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OA 1447 of 2011
ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL
BENCH AT CHANDIMANDIR
-.OA 1447 of 2011
Lt. Col Uttam Dixit, SM
Vs
Union of India and others
For the Petitioner (s) :
For the Respondent(s) :
……
Petitioner(s)
……
Respondent(s)
-.Col (Retd) NK Kohli, Advocate
Mr. Gurpreet Singh, Sr. PC for Resp
No 1 to 3 and 5
Coram: Justice Prakash Krishna, Judicial Member.
Lt Gen (Retd) DS Sidhu, Administrative Member.
-.ORDER
30.05.2014
-.The petitioner herein was granted Commission in the Indian
Army on 19.12.1992 in the Rajputana Rifles in the rank of 2 nd
Lieutenant. He was given time bound promotions to higher ranks and
thus was granted the rank of Lieutenant Colonel at the material time. The
petitioner was also awarded Sena Medal on 15.08.1994. While he was
holding the post of Lieutenant Colonel, the petitioner was considered for
promotion to the post of Colonel but was not selected. The petitioner on
09.05.2008 filed a Non-Statutory complaint which was also rejected on
14.08.2008. Thereafter he filed first Statutory complaint on 20.10.2008
which was dismissed on 19.01.2009. He then filed second Statutory
complaint dated 22.12.2010/30.12.2010 which was rejected on
27.04.2011.
Challenging the two orders dated 19.01.2009 and
27.04.2011 whereby the Statutory complaints were rejected, the present
petition has been filed.
The petitioner was considered for promotion to the rank of
Colonel by Selection Board No. 3 in April, 2008 but was not empanelled.
He was subsequently considered by No. 3 Selection Board as First
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Review and Final Review case in the months of May, 2009 and
December, 2009 but was not empanelled.
By means of present petition, the petitioner has sought the
quashing of the orders dated 19.01.2009 and 27.04.2011 rejecting the
Statutory complaints and thereby seeking directions to the respondents to
call for records of the ACRs covering the period June 1, 2003 to May 31,
2004 and June 1, 2004 to May 31, 2005 and set aside the grading of RO
in the said ACRs. For the sake of convenience, the reliefs sought for in
the petition are reproduced herein below:“(a) Issue directions to the respondents and call for
records of the ACRs covering the period 01 June 2003 to
31 May 2004 and 01 June 2004 to 31 May 2005 and set
aside the grading of the RO in the said ACRs in totality
being illegal, invalid, subjective, inconsistent, biased and
prejudiced.
(b)Issue directions to call for records and set aside
Government of India, Ministry of Defence orders No.
36501/11983/INF/08/MS-19/433/SC/2008 D(MS) dated
19 Jan 2009 and order No. 36501/11983/Inf/2008/MS19/86/SC/2011-D(MS) dated 27 April 2011 intimating
non-grant of redress as prayed by the applicant in the
statutory complaint and rejecting the complaint against
non-empanelment for promotion.
(c)Issue direction/orders to Respondent number one and
two to consider the applicant afresh by a Special
Selection Board as an officer of 1992 batch after
expunging grading of RO in the ACRs in question and
based on such consideration issue direction to the
respondents to promote the applicant to the rank of
Colonel with all consequential benefits including
seniority and pay and allowances.
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(d)Issue such other order/direction as may be deemed
appropriate in the facts and circumstances of the case.”
The case of the petitioner may be noticed in brief. The petitioner
has come out with the case that he was in „super block‟ at the Indian
Military Academy and has a brilliant and excellent service record to his
credit. He has unblemished service career spanning over 18 years and his
work and leadership quality has always been appreciated by his
superiors. He was given promotion to the ranks of Captain, Major and
Lieutenant Colonel are all time-bound. The grievance of the petitioner as
set out in the petition in brief is that the gradings in his two impugned
ACRs for the period June, 2003 to May, 2004 and June, 2004 to May,
2005 by the RO are wrong.
The grading for the first ACR has been sought to be challenged
principally on the grounds that the petitioner had been remained on
temporary duties out of the Corps for a considerable period of time and
as such the Reviewing Officer and Superior Reviewing Officer had no
occasion to examine the working and efficiency of the petitioner
properly. The Reviewing Officer had hardly any interaction with the
petitioner so he could not form any opinion with regard to the ability and
performance of the petitioner. Secondly, the petitioner has been granted
low grading due to groupism among the Army Officers, which is
common plea in respect of both the CRs. These appear to be main points
raised in the petition.
On notice, the respondents have contested the claim of the
petitioner by filing reply raising preliminary points as also disputing the
claim of the petitioner, on merits. They have come out with the case that
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after the implementation of AVSC-1 recommendations, promotions up to
Lt Col are by time scale. All officers of a particular batch are considered
together with same cut off ACRs and inputs and on the basis of
individual profile of the officer and the comparative batch merit, they are
approved/not approved. Seniority in itself is no consideration before the
Selection Board for approval or non-approval. The assessment of the
officers in the ACRs was earlier regulated by Special Army Order 3/S/89
which has now been replaced by Army Order 45/2001/MS. The manner
of writing the ACR and its subsequent scrutiny by the MS Branch has
been delineated therein. For promotion to the rank of Colonel, ACRs is
one of the criterion, but not the sole criteria. In the case of petitioner,
entries in the ACRs are based on character, appreciation of the work and
conduct by the Reporting Officer who has reported that the applicant has
been assessed “Above Average” with box grading of „8‟ by the Initiating
Officer.
The petitioner having been assessed “Above Average” by
Reviewing Officer, the said assessment was not required to be
communicated to the petitioner. Disputing the claim of the petitioner on
merits, they have come out that the present petition is barred by time as
the petitioner is challenging the ACRs relating to the years 2003-2004
and 2004-2005 by filing the present petition filed in the year 2011.
Reliance has been placed on Army Order 45/2001/MS with a view to
show that the prescribed procedure in recording the impugned ACRs,
was followed.
The petitioner, besides impleading the Army Authorities has also
impleaded Brigadier G.S. Taragi (Retd.) and Brigadier M.R. Pattar
(Retd.) as Respondents No. 4 and 5 respectively in the petition. Brig.
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G.S. Taragi has expired and his name was allowed to be deleted from the
array of parties. Respondent No. 5 Brig. M.R. Pattar has filed his reply
statement which is on page Nos. 113 to 116 of the paper book. The said
officer has denied the petitioner‟s allegations made against him in the
petition and has stated that all reports initiated during his command
tenure were based on performance alone and no extraneous
considerations influenced the assessments.
The petitioner has cast
aspersions on the Reviewing Officer and undermined his integrity. The
petitioner was assessed objectively, on the basis of his demonstrated
performance. The allegations of subjectivity attributed by the petitioner
have been denied by the Respondent No. 5 strongly.
The respondents filed two sets of rejoinder, one against the reply
filed by Respondent No. 1 to 3 and another to the reply filed by
Respondent No. 5. The petitioner has reiterated his earlier stand and has
made reference to certain decisions on the question of bias etc. In the
another rejoinder-affidavit, the petitioner has come out that the
Respondent No. 5 had hardly any interaction with the petitioner and the
same is reinforced by the fact that Respondent No. 5 has addressed the
petitioner as Vaibhav.
The learned counsel for the petitioner while challenging the
impugned orders rejecting his statutory complaints, questions the legality
and validity of the two ACRs, one for the period June, 2003 to May 31,
2004 and another for June, 2004 to May 31, 2005, on the ground that so
far as first ACR is concerned, the officer had hardly any opportunity to
examine the working of the petitioner. The petitioner was posted on
completion of his tenure as Instructor in IMA, back to his Unit 2
Rajputana Rifles at Alwar and joined the Unit on 01.07.2003.
Col
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Sandeep Kala, was the Commanding Officer (CO). The petitioner was
out of the Unit for the following periods for one reason or the other:(i)
4.7.2003 to 30.8.2003
(ii)
31.8.2003 to 8.9.2003
(iii)
13.9.2003 to 10.10.2003
(iv)
14.10.2003 to 15.11.2003
(v)
7.12.2003 to 9.12.2003
(vi)
12.12.2003 to 29.12.2003
(vii) 8.4.2004 to 25/26.5.2004
The submission is that the petitioner performed his tasks and duties
assigned to him. He understands that the Initiating Officer Col Sandeep
Kala graded the petitioner which is „almost Outstanding‟ in the ACR for
the year 2003-2004. However, Reviewing Officer Brigadier G.S. Taragi,
the then Commander, 20 Infantry Brigade known for having very strict
rating tendency, down graded the petitioner in number of qualities in the
ACRs. The petitioner submits two things. Firstly, that he came to know
much later after returning from IMA that his grading was down graded
due to „groupism‟ and secondly that the Reviewing Officer had hardly
sufficient time to assess the qualities of the petitioner as the petitioner
remained out of the Unit for almost six months.
So far as the grading for the next year i.e. 2004-2005 is concerned,
he submits that during this period, the battalion was deployed in Assam.
The petitioner submits that his grading was down graded by the then
Reviewing Officer Brigadier M.R. Pattar Respondent No. 5 due to
„groupism‟.
In reply, the learned counsel for the respondents submits that the
present petition is barred by time.
He submits that first statutory
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complaint of the petitioner was rejected on 19.1.2009. The petitioner
should have challenged that order at all aggrieved. The second statutory
complaint was filed almost after 11 months which was rejected on
27.4.2011.
It was further submitted that the petitioner was not
empanelled as a fresh case or review case or final case in the months of
April, 2008, May, 2009 and December, 2009 respectively. The second
statutory complaint was filed after one year from the date of final nonempanelment of the petitioner counting the period of limitation from
December, 2009, the petition is barred by time. Filing of successive
statutory complaints will not extend the period of limitation. On merits,
the learned counsel for the respondents submits that the allegations made
by the petitioner regarding groupism or other personal allegations against
the “ROs” are wholly unfounded, uncalled for and is a matter of after
thought.
These allegations were not raised either in the first non-
statutory complaint nor in the first statutory complaint. Besides the fact
that the allegations made by the petitioner are false and concocted, the
petitioner has not been able to substantiate them by referring any
evidence in support of those allegations. Brigadier M.R. Pattar who has
retired from the Army has filed a counter-affidavit denying the
allegations of the petitioner which clinches the issue finally against the
petitioner.
Considered the respective submissions of the learned counsel for
the parties and perused the record. The respective arguments of the
learned counsel for the parties give rise to the following three points :-
1. Whether the present petition is barred by time as alleged by the
respondents ?
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2. Whether the ACR for the year 2003-2004 is liable to be
expunged on the grounds that :(a) The Reviewing Officer who was competent
authority, could not properly assess or evaluate the
performance of the petitioner, as he remained in
the Unit for a period little more than 03 months as
the petitioner remained out of Unit in other
activities and
(b) The allegation of „groupism‟ or bias raised by the
petitioner has any substance therein ?
3. Whether the ACR for the year 2004-2005 can be said to be bad
as it is outcome of groupism as alleged by the petitioner ?
We will take up these points for consideration in seriatim :-
Point No. 1 – Limitation:
Section 22(1)(a) of the Armed Forces Tribunal Act, 2007 provides
that Tribunal shall not admit an application unless the application is made
within six months from the date on which such final order has been
made. The present petition filed on 22.9.2011, is against two orders
dated 19.1.2009 and 27.4.2011.
It is not disputed that the petitioner‟s non-statutory complaint
challenging the ACRs impugned herein is dated 9.5.2008 which was
rejected on 14.8.2008. The petitioner has not questioned the said order in
the present petition.
Thereafter, he filed statutory complaint dated
20.10.2008 raising the same very dispute with regard to ACRs for the
years
2003-2004 and 2004-2005 which has been rejected by the
Government of India, Ministry of Defence vide order dated 19.1.2009
impugned in the present petition. The submission of the learned counsel
for the respondents is that the petitioner should have approached the
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Tribunal within six months from the date of receipt of the copy of the
order dated 19.1.2009, at least.
Therefore the filing of the present
petition, filed on 22.9.2011, is barred by time. Before examining the said
plea,
we
may
note
that
second
statutory
complaint
dated
22.12.2010/30.12.2010 was filed which has been dismissed vide order
dated 27.4.2011 is also impugned in the present petition. The submission
of the learned counsel for the petitioner is that the present petition has
been filed within a period of six months from the date of receipt of the
order dated 27.4.2011 hence the petition is within time.
He also
submitted that a fresh cause of action arose to the petitioner every time
when his empanelment for the grant of rank of Colonel was considered
and rejected. He justifies the filing of the second statutory complaint on
the basis of fresh facts which came to the knowledge of the petitioner
subsequently.
We have given careful consideration to the respective submissions
of the learned counsel for the parties and perused the record. At the out
set, it may be stated that the non-statutory complaint of the petitioner was
examined by the Chief of the Army Staff (In short COAS) against his
overall CR profile and relevant documents. After consideration of all
aspects of the complaint and viewing it against the redress sought by the
petitioner, the COAS has found that all ACRs in the reckonable profile
are corroborated/moderated, consistent objective and in consonance with
the overall profile. The officer was not empanelled for promotion to the
rank of Colonel on account of his overall profile, as assessed by No. 3
Selection Board and rejected it. The petitioner instead of challenging the
said order, filed statutory complaint which too has been dismissed by the
Central Government.
The learned counsel for the petitioner at this
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juncture rightly placed reliance upon a judgment of the Apex Court in
Union of India and another Vs S.S. Kothiyal and others, (1998) 8
SCC 682 wherein it has been laid down that after rejection of first
representation, there was no occasion for the petitioner to wait further for
challenging his non-promotion. The filing of successive representations
will not extend the period of limitation. The above is an acknowledged
legal position, which could not be possibly disputed by the petitioner.
The only argument which the petitioner‟s counsel had advanced is that
the second statutory complaint was filed as the petitioner had discovered
certain „new facts‟.
The learned counsel for the respondents placed before us a copy of
the policy dated 28.10.1991, authorizing the filing of second statutory
complaint which can be only on limited grounds. Its para 3 which deals
tenability of Second Statutory Complaints, reads as follows :“Tenability of Second Statutory Complaints
3.A second statutory complaint on the same subject is not
tenable under AA Sec 27. However, if there are substantial
fresh facts or circumstances which necessitate a second
statutory complaint, it may be entertained.
Whether a
second complaint has any substantial fresh facts to warrant
such re-examination will however, be decided by Army HQ,
after scrutinizing the earlier complaint.”
A reading of the aforesaid quoted para would show that a second
statutory complaint could be tenable if there are certain substantial facts
and circumstances which may necessitate a second statutory complaint
and not upto the ipse dixit of a complainant. Fresh facts should be of
substantial nature. A fact which existed earlier at the time of the first
complaint and ought to be in the knowledge of the individual in ordinary
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course of things, will not be fresh facts or circumstances. On scrutiny of
the second statutory complaint, a copy whereof has been filed as
Annexure A-11, would show that now the petitioner alleges that he has
come to know that there were differences between Col. Sandeep Kala and
Col. Rajiv Malhotra which resulted in down grading the petitioner in the
ACR. The relevant paragraphs from the second statutory complaint are
reproduced below :“(b) I have now come to know that there were
differences between Col Sandeep Kala and IC43304L, Col Rajiv Malhotra, the CO designate, IC48534 Col Akash Kaushik and IC-48095H Col PS
Herr then Company Commanders and one officer
Captain V Koranne. The differences were unknown
to me as I was away from the Unit on ERE posting.
Even after returning to the Unit I was mostly out on
temp duty for appearing in staff college exam/prestaff/Ex/Leave etc. The details of my absence from
the Unit/Bde is att as Appx-A. I was thus unaware of
the differences.
(c) I have now come to know that Col Sandeep Kala
had possibly given lukewarm grading in the ACRs
of the abovementioned officers, which was not
taken kindly by Brig GS Taragi, the then RO and
this had become a point of contention between the
IO and RO resulting in possibly serious
differences. At the same time, the RO having
seen my near „outstanding‟ ACR had also
possibly commented that I belong to the Cos
Group or words to that effect. As a result, the Cos
report, I understand was marginalized by the RO,
and I apprehend that this was the reason that he
might have severely down/moderated my report
for the period in question. These facts having
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come to my knowledge and notice very recently
which I could not have taken this in my earlier
complaint.”
No supporting material has been filed or referred therein.
A
reading of these paragraphs would show that there is no iota of truth in
the averments contained in these paragraphs. The petitioner himself is
not sure or convinced about the truthfulness of his allegations, made in
the second statutory complaint. All these allegations are petitioner‟s own
imagination and guarded one, as the petitioner himself is not prepared to
shoulder any responsibility either about their correctness or truthfulness.
Such type of allegations are not statement of fact and can not be relied
upon for any purpose. The petitioner very cleverly has not given either
the date or source of information, when and through whom he came to
know that there were differences between Col Sandeep Kala and Col
Rajiv Malhotra. Moreover the petitioner himself is not sure as is clear
from the language used in Para (c) that Col Sandeep Kala, was after the
petitioner. The allegations made in the aforesaid paragraphs are totally
unfounded, meritless and does not inspire any confidence, there being no
corroborating material.
It appears that undaunted by his failure in
obtaining a favourable order in the first non-statutory and then statutory
complaint, the petitioner has coined the theory of groupism among the
officers of the Unit without there being its any basis.
The Central
Government while rejecting the second statutory complaint has
specifically found that “there being no evidence of any bias or
subjectivity, none of the CRs merit any interference by the Central
Government”. This being so, the filing of the second statutory complaint
which too was filed with considerable delay, will not give a fresh cause
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of action to the petitioner. The present petition filed on 22.9.2011 is
barred by time in view of the Section 22 of the AFT Act having not been
filed within a period of six months from 19.1.2009. The point is decided
accordingly.
The matter was heard at length on merit. Therefore, we now
propose to consider the merit of the petition.
Point No. 2:
Two-fold arguments were advanced to challenge the CRs for the
period June, 2003 to May, 2004. The submission is that the petitioner
remained out of the Unit for temporary work for various periods and as
such the Reviewing Officer had no sufficient opportunity to evaluate the
work and conduct of the petitioner. This argument is attractive but on
deeper scrutiny, we do not find any merit therein. It was not disputed
that a Review Officer is competent to write CR of an individual provided
the Review Officer had an opportunity to examine the work and conduct
of an individual for more than 75 days. Undisputedly, the Reviewing
Officer had an occasion to examine the petitioner‟s work and conduct for
the above required duration. The respondents along with their reply
statement has annexed copy of the part of the Army Order 45/2001/MS
and submits that the petitioner was posted in his Unit at Alwar
(Rajasthan), a peace location. He was away in respect of temporary
duties for Division Basket Ball Championship, Operational Exercise
‘SANJAY’ and Watermanship Training at Mahajan Ranges besides
the availed leave etc. As per Appendix „D‟ to Army Order 45/2001/MS,
temporary duties means as follows:-
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“Temporary duties on training events and administrative
detailment
concerning
the
unit/formation
under
the
jurisdiction of command constitutes towards physical
service for the purpose of initiation/endorsement of CRs”
Para 39 of the above Army Order reads as follows:“39. RO as specifies in the channel of reporting, will be
entitled to endorse the CR under the following conditions:-
(a) xxx
xxx
xxx
(b) Present RO and the ratee have served together for a
minimum of 75 days concurrent during period of service
under IO. This period is not physical service i.e. temporary
absence of either the ratee or the RO is not to be discounted
for entitlement of endorsement.”
Thus the argument of the petitioner that while he was away from
the Unit, the period for which he was away from Unit may be treated as
absence from his Unit, is not correct.
Such period be treated as
temporary duties and in view of the provisions as contained in the Army
Order defining temporary duties, the duties referred to by the petitioner
constitute part of the demonstrated performance and was rightly assessed
and could be assessed by the Reporting Officer. If the argument of the
petitioner‟s counsel is accepted on its face value, the same would apply
with equal force with regard to the grading given by the Initiating Officer
also. Thus the argument of the petitioner‟s counsel lacks logic and
cannot be accepted. When it suits to the petitioner to say that Initiating
Officer assessed the petitioner “near Outstanding” in the ACR, why the
Reviewing Officer could not assess for the same period, is not
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understandable.
Simply because the RO has assessed the petitioner
“Above Average” with box grading of „8‟ which does not suit to the
petitioner, the petitioner took some what contradictory stand. If the law
permits as we have found in the Army Order 45/2001/MS, no fault can
possibly be found on this account with regard to the assessment done by
the Reviewing Officer for the period June, 2003 to May, 2004.
The second limb of the argument, the alleged groupism in the
officers which according to the petitioner is responsible for his low
grading, now needs consideration.
Before adverting to the factual aspect of the case with regard to
allegations of bias and groupism etc., we may notice briefly the certain
other relevant aspects with regard to promotion to the rank of Colonel in
the Indian Army.
The Army has a Pyramidical Rank Structure, number of vacancies
in higher rank is limited. From the broad-based of pyramid, only those
officers whose record of service is better, are selected to fill up the
vacancies available in the higher rank as per the promotion policy which
was applicable till 15.12.2004, promotions upto the rank of Lieutenant
Colonel are by Time Scale. Promotions from Lieutenant Colonel and
above are decided through Selection Boards on comparative merit of the
individuals of the same batch.
The petitioner was promoted to the rank of Lt Col on completion
of 13 years of service on meeting mandatory qualifications. He has not
been empanelled to the rank of Colonel on account of his overall profile
in comparison to his co-batch mates. The petitioner was considered for
promotion to the rank of Colonel by No. 3 Selection Board as per the
details given below :-
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Consideration
Year of
Consideration
Grading Remarks
Fresh
Apr 08
„Z‟ Not
Empanelled
Value
Judgment
First Review
May 09
„Z‟ Not
Empanelled
Quantified
System of
Selection
Final Review
Dec 09
„Z‟ Not
Empanelled
Quantified
System of
Selection
There is no allegation of bias etc. against the Selection Board No.
3. The petitioner assumes that due to his grading in the ACR, he has not
been empanelled.
The respondents have come out with the case that petitioner has
been assessed “Above Average” with box grading of „8‟ by the Initiating
Officer. He has been assessed “Above Average” with complimentary
pen-picture and positive recommendations for promotions.
The
assessment does not reflect any subjectivity or bias. Performance of the
petitioner in operational area and his capabilities has been positively
commented upon by the Initiating Officer including the Reviewing
Officer in the pen-picture.
The rank of Colonel is Selection Post. The Selection Board while
considering the suitability of the officers for promotion to the post of
higher rank, takes into consideration several factors and Appraisal Report
of the Controlling Officer is not the sole factor.
The service record containing CRs for the reporting year 20032004 was produced for our perusal. We find that the Initiating Officer
has given 9 marks in respect of various personal qualities of the
petitioner except with regard to ingenuity and initiative the skill of
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devising means and degree of resourcefulness to solve unforeseen
contingencies and Communication Skills. Against them, he has given
“8” marks. The Initiating Officer i.e. IO has given 8 marks in penpicture. The Reviewing Officer has written that the report of I.O. is
„liberal‟ but he has also given 8 marks in pen-picture. There is nothing
adverse reporting against the petitioner either by the Initiating Officer or
by the Reviewing Officer. The petitioner contends that the Reviewing
Officer should have endorsed the marks given by the Initiating Officer.
As noted herein above, there is a slight variation in the assessments done
by the Initiating Officer and Reviewing Officer, which is quite natural.
Nine marks denote „Outstanding‟ while 8 marks denote „Above
Average‟.
There is further endorsement that SRO does not wish to
endorse the CR.
To rule out any subjectivity in assessing the performance of an
Army individual, sufficient checks and balances have been provided for
in the process of recording ACR. The officer who initiates the recording
of annual assessment is called Initiating Officer and he awards marks out
of 9. Thereafter the assessment made by the Initiating Officer is assessed
by another officer called as Review Officer. The Review Officer taking
into consideration the overall performance awards the marks. But while
doing so, he also critically examines the remarks of the Initiating Officer.
Then the file goes to third officer known as Special Review Officer
(SRO). This procedure ensures minimizing the subjective assessment of
an individual by an officer. Then the file goes to M.S. Branch who
examines the assessments made by three different reporting officers i.e.
Initiating Officer, Reviewing Officer and Superior Reviewing Officer.
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The M.S. Branch scrutinises all the CRs. The manner of scrutiny by
M.S. Branch is as under:“Scrutiny of CRs at MS Branch:
135.
All CRs on receipt at MS Branch will be subjected to
scrutiny during the internal assessment as per relevant SOPs
of the MS Branch for correct entitlement, channels of
reporting, completion of CR forms in all respects and
objectivity in reporting.
136. CRs with technical defects may be placed under
observation to seek clarification of the ratee and/or of the
reporting officers.
In case, no satisfactory replies are
forthcoming from the concerned officers, such technically
invalid CRs may be set aside as per the prescribed
procedure. In such a situation, a re-initiation may be sought
only when considered essential by the MS Branch.
137. The CR when checked for objectivity in reporting will
also be analysed for consistency of the performance of the
ratee. Depending upon variation from past profile of the
ratee against parameters defined in SOP of MS Branch, the
CR may be accepted as it is, or with enfacement for
Inflated/Deflated report, to be reflected on the MDS for
SBs/Panels. However, CR identified as grossly inconsistent
or with inflationary/deflationary/subjective reporting, after
due examination at appropriate level, may be expunged by
the COAS. Expunctions approved by the COAS will be
irrevocable. No reinitiation or review is permissible.
138.
Setting aside of CR on technical grounds (other than
non completion of 90 days physical service) or expunction
of entire assessment of first level reporting officer would not
prejudice the validity of assessment of higher reporting
officers
provided
provisions
endorsement have been met.”
as
applicable to
their
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As has been noticed herein above, both the Initiating Officer and
the Reviewing Officer have given 8 marks in pen-picture to the
petitioner.
However, there is slight variation/difference in the two
assessments made by them which is quite natural and is bound to be
there, in cases of application of mind in particular. The difference in
assessment depends upon the assessment by the officers at various levels
(Initiating Officer, Reviewing Officer, Superior Reviewing Officer). By
no stretch of imagination, it can be said that it is due to some bias or
subjectivity of an officer. If the argument of the petitioner‟s counsel is
accepted, it would mean that the Reviewing Officer and Superior
Reviewing Officer are required to sign on the dotted lines, meaning
thereby, without application of their mind. If it is so accepted, it will
reduce the assessments by three officers to one-man show and would
have far reaching consequences especially in respect of such an officer
who has been assessed towards lower side though wrongly by the
Initiating Officer. The future of such officer shall be ruined and will be
in the hand of the Initiating Officer.
To obviate any such subjectivity,
involvement by more than one officer has been provided for.
The record shows that the first non-statutory complaint was
examined by the COAS in the light of the service record of the petitioner
and no substance was found therein. Similarly two statutory complaints
were examined at the end of the Central Government and the grievances
raised by the petitioner were found meritless. Now the prayer of the
petitioner that by way of judicial intervention, the assessment made by
the Initiating Officer should be endorsed and assessment made by the
Reviewing Officer should be set aside, thus, cannot be granted. The best
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persons to make the assessment of an individual‟s capability is the person
under whom the individual has worked and such officer/officers had an
occasion to watch the performance of the individual.
The scope of
judicial intervention is not at all called for, as held by Apex Court,
referred in the later part of the judgment.
Now we take up the second limb of the argument that the
assessment made by the Reviewing Officer is biased one. In the earlier
part of the judgment, it has been already observed that the plea of bias
has been put forward by the petitioner for the first time in the month of
December, 2010 while preferring the second statutory complaint in
respect of the CR for the year 2003-2004 i.e. after six years, on failure of
other grounds of attack. In the present petition, the petitioner has come
out with the case that he came to know much later after returning from
I.M.A. that there were differences between Colonel Sandeep Kala and
Colonel Rajiv Malhotra. The relevant paragraph is (p) on page 16 of the
paper book.
For the sake of convenience, the relevant portion is
reproduced below :“(p) That the applicant came to know much later after
returning from IMA that there were differences between Col
Sandeep Kala and IC-43304L Col Rajiv Malhotra, the CO
designate, IC-48534 Col Akash Kaushik, IC-48095H Col PS
Herr and one officer Captain V Koranne. These differences
were unknown to the applicant. The applicant has reason to
belief that Col Sandeep Kala had possibly given lukewarm
grading in the ACRs of the abovementioned officers, which
was not taken kindly by Brig GS Taragi, and this had
become a point of contention between the IO and RO
resulting in possibly serious differences.”
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The aforesaid paragraph indicates that the petitioner came to know
about the groupism some time after returning from IMA. The petitioner
returned from the IMA on 1.7.2003. The point which we wish to bring
home is that the petitioner has given different version with regard to the
time when he came to know about the alleged groupism in the officers.
According to the averments in the petition, the petitioner came to know
about the groupism sometimes in the year 2003 or 2004. While in the
second statutory complaint, without disclosing the date of any such
knowledge, he has very cleverly stated that “he now comes” to know i.e.
in the year 2010 when the second statutory complaint was filed. The
averments as made in the statutory complaint dealing with bias, have
already been reproduced in the earlier part of the judgment. Besides the
above, the petitioner has not disclosed the source of this knowledge.
This indicates that the allegations are incorrect and not to be acted on.
There is no iota of evidence with regard to allegation of bias. We are of
the firm view that the allegation of bias sought to be raised in the petition
against Brigadier G.S. Taragi who is no more in this world, is after
thought, has been made with an oblique motive. It is least expected from
the persons like the petitioner holding such high rank in the Army.
Viewed as above, we do not think it necessary to discuss in detail
the relied upon judgment G.N. Nayak Vs Goa University and others,
(2002) 2 SCC 290 by the petitioner on the subject of bias. It was decided
on the facts of that case. Strong reliance was placed on an observation
made therein that bias, being a state of mind, sometimes is impossible to
determine. Therefore, the Courts have evolved the principle that it is
sufficient for a litigant to successfully impugn an action by establishing a
reasonable possibility of bias or proving circumstances from which the
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operation of influences affecting a fair assessment of the merits of the
case can be inferred. In the factual context of the case on hand, it is
concluded that the petitioner has not been able to show even prima facie
any truthfulness in the allegation of bias set up by him. For the same
reasons, Ranjit Thakur Vs Union of India, AIR 1987 SC 2386, State
of U.P. Vs Yamuna Shanker Misra (1997) Vol. IV SCC 7 are
distinguishable on facts.
Before proceeding further, we may note that while considering an
officer for promotion to a selection rank in respect of Army, the Selection
Board takes into consideration a number of factors such as war/operation,
battle awards, professional courses, the ACRs, appointments held by the
officer including criteria command/staff appointments, honours and
awards, disciplinary background and punishments and not only the ACRs
or one or few ACRs etc. Selection/rejection is based upon overall profile
of the officer and comparative merit within the batch as evaluated by the
Selection Board.
The learned counsel for the respondents has placed strong reliance
on Surinder Shukla Vs Union of India and others, (2008) 2 SCC 649.
In this case, the Supreme Court after perusing the service record of the 3
officers, in para 9 of the judgment observed that the appellant therein
appeared to be better than those of Col. A.P.S. Panwar and Col. V.K.
Sinha. It was a case for consideration of Colonel which was a selection
grade rank. The Apex Court has observed that a large number of factors
are required to be taken into consideration for promotion viz:
(i)
Annual confidential reports profile of the officer in the
relevant ranks.
(ii)
War reports.
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(iii)
Battle awards and honours earned by the officer during his
service.
(iv)
Professional courses done by the officer, his performance
during the course and grading obtained therein.
(v)
Special achievements and weaknesses.
(vi)
Appointments held by the officer including criteria
command/staff appointments.
(vii) Disciplinary background and punishments.
(viii) Employability
and
potential
including
consistent
recommendations for promotion to the next higher rank.
Thereafter in the next para, the Supreme Court has observed as
follows :“Considering the comparative batch merit, if the
Selection Board did not recommend the name of the
appellant for promotion to the rank of Colonel which
appears to have been approved by the Chief of the
Army Staff, it is not for the court exercising power
of judicial review to enter into the merit of the
decision. The Selection Board was constituted by
senior officers presided over by an officer of the rank
of Lt. General. It has been contended before us that
the Selection Board was not even aware of the
identity of the candidates considered by them because
only in the member data sheet all the information of
the candidates required to be considered by the
Selection Board are stated, but the identity of the
officers is not disclosed. The appellant moreover
did not allege any mala fide against the members
of the Selection Board.
What impelled the
Selection Board not to recommend his case but the
names of other two officers is not known.”
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Ultimately the appeal was dismissed by the Supreme Court. In the
above case, the Apex Court had an occasion to consider the
recommendations of the Selection Board and its procedure.
The
Selection Board consists of senior officers presided over of the rank of
Lieutenant General and none of the members of the Selection Board was
even aware about the identity of the candidates considered by them. The
Apex Court has held that there being no allegation of mala fide against
the members of Selection Board, no fault can be found if the name of the
appellant is not recommended for empanelment.
We find that the
observations of the Apex Court made in Paragraphs 9, 10 and 11 are fully
applicable to the facts of the present case. The post of Colonel being
Selection Post and suitability of the candidate for the said post depends
on various factors and the CRs is one of the criteria but not the sole
criteria.
In nut-shell, we do not find any merit in the contention of the
petitioner that his CR is the outcome of the bias or he was wrongly
excluded for promotion to the rank of Colonel. The grievance of the
petitioner has been examined in its totality by the COAS and the Central
Government as well. Any judicial interference in this factual scenario is
wholly uncalled for.
Point No. 3:
This issue relates to the ACR of the very next year. Here again,
the petitioner has set up his old story that he is victim of groupism among
the officers in the Army. The allegations are that the petitioner came to
know that Brigadier M.R. Pattar had commented to the petitioner‟s the
then Commanding Officer that the petitioner was being patronized by
Brigadier A.K. Ram of Rajputana Rifles and the then Commander, 311
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Infantry Brigade and that Brigadier M.R. Pattar did not like it. The
petitioner feels that the assessment by the Reviewing Officer may be
lacking objectivity because of the groupism with regard to which the
facts have been mentioned in Para 3(b) and Para 3 (c) of the statutory
complaint. On a careful consideration of the matter, we find that the
petitioner has unnecessarily made unfounded and wild allegations against
his superior officers. It is his own imagination of the petitioner that the
assessment by the RO might be lacking objectivity.
It is important to mention here that Brigadier M.R. Pattar has been
impleaded as Respondent No. 5 who has filed his reply controverting the
allegations against him in the petition. He has denied the allegation that
he ever commented to the Commanding Officer about the petitioner was
being patronized by Brigadier A.K. Ram. He has also denied that any
such subjectivity towards the petitioner and has stated that he assessed
the petitioner on the basis of his demonstrated performance. For the sake
of convenience, paragraphs 3 and 4 of the reply filed by Brig.(Retd.)
M.R. Pattar are reproduced below:“3. That in reply to contents of Para 4(s) to 4(u), it is
submitted that I was the Commander, 25 Sector Assam
Rifles, 2 Rajputana Rifles was one of the Infantry Battalion
deployed under 25 Sector Assam Rifles. In all Counter
Insurgency (CI) operations, deployment is dynamic in nature
and cross attachment of subunits/units is a norm. In the
instant case, deployment of 2 RAJ RIF was very accessible
and the interaction was intimate enough to monitor the
performance of Company Commanders. The Applicant has,
in his run away imagination, linked his temporary duties
with RO‟s assessment.
It is submitted that all report
initiated during my Command tenure were based on
performance alone and no extraneous considerations
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influenced the assessments. The Applicant has in fact cast
aspersions on the RO and undermined his integrity. I had
assessed the Applicant objectively, on the basis of his
demonstrated performance. At this stage, I do not even recollect that there was ever any issue, whatsoever, about the
Applicant being detailed on Temporary Duties, as alleged.
Detailment of junior officer in the rank of Major on
temporary duty for performance of official tasks cannot be
reason for a Brigade Commander to develop bias or
subjectivity against the officer. I, therefore, strongly deny
the reasons of subjectivity alleged by the Applicant in the
Paras under reply. With regard to letters of Appreciation
annexed as Annexures A-4 and A-5, it is submitted that the
contention of the Applicant is misleading. All the letters,
except the letter dated 04 Jan 2005, are beyond the period
covered by the report. The letter dated 04 Jan 05 is written
by his CO, the Initiating Officer.
I had assessed the
Applicant as per his performance and my assessment was
supported by the pen picture endorsed by me.
4. That contentions of the Applicant in Para 4(v) are
strongly denied.
It is specifically denied that I had
commented to the Commanding Officer about the Applicant
was being patronised by Brig AK Ram. The contention of
the Applicant is a figment of imagination, unsubstantiated,
an afterthought and hence, strongly denied. It is reiterated
that neither, I recollect nor there was any issue of any officer
being frequently detailed on temporary duties. Therefore,
the reason for subjectivity attributed by the Applicant are
strongly denied.
It is not understood on what basis the
Applicant is alleging that he was understood to have been
patronised by Brig AK Ram. Similarly, the contention of
the Applicant about subjectivity on my part on account of
death of one Mr Mosang being his own perception, hearsay,
and false is strongly denied.
It is reiterated that I had
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OA 1447 of 2011
assessed the applicant on the basis of his performance
during the period covered by the report.
All Company
Operated Bases (COB) Commanders and officers reported
upon had met me on more than one occasion.
I had
adequate opportunities to interact with them during
operational, training and administration conferences where
the Company Commanders participated. Various lectures,
presentations were also planned despite the operational
commitments to facilitate interaction and peer learning. My
assessment of applicant was objective and based on his
demonstrated performance.”
The petitioner has filed rejoinder/affidavit titled as “Rejoinder
Affidavit to the reply filed by Respondent No. 5” which is at page 120 of
the paper book. In the rejoinder/affidavit, the petitioner has not denied
the contents of paras 1 to 3 of the application. The rejoinder/affidavit is
quite confusing, may be purposely.
Therein, instead of giving the
parawise reply of the reply submitted by Brig. (Retd.) M.R. Pattar, the
petitioner has given reply with reference to paras of the application which
is quite un-understandable. We could not find any specific denial of the
contents
of
paragraphs
3
and
4
reproduced
above,
in
the
rejoinder/affidavit of the petitioner. On the contrary, the petitioner has
come out with some new facts not raised by him at any stage earlier.
There being no denial in specific terms of the contents of Affidavit
of Brig. (Retd.) M.R. Pattar, we see no reason not to accept the affidavit
of M.R. Pattar as correct. Even otherwise also, we find no substance in
the allegations raised by the petitioner with regard to groupism being
vague and general. Such kind of allegations can be made by any person
at any point of time at one‟s sweet will. The question remains that the
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petitioner did not raise his finger on earlier occasions when he had an
ample opportunity; when he filed non-statutory complaint, thereafter first
statutory complaint and thereafter second statutory complaint.
In
addition to above, the allegation of groupism raised by the petitioner does
not inspire any confidence and is liable to be rejected and is hereby
rejected. We are of the opinion that the petitioner‟s pleas are rather
assumptive and lacking any material substance.
The petitioner has
utterly failed to prove bias on the part of RO, if any, even prima facie. It
is of great importance that the RO for the assessment year in question i.e.
2004-2005 was a different officer than the one who was in the
immediately preceding year. It also indicates whenever the petitioner
finds himself in difficulty, he blames the Review Officer, which is the
easiest one.
The factual aspect has been discussed in detail as above.
We may now consider few precedents of the Apex Court with
regard to the scope of judicial interference in such matters, in the case of
Army personnel in particular, when the promotional post is by way of
Selection post.
In Major General IPA Dewan Vs Union of India, (1995) 3 SCC
383, the proceedings of Selection Board were under challenge by the
appellant therein on number of grounds including that adverse remarks in
his service dossier were taken into consideration wrongly. Dealing with
the said plea, the Supreme Court observed as follows :“Assuming that the said remarks were indeed taken into
consideration, the non-selection of the appellant cannot be
faulted. Firstly, it cannot be said that the said remarks
alone were the cause of non-selection; the non-selection
of appellant appears to be based on an over-all
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OA 1447 of 2011
assessment. Secondly, the statutory complaint preferred by
the appellant against the said remarks have been rejected by
the Central Government, no doubt subsequent to the said
consideration. As stated above, the situation may have been
different had the said complaint been upheld partly or
wholly. In the circumstances, the Court cannot sit as an
appellate authority over the acts and proceedings of the
Selection Board.”
In Air Vice Marshal S.L. Chhabra Vs Union of India and
another, (1993) 4 SCC Suppl. 441, the Apex Court has laid down that
“It is well known that a Selection Board, while considering the suitability
of an officer for promotion to higher post or rank, takes into
consideration several factors. It is not solely based on the Appraisal
Report of the controlling officer. In this case, the effect of expunging the
adverse remarks on the selection process was considered. While doing
so, the Supreme Court has observed as follows :“According to us, neither the High Court nor this Court can
moderate, the appraisal and the grading of the appellant for a
particular year. While exercising the power of judicial
review, a Court shall not venture to assess and appraise
the merit or the grading of an officer.”
Explaining the law in Union of India and others Vs Lt Gen
Rajendra Singh Kadyan decided on 28.7.2000, the Supreme Court has
held as follows :“The position in law is that appraisal report or an annual
confidential report is not the sole factor to be considered
by the selection authority but one of the matters to be
taken note of by such authority. We may advert to two
decisions of this Court in this regard, namely, AVM S.L.
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OA 1447 of 2011
Chhabra v. Union of India, 1993(Supp.) 4, SCC 441 and
Union of India Vs Samar Singh, 1996(10) SCC 555”.
xxx
xxx
xxx
“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 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 has nexus to the facts on record, the
same cannot be attacked on merits.
Judicial review is
permissible only to the extent of finding whether 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.”
In view of above, we do not think it necessary to discuss in detail
the judgments of the Armed Forces Tribunal and High Court relied upon
by the learned counsel for the petitioner. In view of the fact that so far as
Army personnel are concerned, the law has been very well delineated by
the Apex Court in the aforesaid judgments which is law of the land. The
judgments given by any Court or Authority below the Apex Court should
be read and understood in the light of the Apex Court decisions dealing
with Army personnel. The Apex Court has observed in Union of India
Vs Harjeet Singh Sandhu, (2001) 5 SCC 593 in para 17 that having
regard to the arduous nature of duties, the task Army people have to
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perform in emergent situations and unknown lands and unknown
situations wherein they have to function, demand an exceptionally high
standard of behaviour and discipline compared to their counterpart in
civil services. That is why the military people command the respect of
the masses. Such factors taken together demand the military service
being treated as a class apart and a different system of justice – military
justice –being devised for them.
In Lt Colonel K.D. Gupta Vs Union of India and others, AIR
1989 SC 1993, the Apex Court has ruled as follows:“The defence services have their own peculiarities and special
requirements.
The considerations which apply to other
Government Servants in the matter of promotion cannot as a
matter of course be applied to defence personnel of the petitioner‟s
category and rank. Requisite experience, consequent exposer and
appropriate review are indispensable for according promotion and
the petitioner, therefore cannot be given promotions as claimed by
him on the basis of that his batchmates have earned such
promotions. Individual capacity and special qualities on the basis
of assessment have to be found but in the case of the petitioner
these are not available.”
We have no doubt that the report of two different Reviewing
Officers is unbiased one and their objectivity is beyond pale of any
doubt.
Viewed as above, we do not find any merit in the petition. The
same is hereby dismissed, but no order to costs.
The original record is being handed over to the learned counsel for
the respondents.
(Justice Prakash Krishna)
(Lt Gen (Retd) DS Sidhu)
30.05.2014
„pl‟
Whether the judgment for reference to be put up on website – Yes/No