REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2047-2048 OF 2011

UNION OF INDIA & ORS. .....APPELLANT(S)

VERSUS

BRIG. DEVINDER SINGH .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) The challenge in the present appeals is to an order passed by the Armed Forces Tribunal1 on May 17, 2010 directing the appellants

that  the facts  should be correctly  entered in  the reports  at  the

relevant places and that the Annual Confidential Report2 written by

Lt.  Gen.  Kishan  Pal  as  Adjudicating  Authority  for  the  period

November, 1998 to June, 1999 be expunged as a whole.

2) It  is  categorical  stand  of  the  appellants  that  the  order  of  the Tribunal so as to expunge the ACR written by Lt. Gen. Kishan Pal is

not being challenged by the appellants in the present appeals as

said part of the order of the Tribunal has been given effect to.  The

1  Tribunal 2  ACR

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only direction under challenge is that the facts should be correctly

entered in the reports at the relevant place.   

3) The respondent herein was promoted to the post of Brigadier in May, 1998 and assumed the Command of 70 Infantry Brigade then

deployed  in  Kashmir  Valley  in  counter  insurgency  duties  in

operation Rakshak in the year 1999.  His Brigade Headquarter was

associated to Ladakh Sector subsequently.  As per the respondent,

he  forecasted  the  pattern  of  Kargil  intrusion  but  the  same was

summarily dismissed by his senior officers.   

4) The grievance of the respondent is that Battle Performance Report, After-Action  Report,  Report  of  Army  Headquarters  Military

Operations Directorate and Reports submitted by the High-Power

Committee of the Government of India regarding Kargil War3 should

be  correctly  recorded  recognising  his  performance  in  Operation

Vijay.   

5) It may be stated that the above said Reports are prepared during the action and after the War is completed for review and for further

studies  at  subsequent  stages  for  strategic  purposes.  Such

documents are confidential and are not in public domain.  

6) The learned Tribunal issued directions for correction in Para 192 in the After-Action Report wherein, the impression sought to be given

is that Eastern Flank was headed by Brig. Ashok Dugal but as per

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Maj. Gen. Budhwar, GOC of 3 Infantry Division, Brig. Ashok Dugal

was  called  to  coordinate  and  assist  the  Eastern  Flank  and  not

superimposed upon the respondent.  The direction of the Tribunal

was to correct the After-Action Report accordingly.  

7) The only question is whether the respondent can seek recording of After-Action Report in the manner sought by him.  The After-Action

Report is a compilation of the reports submitted by the Officers at

the  time  of  engagement.   Such  reports  are  collected  and

maintained for the purposes of future strategic studies and have

no adverse consequences in respect of any Officer as no adverse

action is taken on the basis of such reports.  In fact, the respondent

has been conferred Vishisht  Seva Medal as the Commander of an

Infantry  Brigade  in  the  Northern  Command  who  was  given  the

responsibility  for  the  conduct  of  all  operations  in  Batalik-Yaldor

Sector during Operation Vijay.   

8) We find the  issue raised  is  more  to  take  credit  by  the  Officers engaged in  Operation  Vijay.   The reports  do  not  have  any civil

consequences, therefore, is  not subject to judicial review by the

Tribunal or the Courts.  The order having civil consequences has

already  been  set  aside  and  not  appealed  by  the  appellants.

Therefore,  maintenance  of  records for future strategic studies is

not open to challenge in exercise of power of judicial review.  

9) In fact, in the synopsis furnished by the learned counsel for the respondent, it is mentioned that the respondent does not want any

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personal relief from the Court but only wants correct historical facts

to be drawn and declared by this Court.

10) The Tribunal  or  the Court  is  not the Authority to appreciate the historical  facts as it is for the experts and Officers in the Armed

Forces to record such facts in terms of the procedure established

by  them.   This  Court  neither  has  the  expertise  nor  has  the

jurisdiction  to  sit  over  the  reports  furnished  by  the  Officers  in

respect of credit to the Officers involved in the Operation Vijay.   

11) Consequently,  the  direction  of  the  Tribunal  to  correct  the  After- Action Report  or  other such reports  cannot  be sustained and is,

therefore, set aside.  The appeals are accordingly allowed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; AUGUST 23, 2019.

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