R. Kannan vs Union Of India And Others

Aggrieved by the impugned order dated 17.05.2018 rejecting his Statutory Complaint dated 30.08.2017 against non-empanelment for promotion to

the rank of Major General by No. 1 Selection Board (Fresh) held in October 2016, the applicant has filed the instant 0.A seeking the following reliefs:

(a) Call for the records of the CRs earned by the applicant during his tenure as Commander 3 Arty Brigade and for the records of all the

No. 1 Selection Boards held, in which the applicant was considered;

(b) Quash the order dated 17.05.2018 rejecting the Statutory Complaint of the applicant;

(c) Quash the adverse remark and entire assessment endorsed by the SRO qua the applicant for CR period 29.04.2012 to 10.08.2012 for

being subjective and vitiated by mala fides and issued under extraneous circumstances;

(d) Quash the assessments of the SRO in CRs for the period 21.04.2011 to 19.07.2011 and 11.08.2012 to 31.03.2013 in totality for being

subjective and vitiated by mala fides and issued under extraneous considerations;

(e) Check other assessments endorsed qua the applicant by other reporting officers for the period 21.04.2011 to 19.07.2011, 20.07.2011 to

28.04.2012, 29.04.2012 to 10.08.2012 and 11.08.2012 to 31.03.2013 and thereafter if found to be subjective, be quashed; and

(f) Consider the applicant as a Special Review (Fresh) Case at the earliest by a Special Promotion Board or in the No. 1 Selection Board.

The facts may be shortly stated. The grievance of the applicant primarily relates to alleged subjectivity in his ARs by SRO when he was

commanding a Brigade between 2011 and 2013 and during this period one of the formations under his command at Nyoma, had insubordination/mutiny

kind of situation. The applicant assumed command of 3 Artillery Brigade at Nimu, Ladakh on 21.04.2011 and relinquished it on 31.01.2013. During this

period, four Annual Confidential Reports (ACRs) were made viz. 21.04.2011 to 19.07.2011; 20.07.2011 to 28.04.2012; 29.04.2012 to 10.08.2012 and

11.08.2012 to 31.01.2013. During the period when the applicant was Commander of 3 Arty Bde from April 2011 to January 2013, an incident of

insubordination/mutiny took place at Nyoma on 10.05.2012, wherein an officer's wife was molested by a jawan, which led to an unfortunate and

unexpected clash between the officers and the jawans of the unit resulting in a breakdown of discipline. The applicant being the Commandant went

there to ensure the continuity of discipline and adherence of protocol.

After few months of handing over command of Brigade the applicant put up his first statutory complaint on 13.07.2013, against his CR for period of

07/11 to 04/12. Based on his complaint he was granted partial redressal by expunction of assessments of SRO and HOA in CR. Thereafter he put up

a second statutory complaint dated 05.05.2014 against his CR for the period 04/12 to 08/12. This time his complaint was rejected on the ground that

his AR was well corroborated, objective, performance based without having any subjectivity or bias. Thereafter the applicant was for the first time

considered for promotion to the rank of Major General by No 1 Selection Board, held in October 2016 as a fresh case of the 1984 batch but was not

empaneled. On 24.01.2017 the applicant put up a non-statutory complaint against non-empanelment for promotion. Based on his complaint, the

applicant was granted partial redressal by orders of COAS, by expunction of SRO assessment of relevant paras in the CR for the period 04/11 to

07/11 and 08/12 to 01/13. The COAS additionally directed that after expungement of remarks, the applicant be reconsidered afresh for promotion.

Accordingly, applicant was considered as a Special Review (Fresh) case on 21.04.2017 but was not empaneled. The applicant on 30.08.2017

submitted his third statutory complaint against non-empanelment for promotion. This statutory complaint, after due scrutiny was rejected. On

09.01.2018, the applicant was considered for promotion as a first review case and was not empaneled. In October 2018, the applicant was considered

for promotion as a final Review case and not empaneled. Hence this O.A.

Arguments by Counsel for the Applicant:

Learned counsel for the applicant, at the outset, contends that the respondents have rejected the statutory complaint filed by the applicant dated

30.08.2017 on flimsy grounds, without applying their mind. The impugned order is a stereo type order, without recording any reasons and, therefore,

the same is liable to be quashed. He also contended that the respondents have not taken into account the fact that the applicant had been given

redressal/partial redressal by way of expunging the assessments made by the reporting officers, due to lack of objectivity. Learned counsel for the

applicant further submitted that three of the four CRs earned by the applicant from the SRO during his tenure as Commander 3 Arty Brigade had

been partially or completely expunged and the respondents failed to take into account the fact that all the CRs endorsed during that period were under

the same SRO Lt. Gen. K.T. Patnaik and all these CRs were initiated after the incident at Nyoma, which are reflective of the SRO not being

objective in his reporting with bias in his mind. Furthermore, the respondents failed to consider the fact that the applicant was not responsible for

flaring up the incident at Nyoma. He also stated that the applicant was not communicated of the adverse remark in time so as to enable him to seek

redressal and as per the Guidelines for Rendering Objective Confidential Reports, the purpose of communication of adverse remarks is, inter a//a, to

grant the officer an opportunity to seek redress after the adverse remark has been endorsed and communicated to the officer for timely redressal.

Further, the applicant was not counselled either verbally or in written during his tenure as Brigade Commander by the SRO even though two adverse

remarks were endorsed qua him. As per Para 9(f) of the Guidelines for Rendering Objective Confidential Reports, it is imperative that details of the

adverse remarks as well as the verbal and written counselling are communicated to the ratee.

The learned counsel for the applicant further stated that the SRO influenced other reporting officers, which is borne out by the expungement of the

HOA's assessment in the CR for the period from 20.07.2011 to 28.04.2012, wherein complete assessment and adverse remarks endorsed by the SRO

were expunged. Summing up, the learned counsel for the applicant relied on the decisions in Union of India and another v. Maj. Bahadur Singh (2006)

1 SCC 368, Maj. Gen. Sukesh Rakshit v. Union of India and others (0.A No. 67 of 2015) and Maj Gen. K.K. Sinha v. Union of India and others (0.A

No. 74 of 2015). He pleaded for the OA to be allowed.

Arguments by Counsel for the Respondents:

Justifying the respondents in issuing the impugned order dated 17.05.2018, learned counsel for the respondents submitted that the Government

rejected the statutory complaint filed by the applicant dated 30.08.2017 after taking into account his overall profile, relative merit and comparative

assessment by the No.1 Selection Board and, therefore, there is no illegality or irregularity in the impugned order.

Learned counsel for the respondents pointed out that the number of vacancies in higher ranks is limited and from the broad base of the pyramid,

only those officers whose record of service within a particular batch is better, are selected to fill up the vacancies available in the higher ranks.

Further, 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 as assessed by the Selection Board, they are approved or not approved. Every officer is entitled to only three

considerations â€" Fresh Consideration, First Review and Final Review. In case an officer is not approved as a fresh case, but approved as a first

review or final review case, he loses seniority accordingly vis-a-vis his original batch. After three considerations, if an officer is not approved, he is

deemed permanently as Non empaneled. While considering an officer for promotion to a selection rank, the Selection Board takes into account a

number of factors, including war/operational reports, course reports, ACR performance in command and staff/other appointments, honours and

awards, disciplinary background, etc. Selection or rejection is based on the overall profile of an officer and comparative merit within the batch as

evaluated by the Selection Board. Furthermore, it is up to the Selection Board to assess the suitability of the applicant for promotion and the

assessment of the Selection Board is not binding until approved by the competent authority, the assessment of the Selection Board being only

recommendatory in nature.

In the case of the applicant, he was not empaneled for promotion to the rank of Major General on account of his overall profile, relative merit and

comparative assessment as assessed by the No. 1 Selection Board (Fresh) held in October 2016. The statutory complaint of the applicant was

examined in the light of his overall profile, previous complaints and other relevant documents. After consideration of all aspects of the complaint and

viewing it against the redress sought and granted, it has emerged that all CRs in reckonable profile, including the CR for the period from 21.04.2011 to

19.07.2011; 20.07.2011 to 28.04.2012; 29.04.2012 to 10.08.2012 and 11.08.2012 to 31.01.2013 were well corroborated and objective, therefore, the

instant 0.A deserves to be dismissed, there being no illegality or irregularity in the impugned order.

While concluding his arguments, learned counsel for the respondents submitted that the decisions relied upon by the applicant have no nexus with

the facts of the case on hand as they deal with matters out of the realm of this case. He pleaded for OA to be dismissed.

Consideration by the Tribunal:

Having heard the learned counsel appearing on both sides and perused the records made available to us, including ACR dossiers, we are of the

view that we need to answer the following two questions:

(a) Whether the partial redressal granted by the respondents without fully expunging the assessment of the SRO for the ARs between 2011 and 2013

was justified?

(b) Whether the four Promotion Boards which considered the applicant for promotion to the rank of Major General, including Special Review (Fresh)

case, were held in a fair, objective manner and as per the policy?

Having perused the original records, including the complaints of the applicant, their replies, his original ARs and the four Promotion Board records,

the following factual picture is clear to us:

(a) The Nyoma incident of insubordination/mutiny happened on 10.05.2012. The applicant's SRO had endorsed certain comments in the ARs of the

applicant, which could be construed as adverse in nature. The SRO had reflected these comments in two of the ARs which did not cover the period of

this incident i.e. 10.05.2012. To that extent, the applicant had got relief in response to his first statutory complaint dated 15.07.2013 for the CR period

07/11-04/12. Additionally, on similar grounds, he had also been given redressal by the COAS on his non-statutory complaint dated 24.01.2017 for the

CR period 04/11-07/11 and 08/12-01/13.

(b) After perusing the records in general and the concerned CRs in particular, we are of the opinion that adequate justice has been done to the

applicant. However, the respondents have rejected the second statutory complaint of the applicant and justified the CR covering the period of

10.05.2012. We do not find any justifiable reason to interfere with this opinion of the respondents, particularly so when CR period involves an incident

of mass insubordination/mutiny, in one of the units under the brigade commanded by the applicant.

(c) We have noticed that the COAS has been very fair to the applicant, in that after expunging the remarks of SRO for the CRs outside the period

covering the incident of 10.05.2012, he has ordered the applicant to be considered once again for promotion as a fresh case by holding a Special

Review (Fresh) case Promotion Board for him. The applicant however, was not empanelled in the said Promotion Board based on relative merit with

last empaneled officer.

(d) The applicant has thereafter been considered by Promotion Board in January 2018 as First Review case and subsequently again considered in

October 2018 as Final Review Case. In both these Promotion Boards, the applicant has not been empanelled.

(e) Thus, against the normal of three Promotion Boards, the applicant has been considered by four Promotion Boards, i.e. one additional one by the

specific order of the COAS. We have gone through the records of all the four Promotion Boards and we are of the considered opinion that the

Promotion Boards had been done in a fair manner and no injustice has been done to the applicant and there is no justifiable reason to interfere with

these Promotion Boards.

(f) After perusing the CRs of the applicant, we do not find any merit in the claim of the applicant that because certain remarks of the SRO had been

expunged, therefore, the complete assessment of the SRO for the entire period from 2011 to 2013 should be expunged on the ground of bias and lack

of objectivity and thereafter he should be reconsidered by a Special Promotion Board for the fifth time.

The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order

of credibility, as held by the Hon'ble Supreme Court in Paragraph 92 of E.P. Royappa v. State of Tamil Nadu and another (1974) 4 SCC 3, wherein

Their Lordships, held as under:

Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The

allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high

order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against

the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake

the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the

greater to insist on a high degree of proof in this context, it may be noted that top administrators are often required to do acts which affect

others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion

as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow

to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are

made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating

charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to

enjoy, not because they are highly placed in social life or administrative set up - these considerations are wholly irrelevant in judicial

approach- but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must

assess the merits of the allegations of male fides made by the petitioner against the second respondent.

The decisions in Naj. Bahadur Singh, Maj. Gen Sukesh Rakshit and Maj Gen K.K. Sinha (supra) relied upon by the learned counsel for the applicant

do not lend any help to the applicant as the facts of those cases are distinguishable.

Whenever the allegations as to mala fides have been levelled, sufficient particulars and cogent materials making out a prima fade case must be set

out in the pleadings, as held in the case of Purushottam Kumar Jha v. State of Jharkhand and others (2006) 9 SCC 458, wherein the Hon'ble Supreme

Court, in Paragraph 23, held 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 male 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'.

What appears to us is that the applicant has very conveniently levelled the allegation of bias and mata fide for the sake of it. The applicant is,

however, short of material to prove it. We do not agree that a few inconsistencies in the AR by SRO, which have already been expunged by COAS,

automatically make it a case of bias, lack of objectivity and mala fide by the SRO. We also do not agree with the contention of the applicant that his

complete assessment by SRO should be discarded and he should be reconsidered for promotion by a Special Promotion Board.

Resultantly, we find no illegality or irregularity in the impugned order and accordingly, the instant 0.A merits dismissal and is dismissed. No order

as to costs.

Pronounced in open Court on this the 24th day of December 2019.