Point of Law: Indian Army - Promotion- scope of interference with the gradings given in the CRs of an officer is very limited under Article 226 of the Constitution of India.

JUDGMENT:

AMIT BANSAL, J.

1. The present writ petition impugns the order dated 4th May, 2021 of the Armed Forces Tribunal (AFT), Principal Bench, New Delhi, of dismissal of OA No. 1415/2020 preferred by the petitioner.

2. The petitioner herein was commissioned in Army Service Corps (ASC) of Indian Army on 15th December, 1990 and since then has had an exemplary service record. The petitioner was promoted to the post of Brigadier in January, 2018. On 3rd March, 2021 respondents issued a list of names of the officers who are to be considered for promotion from the rank of Brigadier to Major General wherein petitioner’s name was also included. As per Integrated HQ, of Ministry of Defence (Army) MS Branch, New Delhi letter No. 04502/MS Policy dated 23rd December 2017, the marks obtained in the Confidential Report (CR) are the most important aspect for promotion. Apprehending that his CRs for the periods January, 2018 to June, 2018 and July, 2018 to June, 2019 may not be good enough for him to be considered for promotion to the post of Major General, the petitioner made a Statutory Complaint on 19th November, 2019 to Ministry of Defence against his CRs earned in the rank of Brigadier for the periods January, 2018 to June, 2018 and July, 2018 to June 2019. The petitioner in his complaint also sought restoration of his CR earned in the rank of Colonel for the period February, 2009 to August, 2009. The Ministry of Defence on 9th September, 2020 passed an order rejecting the Statutory Complaint filed by the petitioner with the reasoning that both the CRs of petitioner in the rank of Brigadier are corroborated, consistent, performance based, objective, fair and technically valid.

3. Aggrieved by the aforesaid rejection order, petitioner preferred OA No. 1415/2020 before Armed Forces Tribunal (AFT), Principal Bench, New Delhi from which the present petition arises.

4. The said OA was dismissed by the Tribunal vide the impugned order, observing/reasoning that (i) with respect to February, 2009 to August, 2009, the adverse comments had been completely expunged and the moderation carried out had been restored and the restored gradings were correctly reflected in the data sheet of June, 2020; (ii) in the CR January, 2018 to June, 2018, RO has remarked that the IO’s assessment is justified. The SRO has remarked that the IO’s assessment is justified while that of the RO is strict. However, in the column „Do you recommend any portion of the report by IO/RO to be expunged? If so, state such portion and reasons’, the SRO has only commented that ‘RO has been strict in reporting for reasons other than professional’. However, the SRO has not amplified his reasoning, nor has he stated or recommended any portion of the report that needs to be expunged; (iii) in the absence of any recommendation for expunction, there was no clarification which was required from the SRO and therefore the MS Branch was justified in not seeking any comments from the SRO who had since retired, in terms of para 132 of the Army Order 2/2016/MS (AO); (iv) in the CR of July, 2018 to June, 2019, RO had remarked that the IO’s assessment is justified. The SRO has remarked that the assessment of both the RO and SRO are justified; (v) in both the impugned CRs, there is no quality grading or box grading which varies by more than one mark. Therefore, there was no reason for MS Branch to have sought any clarification on the assessments in terms of para 130 of the Army Instructions. (vi) the impugned CRs have been rendered objectively and that all the CRs in the reckonable profile are well corroborated, consistent with the officers’ profile and performance, and technically valid; (vii) the examination of the CRs does not indicate any violation of para 130 or 132 and therefore there was no violation of para 146. The AFT had the benefit of the CR dossier of the Petitioner filed by the Respondents, in coming at the above conclusion.

5. Aggrieved by the said decision of the AFT, the present writ