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* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 12.08.2024 + W.P.(C) 7181/2024 MAJ GEN VINAYAK SAINI SM VSM .....Petitioner Through: Mr.Sudhir Nandrajog, Sr. Adv. with Mr.Indra Sen Singh, Mr.Abhishek Singh, Mr.Nasir Mohd & Ms.Kaberi Sharma, Advs.

versus UNION OF INDIA THROUGH & ORS. .....Respondents Through: Mr.Harish Vaidyanathan Shankar, CGSC with Mr.Srish Kumar Mishra & Mr.Alexander Mathai Paikaday, Advs. with Col.Sarika & Maj.Anish Muralidhar.

CORAM:

HON'BLE MS. JUSTICE REKHA PALLI HON'BLE MS. JUSTICE SHALINDER KAUR REKHA PALLI, J (ORAL)

1. The petitioner, who is presently serving as a Major General, in the Corps of Engineers in the Indian Army, has approached this Court under Article 226 of the Constitution of India, assailing the order dated 19.04.2024 passed by the learned Armed Forces Tribunal (Tribunal) in OA No.1559/2023. Vide the impugned order, the learned Tribunal has dismissed the petitioner‟s Original Application (OA).

2. Before dealing with the rival submissions of the parties, we may note the brief factual matrix as emerging from the record.

3. The petitioner was commissioned in the Corps of Engineers of the Indian Army on 19.12.1987 and earned all his promotions till his present rank of Major General without ever being superseded. Upon being promoted as a Major General, the petitioner was posted as Chief Engineer (CE), Eastern Command wherein he was graded as “Outstanding” in his Confidential Reports (CR) for the periods between 01.07.2020 to 30.01.2021 and 16.04.2021 to 14.07.2021. However, for the subsequent period between 15.07.2021 to 07.05.2022, the same Initiating Officer (IO), who had recorded his CR for the period between 16.04.2021 to 14.07.2021 as “Outstanding”, downgraded the numerical grading awarded to the petitioner. This downgraded „Box Grading‟ of the petitioner‟s CR was endorsed by the IO on 20.09.2022 whereafter, the CR was forwarded to the petitioner‟s Reviewing Officer (RO), who then endorsed his remarks on 26.12.2022.

4. It may be noted that during the same period i.e. on 23.09.2022, the MS Branch, Army Headquarters issued a letter intimating the schedule of the Special Selection Board (SSB) for 1988 Batch of “Non-General Cadet Staff” Stream (NGCS). This was followed by a letter dated 06.10.2022, wherein it was provided that the cut off CR to be a special CR would be up to 31.10.2022. About two months thereafter, the MS Branch vide its letter dated 12.12.2022 intimated the schedule of another SSB for the Corps specific vacancies of Lt. General for the 1987 Batch of Engineers and AOC officers, this time with a earlier cut off CR of 30.06.2022.

5. Based on his seniority, the petitioner was considered by the SSB as a fresh case of 1987 Batch against two Corps specific vacancies of Lt. General in the Corps of Engineers and as a review case by the SSB for the NGCS Stream. The two SSBs were held on the same date and considered the same set of officers of the 1987 Batch. At this stage, the petitioner, after learning about the downgrading of his numerical assessment by the IO in his CR for the period between 15.07.2021 to 07.05.2022, submitted a Statutory Complaint dated 27.02.2023 to the respondents with a specific prayer that the same be disposed of expeditiously and be incorporated in the SSB held in February 2023. This was followed by a DO letter dated 22.05.2023 by the petitioner addressed to the respondent no.2/the Chief of Army Staff as also the respondent no.3/the Military Secretary with a request for expeditious disposal of his statutory complaint.

6. However, since no action was taken on his complaint and the petitioner apprehended that the results of both the SSBs held on 09.02.2023 may be de-classified before his Statutory Complaint could be decided, he approached the learned Tribunal by way of OA No.1559/2023. In his OA, the petitioner besides praying for stay of the SSB proceedings, had also prayed that one vacancy, out of the two available vacancies in the rank of Lt. Genera