Dr. O.P. Nimesh vs Union Of India & Ors
2018 Latest Caselaw 6370 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment reserved on: October 05, 2018
                             Judgment delivered on: October 22, 2018

+      W.P.(C) 2466/2017
       DR. O.P. NIMESH                                              ..... Petitioner
                                 Through:   Mr. Nalin Kohli, Adv. with
                                            Ms. Garima Sachdeva, Adv. and
                                            Ms. Nimisha Menon, Adv.
                        versus

       UNION OF INDIA & ORS                                    ..... Respondents
                     Through:               Mr. Ravi Prakash CGSC, Mr. Farman
                                            Ali and Mr. Varun Pathak, Advs. for
                                            UOI

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V. KAMESWAR RAO

                                   JUDGMENT

V. KAMESWAR RAO, J

1. This petition has been filed by the petitioner challenging the order

dated February 26, 2016 whereby, officers junior to the petitioner have been

promoted to the rank of IG (Medical) and also order dated 23rd January, 2017

rejecting the petitioner's representation, with a further prayer directing the

respondents to hold a review DPC with reference to the DPC of 25th

February, 2016 by ignoring the remarks and grading given by the petitioner's

Technical Reviewing Officer and thereafter petitioner may be granted

promotion to the post of IG (Medical) retrospectively, w.e.f, 4th March, 2016

along with all consequential benefits.

2. It is the case of the petitioner that he is a Medical Doctor and had

joined Border Security Force (BSF in short) as a Medical Officer on 1st

January, 1983. He was promoted as Senior Medical Officer on 1 st October,

1987 and thereafter as Chief Medical Officer w.e.f 25th January, 1993.

Because of his consistently good performance, he was granted selection grade

w.e.f 5th April, 2002. As the Doctors of All Central Police Force were placed

in a Combined Cadre, known as Central Police Forces Combined Medical

Officers Cadre, the petitioner upon his promotion as DIG (Medical) on 12 th

June, 2010 was posted in CRPF and joined the Composite Hospital, CRPF,

Bhopal. It is his case that he carried out his duties with great dedication, but

since, he was originally belonged to the BSF Cadre, there were some junior

Doctors, who had a bias against him. In fact, he received a letter of

appreciation on 24th July, 2012 from the Director General, CRPF. He also

received a commendation card dated 31st May, 2013 from the ADG (Medical)

in recognition of his sincerity and contribution for upliftment of the CRPF

Cadre.

3. It is the case of the petitioner, that while he was posted in CRPF

Hospital as DIG (Medical), he noticed irregularities in the working of the

Composite Hospital, CRPF, Bhopal, compelling him to take corrective action

which was not appreciated by some of the employees who made false

allegations against him leading to award of displeasure on 4th December,

2012. He was transferred to SSB on 18th December, 2012. The petitioner did

not challenge the "displeasure" as he was aware that the same was not a

penalty and since his performance has already been appreciated by the

Director General, CRPF. It is his case that after he had joined the SSB, he

was, vide letter dated 14th June, 2013, supplied with a copy of APAR for the

period 1st April, 2012 to 17th December, 2012, and was informed that in case

he wanted to make any representation against the same, he can do so within

15 days of receipt of the said letter. On perusal of the APAR for the period

2012-2013, the petitioner found that his Technical Initiating Officer had

graded him "Very Good". His Administrative Initiating Officer had also

agreed with the resume of work done by the petitioner, but given him a

grading equivalent to "Good", but his Technical Reviewing Officer who had

during the petitioner's entire tenure at Composite Hospital, CRPF Bhopal

never visited the place / hospital, had assessed him below average and given

him overall numerical grading of merely 3.66 as against grading of 7 given

by all the other officers. However, the accepting authority had overruled the

aforesaid overall assessment and not only specifically written that his overall

performance was "Very Good" but also given him overall grading of 7,

therefore, he did not take any steps to challenge the arbitrary assessment of

the Technical Reviewing Officer, as the same stands superseded by the

accepting authority.

4. It is the petitioner's case, while he was working as DIG (Medical) at

Composite Hospital, SSB, Tezpur in the month of June, 2016, he learnt about

the promotion order dated 26th February, 2016 vide which 7 officers junior to

him have been promoted as IG (Medical) which order was followed by a

Signal dated 4th March, 2016 from DIG (Central) (Personnel), Directorate.

He was not aware of the reasons as to why he has not been promoted. He

was of the view that the respondents might have considered the remarks and

grading given by his Technical Reviewing Officer without appreciating the

fact that the said remarks and grading of the Technical Reviewing Officer

stood superseded by the accepting authority and therefore, he submitted a

representation dated 27th June, 2016, to respondent no.1, which was duly

forwarded vide letter dated 18th July, 2016. Since the petitioner did not

receive any reply to his representation dated 27th June, 2016 and reminder

thereto dated 7th September, 2016, he submitted another representation dated

21st October, 2016. It was only on 23rd January, 2017, the respondents

rejected the petitioner's representation dated 27th June, 2016.

5. Counter-affidavit has been filed by the respondents. The facts are not

disputed. On the aspect of non-promotion of the petitioner to the post of IG

(Medical) is concerned, it is their case that petitioner was considered by the

DPC for promotion from the rank of DIG (Medical) to IG (Medical) for the

year 2015-2016. The petitioner's grading for the year 2012-2013 (APAR

10.05.2012 to 09.12.2012) has been examined by the DPC. As per the DPC

guidelines issued vide OM dated 10th April, 1989, the DPC should not be

guided merely by the overall grading, if any, that may be recorded in the CRs

but it should make its own assessment on the basis of the entries in the CRs

because it has been noticed that sometimes the overall grading in CR may be

inconsistent with the grading under various parameters and attributes.

Accordingly, DPC considered the APAR of the petitioner in entirety and not

merely by overall grading. It is stated during the course of enquiry, it was

found that the petitioner was unduly inclined to his female staff and has

misused his authority as Head of Office at CH CRPF, Bhopal, i.e., posting a

female staff nurse as his Steno (PA) and the male steno to OPD duty. The

petitioner also posted a female constable / Masalchi runner instead of

constable / peon, who was also available at that time. Considering the gravity

of charges against the petitioner, the DPC formed an opinion about the

petitioner not being fit to be promoted to the higher rank. The DPC observed

that petitioner was given two below benchmark APAR grading out of four

officers who wrote the APAR and TRWO has given him zero (3.66 marks).

The DPC also considered that the overall pen-picture of the petitioner as

reflected by the TRWO, ADG (Medical) who has categorically mentioned the

DG's displeasure in detail in his remarks and accordingly assessed the

petitioner by reflecting the true picture of his character. They also referred to

DOP&T OM dated 18th February, 2018 in terms of which the benchmark

prescribed is adhered to rigorously as one goes up high on the ladder.

Therefore, at the Joint Secretary and the Additional Secretary level, the

requirement should be of meeting the „Very Good‟ benchmark without fail.

Thus, in order to ensure greater selectivity at higher level of administration,

the DPC to ensure that for the promotion to the scale of Rs.37,400 - 67,000 +

Grade Pay of Rs.10,000/- and above the prescribed benchmark of „Very

Good‟ is invariably met in all ACR of five years under consideration. In

other words, they justified the non-promotion of the petitioner on the basis of

the assessment made by the DPC.

6. A rejoinder has been filed by the petitioner to the counter-affidavit

filed by respondents in which the petitioner has filed an Office Memorandum

dated 27th March, 2015 wherein it is stated that the "displeasure" is not a

penalty enlisted in Rule 11 of the CCS (CCA) Rules and therefore it cannot

be considered for denial of promotion.

7. Mr. Nalin Kohli, learned counsel appearing for the petitioner would by

drawing the facts as noted above stated that the petitioner could not make

representation to the grading given by the Technical Reviewing Officer, as

below average, by giving him the overall numerical grading of merely 3.66,

as the accepting authority had in any case given him the overall grading of 7,

which is "Very Good" thinking that the same would not have any affect on

the overall grading given by the accepting authority. He concedes to the fact

that the representation was given by the petitioner only on 26 th July, 2016,

which was rejected by the respondents on 23rd January, 2017.

8. Be that as it may, it was his submission that the "displeasure"

expressed on 4th December, 2012 was wholly unwarranted, since the

petitioner was an outsider in CRPF and as in any event he was transferred to

SSB on 18th December, 2012, he did not challenge the same especially when

he was aware that the same was not a penalty and his performance had

already been appreciated by the DG (CRPF). Mr. Kohli requests, by relying

on the following judgments, that the relief as prayed for in the petition, be

granted.

1. Yuvraj Gupta v. Union of India, 2016 SCC Online Del 3938

2. Sudhindra Kumar Singh v. Director General, Border Security Force and Ors. W.P.(C) No. 31991 of 2015 (Y) decided on 27 th November, 2017.

3. State of Haryan v. Central Administrative Tribunal, Chandigarh Bench and Ors. , CWP. No. 18050/2005, decided on 24 th July, 2008.

9. On the other hand Mr. Ravi Prakash, learned counsel appearing for the

respondents has reiterated the stand taken by the respondents in their counter-

affidavit that the DPC is within its right and is not guided by overall grading,

if any that may be recorded in the CRs but to make its own assessment on the

basis of the entries in the CRs. He referred to the OM dated 10th April, 1989,

in support of his submission. In other words, he stated the DPC having

considered the overall material had come to the conclusion that the petitioner

is not fit for being promoted. He would rely upon the following judgments in

support of his contention:

1. Union Public Service Commission v. M. Sathiaya Priya and Ors. Civil Appeal No. 10854 of 2014 ;

2. Sh. N.S. Yadav v. Union of India and Ors. C.W. 3099/91 and connected case decided on 27th May, 1994;

3. Chabungbam Ibohal Singh v. Union of India and Ors. 1995 Supp (2) SCC 83;

4. Union of India and Anr. v. S.K. Goel and Ors. (2007) 14 SCC 641;

5. UPSC v. K. Rajaiah & ors 2005 (10) SCC 15.

10. Having heard the learned counsel for the parties, the issue which falls

for consideration is whether the petitioner was rightly denied promotion. The

relevant proceedings have been placed before us and against the petitioner the

following has been stated:

  Sl. Name    Designation          Medical Recommendation Remarks
  No.                              Category of the DPC
  2. Dr. O.P. DIG                  SHAPE-I Unfit          Not meeting
      Nimesh  (Medical)                                   the
                                                          benchmark
                                                          in    APAR
                                                          for the year
                                                          2012-13.
                                                          DG‟s
                                                          displeasure
                                                          in 2012-13

11. From the above it is noted that the two aspects which weighed with the

DPC in not finding the petitioner fit for promotion, are; (i) he has not met the

benchmark in APAR for the year 2012-2013, and (ii) DG's displeasure in

2012-2013.

12. On (i) above, there is nothing in the proceedings of the DPC, except

stating that DPC in terms of guidelines of DoP&T is required to make its own

assessment on the basis of entries in the ACR's, to suggest that DPC had

made its own assessment on the basis of the entries in the CRs. Had it been

so, it should have depicted in what manner, the petitioner has not met the

benchmark. Such an expression, surely would have made the decision more

transparent. We also find that the DPC had considered the displeasure

communicated to the petitioner on 4th December, 2012 for declaring the

petitioner unfit for promotion. As per the DOP&T OM dated 27th March,

2015, which was in place when the DPC was held on 15th July, 2015, it is

clear that, "displeasure" is not a penalty enlisted in Rule 11 of the CCS

(CCA) Rules, 1965 and it could not have been considered for denying

promotion. The relevant part of OM dated 27th March, 2015 is reproduced as

under:-

"No.I.45026/01/2015-Pers.III Government of India Ministry of Home Affairs

North Block, New Delhi Dated the 27th March, 2015 OFFICE MEMORANDUM Subject: Instructions regarding the effect of award of DG‟s displeasure of officers of the Central Armed Police Forces. The undersigned is directed to refer to this Ministry‟s letter No.I.45026/25/87-Pers-II dated June 1989 on the subject mentioned above and to issue the following fresh instructions in supersession of the aforesaid letter:-

(i) Displeasure is not a penalty enlisted in Rule 11 of CCS(CCA) Rules, 1965 and therefore it cannot be considered for denial of promotion,

(ii) If a Displeasure or warning has been given to an officer / Member of the CAPF, the Reporting / Reviewing / Accepting Authority, while writing the Annual Performance Assessment Report (APAR), should take this into consideration and decide to reflect or not to reflect the same based on the improvement or otherwise noticed in the person after receipt or the displeasure or warning.

(iii) Once the APAR of an officer or member of the CAPF is finalized for the year or the date for finalizing such APAR is over, the displeasure or warning conveyed will become infructuous.

2. These revised instructions will take effect from the date of issue of this OM. In no case, cases settled before issue of this OM in the light of the instructions dated June 1989 in vogue till now, will be reopened."

13. Hence the two aspects which weighed with the DPC are clearly

untenable and could not have resulted in the petitioner not being

recommended for promotion to the post of IG (Medical). It appears, the

stand of the respondents, in the counter affidavit, is an after though only to

wriggle out of an unreasoned decision taken to deny promotion to the

petitioner.

14. In so far as the judgments relied upon by Mr. Prakash are concerned,

in the case of Union of India and Anr. V. S.K. Goel (supra), the Supreme

Court held that the DPC should make its own overall assessment of all the

relevant confidential reports of all the eligible officers who were being

considered. In other words, the DPC enjoyed full discretion to devise its

method and procedure for objective assessment of suitability and merit of the

candidate being considered by it. It also held DPC proceedings /

recommendations should not be interfered with unless such meetings are

conducted illegally or in gross violation of standing government instructions

and rules or there is mis-grading of confidential reports. There is no dispute

on the said proposition of law. In the case in hand, the decision of the DPC

does not reflect application of mind and is also contrary to OM dated 27th

March, 2015, as "displeasure" could not have been considered by the DPC to

deny promotion to the petitioner.

15. Insofar as the judgment of the Supreme Court in the case of M.

Sathiaya Priya and Ors. (supra) as relied upon by Mr. Prakash for similar

proposition of law is concerned, the same is also not applicable in the facts of

this case for the reasons already stated above. Mr. Prakash had relied upon

the judgments of the Supreme Court in UPSC v. K. Rajaiah & Ors (supra)

and R.S. Yadav vs. UOI & ors (supra) for similar proposition, which

proposition, according to us is not in dispute, but in view of our conclusion

above, the same have no applicability. We are of the view that the DPC

proceedings held on 15th July, 2015 are illegal to the extent that petitioner

was found unfit for promotion. The same are set aside to that extent. A

review DPC shall be convened by the respondents for considering the case of

the petitioner for promotion to the post of IG (Medical) within a period of

eight weeks from the receipt of the copy of judgment and assess the petitioner

by giving reasons strictly in accordance with rules and instructions. If the

petitioner is found fit for promotion as IG (Medical), the same shall relate

back to 4th March, 2016, the date from which Officers junior to the petitioner

have been promoted with all consequential benefits. The pay of the petitioner

shall be fixed on national basis on such promotion. The petition is allowed.

No costs.

V. KAMESWAR RAO, J

CHIEF JUSTICE

OCTOBER 22, 2018/jg