Judgment · High Court · 2012

In this writ petition, the petitioner is aggrieved by the inaction of th e respondent authorities in denying him promotion to the post of Sub-Inspector/G eneral Duty w.e.f the date his colleagues/immediate juniors were given promotion s in terms of the order dated 17.12.2008. The materials facts of the case are no t in dispute. He was appointed and joined the post of Constable General Duty in the Central Police Reserve Force ( (cid:28)CRPF (cid:29)) on 26.05.1977 and was initially posted to 33 Battalion of the Force. He had joined the Force as a under Matriculate bu t was qualified as (cid:28)Bhasha Ratna (cid:29) certificate awarded by the Bombay Hindi Vidyap eeth which is recognized as equivalent to (cid:28)Intermediate Certificate (cid:29) in the CRPF with English as one of his papers.

#2. The petitioner was promoted to the rank of Lance Naik/General Duty in th e year 1990 and was posted to 92 Battalion of the Force on promotion on 14.09.19 90. He was thereafter brought on the (cid:28)Approved (cid:28)B (cid:29)/GD 04/91 list (cid:29), and he had ex pected his promotion to the rank of Naik as early as 1993, as he has already ful filled the qualification for such promotion. In the year 1993, he was, however, awarded a minor punishment and was accordingly removed from the said (cid:28)Approved B /GD list vide Force order No.215/93 dated 01.09.1993. On 07.01.1995, he was prom oted as officiating Naik and it was specified therein that he could not claim hi s seniority w.e.f. 31.03.1993 under the authority of the letter dated 06.01.1995 issued by the Deputy Inspector General of Police, Allahabad. He was then transf erred to Group Centre, CRPF, Guwahati in the year 1999 and was thereafter transf erred to the 6 Battalion of the Force in 2001. He was again transferred to Group Centre, Guwahati in the year 2006 and he is to retire on 30th June, 2012 on sup erannuation. Following the re-categorization in the rank of the Force, the posts of Lance Naiks and Naiks came to be abolished w.e.f. 10.10.1997 and the petitio ner was accordingly re-designated as Head Constable/General Duty w.e.f. 10.10.19 97. As required by the Standing Order No.6/1999, he was allowed to undergo Senio r Under Officer Cadre Course Serial No. 36 only in the year 2008, he was allowed to undergo Senior Under Officer Cadre Course Serial No.36, which is an essentia l qualification for promotion to the post of Sub-Inspector. According to the pet itioner, all qualified Head Constables, who attended the Senior Under Officer Ca dre Course Serial No.36 were released on 17.12.2008 and were promoted to rank of Sub-Inspector/GD, but he was denied similar promotion. This led him to make rep resentation to the concerned authority, but to no effect. Aggrieved by this, thi s writ petition has been filed.

#3. The writ petition is contested by the respondent authorities by filing t heir affidavit-in-opposition. The case of the respondents for defending the impu gned action/inaction is found at Paragraph 3 of their affidavit-in-opposition, w hich is reproduced hereunder:- (cid:28)3. The petitioner, Pak Singh Garam (No. 770330094) Head Constable/General Duty presently posted at Group Centre, CRPF, Guwahati since 20.08.2006 was enlisted i n CRPF as CT/GD w.e.f. 23.4.1977. He was promoted to L/Nk w.e.f. 14.09.90 and s ubsequently promoted as officiating Nk/GD w.e.f. 7.1.1995 and as per recommendat ion of 4th Pay Commission he was merged as HC/GD w.e.f. 10.10.97. During the ye ar 2008 he was eligible for Senior Under Officer Course SL No. 36 commenced w.e. f. 16.6.2008 to 8.9.2008 and accordingly he was sent on course and qualified. B efore detailing him on course a screening committee was detailed to screen his r ecords and screening proceedings was sent to Directorate General. Directorate G eneral has raised observation on his force seniority serial number LNK/GD mentio ned in special approved list B/GD-4/91. On going through his service book it is found that while posted in 92 BN, CRPF he was brought on approved list B/GD-4/9 1 but later on he was removed from above approved list due to unsatisfactory rec ords. The office order for removal from said approved list due to his unsatisfac tory records also issued by 92 BN vide their office order No. P.VII-1/93-EC.1-92 dated 24.3.93 with the remarks that said removal shall not be permanent bar for the individual. Accordingly, he was due for consideration in subsequent approv ed list i.e. B/GD-9/93, 6/94 and 8/95 already drawn but he was not taken by the unit for which a discreet enquiry has been conducted to find out the circumstanc es under which said individual was not brought on aforesaid approved lists. As per enquiry report, it is notice that No. 770330094 L/Nk/GD (now HC/GD) Pak Sing h Garam after removal from approved list B/GD-4/91 was eligible to bring on sub sequent approved list i.e. B/GD-9/93, 6/94 and 8/95 but no record/entry regardin g non-bringing him on special approved list B/GD-9/93, 6/94 and 8/95 available i n office records of 92 BN as the records of year 1993-95 already weeded out. Be sides above, it is revealed that the then dealing hand SI(M) SD Kotwani, has not brought him on subsequent approved lists resulting which he is fully responsibl e for such lapse. But the aforesaid SI(M) has already proceeded of superannuati on. However, IGP Central Sector CRPF vide their letter No. P.VII-3/2010-CS-SDM- 1 dated 18.5.2010 has directed DIGP CRPF Lucknow to instruct 92 Bn for taking up case for removal of individual from Special Approved List B/GD-4/1991 for bring ing him on next approved list B/GD for assigning his appropriate seniority at Di rectorate level. Further progress is awaited from 92 BN/GD Lucknow/IGP CRPF Cen tral Sector. (cid:29)

#4. Mr R Mazumdar, the learned counsel for the petitioner submits that the c riteria for promotion to the rank of Sub-Inspector as laid down in Clause II of the Standing Order No.6/1999 has been ignored by the respondent authorities in c onsidering the case of the petitioner. It is his contention that though the peti tioner fulfilled all the criteria laid down in the Standing Order, he has been d enied for the promotion for some incident which had happened some time in the ye ar 1993, and as such, non-consideration of the case of the petitioner for promot ion to the post of sub-Inspector is vitiated by arbitrariness and non-applicatio n of mind. Drawing my attention to Paragraph 5 of the affidavit-in-opposition fi led by the respondent authorities, the learned counsel further argues that the r espondents have admitted to the fact that colleagues of the petitioner or his ju niors might have been promoted to the rank of Sub-Inspector/G.D. and that it was due to the incident which occurred while posted in 92 Battalion during the year 1992 that he was denied the promotion. According to the learned counsel, the in cident which took place in the year 1992 does not have any bearing at all for co nsidering the promotion of the petitioner in accordance with the criteria laid d own in the Standing Order: this call for interference of this Court. On the oth er hand, Mr DK Saikia, the learned CGC supports the case of the respondents and submits that the case of the petitioner is now under active consideration of the Director General of the Force, and as such, any direction from this Court under the peculiar facts of this Court will be premature. 5. I have given my anxious consideration to the rival contentions advanced by the learned counsel appearing for both the parties, I have also carefully con sidered the pleading of the parties together with the documents filed in support of their respective contentions. From the affidavit-in-opposition, it becomes c lear that the only ground for denial promotion to the petitioner is that his nam e was removed from the said Approved B/GD No. 4/91 list due to his unsatisfactor y records of service vide 92 BN office order No.P.VII-1/93-EC.1-92 dated 24.03.9 3 with the remarks, however, that said removal should not be a permanent bar. In other words, the denial of promotion to the petitioner was brought about by his unsatisfactory records of service for an incident taking place in the year 1993 . However, from the paragraph extracted above, the respondent authorities have t hemselves admitted that the removal from the said approved list should not be a permanent bar meaning thereby not a permanent bar. Some 19 (nineteen) years late r, this unsatisfactory record of service has been employed by the respondents to deny promotion to the petitioner. The question is whether the ground for denial promotion to the petitioner on this sole ground is tenable in law is moot point in this writ petition. The Standing Order No.6/1999, which is at Annexure-A to the writ petition, has laid down procedure/criteria for promotion of NGO (GD) Ex ecutive Personnel (Male/Female) to various ranks from Constable to Inspector in the Force. Clause-II of the Standing Order in question is relevant for our purpo se, which is reproduced hereunder: (cid:28)II Head Constable to Sub-Inspector: (a) Must have completed minimum five years service in the rank, subject to a tot al service of 18 years; (b) Must have qualified in W & T Course. However Hcs, who have qualified in Seni or Cadre Course, are not required to undergo W & T Course; (c) Must have qualified in Senior Under Officers Cadre Course (SUOCC). (d) Must have adverse report in the ACR in the preceding five years. (e) Must not have had major punishment in preceding five years. (cid:29)

#6. It is not the case of the respondents that the petitioner did not fulfil l any of the criteria laid down in Standing Order as noted earlier. On reading t he aforesaid criteria, it is obvious that the removal of the name of the petitio ner from the approved list for his unsatisfactory records of service in the year 1993 could not be a ground for denying him the promotion as this is not one of the criteria for considering his promotion: he could not have been disqualified for promoting him to the post of Sub-Inspector/G.D. It is also an admitted fact on record that the colleagues and some of his juniors have already superseded hi m for promotion to the post of Sub-Inspector/GD. In my judgment, the non-promoti on of the petitioner to the post of Sub-Inspector/G.D. when his juniors were pro moted to the similar post is illegal, arbitrary and also suffers from the vice o f non-application of mind. The respondents have clearly violated the procedure l aid down by them for promotion of the petitioner to the post of Sub-Inspector/G. D. It is a well settled rule of administrative law that an executive authority m ust be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. (see Ramana Dayaram Sheety Vs. International Air port Authority of India & Ors reported in (1979) 3 SCC 489). 7. For what has been stated in the foregoing discussion, this writ petition succeeds. No other ground is assigned by the respondent authorities for denying promotion to the petitioner. The only ground for which he has been denied for p romotion has been found to be untenable in law. Normally, this Court in exercise of its writ jurisdiction, does not issue a positive direction and will only dir ect the respondent authorities to consider the case of the petitioner for promot ion to the post of Sub-Inspector/G.D in accordance with law. However, when the r ange of choice vested with the respondent authorities is reduced to only one cho ice, this Court can lawfully issue a direction to the respondent authorities to act in a particular manner (see Anglo Afghan Agencies case, AIR 1968 SC 718 and State of Mysore v. P.N. Nanjundien, (1969) 3 SCC 633). The respondent authoritie s, particularly the respondent No. 2, is, therefore directed to promote the peti tioner to the post of Sub-Inspector/G.D. with effect from the date his juniors/c olleagues were promoted to the post of Sub-Inspector/G.D within a period of thre e months from the date of receipt of this judgment. I understand that the petiti oner is retiring from service on superannuation on 30.06.2012. If that is so, th e respondent No.2 may speed up the exercise so that the petitioner is given the due promotion before his retirement from service on superannuation. No cost.