Nagandra Singh vs Director General Itbp & Ors.
2014 Latest Caselaw 1595 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of Decision: March 25, 2014

+                         W.P.(C) 94/1997
       NAGANDRA SINGH                                     ..... Petitioner
              Represented by:          Mr.Shishpal Laler, Advocate

                                       versus

    DIRECTOR GENERAL ITBP & ORS.                ..... Respondents
             Represented by: Mr.Ankur Chhibber, Advocate for
                             R-1 and R-2
                             Mr.Suresh Kumar Sharma, Advocate
                             for R-3, R-4, R-5, R-6, R-7 & R-9
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS.JUSTICE DEEPA SHARMA

PRADEEP NANDRAJOG, J. (Oral)

1. Having heard learned counsel for the parties it is apparent that in the pleadings the real issue has escaped the attention of either parties and thus we would be deciding the writ petition with reference to the actual record; because our job is to do justice.

2. That petitioner joined the ITBP in the year 1980 as a direct recruit, being appointed to the post of Asstt.Company Commander, vide order dated June 12, 1980. Seniority assigned to the petitioner against the post of Asst.Company Commander was at serial No.7.

3. Vide order dated February 20, 1984, along with 19 other officers of his batch the petitioner was promoted to the rank of Company Commander. The seniority in the previous rank was retained by the 19 officers who were promoted.

4. On February 25, 1988, a DPC was convened to fill up 44 vacancies of Asst.Commandant/GD (now re-designated as Dy.Commandant/GD) in ITBP in the pay scale of `3000-100-3500-125-4500/-. Record would reveal that 45 officers were considered to have fulfilled the eligibility conditions as laid down in the MHA letter dated October 29, 1987. No benchmark was prescribed and the vacancies were to be filled up on merit-cum-seniority basis. The DPC approved the names of 37 officers.

5. The parameters considered by the DPC on basis whereof merit was determined have been penned by the DPC. We note the same. They read as under:-

"i) While giving due emphasis to the last five year‟s Annual Confidential Reports, the DPC perused the Confidential Reports for the entire service rendered by the individuals in their respective ranks for arriving at a decision with regard to their overall grading.

ii) The DPC took note of the fact whether the major part of service rendered in their respective rank(s) is in a field Unit/a Training Institution of Sector Hqrs/Force Hqrs viz an extra hard field posting, a hard posting or a soft assignment and if the candidate has had the advantage of being reported upon by the same officer over a number of years in a row.

iii) The grading of „Outstanding‟ or „Very Good‟ has been awarded in the case of officers who have earned such gradings consistently under varying and trying conditions as follow:

Outstanding : At least 4 times including the latest.

Very Good : At least 3 times.

iv) Due weightage has been given to the training courses undergone by the offices in the overall gradings."

6. The record produced before us today would evidence that applying the aforesaid parameters at the first instance the DPC graded the officers as 'Good' or 'Very Good' and thereafter drew up the select panel ranking en- block those who were assessed 'Very Good' above those who were assessed 'Good' and inter-se 'Very Good' and 'Good' the ranking was as per seniority in the feeder post.

7. The select panel prepared for promotion was challenged by officers of the petitioner's batch, including the petitioner, by and under C.W.No.885/1989 titled R.S.Pathania & Ors. vs Union of India. They pleaded that notwithstanding they also being eligible to be considered for promotion their names were wrongly not considered by the DPC. Vide order dated July 26, 1994 a learned Single Judge of this Court allowed the writ petition directing as under:

"Since the petitioners had rendered qualifying period of gazette service in the force, they ought to have been considered for promotion to the post of Assistant Commandant. As this was not done, Respondents 1 and 2 are directed to consider them for promotion on their record as on the date when they ought to have been considered and if selected their position will be adjusted in the seniority list."

8. Intra court appeal filed was dismissed.

9. In compliance with the directions issued by this Court, a review DPC was convened on September 22, 1995 to consider the names of eligible candidates by including, as eligible persons the names of R.S.Pathania and others. Needless to state the review DPC had to consider the eligible candidates as on February 25, 1988.

10. By that time an office memorandum dated March 10, 1989 had been promulgated by DoPT detailing the procedure to be observed for drawing up select panel. Para 2.3.1 whereof reads as under:-

" 2.3.1 The list of candidates considered by the DPC 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 preparation of the panel:

(i) Having regard to the levels...

(ii) In respect of all posts which are in the level of Rs.3700-5000 and above, the benchmark grade should be "Very Good". However, officers who are graded as outstanding would rank en block 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.

(iii) Appointments from the panel shall be made in the order of names appearing in the panel for promotion.

(iv) Where sufficient number of officers with the required benchmark grade are not available within the zone of consideration, officers with the required benchmark will be placed on the panel and for the unfilled vacancies, the appointing authority should hold a fresh DPC by considering the required number of officers beyond the original zone of consideration."

11. Needless to highlight that the OM dated March 10, 1989, stated by way of a policy, what was decided by the DPC which met on February 25, 1988 as the basis to determine the merit. That is, those who were graded 'Very Good' to rank en-block above those who were graded 'Good', and in this way seniority of those who were graded 'Good' being lowered in the promotional post vis-a-vis those who were graded 'Very Good'.

12. Record would reveal that as per instructions, the review DPC was to restrict its scrutiny to the ACRs for the period relevant to the first DPC. Accordingly, the review DPC considered the cases of 17 officers (including

the petitioner). In respect of these officers the review DPC considered ACRs for the years 1982-83 to 1986-87; grading the officers as 'Outstanding', 'Very Good' or 'Good'. The petitioner had no adverse entries in the ACRs for the said period. He was graded 'Good'. The review DPC was not held to re-determine the inter-se seniority but to consider the officers for promotion to the rank of Dy.Commandant in view of the decision of this Court.

13. Relevant would it be to highlight the fact that the minutes of the original DPC held on February 25, 1988 reveal that the officers who were graded as 'Very Good' were ranked en-bloc senior to those who were graded as 'Good'. Meaning thereby, from whatever angle one may view the matter, the DPC was to consider officers with grading 'Very Good' as senior to those with grading 'Good'.

14. The record would evidence that at the review DPC, the petitioner was graded 'Good'. The record would reveal that after ranking all officers who were graded 'Very Good' en-block above to those who were graded 'Good', but inter-se them the merit position being with reference to the seniority in the feeder post, 33 officers were placed at serial No.1 to 33 being 'Very Good'. Officers at serial No.34 to 51, being graded 'Good' were thereafter placed in the merit list but with reference to their seniority in the feeder cadre.

15. The only confusion which needs to be cleared is a reference in the pleadings that the review DPC which met in the year 1995, required to transpose itself back as of February 25, 1988, applied the criteria as per the OM dated March 10, 1989. The confusion arises on account of the fact that the criteria adopted by the DPC which met on February 25, 1988, as extracted by us hereinabove, is verbatim same as was subsequently notified

by DoPT in March 10, 1989; and hence the confusion.

16. We clarify, that the record evidences that the DPC which met in the year 1995 went by the criteria fixed by the DPC which met on February 25, 1988. It is just a matter of chance that the same criteria was notified as per OM dated March 10, 1989.

17. The criteria adopted by the DPC which met on February 25, 1988 was never questioned by the writ petitioner and his friends when they filed W.P.(C) No.885/1989. They only litigated on the limited disputed field, being eligibility to be considered for promotion in the context of service rendered. Thus, the review DPC which was convened on September 22, 1995 was bound to apply the same criteria which was adopted by the DPC which met on February 25, 1988.

18. The writ petition is accordingly dismissed but without any orders as to costs.

(PRADEEP NANDRAJOG) JUDGE

(DEEPA SHARMA) JUDGE MARCH 25, 2014 mamta