1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1843 of 2018
(@ Diary No. 36081 of 2017)
COMMODORE P.K. BANERJEE .....APPELLANT(S)
VERSUS
UNION OF INDIA AND OTHERS .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Leave to appeal granted.
2) This appeal is preferred by Commodore P.K. Banerjee under Section 32
of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as the
‘Act’) questioning the correctness and legality of the judgment and order
dated September 14, 2017 passed by the Armed Forces Tribunal (for
short ‘AFT’) in O.A. No. 392 of 2014 and order dated December 10,
2017 in M.A. No. 1219 of 2017 filed in O.A. No. 392 of 2014 passed by
the AFT.
3) Vide Order dated September 14, 2017, the AFT has dismissed the O.A.
No. 392 of 2014 which was instituted by the appellant questioning the
2
gradings given to him in Annual Confidential Reports (ACRs) of some of
the years recorded by his superiors which, according to him, had
adversely affected his career progression by denying him the promotion
to the next rank, i.e. Rear Admiral in Indian Navy. Insofar as the Order
dated October 12, 2017 passed in M.A. No. 1219 of 2017 in O.A. No.
392 of 2014 is concerned, by means of this Order, the AFT has rejected
leave to appeal the judgement dated September 14, 2017.
4) The appellant claims that right from his initial training of Cadet days
through the junior and middle rank appointments till promotion to the
rank of Captain on August 30, 2004 has always been amongst the top
few in his batch. Litmus Test for any Naval Officer is his Sea Command
of a warship and the appellant happens to be the only officer in his entire
‘original batch’ who commanded the most premium ships in every rank
(as a Lt. Cdr., Commander and Captain) with distinction, and without
any incidents/accidents.
5) The appellant also claimed that being at the top of his batch, the
appellant got command of the most premium and at that time, the latest
Talwar class ship, INS Tabar in December, 2007 and performed
outstandingly in this command as well. Even in the Sea Board Merit List
in mid, 2007, the appellant was at the top of his batch that resulted in his
getting command of INS Tabar, but things went wrong after this Sea
Command of the appellant. However, very severe Adverse Remarks
3
inserted by the appellant’s Reviewing Officer (RO) in the ACR in 2009,
that were not communicated by the RO as per Navy Rules, and in total
contradiction to the Report rendered by the Initiating Officer (IO) quietly
brought an end to the promising career of the appellant who was not
even aware of such illegalities (that resulted in the appellant becoming
the last officer in Overall Order of Merit (OOM) amongst his original
batch who commanded ships in the rank of Captain) until the appellant
missed his promotion to the rank of Rear Admiral in Promotion Board
01/2012 in April 2012.
6) It is the case of the appellant that as the Commanding Officer of INS
Tabar – a frontline stealth warship of Western Naval Command, the
appellant was deployed in the Gulf of Aden in end October 2008. This
was the appellant’s fourth command of a warship in his career, the last,
i.e., the third command being of INS Kulish – a frontline warship of the
Indian Navy where the ship was nominated as the best performing ship
of the Eastern Fleet earning an excellent Report in 2004 from his then
Fleet Commander FOCEF (Initiating Officer) who wrote in the ACR – “A
professional and extremely effective CO who ran one of the best ships
of the Fleet”. This ACR was backed up by the Appellant’s then
Reviewing Officer, the FOCINC Eastern Naval Command who wrote —
“The ship has done very well under command of Benerjee”.
7) On October 27, 2008, INS Tabar returned to Mumbai after patrolling duty
4
in the Persian Gulf and was deployed for anti-piracy operations off the
coast of Somalia at one day’s notice after Diwali on October 29, 2008.
The appellant boasts about the fact that 10 other major warships were in
the harbour and in prime operational state and could have been
deployed for the task but were not, speaks about the trust the Indian
Navy had on the Commanding Officer and crew of INS Tabar. The
anti-piracy operation was the first instance where the Indian Navy would
be operating in International waters far away from the country and in
hostile environment. The ship proceeded with despatch to the
operational area and within a month’s patrol duty, managed to save the
Indian merchant ship MV Jag Arnav and a Saudi Arabian merchant ship
MV NCC Tihama on November 11, 2008 from getting hijacked by Somali
Pirates and neutralised a suspect pirate mother vessel to great
accolades all over.
8) Stating further about his laudable work, the appellant states that the
performance of the ship was also lauded by the Indian Navy and the
Fleet Commander (Western Fleet) in his Reporting as the appellant’s IO
in the ACR (10.12.2007 to 28.11.2008) gave an Outstanding Report and
recommended the appellant for the most prestigious Second Sea
Command reserved only for the best Commanding Officers of the Fleet.
The new Fleet Commander who had also overseen INS Tabar’s maiden
anti-piracy operations off Somalia as the Deputy of the FOC-in-C,
5
Western Naval Command in the capacity of RO’s Chief of Staff of
Headquarters Western Naval Command recommended the appellant for
the award of a gallantry award Shaurya Chakra. The appellant’s ship
INS Tabar was at sea for over 200 days in 2008 without a single
incident/accident or mishap, in contrast to what Indian Navy Ships
actually perform.
9) According to the appellant, he is dismayed to find that despite all of the
above, when INS Tabar returned to Mumbai after its anti-piracy mission,
not even the customary debrief was conducted by the FOCINC (Flag
Officer Commanding-in-Chief) West or the CNS (Chief of the Naval
Staff) of the operation (a standard operating procedure in the Navy),
even when this was a first of its kind operation for the Navy. On the face
of it, the Reviewing Officer (‘RO’) personally complimented the ship
captained by the appellant on November 19, 2008 (almost at the end of
the deployment) in a Signal stating “that was well executed, you have
done the WNC and Navy proud”, yet less than two months later the RO
in the ACR pertaining to the very same operational deployment in Gulf of
Aden and in the period in which an outstanding report was given by the
IO, wrote vague, unsubstantiated adverse remarks in Section V of the
appellants ACR, stating – “On more than one occasion during this
deployment, the officer displayed indecisiveness and had to be backseat
driven” and “I would not rate Banerjee an operational guy, best suited for
6
desk assignments”— These remarks did not cite any incident which
illustrated these adverse remarks and were at total variance to IO’s
Outstanding Remarks. The RO also simultaneously downgraded the
Numerical Gradings in the ACR given by the IO — by 0.3 marks each in
PQ (Performance Qualities) and in PP (Promotion Potential) i.e., a total
of 0.6 marks.
10) The grievance of the appellant is that breaking all rules of
communication of Adverse Remarks to the Reportee (Appellant), the RO
sent the ACR to the Senior Reviewing Officer, i.e., CNS for his report.
The CNS himself, instead of following laid down rules and procedures
for communication of Adverse Remarks and returning the ACR to the
RO, commented that the ship had performed poorly and agreed with the
RO’s remarks by writing, “A poor report from an operational ship by the
RO — at some variance with the IO’s remarks. ....Going by the RO’s
judgments, the officer deserves 7.5/7.6”, thus, abetting the illegal act of
the RO.
11) These adverse remarks and the consequential numerical
downgrading were not communicated to the appellant in contravention
of para 0410(d) of Navy Order (Special) 05/2005, as well as the settled
position of law this Hon’ble Court has reiterated in Dev Dutt v. Union of
India and Others1
, then in Abhijit Ghosh Dastidar v. Union of India and
others2
and again in Prabhu Dayal Khandelwal v. Chairman, U.P.S.C. &
1 (2009) 8 SCC 725
2 (2009) 16 SCC 146
7
Ors.3
12) The appellant also asserts that in all subsequent postings also he
performed exceptionally well and in each and every case where the IO,
RO or SRO did not have access to the appellant’s dossier (previous
ACR’s), they gave the appellant outstanding reports. Yet, the Next
Senior Reviewing Officer (‘NSRO’)/CNS, who had access to the
appellant’s dossier, numerically downgraded the ACR having been
influenced by the previous ACR’s numerical downgrading.
13) The appellant has endeavoured to demonstrate the same by
stating his gradings given by different officers, i.e., from IO to RO to
SRO/NSRO with his own remarks, in a tabulated form which is as under:
SL. Rank Appoint
ment
Period
of
Report
Gradin
g
(P.P./P.
Q.)
IO
RO
SRO/N
SRO
ACR
REMA
RKS
Profile
1. Captain Comma
nding
OfficerINS
Tabar
10.12.2
007
To
28.11.2
008
7.7/7.8 7.4/7.5 7.5/7.6 IO
rated
highest
among
st over
a
dozen
Fleet
Captain
s,
recom
mende
d for
Second
Sea
Comma
nd
reserve
d for
the
best,
Adverse Remarks
resulted in fixing
faultily arrived
profile at 7.5/7.6
3 (2015) 14 SCC 427
8
and for
prestigi
ous
NDC
Course.
RO
inserte d
Severe
Advers e
Remark
s and
not
commu
ni-cate
d as
per
Rules.
His
exact
Remark
s – “On
more
than
one
occasio n
during
this
deployment,
the
officer
display
ed
inde-cis
iveness
and
had to
be
backse
atdrive
n” & “I
would
not rate
Banerje
e and
operati
onal
guy,
best
suited
for best
assignments”
at total
varianc
e to
IO’s
Remark
9
s
SRO/N
SRO
wrote –
“A
poor
report
from
an
operati
onal
ship by
the RO
—at
some
varianc
e with
the
IO’s
remark
s...Goi
ng by
the
RO’s
judgm
ents.
The
officer
deserv
es
7.5/7.6
”
2. Cmde Princip
al
Director
Naval
TYraini
ng
(PDNT)
in NHQ
02.01.2
009
To01.0
6.2009
7.6/7.6
(Here
IO had
access
to the
appella
nts
dossier
7.6/7.6 7.6/7.6 IO was
custodi
an of
Dossier
s,
Appella
nts
Appoint
er and
Membe
r
Secreta
ry of
Promoti
on
Boards,
knew
the
Thresh
olds.
He
gave
Numeri
cal
Gradin
gs in
tune
with
7.6/7.6
10
Faulty
Profile
– he
did not
factor
the
actual
task
delivere
d
3. Cmde Naval
Adviser
, High
Commi
ssion
London
31.08.2
009
To
28.02.2
010
8.0/8.0
(1st CR
In
London )
--
(no
RO)
7.9/7.9 7.6/7.7 IO to
SRO –
Outstan
ding
Report
by
DCNS
was
brought
down
by
NSRO/
CNS to
match
with
Faulty
Profile.
SRO/C
NS
wrote –
“Concu
r with
pen
picture.
Howev
er, the
numeri
cal
assess
ment is
too
high
and
has
been
modera
ted
keeping
the
profile
in
perspe
ctive
This is
despite
the fact
the
Head of
Mission ,
7.6/7.7
11
London
had
Report
ed on
me on
IN
Form
475-D
for the
same
period
and
sent it
directly
to the
SRO/D
CNS –
thus
making
SRO’s
Reporti
ng
more
objectiv
e and
without
any
bias of
previou s
knowle
dge of
the
applica
nt.
4. Cmde 01.03.2
010
To
08.08.2
010
7.9/
7.9
7.7/
7.7`
All
subseq
uent
CRs of
NA
London
that
were
rated
excelle
nt by
SRO
were
downgr
aded
by the
same
CNS to
match
with the
faulty
profile
– all
becaus
e of the
uncom
muicate
7.7/7.7
12
d
Advers e
Remark
s in
ACR of
INS
Tabar
in 2008
that
was
against
Rule in
Navy
and
illegal
In 475
D ACR
by
Head of
Mission ,
London
quantifi
ed with
13
attribut
es in
2010
and
direct
First
Hand
inputs
of Head
of
Mission
availabl
e with
SRO/D
CNS
for
each
period
of ACR
Reporti
ng
5. Cmde 09.08.2
010
To
04.02.2
011
` 7.0/ 7.9 7.7/
7.7
7.7/7.7
6. Cmde 01.03.2
011
To
7.8/
7.8
7.7/
7.8
7.7/7.8
13
27.01.2
012
NOTE : It is very clear from that the uncommunicated Adverse Remarks in
2007-2008 ACR of INS Tabar by the RO not lowered in Appellants profile, but it had
a direct cascading effect on all his subsequent ACRs.”
14) That analogy that is sought to be drawn by the appellant is that
severe adverse remarks which were given by his RO for the
period10.12.2007 to 28.11.2008 had a cascading effect in future as well
inasmuch as though his IOs, who had been giving very high grading,
each time the same is toned down and downgraded by the SRO/NSRO,
influenced by the adverse remarks recorded in his ACR for the period
10.12.2007 to 28.11.2008.
15) After seeking departmental redressal by making grievances to the
higher authorities for expunging the severe adverse remarks and for
upgrading his ACRs which did not result in any positive outcome, the
appellant approached the AFT in the form of OA No. 392 of 2014. The
AFT after hearing the matter finally agreed with the submission of the
appellant insofar as it pertained to the adverse remarks for the period
10.12.2007 to 28.11.2008, and expunged the said adverse remarks.
However, a partial relief only to the aforesaid extent is granted by the
AFT and the other reliefs which were sought in respect of numerical
grading given to the appellant for the subsequent period have been
declined with the observations that adverse remarks for the aforesaid
14
period had no bearing on the numerical grading given for the period
thereafter and it did not have any adverse effect while considering his
case for next higher rank. The discussion is encapsulated in para 18 of
the judgement which was reads as under:
“18. We have heard the learned counsel for the parties and
perused the original records. We are of the opinion that the
applicant’s impugned Annual Confidential Report for the period
10.12.2007 to 28.11.2008 has ‘Adverse Remarks’ in the pen
picture by the Reviewing Officer (Respondent no. 5) in the form
of comments like ‘indecisive’ ‘back seat driver’ and ‘not an
operational guy’ and, therefore, the same should have been
communicated to the Ratee in accordance with the provisions
of Navy order 5/2005. Since it has not been done, the same
thus needs to be set aside and the applicant is entitled a fresh
consideration for promotion to the rank of Rear Admiral. We
have also perused the reports of the period 29.08.2009 to
30.09.2012 and find (sic.) that these have been
initiated/reviewed by different Initiating, Reviewing and Senior
Reviewing Officers and are in consonance with the ratee’s
profile before and after that period. The argument that one
particular confidential report has affected all successive reports
by all Initiating and Reviewing Officers does not stand its
ground and is dismissed as mere apprehensions of the
applicant. It is clear from the records of No. 1 Selection Board
held in 2012, 2013 and 2014 produced before us in which the
applicant was screened, that he has not been empanelled
purely on his comparative merit in these boards. The applicant
trying to clean up his entire profile since 2008 when the
impugned adverse report was endorsed by the Reviewing
Officer in his confidential report cannot be allowed. It is,
however, opined that the Indian Navy should have a relook at
their appraisal/moderation system, especially when the
Reporting Officers from other services/organisations have been
involved in assessing the ratee’s as Initiating/Reviewing
Officers. We also feel that this Tribunal has no jurisdiction into
adjudicating on who should get gallantry/distinguished awards,
nor do we intend delving into the same.”
16) Mr. Prashant Bhushan, learned counsel appearing for the
appellant, made a very passionate plea, with all vehemence at his
15
command, to the effect that the aforesaid approach of the AFT was
clearly erroneous inasmuch as recording of adverse remarks for the
period 10.12.2007 to 28.11.2008 had definite cascading effect insofar as
reports of later period from 29.08.2009 to 30.09.2012 is concerned. He
submitted that the manner in which ACRs were recorded was clear
evidence to demonstrate the official biasness of SRO/NSRO, went by
the so-called pen-picture and kept on downgrading the ACR of the
appellant even when, on an independent assessment of appellant’s
work and conduct in those periods by I.O., all the I.Os. had given the
appellant higher numerical grading. Therefore, the AFT could not
dismiss the argument of the appellant by terming it as ‘mere
apprehensions of the applicant’. In order to demonstrate the same, Mr.
Bhushan pointed out the following features from the table already
reproduced above:
(a)Insofar as period of 02.01.2009 to 01.06.2009 is concerned,
numerical grading of 7.6/7.6 is occasioned because of the reasons
that the IO who had given this grading was influenced by appellant’s
dossier which was in his possession, though he was not supposed to
peep into that. Otherwise, for subsequent periods, I.Os./R.Os. had
given much higher grading.
(b)For the period from 31.08.2009 to 28.02.2010, I.O. had given
outstanding report by giving marks of 8.0/8.0 and even the SRO
16
recorded the grading of 7.9/7.9. Likewise, for subsequent period, i.e.,
01.03.2010 to 08.08.2010 and 09.08.2010 to 04.02.2011, SRO had
given the grading of 7.9/7.9 in each of these periods. However, in
respect of all the aforesaid three periods, NSRO downgraded the
appellant by lowering the marks to 7.6/7.7, 7.7/7.7 and 7.7/7.7
respectively. This was done in spite of the fact that NSRO concurred
with the pen-picture/profile of the appellant. However, only on the
ground that numerical assessment was too high could not be a valid
excuse to lower it down by taking umbrage of the so-called
moderation and recording that it “has been moderated keeping the
profile in perspective”.
(c) Mr. Bhushan also submitted that the appellant had been an
outstanding officer who always earned high commendation and
praise for his outstanding performance from the very beginning and
even in earlier years, i.e., period prior to 10.12.2007, he had been
earning outstanding grading. Therefore, there was no reason for the
AFT, argued the learned counsel, to maintain the aforesaid final rating
recorded by the NSRO and it should have been brought at par with
that of SRO.
17) Proceeding on that basis, related submission of Mr. Bhushan was
that even in the merit list prepared for promotion to the higher rank, the
aforesaid lowering down of the grading had adverse impact thereupon.
17
The appellant, who was at number 1 in the merit list of 2007 was slipped
down to the position at No. 22 which resulted in denial of promotion of
the appellant to the post of Rear Admiral. It was submitted that all the
officers who were promoted to the said post by the Promotion Board in
January, 2012 were below in merit in the year 2007 and they stole
march over the appellant because of lowering down his numerical
grading during aforesaid period. He pointed out that the Promotion
Board examines the ACR of the last five years and on the basis of his
ACRs of the aforesaid period, his ACR average came down to 15.32.
He further pointed out that if the marks given by SRO during the
aforesaid period are taken into consideration, instead of NSRO, the ACR
average of the appellant for the aforesaid period would be 15.70 and in
this manner he would rank on the top of the merit list, which he
demonstrated from the following table:
“The Order of Merit (OOM) worked out at present for Appellant’s Batch including 5%
Value Judgement Marks awarded by Promotion Board 01/2012 (page 178 of
Annexure A-18 of Petition) is as follows:
Sl. No. NAME* ACR
AVERAG
E OUT
OF
(9+9=18
MARKS)
WEIGHTE
D
ACT
MARKS
(95%)
VALUE
JUDGEM
ENT
MARKS
WEIGHT
ED
AVERAG
E
ORDER
OF
MERIT
(OOM)
REMARK
S
1. Officer 1 15.57 82.18 4.5 86.68 1 *Serials
1 to 8
promoted
to Rear
Admiral
by the
Promotio
n Board
01/2012
in May
2012.
2. Officer 2 15.52 81.91 4.4 86.31 2
18
3. Officer 3 15.50 81.81 4.3 86.11 3
4. Officer 4 15.50 81.81 4.3 86.11 4
5. Officer 5 15.49 81.75 4.3 86.05 5
6. Officer 6 15.47 81.65 4.3 85.95 6
7. Officer 7 15.44 81.49 4.3 85.79 7
8. Officer 8 15.40 81.28 4.4 85.68 8
9. Officer 9 15.41 81.33 4.1 85.43 9 #The
ACR
Average
Marks of
Appellant
in Sl.10
is worked
out by
average
of his
SRO/NS
RO
(CNS)
marks
from
Annexur
e A-4
(Pages
58-59):1
5.1+15.2
+15.3+15
.4+15.4+
15.5
=91.9
divided
by
6=15.32
10. Appellant
(Earlier)
15.31# 80.86 3.1 83.96 22
Revised ACR Average Marks of 15.70 obtained in Para 1 above inserted in the Original PB
01/2012 results in Fresh OOM of Appellant
10A. Appellant
(Fresh)
15.70 82.86 4.5@ 87.36 Ahead of
OOM
This
jump in
Appellant
’s
Revised
OOM to
No. 1, is
also in
tune with
Captain’s
Sea
Board
Merit List
of Batch
in
mid-2007
, after
which his
career
was
destroye
d due to
illegal
uncomm
unicated
Adverse
19
Remarks
by
RO/SOR
in
Impugne
d ACR.
@ In reality, the appellant could have received higher than 4.5 marks in 5% Value
Judgment by PB Members if the Gallantry Award and associated recognition legitimately
due in preceding 5 years before PB 01/2012, during his Sea Command of INS Tabar in
Impugned Act, which were deliberately denied by the RO (just to remain in sync with his
“Now Illegal” Adverse Remarks that have since been admitted by Navy at last, and finally
expunged by Hon’ble AFT).
18) Mr. Maninder Singh, learned Additional Solicitor General appearing
for the respondents, refuted the aforesaid submissions and defended
the order of the AFT on the ground that the AFT had formed a correct
opinion after perusal of the original records, which fact is specifically
recorded in the impugned order. His submission was that even if the
adverse remark in the report for the period December 10, 2007 to
November 28, 2008 was expunged, it had no bearing on the final ACRs
recorded for the subsequent period by NSRO. To buttress this
submission, the learned ASG argued that fundamental premise/ basis on
which the case was built by the appellant, itself was wrong. In this
behalf, he pointed out the following factors:
a) The ACRs of the appellant for the period prior to the year 2007 were
not Outstanding/Excellent or with higher numerical grading as
contended by him. In support, he produced the ACR record of the
appellant right from January 01, 1986 and submitted that the overall
record of the appellant would show that he was getting the same kind
of grading which was given to him for the disputed period.
20
b) It was also wrong on the part of the appellant to state that in the Merit
List of the year 2007 the appellant was placed at S.No.1. The
learned ASG produced Weighted Merit List – First Sea Command
Merit of 2007, as per which the appellant was placed at S.No.5.
c) In the Promotion Board 2/04 (Aug 04), which was constituted for
promotions from Cdr. to Captain and as per which the appellant was
selected for the said post, his rank was No.9 and as on that date, as
per OOM (Weighted Merit), he was at No.11.
Therefore, his claim that he was always getting top rank in
the Merit List was not factually correct.
d) Mr. Maninder Singh refuted the appellant’s submission that for the
period January 02, 2009 to June 01, 2009 giving grading of 7.6/7.6 by
the IO was for the reason that he had access to the dossier of the
appellant, by referring to the instructions for rendering Confidential
Reports of the Naval Officers issued Vide Navy Order (Special)
05/2005 which, inter alia, provided as under:
“0405. Performance in Appointment. An officer is to be
assessed in the appointment actually held by him/her during
the period under report and, as far as possible, in comparison
with other officers of same rank and seniority. The
assessment should not be influenced by any incident
prior to the period of the report.”
His submission was that the aforesaid instructions are strictly
adhered to and, therefore, the IO could not have seen the ACR
record of the appellant for the earlier period and it was nothing but
21
figment of imagination of the appellant.
19) According to the learned ASG, the real reason for giving specific
grading by the NSRO was that he had moderated the same keeping in
mind the overall profile of the appellant, which is specifically recorded as
well, as admitted by the appellant himself. It was argued that this
moderation is done as per Chapter 25 of the Regulations for the Navy,
1965 Part-I, which contains unique system of ‘Performance Appraisal
Review Board’ (PARB). As per Navy Instructions 20/90 regarding the
said Chapter, amended on January 01, 2000, the provision regarding
PARB reads thus:
“Performance Appraisal Review – (1) All reports on Noval
Officers of the rank of Lt. Cdr. and Cdr. will undergo a
‘Performance Appraisal Review Board’ (PARB) with a view to
analyse instances of wide deviation from their previous overall
career profile. The reporting/reviewing officers will be
required to support very high/low marking in the remarks
column. While reviewing the reports at Naval Headquarters,
numerical grades may be suitably moderated on the
recommendations of the PARB with the approval of the Chief
of the Naval Staff so as to bring them in tune with officers’
demonstrated past performance. CNS will lay down detailed
guidelines to be followed for this purpose.
(2) A similar review of the records of all naval officers of the
rank of Capt. And above will be undertaken and gradings
suitably moderated by the Chief of the Naval Staff as Senior
Reviewing Officer/Next Senior Reviewing Officer.”
20) Based on the aforesaid, contention of the learned ASG was that
the purpose of PARB is to analyse instances of wide deviation from their
22
previous overall career profile. Thus, wherever it is found that the
Reporting/Review Officer has given a very high or very low grading, as
compared to the previous overall career profile, PARB recommends
such ranking to be suitably moderated with the approval of the Chief of
the Naval Staff so as to bring them in tune with Officers’ demonstrated
past performance. According to him, keeping in view the overall profile,
the grading was, thus, moderated by NSRO, who was nonelse but the
Chief of the Naval Staff himself. There was no question of doubting his
bona fides nor such a case was pleaded by the appellant.
21) Insofar as promotion of the appellant to the rank of Rear Admiral is
concerned, he submitted that the case of the appellant was considered
by the Promotion Board No.1A (X/GS)/2012 for the first time as Fresh
Look case along with all his batch mates of Select List Year 2004. He
could not make the grade being much below the threshold. He was
reconsidered by subsequent two Promotion Boards as R-1 and R-2 case
by Promotion Board 1A(X/GS)/2013 and Promotion Board
1A(X/GS)/2014. However, the officer could not be empanelled due to
his lower overall comparative merit vis-a-vis those selected. Aggrieved
by this, the appellant had put up representations, i.e. Redressal of
Grievance (ROG) dated August 22, 2012 against his non-promotion,
which was examined by the Integrated Headquarters, Ministry of Defene
(Navy), Redressal and Complaint Advisory Board (RACAB) and
23
disposed of by the Chief of the Naval Staff) vide reply letter No.
RS/7831/ROG/ OA&R/12 dated January 31, 2013. The appellant had
preferred his 2nd ROG dated October 18, 2013 on similar issues which
was examined at the Integrated Headquarters, Ministry of Defence
(Navy) and Competent Authority of Ministry of Defence had disposed of
the same vide Ministry of Defence letter No. 93/US(P)/D(N-II)/2014
dated October 07, 2014 and forwarded vide IHQ MoD (N) letter
RS/7869/ROG/HD/OA&R/13 dated October 10, 2014. His 3rd ROG
dated January 16, 2017 directly addressed to the Defence Secretary
and the Minister of Defence had also been examined and was found to
be devoid of merit and was rejected by the Ministry of Defence vide
Order No. 93/US(P)/ D(N-II)/2014 dated November 29, 2017 and
forwarded by IGQ MoD (N) letter RS/7831/ROG/OA&R/12 dated
December 06, 2017. It was, thus, argued that the grievance of the
appellant as regards his non-promotion has been considered by the
Competent Authority on three different occasions and the same was
rejected as he had lower comparative merit.
22) Therefore, argued the learned ASG, that going by the overall
profile of the appellant, the AFT has rightly held that no prejudice is
caused to the appellant.
23) After considering the respective submissions and going through
the records produced before us, we find the order of the AFT without
24
blemish and there is no justification to interfere with the same. The AFT
has rightly held that one particular adverse report (which stands
expunged) has not affected the succeeding Reports.
24) No doubt, for the periods from January 02, 2009 to January 27,
2012, the appellant has been given higher numerical grading by the IO
and even by the NSRO. However, the NSRO moderated the same
keeping in mind the overall profile of the appellant. We have gone
through the ACRs of the appellant and find force in the submission of the
respondents in this behalf as the ACRs of the disputed period recorded
by NSRO are in tune with the ACRs of the appellant recorded in the
previous years. It is to be kept in mind that for the period in question,
the appellant was on deputation and there may be a possibility of
recording higher grading by the IOs during that period. It is significant to
mention that for the earlier period even the IOs have not given such high
grading. System of PARB which is unique to Navy has been introduced
precisely for achieving such moderation. The Chief of the Naval Staff, in
his capacity of SRO/NSRO, is competent to undertake review of
Confidential Report gradings of Captain/Cmde. and above rank officers
for moderation of grades, if required. This is provided in NI 01/2000,
contents of which are reproduced as under:
“(i) All reports on Naval Officers of the rank of Lt. Cdr. and
Cdr. will undergo a ‘Performance Appraisal Review’ at Naval
Headquarters by a Performance Appraisal Review Board
(PARB) with a view to analyse instance of wide deviations
from their previous overall career profile. The reporting/
25
reviewing officers will be required to support very high/ low
markings in the remarks column. While reviewing the reports
at Naval Headquarters, numerical grades may be suitably
moderated on the recommendations of the PARB with the
approval of the Chief of the Naval Staff so as to bring them in
tune with officers’ demonstrated past performance. CNS will
lay down detailed guidelines to be followed for this purpose.
(ii) A similar review of the reports of all naval officers of the
rank of Capt. and above will be undertaken and gradings
suitably moderated by the Chief of the Naval Staff as Senior
Reviewing Officer/Next Senior Reviewing Officer.”
25) No doubt, the appellant is a good officer, which can be seen from
his performance, commendations which he earned from time to time and
the coveted postings which he has been given. However, his assertion
that prior to 2009 he was at No.1 in the Merit List is not correct.
26) It is also not correct that persons promoted to the rank of Rear
Admiral were below him in that merit. This claim of the appellant stands
disproved by the documents produced by the respondents. It is also
pertinent to point out that all those who were promoted were senior to
the appellant and it is not a case where any junior has superseded the
appellant. These are the considerations which influence us not to
interdict the conclusion arrived by the AFT. We are, therefore, not
inclined to interfere with the judgment of the AFT.
27) At the same time, before we part, we deem it necessary to make
some observations.
28) The work record of the appellant shows that he is a very good
officer. It also reflects that from time to time he has been given
26
important assignments which he has been able to accomplish and
discharge to the satisfaction of his superiors. It is because of these
reasons he has earned commendations insofar as performance of his
duties is concerned. May be he has nurtured the impression that he is
the best, and that is not factually correct. However, it also cannot be
denied that he has proved to be a useful officer to the Navy. Such a
person deserves to get what is legitimately due to him. We, therefore,
hope that the respondents would keep in mind the aforesaid factors and
give him the promotion in his turn without delaying the same and his
promising career would not be put in jeopardy.
29) The appeal stands disposed of in the aforesaid terms.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
FEBRUARY 12, 2018.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1843 of 2018
(@ Diary No. 36081 of 2017)
COMMODORE P.K. BANERJEE .....APPELLANT(S)
VERSUS
UNION OF INDIA AND OTHERS .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Leave to appeal granted.
2) This appeal is preferred by Commodore P.K. Banerjee under Section 32
of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as the
‘Act’) questioning the correctness and legality of the judgment and order
dated September 14, 2017 passed by the Armed Forces Tribunal (for
short ‘AFT’) in O.A. No. 392 of 2014 and order dated December 10,
2017 in M.A. No. 1219 of 2017 filed in O.A. No. 392 of 2014 passed by
the AFT.
3) Vide Order dated September 14, 2017, the AFT has dismissed the O.A.
No. 392 of 2014 which was instituted by the appellant questioning the
2
gradings given to him in Annual Confidential Reports (ACRs) of some of
the years recorded by his superiors which, according to him, had
adversely affected his career progression by denying him the promotion
to the next rank, i.e. Rear Admiral in Indian Navy. Insofar as the Order
dated October 12, 2017 passed in M.A. No. 1219 of 2017 in O.A. No.
392 of 2014 is concerned, by means of this Order, the AFT has rejected
leave to appeal the judgement dated September 14, 2017.
4) The appellant claims that right from his initial training of Cadet days
through the junior and middle rank appointments till promotion to the
rank of Captain on August 30, 2004 has always been amongst the top
few in his batch. Litmus Test for any Naval Officer is his Sea Command
of a warship and the appellant happens to be the only officer in his entire
‘original batch’ who commanded the most premium ships in every rank
(as a Lt. Cdr., Commander and Captain) with distinction, and without
any incidents/accidents.
5) The appellant also claimed that being at the top of his batch, the
appellant got command of the most premium and at that time, the latest
Talwar class ship, INS Tabar in December, 2007 and performed
outstandingly in this command as well. Even in the Sea Board Merit List
in mid, 2007, the appellant was at the top of his batch that resulted in his
getting command of INS Tabar, but things went wrong after this Sea
Command of the appellant. However, very severe Adverse Remarks
3
inserted by the appellant’s Reviewing Officer (RO) in the ACR in 2009,
that were not communicated by the RO as per Navy Rules, and in total
contradiction to the Report rendered by the Initiating Officer (IO) quietly
brought an end to the promising career of the appellant who was not
even aware of such illegalities (that resulted in the appellant becoming
the last officer in Overall Order of Merit (OOM) amongst his original
batch who commanded ships in the rank of Captain) until the appellant
missed his promotion to the rank of Rear Admiral in Promotion Board
01/2012 in April 2012.
6) It is the case of the appellant that as the Commanding Officer of INS
Tabar – a frontline stealth warship of Western Naval Command, the
appellant was deployed in the Gulf of Aden in end October 2008. This
was the appellant’s fourth command of a warship in his career, the last,
i.e., the third command being of INS Kulish – a frontline warship of the
Indian Navy where the ship was nominated as the best performing ship
of the Eastern Fleet earning an excellent Report in 2004 from his then
Fleet Commander FOCEF (Initiating Officer) who wrote in the ACR – “A
professional and extremely effective CO who ran one of the best ships
of the Fleet”. This ACR was backed up by the Appellant’s then
Reviewing Officer, the FOCINC Eastern Naval Command who wrote —
“The ship has done very well under command of Benerjee”.
7) On October 27, 2008, INS Tabar returned to Mumbai after patrolling duty
4
in the Persian Gulf and was deployed for anti-piracy operations off the
coast of Somalia at one day’s notice after Diwali on October 29, 2008.
The appellant boasts about the fact that 10 other major warships were in
the harbour and in prime operational state and could have been
deployed for the task but were not, speaks about the trust the Indian
Navy had on the Commanding Officer and crew of INS Tabar. The
anti-piracy operation was the first instance where the Indian Navy would
be operating in International waters far away from the country and in
hostile environment. The ship proceeded with despatch to the
operational area and within a month’s patrol duty, managed to save the
Indian merchant ship MV Jag Arnav and a Saudi Arabian merchant ship
MV NCC Tihama on November 11, 2008 from getting hijacked by Somali
Pirates and neutralised a suspect pirate mother vessel to great
accolades all over.
8) Stating further about his laudable work, the appellant states that the
performance of the ship was also lauded by the Indian Navy and the
Fleet Commander (Western Fleet) in his Reporting as the appellant’s IO
in the ACR (10.12.2007 to 28.11.2008) gave an Outstanding Report and
recommended the appellant for the most prestigious Second Sea
Command reserved only for the best Commanding Officers of the Fleet.
The new Fleet Commander who had also overseen INS Tabar’s maiden
anti-piracy operations off Somalia as the Deputy of the FOC-in-C,
5
Western Naval Command in the capacity of RO’s Chief of Staff of
Headquarters Western Naval Command recommended the appellant for
the award of a gallantry award Shaurya Chakra. The appellant’s ship
INS Tabar was at sea for over 200 days in 2008 without a single
incident/accident or mishap, in contrast to what Indian Navy Ships
actually perform.
9) According to the appellant, he is dismayed to find that despite all of the
above, when INS Tabar returned to Mumbai after its anti-piracy mission,
not even the customary debrief was conducted by the FOCINC (Flag
Officer Commanding-in-Chief) West or the CNS (Chief of the Naval
Staff) of the operation (a standard operating procedure in the Navy),
even when this was a first of its kind operation for the Navy. On the face
of it, the Reviewing Officer (‘RO’) personally complimented the ship
captained by the appellant on November 19, 2008 (almost at the end of
the deployment) in a Signal stating “that was well executed, you have
done the WNC and Navy proud”, yet less than two months later the RO
in the ACR pertaining to the very same operational deployment in Gulf of
Aden and in the period in which an outstanding report was given by the
IO, wrote vague, unsubstantiated adverse remarks in Section V of the
appellants ACR, stating – “On more than one occasion during this
deployment, the officer displayed indecisiveness and had to be backseat
driven” and “I would not rate Banerjee an operational guy, best suited for
6
desk assignments”— These remarks did not cite any incident which
illustrated these adverse remarks and were at total variance to IO’s
Outstanding Remarks. The RO also simultaneously downgraded the
Numerical Gradings in the ACR given by the IO — by 0.3 marks each in
PQ (Performance Qualities) and in PP (Promotion Potential) i.e., a total
of 0.6 marks.
10) The grievance of the appellant is that breaking all rules of
communication of Adverse Remarks to the Reportee (Appellant), the RO
sent the ACR to the Senior Reviewing Officer, i.e., CNS for his report.
The CNS himself, instead of following laid down rules and procedures
for communication of Adverse Remarks and returning the ACR to the
RO, commented that the ship had performed poorly and agreed with the
RO’s remarks by writing, “A poor report from an operational ship by the
RO — at some variance with the IO’s remarks. ....Going by the RO’s
judgments, the officer deserves 7.5/7.6”, thus, abetting the illegal act of
the RO.
11) These adverse remarks and the consequential numerical
downgrading were not communicated to the appellant in contravention
of para 0410(d) of Navy Order (Special) 05/2005, as well as the settled
position of law this Hon’ble Court has reiterated in Dev Dutt v. Union of
India and Others1
, then in Abhijit Ghosh Dastidar v. Union of India and
others2
and again in Prabhu Dayal Khandelwal v. Chairman, U.P.S.C. &
1 (2009) 8 SCC 725
2 (2009) 16 SCC 146
7
Ors.3
12) The appellant also asserts that in all subsequent postings also he
performed exceptionally well and in each and every case where the IO,
RO or SRO did not have access to the appellant’s dossier (previous
ACR’s), they gave the appellant outstanding reports. Yet, the Next
Senior Reviewing Officer (‘NSRO’)/CNS, who had access to the
appellant’s dossier, numerically downgraded the ACR having been
influenced by the previous ACR’s numerical downgrading.
13) The appellant has endeavoured to demonstrate the same by
stating his gradings given by different officers, i.e., from IO to RO to
SRO/NSRO with his own remarks, in a tabulated form which is as under:
SL. Rank Appoint
ment
Period
of
Report
Gradin
g
(P.P./P.
Q.)
IO
RO
SRO/N
SRO
ACR
REMA
RKS
Profile
1. Captain Comma
nding
OfficerINS
Tabar
10.12.2
007
To
28.11.2
008
7.7/7.8 7.4/7.5 7.5/7.6 IO
rated
highest
among
st over
a
dozen
Fleet
Captain
s,
recom
mende
d for
Second
Sea
Comma
nd
reserve
d for
the
best,
Adverse Remarks
resulted in fixing
faultily arrived
profile at 7.5/7.6
3 (2015) 14 SCC 427
8
and for
prestigi
ous
NDC
Course.
RO
inserte d
Severe
Advers e
Remark
s and
not
commu
ni-cate
d as
per
Rules.
His
exact
Remark
s – “On
more
than
one
occasio n
during
this
deployment,
the
officer
display
ed
inde-cis
iveness
and
had to
be
backse
atdrive
n” & “I
would
not rate
Banerje
e and
operati
onal
guy,
best
suited
for best
assignments”
at total
varianc
e to
IO’s
Remark
9
s
SRO/N
SRO
wrote –
“A
poor
report
from
an
operati
onal
ship by
the RO
—at
some
varianc
e with
the
IO’s
remark
s...Goi
ng by
the
RO’s
judgm
ents.
The
officer
deserv
es
7.5/7.6
”
2. Cmde Princip
al
Director
Naval
TYraini
ng
(PDNT)
in NHQ
02.01.2
009
To01.0
6.2009
7.6/7.6
(Here
IO had
access
to the
appella
nts
dossier
7.6/7.6 7.6/7.6 IO was
custodi
an of
Dossier
s,
Appella
nts
Appoint
er and
Membe
r
Secreta
ry of
Promoti
on
Boards,
knew
the
Thresh
olds.
He
gave
Numeri
cal
Gradin
gs in
tune
with
7.6/7.6
10
Faulty
Profile
– he
did not
factor
the
actual
task
delivere
d
3. Cmde Naval
Adviser
, High
Commi
ssion
London
31.08.2
009
To
28.02.2
010
8.0/8.0
(1st CR
In
London )
--
(no
RO)
7.9/7.9 7.6/7.7 IO to
SRO –
Outstan
ding
Report
by
DCNS
was
brought
down
by
NSRO/
CNS to
match
with
Faulty
Profile.
SRO/C
NS
wrote –
“Concu
r with
pen
picture.
Howev
er, the
numeri
cal
assess
ment is
too
high
and
has
been
modera
ted
keeping
the
profile
in
perspe
ctive
This is
despite
the fact
the
Head of
Mission ,
7.6/7.7
11
London
had
Report
ed on
me on
IN
Form
475-D
for the
same
period
and
sent it
directly
to the
SRO/D
CNS –
thus
making
SRO’s
Reporti
ng
more
objectiv
e and
without
any
bias of
previou s
knowle
dge of
the
applica
nt.
4. Cmde 01.03.2
010
To
08.08.2
010
7.9/
7.9
7.7/
7.7`
All
subseq
uent
CRs of
NA
London
that
were
rated
excelle
nt by
SRO
were
downgr
aded
by the
same
CNS to
match
with the
faulty
profile
– all
becaus
e of the
uncom
muicate
7.7/7.7
12
d
Advers e
Remark
s in
ACR of
INS
Tabar
in 2008
that
was
against
Rule in
Navy
and
illegal
In 475
D ACR
by
Head of
Mission ,
London
quantifi
ed with
13
attribut
es in
2010
and
direct
First
Hand
inputs
of Head
of
Mission
availabl
e with
SRO/D
CNS
for
each
period
of ACR
Reporti
ng
5. Cmde 09.08.2
010
To
04.02.2
011
` 7.0/ 7.9 7.7/
7.7
7.7/7.7
6. Cmde 01.03.2
011
To
7.8/
7.8
7.7/
7.8
7.7/7.8
13
27.01.2
012
NOTE : It is very clear from that the uncommunicated Adverse Remarks in
2007-2008 ACR of INS Tabar by the RO not lowered in Appellants profile, but it had
a direct cascading effect on all his subsequent ACRs.”
14) That analogy that is sought to be drawn by the appellant is that
severe adverse remarks which were given by his RO for the
period10.12.2007 to 28.11.2008 had a cascading effect in future as well
inasmuch as though his IOs, who had been giving very high grading,
each time the same is toned down and downgraded by the SRO/NSRO,
influenced by the adverse remarks recorded in his ACR for the period
10.12.2007 to 28.11.2008.
15) After seeking departmental redressal by making grievances to the
higher authorities for expunging the severe adverse remarks and for
upgrading his ACRs which did not result in any positive outcome, the
appellant approached the AFT in the form of OA No. 392 of 2014. The
AFT after hearing the matter finally agreed with the submission of the
appellant insofar as it pertained to the adverse remarks for the period
10.12.2007 to 28.11.2008, and expunged the said adverse remarks.
However, a partial relief only to the aforesaid extent is granted by the
AFT and the other reliefs which were sought in respect of numerical
grading given to the appellant for the subsequent period have been
declined with the observations that adverse remarks for the aforesaid
14
period had no bearing on the numerical grading given for the period
thereafter and it did not have any adverse effect while considering his
case for next higher rank. The discussion is encapsulated in para 18 of
the judgement which was reads as under:
“18. We have heard the learned counsel for the parties and
perused the original records. We are of the opinion that the
applicant’s impugned Annual Confidential Report for the period
10.12.2007 to 28.11.2008 has ‘Adverse Remarks’ in the pen
picture by the Reviewing Officer (Respondent no. 5) in the form
of comments like ‘indecisive’ ‘back seat driver’ and ‘not an
operational guy’ and, therefore, the same should have been
communicated to the Ratee in accordance with the provisions
of Navy order 5/2005. Since it has not been done, the same
thus needs to be set aside and the applicant is entitled a fresh
consideration for promotion to the rank of Rear Admiral. We
have also perused the reports of the period 29.08.2009 to
30.09.2012 and find (sic.) that these have been
initiated/reviewed by different Initiating, Reviewing and Senior
Reviewing Officers and are in consonance with the ratee’s
profile before and after that period. The argument that one
particular confidential report has affected all successive reports
by all Initiating and Reviewing Officers does not stand its
ground and is dismissed as mere apprehensions of the
applicant. It is clear from the records of No. 1 Selection Board
held in 2012, 2013 and 2014 produced before us in which the
applicant was screened, that he has not been empanelled
purely on his comparative merit in these boards. The applicant
trying to clean up his entire profile since 2008 when the
impugned adverse report was endorsed by the Reviewing
Officer in his confidential report cannot be allowed. It is,
however, opined that the Indian Navy should have a relook at
their appraisal/moderation system, especially when the
Reporting Officers from other services/organisations have been
involved in assessing the ratee’s as Initiating/Reviewing
Officers. We also feel that this Tribunal has no jurisdiction into
adjudicating on who should get gallantry/distinguished awards,
nor do we intend delving into the same.”
16) Mr. Prashant Bhushan, learned counsel appearing for the
appellant, made a very passionate plea, with all vehemence at his
15
command, to the effect that the aforesaid approach of the AFT was
clearly erroneous inasmuch as recording of adverse remarks for the
period 10.12.2007 to 28.11.2008 had definite cascading effect insofar as
reports of later period from 29.08.2009 to 30.09.2012 is concerned. He
submitted that the manner in which ACRs were recorded was clear
evidence to demonstrate the official biasness of SRO/NSRO, went by
the so-called pen-picture and kept on downgrading the ACR of the
appellant even when, on an independent assessment of appellant’s
work and conduct in those periods by I.O., all the I.Os. had given the
appellant higher numerical grading. Therefore, the AFT could not
dismiss the argument of the appellant by terming it as ‘mere
apprehensions of the applicant’. In order to demonstrate the same, Mr.
Bhushan pointed out the following features from the table already
reproduced above:
(a)Insofar as period of 02.01.2009 to 01.06.2009 is concerned,
numerical grading of 7.6/7.6 is occasioned because of the reasons
that the IO who had given this grading was influenced by appellant’s
dossier which was in his possession, though he was not supposed to
peep into that. Otherwise, for subsequent periods, I.Os./R.Os. had
given much higher grading.
(b)For the period from 31.08.2009 to 28.02.2010, I.O. had given
outstanding report by giving marks of 8.0/8.0 and even the SRO
16
recorded the grading of 7.9/7.9. Likewise, for subsequent period, i.e.,
01.03.2010 to 08.08.2010 and 09.08.2010 to 04.02.2011, SRO had
given the grading of 7.9/7.9 in each of these periods. However, in
respect of all the aforesaid three periods, NSRO downgraded the
appellant by lowering the marks to 7.6/7.7, 7.7/7.7 and 7.7/7.7
respectively. This was done in spite of the fact that NSRO concurred
with the pen-picture/profile of the appellant. However, only on the
ground that numerical assessment was too high could not be a valid
excuse to lower it down by taking umbrage of the so-called
moderation and recording that it “has been moderated keeping the
profile in perspective”.
(c) Mr. Bhushan also submitted that the appellant had been an
outstanding officer who always earned high commendation and
praise for his outstanding performance from the very beginning and
even in earlier years, i.e., period prior to 10.12.2007, he had been
earning outstanding grading. Therefore, there was no reason for the
AFT, argued the learned counsel, to maintain the aforesaid final rating
recorded by the NSRO and it should have been brought at par with
that of SRO.
17) Proceeding on that basis, related submission of Mr. Bhushan was
that even in the merit list prepared for promotion to the higher rank, the
aforesaid lowering down of the grading had adverse impact thereupon.
17
The appellant, who was at number 1 in the merit list of 2007 was slipped
down to the position at No. 22 which resulted in denial of promotion of
the appellant to the post of Rear Admiral. It was submitted that all the
officers who were promoted to the said post by the Promotion Board in
January, 2012 were below in merit in the year 2007 and they stole
march over the appellant because of lowering down his numerical
grading during aforesaid period. He pointed out that the Promotion
Board examines the ACR of the last five years and on the basis of his
ACRs of the aforesaid period, his ACR average came down to 15.32.
He further pointed out that if the marks given by SRO during the
aforesaid period are taken into consideration, instead of NSRO, the ACR
average of the appellant for the aforesaid period would be 15.70 and in
this manner he would rank on the top of the merit list, which he
demonstrated from the following table:
“The Order of Merit (OOM) worked out at present for Appellant’s Batch including 5%
Value Judgement Marks awarded by Promotion Board 01/2012 (page 178 of
Annexure A-18 of Petition) is as follows:
Sl. No. NAME* ACR
AVERAG
E OUT
OF
(9+9=18
MARKS)
WEIGHTE
D
ACT
MARKS
(95%)
VALUE
JUDGEM
ENT
MARKS
WEIGHT
ED
AVERAG
E
ORDER
OF
MERIT
(OOM)
REMARK
S
1. Officer 1 15.57 82.18 4.5 86.68 1 *Serials
1 to 8
promoted
to Rear
Admiral
by the
Promotio
n Board
01/2012
in May
2012.
2. Officer 2 15.52 81.91 4.4 86.31 2
18
3. Officer 3 15.50 81.81 4.3 86.11 3
4. Officer 4 15.50 81.81 4.3 86.11 4
5. Officer 5 15.49 81.75 4.3 86.05 5
6. Officer 6 15.47 81.65 4.3 85.95 6
7. Officer 7 15.44 81.49 4.3 85.79 7
8. Officer 8 15.40 81.28 4.4 85.68 8
9. Officer 9 15.41 81.33 4.1 85.43 9 #The
ACR
Average
Marks of
Appellant
in Sl.10
is worked
out by
average
of his
SRO/NS
RO
(CNS)
marks
from
Annexur
e A-4
(Pages
58-59):1
5.1+15.2
+15.3+15
.4+15.4+
15.5
=91.9
divided
by
6=15.32
10. Appellant
(Earlier)
15.31# 80.86 3.1 83.96 22
Revised ACR Average Marks of 15.70 obtained in Para 1 above inserted in the Original PB
01/2012 results in Fresh OOM of Appellant
10A. Appellant
(Fresh)
15.70 82.86 4.5@ 87.36 Ahead of
OOM
This
jump in
Appellant
’s
Revised
OOM to
No. 1, is
also in
tune with
Captain’s
Sea
Board
Merit List
of Batch
in
mid-2007
, after
which his
career
was
destroye
d due to
illegal
uncomm
unicated
Adverse
19
Remarks
by
RO/SOR
in
Impugne
d ACR.
@ In reality, the appellant could have received higher than 4.5 marks in 5% Value
Judgment by PB Members if the Gallantry Award and associated recognition legitimately
due in preceding 5 years before PB 01/2012, during his Sea Command of INS Tabar in
Impugned Act, which were deliberately denied by the RO (just to remain in sync with his
“Now Illegal” Adverse Remarks that have since been admitted by Navy at last, and finally
expunged by Hon’ble AFT).
18) Mr. Maninder Singh, learned Additional Solicitor General appearing
for the respondents, refuted the aforesaid submissions and defended
the order of the AFT on the ground that the AFT had formed a correct
opinion after perusal of the original records, which fact is specifically
recorded in the impugned order. His submission was that even if the
adverse remark in the report for the period December 10, 2007 to
November 28, 2008 was expunged, it had no bearing on the final ACRs
recorded for the subsequent period by NSRO. To buttress this
submission, the learned ASG argued that fundamental premise/ basis on
which the case was built by the appellant, itself was wrong. In this
behalf, he pointed out the following factors:
a) The ACRs of the appellant for the period prior to the year 2007 were
not Outstanding/Excellent or with higher numerical grading as
contended by him. In support, he produced the ACR record of the
appellant right from January 01, 1986 and submitted that the overall
record of the appellant would show that he was getting the same kind
of grading which was given to him for the disputed period.
20
b) It was also wrong on the part of the appellant to state that in the Merit
List of the year 2007 the appellant was placed at S.No.1. The
learned ASG produced Weighted Merit List – First Sea Command
Merit of 2007, as per which the appellant was placed at S.No.5.
c) In the Promotion Board 2/04 (Aug 04), which was constituted for
promotions from Cdr. to Captain and as per which the appellant was
selected for the said post, his rank was No.9 and as on that date, as
per OOM (Weighted Merit), he was at No.11.
Therefore, his claim that he was always getting top rank in
the Merit List was not factually correct.
d) Mr. Maninder Singh refuted the appellant’s submission that for the
period January 02, 2009 to June 01, 2009 giving grading of 7.6/7.6 by
the IO was for the reason that he had access to the dossier of the
appellant, by referring to the instructions for rendering Confidential
Reports of the Naval Officers issued Vide Navy Order (Special)
05/2005 which, inter alia, provided as under:
“0405. Performance in Appointment. An officer is to be
assessed in the appointment actually held by him/her during
the period under report and, as far as possible, in comparison
with other officers of same rank and seniority. The
assessment should not be influenced by any incident
prior to the period of the report.”
His submission was that the aforesaid instructions are strictly
adhered to and, therefore, the IO could not have seen the ACR
record of the appellant for the earlier period and it was nothing but
21
figment of imagination of the appellant.
19) According to the learned ASG, the real reason for giving specific
grading by the NSRO was that he had moderated the same keeping in
mind the overall profile of the appellant, which is specifically recorded as
well, as admitted by the appellant himself. It was argued that this
moderation is done as per Chapter 25 of the Regulations for the Navy,
1965 Part-I, which contains unique system of ‘Performance Appraisal
Review Board’ (PARB). As per Navy Instructions 20/90 regarding the
said Chapter, amended on January 01, 2000, the provision regarding
PARB reads thus:
“Performance Appraisal Review – (1) All reports on Noval
Officers of the rank of Lt. Cdr. and Cdr. will undergo a
‘Performance Appraisal Review Board’ (PARB) with a view to
analyse instances of wide deviation from their previous overall
career profile. The reporting/reviewing officers will be
required to support very high/low marking in the remarks
column. While reviewing the reports at Naval Headquarters,
numerical grades may be suitably moderated on the
recommendations of the PARB with the approval of the Chief
of the Naval Staff so as to bring them in tune with officers’
demonstrated past performance. CNS will lay down detailed
guidelines to be followed for this purpose.
(2) A similar review of the records of all naval officers of the
rank of Capt. And above will be undertaken and gradings
suitably moderated by the Chief of the Naval Staff as Senior
Reviewing Officer/Next Senior Reviewing Officer.”
20) Based on the aforesaid, contention of the learned ASG was that
the purpose of PARB is to analyse instances of wide deviation from their
22
previous overall career profile. Thus, wherever it is found that the
Reporting/Review Officer has given a very high or very low grading, as
compared to the previous overall career profile, PARB recommends
such ranking to be suitably moderated with the approval of the Chief of
the Naval Staff so as to bring them in tune with Officers’ demonstrated
past performance. According to him, keeping in view the overall profile,
the grading was, thus, moderated by NSRO, who was nonelse but the
Chief of the Naval Staff himself. There was no question of doubting his
bona fides nor such a case was pleaded by the appellant.
21) Insofar as promotion of the appellant to the rank of Rear Admiral is
concerned, he submitted that the case of the appellant was considered
by the Promotion Board No.1A (X/GS)/2012 for the first time as Fresh
Look case along with all his batch mates of Select List Year 2004. He
could not make the grade being much below the threshold. He was
reconsidered by subsequent two Promotion Boards as R-1 and R-2 case
by Promotion Board 1A(X/GS)/2013 and Promotion Board
1A(X/GS)/2014. However, the officer could not be empanelled due to
his lower overall comparative merit vis-a-vis those selected. Aggrieved
by this, the appellant had put up representations, i.e. Redressal of
Grievance (ROG) dated August 22, 2012 against his non-promotion,
which was examined by the Integrated Headquarters, Ministry of Defene
(Navy), Redressal and Complaint Advisory Board (RACAB) and
23
disposed of by the Chief of the Naval Staff) vide reply letter No.
RS/7831/ROG/ OA&R/12 dated January 31, 2013. The appellant had
preferred his 2nd ROG dated October 18, 2013 on similar issues which
was examined at the Integrated Headquarters, Ministry of Defence
(Navy) and Competent Authority of Ministry of Defence had disposed of
the same vide Ministry of Defence letter No. 93/US(P)/D(N-II)/2014
dated October 07, 2014 and forwarded vide IHQ MoD (N) letter
RS/7869/ROG/HD/OA&R/13 dated October 10, 2014. His 3rd ROG
dated January 16, 2017 directly addressed to the Defence Secretary
and the Minister of Defence had also been examined and was found to
be devoid of merit and was rejected by the Ministry of Defence vide
Order No. 93/US(P)/ D(N-II)/2014 dated November 29, 2017 and
forwarded by IGQ MoD (N) letter RS/7831/ROG/OA&R/12 dated
December 06, 2017. It was, thus, argued that the grievance of the
appellant as regards his non-promotion has been considered by the
Competent Authority on three different occasions and the same was
rejected as he had lower comparative merit.
22) Therefore, argued the learned ASG, that going by the overall
profile of the appellant, the AFT has rightly held that no prejudice is
caused to the appellant.
23) After considering the respective submissions and going through
the records produced before us, we find the order of the AFT without
24
blemish and there is no justification to interfere with the same. The AFT
has rightly held that one particular adverse report (which stands
expunged) has not affected the succeeding Reports.
24) No doubt, for the periods from January 02, 2009 to January 27,
2012, the appellant has been given higher numerical grading by the IO
and even by the NSRO. However, the NSRO moderated the same
keeping in mind the overall profile of the appellant. We have gone
through the ACRs of the appellant and find force in the submission of the
respondents in this behalf as the ACRs of the disputed period recorded
by NSRO are in tune with the ACRs of the appellant recorded in the
previous years. It is to be kept in mind that for the period in question,
the appellant was on deputation and there may be a possibility of
recording higher grading by the IOs during that period. It is significant to
mention that for the earlier period even the IOs have not given such high
grading. System of PARB which is unique to Navy has been introduced
precisely for achieving such moderation. The Chief of the Naval Staff, in
his capacity of SRO/NSRO, is competent to undertake review of
Confidential Report gradings of Captain/Cmde. and above rank officers
for moderation of grades, if required. This is provided in NI 01/2000,
contents of which are reproduced as under:
“(i) All reports on Naval Officers of the rank of Lt. Cdr. and
Cdr. will undergo a ‘Performance Appraisal Review’ at Naval
Headquarters by a Performance Appraisal Review Board
(PARB) with a view to analyse instance of wide deviations
from their previous overall career profile. The reporting/
25
reviewing officers will be required to support very high/ low
markings in the remarks column. While reviewing the reports
at Naval Headquarters, numerical grades may be suitably
moderated on the recommendations of the PARB with the
approval of the Chief of the Naval Staff so as to bring them in
tune with officers’ demonstrated past performance. CNS will
lay down detailed guidelines to be followed for this purpose.
(ii) A similar review of the reports of all naval officers of the
rank of Capt. and above will be undertaken and gradings
suitably moderated by the Chief of the Naval Staff as Senior
Reviewing Officer/Next Senior Reviewing Officer.”
25) No doubt, the appellant is a good officer, which can be seen from
his performance, commendations which he earned from time to time and
the coveted postings which he has been given. However, his assertion
that prior to 2009 he was at No.1 in the Merit List is not correct.
26) It is also not correct that persons promoted to the rank of Rear
Admiral were below him in that merit. This claim of the appellant stands
disproved by the documents produced by the respondents. It is also
pertinent to point out that all those who were promoted were senior to
the appellant and it is not a case where any junior has superseded the
appellant. These are the considerations which influence us not to
interdict the conclusion arrived by the AFT. We are, therefore, not
inclined to interfere with the judgment of the AFT.
27) At the same time, before we part, we deem it necessary to make
some observations.
28) The work record of the appellant shows that he is a very good
officer. It also reflects that from time to time he has been given
26
important assignments which he has been able to accomplish and
discharge to the satisfaction of his superiors. It is because of these
reasons he has earned commendations insofar as performance of his
duties is concerned. May be he has nurtured the impression that he is
the best, and that is not factually correct. However, it also cannot be
denied that he has proved to be a useful officer to the Navy. Such a
person deserves to get what is legitimately due to him. We, therefore,
hope that the respondents would keep in mind the aforesaid factors and
give him the promotion in his turn without delaying the same and his
promising career would not be put in jeopardy.
29) The appeal stands disposed of in the aforesaid terms.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
FEBRUARY 12, 2018.
