Delhi High Court

Sh.Satish Kumar Sharma vs Union Of India & Anr. on 23 January, 2012

Author: Anil Kumar

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.482/2012

%                          Date of Decision: 23.01.2012

Sh.Satish Kumar Sharma                                      .... Petitioner

                        Through Mr.Sagar Saxena, Advocate


                                   Versus

Union of India & Anr.                                     .... Respondents

                        Through Mr.Rajinder Nischal, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA

ANIL KUMAR, J.

CM No.1011/2012

Allowed subject to all just exceptions.

WP(C) No.482/2012

1. The petitioner has sought an appropriate writ, order or direction

to the respondent No.2, Directorate General, Central Reserve Police

Force to convene a review DPC to assess the suitability of the petitioner

for promotion to the post of Inspector (GD) since his junior, Sh. Sunil

Kumar Gupta who had undergone the SSICC Sl.No.27 has been

promoted as Inspector with effect from January, 2007, and the said

promotion has been declined to the petitioner.

2. The petitioner asserted that he joined the Central Reserve Police

Force (CRPF) on 1st March, 2003 and was directly appointed as Sub

Inspector (GD) through SSC in the scale of Rs.5500-175-9000/- and

was posted with 12th Battalion by office order No.R.II.1/03-12-EC-I

dated 19th April, 2003.

3. According to the petitioner, he had undergone training at CTC-2

Coimbatore and was declared passed by order dated 10th July, 2004

and thereafter he had reported to the 12th Battalion on 13th April, 2004.

The petitioner was allegedly assigned seniority in the rank of Sub

Inspector G/List SI No.2184 (as on 01.04.2005) below Sh. Jai Pratap

Singh and Sh. Sunil Kumar Gupta. The petitioner remained posted

there upto 20th February, 2006 and thereafter he proceeded on

deputation to SPG for the post of SO-II for six years from 20th February,

2006.

4. The petitioner had forwarded a letter dated 24th December, 2010

while on deputation with SPG for his promotion and for the protection

of his seniority which was examined by the respondents and

subsequently rejected and communicated to the petitioner by

communication dated 9th May 2011.

5. While rejecting the plea of the petitioner for promotion it was

noticed by the respondent that the petitioner was screened for the

SSICC Sl.No.27 but was not detailed for the said course as he could not

score the requisite qualifying marks. Again the petitioner was not

considered for detailment of the SSICC Sl.No.28 & 29 as he could not

score the qualifying marks.

6. The petitioner finally was detailed for SSICC Sl.No.30 on scoring

the requisite qualifying marks and thereafter he was brought on the

approved list C/GD-08/2007, and assigned FSS No.10 and ultimately

released on promotion as Insp./GD by order dated 6th September, 2007.

He was given proforma promotion under the Next Below Rule with effect

from 24th October, 2007.

7. The order dated 9th May, 2011 rejecting the representation of the

petitioner unequivocally showed that the representation for non

detailment of the petitioner for SSICC Sl.No.27 & 28 was rejected as the

petitioner had failed to secure the requisite qualifying marks during the

screening period. The respondents also specified that the qualifying

marks for the detailment of SSICC is 21 marks and also that a person

should have at least one „Very Good‟ and two „Good‟ ACRs out of the 3

ACRs taken into consideration, to become an Inspector if he has no

rewards/punishments. As the petitioner‟s all three ACRs were „Good‟,

therefore, the petitioner was not promoted to the post of Inspector. The

respondents also categorically stated that only adverse entries were

liable to be communicated to the individual and since the benchmark

was one „Very Good‟ and two „Good‟ entries out of the three ACRs, and

since in the case of the petitioner all three ACRSs were „Good‟ in his

ACR, the same was not an adverse entry and was therefore not liable to

be communicated to the petitioner. The respondents also asserted that

the procedure for informing the adverse ACR in the department from

2009-2010 onwards is followed. The relevant order dated 9th May, 2011

of the respondents is as under:-

"3. No.037140212 SI/GD (Now Insp/GD) Satish Kumar had earlier submitted representation to this office for non detailment on SSIC Sl.No.27 & 28 through SPG authorities. In reply to this representation, this office vide letter No.C.IX-19/2007-Estt. Dated 15/2/07 had informed through SPG authorities that he could not secure requisite qualifying marks during screening of records (i.e., Service Book & ACR) and hence he was not considered for detailment on SSICC Sl.No.27 & 28. However, he again submitted representation to know the reasons for non securing requisite qualifying marks. This office vide letter No.C.IX-19/2009-SS-Estt-3 dated 23/09/09 had informed the said individual through SPG authorities that as per instructions, qualifying marks for detailment on SSICC is 21 marks i.e., a person should have atleast One Very Good and Two Good ACRs out of 03 ACRs to become an Inspector if he has no rewards/punishments. The said SI/GD had all three Good ACRs (including course report considered as first ACR) only.

4. The said individual has now again submitted a representation stating that he had never been awarded any punishment, warning or reprimand (written or oral) for any reason what so ever during his service. Further, injustice has been done to him by not communicating either orally or written to improve any of the attributes (personal or professional) which form part of the ACR and are the basis of awarding final grading. The said individual further contended that the reporting and reviewing officer in his case have failed to do their bit while writing ACR, as they have under estimated his potential and performance under various attributes which has ultimately resulted in injustice by delaying promotion and seniority. He has further held

that he had been denied opportunity of natural justice as he had not been given any opportunity to represent against adverse attributes based on which he was graded as "GOOD" and relied on judgment of CAT in the case of Dr.Ajoy Roy Vs Union of India & others and in the case of Abhijit Ghost Dastidar Vs Union of India.

5. In the instant case, this office is of the view that the Departmental Screening Committee detailed to screen records of eligible/willing Sis/GD for detailment on SSICC Sl.No.27 to 29 has followed the established procedure and there is no irregularity. The said individual was not considered for detailment on SSICC Sl.No.27 by the Departmental Screening Committee as during the material period under consideration he had all the three grading as "GOOD". As regards the contention of the said individual that he had never been afforded an opportunity to represent against grading "GOOD" in ACR for the period 2004-05 and 2005-06, it is submitted that as per procedure in vogue at that time only adverse entries were communicated to the individual. Further, there were no adverse entries during the said period which was required to be communicated to him. The procedure for informing the individual about their Annual Performance Appraisal Report is being followed in the department from 2009-10 onwards. The said individual may be informed accordingly."

8. Mr.Rajinder Nischal, the learned counsel for the respondents who

has appeared on advance notice has very emphatically contended that

the grading of „Good‟ in the ACR in the facts and circumstances cannot

be construed as an adverse entry since the grading of „Good‟ in the

ACRs out of the 3 ACRs in consideration, is required.

9. The learned counsel for the petitioner after some arguments

conceded that the grading of „Good‟ in the facts and circumstances

cannot be construed as an adverse entry. Learned counsel, therefore,

conceded that the petitioner was not liable to be communicated his

ACRs in which he was graded as ‟Good‟. The benchmark for promotion

to the post of Inspector is one „Very Good‟ and two „Good‟ out of the

three ACRs taken into consideration and since the petitioner has only