Chattisgarh High Court
D K Dixit vs Director General Cisf & Others on 8 February, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION No 2778 of 1991
D K Dixit
...Petitioners
Versus
Director General CISF & Others
...Respondents
! Shri P P Sahu Advocate for the petitioner
^ Smt Fouzia Mirza Assistant Solicitor General for the respondents
CORAM: Honble Shri Satish K Agnihotri J
Dated: 08/02/2010
: Judgment
J U D G M E N T
Delivered on 08th day of February 2010 PETITION UNDER ARTICLE 226 227 OF THE CONSTITUTION OF INDIA
1. By this petition under Article 226/227 of the Constitution of India, the petitioner seeks a direction to the respondents to promote the petitioner as Inspector/Executive w.e.f.
November, 1987 and also to fix his seniority accordingly with consequential benefits and 12% interest p.a. on the arrears of pay and allowance.
2. The facts, in brief, are that the petitioner was initially appointed as Assistant Sub Inspector/Executive in the Central Industrial Security Force, (hereinafter referred to as `the CISF') on 24.4.1976 and thereafter, as Sub Inspector/Exe. 28.6.1982 by direct recruitment. The petitioner, while serving in CISF Unit, M.P.T. Madras, was placed under suspension on 5.12.1983 and disciplinary enquiry was initiated against him which resulted into dismissal from service on 31.8.1984. The petitioner preferred an appeal against the said order before the Deputy Inspector General, CISF, South Zone, Madras. The appellate authority set aside the order of dismissal and the petitioner was reinstated in service on 12.10.1985. It was further directed by the appellate authority to initiate de-novo enquiry. In the de-novo enquiry, one of the two charges alleged against the petitioner was found proved. Resultantly, the Commandant, CISF, V.P.T. Vishakhapatanam, reduced the petitioner to the minimum stage in the time scale of pay from Rs. 392/- to Rs. 380/- for a period of two years without cumulative effect vide order dated 04/06.09.1986. The appeal preferred thereagainst was rejected by the D.I.G. Madras.
3. Being aggrieved, the petitioner preferred a writ petition in the High Court of Judicature, Andhra Pradesh at Hyderabad, being W.P. No. 7348 of 1987. The learned Single Judge, set aside the impugned order dated 04/06.09.1986 and allowed the writ petition on 24.11.1989 (Annexure P-1).
4. Shri P.P.Sahu, learned counsel appearing for the petitioner would submit that the petitioner is entitled to regularization of period during which the petitioner remained unemployed on account of dismissal from service from 31.08.1984 to 12.10.1985. The petitioner is further entitled to promotion from the date, his juniors were promoted in November, 1987 as the adverse remarks of dismissal and reduction to the minimum stage in the time scale of pay from Rs. 392/- to Rs. 380/- for a period of two years without cumulative effect vide order dated 04/06.09.1986, was available till the same was set aside on 24.11.1989 by the learned Single Judge. Shri Sahu would further submit that the petitioner was granted relief by order dated 21.03.1991 (Annexure P-4) whereby the petitioner was treated as on duty for all purposes and pay and allowances were regularized. Thus, consideration by the Departmental Promotion Committee (for short `the DPC') without having order dated 21.03.1991 whereby the absence during suspension between the date of dismissal from service and reinstatement in service including suspension was not regularized and as such, was not proper. Thus, the respondent authorities may be directed to hold a fresh DPC to consider the case of the petitioner for promotion to the post of Inspector/Exe. on regular basis.
5. Per contra, Smt. Fouzia Mirza, learned Assistant Solicitor General appearing for the respondents would submit that the dismissal order dated 31.08.1984 was set aside by order dated 12.10.1985 passed by the appellate authority and at the time of consideration, the petitioner was in regular service. Secondly, the High Court of Judicature, Andhra Pradesh at Hyderabad, set aside the punishment of reduction to the time scale of pay from Rs. 392/- to Rs. 380/- for a period of two years without cumulative effect vide order dated 04/06.09.1986, on 24.11.1989. The review DPC was held on 5.11.1990. The overall performance of the petitioner in the year 1987-88, 1988-89 and 1989-90 was considered and on consideration, the petitioner was found `not yet fit' for promotion. The order dated 21.03.1991 (Annexure P-4) was not for the purpose of removing the order dated 04/06.09.1986 whereby the petitioner was reduced to the minimum scale of pay for two years without cumulative effect, but for grant of regularization of pay and allowances for the dismissal period and suspension, which would not affect consideration. The facts makes it clear that after quashing of the dismissal order by the appellate authority, the petitioner was reinstated in service and all the benefits of the services were granted to the petitioner. The petitioner was assigned proper work and on the basis of his performance, his over all grading was done in the ACRs which were before the review DPC for consideration. The review DPC, having examined all the aspects found the petitioner as `not yet fit'. It was further urged that the petitioner was subsequently found fit and by order dated 21.12.1995 (Document-1) promoted on the post of Inspector/Exe. on regular basis. The petitioner has thereafter taken voluntary retirement w.e.f 01.10.1996 on completion of 20 years 5 months and 7 days service, which was granted vide order dated 7.10.1996 (Document B).
6. The sole contention of the petitioner is that the order dated 21.03.1991 (Annexure P-4) whereby the petitioner was treated as on duty for all purposes and pay and allowances were regularized for the period from 05.12.1983 to 30.08.1984 (269 days) and 31.08.1984 to 11.10.85 (407 days), was not available for consideration in review DPC, thus, the same was vitiated.
There is no other challenge that there was any irregularity or illegality in the process of consideration.
7. The respondents have clearly averred in their response that the review DPC has not taken cognizance of any punishment as the same was quashed by the learned Single Judge on 24.11.1989 (Annexure P-1). The suspension and dismissal were set aside earlier on 12.10.1985 itself. The petitioner was graded as `average' throughout from 1987 to 1990. The review DPC held on 5.11.1990 has not considered any adverse ACR on the basis of award of punishment which was subsequently quashed by the learned Single Judge by order dated 24.11.1989. The grading is given by the departmental officers solely on the basis of actual performance, assessed objectively. The petitioner was not out of service from 1985 till his case was considered in 1990. His performance was duly assessed.
8. This Court has also perused the original records of ACR produced by the respondents. On careful consideration, it was found that the period of probation was extended for two years, from 27.6.1984 more than two years to 17.11.1986 as recorded in the service record dated 24.02.1987. For the period 8.8.1983 to 5.12.1983 only, it was recorded that the petitioner was placed under suspension from 05.12.1983 and unaccounted money was found in his possession. Thereafter, nothing about suspension, dismissal or subsequent reduction of pay scale was recorded in the service records. The reviewing officer, on 30.02.1987 has recorded in the ACR that the probation period of the petitioner was not found satisfactory and the same was directed to be extended by six months. However, subsequently, he was found fit for retention and confirmation. It was recorded on 30.05.1987 that the petitioner was an `average' officer. The petitioner has further been graded as `average' by the Commandant on 22.02.1988. There was no mention of any punishment in the service record. For the period from 01.01.1988 to 11.12.1988, the petitioner was graded as `good'. There was no mention of award of any punishment. Further, for the period from 02.04.1989 to 30.11.1989, there was no mention of any punishment and he was graded as `average'. For the period from 19.04.1990 to 31.12.1990, after the award of reduction of pay scale was set aside by the High Court, there was no mention of punishment in the service records and the petitioner was graded as `average. On perusal of the documents, it is found that the petitioner was never graded as `very good' or `outstanding' except `average' or `good'. Thus, the contention of the petitioner that the review DPC has not considered other factors i.e. quashing of the award of reduction of scale of pay for two years without cumulative effect, is not based on any materials. It is evident that the subsequent order dated 21.03.1991 (Annexure P-4) was only for treating the petitioner on duty for all purposes and regularization of pay and allowances.
9. Challenge to the order dated 29.05.1991 (Annexure P-7) is noticed to be rejected on the ground that it was clearly observed that the petitioner was considered for promotion to the rank of Inspector/Exe. by the review DPC held on 5.11.1990 to assess his suitability for promotion during the period 1987, 1988, 1989 and 1990 wherein, he was not found fit due to over all poor records of service.
10. It is further stated by Smt. Mirza, that all the dues of pay and allowances have already been paid to the petitioner, therefore there is no question of grant of any interest on any amount.
11. It is trite that the recommendation of the DPC may not be interfered with in normal circumstances, except if the same is found as perverse, irregular and arbitrary.
12. The Supreme Court, in UPSC v. K. Rajaiaha & Others1, observed that in absence of specific challenge to the rules or procedural guidelines, no definite opinion can be expressed.
13. Further, in Union Public Service Commission v. L.P.Tiwari & Others2, the Supreme Court observed as under:
"12. It is now more or less well settled that the evaluation made by an expert committee should not be easily interfered with by the courts which do not have the necessary expertise to undertake the exercise that is necessary for such purpose. Such view was reiterated as late as in 2005 in UPSC v. K. Rajaiah wherein the aforesaid Regulations for the purpose of promotion to the IPS cadre were under consideration. Apart from the above, at no stage of the proceedings, either before the Tribunal or the High Court or even before this Court, has any allegation of mala fides been raised against the Selection Committee and the only grievance is that the Selection Committee erred while making assessment of the comparative merits of the respective candidates.".
14. In Union of India & another v. S.K.Goel & Others3, the Supreme Court observed as under:
"27. In our opinion, the judgment of the Tribunal does not call for any interference inasmuch as it followed the well-settled dictum of service jurisprudence that there will ordinarily be no interference by the courts of law in the proceedings and recommendations of DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is misgrading of confidential reports. In the present case, DPC had made an overall assessment of all the relevant confidential reports of the eligible officers who were being considered. DPC considered the remarks of the reviewing officers. There was clear application of mind. Respondent 1 did fulfil the benchmark. Hence, the impugned direction of the High Court ought not to have been issued as the same will have the impact of causing utter confusion and chaos in the cadre of the Indian Revenue Service and the Customs and Central Excise Service."
15. Taking an overall view and having due regard to the limitations inherent in judicial review of selection process by an expert body, the decision taken by the DPC, I am of the view, that no interference is warranted in the selection process held by the review DPC.
16. Applying the well settled principles of law to the facts of the case on hand, the writ petition is dismissed.
17. There shall be no order asto costs.
J U D G E