1. This is an Original Application (OA) under Section 14 of the Armed Forces Tribunal Act, 2007, wherein the applicant is aggrieved by his non selection for the rank of Rear Admiral in Indian Navy during the Selection Boards held in 2012, 2013 and 2014. He ascribes this to the adverse report rendered by his Reviewing Officer while commanding a ship, Indian Naval Ship (INS) Tabar during the year 2007-2008 and has prayed for following reliefs:—

(a) The Annual Confidential Report (ACR) for the period 10.12.2007 to 28.11.2008 be specially reviewed for malafide reporting done by the Reviewing Officer (RO) and Senior Reviewing Officer (SRO) based on false and concocted facts in contravention to the Rules laid down in Navy Order (Special) 05/2005 on the subject. The ACR for the period also be scrutinized for adverse remarks endorsed therein by the Reviewing Officer/Senior Reviewing Officer/Chief of Naval Staff and if so found, the same be expunged.

(b) The Annual Confidential Report (ACR) for the period Jan 2009 to June 2009 be expunged for malafide reporting done by the Initiating Officer which were not corrected by the Reviewing Officer and Senior Reviewing Officer.

(c) Annual Confidential Reports covering the period August 2009 to September 2012 be reviewed pertaining to the remarks and markings of the Next Senior Reviewing Officer (NSRO)/Chief of Naval Staff (CNS) in light of the illegality of the Chief of Naval Staff (CNS) writing and moderating the Annual Confidential Reports after seeing the past record in contravention to Rules on the subject and not factoring in the remarks/reports of the Head of Indian Mission, on Annual Confidential Report Form IN-475 D.

(d) Restructuring of all his annual confidential reports in consonance with his earlier reports.

(e) Call for the correspondence regarding his award for Shaurya Chakra and direct respondents to reconsider.

(f) Costs amounting to Rupees Four Crores on various counts.

2. The brief facts of the case are:—

(a) The applicant was commissioned into the Executive Branch of Indian Navy on 01.01.1984.

(b) He claims to have an outstanding career profile right from his commission till his consideration for promotion to the Rear Admiral in 2012. He claims to have performed well in all his major assignments covering Operational, Staff and Training Billets. These include Navigation Officer of an Aircraft Carrier, Fleet Navigation Officer, Directing staff DSSC Wellington, Director of Maritime Warfare Centre, Principal Director Naval Training at Naval Headquarters, Naval Attache in London and Principal Director (Training) at the Naval Defence Academy. He has commanded most premium ships in every rank with distinction namely, 1241 RE Class, (INS Nirbhik and Vinash) as Lieutenant Commander in 1995-1996. Kora Class (INS Kulish) as a Commander in 2003-2004 and Talwar Class (INS Tabar) as a Captain in 2007-2008.

(c) The applicant's case in brief is that his Annual Confidential Report for the period 10.12.2007 to 28.11.2008 pertaining to Captain's Sea Command was willfully, deliberately and malafidely subverted by his Reviewing Officer, the then Vice Admiral JS Bedi, Flag Officer-in-Chief (FOC-in-C), West by giving him Adverse Remarks without communicating the same to the applicant in contravention of Rule 0410 of Navy Order (Special) 05/2005. Further the then Chief of Naval Staff/Next Senior Reviewing Officer (CNS/NSRO) Admiral Sureesh Mehta abetted above illegality by upholding the same instead of correcting it. This has caused significant and irreparable harm to the applicant resulting in seriously prejudicing the minds of successive Initiating Officers/Reviewing officers/Senior Reviewing Officers/NSRO and the applicant's ultimate non empanelment in all his promotions boards for the rank of Rear Admiral.

(d) The applicant filed a statutory Redressal of Grievance (ROG) on 18.10.2013, which was rejected vide order dated 07.10.2014 during the pendency of this OA.

3. The applicant contends that he topped the “Sea Board” selection in mid 2007 and was given the command of the most modern and potent Talwar class ship (INS Tabar) which was at that time one of the premium and privileged appointment reserved only for the officers who were recognized as the top most professional officers of the Indian Navy, and it was thereby admitted that he was leading amongst all his contemporaries.

4. The applicant contends that he was deployed with Indian Naval Ship (INS) Tabar in the Persian Gulf and returned after a successful operational mission on 27 October 2008 after 16 days tasking. The ship was chosen for redeployment on 29.10.2008 itself, at one day's notice, for anti piracy operations in the Gulf of Aden from amongst a host of operational ships on account of its reputation as the most professional fighting-fit unit of the Western Fleet. The ship returned to Mumbai after a 40 day deployment in unknown and hostile waters, after successfully executing anti piracy operations which included amongst others the following:—

(a) Saving of Indian merchant vessel MV Jag Arnav of Great Eastern Shipping Company, Mumbai and another merchant ship of Saudi Arabia from getting hijacked by pirates on 11.11.2008.

(b) The sinking of a suspected pirate mother vessel under guidance of Headquarter Western Naval Command (HQ WNC) on 18.11.2008.

(c) Ensuring that INS Tabar guaranteed the safety of our merchant ships and the presence of the Indian warship in the area was sufficient deterrence for the pirates to abstain from targeting Indian merchant vessels plying in the area.

5. It is the contention of the applicant that after being apprised by his Initiating Officer of his outstanding performance at sea who also informed that the applicant had been given the highest markings in the Annual Confidential Report amongst all Captains commanding ships of the Western Fleet, the only person who could have harmed the applicant in his annual confidential report was the respondent No. 5, Vice Admiral JS Bedi, FOC-in-C, West, who did not even conduct a debrief of above operation, which is an essential part of Navy's ethos.

6. It is contended by the applicant that the Operational Instructions to the commanding officer stipulated INS Tabar deployed into the Gulf of Aden under control of Headquarter Western Naval Command to keep Integrated Headquarters Ministry of Defence (IHQ MoD) (Navy) informed in all Communications and reports originating from the ship. As instruction mid way through the deployment order Tabar not to keep IHQ MoD (Navy) in the loop was initiated by the Commander-in-Chief ostensibly to keep the Higher Headquarters in the dark about the numerous operational shortcomings of Headquarter Western Naval Command that were coming to light, as also to take credit of all the improvisations and recommendations made by the ship thus depriving the ship its due credit of formulating recommendations from the deployment area in Gulf of Aden based on the ship's experience/appreciation that are largely being followed by Indian Navy, even today.

7. The applicant contends that the respondent No. 3 Assistant Chief of Personnel (Human Resources Department) and appointing authority for the applicant and also his Initiating Officer had access to the officer's dossier, used his office and authority to ascertain the numerical grading given to the applicant by his previous Reviewing officer and with that knowledge manipulated the numerical grading in the annual confidential report in such a way to cause maximum damage to the officer.

8. The Respondents Nos. 1 and 2 in their counter have stated that the applicant was promoted to the rank of Captain on 30.08.2004 and was constituted as Commodore with effect from 01.07.2010. The applicant was considered for promotion to the rank of Rear Admiral by the Promotion Board 1A (X/GS) during the year 2012, 2013 and 2014. However, the applicant could not make it to the next rank being low in batch merit. The procedure for conduct of promotion boards for officers in the Navy is contained in Naval Order (Special) 01/2012. All substantive vacancies available during a period of one year following the Promotion Board will be taken into consideration for the purpose of promotion to the rank of Rear Admiral. The Indian Navy has a steep pyramid structure and as officer(s) move up in the hierarchy vacancies are very limited in Flag ranks. The Board considers and selects officers on the basis of their overall profile and comparative merit and those who are considered meritorious enough only are empanelled for promotion. While preparing the final merit list and for recommending officers for promotion to higher rank, the Quantified System of selection is followed by the Board. The system has the following two components:—

(a) 95% weightage assigned to Annual Confidential Reports available in the present rank.

(b) 5% marks awarded by the Promotion Board for value judgment.

9. The applicant was considered thrice for promotion to the rank of Rear Admiral but was not empanelled on all the three occasions. The applicant submitted a representation against his non selection and the same was rejected by order of the Chief of the Naval Staff being devoid of merit. Again the applicant submitted a statutory representation for his non selection for promotion to Rear Admiral to the Government of India and the same was rejected being devoid of merit.

10. The applicant seeks to challenge his ACR grading covering the period 10.12.2007 to 27.01.2012 on grounds of illegal marking and reporting of his Annual Confidential Reports and his non selection for promotion to the rank of Rear Admiral. It is the case of the respondents that the scope of judicial review in marking of Annual Confidential Reports is extremely limited. It is well settled in law that as long as the Annual Confidential Reports have been written, reviewed and moderated if necessary, in accordance with the policy, rules and practice in vogue in the Service, the Courts/Tribunals cannot sit in judgment and analyse the Annual Confidential Reports and or moderate the grading as if it is sitting in appeal over the Annual Confidential Report grading of the officer concerned. The Annual Confidential Reports are recorded as per applicable policy and on this ground alone the OA is liable to be dismissed. It is argued by the counsel of the respondent that the officer is only entitled to be considered and has no indefeasible right to be promoted, is a well settled law. The promotion is not a condition of service and hence as long as an officer has been considered in accordance with the applicable policy uniformly applied across the board for all officers under consideration, no challenge can be made to the fact that he has not been empanelled.

11. The applicant in his rejoinder has objected to Shri BP Dahiya, Principal Director (OA & R) in Naval Headquarters verifying the above counter affidavit, but the same cannot be objected as the officer is dealing with the Annual Confidential Reports of Navy Officers and he is competent to reply on behalf of the Respondent 1 and 2. In this rejoinder, the applicant has also raised objections to Redressal and Complaint Advisory Board (RACAB's) actions, stating that the Chief of Naval Staff (CNS) being the head of the Navy, a junior officer heading Complaint Advisory Board cannot question him. He has also questioned the entire system of moderation being followed in Indian Navy. He has also questioned the legality of nominating another officer in place of the applicant for the prestigious 49 National Defence College Course.

12. Admiral Sureesh Mehta (Retired), who has been impleaded as respondent No. 4 in the OA has denied any wrongdoings towards the applicant by stating that in his capacity as the Chief of the Naval Staff and as the Senior Reviewing Officer, he reviewed the Annual Confidential Report of the applicant. The grading of the applicant was done based on performance of the applicant during the period in question and as per norms practiced in the Navy. He specifically denied that he acted in concert with Vice Admiral JS Bedi and abetted the illegal and malafide act of writing of the impugned Annual Confidential Report of the applicant by the latter. It is specifically denied that false and malafide inputs were rendered in the Annual Confidential Report of the applicant. He says that he graded the Annual Confidential Report of the applicant in his Sea Command report based on his satisfaction as to what he felt the performance of the applicant was during the relevant period in question and also moderated it as per norms of reporting in the Indian Navy. It is denied that irreparable harm was caused to the applicant by such moderation. He states that the deployment of INS Tabar in Persian Gulf is a matter of record and such deployments are not uncommon. Similarly, the debriefing is matter of routine procedure and same is carried out at various levels. It is denied that the deponent did not do his statutory duty of correcting the alleged wrong to the applicant, which is perception of the applicant.

13. Vice Admiral JS Bedi (Retired) who has been impleaded as Respondent No. 5 in the Original Application has also denied any wrongdoing towards the applicant. He has stated that based on his objective considerations he had graded the applicant in his official capacity as to what in his view and perception the performance of the applicant was and he accordingly graded him. He specifically denies and refutes that he was biased against the applicant and that he had willfully, deliberately and malafide by subverted his Annual Confidential Report by marking it low so as to cause serious harm to the applicant as alleged. He also specifically denies that he acted in concert with Admiral Suresh Mehta, the then Chief of the Naval Staff and the Senior Reviewing Officer and abetted the illegal and malafide act of writing the Annual Confidential Report of the applicant. He submits that he was not at all privy to the Annual Confidential Report grading given by the then Chief of Naval Staff. Hence, as per him, the allegation is not only baseless but it is blatantly false and mischievous. He feels that the allegations made by the applicant are most unbecoming of the rank and position held by him and it is clearly an afterthought made after his non empanelment to the rank of Rear Admiral. He further states that performance of one's own duty is no valor or remarkable achievement as is sought to be projected by the applicant in the Original Application. It is submitted that recommendations for grant of any award including gallantry award is done based on number of considerations including nature of qualifying act beyond call of duty as determined by the authorities in chain of command and no one can stake a claim for any such award. The applicant may have been Non Empanelled because of his overall merit and standing vis-a-vis his peers and not because of the Annual Confidential Report reviewed by the deponent as is falsely alleged in the Original Application. Briefings/debriefings are routine matters done through established chain of command as per prevalent practice in the Navy and higher commanders in chain area appraised of the events and developments though more than one channel.

14. Vice Admiral P Murugesan who has been impleaded as Respondent No. 3 has replied that he endorsed his grading in the Annual Confidential Reports based upon performance of the applicant uninfluenced by any extraneous considerations. He has denied that he bore ill-will or any grudge against the applicant since the year 2003-2004 as alleged. The contention of the applicant that he over shadowed the performance of the deponent is applicant's own perception. It was for superior Naval Authorities in chain of command to assess the performance of officers in command of Indian Naval Ships from time to time. The performances of all officers are reflected in Annual Confidential Reports, which will speak for themselves. It is denied that the deponent instead of applauding the applicant wrote him off with the knowledge of previous reports gained by virtue of the office held by the deponent as alleged.

15. It is thus evident that all private as well as official respondents have denied the allegations leveled by the applicant. These allegations of bias by the applicant are not at all substantiated and are mostly his apprehensions.

16. We also feel that it does not behave of such a senior Naval officer to level wild allegations against such senior retired and serving officers of the organization where he has served for best part of his life and reached the position of the a Commodore, where not everybody in his service reaches in a pyramidical organizational structure and there is bound to be supersession. That does not entitle anyone to defame the system. All three private respondents are senior retired/serving Naval Officers and they rightly feel that baseless insinuations and allegations tarnishes their reputation and character and ‘they reserve their rights to the take appropriate actions against the applicant in accordance with law’.

17. The Tribunal and Courts are there to see that no wrong is brought to the litigant, and towards this end the applications should be brief, to the point and factually correct as they are sworn on an affidavit. We would like to place on record that this particular OA is verbose, full of baseless and avoidable allegations, which could have best been avoided. The applicant has also wasted the time of this Tribunal by repeated interjections in the form of large number of miscellaneous applications, which delayed/prolonged the hearing for nearly three years.

18. We have heard the learned counsel for the parties and perused the original records. We are of the opinion that the applicant's impugned Annual Confidential Report for the period 10.12.2007 to 28.11.2008 has ‘Adverse Remarks’ in the pen picture by the Reviewing Officer (Respondent No. 5) in the form of comments like ‘indecisive’ ‘back seat driver’ and ‘not an operational guy’ and therefore, the same should have been communicated to the Ratee in accordance with the provisions of Navy order 5/2005. Since it has not been done, the same thus needs to be set aside and the applicant is entitled a fresh consideration for promotion to the rank of Rear Admiral. We have also perused the reports of the period 29.08.2009 to 30.09.2012 and find that these have been initiated/reviewed by different Initiating, Reviewing and Senior Reviewing Officers and are in consonance with the ratee's profile before and after that period. The argument that one particular confidential report has affected all successive reports by all Initiating and Reviewing Officers does not stand its ground and is dismissed as mere apprehensions of the applicant. It is clear from the records of No. 1 Selection Boards held in 2012, 2013 and 2014 produced before us in which the applicant was screened, that he has not been empanelled purely on his comparative merit in these boards. The applicant trying to clean up his entire profile since 2008 when the impugned adverse report was endorsed by the Reviewing officer in his confidential report cannot be allowed. It is, however, opined that the Indian Navy should have a relook at their appraisal/moderation system, especially when the Reporting Officers from other services/organizations have been involved in assessing the ratee's as Initiating/Reviewing Officers. We also feel that this Tribunal has no jurisdiction into adjudicating on who should get gallantry/distinguished awards, nor do we intend delving into the same.

19. In view of above, we set aside the entire pen picture endorsed by the Reviewing Officer in the Annual Confidential Report for the period 10.12.2007 to 28.11.2008 being an ‘Adverse Report’ and direct that the applicant be reconsidered for promotion to the rank of Rear Admiral with his changed profile within a period of three months. We also hope and trust that the Ministry of Defence will have a relook at the appraisal/moderation system being carried out in the Indian Navy and as well as in the Indian Air Force to include the validity of reports rendered by the Initiating and Reviewing Officers, especially when the ratees are serving in the Inter Service Organisations/outside their services. The Tribunal also warns the applicant for leveling unsubstantiated allegations against his superior officers as well as the organization to which he belongs.

20. The OA is partially allowed with above order. No order as to costs.