Ashish Khanna vs Union Of India And Others

This 0.A has been filed under Section 14 of the Armed Forces Tribunal Act, 2007 (AFT Act) by the applicant, a serving officer of Lt Colonel rank

of the Indian Army (Guards Regiment), who is aggrieved by the order of the first respondent dated 20.02.2019 rejecting his statutory complaint against

non-empanelment for promotion and seeking consideration for promotion by No. 3 Selection Board (SB) as an Infantry Officer (and not a Mechanised

Infantry Officer). He is seeking the following reliefs:

(i) Examination of his CRs for the period 06/2010-12/2010, 01/2-11-07/2011 and 07/2015-03/2016 and set aside the assessments of RO and the SRO if

these are found to be less than assessment of the IO;

(ii) Set aside the proceedings of No. 3 SB (Mechanised Infantry) held in March 2017, wherein he was not empanelled for promotion to the rank of

Colonel, possibly due to being awarded low marks for 'Value Judgment' by the Board; and

(iii) Consider him for promotion as an Infantry Officer keeping in view that his unit (11 GUARDS) was converted as a Mechanised Infantry Battalion

at a very late stage in his service, whereas he had serve and trained till then as an Infantry Officer, and grant him consequential benefits, including

promotion to the rank of Colonel.

Heard the learned counsel on both sides and perused the pleadings and the documents on record.

The facts germane to the case, as averred by the applicant, are that he was commissioned as an SSC Officer in September 2000 in 11 GUARDS,

which was an Infantry Battalion at that point. The battalion continued to be an Infantry Battalion till 2011, when it was converted as a Mechanised

Infantry Battalion. Thus, in the first 11 years of his service, the officer attended infantry courses and functioned entirely as an infantry officer. He also

did operational tenures akin to infantry in the North East and with Rashtriya Rifles in .] & K for which he was awarded COAS Commendation Card

(CC) and GOC-in-C CCs. The applicant contends that he was not asked his option or choice for continuing to be considered as an infantry officer

prior to his battalion being converted as a Mechanised Infantry Battalion. The first 13 months of his company command criteria report from June 2010

to July 2011 was earned as an infantry officer and he was assessed as 'outstanding' by his Hi Thereafter, his unit was converted as a Mechanised

Infantry Battalion and the applicant was graded 'outstanding' by his JO in the next two reports i.e. from July 2011 to December 2011 and from

January 2012 to December 2012. Thereafter, after completing six more months in the unit, he was posted out in Grade 2 Staff to HQ Eastern

Command, where he earned three 'outstanding' reports. Subsequently, the applicant accompanied an Infantry Battalion on a UN Peace Keeping

Mission to Southern Sudan as a Company Commander, where, due to his exceptional performance as a Key Leadership Engagement (KLE) officer,

he was rated as 'outstanding' by his Infantry Battalion commanding officer. However, despite all these achievements, when he was considered for

promotion by No. 3 Selection Board (SB) of Mechanical Infantry in March 2017, the Promotion Board, by order dated 11.04.2017, did not empanel

him for promotion to the rank of Colonel. His non-statutory complaint of 27.04.2017, supported by supplementary complaint of 22.07.2017 and

statutory complaint dated 11.04.2018, were rejected by the respondents. Hence this 0.A.

Learned counsel for the applicant has contended that the applicant, despite his substantial background, experience and service in the Infantry, was

unfairly considered as a Mechanised Infantry officer (rather than as an Infantry Officer) during conduct of his Promotion Board to the rank of Colonel

and consequently, was put at a disadvantage as there are many more vacancies to the rank of Colonel in the Infantry as compared to Mechanised

Infantry, in fact, the Mechanised Infantry has the lowest number of vacancies amongst all the Combat Arms. Learned counsel contends that a

substantial part of his command criteria reports as Company Commander were in the infantry profile and his subsequent reports during and after

conversion of his battalion to Mechanised Infantry may have been adversely affected by downward rating by the RO and the SRO during their

reviews. Learned counsel has also contended that no consent was sought from the applicant before transferring him from the Infantry to Mechanised

Infantry, hence the respondents were duty bound to protect the applicant from any adverse effects of the transfer on his career progression interests.

In this regard, learned counsel has referred to the application/request sent by him to his Commanding Officer in 2011 to safeguard his career

prospects.

Learned counsel has also highlighted the fact that almost all the training courses done by the applicant were infantry courses and that the policy did

not need him to clear the special to corps' paper for Mechanised Infantry for the Part D exam as he was treated as an infantry officer.

Learned counsel has also averred that the ROs and the SROs may have unfairly and subjectively down-rated the 'outstanding' gradings awarded by

his IOs in the CRs of the reckonable period.

Reliance has been placed on the order of the Armed Forces Tribunal, Regional Bench, Chennai dated 02.03.2017 in Cot. .S.K. Sharma v. Union of

India and others (T.A No. 4 of 2016)/AFT (PB) 0.A No. 409 of 2014), wherein it was observed with regard to DSR Para 64 as under:

From the above, it is clear that on commissioning, an officer has no claim to a particular Corps or to a particular unit of the Corps and

though an officer may submit an application in writing to serve with a particular Corps or a unit, that will be given due consideration

subject to the requirement of service. Further during service, the transfer of an officer within the Regular Army will be carried out under the

orders of the Chief of the Army Staff (COAS). A close reading of Para-64 would reveal that the transfer can be one in which an officer asks

for a voluntary transfer from his parent Corps to any other Regiment/Corps or Unit within the same Corps. It is clear that when an officer

asks for a voluntary transfer from one Regiment or Corps to another Regiment or Corps, then the officer has no right to agitate against any

adverse implications such a transfer would have on his career. However, when the COAS orders a transfer within the Army on the basis of

organisational requirement or interest, it would be incumbent upon him to ensure that the officer Is not unduly disadvantaged in terms of his

career progression, on account of such a transfer. To that extent, the powers to be exercised by the COAS are not unfettered and he would

have to keep in mind that such a transfer is not detrimental to the career prospects of the officer so transferred. (emphasis supplied)

Further, with regard to the similarly placed applicant (Col. S.K. Sharma of 13 GUARDS), the Tribunal had ruled as under: 17 In fine, the application

is allowed accordingly. The applicant shall be deemed to be an Infantry Officer for the purpose of selection of Career Courses such as Higher

Command and equivalent courses and for consideration to the rank of Brigadier (No. 2 Selection Board), The Applicant be considered as a fresh case

for promotion to the rank of Brigadier in No. 2 Selection Board) for promotion (Colonel to Brigadier) along with Infantry batch-mates within a period

of three months from the date of this order. The said Selection Board proceedings may be placed before us along with the comparative merit of his

batch mates. Hence, the learned counsel contends that the proceedings of No. 1 SB of Mechanised Infantry in respect of the applicant be set aside

and he be granted fresh consideration as part of No. 1 SB for infantry officers of his batch. It is the further contention of the applicant that no cut off

system like methodology was adopted by the MS Branch similar to MT Branch, which had granted waiver to the applicant from appearing in Special

to Corps paper of Mechanised Infantry of the Part-D Promotion exam which is the paper specific to the arm being served to clear for consideration in

the Selection Board.

Learned counsel for the respondents, on the other hand, has refuted the arguments made on behalf of the applicant, describing them as an

afterthought. Learned counsel has submitted that the Mechanised Infantry was formed as a new Combat Arm of the Indian Army in 1979 as part of

measures to modernise and upgrade the infantry. Initially, various battalions of the infantry were converted as Mechanised Infantry. This was

followed by raising new battalions of the Mechanised Infantry. Subsequently, in 1992, it was decided to convert all battalions of the Guards Regiment,

which was an infantry regiment till then, to mechanised infantry, one by one, and accordingly, all battalions have been converted as per a given

schedule. To that extent, the applicant was aware right from the time of his commissioning in the year 2000 that, though his battalion (11 GUARDS)

was an infantry battalion, it was scheduled to be converted as a mechanised infantry battalion at some stage in the future. 11 GUARDS accordingly

received orders vide letters dated 27.01.2011 and 17.08.2011 for conversion of the battalion from infantry to mechanised infantry during the period

from 15.09.2011 to 15.03.2012. Learned counsel has averred that the conversion of the battalion was done in organisational interest keeping

operational requirements in view. Further, the conversion policy was applied uniformly to all similarly placed officers and there was no bias against the

applicant. The applicant had cheerfully accepted the said conversion of his unit from September 2011 to March 2012 and has served as a mechanised

infantry officer since 2012 in various appointments without any issues/grievance. The applicant served in his unit from 27.06.2010 to 26.06.2013,

during which he did his command criteria as Company Commander, initially as an infantry officer and thereafter as mechanised infantry, after which

he was posted to HQ Eastern Command, Kolkata as GS02 (Media) on his request for a spouse coordinated posting. The applicant then proceeded on

posting with the UN Mission in South Sudan from 06.07.2015 to 09.03.2016 on the vacancy of a mechanised infantry officer. On his repatriation from

South Sudan, he was posted as the Second-in-Command (2IC) of his mechanized infantry battalion till 01.08.2016. Thus, the applicant earned three

ACRs as a mechanised infantry officer, which provided him the requisite qualifications for being considered as a mechanised infantry officer in the

Selection Board (SB) for promotion to the rank of Colonel. In case he had been approved for promotion, he would have been fully qualified to

command his own battalion (11 GUARDS) or any other mechanized infantry battalion. Para 2 of the policy vide letter dated 16.08.2004 isreproduced

as hereunder:

XX XX XX XX XX XX

Status of offrs of Bde of the GUARDS for SB will hereafter be based on the following guidelines:-

(a) In case an our has not had any exposure at all in Mech environment, and he is placed in comd of a GUARDS (In 1), RR or AR Bn, then

he will be considered against the Int- panel. This will be applicable even for those offrs whose parent bn subsequently converts to Mech Inf

but they never served in it. Base cadre str of the parent unit of the offr will then be tfr to Inf for calculation of vacs.

(b) An offr, who has earned min of one report in the Mech environment either as a Coy Cdr or 2IC, but has comd a RR/AR/GUARDS (Inf)

Bn, will be considered in the Mech Inf panel like offrs from Armd Corps or Arty who may have been given opportunity of comd of RR/AR

Bns,

(c) CO of a GUARDS (Inf) bn which is under conversion to Mech Inf will be considered in the Inf panel. He will however cease to be in the

Inf panel from the day he has earned min one comd report In the Mech environment.

Further, this aspect has been clarified vide MS Policy letter No. 04520/MS/Policy dated 18.01.2015 produced as Annexure R2. Para 2(a) of the said

policy is reproduced as hereunder:

No.3 55 An officer from a GUARDS (Inf) Battalion, whose battalion has converted to Mech Inf or is in the process of conversion, will be

considered in the Infantry panel, if the officer has not served or if he has not earned even a single report in the mech environment.

However, if such an officer is empanelled, he will not be eligible to command a NECK INF or a GUARDS (Mech) Battalion. Conversely, if

an officer is approved on a Mech Inf panel in No. 3 SB, he should not be placed in Command of a GUARDS (Inf) Battalion.

The applicant has met the criteria for being considered for promotion as a Mechanised Infantry Officer, once he earned three reports as Company

Commander and 2IC in a mechanised infantry battalion, including while serving as a mechanised infantry company commander with the UN Forces in

South Sudan.

The respondents have also referred to the fact that the applicant is not qualified on the Defence Services Staff College due to which he would not

have got marks for the same in the Selection Board putting him in somewhat disadvantageous position vis-Ã -vis those who have got this qualification.

This criterion is applicable to boards for both mechanised infantry and infantry officers.

To sum up, the respondents have contended that the applicant's battalion was converted as a mechanised infantry battalion in keeping with

organisational/operational needs of the Army. Further, the applicant was provided opportunity to learn the nuances attached to his new status as a

mechanised infantry officer during the period from September 2011 to June 2013 and thereafter from July 2015 to July 2016 during which period he

earned three reports as Company Commander and 2IC. The ACRs raised on the applicant are fair, consistent and correct as per rules and policy. The

applicant was correctly considered as a mechanised infantry officer in keeping with the rules, which have been applied uniformly for all similarly

placed officers. The applicant did not get empanelled for promotion to the rank of Colonel because of being low in comparative merit in the

mechanised infantry. The respondents have also argued that the contention of the applicant that he would have been empanelled if he had been

considered for No. 3 SB as an infantry officer, is also misconceived, which can be verified from the record. Finally, the order dated 02.03.2017 of

AFT (RB), Chennai is clearly distinguishable from the facts of this case as the petitioner in that case (Col. S.K. Sharma) had done his company

command criteria as an infantry officer, whereas, in the case of the applicant, he had done adequate company command criteria reports as a

mechanised infantry officer.

Consideration:

We have given careful consideration to the arguments from both sides and find that the primary issue before us is, whether the applicant, whose

infantry battalion was converted as a mechanised infantry battalion due to organisational interests, and who has been considered for promotion from

the rank of Lt Colonel to the rank of Colonel as a mechanised infantry officer due to having earned command criteria reports during and after

conversion as a mechanised infantry officer, should be granted fresh consideration for promotion by No. 3 SB as an infantry officer due to his claim

that his earlier consideration as a mechanised infantry officer was unfair, illegal and contrary to his career prospects.

On consideration of the submissions made by the parties and perusal of the documents made available to us, we have found the following:

(i) The applicant is an SSC officer who was commissioned into the GUARDS Regiment of the infantry in the year 2000. Battalions of the GUARDS

Regiment were selected for conversion as mechanised infantry battalions, vide orders of 1992, as part of the continuing operational modernisation of

the Indian Army. Specific orders for conversion of the applicant's battalion (11 GUARDS) was received in 2011 for the conversion to take place from

September 2011 to March 2012. At that point, the applicant was a Company Commander in the rank of Major and had already earned two reports as

an infantry officer. The applicant thereafter earned two reports as a mechanised infantry company commander and one as 2IC of his mechanised

battalion up to 2016, before being considered by No. 3 SB as a mechanised infantry officer as a 'fresh case' in March 2017, however, he was not

empanelled for promotion due to being low in comparative merit.

(b) We have perused the CRs earned by the applicant during and after conversion to the mechanized infantry. We agree with the contention of the

respondents that the CRs 1/11-07/11 as an infantry officer and 07/11-12/11 & 07/15-03/16 as a mechanised infantry officer are well corroborated,

consistent, performance based and technically valid, without any evidence of bias or subjectivity.

(c) With regard to consideration by No. 3 SB as a mechanised infantry officer, the applicant was considered as a 'fresh case'in March 2017. 95

officers were considered against 22 Colonel's vacancies, however, the applicant was not empanelled as he stood at order of merit (OoM) No. 41,

much below the cut off merit/ranking for promotion. In April 2018, the applicant was considered along with 94 other officers against 19 vacancies as a

'First Review case' but was not empanelled as he figured at OoM 31 in the Board. In October 2018, the applicant was considered along with 83 other

officers against 13 vacancies as a 'Second Review case'. Once again he was not empanelled as he figured at OoM 26.

(d) We find that the Promotion Boards were conducted correctly as per policy and there were no apparent flaws in the grant of Value Judgment (V))

marks during the board, in that, promotion prospects of the applicant were not affected adversely, purely by the award of Vi marks.

With regard to the issue whether the applicant should be given fresh consideration as an infantry officer by No. 3 SB on the contention that the

applicant was placed at a disadvantage in his Promotion Board on account of being considered as a mechanised infantry officer, the respondents have

averred that conversion of units takes place for organisational reasons and all officers are aware of the likelihood of such developments during their

career. In fact, the applicant, even at the time of his commissioning in the Army, was aware that his battalion was earmarked for conversion as a

mechanised infantry battalion. The respondents have averred that, i n such situations, adequate measures are put in place to protect the career

interests of all personnel concerned and, the rules are applied uniformly to all affected units and personnel, including officers. The respondents contend

that, to that extent, the applicant was provided enough opportunity to train and function as a mechanised infantry officer, which he did and was graded

'outstanding' in his CRs in his new role. Just because the applicant did not get empanelled for promotion, which has occurred purely due to his not

having figured above the cut off merit, he cannot now claim that he should be given fresh consideration as an infantry officer. It is obvious that the

applicant feels that the infantry promotion board has a lower cut off for promotion and thus he would stand a better chance for promotion. The

respondents have rebutted this stance of the applicant asserting that such an action would be contrary to the existing rules. Moreover, the applicant

was given adequate opportunity to develop expertise as a mechanised infantry officer and he has taken advantage of the same, including being

deployed in an international environment.

Having considered these rival view points and perused the records of Promotion Boards of both the infantry and mechanised infantry, we find that

the applicant's apprehensions are misplaced. Clearly, the applicant has not been empanelled for promotion on account of low comparative merit and,

even if he was considered as an infantry officer, the outcome, in terms of board results, would not have been any different. We find that the applicant

has been given fair consideration by his reporting officers as well as the PBs and apprehensions of unfairness, in terms of rules/policy or specific ACR

ratings are not justified. In any case, he has not attributed any bias or mala fide against the respondents and we too do not find any evidence of the

same.

The case of Col. SK. Sharma (supra) is distinguishable from the applicant's case as the petitioner in that case had done no Company Commander

criteria reports in the mechanised infantry, whereas the applicant in this case earned three such reports. Moreover, it was clearly mentioned that the

said AFT order should not be considered as a precedent and should not be quoted as an example in future. Hence the applicant cannot derive any

benefit from the aforesaid decision of the AFT (RB), Chennai in Col SK. Sharma's case (supra).

In the result, the 0.A is found to lack merit and is dismissed. No order as to costs.

Pronounced in open Court on this the 27th day of February 2020.