O.A. No. 04 of 2013. Case: Brig. V. Jai Kumar (Retd.) Vs The Secretary to Government of India and The Military Secretary Military Secretary's Branch/MS (X). Armed Forces Tribunal

Case NumberO.A. No. 04 of 2013
CounselFor Appellant: V. Vijay Shankar and N. Balamuralikrishnan and For Respondents: Mr. B. Shanthakumar, SPC
JudgesV. Periya Karuppiah, Member (J) and Anand Mohan Verma, Member (A)
IssueConstitution of India - Articles 14, 16, 309
Judgement DateAugust 16, 2013
CourtArmed Forces Tribunal

Order:

Anand Mohan Verma, Member (A)

  1. Petitioner seeks relief to quash respondents' letters No. A/47063/R/1SB/SIGNS/MS(X), dated 27th July 2010, even No. dated 4th January 2011 vide which the petitioner was informed he had not been selected for promotion and even No. dated 10th August 2011 vide which he was informed his case had been 'Withdrawn', No. A/45501/107/2010/SC/MS(X)/276/SE/2010-D(MS), dated 15th March 2011, vide which his Statutory Complaint against non-empanelment was rejected and No. A/45501/107/2010/SC/MS(X), dated 31st March 2011 vide which request for a waiver of CR gap was rejected, and consequently direct the respondents to promote the petitioner to the rank of Major General at par with his batch mates with all attendant benefits and pass such other order or orders as may be deemed fit. The facts of the case are that the petitioner was considered for promotion by No. 1 Selection Board in October 2010 and was not empanelled. He was considered by two subsequent Selection Boards, as review case and in both instances, his name was withdrawn as there was a gap in his CR. The petitioner retired on 31st July 2011 from service.

  2. The petitioner would through his application, arguments and pleadings of his learned counsel Mr. Vijay Shankar and written submissions would submit that he was commissioned on 13th June 1976 and rose to the rank of Brigadier. He would claim that he had an exemplary record of service and held varied regimental, extra-regimental, instructional, staff and command tenures and was totally devoted to his profession and was regarded highly by his superiors, peers and subordinates. He has been consistently graded Above Average or Outstanding in all his reports and there has not been any blemish or negative comment on his performance. Given his dedication and demonstrated performance, the petitioner expected to be promoted to the rank of Major General, but was not so promoted due to the errors of omission and commission on the part of the MS Branch and failure of the Government of India, Ministry of Defence to grant him relief on his complaint. His Statutory Complaint was rejected and his name was withdrawn from the Selection Board in two subsequent reviews. He was considered for promotion in May 2010, but was not empanelled by the Selection Board due to a new selection policy adopted by the respondents. The petitioner would submit that the quantification method of selection adopted in 2009 drastically changed the order of merit. He would give an illustration of the changes in the order of merit by providing a summary table of marks awarded due to the new Policy applicable with effect from January 2011 and as per the 2009 Policy which he would claim shows that his order of merit gets adversely impacted due to the latest policy in which two marks have been awarded for DSSC and only half mark for M.Tech. The earlier policy did not specifically award any marks for such courses. Since the difference in aggregate CR scores works out to decimal point, a difference of 1.5 marks turned the table in favour of officers who have attended DSSC. The petitioner's Statutory Complaint against this policy high-lighted that the MS branch did not exercise diligence in implementing the policy which affects the entire cadre of officers. In the Statutory Complaint, the petitioner had brought out that the policy of quantified method of selection adopted in January 2009 had not been pre-tested on readily available historical data. He would claim that the policy underwent a change consequent to a study. In the revised policy, the essential heart of the quantification model was totally changed. In the 2009 policy, there was a single table of only six rows whereas in the 2011 policy, there are eight tables and two appendices and award for marks on courses have been linked to actual grade therein unlike the award of full marks irrespective of grades in the 2009. Quantification method of selection for promotion policy led to an abnormally high reduction in rank of brilliant M.Tech qualified officers which made the top decision-makers of the Army realise that a monumental mistake had been made and review was ordered. The new policy was implemented in January 2011 and the petitioner's Complaint was rejected in March 2011. Therefore, the respondents' contention that no injustice is done is incorrect. The injustice has been further compounded by MS Branch by blocking his consideration for promotion by Selection Boards in October 2010 and April 2011 in which he was Withdrawn due to a gap in CR which was caused due to lack of a report from Major General S.K. Bharadwaj who was the Initiating Officer(IO) of the petitioner when he was posted in National Security Guard(NSG). The petitioner was on deputation with NSG where he got an outstanding report from his first IO, Major General Abhay Gupta. On 31st July 2009, Major General S.K. Bhardwaj took over the appointment of IG (Ops) and secretly initiated proceedings to have the petitioner prematurely posted out on flimsy grounds, i.e., availing of excessive temporary duties and leave without realising that these were granted by him that is Maj. Gen. Bhardwaj himself. The covert reason the petitioner would claim was that the petitioner did not extend undue favour to a crony of Major General Bharadwaj. The petitioner would further state that owing to a written complaint against him in a matter of misappropriation, Major General S.K. Bharadwaj was summarily removed and repatriated to Army on 23rd April 2010. The petitioner was reverted to the Army on 17th May 2010. The petitioner submitted a blank CR form through NSG to the IO on 10th May 2010. As per extant policy, time limit for IO to initiate report is 20 days. Since the petitioner did not receive any communication from the IO, i.e., Major General S.K. Bharadwaj, he sent reminders in July, August and September 2010. The petitioner would produce these letters to support his claim. Since the CR was not initiated and there was a gap in the CR, the petitioner applied for waiver to cover up the gap. This was refused vide MS Branch letter dated 31st March 2013 despite the facts that the gap in the CR was not due to the fault of the petitioner and waivers have been granted by the MS branch. Due to this gap in the CR profile, the petitioner was withdrawn for the second time during Selection Board considerations in April 2011 despite the fact that the petitioner had an interview with the MS. Had it not been for this gap in the CR, the petitioner could have served for two more years in the rank of Major General. Insistence on the CR from the IO by respondents appears to be on a flimsy ground. The fault was with the IO and even if the CR was lost, he could have initiated a CR on his own as per policy. The MS Branch gave no instruction to the IO to this effect. The petitioner would claim that Lt Col Vishal Dubey was granted a waiver of CR...

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