Dr.B.K.Sahoo vs Uoi & Anr.
2011 Latest Caselaw 4187 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision: 29th August, 2011

+                           W.P.(C) 6390/1998

        DR.B.K.SAHOO                                    ..... Petitioner
                  Through:         Mr.Anil Gautam, Advocate.

                                   versus

        UOI & ANR.                                    ..... Respondents
                       Through:    Mr.Ankur Chhibber, Advocate with
                                   Dy.Comdt.Bhupinder Sharma, BSF.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SUNIL GAUR

     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. Heard learned counsel for the parties.

2. Prayers made in the writ petition are as under:-

"(i) direct the respondents to produce the entire record of the case in hand for perusal of your lordships including the ACRs of the petitioner for the years which were considered by the DPC held in 1994, 1996 and 1997 along with the minutes of the DPCs and the decision of the authorities thereon.

(ii) issue a writ in the nature of certiorari or any other appropriate, writ order or direction quashing the adverse remarks recorded in the ACR of the petitioner for the year 1991-92.

(iii) issue a writ in the nature of „Mandamus‟ or any other appropriate writ, order or direction commanding the respondents for corresponding upgadation of ACR of petitioner for the year 1991-92.

(iv) issue a writ in the nature of a certiorari or any other writ, order or direction quashing the warning issued to the petitioner by IG BSF Kashmir dt. 6 th Sep.1993.

(v) issue a writ in the nature of „Mandamus‟ or any other appropriate, writ, order or direction commanding the respondent to re-fix the seniority of the petitioner in the rank of CMO w.e.f. 1st Dec. 1991 amongst his batch-mates, i.e. from the date his juniors were promoted to the said rank along with full back-wages of the promotional post with penal interest and other consequential benefits.

(vi) award cost of the instant proceedings to the petitioner against the respondents.

(vii) pass any orders or orders as may be deemed fit in the facts and circumstances of the case."

3. From the pleadings of the parties it emerges that while recording the ACR of the petitioner for the year 1.4.1991- 31.3.1992 the Initiating Officer recorded as under:-

"A smartly turned out officer, who possesses pleasing manners and personality. Physically fit and tough. A sober and matured officer. An officer who is full of initiative and drive, by his professional efficiency and behaviour creates confidence in patient. An intelligent officer who has a self confidence professionally very sound ........ Dr.B.K.Sahoo is professionally sound Medical Officer who looked after the recruits and Staff quite well. He maintained STC hospital satisfactorily. He has undergone course during the year in which he performed well. His approach to patient and their problems was just satisfactory...... An enquiry against his involvement in recruitment scandal is

pending."

4. The adverse remark being „An inquiry against his involvement in recruitment scandal is pending‟ was conveyed to the petitioner on 19.10.1992 informing him that he could make a representation there-against. Petitioner submitted a representation on 11.11.1992 in which he did not plead that the so called adverse entry was not in the nature of an adverse entry but was recording a matter of fact i.e. an inquiry pending against the petitioner, and thus, should be expunged on said account. Petitioner simply prayed that till inquiry being conducted against him is decided the adverse remark be not endorsed.

5. What the petitioner meant by the same is not understood by either the petitioner‟s counsel or by us for the reason the adverse remark recorded by the Initiating Officer had already been endorsed by the Reviewing Officer by the time it was conveyed to the petitioner.

6. Be that as it may, the inquiry proceeded against the petitioner. The charge for having received illegal gratification from 2 persons when they were medically examined and thereby enabling the said 2 persons to seek employment was held not established. But evidence suggests that the petitioner had conducted the medical examination in a negligent and casual manner and therefore, on 6.9.1993, with respect to the disciplinary proceedings initiated against the petitioner, he was warned to be careful in future while discharging medical duties.

7. The petitioner had become eligible for promotion as a CMO having completed 10 years‟ service as on 1.12.1991

and when the DPC met on 2.11.1994, the petitioner was declared „Not fit for promotion‟. Needless to state, the DPC considered the 5 years‟ ACRs preceding the year 1991-92 i.e. upto the year 1990-91 and thus it is obvious that neither the remark or the warning issued had any bearing.

8. Record shows that the DPC was influenced by the fact that in the ACR for the year 1990-91, the integrity of the petitioner had not been certified by the Senior Reviewing Officer (SRO) and taking this into account, the petitioner was not recommended for promotion.

9. At this stage, we need to highlight that since the DPC which met in the year 1994 was considering petitioner‟s eligibility for promotion as of 1.12.1991, 5 years‟ previous years ACRs considered were the ACRs for the years 1986-87, 1987-88, 1988-89, 1989-90 and 1990-91. In fact, we find that the DPC has considered not 5 but 6 years‟ previous ACRs. The ACR for the year 1985-86 was also considered.

10. It is apparent that what went against the petitioner was the ACR for the year 1990-91.

11. We find that the adverse entry therein; being the SRO not certifying petitioner‟s integrity was never conveyed to the petitioner. Thus, the position would be that something adverse not conveyed to the petitioner for the year 1990-91 has been used against him.

12. Thus as regards the adverse entry in the form of it being recorded in the ACR of the petitioner for the year 1991- 92 that petitioner was facing a disciplinary inquiry, it needs to be declared that the same cannot be an adverse entry. But it has also to be held that the same has made no effect for the

reason the DPC never considered the said ACR. As regards the warning issued to the petitioner, we find that the petitioner has not even bothered to challenge the report of the inquiry against him and indeed the report of the inquiry would show that though there was no evidence of petitioner conniving with 2 persons to wrongfully get employment but certainly was negligent in not conducting a proper medical examination and thus required to be warned to be careful in future. But, said warning is of no effect for the reason the DPC which met in the November 1994 was considering entitlement for promotion as of 1.12.1991 and considered the ACRs up to the year 1990 and never considered any service record post 1990.

13. But noting a fact which was never in the knowledge of the petitioner and expressing regret at the counter affidavit filed wherein it not being highlighted that the DPC which met in November 1994 considered the record only up to the year 1990 not highlighted the reason why the petitioner could not make the grade; noting further that the adverse entry in the ACR for the year 1990-91 being petitioner‟s integrity not certified by the SRO not being communicated to the petitioner; it being too late to direct that the same be conveyed to the petitioner for his response we direct that review DPC be held as of 1.12.1991 for this was the date for which the DPC which met in the year 1994 and considered the candidature of various persons. The DPC would ignore that in the ACR for the year 1990-91, the SRO of the petitioner did not certify his integrity. The DPC would consider the ACRs which were considered by the DPC which met in November 1994 and would re-decide petitioner‟s entitlement for being promoted as

a CMO and needless to state if the decision is favourable to the petitioner, consequential action of promoting the petitioner as a CMO from the date persons junior to him would be taken but without any back-wages. All other consequential benefits shall be accorded to the petitioner.

14. No costs.

15. Dasti.

PRADEEP NANDRAJOG, J.

SUNIL GAUR, J.

AUGUST 29, 2011 dk