As Army chief, Gen (retired) V K Singh had modified a key rule that governs the changes that can be made in Annual Confidential Reports (ACRs) of officers and given himself the power to edit them as he pleased.
Though the order to give him sweeping powers was issued on March 7, 2011, Singh had, in fact, introduced it retrospectively from November 2010.
But in March this year, two months before Singh retired, the Defence Ministry reversed his sweeping modifications after it was found that they were impacting promotions and selections of a large number of officers, and Solicitor General Rohinton F Nariman felt the changes made by Singh were not “legally sustainable”.
Nariman also said any proceedings in selection boards after March 7, 2011 based on the moderated confidential reports would have to be “revised accordingly”.
Asked by The Indian Express how many selection board orders had been reversed following the Solicitor General’s opinion, the Army Headquarters only said: “Based on observations of the Ministry of Defence on this policy, the necessary modifications to the policy have already been carried out.”
According to the original Army rule, the Chief of Army Staff (COAS) could expunge an entire ACR if it was found to be “grossly inconsistent” with the past profile of the officer who had been rated.
However, a letter dated March 7, 2011 issued by the Military Secretary’s branch said that this rule was amended to allow the COAS to moderate or expunge the ACR either partly or fully for the same reason as in the past.
Both orders, however, held that the changes made could not be revoked or reviewed. Although the force was informed of the amendment through the March 7, 2011 letter, the same letter said that Singh had approved this amendment and introduced it retrospectively since November 2010.
The letter said that moderation of ACRs could lead to changes in the numerical rating of officers and these ratings are amended in the confidential report as well as the database of the personnel.
Senior Defence Ministry officials told The Indian Express that they decided to seek legal opinion on the amendment after they found that the changes being made in the ACRs were impacting selections and promotions of a large number of officers. “Following the receipt of the Solicitor General’s opinion, we reversed everything,’’ a senior defence official said.
In his seven-page opinion received by the ministry on March 21 this year, Nariman categorically stated that the power conferred by the Army chief on himself “is not legally sustainable”.
“It has been stated that in the recently held selection boards, it has been noticed that the officers’ confidential reports have undergone drastic changes, effectively changing the merit of officers in the panel,” Nariman said. “Since the marks allotted in the confidential reports have a direct bearing on the promotion of an officer, any proceedings of the selection boards based on confidential reports which have been illegally modified would not be sustainable,’’ he said.
“It goes against the provision of mandatory expunction in the cases of gross inconsistency. Any confidential report which is found to be grossly inconsistent must be expunged in full,” Nariman said. “Therefore, paragraph 137, as it stood prior to the amendment, correctly did not leave any discretion in the Chief of Army Staff in such cases. To introduce an element of discretion now is therefore not permissible.”
Nariman was also of the opinion that the provision in both orders that the changes made by the Army chief cannot be revoked was beyond the powers of the Army Act and would have to be modified.
Original para 137 of Army order
“CR identified as grossly inconsistent or with inflationary/ deflationary/ subjective reporting, after due examination at appropriate level, may be expunged by the COAS. Expunctions approved by the COAS will be irrevocable. No re-initiation or review is permissible.”
Amended para 137 of Army order
“CR identified as grossly inconsistent or with inflationary/ deflationary/ subjective reporting, after due examination at appropriate level, may be either moderated or expunged in part or full by the COAS. Expunctions and moderations approved by the COAS will be irrevocable. No re-initiation or review is permissible.”
-via Indian Express.