UNION OF INDIA & ORS.versusBRIG. DEVINDER SINGH

                    [2019][2019]
                           11 S.C.R. 1
                                 11 S.C.R. 207                             207


                     UNION OF INDIA & ORS.                                 A
                                   v.
                     BRIG. DEVINDER SINGH
                (Civil Appeal Nos. 2047-2048 of 2011)
                          AUGUST 23, 2019                                  B
      [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
       Armed Forces: After action reports and Annual credential
reports – Judicial review of – Case of respondent-Brigadier that
Battle Performance Report, After-Action Report, Report of Army
                                                                           C
Headquarters Military Operations Directorate and Reports
submitted by the High-Power Committee regarding Kargil War to be
correctly recorded recognising his performance in Operation Vijay
– Direction by the tribunal that facts to be correctly entered in the
Report at the relevant places – Sustainability of – Held: Not
sustainable – After-Action Report is a compilation of the reports          D
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 – Also
reports do not have any civil consequences, thus, is not subject to
judicial review by the tribunal or the Courts – Tribunal or the Court      E
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 – Furthermore, 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
                                                                           F
involved in the Operation Vijay – Thus, the direction of the tribunal
is set aside.
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2047-
2048 of 2011.
      From the Judgment and Order dated 17.05.2010 of the Armed            G
Forces Tribunal, Principal Bench at New Delhi in T.A. No. 272 of 2010
and order dated 07.09.2010 in R.A. No. 25 of 2010
      Ms. Sonia Mathur, Sr. Adv., Ms. Priyanka Das, Ms. Chinmayee
Chandra, Vrinda Rao, A. K. Sharma, Mrs. Anil Katiyar, Advs. for the
Appellants.
                                                                           H
                               207
208              SUPREME COURT REPORTS                         [2019] 11 S.C.R.


A           Lt. Col. K. Ramesh, Vibhuti Sushant Gupta, Archana R., Himanshu
      Kalra, Ram Naresh Yadav, Advs. for the Respondent.
             The Judgment of the Court was delivered by
             HEMANT GUPTA, J.
B            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
C     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 only direction
D     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
E     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
F     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
G     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.
      1
        Tribunal
      2
        ACR
      3
H       Operation Vijay
      UNION OF INDIA & ORS. v. BRIG. DEVINDER SINGH                             209
                   [HEMANT GUPTA, J.]

       6. The learned Tribunal issued directions for correction in Para         A
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
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.                                    B
       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           C
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.
                                                                                D
       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       E
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
personal relief from the Court but only wants correct historical facts to
be drawn and declared by this Court.                                            F
       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.                                       G

       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.
Nidhi Jain                                                   Appeals allowed.   H