Heard Ms v. Uma Devi

Petition under Article 226 of lhe constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High court may be pleased to issue a writ order or Direction more particularly one in the nature of Writ of Mandamus, declaring the znd Respondents Order vide ctBsg7olsAt2o24/DGQA/Adm-4, DT 21 .05.2024 rejecting the petitioners claim for considering his case for promotion as Brigadier (Pay level 13-A) from colonel (Pay level-13) d1.10.05.2024 as illegal, arbitrary, discriminatory, unconstitutional and in clear violation of principles of natural justice and consequently direct the Respondents herein to consider the Petitioners candidature for promotion from Colonel (Pay level 13) to Brigadier (Pay level 13-A) by taking his Annual Performance Assessment Reports as mentioned in the RTI reply dt.18.05.2007 Io a permanently Seconded Service Officer (PSSO). / lA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the 2nd Respondent not to proceed further with the Departmental Promotion Committee Proceedings of Permanently Seconded Service Officers for the vacancy Year 2024 till the 2nd respondent pass appropriate Speaking Orders on the representation dt.10.05.2O24 made by the petitioner with regard to Gradings as per the information provided vide RTI reply dt.18.05.2O07 for promoting him as Brigadier (Pay level '1 3-A) from Colonel (Pay level 13) without reference to the lmpugned Order vide C/85S70/SA/2024/DGQA/Adm-4, Dated 21 .05.2024, pending disposal of the main Writ Petition. Counsel for the Petitioner: SMT. V. UMA DEVI Counsel for the Respondents: SRI R. ANURAG, REPRESENTING SRI GADI PRAVEEN KUMAR, Dy. SOLICITORGEN. OF INDIA The Court made the following: ORDER THE HON'BLE SRI JUSTICE PULLA I{ARTHIK WRIT PETITION No.18422 of 2024 ORDER: This Writ I)etition, under Article 226 of the Constitution of India, is filed seeking the following reliel "...1o rssue ang appropiate Wit, Order or Direction; more particulartg one is the nalure of Writ of Mandamus declaing the 2"d Respondent's intpugned Order uide C/85970/SA/ 2024/ DGQA/Adru 4, Dated 21.05.2024, rejecting the petitioner's claim for consideing his case for promotion as Bigadier (Pay level 13-A)from Colonel (Pay teuet-13) dt.10.O5.2024 as illegal, arbitrary, disciminatory, unconstitutionol qnd in clear uiolation of principles of natural justice and consequently direct the Respondenb to consider the Petitioner's cqndidature for promotion frum Colonel (Pag leuel 13) to Bigadier. (Pag teuel 13-A) by taking his Annual Perfonnance Assessmenl Reports as mentioned in the RTI reply dt.18.05.2oo7 to a pemonentla Seconded Seruice Officer (PSSP) and pass..."

2. Heard Ms. V. Uma Devi, learned counsel appearing for the petitioner and Sri R. Anurag, learned counsel, representing Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India, on behalf of the respondents.

3. Learned counsel for the petitioner submits that the petitioner was commissioned into the Indian Army's Corps of Signals in June, 1994, and in 2O11, he was permanently absorbed into respondent No.2 Directorate, an entity comprising both Civilian and Army 2 PK, J W.P.No.18122 of 2024 personnel. The Army Officers who are permanently seconded to respondent No.2 Directorate are referred to as Permanently Seconded Service Officers (for short, 'PSSOsJ, and their postings and promotions are governed by the Rules framed by the Department of Personnel and Training (DoPf), New Delhi. It is lurther submitted that the petitioner served in the Indian Army for over 16 years and subsequently, spent nearly 14 years in respondent No.2 Directorate. During his service at respondent No.2 Directorate, the petitioner was promoted to the rank of Colonel (Pay level- 13) during 2012, based on his merit ald seniority.

4. Learned counsel further submitted that the Departmental Promotion Committee of respondent No.2 Directorate, known as the Qualify Assurance Selection Board (for short, 'QASBJ, recently convened to consider the promotions from Colonel (Pay level-l3) to Brigadier (Pay level-13 A). However, respondent No.2 has not issued any specific promotion policy that lays down the criteria of evaluating the Annual Performance Assessment Report of the PSSOS to be graded frt for promotion. In general, the Departmental Promotion Committee evaluates the Annual Performance Assessment Reports of the preceding five years of an incumbent when his/her promotion becomes due. However, respondent No.2 is conducting its DPC -7 3 PK, J W.P.No.18422 of 2024 meetings arbitrarily without adoptlng a detailed and comprehensive policy on the subject of promotion of PSSOs. It is further submitted that the UPSC has also issued instructions for promotions of officers in Pay level-l2 and above, prescribing a benchmark as Very Good' (Above Average). According to those instructions, an officer achieving four Very Good/Above Average' and one 'Good/High Average' rating in the relevant APARs witl be deemed to meet the benchmark for promotion and are graded ht and eligible for promotion'

5. It is further submitted that contrary to the earlier criteria, the DPC of respondent No.2 Directorate now requires all 'five APARs from the preceding years to be rated as Very Good', for a candidate to be considered for promotion. Therefore, the impugned action of respondent No.2 in adopting a new APAR criteria, that too, without arry proper notice to the aspiring personnel waiting for promotion, is illegal arbitrary and unconstitutional. It is further submitted that the petitioner, having three Outstanding (Above Very Good), one Very Good and one Good in his Annual Perlormalce Assessment Reports, meets the earlier benchmark. Hence, he fairly deserves to be considered for promotion from Colonel to Brigadier. However, respondent No.2 has erroneously rejected his claim in a cryptic way and issued a non-speaking order vide letter dated 21.05.2024. It is I I 4 PK, J W.P.No.18422 of 2024 further submitted that the petitioner was graded .Good, during the reporting year '2017-78. Dissatished with the same, the petitioner had submitted a representation dated 07.Ol.2olg. Hou,ever, the said representation was rejected by way of a non-speaking order dated

09.12.2019. Learned counsel further submitted thar the Hontrle Apex Court, in Union oJ Indla !. G,R. Meghua\ has held that rejection ofa representation ofan employee against the ApAR through a non-spealing order needs tO be treated as invalid and should not be considering while assessing an employee for promotion. Therefore, learned counsel for the petitioner prays this Court to pitss necessary orders by setting aside the impugned order dated 2l .O5.2024.

6. Per contra, learned counsel appearing for the respondents submitted that the Ofhce Memorandum dated 18.O2.2OO8 issued by the Ministry of Personnel, Public Grievances and pensions (Department of Personnel and Training), clearly stipulates the candidates to meet the requisite benchmark of l/ery Cood' in all the APARs for the preceding f,rve years to be eligible for consideration for promotion. It is further submitted that the representation of the petitioner dated 10.O5.2024 was duly considered in terms of the prevailing guidelines regarding ApAR benchmarks for promotion of PSSOs from Colonel to Brigadier in respondent No.2 Directorate. and ---7 PK, J W.P.No.18422 of 2024 a detailed speaking order dated 15.07 .2024 was already issued. as the case of the Hence, the present writ petition is premature, petitioner for promotion has not been rejected till date by the Quality Assurance Selection Board. Therefore, on this ground alone' the present writ petition is liable to be dismissed in limine'

7. This Court has taken note of the rival submissions made by \ learned counsel for the respective parties' Before delving into merits of the case, it is pertinent to note that

8. the primary grievance of the petitioner pertains to the impugned order vide C/85970 lSAl2024lDGQA/Adm-4 dated 2l'05'2024, issued bv respondent No.2, which has been described as a cryptic way and non- speaking order. The material on record discloses that after hling the present writ petition, the respondents have issued a detailed speaking order vide Al9866ll28|COURT CASE/DGQA/Adm-a dated 15.07.2024, addressing the claim of the petitioner' However, the petitioner failed to challenge the said ordcr' Therefore, in the absence of any challenge to the said speaking order, this Court cannot grant any relief to the petitioner in the present matter' g. In view of the above , the present writ petition is liable to be dismissed t I 5 PK, J W.l'. No. ) 8422 of 2O24

10. Accordingl.y, the Writ petition is dismissed. However, the petitioner is at tiberty to challenge the speaking order issued by respondent No.2 vide A/98661 /28|COURT CASE/DGQA/Adm-4 dated 15.07.2O24, if he so desires. Miscellaneous applications, if any, pending in this writ petition, shall stand closed. No costs. //TRUE COPY// ASSIST SD/- K. AMMAJI NT REGISTRAR / To,

1. One CC to Smt. V. Uma Devi, Advocate 2. One CC to Sri Gadi Praveen Kumar, loPUCl

3. Two CD Copies TJ GJP \ cl\N- S CTION OFFICER loPUcI Deputy Solicltor General of lndia HIGH COURT DATED:1010112025 ORDER WP.No.I8422 of 2024 ( c I 1HE :; la r4:- I 4'rrB 2U5 t {") * .) S.=a;i:'-.f. DISMISSING THE WRIT PETITION WITHOUT COSTS ,$-,