Sumer Singh vs Union Of India & Anr.
2012 Latest Caselaw 3085 Del

 *        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Date of Decision: 9.05.2012

+                    W.P.(C) No.558/1994


Sumer Singh                                        ...        Petitioner


                                  versus


Union of India & Anr.                              ...        Respondents


Advocates who appeared in this case:

For the Petitioner        : Mr.Anil Gautam, Advocate
For Respondent            : Mr.Ravinder Agarwal, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

*

1. The petitioner, who was not recommended for promotion to the

post of Deputy Commandant from the post of Assistant Commandant

by the DPCs held on 29th October, 1991; 24th November, 1992 and

17th November, 1993, has sought directions to the respondents to

produce the service dossier and other relevant records and has sought

perusal of the same and to quash the "displeasure" dated 16th April,

1991 given by the Director General of the Border Security Force and

for expunging the adverse remarks in his ACR for the period ending

31st March, 1992. The petitioner has also prayed that on quashing the

`displeasure‟ given by the Director General, Border Security Force and

on expunging the adverse remarks from his ACR for the period ending

31st March, 1992, he be given promotion, pay and allowances and

other benefits from the date his immediate juniors had been

promoted. The petitioner has also prayed for compensation for

humiliation and dishonour shown to him on the basis of false and

malafide complaints against him.

2. Brief facts relevant for the decision of the present writ petition

are that the petitioner was an Assistant Commandant in Border

Security Force during the relevant period that is 1991, 1992 and 1993

till he was promoted to the post of Deputy Commandant on the

recommendation of the DPC held in November, 1994. Pursuant

thereto, he was promoted to the said post in June, 1995.

3. The petitioner had joined the Border Security Force in 1986 and

after completion of his training period he had been declared best

trainee officer and was awarded the "sword of honour" by the Home

Minister. He had also been awarded "sword of honour" by Director

General, BSF for command footing contingent during Republic Day

Parade in 1989. The petitioner disclosed that he was also awarded

Inspector General‟s "commendation" for best performance in 1988 and

1989.

4. According to the petitioner, while on duty in Punjab he had

apprehended hard core militant Sukhvinder @ Bhinder Singh and in

July, 1991 his company had apprehended other terrorist Buta Singh

and had also seized one tractor and ammunition in encounter in

which he had played very important role. He had saved the lives of 64

persons of a company from ambush of militants near the village of

Harvan (J&K) by putting his own life in danger. He also disclosed that

he had apprehended a top organizer of JKLF (Sokat) and had

participated in "hot spring expedition". His performance was good on

the academic side in various courses conducted by the BSF and the

Army.

5. On 25th April, 1990 a Court of Enquiry was ordered by the DIG,

BSF, Shillong on the complaint of an Assistant Director (G), Shillong

in respect of a car No.DEA 986 which was auctioned on 25th August,

1988 by 25 Bn. BSF to Mr.Rampat son of Sh.Bhoop Singh, Village and

Post Office Kangan Teri, New Delhi in a public auction for an amount

of Rs.19,404/-. The said car was purchased from Sh.Rampat by the

father of the petitioner Sh.Ami Lal for an amount of Rs.32,000/-

which was gifted by the petitioner‟s father to the minor son of the

petitioner Jitender. The said car was taken by the petitioner which

was gifted to his minor son to 22 Bn. BSF, which was located in 1988

at Shillong, as the petitioner was posted there. The car gifted to the

son of the petitioner Jitender was later on sold for a consideration of

Rs.40,000/-, and according to the petitioner, the car though was

gifted to his son was sold with the consent of his father and the sale

consideration was remitted to Sh.Ami Lal, petitioner‟s father.

6. The allegations which were made in the Court of Enquiry were

that the petitioner had purchased the said car for Rs.25,000/- without

obtaining permission from the authorities concerned and had brought

the said car in a seven tonner vehicle of BSF by Constable Gurbaksh

Singh of 22 Bn., BSF and got it repaired in the workshop of BSF

which was later on sold to a khasi lady. The Court of Enquiry,

however, found the allegations contrary to the order which was made

regarding the Court of Enquiry. The Court of Enquiry, however,

blamed the petitioner under Rule 18(3) of CCS (Conduct) Rules for not

intimating within one month of receiving and sale of car and

recommended that the petitioner be "cautioned" for the said omission.

7. Consequently, a show cause notice dated 26th February, 1991

was issued to the petitioner for award of Director General‟s

"displeasure" for violation of Rule 13(4) and 18(3) of CCS (Conduct)

Rules for accepting gift over the prescribed limit and transacting sale

of car without permission or information of the competent authority.

8. The petitioner replied to the show cause notice, by reply dated

13th March, 1991, contending, inter-alia, that though he had not

obtained permission for accepting the car as a gift by his minor son

from his father, nor had taken the permission for its sale by his minor

son, however, this was done by him on account of ignorance of

complicated rules and regulations. He disclosed that his father has

land holdings who has his own income from farming and other

resources and the petitioner is the only son of his father. The

petitioner also has only one son and consequently, the father of the

petitioner had gifted the car to his only son on his last birthday. The

petitioner also disclosed that he came to know about his father having

purchased the car from Sh.Rampat, who had purchased it in auction,

when he had gone to Delhi in the month of 1988-1989 in connection

with the Raising Day and Republic Day Parade.

9. The petitioner alleged that he could not distinguish the minor

differences being the sole heir of his father‟s property out of innocence

and ignorance and he had sent the car to Shillong. Regarding sale of

the car, the petitioner disclosed that since he had been directed to go

on deputation to NSG, therefore, with the consent of his father he had

sold the car. Even the entire sale consideration was remitted to his

father. In the circumstances, the petitioner sought that a

compassionate view be taken in the right perspective as irregularity, if

any, was not done deliberately and without any ill motives.

10. By order dated 16th April, 1991, the Director General after

considering the reply to the show cause notice found the explanation

given by the petitioner unsatisfactory and awarded his "displeasure"

for violation of Rule 13(4) and 18(3) of CCS (Conduct) Rules, 1964.

11. Against the "displeasure" of the Director General, which was

communicated to the petitioner, he made a representation to the

Central Government on 22nd January, 1992. The representation made

by the petitioner was, however, rejected by the Central Government by

order dated 14th October, 1992.

12. A Departmental Promotion Committee was held to consider the

promotion of the petitioner and other Assistant Commandants to the

rank of Deputy Commandant. The said DPC took into consideration

the ACRs for the past five years i.e 1986-1987; 1987-1988; 1988-

1989; 1989-1990 and 1990-1991 that is the record of the officers upto

31st March, 1991. The DPC held on 29th October, 1991 did not

recommend the petitioner for promotion. Consequently, about 138

officers junior to the petitioner were promoted to the rank of Deputy

Commandant on 5th February, 1992, and another batch of 25 juniors

on 19th February, 1992.

13. The petitioner was transferred to 192 Bn. BSF on its Raising

Day under the command of Sh.S.D.Sharma in 1990. The petitioner

contended that all of a sudden a letter dated 27th January, 1992 was

served upon him intimating "you are warned for your misuse of

Government transport and rendering false certificate" by the Inspector

General. Though the petitioner made a representation against the said

letter dated 27th January, 1992, however, his representation was

rejected holding that his representation could not be accepted being

devoid of merits.

14. The petitioner disclosed that another DPC was held on 24th

November, 1992. The DPC held on 24th November, 1992 also did not

recommend the petitioner for promotion to the rank of Deputy

Commandant. The petitioner alleged that he had not been

communicated any adverse remarks and since he was not

recommended for promotion to the rank of Deputy Commandant, he

was again superseded by another batch of 165 officers junior to him.

15. According to the petitioner, in November, 1992, an adverse

entry in his ACR for the period ending 31st March, 1992 was made

stating therein, "but he has been given a warning for misuse of

Government transport and giving false certificate". Since the adverse

remarks were not communicated to the petitioner in November, 1992

in which the DPC had taken place, the petitioner could not make

representation against the adverse remarks. Therefore, the DPC held

on 24th November, 1992 considered the adverse remarks against him

and he was not recommended for promotion.

16. The petitioner had made a representation against the adverse

remark which was communicated to him in December, 1992 by a

letter dated November, 1992. His representation was rejected by a

one sentence order "rejected being devoid of merit".

17. The petitioner also contended that he could not have made a

representation in time as the adverse remarks was communicated by

letter dated 13th November, 1992 which were served upon the

petitioner on 4th December, 1992 though the DPC was held on 24th

November, 1992. Consequently, the petitioner was again superseded

by another batch of about 164 juniors to the rank of Deputy

Commandant based on the recommendations of the DPC held on 24th

November, 1992.

18. That on the queries made by the Civil Police to the Border

Security Force, a letter dated 27th September, 1993 making allegation

of misuse of transport and giving false certificate was sent. Since the

adverse remarks against the petitioner were not expunged, another

DPC held on 7th November, 1993 also did not recommend the

petitioner for promotion to the rank of Deputy Commandant and

recommended promotion of another batch of junior officers.

19. Later on, adverse remarks made against the petitioner were

expunged pursuant to the letters received from the police intimating

that from the records available with the police station it has been

revealed that the vehicle number as had been complained by the BSF

was not seized on or before 15th May, 1991 or thereafter by the police

station Sadar Gazipur. Consequent to part expunging of the adverse

remarks, the only adverse remark which had left in the ACR of the

petitioner was "need to be kept under observation". The petitioner

contended that the remaining adverse remarks had no meaning and

no basis as the words regarding misuse of transport and giving false

certificate which was in the ACR of 1991-1992 did not survive as the

relevant adverse remarks had been expunged by order dated 27th

December, 1993.

20. Despite the representations made by the petitioner his grievance

was not addressed. The petitioner had contended that the

`displeasure' dated 16th April, 1991 could not be considered by the

DPC held on 20th October, 1991 as it had to consider the petitioner‟s

ACR up till 31st March, 1991. There is no rule or regulation to include

the alleged `displeasure' dated 16th April, 1991 in the ACR which was

up to 31st March, 1991.

21. The subsequent DPCs held on 24th November, 1992 and 17th

November, 1993 could not consider adverse remarks given to him as

they were expunged and whatsoever was left was, in fact, could not be

construed as an adverse remarks. On failure to get any redressal and

consideration of the petitioner for promotion without the displeasure

note and the adverse remarks from the dates his juniors were

promoted, the petitioner filed the above noted writ petition on 29th

January, 1994 detailing the facts and, inter alia, on the grounds that

the `displeasure' and warning were based on the malicious designs of

„G‟ Staff whose involvement in allowing the smuggling activities on

Indo-Bangladesh border was unearthed by the petitioner. He alleged

that on 22nd October, 1989, the „C‟ company of 22 Battalion BSF

commanded by the petitioner had seized 19 boats and apprehended 5

Bangladesh nationals, who on interrogation had revealed that they

were allowed to enter the Indian territory by the company commander

of BSF Inspector (G) Kundan Singh, which was reported by the

petitioner to the Commandant 22 Bn. BSF in writing. According to the

petitioner, no action was taken against Kundan Singh. Rather he was

posted to N & M Sector as Inspector (G). It was unearthing of

involvement of „G‟ branch of BSF that all the staff of Frontier Head

Quarters AMM & N became against the petitioner and they made

various false complaints against him. But on enquiries all of them

were found to be false and no action was taken initially against the

petitioner.

22. The Court of Enquiry initiated on 25th April, 1990 was also on

the complaint of Assistant Director (General) Shillong who was bent

upon ruining the career of the petitioner because he had revealed the

nefarious activities of „G‟ branch.

23. The petitioner contended that before the DPC held on October

29, 1991 there were no adverse remarks and the `displeasure‟

awarded by the Director General on 16th April, 1991, which was also

not granted in accordance with the policy for grant of displeasure, in

any case, it could not be considered and consequently, there was no

material before the DPC for not recommending the case of the

petitioner for promotion to the rank of Deputy Commandant. The

petitioner was not recommended because the `displeasure‟ by the

Director General was taken into consideration by the said DPC.

24. The petitioner also challenged the proceedings of subsequent

DPCs held on 24th November, 1992 and 17th November, 1993 on the

ground that they could not have taken into consideration the adverse

remarks against him, as first the adverse remarks were not

communicated and thereafter when they were communicated after the

DPC had already held in 1992, they were expunged and whatsoever

was not expunged did not tantamount to adverse remark, and the

DPC held in 1993 had nothing before it against the petitioner so as

not to recommend the case of the petitioner for promotion to the rank

of Deputy Commandant.

25. Regarding the displeasure given by the DG, Border Security

Force, the petitioner asserted that gift taken or given by a blood

relation with which the Government servant has no direct nexus,

cannot be termed as "gift" and did not tantamount to any misconduct

and did not require prior permission from the respondents as the gift

by the father of the petitioner to his minor grandson was for the

benefit of the family only.

26. Challenging the DPCs held on 29th October, 1991, 24th

November, 1992 and 17th November, 1993, the petitioner contended

that his previous meritorious record of five years could not be ignored

for alleged technical violation of not informing the authorities about

the gift of the car by his father to his minor son which also he had to

sell as he had been transferred to NSG and his minor son had to move

with him. The petitioner contended that there is no justification to

supersede him by 400 junior officers and ignoring the awards and

other meritorious works done by the petitioner.

27. The writ petition is contested by the respondents, who filed a

counter affidavit dated 30th November, 1994 of Brig.K.K.Chaturvedi,

DIG and Comdt. BSF, T.C.S.Hazari Bagh (Bihar). The respondents

admitted the facts pertaining to the petitioner and various other

averments made by the petitioner except that a SCOI was ordered by

the DIG, BSF, Shillong to enquire into the circumstances under which

the petitioner while serving in 22 Bn. BSF acquired an Ambassador

car registration No.DEA 986 at the auction held at 25 Bn. BSF on 25th

August, 1988 for an amount of Rs.19,404/- in the name of his son

and conducting other illegalities in the transaction which ended in the

sale of the said car at Shillong. The respondents admitted that the car

was purchased in the auction by Sh.Rampat, who had later sold it to

the father of the petitioner Sh.Ami Lal for a consideration of

Rs.32,000/-. The father of the petitioner had transferred the car in the

name of the minor son of the petitioner as a gift, which was sold to a

civilian at Shillong on 2nd October, 1989. The respondents disclosed

that the petitioner had not obtained permission for accepting the car

as a gift in the name of his minor son from his father and thus had

violated provision of Rule 13(4) and 18(3) of the CCS Rules. According

to the respondents, the Court of Enquiry found the petitioner

blameworthy as the petitioner had accepted the gift in the name of his

minor son over the prescribed limit, and the car in the name of his

minor son was also sold without the permission or information to the

competent authority and DG of the BSF. Consequently, the

displeasure was communicated by the Director General, BSF by order

dated 16th April, 1991.

28. The respondents also alleged that the DPCs of 20th October,

1991, 24th November, 1992 and 17th November, 1993 had taken into

consideration the displeasure awarded to the petitioner in 1991 and

the adverse entries recorded in his ACR for the period ending March,

1992 while not recommending his promotion to the rank of Deputy

Commandant. The respondents denied that the adverse remarks

recorded in the petitioner‟s ACR for the period ending 31st March,

1992 were reflected in his ACR and not communicated to the

petitioner. The respondents categorically averred that the adverse

remarks recorded for the period ending 31st March, 1992 were

communicated to the petitioner by letter dated 13th November, 1992

well before the DPC was held on 24th November, 1992.

29. The respondents also relied on the letter dated 28th June, 1989

of the Government of India contending that the `displeasure‟ awarded

to an officer could debar him for promotion for a period up to two

years from the date of award of `displeasure‟ depending upon the

nature of delinquency or irregularity. The respondents denied that the

petitioner had performed heroic deeds and caught black-sheep of the

Force, who was helping the smugglers in the nefarious activities.

30. The respondents admitted that „G‟ company of 22 Bn. had

apprehended 5 Bangladesh nationals along with 19 boats in Balat

area. The respondents, however, contended that there was nothing on

record to show that Inspector (G) Kundan Singh had allowed

Bangladesh nationals to enter the Indian Territory. Regarding the

transfer of Inspector (G) Kundan Singh, it has been contended that it

was purely on administrative grounds due to his long stay in the area.

The respondents also refuted the involvement of said Inspector on the

ground that there is nothing on record to prove his involvement or the

involvement of „G‟ personnel with the smugglers. The respondents also

denied that „G‟ staff of Ftr Hqr AMM&N were against the petitioner and

the false reports were filed against him.

31. Regarding the displeasure note to the petitioner, the

respondents disclosed that Car No.DEA 986 registration papers

disclosed that the car was never transferred in the name of the father

of the petitioner after it had been purchased by Sh.Rampat. Relying

on Rule 18(3) of CCS (Conduct) Rules, it was asserted that any

Government servant belonging to Group „A‟ and „B‟ entering into

transaction in respect of movable property either in his own name or

in the name of any member of his family have to report the same to

the competent authority, if the value of the property exceeds

Rs.2000/- (now 10,000/-) within one month. The respondents also

contended that the petitioner also failed to disclose the gift to his

minor son in violation of Rule 13(4) of CCS (Conduct) Rules as the

value of the gift was more than Rs.75/-. The respondents contended

that the representations made by the petitioner to the Director

General and Ministry of Home Affairs were rejected after detailed

consideration and due application of mind by the competent

authority. It was also disclosed that an appeal was filed by the

petitioner to the President of India which was also considered and

rejected and rejection of the appeal was communicated to the

petitioner by the letter dated 8th July, 1993. Regarding consideration

of `displeasure‟ by the DPC held on 29th October, 1991, the

respondents relied on the instruction contained in para 3(ii) of

Government of India, Ministry of Home Affairs O.M No.I-

45026/1/25/87-Pers-II dated 28th June, 1989. The respondents

admitted that before the DPC held on 20th October, 1991 there was no

adverse remarks in his ACR. The respondents, however, asserted that

besides the DG‟s displeasure, warnings were issued to him in 1991 for

indiscretion in inviting unwanted elements like smugglers to a party

arranged by him on the eve of his departure from BOP Balat which

was taken into consideration in terms of para 6.2.3 of DOPT O.M

dated 10th April, 1989. The respondents disclosed that the petitioner

had represented against issue of warning and had also demanded

holding of an enquiry, however, it was not felt necessary by the

competent authority.

32. In para 2(xiii) of the parawise reply the respondents

categorically asserted that the petitioner was conveyed adverse

remarks endorsed in his ACR for the year 1991-1992 by letter dated

13th November, 1992 well before holding of DPC on 24th November,

1992. The averment made in the counter affidavit is as under:-

"2(xiii) ..... In fact, the petitioner was conveyed adverse remarks endorsed in his ACR for the year 1991-92 vide HQ DG BSF letter dated 13.11.1992 well before holding of the DPC on 24.11.92."

33. The respondents have also justified the adverse remarks though

they were allegedly expunged on humanitarian grounds, as there was

no certificate from the Superintendent of Police, Hazaripur (Bihar) and

the certificate was issued by incharge Police Station, Sadar Gazipur

and not Hazipur and the letter from District Magistrate, Collectorate

Mujaffarpur dated 20th October, 1993 revealed that one log book of

Jeep No.BPL-2380 was available with them. However, it did not

mention about the seizure of the vehicle but only availability of the log

book of the said civil jeep No.2380 BPL with the Deputy Collector of

District, Muzaffarpur. The respondents contended that there could be

no logical reason of log book being available with them even after the

release of the vehicle from seizure. The respondents also denied the

grounds raised by the petitioner in support of his pleas and

contentions for seeking relief as prayed in the writ petition. The

respondents relied on the instructions regarding the effect of award of

`displeasure' to the officers of the para Military Forces dated 28th

June, 1989 which is as under:-

"Subject: instructions regarding the effect of award of DG‟s displeasure to officers of the para Military Forces.

Sir, I am directed to say that the Government have been considering the question of what should be the effect of award of DG‟s displeasure to officers of the para military

forces on the promotional prospects of the awardee of such displeasure.

02. Displeasure is not a punishment. It is 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 also be cases where the delinquency or irregularity is of a trivial nature or where there are extenuating circumstances which would not justify initiation of formal disciplinary proceedings; in other cases, the time and expense involved in conducting such proceedings would not be commensurate with the delinquency or irregularity and therefore, displeasure is awarded.

03. It has been observed that the procedure followed in different para military forces in the matter of awarding displeasure or its effect is not uniform. The matter has been considered in the light of the comments of heads of para military forces and the following decisions have been taken.

i) Displeasure of the DG should be awarded after obtaining the explanation of the officer, through a formal order. The order should be conveyed to the officer.

ii) The confidential report of the officer for the period during which the displeasure has been awarded should have a record of the fact of award of such displeasure.

iii) If the displeasure has been recorded in the CR for a period prior to the normal period of consideration of CRs by the DPC, it should be ignored.

iv) If the displeasure falls within the period of consideration of CRs by the DPC, the facts and circumstances of the case leading to the award of displeasure should be placed before that DPC. The D.P.C should apply its mind to these facts and circumstances and take a view whether there has been any element of dishonesty, pecuniary gain, abuse of power or authority, moral turpitude. If any of these elements is present, then, taking a serious view of the matter, the DPC should not consider the officer for promotion for a period of one or two years from the date of award of the displeasure, as it

may consider appropriate. In case the displeasure has been awarded for routine or trivial infraction of the rules and instructions, the DPC may take a more lenient view and include the officer in the panel of promotion.

v) In case where an officer who has been awarded displeasure during the period of consideration of CRs is either included in, or excluded from. The panel for promotion, the DPC must record a brief note as to why he has been so included/excluded.

04. It is requested that these instructions may be strictly adhered to when cases of promotion of officers are considered by the DPC in future.

05. This issues with the concurrence of the Department of Personnel and Training vide their note dated 24.05.1989 on F.No.1-45026/25/87-Pers. II."

34. The respondents also relied on para 6.2.3 of O.M dated 28th

August, 1989 which is as under:-

6.2.3. 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 of minor penalty or whether any displeasure of any competent officer or authority has been conveyed to him as retired in the ACPs, The DPC should also have regard to the remarks against the column on integrity.

6.3.1. The list of candidates considered by the DEC and the overall grading assigned to each candidate, would form the basis for preparation of the panel for promotion by the DPC. The following principles should be observed in the preparation of the panel.

(i). Having regard to the levels of the posts to which promotions are to be made, the nature and importance of duties attached to the posts a bench mark grade would be determined for each category of posts for which promotions are to be made by selection method. For all Group C Group B and Group A posts upto (and excluding) the level of Rs.3700-5000 excepting

promotions for induction to Group A posts or services from lower groups, the bench mark would be 'Good'. All officers whose overall grading is equal to or better than the bench mark should be included in the panel for promotion to the extent of the number of vacancies. They will be arranged in the order of their inter se seniority in the lower category without reference to the overall grading obtained by e ach of them 'provided that each one of them has an overall grading equal to or better than the bench mark of Good.

Wherever, promotions are made for induction to Group A posts or Services from lower grades, the bench mark would continue to be Good. However, officers graded as Outstanding would rank an block senior to those who are graded as Very good and officers graded as very good would rank on block senior to those who are graded as 'Good' and placed in the select panel accordingly upto the number of vacancies, officers with same grading maintaining their inter se seniority in the feeder post.

(ii) In respect of all posts which are in the level of `3700-5000 and above, the benchmark grade should be & very go od'. However, officers who are graded as Outstanding would rank on blue senior to those who are graded as Very good and placed in the select panel accordingly upto the number of vacancies, officers with same grading maintaining their inter se/ seniority in the feeder post."

35. The petitioner refuted the pleas and contentions raised by the

respondents in their counter affidavit and filed a rejoinder dated 23rd

March, 1995. The petitioner placed reliance on Government of India

MHA O.M No.25/18/59 Ests (A) dated 28th August, 1959 and MHA

Department of Per & AR OM No.11013/13/78 Est (A) dated 11th

September, 1978 and quoted the relevant portion which is as under:-

"Transaction entered into by the spouse or any other member of family of a Govt. servant out of his or her own funds (including stridan, gifts, in heritance etc.) as distinct from the funds of the Govt. servant himself, in his or her name and in his or her own right would not attract the provisions of sub rules (2) and (3) of rule - 18 CCS".

36. The petitioner again emphasized that the displeasure note given

on 16th April, 1991 could not be considered by the DPC held on 29th

October, 1991 as the said DPC was not entitled to consider anything

after 31st March, 1991. The petitioner reiterated that he was not given

an opportunity to make representation against the adverse remarks

given in 1992 as adverse remarks were conveyed to the petitioner on

4th December, 1992 vide letter No.C-14011/91/90/CC/Pers/BSF/417

dated 13th November, 1992 whereas the DPC was held on 24th

November, 1992.

37. The petitioner reiterated the complaints given by him to

Inspector General, BSF, Shillong against the „G‟ personnel, which

according to him indicated that he had tried to unearth the misdeeds

of persons of „G‟ persons. The petitioner emphasized the complaints

made by him which were not investigated. The allegations made by the

petitioner in his complaint dated 9th May, 1990 are as under:-

"4. During the month of Oct '89, I was performing the duties of '3' Coy Comdr which was deployed at Balat Sub Sector. In my presence no body have dare to do some hunky punky. Even 'G' rep too try to keep away from me. On 16th Oct '89, I got a message from Bn HQ that I have been detailed as continent Comdr of BSF Raising day parade. On 19th Oct‟89 I left for Bn HQ from BOP for parade. In my absence Inspr 'G' Kundan Singh was convinced that Sumer Singh, AC is out till Feb. He got the opportunity and got indulged with BD Nationals in mal practices. With the result on 23 Oct '89 some BD Nationals advertently crossed the I/B with boats in Belat river and entered into Indian territory by the approval of Inspr 'G'. Our patrol party raided in river and able to apprehend 10 BD nationals and 19 boats well inside Indian Territory. During interrogation it has been revealed that they had got the permission from Inspr 'G'. A complaint was sent to HQ(Comdt) from BOP about the incident. An inquiry was conducted by Sh. M.L.Purohit 2/IC 22 Bn BSF. It has been proved in the inquiry that Inspr 'G' Kunden Singh was involved with smugglers. But no action has been initiated by AD(G) so far. I am sending a photostate copy of above mentioned. inquiry sooner. It clearly indicates that such type of persons are having upper hand of AD(G) and getting help from all sides there it shows that AD(G) may also be involved with these persons because on many occasions I have seen Inspr 'G' used to send some items from border for AD(G). For your confirmation I am attaching one photostate copy of a slip signed by Inspr for demand of fish for AD(G). I have seen myself and even I can tell in front of them also that 'G' Staff used to send chickens, fish, milk powder end other smuggled items to AD(G) almost daily. You may detail any person who will visit to 'G' staff houses then you will find how luxuries life they are living. Which is beyond their economical power. AD(G) used to sell chickens, fish to civilian out of them which were being sent by 'G' staff from border free of cost.

5. Sir I know if a GD Officer says/tells about some facts about any 'G' person, nobody believes on him whereas a 'G' person irrespective of any rank says something wrong or produce concocted story everybody consider his words of mouth as fact( RAMBAN) this is the fate of GD persons.

6. In continuation to above, the movement AD(G) got the inquiry proceedings completed by), Sh M L Furohit 2/IC 22 Bn BSF. He called Insp. „G‟ and briefed him before the ball comes into their court, better to push it in other court. He did intentionally because he was party with Inspr 'G'. Further he consulted other „G‟ persons of his staff also about the strategy for defending the case. Otherwise 'G' Branch will carry bad name or stigma on his face. Your honour after this indoor meeting he sent beck Inspr Kundan Singh for collection of some dates and name of patrol/Ambush parties from registers so that they could prepare a well defended concocted story. Accordingly Inspr 'G' did so and a story was made/prepared in AD(G)Office and a complaint was submitted in back date by Inspr „G‟ in the relation of inquiry conducted by Sh M L Furohit for the purpose to save their skin.

7. Sir, I can assure you that Inspr 'G' was the main agent of AD(G) who collects money from border and further handed over to AD(C). Inspr 'G' purchased a new scooter and after some days he sold the same to a civilian in Shillong. As per CSR 18, a class 'C' govt. employ also required to info the department whenever he sells/purchase any moveable/immovable property more than Rs.5,000/-. But Inspr „G' Kundan Singh did not info/seek permission from department in transaction of his scooter. AD(C) was in picture but he never brought the matter in light. With these things you can well imagine the extent of involvement of AD(G) with „G' staff. Sir for their own defence they want to spoil some poor fellow like me, who always take steps against dishonest persons and always speak against corrupt persons like AD(C). Sir this AD(C) will never produce the true things in front of you. He is a great dramatist always he will put a fake and sketchy picture.

8. The same complaint was signed by AD(G) in back date and further sent to your office with well designed story. A SCOI had been ordered and hope it has been completed by the Comdt 108 Bn.BSF. He included more than 30 persons (civilian/BSF) in his report for evidence. All the witnesses were tried by presiding officer and recorded their statement. During the inquiry he did not find even a single clue against me. He has submitted his

SCOI proceedings with his opinion to Sec HQ SHG. A photostat copy of said proceedings also being sent on getting."

38. The petitioner has also produced the copies of various

recommendations for awards to the petitioner and the reports about

his completing the courses successfully and with honors.

39. During the pendency of the above noted writ petition, the

petitioner was, however, promoted to the post of Deputy Commandant

by order dated 16th June, 1995 and he assumed the charge of the said

post. Thereafter, the petitioner was promoted from Deputy

Commandant to the Second-in-Command by order dated 16th June,

2003 and he assumed the charge of the said post on the same date.

From the post of Second-in-Command the petitioner was promoted to

the post of Commandant on 12th June, 2007 and he assumed the

charge of the post of Commandant on 12th June, 2007.

40. The petitioner placed on the record of the writ petition the

subsequent facts by an additional affidavit dated 22nd July, 2010. The

petitioner also asserted in the additional affidavit that Sh.Lakhwinder

Singh Bal and Sh.K.N.Suyal were the petitioner‟s immediate juniors

and consequently, all other officers below Sh.Suyal were also junior to

the petitioner. According to the petitioner, Sh.Sunil Mohan Mehta

IRLA No.32319 was the petitioner‟s immediate senior in the year 1991.

The petitioner also disclosed the promotion given to the petitioner‟s

immediate junior Sh.Lakhwinder Singh who was promoted to the post

of Deputy Commandant on 5th February, 1992; to the post of Second-

in-Command on 14th October, 1998; to the post of Commandant on

24th June, 2002 and to the post of DIG on 23rd November, 2009.

41. The petitioner also disclosed that his ACRs for the year ending

31st March, 1987; 31st March, 1988; 31st March, 1989 and 31st March,

1990 and 31st March, 1991 were graded Very Good and the first DPC

was held in October, 1991. The petitioner reiterated that the adverse

remarks given in 1992 were communicated to him on 4th December,

1992 after the DPC was held on 24th November, 1992. The additional

facts disclosed and all the pleas and contentions raised in the

additional affidavit dated 22nd July, 2010 were not refuted by the

respondents as no response to the said additional affidavit was filed

by the respondents.

42. This Court has heard the learned counsel for the parties and

has also perused the writ petition, the counter affidavit and the

rejoinder affidavit along with the documents filed by the parties. The

respondents have also produced the extracts of the minutes of DPC

held on 29th October, 1991; 24th November, 1992 and 17th November,

1993. Perusal of the minutes of 29th October, 1991 reveals that the

DPC had taken into consideration the Director General‟s `displeasure‟

dated 16th April, 1991. This is not disputed that the said DPC, in

accordance with rules, had to consider the ACRs of the petitioner for

five years from 1986-87 upto 1990-91, i.e. the record of the petitioner

upto 31st March, 1991. If that be so, then, how, the DG‟s displeasure

dated 16th April, 1991 could be considered by the DPC held on 29th

October, 1991 has not been explained. Learned counsel for the

respondents is unable to show any rule, regulation, or office

memorandum stipulating that DPC would be entitled to consider any

displeasure or warning given before the meeting of DPC.

43. If the `displeasure‟ dated 16th April, 1991 could not be

considered by the DPC held on 29th October, 1991 then, the

recommendation of the said DPC not recommending the petitioner for

promotion to the post of Dy. Commandant cannot be sustained. In

any case, as per the Instruction dated 28th June, 1989 regarding the

effect of the award of displeasure, it cannot be disputed that it is not a

punishment, as displeasure is awarded where there is evidence of

delinquency or irregularity, however, it is not considered worthwhile to

institute formal disciplinary proceedings. The Instruction dated 28th

June, 1989 also stipulates that if the displeasure falls within the

period of consideration of CR by the DPC, the facts and circumstances

of the case leading to the award of `displeasure‟ should be placed

before that DPC. Admittedly, the displeasure did not fall within the

period of consideration of the CR for the DPC held on 29th October,

1991 which had to consider the ACRs upto the period 31st March,

1991. The above noted Instruction also contemplates that if the

displeasure during the period of consideration of CR is either included

in or excluded from the DPC, then it should have recorded the reason

as to why such officer had been so included or excluded. In any case,

the DPC held on 29th October, 1991 could not have taken into

consideration the `displeasure‟ dated 16th April, 1991 which was given

after 31st March, 1991, and also as the DPC had not recorded the

reason explaining as to why the petitioner had been exclude on

account of the said `displeasure‟. Under instruction dated 28th June,

1989, as the displeasure was held not to be punishment and it could

be acted only if it was on account of dishonesty, pecuniary gain, abuse

of power or authority or moral turpitude for a period of two years only.

Admittedly, the alleged `displeasure‟ was on account of not informing

the authorities about the gift of the car by the father of the petitioner

to the minor son of the petitioner and thereafter, for sale of the car by

the son of the petitioner and remitting the entire sale consideration to

the father of the petitioner. Rather OM dated 11th September, 1978,

relevant portion of which is quoted hereinbefore, contemplates that if

the transaction was by the family member of the Government servant

out of his own funds distinct from the funds of Government servant

then the provision of Sub Rule (2) and (3) of the Rule 18 of CCS Rules

will not be attracted. Another relevant factor is that the plea of the

respondents is that the Car no. DEA 986, which was purchased by

Sh. Rampat in an auction, was not transferred to the father of the

petitioner. If the car was not transferred to the father of the petitioner,

then the father of the petitioner could not gift it to the son of the

petitioner and son of the petitioner also could not sell it so as to

attract violation of CCS Rules contemplating information of the

authorities of the gift being received by the son of the petitioner and

later on, son of the petitioner selling the said vehicle. In the

circumstances, the `displeasure‟ could not be granted to the

petitioner, it could not be even taken into consideration for the

purposes of recommendation for promotion even for two years and, in

any case, the DPC held on 29th October, 1991 could not have taken it

into consideration.

44. Consequently, the recommendation of the DPC held on 29th

October, 1991 taking into consideration the `displeasure‟ of the

Director General dated 16th April, 1991 cannot be sustained as the

recommendation for excluding the petitioner would be contrary to the

instruction and rules and beyond the period for which the DPC could

take into consideration the ACRs of the petitioner.

45. Perusal of the minutes of the DPC held on 29th October, 1991

pertaining to the petitioner also reveals that it had taken into

consideration a warning to the effect that the petitioner was indiscreet

in not ensuring that unwanted elements like smugglers are not to be

invited in the party arranged by him on the eve of his departure from

the BOP Balat Area and consequently, the IG AMM & N had warned

the officer to be careful in future. The said warning was not

communicated to the petitioner. The DPC of 29th October, 1991 also

considered the uncommunicated and adverse remarks to the effect

„needs to be kept under watch‟ in the ACR for the period 14th April to

28th September, 1990. If the alleged warnings and adverse remarks

were not communicated to the petitioner, they ought not to have been

placed before the DPC and could not be taken into consideration by

the said DPC.

46. OM No.51/3/69-Ests. (A) 27th September, 1969 and D.P. &

A.R.,OM No.51/5/72-Ests, dated 20th May, 1972, clarifies regarding

the warning, admonitions, reprimand, etc. which are administered in

the course of normal day to day work by the superior officers. The said

OM contemplates that "representations against warnings" or

"communication of the displeasure of the Govt." or "reprimand" which

are recorded in the confidential report of the Govt. servant should be

dealt with in accordance with the procedure laid down for dealing with

the representations against adverse entries in confidential report,

unless an opportunity had already been given to the officer concerned

to make a representation in the matter relating to the relevant

incident or faults and such representation had been duly considered

and a decision taken before the "warning" or "reprimand" was

administered or the „displeasure of the Govt." communicated to him.

47. The said adverse remark "needs to be kept under watch"

appears to be without any basis on perusal of the ACRs of the

petitioner which have been produced by the respondents. In any case,

the said adverse remark, even if it is considered to be an adverse

remark, was not communicated to the petitioner. The warning was

also not communicated to the petitioner contrary to the instructions

detailed in the above noted OMs and therefore, ought not to have been

placed before the DPC, nor the DPC should have considered the same.

48. OM No.21011/1/81-Estt.(A), dated 5th June, 1981 also

contemplates the procedure for placing the warning in the dossier of

an officer and its consideration by the DPC, which is as under:-

"19. Mention of warnings/reprimands in CRs- Questions have been raised from time to time regarding the stage at which a mention about warnings, admonitions, reprimands, etc., administered in the course of normal day to day work by superior officers should be

mentioned in the confidential report of the official to whom the warning, reprimand, etc, has been administered. As there seems to be some doubt in this regard the position is clarified in the following paragraph:-

2. there may be occasions when a superior officer may find it necessary to criticize adversely the work of an officer working under him or he may call for an explanation for some act of omission or commission and taking all circumstances into consideration, it may be felt that while the matter of serious enough to justify the imposition of the some formal punishment of censure, it calls for some formal action such as the communication of a written warning/displeasure/reprimand. Where such a warning/displeasure/reprimand is issued, it should be placed in the personal file of the officer concerned. At the end of the year, the reporting authority, while writing the confidential report of the officer, may decided not to make a reference in the confidential report to the warning/displeasure/reprimand, if, in the opinion of that authority, the performance of the officer reported on after the issue of the warning or displeasure or reprimand, as the case may be, has improved and has been found satisfactory. If, however, the reporting authority comes to the conclusion that despite such warning/displeasure/reprimand, the officer has not improved, as the case may, in the relevant column in Part III of the form of confidential report relating to assessment by the reporting officer and, in that case, a copy of the warning/displeasure/reprimand referred to in the confidential report should be placed in the CR Dossier as an annexure to the confidential report for the relevant period. The adverse remark should also be conveyed to the officer and his representation, if any, against the same disposed of, in accordance with the procedure laid down in the instruction issued in this regard."

49. The alleged warning regarding the petitioner being indiscreet in

not ensuring that unwanted elements like smugglers are not invited in

the party arranged by him on the eve of his departure was not

communicated to the petitioner. Therefore, the petitioner could not

make any representation against the same. This warning which was

incorporated and not communicated has to be seen in view of the

specific complaint made by the petitioner against G Company of 22

Bn. The petitioner had specifically stated in his complaint dated 9th

May, 1990 that in his absence, Inspector Kundan Singh indulged in

malpractices resulting in certain Bangladeshi nationals advertently

crossing the national border with boats and in Belat river and entered

in the Indian territory. Some of them being apprehended during the

interrogation had revealed that they had got the approval from BSF

Inspector (G). The petitioner in his complaint categorically stated that

the inquiry conducted by Sh.M.L. Purohit concluded that Inspector (G)

was Kundan Singh involved with smugglers, still no action was

initiated by AD (G). The official of the said "G" Company, therefore,

became against the petitioner and made false complaints against the

petitioner which, however, were found to be incorrect and

consequently, no action was taken against the petitioner. The

petitioner also produced a photostat copy of the slip signed by the

Inspector for demanding fish from AD (G) yet surprisingly no action

was taken rather the respondents without producing the report of the

inquiry and any other relevant material has simply denied in the

counter affidavit filed in the petition that whatsoever was stated by the

petitioner is not correct. The petitioner has produced the copies of the

complaint made by him, the contents of which are revealing and

which have been simply brush aside by the respondents in their

counter affidavit. In the circumstances, it will be reasonable to infer

that the uncommunicated warnings and the adverse notes were

perhaps intentionally incorporated in the summary produced before

the DPC held on 29th October, 1991 in order to deprive the petitioner

his recommendation for promotion by the said DPC.

50. In these facts and circumstances, it is inevitable to infer that

the DPC held on 29th October, 1991 ought not to have been taken into

account the displeasure of the DG and uncommunicated adverse

remarks of, "needs to be kept under watch" and the alleged warnings

dated 12th February, 1991 into consideration while assessing the

petitioner for recommendations to the post of Dy.Commandant. In the

circumstances, the petitioner shall be entitled for a review DPC which

will take into consideration his five ACRs for the period 1986 -87 to

1990-91 and in case the review DPC finds the petitioner to be fit for

recommendation, then the petitioner shall be entitled for promotion as

Dy.Commandant from the date his immediate junior was appointed as

Dy.Commandant in February, 1992 or such relevant dates.

51. The respondents did not deny categorically the plea of the

petitioner that though the adverse remarks ending the period 31st

March, 1992 were communicated to the petitioner by letter dated 13th

November, 1992, however, the said letter was received by the

petitioner on 4th December, 1992 after the DPC was held on 24th

November, 1992. No reason has been disclosed as to why the remarks

could not be communicated to the petitioner prior to holding of the

DPC and thus depriving the petitioner his right to make a

representation and to get it considered by the respondents.

52. The respondents have not denied a categorical assertion by the

petitioner that the letter dated 13th November, 1992 was delivered to

him on 4th December, 1992. That averment of the petitioner has not

been denied and nothing has been produced by the respondents to

show that the letter dated 13th November, 1992 was delivered by the

petitioner before the DPC held on 24th November, 1992. In any case,

even if for some reason it can be inferred that the letter was, in fact,

delivered to the petitioner prior to holding of DPC on 24th November,

1992, it is apparent that he was not given sufficient time to make a

representation against the adverse remarks and the representation of

the petitioner which he had made had not been considered before the

DPC held on 24th November, 1992.

53. It is apparent that the respondents have conveniently skirted

the relevant issues. The petitioner has categorically contended in the

writ petition that adverse remarks which were not communicated to

him and against which he was not given enough time to make a

representation and before holding the DPC his representation was not

decided and such adverse remarks could not considered by the DPC

held on 24th November, 1992. The inevitable inference, in the facts

and circumstances, is that on behalf of the respondents an incorrect

affidavit has been filed that the adverse remarks were communicated

to the petitioner prior to holding of DPC on 24th November, 1992.

54. The respondents, however, admitted that the petitioner had

made a representation against the adverse remarks given in 1992 by

his letter dated 23rd December, 1992 which was allegedly considered

in detail. His representation was considered and rejected and rejection

was communicated to the petitioner by letter dated 19th April, 1993.

The respondents admitted that a second representation was made by

the petitioner against the adverse remarks to the Director General

which was allowed on alleged humanitarian grounds. The adverse

remark for "for misuse of Government transport and giving false

certificate" was expunged and the petitioner was informed accordingly

by letter dated 27th December, 1993. This was again done after 17th

November, 1993 when the third DPC which had also not

recommended the case of the petitioner had already taken place.

55. It is apparent that the first representation against the adverse

remarks made in 1992 was rejected and the adverse remarks were

communicated to the petitioner after the DPC was held on 24th

November, 1992. The representation was rejected and the second

representation was considered and the adverse remarks were

expunged, however, these remarks were expunged after the DPC was

again held on 17th November, 1993 and were communicated to the

petitioner by letter dated 27th December, 1993.

56. The respondents have contended that the second representation

could not be considered under the rules, however, the learned counsel

for the respondents has failed to show any rule or regulations under

which the second representation could not be considered. The

respondents though has considered the second representation and

expunged the remarks on the plea that it was done on the

humanitarian grounds. However, perusal of the communication sent

by the concerned police officials it is apparent that such remarks were

contrary to the records of the police authorities, and in the

circumstances, the respondents had no option but to expunge the

remarks.

57. The ground has been taken that the adverse remarks were

expunged on the humanitarian ground. It appears to be a calculated

and designed plan first not to communicate the adverse remarks

before holding of the DPCs and thereafter, rejection of the

representation and deciding the second representation in the teeth of

the record of the police authorities only after another DPC was held on

17th November, 1993. The pleas of the respondents give an impression

that the adverse remarks were communicated in time as

representations were considered, rejected and subsequently, allowed

on humanitarian grounds, however, in the totality of the facts and

circumstances and considering the records which were contrary to the

adverse remarks given, the inevitable inference is that the adverse

remarks were given to spoil the promotion prospects of the petitioner.

The plea that the adverse remarks were expunged on humanitarian

grounds is also misleading. In any case, once the adverse remark was

expunged it could not be taken into consideration but from the record

it is apparent that both the DPCs held on 24th November, 1992 and

17th November, 1993 had taken them into consideration depriving the

petitioner recommendation for promotion to the post of Deputy

Commandant.

58. The adverse remark "needs to be kept under observations"

which was retained even after expunging of the adverse remarks also

does not have any basis. Learned counsel for the respondents is

unable to explain that if the adverse remarks i.e. warning for misuse

of Govt. transport and giving false certificate was expunged as it was

not found to be correct, based on the communication received from

concerned police authorities then, how, could the adverse remarks

"needs to be kept under observation" survive.

59. Normally, the courts, in exercise of its jurisdiction of judicial

review under Article 226 of the Constitution of India, does not have to

re-appreciate the facts, however, in the present facts and

circumstances, the above noted reasons are so compelling that this

Court has no option but to quash even the `displeasure‟ and warnings

given to the petitioner during the relevant period of 1991 which were

taken into consideration by the DPC held on 29th October, 1991, 24th

November, 1992 and 17th November, 1993.

60. In the totality of the facts and circumstances, the displeasure of

the Director General given on 16th April, 1991 and the warnings and

adverse remarks in the ACRs are quashed and expunged. The

respondents are directed to hold the review DPC for the petitioner to

consider him for promotion from the post of Assistant Commandant to

the post of Dy. Commandant, and in case the review DPC finds the

petitioner to be fit for promotion then to promote the petitioner from

the date the immediate junior of the petitioner was promoted to the

post of Dy. Commandant. The petitioner shall also be entitled for all

the consequential promotional pay allowances and other benefits. The

writ petition is allowed in terms hereof. The petitioner shall also be

entitled for a cost of Rs.30,000/- against the respondents. Cost be

paid by the respondents within a period of one month. The Review

DPC should also be held by the respondents within three months, and

in case the review DPC recommends the petitioner for promotion, the

petitioner be given promotion to the post of Dy. Commandant from the

date his immediate juniors were promoted within one month

thereafter. With these directions the writ petition is allowed with costs.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

MAY 9, 2012 `vk‟