service matter – promotion – absence of allegations that Junior promoted – his claim not maintainable now – 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to point out that all those who were promoted were senior to the appellant and it is not a case where any junior has superseded the appellant.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.= 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 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. – 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.

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.