Refusal To Reconsider Officer's Promotion Despite Striking Down Downgraded Assessment Is Illegal: Delhi High Court

The Delhi High Court has observed that the Central Government's refusal to reconsider the promotion of an Indian army officer, despite finding that the officer's Confidential Report (CR) had been incorrectly downgraded by the Initiating Officer (IO), was arbitrary and illegal.

The Court further observed that the order of the Armed Forces Tribunal to deny the promotion to the officer until a new vacancy became available, despite the Central Government's relief, was unsustainable.

Background of the case:

A division bench of Justice Rekha Palli and Justice Shalinder Kaur were considering the petitioner's challenge to the order of the Armed Forces Tribunal dated 19.04.2024, which refused the petitioner's plea to be considered for promotion as a Lt. General in the Corps of Engineers, Indian Army.

The petitioner served as a Major General in the Indian Army's Corps of Engineer. He was graded as 'Outstanding' in his Confidential Reports (CR) initially by the Initiating Officer (IO). But subsequently, he was downgraded in his CR by the same IO.

The Army Headquarters issued a notification on 23.09.2022 regarding the schedule of a Special Selection Board (SSB) to fill the vacancies. Meanwhile, the petitioner filed a statutory complaint on 27.02.2023 before the respondents to dispose the matter of downgrading of his CR and also to be incorporated in the SSB.

Since no action was taken on his complaint, the petitioner filed an application before the Armed Forces Tribunal. On 31.05.2023, the Tribunal ordered that the petitioner's promotion would be subject to the outcome of its decision.

After this interim order, the respondents declared results of the SSB on 19.02.2023 and recommended two officers for the vacancies, one junior and one senior to the petitioner. After the vacancies were filled up, the Central Government (respondent no. 1) struck down the IO's downgrading of the petitioner. Despite this, the respondents failed to re-consider the petitioner for promotion.

When the Tribunal heard the matter on 19.04.2024, respondents stated that they could not consider the petitioner's promotion as no specific vacancy was available. They argued that their Policy did not envisage holding a SSB for an individual officer and thus the petitioner could only be considered for the next vacancy, which would be in 2025.

The Tribunal accepted the respondent's arguments. It held that as there was no vacancy available in view of respondent's policy, no relief could be granted to the petitioner despite change in his CR profile.

Analysis

The High Court noted that even though the petitioner filed a statutory complaint on 27.02.2023, it was not forwarded by the Army Headquarters to the competent authority till late July. It noted that by this time, the result of the SBB held on 19.02.2023 was de-classified.

The Court observed that if the petitioner is not granted the review consideration for promotion, despite receiving relief from the Central Government for being wrongfully downgraded by the IO, then the intended benefit of the relief would be defeated.

It stated that this may lead to a situation where a meritorious officer may be denied promotion only because their IO may arbitrarily downgrade the CR of the officer.

The Court held that if the Central Government overturned the downgrading of petitioner's CR, the petitioner cannot be denied promotion on the grounds that he must wait for the next available vacancy.

“Such an officer, in our view, cannot be told that even though the downgrading of his CR by his IO/RO was illegal and has been subsequently, set aside by the Central Government/the Chief of Army Staff by accepting his statutory/non-statutory complaint, he would still continue to be deprived of his rightful promotion as his junior has already been promoted in the meanwhile and he will be required to wait for accrual of the next vacancy.”

It observed that if a review consideration is only granted if there is a next available vacancy, “…it would lead to a situation where in order to harm the promotional prospects of an officer, the disposal of the statutory complaint preferred by him may itself be delayed deliberately.”

The Court held that the respondent's refusal to grant a review consideration to the petitioner was arbitrary and illegal.

On the Tribunal's order, the Court stated that the Tribunal's s interim order dated 31.05.2023 had protected the petitioner's rights, as it had directed that promotions resulting from the SBB held in February 2023 within the Corps of Engineers would be subjected to the outcome of its order.

The Court observed that the Tribunal overlooked the fact the IO's downgrading was set-aside and an officer junior to the petitioner was promoted.

“In our view, it would be a travesty of justice if the petitioner were to be told that, despite it having been conclusively established that his IO had wrongly downgraded him in the assessment of one of his CRs, which was considered by the Selection Board held in February 2023, he cannot now be considered for promotion as his batchmates, including a person junior to him, have already been promoted and that too by ignoring the interim order passed by the Tribunal” it remarked.

The Court thus set-aside the order of the Tribunal dated 19.04.2024.

It directed the respondents to grant a special review consideration to the petitioner for promotion to Lt. General in the Corps of Engineers. It directed that the respondents should apply the same parameters as applied by the SBB for considering petitioner's promotion.

Case title: Maj Gen Vinayak Saini Sm Vsm vs. Union Of India Through & Ors. (W.P.(C) 7181/2024)

Citation: 2024 LiveLaw (Del) 916

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