Full Judgment Text
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PETITIONER:
MAJOR GENERAL IPA DEWAN
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT07/03/1995
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
PARIPOORNAN, K.S.(J)
CITATION:
1995 SCC (3) 383 JT 1995 (2) 654
1995 SCALE (2)182
ACT:
HEADNOTE:
JUDGMENT:
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
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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
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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
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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
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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
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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
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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,
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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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