Jammu & Kashmir High Court - Srinagar Bench
Manoj Kumar Gupta vs Union Of India And Others on 15 October, 2019
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No.959/2014
Reserved on :03.10.2019
Pronounced on: 15.10.2019
Manoj Kumar Gupta ...Petitioner(s)
Through:- Mr. Javed Iqbal, Advocate
V/s
Union of India and others ..Respondent(s)
Through:- Mr. T.M.Shamsi, ASGI for
Respondent Nos.1 to 3
None for respondent Nos. 4 to 14
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1. The petitioner is aggrieved and assails the promotion of respondent Nos. 4 to 14 from the rank of Second-in-Command (2IC) to the rank of Commandant made in supersession of the superior claim of the petitioner, who was senior to respondent Nos. 4 to 14 in the rank of Second-in-Command. The petitioner also assails two communications issued by respondent No.2 dated 11.11.2011 and 29.11.2012, whereby the claim of the petitioner for promotion to the rank of Commandant with effect from the date of such promotion of respondent Nos.4 to 14 has been rejected. The petitioner claims that he is entitled to promotion to the rank of Commandant with effect from the date, the private respondents have been 2 SWP No.959/2014 so promoted. The petitioner also claims that in the rank of Commandant he is entitled to be shown senior to the private respondents.
2. With the view to appreciate the grounds of challenge, it would be necessary to briefly notice the background facts leading to the filing of instant petition.
3. The petitioner appears to have joined his service as Assistant Commandant in the Central Reserve Police Force (CRPF) on 01.12.1994 as a direct recruit. The respondent Nos.4 to 12 also entered the said service as direct recruits, some along with the petitioner and some after the petitioner. The petitioner claims and which claim is not refuted by the official respondents, that he ranks senior to respondent Nos.4 to 12 in the gradation list of Assistant Commandant, Dy. Commandant and even at the Second- in-Command level. While the petitioner was serving as Dy. Commandant in the CRPF, he proceeded on deputation in the Madhya Pradesh Police on 03.05.2006 initially for a period of three years. Before the petitioner proceeded on deputation, he submitted an undertaking to the respondents, undertaking therein that in the event, the petitioner, while on deputation, does not find his name in the panel for promotion to the next higher rank due to non-fulfillment of the condition of two years mandatory service in duty battalion as Dy. Commandant, it would be the sole responsibility of the petitioner and that he would not claim any seniority over his juniors, who would have otherwise been promoted. The petitioner, however, was given Performa promotion under NBR to the rank of Second-in-Command while on deputation. On the request of Madhya Pradesh government, the deputation of the petitioner was, however, extended by two years. At the time of extension also, the petitioner submitted similar undertaking and 3 SWP No.959/2014 agreed not to claim promotion in the absence of mandatory field service. The promotions from the rank of Second-in-Command to the rank of Commandant were considered by the DPC held on 19.03.2010. Although, the petitioner was meeting the prescribed benchmark for promotion in terms of his ACRs grading but did not have even a single day's mandatory field service as Second-in-Command in a duty Battalion. Being ineligible on the aforesaid score, the petitioner was graded by the DPC as 'UNFIT'. The petitioner was, thus, not brought on the panel of promotion. The next DPC for promotion of Second-in-Commandant to the rank of Commandant for the year 2011-12 was not held allegedly due to non-availability of relaxation in eligibility criteria from DOP&T of the Ministry of Home Affairs. The DPC was, thus, held for the year 2012-13 on 01.02.2012 and by this time the CRPF Group "A" Officers (GD) Recruitment Rules, 2001 ('Rules of 2001' for short) had been revised and the new CRPF Group "A" Officers (GD) Recruitment Rules, 2010 (for brevity 'Rules of 2010') had come into existence. This time, the DPC found that, though, the petitioner was meeting the other eligibility criteria and benchmarks for promotion but was falling short of two years mandatory field service in the rank of Second-in-Command as on the crucial date of DPC i.e. 01.02.2012. The petitioner was given the benefit of relaxation as it was found that there was likelihood of the petitioner's completing half of the mandatory two years field service during the vacancy year 2012-13. The petitioner was, accordingly, declared fit for promotion and brought on the panel. The petitioner was eventually promoted to the rank of Commandant from the panel of DPC dated 01.02.2012 for the year 2012-13.
4 SWP No.959/2014
4. The petitioner claims and this exactly is the grievance projected by him in this writ petition that being senior to respondent Nos. 4 to 12 and eligible in all respects, the petitioner was entitled to promotion to the rank of Commandant along with respondent Nos. 4 to 12, who were so promoted in the DPC held on 19.03.2010 for the year 2010-11.
5. Aggrieved, the petitioner represented before respondent No.2. The representation of the petitioner was considered and the same was rejected in terms of communication No.P.VII-4/2011-Pers-DA.I dated 11.11.2011. As is apparent from the rejection order, the petitioner was intimated that he was not empanelled for promotion to the rank of Commandant by the DPC on the ground that he was lacking two years 'Mandatory Field Service' in the rank of Second-in-Command. The undertaking submitted by the petitioner at the time of seeking his deputation was also cited as another reason for denying promotion to the petitioner. The petitioner appears to have represented again and this time also the representation was rejected by respondent No.2 on similar grounds, as is apparent from communication dated 29.11.2012. The petitioner, however, got promotion only in the year 2012-13 pursuant to the recommendation of DPC held on 01.02.2012. Obviously, the petitioner has been rendered junior to respondent Nos. 4 to 14 in the rank of Commandant and has been deprived of two years seniority as well. It is in the backdrop of aforesaid facts the petitioner has filed the instant petition.
6. The official respondents have filed their reply affidavit and have taken the stand as was taken by them while rejecting representations of the petitioners in terms of impugned communications dated 11.11.2010 5 SWP No.959/2014 and 29.11.2012. The petitioner has also filed rejoinder and contested the stand of the official respondents taken in their counter affidavit.
7. Having heard learned counsel for the parties and perused the record, I am of the view that there is substance in the submissions made on behalf of the petitioner. The petitioner has apparently been denied promotion to the rank of Commandant on the grounds which are not only arbitrary but are also contrary to and in violation of the relevant recruitment rules, which were in force on the date when the first DPC was held in the year 2010 and the case of the petitioner was, though, considered but he was declared "UNFIT" on account of not having a single day of mandatory field service as Second-in-Command in the duty Battalion.
8. The facts are not in dispute. The petitioner while serving as Deputy Commandant in the CRPF was deputed to the Madhya Pradesh Police w.e.f. 03.05.2006. The deputation was initially for a period of three years but later on it was extended by two years more on the request of Madhya Pradesh government. While proceeding on deputation the petitioner was asked by the official respondents to execute an undertaking. The undertaking submitted by the petitioner is appended as Annexure-R-1 with the counter affidavit filed by the official respondents. From a bare reading of the undertaking submitted by the petitioner before proceeding on deputation, it is apparent that the petitioner had acknowledged the rule position that for becoming eligible for next rank promotion i.e. to the rank of Second-in-Command, the petitioner was required to possess two years mandatory field service in the duty Battalion as Dy. Commandant and that if he did not find his name in the select panel to the next higher rank due to non-fulfillment of the aforesaid condition as laid down in the CRPF Group 6 SWP No.959/2014 "A" Officers Recruitment Rules, 2001, it would be his sole responsibility and he would not claim seniority over his juniors. At the time of extension of his deputation also he submitted an undertaking that he would not claim promotion, if DPC did not consider his name for want of mandatory field service. It is also not in dispute that the petitioner has been given Performa promotion from the rank of Dy. Commandant to the rank of Second-in- Command while he was on deputation in MP Police. The official respondents also did not dispute that in the rank of Second-in-Command the petitioner was senior to respondent Nos.4 to 14.
9. As is gatherable from the record and the reply affidavit filed by the official respondents, the DPC for the year 2010-11 was held on 19.03.2010. The petitioner along with respondent No.4 to 14 were in the zone of consideration. It is fairly conceded by the official respondents that the petitioner was meeting the prescribed benchmarks for promotion in terms of the ACR grading but was declared "Unfit" by the DPC on the ground that he had not completed even a single day of Mandatory Field Service as Second-in-Command in Duty Battalion, and, that there was no likelihood of petitioner's completing the same being on deputation. This is how the petitioner could not make it to the promotion panel for year 2010-
11. The petitioner, however, was again considered in the DPC held for the year 2012-13 and in terms of the Recruitment Rules of 2010, that had come in existence by that time, the petitioner was declared fit and empanelled for promotion to the post of Commandant. As is the stand taken by the official respondents, even this time as well the petitioner was falling short of mandatory field service and had only four and half month such service to his credit but by operation of the Rules and having regard to the fact that 7 SWP No.959/2014 the petitioner was likely to complete two years' Mandatory Field Service during the vacancy year 2012-13, he was declared fit for promotion with the rider 'subject to completion of MFS' he was brought on panel for promotion and on completion of requisite i.e. half of prescribed two years' MFS, he was promoted from the panel of DPC dated 01.02.2012 for the year 2012-13.
10. The issue which begs determination in this case is as to whether in terms of the Recruitment Rules in force in the year 2010-11, the petitioner had the requisite eligibility for promotion to the post of Commandant and whether the undertaking given by the petitioner at the time of his deputation or at the time of extension of his deputation could be used against the petitioner to deny him the promotion, if he was otherwise eligible in terms of the Rules then in force. The answer to this question would set the controversy involved in this petition at rest.
11. With a view to appreciate the aforesaid issue, it would be necessary to advert to the Rules of 2001 and the eligibility for promotion to the post of Commandant prescribed therein. The post of Commandant figures at serial No.6 of the Schedule appended to the Rules and prescribed the eligibility in the following manner:-
"By Promotion:
(a) Second-in-Command of Central Reserve Police Force with fifteen years Group "A" service of which at least two years service should be in the rank of Second-in-Command.
(b) Two years service as Second-in-Command in duty Bn. Of Central Reserve Police Force.8 SWP No.959/2014
(c) Should have undergone promotional course/training as prescribed by Director General, Central Reserve Police Force from time to time.
(d) Medical category SHAPE-I
(e) The condition regarding qualifying/eligibility service shall be deemed to have been relaxed in the case of seniors if their juniors have completed the prescribed eligibility conditions and are being considerd for promotion."...........
12. These Rules, however, came to be substituted and replaced by the Rules of 2010, which came into force w.e.f. 16.08.2010 when these were published in the Gazette of India. As discussed above, the DPC for the relevant year i.e. 2010-11 was conducted by the official respondents on 19.03.2010 when Rules of 2001 were in force. This is also the stand of the official respondents, as taken in para-8 of the reply affidavit. It is, thus, beyond any cavil of debate that in the DPC which was conducted on 19.03.2010, the eligibility of the officers in the zone of consideration was determinable in terms of the Rules of 2001. From the stand of the official respondents, it is clear that the petitioner had the eligibility as laid down in the Rules of 2001. The petitioner had the mandatory 15 years Group "A" service of which he had served in the rank of Second-in-Command for more than two years. He had undergone requisite promotional course/training and was in the medical category SHAPE-I as well. As fairly stated by the respondents in their reply affidavit, the petitioner was also meeting the prescribed benchmarks for promotion in terms of his ACR 9 SWP No.959/2014 grading. The respondents, however, have justified the exclusion of the petitioner on the ground that on the relevant date i.e. 19.03.2010, the petitioner did not have even single day's Mandatory Field Service as Second-in-Command in a duty Bn and that there was no likelihood of his completing the same being on deputation in the M.P. Police.
13. Interestingly, and for no discernible reasons, the official respondents have not dealt with Clause (e) of the eligibility conditions provided for promotion to the post of Commandant in the Rules of 2001, which I have reproduced herein above. The condition (e), highlighted by me in the reproduced text, provides for deemed relaxation of qualifying/eligibility service in the case of seniors, if their juniors have completed the prescribed eligibility conditions and are being considered for promotion.
14. In the instant case, though, the petitioner was not meeting the requirements of having two years service as Second-in-Command in a duty Bn of the CRPF being on deputation in M.P. Police, yet having regard to the fact that his juniors serving as Second-in-Command in CRPF had completed the prescribed eligibility service and were considered for promotion in the DPC held on 19.03.2010, it was a case of deemed relaxation in favour of the petitioner. By operation of eligibility condition No.(e) aforesaid, the mandatory two years service as Second-in-Command in duty Bn. was deemed to have been relaxed and no formal order in this connection was required. Had the official respondents applied Clause (e) of eligibility conditions, the petitioner would have been considered along with juniors i.e. respondent Nos. 4 to 14 and promoted in the year 2010-11. The undertaking submitted by the petitioner at the time of his deputation and at 10 SWP No.959/2014 the time of extension of deputation on the request of Madhya Pradesh Government does not change the rule position. What the petitioner had undertaken was that in case he is considered for promotion to the next higher rank and found wanting the mandatory two years Field Service in duty Bn. of the CRPF, he would not raise any grievance on the ground that he could not complete the requisite service having been sent on deputation to M.P.Police. Nothing more can be read into the undertaking executed by the petitioner. It is not the case of the official respondents that by submitting undertaking the petitioner had agreed to forego his promotion.
15. As stated above, the petitioner was meeting the eligibility conditions laid down in the Rules of 2001 and being senior to respondent Nos. 4 to 14, he was entitled to be empanelled for promotion for the year 2010-11. Rejection of representation by respondent No.2 is also not legally correct. It appears that the representation of the petitioner made against his supersession in promotion to the rank of Commandant in the year 2010-11 was considered by respondent No.2 in light of the Recruitment Rules of 2010, which admittedly had come into force only w.e.f. 10.08.2010 and were thus not applicable to the DPC held on 19.03.2010. The undertaking was also misunderstood and misinterpreted by respondent No.2. In view of the specific stand taken by the respondents in paragraph 8 of the reply affidavit, that the DPC was held on 19.03.2010 and the eligibility conditions prescribed under the Rules of 2001 alone were applicable and were adhered to, the rejection of representation of the petitioner by respondent No.2 purportedly in light of the eligibility prescribed under the Rules of 2010 was totally unjustified and de hors the legal position. 11 SWP No.959/2014
16. For the foregoing reasons, I find merit in this petition and the same is, accordingly, allowed. The impugned communications dated 11.11.2011 and 19.11.2012 issued by respondent No.2 are quashed. A direction is issued to respondent Nos. 1 to 4 to accord benefit of promotion to the rank of Commandant to the petitioner with effect from the date the respondent Nos.4 to 14 were so promoted with all consequential benefits. The petitioner shall also be entitled to rank senior to respondent Nos. 4 to 14 in the rank of Commandant.
(Sanjeev Kumar) Judge Srinagar.
15.10.2019 Anil Raina, JR/Secy Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No ANIL RAINA 2019.10.16 13:31 I attest to the accuracy and integrity of this document