1. Dispute over non-promotion to Surgeon Vice Admiral — challenge to Annual Confidential Reports and statutory complaint disposal — appeal against Armed Forces Tribunal order. (Para 1 , 3 )
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2019 Supreme(SC) 1149
SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, JJ.
Surgeon Rear Admiral Manisha Jaiprakash – Appellant
Versus
Union of India & Ors. - Respondent
Civil Appeal No. 8896-8897 of 2012
Decided on : 16-10-2019
Advocates Appeared:
For the Appellant(s) :Harshvir Pratap Sharma, A.K. Srivastava, Tejas Patel, Meera Kaura Patel, Naresh Kumar, Advocates
For the Respondent(s):Mukesh Kumar Maroria, Advocates
For the Appellant(s) :Harshvir Pratap Sharma, A.K. Srivastava, Tejas Patel, Meera Kaura Patel, Naresh Kumar, Advocates
For the Respondent(s):Mukesh Kumar Maroria, Advocates
Important Points
IMPORTANT POINTS
Mere delay in processing of statutory complaint cannot entitle an officer to promotion if he/she is not entitled otherwise.
Wrong application of instructions will not vitiate process if the officer concerned is not prejudiced.
Mere delay in processing of statutory complaint cannot entitle an officer to promotion if he/she is not entitled otherwise.
Wrong application of instructions will not vitiate process if the officer concerned is not prejudiced.
Subject
Military Law - Promotion and Selection
Act Referred
NAVY ORDER: Cl.65
Headnote
(a) Service law - Armed forces - Promotion - Appellant alleging bias in her ACR for 2008 initiated by her colleague of same rank - Records showing not bias - On the contrary her performance is shown to have improved - Complaint rightly negative by Tribunal. (Para 5)
(b) Service law - Armed forces - Promotion - Army Regulation 364 - Appellant alleging that delay in processing of her statutory complaint affected her promotion - Not resorting to remedies mentioned in the Regulation - Tribunal rightly holding that Appellant was not entitled for relief only on the ground of delayed disposal of the statutory complaint. (Para 6)
(c) Service law - Armed forces - Earlier ACRs held invalid in view of later instructions - Contention that instructions could be used prospectively upheld - However even if effect of the instructions were ignored appellant was not entitled to promotion due to her comparative merit - Tribunal rightly held that appellant was not prejudiced by retrospective operation of the instructions. (Para 12)
Facts of the case:
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 as Surgeon Vice Admiral, she filed a statutory complaint on 15.07.2010.
The statutory complaint was disposed of by giving partial relief to the Appellant.
The Appellant filed O.A. before the Armed Forces Tribunal, Regional Bench, Mumbai which was dismissed.
Finding of the Court:
Mere delay in processing of statutory complaint cannot entitle an officer to promotion if he/she is not entitled otherwise.
Wrong application of instructions will not vitiate process if the officer concerned is not prejudiced.
Result: Appeals dismissed.
Legal Category Hierarchy
Table of Contents
2. Alleged bias in ACR recording by same-rank officer — delay in statutory complaint disposal — retrospective application of orders prohibiting self-moderation in ACR endorsements. (Para 4 , 5 , 6 , 10 , 11 )
3. No evidence of bias in ACRs — delay in complaint disposal doesn't automatically grant relief — retrospective application of Navy Order 02/2009 caused no prejudice. (Para 5 , 7 , 12 )
4. Violation of a provision does not justify judicial interference unless the affected party demonstrates actual prejudice caused by such violation. (Para 12 )
5. Appeals dismissed. (Para 13 )
6. Can an officer of the same rank initiate a Confidential Report?
Yes, under Army Orders, an officer of the same rank may initiate Confidential Reports, although they are prohibited from endorsing the recommendation for promotion to the next rank. (Para 5 )
7. Does the delayed disposal of a statutory complaint automatically entitle an officer to relief?
No, the delayed disposal of a statutory complaint does not entitle an applicant to relief, particularly if the applicant does not utilize the remedies available under the relevant regulations. (Para 7 )
8. When does a violation of a regulatory provision justify judicial interference?
Judicial interference is not warranted by every violation of a provision; the affected person must demonstrate that the violation caused them actual prejudice. (Para 12 )
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 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.”
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.
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 reassessment of the Interim Confidential Report of 2007 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 correctly was found to be not correct by the Tribunal. The Confidential Report initiated by Brigadier G.S. Manchanda as I
