As per The India Express:
The Delhi High Court on July 1 ordered the Indian Army to reconsider a retired Major General, who was denied a promotion due to a reproof given for the loss of classified and operational information from his laptop, for the rank of Lieutenant General.
A division bench of Justice Navin Chawla and Justice Shalinder Kaur has directed that Maj Gen H Dharmarajan, who retired on January 31, 2024, will be reconsidered for the notional promotion to the rank of Lt General.
“In case the Petitioner, who has now retired, is found fit to be promoted to the rank of Lieutenant General, the Respondents are directed to grant him notional promotion and rank, and the consequential benefits that is, re-fixation of his pay for the purpose of pension on the basis of notional seniority albeit without any arrears of wages,” the bench said in the order.
The bench has found in its order that the Army Special Selection Board (SSB), which considered the officer for promotion to the rank of Lt General, erred in taking into account the Reproof which was administered to him and that it was not supposed to refer to or be influenced by it.
“The Reproof, not being recordable, was not to be placed before the SSB. The Selection Board should have considered only the material placed before it and not called for the record of Reproof, which was otherwise not to be placed before it as per the policy. The denial of promotion on the ground of Reproof alone, is unjustified and arbitrary,” the bench observed.
Maj Gen Dharamarajan was commissioned into the 3 Engineer Regiment on December 20, 1986. He assumed command of the 25 Infantry Division in J&K in December 2018 as the General Officer Commanding (GOC). He was due to be considered for promotion to Lt Gen in June 2020. The officer received a show-cause notice on July 25, 2019, alleging a violation of the Cyber Security Policy and resultant cyber breach from his official laptop, leading to the loss of classified data.
The show-cause notice stated that the Major General failed to comply with instructions issued by the Directorate General of Military Operations, and allowed the official laptop installed in his office to continue functioning on the Windows operating system instead of the Bharat Operating System Solutions (BOSS).
It further stated that on February 21, 2019, he opened an unsolicited phishing email, “EoMA Post Republic Day Gallantry Awards 2019,” received on his personal email from a dubious email identity, resulting in malware being installed on his laptop, and leading to the loss of classified and operational information.
The Competent Authority, while considering the reply of the General, held him blameworthy for some minor procedural issues, and having dropped all the serious allegations, consequently, counselled him in the form of ‘Reproof” in a letter dated September 17, 2019.
The HC observed that a Reproof is a warning, which is not to be recorded in the service documents of the concerned Officer. “We may also note that Reproof and Censure are disciplinary measures, used to address minor misconduct or shortcomings in the service of personnel. They are a way of communicating disapproval or areas of improvement by the Competent Authority to the delinquent officer. The intent of Reproof is clear that it is issued for an action of a mild nature, minor negligence or a bona fide mistake, that no other inquiry seems necessary. Thus, it does not reflect in the Service dossier of an Officer,” the HC said in its order.
The HC further stated that from perusal of the original record of the SSB proceedings, it is evident that the petitioner’s merit was downgraded primarily as the Board Members proceeded to go behind the cause or reason for which the Reproof was awarded, while considering the overall profile of the petitioner for empanelment to the rank of Lieutenant General.
“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. 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 said.
The HC has also stated that its orders will not entitle the petitioner to seek reinstatement in service or actual pay post his retirement. The judgment entitles him only to the rank and consequential refixation of his pension.
