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CASE NO.: Appeal (civil)  4482 of 2003

PETITIONER: Union of India & Anr.                                    

RESPONDENT: Major Bahadur Singh                                              

DATE OF JUDGMENT: 22/11/2005

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Union of India and the Chief of Army staff, Army  Headquarters, South Block, New Delhi, call in question  legality of the judgment rendered by a Division Bench of the  Delhi High Court in a Letters Patent Appeal.  The High Court  by the impugned judgment held that though the Court cannot  moderate the appraisal and grading given to an officer while  exercising the power of judicial review yet the Annual  Confidential Report (in short the ’ACR’) for the year 1989- 90 has an element of adverse reflection leading to denial of  promotion and, therefore, the same ought to have been  communicated to the writ petitioner-respondent which has not  been done.  Though a detailed statutory complaint was filed  the same was summarily dismissed without assigning any  reason. The sting of adverseness in all events has  perilously affected and damaged the career of the writ-  petitioner though not reflected in the variation of the  marks.  Accordingly, the entry in the ACR for the year 1989- 90 was quashed and the matter was remanded back to the  respondents in the writ petition i.e. the present appellants  for re-consideration of the writ-petitioner’s case for  promotion to the post of Lieutenant Colonel. It is to be  noted that the writ petition filed by the respondent was  dismissed by a learned Single Judge and the same was  challenged in the Letters Patent Appeal.

       Background facts in a nutshell are as under:

       The respondent was considered for promotion to the rank  of Lieutenant Colonel by the Selection Boards held in August  1995, August 1996 and November 1996. He was not empanelled  on the basis of overall profile and comparative batch merit.  The respondent filed statutory complaint on 3.10.1995 for  setting aside the ACRs of 1988-89 and 1989-90.  According to  him the then initiating officer resented the amalgamation of  Food Inspection Cadre officers of ASC main stream and  disliked the DFRL trained officers. Statutory complaint of  the respondent was rejected on 27.9.1996. The respondent  made second statutory complaint which was also rejected on  17.10.1996.     The respondent filed writ petition No.1774 of  1997 before the Delhi High Court praying therein that a writ  of mandamus be issued to the appellants herein to promote  him or in the alternative he be assessed afresh by the

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Selection Board and for setting aside ACRs. for the years  1988-1990. Writ petition of the respondent was dismissed by  a learned Single Judge of the High Court by order dated  29.4.1997. Aggrieved by the order of dismissal respondent  filed LPA No.148 of 1997 before the High Court. The  appellants herein filed counter-affidavit in the said LPA.                        The High Court after going through the records of the  case came to the conclusion that there was an adverse  element in the ACRs of the respondent for the years 1988-89  and 1989-90 and, therefore, in the terms of letter dated  21.8.1989 of the Sena Sachiv Shakha (no. 32301/34/F/MS/4) he  ought to have been given performance counseling. The Hon’ble  High Court quashed the entry of the CR for the year 1988-90  and remanded the case to the appellants for reconsideration.

       The High Court was of the view that there was down  grading which was adverse to the respondent and ought to  have been communicated.

       In support of the appeal learned counsel for the  appellants submitted that the High Court has not kept in  view the correct position in law.  The fundamental mistake  in the approach of the High Court is that it proceeded on  the basis as if whenever there was allotment of marks at a  figure lower than for the previous period, it was down  gradation, resulted in adverse consequences and ought to  have been communicated before the same was considered while  considering the respondent’s suitability for promotion.  The  High court proceeded to record that the parameters for  recording of ACR was not specified and that being the  position, the fact that for the year 1988-89 the respondent  was awarded seven marks and for 1989-90 it was six marks  amounted to down grading. Since there was no challenge in  the writ petition to the effect that there were no  parameters for assessment the High Court ought not to have  introduced a fresh case of absence of parameters. Said  conclusion is erroneous because elaborate guidelines and  parameters have been prescribed.  Additionally the ACR for  1989-90 was recorded when the respondent was holding the  post of Major while for the previous period he was holding  the post of Captain.  The High Court erred in treating un- equals to be equal and proceeded on the basis as if  allotment of marks at a figure lower than for the previous  period amounted to down grading.  This is in fact really not  so.  The question of any communication did not arise because  there was no adverse entry as such.  The circumstances when  communications have to be made of adverse entries are  elaborately provided for.  As there was no averment that  parameters did not exist in the counter filed, present  appellants did not touch on that aspect.  But the High Court  overlooked this vital aspect and proceeded on the footing  that no parameters existed. On that ground alone according  to learned counsel for the appellants the High Court’s  judgment is vulnerable.  It is also pointed out that the  High Court relied on the decision of this Court in U.P. Jal  Nigam and Ors. v. Prabhat Chandra Jain and others (1996 (2)  SCC 363) to buttress its view.  According to learned counsel  for the appellants, bare reading of the said judgment  clearly indicates that it was only applicable in the case of  U.P. Jal Nigam and has no application to the facts of the  present case.

       Similarly, the decision in State of U.P. v. Yamuna  Shanker Misra and Anr. (1997 (4) SCC 7) was rendered on a

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different set of facts and has no application to the facts  of the present case.  The office memorandum on which the  High Court relied upon i.e. the letter/circular dated 21st  August, 1989 does not in any way help the respondent, and in  fact goes against him. It only lays down the modalities to  be followed when an officer is found to be not up to mark.   The performance counseling is a continuous process and the  concerned employee has to be given appropriate guidance for  an improvement as and when a weakness is noticed.  Only when  the officer fails to show the desired improvement the  adverse/advisory remarks can be included in the confidential  report.   

       In response, learned counsel for the respondent  submitted that the High Court has taken the correct view  considering the fact that serious consequences were involved  and directed communication of the entry which had adverse  consequences. The reduction in marks for a subsequent period  is a clear case of adverse consequences and, therefore, it  was correct on the part of the High Court to give direction  as contained in the impugned order.  It was also submitted  that the U.P. Jal Nigam’s case (supra) clearly points out  that when there is a down grading in the assessment by award  of lesser marks, adverse consequences are involved.

       As has been rightly submitted by learned counsel for  the appellants, U.P. Jal Nigam’s case (supra) has no  universal application. The judgment itself shows that it was  intended to be meant only for the employees of the U.P. Jal  Nigam only.

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 Courts are neither to be read as 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 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 at p.761), Lord Mac Dermot observed:

       "The matter cannot, of course, be  settled merely by treating the ipsissima  vertra 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."

       In Home Office v. Dorset Yacht Co. (1970 (2) All ER  294) Lord Reid said, "Lord Atkin’s speech.....is not to be  treated as if it was a statute definition. It will require  qualification in new circumstances." Megarry, J in (1971)  1 WLR 1062 observed: "One must not, of course, construe  even a reserved judgment of Russell L.J. as if it were an  Act of Parliament." And, in Herrington v. British Railways  Board (1972 (2) WLR 537) Lord Morris said:

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       "There is always peril in treating the  words of a speech or judgment as though they  are words in a legislative enactment, and it  is to be remembered that judicial utterances  made in the setting of the facts of a  particular case."

       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 following words of Lord Denning in the matter of  applying precedents have become locus classicus:

       "Each case depends on its own  facts and a close similarity between  one case and another is not enough  because even a single significant  detail may alter the entire aspect, in  deciding such cases, one should avoid  the temptation to decide cases (as  said by Cordozo) by matching the  colour of one case against the colour  of another. To decide, therefore, on  which side of the line a case falls,  the broad resemblance to another case  is not at all decisive."

       ***             ***             ***         "Precedent should be followed  only so far as it marks the path of  justice, but you must cut the dead wood  and trim off the side branches else you  will find yourself lost in thickets and  branches. My plea is to keep the path  to justice clear of obstructions which  could impede it."   

       The materials on records clearly reveal that the  procedure adopted for recording of ACRs. has been  elaborately provided for.  There are different officers  involved in the process, they are: Initiating Officer (in  short the ’I.O.’), the Superior Reviewing Officer (in short  ’the S.R.O.’), the First Technical Officer (in short the  ’FTO’) and Higher Technical officer (in short the ’HTO’).   As submitted by learned counsel for the appellants the  standards for demonstrated performance in the case of Major,  Lieutenant Colonel and Colonel are different. The appellant  had filed the writ application making a grievance that there  were some adverse remarks which were not communicated. The  absence of parameters was not specifically highlighted in  the writ petition. It appears that on 6th May, 1987 a  paper on the selection system was circulated. Paragraph 3  thereof reads as follows:

"Promotion upto the rank of substantive  major is carried out based upon the  length of service, provided the officer  fulfills the mandatory requirements of  such a promotion.  However, promotions  above the rank of Major are done through  process of selection."

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       This is indicative that the promotion is virtually on  merit-cum-seniority basis. The document in question  elaborately provides the guidelines for assessment.  Some of  the relevant provisions need to be noted. They are as  follows:

"Assessment of the officer is based on  the comparative merit of the overall  profile of the officers within his own  batchee.  Needless to say, the grading  of the Board is to be assessed from the  material placed before the board, and  not from personal knowledge, if any.

In case of doubt, benefit must go to the  "Service"."

       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, there  by denying any identification of the  officer under consideration. (Applicable  for Nos. 2, 3 & 4 Selection Board)."

       Instruction for Rendition of Confidential Reports of  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  gradation (viz. Above Average 8 or 7,  High Average 6 or 5, Low Average 3 or 2)  to differentiate within the same."  

       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".           The difference in approach from Captains and below and  Major, Lieutenant Colonel and Colonel also spaced out from  paragraphs 108 and 109. Paragraph 109 is of considerable  importance so far as the present case concerned.  The same  reads as follows:

"109. Low and Below Average Assessment:   When an officer is assessed 3 marks or

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less in any Personal Quality or the  aspect of Demonstrated Performance, then  it is a matter of concern since, by an  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."

A reading of para 109 shows that three marks or less is  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 paragraph 113.

A reference is also necessary to the instructions  issued on 3rd February, 1989. Paragraph 103 is of  considerable importance and reads as follows:

"103. Assessment contained in a CR will  not to be communicated to the officer  except in the following contingencies:-

(a) When figurative assessment  any where in the CR is Low or  Below Average (i.e. 3 marks). In  such cases extract of figurative  assessment (i.e. 3 or less) will  be communicated to the officer.

(b)     When the brief comments (pen  picture) contains adverse or  advisory remarks.  In such cases  completes pen picture (excluding  the box grading) together with  comments on Guidance for  Improvements 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)."

According to 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.  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 Paragraphs  13(e)/19(a) of the ACR forms for Majors  to Colonels or Paragraphs 13/15 of the

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ACR Form for Captains and below.   Therefore 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. Para 18(b)/19(b) or  Para 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 Counselling is a  continuous process and, therefore, the  ratee must be given appropriate  "Guidance for improvement" as and when  noticed."

A reading of the instructions clearly indicate that  there are different stages: first is the counseling, second  is the guidance and third is the consequences of the officer  failing to show desired improvement. Only when an officer  fails to show the desired improvement the adverse/advisory  remarks are included in his Confidential Report so that  cognizance is taken for his weakness while planning his  future placements. The High Court has clearly overlooked  these aspects and on that ground alone the judgment is  vulnerable. Additionally, it is noticed that the writ-  petitioner had merely made a grievance of non-communication  but the High Court quashed the entry for 1989-90 which is  clearly indefensible.  In the fitness of things, therefore,  the High Court should re-hear the matter and consider the  grievances of the writ-petitioner in the background of the  parameters which clearly exist. We make it clear that we  have not expressed any opinion on the merits of the case as  the matter is being remitted to the High Court for fresh  consideration.   

The appeal is accordingly disposed of.