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2019 DIGILAW 57 (CAL)

Col Purna Chandra Jena v. Union of India

2019-01-11

SUBRATA TALUKDAR

body2019
JUDGMENT : SUBRATA TALUKDAR, J. 1. Answering the point of jurisdiction at the threshold this Court observes that the petitioner, who is common to both the writ petitions, that is WP 3855(W) of 2014 (for short WP-I) and WP 9659(W) of 2014 (for short WP-II), now in the rank of a Colonel of the Indian Army, stands at present seconded to the Director General, Quality Assurance (DGQA), being part of Defence Production, Government of India. In his existing official capacity, the petitioner is governed by Service Rules (SR) of the Department of Personnel and Training (DoPT), Government of India. Therefore, as already discussed by this Court vide its final order dated 5th of April, 2017 in CAN 10189 of 2016 arising out of WP-I with WPII and noticing the law settled In Re: Union of India & ors. Vs. Col. G.S. Grewal, (2014) 7 SCC 303 , this Court found that the issues raised in WP-I and WP-II are amenable to its Writ Jurisdiction. 2. Now, it would be briefly necessary to elucidate the facts in issue in both WP-I and WP-II:- 3. That the petitioner was at the relevant period, i.e. between 2001 and 2006, serving as an active armed force personnel in the Indian Army. The petitioner is a Kargil War Decorated Officer. 4. Due to injuries sustained in the Kargil War, the writ petitioner (hereinafter referred to for short as only PCJ) was taken off from active military duties and seconded to the DGQA. 5. Pcj contends that his Annual Confidence Reports (for short ACRs) for the periods 1st April, 2004 to 10th December, 2004 (for short Period-1 or only P1); 1st April, 2005 to 30th July, 2005 (P2) and 22nd August, 2005 to 31st March, 2006 (P3) carried Below Bench Mark (BBM) notings. Therefore, in the Departmental Promotion Committee (DPC) meeting of 2007 the petitioner was superseded for promotion considering his BBMs in the ACRs corresponding to P1, P2 and P3. 6. Further under challenge by PCJ is his BBM corresponding to the period 1st April, 2006 to 31st March, 2007 (P4). 7. The grounds on which PCJ challenges his supersession at the DPC in 2007 are as follows:- 8. First, Reporting Officers (ROs) were not eligible to write the ACRs for the periods P1 and P3 respectively since the petitioner did not complete the mandatory 90 days of service under them. 7. The grounds on which PCJ challenges his supersession at the DPC in 2007 are as follows:- 8. First, Reporting Officers (ROs) were not eligible to write the ACRs for the periods P1 and P3 respectively since the petitioner did not complete the mandatory 90 days of service under them. The ROs therefore did not acquire the authority mandated by the SR to write/comment on/in the ACRs of PCJ for P1 and P3 respectively. 9. Second, the BBM for all the four periods, P1 to P4, were not communicated to PCJ within one month of their endorsement, although such is the requirement under the SR. 10. It is submitted by the petitioner that he received Very Good (VG) for two years and Good (G) for three years combining in all the five years taken into consideration by the 2007 DPC. In view of G being treated as BBM, PCJ was denied promotion. 11. Relying on a DoPT Guideline dated 22nd May, 1975 being GOI Order No. 51/3/74 ESPT (A), not only communication of the BBM as per law laid down by the Hon'ble Apex Court is mandatory, but PCJ ought to have also completed the required period of 90 days under his ROs for the periods P1 and P3 (supra). Therefore, since the ROs were not legally capable of reporting on the ACRs of the petitioner/PCJ coupled with the fact that the petitioner did not get any opportunity to answer the BBMs, the entire exercise of marking the ACRs of the petitioner culminating in his supersession by the DPC of 2007 is void and must be set aside. 12. PCJ submits instances of at least two other similarly circumstanced officers, including one P.K. Saran wherein the Respondents/UOI rectified their lapses by not acting on the ACRs impugned and thereby granting promotion from their true dates of claim qua the said two officers. However, in the case of the petitioner the ACRs for the periods P2 and P3 (supra) were penned by one Mr. Azad Ahmed and the other by Major General K.P Sinha respectively acting as his ROs without the petitioner completing the minimum mandatory period of 90 days of direct service under them. However, in the case of the petitioner the ACRs for the periods P2 and P3 (supra) were penned by one Mr. Azad Ahmed and the other by Major General K.P Sinha respectively acting as his ROs without the petitioner completing the minimum mandatory period of 90 days of direct service under them. PCJ claims that by twin communication dated 18th April, 2011 and 28th April, 2016, the Respondents/GOI has affirmed the fact that the respective ROs (supra) were jurisdictionary ineligible to write his ACRs for the periods in issue. 13. In support of his above referred stand PCJ relies upon the decision in State of UP vs. Yamuna Shankar Mishra, (1997) 4 SCC 7 and the judgment of the Hon'ble High Court of Delhi at New Delhi in Col. P.K. Saran vs. Union of India & Ors, WP (C) 6680 of 2010. 14. In support of the point that since the BM (Bench Mark) for promotion in DPC 2007 was VG, any ACR containing the rating below VG, i.e. G, would be considered to be a BBM and therefore obviously adverse to the officer concerned. It is accordingly argued on settled line of legal authorities that in instances of adverse BBMs, it is incumbent upon the Employer/the Respondents/the UOI to communicate such adverse entry to enable the officer to take steps for improvement. The communication of the BBM in terms of the GOI Memo dated 22nd May, 1975 is required to be made within one month of the ACR noting. However, PCJ alleges that no communication was made of the adverse BBM within the period laid down in the SR. 15. Pcj submits that it was only in 2011, i.e. much after the DPC of 2007 that he was first officially communicated of his BBMs. By that time the DPC of 2007 stood long completed and the petitioner became junior to his colleagues. The next DPC following the DPC of 2007 continued the injustice being suffered by the petitioner and, till date such injustice persists. 16. Relying on the authorities of Union of India & Anr. By that time the DPC of 2007 stood long completed and the petitioner became junior to his colleagues. The next DPC following the DPC of 2007 continued the injustice being suffered by the petitioner and, till date such injustice persists. 16. Relying on the authorities of Union of India & Anr. vs. E. G. Nambudiri, (1991) 3 SCC 38 ; In Re: Abhijit Ghosh Dastidar vs. Union of India & Ors., (2009) 16 SCC 146 the petitioner submits that in the event it is found by Court that no opportunity to represent against the adverse entry/BBM has been extended to the officer, such adverse entry could/cannot be considered by/in any DPC. 17. Relying on the mandate of Article 14 of the Constitution of India it is pointed out by PCJ that he deserves to be placed back into the same position as his colleagues since the entire promotional exercise qua him commencing with DPC 2007 stands vitiated. PCJ therefore claims promotion, past and present, with all benefits, past and present. 18. Arguing on behalf of the Respondents/UOI, Mr. Ranjan Roy, Ld. Counsel relies both on the written stand of the Respondents pleaded through their Affidavits-in-opposition to WP-I and WP-II, as also the summary of such stand in their Notes of Argument. In the language of the Respondents themselves, a capsule of their views offered on record is quoted as follows:- "(a) .....The statutory complaint of the officer has been examined in detail against his overall profile and all the relevant documents. After consideration of all the aspects of the complaint and viewing it against the redressal sought, it has emerged that CRs in the reckonable profile i.e. for 2001-02 to 2005-06 do not merit any interference by the central government.... (b) Further upgradation/setting aside is neither in the organizational interest nor the interest of other officers who have performed much better. However, it can be seen from the entire or at least last 10 years records of the petitioner’s APAR,/ACRs that in most cases the officer has been brought down by most of his superiors (IO/RO/SRO) either in the same year or by the same superior in the successive years. (c) Further up-gradation of his ACR for the period 01.04.2006 to 31.03.2007 by RO & SRO is neither in the orginazational interest nor in the interest of the other officers who have been assessed appropriately for the same. (c) Further up-gradation of his ACR for the period 01.04.2006 to 31.03.2007 by RO & SRO is neither in the orginazational interest nor in the interest of the other officers who have been assessed appropriately for the same. Moreover there is no provision for gratning redressal for the same ACR grading more than once. Thus the petition is not maintaibale and needs to be rejected." 18. Mr. Roy argues that since the statutory complaint of PCJ was examined and rejected in 2007, there was no further scope on the part of the Respondents/UOI/DGQA to communicate any further material to PCJ. The Respondents/UOI also take the rather interesting stand that since the rating of PCJ was below the BM of VG for the DPC 2007, the rating of G granted to PCJ cannot be described as unsatisfactory. 19. The Respondents/UOI continue in the same breath in stating that therefore there was no requirement of any further communication to PCJ of his BM since G is above and not equivalent to below average/satisfactory. Nonetheless however, the Respondents/UOI did answer the statutory complaint of PCJ by referring to his "reckonable profile" for the periods P1 to P3. Needless to labour the point, the "reckonable profile" of PCJ did not warrant further comment/intervention by the Respondents/UOI. 20. Learned Counsel for the Respondents takes the stand that in discharge of its statutory legal obligations, the UOI was not required to deal with further and/or proceed on the issue beyond answering the statutory complaint of PCJ which was rejected on 25th October, 2007. 21. In respect of the communication of BBM to PCJ vide letter of the Respondents dated 15th April, 2011, Mr. Roy clarifies that such communication cannot be considered in the context of the DPC of 2007. It is reiterated that relevant to the DPC of 2007 for the periods, P1 to P3, the complaint/representation of PCJ stood already answered in October, 2007 as part of the statutory redressal mechanism. It was also observed that the BM of G, being not below average/satisfactory, did not warrant a communication in line with the requirement of the SR connected to an adverse remark. 22. It was also observed that the BM of G, being not below average/satisfactory, did not warrant a communication in line with the requirement of the SR connected to an adverse remark. 22. Therefore, with the next DPC exercise after 2007 being set into motion post adoption of the DoPT Office Memo dated 13th April, 2010, it became necessary that the BBM rating of the petitioner be now communicated which was so done by the letter dated 15th April, 2011. 23. It is submitted that for the period P4 relevant to the DPC following DPC 2007, the petitioner must be deemed to have accepted the redressal mechanism adopted by the respondents/UOI on the basis of his statutory complaint (supra) and for that reason PCJ made a fresh representation dated 9th of February, 2011 for upgradation of his BM rating. The representation dated 9th of February, 2011 was duly replied to by the communication of DGQA dated 15th April, 2011. Hence, it cannot be claimed now by PCJ that any cause of action survives at present for PCJ to claim relief before this Court. 24. By way of summing up the stand of the Respondents/UOI it would be relevant for this discussion to finally quote the position taken in writing by the Respondents/UOI which is as follows:- "(d) The petitioner served in CQA (A) Khadki from 08 Aug 2005 to 20 Aug 2011. His immediate senior i.e. Joint Controller (the reporting officer) and the Controller (Reviewing Officer) were located in the same building. Thus the Reviewing officer was supervising the petitioner's activities more or else directly on daily basis. Reviewing officer was much aware about the capabilities of the petitioner. In an establishment like CQA (A) Kirkee Pune, there are only 07 to 10 service officers posted who all are location in the same building and these officers interact regularly and almost on a daily basis. It is almost impossible and really hard to digest that the RO and SRO were not acquainted with the petitioner. If the statement of the petitioner is to be believed and accepted as correct that RO and SRO were not sufficiently or not at all acquainted with the petitioner then also it depicts the lack of positive attitude and being social on the part of the petitioner." 25. If the statement of the petitioner is to be believed and accepted as correct that RO and SRO were not sufficiently or not at all acquainted with the petitioner then also it depicts the lack of positive attitude and being social on the part of the petitioner." 25. Having heard the parties and considering the materials on record, this Court arrives at the following findings:- (A) That it is an admitted position that the service condition of the petitioner is governed by the GOI/DoPT Memos as issued from time to time. It is therefore also an admitted position that the DPC as well as the rating exercise of ACRs of officers in the category to which the petitioner belongs is governed by the law laid down by the Hon'ble Apex Court in this regard from time to time. (B) At the very outset it will be important to distinguish the legal position which applies to military personnel seconded to a civilian nature of employment in a department such as DGQA with that of military officers in active service. As held In Re: Union of India vs. Major Bahadur Singh, (2006) 1 SCC 368 , the perspective on state action arising out of a non-communication of adverse rating in the ACR will not be apply to military officers in active service since their position cannot be classified as unitary with officers in non-active civilian relationship/ service with the Government. (C) The above referred legal position noticed In Re: Major Bahadur Singh has been reiterated In Re: Dev Dutt vs. Union of India & Ors., (2008) 8 SCC 725 as well as In Re: Abhijit Ghosh Dastidar vs. Union of India & Ors., (2009) 16 SCC 146 . (D) It is apparent to this Court that the Respondents/UOI have not contested the position of law as noticed in the three judgments (supra), i.e. In Re: Major Bahadur Singh, In Re: Dev Dutt and In Re: Abhijit Ghosh Dastidar. The principles emerging therefore from the position of SRs guided by GOI/ DOPT Memos governing the service conditions of seconded military personnel stands established. Equally established stands the principle that the Petitioner/ PCJ is entitled to be treated at par under the applicable SRs with his peers/similarly placed co-officers simply on the touchstone of equal treatment guaranteed under Article 14 of the Constitution of India. Equally established stands the principle that the Petitioner/ PCJ is entitled to be treated at par under the applicable SRs with his peers/similarly placed co-officers simply on the touchstone of equal treatment guaranteed under Article 14 of the Constitution of India. (E) In the context of (D) above this Court must now notice the clarion call from the towers of In Re: Yamuna Shankar Prasad & Anr. as echoed In Re: Abhijit Ghosh Dastidar to the effect that an ACR, if adverse, should be communicated and the affected employee, in this case PCJ, must be given a reasonable opportunity of representing against such adverse rating. This Court also cannot be unmindful of the legal position underscored by the Hon'ble Apex Court to write the ACR objectively, fairly and dispassionately eschewing any personal prejudice of the RO. An abuse of the ACR process creates the usual loss of morale with insecurity of service and such has been observed In Re: Delhi Transport Corporation vs. DTC Majdoor Congress, (1991) Supp1 SCC 600. (F) While this Court does not intend to dilate on the obvious requirement of observing the principles of natural justice while following through the promotional process based on ACRs, the law as laid down In Re: Mohinder Singh Gill & Anr. vs. Chief Election Commissioner, (1978) 1 SCC 405 and In Re: State of Orissa vs. Dr. (Miss) Binapani Devi & Ors, AIR 1967 SC 1269 unmistakably points to the extremities of civil consequences which may result to an employee denied the benefit of communication of his adverse rating. (G) This Court must also observe that it is not the stand of the Respondents/UOI that the Memo of the GOI dated 22nd May, 1975 requiring the Reported Officer/in this case PCJ to directly serve for a minimum of 90 days under his RO does not apply to the facts of this case. It is a statistical fact which the Respondents/UOI would be hard pressed to deny. The additional point is also not lost on this Court that the stand taken by the Respondents/UOI to the effect that only below average/satisfactory ratings could be considered as adverse and therefore reportable to the officer under review, does not carry conviction in the light of the observations In Re: Abhijit Ghosh Dastidar (supra). The additional point is also not lost on this Court that the stand taken by the Respondents/UOI to the effect that only below average/satisfactory ratings could be considered as adverse and therefore reportable to the officer under review, does not carry conviction in the light of the observations In Re: Abhijit Ghosh Dastidar (supra). The law stands unequivocally clear on the issue that in the event of the rating of the officer under review/in this case PCJ, being below the BM level, in other words BBM, which it was, no extent of sophistry can dilute the requirement of communication of such adverse entry. (H) Since such communication was admittedly not made, not only within a month as claimed to have been underscored by the DoPT the petitioner/PCJ suffered adverse and complete civil consequences (CCC). (I) This Court must now gradually conclude the discussion by observing that the stand of the Respondents/ UOI to the ACR recording/ rating process qua the Petitioner/ PCJ can be variously described as non-objective; a departure from the established legal position; ambivalent; convenient; coloured; infected with the vice of arbitrariness; and, in one word, illegal. 26. Finally, this Court notices that in apropos equal circumstances In Re: P.K. Saran vs. Union of India & Ors., WP (C) No. 6680 of 2010, the Hon'ble High Court of Delhi at New Delhi recorded as follows:- "In compliance with the said directions, the respondents have examined the order and have passed an order dated 11the March, 2013 which reads as follows: "In compliance with the Hon'ble Delhi High Court orders dated 08 Nov 2012 in WP(c) 6680/2010 the ACR for the period 01 Jan 2000 to 31 Jan 2001 in respect of IC-37421, Col PK Saran has been reviewed by QASB 1(2013) in its meeting held on 01 Feb 2013. 2. Based on the merits of the case, it has been decided by QASB - (2013) to set aside the above mentioned ACR. Accordingly, the seniority of IC-37421 Col PK Saran be restored to that existed at the time of holding of QASB 2 (2005) on 02 Jun 2005. His name will be suitably inserted in the current gradation list at the same place as it was in the gradation list dated 30 Apr 2004, which was operative at the time of holding of QASB 2(2005). The above decision may be communicated to the concerned officer. 3. His name will be suitably inserted in the current gradation list at the same place as it was in the gradation list dated 30 Apr 2004, which was operative at the time of holding of QASB 2(2005). The above decision may be communicated to the concerned officer. 3. This issues with the approval of the competent authority." (Underlining by us)" 27. The Order dated 11th March, 2003, was preceded by an order dated by 8th November, 2012 which, again recorded by the Hon'ble High Court of Delhi at Paragraph 4 of In Re: P.K. Saran vs. U.O.I and orders; as decided on 10th April, 2018 reads as follows:- "The respondents have initially opposed the writ petition. On a consideration of the matter, this Court had passed the following order on 8th November, 2012. The operative part of the order dated 8th November, 2012 is as under: "6. The primary ground for challenge of the action of the respondents before us rests on the petitioner's contention that the petitioner's ACRs was subjected to a review at the second stage by Major General B.S.Mathur as a Senior Reviewing Officer at the third stage. The petitioner has contended that this officer was neither authorized nor competent to do so inasmuch as the petitioner had not completed 90 days of work under this Officer. 7. It is not disputed by the respondents before us that an officer is required to have completed 90 days of work under the Senior Reviewing Officer in order to render him competent to review the ACR of a group 'A' officer as the petitioner. 8. It is further submitted before us by Mr. Ankur Chibber under instructions from Mr. Hemant, Deputy Director, DGQA that it is correct that Major B.S.Mathur has not reviewed the work of the petitioner for 90 days and therefore he is not competent to review his ACRs grading. 9. We have been informed that this position has been communicated to the competent authority in the DGQA and the matter is under active consideration from this aspect. In view of the above admitted position, it is submitted CR for the period 01.06.2000 to 31.01.2001 would have to be ignored in totality. It is contended that as a result the petitioner was legally entitled to be considered as a fresh case and entitled to empanelment as a Colonel in 2005. In view of the above admitted position, it is submitted CR for the period 01.06.2000 to 31.01.2001 would have to be ignored in totality. It is contended that as a result the petitioner was legally entitled to be considered as a fresh case and entitled to empanelment as a Colonel in 2005. Given the stand of the respondents today before us and the fact that the petitioner's rights could be seriously jeopardized due to delay in the matter, it is essential that the respondents proceed expeditiously in the matter. 10. We accordingly direct the respondents to consider and ensure that a decision is taken based on the above submissions made before us within four weeks from today. The respondents shall place the decision which is taken before this court on or before the next date of hearing." 28. The Hon'ble High Court then proceeded to direct as follows:- "The respondents shall ensure that appropriate formal orders appointing the petitioner as a Brigadier with the correct fixation of seniority of the petitioner as against the date on which his immediate juniors were promoted to the rank of Brigadier are passed within a period of four weeks from today. The same shall be communicated forthwith to the petitioner. The respondents shall also passed the formal orders with regard to the pay fixation of the petitioner in the rank of Colonel and Brigadier having regard to the date on which his immediate juniors were promoted to these ranks and given salaries in the appropriate ranks. Needless to say, the respondents shall thereafter compute the emoluments of the petitioner in these ranks. Payments would be required to be made. This writ petition is allowed in the above terms." 29. This Court finds no reason as to why a parity of reliefs cannot be granted in favour of the present petitioner/ PCJ on a pari materia issue adjudication. It is accordingly directed as follows:- (I) That the petitioner PCJ shall be granted promotion with all financial benefits, past and present at par with his colleagues/ peers in service/ coequal officers as granted promotion with effect from DPC 2007 and till date; (II) Formal orders be issued not later than a period of six weeks from the date of communication of this order by any of the parties. 30. WP 9659(W) of 2014 with WP 3855(W) of 2014 stands accordingly allowed. 31. 30. WP 9659(W) of 2014 with WP 3855(W) of 2014 stands accordingly allowed. 31. There will be, however, no order as to costs. 32. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities. Later: Stay of operation of this judgment and order is prayed for by Mr. Roy, Ld. Counsel for the Respondents/UOI. Prayer for stay as above is resisted by Mr. Mazumder, Learned Counsel for the Petitioner. The prayer for stay stands refused.