Transfer Application No. 96 of 2016. Case: D.V.S. Rana Vs Union of India and Ors.. Armed Forces Tribunal

Case Number:Transfer Application No. 96 of 2016
Party Name:D.V.S. Rana Vs Union of India and Ors.
Counsel:For Appellant: K.C. Ghildiyal, Advocate and For Respondents: V.P.S. Vats, Learned Counsel assisted by Soma John, OIC Legal Cell
Judges:D.P. Singh, J. (Member (J)) and Air Marshal Anil Chopra, Member (A)
Issue:Army Act, 1950 - Sections 10, 18, 21, 22, 23; Constitution Of India - Articles 14, 21, 309, 310, 310(1), 310(2), 311, 33
Judgement Date:February 08, 2017
Court:Armed Forces Tribunal
 
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Order:

D.P. Singh, J. (Member (J)), (Regional Bench, Lucknow)

  1. O.A. preferred by the petitioner bearing No. 01(J)/2016 before the Armed forces Tribunal, Regional Bench, Jabalpur has been transferred to this Bench by the Hon'ble Chairperson of the Armed Forces Tribunal Principal Bench, New Delhi for adjudication of the controversy raised in the petition. The petitioner has assailed the CRs covering the period 01.01.2014 to 30.06.2014 and 01.07.2014 to 26.03.2015 and prayed for issuance of a direction to the respondents to consider his promotion to the rank of Lieutenant General from the respective date when immediate junior to him has been promoted with all consequential benefits as a Special Review (Fresh) case.

  2. We have heard Shri K.C. Ghildiyal, learned counsel for the petitioner and Shri VPS Vats, learned counsel for the respondents, assisted by Maj Soma John, OIC Legal Cell, and perused the record.

  3. The factual matrix of the case is that the petitioner was granted permanent commission in the Indian Army on 13.06.1981 in Punjab Regiment of Infantry as a Second Lieutenant. Later on, because of his bright service record, the petitioner was granted promotions to the ranks of Lieutenant, Captain, Major, Lieutenant Colonel and thereafter to the rank of Colonel. The petitioner commanded a Unit in the Kashmir valley for about 29 months and his performance was adjudged as most outstanding. In view of his extra-ordinary performance in the capacity of Commanding Officer as aforesaid, the petitioner was awarded Vishisht Seva Medal (VSM). Because of his outstanding performance/profile, the petitioner was promoted to the rank of Brigadier and posted in North East as Brigade Commander, HQ 11 Mountain Brigade at Goalpara (Assam) on 01.07.2009. For his distinguished performance as Brigadier in counter insurgency environment, he was awarded Sena Medal (SM). Thereafter, the petitioner was promoted to the rank of Major General on 01.01.2014. While posted as General Officer Commanding (GOC) 2 Mountain Division, the petitioner earned two ACRs. The first ACR covering the period from 01.01.2014 to 30.06.2014 was initiated by Lt Gen S.L. Narasimhan, the then GOC, 3 Corps on 03.07.2014 as Initiating Officer and it was reviewed by Lt Gen MMS Rai, the then General Officer Commanding-in-Chief (GOC-in-C), Eastern Command as Reviewing Officer (RO). The petitioner was assessed as outstanding by the Initiating Officer in figurative assessment with a complimentary pen picture, copy of which has been annexed as Annexure A-7 to the petition. It is averred that the RO after endorsing the ACR had forwarded the same to MS (X) on 03.08.2014, through which the same was to be endorsed by the SRO i.e. the Chief of the Army Staff. The second CR was initiated by Lt Gen Bipin Rawat, the then General Officer Commanding 4 Corps. It was an interim CR covering the period from 01.07.2014 to 26.03.2015. In this ACR, the petitioner was assessed as outstanding in figurative assessment with commensurate pen picture, appending appreciation that the petitioner had performed consistently (vide Annexure A-9 to the petition). The Initiating Officer forwarded the aforesaid CR for review by Lt Gen MMS Rai, the then GOC-in-C, Eastern Command, who after review was supposed to forward it for endorsement to the SRO, who happens to be present Chief of the Army Staff. It has been stated that the petitioner possessed extraordinary overall performance and consequently he was awarded Ati Vishisht Seva Medal (AVSM) on 26.01.2015 for distinguished services of exceptional order.

  4. Vide letter dated 22.09.2015, tentative scheduled date for holding of the Special Selection Board (SSB) for promotion to the rank of Lieutenant General sometime in October, 2015 was intimated. In the said selection, the Major Generals belonging to the general cadre of 1981 batch were to be considered by the SSB. Since the petitioner was in eligibility zone, he was also considered by the SSB convened on 15.10.2015 alongwith others and a list of panel of officers approved for promotion to the rank of Lt Gen of general cadre was issued by respondent No. 3 on 21.04.2016. The said list contained the names of 14 officers excluding the name of the petitioner, hence being aggrieved the petitioner preferred the OA before the Armed Forces Tribunal, Regional Bench, Jabalpur, which on transfer to this Bench is before us as present TA.

  5. Following important questions emerge for consideration and adjudication in the present case:

    (1) Whether the SRO can record his opinion in the CR after retirement?

    (2) What shall be the effect of pen picture upon the box grading?

    (3) Whether box grading can be provided ignoring opinion expressed in pen picture?

    It has been submitted by learned counsel for the petitioner that the CR profile of the petitioner has been manipulated with the avowed object of lowering down his quantified merit to help some chosen officers in getting promotion. He has drawn our attention to the omission on the part of the SRO of not sending acknowledgement of CR endorsed by them to the petitioner so as to know as to when the CR has been endorsed by the SRO. It is submitted that the assessment has been manipulated in two CRs covering the aforesaid period in two significant criteria reports in the rank of Maj Gen. The honours and awards bestowed on the petitioner during key operational assignments, leave no manner of doubt of his future prospects making him most probable candidate for promotion to the next higher rank i.e. Lt Gen. It is further submitted that while working as Maj Gen commanding 2 Mountain Division, which is strategically one of the most important Divisions in the North East, enabled bestowal of not only AVSM but he was also assessed outstanding by the first level of reporting officers i.e. Initiating Officers in all his CRs earned by him with a matching pen pictures in both the CRs. The award of AVSM shows the distinguished service rendered by the petitioner as is apparent from the guide-lines filed as Annexure A-12 and copy of citation for Award of AVSM has been filed as Annexure A-13 to the TA.

  6. It is further argued that in derogation of the Army Order 45/2001/MS, the respondents did not divulge the date on which the Senior Reviewing Officers had endorsed the CRs notwithstanding request of the petitioner, which lends credence to the belief of the petitioner that the respondents had acted in the same manner as in the case of Maj Gen K.K. Sinha by bringing him down in his assessment at the level of RO and SRO in one or both the CRs at a belated stage before holding of the SSB to work out the inter se merit. By this reckoning, learned counsel for the petitioner submits, the respondents had placed only those officers in quantified merit against the available vacancies whom they have cherry-picked even before holding of the SSB giving Selection Board only a mechanical task to perform by awarding the value judgment in the same proportion as the quantified merit notwithstanding the fact that the value judgment is supposed to be an objective assessment of the inputs which cannot be quantified and cannot have any co-relation with the quantified merit vis-à-vis Policy dated 04.01.2011.

  7. Learned counsel for the petitioner expressed his doubt that outgoing Chief of the Army Staff Gen Bikram Singh has made endorsement as SRO while serving as Head of the Indian Army; rather he made an endorsement after a pretty long period from the date of retirement/superannuation. It is vehemently argued and submitted that the bestowal of awards of VSM, SM and AVSM while serving as Colonel, Brigadier and lastly as Major General should not be in waste paper-box while appreciating the petitioner's overall performance by SRO and the SSB. The petitioner has also assailed the error committed by the SSB in awarding the value judgment as per the parameters on which the value judgment is required to be assessed denying the petitioner's fundamental right of fair consideration flowing from Article 14 read with Article 21 of the Constitution. Learned counsel for the petitioner relied upon the following cases:

    (1) (1993) 2 SCC 279, Mahesh Chandra versus Regional Manager U.P. Financial Corporation and others;

    (2) (2016) 2 SCC 627, Veerendra Kumar Dubey versus Chief of Army Staff and others;

    (3) (2013) 9 SCC 566, Sukhdev Singh versus Union of India and others;

    (4) (2007) 9 SCC 436, S.T. Ramesh versus State of Karnataka and others;

    (5) (1996) 2 SCC 363, U.P. Jal Nigam and others versus Prabhat Chandra Jain and others; and

    (6) (2013) 16 SCC 293, Vinod Kumar versus State of Haryana and others.

  8. In response, learned counsel for the respondents has refuted the petitioner's submission that any error has been committed by the SSB. His submission is that the SSB takes into consideration various factors, such as war/operational reports, course reports, ACR performance in command and staff/other appointments, honours and awards, disciplinary background and the selection is based upon the overall profile of an officer and comparative merit within the batch. While defending the action of the respondents, learned counsel for the respondents, assisted by Major Soma John, OIC Legal Cell, submits that the Army has a pyramidcal structure, wherein the number of vacancies at higher ranks is limited and the comparative assessment of the officers is done by the SSB is ACR, regulated by SAO 3/S/89 (which has now been replaced by Army Order 45/2001/MS. It is also submitted that the assessments of IO and SRO are independent of each other. The selection/rejection is based upon the overall profile of an officer and comparative merit within the batch as evaluated by the Selection Board. The assessment of the SSB is recommendatory in nature and is not binding until approved by the Central Government. The petitioner has not availed the statutory remedy available to him before the ACC and it is not justified to exclude the ACC...

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