COLONEL NARENDRA KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE case of the petitioner is that he is a Commissioned Officer in the Indian Army holding the rank of Colonel and now posted at Cuttack to work as Director, Recruiting in the Army Recruitment Office, Cuttack. He is aggrieved by the rejection of his representation and statutory complaints and the subjective endorsements made by the then Higher Technical Officer (HTO). Major General S.K. Dahiya in the petitioners Confidential Report (C.R.) for the period from 14.2.2003 to 31.8.2003 and also the subjective endorsements entered in his C.R. by the said HTO, who has entered the same despite having had no interaction with the petitioner. The petitioner is also aggrieved by the action of the O.Ps. in refusing to entertain his representations made for debarring the endorsements made by the said HTO in his C.R. and in not sending the statutory complaints by him to the Central Government for redressal. According to the petitioner, he has a brilliant service career since the date of his initial recruitment as a Commissioned Officer and in usual course he would have been nominated to a career course, i.e., Higher Defence Management Course (HDMC)/Higher Command (HC) Course commencing from May/June 2008 by the Military Secretary Branch, Army Head Quarters but for the fact of certain entries made in the Confidential Report of the petitioner covering the period from 14.2.2003 to 31.8.2003 recorded by the HTO, who had never any interaction with the petitioner being located far away at Udhampur in different working conditions. The representation of the petitioner was never considered in spite of the strong recommendations of his superior Officers and in terms of the provisions contained Section 27 of the Army Act, 1950, Clause -364 of the Defence Service Regulations. The statutory complaint was also not taken into consideration, for which this writ petition has been filed with the prayer, as indicated above.

(2.) A counter affidavit has been filed by the O.Ps. taking a stand that the assessment of officers in Annual Confidential Reports (ACR) was regulated by Special Army Order (SAO) 3/S/89, which has been replaced by Army Order 45/2001, and other relevant policies at any given time. The gradings are numerical from 1 to 9 (overall as well as in personal qualities and performance variables in different qualities) and in the form of pen picture also. The entire assessment of the officer in any ACR consists of assessment of three different reporting officers whose assessments are independent with each other and the selection/rejection is based upon the overall profile of an officer and comparative merit within the Batch as evaluated by the Selection Board. According to the O.Ps., the petitioner did not make the grade based on his overall profile as evaluated by the Selection board. It is further stated in the counter affidavit that it is the decision of the Selection Board, which is paramount, and it is only the Selection Board, which has to assess the suitability of the petitioner for promotion to the rank of Colonel. It is also stated that a number of factors are taken into consideration for detainment of officers for Higher Defence Management Course (HDMC)/Higher Command Course (HCC) and CR is not the sole criteria and the CR of the petitioner for the period from 14.2.2003 to 31.8.2003 was also endorsed by Major General (now Lt. General) S.K. Dhiya as HTO, being the Major General ASC of Head Quarter Northern Command, who was in the technical chain of command of the petitioner during the relevant period.

(3.) COLONEL B.S. Raju, who is present in Court along with the Assistant Solicitor General, produces the records. On perusal of the records, we find that the petitioner for the period in question has incurred box graded in internal assessment by 9/8 but the HTO for the said period on four occasions has given 7. But the personal qualities of the assessment are potential. It is recommended throughout that the impugned CR can be analysed against Past Profile Sheet (PPS) drawn on ratee. The aforesaid CR has been recommended indicating therein that the PPS of the ratee reflects a steady profile wherein, he has been consistently graded 9/8 in box and 'should promote in Recommendation For Promotion (RPMN) in his reckonable profile. The ratee has never been graded '7 in box and has also never been recommended 'May Promote in RPMN by any reporting officer in his reckonable profile. On the overall analysis it is indicated that the ratee has a consistent profile with grades of 9/8 in box and 'should promote in RPMN in his reckonable profile. In the recommendation for promotion, it is indicated that the award of '7 in box and 'may promote in RPMN by the HTO, in the impugned CR be expunged on approval of the Chief of the Army Staff (COAS) on the grounds of inconsistency and subjective reporting by the HTO. It is further suggested that the case has been discussed with and it was decided to wait till the next CR is received. The decision was taken on the basis of the direction of the Military Secretary (MS), if an aberration occurs in the first CR earned by the CO, which merits interference, one more input will be awaited before the case is taken up for expunction.