Govt to move apex court in Air Force case

Tribunal for armed forces to be set up soon

In an effort to contain the damage by the Delhi High Court order quashing the promotion of four Air Marshals and severe criticism of the Chief of Air Staf, Air Chief Marshal S Krishnaswamy, in the judgment, Defence Minister Pranab Mukherjee here today said the government would move a special leave petition in the Supreme Court against the order.

A tribunal for the armed forces would be set up as soon as posible to ensure military matters did not go to civil courts, he added.

But the high court's observations sent shockwaves in the Indian Air Force and the net result of the order was to split the force vertically into officers who were for the Air Chief and those who were against him. What effect this could have in a battle situation is not hard to imagine.

The order said Krishnas-wamy had indulged in a "mala fide exercise of power" and observed that he could not "exonerate" himself from the obligation of being fair and impartial.

"The least we can say is that respondent No 2 (the Chief of Air Staff) cannot exonerate himself from the obligation to be fair and impartial as head of the Air Force," a high court Bench of Justice Vijender Jain and Justice HR Malhotra said, allowing Air Vice-Marshal TS Chhatwal's petition against denial of promotion to him to the rank of Air Marshal.

"There has to be someone who never wanted the petitioner to be promoted," the court said in an unprecedented order after examining Chhatwal's "appraisal reports".

"The needle of suspicion is writ large on the respondents 1 (the defence secretary) and 2 (the air chief), who made sure that the petitioner is ousted from the consideration for promotion by giving such low marks," the court said in the judgement.

The Bench, which quashed the recommendations of February 2003 selection board and the 2002 promotion policy, said just 37 of the 120 marks given to Chhatwal on the basis of 20 per cent board marks was "totally disproportionate to his appraisal report gradings and irrational, arbitrary and without any basis. It was mala fide exercise of power by respondents 1 (the defence secretary and 2 (Krishnas-wamy)," the court said.

The court lamented that no action was taken against then Defence Secretary Subir Dutta (now member of the Union Public Service Commission), who "fudged" Chhatwal's appraisal reports for the period between October 2001 and September 2002.

"The course open to the government was to initiate an inquiry against the erring defence secretary by taking appropriate civil and criminal action," the court said. But instead of punshing him, the government and the Air Chief acted in a "high-handed" manner by not assigning any effective work to Chhatwal, the Bench observed.

The court, which ordered convening of a fresh promotion board to reconsider the cases of AVM Chhatwal and AVM Harish Masand, expressed anguish at the respondents' attitude towards "a meritorious officer like the petitioner (Chhatwal)".

Earlier, the court had taken exception to "fudging" of Chhatwal's appraisal report by Dutta, who admitted that he had "altered" itwrongly due to work pressure and lack of full knowledge of the policy.

The court had directed the authorities concerned to ensure that such incidents did not happen again and had also reprimanded Dutta for filing a "strange" affidavit.

Decorated with the "Ati Vishisht Sewa Medal", "Vayu Sena Medal" and "Shaurya Chakra", Chhatwal was also denied a routine one-year extension on the ground of poor appraisal report grading. He finally got it by a judicial order as the Air Force conceded the case after the court detected the "fudging".

Surprisingly, Krishnaswamy, who was (under Para 16 of Air Force Order 50/97) obliged to scrutinise the appraisal report to remove infirmities in it, did not correct it and in fact further downgraded it.