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Col. Rajesh Kapoor Vs. Union of India _ Ors. IN THE ARMED

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Col. Rajesh Kapoor Vs. Union of India _ Ors. IN THE ARMED Powered By Docstoc
					     IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

14.
O. A. No. 113 of 2009
With M.A. No. 128 & 129 of 2011

Col. Rajesh Kapoor                                             .........Petitioner

Versus

Union of India & Ors.                                          .......Respondents

For petitioner:  Sh. Gaurav Pachnanda, Advocate.
For respondents:  Sh. Ankur Chhibber, Advocate.
CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                       ORDER
                                       30.5.2011

1.     The petitioner, by this petition has prayed that his ACR for 1996-97 may be

quashed and all three Promotion Boards (Medical) No. 3 dated 7.7.2005, 23.12.2005

and 28.12.2006 may be quashed and also the order dated 27.11.2008 and

16.12.2008 may be set aside and the respondents may be directed to consider the

petitioner afresh for promotion to the rank of Colonel with all consequential benefits .



2.     The petitioner joined the Indian Army In 1979 and graduated from Armed

Forces Medical College, Pune (AFMC) in the year 1979 and did his post-graduate

diploma in Gynaecology and Obstetrics in the year 1986 from Delhi University.        On

7.5.2005, the Promotion Board (Medical) No. 3 was held and the petitioner was

considered for promotion to the post of Colonel. However, the petitioner could not

make it to the post of full Colonel.



3.     Aggrieved against non-selection, the petitioner filed a non-statutory complaint

on 29.8.2005 praying for review of all his ACRs considered for promotion to the rank

Page 1 of 5                                  Col. Rajesh Kapoor Vs. Union of India & Ors.
of Colonel and expunging of any inaccuracy/inconsistency.             Then again on

23.12.2005, the Promotion Board (Medical) No. 3 met and the petitioner was not

promoted. However, his non-statutory complaint was not disposed of for more than

14 months and he came to learn that his ACR for 1996-97 was adverse but the same

was not communicated to him. However, it was required to be communicated. It is

submitted that the complete ACR for 1996-97 should be set aside on the ground of

inconsistency.



4.     The petitioner filed a supplementary non-statutory complaint in the light of the

adverse remarks against him on 14.12.2006 and in that he clearly objected that his

adverse ACR should have been communicated to him. Then again, next Promotion

Board met on 28.12.2006 and the petitioner was not selected.          Remarks of the

SRO, GOC, Bengal area came in his way. It is alleged that the subsequent ACR of

the petitioner was found to be good. It is alleged that on 5.4.2007, his non-statutory

complaint was disposed of and partial relief was given to the petitioner by expunging

his ACR for 1996-97 on the ground of inconsistency. It is alleged that respondents

despite their realizing the fact that the ACR for 1996-97 was not subjective, the

respondents only granted partial relief on the ground of inconsistency.            The

grievance of the petitioner is that the partial relief given by the respondents is not

proper relief and he filed a statutory complaint which was rejected and now the

petitioner has approached this Tribunal by filing this petition and prayed that the ACR

for 1996-97 should be completely expunged and he should be considered for

promotion to the post of Colonel by the Review Selection Board.




Page 2 of 5                                 Col. Rajesh Kapoor Vs. Union of India & Ors.
5.       Reply has been filed by the respondents and the respondents contested the

matter and submitted that the remarks given by the RO and SRO have been

completely expunged but the remarks given by the IO have not been expunged

completely; only the remarks given in Item No. 12(d), 12(l) and 12(r) have been

expunged being inconsistent. It is also submitted that after modification of this ACR,

his case was again considered for promotion to the post of Colonel but again he

could not make it.    However, meanwhile, he had already become Colonel on time

scale.



6.       We have heard learned counsel for the parties and perused the record.



7.       Learned counsel for the respondents placed before us the original ACRs and

after going through the same, we observe that the way the Officers have dealt with

the impugned ACR does not speak very high of them. The IO has given “8” marks

in almost all columns and he has scored them. Instead of “8” marks, somewhere he

has given “6” marks, somewhere “7” and somewhere “5”. The RO has given “6”, “6”

and “5” marks and the SRO has given very damaging remarks and given overall

assessment of “5”.      However, since the remarks of the RO and SRO have been

expunged, we do not want to interfere with that. We are now examining to talk only

about the remarks given by the IO who after having given 8 marks changed the

figurative assessment. We can understand if there is scoring of one or two entries

but the IO has completely changed the entire figurative assessment and tampered

with the ACR. Not only this, he has also not put his full signatures while changing

the figurative assessment. He seems to have completely changed his mind and

substituted entirely new figurative assessment. This was not warranted by the IO.


Page 3 of 5                                 Col. Rajesh Kapoor Vs. Union of India & Ors.
This is a serious matter and the circulars on the subject are very clear that the IO

should not have completely changed the figurative assessment and if at all it is

required, he should have put his full signatures and explanation for the same.

However, it seems that the IO completely lost sight of all these things and must have

been persuaded by the remarks given by the RO and the SRO and completely

tampered with the ACR of the petitioner for 1996-97. This conduct of the IO is highly

reprehensible and we can not countenance this and this kind of behaviour cannot be

expected from an Officer.        This will lead to losing of faith in the Institution if the

ACRs are being tampered in this manner.          Initially, it was a mistake on the part of

the respondents that they did not communicate the adverse ACR to the petitioner.

Normally, if adverse remarks are given in the ACR of an official, the ACR is required

to be communicated to him and further necessary steps can be taken up. But in this

case, it appears that all the authorities have completely lost sight of these things and

did not act properly.    It is only when he filed a statutory complaint against his non

selection that the authorities woke up to realise their mistake and thereafter the

whole exercise has been taken up and all the remarks given by the RO and the SRO

have been expunged but the remarks given by the IO have not been expunged

completely. Only the remarks given in Item No. 12(d), 12(l) and 12(r) by IO have

been expunged.          Had the authorities applied their mind, they should have

appreciated this kind of tampering done by the IO which was prima facie wrong and

should have taken into consideration the remarks given by the IO when he himself

had mis-conducted by overwriting the figurative assessment against each of the

items.    Had this exercise been done, it would have been different aspect. The

tampering done by the IO is not warranted and is absolutely against the theory of

principles of natural justice.    So much so, had the authorities, while seeing the


Page 4 of 5                                     Col. Rajesh Kapoor Vs. Union of India & Ors.
original ACRs applied their mind, they would have expunged all these entries and

should not have considered the ACR because of the bad conduct of the IO who has

made a hell with the ACR of the petitioner and committed serious blunder. A proper

action should have been initiated against him. In these circumstances, we are of the

opinion that the conduct of the IO in tampering with the figurative assessment was

totally unwarranted and the authorities should have completely ignored this ACR

while dealing with the statutory complaint of the petitioner and consider the case of

the incumbent afresh instead of giving partial relief to him by expunging only the

remarks given in Item No. 12(d), 12(l) and 12(r).



10.    Learned counsel for the petitioner has also submitted that the remarks given

by the authorities as counselling while disposing of his non-statutory complaint

should also be interfered with. We do not find any merit in the contention. Petitioner

while filing a statutory or non-statutory complaint should use proper language against

his superiors.



11.    We accordingly direct the respondents that the ACR for 1996-97 should not

be considered and the case of the petitioner be considered afresh without the ACR

for 1996-97. This whole exercise should be done within a period of three months.

Accordingly, we allow this petition with no order as to costs.


                                                                 A.K. MATHUR
                                                                 (Chairperson)



                                                                 S.S. DHILLON
                                                                 (Member)
New Delhi
May 30, 2011

Page 5 of 5                                  Col. Rajesh Kapoor Vs. Union of India & Ors.
                                  FORM NO. 4

                         (See Rule 11 (1))
         IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH

                              ORDER SHEET


14.

O. A. No. 113 of 2009
With M.A. No. 128 & 129 of 2011

Col. Rajesh Kapoor                                       .........Petitioner

Versus

Union of India & Ors.                                    .......Respondents


For petitioner:      Sh. Gaurav Pachnanda, Advocate.
For respondents:      Sh. Ankur Chhibber, Advocate.

CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.


Notes of the Registry                    Orders of the Tribunal
             30.5.2011                   Order passed vide separate order
                                         sheet, is placed on record.
                                         Petition is allowed with no order as
                                         to costs.




                                                         A.K. MATHUR
                                                         (Chairperson)




                                                         S.S. DHILLON
                                                         (Member)
New Delhi
May 30, 2011
     IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI
1.

O. A. No. 224 of 2011


NCT Chiranjeelal                                              .........Petitioner

Versus

Union of India & Ors.                                         .......Respondents


For petitioner:      Sh. Prabodh Kumar, Advocate.
For respondents:     Sh. Satya Saharawat, Advocate.

CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                     ORDER
                                     30.5.2011

       Heard. Admitted.

       Issue Notices.

       Sh. Satya Saharawat, learned counsel appearing for the respondents

accepts notice. Learned counsel for the respondents prays for and is granted four

weeks’ time to file reply. Rejoinder thereto may be filed within two weeks thereafter.

       Put up after six weeks.

       List on 18th July 2011.



                                                              A.K. MATHUR
                                                              (Chairperson)




                                                              S.S. DHILLON
                                                              (Member)
New Delhi
May 30, 2011
     IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

2.

O. A. No. 226 of 2011


Lt Gen (Retd) Balbir Singh                                 .........Petitioner

Versus

Union of India & Ors.                                      .......Respondents



For petitioner:      Sh. A.S. Chauhan with Ms. Amitava Chauhan, Advocates.
For respondents:

CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                    ORDER
                                    30.5.2011



       Petitioner is stated to be a resident of Gurgaon and, therefore, he falls in

territorial jurisdiction of Chandigarh Bench of the Armed Forces Tribunal. Let this

case may be transferred to the Chandigarh Bench.



                                                            A.K. MATHUR
                                                            (Chairperson)




                                                            S.S. DHILLON
                                                            (Member)
New Delhi
May 30, 2011
     IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

3.

M.A. No. 325 of 2010 in
O. A. No. 193 of 2009


Ex WO VM Raval                                             .........Petitioner

Versus

Union of India & Ors.                                      .......Respondents



For petitioner:      Sh. Rajiv Manglik proxy counsel for Sh. K. Ramesh, Advocate.
For respondents:     Sh. Anil Gautam, Advocate with Major Alifa Akbar.


CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                    ORDER
                                    30.5.2011

       Learned counsel appearing for the respondents submits that the matter is
pending with the Ministry of Law. He prays for and is granted four weeks’ time to
comply the order.
       Put up after four weeks.
       List on 19th July 2011.




                                                           A.K. MATHUR
                                                           (Chairperson)




                                                           S.S. DHILLON
                                                           (Member)
New Delhi
May 30, 2011
     IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

4.

O. A. No. 268 of 2010


Maj Gen S.G. Chatterji                                     .........Petitioner

Versus

Union of India & Ors.                                      .......Respondents



For petitioner:       Sh. Karan Singh Bhati with Sh. Rajneesh Bhaskar, Advocates.
For respondents:      Sh. Anil Gautam, Advocate.


CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                    ORDER
                                    30.5.2011



        List this matter before the Bench comprising of myself and Lt. Gen. Z.U.

Shah.

        List on 24th August 2011.


                                                           A.K. MATHUR
                                                           (Chairperson)




                                                           S.S. DHILLON
                                                           (Member)
New Delhi
May 30, 2011
     IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

5.

T. A. No. 459 of 2010
W.P. (C) No. 1353 of 1995


Maj (Retd) R.D. Singh                                      .........Petitioner

Versus

Union of India & Ors.                                      .......Respondents



For petitioner:      Petitioner in person (Not present).
For respondents:      Sh. Ankur Chhibber, Advocate for respondent nos. 1 to 4.
                     Sh. S. S. Pandey, Advocate for respondent no. 5.

CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                    ORDER
                                    30.5.2011



       Petitioner has requested for adjournment by way of a Fax Message.

       Adjournment granted.

       List on 19th August, 2011.




                                                            A.K. MATHUR
                                                            (Chairperson)




                                                            S.S. DHILLON
                                                            (Member)
New Delhi
May 30, 2011
     IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

6.

O. A. No. 109 of 2011

Lt Col DCS Mayal                                           .........Petitioner

Versus

Union of India & Ors.                                      .......Respondents



For petitioner:      Sh. Rajiv Manglik, Advocate.
For respondents:     Sh. Anil Gautam, Advocate with Maj. Alifa Akbar.

CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                    ORDER
                                    30.5.2011

       Learned counsel appearing for respondents prays for and is granted four
weeks’ time to file a reply. Rejoinder thereto, if any, be filed within two weeks
thereafter.
       Put up after six weeks.
       List on 17th August 2011.




                                                            A.K. MATHUR
                                                            (Chairperson)




                                                            S.S. DHILLON
                                                            (Member)
New Delhi
May 30, 2011
     IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

7.

O. A. No. 85 of 2010


Lt Col Mukul Dev                                           .........Petitioner

Versus

Union of India & Ors.                                      .......Respondents



For petitioner:        Sh. Rajiv Manglik, Advocate.
For respondents:       Sh. Ankur Chhibber, Advocate for Respondents 1 to 4.
                       Sh. R. Balasubramanian, Advocate for Respondents 5 & 6.


CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                     ORDER
                                     30.5.2011

       Learned counsel appearing for Respondents 1 to 4 submits that he will file a
reply during the course of the day. Rejoinder thereto, if any, be filed within two
weeks thereafter.
       Put up after four weeks.
       List on 17th August 2011.




                                                            A.K. MATHUR
                                                            (Chairperson)




                                                            S.S. DHILLON
                                                            (Member)
New Delhi
May 30, 2011
     IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

8.

T. A. No. 544 of 2009
W.P. (C) 1482 of 2008

Hav Baljeet Singh                                             .........Petitioner

Versus

Union of India & Ors.                                         .......Respondents



For petitioner:      Sh. D.S. Kauntae, Advocate.
For respondents:     Sh. Anil Gautam, Advocate.


CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                      ORDER
                                      30.5.2011



       At the request of learned counsel for the respondents, list on 8th July 2011.



                                                              A.K. MATHUR
                                                              (Chairperson)




                                                              S.S. DHILLON
                                                              (Member)
New Delhi
May 30, 2011
     IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

9.

O. A. No. 84 of 2010


Lt Col B.S. Kataria                                      .........Petitioner

Versus

Union of India & Ors.                                    .......Respondents



For petitioner:        Sh. Rajiv Manglik, Advocate.
For respondents:       Sh. Ankur Chhibber, Advocate.


CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                     ORDER
                                     30.5.2011

       Learned counsel appearing for the petitioner prays for and is granted six
weeks’ time to file a rejoinder.
       Put up after six weeks.
       List on 17th August 2011.




                                                         A.K. MATHUR
                                                         (Chairperson)




                                                         S.S. DHILLON
                                                         (Member)
New Delhi
May 30, 2011
      IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

10.

O. A. No. 509 of 2010


Hav Surendra Singh                                          .........Petitioner

Versus

Union of India & Ors.                                       .......Respondents



For petitioner:       Sh. Vinod Kumar, Advocate.
For respondents:      Sh. Ankur Chhibber, Advocate with Major Alifa Akbar.


CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                     ORDER
                                     30.5.2011

        Learned counsel appearing for the respondents submits that he will file a
reply during the course of the day. Rejoinder thereto, if any, be filed within four
weeks thereafter.
        Put up after four weeks.
        List on 17th August 2011.




                                                            A.K. MATHUR
                                                            (Chairperson)




                                                            S.S. DHILLON
                                                            (Member)
New Delhi
May 30, 2011
      IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

11.

T. A. No. 214 of 2009
W.P(C) 8137 of 2009

Gnr. Ajeet Singh                                                .........Petitioner

Versus

The Chief of Army Staff & Ors.                                  .......Respondents



For petitioner:       Sh. Vipin, proxy counsel for Sh. S. M. Dalal, Advocate.
For respondents:       Sh. Ankur Chhibber, Advocate.

CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                       ORDER
                                       30.5.2011

        At joint request of learned counsel for the parties, the matter is adjourned.

        List on 19th August, 2011.



                                                                A.K. MATHUR
                                                                (Chairperson)




                                                                S.S. DHILLON
                                                                (Member)
New Delhi
May 30, 2011
                              FORM NO. 4

                         (See Rule 11 (1))
         IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH

                             ORDER SHEET


12.

O. A. No. 87of 2010
With O.A. No. 199 of 2010

Col BB Singh                                           .........Petitioner

Versus

Union of India & Ors.                                  .......Respondents



For petitioner:    Sh. Rajiv Manglik, Advocate.
For respondents:   Sh. R. Balasubramanian, Advocate.


CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.


Notes of the Registry                  Orders of the Tribunal
             30.5.2011                 Order passed vide separate order
                                       sheet, is placed on record.
                                       Petition is dismissed with no order
                                       as to costs.




                                                       A.K. MATHUR
                                                       (Chairperson)




                                                       S.S. DHILLON
                                                       (Member)
New Delhi
May 30, 2011
      IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

13.

T. A. No. 380 of 2010
W.P.(C) 18598 of 2005

Col. R. S. Upadhayay                                         .........Petitioner

Versus

Union of India & Ors.                                        .......Respondents



For petitioner:        Sh. P. D. P. Deo and Ms. Monika Nagi, Advocates.
For respondents:        Sh. Ankur Chhibber, Advocate.

CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. S.S.DHILLON, MEMBER.

                                     ORDER
                                     30.5.2011



        Learned counsel for the respondents submits that he has not been able to file

the preliminary objections by way of affidavit and he will file the same during the

course of the day. Copy of the same has been given to the other side.

        List on 18th July, 2011.



                                                             A.K. MATHUR
                                                             (Chairperson)




                                                             S.S. DHILLON
                                                             (Member)
New Delhi
May 30, 2011

				
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