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1988 DIGILAW 135 (CAL)

Bhomeswar Misra v. Union of India

1988-03-30

SUDHIR RANJAN ROY

body1988
ORDER The petitioner was appointed as Inspector/Executive in the Central Industrial Security Force (in short, the CISF) on 1.8.70. There from he was promoted as Deputy S.P. on 12.2.71 and thereafter on 16.2.72 he was promoted as Assistant Commandant in the scale of Rs. 350-900/-. In the said scale of pay the petitioner was allowed to cross the efficiency bar at the stage of Rs. 590/- with effect from 20.8.74 and he was granted regular increments upto 1.8.76, thereby raising his pay to Rs. 680/- with effect from 1.8.76. 2. The scale of pay of the petitioner was revised by the Third Central Pay Commission to Rs. 650.1230/- and in the said reversed scale the petitioner’s pay was fixed at Rs. 810/- with effect from 1.1.73 and his next date of increment was mentioned as 20.8.73. 3. Though the petitioner was scheduled to cross the efficiency bar at Rs. 810/- with effect from 20.8.73, he was actually allowed to cross the said efficiency bar with effect from 1.8.78 on the ground of certain adverse remarks against him. 4. The petitioner, though he was appointed as Assistant Commandant on 5.10.72 and completed his two years probationary period on 4.10.74, he was neither confirmed to the post of Assistant Commandant on the expiry of the said period of probation, nor was he reversed back to his original position as Inspector/Executive. It was because of this that his position in the seniority list gradually went down and from his initial sixth position in the seniority list he was down-graded to the 145th position In the seniority list prepared in 1986 and in consequence thereof was superseded by his juniors in the matter of promotion to higher grades. 5. Having failed to obtain any redress from the departmental authority in spite of repeated representations, the petitioner has come up before this Court under Article 226 of the Constitution for necessary reliefs. 6. According to the respondents the petitioner, though he was due to cross the efficiency bar on 20.8.73, could not be allowed to do so due to certain adverse remarks against him. His case was subsequently considered by the DPC and he was allowed to cross the efficiency bar with effect from 1.8.78. The other material averments contained in the writ petition have also been specifically denied by the respondents. 7. His case was subsequently considered by the DPC and he was allowed to cross the efficiency bar with effect from 1.8.78. The other material averments contained in the writ petition have also been specifically denied by the respondents. 7. Now, as it appears, the petitioner was allowed to cress the efficiency bar in the unrevised scale at the stage of Rs. 590/- and he was granted regular increments thereafter raising his pay to Rs. 680/- with effect from 1.8.76. The said scale of pay of Rs. 350.900/- was revised with effect from 6.7.77 to Rs. 650-1200/- and the petitioner's pay was fixed at Rs. 810/- with effect from 1.1.73, with the next date of increment on 20.8.73. 7A. In the aforesaid revised scale the petitioner was to cross the efficiency bar at the stage of Rs. 810/- though be had already crossed the efficiency bar at the equivalent stage in the un-revised scale, which was at the stage of Rs. 590. 8. The respondents in paragraph 19 of their affidavit-in-opposition have admitted that the petitioner was due to cross the efficiency bar in the revised scale on 20.8.73, but he could not be allowed to do so since there were adverse remarks against him for the period ending July 1973, 1975 to 1976, 1.4.76 to 2.8.76 and from 1.4.77 to 15.1.88. It has also been stated in the said paragraph of the affidavit-in-opposition that the representation of the petitioner against the adverse remarks for the period from 1.4.73 to 8.7.73 was rejected and was communicated to the petitioner on 25.2.75. This has however, been categorically denied by the petitioner in his affidavit-in-reply and as a matter of facts, Mrs. Uma Sanyal, the learned Counsel representing the respondents, could not produce anything to show that adverse remarks for the period from 1.4.73 to 8.7.73 were at all communicated to the petitioner. 9. Regarding the adverse remarks for the subsequent periods, the petitioner made representations in all the cues as it will appear from paragraph 19 of the affidavit-in-opposition, but the said representations could not admittedly be disposed of prior to 1979 and 1980. It is, accordingly, not at all discernible how the DPC in June, 1978 could stop the petitioner from crossing the efficiency bar on the basis of adverse remarks commencing from 1.4.75 onwards since the petitioner's representations against such adverse remarks still remained to be disposed of. 10. It is, accordingly, not at all discernible how the DPC in June, 1978 could stop the petitioner from crossing the efficiency bar on the basis of adverse remarks commencing from 1.4.75 onwards since the petitioner's representations against such adverse remarks still remained to be disposed of. 10. In this connection reference may be made to Annexure 'G' to the writ petition which is an Office Memorandum dated 30.1.78 communicated by the Deputy Secretary to the Government of India Paragraph 5 of the said Memorandum is as hereunder : "All representations against adverse remarks should be decided expeditiously by the competent authority filled in any case, within three months from the date of submission of the representation. Adverse remarks should not be deemed as operative if any representation filed within the prescribed limit is pending. If no representation is made within the prescribed time, or once this has been finally disposed of there would not be further bar to taking notice of the adverse entries". 11. It is clear from the aforesaid paragraph of Annexure 'G' that unless representation against the adverse remarks is disposed of within three months from the date of submission of such representation the adverse remark should not be deemed to be operative. 12. In the instant case, as it will appear from paragraph 19 of the affidavit-in-opposition, that representation made on 30.5.77 against the adverse remarks from 1.4.75 to 24.7.75 was disposed of on 8.10.79. Similarly representation against the adverse remarks for the period from 25.7.75 to 1.4.76, made on 30.5.77 was disposed of on 8.10.79 and representations dated 6.2.78 and 28.4.78 against the adverse remarks for the period from 1.4.76 to 2.8.76 and 1.4.77 to 15.1.78 respectively, were disposed of on 22.12.79 and 2.2.80 respectively. 13. So, in none of the aforesaid cases the representations made by the petitioner could be disposed of within a period of three months from the date of the respective representations and such representations were pending beyond June, 1978. Consequently, such adverse remarks, in view of the Memorandum (Annexure 'G'), as referred to above, should be deemed to have become inoperative. And that being so, the DPC in Judge, 1978 could under no circumstances take such adverse remarks into consideration in the matter of debarring the petitioner from crossing the efficiency bar at the stage of Rs. 810/-. 14. Significantly, Mrs. And that being so, the DPC in Judge, 1978 could under no circumstances take such adverse remarks into consideration in the matter of debarring the petitioner from crossing the efficiency bar at the stage of Rs. 810/-. 14. Significantly, Mrs. Sanyal, the learned Counsel representing the respondents, could not in her fairness, support the aforesaid action of the DPC as referred to in paragraph 19 of the affidavit-in-opposition. 15. In the circumstances above, I have no other alternative but to hold that the DPC was wrong in not allowing the petitioner to cross the efficiency bar at the stage of Rs. 810/- with effect from 20.8.73. The subsequent order allowing the petitioner to cross the efficiency bar at the stage of Rs. 810/- with effect from 1.8.78 should, accordingly, be held to be bad in law. 16. Coming next to the question of confirmation of the petitioner on completion of the probationary period as Assistant Commandant on 4.10.74, it appears, that though the petitioner duly completed his probationary period of two years on 4.10.74, he was neither confirmed as Assistant Commandant on the expiry of the said period, nor was he reverted to his original position. 17. Reference in this connection may be made to Annexure ‘A/6’ to the supplementary affidavit filed by the petitioner on December 15, 1987. It appears there from that under Rule 19 of the CISF Rules, 1969 as interpreted by the Ministry of Law the period of probation can only be extended in special cases and the order extending the said period must be passed shortly after the expiry of the normal period of probation viz, two years. There is no scope for extending the period retrospectively. In case, the period of probation has not been extended at the appropriate time or the person has not been discharged or reverted after the expiry of the period of probation, the probationer will be deemed to have completed the period of probation satisfactorily. 18. In the instant case, there is nothing to show that the period of probation of the petitioner as Assistant Commandant, was ever extended and as already seen, he wall neither discharged nor reverted to his original position on his completing the probationary period. And that being so, it should be deemed that the petitioner had completed the period of probation satisfactorily. 19. And that being so, it should be deemed that the petitioner had completed the period of probation satisfactorily. 19. Strangely, however, the petitioner, in spite of his having completed the probationary period satisfactorily as per the relevant Rule, he is yet to be confirmed as Assistant Commandant even after the long lapse of 14 years or so. This shows that the concerned authority of the CISF followed the relevant Rule more in breach than in observance, consequent to which the petitioner had not only to suffer humiliation, but he was also superseded by his juniors in the matter of subsequent promotions. Undoubtedly, this has also caused immense financial loss to the petitioner. 20. Considering the circumstance above, the respondents should be directed to confirm the petitioner as Assistant Commandant with effect from 4.10.74 when he satisfactorily completed his probationary period under Rule 19 of the CISF Rules, 1969 (vide Annexure ‘A16’ to the Supplementary affidavit filed by the petitioner). 21. As a result, the writ petition succeeds and the Rule issued is made absolute. 22. The respondents are hereby directed by the issuance of a writ in the nature of Mamdamus to pass necessary orders to the effect that the petitioner had crossed the efficiency bar at the stage of Rs. 810/- in the revised scale of pay with effect from 20.8.73 and also to issue orders confirming the petitioner as Assistant Commandant with effect from 4.13.74 when he had successfully completed his period of probation. 23. This should be done within a period of thirty days from this date and on the basis of the petitioner having been confirmed as Assistant Commandant with effect from 4.10.74, the Gradation Lists of the Assistant Commandants upto date, should be revised within a period of thirty days thereafter And within a period of forty-five days after proper fixation of the petitioner’s seniority in the Gradation List retrospectively, he should be given all his arrear emoluments in accordance with law and the existing Rules While doing so, it should also be taken into consideration that the petitioner had crossed the efficiency bar at the stage of Rs. 810/- in the revised scale with effect from 20.8.73. 24. 810/- in the revised scale with effect from 20.8.73. 24. The petitioner should also be duly considered for further promotion/ promotions on the basis of the revised seniority list as expeditiously as possible, which should not be beyond the period of 180 days from the date of re-fixation of the petitioner's seniority. 25. It may be recorded here that the prayers in the writ petition have been re-moulded with the object of giving appropriate relief’s to the petitioner in the background of the facts and circumstance of the case. No order is made for costs in the Rule. Rule made absolute; direction given.