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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 657 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 658 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. 662