Jharkhand High Court
Som Nath Malhotra vs Union Of India on 5 November, 2018
Equivalent citations: AIRONLINE 2018 JHA 432, 2019 (1) AJR 275, (2019) 1 JCR 557 (JHA)
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6288 of 2009
...
Som Nath Malhotra ..... Petitioner
-V e r s u s-
1.Union of India.
2.Director General, Central Industrial Security Force, Head Quarters-New Delhi.
3.Assistant Inspector General (Personnel), Central Industrial Security Force, Ministry of
Home Affairs, New Delhi. . .... Respondents
...
CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK.
...
For the Petitioner : - Mr. Saurabh Shekhar, Advocate
For the Respondents-C.I.S.F. : - Mr. Madan Prasad, C.G.C.
...
C.A.V. On: - 11.09.2018 Delivered On: - 05/11/2018
...
Per Pramath Patnaik, J.
1. In the accompanied writ application, the petitioner has sought for the following reliefs: -
(a) For quashing the order as contained in the letter dated 27.10.2009, issued by the respondent no. 3;
(b) For granting promotion to the petitioner in the higher rank of Senior Commandant from the date from which, the persons junior to the petitioner, have been granted promotion and
(c) For issuance of direction commanding upon the respondents to forthwith release entire arrears of difference of salary in consequent upon the grant of promotion in the rank of Senior Commandant w.e.f. the date his Juniors have been granted promotion alongwith interest.
2. The factual aspects, as has been delineated in the writ application, in a nutshell is that the petitioner joined his service in the month of October, 1975 as a Sub Inspector under the respondents-CISF and thereafter, considering his service career, the petitioner has been granted promotion to the higher rank and ultimately, he has been granted promotion in the rank of Commandant w.e.f. 04.01.2006 and has been posted from one place to another and now, he has been posted as a Commandant in CISF, 2nd Reserve Battalion, Dhurwa, Ranchi and is discharging his duties without any complaint from any quarter. It has 2 been averred that the petitioner, during his entire service career, has never been put under suspension nor any departmental proceedings has ever been initiated against him, rather, during his period of posting in different capacities under the respondents-CISF, has got appreciation letters which would be apparent from various certificates issued in this regard as per Annexure-1 series. It has further been averred that after the promotion in the post of Commandant, a combined seniority list has been prepared by the respondents authorities on 31.12.2007 for which, the name of the petitioner appears at Serial No. 20 and the petitioner was performing his duties to the satisfaction of the higher authorities with utmost sincerity and was expecting his promotion to the rank of Senior Commandant but in a highly illegal and unreasonable manner, the departmental Promotion Committee constituted by the competent authority for filling the vacancies by way of promotion for the year 2008-09, has been convened in which, although the case of the petitioner was considered but, he has not been given promotion and to the utter consternation of the petitioner, the officers at Sl. No. 21 and from 23 to 28, have been granted promotion in the rank of Senior Commandant but without any reason, the petitioner has not been given promotion in the rank of Senior Commandant. Being aggrieved thereof, the petitioner made a due representation, dated 22.09.2009, before the respondent No.2, explaining in details that from the date of his promotion to the rank of Commandant, he has not been given any adverse remarks and the respondents authorities have issued one letter dated 27.10.2009, issued by the respondent no.3, communicating therein, that he has been assessed not entitled for promotion and therefore, his name has been rejected. Left with no alternative and efficacious remedy, the petitioner has been constrained to approach this Court under Article 226 of the Constitution of India for redressal of his grievances.
3. Learned counsel for the petitioner has vehemently submitted that the impugned order (Annexure-4) is fit to be set aside on the ground that the same has been passed merely on the ground that some adverse entry being in the Annual Confidential Report (ACR) of the petitioner, but the said adverse entry has never been communicated to 3 him and as such, the ground taken by the authorities in rejecting the claim of the petitioner that the case of the petitioner has been assed as "Unfit" is not sustainable in the eyes of law because the ground for rejection of the claim of the petitioner amounts to punishment, which is without providing opportunity to the petitioner and the action of the respondents is violative of Articles 14 of the Constitution of India. Learned counsel further submits that the impugned order dated 27.10.2009 (Annexure-4) is not a speaking order and has been passed in violation of the principles of natural justice and on this ground alone, the same is fit to be set aside. Learned counsel further submits that if the petitioner's case is considered afresh, the petitioner will be entitled for consequential benefits.
In support of his contentions, learned counsel for the petitioner has referred to the following citations :-
(i) (2008) 8 SCC 725, Dev Dutt-vs.-Union of India and others
(ii) 2007 (2) MPHT 238, Hav. Gambhir Singy Chahar-vs.-
Union of India (UOI) and Ors.
4. Controverting the averments made in the writ application, a counter affidavit dated 30.04.2010 has been filed on behalf of the respondents. In the counter affidavit, it has been, inter alia, submitted that as per instruction contained in para 6.3.1 of the DOP&T O.M., dated 10.04.1989 read with consequent O.M. dated 27.03.1997 and O.M. dated 08.02.2002, the bench mark for promotion from Commandant to Sr. Commandant is "Very Good" which, inter-alia provides that "the DPC shall determine the merit of those being assessed for promotion with reference to the prescribed bench mark and accordingly grade the officers as "Fit" or "Unfit" only. Only those who are graded "fit" (i.e who meet the prescribed bench mark) by the DPC shall be included and arranged in the select panel in order of inter-se seniority in the feeder grade. Those Officers who are graded "Unfit" (in terms of the prescribed bench mark) by the DPC shall not be included in the select panel. Thus, there shall be no supersession in promotion among those who are graded "fit" (in terms of the prescribed bench mark) by the DPC. It has been stated that the petitioner along with 15 4 officers was considered according to zone of consideration as per rule. It has been further stated that as per direction of DOP &T the ACR grading for the year 2008-09 onwards is being communicated to the concerned officer. Prior to this only adverse entries were communicated. If the officer was graded as good the same was not communicated to the officers concerned as the same was not considered as "adverse entry". In the communication dated 27.10.2009, the petitioner was clearly explained that the post of Sr. Commandant is a "selection post" for which the prescribed bench marks for promotion is "Very Good" and he failed to achieve the required bench mark.
5. Repudiating the contentions made in the writ application, a supplementary counter affidavit dated 05.09.2018 has been filed on behalf of the Respondents-Union of India. In the said affidavit, it has been submitted that only basic mandatory service conditions, which are required for consideration of an employee for promotion to the next higher rank, are reflected in the Recruitment Rules with the approval of DoPT. All other service requirements are considered by the Departmental Promotion Committee at the time of holding of DPC meeting on the basis of guidelines issued by the Govt of India/Department of Personnel & Training from time to time. As per provisions contained in the Recruitment Rules for the post of Seniior Commandant in CISF notified on 13.02.2002, Commandants with 15 years Group 'A'/Gazetted service including two years regular service as Commandant and being medical category SHAPE-I were eligible for consideration for promotion to the rank of Senior Commandant. It has further been submitted that though the petitioner had completed 15 years Group 'A'/Gazetted services as on 01.01.2008, but was short of 02 years service in the rank of Commandant being promoted on 04.01.2006 as Commandant. Since his senior had completed the eligibility service as on 01.01.2008, the petitioner was also considered for promotion to the rank of Senior Commandant against the vacancy year 2008-09 as per the following provision (Senior/Junior clause) - stipulated in the RRs:-
"Where juniors who have completed their qualifying/eligibility service are being considered for 5 promotion, their senior would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying/eligibility service".
In the light of above provisions contained in the Recruitment Rules, the petitioner was also considered for promotion to the rank of Senior Commandant against the vacancy year 2008-09 against 06 vacancies. His name alongwith other 15 eligible officers was considered for promotion from the rank of Commandant to Senior Commandant in the DPC meeting held on 28.05.2008 under the aegis of UPSC. The post of Senior Commandant is a "Selection Post" for which prescribed bench mark for promotion is "Very Good" as per DOP&T Office Memorandum dated 08.02.2002, which is annexed as Annexure-A to the supplementary counter affidavit.
6. Mr. Madan Prasad, learned CGC appearing for the Respondents-Union of India has reiterated the submissions made in the counter affidavit. Learned counsel for the Respondents-UOI apartfrom reiterating the submissions made in the counter affidavit has submitted that the petitioner along with 15 officers has been considered for promotion according to zone of consideration as per rule.
7. Having bestowed my anxious consideration to the rivalised submissions and on perusal of the records, this Court is of the considered view that the petitioner has not been able to make out a case for interference due to the following facts and reasons : -
(i) As per instruction contained in para 6.3.1 of the DOP&T O.M., dated 10.04.1989 read with consequent O.M. dated 27.03.1997 and O.M. dated 08.02.2002, the bench mark for promotion from Commandant to Sr. Commandant is "Very Good" which, inter-alia provides that "the DPC shall determine the merit of those being assessed for promotion with reference to the prescribed bench mark and accordingly grade the officers as "Fit" or "Unfit" only. Only those who are graded "fit" (i.e who meet the prescribed bench mark) by the 6 DPC shall be included and arranged in the select panel in order to inter-se seniority in the feeder grade. Those Officers who are graded "Unfit" (in terms of the prescribed bench mark) by the DPC shall not be included in the select panel.
Thus, there shall be no supersession in promotion among those who are graded "fit" (in terms of the prescribed bench mark) by the DPC.
(ii) Now it is a well settled proposition of law and no more res integra that although to be considered for promotion is a right but, promotion is not a right and the petitioner along with 15 officers was considered according to zone of consideration as per rule.
(iii) As per direction of DOP &T the ACR grading for the year 2008-09 onwards is being communicated to the concerned officer. Prior to this only adverse entries were communicated. If the officer was graded as good the same was not communicated to the officers concerned as the same was not considered as "adverse entry".
(iv) The post of Senior Commandant is a "Selection Post"
for which prescribed bench mark for promotion is "Very Good" as per DOP&T Office Memorandum dated 08.02.2002 and for proper adjudication of the matter, it would be apposite to refer to the said provisions which, inter-alia, provides as under : -
"3.3- Promotion to the revised pay-scale (grade) of Rs.12,000-16,600 and above
(i) The mode of promotion, as indicated in paragraph 3.1 above, shall be 'selection'.
(ii) The bench-mark for promotion, as it is now, shall continue to be 'very 'good'. This will ensure element of higher selectivity in comparison to selection promotions to be grades lower than the aforesaid level where the bench-mark, as indicated in the following paragraphs, shall be 'good' only.
(iii) The DPC shall for promotion to the said pay-scale (grade) and above, grade officers as 'fit' or 'unfit' only with reference to the bench-mark of 'very good'. Only those who are graded as 'fit' shall be included in the select panel prepared by the DPC in order of their inter-
se seniority in the feeder grade. Thus, as already 7 explained in paragraph 3.2 above, there shall be no supersession in promotion among those who are found 'fit' by the DPC in terms of the aforesaid prescribed bench-mark of 'very good'. Photo-copy of DOP&T Office Memorandum dated 08.02.2002 is annexed as Annexure-A to the supplementary counter affidavit."
(v) In the communication dated 27.10.2009, the petitioner was clearly explained that the post of Sr. Commandant is a "selection post" for which the prescribed bench marks for promotion is "Very Good" and he failed to achieve the required bench mark.
8. In view of the assertions made in the counter affidavit as well as the supplementary counter affidavit, being supported by the documents, I am of the considered view that there is absolutely no illegality or infirmity in the action of the respondents, so as to warrant any interference by this Court.
9. Accordingly, the writ petition sans merit, is hereby dismissed.
(Pramath Patnaik, J.) APK