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Judgment
Vide our detailed order of even date, we have dismissed OA No.311/2019. Faced with this situation, learned counsel for the applicant makes an
oral prayer for grant of leave for impugning the order of the Tribunal to the Hon'ble Supreme Court in terms of Section 31(1) of the Armed Forces
Tribunal Act, 2007.
After hearing learned counsel for the applicant and going through our order, in our considered view, there appears to be no point of law much less any
point of law of general public importance involved in the order, therefore prayer for grant of leave to appeal is declined.
This Original Application has been filed under Section 14 of the Armed Forces Tribunal Act, (AFT Act) 2007 by the applicant, a serving Lt. Colonel
of the Indian Army (Infantry) (Assam Regiment), who feels aggrieved by the fact that the respondents have not enhanced specific box gradings from
'8' to '9' points in his ACRs in which he had been found to be under rated by his Reviewing Officer (RO) and/or Senior Reviewing Officer (SRO) by
this Tribunal (RB Guwahati) vide its order dated 22.12.2016. The applicant, vide this OA, has sought the following reliefs:-
(a). Set aside the impugned order of the respondents dated 19.072018 whereby his statutory complaint dated 25.02.2018 has been rejected
(b). Direct the respondents to upgrade the box grading-s (where relevant) of JO, RO and SRO from '8' to '9' pts in the CRs 01/07-12/07, 04/08-04/09,
07/09-05/10, 06/10-11/10, 12/10-05/11, or alternatively to set aside these 8 point ratings being inconsistent with the respective pen pictures, as was
observed by AFT (RB), Guwahati in its order dated 22.12.2016 in OA No. 24/2013"".
Heard the learned counsel on both sides and perused the pleadings and documents on record, including the Complaint File which was handed over
to the Court after the final hearing on 16.01.2020.
The brief facts of the case, as averred by the applicant, are that he, in July 2011, was considered for promotion by No.3 Selection Board (SB) along
with his (1996-Infantry) batch as a Fresh Case but was not empanelled. The applicant filed a Non-Statutory Complaint which was rejected by
Respondent No.2 vide order dated 23.01.2012. In the meanwhile, the applicant was given due consideration by No.3 SB held in December 2011 as a
Review Case but was again not empanelled. Consequently, the applicant filed a Statutory Complaint and the same was rejected by the respondents
vide order dated 04.02.2013. The applicant filed OA No.24/2013 in AFT (RB) Guhawati challenging his non-empanelment for promotion as well as
the validity of the above average (8 point) ratings in his CRs. AFT (RB) Guhawati, vide its order dated 22.12.2016, observed that, in keeping with the
relevant pen pictures, the applicant appeared to have been under rated by 10, RO and/or SRO in five CRs, viz., CRs 01/07-12/07, 04/08-04/09, 07/09-
05/10, 06/10-11/10 and 12/10-05/11 and thus asked the respondents to reconsider these three box gradings. The respondents, after reconsideration, did
not change the said above average (8 points) gradings to outstanding (9 points), and informed the applicant accordingly vide their letter dated
28.07.2017, contending that. the gradings were ""well corroborated, objective, performance based and strictly conforming to the extant instructions
governing assessment in ACRs and, therefore, did not merit any interference"". The applicant filed a statutory complaint on 23.02.2018 against this
order and the same was rejected as untenable by the respondents vide their impugned order dated 19.07.2018, contending that, vide para 364 (b) of
the Regulations for the Army (Revised Edition), 1987, the right to complain to the Central Government on a particular set of issues can be exercised
only once. Hence, this OA.
Mr. I.S. Singh, learned counsel for the applicant, has averred that the only way the respondents could have implemented the order dated 22.12.2016
of the AFT (RB) Guhawati was by changing the specific above average (8 point) box gradings in the five impugned CRs between January 2007 to
May 2011 to outstanding (9 points). The independent review of his box gradings conducted by Respondent No.1, on reference by Respondent Nos. 2
& 3, tantamount to disregarding and disobeying the orders and observations of the Tribunal (RB-Guhawati). Learned counsel has contended that the
respondents cannot be allowed to act as an Appellate authority on the findings of the Tribunal and thus, their orders in this regard deserve to be
quashed.
Reliance is placed on the judgment dated 28.11.2000 of the Hon'ble Apex Court in the matter of Union of India Vs. Shankarappa (Civil Appeal
No.3106 of 1991 (2001) I SCC 584 wherein, at para 7, the Court had observed:
“7…….. The executive cannot sit in appeal or review or revise judicial order. The Appellate Tribunal consisting of experts decides
matters quasi-judicially. A Secretary and/or Minister cannot sit in appeal or revision over these decisions. At the highest, the Government
may apply to the Tribunal itself for a review, if circumstances so warrant. But the Government would he bound by the ultimate decision of
the Tribunal"".
Reliance is also placed on the judgment dated 22.11.2013 in the matter of Union of India and Another Vs. Ashok Kumar Az,garwal (Civil Appeal
No.9454 of 2013 (2013) 16 SCC 1475. Paras 52 to 54 of the judgment are reproduced as hereunder:
In view of the above, we are of the considered opinion that it was not permissible for the appellants to consider the renewal of the
suspension order or to pass a fresh order without challenging the order of the Tribunal dated 01.06.2012 and such an attitude tantamounts
to contempt of court and arbitrariness as it is not permissible for the executive to scrutinise the order of the court.
In Amarjit Singh Ahluwalia V. State of Punjab, this Court placing reliance upon the judgment in Vitatelli v. Seaton, considered the scope
of Articles 14 and 16 observing that the scope of those articles is wide and pervasive as those articles embodied and the principle of
rationality and they are intended to strike against arbitrary and discriminatory action taken by the State.
In Union of India v. K.M. Shankarapa this Court deprecated the practice of interfering by the executive without challenging the court
order before the superior forum, and observed as under: (SCC p.585, para 7)
7….. The executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the
Constitution. The legislature may, in certain cases, over rule or nullify a judicial or executive decision by enacting an appropriate
legislation. However, without enacting an appropriate legislation, the executive or the legislature cannot set at naught a judicial order. The
executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consisting of experts decides matters quasi-
judicially. A Secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest the Government may apply to the
Tribunal itself for a review, if circumstances so warrant. But the Government would be hound by the ultimate decision of the Tribunal.
(emphasis added)
Mr. T.S. Khehar, learned counsel for the respondents, on the other hand, has controverted the arguments made on behalf of the applicant. Learned
counsel has referred to paras 31 and 32 of the AFT (RB) Gwahati order dated 22.12.2016 which are reproduced as hereunder:
The respondents had also placed before us the quantified marks of the applicant in each of the Selection Boards, his overall ranking in
the merit as well the ranking of the last empanelled officer in each batch. It is observed that the applicant was well below the cut off merit in
all three Selection Boards. However, as observed earlier, the applicant's box grading in some of the CRs in the reckonable profile need a
review. It is possible that even with the review, the applicant may still not merit selection. However, in the interest of justice, the applicant's
case for empanelment would need to be looked into based on the review of aberrations in box gradings pointed out by us.
Accordingly, taking all facts and circumstances into consideration the Original Application is partly allowed. We direct the respondents
to review the CRs of the applicant indicated at para 27 above, in the light of the observations by us. It is further directed that based on the
review carried out, the quantified marks allotted to the applicant in each of the Boards he re-calculated and his position in the overall merit
be examined. If based on the revised marks, the applicant is above or equal to the last empanelled officer in any of the Boards, he is to be
empanelled for promotion to the rank of Col in that board and promoted with due ante dated senioriOr and all consequential benefits. It is
further directed that the above review be carried out and the applicant be informed of the outcome within a period of four months from the
date of receipt of a copy of this order"".
Learned counsel, in the backdrop of the applicant being well below the cut off merit in all three Selection Boards, submited that based on the
observations of AFT (RB) Guwahati, the applicant's CRs were subjected to detailed review by the respondents to ascertain whether the box gradings
mentioned in the said order should be changed. It was found that the applicant had been predominantly awarded 'box grading' of Above Average by
different reporting offices in the impugned CRs in the reckonable profile. Even within the five CRs between January 2007 and May 2011, which are
under review, the applicant was awarded an equal mix of 'Outstanding' and 'Above Average' box gradings. The assessments under review were thus
found to be consistent with the overall profile of the applicant and also were corroborated, objective, performance based and strictly conforming to the
extant instructions governing assessment in CRs. Thus, these CRs were found to not merit any interference in terms of upward modification of box
gradings.
Learned counsel has asserted that the primary reason for the applicant not being empanelled in No.3 SB was his being low in comparative merit
within his Batch due to his overall profile and thus the applicant cannot be given higher box gradings where it has been clearly ascertained, after
review by the respondents, that his above average (8 points) gradings were consistent with his profile and performance.
Consideration:
We have given careful consideration to the arguments on both sides and find that the primary issue before us is whether the respondents
implemented the order dated 22.12.2016 of this Tribunal (RB Guhawati) correctly when they did not upwardly modify all 'Above Average' box
gradings in ACRs awarded to the applicant to ""Outstanding"" consequent to review of the same which was directed in the said order.
We find that in the records supplied by the respondents, the applicant has been described as a Non-Staff College/ Non-Technical Staff
College/Non-Senior Command qualified officer who had been graded BI on the Junior Command Course. On their review on file as well as in their
pleadings, the respondents have submitted that, as per norms, a good ""pen picture"" written in the CR by the reporting officer can merit either an
Outstanding"" or an ""above average"" box grading, depending on the reporting officer's judgment based on the ratee's overall profile and his
performance during the period under review. Just because the officer or his performance is described in glowing terms in his pen picture does not
necessarily imply that he will be awarded an ""Outstanding"" box grading. Further, the box grading is not a mathematical average of the individual
ratings awarded for ratings on personal qualities or performance by the reporting officers. The respondents have also alluded to the fact that the Army
has a pyramidical structure where there are relatively few promotion vacancies in higher ranks, hence, reporting officers are required to judiciously
differentiate between officers by awarding performance based mix of box gradings at various levels. Hence, on review by the respondents, it was
determined that there was no need to upwardly modify the applicant's 'above average' box gradings.
Having carefully considered the review carried out by the respondents pursuant to the order dated 2.12.2016 in OA No.24 of 2013, including
consideration of the Statutory Complaint dated 25.02.2018 submitted by the applicant, we are satisfied with the results of the said review. We are in
agreement with the respondents that it was not mandatory on their part to upwardly modify all the box gradings of the reckonable period pertaining to
the applicant based on their review.
In the result, the OA is found to lack merit and is disallowed.
No order as to costs.
Pronounced in open Court on this 5th day of February, 2020.