Holding

Adverse remarks are not "severe displeasure" requiring a show‑cause notice and may be considered in promotion decisions; the Selection Board’s procedure was lawful, so the appeal was dismissed.

Summary

Major General IPS Dewan challenged his non‑selection for promotion to Lt General, alleging that adverse remarks recorded by the Chief of the Army Staff were void because they amounted to "severe displeasure" and required a show‑cause notice, and that his statutory complaint against those remarks should have been decided before the promotion board considered his case. The Supreme Court held that adverse remarks, even if strongly worded, are not "severe displeasure" under the 1989 Memorandum and therefore do not require a show‑cause procedure. It further ruled that an officer may contest adverse remarks by filing a statutory complaint, but the complaint’s dismissal does not invalidate the promotion board’s decision. The Court found no requirement for the Selection Board to record reasons for non‑selection unless the governing rules so prescribe, and observed that the Board’s selection was based on overall merit, not merely on the adverse remarks. Consequently, the appeal was dismissed as the promotion proceedings were not illegal or biased.

Issues considered

Whether the adverse remarks constitute "severe displeasure" requiring a show‑cause notice under the Memorandum dated 5 January 1989.
Whether a statutory complaint against adverse remarks must be disposed of before an officer’s promotion is considered.
Whether the Selection Board is obligated to record reasons for non‑selection of a candidate.
Whether considering adverse remarks in promotion decisions violates the principles of natural justice.
Whether the selection process was illegal, arbitrary or biased.

Subjects

service lawpromotionadverse remarksnatural justicestatutory complaintselection boardmilitarysenioritymeritaudi alteram partem

Judgment

·~
\

A MAJOR GENERAL IPS DEWAN
v.
UNION OF INDIA AND ORS.

MARCH 7, 1995

B [B.P. JEEVAN REDDY AND K.S. PARIPOORNAN, JJ.)

Service Law

Promotion-Courl of Inquiry--Adverse remarks based on inquiry-Rep-
C resentation against remarks-Declaration 'Unfit' for promotion-Record sug-
gesting rejection for promotion was based on overall assessment-:Rejection
of representation subsequent to promotion proceedings-Held promotion
proceedings were not invalid.

Adverse Remarks-Can be made on the basis of mere assessment of
D employee-1.Jnless rule provides no enquiry or opporlunity to represent is
necessary before making remarks-Nature of adverse remarks-Does not
cease to be adverse remarks and becomes 'severe displeasure' merely because
strong language is used.

E Selection Committee-Non-selection of a candidate-1.Jnless rule re-
quires Selection Committee is not obiiged to record reasons.

A Court of Inquiry constituted against the appellant a Major-
General, reported that as In-charge he committed serious lapses in inves·
tigating certain cases. On the basis of this report the Chief of Army Staff
F made remarks for being placed on appellant's service record stating that
'he failed to appreciate the nuances of cases and to apply his professional
acumen and experience to the examination of cases. He failed to examine
the cases in detail and to consider the major issues involved. He is to be
blamed for mishandling and closing the cases and for acting in a manner
which is not expected of his rank and the higher responsibility entrusted
G to him.' Against the said adverse remarks, appellant submitted statutory
complaint to the Central Government. In the meantime the appellant,
though senior most, yet was declared unfit for promotion by the Selection
Board on the basis of his overall profile. Subsequent to the selection
proceedings his representation against adverse remarks was rejected.
H Aggrieved with his denial of promotion, the respondent filed a writ petition
532
I.P.S. DEWAN v. U.OJ. 533

in the High Court complaining that he was not promoted only on account A
of the said adverse remarks which were made against the procedure and
in violation of the principles ofnaturaljustice but the same was dismissed.

In appeal to this Court it was contended on behalf of the appellant
that (i) the remarks were void and could not have been taken into account
because in fact they were "severe displeasure" for which the authorities B
were bound to issue a show cause notice under a Memorandum dated 5th
, January 1989 which lays down procedure for award of censure to officers;
(ii) the statutory complaint preferred by the appellant against adverse
4f. remarks ought to have been disposed of before his case came up for
consideration for promotion; and (iii) no particular reason has been C
assigned for not selecting the appellant.

Dismissing the appeal, this Court

HELD: 1. There is no illegality in the procedure adopted by the D
Selection Board. The selection was not based on seniority, but on merit.
There is no allegation of malafides or bias against the members of the
Selection Board. All that can be and is suggested against the process of
selection is that the Board took into consideration the aforesaid adverse
remarks. Assuming that the said remarks were indeed taken into con-
sideration, the non- selection of the appellant cannot be faulted. Firstly, it E
cannot~ said that the said remarks alone were the cause of non- selection;
the non-selection of appellant appears to be based on an overall assess-
ment. Secondly, the statutory complaint preferred by the appellant against
the said remarks have been rejected by the Central Government, no doubt
subsequent to the said consideration. The grievance that his statutory F
complaint ought to have been considered and disposed of before his case
.-r was considered by the Selection board, is merely technical. Had his
statutory complaint been upheld wholly or partly, this grievance could
have been merited serious consideration but not when it has been dis-
missed. In the circumstances, the Court cannot sit as an appellate G
authority over the acts and proceedings of the Selection Board.
·--......_ [539-F-H, 540-A]

Baikuntha Nath Das and Anr. v. Chief District Medical Officer,
Baripada and Anr., [1992] 2 S.C.C. 299 and R.L. Butail v. Union of India
and Ors., [1971] 2 S.C.R. 55, followed. H_
534 SUPREME COURT REPORTS [1995] 2 S.C.R.

A Brij Mohan Singh Chopra v. State of Punjab, (1987] 2 S.C.C. 188, held
inapplicable.

2. Adverse remark can be made by the appropriate superior officer
on the basis of mere assessment of the performance of the office and no
enquiry or prior opportunity to represent need be provided before making
B such remarks-unless, of course, the Rules so provide.. The remedy available
to the officer in such a case is to make a representation against such
remarks to the appropriate authority or to adopt such other remedies as
are available to him in law. (538-H]

C 3. The remarks complained of cannot be understood or interpreted
as amounting to expression of "severe displeasure" within the meaning of
the Memorandum dated 5th January, 1989_ and hence it was not necessary
to follow the procedure prescribed ·by it. They purport to be and are
adverse remarks; there is no warrant for construing them as expression
of "severe displeasure". Merely because the language used is strong, the .
D adverse remarks do no cease to be adverse remarks. Be that as it may, it
cannot be said that the principle of natural justice, viz., audi alteram· \...
partem, has been violated in this case, inasmuch as the appellant could,
and did in fact, submit a statutory complaint against the remarks to the
Central Government. (539-A·B]
E
4. Unless the rules so require, the Selection Committee/Selection
Board is not obliged to record reasons why they are not selecting a
particular person and/or why they are selecting a particular person, as the
case may be. 541-D]

F Union of India v. H.P. Chothia and Ors., (1978] 2 S.C.C. 586 and The
Manager, Govt. Branch Press and Anr. v. D.B. Belliappa, (1979] 2 S.C.R.
1158, held inapplicable.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3273 of
G 1995. \

From th~ Judgment and Order dated 30.9.94 of the Delhi High Court
C.W.P. No. 4133 of 1994.

-G. Ramli;Swamy, D.N. Goburdhan, Ms. Pinky Anand and Ms. Gita
""H Luthra for the Appellant.
I.P.S.DEWAN v. U.O.l[B.P.JEEVANREDDY,J.) 535

Altaf Ahmad, Additional Solicitor General and N.N. Goswamy, Y.P. A
Mahajan and Mrs. Anil Katiyar for the Respondents.

The Judgment of the:ltourt was delivered by
_:-,~ • I

B.P. JEEVAN REDDY, J. Leave granted.
B
The appeal is preferred against an order of the Delhi High Court
dismissing the writ petition filed by the appellant at the stage of admission.
The appellant, Major General IPS Dewan, is aggrieved with, what he says,
denial of promotion to the rank of Lt. General. He says that though he was
the senior-most of the several candidates considered for promotion and his
record of service was the best of all, he was not promoted because of and. C
only on account of the adverse remarks made by Gen. S.F. Rodrigues,
Chief of the Army Staff against him on 11th May, 1993. The appellant
complains that while making the said adverse remarks the procedure
prescribed by the relevant rules was not followed nor was the principle of
natural justice observed. Accordingly, he prays for expunction of the said D
remarks and promotion to the rank of Lt. General.

The adverse remarks complaine~, of read as follows : .

~coNFIDENTIAL

ADVERSE REMARKS OF THE COAS TO BE ENDORSED
E
ON DOSSEIR IN THE CASE OF IC-12599L MAJ GEN /PS
DEWAN, MGASC, HQ SOUTHERN COMMAND

1. Consequent to a c· of I ordered by this Headquarters to inves-
tigate into the mishandling of CBI cases of RC 19(A)89- JPR and p
PE 3(A)/9A-JPR by Headquarters Southern Command in 1992, it
has emerged that Maj Gen IPS Dewan (Ex-MG IC Adm) now
MGASC Headquarters Southern Command failed to appreciate
the nuances of both cases, and to apply his professional acumen
and experience to their examination. He also failed to examine the
cases in details, or to carry out a detailed analysis and merely G
endorsed his views, based on the perfunctory adVice of the
MGASC. He had merely applied his mind to defend ASC con-·
tracting procedures and did not consider the major issues involved.
He is to be blamed for mishandling and closing the cases and for
acting in a manner which is not expected to his rank and the higher H
536 SUPREME COURT REPORTS [1995) 2 S.C.R.

A responsibility entrusted to him as MG IC Adm Headquarters
Southern Command.

2. On analysis of the ca.se, I find tpe conduct of Maj Gen IPS
Dewan, then MG IC Admn. now MG ASC Headquarters Southern
Command to be reprehensible and direct that my remarks be
B placed on record in the officer's dossier.

Sd/-
'""'<
(SF Rodrigues)
General
c COAS 1-
11th May, 1993."

With a view to satisfy ourselves, we called upon the respondents to
produce the record relating to the said adverse remarks as also the record
D concerning the consideration of the appellant and others for promotion to
the rank of Lt. General. Both the records have accordingly been placed
before us, which we have perused. We shall first refer to the circumstances
in which the aforementioned adverse remarks were made against the
appellant. ·
E The C.B.I. had registered certain cases against one H.S. Nanda, the
then DDST-61(1) sub-area. The sub-area fell within the command and
control of the Southern Command. Accordingly, the two cases against
Nanda were processed by it. The appellant was at that time Major General,
In-charge of Administration in Southern Command. The allegation against
F the several. officers including the appellant was .that they did not process
the said cases properly and in accordance with the rules, with the reswt
that the said cases had to be dropped. The allegation was that the said
cases had been dealt with by the officers in Southern Command including
the appellant in a negligent and casual manner, resulting in mishandling of
the cases. A Court of Enquiry was ordered into the circumstances concern-
G ing the mishandling of the said case. In the course of the enquiry, the Court
of Enquiry recorded the statements of several officers including the appel-
lant and submitted its report. It opined that while a malafide intent cannot
be attributed, there have been serious lapses on the part of senior officers
including the appellant in processing the said cases against Nanda. They
H set out the lapses and responsibility of each of the concerned officers .. So
I.P.S. DEWAN v. U.O.l(B.P.JEEVAN°REDDY,J.] 537

far as th'e appellant is concerned, the Court of Enquiry found that he was A
to be blamed for the manner in which he discharged the responsibility
entrusted to him as Major General, In-charge of Administration. (In the
interest of all concerned, we are desisting from extracting the exact words
used by the Court of Enquiry.) It is on the basis of the report of the Court
of Enquiry that the aforesaid adverse remarks were made by the then Chief
of the Army Staff, General Rodrigues. B
Coming to the record relating to the consideration of the appellant
for promotion to the rank of Lt. General, the Record of the Minutes of
the 55th (1994) Meeting of Special Selection Board held on 18th July, 1994
shows that for promotion of ASC officers to the acting rank of Lt. General C
in the Corps of ASC, four officers were considered. The appellant was at
Serial No. 1 in the list of four officers so considered. The Selection Board,
however, selected the officer at S.No. 4. In the counter- affidavit filed on
behalf of the respondents in this appeal, it is stated in Para III(25) that "the
petitioner has been found 'unfit' for his promotion to the rank of Lt.
General on the basis of his overall profile. The said letter (adverse D
remarks) though forming part of the dossier, but the same does not form
part of the Member Data Sheet (MOS) which is used by the members of
the Selection Boards." The record of the Selection board does not, how-
ever, bear out the said statement. We may, therefore, proceed on the
assumption that the said adverse remarks were brought to the notice of the E
Selection Board.

A fact, which is relevant, may be noticed at this stage. Against the
aforesaid adverse remarks the appellant submitted a statutory complaint to
the Central Government which was rejected as devoid of merit. The
rejection of the statutory complaint is dated October 3, 1994. F

Sri G. Ramaswamy, the learned counsel for the appellant submitted
_..r- that the aforesaid adverse remarks made against the appellant really
amount to expression of "severe displeasure" and, therefore, the authorities
were bound to follow the procedure prescribed in the Memorandum dated
5th January, 1989 on the subject of "award of censure to officers and junior G
commissioned officers". Para 15 of the Memorandum provides that before
issuing a letter of "severe displeasure" or "displeasure", the authority shall
issue a show-cause notice indicating the specific action contemplated
against the officer along with such relevant papers and documents as are
necessary t.o enable the officer to put forward his explanation effectively. H
538 SUPREME COURT REPORTS [1995) 2 S.C.R.

A Since this procedure was not followed, it is submitted, the remarks
aforesaid are void and ineffective and could not have been taken into
account while considering the appellant's case for promotion. Sri G.
Ramaswamy submitted further, on the strength of the decision of this Court
in Brij Mohan Singh Chopra v. State of Punjab, [1987) (2) S.C.C. 188, that
the statutory complaint preferred by the appellant ought to have been
B disposed of before his case came up for consideration for promotion. As
~,,matter of fact, he submitted, it happened just the other way; while the
appellant's case for promoti?n was considered in the month of July 1994 ...
his statutory complaint was disposed of only in October 1994. It is evident,
said the learned counsel, that the said ad~erse remarks have clearly and
C definitely prejudiced the appellant's case. The denial of promotion to the
appellant, submitted the learned counsel, is only and exclusively because
of the said adverse remarks. It is for this reason, said Sri Ramaswamy that
in the counter-affidavit no particular reason has been assigned for not
selecting the appellant who was the senior-most of the four officers con-
D sidered for the said promotion.
We must say that we are not impressed by any of the said submis-
sions.

The aforesaid adverse remarks were made by the highest functionary
E in the Army heirarchy, viz., the Chief of the Army Staff. The remarks were
based not upon mere observation but upon the report of a Court of
Enquiry which was appointed to go into the circumstances in which the
cases agaiiist Nanda were mishandled. The Court of Enquiry held an
elaborate enquiry wherein statements of the concerned officers including
F the appellant were also recorded. The appellant knew full well what was
the Court of Enquiry about. It may be that the appellant was not formally
charged and no regular enquiry as such was held but that was not necessary
for making adverse remarks. Indeed adverse remarks, as is well-know, can ~
be made by the appropriate superior officer on the basis of mere assess•
ment of the performance of the officer and no enquiry or prior opportunity
G to represent need be provided before majcing such remarks - unless, of
course, the Rules so provide. The remedy available to the officer in such
a case is to make a representation against such remarks to the appropriate
authority or to adopt such other remedies as are available to him in law.

H ·. We arc inclined to agree with the learned counsel for the respon-
f
I

1.P.S.DEWAN v. U.0.l[B.P.JEEVANREDDY,J.) 539

dents that the remarks complained of cannot be understood or interpreted A
as amounting to expression of "severe displeasure" within the· meaning of
the Memorandum dated 5th January, 1989 and hence it was not necessary
to follow the procedure prescribed by it. They purport to be and are
adverse remarks; there is no warrant for construing them as expression of-
"severe displeasure". Merely because the language used is strong, the B
adverse remarks do not cease to be adverse remarks. Be that as it may, it
cannot 9e said that the principle of natural justice, viz., audi alteram
partem, has been violated in this case, inasmuch as the appellant could,
and did in fact, submit a statutory complaint against the remarks to the
Central Government. ·
c
With respect to the grievance that his statutory complaint ought to
have been considered and disposed of before his case was cqnsidered by
the Selection Board, it must be said that at best the said objection is merely
technical. Had his statutory complaint been upheld wholly or partly, this
grievance could have merited serious consideration but not when it has D
been dismissed. It is not suggested that the Central Government dismissed
the said statutory complaint merely to buttress the non-selection of the
appellant by the Selection Board. No allegation of mala fides has been
made against the Central Government.

So far as the non-selection of the appellant by the Selection Board E
for promotion to the rank of Lt. G~neral is concerned, we see no illegality
in the procedure adopted by them. We have also perused the work sheets
relating to all four officers considered. Not only the appellant but two other
seniors to the person selected were overlooked. The selection, it may be
noted, was not based on seniority, but on merit. There is no allegation of p
mala fides or bias against the members of the Selection Board. All that can
be and is suggested against the process of selection is that the Board took
into consideration the aforesaid adverse remarks. Assuming that the said
remarks were indeed taken into consideration, the nqn-sdection of the
appellant cannot be faulted. Firstly, it cannot be said that the said remarks G
alone were the cause of non-selection; the non-selection of appellant
appears to be based on an overall assessment. Secondly, the statutory
complaint preferred by the appellant against the said remarks have been
rejected by the Central Government, no doubt subsequent to the said
consideration. As stated above, the situation may have been different had
the said complaint been upheld partly or wholly. In the circumstances, the H
~
I

540 SUPREME COURT REPORTS (1995) 2 S.C.R.

A Court cannot sit as an appellate authority over the acts and proceedings of
the Selection Board.

, we are also satisfied on a perusal of the relevant record that the
adverse remarks made by the Chief of the Army Staff against the appellant
are based upon and consistent with the report of the Court of Enquiry
B regarding the responsibility of and the role played by the appellant in
processing the cases against Nanda.

We make it clear that we express no opinion upon the validity or
otherwise of the orders of the Central Government rejecting the statutory
C complaint preferred by the appellant against the adverse remarks
aforesaid. If it is open to the appellant in law to question the said orders,
he can always do so in accordance with law.

So far as the decision in Brij Mohan Singh Chopra cited by Sri
Ramaswamy is concerned, it may be pointed out in the first instance that
D the said decision deals with compulsory retirement under F.R.56-J., and
not with promotion. The said decision finds fault with an order of compul-
sory retirement based upon stale adverse entries made more than,ten years
earlier. The said decision no doubt says that the representation against
adverse remarks should be disposed of before taking the said remarks into
account while deciding the question of compulsory retirement under
E F.R.56-J. This aspect has however, been expressly disseuLed from in a later
• three-Judge Bench decision in Baikuntha Nath Das and Anr. v. Chief
District Medical Officer, Baripada and Anr., [1992] 2 S.C.C. 299. Be that as
it may even if we proceed on the basis that the said adverse remarks were
taken into account by the Selection Board while considering the appellant's
F case for promotion, the decision of the Board to overlook the appellant
cannot be faulted or invalidated for the various reasons mentioned herein-
before. We reiterate that while saying so we proceed upon the assumption
that the Selection Board did take the said adverse remarks into considera-
tion. Even so, the decision of the Board not to select the appellant is not
G vitiated for the reason inter alia that his statutory complaint against the
adverse remarks was rejected by the Central Government. This is the view Jiiii-
expressed in a Constitution Bench decision irt R.L. Butail v. Union of India
and Ors., [1971] 2 S.C.R. 55, where a similar complaint was made.

Sri Ramaswamy relied upon the decision in Union of India v. H.P.
H Chothia and Ors., [1978] 2 S.C.C. 586 in support of his yet another submis-
~
I

I.P.S. DEWAN v. U.0.1.[B.P.JEEVANREDDY,J.] 541

sion that where allegations of arbitrariness are made against a Selection A
Board/Selection Committee, one of the members of the Board/Committee
should file a counter-affidavit explaining the circumstances in which the
petitioner was not selected. We are unable to find any such proposition
flowing from such decision. That was a case where neither the relevant
record was produced nor did any responsible person swear to an affidavit
with respect to reasons for which the petitioner therein was not included
B
in the Select list. That is not the situation here, apart from the fact that
there is no specific allegation of arbitrary conduct on the part of the
Selection Board. The respondents have also produced all the relevant
records which we have perused.
c
Sri Ramaswamy then relied upon the decision in The Manager,
Government Branch Press and Anr. v. D.B. Belliappa, [1979) 2 S.C.R. 458
in support of his submission that administrative orders affecting the rights
. of citizens should contain reasons therefore. We are afraid, the said prin-
ciple cannot be extended to matters of selection. Unless the rules so
require, the Selection Committee/Selection Board is not obliged to record D
reasons why they are not selecting a particular person and/or why they are
selecting a particular person, as the case may be. If the said decision is
sought to be relied upon with respect to the adverse remarks made against
the appellant, the attack should fail for the reason that the memo contain-
ing adverse remarks in this case does set out the particulars in support of E
the same. It is equally relevant to note that no allegation of ma/a fides or
arbitrariness has been levelled against the Chief of the Army Staff who
made the said remarks.

For all the above reasons, we dismiss the appeal but without costs.
F
T.N.A. Appeal dismissed.