Dr.R.B.Das vs Uoi & Ors.
2011 Latest Caselaw 1926 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 29th March, 2011
                       Judgment Delivered on : 4th April, 2011

+                            W.P.(C) 697/1995

        DR.R.B.DAS                               ..... Petitioner
                 Through:         Mr.Shyam Babu, Advocate

                                  versus

        UOI & ORS.                                  .....Respondents
                  Through:        Ms.Jyoti Singh, Sr.Advocate with
                                  Mr.Amandeep Joshi, Advocate

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.

1. At the outset we express our displeasure at the callous manner in which a counter affidavit and the supplementary affidavit has been filed by the respondents and would highlight that during arguments, learned senior counsel for the respondent had to concede that factually incorrect and legally untenable stand has been taken in the pleadings in the counter affidavit and the supplementary affidavit filed, due to which precious judicial time was wasted. We may highlight that ultimately we were compelled to call for the original record and decide the writ petition with reference thereto.

2. The grievance in the writ petition is to juniors being promoted as Senior Medical Officers with effect from 1.10.1987 and the petitioner being promoted with effect from 1.4.1989. Further grievance is to the said juniors being promoted as Chief Medical Officer by order dated 15.2.1995 with effect from 14.7.1993 and the petitioner being denied a promotion. Petitioner wants his placement as Senior Medical Officer with effect from 1.10.1987 i.e. the date when persons junior to him were so placed in the scale of Senior Medical Officer, and as Chief Medical Officer w.e.f. 14.7.1993.

3. We would have expected the respondents to have highlighted in the counter affidavit that there was no issue of promotion involved. The counter affidavit has been drafted as if one had to earn promotion to the post of Senior Medical Officers and Chief Medical Officer, but the actual facts show a completely different picture.

4. Relevant facts are that the cadre of Medical Officers in CRPF commenced from General Duty Officer Grade-II (GDO Grade-II) and the next above post was that of General Duty Officer Grade-I (GDO Grade-I). One had not to earn a promotion from the post of GDO Grade-II to GDO Grade-I for the reason General Duty Officers were placed in a lower and a higher grade and as per the Service Rules applicable, subject to fitness, after rendering 4 years' service GDO Grade-II would be placed in the next above grade i.e. GDO Grade-I, irrespective of vacancy position.

5. Having joined service in the year 1983 as GDO Grade-II, having rendered 4 years' service by 14.7.1987, petitioner became entitled to be considered for his fitness to

be assessed for upgradation as GDO Grade-I. Neither he nor anybody else was considered for upgradation inasmuch as Cadre Review of Group 'A' Medical Officers in the Central Para Military Forces was under consideration by the Cadre Controlling Ministry i.e. the Ministry of Home Affairs. An ad- hoc decision was taken that all those who had rendered 6 years service be upgraded as GDO Grade-I and this is how petitioner stood upgraded on 31.8.1990 as GDO Grade-I. This upgradation was without considering anybody's fitness and the reason thereof was that all those who had rendered 4 years' service as GDO Grade-II were clamoring for upgradation and the cadre review was taking unnecessary long time.

6. Ultimately the Cadre Review exercise was completed by 6.7.1994 when it was notified that the next available post would be that of a Senior Medical Officer, which would be not a promotional post, but would be attained by all those who had worked as General Duty Officers but subject to being declared fit. It was decided that all those who had completed 4 years service as on 1.10.1987 and all those who had completed 5 years service as on 20.8.1987 would be considered for being placed as Senior Medical Officers; the rationale of 4 years and 5 years service is most illogical for the reason we find it strange that those who complete 5 years service by 20.8.1987 were made eligible and those who had completed 4 years service by 1.10.1987 were also made eligible. Be that as it may, this stupidity/illogicality has no bearing.

7. Petitioner and many others became entitled to be considered as of the year 1987 for being placed, by way of

upgradation, as Senior Medical Officers and thus a DPC met on 17.11.1994 and considered all those who were eligible to be considered for upgradation in the year 1987 and in the subsequent years. Fitness had to be determined and no more.

8. The record of the DPC produced before us shows that the DPC took into account the DOPT OM dated 10.3.1989 for posts where seniority-cum-fitness was the criteria for promotion inasmuch as the same criteria had to be applied where fitness had to be certified for upgradation.

9. Rather stating as aforesaid, for unexplainable reasons, a fairly ipsit-dixit stand was taken in the counter affidavit filed and evidenced by the order dated 27.2.1996 passed by this Court which runs into 4 pages, the confusion stands reflected therein; and opportunity was given to the respondents to file an additional affidavit. In the additional affidavit filed a stand was taken that to determine fitness the benchmark adopted by the DPC was 'Very Good', a pleading which is totally contrary to the record of the DPC produced in original before us.

10. The additional affidavit created more confusion and due to paucity of time; being unable to decide the matter at the admission stage, Rule got issued on 10.9.1996.

11. Record of the DPC, which met on 17.11.1994, shows that it determined fitness with reference to the preceding 4 years' ACRs available till the year 1987 when petitioner's candidature was considered pertaining to fitness as of the year 1987. There existed 1 displeasure dated 24.7.1987 and the ACR gradings were:-

            (i)       1983-84 : Good.


             (ii)      1984-85 : Average.
            (iii)     1985-86 : Average.
            (iv)      1986-87 : Average.

12. It is apparent that having earned 1 displeasure and 3 out of 4 ACRs considered being 'Average' and in particular the preceding 3 years' ACRs being 'Average', the petitioner was declared 'Unfit'. Rightly so.

13. We have used the expression 'Rightly so' for the reason it is settled law that DPCs enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of candidates who are to be considered by them. Courts have been at pains to clear the misconception about 'Average' performance. While 'Average' may not be taken as adverse remark in respect of an officer, at the same time, it cannot be regarded as complimentary to the officer, since 'Average' performance has to be regarded as routine and undistinguished. It is only performance that is above 'Average' that is really noteworthy. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. It is settled law that before making the overall grading after considering the CRs for the relevant years, the DPC should take into account whether the officer has been awarded any major or minor penalty or whether any displeasure of any superior officer or authority has been conveyed to him as reflected in the ACRs. Further, the DPC is entitled to have regard to the remarks pertaining to integrity in the ACRs. To put it in brief, an officer should, in the minimum, be graded as a 'Good' officer to earn fitness for being upgraded to the post in the next above grade.

14. Since the DPC had met on 17.11.1994, it considered thereafter the candidature of the petitioner by considering his ACR for the year 1987-88 where petitioner was graded 'Good' as also the ACR for the year 1988-89 where the petitioner was graded 'Good' and thus certified him 'Fit' for being upgraded as Senior Medical Officer with effect from 1.4.1989.

15. Such a simple thing could not be pleaded by the respondents in the counter affidavit filed as also the supplementary affidavit filed. It surprises us.

16. Thus, the first grievance raised by the petitioner is without any basis and we may simply highlight that in spite of the record showing to the contrary, the only submission which was urged by learned counsel for the petitioner was that the respondents have to be bound to their pleadings and since the respondents took the stand that fitness was determined on the benchmark 'Very Good', the petitioner must succeed. A stand and an argument which we reject for the reason the task at every judicial adjudication is to identify the correct facts and apply the correct law. Where the correct facts have surfaced, incorrect and wrong pleadings have to be ignored.

17. To reach the post of Chief Medical Officer, promotion as conventionally understood had not to be earned, since the further rise was not linked to vacancies. Senior Medical Officers having rendered 10 years' service, out of which 2 years had to be as a Senior Medical Officer, became entitled to be placed as Chief Medical Officers and this so called promotion was once again subject to being declared fit and fitness was to be determined as per DOPT Circulars for said posts where promotion was based on 'seniority-cum-

fitness' i.e. preceding 5 years' ACRs to be considered out of which at least 3 should be 'Good' and at least 2 'Average' with no adverse entry in the said years.

18. Petitioner had earned 2 displeasures on 24.4.1993 and 11.7.1994, and thus at the DPC which met on 12.12.1994, to consider all those who had become eligible to be placed as Chief Medical Officers, petitioner could not earn fitness with reference to his ACR gradings and the displeasures earned.

19. We have hereinabove discussed the legal position as to how fitness has to be determined and suffice would it be to state that the displeasures conveyed to the petitioner and as entered in his Confidential Rolls were to be taken into account, and were rightly taken into account by the DPC. It was on account of said displeasures awarded to the petitioner, that notwithstanding he having 3 'Very Good' and 2 'Good' ACR gradings, that he could not earn the necessary fitness.

20. It may be noted here that the petitioner made a representation on 20.1.1995 against his not being placed in the grade of Chief Medical Officer and claims that no decision was conveyed to him, but we find that there exists a communication dated 2.3.1995 which conveys to the petitioner that his representation was rejected.

21. A word needs to be spoken of on the issue raised by learned counsel for the petitioner that since displeasure is not treated as a punishment, the 2 displeasures communicated to the petitioner, being wrongly treated as a punishment have resulted in his supersession and thus, learned counsel urged that the decision of the DPC be quashed and directions issued to convene a Review DPC.

22. Displeasures are generally awarded in cases where there is evidence of delinquency or irregularity, but it is not considered worthwhile to institute formal disciplinary proceedings. There may be cases where delinquency or irregularity is of a kind which may justify initiation of disciplinary proceedings for levy of minor penalty, but there may be found extenuating circumstances which would not justify initiation of formal disciplinary proceedings and there may be other cases where the time and expense involved in conducting disciplinary proceedings would not be commensurate with the delinquency or irregularity and therefore displeasure is awarded.

23. We find nothing wrong in the criteria adopted by the DPC to determine fitness and the objective fact taken into consideration; of petitioner having earned 2 displeasures in the years pertaining whereto his ACRs were to be considered, to determine his fitness for being placed in the scale of Chief Medical Officer.

24. Thus, not on the pleadings of the respondents, at which we express our displeasure, but with reference to the actual records, we conclude by dismissing the writ petition and leave the parties to bear their own costs.

25. We direct the respondents to place before the Director General CRPF a certified copy of our decision along with the pleadings of the respondents in the instant case and we would expect the Director General CRPF to look into the matter and try and strengthen the legal department of CRPF where counter affidavits are vetted so that in future the Court is rendered better assistance. We may highlight for his

information that this is not the solitary instance of deficient pleadings noted by us in counter affidavits filed by CRPF. The situation is fairly alarming and we find deficiency in pleadings in nearly 50% of the counter affidavits filed on behalf of not only CRPF but other Central Para Military Forces. The Registry would be directed to send a certified copy of this decision to the Director General CRPF.

26. File be consigned to the record room.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE

APRIL 04, 2011 dk