IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH

JAIPUR

ORDER

APPLICANT :

IC-39060L Col Pramod R Malik, Commanding Officer, Provost

Unit, 42 Arty Div, Alwar

r/o 42 Arty Div Provost Unit, Alwar

VERSUS

NON APPLICANTS

1. The Union of India

Through The Secretary to the Government
Ministry of Defence
Government of India
South Block, New Delhi – 110 011

2. The Chief of the Army Staff,

IHQ of MoD (Army), South Block, New Delhi – 110 011

3. Military Secretary’s Branch, IHQ of MoD (Army)

South Block, New Delhi – 110 011

ORIGINAL APPLICATION NO. 178 OF 2010

DATE OF ORDER : 02nd SEPTEMBER, 2011

PRESENT

HON’BLE MR JUSTICE BHANWAROO KHAN (J)

HON’BLE LT GEN SUSHEEL GUPTA (A)
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Shri Ved Prakash for the Applicant

Shri Sanjay Pareek for the Non Applicants
Col Veerendra Mohan, OIC Legal

BY THE TRIBUNAL :

1. The applicant, Colonel Pramod R Malik, has filed an

application in this Bench at Jaipur, praying for setting aside

complete assessment in his Annual Confidential Report (ACR)

for the period from Jun 2000 to August, 2001 and for considering

him afresh for promotion to the rank of Brigadier.

2. The brief facts of the case are, that the applicant was

commissioned into the Indian Army on 13/12/1980 and was

promoted to the rank of Colonel. Subsequently, whilst in

command of a Mechanised Infantry battalion in a field area, he

earned ACR for the period from Jun 2000 to August 2001

wherein the Initiating Officer (IO) was Major General SV

Thapliyal and the Reviewing Officer (RO) Lt Gen Arjun Ray. The

officer was dissatisfied with the ACR and accordingly filed a Non

Statutory Complaint dated 01/12/2001 which was rejected by the

Chief of the Army Staff on 09/7/2002. The officer then filed a

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Statutory Complaint on 27/12/2002 asking for the relief of setting

aside the complete ACR for the period from Jun 2000 to August

2001. The Central Government, vide their order dated 16/6/2004

granted partial relief to the officer, in that, the entire assessment

of the RO was set aside. Not being satisfied with the partial relief

the officer filed another Statutory Complaint with additional facts

on 09/11/2004 which was declared untenable by the Military

Secretary’s (MS) Branch vide their order dated 14/6/2006. The

officer then was considered by a board in 2007 for promotion to

the rank of Brigadier however, he was informed that he had not

been empanelled for promotion to the rank of Brigadier.

Consequently, the officer filed a Non Statutory Complaint dated

01/1/2008 against his non empanelment which was rejected on

30/4/2008. The officer then filed a Statutory Complaint against

his non empanelment on 19/2/2009 which was rejected on

04/11/2009. The officer was again considered for promotion by a

board held in October 2009 and he was informed by the MS

Branch vide their order dated 22/1/2010 that he has not been

found fit for empanelment to the rank of Brig by the said board.

Aggrieved by this denial of promotion, the applicant filed this

Original Application No 178/2010 in the Armed Forces Tribunal

Bench at Jaipur.
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3. In his written submissions, the applicant has brought out

that he has had a very outstanding profile as a Cadet as well as

during service. He has performed exceptionally well in all

courses and has been an outstanding officer throughout his

career. Therefore, when he was given a comparatively weak

ACR for the period Jun 2000 to August, 2001 he felt aggrieved

and accordingly resorted to filing Non Statutory and Statutory

Complaints. The applicant has alleged bias in reporting by the IO

and RO quoting two instances, one relating to receipt of

anonymous letters against him by the IO and RO and the

second regarding a surprise inspection of his unit by the RO in

his absence. The applicant feels that these two incidents have

been primarily instrumental in his lowered reporting in the CR by

both the IO and RO. He has further averred that all reports prior

to the said report and after the said report have been

outstanding and therefore, this particular report by the IO and

RO are not in consonance with his profile and therefore, need to

be set aside. Though a partial relief had been granted to him in

the Statutory Complaint, in that, the entire assessment of the RO

has been set aside, this partial redressal has not helped him and
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for the sake of justice, the entire assessment of the IO also

needs to be set aside.

4. The Non Applicants in their reply whilst accepting the

basic facts of the case have given out details of the selection

system for promotion to the rank of Brigadier. They have

categorically stated that for promotion to a selection rank the

selection board takes into consideration a number of factors

such as war/operational reports, course reports, ACR

performance in command and staff appointments, honours and

awards, disciplinary background and not only the ACR or

one/few ACR etcetera. Selection/rejection is based upon the

overall profile of an officer and comparative merit of the batch as

evaluated by the selection board. The applicant did not make the

grade based on his overall profile as evaluated by the selection

board. Similarly, the applicant was considered for detailment on

the Higher Command/Long Defence Management Course

(HC/LDMC) Courses alongwith his batchmates but he did not

figure in the merit list for detailment on the said courses. The

Non Applicants have further submitted that the officer possesses

predominantly an “Above Average” profile but in some

CRs he was assessed outstanding by a few IOs. The

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assessment of one Reporting Officer does not make the CRs

outstanding as stated by the applicant.

5. The Non Applicants have produced the entire service

profile to include the ACRs of the officer earned for the period

from May 1987 till March, 2006 as also the order of merit of the

officer while being considered for detailment on the HC/LDMC

courses. They have further contested that various complaints

filed by the officer have been duly considered after obtaining

comments of the various IOs and ROs and relief as deemed fit

has been granted to him. He has been considered by the

selection boards after the relief that has been granted to him in

his CR for the period Jun 2000 to August, 2001 and in all such

considerations he has been found unfit for promotion to the rank

of Brigadier.

6. We have heard Shri Ved Prakash, the Learned Counsel

for the applicant Shri Sanjay Pareek and Col Veerendra Mohan,

OIC Legal appearing on behalf of the respondents as also

examined the various letters and master data sheet of the ACRs

in respect of the applicant submitted by the Non Applicants.

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7. Whilst arguing, the learned counsel of the applicant

brought out the fact that the officer though has been judged as

Above Average by the IO in his report for the period from Jun

2000 to August, 2001 but since the grading of “7” and ‘8” are

both Above Average, grading the officer only ‘7” has lowered his

profile and therefore, the officer has been unable to come in the

comparative merit for promotion. The officer should have been

given a better CR by the IO but probably did not do so because

of two instances that occurred while the applicant was in

command. The assessment by the RO has been rightly set aside

by the Central Government while dealing with the Statutory

Complaint of the applicant, but full justice can be met only after

setting aside the entire assessment of the IO also. Since it has

been accepted that the report of the RO was biased and

inconsistent, the report of the IO for the same period should also

have been set aside on the same ground. The impugned ACR is

the only report where the officer has been graded with 7 points

in few qualities and hence, is an aberration which needs to be

set aside; once this is set aside, then the officer needs to be

considered afresh for promotion to the rank of Brigadier.

Similarly, had this report been set aside in entirety at the time

when the officer was considered for detailment of HC/LDMC

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courses, he would have certainly been nominated for the said

course.

8. Col Veerendra Mohan, OIC Legal, arguing on behalf of

the Non Applicants raised the preliminary objection on the

grounds of delays and laches, in that, he argued that the officer

in his Statutory Complaint dated 27/12/2002 was given a partial

redressal by the Government of India vide their order dated

16/6/2004. The applicant was satisfied by the said relief and had

not challenged the said relief in any court of law. Even after his

non empanelment for promotion to the rank of Brigadier, he

submitted Non Statutory and Statutory Complaints wherein he

had grievance regarding his non promotion but did not air his

grievance against his ACR for the period Jun 2000 to Aug 2001.

His subsequent grievances against the said CR are barred by

limitation and cannot be impleaded at this belated stage. There

is no sufficient justification for such inordinate delay. The learned

counsel further argued that the officer’s profile has been

examined on a number of occasions by various authorities whilst

processing his complaints. All relief that the officer deserves had

been given to him after due deliberations and he has been found

unfit for empanelment to the rank of Brigadier after being

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considered by the promotion board after the grant of relief. As

regards the bias in reporting, the officer has not produced any

evidence against the IO and RO as such he cannot base his

case on any mala fide by the said IO and RO. Reports earned by

the officer are well moderated by the various officers by

endorsing the reports after due justification and the assessment

of the Reporting Officers is final and cannot be replaced by any

other authority. In support of this argument, the learned counsel

has cited the judgement of Hon’ble Supreme Court of India in

the case of Amrik Singh vs Union of India and others (2001) 10

SCC 424 and Judgement of the Principal Bench of the Armed

Forces Tribunal, New Delhi in OA No 217/2009 in the case of

Brig Rakesh Sharma vs Union of India and others delivered on

08/4/2010 and TA No 198/2010 in the case of Col PK Nair vs

Union of India and Others delivered on 04/5/2010.

9. Partial redressal in the impugned ACR had been granted

to the applicant in his Statutory Complaint by the Government of

India on 16/6/2004. Not being satisfied by the partial redressal,

the applicant filed another Statutory Complaint against the same

ACR with additional facts on 09/11/2004, however, the same

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was rejected as untenable by the Military Secretary’s Branch on

14/6/2006. Thereafter, the applicant did not agitate against the

said ACR in his subsequent complaints till this application to the

Tribunal in 2010. Thus, the application deserves to be dismissed

due to delays and laches only. However, considering the facts of

the case, this application is being decided on merit.

10. We have examined the master data sheet showing the

extracts from the CRs of the officer from May 1987 to March

2006. The overall performance of the officer has been graded

with ‘8” and “9” points in all qualities between the period of April

1990 to April 2000. There is a sprinkling of ‘7” points in a few

qualities in the CRs from May 1987 to April 1990 and in the

impugned CR from September 2000 to August 2001. In the

subsequent CRs from Sept 2001 to March 2006, there are only

“8” and “9” points and there are no “7” point as figurative grading

in any of the qualities. In the impugned CR for the period Sep

2000 to August, 2001, whilst the entire assessment of the RO

has been expunged, the IO has awarded an Average grading of

“8” points with the grading of “7” point in three qualities,

“effectiveness in carrying out administration of his command”,

“delegation” and “vision and conceptual ability”. As regards his

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consideration for HC/LDMC Courses, the MS Branch has

conveyed that in the year 2004 the Mechanised Infantry was

considered alongwith the Infantry for the said course and the

total vacancies were 38 and the applicant was placed in the

order of merit at 132. Similarly, in the year 2005 when the

Mechanised Infantry was considered as separate arm for the

HC/LDMC Course, the total vacancies were four and the

applicant was placed as 13 in the order of merit. Thus, it is

apparent that the applicant could not have been detailed for the

said courses.

11. The question now arises, whether the assessment by the

IO in the impugned ACR can be considered as an aberration

and not in consonance with the past and subsequent profile of

the officer. Also, whether there was any bias or mala fide by the

IO whilst initiating the said report.

12. The impugned CR was earned by the applicant whilst in

command of a Mechanised Infantry Battalion in a highly

sensitive operational area and hence the criticality of the

assessment cannot be over emphasized. There is also the question

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of overriding the assessment of the Reporting Officers which has

been commented upon in a large number of judgements.

13. In the case of Amrik Singh vs Union of India and Others,

(2001) 10 SCC 424 the Hon’ble Supreme Court has opined that

:-

“In the result, we are not inclined to grant any relief to the

appellant in spite of the fact that his performance in the

subsequent years has been shown to be very good and

his ratings were very high. Ultimately, the single adverse

remark of 1985-86 by the RO 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”.
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14. In the case of Brig Rakesh Sharma vs Union of India and

Others, whilst delivering the judgement in OA No 217/09 the

Hon’ble Principal Bench, Armed Forces Tribunal has ruled :-

“As regards expulsion of the entire assessment of the

QAPs in respect of the report pertaining to Sept 1999 to

Jun 2000. We are of the opinion that the mala fide by the

IO in the true sense has not been proved. However,

giving the benefit of doubt to the applicant the Central

Government had already expunged the remarks which

were not supported by the other officers ie;, Ro and SRO

in the chain. Only that remarks which was seconded by

the SRO was not interfered with. The arguments of the

applicant to see that QAPs were the basis for

recommendation to promotion and since the

recommendation to promotion was expunged by the

Central Government as being “marginally inconsistent”

with the overall profile, therefore, entire QAP should be

expunged is not agreed to, since the QAP also have a

meaning of their own, especially so when they have been

concurred by the SRO. All so-called adverse entries in the

impugned report have already been expunged by the

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Central Government. In any case figure ‘7’ is an “above

average” grading and cannot be construed as adverse.

Though the applicant did point out some minutes of the

meetings which states that ‘7s’ are being taken as

adverse entry, there is no policy letter which says so. The

hierarchy as one goes up in the armed forces is very

competitive and the organisation being pyramidical at

some stage, ‘7s’ though above average may bring down

the comparative merit of candidate. This has perhaps

happened in the present case and we do not find any

reason to interfere with the merit list or with expunging the

QAP as they stand otherwise”.

15. In the case of Col PK Nair vs Union of India and Others in

TA No 198/2010 the Hon’ble Principal Bench of the Armed

Forces has ruled that :-

“We are of the opinion that the ACR/ICR specifically

covers the performance demonstrated by the officer

during the period of reporting. Therefore, to say that an

officer has been graded outstanding in the past, it implies

that he has performed and exhibited such qualities to be

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graded as such during the period of reporting. We are

conscious of the fact that factors like conditions of

service, the task at hand and several other factors reflect

on the performance. As such, to say that an officer who

has been graded Outstanding in his past, cannot be

graded Above Average or High Average in the

subsequent years, is incorrect. Unless there is a serious

drop in his performance that one can make out a case of

the report being inconsistent and uncorroborated”.

16. In the impugned report by the IO, the applicant has been

given “7” points in three qualities and “8” and “9” in the

remaining. Grant of “7” points, which is considered as “Above

Average” cannot be perceived as an adverse report and cannot

be set aside merely on the ground that the applicant has been

graded with “8” and “9” points in all the others. The fact that the

unit was found unprepared during a surprise inspection by the

RO is a reasonable ground to make suitable endorsement in the

CR. This cannot be considered as a reason for biased reporting,

moreover, the RO’s report has already been expunged. As

regards the report of the IO, the applicant was counseled before

initiation of the report, hence no mala fide or bias is proven.

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Moreover, the IO has rendered an Above Average report to the

Applicant.

17. In the instant case, the officer has earned two reports as

Commanding Officer of a Mechanised Infantry Battalion, one is

the impugned report and another one from October 2001 to

August 2002. The officer had earned these reports in an

operational environment whilst in command of troops in field

area. It is clear that in an operational environment if the officer

does not display the right attitude even once, it cannot be

condoned and such reports cannot be set aside. We are not

inclined, therefore, to challenge the assessment of the IO and

grant relief to the applicant by way of expunging the impugned

report.

18. With above observations the application is dismissed with

no order as to costs.

(Lt Gen Susheel Gupta) A (Bhanwaroo Khan) J