Bhawani Singh, J.@mdashThe Petitioner is holding the Rank of Major in the Indian Army since December, 1966. He submits that he has been hard-working, capable, result oriented, conscientious, dedicated and honest officer throughout his career, so he has always been reported as an above average officer. He refers to Annexure-A containing number of entries appreciating and highlighting his work and conduct by various officers with whom he had occasion to work. Therefore, on the basis of his above average profile, he merited promotion to the Rank of Lieutenant Colonel (Selection Grade) as well as Lt. Col. (time-scale). He had also passed all promotion examinations from Part-A to Part-D within the prescribed period which display his professional knowledge, competence and dedication to service. He has served in 12 different units and with rare privilege of commanding seven units and earned laudatory commendations from his superiors for his dedication to duty (Annexure-B). Apart from this, he did not lag behind in displaying his valour and one such occasion, as reported in the newspaper ''Jugantra'' under caption "well done Major" when he had an encounter with a smuggler from whom he not only snatched goods worth over one lakh but also handed over the smuggler to Police Station Sealdah (Annexure-C).
2. On June 25, 1973, the Petitioner, while serving with 519 ASC Bri, reported a case of moral turpitude against four officers, including his Commanding Officer to GOC 19 Inf. Division. These four officers were found guilty and punished by GOC-XV Corps during 1974 Subsequently, in pursuance of Petitioner''s D.O. number 15259/7/P/ST-2, dated March 17, 1974, written to Lieutenant General H.S. Chopra, AVSM., Director of Supplies and Transport, Army Headquarters, New Delhi (Annexure-D), the GOC-XV Corps handed over the said case to CBI for further probe, but despite this, the GOC-XV Corps also awarded "Severe Displeasure (to be recorded)" to the Petitioner for reporting the false case against the said officers. Against this, the Petitioner submitted statutory complaint to the Government of India u/s 27 of the Army Act and Lieutenant General M.L. Chibber, GOC-in-C, Northern Command, declared it illegal and directed the cancellation thereof on 21-8-1983 However, despite this cancellation, this entry was taken into consideration while processing his case for promotion to the Rank of Lieutenant Colonel (Selection Grade) during 1979, 1980 and 1982, as a result of which the Petitioner was not selected.
3. During 1975-76, while the Petitioner was Officer Commanding, Vehicle Company ASC. Centre, Banglore, Colonel Onkar Singh then Commandant of ASC. Centre, Banglore, was the Commanding Officer of the Petitioner. He appreciated the work of the Petitioner during this period and sent communication through his D.O. letter No. 4194/1/ASC, dated December 11, 1975 (Annexure-E). Unfortunately, Lieutenant Colonel, B.S. Dunn, Deputy Commandant of ASC. Centre, due to vengeance, illegally initiated the ACR of the Petitioner for the year 1975-76 without the Petitioner''s knowledge. This act of Lt. Col. B.S. Dunn was illegal since he had no jurisdiction to do so, but the higher authorities also did not act with promptitude to set-aside the same and the result was that this was placed on the service profile of the Petitioner maintained by the Military Secretary, AHQ., Delhi.
4. In October, 1979, the first Selection Board No. 4 was held by the Respondents for screening the Petitioner for promotion to the Rank of Lt. Col. (Selection Grade). The Military Secretary, Army Headquarters, placed the ACR. for 1975-76 alongwith the overall profile of the Petitioner before the Selection Board. The entry "recordable censure" of 8th April, 1974 was kept on the record of the Petitioner and was also placed before the Selection Board. The result of all this was that the Petitioner was not graded fit for promotion. Same happened during the second and third Selections held by the Board.
5. The Petitioner moved the Government of India through a statutory complaint dated 11th October, 1983 (Annexure-F) claiming thereby the cancellation of annual confidential report, 1975-76 initiated by Lt. Col. B.S. Dunn and reconsideration of Petitioner''s case for promotion to the Rank of Lt. Col. (Selection Grade) without loss of seniority. Under para 361 of the Regulations framed under the Army Act, this statutory complaint should have been finalised within a period of three months from the date of its submission but it was kept pending for number of years and was set-aside vide order No. 04034/MSVA., dated 21-4-1986 (Annexure-G). In case it had been decided before January, 1984, the Petitioner could have earned his promotion in 1984 but he was not considered even after April, 1986 though his batch officers had been promoted during 1979-80 to the Rank of Lt. Col. (Selection Grade). The Petitioner had thus been made to suffer for reasons and on grounds which intercepted unjustifiably the right consideration and promotion of the Petitioner.
6. The Petitioner''s performance had been above average and for that reason Selection Grade, continuously for four years, was granted to him by the screening Board, Army Headquarters (Annexure-J). The grant of Selection Grade also depended upon the satisfactory performance of the officer reviewed every year by the screening Board detailed for the purpose by the Army Headquarters. It takes into account the following factors as contained in letter dated 22-3-1983 (Annexure-H):
(a) Professional Competence and demonstrated performance.
(b) Personal qualities.
(c) Discipline.
(d) Recommendation for its grant by IO and RO.
7. The Petitioner had completed 21 years of reckonable Commissioned Service in the Army by July 1, 1984, thus became entitled for the time-scale Rank of Lt. Col. automatically. However, it has been denied to the Petitioner although he is holding the Rank of Major since 1966. Though his performance has been good although and the instructions dated 31-7-1-984 (Annexure-K) also covered his case.
8. The Petitioner detected a case of mis-appropriation of public money amounting to Rs. 3,000 by Major J.S. Barar and Captain O.P. Teotia in February, 1983 on taking over the Command of 299 Coy ASC. (Sup.) Gwalior, and reported this matter. They were found guilty and were called upon to pay the said amount besides award of punishment by the GOC-in-C Central Command Lucknow.
9. In 1983, Captain S.N. Dongre, while posted in 299 Coy ASC. (Sup), Gwalior, committed fraud involving thousands of rupees. The Petitioner reported this matter to the Station Headquarters, Gwalior, for probe (Annexure-M). He also recommended a serious disciplinary action against him. Brig. A.B. Harolikar, in order to shield Captain S.N. Dongre, suppressed this matter and on the other hand ordered seven staff courts of inquiries against the unit of the Petitioner without receipt of any complaint to that effect. They were in the following form:
(i) First Court of Inquiry : Ordered by Station Headquarters, Gwalior vide their convening order No. 536/Gen,/AG (2) dated 26th October, 1983.
(ii) Second Court of Inquiry: Ordered by Station Headquarters, Gwalior vide their convening order signal No. A-1014 dated 27th October, 1983.
(iii) Third Court of Inquiry : Ordered by Station Headquarters vide convening order No. 536/Gen. A (2) dated 14th November, 1983.
(iv) Fourth Court of Inquiry : Ordered by Station Headquarters, Gwalior vide their convening order No. 517/5/Q dated 6th March, 1984.
(v) Fifth Court of Inquiry : Ordered by Station Headquarters, Gwalior vide their convening order No. 517/5/Q dated 23rd March, 1984.
(vi) Sixth Court of Inquiry : Ordered by Station Headquarters, Gwalior vide their convening order No. 517/8/Q dated 23rd March, 1984.
(vii) Seventh Court of Inquiry : Ordered by Station Headquarters, Gwalior vide their convening order No. 501/17/8/Q dated 3rd May, 1984.
10. Except the third inquiry, all other were subsequently cancelled. The statutory complaint of 5-5-1984 (Annexure-O), moved by the Petitioner was suppressed by Brig. A.B. Harolikar for over nine months and in order to frustrate this effort, the Petitioner was blamed for the misappropriation of rupees three thousand which were, in fact, detected and reported by the Petitioner. On this, the Petitioner was awarded "recordable censure" by GOC-in-C Central Command, Lucknow, communicated through letter dated 23-11-1984. This was done to deprive the Petitioner of his time-scale promotion for which he was due in July, 1984 although it was set-aside by CAOS. vide letter No. HQ MP Sub-Area No. 110328/170/A dated 5-11-1986.
11. Again, the Petitioner was charge-sheeted with the allegation that while as Commanding Officer of 299 Coy. ASC. (Sup), Gwalior, he had credited Rs. 1,335 (sale proceed of grass) in the regimental account of his Company with intent to defraud. The Petitioner''s Accounts Officer, Major (then Captain), R.I. Sharma was also charged for the misappropriation of the same amount. Although allegation was common, however, separate General Court Martial of Major R.I. Sharma was ordered and he was acquitted on 30-1-1986 since the proceedings were stage managed so that the Petitioner could be tried separately and treated differently.
12. The Petitioner moved a writ petition in the Gwalior Bench of Madhya Pradesh High Court. The Court directed the Respondents on 12-2-1986 to first finalise the statutory complaint dated 5-5-1984 and till then the Court stayed the General Court Martial proceedings against the Petitioner (Annexure-Q). On 11-7-1986, the Court directed the Respondents to finalise the statutory complaints of the Petitioner, namely, 5-5-1984, 25-3-1986 and 22-5-1986 by October 11, 1986 (Annexure-R).
13. The Petitioner moved another petition against the false claim of the Respondents that they had complied with the mandatory provisions of the Army Rule 22 read with Rule 25 and Army Order 70/84 that the General Court Martial ordered against the Petitioner was in order The Court directed the Respondents to produce the documents in support of their claim but before the matter could proceed further, the Respondents, of their own, closed the summary of evidence as well as the General Court Martial on August 8, 1986 thereby rendering the writ petition infructuous. The Petitioner was shifted from Gwalipr to Bhopal for taking disciplinary action. Major R.I. Sharma was also shifted from Gwalior to Bhopal since he was to depose against the Petitioner. The Commandant 3 E.M.E. Centre, Bhopal, who had no knowledge of the case of the Petitioner, increased the charges against the Petitioner at the instance of the Respondents without complying with the mandatory provisions of Army Rules 22 and 25 and Army Order 70/84 and ordered the summary of evidence against the Petitioner on five charges (Annexure-S).
14. The Respondents did not provide the Petitioner a defending officer of his choice nor permitted him to engage a civil defence Counsel despite the written request. He was also not supplied the statements of all the prosecution witnesses available in the General Court Martial proceedings of Major R.I. Sharma. The material defence witnesses, requested by the Petitioner, were not made available. The General Court Martial of the Petitioner was stage managed. He was not allowed to put essential and material questions to the witnesses nor were the other mandatory provisions followed. The result was that the Petitioner was awarded the punishment of dismissal from service. At the stage of confirmation, it was changed to severe reprimand and loss of three years seniority for pension purposes on May 18, 1987. These proceedings evoked adverse reaction with the Respondents and as a result thereof, statutory complaints dated 5-11-1984, 25-3-1986 and 26-5-1986 were rejected without assigning any reasons.
15. A Post Confirmation Petition dated October 2, 1987 u/s 162(2) of the Army Act (Annexure-T), was moved against this punishment of Severe Reprimand and loss of three year seniority for pension purposes but the same was rejected on 22-2-1989 (Annexure-V), by a non-speaking order which shows complete non-application of mind towards the various grounds challenging the General Court Martial, as well as its confirmation by the Chief of the Army Staff.
16. The Petitioner has also been informed, through letter of 20-6-1989 (Annexure-X) that he has not been placed in an acceptable grade for promotion to the rank of Lt. Col. by the 4th Selection Board held from 15-5-1989 to 18-5-1989 which was constituted to bring Special Review (Fresh) for 1963 Batch. The Petitioner apprehends that though the cut-off period for promotion to the rank of Lt. Col. was 1978-79, but on the pretext of consideration of overall profile of the Petitioner, the award of Severe Reprimand and loss of three years service for pension purposes, communicated to the Petitioner on 18-5-1987, was also considered which has resulted into the rejection of the Petitioner, otherwise the performance of the Petitioner upto 1978-79 was above average and there was nothing adverse against denying the promotion to the rank of Lt. Col. (Selection Grade). Even this special Review (Fresh) 1963 Batch was just an eye wash and has, as a matter of fact, aggravated injustice already caused to the Petitioner.
17. In the reply-affidavit of the Respondents, it has been stated that a few reports do not represent the entire record of service of an officer. The report given by the initiating officer is not final since it goes to different higher officers before final assessment i s made. While assessing the eligibility for further promotion, the following reports are taken into consideration:
1. Annual Confidential Reports.
2. Recommendations for promotion.
3. Courses and Recommendations for employment (Command/Staff/Other appointment).
4. Honours/Awards.
5. Disciplinary back ground, if any.
18. The case of the Petitioner for promotion to the rank of Lt. Col. by selection was considered in October, 1979, October, 1980 and March, 1982, but he was rejected for promotion. He was again considered and rejected in April, 1987, June, 1987 and November, 1987 as a Special Review Case on the setting aside of Annual Confidential Report for the year 1975-76 since it was initiated by an officer who was not authorised to do so. The case of the Petitioner for promotion to the said rank was reconsidered as a Special Review (Fresh) in May, 1989 due to the setting-aside of Recordable Censure awarded to him in an earlier disciplinary case during 1974. However, the punishment for forfeiture of three years service for the purpose of pension and Severe Reprimand awarded to the Petitioner in connection with a subsequent disciplinary case formed part of his overall record of service and the same was taken into account by the Selection Board and the Petitioner was held unfit, entitling him for reconsideration at two times. Similarly, he will be considered for grant of time scale rank of Lt. Col. due to the setting aside of the Recordable Censure. However, the Petitioner was tried by a General Court Martial during September, 1986 for five charges under Sections 52(f), 57(c) and 63 of the Army Act. These charges were as under:
First Charge : Army Act, Section 57(c).
Knowingly and with intent to defraud altering the document which it was his duty to preserve, in that he at Gwalior on 9th September, 1983, while being the Officer Commanding 299 Company A.S.C (Supply) Type ''A'' knowingly and with intent to defraud altered the entry of Rs. 120 (Rupees one hundred and twenty only) dated 1st August, 1983, so as to read Rs. 1,455 (Rupees one thousand four hundred and fifty five only) in the Unit Regimental Fund Account Ledger, a document which it was his duty to preserve.
Second Charge : Army Act, Section 63.--(Alternative to First charge),
An Act prejudicial to good order and military discipline, in that he, at Gwalior, on 9th September, 1983, while being the Officer Commanding 299 Company AS.C. (Supply) Type ''A'' improperly altered the entry of Rs. 120 (Rupees one hundred and twenty only) dated 1st August 1983 so as to read Rs. 1,455 (Rupees one thousand four hundred fifty five only) in the Unit Regimental Fund Account Ledger.
Third Charge: Army Act Section 52(f).
Such an offence as is mentioned in Clause (f) of Section 52 of the Army Act with intent to defraud in that he at Gwalior, on 9th September, 1983, while being the Officer Commanding 299 Company A.S.C. (Supply) Type ''A'' with intent to defraud, in connivance with JC-50632 Ex-Sub. Ram Bali Ram falsely implicated IC-28754 1 Capt. (now Major) R.I. Sharma in the offence of dishonest misappropriation of a sum of Rs. 1,355 (Rupees one thousand three hundred fifty five only) being the sale proceeds of grass of Supply Depot, Gwalior.
Fourth Charge : Army Act, Section 63.
An Act prejudicial to good order and military discipline, in that he, at Gwalior, on 9th September, 1983, while being the Officer Commanding 299 Coy. A.S.C. (Sup.) Type ''A'' improperly ordered IC-2819 3F Capt. S.N. Dongre, who was working as Accounts (Regimental) Officer of the same unit to take on charge as back dated, a sum of Rs. 1355 (Rupees one thousand three hundred fifty five only) being the sales proceeds of the grass of Supply Depot, Gwalior.
Fifth Charge : Army Act, Section 63.
An Act prejudicial to good order and military discipline, in that he, at Gwalior, on 9th September, 1983, while being the Officer Commanding 299 Coy. A.S.C. (Sup) Type ''A'' improperly ordered JC-59367 Sub (now Sub-Major) P.R. Mane of the same unit to alter the entry of Rs. 120 (Rupees one Hundred and twenty only) to read as Rs. 1,445 (Rupees one thousand four hundred and fourty five only) in RV No. 13 dated 1st August, 1983.
19. The Petitioner was found guilty on first and third charges and to some extent 5th charge also. He was sentenced to be dismissed from service by the General Court Martial but the sentence was reduced to severe reprimand and forfeiture of three years service for pension by the Chief of the Army Staff. With these punishments on the record, the Petitioner was reconsidered for promotion as a fresh case in May, 1989 with annual confidential reports upto and including the year 1978-79 cut off report) but was. found unfit. Now, the Petitioner would be entitled to two more considerations in due course.
20. It is admitted that annual confidential report for the year 1975-76 was set aside as soon as it came to the notice of the competent authority that this report was initiated by an officer was not authorised to do so. On the setting aside of this report, the Petitioner was given three special considerations but he failed to succeed and consequent upon the setting aside of the recordable censure, the Petitioner''s promotion to the rank of Lt. Col. and for the grant of time scale of Lt. Col. considered but he was not found fit. The delay in the processings of the matter had been due to various genuine reasons including that the matter had to be examined from various aspects to see that no injustice was done to the Petitioner.
21. For the grant of Selection Grade pay, above average record of service is not required Only satisfactory performance of an officer is enough to make him eligible For the grant of Selection Grade and simply because he was granted Selection Grade pay, his case for promotion for Lt. Col. (Selection Grade) and Lt. (Time scale) is not established for which different criteria have to be satisfied.
22. There was no legal requirement to try the Petitioner jointly with Major R.I. Sharma since the offences for which the Petitioner was tried were neither committed collectively with Major R.I. Sharma nor did he later abet the same. In terms of Army Rule 35(4), a perjudice or an embarrassment to the defence of an accused proposed to be jointly tried with another may be caused, by the joint trial. Non-resort to a joint trial is not supposed to cause any prejudice or embarrassment as contended by the Petitioner. Their separate trials are legal and in order. The allegation that the trial of Major R.I. Sharma was stage managed since he was intended to be acquitted and the Petitioner intended to be punished is denied. Not only the General Court Martial but also the Army Commander, who confirmed the proceedings of the General Court Marital found Major R.I. Sharma not guilty in view of the defence on record.
23. The prosecutor detailed for the trial was not legally qualified but the defending officer, (Major G.S. Yadav), was legally qualified. The Petitioner did not accept Major G.S. Yadav as his defending officer. Instead officers, namely Brig. R.B. Nadgir, Brig. M. Lt. Col. Digamber Singh, Col. O.P.K. Mayne, Khanna, Major A.K. Chaturvedi and Captain Inder Sen Singh, whom the Petitioner knew well, were asked, but they could not be made available. At one stage, the Petitioner asked for Lt. Col. Balakrishanan as his defending officer but at a subsequent stage, the Petitioner declined to accept him on the ground that he did not want him as the defending officer but as a friend of the accused. Finally, the Petitioner opted to put up his own defence and asked for adjournment which was granted by the Court. Thus, the authorities concerned have been extremely fair to the Petitioner No prejudice has been caused to the Petitioner. The Petitioner was at liberty to engage Counsel of his own choice at his own expense but he did not do so. The General Court Martial proceedings in respect of the Petitioner show that the Petitioner did not ask for the General Court Martial proceedings in respect of Major R.I. Sharma. They do not show that any material defence witnesses requested by the Petitioner had not been made available, rather they show that the Petitioner was given maxi-mum latitude to cross-examine the witnesses. While confirming the General Court Martial proceedings against the Petitioner, the General Court Martial proceedings relating to Major R.I. Sharma were perused. The General Court Martial in respect of the Petitioner was conducted in accordance with the laid down rules and procedure and illegality has been committed in the trial of the Petitioner. The allegation that the General Court Martial against the Petitioner was stage managed has been denied. The Army Act and the Army Rules do not require any reasons to be given for rejection of the statutory complaints. The Petitioner was screened with his record as existing upto annual confidential report for the year 1978-79 during October, 1979. Thus, he was not considered with the reports beyond 1978-79 and without disciplinary award, by No. 4 Selection Board held during May, 1989. The overall record of the Petitioner upto annual confidential report for the year 1978-79 was found weak and inconsistent with number of adverse remarks on a maturity and other important trades. The Petitioner was earlier not placed in the Selection Grade alongwith his co mates of 1963 batch. The Petitioner was considered as under:
______________________________________________________________
Dates of consideration Cutt-off report. Result.
by Selection Board.
______________________________________________________________
(a) October, 1979 Annual Confidential Report Rejected.
for the year 1978-79
(b) October, 1980. Annual Confidential Report
for the year 1979-80 Rejected.
(c) March. 1982 Annual Confidential Report
for the year 1980-81 Rejected.
No officer of the 1963 batch with a similar weak profile has been approved by No. 4 Selection Board.
24. Again, in the rejoinder, it is asserted that the punishment of 18-5-1987 is not relevant for Petitioner''s consideration for promotion to the post of Lt. Col. (Section Grade) as well as Lt. Col. (Tune Scale) since the due dates for these promotion were October, 1979 and July, 1984, respectively. Taking into consideration this punishment, grading of the Petitioner unfit for promotion is absolutely wrong. The case of the Petitioner ought to have been considered on the basis of the record upto the cut-off dates and by not doing so, the directions by this Court stood violated. The authorities took about ten year to expunge the adverse condimental reports of 1975-76 although the Petitioner had been representing from June, 1977 and in case the Respondent had decied the same immediately the Petitioner would not have suffered for long ten years. The Respondents took the disciplinary award of 18-5-1987 in to consideration in May, 1989 and September, 1989. They did not apply the criterion which was applied to his batchmates in October, 1979, thus resulting in the application of different yardsticks to similar category of officers which could not have been done.
25. It has also been reasserted that on completion of 21 years of reckonable service promotion to the post of Lt. Col. (Time Scale) is given as a matter of course subject to unfit meaning thereby if there is something adverse in the service record of the officer. The Petitioner was, as a matter of fact, approved for promotion to the post of Lt. Col. (Time Scale) but it was not released as appears from Annexure PR-1 dated 1-2-1988
26. Further, it has been re-emphasised that there should have been joint trial of the Petitioner and Cap. R.I. Sharma, since the prosecution as well as the defence witnesses were common, the issues involved in the two Court Martials were identical and the unit was also the same. Even the Court Martial proceedings relating to Cap. R.I. Sharma were confirmed early on 5-3-1983 despite the representation by the Petitioner that the same be confirmed alongwith the Court Martial proceedings of the Petitioner.
27. It is also stated that the Petitioner had not accepted Major G.S. Yadav even during his first Court Martial proceedings at Gwalior on 11-12-1985 as is clear from letters dated 17-1-1986 and 4-9-1986 (Annexures PR-2 and PR-3) but Major G.S. Yadav was detailed deliberately and knowingly despite the objection of the Petitioner to provide him defending persons of his choice; communications by the Petitioner dated 23-8-1986, 2-9-1986, 5-9-1986, 6-9-1986 and 8-9-1986 (Annexure PR - 4, PR - 4/A, PR-4/B, PR-4/C, PR-4/Dand PR-4/E). Out of the five officers demanded by the Petitioner, two officers Lt. Col. T.S. Digamber Singh and Brig. M.K. Mane, were available at Bhopal and Cap. Inder Sen Singh was available at Jabalpur and Major Chaturvedi was available at Gwalior. These officers were not provided on completely unfounded reasons The Petitioner was deprived of a reasonable opportunity to defend himself thereby vitiating the whole Court Martial proceedings. Even while at Bhopal, the Petitioner was placed on close arrest and was not allowed to see anybody nor was allowed, seven days time to engage any Civil Counsel. Further the Petitioner was not provided the copy of General Court Martial proceedings of Cap. R.I. Sharma although the same was essential and could have helped the Petitioner in preparing his case and defending himself by effectively cross-examining the witnesses. Communication of the Petitioner dated 4-9-1986 (Annexure PR-5) was refused with the result that he was compelled to lodge protest vide letter of 21-9-1986 (Annexure PR-6). Besides, defence witnesses intended to be produced by the Petitioner were not made available despite demand (Annexure PR-7). These General Court Martial proceedings against the Petitioner were in violation of Army Rule 22 read with Rule 25, Rule 33(7) and 34(i). Most material witnesses like Jagan Nath Prasad, and Haveli Ram could not be produced by the prosecution despite several adjournments Jagan Nath Prasad was produced at the stage when the recording of the defence witnesses had started and that too as a Court witness brought by Cap. R.I. Sharma to serve his own purpose. Despite all these illegalities in the trial, the charges could not be proved. However, the Petitioner was punished despite no clear, cogent and legal evidence on the record since the proceedings were stage managed.
28. The decision on the Post Confirmation Petition is quasi-judicial and should contain reasons but this decision is devoid of it and is the result of non-application of mind by the competent authority.
29. These are the essential facts of the case and were also highlighted by the parties during the course of their submissions.
30. The case of the Petitioner can be considered fundamentally under four categories, namely, promotion to the post of Lt. Col. (Selection Grade), promotion to the post of Lt. Col. (Time Scale), legality of the Court Martial proceedings and the relief.
31. It appears that upto June 25, 1973, there was nothing against the Petitioner. The U-turn in his career came when he reported a case of moral turpitude against four officers including his Commanding Officer to the GOC. 19 Inf. Division Although these officers were punished, however the Petitioner was also awarded ''Severe Displeasure''(to be recorded). It is not understanding why the Petitioner was punished when his complaint against these officers stood established. This entry was set aside on 21-8-1983 by Lt. Gen. M.S. Chhibbar, GOC-in-Chief, Northern Command, since it was found illegal. But it was taken into consideration, while assessing his case for promotion to the rank of Lt. Col. (Selection Grade) during 1979, 1980 and 1982. It may be mentioned here that his entry of ''Severe Displeasure'' (to be recorded) had its consequential effect on other relateable entries since they also took their colour from the principal entry of ACR.
32. In addition to this entry of 8-4-1974 which existed upto 21-8-1983 another adverse entry for 1975-76 was recorded by Lt. Col. B Dunn, Deputy Commandant although the work of the Petitioner had been appreciated by his Commanding Officer, Col. Onkar Singh during this period (Annexure-E) This entry continued haunting the Petitioner and damaging his whole carrer right upto 21-4-1986 (Annexure-G), when it was declared illegal and was set aside after a period of ten years, which should have been done within a reasonable period, say three months.
33. The first Selection Board met in October, 1979 for considering the Petitioner''s case for promotion to the post of Lt. Col. (Selection Grade). His case was rejected obviously because his service record was besmeared with these illegal entries. The same thing happened during the second and third considerations of 1980 and 1982, although he could be promoted during this period also as he was allowed Selection Grade for 1980-81, 1982 and 1984 for the grant of which the principles are substantially the some that are applicable for promotion to the rank of Lt. Col. (Selection Grade). It quite evident that by complaining against the four officers and his Commanding Officer during June, 1973 the Petitioner incurred the displeasure of his superior who, in turn, mauled his career entries. This conclusion gets more strength if one looks at remarks contained in Annexures ''A'', ''B'' and ''C'' Hence, the low-profile of his service record is the obvious consequence of jaundiced eye with which the Petitioner was being looked at. These entries are not, therefore, the correct reflection of Petitioner''s merit. He has been subjected to arbitrary, subjective and unjust treatment while entries were recorded in his service record during this time. It can, therefore be said that but for these entries, the Petitioner was entitled to the promotion to the rank of Lt. Col. (Selection Grade) in October, 1979 Itself.
34. It is not only in 1979 consideration that he was rejected on the basis of these entries but these continued to jeopardise his chances in future considerations as well, although, the entry of 7-4-1974 was set-aside on 21-8-1983 and the adverse entry in the A.C.R. of 1975-76 was set-aside on 21-4-1986 since they had already coloured the other items of assessment in his service record. Future considerations although resorted to, but they could not help the Petitioner because of his past career and the new incidents coming into obstruct his onward march.
35. The complaint of the Petitioner dated 17-2-1983 alleging embezzlement of Rs. 3,000 by Major Z.A. Brar and Capt. O.P. Teotia, their punishment followed by another complaint of fraud against Capt, S.N. Dongre resulted in the initiation of seven inquiries against the unit of the Petitioner by Brig. A.B. Harolikar, Station Commander, Gwalio, a Although, nothing came out of these inquiries, however, the Petitioner wrs awarded ''Recordable Censure'' on 23-11-1984 by GOC-in-Chief, Central Command, Lucknow relating to the mis-appropriation of Rs. 3,000 for which Major Z.A. Barar and Capt. O.P. Teotia had already been punished. These incidents and this punishment again deprived the Petitioner of his promotion not only to the rank of Lt. Col. (Selection Grade), but also to the rank of Lt. Col. (Time Scale) for which the Petitioner fell due on 31--1984 and was considered during June-July, 1985. It was only on 5-11-1986 that this punishment was set-aside. But, his case for promotion to the post of Lt. Col. (Time Scale) was kept pending till the finalisation of General Court Martial proceedings pending against him. The Court Martial proceedings were finalized on 30-9-1986. He was punished with the result that his future considerations on the basis of the setting aside of Censure Award of 23-11-1984 stood closed. Since the Petitioner became entitled to the promotion to the rank of Lt. Col. (Time Scale) on 31-7-1984, there was nothing to prevent the Petitioner from seeking his promotion in case he had been considered on 31-7-1984 or soon thereafter. But it was done in June-July, 1985 and by this time Censure Award of 23-11-1984 had been recorded against him. Though it should not have been taken into consideration, while assessing his merit for promotion, however, it was taken into consideration unjustifiably even though it was set-aside subsequently on 5-11-1986. Although, Respondents say that the Petitioner became entitled to fresh consideration, but they were of no consequence since the same low-grade pruned associated entries were followed for judging his suitability. We, therefore, hold that the Petitioner became entitled to the prornotion to the rank of Lt. Col. (Time Scale) on 31-7-1984 and he is entitled to this promotion from this date with all consequential benefits.
36. We were called upon to examine challenge raised against the General Court Martial proceedings. The Petitioner was charged with the allegation that as Commanding Officer of 299 Coy. ASC (Sup), Gwalior, credited Rs. 1,335 (Scale proceeds of grass) in the regimental account of the unit with intent to defraud. According to the Petitioner, Maj, R.I. Sharma was also charged for misappropriation of the same amount between 9-3-1983 to 9-9-1983. The Petitioner submits that Maj. R.I. Sharma was responsible for crediting this amount into the account of the unit, however, he left the place to join some course and when at a subsequent stage, this amount was recovered from him and passed on to another officer, who, without adjusting the same, left it with the Petitioner. Placed in this situation, the Petitioner credited this amount in the accounts of the unit over and existing entry of Rs. 120 pertaining to the sale of grass, thereby showing the total amount of Rs. 1455. This was done with clear, clean and bona fide intentions. There was no motive to defraud and no loss has been suffered by the unit. The Petitioner has raised number of objections to the General Court Martial proceedings and after examining the same, we are of the considered opinion that there is violation of Rule 25 of the Army Rules, 1954, since the Petitioner bad been requesting for the compliance thereof. To say that the Petitioner did not protest, is not borne out from the record of the proceedings. Hence, non-compliance of the mandatory provision of Rule 22 read with Rule 25 of the Array Rules, 1954 have vitiated the proceedings
37. Further, the prejudice to the Petitioner by not holding the joint trial with Maj. R.I. Sharma is quite apparent the Petitioner had been requesting for it. The issue as to the crediting of Rs. 1,335 (Sale proceeds of grass) is common to the three persons, namely, the Petitioner, Maj. R.I. Sharma and Capt. S.N. Dongre. It appears from the evidence that the sale amount was realised from Shri Jagan Nath Prasad, who gave it to Sub. Ram Bali. Then, it was given to Maj. R.I. Sharma, who without crediting the same in the accounts of the unit being Incharge thereof, went to join the course. At a subsequent stage when he was asked as to why it was not done, he made his payment to the Petitioner, who handed over the same to Capt. S.N. Dongre. When Capt. S.N. Dongre did not it, the Petitioner was left with no alternative but to this amount against the credit entry pertaining to the sale of grass. The Petitioner was Incharge of the unit and he did so openly without any motive to defarud. Further, he had not gained anything out of it and no loss has been caused to the unit on his account. There is sufficient evidence which establishes the bona fides of the Petitioner. Although Maj. R.I. Sharma has not admitted the receipt of the amount, however, he had also stated that the change of entry by the Petitioner was bona fide. So, the conduct of the Petitioner on this aspect does not lack good faith. Conducting of separate trial of Maj. R.I. Sharma that too, prior in time, was not proper. It is not understood why the trial of Maj. R.I. Sharma was conducted earlier and it was only after he was acquitted of the charge that the trial of the Petitioner was started Secondly, witnesses on material aspects of the case are more or less the same. The Petitioner has been produced as a witness against Maj. R.I. Sharma in the earlier proceeding and after Maj. R.I. Sharma''s acquittal, he has been produced as a witness in the proceedings against the Petitioner. How could he be expected to depose sincerely, accurately and impartially?
38. Further, copies of General Court Martial proceedings against Maj. R.I. Sharma were used against the Petitioner but they were not supplied to him although the Petitioner had requested for the supply there of (Annexure PR-5).
39. Again, the trial is also vitiated for not providing a defending officer to the Petitioner as per requirement of law. An attempt was made by a reference to the General Court Martial proceedings to show that the Petitioner waned to conduct proceedings himself cannot be accepted for the reason that the authorities failed to provide him any of the named officers on one pretext or the other, which they could otherwise do if they so wanted. The Petitioner was not even allowed to engage a civil defence Counsel at his own expense although he had been requesting for the same The Petitioner submits that he had been under ''close arrest'' and was not given leave to contact his lawyer for his defence. When driven to such predicament, the Petitioner had no option but to conduct the proceedings himself instead of allowing the same to be conducted by persons who were either unwilling or inexperienced to the kind of job, they were to do.
40. There is also substance in the further submission of the Petitioner that decision on his appeal by the Central Government does not disclose as to what was considered by the second Respondent, while dismissing the same since it is a non-speaking decision. It is true that there is no statutory requirement to give reasons for the decision by ''Army Authorities, however, this omission can be made good by application of the principles of natural justice wh.ch have, by this time, influenced almost every sphere of activity whether judicial, quasi judicial or administrative. Reasons have to be recorded and every action which effects a person adversely, has to be fair, reasonable and just See
41. The result of aforesaid discussion is that the General Court Martial proceedings were neither called for on any of the charges, nor they are sustainable in view of the infirmities pointed out above. They are quashed though after a long distance of time.
42. The Petitioner appeared in person and made sincere efforts to place his case before the Court. We examined the matter with the efforts of Petitioner as well as the learned Central Government Standing Counsel. General Court Martial proceedings were placed before us for in depth examination though we could have just a glimpse assessment of the service record of the Petitioner. Our examination of the matter convinces us t o come to the conclusion that the Petitioner, an able officer, has lost his promotions for reasons, factors and incidents, which should not have damaged his career, One incident was followed by another. Although all of them were set aside at a later stage, however, they left a lasting dent on his service record. He had been getting meritorious reports as already discussed, but his service record had not been reflecting the same in the same tone.
43. The Petitioner submits that/he is going to retire in the month of November this year and prays for effective relief from this Court at this stage. In view of the aforesaid examination of the matter, we allow this writ petition and direct that : (a) ''the Petitioner be promoted to the rank of Lt. Col. (Selection Grade) on and w.e.f. October, 1979 with all consequential benefits, and (b) the Petitioner be also promoted to the rank of Lt. Col. (Time Scale) w.e.f. 1-8-1984 with all consequential benefits, (c) the General Court Martial proceedings dated 30-9-1986 are quashed, and (d) order of first Respondent dated 22-2-1989 (Annexure-V) passed on post confirmation petition (2-10-1987) and supplementary post confirmation petition (28-8-1988) is also set aside.
44. The Respondents are to pay the costs of this petition which are quantified at Rs. 1,000.
