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3. From the perusal of the above facts one glaring fact which emerges that the respondents did not promote the petitioner in 1994 because of the irregularities alleged to have been committed by the petitioner. Therefore, C.B.I. report admittedly was never communicated or conveyed to the petitioner. As per respondent's own admission it was as a sequel to C.B.I. report that the petitioner was awarded "Reproof" by the chief of the Air Staff on 20th December, 1990. It is also a fact on record that the petitioner was given the acting rank or Air Comdr. i.e. after the report of C.B.I. and after he had been awarded "Reproof". In March 1991 this petitioner was given substantive rank of Air Cmdr. with retrospective effect i.e. Novermber, 1990. When the substantive rank of Air Comdr. was conferred with retrospective effect the Chief of the Air Staff knew about the report of C.B.I. and the censure by way of "Reproof" already having been awarded against the petitioner and yet allowed substantive rank with retrospective effect. It was because Chief of the Army Staff knew that as per practice and rules the censure of "Reproof" was not to come in his way that is why granted him substantive rank with retrospective effect inspite of "Reproof". Mr.S.Mukherjee appearing for the petitioner, therefore, rightly contended that when substantive rank of Air Comdr. was given in March,1991 with retrospective effect i.e. from November, 1990 the award of "Reproof"

did not come in the way of the peitioner. If that be so then why should the cause leading to the awarding of "Reproof" should come in his way now when he is to be promoted to the rank of Air Vice Marshal for the Slot of 1994.

4. In order to find out whether the petitioner had numerical grading and why his promotion in 1994 was deferred original record was called for. The same was produced in this Court. The proceedings of the Promotion Board for the year 1994 show that promotion of the petitioner was deferred because it was found that a report was submitted by C.B.I. through MOD which had indicted him for certain irregularities. The Board considering the nature of enquiry decided to defer the case of petitioner for promotion. The Promotion Board also found that the petitioner had met the numerical assessment criteria. However, it was because of the C.B.I. report that his promotion due in 1994 was deferred. What we have to see whether the Board could take into consideration the report of C.B.I. as a sequel of which the Chief of the Air Staff had already taken action against him by awarding "Reproof". In the counter affidavit the respondents have admitted that "Reproof" was awarded against the petitioner as a sequel to the report of C.B.I. Having once awarded "Reproof" the petitioner's promotion on the basis of the C.B.I. report could not have been deferred. This would amount to reopening the case and awarding fresh punishment to the petitioner. On the basis of C.B.I. report the Competent Authority awarded "Reproof". It is not the case of the respondent that on account of "Reproof" promotion of the petitioner was deferred or passed over. Respondent's case is based on the fact that despite "Reproof" awarded by the Chief of Air Force. The Selection Board could go behind, it to find out the cause or "Reproof". Meaning thereby on the basis of cause or the reason leading to the "Reproof" the Selection Board could ignore the petitioner for promotion. To my mind, the Selection Board could not have gone behind the cause or the reason. Once the Competent Authority on the basis of that cause i.e. report of C.B.I. had already taken action the Selection Board could not look into that report. If the award of "Reproof" could be based as the basis of super cession only then the Selection Board could have ignored him or superceded him but not on that cause i.e. report of C.B.I. for which the petitioner had already been awarded "Reproof" because that would amount to review or reopening the case which the Selection Board was not competent to do. Barring the award of "Reproof" the petitioner had met all other criteria for promotion. He had numerical grades which made him eligible for promotion. His promotion could not have been deferred because of "Reproof" nor the Board could base his super decision on C.B.I. report which had already culminated into "Reproof".

"(c) Warning a minor censure may take the form of reproof and be administered verbally or in writing to service personnel by the officer commanding or by an authority superior in command to the officer commanding. A warning will not be recorded in the service documents of the person concerned."

9. Reading of this Section 327 shows that reproof can be administered verbally under the Army Regulations. May be to bring the Award of "Reproof" at par with Army Regulations that amendment was made in para 26 (d) vide Corrigendum No. 52 of 23rd September, 1978 thereby deleting the word 'reproof' from para 26 (d). If 'reproof' under the Army Regulations can be administered verbally, the Air Force authority in its wisdom by amending para 26 (d) achieved the same results. That is the reason the "Reproof" has not to be reflected in the confidential report or on the personal file of the officer as per the amended para 26 (d). Moreover the censure of displeasure or Severe Displeasure have the effect of negative marks upto the extent of the currency of the censure. It would be an anomalous position if "Reproof" is allowed to result in total denial of promotion while the censure of Displeasure result in reduction of just mark in the total grading. As already referred to above 'Reproof' as compared to Displeasure is the lesser and mildest punishment. If as suggested and argued by Mr. Mishra is accepted the result would be that 'Reproof' would become the strongest punishment which the drafters of Air Force Order never intended.

10. Now turning to para 712 of the Regulations quoted above, it nowhere indicates that "Reproof" will form part of the confidential report. It only provides that the award of "Reproof" can be considered by the initiating or reviewing authority if it so likes. But the fact remains that in the confidential report of the petitioner recording authority has not mentioned about the "Reproof" nor the respondents have placed any material on record to show that the competent authority recording the confidential report ever took note of this 'Reproof' while recording the confidential report for the years 1991, 1992, 1993 or 1994. On the contrary it has been consistent stand of the petitioner that the Chief of the Air Staff closed the matter on 28th December, 1990 by awarding Reproof". Even at the risk of repetition, it must be mentioned that the petitioner was promoted to the acting rank of air Cmdr. on 18th March, 1991 i.e. three months after the award of "Reproof". Therefore, I am in agreement with the contention of Mr. Mukherjee, counsel for the petitioner that as soon as the petitioner was promoted to the acting rank of Air Comdr. in March, 1991 it washed away the effect of the "Reproof" (if there was any). It has not been placed on record nor the respondents produced any material to show that the competent authority was not aware about 'Reproof' while recording the confidential reports of the petitioner. The petitioner was recommended for promotion in the Selec-