Reconsider retd Major General for notional promotion to Lt General: Delhi HC to Army-OxBig News Network

The Delhi High Court has directed the Army to reconsider a retired Major General for notional promotion to the rank of Lieutenant General after holding that the selection process had vitiated because of reliance on a non-recordable ‘reproof’ awarded to him earlier for a cybersecurity breach.

The petitioner had received a show cause notice in July 2019, alleging violation of the Army’s cyber security policy and resultant cyber breach from his official laptop, leading to loss of classified data.

The competent authority, while considering his reply to the notice, held him blameworthy for some minor procedural issues and dropped all the serious allegations, and counselled him in the form of a reproof in September 2019.

In the meantime, he was considered by the Special Selection Board (SSB) for promotion in July 2020 and February 2021, but he was not empanelled for promotion. He filed non-statutory and statutory complaints on this, asking specifically if the reproof was considered by the SSB, but the complaints were dismissed. He thereafter approached the Armed Forces Tribunal, which upheld the Army’s decision.

During the proceedings before the High Court, it was brought out that the Army, in its affidavit, had admitted that the reproof, which was otherwise barred from being placed before the selection board, was considered upon the query of one of the board members. This query led to the documents pertaining to the reproof being retrieved and brought on record for consideration of the Board.

The Major General, who according to the petition had the highest marks among the candidates, contended that policy and regulations prohibited placing of the non-recordable reproof before the SSB, and therefore the SSB had strikingly violated the fairness of the selection procedure and has deprived him of his due promotion.

“Though the selection board has a discretion in judging the relative merit of the officers brought before it for considering them for promotion, at the same time, such discretion is not unguided nor can it be exercised arbitrarily, against the stated policy directives, or whimsically,” the Bench of Justice Shalinder Kaur and Justice Navin Chawla remarked in their order of July 1.

“Unfortunately, present is one such case where the selection boards, repeatedly, relying upon reproof, which it had no business to even know of, non-empanelled the petitioner, thereby vitiating the selection process,” the Bench held.

The Bench also observed that a reproof, which is the mildest form of a reprimand and different from other forms of censure, is not to be placed in the service record of an officer as has been wrongfully done in the present case.

The competent authority must apply its mind to the case before administering a reproof, and once a conclusion has been arrived at and the case is closed by award of reproof by the competent authority, no superior authority can re-open the case.