The award of 'Severe Displeasure (recordable)' was quashed due to the invalidity of the letter authorizing it, but the instructions modifying the automatic confirmation/promotion system were valid and the 'Severe Displeasure (recordable)' was rightly considered for confirmation/promotion to the substantive rank of Brigadier.

Kamlesh Sharma, J.—The petitioner was promoted to the acting rank of Brigadier on 10th April, 1990 and since then he has been working as such. By letter dated 4th March, 1992 (Annexure PD/1) he was informed that the competent authority had not approved the grant of substantive rank of Brigadier to him In view of his not being deemed fit for appointment to the substantive rank of Brigadier, by letter dated 17th July, 1992 (Annexure P-D), the Military Secretary to the Government of India asked the option of the petitioner, besides two others, to seek voluntary retirement as acting Brigadier or revert to lower substantive rank and retire in due course, as per the instructions contained in Army Head-quarter letter No. 29189/11/ MS (X) dated 23rd February, 1986.

2. Instead of exercising his option, the petitioner has knocked at the door of this Court by way of the present writ petition to challenge the letters dated 4th March, 1992 and 17th July, 1992 (Annexures P. D/l and P. D) on the ground, inter alia, that he has been denied the substantive rank of Brigadier not on the basis of his performance during the period he held the acting rank of Brigadier but on account of award of "Severe Displeasure (recordable) as a result of Court of Enquiry held in 1989-90 for dereliction of duty during the period May, 1989 when he was holding substantive rank of Colonel and posted as Commandant Supply Dept, Delhi Cantt The case of the petitioner is that once he was selected for acting rank of Brigadier and his performance as such has been good, he should automatically get substantive rank of Brigadier and award of ‘Severe Displeasure (recordable)’ should not be male bash for denying to him the substantive rank of Brigadier He has also challenged the instructions contained in letter dated 23rd February. 11986 Annexure P-E) by which earlier instructions of automatic confirmation/promotion in the substantive rank have been modified and it is provide that the question of confirmation/promotion is required to be examined on the basis of performance of the officer while he holds acting rank Another challenge made by the petitioner is that his case for appointment to the summative rank of Brigadier has not been considered by the competent authority in accordance with the procedure prescribed in the instructions m this regard In the alternative, the petitioner has assailed the award of Severe Displeasure (recordable)’ on various grounds and has prayed that it may be quashed. 3 On the other hand, the respondents, in their reply filed on the affidavit of Lt Col S. B Mathur, presently posted as Administrative Commandant Station Headquarters, Shimla, have raised three preliminary objections besides traversing the facts on merits The first preliminary objection is that the writ petition was premature as the petitioner s statutory complaint dated 28th July, 1992 (Annexure PG) was still pending with the authorities. As per the time frame laid down in para 364 of the Regulations for the Army, it was required to be disposed of by or before 10th December, 1992, but the petitioner has filed the present writ petition much before, on 14th August, 1992. Another preliminary objection is that at this late stage, the petitioner is not entitled ;o challenge the Court of Enquiry or the 4Severe Displeasure (recordable) which was awarded on 14th November, 1990. In fact, as admitted by him in his statutory complaint dated 28th July, 1992. the petitioner had accepted both the Court of Enquiry and the Severe Displeasure (recordable)’ and would not have challenged these had these not adversely affected his consideration for substantive rank of Brigadier. The third preliminary objection is that the award of Severe Displeasure (recordable) has not debarred the consideration of the petitioner for substantive rank of Brigadier but while it is operative, it is taken cognizance of as part of overall record of service in assessing his performance as acting Brigadier. 4 On merits