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2016 DIGILAW 65 (JK)

Janak Raj v. Union of India

2016-02-23

MOHAMMAD YAQOOB MIR

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JUDGMENT : Mohammad Yaqoob Mir, J. Admitted case is that the petitioner was enrolled in Border Security Force as Constable on 26th May, 1966, was promoted to the rank of Lance Naik on 1st March, 1976, Naik on 01.01.1969, Head Constable on 05.01.1970, Sub Inspector on 25.02.1980 and Inspector on 16.04.1988 after qualifying the requisite qualification/test. 2. Respondents in the objections have also admitted that as against petitioner there is no bad/adverse entry in the service record, he has earned 46 rewards including cash rewards/commendation during his service career. It is also admitted by the respondents in their objections that Departmental Promotion Committee for promotion to the rank of Assistant Commandant from Subedar was held on 12.12.1997 and again on 07.09.1998 As per guidelines contained in the DOP&T memorandum dated 10th May, 1989 and the memorandum No. 22011/5/91-Estt(D) dated 27th March, 1997, the DPC awarded grading to the petitioner as “average” and “good” respectively, therefore, petitioner failed to make the grade for promotion due to low grading of his annual confidential reports, as such, he could not be promoted to the rank of Assistant Commandant. Later on in two Departmental Promotion Committees, petitioner was again considered but could not make the grade as he has been awarded “good”. 3. It is admitted that the procedure to be observed by the Departmental Promotion Committees is contained in office memorandum dated 27th March, 1997, issued by the Ministry of Personnel, Grievances and Pension, Government of India. Para (iv) is applicable to the case of the petitioner, same is quoted here-under: (iv) Notwithstanding the provisions mentioned above, in the case of promotions made for induction to Group A posts/services from lower groups, while the bench mark would continue to be ‘good’, the DPC shall grade the officers as ‘Outstanding’ ‘Very Good’, ‘Good’, ‘Average’ and ‘Unfit’ as the case may be and the officers will be arranged accordingly to the grading obtained, placing the ‘Outstanding’ officer on top followed by those grade as “Very Good’ and so on in the select panel upto the number of vacancies with the officers having the same grading maintaining their inter-se-seniority in the feeder grade. 4. The Departmental Promotion Committee has to follow the guidelines, copy of which under the caption “Guidelines on Departmental Promotion Committees” has been annexed with the objections by the respondents. 4. The Departmental Promotion Committee has to follow the guidelines, copy of which under the caption “Guidelines on Departmental Promotion Committees” has been annexed with the objections by the respondents. In Para 5 of Part-IV of the guidelines relatable to the procedure to be observed by the Departmental Promotion Committees it is provided that the Departmental Promotion Committee shall decide its own method and procedure for objective assessment of the suitability of the candidates. Whenever promotions are to be made by the method of selection by DPC, the administrative ministry desires that an interview should form part of the selection process, necessary provision should be made in the recruitment rules. Para 6.2.1(a) & (b) is relevant for the purposes of considering case of the petitioner, same is quoted here-under: “6.2.1 Confidential Rolls are the basic inputs on the basis of which assessment is to made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence- (a) The DPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below. (b) The DPC should assess the suitability of the officers for promotion on the basis of their service record and with particular reference to the CRs for 5 preceding years. However, in cases where the required qualifying service is more than 5 years, the DPC should see the record with particular reference to the CRs for the years equal to the requirement qualifying service. (If more than one CR has been written for a particular year, all the CRs for the relevant year shall be considered together as the CR for one year). 5. The wording employed as quoted above is suggestive of the fact that the DPC has to assess the suitability of the officers for promotion on the basis of their service record and with particular reference to the CRs for 5 preceding years. It is in this context, vide order dated 30th December, 2015, learned counsel for the respondents was asked to produce the records of ACRs of the petitioner prior to the year 1997. Today learned counsel would submit that to his information the said records are not available as according to him he has been informed that record prior to 1997 has been weeded out in the year 2009 as per applicable norms. Now the question is what is the impact. 6. Today learned counsel would submit that to his information the said records are not available as according to him he has been informed that record prior to 1997 has been weeded out in the year 2009 as per applicable norms. Now the question is what is the impact. 6. Petitioner has filed petition in the year 2002, so it is to the knowledge of the respondents that the position of the petitioner as has been considered by the DPC pertain to the year 1997 as well as 1998 and 2001. The respondents should not have destroyed those records by observing the process of weeding out, therefore, an adverse inference has to be drawn against them, more particularly when they of their own have admitted in the reply that there is no bad/adverse entry in the service record of the petitioner. In addition thereto, respondents have admitted that petitioner has earned 46 rewards including cash reward/commendation during his service career. How the DPC has rated the petitioner as ‘average’ or ‘good’ is not forthcoming nor the respondents have been able to justify the same. In absence of any such justification, petitioner though on superannuation has retired but has a right to get the benefits of promotion. 7. For the afore-stated reasons and circumstances, respondents are directed to accord consideration to the case of the petitioner for promotion to the post of Assistant Commandant retrospectively notionally i.e with effect from 1998 when it was due to him and his junior has been promoted so as to enable him to get the revised pensionery benefits as shall be due. 8. Petitions succeeds, as such, shall stand disposed of.