A BHAKOO Vs. UNION OF INDIA

JUDGEMENT

(1.) .THE PRESENT PETITION IS FILED BY THE PETITIONER PRAYING FOR QUASHING AND/OR SETTING ASIDE THE ADVERSE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE PERIOD OF 1.10.2000 TO 17.6.2001 AND ALSO THE LETTER DATED 10.4.2003, WHICH IS ANNEXED TO THE PETITION AS ANNEXURE P- 12 FINDING THE PETITIONER UNFIT FOR PROMOTION TO THE RANK OF GROUP CAPTAIN AS ILLEGAL, ARBITRARY, ULTRA VIRES WITH A FURTHER DIRECTION TO THE RESPONDENTS TO RE-CONVENE THE PROMOTION BOARD 2/2002 AND PB II/2003 TO CONSIDER THE CASE OF THE PETITIONER WITHOUT TAKING INTO CONSIDERATION THE ADVERSE ENTRY RECORDED FOR THE PERIOD 10/2000 TO JUNE 2001.

(2.) .THE PETITIONER WAS POSTED AS COMMANDING OFFICER, 14 SQUADRON WITH EFFECT FROM 26.4.1999. WHILE HE WAS SO POSTED, THE PETITIONER'S ANNUAL CONFIDENTIAL REPORT FOR THE PERIOD 1.10.2000 TO 17.6.2001 WAS INITIATED AND WRITTEN BY HIS INITIATING OFFICER. LATER ON THE PETITIONER WAS INFORMED ON OR ABOUT 1.5.2002 THAT THE PETITIONER WAS FOUND UNFIT FOR PROMOTION TO THE RANK OF GROUP CAPTAIN BY THE PROMOTION BOARD 2/2002. THE PETITIONER THEREAFTER FILED A REPRESENTATION TO THE AIR HEADQUARTERS PURSUANT TO WHICH ON 27.8.2002 THE PETITIONER WAS INFORMED THAT THE ANNUAL REPORT FOR THE PERIOD 1.10.2000 TO 17.6.2001 CONTAINED ADVERSE REMARKS. ON 23.9.2002, THE PETITIONER MADE A SECOND REPRESENTATION WHEREBY HE SPECIFICALLY INFORMED THE RESPONDENT THAT HE WAS NOT INFORMED BY ANY WRITING BEFORE EXECUTION OF ADVERSE COMMENTS IN THE ANNUAL REPORT OF 2000 - 2001. THE AFORESAID REPRESENTATION OF THE PETITIONER WAS NOT DISPOSED OF BY THE RESPONDENTS BUT INSTEAD THEY HELD PROMOTION BOARD II/2003 WHEREIN THE PETITIONER WAS CONSIDERED FOR PROMOTION AND THE BOARD CONSIDERED THE REPORTS OF THE PETITIONER INCLUDING THAT OF AR 2000 - 2001. THE PETITIONER AGAIN SOUGHT FOR DISPOSAL OF THE REPRESENTATION, WHICH WAS FILED ON 23.9.2002. THE PETITIONER WAS THEREAFTER BY A LETTER ISSUED ON 9.4.2003 INFORMED THAT THE MINISTRY OF DEFENCE HAS ORDERED THAT THE ADVERSE REMARKS OF AR 2001 OF THE PETITIONER BE IGNORED AND THE PETITIONER BE RECONSIDERED FOR PROMOTION IN PB-2/2002 TO THE NEXT RANK. THE RE-CONVENED BOARD FOUND THE PETITIONER FIT FOR PROMOTION AND HE WAS PLACED AT SERIAL NO.47 IN THE OVERALL MERIT IN HIS STREAM IN PB- 2/2002. THEREAFTER BY A LETTER DATED 10.4.2003, THE RESPONDENTS ALSO INFORMED THE PETITIONER THAT THE PROMOTION BOARD-2, WAS HELD IN FEBRUARY 2003 AND THAT HE HAD BEEN FOUND UNFIT IN THE SAID RECONVENED BOARD FOR PROMOTION TO THE RANK OF GROUP CAPTAIN. AS AGAINST THE AFORESAID ACTION OF THE RESPONDENT, THE PETITIONER FILED A REPRESENTATION CONTENDING, INTER ALIA, THAT AS THE RESPONDENTS HAVE TAKEN INTO CONSIDERATION THE AR 2000 - 2001, WHICH WAS TO BE KEPT OUT OF THE CONSIDERATION IN TERMS OF THE ORDER OF THE MINISTRY OF DEFENCE, THE RECOMMENDATION AND DECISION OF THE PROMOTION BOARD GIVEN AFTER CONSIDERING THE SAID ADVERSE REMARK IS LIABLE TO BE SET ASIDE AND QUASHED. BEING AGGRIEVED OF THE AFORESAID ACTION AND NON-DISPOSAL OF HIS REPRESENTATION FILED BY THE PETITIONER, THE PRESENT PETITION IS FILED SEEKING FOR THE AFORESAID RELIEFS.

(3.) .COUNSEL APPEARING FOR THE PETITIONER, DURING THE COURSE OF HIS SUBMISSIONS, SUBMITTED THAT THE RESPONDENTS COULD NOT HAVE TAKEN NOTICE OF THE ADVERSE REMARKS RECORDED IN THE ANNUAL REPORTS OF THE PETITIONER FOR THE YEAR 2001 WHILE CONSIDERING HIS CASE FOR PROMOTION TO THE POST OF GROUP CAPTAIN BOTH IN THE PROMOTION BOARD OF 2/2002 AND PROMOTION BOARD OF II/2003 AND SAME HAVING BEEN CONSIDERED AND NOTICED WHILE MAKING THE RECOMMENDATION THAT THE PETITIONER IS NOT FIT FOR PROMOTION, THE ENTIRE PROCESS IS TO BE CANCELLED AND THE PROMOTION BOARD IS TO BE RECONVENED AFTER ISSUING A DIRECTION THAT THE AFORESAID ADVERSE REMARKS BE KEPT OUT OF CONSIDERATION.