The Delhi High Court overturned an AFT ruling and observed that the Major General was not considered for promotion in an "arbitrary and illegal manner." The Delhi High Court recently instructed the Army to consider a Major General for promotion to  Lieutenant General before his retirement on October 30. The court found that he had not been considered for promotion in an “arbitrary and illegal manner.” Overturning the order of the Armed Forces Tribunal (AFT) rejecting Major General Vinayak Saini of the Corps of Engineers’ petition for a special review board, the high court also questioned how the officer’s statutory complaint challenging certain Annual Confidential Reports (ACR) was kept pending until after the Special Selection Board (SSB), which was to consider him, had taken place. The court also rejected the Army’s contention that there are no vacancies for Lieutenant Generals in the Corps of Engineers before Major General Saini retires. The Army also claimed that the first vacancy would only be available in September 2025, when the Engineer-in-Chief, Lieutenant General Arvind Walia, retires. The high court observed that the promotions of two Major Generals to Lt General while Maj Gen Saini’s petition was pending in the AFT were contingent on the outcome of the petition. Since he successfully had his negative Annual Confidential Reports (ACRs) overturned, he was entitled to relief. Otherwise, it would nullify the purpose of granting him relief, the court said.

Maj Gen Saini was commissioned in the Corps of Engineers in December 1987. Upon being promoted to a Major General, he was posted as Chief Engineer (CE), Eastern Command, wherein he was graded as ‘Outstanding’ in his Confidential Reports (CR) for the periods from July 2020 to January 2021 and from April 2021 to July 2021. However, for the subsequent period from July 2021 to May 2022, the same Initiating Officer (IO), who had recorded his CR for the earlier period as ‘Outstanding’, downgraded the numerical grading awarded to the petitioner. Based on his seniority, the petitioner was considered by the Special Selection Board (SSB) as a fresh case of the 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 Non-General Cadre Staff (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, submitted a statutory complaint dated February 2023 with a specific prayer that the same be disposed of expeditiously and incorporated in the SSB held in February 2023. “At this stage, it may be noted that though the petitioner had through proper channels submitted his Statutory Complaint as early as on 27.02.2023, the same was kept pending at the Army Head Quarters itself and was forwarded to the Ministry of Defence, only in July 2023, i.e after the result of the two SSBs had already be declassified,” the court said. Soon after the second vacancy of Lt. General in the Corps of Engineers was also filled up as per the recommendations of the SSB, the petitioner’s statutory complaint was disposed of by the central government on October 9, 2023, by expunging the lower gradings. Based on his changed profile, though, the petitioner was considered a Special Review Fresh Case with respect to the NGSC Stream, wherein he was not recommended for empanelment in the NGCS Stream. However, he was not re-considered for promotion to lieutenant general in the Corps of Engineers.

“…..We are of the opinion that if the petitioner is not granted review consideration for promotion with respect to the SSB held on 09.02.2023, despite the redressal granted to him and his stand being vindicated that he had been wrongly downgraded by his IO, the very purpose of redressal being granted to an officer would stand defeated. This may lead to a situation like the present case, where despite being meritorious, an officer may still be denied promotion only because his IO/RO, as the case may be, arbitrarily downgrade his CR,” the high court said. “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,” the high court noted. The court also noted that if the respondents’ plea that a review consideration can be given only against the next available vacancy and not with reference to the Board where he was wronged were to be accepted, it would lead to a situation where, in order to harm an officer’s promotional prospects, the disposal of the statutory complaint preferred by him may itself be deliberately delayed. In the present case, the record shows that although the petitioner submitted a statutory complaint on February 27, 2023, it was not forwarded to the competent authority/respondent no.1 until July 2023, by which time the result of the Board held on February 19, 2023, was declassified, the court said. The court also questioned why the statutory complaint was not decided before the second vacancy of Lt Gen in the Corps of Engineers was filled on October 1, 2023, but just nine days thereafter, noting that the decision not to consider him for Lt Gen in the Corps of Engineers was “arbitrary and illegal.”