Calcutta High Court (Appellete Side)
Sumahan Ghosh vs Union Of India & Ors on 10 June, 2022
10.06.2022 IN THE HIGH COURT AT CALCUTTA
Sl. No.90 CONSTITUTIONAL WRIT JURISDICTION
(PP) APPELLATE SIDE
WPA 4264 of 2020
Sumahan Ghosh
Vs.
Union of India & Ors.
Mr. N. C. Bihani,
Ms. Papiya Banerjee Bihani,
Mr. Soumyajit ghosh,
Mr. Soumya Mukherjee,
Ms. K. Singh,
Ms. Sneha Singh
....for the petitioner.
Mr. D. N. Ray
....for Union of India.
The petitioner was an Officiating Company
Commander of 41 Battalion, Border Security Force on
20th March, 2011. The petitioner took charge of 'F'
Company on the night intervening 5th/6th April, 2011.
A constable of the company, namely, Gurcharan
Singh was caught smuggling 75kgs. of heroine in
connivance with smugglers during his duty hours. In
connection with such offence, the petitioner, being
the Officiating Company Commander, was issued a
charge-sheet on 13th September, 2013. A disciplinary
proceedings initiated by issuance of such charge-
sheet came to an end with the passing of the order
dated 23rd September, 2013. By the said order, the
petitioner was held guilty and he was awarded
'reprimand'. The petitioner came into the zone of
2
consideration for promotion from Inspector to
Assistant Commandant during the vacancy year
2016-17. The petitioner was assessed unfit due to
award of 'reprimand'. The petitioner's representation
in this regard was also considered and rejected. The
petitioner says that 'reprimand' is not a penalty and is
not a bar for being given promotion. There was no
time limit provided in the order dated 23rd September,
2013, by which the petitioner was awarded
'reprimand' for not considering the petitioner's case
for promotion.
Citing the judgments reported in 2001 SCC
Online All 632 (Dr. 10305N. Lt. Col. R. Saini vs.
Union of India & Ors.), 2012 SCC Online Del 2676
(Sumer Singh vs. Union of India & Anr.) and in 2016
SCC Online Del 3938 (Yuvraj Gupta vs. The Union of
India & Anr.), the petitioner says that 'reprimand' at
the highest is black ink entry in Annual Confidential
Report (in short ACR) and cannot be an embargo in
granting promotion to the petitioner. The decision
communicated to the petitioner by a memorandum
dated 25th April, 2017 given in answer to the
petitioner's representation clearly states that the
Departmental Promotional Committee (in short DPC)
assessed the petitioner as unfit due to award of
'reprimand'. This decision, according to the
petitioner, is contrary to the law settled by different
3
Courts. The petitioner, therefor, seeks quashing of
the memorandum dated 25th April, 2017 and granting
the petitioner promotion with retrospective effect
inasmuch as the petitioner has been given promotion,
but from a later date.
On behalf of the respondents, it is submitted
that the petitioner's case for promotion had been
considered by the DPC. The petitioner on being found
unfit was refused the promotion. It is not a case that
the petitioner has not been considered for promotion.
It is also submitted on behalf of the respondents that
assuming without admitting that 'reprimand' is not
an embargo for granting promotion, the overall ACR
for over the years of the petitioner on being taken into
consideration while deciding the case of promotion
was found unsuitable for granting the promotion.
The petitioner having admittedly awarded 'reprimand'
on 23rd September, 2013, failed to satisfy the
parameters considered for granting the petitioner
promotion and, as such, he was declared unfit. The
respondents have also placed reliance on an office
memorandum dated 10th April, 1989 and, in
particular, clause 6.2.3 thereof in support of his
contention that the petitioner failed to fulfil the
parameters.
In reply, the petitioner relies upon two office
memoranda respectively dated 7th July, 2008 and 6th
December, 2016, appearing at pages 71-72 and 69-
70.
After hearing the parties, I find that the matter
requires further scrutiny after affording the
respondents an opportunity to disclose their stand in
respect of the parameters, which the respondents
claim, could not be fulfilled by the petitioner when his
case was considered by DPC for promotion against
the vacancy for the year 2016-17 for granting
promotion from the Inspector to Assistant
Commandant.
Let affidavit-in-opposition be filed within a
period of four weeks from date. Reply, if any, thereto
be filed by three weeks thereafter.
Liberty to mention for inclusion in the list under
the heading "Hearing" after expiry of eight weeks.
(Arindam Mukherjee, J.)
