Punjab-Haryana High Court
Lt. Col. S.S. Nishan vs Union Of India And Others on 22 April, 2010
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No. 3229 of 1996.
Date of Decision : April 22 , 2010.
Lt. Col. S.S. Nishan, Deputy Director (Retd.), Survey of India, House No.
296, Sector-33-A, Chandigarh.
...... Petitioner .
Versus.
Union of India and others.
..... Respondents .
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.
Present:- Mr. T.S. Dhindsa, Advocate, for the petitioner.
Mr. Anil Rathee, Central Government Counsel, for respondents.
AUGUSTINE GEORGE MASIH, J..
The petitioner through this writ petition has prayed for issuance of a writ in the nature of certiorari for quashing the Order dated 12.05.1995 (Annexure-P-4), informing the petitioner that his case for grant of Non- Functional Selection Grade-Deputy Director (Selection Grade) in the Survey of India, cannot be granted to him and further a writ in the nature of mandamus, directing respondents to promote the petitioner to the post of Non-Functional Selection Grade-Deputy Director (Selection Grade) with effect from the date his juniors were promoted with all consequential benefits.
Counsel for the petitioner contends that the petitioner was promoted to the post of Deputy Director, while working with respondent No. 2 in the scale of Rs. 3700-5000 with effect from December, 1990, vide order dated 30.01.1991 (Annexure-P-1). As per para-6.3.1 (ii) of Consolidated Instructions on D.P.Cs., which relates to the matter issued by the Government C.W.P. No. 3229 of 1996. -2- of India, Ministry of Personnel, Public Grievances and Pensions, vide Memo No. 22011/5/86/Estt.(o) dated 10.04.1989, the Benchmark for the grade of promotion to the post in the scale of Rs. 3700-5000 and above is 'Very Good' or 'Better'. On consideration of the case of the petitioner for promotion to the post of Deputy Director, the Departmental Promotion Committee in consultation with Union Public Service Commission placed the petitioner at Sr. No. 1 in the select list. He on this basis contends that the grading of the petitioner was 'Very Good' or 'Better' in December, 1990. Recruitment to Group 'A' posts in the Survey of India are regulated by Survey of India (Group 'A') Service Rules, 1989. Rule 5 of the aforesaid Rules stipulates the method of recruitment, the field of selection, the minimum qualifying service for appointment to Group 'A' post from the civil and defence streams, which shall be specified in Schedules I, II, III, and IV. Schedule III is relevant and the relevant portion reads as under :-
"Schedule I to Schedule II xxxxxx xxxxxxx xxxxxxx Schedule : III (See rules 2(2) (f) and (k), 3(3), 5(1), 7(1) and (8)) SURVEY OF INDIA GROUP 'A' SERVICES (DEFENCE STREAM)
1. Name of post : Non-Functional Selection Grade (Directors/Deputy Director Selection Grade).
2. Number of post : Shall be according to the orders of Central Government.
3. Scale of pay : 4500-150-5700
4. Whether selection: Non-Selection.
or non-selection xxxxxx xxxxxxx xxxxxxx
7. In case of recruit- Officers who have put in minimum of 13 ment by promotion/ of Commissioned Service.
deputation/transfer grades from which promotion/ C.W.P. No. 3229 of 1996. -3- deputation transfer to be made.
Schedule IV
xxxxxx xxxxxxx xxxxxxx"
In view of the above, he submits that the Non-Functional Selection Grade-Deputy Director (Selection Grade) post is in the scale of Rs. 4500-150-5700. The method of recruitment is by way of promotion from amongst officers, who have put in minimum of 13 years of commissioned service. The petitioner has 27 years of commissioned service, making him eligible to be considered for promotion to the post of Non-Functional Selection Grade-Deputy Director (Selection Grade). The petitioner is the senior most Deputy Director under the defence stream and has been graded 'Very Good' in December, 1990, as he was promoted as a Deputy Director, vide order dated 30.01.1991 (Annexure-P-1). He contends that as per para-8.2 of the instructions issued, vide Memo No. 51/7/68-Estts. (A) dated 19.09.1969, all adverse entries in the confidential reports of the officers have to be communicated by the Reviewing Officers of the concerned employee. As per para-8.3 (c), he contends that the authority in whose custody the character rolls of officers in a service post are maintained is required to communicate to the officer concerned the fall in standard, if any, in relation to his past performance as revealed through his annual confidential reports. There may be cases where though the remarks in the confidential report are not adverse in a strict and narrow sense, the effect of these remarks cumulatively on the service prospects of the officers are adverse. He contends that since no communication was received from respondents, it can safely be presumed that there was no fall in the standard in relation to the past performance of the petitioner, which was rated 'Very Good' or 'Better' in December, 1990. He on this basis contends that there was no reason as to why the case of the C.W.P. No. 3229 of 1996. -4- petitioner, who is an officer from the defence stream, had not been recommended for promotion to the Non-Functional Selection Grade-Deputy Director (Selection Group). To the utter surprise of the petitioner, vide order dated 15.02.1993 (Annexure-P-2), 18 officers from the defence stream were promoted to Non-Functional Selection Grade-Deputy Director (Selection Grade) and the name of the petitioner was ignored, although, he was senior most amongst all these eighteen officers. The said order shows that the promotion had been given to his junior officers with effect from 13.06.1991 onwards. He, therefore, contends that there is no reason as to why the claim of the petitioner for promotion to the post of Non-Functional Selection Grade- Deputy Director(Sel. Grade)had been rejected,while promoting his juniors.
Faced with this situation, the petitioner had earlier filed C.W.P. No. 11897 of 1993 in this Court, wherein he had claimed promotion to the post of Non-Functional Selection Grade with effect from 13.06.1991, i.e., the date from which his juniors had been promoted. On consideration of the claim of the petitioner as also of the respondents, the Division Bench of this Court, vide order dated 21.02.1994 (Annexure-P-3) directed the respondents to consider the case of the petitioner for grant of Non-Functional Selection Grade by examining the records upto June 13, 1991, which is the date with effect from which persons junior to the petitioner were allowed the Non- Functional Selection Grade and to grant the same, if found fit. A direction was also issued to complete this exercise within a period of two months. The claims of the petitioner was rejected by respondents, vide Order dated 12.05.1995 (Annexure-P-4), vide totally non speaking order, where no reason whatsoever has been specified.
Counsel for the petitioner has relied upon the judgment of Hon'ble the Supreme Court in the case of Dev Dutt Versus Union of India, 2008 (8) C.W.P. No. 3229 of 1996. -5- Supreme Court Cases 725, to contend that the claim of the petitioner deserves to be allowed as the instructions dated 10.04.1989 has been duly considered by Hon'ble the Supreme Court and held therein that nomenclature is not relevant, but the effect which the confidential entry is having on the career of the employee, which determines whether it is an adverse entry or not. It is, thus, records of the entry which is important and not the phraseology. The grant of good entry is of no satisfaction to the incumbent, if it infact makes him ineligible for promotion or has an adverse effect on his chances. He, thus, contends that because of non compliance of the instructions issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions had deprived the petitioner of his right for upgradation of his confidential reports, if any of them are below the required benchmark for consideration of promotion to the post of Non-Functional Selection Grade. On this basis, he contends that the present writ petition deserves to be allowed and the impugned Order dated 12.05.1995 (Annexure-P-4) deserves to be set aside as the petitioner fulfils the benchmark for promotion to the post of Non- Functional Selection Grade-Deputy Director (Selection Grade).
On the other hand, counsel for respondents submits that the case of the petitioner was also considered alongwith other eligible candidates for promotion to the post of Non-Functional Selection Grade-Deputy Director (Selection Grade) in the meeting of Departmental Promotion Committee held on 06.08.1992, but on the basis of his performance reported in his annual confidential reports, the petitioner was assessed as unfit and could not find place in the selection list or panel of candidates for the promotional post, which led to the supersession of the petitioner by his juniors. He submits that while considering the case of the petitioner for promotion to the post of Deputy Director in the month of December, 1990, against the vacancy C.W.P. No. 3229 of 1996. -6- for the year, 1988, ACRs of the petitioner was considered upto year, 1987 only, wherein he made the benchmark and was accordingly promoted as a Deputy Director, vide Order dated 30.01.1991 (Annexure-P-1). While considering the claims of the other officers for promotion to the Non- Functional Selection Grade for the vacancies for the year, 1991 (01.01.1991 to 31.12.1991), records upto the year, 1990, was taken into consideration by the Departmental Promotion Committee, which held its meeting on 06.08.1992. The petitioner could not make the benchmark when A.C.Rs. for the preceding 5 years were taken into consideration and accordingly the petitioner was ignored for grant of Non-Functional Selection Grade. He submits that even grading average is not an adverse report and, thus, average ACRs is required not to be communicated to the employee concerned. He on this basis contends that non communication of the ACRs which were not adverse to the petitioner was in accordance with law and thus no benefit can be granted to the petitioner. In support of this contention, he relied upon the Division Bench judgment of this Court in the case of Union of India Versus Central Administration Tribunal, 2008 (4) SCT 101 as also the judgment of Hon'ble the Supreme Court in the case of Satya Narain Shukla Versus Union of India and others, 2006 (9) SCC 69. He, however, does not dispute the instructions dated 19.09.1969, paras-8.2 and 8.3 on which reliance has been placed by counsel for the petitioner and also states that the ACRs, which would fall under clause (c) of para-8.3 of the said instructions have not been communicated to the petitioner. He, however, submits that since the petitioner does not make the benchmark, therefore, he is not entitled to promotion for Non-Functional Selection Grade-Deputy Director (Selection Grade). He prays for dismissal of the writ petition.
C.W.P. No. 3229 of 1996. -7-
I have heard counsel for the parties and have gone through the records of the case.
The judgments relied upon by counsel for respondents will not be applicable to the facts of the present case as instructions dated 10.04.1989 and instructions dated 19.09.1969 were not considered by the Courts in the said judgments and, therefore, no benefit can be claimed by respondents of the said judgments.
The records relevant to the claim of the petitioner as also the annual confidential reports of the petitioner were summoned by this Court, vide order dated 23.02.2010. The same was produced by respondents in sealed cover in the Court on 03.03.2010, which was perused and returned to respondents. The petitioner, as the ACR stands, does not make the benchmark as provided under instructions dated 10.04.1989 for promotion to the post of Non-Functional Selection Grade-Deputy Director (Selection Grade). The instructions dated 19.09.1969 as referred to above by counsel for the petitioner have not been disputed by respondents nor the application thereof. It is also admitted by counsel for respondents that the ACRs, which were required to be communicated to the petitioner as per para-8.3(c) of the instructions dated 19.09.1969 were not communicated to him. That being so, the case of the petitioner is fully covered on all force by the judgment of Hon'ble the Supreme Court in the case of Dev Dutt (supra). It has been held by Hon'ble the Supreme Court in paras- 9 and 10, which read as follows :-
"9. In the present case the benchmark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have "very good" entry for the last five years. Thus in this situation the "good" entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry C.W.P. No. 3229 of 1996. -8- is having which determines whether it is an adverse entry or not. It is thus the records of the entry which is important, not the phraseology. The grant of a "good" entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances.
10. Hence, in our opinion, the "good" entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-1994 should be upgraded from "good" to "very good". Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the "good" entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the "good" entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the "good" entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable."
In the light of the law settled by Hon'ble the Supreme Court, while dealing with the instructions on which the counsel for the petitioner has relied upon, it would be just and equitable in the light of the fact that the petitioner who has already retired from service, a direction is issued to respondents to communicate the ACRs, which would be hit by clause (c) of para-8.3 of instructions dated 19.09.1969, to the petitioner within a period of one month from the date of receipt of certified copy of this order. On ACRs being communicated, the petitioner may make a representation, if he so chooses, against the said entry, within a period of one month thereof and the said representation be decided by respondents within a period of two months from the date of receipt of such representation. In case, the annual confidential report entry is upgraded, the claim of the petitioner shall be considered for promotion retrospectively by the Departmental Promotion C.W.P. No. 3229 of 1996. -9- Committee within a period of two months thereof and if the petitioner is selected for promotion retrospectively, i.e., 13.06.1991, the date from which his juniors were promoted, he shall be given higher pension with arrears of pay and interest @ 8% per annum from the date of accrual till the date of payment and the same shall be disbursed within further two months.
Disposed of accordingly.
(AUGUSTINE GEORGE MASIH) JUDGE April 22, 2010.
sjks.