M.C. Sharma vs Union Of India & Ors.
2015 Latest Caselaw 8303 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                                 DECIDED ON: 03.11.2015
+                          W.P. (C) 6009/2013

M.C. SHARMA                                                      ..... Appellants
                           Through: Mr. S.N. Kaul, Advocate.

                    Versus

UNION OF INDIA & ORS.                                 ..... Respondents

Through: Ms. Rishika Katyal, Adv. for UOI.

Mr. Rajender Agarwal, Adv. for Resp-4.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA S.RAVINDRA BHAT, J.(ORAL)

1. The present petitioner seeks direction for quashing the decision of the review Departmental Promotion Committee (DPC) communicated by the respondent - Sashastra Seema Bal (SSB) dated 02.07.2013. A further direction not to consider the entries in the Annual Confidential Report (ACR) is also sought.

2. The brief facts of the case are that the petitioner had joined the Indian Army as a Commissioned Officer; he later joined the SSB as a Company Commander on 01.01.1968. He was further promoted as Deputy Commandant on 05.07.1973 in the pay scale of `1200-1700/- and further promoted as Commandant on 31.12.1975 in the pay scale of `1200-1700/- with Special Pay of `100/-. He retired as Commandant on 30.11.1990. Whilst in service, the petitioner had filed W.P.(C) 330/1988 before this Court challenging the SSB Senior Executive Service Rules, 1997 and the second amendment to the SSB Senior Executive Rules, 1982 in so far as it denied and restricted his right for

W.P.(C)6009/2013. Page 1 consideration and promotion to the post of Deputy Director/DIG after completion of eight years of service. He further sought a direction to set-aside the promotion of three respondents as violative of the rules. On 04.07.2008, this Court partly allowed the writ petition and held that the present petitioner was entitled to be considered for the post of DIG by treating him as eligible and if found suitable, granting him promotion from the date the second and third respondents in that writ petition, were promoted as DIG. The SSB's appeal by special leave was rejected by the Supreme Court on 12.02.2013.

3. As a result of the above development, it became necessary for the SSB to consider the petitioner's case for promotion through a review DPC. A review DPC was held and its decision was communicated on 02.07.2013 - i.e., the impugned order in this case - that the petitioner was unfit for the period 1982-83 onwards for the purpose of admission to the post of DIG.

4. The petitioner contends that the decision of the review DPC is untenable for the reason that his ineligibility on account of the below benchmark grading was never brought to his notice. It is contended that contemporaneously and later, the fact that the petitioner was found to be "good" was never made known to the extent that the review DPC relied on such adverse ACRs which were never communicated; its decision thus could not be sustained. Learned counsel relies upon the decision of the Supreme Court in Dev Dutt v. Union of India & Ors. (2008) 8 SCC 725 and Abhijit Ghosh Dastidar vs. Union of India and Ors. (2009) 16 SCC 146. Sh. S.N. Kaul, learned counsel, besides urging this ground also states that there is no reason for the respondents to deny the necessary promotions given that it would not cause prejudice to any others who were promoted during the intervening period.

W.P.(C)6009/2013. Page 2

5. It was pointed out that the stand taken by the SSB - that records had been weeded out is to be carefully scrutinized. Learned counsel relied upon the previous order of this Court dated 15.09.2015 by which it was recorded that the question of considering the petitioner's claim in the event the records have been weeded out could not have arisen at all. Learned counsel highlights that the explanation furnished by the SSB is unsatisfactory and affidavit filed pursuant to the orders of the Court are inadequate.

6. It was lastly urged that given the nature of the records, the respondents are duty-bound to consider the petitioner's records for five years period prior to 1982- 83 and decide if he should be promoted to the post of DIG.

7. It is argued by the SSB that the petitioner's grievance is unfounded. According to the then prevailing and extant instructions, to be eligible for promotion to the post of DIG, the incumbent in the feeder cadre had to possess at least "very good" grading for five consecutive years. Since the petitioner did not possess such grading, the question of promotion as on the relevant date, i.e. 20.08.1987 did not arise. Learned counsel relied upon the observations of the review DPC dated 07.06.2013. It is pointed out that when the DPC originally met, the minutes of meetings of the original DPC dated 22.06.1990 which included a chart which indicated the ACR gradings of five officers was gone into. The minutes were recorded on the basis of this tabular statement which clearly showed that the petitioner was graded "good" for the period 1982-83 to 1985-86 after which for two years in succession, he was graded "average". He and another officer, i.e. S.S. Das were not found fit for promotion as DIG. It was submitted that the question of ignoring their ACRs recorded on the basis of the appraisals duly done by the superior officers does not arise at this length of time, after almost 35 years.

W.P.(C)6009/2013. Page 3

8. It is quite evident from the above discussion that the controversy is a limited one - i.e. whether the petitioner is entitled to promotion to the post of DIG through a review DPC. The review DPC in question was directed after the order of the Supreme Court dated 12.02.2013. The petitioner was informed on 02.07.2013 that based upon his past records, i.e. 1982-83 onwards, he was found unfit for promotion as DIG. The petitioner claims that the ACR grading of "good" was never communicated to him and that inasmuch as it constitutes a drop in his performance. The lack of communication meant that he was deprived the opportunity to represent against it. More fundamentally, it is contended that the SSB's stand that another year of original ACR gradings do not exist on record and has been weeded out is suspicious and unacceptable because without such records, review DPC itself could not have been held. The petitioner's contentions with respect to the law declared in Dev Dutt (supra) cannot be disturbed. Equally, it could be disputed that for the post of DIG, the benchmark indicated is five "very good". The relevant period is 1982-83 to 1987-88.

9. If one looks at the entire record and the materials available, i.e. the tabular chart that the review DPC considered while evaluating the petitioner's case on 07.06.2013, it is evident that he did not possess the necessary grade, i.e., "very good", for five years. In fact, for two years, it was not even "good". Now, there can be no two opinions for the proposition that adverse entries, especially, confidential record entries which reflect a downturn or drop in performance, are to be communicated, in conformity with fairness standards. What constitutes a drop or downturn in performance is relative to the previous grading. In the present case, the petitioner's gradings for all five years were consistently below the basic "Very good" threshold. For a comparison with the previous years' grading, it would have been necessary to go back further to 1981-82. The respondents have established that apart from a tabular chart, prepared at the time of the original DPC - which

W.P.(C)6009/2013. Page 4 rendered the petitioner unfit- there was no document on the record. In this situation the Court cannot assume that the petitioner had a record better than "very good" and then direct the respondents to communicate the grading to the petitioner, to enable him to represent against the grading for the later year. More fundamentally, even if the petitioner's gradings were to improve for a couple of years that would not make any difference. The solution suggested by the petitioner, i.e., to overlook the gradings and take into account complete gradings for the previous five years, would be inappropriate for the reason that it would result in applicability of two standards, one for all other officers, and the other for the petitioner, merely because the records in his case are unavailable. Most importantly, the petitioner retired long ago.

10. For the foregoing reasons, it is held that the petition has to fail; it is therefore dismissed, without order on costs.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) NOVEMBER 03, 2015

W.P.(C)6009/2013. Page 5