Bipin Bakshi vs Union Of India And Others

,,,,

Vide separate order, OA has been rejected.",,,,

Learned counsel for the applicant made oral prayer for grant of leave to appeal which is opposed by the learned counsel for the respondents.,,,,

Learned counsel for the applicant has not been able to point out any question of law of public important involved in the case which warrants grant of,,,,

appeal. As such, oral prayer of the applicant is declined.",,,,

Heard the arguments on both sides and perused the pleadings and documents on record, including the CR Dossier of the applicant, Statutory",,,,

Complaint File and the Board proceedings of the Special Selection Board (SSB) for General Cadre Officers of 1982 Batch, held in December 2016,",,,,

which were handed over to the Tribunal after the final hearing on 19.09.2019.,,,,

The applicant, an Engineers (General Cadre) Officer of Major General rank belonging to the 1982 batch, who has not been empanelled for",,,,

promotion to the rank of Lieutenant General by the Promotion Board (SSB) held in December 2016, has filed this 0.A under Section 14 of the Armed",,,,

Forces Tribunal Act, 2007 with the following basic prayers:",,,,

(i) Quash and set aside the assessment of Senior Reviewing Officer (SRO) in the ACRs for the period 07/13-04/14, 11/14-07/15 and 08/15-",,,,

02/16 as well as the assessment of the Initiating Officer (TO) in the ACR for the period 08/15-02/16;,,,,

(ii) Scrutinise the proceedings of the SSB for 1982 batch General Cadre Officers held in December 2016 and check whether Value,,,,

Judgment marks have been correctly allocated based on service/ posting profile;,,,,

(iii) Quash and set aside the MS Branch policy letter dated 04.01.2011 on 'Conduct of Selection Boards by Quantified System' by declaring,,,,

that the extrapolation of marks for 'staff' report from 'Command' report contained therein is bad in law; and,,,,

(iv) Direct the respondents to consider him as a Special Review (Fresh) case in comparison with his original batch after granting him,,,,

redress on the aforesaid prayers and grant him promotion as Lieutenant General and consequential benefits accordingly.,,,,

Learned counsel for the applicant has submitted that the applicant was commissioned in the Corps of Engineers on 12.06.1982 and performed,,,,

exceptionally well on courses as well as in command and staff appointments throughout due to which he was promoted from time to time, including",,,,

promotion as Brigadier on 01.03.2009, selection for the General Cadre the same year and, after command of an Infantry Brigade and posting as BGS",,,,

(IW) Northern Command, he was promoted as Major General on 01.12.2014. Counsel has also highlighted the fact that the applicant was selected for",,,,

the Higher Command and National Defence College courses and was awarded the Vishisht Seva Medal (VSM) in 2004 as a recognition of his,,,,

distinguished services.,,,,

Mr. Garg, learned senior counsel appearing on behalf of the applicant, has contended that while the applicant was serving as BGS (IW) Northern",,,,

Command, the SRO harmed him in the ACR for the period 07/13-04/14 due to the reason that ""the applicant being a Sapper (Engineers) Officer, was",,,,

performing well in the General Cadre, particularly as he is the youngest and senior most in his batch"". Further, it has been contended that, despite",,,,

having adequate qualifications and extensive experience in field areas/ hilly terrain and, having requested for posting in the rank of Major General for",,,,

command of an active Division in field in Northern or Eastern Commands, the applicant was posted to a Division in 'peace' in a Plain/Desert sector,",,,,

which he alleges was done ""only with the aim to ensure that a non-infantry/ armoured/ mechanised infantry officer is not promoted to higher ranks in",,,,

the General Cadre"". It has been averred that despite having performed very well as a Division Commander, for which appreciations were conveyed to",,,,

him on a number of occasions, the applicant's ACRs for the periods 11/14-07/15 and 08/15-02/16 were 'lukewarm' and thus were not reflective of his",,,,

actual performance. He attributes such assessments by his reporting officers to the fact that they wanted to put him down as he was an Engineer,,,,

Officer who was young of age and thus had the potential to rise to the highest echelons of the Army. The applicant has also alleged that during that,,,,

period, his Initiating Officer (IG), viz. Respondent No. 4 (his second Corps Commander), had developed some interpersonal differences with him as",,,,

the applicant did not accept the unwarranted castigating of the Commanding Officer (CO) of one of the units under the applicant's command. The,,,,

applicant also believes that his SRO during that period (then COAS) arbitrarily lowered his ACR assessment despite the fact that neither the SRO nor,,,,

the PSOs from Army HQ had visited his formation during the reporting period. Thus he alleges that the SRO's assessment was completely subjective,,,,

and 'not performance based'. After command of the Division, the applicant was posted to Headquarters Northern Command but could not earn a CR",,,,

in staff from February to October 2016 due to organisational constraints, and thus he was put at further disadvantage because his ACR marks for",,,,

'staff' got extrapolated from his marks for 'command' reports. Subsequently, in the Promotion Board held in December 2016, the applicant was not",,,,

empanelled for promotion to the rank of Lieutenant General. In response to the Statutory Complaint preferred by him on 05.05.2017, the applicant was",,,,

granted partial redressal by Respondent No. 1 vide order dated 30.01.2018, in that the assessment of the SRO in CR 07/13-04/14 with regard to Para",,,,

19(b) â€" Vision and Conceptual Ability and Para 21(a) â€" Recommendations for Employment for Command and Staff were expunged. Thus, the",,,,

applicant was granted a Special Review (Fresh) SSB in January 2019, wherein, as per the orders dated 09.10.2018 of this Tribunal, the officer was",,,,

considered by comparing his fresh marks with the marks of the last selected officer in his original batch who had been cleared for promotion and not,,,,

with the new batch, overlooking the contents of the new MS Branch policy letter dated 23.12.2017. Despite that, the applicant was not empanelled for",,,,

promotion. Now, the applicant is due for a final review by the SSB that is scheduled to be held in October 2019.",,,,

Learned counsel for the applicant has asserted that the SRO (then COAS) has unfairly reduced the applicant's rating from outstanding (9) to above,,,,

average (8) and this, he avers, is irrational and arbitrary, as there is nothing material to substantiate this lowering of rating. He has also argued that the",,,,

Initiating Officer (Corps Commander) in his second ACR as Division Commander lowered his rating, without justifiable reason, purely due to",,,,

interpersonal differences. Learned counsel has asserted that the reporting officer cannot lower the quantified rating if he has not mentioned anything,,,,

adverse in the pen picture. In support of his arguments, he has placed reliance on the following decisions of the Hon'ble Supreme Court:",,,,

(i) P. K. Shastri v. State of M.P and others (AIR 1999 SC 3273);,,,,

(ii) Rajendra Singh Verma (D) through LRs v. Lt Governor of NCT of Delhi and another (2012 AIR SCW 3996); and,,,,

(iii) Dev Dutt v. Union of India and others (2008) 8 SCC 725.,,,,

Learned counsel for the applicant has also contended that the Value Judgment marks of the applicant were reduced disproportionately during the,,,,

SSB in December 2016, which is contrary to the existing policy on the subject which directs that, in such cases, justifiable reasons should be recorded,",,,,

which, he claims, has not been done in the applicant's case.",,,,

Further, the learned counsel contends that in the Quantification Marks policy which has been disseminated vide letter dated 04.01.2011, 46 marks",,,,

have been allotted for ACR marks in the rank of Major General in 'command' and 14 marks for ACRs in the rank of Major General in 'staff'.,,,,

However, as the applicant did not earn an ACR in staff in the rank of Major General, the 14 marks for ACR in staff were extrapolated from his",,,,

marks in command in the same rank, which is patently unfair, considering that ratees are graded more strictly in command ACRs. Learned counsel",,,,

contends that this policy of 2011 was not approved by the Government of India (MoD) prior to issue, a fact that was highlighted by the Hon'ble Delhi",,,,

High Court in its decision in V.S.5 Goudar v. Union of India and others (W.P No. 5303 of 2012 decided on 19.11.2012) and thus, the aforesaid",,,,

extrapolation policy cannot be applied in such cases. Learned counsel contends that the GoI (MOD) did not approve the policy of 04.01.2011 even,,,,

upto 2017, after which the said extrapolation policy was discarded.",,,,

With regard to the relief granted to the applicant in response to his Statutory Complaint, learned counsel contended that if the SRO's report of 2013-",,,,

14 was found by the respondents to be inconsistent, then the subsequent reports by the SROs in ACRs of 2014-15 and 2015-16 should also be deemed",,,,

to be inconsistent and set aside accordingly.,,,,

Mr. Bhati, learned Senior Central Government Standing Counsel (Sr. CGSC) appearing for the respondents, has controverted the arguments made",,,,

on behalf of the applicant. The respondents have not disputed the fact that the applicant is a meritorious officer, as borne out by the fact that he was",,,,

promoted upto the rank of Major General. However, the learned Sr. CGSC has specifically denied that his non-approval for promotion to Lt General",,,,

reflects any bias or vindictiveness against the applicant on account of the fact that he was an Engineer Officer who had been inducted into the,,,,

General Cadre. Learned Sr. CGSC has also denied that the SRO in CR 07/13-04/14 underrated his performance only on account of the fact that he,,,,

was an ACR of 2013-14 in Brigadier rank was expunged by the first respondent on the premise that it was inconsistent, then the future assessments",,,,

of the SRO in the next two ACRs (2014-15 and 2015-16), which were in Major General rank, should also be deemed inconsistent and discarded,",,,,

describing it as illogical. After all, the SRO, in case of ACR 2013-14, was the GOC-in-C Northern Command assessing the performance of the",,,,

applicant in the appointment of BGS in staff, whereas the SRO, in case of ACRs 2014-15 and 2015-16, was the Chief of Army Staff (COAS) who",,,,

was assessing the applicant's performance in command in the role of GOC of a Division. The COAS has to review the ACRs of all Division,,,,

commanders in his capacity as SRO and he, based on the inputs before him, is in a position to do so judiciously and objectively even if he does not visit",,,,

each Division.,,,,

Further, the respondents have contended that the decisions of the Honible Supreme Court, which have been relied upon by the applicant, are",,,,

clearly distinguishable from the merits of the applicant's case and thus do not support his case.,,,,

Learned Sr. CGSC has also denied the applicant's contention that the Board Members in the SSB conducted in December 2016 lowered his Value,,,,

Judgment (Vi) marks because he was a General Cadre inductee. In fact, the Board Members were fair in their judgment and this fact can be verified",,,,

from the records.,,,,

Further, with regard to the applicant's challenge to the policy of extrapolation of marks from the ACRs in command to staff in the rank of Major",,,,

General, the respondents have asserted that the said policy, issued vide letter of 04.01.2011, was approved by the first respondent. The respondents",,,,

have submitted Note No. 8(52)12006-D(MG) dated 04.02.2011 in the Court, which is reproduced as under:",,,,

IMMEDIATE Ministry of Defence D(MS),,,,

Subject,' Review of Quantified System for Selection Boards-Extrapolation of criteria reports for non-criteria reports and vice versa.",,,,

Reference correspondence resting with Army 11Q Notes No.A/21501/Q5/MS-5 dated 6-1-2011 and No. 04502/MS Policy dated 12.1.2011,,,,

on the above subject.,,,,

The following policy of extrapolation presently in vogue has been approved by the Competent Authority:-,,,,

In the absence of non-criteria reports, the proportionate weightage shall be derived from criteria reports in the same rank and vice versa",,,,

The above may be widely disseminated to the environment/posted on the Army Intranet.,,,,

Sd/-,,,,

Thus, at the time the said policy was implemented in the applicant's case, it had the seal of approval of the first respondent (Gol/ MoD) and had",,,,

already been implemented for promotion for over five years since its promulgation.,,,,

While concluding his arguments, the learned Sr. CGSC has also contended that the system of extrapolation was unavoidable to ensure timely",,,,

holding of SSB and was a policy which was exercised uniformly for all similarly affected officers. Thus, any attempt to set aside the policy",,,,

retrospectively at this stage would create chaos in the system. The respondents have also referred to the policy of 04.01.2011 and contended that,,,,

logically, the weightage of marks allotted for ACRs in the quantified system should be maximum for performance in the last rank and, to that extent, if",,,,

the applicant's contention for extrapolation for staff marks in the Brigadier's rank is accepted, the overall assessment for promotion to the next rank",,,,

would get skewed, which needs to be avoided in the interest of ensuring that only those officers whose performance is the best in the rank of Major",,,,

General, who are fit for command of higher formations, come up higher in merit accordingly and are approved for promotion.",,,,

Consideration:,,,,

We have given careful consideration to the arguments on both sides and find that the primary issue before us is, whether the applicant has been",,,,

treated unfairly in not approving him for promotion to the rank of Lieutenant General in the Special Selection Board (SSB) for Major Generals of the,,,,

General Cadre, which was held in December 2016",,,,

We find that the arguments made on behalf of the applicant are that the quantified assessment by the RD in the applicant's second ACR as Major,,,,

General was subjective and unfair. Further, he has alleged that his respective SROs in his last ACR as Brigadier in staff and in both his ACRs as",,,,

Major General in command of a Division underrated him in a subjective and irrational manner. The learned counsel for the applicant has also alleged,,,,

bias against the applicant on account of the fact that he was an officer from the Corps of Engineers who had been selected for the General Cadre and,,,,

who, on account of his younger age profile, was suitable for promotion to the higher echelons of the Army. It has also been claimed on behalf of the",,,,

applicant that he was assessed unfairly, without supporting justification, in the five marks for Value Judgment that were allotted by the Board",,,,

Members during the Promotion Board. He has also alleged that the quantification policy of Respondent No. 3 (Military Secretary) vide letter of,,,,

04.01.2011 was unfair. In this regard, he has relied upon the order of the Honble Delhi High Court in the case of V.5.5 Goudar (supra) to contend that",,,,

Type of CR,No.3 SB,No.2 SB,No.1 SB,SSB

Criteria (Ma] / Lt Col),50,15,-,-

Staff/Instr/Others

(Maj/Lt Col)",39,07,-,-

Criteria (Col),-,45,19,04

Staff/Instr/Others

(Cols)",-,23,08,02

Criteria (Brio),-,-,46,20

Staff/Instr/Others

(Bng)",-,-,18,06

Criteria (Maj Gen),-,-,-,46

Others (Maj Gen),-,-,-,14

CR Total,89,90,91,92

Courses,04,03,02,01

Honours & Awards

(Gallantry Awards

only)",02,02,02,02

Quantified Total,95,95,95,95

Value Judgment,05,05,05,05

Grand Total,100,100,100,100

considered by the Selection Board members for Value Judgment as given in succeeding paragraphs.,,,,

Performance,,,,

(a) Operational experience / Battle Performance Reports,,,,

(OP PAWAN, OP MEGHDOOT, OP VIJAY (KARGIL)/ or Subsequent Operations in future) throughout the career.",,,,

(b) Consistency in overall performance.,,,,

(c) Service in difficult field areas and in relatively challenging environments.,,,,

Potential. Suitability for being employed in higher ranks.,,,,

Recommendations for Promotion Officer should have been consistently recommended for promotion to the next rank.,,,,

Honours and Awards, Distinguished Service Awards will be Value Judged based on the achievement for which the award is earned,",,,,

service at which earned and appointment held. Gallantry Awards after being given weightage in two SBs will be value judged by subsequent,,,,

SBs.,,,,

Special Achievements. Any special achievements e.g, in sports, adventure, activity, grant of civil awards etc. will be highlighted for",,,,

award of Value Judgment marks.,,,,

Disciplinary / Administrative Awards. While assessing officers with disciplinary background, the gravity and nature of the offence and",,,,

the service level at which the offence was committed will be taken into consideration. Irrespective of the position in the merit list, officers",,,,

with the following will not be recommended for promotion:-,,,,

(a) Cases involving moral turpitude, gross negligence, acts of cowardice or unofficer like behaviour which reflects on the moral fibre of an",,,,

officer.,,,,

(b) Negative character traits.,,,,

(c) Poor performance in combat and operational situations.,,,,

Weak Remarks. The weaknesses reflected in CRs, course reports and other documents filed in CRO will be value judged.",,,,

Review,,,,

The revised Quantified Model for Selection Boards will be reviewed after a period of five years for implementation. This policy,,,,

supersedes all earlier policies on the Conduct of Selection Boards by Quantification System.,,,,

After the aforesaid policy came into being, the name of the applicant was considered by the competent Selection Board for promotion to the rank",,,,

of Major General in the General Cadre and, accordingly, he was promoted on 01.12.2014. Thereafter, the applicant was considered for promotion to",,,,

the rank of Lieutenant General by the Special Selection Board in December 2016, but he was not empanelled. The said non-selection resulted in the",,,,

applicant filing a Statutory Complaint before the competent authority. Post filing of the Statutory Complaint, the applicant filed the instant O.A.",,,,

A reading of the relevant Regulations, the communications as well as the policy letters issued by the respondents would show that the Army",,,,

provides opportunity of three considerations to an officer for promotion. Every officer is first considered as a fresh case. In case, he fails to be",,,,

selected, he is granted a second consideration as a first review case and if he still does not succeed, then he is granted third and last consideration as a",,,,

final review case. In the first review, the officer is considered with the next batch and in the final review, he is considered with the next to next batch",,,,

respectively.,,,,

We find from the records that the applicant was considered by SSB in December 2016 based on the extant policy of that time and, since he was",,,,

lower in merit as against the available limited number of vacancies, he was not empanelled for promotion. Further, none of the CRs in the reckonable",,,,

profile were found to be subjective by Respondent No.1 while deciding the statutory complaint dated 05.05.2017, thus the redressal granted by the",,,,

Government related to certain endorsements by the SRO in ACR 2013-14 in previous rank of Brigadier was wholly on account of inconsistency, and",,,,

not due to subjectivity, bias or technically invalidity. The Government of India, vide order dated 30.01.2018 granted partial relief to the applicant by",,,,

way of expunction of the following assessments of the SRO in the CR 07/13-04/14 for being inconsistent:,,,,

(a) Para 19 (b) - Vision and Conceptual Ability.,,,,

(b) Para 21 (a) - Recommendations for Employment for Command and Staff.,,,,

The applicant was given fresh consideration as a Special Review Fresh case in an SSB held in January 2019, wherein his fresh quantified marks were",,,,

compared to the marks and merit of his original batch, in tune with the order dated 09.10.2018 of this Tribunal, after partially allowing Prayer (iv)",,,,

made by the applicant in the instant O.A.,,,,

Having perused the impugned ACRs and the proceedings of the SSB held on 17.12.2016, in which the applicant was considered along with other",,,,

Major Generals of his batch (1982 â€" General Cadre), we observe as under:",,,,

(a) Both reports earned by the applicant while in command of the Division were 9/9/8 reports which appear consistent and well corroborated. The,,,,

applicant was recommended for promotion in command in both reports.,,,,

(b) The applicant did not receive any ACR in staff prior to conduct of SSB in December 2016, due to which his marks for staff in Major General's",,,,

rank were extrapolated from his marks in command for consideration by the SSB.,,,,

(c) The SSB on 17.12.2016 considered 62 officers of Major General rank, which included 43 Fresh cases of 1982 batch, 12 First Review cases of",,,,

1981 batch, 04 Final Review cases of 1980 batch, 02 Special Review (Fresh) cases of 1981 batch and 01 Special Review (Fresh) case of 1980 batch.",,,,

(d) There were a total of 17 Lt General vacancies for which selection was made. Of these, 15 vacancies were for command and staff stream and 02",,,,

vacancies were for 'staff only' stream.,,,,

(e) The applicant was placed at merit number 56 after computing the quantified marks out of 95. After adding of average Vi marks out of 05, the",,,,

applicant was placed at merit number 55, out of a total of 100 marks.",,,,

Further, having perused the relevant records, we are of the considered view that there is no substance in the contention of learned senior counsel",,,,

that the SRO in CR 07/13-04/14 had not assessed the applicant commensurate with his performance. We also find no basis in the contention raised by,,,,

learned senior counsel for the applicant that the SRO assessed him as 'Above Average' (and not as 'outstanding') since he was an Engineer Officer in,,,,

the General Cadre, young in age and would have risen to higher echelons. Furthermore, facts on record do not show that the assessment of TO in the",,,,

CR 08/15-02/16 was not commensurate to performance of the applicant. Mr. Bhati has pointed out that the open portion of the JO's assessment had,,,,

been communicated to the applicant and the assessments by the 10 and the Reviewing Officers were objective and performance based, which, in our",,,,

view, do not warrant any interference.",,,,

With regard to the pleadings and prayers by the applicant in his 0.A, we are in agreement with the respondents that promotion to the rank of Major",,,,

General in General Cadre for 'Command and Staff' does not confer a right on him to claim command of a Division in a particular terrain or area. The,,,,

decision to place officers are taken by the competent authority taking all relevant factors into consideration, including seniority, command exit and",,,,

experience, as has been reportedly done in the applicant's case.",,,,

Further, we are also in agreement with the respondents that no officer, including the applicant, has any legal right to claim that he or she should",,,,

mandatorily be assessed outstanding by all the reporting officers in any CR. Further, the box grading is not meant to reflect the mathematical average",,,,

of assessment in individual qualities, but is an overall assessment by the Reporting Officers whether a ratee is 'above average' or 'outstanding'.",,,,

Further, the extrapolation of marks from criteria to non-criteria reports had been approved by the competent authority and was done as per established",,,,

policy, as is clear from the policies at Annexures R1, R2 and R3.",,,,

With regard to the allegations of flaws in the quantification policy of 04.01.2011, in Hardev Singh v. Union of India and another (2011) 10 SCC",,,,

121, it was categorically held by the Hon'ble Supreme Court that it is always open to an employer to change its policy in relation to giving promotion to",,,,

the employee and that the Court would normally not interfere in such policy decisions. Similarly, in Bala) Employees' Union v. Union of India (2002) 2",,,,

SCC 333, the Hontle Supreme Court held that a Court cannot strike down a policy decision taken by the Government merely because it feels that",,,,

another policy would have been fairer or wiser or more scientific or logical. It is not within the domain of the Court to weigh the pros and cons of the,,,,

policy or to test the degree of its beneficial or equitable disposition.,,,,

With regard to the allegation that his reporting officers were biased against him because he was a General Cadre inductee from the Corps of,,,,

Engineers, it is our opinion that whenever allegations as to mala fides are levelled, sufficient particulars and cogent materials making out a prima facie",,,,

case must be set out in the pleadings, as held in the case Purushottam Kumar lha v. State of Jharkhand and others (2006) 9 SCC 458 wherein the",,,,

Honible Supreme Court, in Paragraph 23, as under:",,,,

Vague allegations or bald assertion that the action taken was mala fide and malicious is not enough. In the absence of material,,,,

particulars, the court is not expected to make 'fishing' inquiry into the matter. It is equally well established and needs no authority that the",,,,

burden of proving mala fides is on the person making the allegations and such burden is 'very heavy'. Malice cannot be inferred or,,,,

assumed. It has to be remembered that such a charge can easily be 'made than made out' and hence it is necessary for the courts to examine,,,,

it with extreme care, caution and circumspection. It has been rightly described as the last refuge of a losing litigant':",,,,

To that extent, it appears to us that the applicant has levelled the allegation of bias and mala fide while being well aware that he is short of material",,,,

to prove it. The allegation of mala fide, his primary contention, thus has no legs to stand on.",,,,

To summarise, we do not find any apparent lack of objectivity, or arbitrariness or malice in the results of the Promotion Board held in December",,,,

2016 in which the applicant was not empanelled for promotion to the rank of Lt General. After examination of the impugned CRs of the applicant, we",,,,

do not find any merit in his prayer to interfere in these CRs, with a view to enhance his quantified marks and resultantly, improve his quantified merit.",,,,

Further, we find that the extrapolation of marks from command to staff in the rank of Major General was done by the respondents in keeping with the",,,,

provisions of extant policy dated 04.01.2011, which stood approved by the first respondent, and which was applied uniformly in the Army after that",,,,

date. Furthermore, we find that there is no evidence on record that show that the merit position of the applicant went down after allocation of Value",,,,

Judgment marks. In fact, the applicant's merit improved after computation of Value Judgment marks.",,,,

In the result, we find no merit in the case of the applicant and the same is dismissed, without any order as to costs.",,,,

Pronounced in open Court on this the 11th day of October 2019.,,,,