OA 1447 of 2011. Case: Uttam Dixit Vs Union of India. Armed Forces Tribunal
| Case Number | OA 1447 of 2011 |
| Counsel | For Appellant: N.K. Kohli, Col (Retd.) Advocate and For Respondents: Gurpreet Singh, Sr. PC |
| Judges | Prakash Krishna, J. (Member (J)) and D.S. Sidhu, Member (Ad.) |
| Issue | Armed Forces Tribunal Act 2007 - Sections 22, 22(1)(a), 27 |
| Judgement Date | May 30, 2014 |
| Court | Armed Forces Tribunal |
Order:
(Chandigarh, Regional Bench At Chandimandir)
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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.
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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 Review and Final Review case in the months of May, 2009 and December, 2009 but was not empanelled.
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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 Government of India, 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.
(d) Issue such other order/direction as may be deemed appropriate in the facts and circumstances of the case.
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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.
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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.
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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 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.
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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.
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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.
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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 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
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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.
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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'.
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In reply, the learned counsel for the respondents submits that the present petition is barred by time. He submits that first statutory 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...
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