Major
General IPA Dewan Vs. Union of India [1995] INSC 173 (7 March 1995)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Paripoornan, K.S.(J)
CITATION:
1995 SCC (3) 383 JT 1995 (2) 654 1995 SCALE (2)182
ACT:
HEAD NOTE:
1.
Leave granted.
2. The
appeal is preferred against an order of the Delhi High Court dismissing the
writ petition filed by the appellant at the stage of admission. The appellant,
Major General IPS Dewan, is aggrieved with, what he says, denial of promotion
to the rank of Lt. General. He says that though he was the senior-most of the
several candidates considered for promotion and his record of service was the
best of all, he was not promoted because of and only on account of the adverse
remarks made by Gen. S.F.Rodrigues, Chief of the Army Staff against him on 11th May, 1993. The appellant complains that while
making the said adverse remarks the procedure prescribed by the relevant rules
was not followed nor was the principle of natural justice observed.
Accordingly, he prays for expunction of the said remarks and promotion to the
rank of Lt. General.
3. The
adverse remarks complained of read as follows:
"CONFIDENTIAL
ADVERSE, REMARKS OF THE COAS TO BE ENDORSED ON DOSSIER IN THE CASE OF,
IC-12599L MAJ GEN IPS DE WAN MGASC HQ SOUTHERN COMMAND
1.
Consequent to a C of 1 ordered by this Headquarters to investigate into the mis-
handling of CBI cases of RC 19(A)89JPR and PE 3(A)/9A-JPR by Headquarters
Southern Command in 1992, it has emerged that Maj Gen IPS Dewan (Ex-MG IC Adm)
now MGASC Headquarters Southern Command failed lo appreciate the nuances o f
both cases, and to apply his professional acumen and experience to their
examination.
He
also failed to examine the cases in detail, or to carry out a detailed analysis
and merely endorsed his views, based on the perfunctory advice of the MGASC. He
had merely applied his mind to defend ASC contracting procedures and did not
consider the major issues involved. He is to be blamed for mishandling and
closing the cases and for acting in a manner which is not expected to his rank
and the higher responsibility entrusted to him as MG IC Adm Headquarters
Southern Connecticut.
2. On
analysis of the case, I find the conduct of Maj Gen IPS Dewan, then MG IC Admn.
now MG ASC Headquarters Southern Command to be reprehensible and direct that my
remarks be placed on record in the officer's dossier.
Sd/-
(SF Rodrigues) General COAS 11 th May, 1993.
4.
With a view to satisfy ourselves, we called upon the respondents to produce the
record 'relating to the said ad- verse remarks as also the record concerning
the consideration of the appellant and others for promotion to the rank of Lt.
General. Both the records have accordingly been placed before us, which we have
perused. We shall first refer to the circumstances in which the aforementioned
adverse remarks were made against the appellant.
5. The
C.B.I. had registered certain cases against one H.S. Nanda, the then 657 DDST-61(1)
sub-area. The sub-area fell within the command and control of the Southern
Command. Accordingly, the two cases against Nanda were processed by it. The
appellant was at that time Major General, In-charge of Administration in
Southern Command. The allegation against..... several officers including the
appellant was that they did not process the said cases properly and in
accordance with the rules, with the result that the said cases had to be
dropped. The allegation was that the said cases had been dealt with by the
officers in Southern Command including the appellant in a negligent and casual
manner, resulting in mishandling of the cases. A Court of Enquiry was ordered
into the circumstances concerning the mishandling of the said case. In the
course of the enquiry, the Court of Enquiry recorded the statements of several
officers including the appellant and submitted its report. It opined that while
a malafide intent cannot be attributed, there have been serious lapses on the
part of senior officers in- cluding the appellant in processing the said cases
against Nanda. They set out the lapses and responsibility of each of the
concerned officers. So far as the appellant is concerned, the Court of Enquiry
found that he was to be blamed for the manner in which he discharged the respon-
sibility entrusted to him as Major General, In-charge of Administration. (In
the interest of all concerned, we are desisting from extracting the exact words
used by the Court of Enquiry.) It is on the basis of the report of the Court of
Enquiry that the aforesaid adverse remarks were made by the then Chief of the
Army Staff, General Rodrigues.
6.
Coming to the record relating to the consideration of the appellant for
promotion to the rank of Lt. General, the Record of the Minutes of the 55th
(1994) Meeting of Special Selection Board held on 18th July, 1994 shows that for
promotion of ASC officers to the acting rank of Lt. General in the Corps of
ASC, four officers were considered. The appellant was at Serial No. 1 in the
list of four officers so considered. The Selection Board, however, selected the
officer at S.No.4. In the counter-affidavit filed on behalf of the respondents
in this appeal, it is stated in Para III (25) that "the petitioner has
been found 'Unfit' for his promotion to the rank of Lt. General on the basis of
his overall profile. The said letter (adverse remarks) though forming part of
the dossier, but the same does not form part of the Member Data Sheet (MDS)
which is used by the members of the Selection Boards." The record of the
Selection Board does not, however, bear out the said statement. We may, therefore,
proceed on the assumption that the said adverse remarks were brought to the
notice of the Selection Board.
7. A
fact, which is relevant, may be noticed at this stage. Against the aforesaid
adverse remarks the appellant submitted a statutory complaint to the Central
Government which was rejected as devoid of merit. The rejection of the
statutory complaint is dated October 3, 1994.
8. Sri
G.Ramaswamy, the learned counsel for the appellant submitted that the aforesaid
adverse remarks made against the appellant really amount to expression of
"severe displeasure" and, therefore, the authorities were bound to
follow the procedure prescribed in the Memorandum dated 5th January, 1989 on the subject of "award of
censure to officers and junior 658 commissioned officers". Para 15 of the
Memorandum provides that before issuing a letter of "severe
displeasure," or "displeasure", the authority shall issue a showcause
notice indicating the specific action contemplated against the officer along
with such relevant papers and documents as are necessary to enable the officer
to put forward his explanation effectively. Since this procedure was not
followed, it is submitted, the remarks aforesaid are void and ineffective and
could not have been taken into account while considering the appellant's case
for promotion. Sri G.Ramaswamy submitted further, on the strength of the
decision of this Court in Brij Mohan Singh Chopra v. State of Punjab (1987 (2)
S.C.C.188), that the statutory complaint preferred by the appellant ought to
have been disposed of before his case came up for consideration for promotion.
As a matter of fact, he submitted, it happened just the other way; while the
appellant's case for promotion was considered in the month of July 1994 his
statutory complaint was disposed of only in October 1994. It is evident, said
the learned counsel, that the said adverse remarks have clearly and definitely
prejudiced the appellant's case. The denial of promotion to the appellant,
submitted the learned counsel, is only and exclusively because of the said
adverse remarks. It is for this reason, said Sri Ramaswamy that in the
counter-affidavit no particular reason has been assigned for not selecting the
appellant who was the senior-most of the four officers considered for the said
promotion.
9. We
must say that we are not impressed by any of the said submissions.
10.
The aforesaid adverse remarks were made by the highest functionary in the Army
hierarchy, viz., the Chief of the Army Staff. The remarks were based not upon
mere observation but upon the report of a Court of Enquiry which was appointed
to go into the circumstances in which the cases against Nanda were mishandled.
The Court of Enquiry held an elaborate enquiry wherein statements of the
concerned officers including the appellant were also re- corded. The appellant
knew full well what was the Court of Enquiry about. It may be that the
appellant was not formally charged and no regular enquiry as such was held but
that was not necessary for making adverse remarks. Indeed adverse remarks, as
is well-know, can be made by the appro- priate superior officer on the basis of
mere assessment of the performance of the officer and no enquiry or prior
opportunity to represent need be provided before making such remarks unless, of
course, the Rules so provide. The remedy available to the officer in such a
case is to make a representation against such remarks to the appropriate
authority or to adopt such other remedies as are available to him in law.
11. We
are inclined to agree with the learned counsel for the respondents that the
remarks complained of cannot be un- derstood or interpreted as amounting to
expression of "severe displeasure" within the meaning of the
Memorandum dated 5th
January, 1989 and
hence it was not necessary to follow the procedure prescribed by it. They
purport to be and are adverse remarks; there is no warrant for construing them
as expression of "severe displeasure". Merely because the language
used is strong, the adverse remarks do not cease to be adverse remarks. Be that
as it may, it cannot be said that the principle of natural justice, viz., audi alteram
partem, 659 has been violated in this case, inasmuch as the appellant could,
and did in fact, submit a statutory complaint against the remarks to the Central
Government.
12.
With respect to the grievance that his statutory complaint ought to have been
considered and disposed of before his case was considered by the Selection
Board, it must be said that at best the said objection is merely technical. Had
his statutory complaint been upheld wholly or partly, this grievance could have
merited serious con- sideration but not when it has been dismissed. It is not
suggested that the Central Government dismissed the said statutory complaint
merely to buttress the nonselection of the appellant by the Selection Board. No
allegation of malafides has been made against the Central Government.
13. So
far as the non-selection of the appellant by the Selection Board for promotion
to the rank of L.t. General is concerned, we see no illegality in the procedure
adopted by them. We have also perused the work sheets relating to all four
officers considered. Not only the appellant but two other seniors to the person
selected were overlooked. The selection, it may be noted, was not based on
seniority, but on merit. There is no allegation of malafides or bias against
the members of the Selection Board. All that can be and is suggested against
the process of selection is that the Board took into consideration the
aforesaid adverse remarks. Assuming that the said remarks were indeed taken
into consideration, the non-selection of the appellant cannot be faulted.
Firstly, it cannot be said that the said remarks alone were the cause of
non-selection; the non- selection of appellant appears to be based on an
over-all assessment. Secondly, the statutory complaint preferred by the
appellant against the said remarks have been rejected by the Central
Government, no doubt subsequent to the said consideration. As stated above, the
situation may have been different had the said complaint been upheld partly or
wholly. In the circumstances, die Court cannot sit as an appellate authority
over the acts and proceedings of the Selection Board.
14. We
arc also satisfied on a perusal of the relevant record that the adverse remarks
made by the Chief of the Army Staff against the appellant are based upon and
consistent with the report of the Court of Enquiry regarding the responsibility
of and the role played by the appellant in processing the cases against Nanda.
15. We
make it clear that we express no opinion upon the validity or otherwise of the
orders of the Central Government rejecting the statutory complaint preferred by
the appellant against the adverse remarks aforesaid. If it is open to the
appellant in law to question the said orders, he can always do so in accordance
with law.
16. So
far as the decision in Brij Mohan Singh Chopra cited by Sri Ramaswamy is
concerned, it may be pointed out in the first instance that the said decision
deals with compulsory retirement under F.R.56J., and not with promotion. The
said decision finds fault with an order of compulsory retirement based upon
state adverse entries made more than ten years earlier. The said decision no
doubt says that the representation against adverse remarks should be disposed
of before taking the said remarks into account while deciding the question of
compulsory retirement under F.R.56-J. This aspect has, however, 660 been
expressly dissented from in a later three-Judge Bench decision in Baikuntha Nath
Das & Anr. v. Chief District Medical Officer, Baripada & Anr. (1992 (2)
S.C.C.299). Be that as it may, even if we proceed on the basis that the said
adverse remarks were taken into account by the Selection Board while
considering the appellant's case for promotion, the decision of the Board to
overlook the appel- lant cannot be faulted or invalidated for the various
reasons mentioned hereinbefore. We reiterate that while saying so we proceed
upon the assumption that the Selection Board did take the said adverse remarks
into consideration.
Even
so, the decision of the Board not to select the appellant is not vitiated for
the reason inter alia that his statutory complaint against the adverse remarks
was rejected by the Central Government. This is the view expressed in a
Constitution Bench decision in R.L.Butail v. Union of India & Ors. (1971
(2) S.C.R.55), where a similar complaint was made.
17.
Sri Ramaswamy relied upon the decision in Union of India v. H.P.Chothia &
Ors. (1978 (2) S.C.C.586) in support of his yet another submission that where
allegations of arbitrariness are made against a Selection Board/Selection
Committee, one of the members of the Board/Committee should file a
counter-affidavit explaining the circumstances in which the petitioner was not
selected. We are unable tofind any such proposition flowing from such decision.
That was a case where neither the relevant record was produced nor did any
responsible person swear to an affidavit with respect to reasons for which the
petitioner therein was not included in the Select list. That is not the
situation here, apart from the fact that there is no specific allegation of
arbitrary conduct on the part of the Selection Board. The respondents have also
produced all the relevant records which we have Perused.
18.
Sri Ramaswamy then relied upon the decision in The Manager, Government Branch
Press & Anr. v. D.B.Belliappa (1979 (2) S.C.R.458) in support of his
submission that administrative orders affecting the rights of citizens should
contain reasons therefore We are afraid, the said principle cannot be extended
to matters of selection.
Unless
the rules so require, the Selection Committee/Selection Board is not obliged to
record reasons why they are not selecting a particular person and/or why they
are selecting a particular person,. as the case may be.
If the
said decision is sought to be relied upon with respect to the adverse remarks
made against the appellant, the attack should fail for the reason that the memo
containing adverse remarks in this case does set out the particulars in support
of the same. It is equally relevant to note that no allegation of malafides or
arbitrariness has been levelled against the Chief of the Army Staff who made
the said remarks.
19.
For all the above reasons, we dismiss the appeal but without costs.
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