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ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI
T.A.No.02 of 2013
(O.A.No.1143 of 2011 on the file of the Armed Forces Tribunal, Regional Bench Chandigarh)
Thursday, the 02nd day of January 2014
THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH (MEMBER-JUDICIAL)
AND THE HONOURABLE LT GEN ANAND MOHAN VERMA
(MEMBER–ADMINISTRATIVE) Lt Col Sanjeet S. Sahai (IC-52649N) aged about 39 years S/o Air Commodore Ajit Sahai Presently posted as Adm Officer NCC Group Headquarters Bhagalpur-Bihar 812 001. ..Applicant By Legal Practitioner: Mr. Lalit Kumar
vs.
1.Union of India through Secretary, Ministry of Defence South Block, New Delhi. 2. The Chief of the Army Staff Integrated HQ of MoD (Army) South Block, New Delhi. 3. Military Secretary Army HQ, Sena Bhawan New Delhi.
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4. Col Ajay Kumar (Ex Commanding Officer 9 Punjab) Presently posted as Military Attache, Embassy of Saudi Arabia Through Adjutant General Army HQ, Sena Bhawan, New Delhi. 5. Maj Gen JS Bajwa SM (Ex GOC 28 Inf Div) Chief of Staff HQ Eastern Command Fort William, Kolkata (West Bengal) 6. Brig UK Rai (Ex Commander 109 Infantry Brigade) Territorial Army Group Commander TA Group HQ, Udhampur (J&K) 7. Maj Gen Munish Sibal (Ex GOC 7 Inf Div) General Officer Commanding 11 Corps C/O 56 APO 8. Brig S.S. Gill (Retd) (Ex Commander 29 Infantry Brigade) Through Adjutant General Army HQ, Sena Bhawan, New Delhi. … Respondents By Mr. B.Shanthakumar, SPC
ORDER
(Order of the Tribunal made by Hon’ble Justice V.Periya Karuppiah, Member-Judicial)
1. This application has been originally filed before the Regional
Bench of Armed Forces Tribunal at Chandigarh in O.A.No.1143 of
2011 for the reliefs:
(1) to summon the original records of the Selection Board No.3
held in May 2009, December 2009 and December 2010 wherein
3
the applicant was considered along with his batch mates for
promotion to the rank of Col and declared unfit;
(2) to summon the applicant’s ACR for the period from 18th
January 2007 to 31st May 2007 and ICR for the period
commencing from 1st June 2007 to 27th October 2007;
(3) if on scrutiny of the records, the applicant’s eligibility for
grant of promotion to the rank of Col in the above said
Selection Boards had been barred because of the impugned
counselling dated 4th September 2007 operating against him as
a permanent bar, to quash the impugned counselling dated
4.9.2007 and to declare the applicant as duly empanelled
provided it is found that OAP was superior or equal to the
officer selected with lowest OAP;
(4) if on the other hand it is found that no permanent bar is
imposed against the applicant’s promotion but the assessment
made by the ROs and SROs in the CRs were influenced by the
counselling dated 4.9.2007, to declare the applicant’s OAP on
the basis of the reports sans the expunged report;
(5) if on the basis of the above exercise it is found that the
applicant’s OAP is superior or equal to OAP of the officer
selected with lowest OAP then to declare the applicant as duly
empanelled and;
(6) if on the basis of the above exercise it is found that the
applicant’s OAP has changed, but it is not possible to declare
him as duly empanelled due to any technical or other reasons,
4
to direct the respondents to accord a special review at the
earliest and if on such special review, the applicant is found fit
for promotion for the rank of Col, then order his promotion to
the rank of Col with seniority from the date of his batch mates
were selected in the Board held in May 2009.
2. The factual aspects put forth in the application would be as
follows:
The applicant joined the Indian Military Academy at the
young age of 21 years and was granted permanent commission
on 11.12.1993 in the Punjab Regiment (Infantry) of the regular
Army and was posted to 9 Punjab Battalion. In between 1994
and 2006, the applicant got various prizes in various competitions
such as Cross Country races and Ghatak. The applicant was also
selected for Army Cricket Team. He was treated as an
accomplished announcer at Formation Level Social and Sports
events while serving in the field and the High Altitude Area. The
applicant led his men from front by personal example. He got
above average ACRs from his IOs. He also got commendation
card from COAS for killing a hard-core terrorist in ‘close quarter
combat’ while serving with 7 RR Battalion in Kashmir Valley.
During January 2007, 4th respondent who never served in 9
Punjab earlier came on posting-cum-promotion from the Army HQ
as CO of the Battalion, while the Battalion was located at
Ferozpur (Punjab) as a part of 29 Infantry Brigade under 7
5
Infantry Division. The applicant to his shock and dismay found
that the 4th respondent started expressing his displeasure openly
against the applicant and on many occasions went to the extent
of saying that the applicant was treating himself as parallel CO of
the Battalion which allegation was not true. The applicant was
sent as OC Advance Party to take charge of the defences from 20
Punjab in Gureiz Sector of the Kashmir Valley during May 2007
which was to relieve the applicant’s Battalion in the next two
months’ time. During July 2007, when the main body of 9 Punjab
arrived along with 4th respondent, the Battalion became a part of
109 Infantry Brigade under the command of 6th respondent which
was a part of 28 Infantry Division under the command of 5th
respondent. After reaching Kashmir Valley on 27.7.2007, 4th
respondent initiated applicant’s ACR for the period from 18
January 2007 to 31st May 2007 for his service rendered at
Ferozpur. In the ACR, the 4th respondent awarded the applicant
an ‘8’ points ‘above average’ which was consistent with all his
previous reports. On 21st August 2007, an OP-Immediate
message was received through Fax from the Army HQ addressed
to the applicant’s Battalion with a copy to 109 Infantry Brigade
and ASCB whereby the applicant had been ordered to attend
audition on 25th August 2007 at 1000 hours at Delhi for the duty
of Announcer-cum-MC in the 4th Military World Games (MWG)
scheduled to be held at Hyderabad from 14th to 21st October
2007. On 22.8.2007 in the early morning, the applicant after
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informing the Brigade HQ as the 4th respondent was out on
temporary duty, left the unit location on a proper movement
order and had a night halt at the Brigade HQ Guest Room in order
to move to Srinagar along with the morning convoy next day.
Further on 23.8.2007 at about 0430 hours, the applicant left the
Brigade HQ along with the convoy. At about 1.30 p.m. on that
day, when halted with the convoy near HQ 9 Sector RR at Pattan
for lunch, he was conveyed the message through CMP personnel
that the applicant was not allowed to proceed any further and
was required to report to GSO-1 at the said HQ 9 Sector RR for
further orders. Accordingly, when the applicant reported to GSO-
1, he was shocked to learn that the 4th respondent had rejoined
the Unit and was in the process of declaring the applicant as a
deserter and the applicant was required to halt for the night and
proceed back to his Unit under an escort. On 25.08.2007, the
applicant was brought back to his Unit under an armed escort
which caused immense humiliation to him. The 4th respondent
thereafter informed the applicant that he was approaching the
Army HQ for cancellation of detailment of MWG. A few days
later, the applicant was informed by the 8th respondent on
28.8.2007 that his ACR had been sent to 7th respondent SRO for
further review implying thereby that 8th respondent had reviewed
the ACR of the applicant on 28.8.2007 after the incident on
21.8.2007. The applicant entertained a bona fide belief that the
4th respondent or 6th respondent or both of them with mala fide
7
intention had conveyed a distorted picture of the incident of 21st
August 2007 to 8th respondent so that the 8th respondent would
award lesser marks in applicant’s ACR than he would have
otherwise awarded. The scrutiny of the said ACR would reveal
that the 8th respondent would award lesser mark than awarded by
4th respondent as IO without any justifiable reason emerging from
record. The 6th respondent in his letter dated 4.9.2007 without
giving any prior warning or show cause notice to the applicant
straightaway served a written counselling which was sent to the
applicant through a Despatch Rider. The message regarding
counselling dated 21st August 2007 was not addressed to the
applicant by name, but it was addressed to his Unit. The
applicant would state that the said counselling is not valid in law.
The alleged unbecoming conduct of an officer referred to in the
counselling would have adverse consequences sooner or later.
However, the Army HQ on 12.9.2007 sent a fax to the applicant’s
Unit that the applicant was selected as an Announcer in the said
MWG and he was required to reach Hyderabad on 6.10.2007 to
attend the ‘training capsule’ scheduled to be held on 7th to 10th
October 2007. The 4th respondent was further enraged upon the
importance given to the applicant since the Army HQ did not
agree to the request of the 4th respondent to cancel the
applicant’s detailment on the said MWG assignment. The
applicant left the Unit on 17.9.2007 for the above duty with some
casual leave in order to meet his family at Dehradun. During the
8
casual leave he was informed through his Unit by fax on
29.9.2007 that the applicant was posted out of the Unit to HQ 57
Mountain Division as GSO-2 (Int) where he was required to
report by 20th October 2007. It would imply that the applicant
could neither attend MWG scheduled to be held till 22.10.2007
nor could come to his Unit to meet all ranks of the Battalion
before his departure for new assignment. On knowing the
posting of the applicant to HQ 57 Mount Division; MT-8 at the
Army HQ under whose aegis the MWG were being held, sent a
OP-Immediate signal dated 5.10.2007 to MS-1A requesting to
delay the applicant’s joining till 20.11.2007. Accordingly, MS-1A
in its order dated 8.10.2007 extended the period of attending of
the applicant by 10th November 2007 instead of 20th October
2007. On 18th October 2007, the applicant spoke to 4th
respondent on telephone expressing his desire to come back to
the Unit and meet all ranks of the Unit as per the traditions of the
Army prior to his proceeding on permanent posting. The
applicant reiterated his request on 20.10.2007 to 4th respondent
through telephone to which also he declined. On 22.10.2007, he
sought the advice of the 4th respondent as to how he could report
to new appointment without a movement order or railway warrant
to which 4th respondent advised him to address his request on
certain lines and to send signal through the nearest Signal
Centre. Accordingly, he sent a signal from Signal Centre at
Hyderabad. On the said request, 4th respondent sent a
9
movement order to the applicant through fax on 23rd October
2007. No railway warrant was issued to the applicant and the
applicant travelled to join the new appointment under his own
arrangement. After joining the new appointment, he received an
acknowledgement card on 18.9.2007 signed by the 7th
respondent intimating the applicant that his ACR for the period
from 18.1.2007 to 31.5.2007 had been reviewed by him on
18.9.2007. Thereafter he received extracts of his ICR from 4th
respondent for the period 1st June 2007 to 27th October 2007
through a letter dated 21st May 2008 in which 4th respondent had
given an ‘8’ points ‘above average’ report to the applicant in the
said ICR. Therefore, the applicant believed that the ‘written
counselling’ given by 6th respondent had no impact over his ICR
and therefore, he desisted from giving complaint against the
counselling under Section 27 of the Army Act. In the meantime,
the extract of his ACR for the period commencing from
14.11.2007 to 31.5.2008 written by the new IO in the applicant’s
new appointment was received which showed that the applicant
had been awarded 8 points ‘above average’ which was again
consistent with the applicant’s stabilised career profile.
Commencing from 1st January 2009, a new promotion policy for
officers called ‘Quantification System’ was introduced in the army
in order to avoid favouritism and human factors to which 95
marks were allotted for ACRs, courses, honours and awards and
the remaining 5 marks were allotted for ‘value judgment’ to be
10
awarded by the members of the Selection Board. Out of the 95
marks, 89 marks were allotted solely for CRs. Therefore, CRs are
the main foundation for selection of officers and human error or
bias was totally removed by the process of selection. During May
2009, No.3 Selection Board was held in accordance with the new
policy to consider the appointment along with his batch mates for
the promotion to the rank of Col after taking into account the
ACRs upto the period of May 2008, all of which to the best of
applicant’s knowledge were of above average. There was no
doubt in the mind of the applicant about his empanelment for
promotion to the rank of Col, but he was stunned to learn that he
was not empanelled which led him to file a non-statutory
complaint. The said non-statutory complaint was however
rejected by COAS through his order dated 8th September 2009.
The applicant was given first review by No.3 Selection Board with
one additional ACR for the period from 1st June 2008 to 31st May
2009 in which the applicant had been given a ‘9’ points
outstanding grading. However, he was not empanelled. On 25th
January 2010, the applicant averted an occurrence of a major
terrorist incident in the Military Garrison Leimakhong (Manipur)
for which he was recommended to be awarded Sena Medal. On
8.5.2010, he submitted a statutory complaint for his non-
empanelment for the second time. In the meantime, in the ACR
of the applicant covering the period from 1.6.2009 to 31.5.2010
was given a ‘9’ points outstanding report. In December 2010, the
11
applicant was given a final review with additional inputs to include
ACR for the period from 1st June 2009 to 31st May 2010,
recommendation for award of Sena Medal. However, the
applicant was again not empanelled and thus came to the end of
his career. However, the applicant continued working extremely
hard with total devotion to the organisation for which he on 25th
January 2011 was awarded a Commendation Card by the GOC-in-
C Eastern Command. This would make it clear that the reason for
non-empanelment of the applicant was not lack of merit but it
was due to some reasons which had not been conveyed to the
applicant although it was constantly operating against him. The
impact of counselling dated 4.9.2007 held by the 6th respondent
for the alleged act of leaving the Battalion without clearance from
the Officiating Commander stated that the applicant was
‘unbecoming of an officer of his rank and service and the above
incident reflected a disinclination to perform and it could not be a
reason as found in para-17 of the Army HQ Policy on
Quantification System. The statutory complaint was rejected by
the first respondent on 9.2.2011. The belief of the applicant that
the counselling dated 4th September 2007 was operating against
him as an adverse report was further strengthened since the IOs,
ROs and SROs would take it as adverse reports as per para 112 of
the Army Order on ACRs AO 45/2001/MS. As per the firm belief
of the applicant, the written counselling served upon him by 6th
respondent at the behest of the 4th respondent contained adverse
12
remarks against the applicant that his behaviour was unbecoming
of an officer. This could have made the RO and SRO to endorse
specific remarks against the above average report given by the
4th respondent as per para 122 of AO 45/2001/MS. The review
done by 6th respondent would have endorsed that the assessment
made by IO was liberal so that the grading awarded by IO could
easily be brought down. Similarly, the SRO would have supported
the stand of the RO and consequently the award of the 4th
respondent ‘above average’ grading has caused more harm than
good to the applicant. As the applicant cannot challenge the
grading awarded by the 4th respondent being ‘above average’, the
4th respondent would have given lesser marks in Part IV of the
ACR Form which was not required to be shown to the applicant.
The RO and SRO would appear to be ‘Moderator’ and ‘Balancer’ as
per para 122 of AO 45/2001/MS and they are required to award
marks in accordance with the impression of the assessment made
by Junior Reporting Officers. The two CRs of the applicant in
which the RO and SRO have not concurred with the IO 4th
respondent would go to show that such remarks given by RO and
SRO are not in accordance with para 122 of AO 45/2001/MS and
in the interest of justice, the assessment made by RO and SRO
are liable to be expunged since they are to the detriment to the
applicant. The said ACRs influenced the Selection Board and thus
the applicant was not empanelled since the marks awarded by RO
and SRO are not based on any material fact and if at all these
13
marks are based on the basis of the counselling dated 4.9.2007,
it should be expunged and the non-empanelment of the applicant
may be quashed. Therefore, the application filed by the applicant
for the aforesaid reliefs may be ordered.
3. The objections raised by the respondents-1 to 3 in the reply-
statement and the additional reply-statement are as follows:
The Army has a pyramidical rank structure. Thus the number of
vacancies in higher ranks are limited. From the broad base of the
pyramid, only those officers whose record of service within a
particular batch are better would be selected to fill up the
vacancies available in the higher ranks. As per the promotion
policy which was applicable till 15th December 2004, promotions
in the Army upto the rank of Major were by time scale.
Promotions from Major to Lt Col and above were decided through
Selection Boards as per the Policy contained in Para 108 of the
Regulations for the Army, 1987 (Revised Edition) and Army HQ
letter No.31525/P/MS/5B dated 6.5.1987 and now Quantification
System of Selection introduced vide IHQ of MoD (Army) MS
Branch letter No.04502/MS Policy dated 31st December 2008.
The Quantified System of Selection Policy applicable as on date
was issued vide MS Branch letter No.04502/MS Policy dated 04
January 2011. As per the implementation of AVSC-I
recommendations, promotions upto Lt Col are time scale. All
officers of a particular batch are considered together with same
14
cut-off ACRs and inputs and on the basis of individual profile of
the officer and the comparative batch merit, they are approved or
not approved. Seniority in itself is no consideration before the
Selection Board for approval or non-approval. In case, any officer
gets any relief through complaint etc. in any CR, after the
Selection Board has been held, he is entitled to a special
corresponding consideration by Selection Board with his changed
profile and in case he is approved by such special consideration,
his original seniority remains protected. As per the applicable
policy, each officer is entitled to only three considerations for
promotion to the selection ranks, i.e., Fresh Consideration, First
Review and Final Review. In case an officer is not approved as a
fresh case but approved as a First Review or Final Review, he
loses seniority accordingly vis-a-vis his original batch. After three
considerations, if an officer is not approved, he is deemed to be
finally superseded. The assessment of officers in ACR was
regulated by SAO 3/S/89 which was replaced by AO 45/2001/MS
and other relevant policies at the given time. The grading is
numerical from 1 to 9 as well as in qualities to assess potential
for promotion and in the form of pen picture also. The entire
assessment of an officer in any ACR consists of assessment by
three different Reporting Officers, viz., Initiating Officer (IO),
Reviewing Officer (RO) and Senior Reviewing Officer (SRO) whose
assessments are independent of each other. The Selection Board
takes into consideration a number of factors such as
15
war/operational reports, Course Reports ACR performance in
command and staff appointments, honours and awards,
disciplinary background and not only the ACR or one/few ACRs
etc. The Selection/rejection is based upon the overall profile of
an officer and comparative merit within the batch as evaluated by
the Selection Board. It is upto the Selection Board to assess the
suitability of the applicant for promotion. The assessment of the
Selection Board is recommendatory in nature and not binding
until approved by the competent authority, viz., COAS or the
Central Government as the case may be. The applicant has given
his present posting station as NCC Group HQ, Bhagalpur, Bihar
and therefore, the Armed Forces Tribunal, Regional Bench at
Kolkata has got jurisdiction. The applicant was given counselling
by Brig UK Rai, Commander, 109 Infantry Brigade on 4.9.2007,
but it was not objected or challenged till the filing of this
application. The said issue of counselling was not raised in the
non-statutory complaint dated 30 May 2009 or statutory
complaint dated 8 May 2010. It is an after-thought and
motivated to make out a case. The application is not
maintainable on the grounds of delay and laches. The CR
covering the period January 2007 to May 2007 was initiated by
4th respondent and was endorsed by RO 8th respondent and
reviewed by 7th respondent as Senior Reviewing Officer. The
second CR covering the period from June 2007 to October 2007
initiated by 4th respondent as IO and was reviewed by 6th
16
respondent as RO and further reviewed by SRO-5th respondent.
The allegation of the applicant that he was not aware of the
Reporting Officers until his non-empanelment could not be
justified. The Confidential Report would show that all Reporting
Officers have assessed the applicant independently and had
adequate knowledge about the functioning of the applicant. The
applicant did not allege malice or bias in the assessment in the
impugned Confidential Reports. Judicial Review of the impugned
Confidential Reports is not permissible in view of the various
decisions of the Hon’ble Apex Court. The counselling dated
4.9.2007 was not objected to till the filing of the application. The
applicant cannot have any grievances in the assessment based
upon the performance on assessing the applicant as ‘above
average’ which was recommended by RO and SRO. The alleged
counselling was not placed before the Selection Board. The
profile of the applicant was placed before the Selection Board
along with course grading, Honours and Awards etc. Based on
the overall profile vis-a-vis course makes the applicant unfit for
empanelment being low in merit vis-a-vis his batch mates. The
allegations made against the 4th respondent are baseless. The
counselling letter dated 04 September 2007 speaks volumes
about the irresponsible and lackadaisical attitude of the applicant
as Officer Commanding, Advance Party when the Unit was
deployed in intense counter-insurgency environment. The
applicant without informing higher headquarters took movement
17
order from Lt RP Yadav, Adjutant, 9 Punjab and proceeded on
temporary duty. He was ordered to return to Battalion
Headquarters by 6th respondent. Lt RP Yadav was made to sign
the movement order by the applicant who was mature enough
and had put in adequate service and should not have left the Unit
without informing his superiors. The alleged incident dated
21.8.2007 was not known to GOC 7 Infantry Division and there is
no mention of such an incident in CR 01/07 to 05/07, nor in the
CR covering from 1st June 2007 to 27th October 2007. The
applicant was assessed above average and they gave positive
recommendations for promotions. The Initiating Officer, viz., 4th
respondent has been blamed for no reason. The subsequent
Confidential Report initiated in Staff appointment is entirely a
different environment and has no connection with the impugned
Confidential Report. At times, an officer who has better profile
does not make it to the next rank due to lack of vacancies. The
applicant is non psc/sc qualified officer. His course performance is
predominantly average with B grading in JC Course. In remaining
courses, the applicant got ‘C’ grading. All these factors have
resulted in the non-empanelment. The non-statutory complaint
submitted by him was duly examined and was rejected by the
COAS on 8.9.2009 being devoid of merit. All Reporting Officers
have not assessed him outstanding. The Sena Medal
(Distinguished) citation along with recommendations was not
received by the answering respondents. He was not awarded
18
Sena Medal and thus the same could not have been considered by
the Selection Boards. The Reviewing Officers have promptly
considered the appropriate columns applicable to the applicant.
The review of the RO and SRO cannot be simply set aside based
upon the CR written by IO as ‘above average’. The applicant
being lower in merit vis-à-vis his batch mates who got approved
this Tribunal cannot substitute its finding with the finding of the
Selection Board. Therefore, the reliefs prayed for by the
applicant are not grantable and the application may be dismissed.
4. Reply-Statement of 4th respondent would be as follows:
The allegations levelled by the applicant are general in nature and
unsubstantiated and absolutely devoid of merit. The assessment
made by the 4th respondent on the applicant was objective and
demonstrated performance based. The allegation that the 4th
respondent informed the 8th respondent Reviewing Officer about
the incident dated 21.8.2007 either formal or informal is denied.
It is nothing but a speculation. The various allegations made
against the 4th respondent that the applicant was about to be
declared as deserter is also denied. No bias is attributable in
respect of the ACR for the period 1st June 2007 to 27th October
2007. It was improper on the part of applicant to proceed on
temporary duty to Army Headquarters being the senior-most
officer present in the Battalion, deployed in Intense Counter
Insurgency environment without informing and seeking
19
permission of the Brigade Commander. The conduct of the
applicant cannot be appreciated and accordingly, Brigade
Commander called him back. The detailment as an announcer at
World Military Games cannot be and was not a reason to develop
bias, ill-will or malice towards the applicant. The applicant was
assessed ‘above average’ with complementary pen picture and
positive recommendations for promotion. Therefore, the
application against the 4th respondent may be dismissed with
exemplary costs.
5. Reply-statement of the 5th respondent would be as follows:
The contents of the application are denied. The 5th respondent as
General Officer Commanding, 28 Infantry Division reviewed the
Confidential Report of the applicant for the period from June 2007
to October 2007. The impugned CR was initiated by the 4th
respondent reviewed by the 6th respondent and the 5th
respondent as Senior Reviewing Officer has done his duty. The
assessment was done by the 5th respondent after seeing the
performance on the ground he being the Officer Commanding
Advance Party of 9 Punjab. The 5th respondent had interaction
with the applicant during the reporting period. The assessment
done by the 5th respondent was independent and based on the
applicant’s demonstrated performance in criteria appointment
while the Unit was located in counter-insurgency environment.
20
Therefore, the application may be dismissed with exemplary
costs.
6. Reply-statement by the 7th respondent would be as follows:
The 7th respondent reviewed the Confidential Report of the
applicant covering the period from January 2007 to May 2007
initiated by the 4th respondent. The said review was endorsed by
the 8th respondent and the 7th respondent was the Senior
Reviewing Officer. The said review of the CR of the applicant was
done independently based on his demonstrated performance
during the reported period. It does not suffer any bias, mala fide
nor it was based on an incident which allegedly took place in next
formation as contended by the applicant. Therefore, the
application may be dismissed with exemplary costs.
7. In the rejoinder filed by the applicant against the reply-
statement filed by the respondents-1 to 3, 4, 5 and 7, it has been
generally denied the objections raised by the aforesaid
respondents. Having reiterated the averments made in the
application, the applicant sought for grant of reliefs as asked for
in the Original Application.
8. On the above pleadings, the following points are found
emerged for consideration.
21
(1) Whether the impugned counselling dated 4.9.2007 was
operating against the applicant on the quantification system
and the applicant was not empanelled due to its impact on
the overall average profile of the applicant?
(2) Whether the impugned CRs for the period from 18th
January 2007 to 31st May 2007 and for the period 1st June
2007 to 27th October 2007 are influenced by the counselling
dated 4.9.2007 and if so, the adverse assessment are to be
expunged?
(3) Whether the applicant’s OAP is superior or equal to the
OAP of the officer selected to the lowest OAP and if so to
declare the applicant as duly empanelled?
(4) Whether the respondents are to be directed to accord a
special review at the earliest and if on such special review,
the applicant is found fit for promotion to the rank of Col to
pass order for his promotion to the rank of Col with seniority
from the date of his batch mates selected in the Board held
in May 2009?
(5)To what other relief is the applicant entitled to?
22
9. We heard Mr.Lalit Kumar, learned counsel for the applicant
and Mr. B.Shanthakumar, learned Senior Panel Counsel assisted
by Col N.K. Ohri, MS (Legal Cell) appearing on behalf of the
respondents. We have also perused the proceedings of the three
Selection Boards and the relevant annual Confidential Reports of
the applicant produced by the respondents. We have also
perused the written submissions on behalf of the applicant and
the respondents-1 to 3. No representation or any arguments was
advanced on behalf of the respondents-4 to 8.
10. Point Nos. 1 to 4: The indisputable facts are that the
applicant is serving in the Army as Lt Col who was considered by
Selection Boards for considering him for promotion of Colonel and
in the First Selection Board, Review Selection Board and Final
Selection Board held during May 2009, December 2009 and
December 2010, he was not empanelled. The applicant
submitted a non-statutory complaint regarding the No.3 Selection
Board held in May 2009 and the same was rejected. Thereafter
he preferred a statutory complaint against the non-empanelment
in the Review Selection Board held during December 2009 and it
was also rejected. With this background, the applicant has now
come forward with the present application to redress his
grievances.
23
11. The learned counsel for the applicant Mr. Lalit Kumar would
submit in his argument that the applicant was issued with
counselling dated 4.9.2007 in which he was stated as an
‘unbecoming officer’ and that would be an adverse remark and
the said adverse remark was not intimated to the applicant. His
further case is there was no prior warning or show cause notice
and it should have been communicated to the applicant as per
Para-121 (1) read with para 127(b) of AO 45/21. Furthermore,
the said adverse remark in the impugned counselling dated
4.9.2007 should have influenced the respondent No.6 in the
applicant’s ICR for the period June 2007 to October 2007. The
said argument of the applicant that any adverse remarks passed
against the officer should have been informed to the officer is
quite rightly referred in AO 45/2001/MS. The definitions of
Adverse/Advisory remarks are,
“ (a) Adverse Remarks: These remarks are essential to
place on records the weakness of the ratee and will be
endorsed in the pen picture of the ratee. All weaknesses in
the pen picture will be treated as adverse remarks.
(b) Advisory Remarks: These remarks are endorsed by
reporting officers to bring in further improvement in the
ratee’s performance and overall development, though per
se they may not reflect any adverse trait of the ratee.
Advisory remarks are not construed as weak/adverse.
These will be endorsed separately in the space provided for
24
the pen picture. In CR forms, which do not have space
specifically for endorsing advisory remarks, these will be
written on a separate sheet and will be passed below the
pen picture.
(c) Communication of Adverse/Advisory Remarks: Both
adverse and advisory remarks by any reporting officer(s)
are required to be communicated to the ratee. “
As per para 121(c) any adverse remark should have been
communicated to the applicant. In the exceptions given in para
127 of AO45/2001/MS, the adverse/advisory remark in the pen
picture will be communicated. Relying upon the provisions it was
stressed by the learned counsel for the applicant that the impact
of the counselling dated 4.9.2007 was detrimental to the
Confidential Report of the applicant and consequently he was not
considered in the Selection Board. It is also the further case of
the applicant that there was an incident on 21.8.2007 in which he
proceeded as per the direction of Army HQ to attend the training
to act as the announcer after getting a movement order from the
incharge officer, since the Commanding Officer was on temporary
duty and it was mistaken that the applicant had taken the role of
the Commanding Officer and had proceeded and left the Unit in
the insurgency area and it was the reason for counselling. The
arguments advanced by the learned counsel for the applicant was
that the applicant was promptly moved on a movement order and
therefore, the said counselling itself is not sustainable and
25
therefore the adverse remarks mentioned in the counselling dated
4.9.2007 cannot be a ground to reflect in the CR or the pen
picture. Apart from that, the applicant was very much aggrieved
on the biased attitude of the 4th respondent who happened to be
the CO acting against the interest of the applicant and he was
very much particular in initiating the CR with 21.8.2007 incident
and therefore it reflected in the CR for the period June 2007 to
October 2007. The learned counsel for the applicant would fairly
concede that he is not challenging the ACR for the period from
January 2007 to May 2007 and he is only challenging the ACR for
the period June 2007 to October 2007 on the above grounds. On
the submission of the learned counsel for the applicant it is not
necessary for us to scrutinise the ACR for the period January
2007 to May 2007.
12. The adverse remark referred to by the applicant has not been
reflected in any of the CRs and therefore merits no further
consideration.
13. However, in order to appreciate the contentions of the
learned counsel for the applicant, it has become necessary for us
to peruse the other Confidential Reports of the applicant produced
by the MS Branch. On a careful perusal of the Confidential Report
for the period 1st June 2007 to 27th October 2007, we could see
that the IO, viz, the 4th respondent has given 8 and 9 points in
26
various qualities in favour of the applicant. The pen picture of the
Initiating Officer, 4th respondent does not show any reference of
the counselling dated 4.9.2007. Per contra, the officer was
awarded above average in respect of his leadership ability. The
pen picture of the RO is also not reflecting the counselling or any
adverse remarks against the applicant. Similarly, the SRO’s pen
picture is also not referring to any adverse remarks. The special
achievement of the applicant to participate as an announcer in
the World Military Games have been referred to in the pen picture
of IO and SRO. Therefore, the reasons put forth by the applicant
that the counselling dated 4.9.2007 was having an impact over
the assessment of RO and SRO is not acceptable. However on an
overall comparison of the previous and later assessments of other
RO and SRO, on the applicant, we see that the applicant was
awarded ‘8’ points in the previous CRs and also in the later CRs.
The RO and SRO for the impugned ACR of June 2007 to October
2007 have awarded 7 in the boxgrading. The assessment by the
Initiating Officer was considered by the Reviewing Officer as
liberal. The said opinion of the RO was commented as ‘justified’
by the SRO and the report of the IO was held as ‘liberal’ by SRO
also. In the said circumstances, we find that the report of the IO
was justified in the pen pictures of the RO or SRO but in their
opinion alone they commented as liberal on the report of the IO.
The RO had originally put ‘8’ in the box and he struck out
thereafter and put ‘7’.
27
14. The learned Senior Panel Counsel assisted by Col N.K. Ohri,
MS (Legal Cell) would state in the arguments that the Court
cannot take the role of the Assessing Officer and to alter the box
grading by assigning any reasons. They would cite various
judgments of the Hon’ble Apex Court reported in (2001) 10 SCC
424 (Amrik Singh vs UOI & Ors) for the proposition that the
subsequent performance of the applicant even though good, it
cannot be a ground to expunge or interfere with the assessment
of ACRs of the previous years. He would also cite a judgement of
Delhi High Court made in WPC No.7074 of 2008 dated
17.7.2009 (Major General B.S.Grewal vs. UOI & Ors.) for
the same principle.
15. The relevant passage as found in the judgment of the
Hon’ble Apex court in (2001) 10 SCC 424 would run as follows:
“ 12. ....While the remarks of the IO were favourable
to the appellant and even the remarks of the RO were by
and large favourable to him, there was an adverse remark
relating to ‘non-display of resoluteness of execution during
operations’. It was on this basis that the RO gave him 5
marks while the IO gave him 7 marks. The RO was of the
rank of a Brigadier. The SRO was a Major General and in
his remarks dated 14.11.1986, the Major General thought fit
to agree with the RO by awarding him only 5 marks. “
28
16. It has been pointed out that the difference between the
remarks of IO and RO cannot be interfered with. As for this case
is concerned, we have found that there were no adverse remarks
communicated to the applicant as per Army Order AO45/2001/MS
nor referred to in the pen picture of the impugned ACR.
Therefore, the facts of the case discussed in the judgment of the
Hon’ble Apex Court are not applicable to the present case. The
relevant paragraph as culled out from the judgment of the Delhi
High Court made in WP(C) No.7074 of 2008 dated 17.7.2009
would be as follows:
“ We do not agree with the learned counsel for the
petitioner that the IO and RO should have given him good
remarks in the ICR only because his performance in his
earlier years was very good. The petitioner has to be
judged by the IO and RO for the relevant period and we
cannot sit on the judgment of the IO and the RO, nor can
we review the remarks given by them. “
17. In the said case there was admittedly some loss of weapons
and a TISAS Ballistic Computer Unit and the same was considered
against the ratee and the RO and IO have not awarded good
remarks in the ICR even though the earlier performance of the
individual was very good. But as far as the present case is
concerned, the said incident dated 4.9.2007 or the adverse
29
remarks have not been reflected in the pen picture of RO and
SRO. Therefore the said judgements cited by the respondents-1
to 3 are also not helpful to the respondents.
18. We have perused the non-statutory complaint and statutory
complaint preferred by the applicant which were disposed of by
the respondents by holding that the CRs are well moderated,
corroborated, balanced, performance based, technically correct
and are in consonance with the officer’s profile. We have also
compared the profile of the applicant in the Personal Performance
Sheet produced before us. In the impugned CR, for the period
June 2007 to October 2007, the RO and SRO granted ‘7’ points.
But in the previous CR for the period June 2005 to May 2006, the
assessment of RO was ‘8’. Similarly earlier CRs also had ‘8’ or
‘9’ points in various qualities. The subsequent CRs for the period
November 2007 to May 2008 and June 2008 to May 2009, the
assessment of RO was ‘8’ in boxgrading with ‘8’ and ‘9’ in various
qualities. In the said circumstances, the ratee being given only
‘7’ points by the RO and SRO in the impugned CR for the period
June 2007 to October 2007 without any adverse remarks or
reasons in pen picture does not appear to be in consonance with
his profile. We do not find any reference of adverse remarks in
the pen picture or any reason to differ with the assessment of
Initiating Officer to say it as liberal. In the said circumstances,
the boxgradings given by the RO and SRO in respect of the
30
impugned CR for the period June 2007 to October 2007 are liable
to be expunged. The box grading of the IO cannot alone be
considered towards the performance of applicant without the
comments of RO and SRO concerned.
19. In the background of the above discussion, can this Tribunal
interfere with the selection process after expunging the impugned
CR for the period June 2007 to October 2007 is the present
question. The Selection Boards held in May 2009, December 2009
and December 2010 was in accordance with the latest policy, viz.,
quantification system. The merit list is also based on quantified
remarks and Value Judgment by the members of the Selection
Board. We find that the Value Judgment Marks awarded by the
members largely conform to overall merit. The final score of
lowest selected officer and the final score of the applicant have
got a vast difference. Similarly the Review Selection Board held
during December 2009, the difference of final score of the lowest
empanelled officer and the final score of the applicant also had
considerable difference. It is also the same in respect of the Final
Review Board held in December 2010. In the said Selection
Board’s proceedings, the final score are reached by adding Value
Judgement with quantified score on the basis of CRs. These
processes are to be considered only by the Selection Boards. The
applicant has sought the relief, praying to direct the respondents
to promote him to the rank of Colonel. The process of selection
31
of officers for promotion to higher ranks in the Indian Army is
carried out by the body of experts who are provided with requisite
inputs such as records of all candidates, comparative merits and
so on by MS Branch to arrive at a decision. The members of the
Selection Boards impart their Value Judgment to each candidate
which function can be performed only by experts in that field.
There are several Supreme Court judgments to the effect that the
Courts should not substitute the findings of the Selections Boards.
In the case of AVM SL Chhabra vs. Union of India & Ors.
reported in (1993) Supp (4) SCC 441, it is held:
“ The court cannot encroach over this power, by
substituting its own view and opinion. According to us,
there is no scope to interfere with the decision of the
Selection Board of 1987 merely on the ground that adverse
remarks, in the Appraisal Report of 1986, which were
placed before the Selection Board in the year 1987, were
later expunged. “
In Union of India & Others vs. Lt Gen RS Kadyan, (2000) 6
SCC 698, it is held:
” Prima facie, we cannot say, having gone through
those records, that these notings are baseless. Critical
analysis or appraisal of the file by the Court may
neither be conducive to the interests of the officers
concerned or for the morale of the entire force. May be
one may emphasize one aspect rather than the other
32
but in the appraisal of the total profile, the entire
service profile has been taken care of by the authorities
concerned and we cannot substitute our view to that of
the authorities. It is a well-known principle of
administrative law that when relevant considerations
have been taken note of and irrelevant aspects have
been eschewed from consideration and that no relevant
aspect has been ignored and the administrative
decisions have nexus with the facts on record, the same
cannot be attacked on merits. Judicial review is
permissible only to the extent of finding whether the
process in reaching decision has been observed
correctly and not the decision as such. In that view of
the matter, we think there is no justification for the
High Court to have interfered with the order made by
the Government. “
20. In the light of these judgments, we are not inclined to
interfere with the proceedings of the Selection Board. The CR for
the period June 2007 to October 2007 is set aside.
21. When we cannot interfere with the proceedings of the
Selection Board and the impugned ACR for the period
commencing from June 2007 to 27th October 2007 is expunged,
what would be the remedy available to the applicant is the moot
question. The applicant had asked for the relief of Special Review
when all his chances have been over for considering him
promotion to the rank of Colonel. The applicant should not go
33
remedyless. We therefore find it justifiable to order constitution
of a Special Review Selection Board since the impugned CR for
the period June 2007 to October 2007 has been set aside and the
Selection Board has to consider the case of the applicant with the
available revised profile along with his batch mates and to pass
necessary orders regarding promotion. Accordingly, Point Nos.1
to 4 are answered.
22. In view of the finding reached in the aforesaid Points, we are
inclined to grant relief of Special Review as asked for by the
applicant after setting aside the impugned ACR for the period
June 2007 to October 2007 and to consider the applicant by a
Special Review Selection Board to be constituted and to pass
orders, in accordance with law.
23. In fine, the petition is allowed in part as indicated above.
Time for constitution of a Special Review Selection Board is three
months from the date of receipt of copy of this order. No order
as to costs.
Sd/ Sd/ LT GEN ANAND MOHAN VERMA JUSTICE V. PERIYA KARUPPIAH MEMBER (ADMINISTRATIVE) MEMBER (JUDICIAL)
02.01.2014
(True copy)
Member (J) – Index : Yes/No Internet : Yes/No Member (A) – Index : Yes/No Internet : Yes/No Vs
34
To: 1.The Secretary, Ministry of Defence South Block, New Delhi. 2. The Chief of the Army Staff Integrated HQ of MoD (Army) South Block, New Delhi. 3. Military Secretary Army HQ, Sena Bhawan, New Delhi. 4. Col Ajay Kumar (Ex Commanding Officer 9 Punjab) Presently posted as Military Attache, Embassy of Saudi Arabia Through Adjutant General Army HQ, Sena Bhawan, New Delhi. 5. Maj Gen JS Bajwa SM (Ex GOC 28 Inf Div) Chief of Staff, HQ Eastern Command Fort William, Kolkata (West Bengal) 6. Brig UK Rai (Ex Commander 109 Infantry Brigade) Territorial Army Group Commander TA Group HQ, Udhampur (J&K) 7. Maj Gen Munish Sibal (Ex GOC 7 Inf Div) General Officer Commanding 11 Corps C/O 56 APO 8. Brig S.S. Gill (Retd) (Ex Commander 29 Infantry Brigade) Through Adjutant General Army HQ, Sena Bhawan, New Delhi. 9. Mr. Lalit Kumar Counsel for the applicant. 10. Mr. B.Shanthakumar, SPC For respondents. 11.OIC, ATNK & K Area HQ, Chennai. 12.Library, AFT/RBC, Chennai
35
HON’BLE JUSTICE V. PERIYA KARUPPIAH (MEMBER-JUDICIAL) AND HON’BLE LT GEN ANAND MOHAN VERMA
(MEMBER – ADMINISTRATIVE)
T.A.No.02 of 2013 (O.A.No.1143 of 2011
on the file of AFT/RB Chandigarh)
02.01.2014