Judgment

Arijit Pasayat, J.—Union of India and the Chief of Army staff, Army Headquarters, South Block, New Delhi, call in question legality of the judgment rendered by a Division Bench of the Delhi High Court in a Letters Patent Appeal. The High Court by the impugned judgment held that though the Court cannot moderate the appraisal and grading given to an officer while exercising the power of judicial review yet the Annual Confidential Report (in short the ‘ACR’) for the year 1989-90 has an element of adverse reflection leading to denial of promotion and, therefore, the same ought to have been communicated to the writ petitioner-respondent which has not been done. Though a detailed statutory complaint was filed the same was summarily dismissed without assigning any reason. The sting of adverseness in all events has perilously affected and damaged the career of the writ-petitioner though not reflected in the variation of the marks. Accordingly, the entry in the ACR for the year 1989-90 was quashed and the matter was remanded back to the respondents in the writ petition i.e. the present appellants for re-consideration of the writ-petitioner’s case for promotion to the post of Lieutenant Colonel. It is to be noted that the writ petition filed by the respondent was dismissed by a learned Single Judge and the same was challenged in the Letters Patent Appeal.

2. Background facts in a nutshell are as under:

The respondent was considered for promotion to the rank of Lieutenant Colonel by the Selection Boards held in August 1995, August 1996 and November, 1996. He was not empanelled on the basis of overall profile and comparative batch merit. The respondent filed statutory complaint on 3.10.1995 for setting aside the ACRs of 1988-89 and 1989-90. According to him the then initiating officer resented the amalgamation of Food Inspection Cadre officers of ASC main stream and disliked the DFRL trained officers. Statutory complaint of the respondent was rejected on 27.9.1996. The respondent made second statutory complaint which was also rejected on 17.10.1996. The respondent filed writ petition No. 1774 of 1997 before the Delhi High Court praying therein that a writ of mandamus be issued to the appellants herein to promote him or in the alternative he be assessed afresh by the Selection Board and for setting aside ACRs. for the years 1988-90. Writ petition of the respondent was dismissed by a learned Single Judge of the High Court by order dated 29.4.1997. Aggrieved by the order of dismissal respondent filed LPA No. 148 of 1997 before the High Court. The appellants herein filed counter-affidavit in the said LPA.

3. The High Court after going through the records of the case came to the conclusion that there was an adverse element in the ACRs of the respondent for the years 1988-89 and 1989-90 and, therefore, in the terms of letter dated 21.8.1989 of the Sena Sachiv Shakha (No. 32301/34/F/MS/4) he ought to have been given performance counseling. The Hon’ble High Court quashed the entry of the CR for the year 1988-90 and remanded the case to the appellants for reconsideration.

4. The High Court was of the view that there was down grading which was adverse to the respondent and ought to have been communicated.

5. In support of the appeal learned counsel for the appellants submitted that the High Court has not kept in view the correct position in law. The fundamental mistake in the approach of the High Court is that it proceeded on the basis as if whenever there was allotment of marks at a figure lower than for the previous period, it was down gradation, resulted in adverse consequences and ought to have been communicated before the same was considered while considering the respondent’s suitability for promotion. The High Court proceeded to record that the parameters for recording of ACR was not specified and that being the position, the fact that for the year 1988-89 the respondent was awarded seven marks and for 1989-90 it was six marks amounted to