Rakesh Kr. Sharma vs Uoi & Ors
2012 Latest Caselaw 4372 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision : July 24, 2012

+                      W.P.(C) 2121/1998

      RAKESH KR. SHARMA                         ..... Petitioner
          Represented by: Ms.Rekha Palli, Ms.Punam Singh
                          and Ms.Amrita Prakash, Advocates.

                  versus

      UOI & ORS                              ..... Respondents
           Represented by: Ms.Anjana Gosain, and Ms.Prerna
                           Shah Deo, Advocates with
                           Dy.Comdt.Bhupinder Sharma,
                           Law Officer, BSF.

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR. JUSTICE MANMOHAN SINGH


PRADEEP NANDRAJOG, J. (Oral)

1. On July 25, 2011, following order stands recorded in the order-sheet:-

"1. Arguments heard in part. During arguments a suggestion has emerged from the court. The basis of the suggestion is the apparent contradictions in the ACR of the petitioner for the year 1.4.1994 - 31.3.1995 as also certain admissions in the counter affidavit.

2. The admission pertains to the initiating officer wanting to recall the ACR proforma so that he could upgrade the ACR grading of the petitioner.

3. The suggestion is whether the respondents can ignore the ACR recorded in the year 1994-95 and 1995-96.

4. Learned counsel for the respondents states that when the matter was taken up for hearing on the last date, the department put up a note in respect of the facts hereinabove noted and the Director General BSF wants further time to consult the Cadre Controlling Ministry, for the reason if the department accepts that it would be willing to ignore the ACR for the last 2 years, the review DPC would require to be held and it is the Cadre Controlling Ministry which has to convene the DPC.

5. It is accordingly directed that the matter be deleted from the list of regular matters and be shown as „For Directions‟ on 12.10.2011.

6. It is hoped and expected that within 4 weeks of receipt of the note from the Director General BSF, the Cadre Controlling Ministry would take the necessary decision and communicate the same to the Director General BSF.

7. List on 12.10.2011.

8. Dasti under signatures of the Court Master."

2. The backdrop facts resulting in recording of the order dated July 25, 2011 may now be noted.

3. The petitioner had a grievance pertaining to ACR gradings for the year 1994-95 and the year 1995-96; for the former being „Average‟ and the latter being „Good‟.

4. This affected the benchmark to be achieved for promotion, which was „Very Good‟.

5. Departmental remedies having failed, the petitioner approached this Court, inter-alia, pointing out that the Initiating Officer, Comdt.M.S.Bisht had resorted to contradictory conduct pertaining to the ACR grading for the year 1994-95 and even the ACR gradings for both years were self-contradictory.

6. With respect to the contradictory behaviour of Comdt.M.S.Bisht, it was pleaded that after forwarding the ACR

proforma pertaining to the year 1994-95, Comdt.M.S.Bisht had written a letter to the Inspector General BSF on July 17, 1996 in which he desired that the ACR proforma be returned to him stating that on second thoughts he was of the opinion that he had inadvertently not correctly pen profiled the officer concerned i.e. the petitioner. Needless to state, it was too late in the day for Comdt.M.S.Bisht to retract the arrow which he had shot.

7. With reference to the ACR gradings for the year 1994-95, as per record produced, it was noted by this Court that while filling up the first part of the ACR proforma i.e. the part where the officer concerned has to record the self-appraisal, the petitioner had recorded as under:-

"Period under report initially served at Tac.HQs. HBN, On I.S. duty Srinagar. Led troops in all ops. of Cordon & Search/Spl. Ops./Raids etc. during my stay till 7.5.94. I was Convoy Cdr. Of Main Body, 4 Bn. during its move from Srinagar to Khasa (Amritsar). Due to my very good shooting skills called to participate in the selection trial for National/International Competition at Indore in the m/o June 94. Performed duties as Supdt.Butt.Officer at STC Kharka Camp. during Inter-Sector Shooting Competition in Sep. 1994. Also conducted Final Tests of Recruits batch No.18&19 at STC Kharka. Conducted Ops. Roar in Nov. 94 and Spl. Ops. Roar in March 95 and completed the assigned tasks.

Participated in Sand Model Discussions/TWET/Exercises as per the direction of the Worthy Comdt. Undergone Fleet Management Course Sr No.13 at BSF Acadmey from 5 Dec. 94 to 13 Feb. 95. Secured „CY‟ grading. Entrusted the responsibility of OCMT since 15.2.95, putting best efforts to enhance the standard of MT Fleet. Worked with best of my ability to round the clock for the successful inspection of IG, BSF, Punjab FTR. On 4 and 5 April 95. Carrying out all Trg. activities of the unit including ARCF/FPET/Cadres as per the desire of

Comdt. Discharged my duties with dedication and devotion and up to the entire satisfaction of Comdt."

8. While grading the officer „Average‟, Comdt.M.S.Bisht had written : „I do agree with the self appraisal of the officer‟. But thereafter, while justifying the petitioner to be graded „Average‟, the Commandant wrote : „He was rather reluctant to move and remained in the BOPs. That whatever limited period he stayed in the border he took adequate interest in the development of posts‟.

9. It may be noted that the petitioner was serving as a Deputy Commandant and had an issue with respect to being put in charge as Coy.Commander of a Service Company. As per him, said duties had to be assigned to an Assistant Commandant, and as per the command structure he had to be assigned the duties of either Adjutant or Quarter Master or Supporting Weapon Company Commander or Training Officer. Petitioner had made representations to the DIG bringing as aforesaid, which merited approval, resulting in the petitioner being not required to perform duties of the Coy. Commander of a Service Company post on May 08, 1994. In other words, for the year 01.04.1994 - 31.03.1995 the petitioner remained as the Coy.Commander i.e. in charge of a border outpost for only one month and eight days.

10. We eschew reference to an apparent contradiction in the ACR grading for the year 1995-96 for the reason the issue has since resolved itself.

11. Pursuant to the order dated July 25, 2011, the Director General BSF considered the matter fresh. Upon a fresh consideration of the matter, vide note dated September 13, 2011, DG BSF wrote on the file an opinion which reads as

under:-

"In the ACR for the year 1994-95, the Initiating Officer, even after having agreed with the self- appraisal of the Officer, (which speaks high about his performance), has given contradictory remarks and „Average‟ grading. Even the Reviewing Officer, having noted that the Officer has the intelligence and professional knowledge and competence to perform better in the team and bring out his best potential, graded the Officer as „Average‟.

Similarly, in the ACR for the year 1995-96, the Initiating Officer has agreed to the self-appraisal, (which speaks volumes of his performance) and even after noting that the officer was assigned the responsibility to train the Frontier Team where he took keen interest and was instrumental in achieving overall 2nd position by the Frontier Team, the Officer has been graded only as „Good‟. The records further reflect that the IO, after initiation of ACR 1995-96 of the Officer, had written separate DO letters to the Reviewing Officer and Accepting Authority, requesting either for upgradation of the ACR or to return the same to him for doing the needful, mentioning that "the pen picture is befitting to the officer but the grading probably is not so befitted".

12. The matter had to be sent to the Cadre Controlling Ministry i.e. Ministry of Home Affairs. With reference to the note of the Director General BSF, the Competent Authority in the Ministry, vide order dated October 11, 2011, wrote as under:-

"(i) ACR 1994-95 - No need to interfere with the grading awarded.

Although the Initiating Officer agreed with the self- appraisal of the officer, yet there is a mention of his reluctance to move and remain in the BOPs, in the demonstrated performance [Part-III(d)]. Besides, refusal of lawful orders of the Commanding Officer

to move to border poorly reflects on the conduct and state of discipline of the officer during that period. Discipline is the most critical in a Force like BSF and cannot be ignored by the Force HQrs and Government of India, in the context of the officer‟s conduct at that time.

(ii) ACR 1995-96 Upgraded from „Good‟ to „Very Good‟

Although the Initiating Officer has written DO letters to the Reviewing Authority and Accepting Authority, after initiation of the ACR, requesting for either upgradation of the ACR or to return same to him for doing needful, same was not accepted by these authorities. However, on the basis of his demonstrated performance and achievement during the assessment period, the officer deserves to be awarded at least 70 marks in 20 attributes of the personal qualities, making the overall marks awarded appropriate for being graded as „Very Good‟."

13. As per order dated October 11, 2011, passed by the Cadre Controlling Ministry, the issue pertaining to petitioner‟s ACR gradings for the year 1995-96 has become a non-issue, for the reason the respondents had upgraded ACR gradings from „Good‟ to „Very Good‟. For said year the benchmark is achieved.

14. What survives for consideration is the ACR grading for the year 1994-95.

15. A perusal of the note dated September 13, 2011 penned by the Director General BSF, copy whereof has been extracted by us herein above in paragraph 11, would reveal that the Director General BSF has opined, and in our opinion correctly, that the ACR grading by the Initiating Officer, to which concurrence had been accorded by the Reviewing Officer, suffers from a self-contradiction. The self-contradiction found is that both officers have recorded that the petitioner is an

intelligent officer having professional knowledge and competence to perform better in the team and has the capacity to bring out the best. The Director General has noted that both officers had agreed with the self appraisal of the officer.

16. Now, as per the self appraisal by the officer i.e. the petitioner he had led troops in all operations of cordon, search, raids and special operations during his stay on IS duty till May 07, 1994. This note by way of self-appraisal was agreed to and accepted by the Initiating Officer. The place was Srinagar, in the State of Jammu & Kashmir. The period was the year 1994-95 when militancy was fairly severe. It would be a contradiction in terms to accept that the petitioner led the troops in all operations of cordon, search, raids and special operations and yet record that the petitioner was reluctant to move and remained in the BOPs.

17. Unfortunately, the officer concerned in the Cadre Controlling Ministry has overlooked the said fact by recording that it is a case where the petitioner had refused to obey lawful orders and his disinclination to move to border poorly reflects on the conduct and state of discipline of the officer. The officer in the ministry has failed to note the apparent contradiction in the entries in the ACR proforma, which contradiction has been succinctly noted by us herein above.

18. It boils down to this. The same very Commandant who acted as the Initiating Officer, has as noted herein above himself written that at a second thought he had wanted to change the pen profile. Two views in respect of the character of the Commandant can possibly be drawn from said conduct of his. Firstly, either he acted under pressure or he realized his mistake. It is difficult for us to resolve the deadlock, but it

shows the character and strength and temperament and the decision making ability of the officer in question.

19. The totality of the circumstances have been correctly opined upon by the Director General as per his note dated September 13, 2011, who has noted that if the self-appraisal by the officer is correct, to which self-appraisal even the Commandant has agreed to, it would be an apparent contradiction to award ACR grading „Average‟ to such an officer.

20. We entirely agree.

21. The self-appraisal of the officer concerned evidences that he remained at the border outpost as a Company Commander only till May 07, 1994. He led troops in all operations of cordon and search, special operations, raids etc. Due to his shooting skills he was called to participate in the selection trial with the national/international competition at Indore. He was associated in conducting final tests of recruits for batch No.18 and 19. He participated in Sand Model Discussions pertaining to tactical exercise with the troops. He was entrusted the responsibility of officer commanding Motor Transport Fleet.

22. Such officer would, if not be „Very Good‟ would be at least „Good‟.

23. We accordingly dispose of the petition directing respondents to correct petitioner‟s ACR grading for the year 1994-1995 as „Good‟ and for the year 1995-1996 to correct the record by recording the ACR grading „Very Good‟ as per the decision taken by the respondents themselves.

24. Needless to state, at such DPC held for promotion where petitioner has lost out on promotion due to aforesaid aberrations, Review DPC would be held and if petitioner is

selected for promotion, necessary orders be passed and in said eventuality the petitioner would be entitled to all consequential benefits except actual wages for the promotional post.

25. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE JULY 24, 2012 dk