Dalveer Bhandari, J.@mdashThe petitioner has approached this court with the prayer of fixing his seniority as Naib Subedar with effect from 1st
March, 1990 vis-a-vis other JCOs of his batch instead of 1st March, 1992 as it exists at present. It is further prayed that the petitioner be
promoted to the rank of Subedar with effect from 1st June, 1993. It is also incorporated in the prayer clause to reinstate the petitioner in service
with effect from 31st July, 1996 with all consequential benefits of pay and allowances, seniority, perks and chances of promotion vis-a-vis his
batch mates.
2. The petitioner was enrolled in the Army Ordinance Corps on 9th July, 1970. He was promoted as Naik on 1st February, 1981, Havildar on 1st
April 1983 and Company Quarter Master Havildar on 30th June, 1988. According to the petitioner, as per his original seniority he was due to be
promoted as the Naib Subedar on 1st March, 1990 and Subedar on 1st June, 1993.
3. There has been delay in promotion of the petitioner as Naib Subedar until 1st June, 1994. He was promoted with effect from 1st March, 1992
and lost his seniority by two years. It is also mentioned that the petitioner was admitted to pay and allowances of Naib Subedar only with effect
from 12th February, 1994, thereby depriving him of pay and allowances of the rank of Naib Subedar by 3 years, one month and 12 days. The
petitioner filed a statutory complaint on 27.10.1995 which was rejected on 5th August, 1996.
4. The petitioner has approached this court on rejection of his statutory complaint by way of filing this writ petition.
5. The petitioner mentioned that from 1981 to 1993 4 marks (above average) have been awarded out of 4 to the petitioner in the rank of Havaldar
except during 1982 by the initiating officer who had the opportunity to observe the performance of the petitioner directly. However, the reviewing
officers on four occasions awarded 3 marks out of 4 marks (high average). Since the down-grading of ACR by the reviewing officer is the main
grievance of the petitioner, Therefore, I deem it appropriate to reproduce the ACRs from 1981 to 1996 as submitted by the petitioner in the
petition.
Year Initiating Officer Reviewing Officer Rank
1981 4 4 Naik
1982 3 4 -do-
1983 4 4 Havildar
1984 4 4 -do-
1985 4 3 -do-
1986 4 3 -do-
1987 4 4 -do-
1988 4 3 -do-
1989 4 4 -do-
1990 2 2 set aside
1991 4 4 -do-
1992 4 4 -do-
1993 4 4 -do-
1994 7 7 Naib Sub.
1995 7 7 -do-
1996 7 7 -do-
6. The petitioner has leveled allegations againstthe Reviewing Officers but has chosen not to impleadthem in this petition. It is the settled position
oflaw that in case the officials against whom allegationshave been leveled, if they are not imp leaded in thepetitioner, then it would not be proper for
the Court toprobe against those allegations. In consonance with theprinciples of natural justice the officials against whomthe allegations are leveled,
have to be given anopportunity of defending themselves, otherwise theentire exercise would be contrary to the basicprinciples of natural justice.
7. In State of Bihar and Another Vs. P.P. Sharma, IAS and Another, Their Lordships of theSupreme Court observed:
It is a settled law that the person againstwhom mala fides or bias was imputed shouldbe imp leaded eon-nominee es a partyrespondent to the
proceedings and given anopportunity to meet those allegations. Inhis/her absence no enquiry into thoseallegation would ba made. Otherwise ititself
is vocative of the principles ofnatural justice as it amounts to condemninga person without an opportunity.
8. Therefore, now the only surviving grievance ofthe petitioner is regarding his ACR of 1988 where he wasgiven 3 marks out of 4 by the reviewing
officer which isconsidered as high average. It is submitted by the petitioner that he had lost his first chance to get thepromotion cadre on account of
low grading of 3 marksawarded by Ltd. Col. K.C. Aneja who is not a party to thispetition. The other grievance of the petitioner hasbeen removed
when the representation regarding gradingof ACR of 1990 was accepted by the Chief of Army Staffon his statutory complaint filed on 18.8.1992.
Therespondent on 29.1.1994 set aside the ACR for the year1990 but the grading in his ACR by the reviewing officerfor the year 1988 was not
changed.
9. In pursuance to the show cause notice issued bythis court, a reply has been filed by the respondents.In the reply it is mentioned that the
petitionerinitially came up for derailment on promotion gradeHavaldar to Naib Subedar commenced with effect from 3rdJuly 1989 to 26th August,
1989 but he could not bepromoted due to ACR criteria laid down in Army HeadQuarter letter dated 18.12.1985. According to therespondents,
the petitioner was lacking three (aboveaverage) ACR gradings out of last five reports. Thepetitioner''s case was again reviewed during 1990
butfound lacking in ACR criteria. His case was againreviewed and he was provisionally detailed to attendpromotion cadre course with effect from
18th February,1991 to 13th April, 1991 subject to earning appropriategrading in 1990.
10. It is also mentioned in the reply that the petitioner has filed a statutory complaint on 18.8.1992against his supersession for promotion to the
rank ofNaib Subedar due to wrong and inappropriate grading inACRs for the years 1988 and 1990. ACR of 1990 was setaside but ACR of
1988 was kept intact by the order dated3.1.1994. The petitioner was promoted to the rank ofNaib Subedar with effect from 1st January, 1994 in
hisown turn. The petitioner was granted ante-dateseniority with effect from 1st March, 1992, the date hecould have qualified promotion cadre
course with effectfrom 6th January, 1992 to 29th February, 1992 aftersetting aside the ACR for the year 1990 and taking intoaccount the ACR
grading for the year 1991. the petitioner again submitted another statutory complainton 27th October, 1995 for setting aside the ACR for theyear
1988 and consequentially grant of ante-dateseniority to the rank of Nabi Subedar with effect from1st March, 1990 along with his original batch
mates aftera lapse of six months from his promotion to the rank ofNaib Subedar. His statutory complaint was rejected bythe order dated 5th
August, 1996. Meanwhile, the petitioner retired from service with effect from 1stAugust, 1996.
11. An additional affidavit has been filed by therespondents. In the affidavit, the facts mentioned inthe reply have been reiterated. It is mentioned
thatthe comments of Initiating Officer and Reviewing Officer(for short I.O. & R.O.) were called. The then it,Col. K.C. Aneja, R.O. of 1988 ACR,
has stated that theNCO has been graded high average by him on hisdemonstrated performance. The R.O. has further statedthat the allegations
leveled by the petitioner arefalse and baseless. The performance of NCO as COMH wasfound to be unsatisfactory and necessitating his changeon
arrival of Hav. SKT GS&C Md. Hasmat Ali. Therespondent has examined the petitioner''s statutorycomplaint pertaining to the ACRs for the years
1988 and1990. It is mentioned in the affidavit that on carefulscrutiny of the ACRs of last several years of ACRs it isrevealed that no malafides or
bias can justifiably belevelled by the petitioner. As his ACR for 1990 was notconfirming of his overall ACR profile, Therefore, thesame was set
aside. The contention of the petitionerthat his complain regarding ACR of 1988 was notconsidered is incorrect though, inadvertently it is
notindicated in the order. The petitioner cannot bepermitted to take advantage of this inadvertent lapse ofthe respondents. On careful scrutiny of
the originalrecords it becomes abundantly clear that thepetitioner''s grievance regarding 1988 ACR was consideredby the respondents and
thereafter it was rejected. TheReviewing Officer can legitimately differ in hisassessment or evaluation with the Initiating Officerotherwise there
would not be any necessity of thePresiding Officer. It may be pertinent to mention thaton earlier occasions also the petitioner had receivedsimilar
grading from the Reviewing Officers. Evenotherwise also, the scope of the jurisdiction being verylimited. I cannot go into the settled position of law
ashas been reiterated in the case of Amrik Singh v.Union of India and Ors. delivered on November 16, 2000 bytheir Lordships of the Supreme
Court.
12. The learned counsel for the petitioner leveledallegations against the Reviewing Officer withoutimpleading him as party in this petition. According
tothe settled law, the court cannot probe into theallegations against a person who is not party to thepetition according to the settled principles of
naturaljustice.
13. Learned counsel for the petitioner submittedthat any entry which may be ''above average'' or ''highaverage'' but if it has the potentiality of
prejudicingan officer''s prospects, then it must be communicated tothe office to make improvement in subsequent years sothat when not found if it,
as a first case, he may be in aposition to make improvements for the second review andfinal review.
14. Learned counsel for the petitioner heavilyrelied upon State of Haryana and others Vs. D.L. Uppal, . Their Lordships of theSupreme Court in
the said judgment have mentioned thatif the graded entry is of going a step down, likefollowing ''very good'' to ''good'' it may not ordinarily bean
adverse entry since both are a positive grading. Allwhat is required by the authority recordingconfidential in the situation is to record reasons
forsuch down grading on the personal file of the officerconcerned, and inform him of the change in the form ofan advice. This is a salutary
proposition. Applicationof this principle may not make any difference in thefacts and circumstances this case. The petitioner on anumber of earlier
occasions received similar marks fromthe Reviewing Officers in his annual confidentialreports. In paramedical structure, officers arepromoted on
the basis of comparative merit.
15. The learned counsel for the respondents hasplaced reliance upon a decision of the Supreme Court inLt. Col. K.D. Gupta v. Union of Indian,
AIR 1989 SC 1393and contended that the defense Services have their ownpeculiarities and special requirements. Theconsiderations which apply
to other Government servantsin the matter of recording of ACRs or in the matter ofpromotion cannot, as a matter of course, be applied todefense
Personnels. Requisite experience, consequentexposure and proper review are indispensable forcarrying out promotion.
16. The Division Bench of this court inLt. Col. Krishan Chand v. Union of India reported as 1996 V AD (Delhi) 199 observed:
Selection is based on an overall profile ofan officer with special stress on theperformance in criteria Command appointment.The aim of the
Selection Board is:
(a) To assess all eligible officers of a batchwho reckon seniority during on calendaryear, and their equivalent seniority inother Arm/Services for
promotion to the nextrank.
(b) To screen officers of earlier batches whohave been placed on Review for promotion tothe next rank.
(c) To assess the suitability of officers, whohave been approved earlier to the nexthigher rank whilst in low medicalclassification, for their physical
promotionand recommend restrictions, if any, on theiremployment in that rank.
(d) To ensure selection through objectivity,impartiality and in the best interest to theservice, in accordance with the guidelineslaid down by the
COAS.
17. I do not find any infirmity in the selectionprocess. This petition being devoid of any merit isaccordingly dismissed.