Holding

A statutory or non‑statutory complaint filed after the time limit prescribed in paragraphs 107 and 108 of the Instructions is not maintainable, and the authorities are not bound to decide it.

Summary

Major A.K. Sinha, an Army officer, was not promoted to Lt. Colonel and alleged that adverse remarks in his Annual Confidential Reports (ACRs) were the cause. He filed a statutory complaint under Section 27 of the Army Act in 1996, more than five years after the remarks were communicated, exceeding the 60‑day (extendable to 90 days) period prescribed in paragraphs 107 and 108 of the Instructions for rendering Confidential Reports. He also filed an earlier non‑statutory complaint, which was partially allowed. The High Court dismissed his writ petition and the appeal was taken to the Supreme Court. The Court held that because the complaints were not filed within the prescribed time, they were not maintainable and the authorities were not bound to decide them; consequently, no injustice was caused to the appellant and the appeal was dismissed.

Issues considered

Whether a statutory complaint under Section 27 of the Army Act is maintainable when filed beyond the 60/90 day limit prescribed in the Instructions for rendering Confidential Reports on Officers.
Whether the authorities are bound to decide a non‑statutory complaint filed out of time under the same Instructions.
Whether the appellant is entitled to have adverse remarks in his ACRs quashed and to be considered for promotion.

Legislation cited

Army Act, 1950s. 27

Subjects

ArmypromotionAnnual Confidential Reportstatutory complaintnon‑statutory complaintSection 27time limitservice lawarmed forces

Judgment

MAJOR AROON KUMAR SINHA A
V.

UNION OF INDIA AND ORS.

JULY 25, 200 I

(K.T. THOMAS AND R.P. SETHI, JJ.) B

Service Law : Armed Forces

Instructions for rendering Confidential Reports of Officers: Paragraphs
107 and 108. C
Annual Confidential Reports-Adverse remarks in-Statutory and non-
statutory complaints against-Filing of-:-Beyond prescribed period-
Maintainabi/ity of-Instructions prescribed a time-limit of 60 days extendable,
under exceptional circumstances, to 90 days for filing of statutory or non- D
statutory complains-Army Officer filed a statutory complaint against his ACRs
after lapse of more than 5 years-Held, the authorities are not bound to
decide such belated complaints.

Army Act, 1950 :

Section 27-Statutory complaint-Filing of-Beyond prescribed period--
E
Maintainability of-Held, not maintainable.

The appellant was commissioned in the Army as Second Lieutenant on
Short Service Commission and later on absorbed as a permanent
Commissioned Officer. As the appellant was not promoted to the post of Lt. F
Colonel he made a representation to the respondent authorities, which was
rejected. Paragraphs 107 and 108 of the instructions for rendering
Confidential Reports on Officers prescribed a time-limit of 60 days extendable,
under exceptional circumstances, to 90 days for tiling of statutory or non-
statutory complaints against adverse remarks in ACRs. Apprehending that
he was not promoted on account of the ACRs for the period 1989-90, the G
appellant made a statutory complaint after a lapse of more than 5 years under
Section 27 Army Act, 1950, which was rejected. However, prior to the tiling
of the statutory complaint the appellant had tiled a non-statutory complaint,
which was partially allowed. Being aggrieved the appellant filed a writ petition
before the High Court, which was dismissed. Hence the appeal. H
9
10 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A Dismissing the appeal, the Court

HELD : I. The appellant, admittedly, had not filed any statutory or non-
statutory complaint within the time prescribed under paragraphs 107 and
I 08 of the Instructions for rendering of Confidential Reports on Officers.
(13-E)
B
2. Even though the respondents were not bound to decide the non-
statutory complaint filed by the appellant in view of paragraphs 107 and 108
of the said Instructions yet they disposed of the same by partially deciding in
his favour. Therefore, no injustice has been done to the appellant by the action
C of the respondents. [12-G-H; 13-E[

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4663 of
2001.

From the Judgment and Order dated 1.11.1999 of the Patna High Court
in LPA No. 523/98.
D
David Rao and Khwairakpam Nobin Singh for the Appellant.

P.P. Malhotra, Ms. Vibha Datta Makhija and Shail Kumar Dwivedi for
the Respondents.

E The Judgment of the Court was delivered by

SETHI, J. Leave granted.

Dejected by his successive failures in getting promotion to the rank of
'.
Lt. Colonel, the appellant resorted to judicial proceedings with the object of
F getting rid of his ACRs which, at all the times, came in his way while
making, selection on the basis of comparative merit with other eligible persons
in the service of the Armed Forces. His ingenuity to overcome the hurdles,
namely, his ACRs was prompted by the letter of Ar111y Headquarters bearing
No. 32666 dated 22nd June, 1989 which, inter alia, provided that the cases
of the officers who had put in complaints against their ACRs and were
G awaiting decisions in legal course shall be given a definite grading in the
Selection Board. The appellant's venture of crossing over the stumbling block
in the form of his ACRs was frustrated by judicial pronouncements by the
High Court, firstly by the Single Judge and·then by the Division Bench vide
the order impugned in this appeal.

H The appellant claimed to have been commissioned m the Army as
MA.IOR A.K. SINHA v. U.0.1. [SETHI, J.] !1
Second Lieutenant on Short Service Commission in the month of September, A
1977. He was absorbed as permanent Commissioned Officer as a Captain
w.e.f. 1.5.1978 and was posted as Major on 1.5.1989. As he was not promoted
to the post of Lt. Colonel, he made a representation to the respondent
authorities which were rejected vide the order impugned in the writ petition.
Apprehending that he was not promoted on account of the ACRs for the B
period 1989-90, the appellant made a statutory complaint on 19th March,
1996 which was rejected after examination of the relevant records. It was
held that no injustice has been done to the appellant on account of the
illegalities alleged in his statutory complaint. It may be mentioned that prior
to filing of the statutory complaint, the appellant had availed of the remedy
of a non statutory complaint which was partially allowed by way of expunction C
of complete assessment of the 10 and SRO in CR 01187-05/88 on grounds
of subjectivity. It was also directed that the said aberrations be removed from
the CR Dossier of the appellant and he be considered for promotion by any
appropriate Selection Board in accordance with the policy.

Not satisfied with the expunction of the alleged adverse remarks, the D
appellant filed a writ petition in the High Court challenging the said order
purporting to have been passed in his favour on his complaint. In the reply
affidavit filed by the respondents it was submitted that all officers of a
particular batch were considered together with such cut off ACRs and inputs
on the basis of individual profile of officers and the batch merit before E
making the promotion. It was further submitted that ACR alone was not the
sole criterion for promotion to the higher post. Approved officers were
empanelled and then promoted in order of their seniority. The case of the
appellant was stated to have been considered thrice by the Selection Board,
i.e., a fresh consideration, first review and final review and he was not found
fit for promotion by the Board. The respondents categorically stated that F
there was no adverse entry recorded in the ACRs of the appellant for the
years I 989-90. In the light of the counter affidavit filed and failure of the
appellant to show the violation of any law or rule, the learned Single Judge
of the High Court dismissed the writ petition whereafter the appellant filed
the Letters Patent Appeal which was rejected vide the order impugned, hence G
th is appeal.

Learned counsel appearing for the appellant has drawn our attention to
various paras of"lnstructions for rendering Confidential Reports on Officers"
(hereinafter referred to as "the Instructions") to urge that the ACRs of the
appellant for the years 1989-90 are liable to be quashed being adverse and H
12 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A the appellant eligible for promotion on the basis of the Government order
dated 22nd June, 1989.

After hearing lengthy arguments from both sides and perusing the records
shown to us by the learned counsel for the respondent, we find that the ACRs
of the appellant cannot be termed to be adverse entitling him the filing of
B statutory complaint for the purpose of getting the benefit of the Government
Order relied upon by him. Even though the ACRs, particularly paras 11, 12
and 18 of which the appellant is aggrieved, were conveyed to him on 28th
December, 1990, the extract of which he returned to the authorities on 6th
November, 1990, after duly signing the same, yet no complaint, much less
C a statutory complaint, was filed by the appellant till the year 1996. Even
though the respondents were not bound to decide the non statutory complaint
filed by the appellant, yet they disposed of the same by partially deciding in
his favour by the order dated 7th February, 1996 which reads as:

"I. Reference your letter no. 308/13/A(PC) dated 23 Aug 95.
D
2. Non statutory complaint dated 12 Apr 95 submitted by IC 37110
M Maj AK Sinha, lnf(GARH) against supersession has been examined
against overall profile of the officer and other relevant documents.
After consideration of all aspects of the complaint and viewing it
against the redress sought by the complaint, the COAS has directed
E that partial redress be granted by way of expunction of complete
assessment of the 10 & SRO in CR 01/87 - 05/88, on grounds of
subjectivity.
,_
3. COAS has also directed that the said aberration be removed from
the CR Dossier of the officer and he be reconsidered for promotion
F by the appropriate Selection Board in accordance with the policy.

4. Accordingly necessary expunctions has been carried out in the
CRD of the office."

G As again the appellant was not selected for promotion to the rank of Lt.
Colonel in the final review case of 1978 batch, he carved out a ground for ·--
the litigation by filing the statutory compl~int on 19th March, 1996. This
complaint was also rejected on merits vi de order dated I st October, 1996. It
may be noted at this stage that the respondents were not obliged to decide the
said complaint in view of paras 107 and 108 of the Instructions. The said
H paras 107 and I 08 provide:
MAJOR A.K. SINHA v. U.0.1. [SETHI, J.] 13
"107. An officer who considers himselfwrongetl due to supersession A
or by any reporting officer in a CR may seek redress by making a
representation to his superior military authorities, or a statutory
complaint to the Central Government under Army Act Section 27 as
the case may be in accordance with the procedure laid down in para
361 of the Regulations for the Army (as amended) and Army Order B
132177 & 119/80.

I 08. All representations and complaints will be submitted within 60
days after the date of communication of the remarks to the officer
concerned. Under exceptional circumstances, this period may extend
to 90 days. A representation. or complaint submitted more than 60 C
days after the communication of the remarks to the officer concerned
shoi.;ld be accompanied by reasons for delay. The intermediate
authorities will not withhold a representation merely on account of
delay in submission and will comment on the justification or otherwise
of reasons for the delay. In case of time barred non-statutory
complaints, ifthe reasons for delay are not convincing, such complaints D
can be rejected on this count by the competent authority."

It is conceded before us that the appellant had not filed any statutory
or non-statutory complaint within the time prescribed under the aforesaid
paras of the Instructions. We find that no injustice has been done to the
appellant by the action of the respondents. There is no merit in the appeal E
which is accordingly dismissed but without any order as to costs.

v.s.s. Appeal dismissed.