Telangana High Court
Sachvir Ahluwalia vs The Union Of India on 10 January, 2025
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.18422 of 2024
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed seeking the following relief:
"...to issue any appropriate Writ, Order or Direction; more particularly one is the nature of Writ of Mandamus declaring the 2nd Respondent's impugned Order vide C/85970/SA/ 2024/DGQA/Adm-4, Dated 21.05.2024, rejecting the petitioner's claim for considering his case for promotion as Brigadier (Pay level 13-A) from Colonel (Pay level-13) dt.10.05.2024 as illegal, arbitrary, discriminatory, unconstitutional and in clear violation of principles of natural justice and consequently direct the Respondents to consider the Petitioner's 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 to a permanently Seconded Service 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 2011, he was permanently absorbed into respondent No.2 Directorate, an entity comprising both Civilian and Army 2 PK, J W.P.No.18422 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, 'PSSOs'), and their postings and promotions are governed by the Rules framed by the Department of Personnel and Training (DoPT), New Delhi. It is further 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 and seniority.
4. Learned counsel further submitted that the Departmental Promotion Committee of respondent No.2 Directorate, known as the Quality Assurance Selection Board (for short, 'QASB'), recently convened to consider the promotions from Colonel (Pay level-13) 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 fit 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 3 PK, J W.P.No.18422 of 2024 meetings arbitrarily without adopting 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-12 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 will be deemed to meet the benchmark for promotion and are graded fit 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 any 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 Performance 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 4 PK, J W.P.No.18422 of 2024 further submitted that the petitioner was graded 'Good' during the reporting year 2017-18. Dissatisfied with the same, the petitioner had submitted a representation dated 07.01.2019. However, the said representation was rejected by way of a non-speaking order dated 09.12.2019. Learned counsel further submitted that the Hon'ble Apex Court, in Union of India v. G.R. Meghwal, has held that rejection of a representation of an employee against the APAR through a non-speaking 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 pass necessary orders by setting aside the impugned order dated 21.05.2024.
6. Per contra, learned counsel appearing for the respondents submitted that the Office Memorandum dated 18.02.2008 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 'Very Good' in all the APARs for the preceding five years to be eligible for consideration for promotion. It is further submitted that the representation of the petitioner dated 10.05.2024 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 5 PK, J W.P.No.18422 of 2024 a detailed speaking order dated 15.07.2024 was already issued. Hence, the present writ petition is premature, as the case of the 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.
8. Before delving into merits of the case, it is pertinent to note that the primary grievance of the petitioner pertains to the impugned order vide C/85970/SA/2024/DGQA/Adm-4 dated 21.05.2024, issued by respondent No.2, which has been described as a cryptic and non-speaking order. The material on record discloses that after filing the present writ petition, the respondents have issued a detailed speaking order vide A/98661/28/COURT CASE/DGQA/Adm-4 dated 15.07.2024, addressing the claim of the petitioner. However, the petitioner failed to challenge the said order. 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.
9. In view of the above, the present writ petition is liable to be dismissed.
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PK, J W.P.No.18422 of 2024
10. Accordingly, the Writ Petition is dismissed. However, the petitioner is at liberty to challenge the speaking order issued by respondent No.2 vide A/98661/28/COURT CASE/DGQA/Adm-4 dated 15.07.2024, if he so desires.
Miscellaneous applications, if any, pending in this writ petition, shall stand closed. No costs.
___________________________ PULLA KARTHIK, J Date: 10.01.2025.
GSP