FORM NO - 21
(SeeRule 102(l )
ARMED FORCESTRIBUNAL. REGIONAL BENCH, KOLKATA
APPLICATION NO: O.A.98 OF 2012
THIS
CORAM :
19TH
DAY OF AUGTJST.2Ol3
Hon'ble Mr. Justice Raghunath Ray, Member (Judicial)
Hon'ble Lt. Gen. K.P.D.Samanta,Member (Administrative)
l C 4 4 0 0 4 WC o l o n e lS u d e e pK u m a r M u k h e r fe e .
S o no f S h r i S . K . M u k h e r j e e .
Chief
Presentlypostedas ACE at Headquarters
E n g i n e e rA & N Z o n e . P o r t B l a i r , A & N I s l a n d s
Versusthe
I . U n i o no f I n d i at h r o u g h
Secretary,
Govt.of India,
SouthBlock,
Ministryof Defence,
N e wD e l h i -l l0 0 l l .
2. TheChiefof theArmy Staf{,Army FIQ.
of Ministryof Def'ence
Integrated
F{eadquarters
(Army)Def-ence
LlQ,PO:New Delhi-I l0 0l I
of
Headquarters
Integrated
3. MilitarySecretary.
Ministryof Defbnce(Army),,DefenceHQ.
P O :N e wD e l h i - l l 0 l l
Respondents
Fortheapplicant:
M r . R a j i v M a n g a l i k ,A d v o c a t e
For the respondents:Mr. Mintu Kumar Goswami,Advocate
2
O R D E R
Per Hon'bleLt. Gen.K. P. D. Samanta,Member(A) :
who is a servingColonelin the IndianArmy. hasfiledthisOriginal
Theapplicant,
fbr promotionto the rank of
Applicationbeing aggrievedby his non-empanelment
is the outcomeof
Brigadier.Accordingto the applicant,his non-empanelment
2006and
2005to February
ACRs for the reportingperiodsSeptember
adverse/inadequate
of his serviceprofilein his
February2006to August2006,as alsodue to non-updating
of
paramount
cardand in the MemberDataSheet(MDS),whichareseenby the members
thepromotionboards.
2.
T h e a p p l i c a n t . i o i n e dt h e I n d i a n M i l i t a r y A c a d e m y ( l M A ) a s t e c h n i c a lg r a d u a t . e
with ante-date,d
on 11.6.1986
in the IndianArmy as Lieutenant
andwas commissioned
Accordingto tl're
He was allottedto the Corpsof Engineers.
seniorityfiom 14.6.1984.
in
duringthe courseof his serviceandparticipated
he did variousothercourses
applicant.
V r j a y ' , ' O p O r c h i d ' , ' O pP a r a k r a mH' .l e
v a r i o u so p e r a t i o nssu c ha s ' O p R a k s h a k ' , ' O p
was also awarded various commendationcards by the GOC-ln-Cs of different
which carrymarksfor promotion.F{ewas alsoawardedthe "HtrrkiratSing;h
Commands
Gold Medal" in 1998,which is awardedto the CO of the bestengineerregimentor
service,he was alsodeputedas
of his commendable
of that year.Because
organization
durirrg
Officerof 42 StrategicTask lrorce.r,vhichis a very specialFrorce,
Commanding
the year 2003. He was promotedto the rank of Coloneland postedaI Ambala as
(CWE) on l6-2-2004.While postedas such,he perfbrmed
WorksE,ngineer
Commander
rescueoperationsand damagecontrolwork during the Cycloneand Flashfloods in
he took manyother
Ambala.Accordingto the applicant,
August2004rvhichdevastated
J
maiorstepsto improvethe functioning
of CWE Officeandfunctioning
of MIIS resulting
in hugesavingsin extraexpenditure
of theGovernment.
3.
1-heapplicantwasassessed
for his perfbrmance
duringhis tenureas CWE andtl"re
lastreportof the applicantwas for the periodl" September
2005to l4tnFebruary200t5,
which was initiatedby the InitiatingOfficer (lO), who was also the First Technical
Officer (FTO); he in this case was a civilian officer. Therefbre,the applicanthas
contented
that beinga civilianIO, he was not requiredto endorsethe remarksat paral0
of the saidACR, because
the civilianIO is not in a positionto knowthe attributes
of para
10. which is specificallyrelatedto combatrelatedattributesspecificto the Army. The
civilianIO and FTO gradedthe applicant
in a casualandroutinemanner.whichdid not
with the penpicturein respectof the applicantandsomeof the remarkswere
corroborate
with the reportof the RO and SRO.The IO forwardedthe ACR of tl're
alsoinconsistent
in the channelof reportingto the civilianofficersof the MES because
of his
applicant
lackof knowledgein the Army's functioningandchannelof reportingo1'armyofficers.
The applicanthas also statedthat he had no interactionwith the Higher Technical
his appraisal
totally
reportingOfficer(HTO) duringthe saidperiodandthe HTO arvarded
guidedby whatthe FTO hadawardedand in confbrmitywith the reportof the saidFTO.
with
mind was appliedby the tlTO sincehe had no personalinteraction
No independent
It is also allegedthat the then
him. Therefbrethe I-ITO'sreportwould lack ob-iectivity.
in his
stateof mind dueof someincidents
H'fO. Mai GenA.K. Bedi was in a disturbed
by him, did not getanypromotion
familyandall officers,who wereassessed
4.
the applicantwas postedas Colonel GeneralStaf{'(Col G.S.)
Subsequently,
The saidCorpshas
for trainingand air effortsof HQ 3 Corpson 25-3-2006.
responsible
4
for
for useby the GOC, Formationand SectorCommanders
of helicopters
requirements
befbrehis joining the saidCorpsthere
Accordingto the applicant,
purposes.
operational
safetynorms
stringent
Dueto suchmishaps,
mishaps.
of helicopter
wasmanyincidents
for providingsortieswererejecte:d
wereadoptedby the Army HQ andvery oftenrequests
by the HQ EasternCommand.The applicantsubmitsthat as Col GS he was responsible
for suchsortiesfor ChiefOf Staff(COS)andthe GeneralOfficr:r
for makingarrangement
suchrequests
(GOC) of the Corps,but despitehis bestefforts.sometimes
Commanding
this may have been viewedby the said
were not acceptedby the higherauthorities;
andwouldhavefbundmentionin hisACRs.
ashis deficiency
authorities
5.
The applicantsubmitsthat eventhoughhe was medicallyfit and in soundhealth
2006to August2006the GOC as SRO
in SHAPE,I,in his ACR for the periodFebruary
was weak,
thatthe applicant
a remarkin the pen pictureas'rotund'meaning
endorsed
it was clarifiedby the MS Branchvide their letterdated22-5eventhoughsubsequently
not taken
2007thatthiswasnot a weakremark.Althoughthe saidremarkwastechnically
the saidremarkswas
remark.but accordingto the applicantin all eventualities
as r,veak
by the SRO lvhi,;h
as an aclverseone and affbctedobiectiveassessment
considered
kris
Boardwhile considering
in the No.2 Selection
wouldhavea repercussion
ultimately
for promotionto Brigadier'
casefor empanelment
6.
'fhe
fJoardheldin
by the saidNo.2 Selection
was initiallyconsidered
applicant
to him on 9-1-2010.Ile
as communicated
2010but he was not empanelled
September
as first reviewcasein April 2011andon this occasionalsohe w'as
wasagainconsidered
complainton 7-l-2011against
a non-statutory
The applicantsubmitted
not empanelled.
(Annexure.{6), but the samewas rejectedvide order dated7-4his non empanelment
5
complainton 2-9-2011
the applicantf-rleda statutory
20ll (AnnexAl). Subsequently,
(AnnexureA7) which was also rejectedon 8-6-2011(AnnerureAl). The applicant
on l5-2-2011(AnnexureA8) along with a Posting
submitteda furtherrepresentation
SelfAnalysis(PPSAform) whereinthe applicantexplainedthatthereweremanyentrir:s
his serviceprofile
qualifications,
with respectto his educational
which were incomplete
areaas also the awardsthat he receivedin recognitionof his
in field and operational
in
and qualifications
and sincereservice.Non inclusionof suchachievements
dedicated
the applicantsrecordbeing maintainedby the Military Secretary(MS) branchwould
definitelyhave had some effect on the promotionboard speciallyupon the boar^d
3lAs perpolicyletterdated
their'valuejudgment'marks.
whiletheyawarded
members
12-2008somemarksfor "valuejudgement"in the promotionboards,wereto be awarded
datasheetin respectof the applicant,
personal
by boardmembers.In view of incomplete
As a resultof the
havefullyjudgedtheapplicant.
Boardcouldnot possibly
thePromotion
in a highly competitivemerit environment
ibid he could not perhapsget empanelled
are rejectedfor being in low merit by decimals.The applicanthas
wherecandidates
thathe was intimatedby the letterdatedl4-11-2011(AnnexureAl0) thatiln
submitted
exerciseto updatecertaindatahadbeenmadeand forwardedto MS Branchfor necessary'
thisclearlyprovesthathis full andcompletedatawere
action.Accordingto the applicant,
the applicanthasprayed
not placedbeforethe selectionboard.Makingsuchaverments
fbr followinerelief-s:
To quashand set asidethe reportsof the IO and FTO and HTO fiom the
a)
ACR coveringthe period09/05ro 02106;and
To quashand set asidethe reportsof the RO and SRO from the ACR
b)
coveringthe period 02106to 08/06and
6
To quashand set asidethe resultof the No.2 SelectionBoardqua the
c)
board
2010andApril 2011andarryothersubsequent
heldin September
applicant
of thisOA.
heldduringthependency
in
to updatethe completeprofileof the applicant
l-o directthe respondents
d)
board.
the recordsto be placedbeforethe selection
To quashand set asidethe orderdated07 Apr 20ll and 08 Jun 2012
e)
of the applicant,
complaintrespectively
andstatutory
rejectingthe non-statutory
the petitionerfbr promotionto the
to reconsider
l-o directthe respondents
f)
as a fresh candidatewith thLe
Board
post of BrigadierthroughNo.2 selection
profileand
changed
g)
7.
To award exemplary costs in f-avourof the applicant.
The respondentshave contestedthe application by filing a reply affidavit i n
which, apart fiom dealing with merit of the case. they have also taken the point o f
l i mi t a t i o n .
8.
'['he
respondentshave statedthat the applicantwas commissionedin the Army on
l6-6-1986 under Technical GraduateE,ntrySchemeand was granted two years'antr:-
datedseniorityfiom l4-6-1984.It is also statedthat the applicantwas approvedto the
for his promotionto the rankof Colonel
first selectrankof Lt Col in his turn.Thereafter
by a No3 SelectionBoard,he was initiallynot approvedas a fiesh caseof 1984batch.
complaint,he was put througha
However,afterobtainingreliefthrougha non-statutory
specialreviewboardin Sept2003and was approved.It is statedthat the applicantwas
that
postedin Ambalaas CWE with effectfiom l6-2-2004.ltisstatedby the respondents
whateverwork was done by the applicantat Ambala, it was a team effort and the
reports
creditof the same.He earnedfbur confidential
couldnot claimpersonal
applicant
fbr the period from February2004to August 2004, September2004 to January200t5.
of
2005to February 2006.The performance
February2005to August2005,September
7
CRs and h,:
the applicantduringtheseperiodshad beenduly reflectedin the respective
by diff'erentreportingofficers.It is
as "above average"/ "outstanding"
was assessed
that the InterimConfidentialReport(lCR) fbr the periorl
submittedby the respondents
andan
to February2006was initiatedby Mr. A.K. Jain,ChiefEngineer,
September2005
IDESOfficer.CivilianReportingOfflcersin MES arerequiredto makeall entriesin the
to servingArmy ReportingOtficersvide policy letterdated27-llCRs as applicable
2003(AnnexureRl) (this annexurewas not initiallyfiled with the reply affidavitburt
on our direction).It is deniedthatthe saiC
it was filed by the respondents
subsequently.
CiviliarrReporlingOfflcer" Shri A.K. .lainwas not entitledto endorsethe entryin para
l0 of the CR as allegedby the applicant.It is alsosubmittedthat in the threepreceding
para
wasdoneby the CivilianOfficersendorsing
CRsearnedby the applicantassessment
Variables"(DPV).The
Perfbrmance
l0 of the CR, which is in respectof "Demonstrated
neverraisedany obiectionagainstthoseACRs.
applicant
9.
as "above average"by the IO with
It is statedthat the applicantwas assessed
The respondents
fbr promotion.
penpictureandpositiverecommendation
complementary
0f
with the assessment
was lukewarmand inconsistent
havedeniedthat IO's assessment
the ReviewingOfficer and SuperiorReviewingOfficer, i.e. RO and SRO. The said
l"re
and therefbre,
to the applicant,
of RO and SRO was nevercommunicated
assessment
couldnot havehad any flrst handknowledgeaboutthe same.It is submittedthat in tl"re
armythereis a threetier systemof reportingsystem,i.e. by IO (lnitiatingOfficer),RtC
are
Officer)and theseassessments
(ReviewingOfficer)and SRO (SuperiorRevierving
of
The assessment
of eachother'sassessment.
independent
doneby the aboveauthorities
8
2006by all the reportingofficers
2005to February
theapplicantfor the periodSeptember
performance
basedandmutuallycorroborative.
wereobjective.
10.
with para65(a)of
It is furthersubmittedby the respondents
that in accordance
HigherTechnicalOfficer(HTO) is entitledto endorseCR if
Army Order 4512001/MS,
the Rateeand HTO have servedtogetherfor 75 days or more.This periodneednot
by the HTO showsthatthe
meanphysicalservice.The pen picturerendered
necessarily
basedandhe knewthe applicantwell andwasawareof his
wasperfbrmance
assessment
of the applicantmadein respectof HTO
Therefore,
the allegation
technicalperfbrmance.
againstthe Mai Gen
havetherefore
deniedthe allegation
is notjustified.The respondents
thatduringthe periodFebruary
A.K. Bediwho wasactingas HTO. It is furthersubmitted
at HQ 3
2006to July 2006 when the applicantwas postedas Col GS (Trainirrg/Air)
Corps,in his ACR fbr the periodfrom 02106to 08/06.the word "rotund"waswrittenin
and
of the applicant
the penpictureby the SRO,depictedonlythephysicalcharacteristics
it wasnot intendedto be treatedas adverseor weakremarkandthis had no effecton the
for promotion
selectionboard.It is furthersubmittedthat the applicantwas considered
'quantification
whileholdingthe appointment
system'.l'he applicant
underthe policyof
2006and
asCol G.S.(TRG/AIR)earned5 ACRsincludingACR for the periodFebruary
August 2006. It is statedthat the said appointmentas Col G.S. was a non-criteria
as perpolicy.The
is quantified
of thisappointment
andall ACRs in respect
appointment
have deniedthat therewas any illegalityor irregularityin respectof tl"Le
respondents
selectionboardor therewas any maliceor bias so f-aras the impugnedACRs of tl're
applicantareconcerned.
9
I l.
The applicanthas filed a rejoinderin which he has reiteratedthe contentions
Apart fiom that he hassubmittedthat it was not correct
raisedin the main application.
that he did not raiseany objectionin respectof earlierCRs during the periodof his
serviceas CWE. In fact, he submittedstatutorycomplaintsin 2008 and 2009 agains;t
and returnedwith technicalreasonswith
thoseACRs but thosewere not considered
car,C
that his paramount
remarks,"complainttoo long and not tenable".It is reiterated
was not updatedfbr which he might have beenawardedlesserpoints in the "value
judgement"asperthe 'quantifiedsystem'in the selection
board.
12.
We haveheardthe learnedcounselfor both the partiesat lengthand perusedthe
documentsplacedon record.We have also gone throughthe ACR dossierof the
recorddealingwith his statutorycomplaintand the
applicantas also the departmental
afterbeingcalled
which weresubmittedby the respondents
boardproceedings,
selection
for by the courl.
13.
have raisedthe point of limitation,we are of the
Althoughthe respondents
consideredopinion that the applicationis within time becausethe applicanthars
and rejectionof his statutorycomplaintsflled thereon.
his non-empanelment
challenged
Suchrejectionordersaredated7tl'April20ll and8'hJune2012,whereasthe application
was flled irr August2012.Therefore.it cannotbe saidthat the applicationis barredby
his ACRs for the period200:thasalsochallenged
limitatiol.It is truethatthe applicant
2006,but sincethe applicanthasallegedthattheseACRs werethe root causeof his nonand his causeof actionaroseonly when he was deprivedof and denie:d
empanelment,
an,d
promotionin 2010or 201| whenhis casefor promotionwasconsidered/reconsidered
u'e
turneddown,,againstwhich he had filed the abovestatutorycomplaints;
eventually
10
vintage,
of suchchallenge
of the ACRso1'2005-06
that
areof theviewthatonly because
arenot inclinedto rejectthe
time barred.We, therefore,
wouldnot nrakethe application
on the groundof limitation,rather,we considerit frt and properto decidethe
application
matteron merit.
14.
Mr. Rajiv Manglik,the learnedcounselfbr the applicanthasraisedmainlyfour
points.His first contentionis that the completeprofile of the applicantso far as his
qualifications
anddifferentcoursedoneby him, wasnot placedbeforethe No.2 Selection
Board for which he was prejudiced.The secondcontentionof the ld. adv. for the
applicantis that while he was postedas CWE,at Ambala.his ACR was initiatedby
to endorseparal0 of the ACR fbr whichwas meant
civilianIO, who was not competent
of demonstrativeperfbrmancevariable related to military dutier;.
fbr assessment
'defective'andthe IO oughtto haveleft blank
suchACR shouldbe treatedas
Therefore,
army authority.The third contentionof the ld.
by appropriate
paral0 to be considered
adv. is that eventhoughin the impugnedACR, the pen picturewas writtenabouthis
work. but while awardinggrading.this has not beenreflected.In other
commendable
in the awardof numericgrading.
to the ld. adv.,therewasinconsistency
words,according
of the ld. adv. is thatthe remark"rotundofficer"givenin his casre
The fourthcontention
rvhilehe waspostedin HQ 3 Corps,eventhoughclarifiedby MS Branchas not to be an
this mighthaveatfectedhis careerprospects.
entry,but eventually,
adverse
15.
statedthat the paramouttt
categorically
1'he Ld. Advocatefor the respondents
cardin respectof the applicantwasupdatedand his completebio-datawasplacedbefore
the selectionboard.In replyto the statutorycomplaintflled by the applicantvide order
dated8-6-2012,thecompetentauthorityhasclearlystatedin para5 that the detailsgive:n
ll
in the paramountcard of the officer had beencheckedand confirmedas correct.The
hadbeengivento tht:
with his actualprofileanddueconsideration
officerwasconsidered
as per the policy on the subject.The
officer fbr his profile/performance/qualifications
learnedcounselfor the applicanthas however,drawn our attentionto AnnexureAl0
dated l4-ll-2011 whereinit was statedthat the recordof the applicanthave beett
and actionwas
card in respectof certainitems/qualifications
in the paramount
endorsed
'fhe
beingtakenin respectof certainothercourses. learnedcounselfbr the applicanthas
that this would makecrystalclearthat full andcompletedataof the applicant
contended
cardat the time whenthe selectionboardconsidererJ
was not updatedin the paramount
complaintwasgivenin Jun,e
the replyto the statutory
his casein 2010or 201| . F{owever,
2012 by which time, in all probability,the paramountcard was upgraded.So far as
of paral0 of the ACR by civilianIO, it is clarifiedby the ld. adv.for the
endorsement
that as per extantpolicy,a civilian IO is absolutelyentitledto endorsealll
respondents
columnsin the ACR in respectof army officersas well, when postedin ME,S;in the
instantcasethe applicantwas postedas a CWE in the MES. So far as othergrievance
that
relatingto the remark'rotund'.it wasclarifledby the ld. counselof the respondent
the applicanthad alreadybeeninformedby the MS branch,that suchremarkwas not to
of the
be taken as an adverseentry and it meantonly about physicalcharacteristic
board.
on theselection
andnothingelse.Thishadno bearing
applicant
16.
to file an
the matterproperly,we directedthe respondents
ln orderto adjudicate
that areenteredin the paramount
clarifyingthe qualifications
additionalreplystatement
system.Suchan additional
andpolicyon quantification
for selection
card, the procedure
the policy
was filed by the MS Branchvide whichthey haveenclosed
replystatement
t2
(annexure-R2
to the addl.Reply)issuedby the MS Branchin respect
letterof 10-6-2004
qualifrcations
attained
b'i
courses/civil
inter-services
of updatingof basicdataconcerning
an officer. It is submittedby the respondentsthat all the coursesdone by the applicant
which are recordable in his paramount card were duly updated and quantilled for th,e
b:y
purposeof considerationby selectionboard. It is statedthat M.Tech degreepossessed
the applicant has been quantified for weightage but the applicant is not entitled trl
q u a n t i f i e d w e i g h t a g e f o r h i s c i v i l q u a l i f i c a t i o n s .l ] o w e v e r , e v e r y c i v i l a c a d e m i c
qualificationis not entered/edited in MDS of officersto be placedbefbreselectionboaril.
The ld. Counsel for the respondentsand the offlcer from the MS Branch therefore finC
that the apprehensionof the learnedcounsel fbr the applicant in this regard was not
appropriate.
ll .
To sum up various rival contentions,we find that the main issuesthat need ouLr
attentionand analysiswith ref'erenceto the provisionsof relevantrules and regulations
and also our observationlrom the original recordsof the Member's Data Sheet(MDS|)
fbr the promotion board and the concernedACRs, in order to adiudicatethe matte:r
objectively,are:
The applicanthasallegedthat para l0 of the ACR form was not requiredto Lre
r.vas
by the IO who wasa civilianofficerat the time whenthe applicant
endorsed
posted as CommandingWorks Engineer(CWE) at Amabala Cantt. He has
at para10 madeby his IO in the ACR for the
specificallyreferredto endorsement
periodSept.2005to Feb2006.
ii)
'fhe
L'y
applicant'scontentionis that he was awardedcertaincomrnendations
whichhavenot beenincludedin his serviceprofiletherebythe
higherauthorities
13
applicant'sperceivedconceptionis thatthe valueof suchawardswerenot made
known to the membersof the promotionboard. He could have thus suffererJ
becausethe boardwas not awareof his completeprofile.Besidesnumericvalu,o
for such awards/achievements,
they also would provide useful inputs to the
promotionboardmembers
fbr awardingpointson'valuejudgment'objectively.
iii)
The rernarkof "rotund officer' that was endorsedby the SRO in the pen picture
'06 to Aug '06; the applicarrt
of the CR earnedby him for the periodfiom Feb
perceivedthat such remarksthough not 'adverse'or 'weak' might have been
the
perceivedas a deficiencyby the MS Branchrvhichcould haveprejudiced
selectionboard.
iv)
The numericgradesandremarksof the RO and SRO in the CR forthe periodFeb
'06 to Aug '06 wereconsidered
with the
by the applicantas not commensurate
gradingof the IO. Moreover.the applicanthas submittedthat the RO and the
gradingin the ACR fc,r
his figurativeassessment
SRO haveperhapsdowngraded
has
the applicant
On thataccount.
the ibid periodwithoutanyjustifiablereasons.
prayedfor settingasidethe reporlof the RO and SRO from the ACR covering
'06 to Aug '06.
the periodFeb
v)
having raised the issuesas above, the applicant'spraye)r
Consequentially
primarilyrelateto, firstly,to set asidethe reportof IO and FTO and HTO frorn
'06 andto setasidethe reportof RO and
'05
the ACR for the periodSept. to Feb
'06 Aug '06. Secondly,
havingobtained
to
SROfrom the ACR for theperiodFeb
the ibid reliel, the applicanthas prayedthat the decisionstakenon his nonstatutoryand statutorycomplaintswith respectto the ibid ACRs be quashed.
l'hirdly, after havingobtainedthe reliefsas above,the applicantalsohasprayed
t4
No. 2 selectionboardanC
that his revisedprofile be put up to the specialrevier.v
he shouldbe reconsidered
fbr prornotion
to the rankof Brigadier.
18.
the relevantruleson the subjectanrJ
As regardsthe first point,we haveanalysed
the applicantwas servingin the MEil
havealsonotedthat duringthe periodin question,
as CWE. As per the policy letterdated27.11.2003(AnnexureRl of
organization
whereinin Para3(b) it hasbeenclearly
affidavitfiled by the respondents)
supplementary
providedthat"CivilianReportingOfficersin MES,BRO,MilitaryFarm,CM[r, MCTE dL
in the CRs as applicableto servingArmy
MCEME will renderall endorsements
who wasa civilianirrthe postc,f
his immediate
superior.
ReporlingOfficers".Therefore,
the entireACR as lO including
to endorse
was well withinhis authority
ChiefE,ngineer,
Moreover,we also
para 10. We do not f-indany technicaldefectin suchendorsement.
of the applicant'sMDS that numerical
found on perusalo1'the originaldocuments
givenin paral0 in the ACR form forthe periodSep'05to Feb'06 arequite
assessment
with his overallprofileto the extentthat noneof the remarks
positiveand in consonance
profilefor promotion.Moreover.the figurative
wasanyway damagingfor the applicant's
ratingof paraI 0 in the ibid ACR is fbundto be on the highersideof
'AboveAverage'to
'Outstanding'.Therefore,,in this regard,the applicant'sapprehensions
are quile
unfounded.
19.
As regardsthe questionof updatingthe profile of the applicantbeforeth,e
promotionboard,,we haveobservedthat the officer'scareerprofile hasbeenadequately
with rules
and awardstakeninto accountin accordance
updatedanclall commendations
o{'being
on the subject.Therefore,on this account.the applicant'sapprehension
by the boardis totallyunfounded.
prejudiced
t5
20.
The applicant's
apprehension
that the specificremarkof 'rotundol'ficer'could
havebeentakenamissasadverse
or weakby the promotionboardis againan imaginative
perception
of the applicant.
The MS Branchwhile puttingup the applicant's
profilealong
with his ACR gradationin the form of MDS hasnot considered
suchremarksas weakor
adverse.We also flnd from the original recordsthat this aspectwas adequately
considered
and dealt with when the applicant'snon-statutory
and statutorycomplaints
The COAS and the concerned
wereanalysed.
authorityin the Ministryof Def-ence
have
very clearlyobserved
that suchremarkwas not adverseor weak.as was clarifiedby the
SRO at that point of time. Therefbre,thereis no evidencefor us to believethat such
by the promotionboard.
commentwastakenadversely
21.
We have consideredthe entire MDS o1'the officer (applicant)when he was
by the No. 2 PromotionBoardfor promotionfrom Col. to Brigadier.We have
considered
perused
the entireACR profilefor the periodSep05 to Feb06 while the applicantwas
servingin the MES at AmbalaCnt in the postof CWE, whichwasa criteriaappointmerLt
in the rankof Colonelandalsothe ACR for the periodfrom Feb06 to Aug 06 whenthe
was servingat HQ 3 Corpsas Col GS (Trg/Air),which wasa staffassignmerrt
applicant
in the rank of Col. We find from the originalrecordsthat the applicantin his ACR as
pointsranging
CWE (Sep05 to Feb06) hasearned"Above Average"to "Outstanding"
between8 and 9 by the IO, RO, SRO and HTO. It also appearsthat the IO, agains;t
hasnevergradedhim below8 in anyof his
whomthe applicanthadcertainapprehension,
personal
anddemonstrative.
andobjectivesattributes
22.
As regardsthe 2ndimpugnedACR earnedin Staff posting(Col. GS (Trg)),the
madeby the R0
is with regardto the numericalassessment
specificgrievance
applicant's
l6
the periodfrom l4'r'Febto 31" Aug 2006.
thisACR covering
andSRO.While analyzing
the SRC)
thatthe overallbox gradinggivenby the IO andRO is'8'; whereas
we observe
remarksin the pen
the box gradingto '7' without any corroborative
has downgraded
picture.We also observefrom the ibid ACR that SRO has termedthe assessmentrs
elsr:
by the IO and RO to be'liberal'.However,in the penpictureor any'where
endorsed
the remarks
in the ACR this aspecthasnot beenjustifiedas to how the SRO considered
of IO/ROto be'liberal'. Moreover,we frnd that the pen picturegivenby the IO/RO
awardedby them.To the contrary,the SROhas
largelymatchtheirfigurativeassessment
in the pen pictureto justify the down gradationof
not given any detail assessment
of '7' . ln fact it is the SRO who hasdifferedwith the assessment
figurativeassessment
in the
anyjustificationnor substantiating
madeby the IO anclthe RO withoutassigning
the benefitof doubt be given to the
ratee'spen picture.Under such circumstances,
'
given by the SRO as'J be expungedbeing
applicantand the box assessment/grading
fiom IO/RO.
with the gradingobtainedby the applicant
inconsistent
23.
from ACR fbrtheaboveperiod(14 Febto 31" Arg 2006)in par:t
We alsoobserve
for the potential
the figurativeassessment
IV of the ACR atpara24(e),while endorsing
the RO hasawarded
to handlehigherappointments"
competence
qualityof "professional
'7' points.'6' denotes'high
the IO and SRO havebothawardedhim
6 pointswhereas
'7'denotes 'aboveaverage'.We are of the view that the RO"s
average'whereas
is not consistentwith what has beenawardedby the IO/SRO for the S&rlle
assessment
Althoughthe variationis just one pointin this caseas alsoin the earliercase'
qualities.
we are of the view that such variationwould kre
mentionedin the aboveparagraph,
aredecidedwith
enoughto pull down the overallprofileof the officerwherepromotions
l7
w(l
a differenceup to secondplacedecimalpointson merit.Undersuchcircumstances,
are of the view that suchvariationshouldalwaysneedto be justifiedby the reviewing
of
bejudiciousthatthe RO's figurativeassessment
officer.It would,therefore,
'6' in part
with overallprofile.
not beingconsistent
IV, para24(e)of the ACR shouldbe expunged
24.
above,we are of the
Exceptfor the abovetwo pointsthat havebeendiscussed
partof the ACR for the aboveperiodi.e. l4 Febto 31" Aug 200'6
view thatthe remainder
of the ACR is absolutelyin order and in consonancewith the officer's overalll
thathavebeen
variationexceptthe variations
Thereis no furthersignificant
performance.
as
and remarksof the RO/SROcannotbe considered
pointedout above.The assessment
bias or prefudiced,as has been perceivedby the applicant.There is no evidenceto
We also f-indfrom the MDS that exceptfbr the
suggestsuchperceivedbias/preiudice.
betweenthe
above.thereis a greatdealof corroboration
two pointsthat havediscussed
of the officer for the ibid period
the performance
of RO and SRO.Therefore.
assessment
objectivelyandthereis no scopeto setasidein
to havebeengenerallyendorsed
appears
andobserved
thanwhathasbeenanalysed
anyotherportionof the numericalassessment
in the abovetwo paragraPhs.
25.
of the applicantto think that RO/SRO,who areof
It is a figmentof imagination
the rank of GeneralOfllcers holding the post of COS/GOCto hold the applicant
for not enablingthe desiredhelicopterair ef-fortsfor their own trave:I.
responsible
in order
suchACR for the periodl4 Feb 2006to 31" Aug 2006is absolutely
Therefbre.
as pointedout aboveareremoved.
oncetheaberrations
l8
26.
ln this connectionit will be pertinentto ref-erto the unreporteddecisionof thr:
-vs(Lt. Col. (time Scale)D.S.Pandey
Hon'bleDelhi High Court in WPO 651512002
whereinit hasbeenhekJ
as relieduponby the respondents,
UOI ) deededon 31.5.2005,
asunder: -
'!;',I'
[::":;:';,::';'l;::;:;
o/ficer
"f,i'r!fi'!fri']!;,i::'i7!i"i,,!f),il],',i,',
O//ic'er is also un/bunded. A reviewing authority mu)' gracle lhe
per/itrmance/conducl etc. higher than the initiating authorily rtr vice versa but at'l
this i,sa part rt'the process. So long us a reviewing aulhority enioys lhe power to
varry/reviev, the gruding/rating, it cannol be .said or held thal he must have beein
misguided by the allegedll, subjectiveACR. It may be a dif/brent matter where it is
proved that even the reviewing o/ficer had ac:teclv,ith malu /ide or his grading
v)asperverse.fbr some reason. To presume thal lhe reviev,inT authority musl huv'e
signed on the dotted line and musl have been misguided hlt the allege'C
sub.jectiviQin the AC'Rs would be stretching the argument o/ the petilioner a bitl
too far and would./'all within lhe realm of' surmise. A reviewing o//icer is als,o
entru,stedu,ith un onerous duQ lo review the ACR recorded b7' the initialin,q
authority. His responsibilitv ir', there.fbre, more ancl he i,s presumed to have
tli,sc'hargetl it unless c'ontrary is provecl. The petitioner's pleus are ralher
assumptive lacking in material subslance. His claim thal it w'a,sonly during the
),€ars 1993 to 1995 that his grading did nol c'orrespondto his pen piclure is also
not borne out ./iom his overall pro/ile produced by lhe respondent before trs. The
grading as given in 1993 to 1995 is not confined lo those years but even during
the earlier years also he had been av,arded similar grading hy the initiatin,q
o.fficerand the reviewing o.fticer."
2 1.
P r o m o t i o n , e s p e c i a l l y .a t t h a t h i g h e r r a n k ( C o l o n e l t o B r i g a d i e r ) i s a l w a y s
the officercouldhavemissedout for promotionpurely
Therefore,
extremelycompetitive.
on competitiveand comparativemerit basedselectionbut definitely not on accountof
in gradingwhich could be otherwise
adverseremarksor due to any major aberrations
view that the applicant
On the whole,we are of the considered
damagingor subjective.
l9
would be considered
to be gradedquite objectivelyoncethe aberrations
as mentioned
aboveare removed;however,no biasor prejudiceby any of the reportingofficershas
beenestablished.
28.
We have also gone through the selectionboard flle and we find that actuallythe
applicantcould not get empanelledonly becauseof merit and not for any other reason.
Admittedly. Brigadier is a senior selectionpost and therefore,merit is the main criteria
for promotion.
29.
We have also carefullygone throughthe original recordswhereinthe non-
statutoryand statutorycomplaintsof the applicantrelatingto the sameaspects
that hav,e
beenbroughtin this OA, wereanalysed.
Havinggonethroughthe entireofficenotinganrJ
ordersthereonby the competent
authority.we areof the view that the respondents
havr:
veryobjectivelyanalysed
everyissueandhaverejectedboththe ibid complaints
in a fair,
judiciousandtransparent
mannerwithout
any biasor prejudiceexceptforthe two aspectrs
of inconsistency
reportedin the ACR fbr the periodfrom 14 Feb to 3 l" Dec 2006 as
discussed
in paras22-25above.Therefbre,
rejectionorderof the respondents
in respect
of the statutoryand non-statutory
complaintsof the applicantbe modifiedto the extent
thattheaberrations
as pointedin the aboveparagraphs
22-25be considered
asexpunged.
30.
In view of our foregoingdiscussion,
the application
standspartiallyallowedon
contest
by issuingthe followingdirections:-
i)
T h eb o x g r a d i n g ' 7 ' g i v e nb y t h e S R Oi n r e s p e cotf A C R o f t h ea p p l i c a n t
fbr the period 14 Feb to 31" Aug 2006 be expungedfor being inconsistent
and not
matching
with penpicture.
20
ii)
The numericalgradingof '6' givenby the RO in the potentialqualitvart
with
PartIV para24(e)for the aforesaidperiod,be alsoexpungedbeing inconsistence
profile.
iii)
nonuponthe applicant's
The impugnedrejectionorderof the respondents
complaints with regard to afbresaidACR be reconsideredand
statutory/statutory
madeby us in para22to 25 above.
modifiedin the lightof observations
iv)
as a special
The applicantbe given one more chanceto be considered
reviewfreshcasefor promotionto the rank of Brigadierafterexpungingthe remarksa.s
(i) and (ii) abovein the changedprofile.All furtherconsiderationr;.
indicatedin sub-para
if any,shallbe doneasperrules.
v)
within threemonthsfrom the date
The entireexerciseshallbe completed
of thisorder.
of communication
vi)
31.
Therewill be no orderasto costs.
on properreceipt.Sinc:e
Let the Originalrecordsbe returnedto the respondents
they are confidentialin nature,they will be returnedback to the officer rep of the MS
on receipt.
Branchpersonally
32.
by the TribunalOfficer tre
Let a plain copy of the order duly countersigned
of dueformalities.
to bothpartieson observance
furnished
I agree
(LT.GEN. K.P.D.SAMANTA)
Member (Administrative)
(JUSTICERAGHTINATHRAY)
Member (Judicial)