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Supreme Court of India
Surgeon Rear Admiral Manisha … vs Union Of India on 16 October, 2019Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Hemant Gupta

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)

JUDGMENT

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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