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2020 DIGILAW 117 (JK)

Rakesh Kumar Chauhan v. Union Of India

2020-02-27

SANJEEV KUMAR

body2020
JUDGMENT 1. In the instant petition, the petitioner has prayed for following reliefs:- i) to quash communication addressed by Commandant Staff (E-1) dated 16.01.1997 entering adverse remarks to the ACR of the petitioner. ii) to quash Memorandum No.1-17012/(13)/RKKC/ACR Cell- 2006-40-46 dated 14.02.2007 issued by the office of DG ITBP. iii) to quash Order dated 13.05.2008 by virtue of which the respondent No.8 has been ordered to be promoted over and above the head of the petitioner. iv) to direct the official respondents to accord consideration to the petitioner for his promotion from the rank of Assistant Commandant (Engineer) to the post of Dy. Commandant (Engineer) with effect from 2001 when his junior Sh. R.P.Joshi was promoted against the said rank and with a further prayer to direct the consideration of the petitioner for his promotion to the rank of Commandant (Engineer) when his junior Sh. R.P.Padaulia was ordered to be promoted vide order dated 13.05.2008 and restore him the seniority over and above his juniors with a further direction to the respondents to restrain from promoting any junior officer to the petitioner to the rank of Commandant (Engineer) in the event of DPC being held after the filing of the present petition. 2. The factual antecedents leading to the filing of instant petition briefly put, are as under :- 3. The petitioner was appointed as Sub Inspector (Overseer) in ITBP in the year 1988. As Sub Inspector he served in different Battalions at different places in the country. While in service of ITBP, he responded to the Advertisement Notification issued by the respondents for filling up the post of Assistant Commandant (Engineer). The petitioner secured first rank in the selection and was appointed as Assistant Commandant (Engineer) in the year 1991 and posted in 3 rd Battalion at Leh (Central Sector). Because of adverse remarks recorded in his ACR, for the period w.e.f. 01.04.1995 to 07.12.1995, the petitioner despite being senior was not promoted as Deputy Commandant in the year 2001. He was, however, promoted to the rank of Deputy Commandant (Engineer) on 08.10.2003 and served as such at different locations in different Battalions of ITBP. In the month of February, 2005, the petitioner was detailed by IG Headquarters to look after the duty of Engineer incharge of Telecom Bn Shivpuri. In compliance to the orders of the IG Headquarters, the petitioner claims that he proceeded to Telecom Bn. In the month of February, 2005, the petitioner was detailed by IG Headquarters to look after the duty of Engineer incharge of Telecom Bn Shivpuri. In compliance to the orders of the IG Headquarters, the petitioner claims that he proceeded to Telecom Bn. Shivpuri (MP) and thereafter, he proceeded on earned leave and after availing earned leave reported at Leh on 26.04.2005 and resumed his duties on 03.05.2005. It is alleged by the petitioner that when he reported at Leh, it was found that that the renovation work of office of DIG(LDK) was nearing its completion, that too, without formal sanction of the competent authority. The work was carried out by respondent No.8 and Sub Inspector (O) Shri Raj Kumar Nirankari, but, the respondent No.6 directed the petitioner to process the bills in work head. The petitioner claims that he brought this matter to the notice of the superior officer, the then Commandant, i.e., respondent No.5. The respondent No.5, accordingly wrote a letter to the DIG (LDK) conveying the latter that the work executed has not been approved in the action plan, as such, the bills could not be processed. It is submitted that respondent No.6, instead of appreciating conduct of the petitioner, took it otherwise and this is how he started nourishing grudge against him. The petitioner further claims that during his posting in Leh, he executed multiple works to the satisfaction of his superiors and, therefore, there was no occasion for anybody to point finger about the work and conduct of the petitioner, but, the petitioner was shocked to receive a Memo from ACR Cell bearing Memo No. 1-17012/(13)/RKC/ACR Cell-2006- 40-46 dated 14.02.2007 whereby the petitioner was conveyed the adverse remarks contained in his ACR for the year 2005-2006, precisely, for the period 01.04.2005 to 02.10.2005. The petitioner represented to the DG, ITBP vide his letter dated 10.03.2007 and brought it to the notice of the latter, his work performance and requested for expunging the adverse remarks recorded in his ACR for the year 2005- 2006. The DG ITBP took cognizance of the representation of the petitioner and invited comments from the respondent No.5. It is the allegation of the petitioner that initially favourable remarks were submitted by the respondent No.5, but, later on under some pressure, he changed his remarks. The DG ITBP took cognizance of the representation of the petitioner and invited comments from the respondent No.5. It is the allegation of the petitioner that initially favourable remarks were submitted by the respondent No.5, but, later on under some pressure, he changed his remarks. The DGP did not agree with the explanation tendered by the petitioner and rejected the representation of the petitioner on the grounds that the same was devoid of any merit. The petitioner also moved the representation before the Ministry of Home Affairs, which too met the same fate. Because of the adverse remarks, the petitioner could not qualify for promotion to the post of Commandant (Engineer) whereas the Deputy Commandant (Engineer) junior to him, i.e., respondent No.8 got the promotion in May, 2008. It is this recording of ACR and denial of promotion to the post of Commandant, the petitioner is aggrieved of and has filed this petition seeking inter alia the reliefs noted hereinabove in the beginning of this judgment. 4. The petitioner has primarily challenged the recording of the ACRs for the year 2005-2006 on the ground of malafide. It is claimed by the petitioner that during the relevant period, i.e., in the year 2005- 2006, he was posted in Leh and had executed all the works under him with zeal and dedication. He, however, submits that the adverse entry came to be made by the respondent No.5 only when he objected to certain works, which were being carried without proper sanction. From the perusal of the writ petition in its entirety, particularly, the portion which is dedicated to allege malafidies, I could not find any cogent material from where it could be inferred that recording of ACRs for the year 2005-2006 by the respondent No.6 were actuated by any malice. In the absence of material constituting malafides, this Court will not substitute its opinion for the opinion of the authority, which had occasion to watch and assess the performance of the petitioner and reflect his work and conduct in the ACRs. It is not in dispute that impugned ACRs of the petitioner were initiated by the respondent No.5. However, the same were reviewed and accepted by two different authorities. It is not the case of the petitioner that even the reviewing and accepting authorities too nurtured any grudge against the petitioner. It is not in dispute that impugned ACRs of the petitioner were initiated by the respondent No.5. However, the same were reviewed and accepted by two different authorities. It is not the case of the petitioner that even the reviewing and accepting authorities too nurtured any grudge against the petitioner. The assessment of the work and conduct of an employee by its superior is both subjective and objective in nature and unless there is sufficient material on record to infer that recording of adverse ACRs was actuated by malafide or was utterly arbitrary, this court would not interfere. 5. I have gone through the record of Departmental Promotion Committee (DPC) which met on 20.03.2008 to consider the eligible Assistant Commandant (Engineer) for promotion to the post of Commandant (Engineer) and find that the DPC considered three officers for one post of Commandant (Engineer), which included the petitioner as well. As per criteria in vogue, the bench mark for promotion to the post of Commandant (Engineer) is 'Very Good' and bench mark of 'Very Good' would mean that at least three of the last 05 years ACRs should be 'Very Good' and other two not below 'Good'. The criterion further provides that there should be no adverse entry in any of the ACRs under consideration. The position with regard to the ACRs of the petitioner for the preceding 05 years of the DPC was in the following manner:- 2002-03 2003-04 2004-05 2005-06 2006-07 NIC-4M Good-8M Good Very Good Adverse-6M Very good:5 M Average 6. It is because of this position of the ACRs of the preceding 05 years, the petitioner was declared UNFIT for promotion to the post of Deputy Commandant (Engineer). Although, I find no merit to interfere with the adverse remarks recorded in the ACRs for the period w.e.f. 01.04.2005 to 02.10.2005, yet, even if the ACRs of the petitioner for the year 2005-06 are not taken as adverse, but, as 'Very Good', yet the petitioner would not be declared FIT for promotion. This is so because apart from the ACR of 2005-06 he has only one ACR 'Very Good for the year 2004-05 and the ACR for the year 2006-07 is 'Average', i.e., less than 'Good 7. Viewed from any angle, the petitioner does not attain bench mark even if his adverse ACR for the year 2005-06 are converted into 'Very Good'. This is so because apart from the ACR of 2005-06 he has only one ACR 'Very Good for the year 2004-05 and the ACR for the year 2006-07 is 'Average', i.e., less than 'Good 7. Viewed from any angle, the petitioner does not attain bench mark even if his adverse ACR for the year 2005-06 are converted into 'Very Good'. The petitioner, thus, would not be entitled to the relief prayed for in this petition even if the petitioner was to succeed on his challenge to the adverse ACR recorded for the year 2005-06. 8. The judgments relied upon by the learned counsel for the petitioner, are not applicable to the instant case. The petitioners performance has not remained 'Excellent' 'Very Good' or even 'Good' consistently over a period of time. Because of adverse entry in the ACRs, he was not promoted as Deputy Commandant when such promotion was due to him. The petitioner has been found lacking in his work and conduct even for the subsequent years. 9. For the foregoing reasons, I find no merit in this petition and the same is, accordingly, dismissed along with connected CM(s).