Holding

The Supreme Court held that the High Court erred in its approach as the ACR procedures and parameters were duly prescribed and the alleged adverse remarks were not warranted, leading to dismissal of the appeal and remand for fresh consideration.

Summary

Major Bahadur Singh, a serving officer, was considered for promotion to Lieutenant Colonel by Selection Boards in 1995‑96 but was not empanelled. He filed statutory complaints to set aside his Annual Confidential Report (ACR) entries for 1988‑89 and 1989‑90, alleging adverse remarks that were not communicated and down‑grading of marks. The Delhi High Court quashed the ACR entries, held that adverse counselling should have been given, and remanded the matter for reconsideration. On appeal, the Supreme Court examined the detailed ACR procedure, noting that specific standards, grading scales, and communication rules exist, and that a reduction in marks does not automatically constitute down‑grading requiring adverse communication. The Court found the High Court had overlooked these procedural safeguards and erred in its judgment. Consequently, the appeal was dismissed and the case remitted to the High Court for fresh consideration without expressing any view on the merits.

Issues considered

The correctness of the Delhi High Court's quashing of the ACR entries for 1988‑90.
Whether the ACR assessment parameters and grading guidelines were complied with.
Whether a reduction in marks constitutes down‑grading that mandates communication of adverse remarks.
The extent of judicial review over ACRs and promotion decisions in the armed forces.
Whether the respondent is entitled to a fresh assessment by the Selection Board.

Subjects

Annual Confidential ReportACRmilitary promotionjudicial reviewadverse remarksdown‑gradingperformance counsellingselection boardmerit‑cum‑seniority

Judgment

UNION OF INDIA AND ANR. A
v.
MAJOR BAHADUR SINGH

NOVEMBER 22, 2005

[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] B

Service Law:
Annual Confidential Report (ACR)-Appraisal and grading-Judicial
review-Scope and ambit of-Selection Board held in 1995 and 1996 C
considered promotion of a Major to the rank of Lieutenant Colonel-Officer
not empanelled on the basis of overall profile and comparative batch merit-
Statutory complaint for setting aside ACRs of 1988-89 and 1989-90, rejected-
Officer filed writ petition praying that he be assessed afresh by the Selection
Board and for setting aside ACRs for the years 1988-90-High Court held
that there was an adverse element in the ACRs of the Officer/or years 1988- D
90 and 1989-90 and, therefore, he ought to have been given performance
counseling-Therefore, entry of the ACRfor the year 1988-90 quashed-High
Court also held that there was down grading which was adverse to the Officer
I
and it ought to have been communicated-Correctness of-Held: The standards
for demonstrated performance in the case of Major, Lieutenant Colonel and E
Colonel are different-The promotion is virtually on merit-cum-seniority-
There are three stages for communication ofadverse and advisory remarks in
the Confidential Reports-First stage is counseling, second is guidance and
third is the consequences of the officer failing to show the desired
improvement-The High Court had clearly overlooked these aspects-Hence,
matter remitted to High Court for fresh consideration of the grievances of the F
Officer.
The respodent was considered for promotion to the rank of
Lieutenant Colonel by the Selection Board held in 1995 and 1996 and was
not empanelled on the basis of overall profile and comparative batch merit
The respondent filed statutory complaint for setting aside the Annual G
Confidential Reports (ACR) of 1988-89, which were rejected.
The respondent filed a writ petition praying that he be assessed
afresh by the Selection Board and for setting aside ACRs for the years
1988-90. The High Court quashed the entry of the ACR for the year 1988-
385 II
386 SUPREME COURT REPORTS [2005] SUPP. S S.C.R.

A 90 holding that there was an adverse element in the ACRs of the
respondent for the years 1988-90 and 1989-90 and, therefore, the
respondent ought to have been given perforamnce counseling. The High
Court also held that there was down grading which was adverse to the
respondent and it ought to have been communicated. to him. Hence the
B appeal.

Disposing of the appeal, the Court

HELD. 1. The materials on record clearly reveal that the procedure
for recording of Annual Confidential Record (ACR) has been elaborately
C provided for. There are different o(ficers involved in the process, they are:
Initiating Officer, the Superior Reviewing Officer, the First Techincal
Officer and Higher Technical Officer. The standards for demonstrated
performance in the case of Major, Lieutenant Colonel and ~olonel are
different The respondent had filed the writ application making a grievance
that there were some adverse remarks which were not communicated. The
D absence of parameters was not specifically highlighted in the writ. petition.
(391-F-GJ

U.P. Jal Nigam v. Prabhat Chandra Jain, (19961 2 SCC 363 and State
of U.P. v. Yamuna Shanker Misra, [1997) 5 SCC 7, held inapplicable.'
,,.
E London Graving Dock Co Ltd v. Horton, (1951) AC 737, Home Office
v. Dorser Yacht Co., [1970) 2 All ER 294 and Herrington v. British Railways
Board, (1972) 2 WLR 537, referred to.

2.1. The promotion is virtually on merit-cum-seniority basis. The
paper on the selection system dated 6-5-1987 elaborately provides the
F guidelines for assessment. [392-B)

2.2. In the case of Majors, Lieutenant Colonels and Colonels, three
. sets of Demonstrated Performance variables have been provided in the
ACR forms. These variables correspond to "Regimental and Command
G Assignments". [393-A)
3. 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. (394-A)
H
U.0.1. v. MAJOR BAHADUR SINGH [PASAYAT, J.] 387

4. A reading of the instructions clearly indicate that there are A
different stages: first is the counseling, second is the guidance and third
are 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. B
The High Court has clearly overlooked these aspects and on that ground
alone the judgment is vulunerable. 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
consider the grievances of the writ-petitioner in the background of the C
parameters which clearly exist. It is made clear ~hat no opinion on the
merits of the case is expressed as the matter is being remitted to the High
Court for fresh consideration. (394-E-G)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4482 of2003.
D
From the Judgment and Order dated 7.2.2003 of the Delhi High Court
in L.P.A. No. 148 of 1997.

Gopal Subramanium, Additional Solicitor General, Dayan Krishnan,
Gautam Narayan and Ms. Sushma Suri for the Appellants.
E
Naresh Kaushik, Ms. Shilpa Chohan and Mrs. Lalita Kaushik for the
Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Union of India and the Chief of Army staff, F
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 G
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 H
\
\
388 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A 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 remand.ed 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
B 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
c 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 ·'
D 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 Selection
Board and for setting aside ACRs. for the years 1988-1990. Writ petition of
E 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
F
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
G 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
~
H that the High Court has not kept in view the correct position in law. The
U.0.1.v. MAJORBAHADURSINGH[PASAYAT, J.] 389

fundamental mistake in the approach of the High Court is that it proceeded A
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 B
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 C
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 D
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 E
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 Ors., [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 F
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 different set of facts and has no
application to the facts of the present case. The office memorandum on G
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 H
390 SUPREME COURT REPORTS [2005) SUPP. ' S.C.R.

A 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
B 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
C 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.
D
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 I,'
which rel~ance is placed. Observations of Courts are neither to be read as I

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
E 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
F be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, (I 9S I)
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.
G 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) I
H WLR 1062 observed: "One must not, of course, construe even a reserved
U.0.1. v. MAJORBAHADURSINGH [PASAYAT, J.] 391
judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington A
v. British Railways Board, (1972) 2 WLR 537 Lord Morris said:

"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." B
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 C
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 D
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."
*** *** ***
E
"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."
F
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
'LO.'), the Superior Reviewing Officer (in 'short 'the S.R.O.'), the First
Technical Officer (in short the 'FTO') and Higher Technical officer (in short G
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. H
392 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

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

C "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"."
D
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 MOS placed before the members does
E not contain the officer's particulars, date of birth, names of the
·~
I

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 \•
F 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
G 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."

H
U.O.Lv. MAJORBAHADURSINGH[PASAYAT, J.) 393

In the case of Majors, Lieutenant Colonels and Cofonels, three sets of A
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 l 08 and
109. Paragraph 109 is of considerable importance so far as the present case B
concerned. The same reads as follows:

"109. Low and Below Average Assessment: When an officer is assessed
3 marks or 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 C
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 be1n'entioned
in the pen-picture." D
A reading of para 109 show~ 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 m
paragraph 113. E
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:- F
(a) When ~gurative 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 G
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 \ow or
Below Average (3 or less)."
H
394 SUPREME COURT REPORTS [2005] SUPP. S S.C.R.

A According to the modalities prov,ided for recording and communication
of adverse entries clearly indicate as to in which cases the communication of
adverse or advisory remarks are t~· be made. Word "Advisory" is not
necessarily adverse. Great emphasi; was laid on the instructions dated
21.8.1989 titled "Reflection and Communication of adverse and advisory
B 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 ACR Form for Captains and below. Therefore·
adverse/advisory remarks, if any, should be endorsed in these
c paragraphs/sub paragraphs only. The information to be given under
the Column "Verbal or Written Guidance for Improvement" (i.e. Para
I 8(b )/l 9(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
D 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
E stages: first is the counseling, second is the guidance and third is t.he
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
F 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
G 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.

v.s.s. Appeal disposed of.