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CASE NO.: Appeal (civil)  2631 of 2005

PETITIONER: Lt.Col.V.K.Pandey

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 06/02/2007

BENCH: G.P. Mathur & A.K. Mathur

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

               This appeal is directed against the order passed by  the  Division Bench of  Allahabad High Court  whereby the  Division Bench of Allahabad by its order dated 22.9.2003 has  dismissed the writ petition filed by the appellant.

               The appellant was an Officer of the Indian Army.   He challenged his order of punishment  of reprimand passed  on 17.3.1992 by the GOC UP Area " An Omission Prejudicial  to Good Order and Military Discipline" allegedly committed by  the appellant when he was Garrison Engineer at Air Force  Station, Agra between November, 1986 and October, 1989. He  also prayed that the order dated 16.11.1993, Annexure-4 to  the writ petition, rejecting his statutory complaint against the  reprimand should also be quashed. He also prayed for  quashing of  the order passed on  his statutory complaint  against his non-promotion  dated 1.6.1994,  Annexure 6 to the  writ petition. He further sought for a writ of mandamus  directing the respondents to promote him to the post of Lt.  Col. (Selection Grade), Colonel and Brigadier  with  retrospective  effect from the date from which his juniors were  promoted.  The appellant was 1973 batch Corps of Engineers  Officer commissioned on the Indian Army on 17.6.1973. At the  time of filing of the writ petition before the High Court  he was  a Time Scale Lt. Colonel  with effect from 1994, which is  considered as Major for all purposes.   A selection Board for  1973 batch officers of the Corps of Engineers was held in May,  1992 for promotion to the post of Lt.Colonel (Selection Grade)  and the result was declared on 4.6.1992. The appellant was  found suitable for promotion by order dated 20.7.1992.  The  appellant was not promoted to the rank of Lt.Col.(Selection  Grade) when his turn came for promotion whereas  persons  junior to him were promoted.  The appellant was put through  a Special Review Board in February, 1993 on account of the  alleged punishment of reprimand awarded in March, 1992 by  the GOC, UP Area.   The appellant filed a representation  against the order of reprimand by way of statutory complaint  under Section 27 of the Army Act to the Government of India  and the same was rejected on 16.11.1993.  He also made a  statutory complaint on 23.12.1993 against his non-promotion  to the post of Lt.Col. (Selection Grade) and that was also  rejected. The appellant filed two writ petitions before the  Punjab & Hryana High Court but they were kept pending for 8  years and ultimately on 28.4.2003 those writ petitions were  rejected by the Punjab & Haryana High Court on the ground  that Punjab & Haryana High Court has no jurisdiction to

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entertain the writ petitions as the cause of action has arisen to  the appellant within the jurisdiction of Allahabad High Court  when he was posted at Agra in the State of U.P.  Therefore, the  appellant filed the present writ petition before the Allahabad  High Court.   The charge against the appellant was that he  while posted at Kheria, during April/May, 1989, as the  Garrison Engineer and responsible for efficient execution of  work relating to contract CA No.GE/CHR/02 of 88-89 for  provision of hardstanding at Kheria,  improperly omitted to  ensure that the said work had been efficiently executed before  it was taken over by the MES on or about 5.5.1989, resulting  in subsequent  surfacing of defects in the hardstanding.     Prior to that  a Defect Board constituted  by the Chief  Engineer, Bareilly Zone examined the defect and found that 40  to 50 per cent of the seal coat had come out and the pavement  had undulation.  It showed sign of unevenness and level  differences.  The job was delegated for planning and execution  to Garrison Engineer, Kheria and  the Board opined that poor  workmanship  was due to improper supervision by various  executives. On the basis of the above finding, an enquiry was  conducted, the appellant was given opportunity in the enquiry  and ultimately  the appellant was found guilty in the enquiry  and awarded punishment of reprimand.  The said order of  reprimand was communicated to the appellant against which  he filed objection before the higher authorities but the same  was rejected.  Meanwhile, the case of the appellant was also  considered for promotion to the post of Lt. Colonel also but on  account of this order  of reprimand passed against him, his  case was again reviewed and in the review he was  found not  suitable for appointment and accordingly he was not  promoted.  On the basis of these grievances, the present writ  petition was filed by the  appellant. The Division Bench of the  Allahabad High Court after considering the matter dismissed  the writ petition and held that the Court cannot sit as a court  of appeal to reassess the evidence and the findings of fact  recorded by the Army authorities.  Hence the present appeal.

               Learned counsel for the appellant submitted that  the punishment of reprimand is based on no evidence and  perverse. He also submitted that the  enquiry was conducted  in an unfair manner and in breach of principles of natural  justice. Secondly, he submitted that even if the order of  reprimand is valid, the reasoning given by the Selection Board  on the performance of the appellant is also not correct and  constitution of Review Board was unjustified. Learned counsel  for the appellant lastly  submitted that  the punishment of  reprimand cannot be permanent so as to debar  the appellant   for promotion for all time to come.

               So far as first argument of learned counsel for the  appellant that the order of reprimand passed against the  appellant is in breach of principles of natural justice is  concerned, we have gone through the proceedings filed on  record.   We find that the appellant was permitted to inspect   the documents placed before the Technical Board Officers  on  which the appellant was served with the charge-sheet. He  appeared himself and made his own statement. He also  submitted that on the particular year there was heavy  downpour and he also submitted that all the higher  authorities from time to time examined the workmanship and  no objection was raised. All these aspects were taken into  consideration by the authorities and after considering all these  facts  the technical board authorities came to the conclusion  that there was poor workmanship and the appellant was found  lacking in supervision. It is wrong to state that the appellant

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was not given hearing. The appellant had sufficient  opportunity and after considering all the materials placed by  the appellant before the authorities, the authorities found that  there was poor supervision on the part of the appellant and it  was also found that the appellant has changed the  specification given by the Superintending Engineer.  Therefore,  we do not find any perversity in appreciation of evidence by  the authorities, the finding of fact arrived at by the authorities  cannot be faulted.  

               So far as the non-selection of the appellant for the  post of Lt. Colonel ( Selection Grade)  is concerned,  the  Selection Board which met for considering the case of the  appellant, were not having the order of reprimand passed by  the disciplinary authorities. Therefore, the selection board  found the appellant suitable and accordingly the appellant  was informed that he was found suitable and he would get his  promotion in due time.  But it was clearly  mentioned in the  communication dated 20.7.1992 that promotion shall be  subject to continuing satisfactory performance. The order  reads as follows:  

               " I am directed to inform you that your  name had been considered by the appropriate  Selection Board for promotion to the rank of  acting Lt.Col as a Fresh 1973 batch. The Board  has found you to be in an acceptable grade for  such promotion by selection.  

               You will be promoted as per approved  sequence. Promotion will be subject to  continued satisfactory performance &  remaining in acceptable medical classification."

This order was passed in total ignorance of the order of  reprimand which was issued against the appellant on  17.3.1992.  The Selection Committee considered the  candidature of the appellant along with others in May 1992. At  that time  the punishment order was not before the Selection  Committee.. However, the result was withheld due to  disciplinary ban that had been imposed on him because of  pendency of the disciplinary enquiry. The  Selection  Committee was communicated on 5.6.1992 with intimation  that the appellant had been awarded reprimand on 17.3.1992  by the GOC, UP Area. On lifting of the ban the appellant was  intimated about the result of the Selection   Board on  20.7.1992.  In fact this punishment of reprimand awarded to  the appellant was not available to the Selection Board.  Therefore, a Special Review Board was called and that fresh  input placed before the Board, as a result of appraisal of  performance, he was not found suitable for appointment to the  post of Lt. Colonel.  Therefore, he could not be promoted.  In  view of the sequence of these events, it is more than clear that  the Selection Committee was not apprised of  this punishment  of reprimand.  His case was submitted before the Review  Committee on receipt of this finding  and the Review  Committee was of the opinion that he could not be promoted  and accordingly he was not promoted.  This action of the  respondents cannot be said to be unjustified. In fact, the  Selection Board which met in May, 1992, was not aware of the  punishment which was awarded to the appellant on 17.3.1992  by the GOC but the same was communicated later on   20.7.1992.  But before that the appellant was cleared for  promotion. When this fact came to light, his case was reviewed

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and on the basis of the drop of performance, he was not  recommended for promotion. The action of the respondents, in  our opinion, cannot be said to be bad though the punishment  of reprimand which has been recorded in the service record of  the appellant will continue to be part of the same but in future   if there is improvement in his performance that can always be  reviewed by the  authorities.  But so far as the present case is  concerned, we are of opinion that the view taken by the  Division Bench of the High Court of Allahabad cannot be said  to be perverse so as to warrant interference by this Court and  accordingly we do not find any merit in this appeal which is  dismissed. No order as to costs.