High Court
Case Details
WP(C) 2001/2007 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER
Legal Reasoning
Aggrieved by the refusal of the respondent authorities to promote hi m to the rank of Second-in-Command in the Border Security Force ( (cid:28)BSF (cid:29)) for two years in a row i.e. in the year 2005 and 2006 this writ petition is filed by him to seek the intervention of this Court.
Legal Reasoning
2. The case of the petitioner, in a nutshell, is that he joined the BSF on 19-6-1968 as a Constable, was promoted to Platoon Commander in July, 1972, was a gain promoted in the rank of Inspector in June, 1984 and was further promoted in the rank of Assistant Commandant on 29-1-1992. He was again promoted to the ran k of Deputy Commandant with effect from 7-10-1998. He was then considered for pr omotion to the post of Second-in-Command by the Departmental Promotion Committee (DPC) for the year 2005-06 on 1-4-2005 but was assessed as ineligible due to no n-completion of the mandatory courses as on 1-1-2005, which was the crucial date for determining the eligibility for such promotion vide DOP & T instructions No . 22011/9/98(Estt(d) dt. 1-2-1999. There is no dispute that as per the Border Se curity Force (General Duty Affairs) Recruitment rules, 2001, qualifying in one o f the courses of Medium Machine Gun/Mortar/Field Engineering/Battalion Support W eapon is mandatory for further promotion from Deputy Commandant to Second-in-Com mand. He did not complete any of these mandatory courses, the petitioner was not considered for promotion by the DPC. He was again considered for promotion to t he same post by the DPC on 7-3-2006, but he was found (cid:28)Unfit (cid:29) as he could not ma ke the bench mark grading in his confidential record of service apart from his b eing placed in the low medical category (SIHIAIP3(T-48)E1. The contention of the respondent authorities is that the petitioner was downgraded. 3. It is submitted by Mr. B. Sarma, the learned counsel for the petitioner , that as the petitioner had completed the mandatory course of 81 MM Mortar on 1 1-1-2005, which exceeded the cut-off date of 1-1-2005 by just ten days, the resp ondent authorities should have condoned this marginal shortage for enabling him to be eligible for consideration to the rank of Second-in-Command. The learned c ounsel further contends that as a disciplined and dedicated officer, who made it to the rank of Deputy Commandant from the lowest rank of Constable in the BSF, who had earned very good grading in the past, it is a matter of surprise that wi thin 12 months, he had been downgraded from good to average or very good to good : this is presumed to be adverse and below the benchmark of (cid:28)Very Good (cid:29) for prom otion in the rank of Second-in-Command. He contends that every entry in the ACR ? poor, fair, average, good or very good ? should have been communicated to the petitioner within a reasonable period and having omitted to do so, such downgrad ed ACR should not have been taken into consideration or, at any rate, he should have been given an opportunity to make representation against such entry before considering his case together with other eligible candidates for the promotion. In this view of the matter, submits the learned counsel, the impugned promotion order is liable to be set aside. 4. Mr. M. Bagawati, the learned Central Government Counsel, appearing for th e respondents, defends the impugned promotion orders and maintains that there wa s no question of condoning 11 days so as to make eligible for promotion to the r ank of Second-in-Command and as he could not qualify for the eligibility conditi on as on 1-1-2005, he was rightly not considered for the promotion. According to the learned CGC, the bench mark for promotion from the rank of Deputy Commandan t to Second-in-Command is (cid:28)Very Good (cid:29), which could not be earned by the petition er thereby making unfit for the promotion even in the next DPC held in the succe eding year and that as there was no adverse remark in his grading, such grading was not communicated to him. He contends that the DPC in finding the petitioner to be unfit for such promotion for two years did not commit any illegality or pr ocedural impropriety calling for the interference of this Court. He, therefore, submits that there is no merit in this writ petition, which is liable to be dism issed with cost. 5. In so far as the non-consideration of the case of the petitioner by DPC in 2005 is concerned, in my judgment, the petitioner has no legitimate grievanc e to make for the simple reason that he admittedly did not complete the mandator y course for Medium Machine Gun/Mortar/Field Engineering/Battalion Support Weapo n on 1-1-2005 which is the crucial date for determining eligibility for promotio n for the vacancy year 2005-2006 vide the Office Memorandum No. 22011/9/98-Est(D ) dated 1-2-1999 issued by the Government of India in the Ministry of Personnel, Public Grievances an Pensions (Department of Personnel and Training): he comple ted this course only on 11-1-2005. Therefore, the DPC did not commit any illegal ity in not considering the petitioner for the promotion in 2005. However, on the question of the eligibility of the petitioner for the subsequent year i.e. 2006 , as indicated earlier, the petitioner was not found fit for the promotion as he could not make the bench mark of (cid:28)Very Good (cid:29) as per his confidential record. Th e stance taken by the respondents is found at paragraph 16 of their affidavit, w hich reads thus:
Decision
(cid:28)16. That as regards the statements made in para 13 of the writ petition, it is denied that the petitioner was downgraded in 2005-2006. It is submitted that the bench mark for promotion up to the rank of Deputy Commandant is ’Good’ and from Deputy Commandant to the rank of Second-in-Command is ’Very Good’ which was not made by the petitioner as his confidential record of service. Since there is no adverse entry in his ACR as such the same was not conveyed. However, the gradin g in ACR is not being communicated to the concerned officer as per existing inst ructions. Respondents have acted as per procedure/instructions issued on the sub ject, hence the averments made by petitioner blaming respondents for causing suf ferance to petitioner is totally false and misleading and not admitted. (cid:29) 6. Thus from the paragraph extracted in the foregoing, it is seen that tho ugh the respondents denied that there was down-gradation of the ACRs of the peti tioner, they somehow did not give him the benchmark of (cid:28)Very Good (cid:29). There is no dispute that the respondent authorities are governed by the Office Memoranda dat ed 8-2-2002 and dated 1-2-1999 issued by the Department of Personnel, Public Gri evances and Pensions. The respondents also do not deny that the entries in the A CRs of the petitioner for the qualifying years were not communicated to the peti tioner: they only said that such communication was not necessary as there were n o adverse remarks in his ACRs. The position of law is that non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainl y entails civil consequences because it may affect his chances of promotion or f or getting other benefits. Hence, non-communication of such entry would be arbit rary, and, as such, violative of Article 14 of the Constitution. Re-affirming th is legal position, a three-Judge Bench of the Apex Court in Sukhdev Singh v. Uni on of India, (2013) 9 SCC 566 held: (cid:28)8. In our opinion, the view taken in Dev Dutt7 that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is l egally sound and helps in achieving threefold objectives. First, the communicati on of every entry in the ACR to a public servant help him/her to work harder and achieve more that helps him in improving his work and give better results. Seco nd and equally important, on being made aware of the entry in his ACR, the publi c servant may feel dissatisfied with the same. Communication of the entry enable s him/her to make representation for upgradation of the remarks entered in the A CR. Third, communication of every entry in the ACR brings transparency in record the remarks relating to a public servant and the system becomes more conforming to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR ? poor, fair, av erage, good, very good ? must be communicated to him/her within a reasonable per iod. (cid:29) 7. The foregoing paragraph unambiguously mandates the respondent authorit ies to communicate every entry in the ACR of the petitioner irrespective of whet her such entry was poor, fair, average, good or very good. As the respondents ha ve admittedly did not communicate the entries in the ACRs of the petitioner, suc h entries could not have used by the DPC to disqualify him from consideration fo r promotion in the rank of Second-in-Command. This then takes me to the next iss ue, namely, whether the petitioner was medically unfit when his case was due for consideration in 2006. In this context, the case of the respondent is projected at paragraph 18 of their affidavit, which is as follows: (cid:28)18. That as regards the statements made in para 15 of writ petition, it is s tated that the petitioner was in SIHIAIP2(T-48)E-1 medical category from 12-2-20 04 and was due for re-categorization medical (sic) Board in 2005. Officer was pl aced in low medical category since 21-3-2001. Due to his low medical category he was not detailed to undergo courses which need strenuous physical exertion. The petitioner was detailed in FE Course Serial No. 99 conducted w.e.f. 1-9-03 to 1 1-10-03 as per his central seniority, but the petitioner submitted that he had b een placed in low medical category and not in a position to attend the course (C opy enclosed). Petitioner was detailed on junior command course serial No. 83, b ut he submitted his unwillingness for the same and accordingly he was taken off from junior command course Serial No. 83. Later on petitioner was detailed on ju nior command course Serial No. 84 conducted w.e.f. 5-7-2004 to 14-8-2004 but he did not attend the same. Since no other FE/MOR/MMG/BSW course was to run except 81 mm MOR course Serial No. 71 conducted w.e.f. 3-11-2004 to 11-1-2005 during th e training year 2004-05 as the petitioner was detailed on 81 mm MOR course Seria l-71 (Annexure (R-3 R-4). Further as per DOPT instruction course had to be compl eted before 1-1-05. (cid:29) 8. From the averments made by the respondents in the foregoing, it is quite obvious that the petitioner was placed in low medical category i.e. SIHIAIP2(T- 48)E-1 for sometime from 12-2-2004 and was due for re-categorization by Medical Board in February, 2005. However, on going through the file produced by the lear ned CGC, it is revealed by the Medical Board Proceeding dated 2-4-2005 that the Board had given its opinion that the petitioner was fit to remain in Medical Cat egory SHAPE-I. However, the Commandant, 128 BN BSF issued the order dated 13-3-2 006 upgrading the Medical Category of the petitioner as SHAPE-I (One) only w.e.f . 10-01-2006. At this stage, I may refer to paragraph 2 (a) of the letter dated 23-8-2001 issued by the Deputy Inspector General (Personnel), Directorate Genera l Border Security Force (Personnel Directorate), New Delhi to all concerned, whi ch is in the following terms: (cid:28)2. It may be seen from the notified Recruitment Rules for Group ’A’ GD officers cadre, that besides service eligibility the following criteria has also been pr escribed for promotion to next higher rank:- (a)Appointment on promotion shall only be considered if the incumbents are in pr escribed medical category SHAPE-I or medical category as prescribed in MHA lette r No. 1/45020/45/99-Pers-II dated 14 Sep’ 2000. (cid:29) 9. The provision so extracted will reveal that for promotion of Group ’A’ GD o fficers such as the petitioner, such officers should be in the medical category of SHAPE-I when his case is due for consideration. Though the cut-off date is no t mentioned therein, it is obvious that the officer to be considered for the pro motion should be categorized as SHAPE-I on or near about the date when DPC holds the selection proceeding. In the instant case, what stands out is that there is absolutely no evidence to show that the petitioner was categorized as low medic al category as contended by the respondent authorities when he was considered fo r promotion to the rank of Second-in-Command for the year 2006. I have earlier r eproduced paragraph 18 of the counter-affidavit in extenso wherein no whisper of statement was made by the respondents as to whether the petitioner was still pl aced in low medical category after February, 2005. All that I can say is that th e respondents do not want to come out with the full facts within their knowledge : they are most probably afraid that if such facts are disclosed, their case wou ld be jeopardised. Thus, on the basis of this finding of mind, it is not difficu lt to hold that the petitioner was placed in the medical category of SHAPE-I whe n the second DPC was held in 2006 and was, therefore, eligible for consideration for the promotion. In my opinion, though the petitioner was fit to be considere d for promotion in the rank of Second-in-Command when the next DPC was held in 2 006, his case was deliberately not considered on flimsy or non-existent grounds to wrongfully deny him the promotion. This definitely calls for the interference of this Court. It is brought to the notice of this Court that the petitioner wa s promoted to the rank of Second-in-Command during the pendency of this writ pet ition. It is also brought to the notice of this Court that he has retired from s ervice on 30-6-2008 on attaining the age of superannuation. This calls for mould ing of the relief. 10. The offshoot of the foregoing discussion is that this writ petition is allowed. As the petitioner has already been promoted and has also retired from s ervice during the pendency of this writ petition, it is not necessary to quash t he impugned promotion order of the respondent No. 7. However, the respondent aut horities are directed to communicate any entry of (cid:28)good (cid:29) or any grading lower th an that of (cid:28)good (cid:29) in the ACRs of the petitioner for the qualifying years in ques tion to him within one month of the receipt of the copy of this judgment and on the receipt thereof, he, if so advised, will make a representation to the respon dent authorities and the said representation will be decided within a period of two months thereafter. If his entry/entries is/are upgraded, the petitioner shal l be considered for retrospective promotion by the DPC within two months thereaf ter and if he is so recommended, he shall be given promotion in the rank of Seco nd-in-Command for the purpose of pension with full monetary benefits with effect from the date the respondent No. 7 was promoted in the rank of Second-in-Comman d.