Judgment:
Thomas Mathew, Member (A):
1. The applicant is a serving medical officer of the Indian Navy who is aggrieved by his rejection to the next rank by the promotion board. He has filed this application with a prayer to review his relevant records and to promote if found suitable.
2. The applicant holds the rank of Surgeon Captain in the Navy and was screened for promotion to the rank of Commodore by three promotion boards between 2008 and 2010. In all these boards he was found in 'Non select' category. Immediately after, the first promotion board on 06/11/2008, he had filed a statutory complaint which gave him partial relief by expunging Box Gradings of Initiating Officer (IO), Reviewing Officer (RO) and First Technical Officer (FTO) in the Annual Confidential Report (ACR) of 2004. He was put through a Review Board after expunging the Box Gradings. However, he still did not make it to the 'select' grading. Once again after the third Promotion Board held on 24/11/2010, he filed another statutory complaint which resulted in the numerical assessment of Director General Medical Services (Navy) in the ACR of 2007 being expunged. He was thereafter put through a Review Board on 02.03.2012 which placed him again in 'Non select' category. This application was filed thereafter with following prayers:
(a) Direct DGAFMS to produce records of applicant's ACR (2005 to 2009) for the promotion board held in the year 2010.
(b) Direct DGAFMS to intimate the cut off for the said promotion board in 2010.
(c) Direct respondents to produce the remarks and recommendations of the Naval Medical Directorate, DGMS (Navy) and DGAFMS on applicant's statutory complaint of 2010.
(d) The Tribunal to check whether the numerical markings in the applicant's ACR are consistent with posts and responsibilities shouldered by him keeping in view the trend of numerical markings in the medical branch.
(e) If these apprehensions are found genuine issue necessary orders to undo the injustice.
(f) Issue other reliefs and cost of proceedings.
3. The applicant has averred that he was the Commanding Officer (CO) of INHS Jeevanti during 2005 to 2007 and then posted at the offices of the DGMS (N) as Director Medical Services (Personnel) which is a key portfolio of Indian Navy. These postings reflect the capability and integrity of the applicant and its recognition by the Indian Navy. However, his non-empanellment to the next rank is due to the low numerical markings awarded by his superiors.
4. It is submitted by the applicant that the award of numerical marks in the ACR in Navy is rational and marks of '8' is considered exemplary. This grading is awarded uniformly in the Navy. However, in the Army and Air Force appraisal is liberal compared to the Navy. Since it is the numerical marks that matter in promotion boards, there has to be a common objectivity in awarding these marks. It is submitted by the applicant that cut off marks for promotion in Medical Service is in the region of 8.5 to 8.6 marks. In the Navy generally no one is marked above 8.5 and therefore a Medical Officer of the Indian Navy is at a disadvantage when overall comparison is made by the promotion board.
5. It is submitted by applicant that the 'low marking' in the Navy is due to the ignorance of the Initiating Officer (IO), the Reviewing Officer (RO) and the Senior Reviewing Officer (SRO) of the marking trends in the Army and Air Force. Thus the Naval Officers are graded with lower marks. It is the DGAFMS Office where ACRs from all the three services are received and scrutinized that such inconsistencies should be removed and a level playing field be provided to ratees of all the three services. In case this is not done, when any statutory complaints are received, necessary relief should be given to deserving officers. The DGAFMS should also ensure that numerical markings obtained by an officer is consistent with similarly placed officers with matching responsibilities.
6. It is averred by applicant that in his statutory complaint, he had requested for a review of his ACRs from 2005 to 2009. The ACRs on which he is apprehensive about is the first two reports he earned as CO of INHS Jeevanti in 2005 and 2006. His immediate superior who is the Initiating Officer (IO) was unlikely to have been aware of the numerical marking trends of Medical Officers in other services. INHS Jeevanti being in a peripheral station, the RO and the FTO are away in other stations and they see the ratee only once or twice in the assessment year. Whereas in a bigger station they frequently interact. He has apprehended that the IO out of ignorance gave him low grading and the RO and SRO followed suit. This changed in 2007 when his superior officer asked him about these details and then wrote his ACR. Later the applicant was posted to the Naval HQ and was assessed by Senior Officers who were aware of the cut off marks and therefore would have fairly assessed him. Considering the fact that he was retained as the CO of INHS Jeevanti for three years and thereafter posted to a key and highly challenging post at Naval HQ, his numerical assessment should have been considered inconsistent and expunged. Since the applicant cannot verify his ACR markings being confidential, he has prayed that the Tribunal check the facts and redress the grievances of the applicant.
7. The respondents have averred that promotion in the Armed Forces Medical Services are vacancy based and the merit list is prepared of all the officers of the batch with same parameters. The promotion of officers of the rank of colonels and equivalent in Navy and Air Force and above are held under a common promotion board as per Government of India, Ministry of Defence letter No.10(1)/2004/D(Med) dated 14.01.2004. This promotion policy is amended from time to time. It has been submitted that the reports are written and numerical marks awarded based on the actual demonstrated performance of the officer during that particular year. The report initiated by the IO is reviewed by the R.O. and then by the SRO. All these officers are senior to the reportee and well versed with rules and regulations on initiating and processing ACRs. The multi-tier reporting system is moderated and balanced by the 'Senior Reporting Officer'/Higher Technical Officer. Naval Order (Spl)-2/99 has laid down detailed instructions for the initiation and review of the ACR of a Naval Officer. The applicants ACRs were initiated and reviewed as per existing orders. The promotion boards which screened the applicants suitability for promotion were also conducted as per the orders on the subject. Applicants two statutory complaints after the first and the third promotion board were analysed and processed by the competent authority and he was given redressal also. The original ACRs as well as the promotion board proceedings and his statutory complaints with recommendations by various officers in hierarchy have been produced for the perusal of the Tribunal.
8. It is submitted by respondents that the applicant has been considered by duly constituted Promotion Boards which graded him NS (Not Selected at Present) on account of comparative merit. The details of the three promotion boards with regard to applicants position vis-avis the position of the last officer empaneled for promotion are as follows:-
| Date of Promotion Board | Merit Position of Last Officer empaneled | Merit position of applicant. |
| 6.11.2008 (1st chance) | 77 | 181 |
| 24.11.2009 (2nd chance) | 48 | 120 |
| 24.11.2010 (3rd chance) | 52 | 75 |
10. It is submitted by the respondents that the reporting channel in the Armed Forces Medical Services is by multi-tier assessment and has both administrative and technical endorsements by eight senior officers. The channel of reporting and the minimum period of service with each level of reporting is laid down. At higher level physical interaction may be less, but the Reporting Officers ensure that they have adequate inputs about the capability and performance of the officers under them. It is contended that the perusal of the applicant's records would prove that he has been graded as per the norms laid down and there is no bias or illegality in the promotion boards or processing of the statutory complaints of the officer. The officer was considered for promotion along with his batch mates and based on the overall merit he was considered 'Not select'. His contentions in statutory complaints were given due weightage and reliefs given in both occasions. However, the applicant still did not make the grade for promotion to the next rank.
11. We have heard both sides and perused the documents that have been produced before the Tribunal. The respondents were directed to produce the applicant's ACRs, promotion board proceedings and the files dealing with the statutory complaints. These were also perused by us.
12. The main contention of the applicant is that he was awarded low numerical marks by his IO, RO and SRO mainly due to the ignorance of the IO regarding the marking trends in the Army and Air Force. He has contended that the markings in the Army and Air Force are liberal as compared to the Navy which should be moderated at the level of the Director General of Armed Forces Medical Services. He is apprehensive that his statutory complaints were not processed properly. He also feels that the numerical markings in his ACRs should be consistent with the posts and responsibilities shouldered by him keeping in view the trend of numerical marks in the Medical Branch.
13. The ACRs of the relevant period i.e. from 2004 to 2009 were scrutinized by us. The Box gradings of IO, RO and FTO in the report of 2004 were expunged and subsequently the numerical assessment of the DGMS (Navy) in the report of 2007 was also expunged. All his reckonable report from 2004 onwards are 'outstanding' as per numerical markings. These reports are initiated and reviewed by senior officers of the Navy of the rank of Commodores, Rear Admirals and Vice Admirals. The one report of 2004 which was initiated by a 'Captain' of the Navy has been expunged. We do not find any inconsistency in the marks awarded to the applicant in these ACRs . In the ACRs of 2004 and 2007 after redressal, his overall average improved and is consistent with markings of other reports. It is true that the marks obtained by him while serving at the office of the DGMS (Navy) is higher than the ones earned by him earlier.
14. It is a well established dictum that Annual Confidential Report of an individual is written based on his performance in that appointment during that year. Previous or subsequent year's performance cannot be used as a yardstick to moderate or enhance a particular assessment. Further, there cannot be any uniformity in marking based on the appointment held and responsibilities shouldered by the ratee without considering the individual's actual performance. Such a step would totally defeat the purpose of the ACR. There is possibility of certain amount of subjectivity or bias in the marks awarded. However, in this case, there is no such allegation against any of the IO or RO by the applicant. They were all very senior officers of the Navy and it is expected that they would be fair and rational in their assessment. We do not intend to go into the aspect of 'liberal trend' in the numerical markings in the Army and Air Force. This is a matter for the Naval and Medical Authorities to look into.
15. There is no allegation as such against the Promotion Boards. On perusal of the board proceedings we find that they have been carried out as per laid down instructions. The applicant's marks are reflected as per his ACR and qualification and the redressal granted are also entered at the appropriate place. There are Naval Officers who have been graded 'select' and 'Non select' along with him. There are large number of Army and Air Force officers also who are in the 'non select' category . We are of the view that the applicant's candidature has been considered appropriately and result arrived at based on merit.
16. The respondents have processed the statutory complaint of the applicant dated 23.03.2011 against his supersession. We have perused the file and the analysis of the issues involved by the DGMS (Navy), DGAFMS and the Naval Hqs. There are differing views expressed in processing the complaint, but we find that the issues raised have been analysed logically and in detail. We, therefore, do not find any mistake or wrongdoing in the processing of the applicant's statutory complaint by the respondents.
17. In the matter of Air Vice Marshal S.L.Chhabra v. Union of India, 1993 Supp (4) SCC 441, the Honourable Apex Court has held that âaccording to us, neither the High Court nor this Court can moderate the appraisal and the grading of the appellant for a particular year. While exercising the power of judicial review, a Court shall not venture to assess and appraise the merit of the grading of an officerâ.
18. The applicant's case has been considered in depth by us keeping in view the principles laid down by the Apex Court. His performance was evaluated by senior officers of the Navy including the Medical branch. His promotion board consisted of the 'Vice Chiefs' of Army, Navy and Air Force and the Director General of the Armed Forces Medical Service. His statutory complaint was considered by the DGMS (Navy), the DGAFMS and the Chief of Personnel (Vice Admiral) and perused by the Chief of Naval Staff before submitting it for direction of the Ministry of Defence. We have found no reason to interfere in the actions of the respondents in this matter. The applicant had brought out an issue regarding the anomaly in numerical marking systems in the three services. However, it is for the Naval and Medical authorities to look into this matter if at all any merit is found in this aspect.
19. In the result, the Original Application is dismissed.
20. No cost.
21. Issue free copies to all.