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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

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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

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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

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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,

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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

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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

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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 Officer- INS 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

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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 deploy- ment, 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 assign- ments” at  total varianc e  to IO’s Remark

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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

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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

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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

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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/

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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

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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.