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  • Manak Mohta, J.M.
  • Z.U. Shah, A.M.
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  • Z.U. Shah, A.M.
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Smart Summary

Factual and Procedural Background

The petitioner (MWO Sarjeet Singh) filed a writ petition before the High Court seeking quashing of Air Force Confidential Order (AFCO) Policy No.2/91 (Annexure P-1) and, consequentially, that he be promoted to the rank of Master Warrant Officer (MWO) with effect from 1995 by expunging any adverse remarks/recommendations in his Annual Confidential Reports (ACRs) for the years 1990–1994, and be granted all consequential benefits including Honorary Commission. The petition was originally numbered W.P.(C) No.440/1999 (T.A. No.421/2009). Notice was issued, counter affidavit and rejoinder were filed, and the matter was transferred to the Tribunal on 01.12.2009 after the Tribunal's formation.

Relevant factual chronology in the record:

  • Applicant enrolled in the Indian Air Force as an Airman on 25.06.1962.
  • Promoted to Warrant Officer w.e.f. 01.06.1989.
  • Applicant became eligible for promotion to MWO in 1995.
  • Applicant's marks in the preceding five years' ACRs (1990–1994) as claimed by him: 1990: 98; 1991: 88; 1992: 73; 1993: 103; 1994: 96; Total: 458 (out of 660).
  • Air Headquarters letter (Air HQ/40651/3/PA(CPC) dated 31.01.1995) required a minimum of 495 marks out of 660 in the preceding five years' ACRs for promotion to MWO.
  • The applicant was considered but not promoted in promotion years 1995–96 and 1996–97 for failing to secure the required 495 marks; he was promoted in promotion year 1997–98 to acting MWO w.e.f. 01.08.1997 but was discharged on 30.10.1997 (31.10.1997 appears elsewhere in the record), thereby failing to complete the required period for pensionable service in that rank.
  • The applicant also sought expungement of alleged adverse remarks in his ACRs for 1990–1994 and sought consideration for Honorary Commission; he filed representations (last on 04.03.1998) which were rejected on 08.10.1998.

Legal Issues Presented

  1. Whether AFCO Policy No.2/91 (particularly the restriction that percentage of "Exceptional" reports should be restricted to 10% and "Above Average" not to exceed 30%) is arbitrary, unjust or discriminatory and liable to be quashed.
  2. Whether the applicant should be promoted to the rank of Master Warrant Officer (MWO) with effect from 1995 by expunging any adverse remarks/recommendations in his ACRs for 1990–1994 and thereby be entitled to all consequential benefits (including Honorary Commission and pensionable service benefits).
  3. Whether the applicant was entitled to prior warning or communication of adverse remarks in his ACRs pursuant to AFCO 2/91, paragraph 12, and whether such requirements were violated in his case.

Arguments of the Parties

Applicant's Arguments

  • AFCO 2/91 is unjust, unfair and has adversely affected promotional avenues by restricting assessors from awarding grades that reflect the applicant's true performance.
  • The applicant had excellent or above average ACRs and was not conveyed any adverse remarks; therefore, any adverse entries (if present) for 1990–1994 should be expunged and he should be promoted retrospectively from 1995 with consequential benefits, including Honorary Commission.
  • The applicant was considered for promotion in 1995–96 and 1996–97 but not promoted due to the policy; he was promoted in 1997–98 but could not complete the requisite 10 months for pensionable service in the rank of MWO because of discharge shortly after promotion.
  • He alleged that another Warrant Officer (B.S. Randhawa) was promoted despite an adverse report (raising an issue of unequal treatment).
  • He filed representations challenging the denial and sought reconsideration; the last representation (04.03.1998) was rejected on 08.10.1998.

Respondents' Arguments

  • As per Air HQ letter dated 31.01.1995 a WO is required to score a minimum of 495 marks out of 660 in the preceding five years' ACRs for grant of MWO rank; applicant did not secure these marks and was therefore declared below grade and ineligible for promotion for 1995–96 and 1996–97.
  • AFCO 2/91 provides guidance for assessing authorities and applies equally to all Airmen; it is not arbitrary, unjust or discriminatory.
  • Paragraph 12 of AFCO 2/91 prescribes that adverse remarks (and associated warnings) are required only where a person is graded "Below Average" (marks 44–65); the applicant's marks were higher than those figures and hence no warning/communication of adverse remarks was required or given.
  • Applicant was subsequently approved and promoted to acting MWO w.e.f. 01.08.1997; his case was considered for Honorary Commission but he was not found fit. The respondent also disputed the correctness of the applicant's claim about promotion of B.S. Randhawa, stating Randhawa retired as a Warrant Officer on 31.11.1997 (as per the respondent's contention in the record).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Tribunal considered the rival submissions and examined the relevant policies, in particular AFCO 2/91 and the Air HQ letter of 31.01.1995 that set the minimum marks required for promotion to MWO.

Key elements of the Tribunal's reasoning (as stated in the opinion):

  • AFCO 2/91's provision that "percentage of Exceptional should be restricted to 10% and Above Average not to exceed 30%" is essentially a guidance for assessing authorities. The Tribunal found it to be a general guideline applied to all and not discriminatory or arbitrary.
  • Paragraph 12 of AFCO 2/91 prescribes the procedure for communication of adverse remarks and how "Below Average" grading is determined. The Tribunal quoted paragraph 12 which states that, under no circumstances, the confidential report is to be shown to the person reported upon, but that before an adverse report is rendered the failings should be brought to the notice of the individual in writing to give him a chance to improve; if warnings administered have been of no avail this should be specifically mentioned and treated as adverse comments.
  • The Tribunal set out the grading scheme contained in AFCO 2/91:
    • Exceptional: 121–132 marks (not to exceed 10% in each rank).
    • Above Average: 100–120 marks (reports in this category not to exceed 35% in each rank as per the quoted paragraph).
    • Average: 66–99 marks.
    • Below Average: 44–65 marks (this grading is treated as an Adverse Report).
    • Inferior: 43 marks and below (treated as Adverse Report).
  • The Tribunal observed that the applicant's ACR marks in the preceding five years (as per the record) did not fall into the "Below Average" or "Inferior" ranges that would have triggered the procedure in paragraph 12 requiring written warnings and formal communication of failings.
  • On the substantive promotion point, the Tribunal emphasized that the Air HQ policy of 1995 required a minimum of 495 marks out of 660 in the preceding five years; the applicant's aggregate (as presented in the record) was 458, which was short of the required threshold and therefore justified non-promotion in 1995–96 and 1996–97.
  • The Tribunal noted that the applicant was subsequently promoted in 1997–98 and that his case for Honorary Commission was considered but he was not found fit.
  • Given these findings, the Tribunal concluded that the applicant had not been awarded any adverse remarks as defined by AFCO 2/91, that AFCO 2/91 was not arbitrary, and that the failure to promote earlier was explained by the applicant's inability to reach the required 495 marks in the relevant five-year period.

Holding and Implications

Holding: The Tribunal held that the petition is DISMISSED.

Implications and direct effects:

  • The challenge to AFCO Policy No.2/91 was rejected; the Tribunal found no irregularity, illegality or infirmity in AFCO 2/91 and held it to be a permissible guidance document for assessing authorities.
  • The applicant's request to quash any alleged adverse ACR remarks for 1990–1994 and to be promoted retrospectively to MWO from 1995 was denied. The Tribunal found on the record that the applicant did not meet the 495/660 marks threshold required by the Air HQ policy of 1995 for promotion in the relevant years, and that he was not awarded adverse remarks that would have required prior warning as per paragraph 12 of AFCO 2/91.
  • The Tribunal recorded that the applicant was promoted in 1997–98 and that his candidacy for an Honorary Commission was considered but he was not found fit; these outcomes remain as factual findings and were not overturned.
  • No broader precedent was announced beyond the application of the AFCO 2/91 guidelines and the Air HQ promotion criteria to the facts of this case; the Tribunal did not find AFCO 2/91 to be unlawful or discriminatory on the basis of the material before it.

No orders as to costs were made.

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    Ex. Mwo Sarjeet Singh v. Union Of India

    Date: 12.08.2011

    1. The petitioner/applicant filed the above-mentioned writ petition before the Honble High Court for quashing the AFCO Policy No.2/91 (Annexure P-1). He made a further prayer that he be promoted to the rank of Master Warrant Officer (MWO) with effect from 1995 by expunging any adverse remarks/ recommendations in the ACRs pertaining to the years 1990 to 1994 along with his assessment shown as below grade with all consequential benefits including Honorary T.A. No.421/2009 W.P.(C) No.440/1999 Ex. MWO Sarjeet Singh Page 2 of 10 Commission. Notice to the petition was issued. Counter affidavit as well as rejoinder were filed. Thereafter the case was transferred on 01.12.2009 to this Tribunal on its formation.

    2. Brief relevant facts for the just disposal of this case are enunciated in the succeeding paragraphs.

    3. From the perusal of the record it is revealed that the applicant was enrolled in Indian Air Force as an Airman on 25.06.1962. In due course of time he was promoted in the rank of Warrant Officer w.e.f. 01.06.1989 and thereafter he became eligible for promotion to the rank of Master Warrant Officer (MWO) in 1995. It is further submitted that in Indian Air Force promotion to the rank of MWO is governed by AFI 12/S/48 and Air Headquarters letter No.AHQs/40651/5/PA(CPC) dated 31.01.1995. In that policy, criteria for promotion to the rank of MWO specified is that officer should have scored minimum 495 marks out of

    660 marks in preceding 5 years ACRs failing which he will not be considered for promotion. It is further mentioned that respondents have also issued a policy letter Air Force Confidential Order (AFCO) 2/91 directing the assessing authority to the effect that percentage of exceptional should be restricted to 10% and above average not to exceed 30%. It was submitted that this policy letter AFCO 2/91 is unjust, T.A. No.421/2009 W.P.(C) No.440/1999 Ex. MWO Sarjeet Singh Page 3 of 10 unfair and has adversely affected promotional avenues. Thus it was submitted that this policy be set aside. It was submitted by the applicant that he was always having excellent or above average ACRs and was never conveyed any adverse remarks. He submitted details of marks awarded in preceding years ACRs as under : Year Marks 1990 98 1991 88 1992 73 1993 103 1994 96 Total 458

    4. It is further submitted that he was considered for promotion to the rank of MWO in 1995-96 and 1996-97 but was not promoted as he had not scored the requisite marks in the preceding 5 years ACRs. It is submitted that ultimately in 1997-98 he was promoted to the rank of MWO w.e.f. 01.08.1997 but was discharged on 30.10.1997. Thus he could not qualify even for minimum required period of 10 months for pensionable service in the said rank. The applicant also contended that one Warrant Officer B.S. Randhawa was promoted despite adverse report. T.A. No.421/2009 W.P.(C) No.440/1999 Ex. MWO Sarjeet Singh Page 4 of 10

    5. It was submitted by the applicant that he is having an excellent record and he was never conveyed adverse remarks. He has, however, been graded below his performance, therefore, adverse remarks or recommendations made in the ACR in the concerned years 1990-94 be expunged and he be considered for the rank of MWO with all consequential benefits. He may also be considered for Honorary Commission. It was submitted by the applicant that he also filed representations and last representation was filed on 04.03.1998 (Annexure A-3) but that was not properly considered and was rejected on 08.10.1998 (Annexure A-5).

    6. From respondent side, counter affidavit was filed denying all the allegations made in the petition. The respondents submitted that as per Air HQ letter No. Air HQ/40651/3/PA(CPC) dated 31.01.1995 a WO is required to score minimum 495 marks out of 660 marks in the preceding 5 years ACRs for grant of MWO rank (Annexure R-1) failing which he will be declared as Below Grade (BG) and he will not be entitled to promotion. It was further submitted that the applicant was considered for promotion for the rank of MWO during the promotion year 1995-96 and 1996-97, respectively, but he failed to secure 495 marks in the preceding 5 years ACRs, therefore, he could not be promoted. During the promotional panel for the year 1997-98 the T.A. No.421/2009 W.P.(C) No.440/1999 Ex. MWO Sarjeet Singh Page 5 of 10 applicant was again considered and was promoted to the acting rank of MWO w.e.f. 01.08.1997 on making the grade as per seniority list and merit. In the reply it was contended that no junior personnel was promoted to the rank of MWO prior to him. His case was also considered for honorary commission, but he was not found fit. The applicant was, thereafter, discharged from Air Force w.e.f. 31.10.1997. It was submitted that AFCO Policy No.2/91 stipulates the guidelines for assessing the overall performance of the Airman during the year which applies equally to all Airmen. Thus, it could not be termed as unfair and unjust and no injustice has been caused to the applicant. It was also submitted that as per preceding 5 years ACRs, the applicant was considered below grade. It is further contended that only in case a person is assessed as below average as per paragraph 12 of the Air Force Confidential Order No.2/91 remarks are required to be conveyed. The applicant was never awarded below average as per Para 12 of the said AFCO Policy No.2/91, therefore, there was no justification of conveying remarks to him. It was also contended that the applicant was not promoted as he failed to score 495 marks out of 660 marks in the last 5 years ACRs. It was also contended that AFCO 2/91 stipulated that if an Airman who is assessed below average is considered as adversely reported upon and only such Airman is to be warned and informed all his weaknesses in writing as per paragraph 12 T.A. No.421/2009 W.P.(C) No.440/1999 Ex. MWO Sarjeet Singh Page 6 of 10 of the AFCO 2/91. It is further contended that the applicant was never adversely reported upon, therefore, no warning of adverse remarks was required to be given to the applicant. In reply it was also contended that promotion of Warrant Officer B.S. Randhawa to the rank of MWO is not correct. He was retired from service on 31.11.1997 in the rank of Warrant Officer.

    7. Rejoinder to the counter was filed reiterating the grounds stated earlier. Again it was stated that the applicant should have been promoted w.e.f. 1995, but due to the adverse effect of the said policy, he was denied promotion and thereafter he was promoted but he could not complete the requisite period of 10 months for pensionable service.

    8. Arguments were heard and record was perused.

    9. During the course of arguments again learned counsel for the applicant submitted that he has been wrongly deprived from the promotion to the higher rank of MWO in time. He further contended that AFCO 2/91 affected his promotion avenues because this policy restricted the assessing authority from awarding appropriate grade as the applicants service record was excellent and he was deserving promotion. A request was made that if any adverse remarks are found T.A. No.421/2009 W.P.(C) No.440/1999 Ex. MWO Sarjeet Singh Page 7 of 10 in the concerned ACR, they may be quashed and he may be directed to be promoted from 1995 along with his batch-mates.

    10. On the contrary, learned counsel for the respondents submitted that the applicant was considered for promotion in 1995-96 and 1996-97, but he could not score the requisite marks as per policy of 1995 and that is why he was declared as below grade. Thereafter, in 1997-98 he was approved and subsequently promoted. The concerned policy i.e. AFCO 2/91 is not, in any way, arbitrary, unjust and unfair but gives guidance for assessing personnel and is applicable to all. A recommendation was made to dismiss the application.

    11. We have considered the rival submissions and perused the relevant policies. The contention raised in respect of AFCO 2/91 was considered. Relevant portion, for which the applicant is agitating, is quoted as under:

    3. It may be ensured that percentage of Exceptional should be restricted to 10% and Above Average not to exceed 30%. The common/error/omission noticed in the ACRs are given in the Appendix to this letter.

    12. The applicants contention is that this policy is arbitrary, unjust and unfair, but looking at the nature of the policy it is revealed that the T.A. No.421/2009 W.P.(C) No.440/1999 Ex. MWO Sarjeet Singh Page 8 of 10 same is more or less a guidance to assessing authority. It is applied to all and is not, in any way, discriminatory. Requirements of marks are provided in policy of 1995. Therefore, the contention raised in this regard is not sustainable. The said policy AFCO 2/91 is not found arbitrary on this basis. We have considered the contentions with regard to ACR. In the AFCO 2/91 in para No.12, which has been referred in the counter affidavit, there is a provision as to how adverse remarks are to be communicated and how below average grading is to be determined. In case concerned personnel gets marks within 44 to 65 marks then they are to be graded as below average. Particularly, in this case, the applicant has always been awarded higher marks than the marks shown for below average. Therefore, before writing ACR neither any warning or counselling was needed nor communication of remarks to applicant was necessary. The relevant portion is quoted as under:

    12. Under no circumstances, the Confidential Report is to be shown to the MWO/WO/JWO reported upon. However, before the Adverse Report is rendered, the particular aspect of the failings leading to the adverse comments/assessments is to be brought to the notice of the MWO/WO/JWO concerned, in writing by the officer rendering Adverse Report. A copy of the same duly signed by the MWO/WO/JWO is to be attached to the IAFF (P) 12 (Revised). As far as possible, the failings are to be brought to the notice of the individual concerned well before the report is due, in order to give him a chance T.A. No.421/2009 W.P.(C) No.440/1999 Ex. MWO Sarjeet Singh Page 9 of 10 to improve himself. If at the time of the rendition of the report it is felt that the warnings administered have been of no avail, this point is to be specifically mentioned in the Report as per Appendix C to this order and is to be treated as adverse comments on the performance of the JWO/WO/MWO concerned.

    13. Part V The specialist officer at Command/Air Headquarters, will confine his remarks to the assessment in paras 10(a) and 12 of Form IAFF (P)

    14. Part VI the AOC-in-C/PSO at Air HQs, if he wishes to comment.

    15. Gradings While rendering reports, Warrant ranks are to be graded in the following manner. (a) Exceptional From 121 to 132 marks. All Commanding Officer are to ensure that reports in this category are not to exceed 10% in each rank. (b) Above Average 100 to 120 marks. Reports in this category are not to exceed 35% in each rank. (c) Average From 66 to 99 marks. (d) Below Average 44 to 65 marks. This grading will be treated as Adverse Report. (e) Inferior 43 marks and below. This Grading will be treated as Adverse Report.

    16. Confidential Report is a privileged document, which is strictly Confidential. Under no circumstances, copies of the same are to be made.

    13. Thus, the contention raised in this respect that adverse ACR remarks be quashed are not sustainable. As per record the applicant was never awarded any adverse remarks, but on the basis of preceding T.A. No.421/2009 W.P.(C) No.440/1999 Ex. MWO Sarjeet Singh Page 10 of 10

    5 years ACRs, he could not make the grade. Therefore, he was graded as below grade, which cannot be equated with below average. We have also considered the other contentions with regard to promotion, but on the basis of preceding 5 years ACRs the applicant could not earn the requisite 495 marks out of 660 for getting promotion. Therefore, he could not be promoted in the years 1995-96 & 1996-97, but subsequently he had been promoted. His case was considered for honourary commission, but he was not found fit.

    14. Considering all the contentions we do not find any irregularity, illegality or infirmity in not promoting the applicant at the relevant time. We also do not find any infirmity in the AFCO 2/91.

    15. On the basis of the aforesaid discussion, the application stands dismissed. No orders as to costs. Z.U. SHAH MANAK MOHTA (Administrative Member) (Judicial Member) Announced in the open Court on this 12th day of August, 2011

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    Ex. Mwo Sarjeet Singh v. Union Of India
    (Aug 12, 2011)