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TMI Blog1995 (3) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... e adverse remarks complained of read as follows: 'CONFIDENTIAL ADVERSE REMARKS OF THE COAS TO BE ENDORSED ON DOSSEIR IN THE CASE OF IC-12599L MAJ GEN IPS DEWAN, MGASC, HQ SOUTHERN COMMAND 1. Consequent to a C of I ordered by this Headquarters to investigate into the mishandling of CBI cases of RC 19(A)89- JPR and PE 3(A)/9A-JPR by Headquarters Southern Command in 1992, it has emerged that Maj Gen IPS Dewan (Ex-MG 1C Adm) now MGASC Headquarters Southern Command failed to appreciate the nuances of both cases, and to apply his professional acumen and experience to their examination. He also failed to examine the cases in details, or to carry out a detailed analysis and merely endorsed his views, based on the perfunctory advice of the MGASC. He had merely applied his mind to defend ASC contracting procedures and did not consider the major issues involved. He is to be blamed for mishandling and dosing the cases and for acting in a manner which is not expected to his rank and the higher responsibility entrusted to him as MG 1C Adm Headquarters Southern Command. 2. On analysis of the case, I find the conduct of Maj Gen IPS Dewan, then MG 1C Admn. now MG ASC Headquarters Southern Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 officer at S. No. 4. In the counter- affidavit filed on behalf of the respondents in this appeal, it is stated in Para 111(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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 recorded. 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 adverse remarks, as is well-know, can be made by the appropriate 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 understood or interpreted as amounting to expression of "severe displeasure" within the meaning of the Memorandum dated 5th January, 19S9 and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. In the circumstances, the Court cannot sit as an appellate authority over the acts and proceedings of the Selection Board. 14. We are 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 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 hi 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. 56-J., and not with promotion. The said decision finds fault with an order of compulsory retirement based upon stale adverse entries made more than ten years earlier. The said decision no doubt says that the represe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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