Delhi High Court
Dig K.P.S. Raghuvanshi vs Union Of India & Ors. on 4 September, 2014
Author: Reva Khetrapal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10726/2009
DIG K.P.S. RAGHUVANSHI ..... Petitioner
Through: Mr. B.P. Singh and Mr.Parma Nand,
Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms. Maneesha Dhir, Advocate
% Date of Decision : September 04, 2014
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT
: REVA KHETRAPAL, J.
1. The Petitioner, a serving Deputy Inspector General (DIG) in
the Coast Guard, has challenged the recommendations of the
Departmental Promotional Committee (DPC) for promotion to the
rank of Inspector General (IG) held on 23.07.2009 as illegal, arbitrary
and conducted on the basis of amended selection policy just a month
prior to the holding of Selection Board. The Petitioner also seeks to
challenge the actions of the Respondent No.2 (Director General) in
endorsing an Annual Confidential Report of the Petitioner covering
the period from 1st February, 2008 to 31st January, 2009 despite not
having observed the performance of the Petitioner for the mandatory
period of 90 days as required under the extant policy, as contained in
Coast Guard Order No.4/2005 and other policy instructions regarding
writing of confidential reports issued from time to time. The
following prayers are made in the writ petition:
"A) To issue an appropriate writ order or direction in
the nature of certiorari to Respondents and call for
records pertaining to Confidential Report on the
Petitioner covering the period from 01 Feb 2008 to 31
Jan 2009;
B) To issue an appropriate writ order or direction in
the nature of certiorari to Respondents and quash the
report especially endorsement made by RO being ex
facie contrary to the policy instructions of
Respondents, as contained inter alia in Coast Guard
Order No.4 of 2005 and various other policy
instructions regarding writing of confidential reports
issued from time to time.
C) To issue an appropriate writ order or direction in
the nature of certiorari to Respondents and summon
the proceedings of Promotion Board No.1 held on
23.7.09;
D) To issue an appropriate writ order or direction in
the nature of certiorari to Respondents and quash the
said Board proceedings being arbitrary and illegal;
E) To issue an appropriate writ order or direction in
the nature of certiorari to Respondents and quash para
7 of Coast Guard Order No.2 of 2009;
F) To issue an appropriate writ order or direction in
the nature of mandamus directing Respondents to
consider the Petitioner for promotion to the rank of
Inspector General in accordance with law.
G) Pass such and other orders, as this Hon‟ble Court
may deem fit and proper in the facts and circumstances
of the case."
2. The Petitioner joined the Coast Guard in the rank of Assistant
Commandant in January, 1984. The career graph of the Petitioner as
delineated in the petition is as follows. Ever since the date of his
joining the Coast Guard and in the course of his unblemished service
career spanning nearly 2 scores of years, the Petitioner had an
outstanding career and maintained an ascending career graph earning
promotion to various ranks at first look based on his ACR grading.
The Petitioner was placed first in the merit during the DPC held in the
year 2005 for promotion to the rank of DIG. He is presently holding
the rank of Deputy Inspector General (DIG) to which rank he was
promoted in the year 2005. The next promotion to which he is
eligible to be considered is Inspector General.
3. The Petitioner is an alumni of Naval War College (USA). He
was the first Coast Guard Officer to be selected for this course based
on outstanding performance and his position vis-à-vis other officers in
the panel. The Petitioner was awarded the Tatrakshak Medal by the
President of India on 15th August, 2007 for meritorious service and
was also commended on two separate occasions by the Director
General for his exceptional work. In May, 2006, he was first in merit
among DIGs and was shortlisted for National Command College
(NCC) Korea. Subsequently, in September, 2008, he was once again
first in merit amongst the 5th Batch officers for National Defence
College (NDC) Course at New Delhi.
4. On 16.02.2009, post the 26/11 attack on Mumbai, the Cabinet
Committee on Security (CCS) approved one post of Addl. DG, three
posts of IG (GD) and one post of IG (Tech) and communicated the
same to the CGHQ through the letter of the Ministry of Defence dated
24.02.2009. The sanction of these new posts necessitated holding of
DPC by the Department to fill these posts. The relevant selection
year being from 1st April to 31st March of the following year, a
proposal dated 01.04.2009 for conducting DPC on 18.04.2009 for one
post of IG (GD) with restricted zone of consideration, i.e., 4th Batch
of General Duty, was forwarded to MoD vide CGHQ Note dated
01.04.2009. The said proposal was however rejected by the MoD at
the level of Director (Navy-II) on 02.04.2009. Again on 13.04.2009,
a proposal for the composition of DPC reiterating the earlier proposal
of 01.04.2009 along with two amendments to CGO 02/2005 was
forwarded by CGHQ to MoD. The Ministry of Defence again
rejected the proposal on 16.04.2009 but this time it was at the level of
Defence Secretary. The MoD once again directed CGHQ to follow
the CGO 02/2005 and to conduct the DPC expeditiously. The
relevant portions of the notings of the Director (Navy-II) dated 15th
April, 2009 and that of the Defence Secretary dated 16th April, 2009
are reproduced hereunder:-
Noting dated 15th April, 2009
"7. In view of the above, it is proposed that CGHQ
may be advised to constitute Coast Guard Promotion
Board No. 1 for promotion to the rank of Inspection
General as per the existing provisions of SRO 133
and CGO 02/2005 to fill up the newly sanctioned
posts of Inspector General, approved by CCS. The
Zone of consideration may kindly be decided as per the
extant guidelines mentioned at Para 7 (d) of CGO-
02/2005."
Sd/-
V.K. Tiwary
Director (Navy II)
15th April, 2009"
Noting dated 16th April, 2009
"We may ask DGCG to go ahead with the DPC based
on existing guidelines on the subject. This may also
be done expeditiously.
Sd/-
Defence Secretary
16/4/2009"
5. Subsequent thereto, however, the following noting was
recorded by the IG, which is dated 27th April, 2009:-
"4. The case was examined in MoD vide Note 12
recorded in MF OF/0206/IG (copy at Encl. 16A).
After detailed analysis, MoD have advised that the 04
posts of IG approved for Coast Guard, which have
been considered a necessity by CCS in order to
strengthen maritime security. These may be filled up
as per the existing provisions of amended Coast
Guard (Seniority & Promotion) Rules, 1987 and CGO
02/2005. The zone of consideration may also be
decided as per the existing guidelines contained in the
said CGO.
5. In this connection, it is brought out that in
accordance with the provisions existing in the amended
Coast Guard (Seniority & Promotion) Rules, 1987 and
CGO 02/2005, all vacancies existing at the time of
DPC are to be considered. Restricting the release of
vacancies for IG promotion may amount to deviation
from the said provisions and lead to legal
complications at a later stage. It is pertinent to
mention here that in the writ petitions filed by Comdt
SK Choudhary (Retd) in Madras High Court, the
Hon‟ble Court has termed the partial release of DIG
vacancies for the DPC held on 18 Aug 03 as an action
with malafied intentions to exclude him. The
justification given to the court for partial selective
release of vacancies was not accepted by them.
Fortunately, the court has not quashed the DPC
proceedings on account of above lacunae, which could
have caused serious administrative problems and
would have opened a pandora‟s box......................
A. Rajasekhar
IG
DDG
th
27 April, 2009"
6. Notwithstanding the MoD directive, which, as per the noting
dated 27th April, 2009, was clearly understood by the Respondents,
the Respondents conducted the DPC for promotion to the rank of IG
based on CGO 02/2009 that was approved on 19.06.2009, i.e., one
month prior to the scheduled date of DPC (23.07.2009).
7. In the aforesaid background, the Petitioner alleges that the DPC
was conducted with the following two irregularities for which the
Petitioner has approached this Court:-
(i) Selective change of ACR criteria to manipulate merit.
(ii) Review of ACR for the period 2008 to 2009 by Vice
Admiral Anil Chopra, the then Director General, despite
not having observed the officer for a mandatory period
of three months as prescribed in para 54 of CGO
04/2005.
8. In order to ascertain the weight of the Petitioner‟s allegations, it
would be relevant at the outset to examine the specific changes made
in the ACR criteria as incorporated in CGO 02/2009 as compared to
the original CGO 02/2005 (which was enforced from September,
2004 till 23.06.2009) and also CGO 14/2002 which held the field
prior to the promulgation of CGO 02/2005. A comparative chart of
ACR criteria with reference to CGO 14/2002, CGO 02/2005 and
CGO 02/2009 is reproduced hereunder:-
CGO 14/2002 CGO 02/2005 CGO 02/2009
"12. The suitability "8. The suitability "7. The suitability
for promotion is to be for promotion shall for promotion shall
based on relevant be based on relevant be based in relevant
service records and service records and service records and
performance as performance as performance as
reflected in last five reflected in the last reflected in the last
year Confidential five years five years
Reports. If more than confidential report in confidential reports
one report has been the rank, falling in the current rank.
written for a year, all which all reports in If sufficient ACRs
such reports shall be current rank." are not available in
averaged and that current rank,
assessment to be consecutive 05 ACRs
taken into including those of
consideration for that previous rank will be
particular year. considered.
However, in the event However, in case of
once or more Commandant (JG)
Confidential Reports the ACR years in the
due in the last five current rank will only
years have not been be considered."
written due
administrative
reasons same number
of reports for the
preceding year (s)
including those in the
lower rank are to be
taken in reckoning.
In a situation where
no report(s) for the
preceding year (s)
including the lower
rank is available, all
available reports are
to be considered.
9. It is relevant to state here that the Coast Guard (Seniority and
Promotion) Rules, 1987 framed by the Central Government in
exercise of the powers conferred upon it by Section 123(1) of the
Coast Guard Act, 1978, governed the field right uptil September,
2004. Till then, all promotions in the Coast Guards, which in fact
was created by hiving off a wing of the Indian Navy as a distinct and
separate service, were made in accordance with Rule 7(3) of the
Coast Guard (Seniority and Promotion) Rules, 1987, which is to the
following effect:-
"7. Promotion rules. - (1)..........................
(2) ........................................................
(3) The promotion of officers to the rank of
Commandant and above shall be made on the basis of
merit with due regard to seniority."
10. Directorate General Coast Guard Service, as noted above,
issued an Office Order No.14/2002 prescribing the guidelines for
selection and promotion of Coast Guard Officers, the relevant portion
whereof reads as under:-
"Introduction
5. The procedure for selection of officers for promotion
to higher ranks is given in the succeeding paragraphs.
This procedure is subject to review from time to time
and is to be read in conjunction with relevant
Recruitment Rules for each rank and the Coast Guard
(Seniority and Promotion) Rules, 1987. Foot notes
below paragraphs serve the purpose of amplifying the
text of the respective paragraphs.
...........
Promotion Method
............
11. In case of selective promotion to Commandant and
higher ranks, the zone of consideration vis-à-vis
number of vacancies available is as follows:-
Vacancies No. of officers in the zone
05 or more Twice the vacancies + 4
Note: (a) In the event of eligible officers being less
than the zone as above, all eligible officers to be
considered.
........" (Emphasis Supplied)
11. On 17.09.2004, the Central Government notified the Coast
Guard (Seniority and Promotion) Amendment Rules 2004 to
amend certain provisions of the 1987 Rules vide SRO 133 dated
17.09.2004 whereunder Rule 7(3) of Coast Guard (Seniority and
Promotion) Rules, 1987 was amended to read as follows:-
"The promotion of an officer to the rank of
Commandant and above shall be made on relative
merit based selection within the eligible batch of
officers of his cadre and branch to which he belongs
and subject to possession of requisite qualifications
contained in the relevant Annexure to these rules."
12. As is evident from a conjoint reading of the 1987 Rules and the
2004 Rules, there was a marked change in the promotion criteria. As
per the unamended Rule 7 as it existed in the 1987 Rules, the
promotion of an officer to the post of Commandant and higher posts
including the post of Inspector General, was made on the basis of
merit with due regard to seniority whereas as per the amended Rule
7 (as amended by the 2004 Rules) promotions were to be made on
relative merit based selection.
13. Almost simultaneously with the amendment of the seniority
and promotion rules, the process to amend CGO 14/2002 was
initiated vide note dated 24.09.2004 in which it is stated that:
"It is intended to issue suitable amendments to the relevant
CGO on conduct of promotion boards after approval by
Ministry of Defence is accorded for the proposed features.
Sd/-
Dy. Inspector General
Director (Personnel)
24th Sep. 2004"
14. The Coast Guard Headquarters issued policy letter dated
OF/0741/Policy dated 29.12.2004. The said policy letter states:-
"3. In view of the above amendments in the Coast
Guard (Seniority & Promotion) Rules, 1987 the
corresponding provisions of the CGO 14/2002 will be
modified as follows:-
(a) .......................................................
(b) Annual Confidential Reports. Last five years
Confidential Reports in the rank, failing which all
reports in the current rank be considered.
(c) Selction Procedure
(i) Selection Year. All vacancies in the rank
accruing from 01 Apr to 31 Mar of next year
shall be considered by the respective
Promotion Boards to be convened in the first
quarter (Apr to Jun) of the financial year.
x x x x
4. CGO 14/2002 is being amended accordingly."
15. Accordingly CGO 02/2005 was promulgated. The existing
ACR criteria in CGO 02/2005 was as under:-
"8. The suitability for promotion shall be based on
relevant service records and performance as reflected
in the last five years confidential reports in the rank,
failing which all reports in the current rank."
16. The change in ACR criteria in CGO 02/2009 is as under:-
"7. The suitability for promotion shall be based on
relevant service records and performance as reflected
in the last five years confidential reports in the current
rank. If sufficient ACRs are not available in current
rank, consecutive 05 ACRs including those of previous
rank will be considered. However, in case of
Commandant (JG) the ACR years in the current rank
will only be considered."
17. The allegation of the Petitioner is that the Coast Guard
Headquarters conducted the DPC on 23.07.2009 in violation of the
MoD directives of 16.04.2009, referred to hereinabove, wherein 03
DIGs of General Duty branch and 01 DIG of Technical Branch were
promoted to IG. The Petitioner was placed at 4th position amongst
the General Duty branch and thereby left out as there were only 03
vacancies available.
18. The Petitioner alleges that the DPC proceedings on 23.07.2009
were conducted on the basis of selection policy illegally amended just
a month prior to the holding of the Selection Board with the sole
intention to prejudice the claim of the Petitioner who was otherwise in
the merit list but got excluded only due to such change of policy.
This change in the ACR criteria was brought in clandestinely even
without examination of such change by the Directorate of Personnel.
The sole intention was to facilitate promotion of DIG K.C. Pande, the
Respondent No.3 herein, at any cost. The fact that the change in the
ACR criteria was not discussed/deliberated both in the CGHQ and
MoD and introduced clandestinely is borne out by the relevant
notings on CGHQ/MoD files concerning amendment to CGO
02/2005, inter alia, being the notings made on 01.04.2009,
13.04.2009, 15.04.2009 & 16.04.2009, 27.04.2009, 30.04.2009,
04.05.2009, 14.05.2009, 18.05.2009, 26.05.2009, 16.06.2009 and
final Note 19 dated 17.06.2009 and Note 20 dated 18.06.2009 and
19.06.2009 and promulgation order dated 23.06.2009.
19. The Petitioner alleges that the Coast Guard Headquarters
submitted the amended CGO 02/2009 on 18.05.2009 for information
to MoD. Even though the proposal was forwarded only for
information, surprisingly, it was accorded 'post facto' approval by
the Joint Secretary (Navy)/MoD on 19.06.2009. It is further
submitted that since the said proposal was originally rejected at the
level of Defence Secretary vide noting dated 16.04.2009, the post
facto approval of the same case at two levels below was contrary to
Government guidelines as Joint Secretary (Navy) did not have the
authority to override an order passed by the Defence Secretary.
20. For the sake of facility, we deem it appropriate at this juncture
to reproduce the relevant portion of the notings dated 18th June and
19th June granting post facto approval by the Joint Secretary (Navy):-
"3. CGHQ has already revised the Coast Guard
Order (CGO) 02/2005 and issued a new/revised
CGO/2/2009 on their own. The earlier CGO/2/2005
was issued after the approval of then JS(O/N). Kindly
see P/A in this regard.
4. CGHQ was requested vide note 13 ante with the
approval of Defence Secretary to convene the
promotion board to fill up the newly created vacancies
in the rank of IG in the back-drop of the revised
security situation after 26 Nov 2008. CCS has
approved the above mentioned post on 16th Feb 2009.
5. The amendments carried out by the CGHQ in
their new/revised CGO/2/2009 are shown in the
tabular form at encl.16A. The new/revised CGO is
placed at F/X. The CGO/2/2009 has increased no. of
looks, zone of consideration and the distribution of
vacancies between fresh look and relook officer. The
composition of promotion board for various ranks has
also been amended.
6. In view of above, kind approval (Post facto) of
JS(O/N) is solicited to CGO/2/09 (F/X), we may ask
CGHQ to convene the promotion board for filling up
all the important post created by CCS on 16th Feb
2009 at the earliest.
s/d
18/6/2009
JS(O/N) Pl inform DGCG
s/d
Dir. N-II s/d
19/6/09
US(CG)"
21. On the basis of the aforesaid notings, the Petitioner submits
that malafides are clearly established. At first instance, the Coast
Guard Headquarters with a view to ensuring that the Respondent
No.3, DIG K.C. Pande was promoted forwarded a proposal, vide
Note dated 01.04.2009 proposing to conduct DPC for one vacancy
within the 4th batch only, to MoD. This was again repeated vide
Notes dated 13.04.2009, 27.04.2009 and 30.04.2009. Having failed
in this design, the process of amendment of ACR criteria was initiated
clandestinely and CGO 2/09 was promulgated for the first time on
23.06.2009. That this was done only to facilitate the promotion of
DIG K.C. Pande can be clearly seen from his ACR grading for the
years 2006 to 2009 which average around 14.73 for the said years,
whereas his Commander rank ACR for 2003-04 is 15.29. As per
CGO 02/2005, this Commandant rank ACR could not have been
taken into consideration by the DPC. Hence, the amendment
introduced clandestinely which was accorded post facto approval at
the level of JS(Navy)/MoD disregarding even the authority of the
Defence Secretary/MoD. The clandestine nature of the amendment is
evident from the MoD Note No.20 dated 18th June, 2009 wherein
there is no reference to any change in the ACR criteria and from
which it clearly emerges that such change in the ACR criteria was
neither deliberated upon nor discussed. The Petitioner alleges that the
documents on record clearly indicate that between 20.05.2009 and
27.05.2009 the then Director General Vice Admiral Anil Chopra, Shri
Binoy Kumar, the then JS(O/Navy)/MoD and DIG K.C. Pande had
departed together for a tour to Europe. On their return from the said
tour, Shri Binoy Kumar, the then JS(O/Navy)/MoD accorded post
facto approval to Coast Guard Headquarters proposal disregarding
even the authority of the Defence Secretary.
22. The second limb of the Petitioner‟s case is as follows. The
Respondent No.2, Vice Admiral Anil Chopra, the then DG, Coast
Guard reviewed (as Reviewing Officer) the Annual Confidential
Report of the Petitioner for the period from 1st February, 2008 to 31st
January, 2009, despite not having observed the performance of the
Petitioner for the mandatory minimum period of three months as
required by the Coast Guard Order 04/2005 and contrary to the
direction given by MoD in their Note dated 23.04.2009. According to
the Petitioner, notwithstanding the change in ACR criteria by
promulgation of CGO 02/2009 the Petitioner was still making it to the
rank of IG post on his ACR grading. The Coast Guard Headquarters,
therefore, devised another illegal means wherein Director General
Vice Admiral Anil Chopra resorted to review of ACR for the period
2008-09 despite his not being eligible to review such ACR as he had
not completed the mandatory three months in office required for the
same. Further, he not only reviewed the Petitioner‟s ACR but also
manipulated his ACR numerical grading so as to give benefit to DIG
K.C. Pande by resorting to unauthorisedly reducing the numerical
grading of the Petitioner.
23. In order to substantiate the aforesaid limb of his argument, the
Petitioner has referred to paras 54 and 55 of CGO 04/2005, which
read as under:-
"54. Section VI and VII. Authorities who are
required to endorse these sections are given in
Appendix „A‟ to this Order. These sections have been
provided for the remarks of the reviewing officers and
senior reviewing officers. They are also to enter their
assessment of the promotion potential of the officer in
the box provided. In the event present RO/SRO has not
observed an officer for a minimum period of three
months such reports be reviewed by previous
incumbent RO/SRO provided he is still in service. In
case where previous RO/SRO may have retired or is
otherwise not available for reviewing the report, a
notation to that effect be made by IO/RO in the
relevant column to enable the present RO/SRO review
such reports.
55. The Reviewing and the Senior Reviewing Officer
sometime endorse remarks of the following nature in
Section VI and VII, but do not endorse the numerical
assessment, in Section II and III or the promotion
potential in Section VI and VII.
Example:- (a) to (c) x x x x x
(d) I do not know him well, but I have consulted.......
It is essential that such comments by the Reviewing and
the Senior Reviewing Officers are matched by
appropriate numerical assessment. However, in the
event of insufficient knowledge of the officer, the
numerical assessment may be left unfilled."
24. Vice Admiral Anil Chopra took over as Director General on 1 st
December, 2008. As such, he had completed only 60 days in office
as on 31st January, 2009, when ACRs of DIGs were due for rendition
on 1st February, 2009 as per CGO 04/2005, and as is borne out by the
Coast Guard Headquarters Note dated 13.04.2009 addressed to MoD.
Therefore, he had not completed the mandatory three months in office
to be eligible for reviewing the ACRs of Coast Guard Officers.
Furthermore, while reviewing the ACRs, Vice Admiral Anil Chopra
had also violated 55(d) read with para 38 of CGO 04/2005 as per
which the Reviewing Officer (RO) and Senior Reviewing Officer
(SRO) are to enter their assessment in the boxes only if they have
sufficient knowledge. However, in the event of insufficient
knowledge of the officer, the numerical assessment must be left
unfilled. Para 38 of CGO 04/2005 reads as under:-
"38. The reviewing officer (RO) and the senior
reviewing officer (SRO) are to enter their assessments
in the boxes provided except when they have
insufficient knowledge. Numerical marking in the
promotion potential box shall invariably be supported
by marking in Section II and III. In case RO/SRO do
not concur with the IO or change the assessment of the
IO by 0.5 or more points they should give their clear
remarks regarding the non-concurrence or change
with adequate justification."
25. Another striking feature of this aspect of the matter brought out
by the Petitioner is that on 13.04.2009 CGHQ forwarded a proposal
to MoD for dispensation of the aforesaid mandatory time period for
review of the ACR (as set out in para 54 of CGO 04/2008) as a
special case to enable review of ACRs by Vice Admiral Anil Chopra.
This is borne out by the noting dated 13.04.2009 in the relevant file,
which reads as under:-
"COAST GUARD HEADQUARTERS
REVIEW OF ACRs - COAST GUARD OFFICERS
1. Vice Admiral Anil Chopra AVSM has taken over
as DGICG on 1st Dec. 08 and has not completed the
mandatory three months period for review of the ACRs
of Coast Guard Officers due on 1 Feb. 09.
2. It is requested that dispensation to review ACRs
by the Officer who has not observed the CG Officers
for three months may be granted as a special case.
Sd/-
(A. Rajasekhar)
Inspector General
Deputy Director General"
26. File Note 3 of MoD dated 16.04.2009 also states as under:-
"Vice Admiral Anil Chopra AVSM has taken over as
DGICG on 1st December 2008 Vice Admiral RF
Contractor, retired on superannuation. The review of
ACRs of Coast Guard Officers from whom the report is
due as on 1st February, 2009 need not be carried out
by the incumbent DGICG as has not rendered 3
months of service to observe their workings on the date
of the report due."
27. File noting dated 21.04.2009 by Shri R.K. Sharma, Deputy
Director (Personnel), OA&R, Coast Guard Headquarters at para 2 is
also significant, which reads as under:-
"In this connection it is intimated that there has been
no precedent where special dispensation has been
sought from MOD on the subject matter".
28. The Under Secretary (CG)/MoD in his note dated 22.04.2009
states that:-
"In view of the above, we may inform CGHQ to follow
the instructions contained in CGO 04/2005".
29. JS(Navy) accordingly approved the recommendations of
Director (N-II) directing CGHQ to follow the CGO 04/2005 on
22.04.2009. Thus, MoD rejected the proposal for special
dispensation and directed CGHQ vide MoD ID No.472/D(CG-
R)/09 dated 23.04.2009 to review the ACRs as per provisions of
CGO 04/2005. The relevant document which is dated 23.04.2009
reads as under:-
"Ministry of Defence
D (CG-R)
Subject: Review of ACRs - Coast Guard Officers
CGHQ may kindly refer to their Note No.
OF/0303/ACR dated 13th April, 2009 on the subject
mentioned above.
2. Review of ACRs by the Officer who has not
observed the CG Officers for three months may be
completed as per provisions of the CGO 04/2005.
(V.K. Tiwary))
Director (N-II)
DDG/CGHQ
M of D ID No. 472/D(CG-R)09 dated 23rd April,
2009".
30. Learned counsel for the Petitioner has taken us through the
relevant ACRs of the Petitioner to contend further that the review of
the ACR of the Petitioner for the aforesaid period by Vice Admiral
Anil Chopra, then Director General was clearly malafide and
colourable and an arbitrary exercise of power. It was vehemently
contended that the malafides are obvious from the fact that as per
paras 12 and 21 of CGO 04/2005 the review of the ACR of the
Petitioner should have been completed by 20.02.2009, whereas the
process of dispensation itself was initiated only on 13.04.2009, as set
out hereinabove. For the sake of facility, we extract hereunder paras
12 and 21 of CGO 04/2005:-
"12. Annual Confidential Reports (ACRs): A
Confidential Report is to be rendered annually on
every officer as under provided he has served for a
minimum period of three months under the Initiating
Officer:-
(a) All officers up to the rank of Commandant (JG) -
01 November
(b) Officers of the rank of Commandant & above - 01
February
21. Initiating/Reviewing officers are to ensure that
reports are submitted as and when the same become
due. COMCGs are to ensure that annual reports reach
Coast Guard Headquarters within 20 days of the due
date mentioned in paragraph 12 of this order."
31. Learned counsel for the Petitioner contended that apart from
the fact that the ACR review of the Petitioner was undertaken after
the due date, the assessment by the Reviewing Officer was also illegal
and malafide being for a period beyond the period of review.
Elaborating on this aspect, he contended that para 2 and para 27(e) of
CGO 04/2005 prescribed that assessment must be for the period of
review (in this case 01.02.2008 to 31.01.2009). The said paragraphs
read as under:-
"2. The assessment should be based on an officer‟s
performance during the period of report and not be
influenced by previous knowledge of the officer
reported upon."
"27(e) Appraisal should be confined to the
appraisee‟s performance during the period of report
only. While making assessments, appraisers should
not be influenced by incidents and happenings outside
the period of report as well as by their previous
knowledge of the appraisee."
32. Ignoring the aforesaid prescriptions in the CGO, the
Respondent No.2, Vice Admiral Anil Chopra in the pen picture of the
Petitioner made the following endorsements:-
"His ship‟s accomplishments have been a trifle diluted
by a few accidents and
incidents....................Somewhat overassessed by IO.
I have maintained the numerical grading of my
predecessor."
33. Relevant would it be to note that the accident/incident referred
to by the Respondent No.2 in the aforesaid pen picture relates to the
year 2007-08 and not to the period 2008-09 that was reviewed by
Vice Admiral Anil Chopra. Thus, Vice Admiral Anil Chopra not
only referred to the earlier reports and the grade awarded by his
predecessor, but made a mention of the incident which related to
2007-08 though his review of the Petitioner‟s ACR was to be
undertaken only for the period 01.02.2008 to 31.01.2009. Learned
counsel for the Petitioner points out that in fact IG S.P.S. Basra (IO)
who had observed the Petitioner for complete 12 months (i.e. from
01.02.2008 to 31.01.2009) had graded the Petitioner outstanding in
the ACR for the period 2008-09 rendered by him as IO. Furthermore,
the IO has not mentioned any incident/accident in the ACR for the
period 2008-09. Thus, quite evidently, the review was undertaken
with the malafide intent to sideline the Petitioner maliciously.
34. Learned counsel contends that as a necessary consequence of
the Reviewing Officer, Vice Admiral Anil Chopra referring to the
accident/incident relating to 2007-08 and taking the same into
account, the Petitioner has been punished twice for the same
accident/incident. Firstly, the ACR for 2007-08 was affected by the
accident/incident and thereafter the very same accident/incident has
been made the basis for reducing the grading in the ACR of 2008-09
at the time of review. Learned counsel has pointed out that the ACR
for the period 2006-07 has been rendered as „outstanding‟ by Vice
Admiral R.F. Contractor (RO) while for the period 2007-08 the same
RO has reduced the grading to „above average‟ because of the
incident/accident. Thus, in view of the aforesaid, the review of ACR
by Vice Admiral Anil Chopra is reflective of the malafides, bias and
arbitrariness of the Respondent, which has resulted in prejudicing the
Petitioner‟s case and led to the denial of promotion to the Petitioner to
the rank of Inspector General (IG).
35. Ms. Manisha Dhir, learned counsel for the Respondents sought
to rebut the Petitioner‟s case by contending at the outset that the
question which arises for consideration is as to whether the High
Court can exercise its discretionary jurisdiction under Article 226 of
the Constitution of India for granting the relief prayed for by the
Petitioner. She contended that if the DPC did not recommend the
name of Petitioner for promotion to the rank of Inspector General, it
is not for the Court exercising power of judicial review to enter into
the merit of the decision. Judicial review is permissible only to the
extent of finding whether the process in reaching decision has been
observed correctly and not the decision as such [see UOI and Ors. v.
Lt. Gen. Rajendra Singh Kadyan and Anr, (2000) 6 SCC 698,
Surinder Shukla v. UOI and Ors. (2008) 2 SCC 649, Maj. Gen. S.
Bindra v. UOI and Ors. W.P.(C) 6297/2003 decided on 21.10.2008,
Major S.P. Bhardwaj v. UOI and Anr. 137 (2007) DLT 362, Lt. Col.
(Time Scale) D.S. Pandey v. UOI and Ors. 2005 (121) DLT 177,
Amrik Singh v. UOI and Ors. (2001) 10 SCC 424 and Krishan
Chand v. UOI and Ors. 1995 (33) DRJ 363].
36. On facts, Ms. Dhir raised the following contentions:-
(i) The process for amendment of Coast Guard Order (hereinafter
referred to as „CGO‟) No. 02/2005 had begun way back in 2007,
pertaining to composition of Promotion Board, release of
vacancies, increase of number of looks, criteria for consideration
of ACR etc., and after due deliberations the CGO 02/2009 was
promulgated superseding CGO 02/2005. The CGO 02/2009
approved by the DGICG was forwarded to the Ministry by the
Department on 18.05.2009 for conducting the DPC for the 04
posts of Inspector General in June/July 2009 as per the revised
guidelines notified vide CGO 02/2009.
(ii) The Annual Confidential Report (hereinafter referred to as
„ACR‟) criteria was revised in accordance with government
instructions (DOP&T guidelines) which provide that ACRs of
last 5 years including ACRs in the lower rank, if necessary, are
to be taken into consideration for the purpose of promotion. The
CGO 02/2009 was issued by revising the provisions of CGO
02/2005 with a view to enhance promotion prospects, morale
and efficiency of Coast Guard officers and no way contravenes
any provisions contained in the statutory rules. The
aforementioned revised criteria is applicable across the board to
all ranks of Coast Guard officers and is not restricted to any
particular rank.
(iii) The approval to the CGO 02/2009 was accorded by the MoD on
18.06.2009 while the MoD had sanctioned one post of
Commander, Coast Guard Region (North West) in the rank of
Inspector General on 22.05.2009 and sanctioned three posts of
Dy Director General (Acquisition, Technical and Coastal
Security) in the rank of Inspector General in Coast Guard
Headquarters on 23.06.2009. The Promotion Board convened on
23rd July 2009 was conducted as per the revised guidelines
contained in CGO 02/2009.
(iv) The instructions for rendering Confidential Reports on Coast
Guard officers are contained in CGO 4/2005. As per Para 12 of
this CGO, the ACR of officers holding the rank of Commandant
and above are to be annually rendered on 01 February every
year. The administrative guidelines/procedures for promotion of
officers to various ranks are provided in CGO 2/2009. The CGO
stipulates that these instructions are to be read in conjunction
with the provisions contained in Statutory Rules namely, the
Coast Guard (Seniority & Promotion) Rules, 1987 as amended
from time to time. Para 7 of this CGO provides that suitability
for promotion shall be based on relevant service records and
performance as reflected in the last 5 years Confidential Reports
in the current rank. In case, sufficient ACRS in the current rank
are not available consecutive 5 ACRs including those of
previous rank will be considered.
(v) Para 54 of CGO 04/2005, the instructions for rendering ACRs
of Coast Guard Officers, contains a specific provision that in
case the previous RO/SRO i.e. Reviewing Officer has retired, the
present RO/SRO can review such ACRs, even if he has not
observed the assessee officer for a minimum period of three
months. Notwithstanding the said provision in the CGO
04/2005, a reference was made to the Ministry of Defence on
13.04.2009 requesting for grant of dispensation to Vice Admiral
Chopra i.e. Respondent No.2 to review ACRs of the officers
who he had not observed for three months. The Ministry of
Defence vide its letter dated 23.04.2009 directed the Department
that review of ACRs by the Officer who had not observed the
CG Officers for three months may be completed as per the
provisions of the CGO 04/2005. Thus, there was no irregularity
in the Respondent No. 2 reviewing the ACRs of the officers
including the Petitioner, who have not been observed for a
minimum period of three months by the Respondent No.2.
(vi) In addition, same Para 54 refers to Appendix „A‟ which
stipulates that reports of "Officers of the rank of Comdt(JG) and
above initiated or reviewed by COMCG in the rank of IG shall
be reviewed by the Director General Indian Coast Guard as
RO/SRO." Thus, the Director General has reviewed all the ACRs
of officers during the relevant period, including that of the
Petitioner, all without any notations.
(vii) The contention of the Petitioner that the numerical grading given
by the Respondent No. 2 is contrary to Para 38 read with Para 55
of CGO 04/2005 has no merit. Para 38 provides that "In case
RO/SRO do not concur with IO or change the assessment of the
IO by 0.5 or more points they should give their clear remarks
regarding the non-concurrence or change with adequate
justification." The reduction of IO grading by the Respondent
No.2 in the instant case is less than 0.5 and the reason is duly
supported by the fact that the incidents of the ships under the
command of the Petitioner were within his knowledge. In any
event, para 55 of the said CGO is merely illustrative and not
exhaustive.
(viii)The Respondent No.2 reviewed the ACRs of 36 officers in the
rank of Deputy Inspector General (hereinafter referred to as
„DIG‟), including the Petitioner, and 155 officers in the rank of
Commandant, for the period 2008 all of whom the Respondent
No. 2 had not observed for a minimum period of three months.
No other officer, apart from the Petitioner herein, has challenged
the grading by the Respondent No. 2. Subsequently out of the
said officers reviewed by the Respondent No.2, 05 officers have
been promoted from DIG to IG and 38 officers have been
promoted from Commandant to DIG, in the period 2009-2013.
(ix) That the Petitioner filed a Representation dated 02.05.2011
impugning the grading given by the RO in the Petitioners ACR
for the period from February 2008 to January 2009. That the
Ministry of Defence on 23.03.2012 disposed off the said
Representation concluding that there is not enough ground to
intervene with the grading given by the RO in the Petitioner‟s
ACR for the aforesaid period. The disposal of the said
Representation has not been challenged by the Petitioner.
(x) That the DPC considered all DIGs with the rank seniority upto
31 October 2005. These were a total of 15 officers out of which
9 officers were of senior batches than of Petitioner and all had 5
Annual Confidential Reports in the current rank of DIG. The
Petitioner‟s batch comprised of 5 officers including him and all
did not have 5 ACRs in the current rank of DIG. The
Respondent No.3, IG KC Pande had only 4 Reports i.e. for the
years 2004 to 2006 and 2008 in the rank of DIG. Thus, for all
the 5 officers of the Petitioner‟s batch Commandant Reports for
the years 2004 and 2005 and IG KC Pande‟s ACR for 2003 in
the rank of Commandant, were considered in accordance with
para 7 of CGO 2/2009.
(xi) During the period November 2007 to January 2008, 02 incidents
took place of the ships commanded by the Petitioner and 01
incident while the Petitioner was Principal Director (Policy and
Plans) at Coast Guard Headquarters. Show Cause Notices of
these incidents were issued by the Director General Coast Guard
to the Petitioner on 14.06.2008, 07.08.2008 and 19.08.2008.
Despite the said notices the RO i.e. Respondent No. 2 while
reviewing the Petitioner for the year 2008 maintained the
numerical grading of his predecessor. Further, the contention of
the Respondents that the Pen picture contents referring to the
incidents are outside the purview being contrary to Para 27(e) of
CGO 04/2005 is incorrect.
(xii) That the Petitioner has been subsequently considered twice for
promotion to the rank of IG in the Promotion Boards convened
in October 2011 and December 2012. The officers that have
been promoted in the aforesaid Boards are more meritorious than
the Petitioner having more/equal medals, commendations and
relatively better ACRs than the Petitioner. Till date, no officer
from a junior Batch than that of the Petitioner has been promoted
to IG.
37. We have carefully considered the respective submissions of the
parties and gone through the records including the Annual
Confidential Reports relevant for the present case. The records
unambiguously support the case of the Petitioner that the existing
ACR criteria as set out in CGO 02/2005 was amended clandestinely.
For the first time, the Coast Guard Headquarters submitted the
amended CGO 02/2009 on 18.05.2009 for information to MoD.
Surprisingly, though the proposal was forwarded only for
information, it was accorded post facto approval by the Joint
Secretary (Navy)/MoD on 19.06.2009. Indubitably, the proposal for
amendment of CGO 02/2005 was originally rejected at the level of
Defence Secretary, i.e., on 16.04.2009 (notings reproduced
hereinabove). Indubitably also, the MoD had then directed the
CGHQ to follow the CGO 02/2005 and conduct the DPC
expeditiously. Since the said proposal was originally rejected at the
level of Defence Secretary, the 'post facto' approval granted by the
Joint Secretary (Navy)/MoD on 19th June, 2009 was without any
authority and an attempt to ride rough shod over the orders passed by
the Defence Secretary. No reason has been assigned by the
Respondents as to why the Defence Secretary was not made part of
the decision making process to amend the CGO 02/2005.
38. The contention of the Respondents that the process for
amendment of the Coast Guard Order No.02/2005 had begun way
back in 2007 holds no water. The change of criteria for consideration
of ACRs with which the Petitioner is aggrieved nowhere finds
mention nor any due deliberation is reflected in the context of
promulgation of CGO 02/2009 superseding CGO 02/2005. The CGO
02/2009 was forwarded by the DGI, CG to the Ministry on
18.05.2009 for conducting the DPC for the 4 posts of Inspector
General in June/July, 2009 as per the revised guidelines notified vide
CGO 02/2009. The Ex-Post facto approval to CGO 02/2009 was
accorded by the MoD on 18.06.2009 and the Promotion Board
convened on 23rd July, 2009 was conducted as per the revised
guidelines contained in CGO 02/2009.
39. There is no manner of doubt that the vacancies for the 4 posts
of Inspector General had occurred prior to the amendment of CGO
02/2005 and as noted hereinabove, the said vacancies were sanctioned
on 16.02.2009. The settled legal position is that the vacancies which
occur prior to the amendment of the Recruitment Rules have to be
filled up as per the Rules in force as on the date of the vacancy. In
the decision reported as Y.V. Rangaiah v J. Sreenivasa Rao, (1983) 3
SCC 284, the Supreme Court observed as follows:-
"The vacancies which occurred prior to the amended
rules would be governed by the old rules and not by the
amended rules. It is admitted by counsel for both the
parties that henceforth promotion to the post of Sub-
Registrar Grade II will be according to the new rules
on the zonal basis and not on the State-wide basis and,
therefore, there was no question of challenging the new
rules. But the question is of filling the vacancies that
occurred prior to the amended rules. We have not the
slightest doubt that the posts which fell vacant prior to
the amended rules would be governed by the old rules
and not by the new rules."
40. The aforesaid law laid down in Rangaiah's case (supra) was
followed by the Supreme Court in the decisions reported in P.
Ganeshwar Rao v. State of AP 1988 (Supp) SCC 740, N.T. Devin
Katti v. Karnataka Public Service Commission (1990) 3 SCC 157,
A.A. Calton v. Director of Education 1983 (3) SCC 33, State of
Rajasthan v. R. Dayal (1997) 10 SCC 419 and B.L. Gupta v. MCD
(1989) 9 SCC 223.
41. In a decision rendered by a Coordinate Bench of this Court in
W.P.(C) 2310/2005 and W.P.(C) 12179/2006 Commandant
Shamsher Singh Malik v. UOI & Ors. on September 19, 2011,
relying upon the aforesaid decisions the Division Bench held that the
legal principle which emerges therefrom is that the normal rule is that
the vacancy which had arisen prior to the amendment of the rules
would be governed by the unamended rules and not by the amended
rules. Referring to the decisions of the Supreme Court reported as K.
Ramulu (Dr) v. S. Suryaprakash Rao (Dr) (1997) 3 SCC 59 and
State of Punjab v. Arun Kumar Aggarwal (2007) 10 SCC 402,
however, the Division Bench added a caveat by stating that though
this was the normal rule it would be otherwise if the amending rule is
made retrospective in operation or a conscious decision is taken to fill
up the existing vacancies as per the amended rule. In Ramulu case
(supra), it was held that the vacancies which had arisen before the
amendment of the Recruitment Rules would be governed by the
amended Rules and not by the unamended Rules for the reason that a
conscious decision had been taken by the Government not to fill up
the vacancies in terms of the existing Recruitment Rules and till the
amendment of the existing Rules was effected. The relevant
observations in Ramulu case are as under:-
"12. The same ratio was reiterated in Union of India v.
K.V. Vijeesh (SCC paras 5 and 7). Thus, it could be
seen that for reasons germane to the decision, the
Government is entitled to take a decision not to fill up
the existing vacancies as on the relevant date. Shri H.
S. Gururaja Rao, contends that this Court in Y.V.
Rangaiah v. J. Sreenivasa Rao had held that the
existing vacancies were required to be filled up as per
the law prior to the date of the amended Rules. The
mere fact that Rules came to be amended subsequently
does not empower the Government not to consider the
persons who were eligible prior to the date of
amendment. It is seen that the case related to the
amendment of the Rules. Prior to the amendment of
the Rules two sources were available for appointment
as Sub-Registrar, namely, UDCs and LDCs.
Subsequently, Rules came to be amended taking away
the right of the LDCs for appointment as Sub-
Registrar. When the vacancies were not being filled up
in accordance with the existing Rules, this Court had
pointed out that prior to the amendment of the Rules,
the vacancies were existing and that the eligible
candidates were required to be considered in
accordance with the prevailing Rules. Therefore, the
mere fact of subsequent amendment does not take away
the right to be considered in accordance with the
existing Rules. As a proposition of law, there is no
dispute and cannot be disputed. But the question is
whether the ratio in Rangaiah case would apply to the
facts of this case. The Government therein merely
amended the Rules, applied the amended Rules without
taking any conscious decision not to fill up the existing
vacancies pending amendment of the Rules on the date
the new Rules came into force. It is true, as contended
by Mr H.S. Gururaja Rao, that this Court has followed
the ratio therein in many a decision and those cited by
him are P. Ganeshwar Rao v. State of A.P., P.
Mahendran v. State of Karnataka, A.A. Calton v.
Director of Education, N.T. Devin Katti v. Karnataka
Public Service Commission, Ramesh Kumar Choudha
v. State of M.P. In none of these decisions, a situation
which has arisen in the present case had come up for
consideration. Even Rule 3 of the General Rules is not
of any help to the respondent for the reason that Rule 3
contemplates making of an appointment in accordance
with the existing Rules."
42. In Arun Kumar Aggarwal case (supra), the facts were
identical in that it was held that the Government had taken a
conscious decision not to fill the vacancy under the old rules keeping
in view the facts and circumstances of the case, and hence the
Supreme Court observed that though there is no quarrel with the
proposition of law that the normal rule is that the vacancies which
occur prior to the new rules would be governed by the old rules and
not by the new rules, this proposition of law would not apply in cases
where the Government had taken a conscious decision to amend the
rules for the purpose of filling up the vacancies.
43. In the instant case, it is not even the case of the Respondents
that the Government had taken a conscious decision not to fill the
vacancies under the old rules. There is not a whisper in the counter-
affidavit filed by the Respondents with regard to any conscious
decision having been taken by the Government not to fill up the
vacancies in terms of the existing Recruitment Rules and as a matter
of fact as reflected in the noting of the Defence Secretary dated 16 th
April, 2009 the Government was of the view that the 4 posts be filled
up under the unrevised rules. The contention of the Respondents that
the CGO 02/2009 was promulgated after the approval of the Joint
Secretary (Navy)/MoD is also belied by the record which shows that
CGO 02/2009 which superseded CGO 02/2005 was promulgated by
CGHQ prior to the CGHQ seeking approval from the MoD. This is
clearly borne out by the notings in the records of the MoD dated
17.06.2009, 18.06.2009 and 19.06.2009, the relevant portions
whereof read as under:-
"3. CGHQ vide note 13/ante were earlier advised
with the approval of Defence Secretary to go ahead
with the DPC based on existing guidelines for making
promotion to the Post of IGs. CGHQ have now
submitted vide note 17/ante that the approval may be
accorded for conduct of DPC for the 04 posts of IG in
Jun/July as per the revised guidelines notified vide
CGO 02/2009.
x x x x x x
5. As may be seen from the comparative statement
placed at Encl. 16-A, the changes made in the CGO
mainly relate to composition of DPCs, promotion
method and procedure for making selections including
Looks, zone of considerations etc.
x x x x x x
8. In view of above and taking into consideration
that vacancies in the rank of IG are to be filled up
expeditiously in view of CCS decision, the proposal of
CGHQ may kindly be considered favourably. Since
the proposed guidelines contained in CGO 02/2009
has already been promulgated by CGHQ the same
may kindly be considered for ratification.
Sd/-
(T.C. Sharma)
Under Secretary (CG)
17 June 2009
Dir(N-II)
Reference previous note.
2. JS(O/N) may kindly see note 13 ante and ......
3. CGHQ has already revised the Coast Guard
Order (CGO) 02/2005 and issued a new/revised
CGO/2/2009 on their own. The earlier CGO/2/2005
was issued after the approval of then JS(O/N). Kindly
see P/A in this regard.
x x x x x x
6. In view of above, kind approval (Post facto) of
JS(O/N) is solicited to CGO/2/09 (F/X), we may ask
CGHQ to convene the promotion board for filling up
all the important posts created by CCS on 16th Feb
2009 at the earliest.
s/d
18/6/2009
JS(O/N) Pl inform DGCG
s/d
Dir. N-II s/d
19/6/09
US(CG)"
44. Thus clearly the amendments were effected without due
deliberation with the concerned Ministry, and even the notings do not
reflect that any change was to be made in the ACR criteria.
45. The further contention of the Respondents that one post of
Commander, Coast Guard Region (North-West) in the rank of
Inspector General was sanctioned by the MoD on 22.05.2009 and
three posts of Deputy Director General (Acquisition, Technical and
Coastal Security) in the rank of Inspector General in Coast Guard
Headquarters on 23.06.2009, is also falsified by the records which
clearly show that the said posts were sanctioned on 16th February,
2009. The communications dated 22.05.2009 and 23.06.2009 are
merely formal in nature and reflect the financial sanction granted for
the aforesaid posts.
46. The stand of the Respondents that a request was made to the
Ministry of Defence on 13.04.2009 requesting for grant of
dispensation to Vice Admiral Chopra, i.e., Respondent No.2, to
review ACRs of the officers who he had not observed for three
months and that the Ministry of Defence vide its letter dated
23.04.2009 acceded to the request and directed the Department that
review of ACRs by the officer who had not observed the CG Officers
for three months may be completed as per the provisions of CGO
04/2005, is again bereft of merit and contrary to the record. The
record shows that though such dispensation was sought by the CGHQ
on 13th April, 2009, it was categorically refused by the Ministry of
Defence vide its communication dated 23rd April, 2009 and the
directions issued by the Ministry of Defence in this regard were that:-
"Review of ACRs by the officer who has not observed
the CG Officers for three months may be completed as
per provisions of CGO 04/2005." (MoD ID No.472/D
(CG-R)/09 dated 23rd April, 2009).
47. Para 54 of CGO 04/2005 reproduced hereinabove is
unambiguous in this regard, in that it clearly states that in case the
present RO/SRO has not completed three months, such reports would
be reviewed by the previous incumbent RO/SRO provided he is still
in service. In case where the previous RO/SRO may have retired or is
otherwise not available for reviewing the report, a notation to that
effect be made by the IO/RO in the relevant column to enable the
present RO/SRO to review such reports. The Respondents in the
present case are not only in breach of para 54 of CGO 04/2009 which
still holds the field, but as noticed above have also violated para 55(d)
read with para 38 of CGO 04/2005 inasmuch as the Respondent No.2
has entered his numerical assessment in the concerned ACR of the
Petitioner despite his insufficient knowledge. Not only this, in the
pen picture of the Petitioner, the Respondent No.2 has referred to
accidents/incidents which form part and parcel of the earlier
reports, in direct contravention to para 2 and para 27(e) of CGO
04/2005 which prescribe that the assessment must be for the period
of review (in this case 01.02.2008 to 31.01.2009). The result of the
Respondents violating para 27(e) of the said CGO quite evidently is
that the aforesaid incident/accident though transpired once has been
taken into consideration in two consecutive ACRs of the Petitioner
and the Petitioner has been punished twice over for the same
offence. The argument of the Respondents that the Respondent
No.2 reviewed the ACRs of 36 officers in the rank of Deputy
Inspector General (DIG), including the Petitioner, and 155 officers
in the rank of Commandant for the period 2008 all of whom the
Respondent No.2 had not observed for a minimum period of three
months does not cut any ice with us as there cannot possibly be any
parity between the Petitioner and the said officers nor it is stated so.
The further contention of the Respondents that the representation
dated 02.05.2011 of the Petitioner impugning the grading given by
the RO in the Petitioner‟s ACR for the period February 2008 to
January 2009 went unheeded is also of no avail to the Respondents.
Likewise, the contention that IG K.C. Pande‟s ACR for 2003 in the
rank of Commandent was considered in accordance with para 7 of
CGO 02/2009 is noted for the purpose of being rejected. A number
of other contentions have been raised by the Respondents with
regard to the professional failures on the part of the Petitioner and
the consideration of other officers as more meritorious than the
Petitioner, which too, in our opinion, are of no avail to the
Respondents since this Court is not sitting in appeal over the
findings of the Selection Board but is merely concerned with the
decision making process of the Respondents and as to whether the
same is in consonance with the Recruitment Rules and the settled
principles of law.
48. In view of the above discussion, we find that the Petitioner
has succeeded in establishing his case of selective change of ACR
criteria to manipulate merit by the Respondents smacking of
arbitrariness. The Petitioner has also succeeded in establishing that
the review of his ACR for the period 2008-09 by the Respondent
No.2, then Director General in violation of para 54 of CGO
04/2005 to his detriment and resulting in his being punished twice
over for the same incident, in the teeth of the refusal of the MoD to
accede to the request of the Respondents for grant of dispensation
from the working of the aforesaid rule smacks of illegality and
arbitrariness. That being the position, we have no hesitation in
holding that the vacancies which had occurred for the post of
Inspector General on 06.02.2009 were governed by the unamended
rules, i.e., CGO 02/2005 read with Rule 7(3) of the Coast Guard
(Seniority and Promotion) Rules, 1987 as amended in 2004 vide
SRO 133 dated 17.09.2004. We have also no hesitation in holding
that the ACR review of the Petitioner by the Respondent No.2 in
violation of para 54 of CGO 04/2005 read with para 55(d), para 38
and para 27(e) of the said CGO was both illegal and arbitrary and
deserves to be ignored.
49. This leaves us with the question of moulding the relief to be
made available to the Petitioner keeping in view the overall facts
and circumstances. In view of Rule 7(3) of the Coast Guard
(Seniority and Promotion) Rules, 1987 as amended vide SRO 133
dated 17.09.2004, the promotion to the rank of Inspector General
shall be made on „Relative Merit Based Selection‟ within the
eligible batch of officers. This being so, we dispose of the present
writ petition by directing that a review DPC be held within a period
of six weeks from today to make recommendations for the three
posts, the vacancies in respect of which had occurred on
16.02.2009. The Selection Board would consider all such officers
who are in the zone of consideration and within the eligible batch
of officers as of 23rd July, 2009 and thereafter make a
recommendation by applying the criteria for promotion as per CGO
02/2005. If the Petitioner is selected for promotion, he shall be
accorded the benefit of promotion from the same date on which the
three persons were promoted pursuant to the recommendation of
the DPC which met on 23rd July, 2009, i.e., 6th August, 2009 and
for which promotion the Petitioner would be entitled to all notional
benefits including seniority. The Respondent Nos. 1 and 2 shall be
at liberty to pass an appropriate order in respect of the Respondent
Nos.3, 4 and 5 and if a decision is taken not to revert any of them,
the Department shall be free to create a supernumerary post to
accommodate the Petitioner. There will be no order as to costs.
REVA KHETRAPAL
JUDGE
PRATIBHA RANI
JUDGE
September 04, 2014
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