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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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.

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(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?

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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.

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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

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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