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1997 Supreme(Del) 1018
High Court Of Delhi
AIR COMMODORE I.J.S.BOPARAI - Appellant
Versus
UNION OF INDIA - Respondent
L.P.A. 101 of 1997
Decided On : 12/19/1997
P.N.MISHRA
Headnote:Service Law - Retirement — Retrospective benefits — Adverse remarks — Effect — Non- communication of — Statutory representation — Rejected — Promotion — Fitness assessment — Para 203 of the Air Force Regulations — Provisions for consideration of adverse remarks — Procedure to dispose of — Bias of — Ld. Single Judge dismissed — Appealed against (LPA) — Breach of Air Force Order — Entitled for promotion and all consequential benefits with retrospective effect — Impugned order set aside — Appellant suffered malice — Ordered accordingly — Article 226 — Writ.
Held:
A conspectus of the aforesaid judgments can lead to the conclusion that though adverse remarks are required to be communicated to the officer who is being considered for promotion, however, in case the said remarks are based upon general assessment and performance of the officer, they need not be communicated. Moreover, even if such re-marks are communicated and a representation has been made by the officer against these remarks which has not been considered and disposed of at the time of his consideration for promotion, it would not make any difference in case the representation is ultimately rejected. However, in case the representation is accepted and the remarks are expunged, a direction may have to be given to the authorities to reconsider the officer for purposes of promotion.
The Selection Board has taken into consideration the overall performance of the appellant to assess his potentiality and suitability for discharging the responsibilities attached to the rank of Air Vice Marshal. In our view, this Court will not sit as a Court of Appeal over the decision of the Selection Board to assess the suitability and potentiality of the appellant to be promoted as Air Vice Marshal and to assess whether he will be in a position to discharge the higher responsibilities attached to the rank of Air Vice Marshal.
It is not only the appellant but even five more Air Commodores who were senior to the appellant and other persons selected, were overlooked for promotion by the Selection Board in 1995. Similarly, the Selection Board of 1996 did not promote another Air Commodore who was senior to the appellant. It is clear, thereforee, from the records of the Selection Board that it is not the seniority alone which had been taken into consideration by the Selection Board for promotion of an officer to the higher rank but it is the overall performance of the officer and his potentiality and suitability for discharging the higher responsibilities attached to the rank of Air Vice Marshal that has been taken into consideration and the Selection Board having not found the appellant fit to discharge such responsibilities and having not recommended him to the higher rank, in my view, this Court cannot pass an order directing the Government to appoint him as Air Vice Marshal.
( 1 ) I have gone through the judgment prepared by my esteemed brother Hon ble Mahinder Narain, Acting Chief Justice, but for reasons given in my judgment, I am unable to agree with the decision arrived at by him, as in my view the appeal is liable to be dismissed.
( 2 ) THE appellant has challenged his non- promotion from the post of Air Commodore to that of Air Vice Marshal. His contention is that non- promotion is on account of some adverse remarks entered in his Annual Confidential Reports and the said remarks having not been communicated to him and an opportunity having not been given to make representation against the same, his non-promotion is vitiated. The second ground on which the order of the Government in not promoting him as Air Vice Marshal has been challenged is that the Chief of the Air Staff, namely, Air Chief Marshal S. K. Kaul as well as Air Chief Marshal S. K. Sareen had been harboring a grudge and were biased to the appellant which resulted in wrong projection of his case and arbitrary denial of promotion.
( 3 ) IT is not denied that till the time of consideration of the appellant for promotion to the post of Air Vice Marshal both in 1995 and 1996, the adverse remarks in his Annual Confidential Reports were not communicated to him. It was only five days before his retirement that the said adverse entries were communicated to him and he made statutory representation against the same within two days. The representation made was, however, rejected. According to the appellant, in terms of Rules, 30 days time ought to have been given to him to make representation against adverse entries and that having not been done, opportunity to make representation was denied to him and the decision of the authority based upon such entries cannot, therefore, be sustained.
( 4 ) IT is also the contention of the appellant that the alleged adverse remarks were before the authorities when he was granted extension in service and even at the time when he was promoted as Air Commodore and such entries, therefore, prior to the period of extension as well as promotion to his present rank lost their significance and those remaining on record as part of history. He, therefore, relies upon the judgments of the Supreme Court reported as Baidyanath Mahapatra Vs. State of Orissa and Another, 1989 (4) SLR 220; Brij Mohan Singh Chopra Vs. State of Punjab 1978 (2) SLR 54 (SC); Prakash Chand Sharma Vs. Oil and Natural Gas Commission, 1970 0 SLR 116 and Gurdial Singh Fijji Vs. State of Punjab and Others, 1979 (1) SLR 804.
( 5 ) IN Baidyanath Mahapatra Vs. State of Orissa and Another (Supra), it was held that the adverse entries prior to the period of promotion lose their significance and cannot be looked into for pre-maturely retiring a person. It is, therefore, contended by Mr. Boparai that entries which appear to have been relied upon by the respondents for denying him promotion could not be considered as they existed even prior to the time when he was promoted to the post of Air Commodore and such entries had, therefore, lost their significance. It is also held in the judgment that belated communication of entries result in denial of reasonable opportunity to improve the performance and belated communication of adverse entries was, therefore, not proper.
( 6 ) IN Brij Mohan Singh Chopra Vs. State of Punjab (Supra), it was held that adverse entries, if any, awarded to an employee loose their significance on or after his promotion to a higher post and according to the appellant, therefore, these entries could not have been taken into consideration while considering his case for promotion as Air Vice Marshal, as they allegedly existed even at the time when he was promoted as Air Commodore.
( 7 ) AS already stated, the appellant has also contended that he could not be denied promotion as Air Vice Marshal as adverse remarks in his Annual Confidential Reports were not communicated to him till the time he was considered for promot
