Delhi High Court

Jai Pal Soni vs Uoi & Anr. on 23 December, 2010

Author: Gita Mittal

2
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +     W.P.(C)No.7141/2009

                               Date of Decision : 23rd December, 2010
%

      JAI PAL SONI                               ..... Petitioner
                            Through : Mr. L.K. Garg, Adv.

                      versus

      UOI & ANR.                                ..... Respondents
                            Through : Ms. Anjana Gosain,
                                      Mr. B.V. Niren and
                                      Mr. Abhishek Goyal, Advs.
                                      along with Asstt. Comdt.
                                      Bhupinder Sharma, BSF.
CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                  NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                 NO

3.      Whether the judgment should be                         NO
        reported in the Digest?


GITA MITTAL, J. (Oral)

1. The writ petitioner is a serving officer with the Border

Security Force. On 24th March, 2001 was appointed as

Assistant Commandant (direct entry). The petitioner has

contended that his service record contains no adverse entry till

by a communication dated 29th December, 2003, he was

informed of adverse remarks in the Annual Confidential Report

(„ACR‟ hereafter) for the period from 1st April, 2002 to 31st

March, 2003. The petitioner also assails the order dated 18th

June, 2004 and 30th August, 2006 whereby the respondents

rejected the petitioner‟s representations against the adverse

remarks. The petitioner‟s representations for expunging the

adverse remarks were not favourably considered.

2. Amongst others, the petitioner has assailed the adverse

remarks on the ground that the Reviewing Officer had not

completed 90 days prior to 31st March, 2003 in the

appointment and was therefore not competent to review the

ACR of the petitioner.

3. The writ petition has been necessitated for the reason

that as a result of the said adverse remarks, the petitioner has

been brought down in the gradation list as on 1st January, 2008.

The petitioner contends that he was required to have been

placed between Serial Nos.1505 and 1506 but finally has been

placed at serial No.1613.

4. It is an admitted position that for the period in question,

the Initiating Officer had given „very good‟ remarks in the

petitioner‟s ACR which was brought down to „good‟ by the

Reviewing Officer.

5. So far as the recording of ACR is concerned, our attention

has been drawn to the „ACRs Procedures and Instructions,

2003‟ which lay down admittedly binding instructions on

recording of the ACR. The relevant instruction which would

guide consideration of the present case stipulates as follows:-

"32 Where the reporting officer had acquainted with the work of an officer under his command for at least three months (90 days) during the relevant period he is competent to initiate the ACR of that officer. Similarly, the reviewing officer who had

acquainted with the work of the officer for at least three months (90 days) is also competent to review the ACR of the officer. Where there is no reporting officer for a period of report who has been acquainted with the work of the officer for three months (90 days) but the reviewing officer has been acquainted with the performance of the member of the Force for at least 3 months (90 days) during the period for which the confidential report is to be written, the confidential report of such member of the Force for which period shall be initiated by the reviewing officer provided that he is in a position to fill in columns to be filled in by the reporting officer and where the reporting officer and the reviewing officer have not been acquainted with the work and conduct of an officer for three months (90 days) but the accepting authority has acquainted with the performance as aforesaid of any member of the force during any such period, the confidential report shall be written by the accepting authority."

6. In view of the above guidelines, it is evident that in order

to be competent to effect a meaningful review of the

performance and work of an officer under his command, the

Initiating and Reviewing Officer ought to have scrutinized the

same for a period of at least three months (90 days).

7. The petitioner has also assailed the adverse remarks in

his ACR for the year ending 31st March, 2003 on the ground

that Rule 22(b) of the aforenoticed instructions of 2003

mandates that every warning or caution is required to be

issued to an officer in writing. However, such warning is not to

be automatically placed in the ACR of an employee officer. It is

only if the officer has not improved despite issuance of such

warning, etc. that mention of the same may be made in the

ACR.

8. The petitioner submits that so far as his service record is

concerned, he was never cautioned and issued a warning, etc.

so far as his performance for the relevant period was

concerned. There is no dispute that no deficiency or

shortcoming was pointed out to the petitioner.

9. We find that no deficiency or shortcoming is even

mentioned in the demonstrated performance report of the

petitioner dated 30th April, 2003.

10. The petitioner has made a grievance that no reasons at

all are available for the review which was effected by the

Reviewing Officer of the grading given by the Initiating Officer.

11. In view of the categorical stand of the petitioner so far as

the period for which the Reviewing Officer would have

observed the work of the petitioner, we had issued directions to

the respondents to place before this court the effective date of

assumption of charge by respondent No.2, Shri S.A. Alvi who

was the Commander Sector at the Border Security Force

Headquarter at Tripura (North) and had effected the subject

review. The respondents have placed before us the handing

and taking over charge report dated 2nd January, 2003 whereby

the said Shri S.A. Alvi has taken over charge as the Sector

Commander. Therefore there can be no manner of doubt that

the officer who had effected a review of petitioner‟s ACR for the

period ending 31st March, 2003 had not completed the period

of three months (90 days) and was therefore not competent to

effect the review and to downgrade the petitioner‟s ACR and

bring the same to „good‟. Such review is, therefore, not

sustainable. The said ACR, therefore, cannot be looked or

considered for evaluating the fitness of the petitioner for

promotion.

12. The respondents have stated that a Departmental

Promotion Committee was convened which held its meeting on

14th March, 2007 for consideration of cases of Assistant

Commandants for promotion as Deputy Commandants for the

vacancy year 2007-2008. The petitioner could not secure the

required benchmark due to his confidential report which

resulted in his being overlooked.

13. In view of the above narration of facts, the adverse

remarks contained in the ACR of the petitioner for the period

ending 31st March, 2003 cannot stand. As a result, the orders

dated 18th June, 2004 and 30th August, 2006 are also not legally

sustainable.

14. The learned counsel for the respondents has also pointed

out that displeasure was awarded to the petitioner by an order

dated 12th/14th June, 2004 which was affirmed by the order

dated 30th August, 2006 rejecting the petitioner‟s

representation against the displeasure.

15. So far as the displeasure which was awarded to the

petitioner is concerned, an objective review thereon is to be

taken by the Departmental Promotion Committee on a

consideration of the nature of acts or omissions attributed to

the petitioner which resulted in the award of displeasure.

16. In view of the above discussion, we direct as follows:-

(i) The adverse remarks communicated to the

petitioner dated 29th December, 2003; the orders

dated 18th June, 2004 and 30th August, 2006 are

hereby set aside and quashed.

(ii) The respondents are directed to convene a Review

Departmental Promotion Committee for

consideration of the case of the petitioner for

promotion to the post of Deputy Commandant as on

14th March, 2007 when cases of his junior were

considered for the said promotion.

(iii) Needless to say, the Departmental Promotion

Committee shall not take into consideration the ACR

of the petitioner for the period ending 31st March,

2003. A considered objective view shall also be

taken with regard to the effect of the award of

displeasure to the petitioner.

(iv) The Departmental Promotion Committee shall be

convened within a period of three months from

today.

(v) The result of the consideration by the Review

Departmental Promotion Committee on the case of

the petitioner shall be informed to him.

(vi) In the event, the petitioner is found fit for

promotion, the petitioner shall be entitled to

notional seniority and all consequential benefits

from the date when his immediate juniors were

promoted.