1 OA 1447 of 2011

ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 1447 of 2011

Lt. Col Uttam Dixit, SM …… Petitioner(s) Vs Union of and others …… Respondent(s) -.- For the Petitioner (s) : Col (Retd) NK Kohli, Advocate For the Respondent(s) : 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 2nd

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 2 OA 1447 of 2011

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 , 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/MS- 19/86/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 4 OA 1447 of 2011 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 6 OA 1447 of 2011

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 7 OA 1447 of 2011 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 non- empanelment 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 ? 8 OA 1447 of 2011

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 9 OA 1447 of 2011

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 10 OA 1447 of 2011 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 11 OA 1447 of 2011 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 IC- 43304L, Col Rajiv Malhotra, the CO designate, IC- 48534 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/pre- staff/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 12 OA 1447 of 2011

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 13 OA 1447 of 2011 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:- 14 OA 1447 of 2011

“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 15 OA 1447 of 2011 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 .

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 :- 16 OA 1447 of 2011

Consideration Year of Grading Remarks Consideration

Fresh Apr 08 „Z‟ Not Value Empanelled Judgment

First Review May 09 „Z‟ Not Quantified Empanelled System of Selection

Final Review Dec 09 „Z‟ Not Quantified Empanelled 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 2003-

2004 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 17 OA 1447 of 2011 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 pen- picture. 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. 18 OA 1447 of 2011

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 as applicable to their endorsement have been met.” 19 OA 1447 of 2011

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 20 OA 1447 of 2011 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 22 OA 1447 of 2011 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. 23 OA 1447 of 2011

(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.”

24 OA 1447 of 2011

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 25 OA 1447 of 2011

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 26 OA 1447 of 2011

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 re- collect 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 27 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 28 OA 1447 of 2011 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 29 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. 30 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 31 OA 1447 of 2011 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