Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 8896-8897 of 2012

Surgeon Rear Admiral Manisha Jaiprakash   .... Appellant(s)

versus

Union of India & Ors.           ….Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. These  Appeals  arises  out  of  a  judgment  of  the

Armed  Forces  Tribunal  by  which  the  rejection  of  the

statutory  complaint  filed  by  the  Appellant  was  upheld.

The Appellant was commissioned in the Indian Army as a

Lieutenant in  the year  1975.   She was promoted as a

Brigadier  on  05.12.2005  and  as  Rear  Admiral/  Major

General on 24.11.2007.  The Appellant retired as Surgeon

Rear Admiral on 31.05.2012.  As she was not promoted

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as Surgeon Vice Admiral, she filed a statutory complaint

on 15.07.2010 seeking following reliefs :  

“(a) Five ACRs prior to ICR- 2007 be compared

with ICR-2007 and ACR-2008.  

(b) Total  Expunction  of  ICR  –  2007:-  If

markings in  the assessment  on a Select  Surg

Rear Admiral for selection to the next rank of

Surg Vice Admiral are inadequate for selection

even to the first  Select  rank of  Surg Caption/

Equivalent from the rank of Surg Commander/

Equivalent.   

(c) Total  Expunction  of  ACT  2008:-  If

markings in  the assessment  on a Select  Surg

Rear Admiral for selection to the next rank of

Surg Vice Admiral are inadequate for selection

even to the first  Select  rank of  Surg Captain/

Equivalent from the rank of Surg Commander/

Equivalent.”   

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2. By  an  order  dated  02.09.2011,  the  statutory

complaint was disposed of by giving partial relief to the

Appellant which is as follows:

“(a) Box  grading  awarded  by  SRO  in  ICR  2006,

being inconsistent with the pen picture and profile of the

officer,

(b) Box grading awarded by DGAFMS in ACR 2006,

being technically invalid,  

(c) Numerical grading awarded by IO, RO and FTO

in ICR 2007 on grounds of inconsistency with established

profile,

(d) Numerical  grading  awarded  by  SRO,  DGMS

(Army)  and  DGAFMS  in  ACR  2008  on  grounds  of

inconsistency with established profile,

(e)  Numerical  grading  awarded  by  DGAFMS  in

SCR 2009, being inconsistent, and  

(f) Entire  assessment,  including  box  grading,

awarded  by  DGMS  (N)  as  HOS  in  SCR  2009,  being

technically invalid.  

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2. The above-mentioned aberrations be removed

from  the  CR  Dossier  of  the  officer  and  she  be

reconsidered for promotion, by an appropriate Promotion

Board (Medical), in accordance with the existing policy.”  

3. Dissatisfied with the partial redressal of grievance,

the Appellant  filed O.A.  No.19/  2011 before the Armed

Forces Tribunal, Regional Bench, Mumbai (for short “the

Tribunal”) which was dismissed by the impugned order.

The Appellant is before this Court challenging the validity

of the said order of the Tribunal.  

4. The grievance of  the Appellant is  that  her  Annual

Confidential  Reports  (ACRs)  for  the  years  2006-  2009

have  not  been  properly  recorded.   She  alleged  in  the

statutory complaint that the ACR for the year 2008 was

initiated by Brigadier G.S. Manchanda who was working

as  Deputy  Director  General  Medical  Services  (DDGMS)

Madhya Bharat  area.   The Appellant  apprehended that

Brigadier    G.S.  Manchanda,  who  was  her  colleague,

would have not assessed her fairly.  She sought for re-

assessment  of  the  Interim Confidential  Report  of  2007

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and Annual Confidential Repot of 2008 by looking into the

past five years’ Confidential Reports.     

5. The  Appellant  contended  that  the  Confidential

Reports recorded by Brigadier G.S. Manchanda who was

her  Initiating  Officer  are  biased.   As  Brigadier  G.S.

Manchanda was in the same rank as of the Appellant, she

apprehended that he might have marked the Appellant

low in the ACR for the year 2008.  The learned Senior

Counsel for the Respondent submitted that according to

Para 18 (c) SAO No.8/S/91 of the Army Order, Confidential

Reports  will  normally  be  initiated  by  the  immediate

Commanding  Officer.   However,  it  is  provided  that  an

officer  of  the  same  rank  can  also  initiate  Confidential

Reports  but  will  not  endorse  the  recommendation  for

promotion to the next rank.  On a perusal of the record,

the Tribunal was of the opinion that the Appellant failed

to prove any malice or bias on the part of the officers

concerned  in  recording  the  Confidential  Reports.   The

overall ratings of the Appellant were found to have been

improved.  The  apprehension  of  the  Appellant  that

Brigadier   G.S.  Manchanda could  not  have graded her

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correctly  was  found  to  be  not  correct  by  the  Tribunal.

The  Confidential  Report  initiated  by  Brigadier  G.S.

Manchanda  as  Initiating  Officer  as  well  as  F.T.O.  was

shown  to  us  by  learned  Senior  Counsel  for  the

Respondent.  We are in agreement with the finding of the

Tribunal that no bias can be found in the ACR for the year

2008  which  was  recorded  by  Brigadier

G.S. Manchanda.  The endorsements made by Brigadier

G.S.  Manchanda  as  Initiating  Officer  has  been  in  the

range  of  ‘Outstanding’  to  ‘Exceptionally  Outstanding’.

The Confidential  Report Dossier  of the Appellant would

show that the ACR for the year 2008 acknowledges her

professional and administrative abilities.   

6. Another  contention  raised  by  the  Appellant  is

regarding  the  delay  in  processing  her  statutory

complaint.  All statutory complaints have to be disposed

of within six months as per Army Regulation 364 which is

as follows:

“(e) All statutory complaints will be made

through proper channel as given in sub-para (e)

below and copies will not be forwarded directly

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to higher authorities.  If the final decision on the

statutory complaint is not taken within a period

of six months from the date, such a complaint is

submitted  to  the  immediate  superior,  the

applicant will have a right to represent directly

to  Army  Headquarters  of  the  Central

Government as the case may be after informing

his commanding Officer.”     

7. Undoubtedly,  the  statutory  complaint  was  not

disposed  of  within  the  stipulated  period  in  the

aforementioned  Regulation.   By  referring  to  the

Regulation, the Tribunal held that the Appellant did not

resort to the remedies that were made available in the

above  Regulation.   Moreover,  the  Tribunal  was  of  the

opinion that the Appellant is not entitled for relief only on

the  ground  of  delayed  disposal  of  the  statutory

complaint.   We agree.   

8. The main contention of  the Appellant is  regarding

the  retrospective  application  of  Spl.  Army  Order

No.8/S/91  pertaining  to  multiple  endorsements  by

reporting  officers.  While  considering  the  statutory

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complaint, relief was granted to the Appellant in respect

of the ICR for 2006.  The Box Grading awarded by the

Senior Reviewing Officer in ICR for 2006 was expunged as

it was found inconsistent with the pen picture and profile

of  the  officer.  The  Box  Grading  awarded  by  Director

General  Armed  Forces  Medical  Service  (DGAFMS)  was

also found technically invalid as he endorsed the ICR for

the year 2006 as reporting officer as well as the DGAFMS.

It  was found that  the endorsements made by Surgeon

Vice  Admiral  V.K.  Singh  as  DGAFMS   amounted  to

moderation of his  own assessment as reporting officer.

Therefore, the Box Grading awarded by DGAFMS in ACR

for  2006  was  expunged  as  technically  invalid.   The

Numerical  Grading  awarded  by  the  Initiating  Officer,

Reviewing Officer and the First Technical Officer in ICR for

2007 was found to be inconsistent with the established

profile.  Likewise, the Numerical Grading awarded by the

Senior  Technical  Officer,  Director  General  Medical

Services (a) and DGAFMS in ACR for 2008 was also found

to be inconsistent. Similarly, Numerical Grading awarded

by DGAFMS in ACR 2009 was found inconsistent.  That

apart,  the  entire  assessment,  including  Box  Grading

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awarded by Director General Medical Services (Army) as

head of service in ACR 2009 was found to be technically

invalid.   

9. The  Appellant  was  considered  by  the  Promotion

Board held on 04.11.2009 (Chance I) and on 04.02.2011

(Chance II).  She was found not suitable for promotion to

the rank of  Surgeon Vice Admiral  in  view of  her  merit

position being 17 and 10 respectively.  The Vishisth Seva

Medal (VSM) awarded was also taken into consideration

by  the  Promotion  Board  held  on  04.02.2011.   After

disposal of the statutory complaint, a Review Board was

held on 07.10.2011.  With the revised profile as per the

order passed on 02.09.2011, she was considered by the

Reviewing  Board  and  found  to  be  not  suitable  for

promotion in view of the inter se merit.   

10. Dr. Harshvir Pratap Sharma, learned Senior Counsel

appearing for the Appellant referred to the Navy Order

(Spl.) 02/2009 to submit that the provisions thereof will

be  applicable  only  to  Confidential  Reports  which  were

initiated after 01.01.2010.  He referred to Clause 65 of

the said Navy Order which is as follows:  

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“65. Whenever the DGAFMS/ DGMS (Navy)/ DGDS

are included in the main channel of reporting as IO/

FTO, RO/ STO/ HTO or SRO, they will not make any

further endorsement as HOS.”

11. Dr. Sharma, learned Senior Counsel argued that the

ACRs for the year 2006 and 2009 could not have been

declared  technically  invalid  by  relying  upon  the  Navy

Order  (Spl.)   02/  2009  which  cannot  be  given

retrospective  operation.      On  behalf  of  the  Union  of

India,  it  was  submitted  by  Mr.  R.  Balasubramanian,

learned  Senior  Counsel  that  the  concept  of  self-

moderation  is  against  the  basic  tenet  of  objective

assessment.   An  officer  who  has  endorsed  the

Confidential Report as Initiating Officer, Reviewing Officer

and  Senior  Reviewing  Officer  should  refrain  from

endorsing as DGAFMS or DGMS.  He submitted that the

same  officer  cannot  be  permitted  to  review  his  own

assessment by virtue of his holding the post of DGAFMS

or DGMS and that it  would amount to judging his own

cause.   Instances  where  the  reporting  officer  recused

himself from self-moderation as well as instances where

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certain  reporting  officers  moderated  their  own

assessments come to light.   The Navy Order (Spl.)  02/

2009 mandates that DGAFMS/ DGMS cannot make further

endorsements as head of service if they were a part of

the  main  channel  of  reporting  as  I.O./F.T.O.,  R.O./

S.T.O./H.T.O.  or  S.R.O.   Regarding  retrospective

application  of  the  Navy  Order  (Spl.)  02/  2009,  the

Respondents contended that the practice that was being

followed  prior  to  the  Navy  Order  (Spl.)  02/  2009  was

against  the  basic  tenets  of  law  and  so  corrective

measures were taken uniformly.        

12. Though we find substance in the submissions made

on behalf of the Appellant that the Navy Order (Spl.) 02/

2009  should  not  have  been  made  applicable  for

Confidential  Reports  which  were  initiated  prior  to

01.01.2010,  we  are  not  inclined  to  interfere  with  the

order of Tribunal  for the following reason:  

The  Confidential  Reports  for  the  years  2006  and

2009 along with the grading given to the Appellant have

been examined by us.   Even if  the ACRs of  2006 and

2009 were  not  technically  invalid,  the  Appellant  is  not

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entitled  for  any  relief  as  she  would  not  have  been

promoted due to her comparative merit.  The Appellant

will not stand to gain even if the endorsement made by

the reporting officer as head of  service for  the CRs of

2006 and 2009 are taken from consideration.              We

are convinced that the Tribunal was right in holding that

no prejudice is caused to the Appellant by applying Navy

Order (Spl.) 02/ 2009.  Violation of every provision does

not furnish a ground for the Court to interfere unless the

affected person demonstrates prejudice caused to him by

such violation.   [See: State Bank of Patiala & Ors. v.

S.K. Sharma1 and Rajendra Singh v. State of M.P. &

Ors.2]     

13. For  the  aforementioned  reasons,  the  Appeals  are

dismissed.      

            ..…................................J.                                                   [L. NAGESWARA RAO]

                                          ..…….............................J.                                                        [HEMANT GUPTA] New Delhi, October 16, 2019.

1 (1996) 3 SCC  364 2 (1996) 5 SCC 460

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