Major Bahadur Singh Vs. Union of India (Uoi) and ors. - Court Judgment

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constitution of india, 1950articles 16 & 226 - acr--communication of--acr, not otherwise adverse but the employee is downgraded--members of defence services--considerations which apply to other government servants in the matter of promotion and selection may not, as a matter of course be applied to defence personnel--army officer goes up in the ladder with less number of posts available in the higher rank--promotion on merit-cum-seniority basis--system of selection is ensured by concealment of identity of officers being considered--challenge to procedure not sustainable--writ petition dismissed. - - ' this is the central issue which arises in these petitions and further course of action as well as outcome of the cases at hand would have bearing on the decision of this issue. according to him, his assessments in these courses was very good. he was recommended for instructional duties as colonel after successful command of 2nd line asc battalion. from 1988-96 he was given good ratings in his acrs, as is depicted from the following extracts: (1997)iillj1sc as well as u. the apex court was of the view that the materials on record clearly reveal that the procedure adopted for recording of acrs had been elaborately provided for. further, the box grading will also need communication to the officer when assessment is low or below average (3 or less). the modalities provided for recording and communication of adverse entries clearly indicate as to in which cases the communication of adverse or advisory remarks are to be made. thereforee adverse/advisory remarks, if any, should be endorsed in these paragraphs/sub-paragraphs only. holding that the high court had overlooked these aspects, the judgment was set aside with direction to rehear the matter and consider the grievances of the appellant in the background of parameters which clearly exist. 10. we may also note that precisely this very issue came up for consideration in the case of major s. c) the officer should have been consistently recommended for promotion to the next rank. d) the officer should have done psc/ptsc/post graduate courses and/or worked well in staff/ instructional appts. h) cases involving moral turpitude, gross negligence, acts of cowardice or un-officer like behavior which reflects on the moral fiber of an officer will not be recommended for promotion. 13. in view of all this, petitioner has failed to make out any case for quashing the impugned acr. moreover, it is very clearly stated that such guidance for improvement should be given when an officer fails to show the desired improvement, only then adverse/advisory remarks should be included in his confidential report. it is well-known that a selection board, while considering the suitability of an officer for promotion to a higher post or rank, takes into consideration several factors it is not solely based on the appraisal report of the controlling officer. 13. it may be that, before the year 1985-86 and even subsequently the performance of the officer has been so good that he got marks 7, 8 and 9 in a number of years. it is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions have nexus to the facts on record, the same cannot be attacked on merits. 15. in these circumstances, we do not find any merit in this appeal as well as the other writ petitions and, thereforee, dismiss the same.a.k. sikri, j.1. one of the common issues which arises in all these petitions is - 'whether it is necessary for the respondents to communicate the annual confidential report to the concerned employee if in a particular acr, not otherwise adverse, the employee is downgraded as compared to his previous acrs?' this is the central issue which arises in these petitions and further course of action as well as outcome of the cases at hand would have bearing on the decision of this issue.2. we may point out at the outset that the cases at hand are not of civilian employees in the government. the petitioners/appellants are either members of defense services. whether different principle of law is applicable in cases of such employees belonging to disciplined forces would be the related question. for determining this question, we may discuss the facts of lpa no. 148/1997. this we do so for the reason that this lpa filed by major bahadur singh was earlier decided in his favor by a division bench of this court vide its order dated 7.2.2003. however, the supreme court, in appeal, has reversed the said judgment and remanded the case back for fresh consideration. the judgment of the supreme court in reported as union of india and anr. v. major bahadur singh : (2006)1scc368 . the observations made in this judgment shall guide our path. it is for this reason we are treating this lpa as the lead case.3. lpa no. 148/1997the appellant was granted permanent regular commission on 3.5.1978 in the army service corps (asc) of the indian army. he was promoted to the rank of major in december 1987. thereafter, he was granted substantial rank of major on 3.5.1989. during this period, he was given further professional training in 12 army courses. according to him, his assessments in these courses was very good. he was recommended for instructional duties as colonel after successful command of 2nd line asc battalion. he also got higher academic qualification, i.e. b.sc. (hons.). the appellant further claims that during the 20 years which he spent in service, he served in various capacities, both in command of troops and on staff jobs, including technical duties. his sense of responsibility, integrity and professional skill, as assessed by various superior officers, has stood out. from 1988-96 he was given good ratings in his acrs, as is depicted from the following extracts:year l.o. r.o. s.r.o. f.t.o. s.t.o. 1988 - 1989 7 7 7 7 -(jun) (may)1989-1990 6 6 6 - -1990-1991 nir - - - -(noninitiationreport)1991-1992 8 8 - 7 -1992-1993 8 7 1992-1993 8 7 - - -1993-1994 8 8 - - -1994-1995 8 8 8 - -1995-1996 8 8 1995-1996 8 8 - - -1996-1997 8 8 8 - -in the army, assessment is figurative, as is clear from the aforesaid grading. 7-8 figurative marks are considered as 'above average'. still an officer graded 'above average' with 7 marks is generally not able to make the grade and achieve higher rank of lt. colonel.after consideration of the appellant's case, he was informed by the respondents that the selection board did not recommend him for promotion to the said rank of lt. colonel. this was on the basis of selection board no. iv, which had taken place from 1.8.1995 to 11.8.1995. against non-approval of his promotion to the rank of acting colonel, the appellant put up statutory complaint on 3.10.1995 for setting aside of acr initiated on him while serving at cfl, delhi during the period 1987 to january 1990. his statutory company was, however, rejected vide orders dated 27.9.1996 on the ground that it was submitted after abnormal delay of 13 months. the appellant, thereafter, preferred petition under section 27 of the army act, which was also rejected vide orders dated 13.1.1997. during this period, the petitioner was again considered by a selection board held from 28.7.1996 to 9.8.1996 as a first review case of 1978 batch. he was again not approved for promotion. the case of the appellant was considered as a final review case of 1978 batch with same results.4. as the appellant was repeatedly denied promotion and his statutory complaints were also rejected, he preferred wp (c) no. 1774/1997 for setting aside the proceedings of the selection board and also prayed for issue of a writ of mandamus that he be assessed afresh by the selection board taking into consideration all the acrs up to date. he also prayed for setting aside of acrs for the period 1988 and 1989-90. this writ petition was, however, dismissed by a learned single judge of this court vide orders dated 29.4.1997. against the said orders, the present lpa is preferred by the appellant.5. as pointed out above, this appeal was allowed by a division bench of this court vide its judgment dated 7.2.2003. it is clear from this judgment that the main contention of learned counsel for the appellant was that recording of acr giving lower grading than what the appellant was getting earlier would amount to adverse entry, of which notice was a must. without communicating these entries to the appellant, the same could not have been considered by the selection board. it was also contended that if acrs of 1988-89 and 1989-90 are not taken into consideration for his promotion to the post of lt. colonel, there was no other ground for the respondent not to promote the appellant.this contention of the appellant found favor with the division bench. referring to and relying upon the judgment of the supreme court in the case of state of u.p. v. yamuna shanker misra and anr. : (1997)iillj1sc as well as u.p. jal nigam and ors. v. prabhat chandra jain and ors. : [1996]1scr1118 and other judgments, the division bench opined that even if a particular grading may not be adverse entry in the strict sense, but for downgrading an official the authority must record reasons on the personal file of the officer concerned and inform him of the change in the form of an advice. as it was not done in the case of the appellant, the division bench quashed the entry of 1989-90 and remanded the case back to the respondent for reconsideration for promotion to the post of lt. colonel.6. in appeal, the supreme court reversed the aforesaid decision. the argument of union of india before the supreme court was that there was fundamental mistake in the approach of the high court, inasmuch as, it proceeded on the basis as if whenever there was allotment of marks at a figure lower than for the previous period, it was downgradiation which resulted in adverse consequences and ought to have been communicated before the same was considered while considering the suitability for promotion of the appellant herein. it was contended that this conclusion was erroneous because elaborate guidelines and parameters have been prescribed. it was also contended that the judgment in the case of u.p. jal nigam (supra) had no application.while accepting the contention of the union of india, the supreme court made following pertinent observations:8. as has been rightly submitted by learned counsel for the appellants u.p. jal nigam case has no universal application. the judgment itself shows that it was intended to be meant only for the employees of u.p. jal nigam only.9. the courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. observations of the courts are neither to be read a euclid's theorems nor as provisions of the statute and that too taken out of their context. these observations must be read in the context in which they appear to have been stated. judgments of the courts are not to be construed as statutes. to interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. judges interpret statutes, they do not interpret judgments. they interpret words of statutes; their words are not to be interpreted as statutes. in london graving dock co. ltd. v. horton 1951 ac 737 : (1951) 2 all er 1 , lord macdermott observed: (all er p. 14 c-d)the matter cannot, of course, be settled merely by treating the ipsissima verba of willes, j., as though they were part of an act of parliament and applying the rules of interpretation appropriate thereto. this is not to detract from the great weight to be given to the language actually used by that most distinguished judge....7. the court also opined that circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. disposal of cases by blindly placing reliance on a decision is not proper. the apex court was of the view that the materials on record clearly reveal that the procedure adopted for recording of acrs had been elaborately provided for. there were different officers involved in the process, namely, the initiating officer, the superior reviewing officer, the first technical officer and the higher technical officer. the standards for demonstrated performance in the cases of major, lt. colonel and colonel were different. it was also pointed out that promotion to the rank of lt. colonel was virtually on merit-cum-seniority basis. the document in question provides the guidelines for assessment, which was based on the comparative merit of the overall profile of the officers within his own batch.8. other provisions, note whereof was taken by the supreme court, can be found in the following discussion contained in the said judgment:14. objectivity in the system of selection is ensured by the ms branch, by the following:concealment of the identity of the officers being considered to the members of the board. the mds placed before the members does not contain the officer's particulars, date of birth, names of the reporting officers or the numbers of the fmn./unit the officer has served, thereby denying any identification of the officer under consideration. (applicable for nos. 2, 3 and 4 selection board)15. instruction for rendition of confidential reports of the officer for 1989 has also been detailed and the following procedure of assessment is relevant:the personal qualities and variables of demonstrated performance have been selected after a considerable research on confidential reports over a period of years to cover the inherent attributes considered essential for the job content of an army officer. each quality has been defined. marks are required to be entered by the io and the ro in the columns against each quality. two marks each have been allotted for three gradiations (viz. above average 8 or 7, high average 6 or 5, low average 3 or 2) to differentiate within the same.16. in the case of majors, lieutenant colonels and colonels, three sets of demonstrated performance variables have been provided in the cr forms. these variables correspond to 'regimental and command assignments'.17. the difference in approach from captains and below, the majors, lieutenants colonels and colonels also spaced out (sic) from paras 108 and 109. para 109 is of considerable importance so far as the present case is concerned. the same reads as follows:109. low and below average assessment. - when an officer is assessed 3 marks or less in any personal quality or the aspect of demonstrated performance, then it is a matter of concern since, by and large, officers are required to demonstrate at least high average performance. in order to establish the cause and for the purpose of natural justice, the assessment needs adequate and explicit elaboration. further, such assessment should invariably be supported by verbal and written guidelines for improvement, details of which also need to be mentioned in the pen-picture.18. a reading of para 109 shows that three marks or less are considered to be adverse and in such cases verbal and written guidelines for improvement are to be given and the details are to be mentioned in the pen-picture. the brief contents (pen-picture), and objectivity of the report is provided in para 113.19. a reference is also necessary to the instructions issued on 3.2.1989. para 103 is of considerable importance and reads as follows:103. assessment contained in a cr will not be communicated to the officer except in the following contingencies:(a) when figurative assessment anywhere in the cr is low or below average (i.e. 3 marks). in such cases extract of figurative assessment (i.e. 3 marks or less) will be communicated to the officer.(b) when the brief comments (pen-picture) contain adverse or advisory remarks. in such cases complete pen-pictures (excluding the box grading) together with comments on guidance for improvement will be communicated to the officer. further, the box grading will also need communication to the officer when assessment is low or below average (3 or less).the modalities provided for recording and communication of adverse entries clearly indicate as to in which cases the communication of adverse or advisory remarks are to be made. the word 'advisory' is not necessarily adverse. great emphasis was laid on the instructions dated 21.8.1989 titled 'reflection and communication of adverse and advisory remarks in the confidential reports'. the same reads as follows:the actual pen-picture comprises the brief comments given at paras 13(e)/19(a) of the acr forms for majors to colonels or paras 13/15 of the acr form for captains and below. thereforee adverse/advisory remarks, if any, should be endorsed in these paragraphs/sub-paragraphs only. the information to be given under the column 'verbal or written guidance for improvement' (i.e. paras 18(b)/19(b) or paras 15/16) is only to support the adverse/advisory remarks reflected in the pen-picture. if there are no adverse/advisory remarks reflected in the pen-picture, there is no requirement of including details of verbal or written guidance for improvement given to the ratees during the reporting period. it is reiterated that performance counseling is a continuous process and, thereforee, the ratee must be given appropriate 'guidance for improvement' as and when noticed.holding that the high court had overlooked these aspects, the judgment was set aside with direction to rehear the matter and consider the grievances of the appellant in the background of parameters which clearly exist.9. we find from para 103 of the instructions issued on 3.2.1989, as extracted above, that there is a specific provision that assessment contained in acr would not be communicated to the officer, except in two contingencies, namely : (a) when figurative assessment is low or below average (i.e, 3 marks), or (b) when the brief comments (pen-picture) contain adverse or advisory remarks. the case of the appellant is to be decided in terms of the aforesaid provisions which are applicable to the personnel in the service of army. further, the supreme court has clarified, in no uncertain terms, that u.p. jal nigam (supra) has no application and it was intended to mean only for the employees of u.p. jal nigam. having regard to the aforesaid, it is clear that there was no necessity to communicate the acrs to the appellant for the years 1988, 1989 and 1989-90 as the figurative assessment of the appellant for these years was 7, which is 'above average'. we are of the opinion that this assessment cannot be treated to have any adverse element in it and, thereforee, it cannot be said that in the absence of communication of grading of these years to the appellant, the same could not have been taken into consideration by the selection board.10. we may also note that precisely this very issue came up for consideration in the case of major s.p. bhardwaj v. union of india : 137(2007)dlt362 . after taking note of the judgment of the supreme court in major bahadur singh (supra) and provisions of para 103 and the instructions dated 3.2.1989, the division bench of this court dismissed the writ petition. we may quote the following observations from the said judgment:18. the selection and promotion to the rank of lt. colonel and above is made by the selection board on the basis of a number of factors such as war/operational report, course grade reports, acrs, performance skill and staff appointments, honours and awards and disciplinary background etc. it was contended that the acr alone was not the sole criteria for selection. the respondents have annexed a policy letter dated 6.5.1987 with their counter affidavit and the attention of this court was drawn to para 10 of the aforesaid policy letter. at this stage, it would be useful to reproduce para 10 of the policy letter dated 6.5.1987 dealing with the selection system and the same is reproduced hereinbelow:guidelines for assessment10. these directives are approved by the coas for each rank and are comprehensive by themselves. the salient features of the guidelines are as follows:a) selection is to be based on the overall profile the officer with special stress on the performance in criteria command appointment.b) due consideration is given to officer who show consistency in overall performance and they are given preference over late starters.c) the officer should have been consistently recommended for promotion to the next rank. credit is given to those officers who have earned positive recommendations for promotion in their very first report in command.d) the officer should have done psc/ptsc/post graduate courses and/or worked well in staff/ instructional appts. however, qualification of psc, ptsc or hc is neither a substitute for mediocre performance in command nor a license for promotion.e) officers should have the potential for being employed or being rotated in staff, instructional or ere appointments.f) character qualities, disciplinary background and decorations form an important input of the overall profile of the officer and due consideration should be given while assessing border-line cases.g) while assessing officers with disciplinary background the gravity and nature of the offence and the service level at which the offence was committed should be taken into consideration.h) cases involving moral turpitude, gross negligence, acts of cowardice or un-officer like behavior which reflects on the moral fiber of an officer will not be recommended for promotion.i) performance during war forms an important fact of the overall record of the officer.11. likewise, in the case of lt. col. d.s. pandey v. union of india : 121(2005)dlt177 , the division bench dismissed the writ petition and refused to quash the acr recorded in similar manner categorically holding that u.p. jal nigam (supra) was a case relating to civil service rules and was distinguishable. it is clear from the following observations in the said judgment:12. reliance by counsel for the petitioner on the supreme court judgments in u.p. jal nigam and ors. v. prabhat chandra jain jt 1996 (1) sc 41 and state of haryana v. p.c. wadhwa air 1987 scc 1201 are related to civil service rules and are distinguishable. the propositions laid down in these does not advance his case at all. the legal position applicable regarding the communication of an adverse acr relatable to the civil services would not be attracted to the army service rules. similarly the considerations which apply to other government servants in the matter of promotion and selection may not, as a matter of course be applied to defense personnel of the petitioner's category and rank. reliance for this can be placed on lt. colonel k.d. gupta v. union of india air 1989 sc 1393 and lt. col. krishann channd v. union of india and ors. lpa 23 of 1995 decided on 11.10.1996 by a division bench of this court. the ratio of these cases was followed by a division bench of this court in 2005 ii ad (delhi) 53 m.p.s. gill v. union of india.13. in view of all this, petitioner has failed to make out any case for quashing the impugned acr. his claim for promotion also fails and this petition is accordingly dismissed.12. we may further note at this stage that the appellant had placed reliance upon circular dated 21.8.1989 dealing with communication of adverse and advisory remarks in the confidential report and particularly the following portion of the said circular:.it is reiterated that 'performance counselling' is a continuous process and thereforee, the ratee must be given appropriate 'guidance for improvement' as and when a weakness is noticed. only when an officer fails to show the desired improvement, the adverse/advisory remarks should be included in his confidential report, so that cognizance is taken of his weakness while planning his future....it is pertinent to highlight that the purpose of reflection and communication of adverse remarks is three fold viz. apprise the ratee that due cognizance of his weakness (s) has been taken, to bring his weakness to the notice of management and given him an opportunity to seek redress if he feels aggrieved due to adverse remarks. to this end and in the interest of creditability of the 'appraisal system'.... it is imperative that the entire pen picture (less box grading) and details of 'verbal and written guidance for improvement' are communicated to the ratee.submission of learned counsel for the appellant was that since performance counseling was a continuous process, the appellant should have been given appropriate guidance for improvement as and when a weakness is noticed. however, what the learned counsel has forgotten is that this circular relates to communication of adverse and advisory remarks. there was no such adverse or advisory remarks in the acrs of the appellant for the years in question. moreover, it is very clearly stated that such guidance for improvement should be given when an officer fails to show the desired improvement, only then adverse/advisory remarks should be included in his confidential report. in the case of the appellant, neither any adverse nor advisory remarks were recorded.13. we have also to keep in mind that as an army officer goes up in the ladder with less number of posts available in the higher rank, there is a stiff competition, particularly having regard to paramedical structure in the army with lesser and lesser posts in the higher ranks. promotion is on merit-cum-seniority basis. officers are assessed on the comparative merit and their overall profile. the objectivity in the system of selection is ensured by concealment of identity of officers being considered and as has been pointed out in the aforesaid judgment of the supreme court. once gloss over the issue of communication of these remarks is cleared, the following observations of the supreme court in the case of air vice marshal s.l. chhabra vsm (retd) v. union of india : (1993)iillj658sc would also be attracted:it is well-known that a selection board, while considering the suitability of an officer for promotion to a higher post or rank, takes into consideration several factors it is not solely based on the appraisal report of the controlling officer. the learned additional solicitor general produced the proceedings of the selection board of 1987 and pointed out that the selection board had postponed the promotion of the appellant on the ground that only one report was available by that time and as such decision was taken to watch the performance of the appellant at least for a year more, to assess his potentiality and suitability for discharging the higher responsibility attached to the rank of air vice marshal. the aforesaid fact has been mentioned in the proceedings of the selection board of the year 1987. in such a situation, it was neither possible for the high court, not is possible for this court to act as a court of appeal against the decision of the selection board, which has been vested with the power of selection of an officer for being promoted to the rank of air vice marshal. no oblique motive has been suggested on behalf of the appellant against any of the members of the selection board and there is no reason or occasion for us to infer such motive on the part of the members of the selection board for denying the promotion to the appellant with reference to the year 1987. public interest should be the primary consideration for all selection boards, constituted for selecting candidates, for promotion to the higher posts, but it is all the more important in respect of selection boards, meant for selecting officers for higher posts in the indian air force. the court cannot encroach over this power, by substituting its own view and opinion. according to us, there is no scope to interfere with the decision of the selection board of 1987, merely on the ground that adverse remarks, in the appraisal report of 1986, which were placed before the selection board in the year 1987, were later expunged.14. we may also usefully refer to the judgment of the supreme court in the case of amrik singh v. union of india and ors. : (2001)10scc424 and particularly the following observations therefrom:13. it may be that, before the year 1985-86 and even subsequently the performance of the officer has been so good that he got marks 7, 8 and 9 in a number of years. but ultimately, what is relevant for the purpose of this case are the acr for 5 years prior to 1990 which includes the years 1985-86 and that contains one adverse remark. it is true that earlier writ petition was allowed. there was no direction to exclude the adverse remark of 1985-86. in fact it will not be permissible to direct exclusion of the same from consideration.14. the scope of judicial review in such matters of assessment of merit for purpose of promotion has been dealt with by this court recently in the case of union of india and ors. v. lt. general rajendra singh kadyan and anr. : air2000sc2513 .15. in para 29 of the said judgment, the court stated as follows:the contention put forth before us is that there are factual inaccuracies in the statement recorded by the cabinet secretary in his note and, thereforee, must be deemed to be vitiated so as to reach a conclusion that the decision of the government in this regard is not based on proper material. the learned attorney general, thereforee, took great pains to bring the entire records relating to the relevant period which was considered by the cabinet secretary and sought to point out that there were nothings available in those files which justify these remarks. prima facie, we cannot say, having gone through those records, that these nothings are baseless. critical analysis or appraisal of the file by the court may neither be conducive to the interests of the officers concerned or for the morale of the entire force. may be one may emphasize one aspect rather than the other but in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we cannot substitute our view to that of the authorities. it is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions have nexus to the facts on record, the same cannot be attacked on merits. judicial review is permissible only to the extent of finding whether process in reaching decision has been observed correctly and not the decision as such. in that view of the matter, we think there is no justification for the high court to have interfered with the order made by the government.15. in these circumstances, we do not find any merit in this appeal as well as the other writ petitions and, thereforee, dismiss the same.