Delhi High Court
Ct/Gd Satish Chander Rai vs Union Of India And Ors. on 5 February, 2013
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 05.02.2013
+ W.P.(C) 6412/2012
CT/GD SATISH CHANDER RAI ..... Petitioner
Through : Sh. N.L. Bareja, Advocate.
versus
UNION OF INDIA AND ORS ..... Respondents
Through : Sh. Amrit Pal Singh, CGSC with Sh.
Vijaya Kumar Rout, Pairvi Officer, CRPF.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
%
C.M. Appl. 578/2013 (for condonation of delay in filing the counter
affidavit)
For the reasons mentioned in the application, C.M. No. 578/2013 is
allowed.
W.P.(C) 6412/2012
1. Issue rule. Sh. Amrit Pal Singh, CGSC waives notice and states that
the petition can be heard finally since counter affidavit is on the record.
2. The petitioner, in this proceeding, seeks quashing of letter dated
19.06.2012 by which the respondents (hereafter referred to as "the CRPF")
rejected his representation in regard to his candidature for the post of Sub-
Inspector (General Duty) [hereafter referred to as "SI (GD)"].
3. Briefly the facts are that the said post - SI (GD), under the rules of
W.P.(C)6412/2012, C.M. APPL.578/2013 Page 1
recruitment governing the Central Reserve Police Force (CRPF), through
Notification dated 30.04.2001, is to be filled from amongst three sources -
33% is to be filled by direct recruitment; 50% by promotion from the feeder
posts and; 17% from Limited Departmental Competitive Examination
(hereafter referred to as "LDCE") - failing which by promotion from feeder
posts. The petitioner, who was enrolled in the CRPF as Constable (General
Duty) on 11.04.2002, upon being apprised of the advertisement for filling
324 vacancies for the post of SI (GD), applied as a "General" category
candidate, in respect of the 17% LDCE quota, for which examinations were
held. The CRPF had notified 324 vacancies, of which 251 were
"unreserved" and 73 were "reserved" - 49 earmarked for Scheduled Castes
(SC) and 24 for Scheduled Tribes (ST).
4. The relevant Standing Orders, which were duly notified in the
examination for LDCE in question, inter alia, states as follows:
5 Procedure Written Examination and physical test etc. will be
for conducted in five stages as per the standard laid down
Examination by the Staff Selection Commission as under:-
Stage-I Checking of service records
No marks allotted for Stage-I. Applicant should have
minimum Good ACRs of last four years and should have
unblemished service record till the issue of offer of
appointment. The Unit/GC/office/institutions concerned
will certify eligibility of each candidate applied for SI-
LDCE and forward nomination along with this
certificate to the concerned Sector conducting SI-LDCE.
Stage-II Written Examination (OMR based)
There should be one question paper of objective type
multiple choice questions consisting of 200 marks with 3
½ Hrs duration to assess candidates in the following
subjects on OMR system:-
1 General intelligence and 50 marks
W.P.(C)6412/2012, C.M. APPL.578/2013 Page 2
reasoning
2 General awareness and 50 marks
professional knowledge
3 Numerical ability 50 marks
4 Comprehension and 50 marks
communication skill
Total 200 marks
The cut off marks for qualifying/selection, a candidate
has to secure at least minimum 45% qualifying marks in
each part and 50% in aggregate. Relaxation of 5%
marks will be given to the candidates belonging to SC/ST
categories.
Stage-III Physical measurement - No change
5. The petitioner's grievance is that even though he was allowed to
compete in the LDCE, and his name notified at Serial No.2 (he was
apparently successful in the written test), his candidature was not, however,
processed. He, therefore, represented to the respondents/CRPF and also
caused a legal notice to be served, on 28.02.2012. The CRPF, by its letter
dated 19.06.2012, impugned in the present proceeding, admitted that he had
qualified in the written test but he was eliminated from the stage of checking
of records since he had an "Average" ACR grading for the year 2009. The
said letter pertinently states as follows:
"XXXXXX XXXXXX XXXXXX
REGISTERED POST WITH AD
DIRECTORATE GENERAL, CRPF, CGO COMPLEX,
LODHI ROAD, NEW DELHI-3
(Ministry of Home Affairs)
No.J-II-1/2012-Rectt(SI/LDCE-11)L/N-8
Dated, the 19 June 2012
W.P.(C)6412/2012, C.M. APPL.578/2013 Page 3
To,
Col. N.L. Bareja (Retd),
Advocate,
Chamber No. 125,
Patiala House Courts,
New Delhi-110001
Subject: RE-CONSIDERATION OF THE CASE OF
025210987 CT/GD SATEESH CHANDER RAI OF 68 BN
CRPF FOR APPOINTMENT TO THE POST OF SI/GD
THROUGH LDCE FOR THE YEAR 2011
Please refer to Legal Notice dated 28/02/2012 on the
subject cited above.
02 In this connection it is to inform that No. 025210987
CT/GD Sateesh Chandra Rai of 68 Bn. CRPF, appeared in
SI/GD LDCE 2011. As per existing instruction a candidate
applying for the post of SI/GD through LDCE should have
minimum "Good" ACR grading for last four years. Though the
petitioner qualified in Written/PST/PET but eliminated from the
stage of checking of records/testimonial having average ACR
grading for the year 2009.
03 In view of the above, request of CT/GD Sateesh Chander
of 68 Bn CRPF for re-consideration of his appointment to the
post of SI/GD through LDCE 2011 has been considered by the
competent authority but rejected being devoid of merit.
04 Please inform your client accordingly.
Sd/-
(M.K. Sinha)
Inspector General"
6. Learned counsel for the petitioner urged that the impugned letter is
W.P.(C)6412/2012, C.M. APPL.578/2013 Page 4
unsustainable because, according to the petitioner's information, no such
remark of "Average" was ever communicated to the petitioner. It was
submitted that the relevant ACRs for all the previous years right upto 2009
were consistently "Good" or above, and in the circumstances, the
respondents were duty-bound, in line with the judgment of the Supreme
Court in Dev Dutt v. UOI 2008 (8) SCC 725, to intimate the adverse
remarks. By taking into consideration such uncommunicated adverse
remarks, submitted learned counsel for the petitioner, the respondents have
acted illegally. It was also argued in addition that the petitioner's grading in
his ACR for 2009 cannot be characterized as "Average". Elaborating on this,
learned counsel for the petitioner submitted that his ACR grading had never
been finalized since the Reviewing Authority had not considered the grading
of "Average", awarded for part of the year in question. Secondly, learned
counsel submitted that in fact, the ACR for 2009 was in two parts - the first
part was for the period 01.01.2009 to 07.10.2009 (hereafter referred to as the
"earlier part") - for this period, the reporting authority had recorded
"Average". For the later part, i.e. 08.10.2009 to 31.12.2009 (hereafter
referred to as "the later part"), the Reporting Officer had recorded "Good".
The later part was reviewed and thus that ACR stood confirmed and
complete to that extent. However, the ACR for earlier part - 01.01.2009 to
07.10.2009 - was admittedly neither reviewed, nor was communicated to the
petitioner. Therefore, this did not even constitute an ACR in the eye of the
law, which could have been validly taken into consideration by the
respondents for the year 2009. Having regard to these circumstances,
stressed learned counsel for the petitioner, the respondents had to consider
the complete ACR for a previous year. If they had done so, his candidature
W.P.(C)6412/2012, C.M. APPL.578/2013 Page 5
could not have been rejected.
7. Learned counsel for the respondents, pursuant to the previous orders,
have produced the relevant ACR records. They place reliance upon the
Standing Order No. 01/2010, which deals with the subject of "Limited
Departmental Competitive Examination (LDCE) for Sub-Inspectors (GD) in
CRPF". Learned counsel for the respondents relied upon the description of
the various Stages for recruitment process, which is the prelude to the
appointment under 17% LDCE quota, and emphasized that in the first stage,
as far as the threshold of eligibility is concerned, the applicant has to possess
minimum of 4 "Good" ACRs, for the last four preceding years and should
have an "unblemished service record". In this regard, the petitioner,
submitted learned counsel for the respondents, did not qualify the said
threshold as he did not possess 4 "Good" ACRs for the last four preceding
years. The respondents interestingly state in the counter-affidavit as follows:
"7. I say that with regard to the contents of para no. 6 of the
petition, it is submitted that the petitioner has qualified for the
written examination of subject examination. However, as
already explained in para no. 06, mere passing of written
examination is not sufficient to make him eligible for selection,
as the other process of the subject examination is also required
to be met by applicant. Hence the submission of the petitioner
is not tenable on record.
8. I say that with regard to the contents of para no. 8 of the
petition it is submitted that paras 6 and 7 be read as part of this
para and the same is not being repeated herein for the sake of
brevity.
9-10. I say that with regard to the contents of paras no. 9 and
10 of the petition, it is submitted that the petitioner was
awarded weak/adverse Average ACR grading for the period
W.P.(C)6412/2012, C.M. APPL.578/2013 Page 6
from 01.01.2009 to 07.10.2009 by the reporting officer which
was neither reviewed by reviewing officer nor the remarks
communicated to the petitioner on record. However, the
selection board of the subject examination took the above
remarks into account as the subject examination taken above
remarks into account as the subject examination was held for a
promotional post amongst a considerable no. of candidates and
candidates with a clear and unblemished record of service
would be short listed for final selection. As such the action of
the selection board in rejection of candidature of the petitioner
from the subject examination is in the right spirit of standing
instructions issued on the subject vide standing order
No.01/2010. Hence the action taken by the selection board is in
accordance with relevant guidelines existing on the subject
only."
8. The respondents further stated as follows:
"12. I say that with regards to the contents of para no. 12 of
the petition it is submitted that as already stated in the
proceeding paras the ACR remark of the petitioner for the
period from 01.01.09 to 7.10.09 was neither reviewed by the
reviewing officer nor the adverse remark graded in subject
report as „AVERAGE‟ is communicated to petitioner. However,
the selection board has taken the same into account during
selection process i.e. checking of service records as envisaged
vide para 5 of the standing order and rightly rejected his
candidature."
9. The ACR records produced today bear-out the petitioner's submission
with regard to the state of ACRs for the year 2009. The said records reveal
that for that year, i.e. for the period 01.01.2009 to 07.10.2009, the Reporting
Officer recorded "Average"; however, this remark has not been reviewed by
the superior/reviewing authority. For the later part, i.e. from 08.10.2009 to
31.12.2009, the remark recorded is "Good". This has been approved by the
W.P.(C)6412/2012, C.M. APPL.578/2013 Page 7
reviewing authority. It is thus apparent that for the year 2009, the entire
ACR is incomplete. This is because for the earlier period, i.e. from
01.01.2009 to 07.10.2009, the reviewing authority neither had the
opportunity of considering the file, nor indeed did it confirm or disagree
with the Reporting Officer's remarks. For the later/shorter period, the ACR
finalized is "Good". Despite repeated queries, learned counsel for the
respondents could not throw any light as to how in such circumstances, the
final ACR is to be reconciled or resolved, and arrived at. The respondents'
counsel's reaction was that since the earlier part was "Average", the entire
period had to be treated as "Average" as it was for a longer duration than the
latter part. This Court, however, does not agree with such an approach.
Besides, in circumstances such as the ones in the present case, where, for the
earlier part, i.e. from 01.01.2009 to 07.10.2009, the ACR is deemed
incomplete, a blanket stereotypical approach of treating the reporting
officer's assessment for the earlier portion of the year, as indicative of the
whole year's performance, merely on the basis of duration, can lead to
inequitable results. For instance, if for a shorter duration, the personnel is
deployed on a "hard" posting, or sent to work in an operative command and
there he earns a, "Good", or "Better than Good", ACR, that, prima facie,
might carry greater weight than a lesser or lower ACR remark for another
period which may numerically be for a greater number of months. In any
event, this Court does not wish to speculate or pronounce upon that issue, in
view of the opinion taken on the facts of this case. The admitted facts are
that for the earlier part, the ACR is incomplete, since it was not even
considered by the reviewing authority.
10. While on the subject, this petition has highlighted what appears to be
W.P.(C)6412/2012, C.M. APPL.578/2013 Page 8
an infirmity in the manner of considering applicants under the recruitment
process, and the various stages envisioned by the competent authority, i.e.,
consideration of ACRs for a particular year. Stage-I, which has been
repeatedly emphasized during the hearing, and which ultimately proved to
be the petitioner's bane, requires 4 years' appraisal and pre-supposes a
composite ACR for each of the four years, complete in all respects. This in
turn visualizes that if for any one year, the ACR is partly complete and
partly incomplete, the authorities have to provide either for reconciliation or
resolution of such ACR so that a composite grading is recorded, or provide
appropriate Standing Orders in that regard. Neither of this appears to have
happened in the present case.
11. As far as the argument of the petitioner that, adverse remarks were not
communicated, is concerned, this Court is of the opinion that the said stage
has not arisen as yet because, as concluded in the preceding portion of the
judgment, the ACR for the year 2009 is incomplete since the earlier part has
not been considered by the reviewing authority.
12. In the light of the above discussion, this Court hereby quashes the
impugned letter and issues following directions:
(1) The petitioner's ACR for the year 2009 (for the period 01.01.2009 to
07.10.2009) shall be appropriately finalized by the reviewing authority
within four weeks from today;
(2) If the ACR for the said period is upgraded to "Good", by the
reviewing authority, the petitioner's case for promotion to the post of
SI(GD) shall be processed within four weeks thereafter.
(3) If, after the aforesaid exercise by the Reviewing Officer the ultimate
ACR grading falls below the bench mark of "Good", the remark shall be
W.P.(C)6412/2012, C.M. APPL.578/2013 Page 9
duly communicated directly to the petitioner within two weeks, in order to
furnish the petitioner with an adequate opportunity to represent against the
grading awarded. The grading finalised in line with the orders disposing of
his representation, shall then be duly considered while assessing his
eligibility for recruitment. It is also open to the petitioner to seek such
remedies as are available to him in law thereafter if he is so advised in the
event of any adverse grading.
The respondents are hereby directed to keep one vacancy unfilled in
the post of SI(GD) for the next four months, to await final consideration of
the petitioner's candidature, pursuant to these directions.
The writ petition is allowed in the above terms. No costs.
Order dasti to both parties.
S. RAVINDRA BHAT
(JUDGE)
SUDERSHAN KUMAR MISRA
(JUDGE)
FEBRUARY 05, 2013
'ajk'
W.P.(C)6412/2012, C.M. APPL.578/2013 Page 10
