Hemant Kumar Jharia v. Union of India, Through Secretary, Ministry of Home Affairs, Directorate General BSF

For Respondents : Mr. Amitesh Kumar Pandey, Central Government Counsel. Amicus Curiae: : Mr. Sharad Mishra, Advocate. Single Bench:- Hon'ble Shri Justice Sanjay K. Agrawal (WPS No.8802/2019) Order On Board 05/08/2026

#1. The petitioner has preferred this writ petition calling in question legality, validity and correctness of the order dated 11-10-2018 (Annexure P-3), whereby the competent authority has recalled its earlier order dated 12-1-2018 and downgraded the petitioner’s Annual Performance Assessment Report (APAR) for the year 2014-15 from “Good” to “Average” after having previously expunged the adverse remarks and upgraded the grading. The petitioner also eventually seeks to challenge the order dated 27-2-2019 (Annexure P-5), by which his representation against non-promotion from the post of Assistant Sub-Inspector (Ministerial) to the post of Sub- Inspector (Ministerial) has been rejected finding no merit.

#2. The aforesaid challenge has been made on the following factual backdrop: -

#3. The petitioner was appointed as Constable (General Duty) in the Border Security Force (BSF) on 1-2-2002 and he earned promotions to the posts of Head Constable (Ministerial) and Assistant Sub- Inspector (Ministerial) and became eligible for consideration for promotion to the post of Sub-Inspector (Ministerial). The Departmental Promotion Committee (DPC) assembled on 18-12- 2018 to consider the case of eligible ASI (Ministerial) officers for promotion to the post of Sub-Inspector (Ministerial) in the BSF for the vacancy year 2019. However, the DPC, in respect of the (WPS No.8802/2019) petitioner herein, found that in the APAR for the year 2014-15, he has been awarded punishment of “reprimand” under Section 19(b) read with Section 53(g) of the Border Security Force Act, 1968 (for short, ‘the BSF Act’) on 24-7-2015 and that would bar him for promotion to the post of Sub-Inspector (Ministerial) and furthermore, on 11-10-2018, the competent authority has reviewed/ recalled its earlier order dated 12-1-2018 and downgraded him from “Good” to “Average” after having previously expunged the adverse remarks and upgraded the grading, therefore, the petitioner is not entitled for promotion and accordingly, his representation was rejected by order dated 27-2-2019 (Annexure P-5). It is the case of the petitioner that by the order dated 11-10-2018 (Annexure P-3), which is one of the basis for his non-promotion, he has been downgraded, but no opportunity of hearing was given, though it was communicated, however, on account of paucity of time, representation could not be made against that order and by order dated 27-2-2019 (Annexure P-5), his representation has been rejected and furthermore, minor penalty would not come in the way of the petitioner in granting promotion. Therefore, Annexures P-3 & P-5 be set aside and the respondents be directed to consider the case of the petitioner for promotion by constituting a review DPC.

#4. Return has been filed supporting the orders impugned Annexures P- 3 & P-5 stating inter alia that on the basis of circular dated 11-9-2015 (Annexure R-4), there is no provision for further representation against the entries/grading made in the APAR; the earlier order (WPS No.8802/2019) dated 12-1-2018 has been recalled and the petitioner has been downgraded from “Good” to “Average”. The remarks made in his APAR have already been considered and finding no merit, his representation has been rejected and he was found unfit for promotion.

#5. Mr. Anand Dadariya, learned counsel appearing on behalf of the petitioner, would submit that by the order Annexure P-3 dated 11-10- 2018, the APAR of the petitioner could not have been downgraded despite there being any circular, without providing any opportunity of hearing which runs contrary to the decision rendered by the Supreme Court in the matter of State of U.P. v. Narendra Nath Sinha1. He would further submit that the punishment of reprimand awarded to the petitioner under Section 19(b) read with Section 53(g) of the BSF Act is only a minor punishment and that will not be a bar in granting promotion. Therefore, the respondents are absolutely unjustified in rejecting the representation of the petitioner and in non-granting promotion to him, as such, the writ petition deserves to be allowed.

#6. Mr. Amitesh Kumar Pandey, learned Central Government Counsel appearing on behalf of the Union of India/respondents, would support the impugned orders and oppose the writ petition.

#7. Mr. Sharad Mishra, learned amicus curiae, would submit that the petitioner must be communicated before downgrading his APAR for the relevant year from “Good” to “Average” in light of the decision of 1 (2001) 9 SCC 118 (WPS No.8802/2019) the Supreme Court in the matter of Dev Dutt v. Union of India and others2 which was further held to be a good law by the Supreme Court in the matter of Sukhdev Singh v. Union of India and others3 holding that the opportunity of hearing was necessary. He would further submit that the punishment of minor penalty would not be a bar in granting promotion.

#8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection.

#9. The petitioner has been held to be unfit for promotion by recording two findings, which is apparent from the following observation made in the order Annexure P-5 rejecting his representation: - “10. Whereas, in view of the rule position explained, DPC held on 18.12.2018 had enjoyed full discretion to devise their own methods/procedures for objective assessment of the records of all the ASIs/Min including applicant for their empanelment and eventual promotion to the rank of SI/Min during the vacancy year 2019 and the promotion committee takes the adverse entries endorsed in his APAR for the year 2014-15 and punishment awarded u/s 19(b) of BSF Act 1968 On 24/07/2015 to ASI/Min into consideration and adjudged him as “UNFIT” for promotion. Thus, denial of promotion in respect of applicant to the rank of SI/Min during the vacancy year 2019 by the DPC is well within the purview of the rules and competency of the committee.”

#10. The aforesaid order would show that the petitioner has been declared unfit for promotion on two grounds, firstly, he has been awarded punishment under Section 19(b) of the BSF Act which is principally