submitted that there are enough material to show that the Central Government had taken a decision after due consideration of those materials.
47. In our constitutional polity no authority can claim to have the final say in any matter. Every decision has to be in accordance with law and that decision is subject to judicial review. And that is the basic structure of our Constitution as laid down in His Holiness Kesavananda Bharti Sripadagalvaru and Ors. v. State of Kerala and Anr. 1973 S.C. 1461. Where rule of law reigns supreme, no authority can claim to be above law. There may be instances when the Selection Board may take a view not consistent with law. And there should be some authority to correct error in the interest of justice safeguarding the rights of citizens flowing from the Constitution. thereforee, I do not find any force in the contention on behalf of the petitioner that the Central Government has no authority to act under Regulation 108 and the Regulation 108 being not statutory the Central Government cannot derive any power and seek to modify or annul the decision or assessment made by the Selection Board.
48. I am also not able to accept the submissions made by Mr. Keshav Dayal, the learned Senior Counsel for the respondents. In the light of the Fundamental Rights conferred on the citizens by the Constitution that the decision by the Central Government is not amenable to the judicial review and I have no hesitation to reject the same. The submissions overlooks the dicta laid down by the Supreme Court in various decisions right from E.P. Royappa v. State of Tamil Nadu and Anr. : (1974)ILLJ172SC .
49. The decision of the Supreme Court relied on by the learned Senior CounselMr. Keshav Dayal reported in AIR 1989 S.C. 1393 (supra), in my view is not relevant. In order to appreciate the contention, the decision in Major K.D. Gupta v. Union of India and Anr., : AIR1983SC1122 and the decision in It. Colonel K.D. Gupta v. Union of India and Ors. : (1988)IILLJ144SC have to be noticed. All the three cases were filed by the same petitioner Lt. Ccl. K.D. Gupta. Paragraph 8 relied on by Mr. Keshav Dayal, the learned Senior Counsel for the respondents, in AIR 1989 S.C. 1393 (supra) can be appreciated only if all the facts are observed.
K.D. Gupta, who was Major in the Indian Army was promoted to the rank of acting Lt. Col. w.e.f. 27th of February 1975. On 13.8.1976 as a result of the examination by the specialists, his medical classification was downgraded to SHAPE-S.3T.24 (fit for routine duties under supervision in areas where hospital with psychiatric facilities exist nearby; not fit for duties at high altitudes).
By attachment order dated 14.5.1976 he was transferred from Gorkha Rifles to Headquarters 54, Infantry Division against the post of Commander NCC Group HQ Bellary in the rank of an acting Lt. Col. On his return from leave on August 14,1976, he was attached to HQ 54 Infantry Division till November 16,1976. By order dated 16.11.1976 the said K.D. Gupta was posted as GLO (Maj/Capt) and that post was opposed which could be held by an officer of the rank of a Major or a Capt. There was no order specifically reducing the rank of the petitioner from that of acting Lt. Col to that that of a Major and the petitioner was instructed by the Brigadier not to wear the badges of Lt. Col. And it was thus reduction in rank that was mainly challenged by him in a writ petition before the Supreme Court. On a subsequent medical review on September 2, 1977, he was upgraded to SHAPE S-l (fit for all duties). Subsequently, his case was reviewed and on the ground an earlier episode of 1963 was not taken into account, he was again downgraded to S-2 and that was challenged, as 1 had mentioned above, in the writ petition.
The arguments on behalf of the respondents was:
'(i) Reduction in rank had to follow as a matter of course on placement of the petitioner in a lower medical category;
(ii) After the latest medical examination in 1978, he was not eligible to be considered for promotion for one year; his earlier reduction in rank was, thereforee, justified; and
(iii) He performed no duty for six months from March 22, 1976 when he was admitted in the hospital and under the rules, he stood automatically reduced in rank.'
The Supreme Court held:
'As stated by us earlier, we find no substance in any one of the three reasons mentioned by Shri Abdul Khader on behalf of the respondents for the reversion of the petitioner from the rank of Acting Lieutenant Colonel to Major. The reversion or reduction in rank cannot be justified and it is accordingly quashed. The petitioner is directed to be restored to the rank of Acting Lieutenant Colonel with effect from the date he was reverted and stripped of the badges indicating his rank. As a result of the restoration of the rank of the Acting LieutenantColonel to the petitioner, other consequences, such as, consideration of the petitioner's further claims to advancement, pay, arrears of pay, etc., will have to be considered by the authorities and it is directed that these claims may be considered and disposed of within a period of six months from today. The petitioner will submit all his claims to the Appropriate Authorities within a period of one month from today. The petitioner will get the costs of the Writ Petition from the respondents.'
The judgment was rendered by the Supreme Court on 10.8.1983. The judgment of the Supreme Court dated 10.8.1983 is : AIR1983SC1122 (supra).
On 11.1.1984 a Review Medical Board was held and the petitioner was brought down to SHAPE 2 from SHAPE 1.
The said K.D. Gupta filed C. W.P. No. 5702/85 in the High Court of Allahabad praying for a declaration that he should be treated as belonging to medical category SHAPE 1 for all purposes without interruption since 2nd September, 1977. He also prayed for appropriate posting considering his entitlement and other consequential benefits. By order dated 31.3.1987 the High Court of Allahabad dismissed the writ petition. K.D. Gupta took up the matter to Supreme Court. The Supreme Court held:
'In a petition dated 2nd April, 1988, the appellant had asked for certain directions and reliefs. The application is confused one inasmuch as arguments, pleadings and prayers have been jumbled up. The appellant, inter alia, has asked for entitlements to promotion in view of promotions earned by his batchmates. We do not think that without be a safe guide but we do hope and trust that the respondents should consider his case for promotion with an open mind on the basis of his continuity in Shape-I. He has also indicated in paragraphs of that petition that he is prepared to be released from service after his promotional entitlement is finalised and he is given his dues on such basis as may be determined. The appellant has claimed compensation which we see no basis to grant.
The appeal is allowed in part and to the extent that the appellant's medical category shall be taken as being continued to be S-I from 1977 and on that basis his promotional entitlement shall be finalised by the respondents within three months hence. We make it clear that it is open to the respondents to release the appellant from service after this has been done. This case may not be taken as a precedent and we reiterate that this Court would like the discipline of the defense Department to be maintained by itself in the interest of the nation. Parties are directed to bear their own costs.'
What the Supreme Court had observed at paragraph 10 that the subject is technical and ordinarily should be left to experts available in the defense Department. The view of the Supreme Court is that so far as the defense Department is concerned, the opinion of the experts in the defense Department should be given its due weight has been ignored by the Central Government. Before harking back to AIR 1989 S.C. 1393 (supra), it has to be noticed that in the instant case on 31.10.1996 the Chief of Army Staff and 7 Lt. Generals and on 10/11.4.1997 the Chief of Army Staff and 8 Lt. Generals, who are experts in the field, had found the petitioner fit for promotion. The Central Government without any materials on record and without any justification whatsoever had upset the decision.
K.D. Gupta on the premise that the decision rendered by the Supreme Court on 20.4.1988 : (1988)IILLJ144SC filed CMP. 20065/88 had not been implemented, on 2.5.1988 the petitioner wrote to the Chief of the Army Staff about the same. On 26.5.1988 the Military Secretary had noted:
'The Officer was considered by No. 3 Selection Board for promotion to the acting rank of Colonel and awarded the following:
(a) 'R' (Unfit) in July 1986 with ACR84/85,
(b) 'R'(Unfit) in July 1986 with ACR6/85 to 2/86.
(c) 'R' (Unfit) in Nov. 1987 with ACR 6/86 to 5/87.
The Officer has been finally superseded for promotion to the rank of acting Colonel based on his overall profile and his medical category was not taken into account during the above three considerations. However, the officer has been granted the substantive rank of Lt. Colonel w.e.f. 01 Aug. 1979 vide Gazette Notification No. 1774/87 dated 19th Sept. 1987.'
On 17.6.1988 the respondents therein informed the petitioner K.D. Gupta by writing the following:
'In this connection, I have been directed to inform you that your case has been re-examined in the light of the judgment of the Supreme Court of India dated 20th April, 1988.
It may kindly be recalled that acting rank of Lt. Col. was granted to you with your original seniority based on the earlier directions of the Hon'ble Court. Substantive rank of Lt. Col. was also granted to you along with your batch-mates. Consequent to the Supreme Court's judgment dated 10th Aug 1983, your case for promotion to the rank of A/Colonel was considered on three occasions viz. July 86, April 87, Nov. 87 and rejected on all the three occasions based on your overall performance and merit of your batch. Your medical category was not taken into consideration as per the laid down procedure. thereforee, upgradiation of your medical category from Shape-2 to Shape-1 by the Supreme Court vide their orders dated 20th April, 1988, does not warrant reconsideration of your case for promotion because your medical category had not affected your case for promotion to the rank of A /Colonel on any occasion. You failed to make the grade for promotion not on the basis of your medical category but on the basis of your overall performance and merit of your batch....'
On 24.1.1989 the Supreme Court passed the following order:
'After carefully considering the matter, we direct the respondents to reconsider the case of the appellant for promotion on the basis that his medical category continues to be S-1 from 1977. The medical category will be taken into account if the rules for promotion so require, otherwise not. The consideration of promotion will be completed within four weeks from today....'
The Supreme Court was informed that K.D. Gupta 's case was considered on the basis of record and he was not found fit for any promotion.
50. The respondents throughout had been projecting before the Supreme Court that the medical category in which K.D. Gupta was placed was never taken into consideration for purposes of promotion but in answer to the contempt petition it came out that that was taken into account, which was contrary to the direction given by the Supreme Court. In this context, the Supreme Court said:
'The judgment of this Court did clearly proceed on the footing that the lower medical categorisation prejudiced the petitioner in the matter of obtaining appropriate promotions. For the first time, the respondents have taken the stand in the contempt proceeding that the lower categorisation has nothing to do with the refusal to accord promotion to the petitioner. In the circumstances indicated above, the plea now advanced cannot be accepted. In fact, Mr. Ramaswamy, Additional Solicitor General, appearing for the respondents being cognizant of his situation stated to us during the hearing of this application that the petitioner has justification to feel aggrieved.'
The Supreme Court considering the case for compensation observed:
'The question for consideration now is as to how the petitioner has to be compensated and what should be its measure. The petitioner has, of course, advanced tall claims by contending that he has suffered physical and mental torture, loss of reputation and of social acceptance and financial loss. What promotions the petitioner would otherwise have earned would be a matter of speculation and cannot be ascertained at this stage for lack of appropriate decisive criteria. His grievance that he suffered in dignity and humiliation as a result of being looked down upon by his batch-mates, friends and relatives has perhaps been sufficiently met by the appellate judgment which has cleared that his lower medical categorisation was unjustified and the petitioner continued to be Shape-I without break from 1977.'
It is only in these circumstances, the Supreme Court observed :
'The respondents have maintained that the petitioner has not served in the appropriate grades for the requisite period and has not possessed the necessary experience and training and consequential assessment of ability which are a precondition for promotion. The defense services have their own peculiarities and special requirements. The considerations which apply to other Government servants in the matter of promotion cannot as a matter of course be applied to defense personnel of the petitioner's category and rank. Requisite experience, consequent expose and appropriate review are indispensable for according promotion and the petitioner, thereforee, cannot be given promotions as claimed by him on the basis that his batch-mates have earned such promotions. Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not available. We find force in the stand of the respondents and do not accept the petitioner's contention that he can be granted promotion to the higher rank as claimed by him by a d opting the promotions obtained by his batch-mates as the measure.'
Ultimately, the Supreme Court held:
'The defense personnel have peculiar incidence of service. Life's course does not run smoothly for everyone. In the present proceeding which is for contempt, we do not think that we can award compensation under every head of claim. Some of factors relevant for such purpose are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation, and the consequent suffering which he underwent, the loss of promotional prospects and the fact that he would now be obliged to request to be released from send prematurely. We are of the view that a total compensation of Rs. four lakhs would meet the ends of justice. This would obviously mean that the petitioner would not be entitled to any other claim on these heads but we make it clear that he would be entitled to all other service benefits which an officer of the Lt. Colonel's rank, which the petitioner admittedly holds, would be entitled to. This judgment should serve the petitioner in vindication of his stand and to dispel clouds cast on his physical and mental health by the purported lower medical characterisation and obviously in the event of his being considered for re-employment after retirement his suitability would be considered on the basis of his service records and the judgment of this Court.'
51. In my view, the decision of the Supreme Court in K.D. Gupta's case cannot be projected as an authority for the proposition that when once an expert body (Chief of Army Staff and 8 Lt. General s) find an officer fit for promotion the Government can without any material on record annul the decision of the expert body by invoking its power under Regulation 108 on the premise that 'the defense services have their own peculiarities and special requirements, and the considerations which apply to other Government servants in the matter of promotion cannot as a matter of course be applied to the defense services.'......
52. The learned Senior Counsel Mr. Keshav Dayal referred to a judgment of Division Bench of this Court reported in Lt. Col. Krishan Chand v. Union of India and Ors., for the proposition that under Regulation 108 the Competent Authority can exercise its power. A few facts have to be noticed for the purpose of appreciation the ratio laid down by the Division Bench.
The officer concerned filed a writ petition in this Court challenging his non-selection for promotion. The learned Single Judge, before whom the writ petition came up for disposal, after going through the relevant records held that the process of selection was fair and reasonable and the learned Single Judge dismissed the writ petition. That was taken up in appeal. It was contended before the Division Bench on behalf of the officer concerned that any entry in the ACR which may be 'above average or high average' if it has an effect of prejudicing an officer's prospects, while being considered by the Selection Board, may not otherwise be adverse but will amount to an adverse entry requiring communication to enable the officer to make improvement in subsequent years. It was submitted on behalf of the Government, placing reliance on K.D. Gupta's case (supra O that considerations which apply to the other Government servants in the matter of recording of ACRs or in the matter of promotion cannot, as a mailer of course be applied to defense Personnels and there is a 3-tier system of recording ACRs. An ACR is initiated by an Initiating Officer, whois higher in rank of the officer concerned, a still higher officer will be Reviewing Officer and an officer who is superior to both will be Sr. Reviewing Officer. The Division Bench having considered the ACRs and the orders passed in the complaints made by the officer concerned, observed:
'Without specifically making any challenge thereto and that also on admissible grounds, it will not be permissible for us, while haring the appeal, to consider the submissions made by the appellant or to make any observations thereon, inasmuch as such points were not urged or agitated in the writ petition. Otherwise also in view of the decision in Lt. Col. K.D. Gupta 's case, it will not be proper to apply the ratio of the two decisions relied upon by the appellant that defense services have their own specialities and peculiarities. Selection is based on an overall profile of an officer with special stress on the performance in criteria Command appointment. The aim of the Selection Board is :
(a) To assess all eligible officers of a batch who reckon seniority during one calendar year, and their equivalent seniority in other Arm/Services for promotion to the next rank.
(b) To screen officers of earlier batches who have been placed on Review for promotion to the next rank.
(c) To assess the suitability of officers, who have been approved earlier to the next higher rank whilst in low medical classification, for their physical promotion and recommend restrictions, if any, on their employment in that rank.
(d) To ensure selection through objectivity, impartiality and in the best interest to the service, in accordance with the guidelines laid down by the COAS.'
No part of the selection system specifically is under challenge in the writ petition. The guidelines contained in the selection system also take care of the appellant's apprehensions, that a few selected officers are given inflated or high figurative rating as compared to others or under-rating certain officers with a view to deprive them of promotion. The cautionary note of the Chief of Army Staff contained in the selection system says:
'(k) Cautionary Notes by the COAs.
(i) Elements of magnanimity on the part of the reporting officers leading to sudden elevation in figurative ratings especially in the case of officers who have been superseded earlier or on the eve of the selection or on the eve of the reporting officer's retirement.
(ii) Moderation by RO, SRO, NSRO particularly in cases where officers have been over or under-rated.
(iii) Disparity in recommendations for promotion viz-a-viz the box grading, penpicture and recommendations for employment.
(iv) Comparative merit of officers in Staff/ERE viz-a-viz an officer in command in the same rank.
(v) Reports from NCC and ERE are given less weightage as compared to the reports earned from command and graded staff.'
We find no merit in the appeal since all points have been duly considered and decided by the learned Single Judge with which we fully agree and find no ground to come to a different conclusion.'
53. I fail to see as to how the ratio that has been laid down by the Division Bench could be applied to the facts of the instant case. In my view, in the light of the facts which cannot be disputed by the respondents, the decision by the Competent Authority (Central Government) as projected by the respondents, is no decision at all in the eyes of law. It is illegal, irrational, unfair and totally unreasonable.
54. The Government of India is bound to give effect to the decision arrived at by the Selection Board and in view of the unanimous decision by the Selection Board in its two meetings one on 31.10.1996 and the other on 11.4.1997 the petitioner is entitled to promotion as Maj Gen w.e.f. 1.5.1997 when the vacancy arose. It is a well settled principle of law that if the exercise of a discretionary power has been influenced by considerations that cannot be lawfully taken into account or by the disregard of relevant considerations required to be taken into account, a Court will normally hold that the power has not been properly exercised. The principle nicely stated by Lord Keith in Lonrho plc v. Secretary of State for Trade and Industry and Anr. appeal 1989 (2) AER 609 : 989 1 WLR 525 would apply to the instant case. The learned Judge said:
'......and if all other known facts and circumstances appear to point outoverwhelmingly in favor of a different decision, the decision maker...... cannotcomplain if the Court draws the inference that he has no rational reason for his decision.'
55. thereforee, the writ petition succeeds and the decision of the Central Government over-ruling the decision of the Selection Board is declared null and void and the petitioner is declared to have been promoted as Major General w.e.f. 1.5.1997 and his seniority will be recognised as such. In this view, I am of the view that it is not necessary to quash the appointment of respondents No. 8 to 14 as Major Generals, who have not come forward to contest the writ petition.
56. The relief prayed for in paragraph (c) for a mandamus for inquiry into the allegations made by the petitioner against the 4th respondent. I am of the view that it is wholly unnecessary and the petitioner should be satisfied with what he has been able to get and not try to hound the 4th respondent and one should be graceful in such situations.
57. The learned Senior Counsel Mr. Keshav Dayal submitted in the beginning that this matter should be disposed of as early as possible as one post has been reserved by virtue of orders passed by this Court and that causes great administrative inconvenience in the Army.
58. The writ petition is allowed in the above terms. The first respondent shall issue appropriate orders promoting the petitioner as Major General on or before 30.6.1999 and the petitioner shall be entitled to all consequential benefits. There shall be no order as to costs.