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2010 DIGILAW 297 (KER)

Director General of CISF v. M. Chandran Pillai

2010-03-29

P.N.RAVINDRAN, P.R.RAMAN

body2010
JUDGMENT : P.N. Ravindran, J. 1. The appellants are the respondents in OP No. 21032 of 2002. The sole respondent is the petitioner therein. By judgment delivered on 12/11/2008 the learned Single Judge allowed the original petition. The appellants have, aggrieved thereby, filed this writ appeal. The brief facts of the case are as follows: 2. The petitioner entered service as Head Constable (Driver) in the Central Industrial Security Force ('CISF' for short) on 2nd April, 1984. Upon successful completion of probation he was confirmed in service with effect from 1st January, 1987 by Ext. P1 order dated 22nd dumber, 1988. In the CISF there are two categories of Head Constables; Head Constable (General Duty) and Head Constable (Driver). The next promotion post for Head Constables of both categories is Assistant Sub Inspector ('ASI' for short). As per the Recruitment Rules, a copy of which is produced as Ext. R3(a), Head Constables, who have completed five years' regular service in that category and have successfully completed the Promotion Cadre Course, are eligible to be promoted to the category of ASI. Promotion is by selection on the basis of service records and the vacancies in the category of ASI have to be filled up from among Head Constables (General Duty) and Head Constables (Driver) in the ratio of 5:1. It is also stipulated that in the absence of suitable Head Constables (Driver), all vacancies shall be filled up from among Head Constables (General Duty). 3. The petitioner passed the Promotion Cadre Course on 13/03/1993 after undergoing the course during the period from 18/01/1993 to 13/03/1993 in the Central Industrial Security Force Training Centre, Bhilai. Ext. P2 certificate was thereupon issued certifying that he has undergone and passed the Promotion Cadre Course on 13/03/1993. He had also completed live years' regular service in the category of Head Constable (Driver). 4. Contending that the ratio fixed for promotion has not been adhered to notwithstanding the availability of qualified Head Constables (Driver) and that eligible persons were excluded from the zone of consideration, the petitioner filed Ext. P5 representation before the Director General of the CISF requesting that a Departmental Promotion Committee may be convened to consider the case of eligible candidates. The petitioner thereafter filed OP No. 22919 of 2000 in this Court seeking promotion to the category of ASI. P5 representation before the Director General of the CISF requesting that a Departmental Promotion Committee may be convened to consider the case of eligible candidates. The petitioner thereafter filed OP No. 22919 of 2000 in this Court seeking promotion to the category of ASI. While that original petition was pending, the Departmental Promotion Committee selected the petitioner for promotion to the category of ASI and thereupon he was regularly promoted as ASI by Ext. P6 order dated 25/01/2001. In the light of the said development, this Court disposed of OP No. 22919 of 2000 by Ext. P7 judgment delivered on 17/01/2002, reserving liberty with the petitioner to move the authorities claiming promotion with retrospective effect. This Court further directed that in the event of the petitioner filing an appropriate representation within two weeks from the date of Ext. P7 judgment, the competent authority shall consider the same and pass appropriate orders within three months thereafter. 5. The petitioner thereupon filed Ext. P8 representation before the Director General of the CISF contending that there was deficiency in applying the ratio of 5:1 in the case of Head Constables (Driver), that Head Constables (General Duty) were promoted in excess of the quota when eligible Head Constables (Driver) were available to be considered for promotion and that as against 525 Head Constables (Driver), who were eligible to be promoted, only 228 have been promoted, that there is thus a deficiency of 297 turns available to Head Constables (Driver) and, therefore, as he was eligible to be promoted with effect from 13/03/1993, he may be promoted with retrospective effect from that date. By Ext. P9 order dated 09/04/2002, the Assistant Inspector General of the CISF rejected the said representation. He thereupon filed OP No. 21032 of 2002 in this Court challenging Ext. P9 and seeking the following reliefs: (a) Call for the records leading up to Ext. P9 and quash Ext. P9 by the issuance of a writ of certiorari or any other direction or order. (b) Direct the respondents to give promotion to the petitioner as ASI. (c) Retrospectively with effect from 1993 onwards with all consequential benefits. (d) Declare that the petitioner is entitled to be promoted as ASI from 1993. 6. P9 and quash Ext. P9 by the issuance of a writ of certiorari or any other direction or order. (b) Direct the respondents to give promotion to the petitioner as ASI. (c) Retrospectively with effect from 1993 onwards with all consequential benefits. (d) Declare that the petitioner is entitled to be promoted as ASI from 1993. 6. In the original petition the petitioner contended that there was a clear violation of the ratio when promotions were effected to the category of ASI, that eligible Head Constables (Driver) were excluded from the zone of consideration and that thereby a large number of vacancies earmarked for Head Constables (Driver) were filled up by Head Constables (General Duty) in violation of the ratio. In the writ petition he produced a chart showing the number of Head Constables of the two categories promoted to the post of ASI during the period from 1996 to 2000. He also contended that though he was also eligible for promotion to the category of ASI to be considered with effect from 13/03/1993, he was not considered till the year 2000. and that thereupon Ext.P6 order was passed promoting him to the category of ASI. 7. The appellants resisted the writ petition by filing a counter-affidavit. The appellants contended that candidates corresponding to twice the number of vacancies plus four were considered for promotion, that the zone of consideration was worked out on the basis o' seniority, that the petitioner was not considered for promotion since his turn did not arise and as suitable candidates in the category of Head Constables (Driver) were not available, the vacancies earmarked for them were also filled up by promoting Head Constables (Genera Duty) in terms of the stipulations in the Recruitment Rules. It was also contended that as and when the petitioner's turn arose in the year 2000 he was considered, selected and promoted 8. The learned Single Judge considered the rival contentions and held that the appellants have not proved that the Recruitment Rules were properly observed and the ratio properly applied. It was held that there was a deficiency in the number of Head Constables (Driver promoted as ASI. The learned Single Judge also held that the case put forward by the petitioner that adequate number of eligible Head Constables (Driver) were not considered for promotion has not been specifically denied by the appellants. It was held that there was a deficiency in the number of Head Constables (Driver promoted as ASI. The learned Single Judge also held that the case put forward by the petitioner that adequate number of eligible Head Constables (Driver) were not considered for promotion has not been specifically denied by the appellants. The original petition was accordingly allowed and the appellants were directed to promote the petitioner with retrospective effect from the year 1996 with all consequential benefits. The learned Single Judge also directed that Head Constables (Driver), who are seniors to the petitioner, shall also be given corresponding dates of promotion, but without any monetary benefits. The appellants have, aggrieved thereby, I preferred this writ appeal. 9. We heard Sri. T. Sanjay, the learned Additional Central Government Standing Counsel appearing for the appellants and Sri M. Rajagopalan, the learned counsel appearing for the respondent. The learned counsel for the appellants contended that adequate number of candidates from both categories of Head Constables were considered for promotion, that from among the said candidates, persons who had completed five years of service and had completed the Promotion Cadre Course were promoted applying the ratio 5:1 and that the posts which should have gone to Head Constables (Driver) were also filled up by promoting Head Constables (General Duty) for the reason that adequate number of eligible Head Constables (Driver) were not available. The learned counsel for the appellants, however, conceded that there was a deficiency in the number of Head Constables (Driver) promoted as ASI and that the deficiency arose because eligible persons were not available in the zone of consideration and therefore, applying the Recruitment Rules the vacancy was filled up by promoting eligible Head Constables (General Duty). The learned Additional Central Government Standing Counsel also submitted that the selections were made in accordance with paragraph 6.1.1 of the Consolidated Instructions OM No. 22011/5/86-Estt.(D) Government of India, Department of Personnel and Training. 10. Per contra, the learned counsel appearing for the respondent contended that though adequate number of candidates from both categories of Head Constables were considered for selection, even unqualified Head Constables (Driver) were in the zone of consideration thereby pre-judicially affecting the claims of eligible Head Constables (Driver) who had completed five years service in that category and had passed the Promotion Cadre Course. The learned counsel for the respondent contended that mere consideration of adequate number of candidates is not what is contemplated in the instructions referred to above and that only eligible persons should have been included in the zone of consideration. He contended that had the respondent been considered for promotion even in the year 1993, he would have been selected for promotion to the category of ASI earlier than in the year 2001. 11. We have considered the submissions made at the Bar by the learned counsel If appearing on either side. The relevant Recruitment Rule reads as follows: "(ii) Promotion: From amongst Head Constable (General Duty) and Head Constable (Driver) who have completed five years regular service in the rank and have successfully completed the promotion cadre course of Assistant Sub Inspector (Executive) prescribed by the Central Government from time to time. Note 1. - Selection will be made on the basis of service records. Note 2. - Vacancies shall be filled up from amongst Head Constable (General Duty) and Head Constable (Driver) in the ratio of 5:1. In the absence of suitable Head Constable (Driver) all vacancies shall be filled up from amongst Head Constable (General Duty). Note 3. - The seniors who have completed the probation period are also to be considered where the juniors who have completed the requisite service are being considered. Note 4. - Personnel who have completed the qualifying service and have been selected on the basis of service record should successfully complete Promotion Cadre Course of Assistant Sub Inspector (Executive) before being declared fit for promotion.'' 12. It is clear from the above quoted rule that Head Constables of either category, who have completed five years service in that category and have successfully completed the Promotion Cadre Course alone are eligible to be considered for promotion. The rule also stipulates that vacancies of ASI shall be filled up from both categories of Head Constables in the ratio of 5:1 and that in the absence of suitable Head Constables (Driver) all vacancies shall be filled up from amongst Head Constables (General Duty). The fact that the respondent was appointed as Head Constable (Driver) on 02/04/1984 and that he was confirmed in service with effect from 01/01/1987 in the category of Head Constable (Driver) are not in dispute. The fact that the respondent was appointed as Head Constable (Driver) on 02/04/1984 and that he was confirmed in service with effect from 01/01/1987 in the category of Head Constable (Driver) are not in dispute. The fact that he had successfully undergone and passed the Promotion Cadre Course on 13/03/1993 is also not in dispute. The respondent, therefore, admittedly became eligible to be considered for promotion applying the above quoted rule on 13/03/1993. He was, however, promoted only in the year 2001 by Ext. P6 order dated 25/01/2001. The main grievance of the respondent is that eligible persons like him, who had completed the prescribed length of regular service and had passed the Promotion Cadre Course were not included in the zone of consideration and considered for promotion in the earlier years, while ineligible Head Constables (Driver) who had not passed the Promotion Cadre Course were considered and due to non-availability of eligible candidates in that category, the vacancies earmarked for Head Constables (Driver) were filled up by Head Constables (General Duty) in excess of the quota. 13. Annexure B, the chart produced along with IA No. 750 of 2009 on which reliance was placed by the learned counsel for the appellants is extracted below: CHART-SHOWING HCS (GD & DVR) PROMOTED FROM 1996 TO 2000 Year Total as per seniorty No. of Direct Out of turn promotion Total No. considered ZOC of DVR upto No of Personnel Promoted Reqd. ratio Deficiency HC/DVR Promoted HC (GD) HC (DVR) Total HC (GD) HC(DVR) 5:01 of HC/DVR upto PSL 1 2 3 4 5 6 7 8 9 10 11 12 13 1993 417 50 4 1691 333 637 363 337 26 60 34 635 1994 236 9 14 613 130 365 213 195 18 35 17 344 1995 337 24 1155 369 514 313 280 33 52 19 514 1996 284 14 10 682 193 530A 260 245 15 43 28 524 1997 230 15 2 646 143 552 213 192 21 36 15 552 1998 711 39 12 1075 300 772 660 573 87 110 23 772 1999 180 3 12 428 128 698 165 136 129 28 (+)1 691 2000 871 17 16 1748 317 960 838 732 106 140 34 960 The learned counsel for the appellant contended that the respondent's rank number was 878 in the seniority list and that his turn for promotion arose only in the year 2000 when Head Constables (Driver) ranked between 692 to 961 were considered for promotion as ASI. Referring to the chart which we have quoted above, the learned counsel for the appellant contended that in the year 1996 as against 260 vacancies of ASI available to be filled up by promotion, though 193 Head Constables (Driver) were considered for promotion, only 15 were selected and promoted though as per the ratio, 43 Head Constables (Driver) could have been promoted. He submitted that the deficiency of 28 Head Constables (Driver) arose because out of the 193 candidates considered, adequate number of candidates were not found suitable. The learned counsel for the appellants was not, however, able to state whether only Head Constables (Driver) who had completed five years of regular service in that category and had passed the Promotion Cadre Course were considered for promotion and whether even if adequate number of such eligible persons had been considered, the deficiency would have occurred. There is no pleading either in the counter-affidavit filed in the original petition or in the writ appeal explaining the above aspect 14. A reference to the chart would show that though adequate number of Head Constables (Driver) were considered for promotion during the years 1993, 1994, 1995, 1996, 1997, 1998 1999 and 2000, there was a short fall in all the years except in the year 1999. A reference to the chart would show that though adequate number of Head Constables (Driver) were considered for promotion during the years 1993, 1994, 1995, 1996, 1997, 1998 1999 and 2000, there was a short fall in all the years except in the year 1999. The chart would show that the total number of posts of ASI that have gone to Head Constables (General Duty) during the years 1993, 1994, 1995, 1996, 1997, 1998 and 2000 in excess of the quota is 169. The materials on record establish beyond doubt that there was admittedly a deficiency in the number of Head Constables (Driver) who were promoted to the category of ASI. However, as noticed earlier, the materials available on record do not establish whether the deficiency arose even after all eligible Head Constables (Driver) were considered for promotion during the relevant years. 15. The relevant portion of paragraph 6.1.1 of the Office Memorandum dated 10/04/1989 referred to in paragraph 9 above reads as follows: "6.1.1. Where promotions are to be made by "Selection-cum-Seniority" and "Selection by Merit" method as prescribed in the Recruitment Rules, the DPC shall, for the purpose of determining the number of officers who will be considered from out of those eligible officers in the feeder grades restrict the field of choice as under with reference to the number of clear regular vacancies proposed to be filled in the year: (emphasis supplied) Paragraph 6.1.1 stipulates that the Departmental Promotion Committee shall, for the purpose of determining the number of officers who will be considered from out of those eligible officers in the feeder grades, restrict the field of choice as stated therein. Paragraph 6.1.1 also sets out how the field of choice is to be determined. In the instant case there is no serious dispute, that there was no deficiency in the number of candidates in the field of choice. The question is whether the persons who were considered for promotion as ASI from the cadre of Head Constable (Driver) were eligible persons in that cadre. It is evident from paragraph 6.1.1 quoted above that only eligible persons in the feeder categories can be included in the field of choice. The question is whether the persons who were considered for promotion as ASI from the cadre of Head Constable (Driver) were eligible persons in that cadre. It is evident from paragraph 6.1.1 quoted above that only eligible persons in the feeder categories can be included in the field of choice. The appellants have not produced any material to show that out of the Head Constables (Driver) considered for promotion during the period from 1993 to 2000 only eligible Head Constables (Driver), meaning thereby Head Constables (Driver) who had completed five years of regular service and had passed the Promotion Cadre Course, alone were considered for promotion. As per the Recruitment Rules when a junior who has the requisite length of service and has passed the Promotion Cadre Course is considered for promotion, his seniors who have completed the probation period are also eligible to be considered. Such persons, however, have to complete the promotion Cadre Course before being declared fit for promotion. On these aspects also there is total lack of material. In any case the appellants have not succeeded in establishing that only eligible officers in the feeder category were in the field of choice, when the promotion exercise was carried out during the period from 1993 to 2000. We are, therefore, of the considered opinion that the appellants should consider whether the respondent was eligible to be included in the field of choice applying paragraph 6.1.1 of the Office Memorandum dated 10/04/1989 quoted above, to be considered for promotion in the quota earmarked for Head Constables (Driver), after he completed the Promotion Cadre Course on 13th March, 1993. The learned Single Judge ought to have, in our opinion, directed the appellants to undertake such an exercise instead of straight away directing them to promote the respondent to the category of ASI with effect from the year 1996. 16. The learned Single Judge ought to have, in our opinion, directed the appellants to undertake such an exercise instead of straight away directing them to promote the respondent to the category of ASI with effect from the year 1996. 16. In the view that we have taken, we allow the writ appeal in part, reverse the judgment of the learned Single Judge and dispose of the original petition with a direction to the appellants to review the promotions effected to the category of ASI from among Head Constables (Driver) during the period from 1993 to 1999 and to examine whether the respondent would have been eligible to be considered for promotion by the Departmental Promotion Committee and would have been selected for promotion as ASI during the said period, had the field of choice been restricted to eligible Head Constables. (Driver) who had the required length of five years' regular service and had passed the Promotion Cadre Course. This exercise shall be carried out and completed within four months from the date on which the first appellant receives a certified copy of this judgment from the respondent. Needless to say, as no other Head Constable (Driver) who is senior to the respondent has approached this Court, this exercise need be undertaken only for the purpose of deciding whether the respondent would have been selected for promotion to the category of ASI earlier than 2000, by restricting the field of choice to eligible Head Constables (Driver) who had the required length of service and had passed the Promotion Cadre Course. In the event of the respondent being found eligible to be included in the feeder category and selected, the appellants shall issue revised orders promoting him with retrospective effect as ASI and in the event of such promotion being given to the respondent with retrospective effect, he will be entitled to all service benefits including seniority and emoluments.