ARMED FORCES TRIBUNAL,

REGIONAL BENCH,
JABALPUR

TA/452/2010

Date of Order : 09.01.2017

Hon’ble Mr. Justice Amar Saran, Judicial Member

Hon’ble Lt Gen N.B. Singh, Administrative Member

Rajendra Prasad Mishra ….Applicant

Versus

Union of India & Others .…Respondents

Ld. Counsel appeared for the Applicant - Shri KC Ghildiyal,

Advocate.

Ld. Counsel appeared for the Respondents- Shri HS Ruprah

Central Govt. Counsel
 TA/452/2010

ORDER

Delivered by Hon’ble Justice Amar Saran Member (J)

1. The applicant was enrolled in the Army Medical Corps on

03.05.1983 as a Nursing Assistant. Subsequently he was re-mustered
as a Pharmacist in February 1987. The applicant was promoted to the
rank of Naib Subedar in the year 2003.

2. By the instant writ petition, which has been transferred to this

Tribunal as a Transferred Application (TA) the applicant is challenging
the average grading and adverse remarks in the Annual Confidential
Report (ACR) for the year 2006-2007 by the respondent number 5
(Col B.N. Gupta, Ex-Commanding Officer, 417, Field Ambulance)
which are contained in communication dated 17.03.2008, in his
capacity as Reviewing Officer. Consequent to the adverse remarks of
respondent number 5 in the ACR the applicant has been superseded
and not promoted to the rank of Subedar on 1 December 2008. The
order dated 25.4.2009 passed by the Respondent No.3 (GOC-in-Chief,
Central Command, Lucknow, and the result of the DPC of 2008 are
also being challenged. He also prays for quashing the order of
Respondent No. 2 (Chief of Army Staff, Army Headquarters, DHQ
Post Office, New Delhi) rejecting the applicant’s statutory complaint,
communicated vide letter dated 25.11.2008 and prays for a direction
to the respondents to consider the petitioner for promotion afresh to
the rank of Subedar as on the date of the DPC held during 2008, after
excluding the remarks made by respondent No. 5 in his ACR for the
year 2006 - 07, and to promote the petitioner to the rank of Subedar
w.e.f 01.12.2008 with all consequential benefits.

3. The case of the applicant is that he was fully qualified and eligible
for promotion but he has been denied promotion due to the vindictive
reporting of respondent No. 5 as the reviewing officer. The learned
counsel for the applicant has drawn our attention to a chart contained
in Para 3 of the return filed by the respondents which reads as under:

Year Annual Recommendation (R)/ Unit in which Annual

Confidential Non Recommendation Confidential Report
Report Grading (NR) for promotion by initiated

IO RO IO RO Unit in which Annual

Confidential Report
initiated

1999 3(HA) 3(HA) R R 410 Fd Hosp

2000 4(AA) 4(AA) R R CH (WC) Chandimandir

2001 3(HA) 3(HA) R R CH (WC) Chandimandir

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2002 8(AA) 8(AA) R R MH Belgaum

2003 8(AA) 8(AA) R R MH Belgaum

2004 6(HA) 6(HA) R R MH Alwar

2005 6(HA) 6(HA) R R MH Alwar

2006 7(AA) 7(AA) R R 417 Fd Hosp

2007 6(HA) 4(A) R NR 417 Fd Hosp

2008 8(AA) 7(AA) R R MH Jabalpur

4. From this chart he has sought to argue that other than the year
2007, when the Review Officer (RO) has given the applicant an
Average rating of 4, and NR (i.e. not recommended for promotion), all
other ratings in the chart from 1999 to 2008 by the IO (Inspecting
Officer) or the RO are either HA (High Average) or AA (Above average)
and all are R, i.e. they recommend for promotion. The inconsistent
rating of the RO in 2007 suggests that it was malicious and not
objective.

5. It was submitted that the Average rating of 4 of 2007 was an

adverse rating, and it was not properly communicated in a timely
manner to the applicant, in contravention of the law laid down by the
M.P. High Court in Hav Gambhir Singh Chahar Vs. Union of India,
2007(2) M.P.H.T. 238 and others and the same deserved to be
expunged and eschewed from consideration on this ground also. He
further referred to Paras 45 and 46 of the Army Order, AO 1/2002/MP
dealing with Confidential Reports (CRs) of JCOs and NCOs, for the
proposition that though an “average assessment” is not an inherently
adverse assessment, needing justification in the pen-picture. However,
where the “average” grading adversely affects promotion prospects of
a JCO/NCO it is to be communicated. Where a person has been
graded “Average” and also not recommended for promotion, then the
grading needs to be justified in the pen-picture and also to be
communicated. That was the position in the instant case. Para 45
(supra) also provides that if the assessment was Average/
Not-Recommended (NR) or lower, then full justification along with
periodical warnings were to be mentioned in the CRs.

6. It was further submitted that promotions for PBORs (Persons

Below Officers Ranks) up to the rank of Subedar are made on the
basis of pre-fixed criteria under the Policy letter dated 10.10.1997 on
Criteria For Promotion of JCOs/NCOs unlike higher ranks including
officers, where, there is a greater role for subjective assessment and
the role of a DPC (Departmental Promotion Committee) is also
important. Thus promotion to the ranks of Risaldar / Subedar are dealt
with under Para 7 of the policy letter dated 10.10.1997 which provides
that the last three confidential reports are to be considered out of
which at least 2 should be in the rank of Naib Subedar, and one may
be in the rank of Havildar in the case of a shortfall. All three reports

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should not be less than high average, and the individual should be
recommended for promotion in all the three reports.

7. It was therefore submitted that if the 2007 CR by the RO could be

eschewed from consideration because of inconsistency with the other
reports, then the applicant would have made out a case for promotion.
In their return the respondents have referred to other incidents such
as the refusal of the applicant to serve at ADS Thagu to assist a lady
doctor posted there which has travelled beyond the allegations
against the applicant in the ROs notes and beyond the allegations
regarding the applicant’s alleged misbehaviour and could not have
been taken into account in view of the law laid down in Mohinder
Singh Gill Vs. CEC, (1978) 1 SCC 405.

8. The learned counsel for the respondents, however, argued that

there was no substantial inconsistency in the ACR of average (4
points) given by the RO for the year 2007 from the other ratings of
other years which are either HA or AA. It is possible to have an
adverse performance in a particular year for which a person may
receive an adverse or an average entry. The so called entry was in
fact not adverse, but only because it had been coupled with the RO’s
non-recommendation of the applicant for promotion that it was
required to be communicated under Para 45 of the Army Order, AO
1/2002(MP). In any case once the matter of non-communication of the
adverse entry in the background of the NR report by the RO came to
light, and was pointed out to him by the OIC, Records, he duly made
endorsement of the pen picture on the ACR and the same was also
communicated to the applicant. Therefore the decision in Hav
Gambhir Singh’s case (supra) can be of no assistance to the applicant.
He also pointed out that the said rating was consistent with the overall
performance, and hence the rating was not vindictive or malafide, and
the applicant had also not been able to establish any malice in law or
facts on part of the respondent No. 5, the Review Officer. The rating
was also not set aside by the OIC records or in the statutory complaint
as it was technically correct. Moreover the applicant’s average
grading has been justified by the OIC Records and in the disposal of
the statutory complaint by the Commanding Officer on the basis of his
overall performance which would include the incident of the applicant
not standing up for the Captain and extending the due courtesies to
him, as also in his obdurate refusal to obey the order of the Officiating
Commanding Officer to proceed to ADS Thagu to assist the lady
doctor posted there till he was relieved by Nb/Sub P.B. Chettri who
was to join duty there. Apart from the counter affidavit our attention
was also drawn to the record for demonstrating these background
facts. The applicant also had a background of the following red ink
and other entries and punishments, though in isolation they may not
have been sufficient for justifying the RO’s average grading, but
cumulatively they would carry weight for reinforcing the RO’s
conclusions.

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9. Punishment Awarded.

Ser Offence Punishment awarded Date of Red/Black

No. under award ink entry
Sec
1. 39(a) 7 days pay fine 26 Jun 1985 Black

2. 63 15 days confinement 21 Aug1985 Red

to line
3. 39(a) 14 days RI in mil 30 Jul 1986 Red
custody
4. 63 Reprimand 07 Jun 1994 Black

10. The background allegations against the applicant which gave rise
to this case were that on 27.04.2007 at 12:45 P.M. the applicant was
said to be watching T.V. during working hours in FSC which was
against the rules. Also when Captain HS Walia entered the FSC at
that time the applicant did not get up and salute the officer but kept
sitting. He was asked “KYA SAHIB JAI HIND KA DASTOOR NAHI
HAI”. Then the applicant replied “KYA MAIN SIPAHI HOON” or words
to that effect and asked the officer to sit there. The applicant was
issued a show cause notice on 03.05.2007 by the Commanding
Officer to which the applicant clarified that he was not watching T.V as
he was aware of the Army Rules prohibiting an army person from
watching TV during working hours having served in the Army for 24
years and he had only gone to the FSC to obtain the Oxygen
Concentrator and the T.V. was running for the patients whilst he was
waiting for Naik Ramjeet Singh to come and hand over the equipment
to him. He had not saluted Captain HS Walia because Subdear AK
Shrivastav, his senior was there who had saluted Captain HS Walia
and in his understanding only the senior offers the salute whilst the
other remain in attention.

11. As an illustration of the applicant’s defiance & non-cooperative

attitude, Ld counsel for the respondents has also drawn our attention
in the record to another incident where the Officiating Commanding
Officer had asked the applicant to go to the ADS Thagu to assist a
lady doctor posted there and to remain there till he was physically
relieved by Naib/Sub PB Chettri by a movement order dated
20.08.2016, but he refused to follow the said order and an earlier
notice dated 21.07.2006 which was issued to him by the said Adjutant
to explain why disciplinary action could not be taken against him. He
refused the show cause letter and only when it was served on him by
an armed duty JCO and duty NCO that he acknowledged receiving
the said letter. He falsely accused the Adjutant Captain CH Anupama
for forcibly trying to serve the letter on him. He did not reply to the
show cause notice and insisted on sending a reply only to the ADMS
thereby vitiating the procedure prescribed for proceeding in such
matters and thus vitiating the smooth functioning of the unit.

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12. On a careful examination of the ruling in Hav Gambhir Singh’s

case cited by the Ld counsel for the applicant, we are of the
considered view that the said decision has no application to the facts
of this case. In the said ruling the relevant ACR has been set aside as
there was no communication of the weak points or of the adverse
remarks to the individual, but in the present case even though initially
the average grading or the weak points were not communicated but
when the ACR initiated by the hospital was received in the Record
office on 29.01.2008 where after it was found that the petitioner had
been graded average with weak points by the RO, and also not
recommended (NR) for promotion, a letter was sent from the office on
29.01.2008 directing the hospital to communicate the weak points of
the applicant to him. The technical error was there upon rectified by
the RO. Subsequently the weak points mentioned in the applicant’s
confidential report for the year 2006-2007, and his being awarded an
average (grading) and the weak points enumerated in the pen picture
by the RO were communicated to the applicant by the letter dated
17.03.2008. Thus in the present case the average grading as also the
pen-picture containing the weak points was duly communicated to the
applicant and therefore the ACR could not be struck down on the
ground of non-communication of the weak points or the average entry.

13. So far as the averment that there was a variation in the ACR in
the entry of 2006-2007 awarded by the RO, from the other entries we
find that there is no such significant variation as the applicant has
been awarded a high average entry on several occasions in the past
10 years. Although, this was a solitary award of an average entry, with
a NR remark, which made it mandatory for the said entry and
comments to be communicated to the applicant, which was in fact
duly communicated when the lapse was pointed out to the hospital by
records. It can also not to be said that the entry of 2006-2007 was
wholly inconsistent with the other entries. An examination of the
record reveals that in previous years also the applicant had invited
adverse remarks from other COs or other superior officers and it
cannot be said that the RO who had awarded the average entry to the
applicant was prejudiced against the applicant in any manner. No
material has also been indicated for pointing out the reasons for any
malafide of the Reviewing Officer against the applicant.

14. We also find that the non-statutory complaint has been rejected
by the GOC-in-C by the order dated 25.04.2009 after perusal of the
Para wise comments and other relevant documents and the
GOC-in-C has found no illegality in the average grading (4 points
awarded by the RO) which had been communicated to the ratee in
terms of Paras 41 & 42 of the Army Order 1/2002/MP. It was also
clarified that an average grading was not an adverse grading but as it
affected the promotion prospects of the ratee the same had to be
communicated to the ratee which was duly done and consequently the
impugned confidential report was as per rules and technically correct.
Furthermore the GOC-in-C notes that on a consideration of the overall
performance of the ratee in the last 10 years the grading awarded by
the RO and the impugned ACR was consistent with his demonstrated
performance.

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15. The statutory complaint has been rejected by the Chief of the
Army Staff (COAS) after examining the overall profile and relevant
documents and comments of the individual and the authorities and
after considering the complaint in all aspects. After viewing it against
the redress sought the ACR of 2006-2007 earned by the JCO was
found to be a fair and objective performance based assessment and
technically valid and the disposal of the non-statutory complaints of
the JCO dated 24.03.2008 on 25.04.2009 was held to be correct. The
applicant was rightly held to be ineligible for promotion due to non
fulfilment of the ACR criteria. Hence the statutory complaint was also
rejected by the COAS.

16. In the light of the aforesaid discussion, and after carefully

considering the pleadings of the parties and examining the record for
the reasons alluded to above, which also found favour with the
GOC-in-C whilst disposing of the non-statutory complaint and the
COAS whilst disposing of the statutory complaint, we also see no
illegality in the award of the average grading, which is based on the
demonstrated performance of the applicant for the particular year. In
Amrik Singh Vs. Union of India, (2001)10SCC 424, where the
appellant had got very good grades, including an outstanding grading
for subsequent years, and there was only a single average grading for
an earlier year, and on the recommendation of the Patna High Court
the case had been sent for re-consideration, but unfortunately even
the second Selection Committee had not found the appellant fit for
promotion, the Apex Court expressed its inability to interfere
observing as follows in Para 21 at page 429 of the law report:

“Ultimately the single adverse remark of 1985-86 by the Reviewing

Officer had stood in his way, not only at the time of original
consideration but also when the matter was considered afresh
pursuant to the directions of the High Court. The result may be
unfortunate. But the scope of the jurisdiction of the High Court being
very limited, we cannot go into the correctness of the adverse remarks
nor into the assessment made by the Selection Board on the two
occasions.”

Amrik Singh’s case in paragraph 15 also approved of the following

passage in Para 29 in Union of India v. Lt Gen Rajendra Singh
Kadyan, (2000) 6 SCC 698 (pages 714-15) which states inter alia :

“ Maybe one may emphasize one aspect rather than the other but in
the appraisal of the total profile, the entire service profile has been
taken care of by the authorities concerned and we cannot substitute
our view to that of the authorities. It is a well-known principle of
administrative law that when relevant considerations have been taken
note of and irrelevant aspects have been eschewed from consideration
and that no relevant aspect has been ignored and the administrative
decisions have nexus with the facts on record, the same cannot be
attacked on merits. Judicial review is permissible only to the extent of
finding whether the process in reaching decision has been observed
correctly and not the decision as such. In that view of the matter, we
think there is no justification for the High Court to have interfered with
the order made by the Government.”

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17. As observed above the applicant has also been duly

communicated the adverse entry in compliance with Paras 41 & 42 of
the Army Order 1/2002/MP. Although, the same was done after it was
pointed out by the Record Office to the Field Hospital, and hence the
law laid down in Hav Gambhir Singh has no application to the facts of
the instant case.

18. There is thus no illegality in the award of the average (4 points)

entry by the RO for the year in question, and the same cannot be
expunged. The applicant is therefore not entitled for the consequential
reliefs or consideration for promotion to the rank of Subedar for not
meeting the ACR criteria. There is also no illegality in the orders of the
GOC-in-C and the COAS dismissing the applicant’s non-statutory and
statutory complaints. There is therefore no force in this application
which is accordingly dismissed. No order as to costs.

(Lt Gen N.B. Singh) (Justice Amar Saran)

Member (A) Member (J)

Sarkar/ 09.12.2016