D.S. Panwar vs Union Of India And Ors.
2001 Latest Caselaw 1499 Del

JUDGMENT

Dr. Mukundakam Sharma, J.

1. By the present petition the petitioner has sought for his promotion to the post of Second-in-Command w.e.f. 17.2.1996.

2. The petitioner was promoted as Company Commander in the year 1980 and was promoted to the post of Deputy Commandant on 9.10.1991. The next promotion post of the petitioner was to the grade of Second-in-Command in the pay scale of Rs. 4100-5300. The case of the petitioner for promotion to the said grade was considered by the Departmental Promotion Committee Along with other eligible candidates. However, in the order of promotion dated 17.2.1996 the name of the petitioner was not included where as the names of other persons including those imp leaded as private respondents in the present petition were included. Accordingly, being aggrieved by the said order of promotion dated 17.2.1996 the petitioner preferred this petition.

3. It was contended by the counsel appearing for the petitioner that the petitioner had all the eligibility criteria for his promotion from the post of Deputy Commandant to Second-in-Command and therefore, he should have been promoted as he fulfillled all the requirements laid down for such promotion. It was also submitted by him that in case the petitioner was not promoted by the Departmental Promotion Committee on the ground that he was down-graded in his confidential reports then such reports whereby the petitioner was down graded could not have been considered by the Departmental Promotion Committee without communicating the same to the petitioner. In support of the said contention the counsel relied upon the decision of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. . It was also submitted that P.K. Gautam, respondent No. 17 herein was not only junior to the petitioner but his name was also not recommended by the DPC for promotion but that the said respondent was still promoted by the respondent to the grade of Second-in-Command which is highly discriminatory.

4. Counsel appearing for the respondents however, submitted that minimum Bench mark is prescribed for making recommendation of an officer for his promotion for the rank of Deputy Commandant to he rank of Second-in-Command which is to be very good' and such bench mark was not possessed by the petitioner due to which he could not be recommended for promotion to the rank of Second-in-Command. It was submitted that since the petitioner was within the zone of consideration he was duly considered by the Departmental Promotion Committee for his promotion to the grade of Second-in-Command but his case for promotion was not recommended by the Departmental Promotion Committee on the ground that the petitioner could not obtain the minimum prescribed bench mark of very good'. It was also submitted that the ratio of the decision of U.P. Jal Nigam (Supra) is not applicable to the facts and circumstances of the present case and the said case is distinguishable. I this connection the respondent relied upon the Division Bench decision of this court in Lt. Col. Krishnakant v. Union of India and Ors.; 1996 (V) AD (Delhi) 199, as also the Supreme Court in Col. K.D. Gupta v. Union of India, AIR 1989 SC 1393.

5. In the light of the aforesaid submissions of the counsel appearing for the parties I have carefully perused the records made available to me. The guideline for promotion to the grade of Second-in-Command is governed by the DPC Guidelines circulated by Department of Personnel & Training 's O.M. dated 10.4.1989. Promotion to the aforesaid grade is to be made by he method of selection by the DPC. It is laid down in the said circular, a copy of which is placed on record, that each departmental committee would decided its own method and procedure for objective assessment and suitability of the candidates. In clause 6.1.2 thereof it is also provided that such departmental promotion committees enjoy full discretion to device their own method and procedure for objective assessment for the suitability of the candidates who are to be considered by them. The minimum bench mark prescribed for the post with pay scale of Rs. 3700-5000 and above was very good', and therefore, the minimum bench mark prescribed for making recommendation of an officer for his promotion from the rank of Deputy Commandant to that of Second-in-command is also very good' which is to be satisfied by a candidate who is within the eligibility criteria and who is within the zone of consideration. It is disclosed fro the records that a meeting of the departmental promotion committee was held on 6.2.1995 to consider the cases of promotion of Deputy Commandants to the rank of Second-in-Command for 13 clear vacancies of Second-in-Command. Annual Confidential Reports of the officers who were considered for such promotion and were within the zone of consideration were placed before the Departmental Promotion Committee. The bench mark for consideration for promotion to the said grade is 'very good.' Minutes of the meeting of the DPC held on 6.2.1995 were also placed before me for my perusal. The Committee considered the cases of all the eligible persons and on consideration of the records the Committee recommended the names of 13 persons in order of merit who were to be promoted as Second-in-Command. It is also disclosed from the records that the Departmental Promotion Committee did not recommend the name of Shri P.K. Gautam; respondent No. 17 as he was occupying position at serial No. 22 seriatim i n the seniority list and that 13 Nos. of officers whose names were recommended for promotion after being found fit to the posts of Second-in-Command were within serial No. 1 to 21 of the seniority list in accordance with the instructions to fill up the post of Second-in-Command. The recommendations of the Departmental Promotion Committee were sent to cabinet Secretariat for obtaining approval of the competent authority. The approval of the competent authority was received from the Cabinet Secretariat vide their order dated 27.11.1995, a copy of which is placed on record as Annexure R-2. A perusal of the said order dated 27.11.1995 would disclose that the name of one Shri U.R. Pradhan who was at serial No. 16 in the seniority list, had been excluded from the list of 13 Nos. of officers whose names were recommended by the Departmental Promotion Committee. It is also established therefore, that since his name was omitted by the Competent Authority from the list of selected candidates the name of Shri P.K. Gautam who was placed in t he next position in the seniority list and who also satisfied the eligibility criteria was included by the competent authority in the list of said 13 Nos. of officers who were approved for promotion.

6. It further transpires from the records that clarifications were also sought for by the respondents in respect of dropping the name of Shri U.R. Gautam, from the Competent the name of Shri P.K. Gautam, from the Competent Authority under letter dated 29/30.11.1995. In response to the same the Cabinet Secretariat, vide their letter dated 17.11.1995 informed that the Department of Personnel and Training had directed that the orders contained in their earlier O.M. dated 20.10.1995 might be implemented with immediate effect.

7. The petitioner did not possess the minimum bench mark of very good' and therefore his case was not recommended by the Departmental Promotion Committee as he was not found fit for promotion whereas the name of Shri P.K. Gautam was accepted for promotion by the Competent Authority as the name of Shri U.R. Pradhan was dropped from the aforesaid list by the Competent Authority and as shri P.K. Gautam who was next in the seniority position was found to possess and satisfy the eligibility criteria for such promotion.

8. The guidelines referred to above also provide that the Departmental Promotion Committee should assess the suitability of the officers for promotion on the basis of their service records and with particular reference to their confidential reports for the preceding 5 years. Records of the present case disclose that the confidential reports of all the eligible officers within the zone of consideration were considered for preceding 5 years, and the departmental promotion committee evaluated the Annual Confidential Reports of all the Deputy Commandants who were within the zone of consideration for the last 5 years i.e. from 1989-90 to 1993-94 and categorised them in any overall grading. The petitioner was graded 'good' whereas the persons with the overall grading of 'very good' were recommended for promotion. UR. Pradhan who was also recommended for promotion had an overall grading of only 'good' and accordingly his name was dropped from the list and the name of Shri P.K. Gautam who had an overall grading of 'very good' was promoted. The petitioner had the grading of 'very good' only for two years and he was graded good for the remaining 3 years. It is thus established that the performance of the petitioner was down-graded at least for one year as the petitioner has the grading of 2 goods' for the first two years and then 2 very good' gradings for the next 2 years and for the last year he had the grading of 'good'. It is indicated therefore, that the petitioner was graded 'good' in the last year although he was graded 'very good' for the earlier 2 years and therefore, it could be said to be a case of down-grading. However, the decision relied upon by the counsel appearing forte petitioner would not apply to the facts of the present case as the proposition laid down by the Supreme Court in U.P. Jal Nigam (Supra) would not apply to the personnel of the defense Forces which have their own peculiarities and difficulties. The said position is recognised by the Division Bench of this court in Lt. Col. Krishanakant v. Union of India (supra) wherein it was held that the case of U.P.Jal Nagam cannot be made applicable to the defense personnel as they are governed by different set of rule and guidelines and they have their own difficulties and peculiarities. The petitioner has not also challenged his ratings in his ACR specifically. In Dalpat Abasaheb Solunke v. B.S. Mahajan, it was laid down by the Supreme Court that it is not the function of the court to hear appeals over the decisions of the Selection Committee and scrutinise the relative merits of the candidates. It was further held that whether a candidate is fit for promotion to a particular post or not has to be decided by the duty constituted selection committee which has the expertise on the subject.

9. In view of the aforesaid position I find no merit in this petition and the petition is dismissed. However, there will be no order as to costs.