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Judgment
Invoking the jurisdiction of this Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007, the applicant, a retired Lieutenant Colonel, has
called in question action of the respondents in the matter of expunging the confidential report assessment made by the Initiating Officer (JO) for the
period August 2016-May 2017. The prayers made in the application read as under:
(a) Set aside Order No. PC-36501/17393/Armd/2018/M5-19/304/SC/20189-D(MS) dated 28.10.2018 rejecting the statutory complaint dated
28.05.2018;
(b) Direct the respondents to produce the relevant records and the order en facing the impugned CR assessed by the 10 covering the period
of June 2016-May 2017, which may be restored the assessment of the 10 in the ACR June 2016 to May 2017 without any enfacement/
moderation; and
(c) Direct the respondents to reconsider the case of the applicant after restoring the original assessment in the CR 2016-17 as a Special
Review (Fresh) case.
The statutory complaint filed by the applicant was rejected by the competent authority on 05.10.2018 and the prayer for restoration of the expunged
CR was rejected.
The applicant was commissioned in the Indian Army (Armoured Corps) on 02.09.2000 and it is said that due to his consistent extremely good
performance, throughout his career, he earned Annual Confidential Reports ranging from 'average' to 'outstanding'. It is said that in the No. 3
Selection Board held between 24.04.2018 to 02.05.2018, case of the applicant was considered for promotion to the rank of Colonel and when the
results of the Selection Board were declassified on 10.05.2018, the applicant states that he was shocked and surprised when his name was missing
from the empanelled officers' list. It is said that the applicant had earned CR while serving with the NCC Directorate covering the period from August
2016 to May 2017, the CRs were initiated by Gp Capt TSS Krishnan, an Indian Air Force officer. It is pleaded that in this CR, the applicant was
graded 'outstanding' by the JO. However, the Ministry of Defence, Army HQs by the impugned letter, has expunged this grading. Being aggrieved,
the applicant preferred a statutory complaint on 28.05.2018, which was rejected on 28.09.2018 and communicated to the applicant on 05.10.2018.
The grievance of the applicant is that the expunction of CR for the period 2016-17, which was assessed by the 10 as 'outstanding', is unsustainable,
illegal and arbitrary. He also contends that without any justifiable reason and in an illegal manner the CR had been expunged in spite of the fact that
the applicant had earned figurative assessment of '9' points in the box grading. It is also alleged that in the impugned order, no reason has been stated
as to what were the factors which motivated the expunction of the CRs in question. It is argued that in the absence of reasons being communicated to
the applicant, he is handicapped in assailing the same, therefore, the prayer made is that the records be summoned, perused and action taken. It is the
case of the applicant that in an illegal and arbitrary manner, the assessment made by the 10 was treated as inflationary and expunged and there is no
reasonable justification for the same.
Placing reliance on the order dated 15.12.2011 rendered by a Division Bench of this Tribunal in the case of Brig. VG. Cole v. Union of India and
others (0.A No. 377 of 2011), learned counsel for the applicant argued that when the assessment made in the CR of the incumbent therein was
expunged, the same was held to be arbitrary and the observations made by the Tribunal in the aforesaid case with regard to arbitrariness and
unjustifiable action in expunging the CR in the manner done applies in toto to the case of the applicant also and, therefore, the application be allowed.
Learned counsel thereafter took us through various aspects of the matter to say that without any justification and reasonable cause, only to somehow
deprive the applicant of his right for promotion, the impugned action has been taken.
The respondents have filed a detailed counter affidavit and they have produced the relevant documents viz. the CR dossier of the applicant and the
copy of the notings, based on which the expunction was ordered to say that in this case the entire assessment of the applicant's Annual Confidential
Report made by the JO was highly inflationary in nature. It was inconsistent with the policy laid down by the competent authority viz. the Military
Secretary Branch. Taking us through the aforesaid policy and the action taken in the instant case it was submitted on behalf of the respondents that
the performance of the officers in the Indian Army are assessed periodically in terms of the instructions issued on the subject in the form of Army
Orders and policy letters. The earlier policy viz. Army Order No. 45/2001/MS issued on 09.07.2004 was superseded/amended by the current policy,
Army Order No. 02/2016/MS issued on 23.02.2016. In this case, scrutiny of the CR by the MS Branch has been done strictly in accordance with the
policies applicable and as there is no arbitrariness or illegality in the matter, it is said, the entire assessment made by the JO has been expunged by the
competent authority viz. Chief of Army Staff (COAS), after following the requirement of the statutory provisions and the policy. It was submitted on
behalf of the respondents that all the CRs of the officers are received in the MS Branch of the IHQ of the MoD for the purpose of undertaking
internal assessment for technical validity as well as assessment validation. The assessment check is carried out based on computer output to examine
consistency with the overall profile and unjustified deflation and inflation. The assessment is carried out in accordance with Para 148 of Army Order
No. 02/2016/MS, which is reproduced as under:
Assessment Check. The CR when checked for objectivity in reporting will also be analysed for consistency of the performance of the ratee and
corroboration of the report within the reporting officers and with ratee 's past profile. Depending upon variation from past profile of the rate against
parameters like performance in past CRs, environment of current and past CRs, Adverse Remarks/ special achievements in the past,course profile,
rating tendency of reporting officers, recommendations of higher reporting officers on the assessment of lower reporting officers, etc,, the CR may be
accepted as it is or with enfacement for Inflated/ Deflated report, to be reflected on Master Data Sheet for Selection Boards/Panels. However, CR
identified as grossly inconsistent or with inflationary/ deflationary/ subjective reporting, after due examination at appropriate level may be expunged by
the COAS. (emphasis added).
It was argued that in the case of the applicant, the assessment check indicated that the IO's assessment in the impugned CR was inflated and
inconsistent with his past profile, was uncorroborated, did not match the pen picture and thus was expunged by the competent authority. The statutory
complaint of the applicant was also examined in the light of the requirement of the policy and finally, as there was no case for reconsideration, the
same has been rejected.
Learned counsel for the respondents placed before us the original documents viz. the CR dossiers of the applicant and the notings leading to the
expunction and argued that as everything has been done strictly in accordance with the requirement of the policy and the system/procedure laid down,
the action taken by the respondents does not call for any interference.
We have heard the learned counsel for the parties at length and have also taken note of the policies and perused the original records produced
before us and we find, on a combined reading of the policies placed before us, that for the purpose of undoing the harm that is caused by inflationary
reporting of CR, policies have been issued by the MS Branch from time to time and as detailed herein above, the policy of 09.07.2004 had been
modified by the subsequent policy viz. Army Order No. 02/2016/MS of 23.02.2016. A perusal of these policies indicates that the appraisal system in
the Army provides a major input to officers' career management. It is indicated in the policy that the system can function only if assessment by the
reporting officer is objective in nature. Based on the statistics available and the past experience, it is said that having observed that there is lack of
objectivity in reporting of CR leading to overall inflation, various criteria have been laid down in the policy for preventing such inflationary reporting.
As indicated herein above, in Para 148 of the assessment check contained in Army Order No. 02/2016/MS, a detailed procedure for assessment
check has been made out and the procedure for setting aside the CR or its expunction by the COAS is indicated. If we analyse the procedure laid
down in the assessment check, it can be seen that the CR is checked for objectivity in reporting and is also analysed for ensuring consistency of the
performance and corroboration of the reporting by the Reporting Officer with the ratee's past performance and various other criteria as is laid down in
the aforesaid Para 148. On scrutiny of the records produced before us, we find that in the case of the applicant, the assessment for the period In
question i.e. June 2016 to May 2017 was made when he was posted in NCC Directorate and his JO was an officer from the Indian Air Force viz. Gp
Capt TSS Krishnan. As per the procedure in vogue, the report of the JO is to be placed before the Review Officer (RO) and thereafter, it has to be
reviewed by the Senior Reviewing Officer (SRO). Both of them are officers in the rank of Major General in the Army. In Part II, the applicant has
been graded '9' in all the Personal Qualities at Para 9(a) to 9(k). In the Demonstrated Performance Variables at Para 10(a) to (g), the applicant has
been graded '9' in all except 9(e) - 'Relationship and support at all levels, including ability to understand others' point of view', in which he has been
rated '8'. In the Pen picture at Para 12(c), the JO has remarked that the applicant needs to be a listener and be more flexible for better man-
management. However, it is seen that this CR is a one-man report viz. the JO and there is no review by the RO or the SRO on account of the fact
that the RO had retired and was not eligible to review the CR and the SRO refused to make the assessment on account of the fact that he had no
knowledge about the working of the applicant. While the assessment check was carried out in the MS Branch in accordance with the requirement of
Para 148 of AO No. 02/2016/MS, it was found that though the applicant had earned box grading of '9' by the 10, there were remarks with regard to
certain shortcomings noticed and areas for improvement. His past overall performance (average) of CR grading came to '8.37', whereas the present
average performance for the period in question came to '8.89'. As per the policy and the system applicable, the overall performance variation could
not be more than +0.30. In the case of the applicant, it was found that the variation in the performance for the period in question was beyond the
permissible limit. It was +0.52 and the difference between the past overall performance and the present overall performance was +1.73 times more
than the permissible CR average. It was also found that the assessment did not match with the past performance of the ratee. Even though he had no
low assessment in the past, there was inflation in the average beyond the permissible limit.
It was also found that the CR is a one-man report made by the TO only, an Indian Air Force officer, who had endorsed the performance
assessment. On scrutiny of the report in the backdrop of the assessment check provided under the AO, it was found that it was inherently inflated, not
adequately justified and was not at all in conformity with the past profile of the ratee. Further, the remarks made by the TO in Para 12(c) pointing out
certain shortcomings did not match with the box grading. It was found that the CR violated the assessment norms laid down in the AO and if
permitted to be retained would provide undue benefit to the ratee. It was, therefore, recommended that the complete assessment of the TO should be
expunged on these grounds. These aspects were evaluated again by the competent authority and thereafter, they were placed before the COAS, who
ordered for expunction of the entries.
On an overall analysis of the records, we find that the assessment has been expunged on account of the fact that the past profile of the applicant
and the assessment made did not match with the present performance which he had earned in the NCC Directorate. Moreover, the endorsement
made by the JO was without any endorsement by RO and the SRO, was inflated and did not meet the norms laid down in the AO in question. That
being so, a perusal of the original records indicates that the impugned action was taken based on evaluation of the entries made by the JO not only
based on the requirement of the policy viz. AO 02/2016/MS, but after taking note of the past performance, comparison of the average performance in
the past and the present, the difference in the projections made in the pen picture and the box grading awarded and various other relevant issues
which are the factors determining recording of CR in the Force.
We find that it is a case where the IO's assessment of the impugned CR was found to be inflated, inconsistent with the past profile and was
uncorroborated and was expunged after due consideration in a fair and objective manner in accordance with the policy issued by the competent
authority. That being so, once we are satisfied on perusal of the original records that there is no illegality, aberration or violation of the policy, mala
fides or arbitrariness involved in the impugned action, the settled principle of law warrants that interference in such matters, within the jurisdiction of a
Court or Tribunal exercising judicial review of such administrative decision, should be avoided. It is a case where neither any mala fides are pleaded or
established nor any arbitrariness is evident from the facts of the records. On the contrary, subjective satisfaction has been arrived at by the competent
authority in accordance with the requirement of the policy and the material available on record which has been scrutinised in all fairness to meet the
requirement of the Force and the policy.
This being the position, we see no reason to make any indulgence into the matter. We may also point out that the judgment in the case of Brig.
V.G. Cole (supra) relied on by the learned counsel for the applicant will not apply to the facts and circumstances of this case for the simple reason
that in the said case, it was found that the expunction ordered did not meet the requirement of the then existing policy viz. Para 137 of AO No.
45/2001/MS. The competent authority, without any justifiable reason in an arbitrary manner, which is not reflected from the records directed for
expunction and it was in these circumstances, interference was made by this Tribunal. In the case on hand, no such discrepancy, unreasonableness or
arbitrariness as was found by the Tribunal in the case of Brig. VG Cole (supra) are available and, therefore, we are of the considered view that no
interference in the matter is called for.
Accordingly, the 0.A is dismissed. No order as to costs.
The records received in sealed cover be sealed and returned back to the official representative. Pronounced in open Court on this the \\ day of
November, 2020.