SC Dismisses Commodore PK Banerjee’s Appeal Against Adverse Remarks In ACR Which Affected His Promotion [Read Judgment]

While rejecting an appeal filed by Commodore PK Banerjee, who led India’s first anti-piracy operation as the captain of INS Tabar in 2008, against an order of the Armed Forces Tribunal, the Supreme Court has held that the Chief of the Naval Staff, in his capacity of Senior Reviewing Officer/Next Senior Reviewing Officer(SRO/NSRO), is competent to undertake review of confidential report grading of Captain/ Commodore and above rank officers for moderation of grades.

The appeal was filed by a Commodore-ranking official, who was aggrieved by the grading given to him reviewing the Annual Confidential Reports (ACR), which deprived him of promotion to the rank of Rear Admiral. He claimed that he had commanded most premium ships in every rank with distinction and had commanded anti-piracy operations in the Gulf of Aden with great success. However, in the adverse entries were made in his ACR for the period 10.12.2007 to 28.11.2008 to the effect that the appellant was not fit for operational tasks and was best suited for desk job. These adverse remarks and the consequential numerical downgrading were not communicated to the appellant in contravention of para 0410(d) of Navy Order (Special) 05/2005.

The severe adverse remarks given by his RO for the period 10.12.2007 to 28.11.2008 had a cascading effect in future as well as even though his Initiating Officer (IO) had been giving very high grading each time, the same is toned down and downgraded by the SRO/NSRO, influenced by the adverse remarks recorded in his ACR for the period 10.12.2007 to 28.11.2008.

The AFT, after hearing the matter, finally agreed with the submission of the appellant insofar as it pertained to the adverse remarks for the period 10.12.2007 to 28.11.2008, and expunged the said adverse remarks, on the ground that the ACR entries were not prepared and communicated as per  the law laid down in Dev Dutt v. Union of India and Others (2009) 8 SCC 725 , then in Abhijit Ghosh Dastidar v. Union of India (2009) 16 SCC 146 and Prabhu Dayal Khandelwal v. Chairman, U.P.S.C.(2015) 14 SCC 427. However, other reliefs which were sought in respect of numerical grading given to the appellant for the subsequent period was declined with the observations that adverse remarks for the aforesaid period had no bearing on the numerical grading given for the period thereafter and it did not have any adverse effect while considering his case for next higher rank.

The appeal was filed challenging the refusal of the AFT to grant further relief modifying the numerical grading for the subsequent period on the basis of expunged remarks.

The Supreme Court bench comprising Justice AK Sikri and Justice Ashok Bhushan declined interference with the order of AFT. It was held that the downgrading of the appellant for the subsequent period was not influenced by the ACR entries for the period 10.12.2007 to 28.11.2008. While observing that the Chief of Naval Staff has the authority to review confidential report grading in the capacity of NSRO, the bench observed that the real reason for giving specific grading by the NSRO was that he had moderated the same keeping in mind the overall profile of the appellant, which was specifically recorded as well, as admitted by the appellant himself. This moderation was permissible as per Chapter 25 of the Regulations for the Navy, 1965 Part-I, which contains unique system of the Performance Appraisal Review Board (PARB). The PARB can recommend ranking to be suitably moderated with the approval of the Chief of the Naval Staff so as to bring them in tune with officers’ demonstrated past performance.

Although the appeal was dismissed, the court did not refrain from appreciating the merit of the appellant and observed that he should be duly recognized. It was observed:

The work record of the appellant shows that he is a very good officer. It also reflects that from time to time he has been given important assignments which he has been able to accomplish and discharge to the satisfaction of his superiors. It is because of these reasons he has earned commendations insofar as performance of his duties is concerned. May be he has nurtured the impression that he is the best, and that is not factually correct. However, it also cannot be denied that he has proved to be a useful officer to the Navy. Such a person deserves to get what is legitimately due to him. We, therefore, hope that the respondents would keep in mind the aforesaid factors and give him the promotion in his turn without delaying the same and his promising career would not be put in jeopardy.