ARMED FORCES TRIBUNAL, REGIONAL BENCH, JABALPUR OA/02(J)/2016 Date of Order : 23.02.2018

Hon’ble Mr. Justice Amar Saran, Judicial Member Hon’ble Lt Gen (Dr) N.B. Singh, Administrative Member

Naib Subedar Manjit Singh, (JC – 451340Y), S/o Shri Chaman Lal, The Grenadiers Regimental Centre, Jabalpur (M.P). ..…. Applicant Versus

1. Union of India, through the Secretary, Ministry of Defence, Government of India, New Delhi. 2. Chief of Army Staff, Army Headquarters, DHQ Post Office, New Delhi. 3. The Officer-In-Charge, The Grenadiers Records, Jabalpur (M.P.). 4. The Commanding Officer, 18 Grenadiers, C/o 56 APO. 5. The Company Commander, D Company, 18 Grenadiers, C/o 56 APO. …… Respondents

Ld. Counsel appeared for the Applicant - Shri KC Ghildiyal & Shri HC Singh Advocates.

Ld. Counsel appeared for the Respondents - Shri Vikram Singh, Central Govt. Counsel. along with Maj Gourav Verma, OIC Legal Cell.

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ORDER

Delivered by Hon’ble Lt Gen (Dr) Narendra Bahadur Singh, Member (A)

1. This OA has been filed by Naib Subedar Manjit Singh of the Grenadiers Regiment against the impugned order dated 16.03.2016 disposing of his complaint seeking redressal against his supersession for promotion. The applicant was enrolled in the Army on 01.06.1998 and in due course of time he was granted promotion to higher posts and was promoted as Naib Subedar on 22.04.2012 with seniority of 25.02.2012. He became due for promotion in 2014 and while his batchmates and juniors were promoted as Subedar w.e.f. 01.06.2014 the applicant was not granted the promotion. He submitted a statutory complaint on 05.03.2015 to the Competent Authority to expunge the assessment made by the initiating officer in the ACR for the year 2012. An order was issued to the applicant vide letter dated 19.03.2016 which enclosed the impugned order dated 16.03.2016, passed by respondent No. 3 intimating him about the partial redressal which had been granted to him in the ACR of 2012. The applicant contends that he has had an above average, high average service record, however, he was assessed as average in the ACR for the year 2012 by his Initiating Officer (IO), a fact which he came to know only after he had submitted an application under the RTI Act. In the same report the Reviewing Officer (RO) had not recommended the applicant for further promotion. He contends that the order passed by respondent No. 2 (COAS) rejecting his statutory complaint has not been provided to him in the order dated 16.03.2016, wherein, he was granted partial redressal. It has been intimated in the impugned order that the assessment of the IO was found to be correct as per his demonstrated performance and hence, no interference was warranted in the said assessment. It was also stated in that order that an average grading given by the reporting officer is not considered as adverse grading and hence, not required

OA/02(J)/2016 to be communicated. He contends that in the same order it has been incorrectly mentioned that the pen picture and extract of CR recorded by IO and RO were communicated to him. He has highlighted that as per the promotion policy dated 10.10.1997, for promotion to the rank of Subedar, three preceeding CRs are taking into consideration. All the ACRs should not be less than high average. When the applicant was considered for promotion, the CR of 2012 was also considered and hence, he was denied promotion to the rank of Subedar due to lacking of ACR criteria. He has contended that since an average grading disqualifies a person from getting promoted to the rank of Subedar, the same should have been communicated to him. Also, since the IO had recommended him for promotion, therefore, his assessment of average grading in the CR was contradictory and inconsistent and should have been expunged. He states that he has never been assessed as average by any of his reporting officers in his entire career. He had also brought out an incident of 30.07.2011, when a house was raided by the unit in which the applicant had killed a Pakistani miscreant. However, the name of respondent No. 5 was recommended for Gallantry Award and he was awarded Sena Medal. The applicant registered his protest to the Commanding Officer as a consequence of which both respondent No. 4 and 5 while assessing him in the ACR for the year 2012 graded him average. He therefore, alleges malafide and arbitrariness on the part of respondent No. 4 and 5 and contends that in the past he had always have above average and high average gradings and the grading for the year 2012 was brought down by the IO and RO without issuing any warning or performance counseling. He has further stated that had he been promoted to the rank of Subedar, his length of service would have been enhanced by two years and he would have got a chance to be further considered for promotion to the rank of Subedar Major. He has prayed for the following:-

(i) Quashing of the order passed by respondent No. 2 (which has not been provided to him) declining to set aside the assessment made by the IO in the ACR of 2012 and the order

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dated 16.03.2016 (Annexure A1) issued by the respondent No. 3.

(ii) Issue of directions to the respondents to consider the applicant for promotion to the rank of Subedar w.e.f. 01.06.2014 without taking into consideration the ACR for the year 2012 and to grant him all consequential benefits including arrears of salary, continuity in service and pension.

2. Ld counsel for the respondents in their counter affidavit have denied the averments made by the applicant stating that there is no merit and substance to make out a case for any interference by the Tribunal. They have stated that the benefit of promotion cannot be claimed as a matter of right and as the petitioner failed to qualify the requisite criteria for promotion he could not be promoted. They have pointed out that the scope of judicial review in service matters is extremely limited and have referred to the judgment of Hon’ble Supreme Court in the case of State Bank of India Vs Ramesh Dinkar Pandey (2016) 7 SCC 212. They have also stated that as per the law laid down by the Hon’ble Apex Court in the case of Dev Datt Vs Union of India & Ors Civil Appeal No. 7631 of 2002 decided on 12 May 2008, every entry of ACR of public servant must be communicated to him/her within a reasonable period of time as it helps in achieving the following objectives:-

(i) Helps him/her to work harder and achieve more by improving his work and giving better results.

(ii) It helps him to make representation for upgradation of the remarks entered in the ACR.

(iii) It brings in transparency in reporting and system becomes more conforming to the principles of natural justice and hence, every entry in the ACR; poor, fair, average, good or very good must be communicated to him/her within a reasonable period of time.

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3. They have stated that it is not true that the ACRs which were considered for the promotion of the applicant were not communicated to him and hence, the challenge at this late stage has been rightly turned down by the respondents. They have reiterated the basic facts of the case regarding promotion and the service record of the applicant and stated that his statutory complaint as decided by the COAS was communicated to him through a reasoned and speaking order vide Granediers Records letter dated 19.03.2016. The applicant had been discharged from service on 01.06.2016 having completed the conditions of his enrollment under Army Rule 13(3) Item I (i)(a) after 28 years of service in the Army. As regards the ACR of 2012, the IO as well as RO had graded him average and the RO had not recommended the applicant for further promotion. Relevant extracts had been communicated to the applicant on 22.07.2012 and 30.09.2012. The applicant came up in seniority for promotion in June 2014 but could not be promoted due to lack of ACR criteria in terms of para 7 of IHQ of MoD (Army) letter dated 10.10.1997. They have brought out that in the last three annual confidential reports the grading of the applicant was as under :-

(a) 01 Oct 2011 to 22 Apr 2012 (2012) - Average.

(b) 01 Jun 2012 to 31 May 2013 (2013) - High Average.

4. They have also stated that an average assessment is not an adverse grading and, therefore, does not need any justification in the pen picture under the provisions of para 44 of Army Order 1/2002/MP. While confirming that petitioner took part in the operation Rashanpura, they have stated that it was wrong on the applicant’s part to say that he only deserved to be awarded and the averment made by the applicant that it is on account of this action that he was awarded average grading is false, baseless and concocted. They have concluded by stating that there is no case for interference and grant of relief as claimed by the petitioner.

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5. The applicant in the rejoinder affidavit has brought out that except for the ACR of the year 2012, he has never been assessed as average in any of his ACRs and it was well within the knowledge of the respondents No. 4 & 5 that by assessing the applicant as average he would become ineligible for promotion. Yet the said assessment was made without any warning or counseling and it was a well settled principle in law, that if any ACR came in the way of the individual for promotion, the same was to be treated as adverse. He has placed reliance on the policy letter dated 10.10.1997 and has contended that an average grading which is suddenly made in the ACR itself indicates bias on the part of reporting officer.

6. In the supplementary counter affidavit, the respondents have drawn the attention to para 44 of the Army Order 1/2002/MP and stated that no counseling or warning is required to be communicated to the ratee when an average grading is assessed by IO and RO. As such an assessment is not adverse however, since such an average grading adversely affects the promotion prospects of JCO/NCO, it will be communicated. However, when a ratee has been graded average but not recommended for promotion (para 15 box No 66 and para 18 box No 70), the same will be justified in the pen picture by the RO and the grading including pen picture will be communicated to the ratee. They have highlighted that the IO’s assessment was communicated to the petitioner and receipt obtained from him on 22.07.2012 and average grading awarded in box No. 53, 55, 56, 57, 59, 60 & 61 of the ACR, were communicated to him on 30.09.2012 and receipt obtained. They have once again stated that the submissions made in the rejoinder affidavit are baseless and need to be rejected.

Arguments

7. Appearing on behalf of the applicant Shri KC Ghildiyal, recalled the basic facts of the case and stated that in the instant case the IO of the applicant had given him 4 marks (Average) in the overall grading and recommended him for promotion, but the same was not

OA/02(J)/2016 communicated to the ratee. It was later observed by OIC Records and 18 Grenadiers was communicated the same on 29 Aug 2012. As has been brought out the same was communicated to the applicant on 30 Sep 2012. He brought out that the same IO in 2011 had given the ratee 8 marks and in 2013, 6 marks. There was no counseling/advisory given to the applicant prior to the ACR of 2012 and grading of 4 marks was given knowing fully well that the applicant would not be eligible for further promotion. He stated that as per Apex Court judgments such a report should be considered as an adverse report. He referred to the case of UP Jal Nigam Vs Prabhat Chandra Jain (1996) 2 SCC 363. He further elaborated that as a consequence, the applicant was made to retire from service from 31.05.2016 in the rank of Nb Subedar and if, he would have been promoted he would have retired on 31.05.2018 and would have also had a chance for consideration for promotion as Subedar Major which would have increased his service by further 4 years. He also stated that in the instant case it was Record Office which adviced the unit to communicate the ACR to the applicant and obtain his signature. He also brought out that the reports subsequent to the impugned report of 2012 were better reports and the applicant had been recommended for promotion. He stated that if the ACR of 2012 in respect of the applicant is over looked, then the applicant becomes eligible for promotion to the rank of Subedar.

8. Shri KC Ghildiyal, concluded his arguments by stating that in view of the overall service record and career profile of the applicant, he deserved to be promoted to the rank of Subedar w.e.f. 01.06.2014 with all consequential benefits including future career progression. He submitted the following case laws in support of his contention:-

(i) UP Jal Nigam Vs Prabhat Chandra Jain, (1996) 2 SCC 363.

(ii) Shivanand Prasad Vs Union of India, M.P No 4066/1989. (Para 10,11,12).

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(iii) Havildar Gambhir Singh Chahar Vs Union of India, 2007 (2) MPHT 238. (Para 15,17,18).

(iv) Union of India Vs V K V Jankiraman, (1991) 4 SCC 109, (para 25).

(v) Ramesh Kumar Vs Union of India, (2015) 14 SCC 335.

9. The respondents in their reply repeated the facts given out in the pleadings and produced a copy of the ACR for the year 2012 covering the period 01.10.2011 to 22.04.2012 in which there was a signed certificate from the applicant regarding communication of para 15 of ACR containing the pen picture as well as the overall grading by IO and stated that the applicant had signed this certificate on 29.07.2012. While going through the ACR, it was noted by the Court that the signature that had been appended above the name of the applicant was not matching with the signatures which had been put by the applicant at page 3 & 4 of the ACR (top box right hand side). The signatures in the extract of ACR appeared to be of one, Kuttan and not Manjit Singh. Court vide its order dated 10.08.2017, asked the respondents to clarify this issue along with certain other observations.

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10. On 18.01.2018, during the course of the arguments Shri Vikram Singh, Ld counsel along with Maj Gourav Verma, OIC Legal Cell for the respondents accepted that the signatures did not match and there was no other record of communication of the adverse assessment by the IO to the applicant.

11. We have heard the arguments, perused the pleadings and the case laws and Army Order on the subject. We have also gone through the impugned ACR, relevant extracts of which are given below:-

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12. It is seen that on page 5 of the ACR, an endorsement has been made by IO, that award of average and lower grading has been communicated vide registered letter No. 1004/D dated 22 July 2012. This letter however could not be produced by the respondents. It is also seen that the extract of para 15 of the impugned ACR, that was communicated to the ratee and supposed to have been signed by him on 29 July 2012 was infact signed by one Mr Kuttan. The respondents have also not been able to clarify this issue during the arguments on 18.01.2018. On the face of it, it appears to be an attempt by the IO to cover up the oversight.

13. We will like to reproduce below the CR profile of the applicant for the past 13 years, wherein, the applicant had been assessed as Above Average / High Average by both IO & RO except in the impugned ACR of 2012:-

Ser Year Grading No. IO RO SRO (a) 2003 8(AA) 8(AA) NA (b) 2004 8(AA) 8(AA) NA (c) 2005 8(AA) 9(OS) NA (d) 2006 7(AA) 8(AA) NA (e) 2007 8(AA) 8(AA) NA (f) 2008 8(AA) 8(AA) NA (g) 2009 6(HA) 6(HA) NA (h) 2010 6(HA) 6(HA) NA (j) 2011 8(AA) 9(OS) NA #(k) 2012 4(A) 4(A) NA (l) 2013 6(HA) 6(HA) NA (m) 2014 8(AA) 8(AA) NA (n) 2015 9(OS) 9(OS) 9(OS)

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14. It is also seen that in the ACRs w.e.f. 2011 to 2015 the ratee has been assessed as under :-

Year IO Grading RO Grading 2011 Maj Ajeesh Kumar 8 Col SanjaySinha 9 2012 -do- 4 -do- 4 2013 -do- 6 -do- 6 2014 Lt Col Deepak 8 Col Rajneesh 8 Singhal Singh 2015 -do- 9 -do- 9

15. It is seen that as per policy IO should have communicated the average assessment awarded in individual qualities and overall box grading. The RO should have also communicated his assessment of box grading and pen picture to ratee as required vide AO 1/2002/MP (para 44) which he has not been done. The extract of communication purported to be signed by the applicant on 29 July 2012 produced in the Court has not been signed by the applicant but someone else. Also, the IO had not intimated the ratee about the assessment as observed by the OIC Records, who had written to the unit to this effect vide letter No. 0388/43/Adm 2 dated 29 Aug 2012.

16. We are of the considered opinion that these acts by itself are sufficient grounds to establish malafide. Moreover, a look at the track record of the applicant for the past 13 years, clearly leads to the conclusion that the impugned ACR of 2012 is not consistent with the applicant’s service profile and is liable to be set aside as the same has not been communicated to him as required by law. Also, such a down grading of the ACR cannot be sustained as it has had a damaging impact on the career of the applicant. Reliance is placed on the Apex Court observation in UP Jal Nigam & Ors Vs Prabhat Chandra Jain (supra). It is also seen that for the years 2011, 2012 & 2013, the IO & RO have been same and there is a wide variation in their assessments over the three years. The assessment of 2012

OA/02(J)/2016 appears to be an impulsive and subjective action as a sequel to some events involving the ratee.

17. Having considered the facts of the case and the rule position we have no hesitation in setting aside the impugned ACR of 2012 for lack of consistency and violation of the procedure outlined in the AO. We are of the opinion that the applicant has been wrongly denied his promotion to the rank of Subedar along with his batchmates, based on an inconsistent assessment in the ACR of the year 2012.

18. The OA is allowed and the impugned order is set aside. As the applicant has retired from service, it is our considered opinion that the interest of justice would be served by directing the respondents to immediately convene a review department promotion committee within a period of two months and consider the case of the applicant for promotion by overlooking the ACR of 2012 and after granting him promotion retrospectively w.e.f. the date due in 2014, to treat him as having retired in the rank of Subedar with all essential benefits in pay and pension. The principle of ‘no work no pay’ would not be attracted where the respondents are at fault. Since the applicant has been wrongly denied his due, he will be entitled to higher pay & allowances of the rank of Subedar from date of promotion till 31.05.2018, the date on which he would have retired in the rank of Subedar. Arrears to be paid within a period of four months failing which interest @ 8% will be payable. No order as to costs.

(Lt Gen N.B. Singh) (Justice Amar Saran) (Member (A) (Member (J)

Sarkar / 23.02.2018

OA/02(J)/2016

ARMED FORCES TRIBUNAL, REGIONAL BENCH, JABALPUR

OA/02(J)/2016 Date of Order : 23.02.2018

Naib Subedar Manjit Singh .….Applicant

Versus

Union of India and others .…Respondents

Ld. Counsel appeared for the Applicant - Shri KC Ghildiyal & Shri HC Singh Advocates.

Ld. Counsel appeared for the Respondents - Shri Vikram Singh Central Govt. Counsel. along with Maj Gourav Verma, OIC Legal Cell.

Hon’ble Mr. Justice Amar Saran, Judicial Member

Hon’ble Lt Gen (Dr) N.B. Singh, Administrative Member

ORDER

At the time of pronouncement of judgment today, Ld counsel for the respondents and OIC Legal Cell have orally prayed for Leave to Appeal to the Apex Court under section 31(2) of the Armed Forces Tribunal Act, 2007. As no point of law of general public importance is involved in this case, the prayer is declined.

(Lt Gen NB Singh) (Justice Amar Saran) Member (A) Member (J)

Sarkar/ 23.02.2018