CAPTAIN C P SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner was commissioned by the President of India in the Rank of 2nd Lieutenant in the Electrical and Mechanical Engineering Corps and was appointed as such in Short Service Commission (S.S.C. for brief), initially on contract for a period of five years on March 8, 1986. The present petition has been filed for the relief of a writ, order or direction in the nature of mandamus commanding the respondents to consider the petitioner for grant of permanent commission de novo on or before 30th April, 1994 and also for issue of a writ order or direction in the nature of certiorari, summoning the records of his A.C.R. and those of other officers of this batch, who were allegedly offered crucial favour of being insidiously granted permanent commission and quashing the selection process including Annexure 4, by which the petitioner's statutory complaint dated 27.8.1991 met the fate of rejection and Annexure 6, which is the record of interview in respect of the petitioner, held on 15.10.1992, infer alia, on the ground that the petitioner has been singled out for the hostile discrimination in the matter of grant of permanent commission and his statutory complaint against denial of permanent commission has been illegally rejected by a cryptic order.

(2.) In substance, what is sought to be judicially reviewed herein, is the non-selection of the petitioner for grant of permanent commission and rejection of his statutory complaint under Section 27 of the Army Act. 1950- The first contention advanced by the learned counsel appearing for the petitioner is that the petitioner was illegally and arbitrarily denied being granted permanent commission. It is alleged in the petition that the petitioner was due for being granted permanent commission around March 8, 1990, but the same was procrastinated by Army Headquarters, Military Secretary Branch vide their communication dated 11th October, 1990 and subsequently, when the matter came to be considered, he was denied permanent commission and instead, bestowed extension of five years in short service category. It is alleged that 'overall average profile' of the petitioner had not been correctly fed into the computer maintained in the Army Headquarter, Military Secretary Branch in that ; (a) his overall average profile had been fed with the date that he had been awarded 'severe reprimand' in the year 1986, whereas the fact remained that the award of severe reprimand was pared down to reprimand' by the G.O.C. in Chief and, (b) 'overall average profile' did not record the fact that he had achieved excellence and had played games at the divisional level and instead, it was shown that he had obtained proficiency in the unit level only. It is also alleged that the award of reprimand for the year 1986 lost its sting after one year but the said fact was blinked back from the 'overall average profile' of the petitioner. It is further alleged that Lt. Colonel V. J. S. Gill, arrayed as a party-respondent No. 5, who was the initiating officer of the petitioner during the year 1990. resorted to the use of blade eraser in gross violation of para 11 of S.A.O. 3/5/89 to reduce the petitioner's grading in A.C.R. It is also alleged that Captain Rajendra Prasad was granted extension of five years' service vide Army Headquarter M.S. Branch Letter No. 05492/Extn/115/MS-R & C, dated 8th October, 1990. but later on, granted permanent commission ulde Military Secretary Branch Letter No. 05493/MS-R & C of 4th June. 1991 and similarly. Captain Tarun Madan was granted extension vide M. S. Branch Letter No. 05492/139/Prov/Entry-R & C, dated 16th October, 1990 and later on. this short service officer was also bestowed permanent commission, while the petitioner has been denied grant of permanent commission Sans any rhyme or reason. Likewise, Captain Man Mohan Chamola belonging to 13. Mech, Inf. was neither granted permanent commission, nor granted extension of service and Army Headquarter had ordered his release, but he was by a quick of fate recalled from his home and granted permanent commission vide Army Headquarter Military Secretary Branch Signal No. 383814/MS/SP, dated 24th November, 1988.

(3.) A perusal of the counter-affidavit would bespeak that Lt. Colonel V.J. S. Gill had graded the petitioner in A.C.R, for 1990 "above average" and there was no tampering in the grading awarded against column of integrity and quality. The counter-affidavit further reveals that the petitioner, who belonged to short service commission, 41 Course, was screened for grant of permanent commission in September, 1990, as he was completing initial contractual period of five years in 1991 but he was chucked back from the Board as per policy in vogue that a short service commissioned officer would be eligible for consideration of grant of permanent commission only after he has earned three reports whereas the petitioner had earned only two reports till September. 1990. However, he was considered for grant of permanent commission along with the next batch, i.e., S.S.C. 42 Course by which time had earned the requisite three reports. It is also revealed from para 17 of the counter-affidavit filed by Lt. Colonel Laxmi Chand that as per policy in vogue, only those officers, who were in the top 50% of the batch, would be granted permanent commission and the petitioner could not secure permanent commission since he did not merit in the first 50% in his batch. It is also stated in paragraph 20 of the counter-affidavit that Captain Rajendra Prasad was initially granted extension for five years as he-did not merit amongst top 50% of his batch but due to setting aside of his adverse A.C.R. for 1989, he was reconsidered by No. 5, Selection Board in April, 1991 as per the provisions of para 35 of A.O. 18 of 1988 and found qualified for the same and similarly Captain Tarun Madan was also reconsidered by No. 5, Selection Board in April, 1992, due to setting aside of his adverse A.C.R. 87 and was found qualified for grant of permanent commission, being amongst top 50% of his batch. So far as Captain M. M. Chamola is concerned, it is stated in para 21 of the counter-affidavit that he was considered for grant of permanent commission by No. 5 Selection Board in April, 1988, but did not merit in the top 50% of his batch and was therefore, released on completion of his contractual period since he did not opt for extension of service, but it so happened that in the meanwhile one officer of the same batch, who was approved for permanent commission sought his being released owing to familial problems and his request was acceded to by the Government and Captain M. M. Chamola, who was the next in succession in order of merit, was called against the vacancy so created in accordance with the procedure in vogue. These facts clearly manifest that the cases of Captain Rajendra Prasad, Captain Tarun Madan and Captain M. M. Chamola flowed from different perspective and the allegations that the petitioner was made a victim of hostile discrimination, do not command for acceptance. The facts stated in the counter affidavit clearly demonstrate that non-selection of the petitioner was predicated on merit and not born of any hostile discrimination. The petitioner did not romp home to secure a position amongst the first 50% of the officers of his batch and, therefore, he could not be granted permanent commission as per procedure in vogue. Such an administrative decision taken by the Appropriate Authority on the recommendation of the duly constituted Selection Board, cannot be characterised as illegal, arbitrary or capricious or discriminatory and is not liable to be interfered with under Article 226 of the Constitution.