USHA MFHRA ( 1 ) THE short point raised in this writ petition is whether the promotion of the petitioner could be vwithheldor deferred on the plea that CBI report was against him particularly when as a sequal of CBI report the petitioner had already been awardedcensure of "reproof" ? ( 2 ) TO answer this question the brief facts relevant for determination of the same are that the petitioner joined Indian Air Force on 1/12/1961. In 1979 he was selected as a Member of theselection Committee constituted for the purchase of Jagar Fighterair Craft, In 1984 he was selected as officer Incharse of Advanceelectronics Laboratory at Palam Airport known as AMSE. The Electronic Air Craft is an important equipment for striking ability of the Air Craft. The petitioner was associated as Technical Expert for theselection, inspection adn recommendation of the craft that was proposed to be purchased for bringing the Indian Air Force on thepedestal of superior striking ability. In 1989 the Indian Air Forcecondacted an air defence exercise, however, it was not successful. Hence the task to find out the causes of its failue and poor performancewas given to the petitioner. The petitioner submitted his report and furnished reason for the failure to be poor planning and wrong location of Radars. The responsibility cf the operational planning wasfound to be that of Air Marshal S. K. Kaul- Since responsibilily ofthe failure was levelled against Mr. Kaul, he became biased againstthe petitioner. The Air Marshal S. K. Kaul at that time i. e. infebruary, 1994 was the Chief of the Air Staff. In February, 1994 itselfthe Promotion Board of the petitioner met. On accountof this bias of the Chief of the Staff and in order to avengethe senior officers. manipulated the denial of promotion to the petitioner. Similarly, the petitioner, opined against the intended procurement of Collins HF-9000 R/t sets for Air Force Helicopters and foralh (made by HAL ). Because of this opinion he earned enemiesthough Government benefited in crores by his advise. Because ofnon procurement of Collins the top brass of Indian Air Force turnedagainst him. This bias and prejudice of the top brass created insurmountable obstruction in his promotion. When posted at AMSE thepetitioner brought about redical changes in the administration andapproach to the problems faced by AMSE. The petitioner not onlyimproved the Laboratory but also successfully evolved a technique ofrepairing Air Boarne Electronic System indigenously. This bias and prejudice of the top brass created insurmountable obstruction in his promotion. When posted at AMSE thepetitioner brought about redical changes in the administration andapproach to the problems faced by AMSE. The petitioner not onlyimproved the Laboratory but also successfully evolved a technique ofrepairing Air Boarne Electronic System indigenously. The otherwiseunscrviceable AN-32 fleet was brought back into active operation. Because of this innovative achievement of the petitioner, his name wasrecommended for the award of AVSM. That the officers superior tohim who had failed to achieve such a result conspired to degrade himby foul means. False and anonymous letters were written against him. The petitioner was posted out of the Advace Electronic Laboratory ofthe Indian Force in 1990. In 1992 petitioner was selected by Ministry of Defence to undergo the Highest Level National Defencecollege Course for 1993. The candidates wh were selected for thissourse were those officers who had very high outstanding performance and prospect for serving the nation for not less than five years or soin top ladder. The petitioner passed this course of National Defencecollegs in January, 1994 and thereafter was posted to Air Headquarter. Unfortunate for the petitioner when Promotion Board metin 1994 he was ignored on account of the bias and due to anonymousletters written against him by Sqn. Leader D. K. Ganguli whom thepetitioner pulled up for slackness, negligence and derelietion of duty. Mr. Ganguli in league with Sqn. Leader Goel and other subordinate to the petitioners manipulated prejudice against him. They got a Court of Enquiry initiated against him which ended with the finding thatthe allegation of procedural irregularity levelled against him were him were false. The matter had been enquired into by the C. B. I, in 1090. Thechief of the Air Staff endorsed the view by directing that no actionwas called for against the petitioner. However, inspite of C. B. I. clearing his name and the Court of Enquiry decidins in his favourand the Chief of the Army Staff directing that no action was calledfor against the petitioner yet the petitioner was not given promotionby the Seletion Board met in 1994. 1995 and 1996. The allegation which was looked into by the C. B. I, was that the petitioner used theearlier tender calling form instead of revised form. The form prescribedearlier was used. 1995 and 1996. The allegation which was looked into by the C. B. I, was that the petitioner used theearlier tender calling form instead of revised form. The form prescribedearlier was used. This petitioner explained that the use of the Tendercalling Form originated from the lower range officials and not by thefinal signing authority. It was brought to their notice that since therevised forms were not available at that time hence keeping in view theurgency and important task of fabrication of two bus bodies and twocalibration Vans in AMSE at Palam in 1987-88, the form prescr bedearlier were used. Even otherwise the unit enquiry conducted againstthe petitioner stood vitiated for not according the statement of accusedin his own words and for non-furnishing of copies of material documents Nor the result of enquiry was conveyed to the petitioner tilldate. The petitioner had the numerical grade for being selected tothe higher post. He had been having higher grades through out. Hisperformance report was favourable. He never got any adverse entrynor till date any adverse remarks or entry communicated to him. Therespondents or the other hand took the plea that the petitioner wasconsidered for promotion to the rank of Air Vice Marshal by theselection Board of 1994. He was not found fit for promotion. Similarly, the Selection Board of 1995 and 1996 did not find him fitfor promotion. The reason for deferring his promotion for 1994was C. B. I. report indicting him for certain irregularities as a sequalto it he was awarded "reproof" by the Chief of the Air Staff on 20thdecember, 1990. From the report of ths C. B. I. it is clear that petitionerwas indicted, therefore, the censure in the form of Reproofwas awarded to him. The Selection Board considered all these aspectsat the time of his selection, and therefore, deferred his promotion. Since the petitioner was involved in certain irregularities while commanding Advance Electronic Laboratory of Indian Air Foice at Palam,he was awarded Reproof. His conduct and behaviour are matter ofrecord. The Selection Board considered these aspects and came tothe conclusion that he was not fit to be promoted. Since the petitionerwas awarded censure in the form of "reproof" by the Chief of theair Staff for the lapses committed by him and this weighed with theselection Board. His conduct and behaviour are matter ofrecord. The Selection Board considered these aspects and came tothe conclusion that he was not fit to be promoted. Since the petitionerwas awarded censure in the form of "reproof" by the Chief of theair Staff for the lapses committed by him and this weighed with theselection Board. Therefore, the action of the respondent in not promoting the petitioner was based on his employability and pen pictureas well as appraisal report as a whole. ( 3 ) FROM the perusal of the above facts one glaring fact whichemerges that the respondents did not promote the petitioner in 1994because of the irregularities alleged to have been committed by thepetitioner. Therefore, C. B. I report admittedly was never communicated or conveyed to the petitioner. As per respondent s own admission, it was as a sequel to C. B. I, report that the petitioner was awarded"reproof" by the Chief of the Air Staff on 20/12/1990. Itis also a fact on record that the petitioner was given the acting rankof Air Cmdr. i. e. after the report of C. B. T. and after he had beenawarded reproof". In March, 1991 this petitioner was given substantive rank of Air Cmdr. with retrospective effect i. e. November,1990. When the substantive rank of Air Comdr. was conferred withretrospective effect the Chief of the Air Staff knew about the reportof C. B. I. and the censure by way of "reproof" already having beenawarded against the petitioner and yet allowed substantive rank with480retrospecive effect. It was because Chief of the Army Staff knewthat as per practice and rules the censure of "reproof" was not tocome in his way that is why granted him substantive rank with retrospectiveeffect inspite of "reproof". Mr. S. Mukherjee appearingfor the petitioner, therefore, rightly contended that when substantiverank of AT Comdr. was given in March, 1991 with retrospective effecti. e. from November, 1990, the award of "reproof" did not come inthe way of the petitioner. If that be so then why should the causeleading to the awarding of "reproof" should come in his way nowwhen he is be promoted to the rank of Air Vice Marshal for theslot of 1994. . . ( 4 ) IN order to find out whether the petitioner had numerical grading and why his promotion in 1994 was deferred original recordwas called for. The same was produced in this Court. . . ( 4 ) IN order to find out whether the petitioner had numerical grading and why his promotion in 1994 was deferred original recordwas called for. The same was produced in this Court. The proceedings of the Promotion Board for the year 1994 show that promotion of the petitioner was deferred because it was found that a reportwas submitted by C. B. I. through MOD which had indicted him forcertain irregularities. The Board considering the nature of enquirydecided to defer the case of petitioner for promotion. The Promotionboard also found that the petitioner had met the numerical assessmentcriteria. However, it was because of the C. B. I. report that hispromotion due in 1994 was deferred. What we have to see whetherthe Board could take into consideration the report of C. B. I. as asequel of which the Chief of the Air Staff had already taken actionagainst him by awarding "reproof". In the counter affidavit therespondents have admitted that "reproof" was awarded against thepetitioner as a sequel to the report of C. B. I. Having once awarded reproof" the petitioner s promotion on the basis of the C. B. I. reportcould not have been deferred. This would amount to reopening thecase and awarding fresh punishment to the petitioner. On the basisof C. B. I. report the Competent Authority awarded "reproof". It isnot the case of the respondent that on account of "reproof" promotion of the petitioner was deferred or passed over. Respondent s caseis based on the fact that despite "reproof" awarded by the Chief ofair Force, the Selection Board could go behind it to find out thecause of "reproof". Meaning thereby on the basis of cause or thereason leading to the "reproof" the Selection Board could ignorethe petitioner for promotion. To my mind, the Selection Board couldnot have gone behind the cause or the reason. Once the Competentauthority on the basis of that cause i. e. report of C. B. I. had alreadytaken action the Selection Board could, not look into that report. Ifthe award of "reproof" could be based as the basis of supercessiononly then the Selection Board could have ignored him orsuperceeded him but not on that cause i. e. report of C. B. I. for whichthe petitioner had already been awarded "reproof" because that wouldamount to review or reopening the case which the Selection Boardwas not competent to do. Ifthe award of "reproof" could be based as the basis of supercessiononly then the Selection Board could have ignored him orsuperceeded him but not on that cause i. e. report of C. B. I. for whichthe petitioner had already been awarded "reproof" because that wouldamount to review or reopening the case which the Selection Boardwas not competent to do. Barring the award of "reproof the petitioner had met all other criteria for promotion. He had numericalgrades which made him eligible for promotion. His promotion couldnot have been deferred because of "reproof" nor the Board couldbase his supercession on C. B. I. report which had already Culminatedinto. "reproof". ( 5 ) THE word "reproof" does not appear in the Air Force Act orthe Rules made thereunder. It is defined as "a custom of service". Section 5 of the Air Force Act deals with summary and minor punishments. Para 711 of the Regulations for IAF,. 1964 deals with therevision of summary punishments awarded to a person subject to theair- Force Act. Para 712 deals with the "reproof" of officers andwarrant officers. Since these paras 711 and 712 are relevant for ourpurpose hence reproduced as under :-711. Revision of Summary.-Punishments awarded to aperson subject to the Air Force Act:- (a) If any punishment awarded by commanding officerappears to a superior air force authority , as herein-after defined, to be wholly illegal, then the "superiorair force authority" shall direct that the award becancelled and the entry in the records of the accusedbe expunged. (b) If such punishment appears to a "superior air forceauthority" as hereinafter defined, to be in excess ofthe punishment authorised by the law for the offencethen, the "superior air force authority" may Vary thepunishment awarded so that it shall not be in excessof punishment authorised by law, and the entry in therecord of the accused be varied accordingly (c) If such punishment appears to a "superior air forceauthority", as hereinafter defined, to be too severehaving regard to all the circumstances of the case,then, the "superior air force authority" may remitthe whole or a part of the punishment awarded andsuch remission shall be entered in the record of theaccused, provided that such power of remission sllbe exercised by a "superior air force authority" withina period of two years from the date of the aword. (d) The expression "superior air force authority" meansin the case of punishments awarded by a commandingofficer, any officer superior in command to suchcommanding officer. 712 Reproof of Officers and Warrent Officers: (a) A commanding officer or any superior air force officermay reprove an officer or warrant officer under hiscommand for an offence which, in his opinion, is notof such a serious nature as to merit disciplinary actionunder the Air Force Act, 1950. The reproof of anofficer or warrant officer is not a recognised punishment under the Act and will not be entered in theofficer s or warrant officer s record though it may bereferred to, if necessary, in a confidential report onthe officer on warrant officer concerned. In order toavoid any confusion with a reprimand under theact, it is not to be referred to by any terms other than reprove or reproof. (Underlinings are mine) (b) Great care will be taken that the procedure in sub-para (a) is not adopted when superior authority is atall likely to consider that the offence calls for disciplinary action under the Air Force Act, 1950, as thereproof might, in certain circumstances be held toamount a condonation of the offence barring disciplinary action under the Act. ( 6 ) READING of para 712 shows that "reproof" is not a recognisedpunishment under the Act. This is not even a reprimand, therefore,it was not to be entered in the officer s record. Subsequent theretoanl Air Force order No. 227177 was issued dealing with the Award ofcensure. Para No. 14 and 26 which are relevant are reproduced. These show that the censure is a matter of custom of service awardedfor offences/lapses, which are not of serious nature as to merit disciplinary action. Para 14. Censure is a matter of custom of Service, in accordance with which, it may take the form of reproof, displeasure or severe Displeasure , and may be awardedfor offences/lapscs which are not of such a serious natureas to merit disciplinary action under the Air Forceact, 1950, or where disciplinary action is inexpedient. Censure in any of these forms, however, should not beawarded when superior authority is likely to considerthat the offence calls for disciplinary action under theair Force Act, 1950, as award of censure might, incertain circumstances, be held to amount to condonation of the offence barring disciplinary action under theact. Para 26. Censure in any of these forms, however, should not beawarded when superior authority is likely to considerthat the offence calls for disciplinary action under theair Force Act, 1950, as award of censure might, incertain circumstances, be held to amount to condonation of the offence barring disciplinary action under theact. Para 26. Effect of Censure:- (a) The award of displeasure or severe Displeasure willcarry negative marks for the consideration of thepromotion Board depending on the period for which itis expressed. (b) The Award of displeasure , or severe Displeasure would be considered only once by that Promotion Boardbefore which the officer s case first comes for consideration irrespective of the pendency of the Censure. (c) If an officer is awarded displeasure or severe Displeasure but the currency of the severe Displeasure isover before his name comes up for promotion, eventhen the first Promotion Board before which his casecomes up for consideration would count against himthe negative marks as stated in sub para (a) above. (d) The award of censure such as severe Displeasure on displeasure or reproof is not to be reflected in theconfidential Report, but the letter conveying the censurewill be kept in personal file of the concerned officer sothat, it would be available before a Promotion Boardfor taking due note of the fact of the award of the saidcensure and the reasons thereof. ( 7 ) SUB para (d) of para No. 26, as quoted above, makes it clearthat the award of "reproof" is not to be reflected in the confidentialreport. However, a letter conveying the "reproof" could be kept inthe personal file of the officer concerned and could also be madeavailable to the Promotion Board for taking due note of the fact ofthe award of reproof. Subsequent thereto a corrigendum to the Airforce order No. 227/77 was issued by Air Head Quarter Order No. 52dated 23/09/1978, thereby amending para 26 (d) of AFO227/77. The amended para 26 (d) reads as under :-Para 26 (d)-Line 2:-Delete the words "or Reproof" and add the word "or" betweenthe words "severe Displeasure" and "displeasure". ( 8 ) BY this amendment, the Chief of the Air Staff omitted the word reproof. After the amendment the "reproof" was neither to be reflectedin the confidential report nor in the personal file of the officerconcerned. ( 8 ) BY this amendment, the Chief of the Air Staff omitted the word reproof. After the amendment the "reproof" was neither to be reflectedin the confidential report nor in the personal file of the officerconcerned. By this amendment the Air Force Authority made it clearthat from September, 1978 the award of the "reproof" was not evento be kept in the personal record what to talk of putting the samein the confidential report. Hence the award of the "reproof" tothe petitioner awarded in 1990 could not have been kept or placedon his confidential record or personal file nor could have been placedbefore the Promotion Board of 1994. Since the respondents placed thecause leading to the Award of "reproof" before the Promotion Board itdid prejudice the mind of the Board. The Selection Board took cognizance of the same hence deferred his promotion. Mr. P. N. Mishra scontention that by amendment an advantage accrued to the respondentnow after amendment the "reproof" could be placed in the confidentialreport as well as in the personal file of the official. To mymind, this argument if accepted would lead to harsh results. As perafo-227 displeasure or severe Displeasure cannot be reflectedin the confidential report but if "reproof" which is the least, lessorof mildest form of punishment is allowed to be reflected in the confidential report as well as in the personal file of an officer then notonly he would be adversely discriminated but greatly prejudiced. This argument, to my mind, is without substance. We have to seethe rationale behind the Corrigendum No. 52 issued by the respondent. By deleting the word of reproof in para 26 (d) vide thiscorrigendum the respondent in fact wanted that the reproof benot reflected either in the confidential report or in the personal fileof an officer because "reproof" is much less a punishment incomparison to Displeasure or Severe Displeasure. Therefore, whenthe censure of displeasure and severe Displeasure was not to bekept in the confidential report of the officer then the respondentmust have realised that the lesser punishment may as well be notkept cither in the confidential report on in the personal file nor madeavailable to the Promotion Board. reproof" after the amendmentof para 26 (d) is not to be available or accessible to the Promotionboard. For this conclusion support can be had to the Army Regulation Vol. reproof" after the amendmentof para 26 (d) is not to be available or accessible to the Promotionboard. For this conclusion support can be had to the Army Regulation Vol. I [section 327 sub-para (c), which is reproduced asunder] :- " (C) Warning a minor censure may take the form of reproofand be administered verbally or in writing to service personnel by the officer commanding or by an authoritysuperior in command to the officer commanding. Awarning will not be recorded in the service documentsof the person concerned. " ( 9 ) READING of this Section 327 shows that reproof can be administered verbally under the Army Regulations. May be to bringthe Award of "reproof" at par with Army Regulations that amendment was made in para 26 (d) vide corrigendum No. 52 of 2 3/09/1978 thereby deleting the word reproof from para 26 (d ). If reproof under the Army Regulations can be administered verbally,the Air Force authority in its wisdom by amending para 26 (d)achieved the same results. That is the reason the "reproof" has notto be reflected in the confidential report or on the personal file ofthe officer as per the amended para 26 (d ). Moreover, the censureof Displeasure or Severe Displeasure have the effect of negativemarks upto the extent of the currency of the censure, It would bean anomalous position if "reproof" is allowed to result in total denialof promotion while the censure of Displeasure result in reduction ofjust mark in the total grading. As already referred to above "reproof as compared to Displeasure is the lesser and mildest punishment. If as suggested and argued by Mr. Mishra is accepted theresult would be that reproof would become the strongest punishment which the drafters of Air Force Orders never intended. ( 10 ) NOW turning to para 712 of the Regulations quoted above,it nowhere indicates that "reproof" will form part of the confidentialreport. It only provides that the award of "reproof" can be considered by the initiating or reviewing authority if it so likes. Butthe fact remains that in the confidential report of the petitioner recording authority has not mentioned about the "reproof nor therespondents have placed any material on record to show that thecompetent authority recording the confidential report ever took noteof this reproof while recording the confidential report for the years1991, 1992, 1993 or 1994. Butthe fact remains that in the confidential report of the petitioner recording authority has not mentioned about the "reproof nor therespondents have placed any material on record to show that thecompetent authority recording the confidential report ever took noteof this reproof while recording the confidential report for the years1991, 1992, 1993 or 1994. On the contrary it has been the consistent stand of the petitioner that the Chief of the Air Staff closed thematter on 28/12/1990 by awarding "reproof". Even atthe risk of repetition, it must be mentioned that the petitioner waspromoted to the acting rank of Air Cmdr. on 18/03/1991 i. e. three months after the award of "reproof". Therefore, I am inagreement with the contention of MB. Mukherjee, counsel for thepetitioner that as soon as the petitioner was promoted to the actingrank ofair Comdr. in March, 1991 it washed away the effect oflhe "reproof" (if there was any ). It has not been placed on record nor the respondents produced any material to show that thecompetent authority was not aware about reproof while recordingthe confidential reports of the petitioner. The petitioner was re-commended for promotion in the Selection Beard held in February,1990. The result was kept in abeyance to await the disposal ofc. B. I. inquiry regarding AMSE (Depot) of which petitioner was thecommanding Officer. The show cause notice was issued on 4/12/1990. Petitioner replied on 7/12/1990 and thematter was closed by the Competent Authority on 28/12/1990 by award of "reproof". Thereafter the respondent took threemonths to promote the petitioner to the rank of Air Cmdr. Thus thepromotion given to the petitioner on 18/03/1991, to my mind,washed away the effect of "reproof" awarded in December, 1990. Hegot acting rank on 18/03/1991 and thereafter in the midleof 1991 he got the substantive rank with retrospective effect fromnovember, 1990. Had the award of reproof any effect on the promotion of the petitioner, then respondents would not have grantedhim the rank of Air Cmdr. nor the substantive rank of Air Cmdr. with retrospective effect. This shows the "reproof" as such wouldnot effect the promotion chances of an officer. Even otherwise theeffect of award of "reproof" if there was any stood washed awaywhen the petitioner was given substantive rank of Air Cmdr. in themiddle of 1991. It was not correct for the Selection Board of 1994to take those factors into consideration in 1994 in order to deprivethe petitioner his promotion. Even otherwise theeffect of award of "reproof" if there was any stood washed awaywhen the petitioner was given substantive rank of Air Cmdr. in themiddle of 1991. It was not correct for the Selection Board of 1994to take those factors into consideration in 1994 in order to deprivethe petitioner his promotion. ( 11 ) THE Board which assembled on 2/02/1994 to select the panel of officers for the vacancies of Air Vice Marshal recordedthat following be kept for consideration in mind:-1. Promotion to the acting rank of Air Vice Marshal shouldbe by selection. 2. Fitness of promotion being determined on the basis ofability (in field and staff appointment) cum seniority inthe branch. ( 12 ) IT was further observed that while numerical assessmentcriteria generally followed by the Ministry of Defence i. e. three reports with overall numerical grading of 7 and above in the lastfive years with two such report having been earned in the last threeyears, would be taken as a guideline for clearing an officer forpromotion, greater emphasis should be placed on the officer s potential to hold the responsibility of the next higher rank as discernedfrom the reports on him in various appropriate appointments held byhim in the past. ( 13 ) KEEPING this criteria in mind, the name of the petitioner wasconsidered. The perusal of the Board Meeting of 2/02/1994 shows that the petitioner met numerical assessment criteria. Itwas only the report submitted by C. B. I. that his promotion wasdeferred. ( 14 ) THE contention of Mr. Mukherjee that this Court shoulddeclare the petitioner having been selected for promotion to the postof Air Vice Marshal cannot be accepted. Even though the petitioner according to the Selection Board met the numerical grade i. e. the criteria laid down, still this Court cannot declare the petitioner tobe promoted. It would be in the fitness of things that direction shouldbe given to the respondent to consider the case of the petitioner forpromotion to the rank of Air Vice Marshal for the slot of 1994 on thebasis of criteria it laid down and as quoted above. The Selection Boardwill reconsider the case of the petitioner for the slot of 1994 de hors thealleged report of C. B. I. or any other extraneous circumstance. Orderaccordingly. The Selection Boardwill reconsider the case of the petitioner for the slot of 1994 de hors thealleged report of C. B. I. or any other extraneous circumstance. Orderaccordingly. The case of the petitioner for promotion for the slot of1994 be done within two weeks by constituting special Selectionboard and till then petitioner will continue to be in service. ( 15 ) WITH these observations the petition stands disposed.