Sh. Mohan Chandra Bhatt vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 567 Del

JUDGMENT

Reva Khetrapal, J.

1. By this writ petition under Article 226 of the Constitution, the petitioner prays for quashing of order of promotion dated 2.2.2000, whereby, the petitioner stood superseded by the third respondent, a junior officer.

2. First, the facts in a nut shell:-

3. The petitioner entered the Indo Tibetan Border Police Force (in short, ITBPF) on 10th December, 1973 as a direct entry officer. His initial appointment was as a Company Commandant, but by September 1989 he had reached the level of Commandant. After about a decade two vacancies arose in the Force for the post of Additional Deputy Inspector General, a selection post. The petitioner along with seven other persons was within the zone of consideration. Accordingly, a DPC was convened in the month of Jan. 2000, and the case of the petitioner was considered for promotion to the said post with the other candidates. For the said purpose the ACRs of the eight incumbents were placed before the DPC for consideration. The result of the DPC was announced on 2nd Feb. 2000, whereby, the names of one Shri D.K.Sharma and Sh. Daljit Singh, the third respondent herein, were selected for the two vacancies which had accrued. It is the case of the petitioner that it was then that he came to know that he had been overlooked for promotion to the post of Additional Deputy Inspector General. In so far as the promotion of Shri D.K. Sharma is concerned, the petitioner has no grievance, the former being admittedly senior to the petitioner, but the petitioner is aggrieved by his non promotion and the promotion of a junior officer, viz Shri Daljit t Singh, the third respondent herein. The petitioner accordingly knocked at the door of the Director General, ITBPF and was granted interview on 14th March, 2000. The petitioner thereafter on the latter's advise also preferred a representation to the Union Home Secretary, Ministry of Home Affairs, Government of India on 5.4.2000 which, however, was rejected by the said Ministry vide communication dated 20th Jan. 2000. No other avenue being available to the petitioner, he filed the present writ petition.

4. At the threshold, we may notice that it is not in dispute that the post of Additional Deputy Inspector General in the ITBPF is a selection post and promotion to the said post is made purely on merit basis by the DPC after comprehensive and objective scrutiny of service record and the ACRs of the officers in the consideration zone. Significantly also, the petitioner has not alleged any malafide or bias against the members of the DPC. All that is stated by the petitioner is that as per his understanding he was ranked in the highest grade in most of his ACRs relevant for the aforesaid promotion and that he was never told at any stage there had been any toning down of his ACR grades. This being so and the downgrading in his ACRs not having been advised to him, the said down grading would be non est. Great prejudice has been caused to him by the down grading accorded to him without communicating the same to him as the same had bearing upon his promotion, and if not communicated to him the same ought to have been ignored.

5. Per contra, the present writ petition is misconceived since the promotions are made on the basis of merit and the petitioner does not have any right to challenge the recommendations of the duly constituted DPC made on the basis of objective assessment of all the officers. It is contended by the respondents No. 1 and 2 that the DPC was required to assess the suitability of the officers for promotion on the basis of service record in terms of the guidelines issued in this regard. In this contention, a notification G.S.R. 766(E) issued by the Ministry of Home Affairs dated 11.11.1999 has been placed on record formulating ITBPF, General Duty Cadre Group 'A' Posts Recruitment Rules 1999. A bare glance at the schedule annexed thereto shows that the post of Addl. Deputy Inspector General, a group 'A' post in the pay scale of Rs.14300-400-18300 has been shown to be a 'Selection by Merit' post. It is also submitted that in the ITBPF the performance of an officer is monitored under a three tier system, viz. by the Reporting Authority, the Reviewing Authority and the Accepting Authority, all of whom give their grading according to their objective assessment of the officer's work and conduct during a particular period in the Annual Confidential Report of the said officer. While considering appointment to a selection post, the DPC examines the record of the Reporting Officer, the Reviewing Officer and the Accepting Officer for each years Annual Confidential Report, then formulates its opinion and gives its grading and makes recommendations for promotion. As such, there is no scope for challenging the recommendations of the duly constituted DPC.

6. On merits, it is submitted that though the petitioner's Battalion was adjudged the 'Best Battalion' for the year 1992-93, the respondent no. 3 had been honoured to get the 'Best Battalion Trophy' twice while he was commanding the 4th Battalion and the 12th Battalion for the years 1994 and 1997 respectively, which makes it amply clear that his performance as a Commandant was better then that of the petitioner. Besides, he was awarded the 'Indian Police Medal' for meritorious services in the year 1993, and the 'President Police Medal' for Distinguished Service in the year 2000. He had also been awarded the DG's Commendation Letter and Insignia in 1997 and a number of appreciation letters by the DG and other superior officers. As such, his service record is comparatively better than that of the petitioner. As regards Annual Confidential Reports, it is pointed out that the respondent no. 3 was ranked in the higher grade in the Annual Confidential Reports for the preceding five years right from the stage of the Reporting Authority to the Accepting Authority, which was not so in the case of the petitioner. Further in the case of the petitioner the reviewing authority on two occasions had upgraded the grading given by the Reporting Authority. It is also contended that the petitioner not having made any allegations of bias or prejudice against the DPC and the promotions having been made on the basis of objective assessment made by the DPC are not open to challenge. Moreover, since the petitioner was never given any adverse grading, he was not communicated his grades in writing, since under the prevalent instructions only adverse remarks are communicated and not any downgrading in the Annual Confidential Reports, more so when it is a question of comprarative merit alone. 7. Keeping in mind the rival contentions of the parties, the records were called for including the Annual Confidential Reports folder of the petitioner, which were perused by us Along with the comparative Chart of Gradings' of the petitioner, the third respondent and other incumbents. The same is reproduced as under:-

  Sl No.   Name of officer     Year     Year       Year       Year       Year 
                           1994-95   1995-96   1996-97    1997-98    1998-99
1        D.K. Sharma          OS       OS         OS        OS          OS
2        N. Thangiyan         OS      Good       OS/VG     4m/8m     V. Good.
3        V.K. Upreti       V. Good.  V. Good.     OS      V. Good.   V. Good.
4        V.K. Dandona         OS     VG/Good     Fair      VG .x       Good.
                                                        (displeasure 
                                                          issued on 
                                                           22.8.97)
5        M.C. Bhatt           OS     V. Good.     OS        OS       V. Good.
6        M.S. Bhurji          OS       OS       V. Good.   OS/VG      8m/4m
                                                                        OS
7        Daljit Singh         OS       OS         OS        OS          OS
8        M.S. Hyanki       V. Good.    OS       V. Good.  V. Good.     Good
 

8. A bare glance at the above chart shows that whereas the gradings of the third respondent in his Annual Confidential Reports for the preceding five years were throughout 'Outstanding', the petitioner's gradings for three years, i.e., for the years 1994-95, 1996-97 and 1997-98 respectively were 'outstanding', but for two years, i.e. for the year 1995-96 and 1998-99, he was graded as 'Very Good' and not as 'Outstanding'. The Annual Confidential Reports folder further bears out the contention of the respondents no. 1 and 2 that for the years 1994-95 and 1999-99 the petitioner was upgraded by the Reviewing Authority from the grading given to him by the Reporting Authority. It thus stands established from the records that the grading given to the respondent no. 3 by the Reporting Officer, the Reviewing Authority and the Accepting Authority for the five years Annual Confidential Reports which were considered for the purpose of promotion were superior to the gradings given to the petitioner for the aforesaid five years.

9. Strong reliance is placed by the counsel for the petitioner upon a judgment of the Apex Court in U.P. Jal Nigam and Ors v. Prabhat Chandra Jain and Anr. to contend that any variation in gradation may reflect an adverse element compulsorily communicable to the petitioner. According to the petitioner for the years 1995-96 and 1998-99 he was down graded from 'Outstanding' to 'Very Good', and such down toning of his Annual Confidential Reports having not been communicated to him should not have been considered by the DPC. We do not find any merit in this contention. A Division Bench of this Court of which one of us (Hon'ble Justice Dr. Mukandakam Sharma) was a member, in a recent pronouncement dated 6.1.2006 in Rukhsana Shaheen Khan v. U.O.I. and Ors. WP(C) 44/2006) has held that where there is no requirement in the rules governing the case of communication of any down grading made in the Annual Confidential Reports, the same need not be communicated to the petitioner. In doing so, reliance was placed by the Court upon the judgment of the Supreme Court in the case of Union of India and Ors. v. Major Bahadar Singh, reported in 2005(9) (SCALE) 459. In the said case, while dealing with the legality of a judgment rendered by a Division Bench of the Delhi High Court in a Letters Patent Appeal, the Supreme Court held that that where the petitioner was merely aggrieved by the non communication of an entry in his Annual Confidential Report and the High Court had quashed the said entry in his Annual Confidential Report on the ground that the same had an element of an adverse reflection leading to denial of promotion and remanded the matter back to the respondent in the writ petition for reconsideration of the writ petitioner's case, the judgment of the High Court was vulnerable and the quashing of the entry in the Annual Confidential Report by the High Court was indefensible.

10. It was further held in Major Bahadur Singh's case (supra) by the Apex court that the material on record clearly revealed that the procedure adopted for recording of Annual Confidential Reports had been elaborately provided for and that the rules in the case did not specifically caste any obligation of communicating gradings in the Annual Confidential Reports to the concerned employees. It was also held that the down grading in the Annual Confidential Reports unless these were adverse entries or unless they were specifically required to be communicated under the rules were not needed to be communicated to the petitioner. Referring to its earlier pronouncement in U.P. Jal Nigam's case (supra), the Supreme Court held in Major Bahadur Singh's case (supra) that the said case has no universal application, in as much as the judgment itself shows that it was intended to be meant for the employees of U.P. Jal Nigam alone. Precedent, it was emphasised by the Apex Court, should be followed only so far as it marks the path of justice. There is always a peril in treating observations of the Court as Euclid's theorems or as provisions of a statute (and that too taken out of their context), and such interpretation must be eschewed.

11. In view of the aforesaid decision of the Supreme Court , which is squarely applicable to the facts of the present case, we are of the view that in the instant case the petitioner can have no cause for grievance. We are also of the firm view that this Court by exercising its powers under Article 226 of the Constitution can not exercise the powers of judicial review in the matter of promotion of concerned officers, when there are specific rules framed for the aforesaid purpose, which have been adhered too by the competent authorities, nor it can moderate the appraisal of Annual Confidential Reports and alter the grading given to the officers in their Annual Confidential Reports. The down toning of his Annual Confidential Report under the rules governing the case of the petitioner were not required to be communicated to him and the petitioner can have no cause for grievance in this regard, more so as the remarks were not adverse in nature. The petitioner apparently was not selected on the basis of comparative merit and overall profile for the post of Addl. Deputy Inspector General, and hence was denied promotion.

We, therefore, find no reason to quash the impugned order dated February 2nd, 2000. The Writ petition is, accordingly, dismissed.