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2013 DIGILAW 865 (GAU)

Ramendra Chakraborty v. Union of India and Ors.

2013-12-12

T.VAIPHEI

body2013
T. Vaiphei, J.- Aggrieved by the refusal of the respondent authorities to promote him to the rank of Second-in-Command in the Border Security Force (“BSF') for two years in a row i.e. in the year 2005 and 2006 this writ petition is filed by him to seek the intervention of this Court. 2. The case of the petitioner, in a nutshell, is that he joined the BSF on 19.06.1968 as a Constable, was promoted to Platoon Commander in July, 1972, was again promoted in the rank of Inspector in June, 1984 and was further promoted in the rank of Assistant Commandant on 29.01.1992. He was again promoted to the rank of Deputy Commandant with effect from 07.10.1998. He was then considered for promotion to the post of Second-in-Command by the Departmental Promotion Committee (DPC) for the year 2005-06 on 01.04.2005 but was assessed as ineligible due to non-completion of the mandatory courses as on 01.01.2005, which was the crucial date for determining the eligibility for such promotion vide DOP & T instructions No. 22011/9/98/Estt(d) dt. 01.02.1999. There is no dispute that as per the Border Security Force (General Duty Affairs) Recruitment rules, 2001, qualifying in one of the courses of Medium Machine Gun/Mortar/Field Engineering/Battalion Support Weapon is mandatory for further promotion from Deputy Commandant to Second-in-Command. He did not complete any of these mandatory courses, the petitioner was not considered for promotion by the DPC. He was again considered for promotion to the same post by the DPC on 07.03.2006, but he was found “Unfit” as he could not make the bench mark grading in his confidential record of service apart from his being placed in the low medical category SIHIAIP3(T-48)E1. The contention of the respondent authorities is that the petitioner was downgraded. 3. It is submitted by Mr. B. Sarma, the learned counsel for the petitioner, that as the petitioner had completed the mandatory course of 81 MM Mortar on 11.01.2005, which exceeded the cut-off date of 01.01.2005 by just ten days, the respondent authorities should have condoned this marginal shortage for enabling him to be eligible for consideration to the rank of Second-in-Command. B. Sarma, the learned counsel for the petitioner, that as the petitioner had completed the mandatory course of 81 MM Mortar on 11.01.2005, which exceeded the cut-off date of 01.01.2005 by just ten days, the respondent authorities should have condoned this marginal shortage for enabling him to be eligible for consideration to the rank of Second-in-Command. The learned counsel further contends that as a disciplined and dedicated officer, who made it to the rank of Deputy Commandant from the lowest rank of Constable in the BSF, who had earned very good grading in the past, it is a matter of surprise that within 12 months, he had been downgraded from good to average or very good to good: this is presumed to be adverse and below the benchmark of “Very Good” for promotion in the rank of Second-in-Command. He contends that every entry in the ACR ? poor, fair, average, good or very good ? should have been communicated to the petitioner within a reasonable period and having omitted to do so, such downgraded ACR should not have been taken into consideration or, at any rate, he should have been given an opportunity to make representation against such entry before considering his case together with other eligible candidates for the promotion. In this view of the matter, submits the learned counsel, the impugned promotion order is liable to be set aside. 4. Mr. M. Bagawati, the learned Central Government Counsel, appearing for the respondents, defends the impugned promotion orders and maintains that there was no question of condoning 11 days so as to make eligible for promotion to the rank of Second-in-Command and as he could not qualify for the eligibility condition as on 01.01.2005, he was rightly not considered for the promotion. According to the learned CGC, the bench mark for promotion from the rank of Deputy Commandant to Second-in-Command is “Very Good”, which could not be earned by the petitioner thereby making unfit for the promotion even in the next DPC held in the succeeding year and that as there was no adverse remark in his grading, such grading was not communicated to him. He contends that the DPC in finding the petitioner to be unfit for such promotion for two years did not commit any illegality or procedural impropriety calling for the interference of this Court. He contends that the DPC in finding the petitioner to be unfit for such promotion for two years did not commit any illegality or procedural impropriety calling for the interference of this Court. He, therefore, submits that there is no merit in this writ petition, which is liable to be dismissed with cost. 5. In so far as the non-consideration of the case of the petitioner by DPC in 2005 is concerned, in my judgment, the petitioner has no legitimate grievance to make for the simple reason that he admittedly did not complete the mandatory course for Medium Machine Gun/Mortar/Field Engineering/Battalion Support Weapon on 01.01.2005 which is the crucial date for determining eligibility for promotion for the vacancy year 2005-2006 vide the Office Memorandum No. 22011/9/98-Est(D) dated 01.02.1999 issued by the Government of India in the Ministry of Personnel, Public Grievances an Pensions (Department of Personnel and Training): he completed this course only on 11.01.2005. Therefore, the DPC did not commit any illegality in not considering the petitioner for the promotion in 2005. However, on the question of the eligibility of the petitioner for the subsequent year i.e. 2006, as indicated earlier, the petitioner was not found fit for the promotion as he could not make the bench mark of “Very Good” as per his confidential record. The stance taken by the respondents is found at paragraph 16 of their affidavit, which reads thus: “16. That as regards the statements made in para 13 of the writ petition, it is denied that the petitioner was downgraded in 2005-2006. It is submitted that the bench mark for promotion up to the rank of Deputy Commandant is 'Good' and from Deputy Commandant to the rank of Second-in-Command is 'Very Good' which was not made by the petitioner as his confidential record of service. Since there is no adverse entry in his ACR as such the same was not conveyed. However, the grading in ACR is not being communicated to the concerned officer as per existing instructions. Respondents have acted as per procedure/instructions issued on the subject, hence the averments made by petitioner blaming respondents for causing sufferance to petitioner is totally false and misleading and not admitted.” 6. However, the grading in ACR is not being communicated to the concerned officer as per existing instructions. Respondents have acted as per procedure/instructions issued on the subject, hence the averments made by petitioner blaming respondents for causing sufferance to petitioner is totally false and misleading and not admitted.” 6. Thus from the paragraph extracted in the foregoing, it is seen that though the respondents denied that there was down-gradation of the ACRs of the petitioner, they somehow did not give him the benchmark of “Very Good”. There is no dispute that the respondent authorities are governed by the Office Memoranda dated 08.02.2002 and dated 01.02.1999 issued by the Department of Personnel, Public Grievances and Pensions. The respondents also do not deny that the entries in the ACRs of the petitioner for the qualifying years were not communicated to the petitioner: they only said that such communication was not necessary as there were no adverse remarks in his ACRs The position of law is that non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly entails civil consequences because it may affect his chances of promotion or for getting other benefits. Hence, non-communication of such entry would be arbitrary, and, as such, violative of Article 14 of the Constitution. Re-affirming this legal position, a three-Judge Bench of the Apex Court in Sukhdev Singh vs. Union of India, (2013) 9 SCC 566 held: “8. In our opinion, the view taken in Dev Dutt7 that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant help him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in his ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in record the remarks relating to a public servant and the system becomes more conforming to a public servant and the system becomes more conforming to the principles of natural justice. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in record the remarks relating to a public servant and the system becomes more conforming to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR ? poor, fair, average, good, very good ? must be communicated to him/her within a reasonable period.” 7. The foregoing paragraph unambiguously mandates the respondent authorities to communicate every entry in the ACR of the petitioner irrespective of whether such entry was poor, fair, average, good or very good. As the respondents have admittedly did not communicate the entries in the ACRs of the petitioner, such entries could not have used by the DPC to disqualify him from consideration for promotion in the rank of Second-in-Command. This then takes me to the next issue, namely, whether the petitioner was medically unfit when his case was due for consideration in 2006. In this context, the case of the respondent is projected at paragraph 18 of their affidavit, which is as follows: “18. That as regards the statements made in para 15 of writ petition, it is stated that the petitioner was in SIfflAIP2(T-48)E-1 medical category from 12.02.2004 and was due for re-categorization medical (sic) Board in 2005. Officer was placed in low medical category since 21.03.2001. Due to his low medical category he was not detailed to undergo courses which need strenuous physical exertion. The petitioner was detailed in FE Course Serial No. 99 conducted w.e.f. 01.09.2003 to 11.10.2003 as per his central seniority, but the petitioner submitted that he had been placed in low medical category and not in a position to attend the course (Copy enclosed). Petitioner was detailed on junior command course serial No. 83, but he submitted his unwillingness for the same and accordingly he was taken off from junior command course Serial No. 83. Later on petitioner was detailed on junior command course Serial No. 84 conducted w.e.f. 05.07.2004 to 14.08.2004 but he did not attend the same. Since no other FE/MOR/MMG/BSW course was to run except 81 mm MOR course Serial No. 71 conducted w.e.f. 03.11.2004 to 11.01.2005 during the training year 2004-05 as the petitioner was detailed on 81 mm MOR course Serial-71 (Annexure (R-3 R-4). Since no other FE/MOR/MMG/BSW course was to run except 81 mm MOR course Serial No. 71 conducted w.e.f. 03.11.2004 to 11.01.2005 during the training year 2004-05 as the petitioner was detailed on 81 mm MOR course Serial-71 (Annexure (R-3 R-4). Further as per DOPT instruction course had to be completed before 01.01.2005.” 8. From the averments made by the respondents in the foregoing, it is quite obvious that the petitioner was placed in low medical category i.e. SIHIAIP2(T-48)E-1 for sometime from 12.02.2004 and was due for re-categorization by Medical Board in February, 2005. However, on going through the file produced by the learned CGC, it is revealed by the Medical Board Proceeding dated 02.04.2005 that the Board had given its opinion that the petitioner was fit to remain in Medical Category SHAPE-I However, the Commandant, 128 BN BSF issued the order dated 13.03.2006 upgrading the Medical Category of the petitioner as SHAPE-I (One) only w.e.f. 10.01.2006. At this stage, I may refer to paragraph 2 (a) of the letter dated 23.08.2001 issued by the Deputy Inspector General (Personnel), Directorate General Border Security Force (Personnel Directorate), New Delhi to all concerned, which is in the following terms: “2. It may be seen from the notified Recruitment Rules for Group 'A' GD officers cadre, that besides service eligibility the following criteria has also been prescribed for promotion to next higher rank:- (a) Appointment on promotion shall only be considered if the incumbents are in prescribed medical category SHAPE-I or medical category as prescribed in MHA letter No. 1/45020/45/99-Pers-H dated 14Sep' 2000.” 9. The provision so extracted will reveal that for promotion of Group 'A' GD officers such as the petitioner, such officers should be in the medical category of SHAPE-I when his case is due for consideration. Though the cut-off date is not mentioned therein, it is obvious that the officer to be considered for the promotion should be categorized as SHAPE-I on or near about the date when DPC holds the selection proceeding. In the instant case, what stands out is that there is absolutely no evidence to show that the petitioner was categorized as low medical category as contended by the respondent authorities when he was considered for promotion to the rank of Second-in-Command for the year 2006. In the instant case, what stands out is that there is absolutely no evidence to show that the petitioner was categorized as low medical category as contended by the respondent authorities when he was considered for promotion to the rank of Second-in-Command for the year 2006. I have earlier reproduced paragraph 18 of the counter-affidavit in extenso wherein no whisper of statement was made by the respondents as to whether the petitioner was still placed in low medical category after February, 2005. All that I can say is that the respondents do not want to come out with the full facts within their knowledge: they are most probably afraid that if such facts are disclosed, their case would be jeopardised. Thus, on the basis of this finding of mind, it is not difficult to hold that the petitioner was placed in the medical category of SHAPE-I when the second DPC was held in 2006 and was, therefore, eligible for consideration for the promotion. In my opinion, though the petitioner was fit to be considered for promotion in the rank of Second-in-Command when the next DPC was held in 2006, his case was deliberately not considered on flimsy or non-existent grounds to wrongfully deny him the promotion. This definitely calls for the interference of this Court. It is brought to the notice of this Court that the petitioner was promoted to the rank of Second-in-Command during the pendency of this writ petition. It is also brought to the notice of this Court that he has retired from service on 30.06.2008 on attaining the age of superannuation. This calls for moulding of the relief. 10. The offshoot of the foregoing discussion is that this writ petition is allowed. As the petitioner has already been promoted and has also retired from service during the pendency of this writ petition, it is not necessary to quash the impugned promotion order of the respondent No. 7. However, the respondent authorities are directed to communicate any entry of “good” or any grading lower than that of “good” in the ACRs of the petitioner for the qualifying years in question to him within one month of the receipt of the copy of this judgment and on the receipt thereof, he, if so advised, will make a representation to the respondent authorities and the said representation will be decided within a period of two months thereafter. If his entry/entries is/are upgraded, the petitioner shall be considered for retrospective promotion by the DPC within two months thereafter and if he is so recommended, he shall be given promotion in the rank of Second-in-Command for the purpose of pension with full monetary benefits with effect from the date the respondent No. 7 was promoted in the rank of Second-in-Command.