Yesudian Sugu Mar P vs Union Of India And Others

,,,,,

This instant Original Application has been filed under Section 14 of the Armed Forces Tribunal Act, 2007 by the applicant, an officer of Colonel",,,,,

rank in the Army Medical Corps (Non-Technical Branch), who feels aggrieved by the fact that he was not empaneled for promotion to the rank of",,,,,

Brigadier against the lone Brigadier rank vacancy in the cadre, for which Promotion Board was held on 26.11.2018. The applicant has assailed the",,,,,

order of Respondent No.3 (IHQ of MoD (Army)) vide letter dated 08.03.2019, whereby Col. Y.P. Singh (Respondent No.4) had been empaneled for",,,,,

promotion in the aforesaid promotion board, consequent to which, orders had been issued for Respondent No.4 to assume the new rank on 01.10.2019.",,,,,

The statutory complaint filed by the applicant in this regard also stands dismissed by Respondent No.1 (Government of India/ MoD) on 16.09.2019,,,,,

during the pendency of 0.A, which action the applicant has also put to challenge being unjust and arbitrary. The applicant primarily has made the",,,,,

following prayers:,,,,,

(a) Call for all the documents regarding the procedure for Reporting, Confidential Reports and Annual Confidential Report grading of Col. Y.P. Singh",,,,,

(Respondent No.4) and the Applicant, and verify the same for inflationary trends in grading or any discrepancy as per the ACR policy vide A.O.",,,,,

01/2010/DGMS;,,,,,

(b) Verify whether the correct procedure, as laid down in the ACR policy, A.O. 01/2010/DGMS, was followed in grading such ACRs of both Col.",,,,,

Y.P. Singh and the applicant and if the reviewing officers have faulted in scrutinizing the ACRs, then declare all the ACRs that have violated the spirit",,,,,

of A.O. 01/2010/DGMS as technically invalid;,,,,,

(c) Quash the order dated 16.09.2019 of the first respondent, whereby the applicant's statutory complaint was dismissed.",,,,,

This Tribunal had earlier heard the arguments of both sides and reserved the matter for orders on 26.09.2019, but thereafter de-reserved it on",,,,,

01.10.2019 after seeking certain clarifications. In the meanwhile, during the pendency of the 0.A, the Tribunal decided not to interfere with the",,,,,

promotion of Respondent No. 4 to the rank of Brigadier in an understanding that such a promotion would be subject to the final decision of the,,,,,

Tribunal in the matter. After a substantial delay caused by the COVID-19 pandemic, the case was heard afresh by a new Bench reconstituted due to",,,,,

the retirement of the Hon'ble Member (J) on the earlier Bench.,,,,,

Heard the arguments of Mr. Jaideep Singh, learned counsel for the applicant, Mr. Harish V. Shankar, learned counsel for Respondent Nos. 1 to 3",,,,,

and Mr. I.S. Singh, learned counsel for Respondent No. 4. Perused the pleadings and the documents on file, including the Promotion Board file, CR",,,,,

Dossiers of the applicant and Respondent No.4 as well as the written submissions handed over to the Tribunal.,,,,,

Facts of the case, as averred by the applicant, are that he was enrolled as a Direct Entry Havildar (SKT) in the Army Medical Corps in 1989 and",,,,,

subsequently selected for permanent commission as an officer in the Non-Technical Cadre of the Army Medical Corps with effect from 20.01.1993.,,,,,

The applicant was promoted to the rank of Colonel in May 2016 and thereafter appointed as Quarter Master at Armed Forces Medical College, Pune,",,,,,

where he earned two CRs. Respondent No.4 had, in the meanwhile, been promoted as Colonel in December 2015 and was posted as Quarter Master,",,,,,

initially in Command Hospital (Eastern Command), Kolkata in 2016 and counsel submitted that on 05.02.2015, the first respondent issued a policy letter",,,,,

titled `Procedure for Selection and Promotion of Armed Forces Medical Corps Officers', in which, in Para 9, the eligibility criteria for promotion was",,,,,

laid down, which states that minimum two ACRs are required in the present rank before qualifying for consideration by the Promotion Board, viz.",,,,,

Colonel rank in this case. Further, the learned counsel has alleged that though Respondent No.4 got the highest box grading in his ACR for 2016, his",,,,,

ACR was not endorsed by his SRO, though the endorsement could have been obtained by the respondents (Respondent No.3) even if the previous",,,,,

SRO had retired from service. Paras 3.24 and 3.24.5 of AO 1/20 10/IDGMS in this regard were referred to, which are reproduced as hereunder:",,,,,

3.24 The purpose of endorsement by SRO is to ensure objectivity of reporting and to avoid 'one-man report'. Towards this, it should be",,,,,

ensured by the SRO that lower reporting officers endorse CRs as applicable, and render objective assessment on the ratee. Endorsements",,,,,

on CRs by the SRO would be mandatory under the following conditions:-,,,,,

3.24.1 When there is a difference in assessment between lower reporting officers of three or more marks in Personal/professional qualities,,,,,

or a difference of one mark or more in box grading.,,,,,

3.24.2 Adverse, Review and Special CRs (other than Special CR called by DGAFMS for the purpose of Promotion Boards).",,,,,

3.24.3 CRs initiated on officers under disciplinary case with permission of the SRO.,,,,,

3.24.4 When between 10 and RO only one reporting officer has endorsed (including endorsement of 'Insufficient Knowledge').,,,,,

124,5 Exceptionally outstanding, Low/ below average assessment by10 & RO.",,,,,

3.24.6 When there is a variance in the pen picture of the JO and RO."" (emphasis supplied)",,,,,

Learned counsel thus contended that the ACR for 2016 in respect of Respondent No.4 is technically invalid as per Paras 7.23 and 7.24 of the same,,,,,

AO and thus could not have been taken into consideration by the Promotion Board. Learned counsel referred to Paragraphs 7.23 and 7.24, which read",,,,,

as under:,,,,,

Scrutiny of CRs at Office of DGAFMS",,,,,

7.23. All ACRs on receipt at the office of DGAFMS will be subjected to scrutiny during the internal assessment as per relevant SOP on the,,,,,

subject, for correct entitlement, channels of reporting, completion of CR forms in all respects and objectivity of reporting.",,,,,

The CRs initiated in violation of the requisite period of service, prescribed criteria for eligibility of CR and channel of reporting will be",,,,,

rendered technically invalid. CRs with technical defects may be placed under observation to seek clarification of the ratee and/ or of the,,,,,

reporting officerstvhen required (emphasis supplied),,,,,

The learned counsel has contended that, with regard to reporting of ACRs, the respondents are indulging in selective reading and interpretation of",,,,,

policy, which practice has been held illegal by the Hontle Supreme Court in Manik La! Majumdar and others v. Gauranga Chandra Dey and others",,,,,

(AIR 2005 Sc 1090).,,,,,

Further, learned counsel for the applicant has alleged that Respondent No. 3 has demonstrably lowered the applicant's ACR grades while allowing",,,,,

inflation of the grades of Respondent No.4. Reference has been made to Page 13 of the ACR form, wherein there is a specific column asking the",,,,,

approving authorities among the respondents, viz. Dir AFMS (CRD), Dy DGAFMS (HR), Additional DGAFMS (HR) and DGAFMS, to verify",,,,,

whether any irregularities have been observed in the ACR process, which the applicant claims was not done scrupulously. Thus, it has been",,,,,

vehemently asserted that the Tribunal must verify the CRs from 2007 to 2017 of Respondent No.4 in this context, viz, for inflation of his ACRs, which",,,,,

consequently led to his being promoted over the applicant. Learned counsel contended that Article 14 of the Constitution guarantees equality and any,,,,,

unfair and irregular procedure is in direct contravention of this principle and in the case at hand, it is writ large. Learned counsel has also contended",,,,,

that there is a mismatch between the numerical gradings and the pen pictures in the ACRs of Respondent No. 4 and placed reliance on the orders of,,,,,

the Lucknow Bench of this Tribunal in Surafit Basu v. Union of India and others (0.A No. 96 of 2017 decided on 05.01.2018) to seek that the relevant,,,,,

box gradings be downgraded.,,,,,

Learned counsel for the applicant also contended that as the statutory complaint has been dismissed through a laconic order, therefore, the said",,,,,

order dated 16.09.2019 needs to be quashed. Reliance in this regard has been placed on the order in Surajit Bose (supra). Para 49 of the said order is,,,,,

reproduced as under:,,,,,

A lot of adjectives have been used by the Government while rejecting the statutory complaint of the applicant. There is not even a,,,,,

whisper of the grounds taken by the applicant in his statutory complaint and how those grounds are not substantiated. Thus, the impugned",,,,,

order dated 28.11,2016 also suffers from vice of arbitrariness being unreasoned and cryptic and is hit by Article 14 of the Constitution of",,,,,

India.,,,,,

Mr. Harish V Shankar, learned counsel appearing on behalf of Respondents No.1 to 3, on the other hand, has refuted the arguments made on",,,,,

behalf of the applicant. The learned counsel, at the outset, has raised an objection on the ground of maintainability in that the present challenge would",,,,,

not fall within the contours of being a 'service matter', contending that permitting such 0.As would, in effect, set off a highly disturbing trend where",,,,,

people hereafter would resort to challenges that are not directly affecting them, but would start challenging acts being done to others on the ground",,,,,

that these would affect them at some point in the future. He has also objected to the nature and contents of the applicant's arguments, which imply",,,,,

that the applicant has had unauthorised access to the confidential documents (ACRs) in respect of Respondent No.4. Further, the applicant, in his",,,,,

pleadings, has implied that many senior officers of the AMC as well as all senior functionaries of the office of the DGAFMS were colluding with",,,,,

Respondent No.4 for many years viz. from 2007 to 2017, with the aim of putting down the applicant. Learned counsel asserts that the manner in",,,,,

which the allegations have been made against the entire system in the Armed Forces Medical Services is not only in bad taste, but are not",,,,,

corresponding to reality. This, according to Mr. Shankar, has put serious questions on the applicant's personal qualities as an officer, even to the extent",,,,,

of raising a question whether he is fit for promotion to higher office. Mr. Shankar has averred that, whereas the applicant keeps alleging that ACRs of",,,,,

Respondent No.4 were inflated, however, he has, very conveniently, remained silent on similar trends in reporting in his own ACRs.",,,,,

With regard to the allegation made by the applicant that ACR of 2016 in respect of Respondent No.4 was technically invalid, which turns out to be",,,,,

the bullet argument of the applicant, learned counsel has denied the same and submitted that the contentions and allegations made by the applicant that",,,,,

Respondent No.3 consciously violated the prescribed channel of reporting in the case of Respondent No.4, while allowing no deviation in the",,,,,

applicant's case, is devoid of merit. Learned counsel contends that the laid down channel of reporting for every officer of AFMS is followed",,,,,

meticulously, which is further verified through an internal assessment. The prescribed channels of reporting in respect of the apponitments held by the",,,,,

applicant and Respondent No.4 in the years 2013 to 2017 were correctly followed in the ACRs of that period and can be verified from the records.,,,,,

Learned counsel has also contended that the applicant's contention that there is no scope of DGMS (Army) to endorse ACRs of Lt Cols is misleading,",,,,,

submitting that Para 4.21 of AO 01/2010/DGMS provides the criteria for endorsements of DGMS in the ACRs of Lt Cols, which is reproduced as",,,,,

under:-,,,,,

4.21 The endorsement of DGMS and DGAFMS will be obtained under arrangement of Integrated HQ of MoD (Arm y)/DGMS -1 and the",,,,,

Office of DGAFMS/DG-IX/CRD Cell respectively. The DGMS (Army)/DGDS will endorse the CRs of offrs of the rank of Col and below only,,,,,

under the following circumstances:-,,,,,

4.21.1 All officers on deputation to civil institutions and on Mission.,,,,,

4.21. 2A// adverse reports (does not include adverse remarks by JO & RO).,,,,,

4.21.3All reports graded Exceptionally Outstanding (box grading 9.00) or Average (Box grading 5.00) and below.,,,,,

4.21,4 In case of exceptionally outstanding achievement in the field of profession, academics, sports, adventure activities etc.",,,,,

4.21.5 Any other specific circumstances."" (Emphasis supplied)",,,,,

Another limb of argument advanced on behalf of the applicant, that the ACR of 2016 in respect of Respondent No.4, when he was posted as",,,,,

Quarter Master at Command Hospital (EC), was technically invalid due to the fact that the SRO did not review the said ACR, the learned counsel has",,,,,

asserted that such a contention is false and misleading, and hence denied. Learned counsel submitted that in ACR 2016 of Respondent No.4, the",,,,,

Initiating Officer (TO) and the Reviewing Officer (RO) had endorsed the highest rating as exceptionally outstanding in the box grading for,,,,,

Respondent No.4. Therefore, as per provisions of Para 3.26 of AO 01/2010/DGMS, the endorsement of either present SRO or the previous SRO was",,,,,

necessary. However, the then 'present SRO' of Respondent No.4 was not eligible to endorse ACR as he was having only 22 days of concurrent",,,,,

service with Respondent No. 4 (less than the required 30 days of concurrent service, as the previous SRO had retired on 30.11.2016 prior to initiation",,,,,

of that ACR), this fact was endorsed on the ACR by the present SRO and DGMS(Army) had reviewed the ACR thereafter. It is a sacrosanct",,,,,

procedure of rendition of ACR, that a retired reporting officer will not endorse an ACR unless and until nonendorsement by such a retiree reporting",,,,,

officer is causing the ACR of the ratee to become 'technically invalid'. In this context, the learned counsel submits that Para 3.24 of AO",,,,,

01/2010/DGMS clearly states that the purpose of endorsement of SRO is to ensure objectivity and to avoid 'one-man report'. He referred to Para 3.24,,,,,

of AO 01/2010/DGMS in this regard which is relevant and is reproduced as under:,,,,,

3.24 The purpose of endorsement by SRO is to ensure objectivity of reporting and to avoid 'one-man report:",,,,,

Towards this, it should be ensured by the SRO that lower reporting officers endorse CRs as applicable, and render objective assessment on the ratee.",,,,,

Endorsements on CRs by the SRO would be mandatory under the following conditions:-,,,,,

3.24.1 When there is a difference in assessment between lower reporting officers of three or more marks /17 Personal/professional qualities,,,,,

or a difference of one mark or more in box grading.,,,,,

3.24.2 Adverse, Review and Special CRs (other than Special CR called by DGAFM5 for the purpose of Promotion Boards).",,,,,

3.24.3 CRs initiated under officers under disciplinary case with permission of the SRO.,,,,,

3.24.4 When between 10 and RO only one reporting officer has endorsed (including endorsement of ""Insufficient Knowledge""),",,,,,

3.24.5 Exceptionally outstanding, Low/ below average assessment by JO & RO.",,,,,

3.24.6 When there is a variance in the pen picture of the 10 and RO.""",,,,,

However, it does not contemplate rendition of CR by a retired officer unless the particular CR is becoming 'technically invalid' being a 'one - man",,,,,

report'. In this case, it was not a 'one-man report' as both the 10 and RO had initiated and reviewed the ACR respectively. Further, the ACR met the",,,,,

four 'mandatory provisions' for technical validity as listed in Para 3.1 of the said AO viz. (i) 90 days' physical service under the,,,,,

10 had been completed, (ii) correct channel of reporting for initiation and review was followed, (iii) report was initiated for the appointment, in which",,,,,

ratee was posted (QM CH(EC)) and (iv) both the JO and the RO had endorsed their marks/ remarks and both of them were Medical Officers.,,,,,

Furthermore, as per the provisions contained in Para 3.13 of AO 01/2010/DGMS, the endorsement of retired SRO is required to be obtained only for",,,,,

ensuring technical validity of the CR and hence, such endorsements in the case of Respondent No. 4 was not necessary, since the said CR of 2016",,,,,

was clearly a technically valid report. Para 3.13 of AO 01/2010/DGMS was referred to, for the sake of clarity, which is reproduced as hereunder:",,,,,

3..13 A retired 10 (or RO required to initiate a CR under provisions of this AO) is not entitled to initiate CRs. Technical reporting officers at,,,,,

first level of reporting are also not entitled to endorse ('Rs after retirement. An officer who is due for retirement must initiate CRs as due and,,,,,

applicable and hand over the same to the RO before the date of retirement or on the date he proceeds on leave pending retirement,",,,,,

whichever is earlier. For this purpose, he can initiate reports upto a maximum Of 56 days prior to the date he retires from service. However,",,,,,

endorsement of R0/5RO/STO/HTO/HO5 on CRs may be obtained even after their retirement if essential for technical validity of the CR.,,,,,

Further, learned counsel for the respondents contends that Para 7.24 of AO 1/2010/DGMS, which has been referred to for claiming technical",,,,,

invalidity of CR of 2016 in respect of Respondent No.4, refers to initiation of the ACR by the JO and not to review by the SRO. The first sentence of",,,,,

the said para is reproduced as under:,,,,,

The CRs initiated in violation of the requisite period of+ service, prescribed criteria for eligibility for CR, and channel of reporting,",,,,,

will be rendered technically invalid. (Emphasis supplied),,,,,

3.1 CRs will be initiated and endorsed in accordance with the channel of reporting for AMC Officers will be as per channel prescribed by,,,,,

the Integrated HQ of MoD (Army)/DGMS-IA from time to time. For AMC Officers serving in units controlled by the DGAFM.5 directly, the",,,,,

channel of reporting will be prescribed by DGAFMS/DG-1X/CRD Cell. Any deviation in reporting from the laid down channel may render,,,,,

such report technically null and void. The RO/SRO are responsible for ensuring the correctness of the channel of reporting. However, each",,,,,

case will be considered on its merit. The following mandatory provisions will be applicable without which the CR will be technically invalid:-,,,,,

3.1.1 Completion of 90 days physical service by the rate under officer initiating the report. The same can however be waived in exceptional,,,,,

circumstances in organizational interest of adverse CR as specified at Paragraph 6.5.5.,,,,,

3.1.2 Report is initiated and reviewed as per the laid down channel of reporting.,,,,,

3.1.3 Report is being initiated for the appointment in which the officer is posted during the reporting period.,,,,,

3.1.4 As long as the JO and R0 have endorsed their marks/remarks and if one of them happens to be a Medical Officer (or Dental Officer,,,,,

in case the officer reported upon belongs to the AD Corps) then the ACR is valid. However, if both JO and RO are non-medical officers",,,,,

(non-Dental officers in case officer reported upon is an officer of the AD Corps) then the endorsement of at least a Technical Officer is,,,,,

required. The requirement of Technical reporting can be dispensed with in exceptional cases by the DGMS (Army)/DGAFS (as the case may,,,,,

be).""",,,,,

Thus, in accordance with Para 3.1.4, endorsed their marks/ remarks and, Officers, the ACR is valid. as the 10 and the RO have as both of them are",,,,,

Medical,,,,,

In the context of unsubstantiated allegations of mala fide made by the applicant, learned counsel gave reference to the order of Delhi High Court",,,,,

in Lt Col P N Chaturvedi vs. Union of India (C.W.P No. 6561 of 1999), wherein it was observed; ""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 demand proof of a high order of",,,,,

credibility"", and asserted that no proof whatsoever of mala fi de in respect of the Respondents has been provided by the applicant. That being so, the",,,,,

0.A. deserves to be dismissed on that count itself, learned counsel so submits.",,,,,

Mr. Shankar further submitted that neither the ACRs earned by the applicant nor by Respondent No.4 are under challenge. In the present 0.A, the",,,,,

allegation made by the applicant that ACRs of Respondent No.4 was over-inflated post his promotion to the rank of Colonel in 2015, miserably falls",,,,,

short of truth. It is submitted that, in the impugned Promotion Board No.2 AMC (NT) dated 26.11.2018, as per current policy, ACRs of the last five",,,,,

years of both the applicant and Respondent No.4 constituted the reckonable profile, and accordingly, the comparative weighted product of ACRs of",,,,,

the applicant vis-a-vis Respondent No.4 during the reckonable period clearly denoted that Respondent No.4 had better ACR average as compared to,,,,,

the applicant, be it in the rank of Lt. Colonel or Colonel and Promotion Board proceedings of Promotion Board No. 2 AMC (NT) dated 26.11.2018",,,,,

may be perused by the Tribunal to verify this aspect. Furthermore, the respondents have averred that the ACRs earned by an officer in the junior rank",,,,,

of Lt Col cannot be compared with ACRs earned by him in a senior rank of Colonel. Even the demonstrated qualities listed in the ACR forms of Lt.,,,,,

Colonels and Colonels are different, therefore, ACR averages of an officer as Lt. Colonel may be lower than that earned in the rank of Colonel",,,,,

(select grade) and there cannot be any comparison between these. Significantly, similar trends would also be apparent in any evaluation of ACRs of",,,,,

the applicant also.,,,,,

With regard to the allegation of favourable postings given to Respondent No.4, learned Counsel submitted that this contention by the applicant also",,,,,

does not stand the test of veracity as officers are posted to various units and appointments based on laid down posting policy and as per organisational,,,,,

requirements. Decade long posting profiles of the applicant as well as Respondent No.4 is appended as under, which make this amply clear:",,,,,

Applicant:,,,,,

,,,,,

SI. No.

1","Unit

Mil Hospital

Khadakvasla","Command/Formation

Southern Command","Appointment

Administrative

Officer","Period

Nov 2006 to Oct

2008","Duration

02 years approx.

2,431 Field Hospital,Southern Command,Quarter Master,"Oct 2008 to Apr

2011","02 years & 06

months

3,Mil Hospital Jalandhar,Western Command,"Company

Commander","Apr 2011 to May

2013","02 years & 1

month

4,"AMC Centre & College,

Lucknow",Central Command,"Accounts

Officer","May 2013 to Sep

2014","01 year & 04

months

5,"Base Hospital Delhi

Cantt",Western Command,"Company

Commander","30 Sept 2014 to 01

Mar 2015",05 months

6,"Office of DGMS

(Army), New Delhi",Western Command,"Additional

Officer MPRS

(0)","Mar 2015 to Apr

2016","01 year & 01

month

7,"Armed Forces Medical

College, Pune",Southern Command,Quarter Master,Apr 2016 till date,"03 years & 04

months (so far)

of exceptionally outstanding ACRs.,,,,,

Consideration by the Tribunal:,,,,,

We have given careful consideration to the arguments made by the learned counsels for both sides and find that the primary issue before us is,",,,,,

whether there was any infirmity in the proceedings of the Promotion Board No.2 which was conducted on 26.11.2018 for filling up the lone vacancy,,,,,

of Brigadier occurring in the Army Medical Corps (Non-Technical Cadre) in 2019, in terms of technically invalid ACR in respect of Respondent No. 4",,,,,

having been considered by the Board, as alleged by the applicant, whereby Respondent No. 4 was approved for promotion, whereas the applicant was",,,,,

rejected. Objections regarding maintainability as well as the applicant's access to confidential information have been raised by the respondents.,,,,,

However, we have decided to consider the matter on the main issue in the interests of justice, without entering into other aspects, which might divert",,,,,

our attention.,,,,,

To start with, we have perused the CR Dossiers of Respondent No.4 and the applicant, which were handed over to us, and find the following:",,,,,

(a) The chakiel of reporting has been correctly followed in respect of the ACRs in the reckonable profile of both Respondent No.4 and the applicant.,,,,,

(b) The JO, RO and SRO have endorsed their marks/ remarks in all the ACRs of Respondent No. 4 in the reckonable profile years, except the SRO",,,,,

in ACR 2016 (Commandant, Command Hospital (EC)), who has endorsed on the said ACR that he does not fulfil the criteria of completing a",,,,,

minimum of 30 days of concurrent service. The DGMS (Army) has reviewed the said ACR thereafter, possibly as it was an 'exceptionally",,,,,

outstanding' ACR. The endorsement of the HTO (MG Med HQ Eastern Command), which he had done after retirement, was expunged by the",,,,,

Respondent No. 3 on 16.06.2017 as it was found to be in contravention of the rules. Further, in the case of ACR for 2015 in his case, the SRO (GOC-",,,,,

in-C ARTRAC) did not review the said ACR as he did not wish to endorse. This was in accordance with the instructions contained in Para 3.25 of,,,,,

AO 01/2010/DGMS, wherein the SRO can exercise an option to make such an endorsement in circumstances when the mandatory conditions as per",,,,,

Para 3.24 were not applicable.,,,,,

(c) In case of the Applicant, the TO, RO and SRO have endorsed their marks and remarks on all the ACRs in the reckonable profile, except in the",,,,,

case of ACR for 2017, where the SRO/ HTO (DGAFMS) has not endorsed the ACR on ground of 'Insufficient Knowledge'. In no case was",,,,,

downward moderation resorted to by Respondents No. 2 or 3 in case of exceptionally outstanding CRs of the applicant.,,,,,

We have also perused the subject file No. CC/18836/ PB(A)2/ BRIG/ AMC(NT)/ 2019/ DGAFMS/ DG-IX titled 'Proceedings of the Promotion,,,,,

Board (AFMS) No.2 : AMC(NT) held on 26 Nov 2018' and find the following :,,,,,

(a) There was only one anticipated vacancy in the rank of Brigadier in the AMC(NT) occurring in the year 2019, for which Promotion Board was",,,,,

convened on 26.11.2018 to select the said officer from among the Colonels who were eligible to be considered for the post.,,,,,

(b) Minimum two officers in 'first chance' were required to be included in the zone of consideration for the Promotion Board. Thus, Respondent No.4",,,,,

(of 1991 batch) and Col. LC Katoch (of 1992 batch), the next senior-most Colonel of AMC(NT), were included. However, as Col. LC Katoch was",,,,,

due to retire on 30.11.2018, much before occurrence of the said vacancy on 01.10.2019, one additional eligible officer had to be included in the",,,,,

'agenda' of the Promotion Board. Thus, the applicant (of 1993 batch) was included as the third Colonel in the zone of consideration.",,,,,

(c) The number of ACR years to be considered were five, i.e. from 2013 to 2017, of which, three were in the rank of Lt. Colonel and two (latest) in",,,,,

the rank of Colonel. The cut-off ACR in the rank of Colonel for this Promotion Board was fixed as ACR of 2017, or Non Initiation Report (NIR) of",,,,,

that period in lieu. Weightage of ACR marks to be considered by the Board was 50 percent in the rank of Colonel and 50 percent in the rank of Lt.,,,,,

Colonel.,,,,,

(d) Merit list for the Promotion Board was prepared by computing the extrapolated ACR average for each officer (out of 90 marks) and adding the,,,,,

average of Value Judgment (VJ) marks (out of 02 marks) given by the Members during the Promotion Board. In case if the VJ marks altered the,,,,,

overall comparative merit of an officer, resulting in change in his promotion prospects, the Board would have needed to record the reasons for",,,,,

awarding the low/ high VJ marks, to assist the Competent Authority to appreciate the rationale for the same.",,,,,

(e) No marks were awarded for 'awards/ decorations' or for 'qualifications' to any of the officers who were considered.,,,,,

(f) Respondent No.4 secured the maximum marks in the overall computation of marks, viz. ACR marks, extrapolated out of 90, added to the average",,,,,

of VI marks out of 02, and thus was placed as first in overall merit. The applicant was placed at second rank and Col. LC Katoch was placed at third",,,,,

rank. As the comparative overall merit remained the same before and after addition of the VJ marks, there was no reason for the Board to record",,,,,

reasons for allocation of low/ high VJ marks.,,,,,

Thus, to summarise the results of our perusal of the CR Dossiers and the Board Proceedings of the Promotion Board, we do not find any infirmities",,,,,

apparent in the rendition of ACRs or in the conduct of the Promotion Board No.2 for AMC (NT) held on 26.11.2018.,,,,,

May be at the cost of repetition, with regard to the main argument before us, we find that, primarily, learned counsel for the applicant, has",,,,,

contended that one of the ACRs of the reckonable period in respect of Respondent No.4, viz. ACR of 2016 rendered in the rank of Colonel, was",,,,,

incomplete, as the SRO had not reviewed the said ACR, and thus the ACR was 'technically invalid. Counsel has referred to Para 3.24 of relevant",,,,,

Army Order (AO) 01/2010/DGMS wherein, on the subject of 'Endorsement of CRs by the SRO', it is mentioned that endorsement of CR by SRO",,,,,

would be mandatory when the assessment by the 10 and RO is 'exceptionally outstanding', which had occurred in the said ACR of 2016. He has",,,,,

contended that, therefore, the said ACR was technically invalid and consequently, the approval of Respondent No.4 by the Board for promotion was",,,,,

flawed, and accordingly, the proceedings of the said Promotion Board should be set aside. Mr. Shankar, assisted by Mr. IS Singh, learned counsels for",,,,,

the respondents/ Respondent No.4, on the other hand, have argued that, though the ACR of 2016 in respect of Respondent No.4 was not reviewed by",,,,,

the SRO as the then 'present SRO' had not completed 30 days of concurrent service and the 'previous SRO' had retired from service earlier on,,,,,

30.11.2016, nonetheless, there was no technical invalidity in the said ACR in view of the contents of Para 3.26 of the said AO where it is stated "" In",,,,,

case the endorsement by SRO is mandatory in terms of Para 3 24 above, Previous SRO may endorse the CR when Present SRO is not entitled or not",,,,,

posted. However, Previous SRO also should fulfill condition of 30 days service within the period covered by the CR, otherwise it should be annotated",,,,,

as ""Present and previous SRO not eligible"" and signed by the present SRO."" The present SRO had made such an endorsement in the ACR, and the",,,,,

previous SRO had retired, there is no technical invalidity in ACR of 2016. Further, counsel has asserted that there is no infirmity warranting technical",,,,,

invalidity in the said ACR as none of the four mandatory provisions as per Para 3.1 of the said AO had been violated in its rendition, viz, the ratee",,,,,

completed 90 days physical service under the 10, the channel of reporting for initiation/ review was adhered to, the report has been raised for the",,,,,

appointment in which the ratee was posted (QM, Command Hospital (EC)), and the JO and RO, who had both endorsed the said ACR, are Medical",,,,,

Officers.,,,,,

Having considered the aforesaid arguments made before us on the technical invalidity, or otherwise, of ACR of 2016 rendered on Respondent",,,,,

No.4, and having carefully perused the ACR itself in light of the relevant paras of AO 01/2010/DGMS placed before us, we find that the ACR of",,,,,

2016 was initiated correctly by the TO (Brig i/c Administration) and P.O (Deputy Commandant) of CH(EC), and subsequently reviewed by the",,,,,

DGMS(Army), the immediate superior of the SRO (Commandant CH(EC)), who endorsed in the pen picture portion of SRO that he could not review",,,,,

the ACR as he did not complete the mandatory 'concurrent' service eligibility criteria. There is also a related annotation in pencil in the ACR that Maj,,,,,

Gen TS Ahluwalia, the previous SRO, had retired on 30.11.2016. We are of the opinion, therefore, that the said ACR meets the mandatory provisions",,,,,

for technical validity, as listed in Para 3.1 of the said AO. Thus, we are of the view that the said ACR cannot be said to be technically invalid ACR",,,,,

and the proceedings of the impugned Promotion Board do not merit any interference from this Tribunal on that count.,,,,,

Learned counsel for the applicant has also alleged mala fide on behalf of Respondent No.4 as well as Respondents 2 and/ or 3 behind repeated,,,,,

postings of Respondent No. 4 to Army Hospital (R&R), first from 2007 to 2011 and thereafter with effect from 2017, which it has been alleged",,,,,

enabled him to gain undue influence with senior officers during these tenures, thus resulting in exceptionally outstanding ACRs being rendered on him",,,,,

subsequently. This argument does not appeal to us there being no basis for the same, much less any valid and cogent evidence in this regard. It is well",,,,,

settled that it is very easy to allege 'mala fide' but very difficult to prove. One can very comfortably make allegations but whether those allegations are,,,,,

made out or not, the burden is heavily on the person who alleges it. The allegations of mala fide 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 EP. 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 mala fides made by the petitioner against the second,,,,,

respondent.,,,,,

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: Make cannot be inferred or assumed.,,,,,

It has to be remembered that such a charge can easily be 'made than made our 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:",,,,,

We are of the considered view that the allegation against Respondents Nos. Respondent No. 4. applicant has failed to prove any 2 and 3 in showing,,,,,

favour to Tribunal must facilitate and support an exercise at the behest of the applicant of 'shooting in the dark' to gain dividends and achieve his,,,,,

promotion, which we consider as an exercise in futility, which is neither advisable nor practicable. In any case, in our opinion, such an exercise does",,,,,

not fall within the purview and rules of this Tribunal and is thus avoidable.,,,,,

In the result, we find the 0.A lacks merits and deserves to be dismissed. Ordered accordingly. No order as to costs.",,,,,

Pronounced in open Court on this day 2nd of September, 2020.",,,,,