UNION OF INDIA Vs. AVTAR SINGH

JUDGEMENT

(1.) J:- Respondent No. I was holding a rank of Brigadier in Indian Army having been commissioned in the service on June13, 1963 in the Regiment of Artillery. In the 1965 Indo-Pak war, he was fighting in a theatre on the western front in which he sustained serious injuries to various parts of his body and ultimately his right arm and the left index finger had to be amputated later on. By international medical standards, he was classified as having 90% disability. But on account of the policy adopted by the Government of India all officers who had sustained such injuries or battle casualty officers should be retained in service to avoid demoralisation by sending out young disabled officers from service. However, that was only a poor consolation for no other relaxation was provided to them for promotion in service or compensation for the disability. Such officers had to compete with able-bodied officers to get their future promotions notwithstanding of the injuries sustained by them.

(2.) For the period between September 1990 to August 1991, ACRs of respondent No. 1 were recorded by respondent No.2 but the adverse comments made by him and non-approval of promotion to the rank of Major General in the selection board to be held in October, 1994 was set aside on appeal and for another period from September, 1991 to June, 1992, the Chief of the Army Staff granted a limited relief of expunging of those entries which had 5-point awarded in the relevant column by the intimating officer and there is no need to grant any further interview in regard to the same and thus he became eligible for consideration to the post of Major General. He fled a writ petition challenging the adverse entries made in the ACRs for the latter period.

(3.) In that writ petition, second grievance made by respondent No. 1 is that in the selection Board held in April, 1995, he was empanelled but he was not actually or physically promoted to the rank of Major General and he was due to retire on December 31, 1995 in the rank of Brigadier. In other words, inasmuch as he has been approved for promotion to the rank of Major General in the second selection Board along with another officer who picked up the rank of Major General by the time the writ petition was filed, respondent No. 1 was not able to do so as no vacancy of Major General was available in the AOC and, therefore, he had to retire as a Brigadier on December 31, 1995 without availing the benefits and consequences of his approval for promotion as Major General. However, it must be noticed that in interim order was passed by the High Court on 19-12-1993 that respondent No. 1 shall not retire from service despite his impending superannuation which stood affirmed on appeal subject to slight modification in regard to posting. The resultant position is that respondent No. 1 continued to be in service even though in the rank of Brigadier despite having reached the age of superannuation in that rank on December 31, 1995. However, the High Court examined the original ACRs of the two relevant years as had been recorded by respondent No. 2 and noticed that in respect of the first ACRs all the entries recorded by him stood expunged and insofar as the second entry is concerned, he had been graded by giving him the three marks. On this aspect of the matter, the learned Single Judge of the High Court stated that the superior officers have found respondent No. 1 to be of outstanding and exceptional eminence and did not approve the attitude of respondent No. 2 in under-rating and under-mining him and grading him lower in ACRs. However, the High Court found that the ACRs recorded by respondent No. 2 would not mean that they are subjective, biased and prejudicial assessment and the Chief of the Army Staff gave limited relief of him regarding the second ACR with the result that the entries in the second ACR came to be considered by the selection Board when respondent No. 1 was first considered for promotion in October, 1994. However, ultimately, the High Court found that on account of the fact that respondent No. 1's name stood approved in April, 1995, he was not inclined to disturb the finding of the selection Board held in October, 1994 merely on the ground that respondent No. 1's second ACR was before the selection Board entries wherein are recorded by respondent No. 2 though not fully supporting him and in spite of which his case was considered and he was approved for empanelment. In that view of the matter, to disturb the proceedings in which four other officers had been approved would cause great prejudice and hardship to them especially when respondent No. 1 himself has not been approved for new promotion.