ORDER
SECURITY FORCE HELD ON 30.5.1970.
The Departmental Promotion Committee set up in the Ministry of Home Affairs for considering the cases of promotion of Assistant Commandants to the rank of Deputy Commandant in the BSF met on 30.5.1970 in the room of Joint Secretary (P), Ministry of Home Affairs.
2. The Committee examined the recommendations of the Central Promotion Board and also scrutinised the Confidential Charactar Rolls of all the officers who were recommended for promotion and also those who had not been recommended.
3. The total number of sanctioned posts of Deputy Commandant/Joint Assistant Directors in the Force is 102. The number of vacancies in this cadre is 52.
4. According to the Promotion Rules, an Assistant Commandant with 6 years of Service is eligible for promotion as Deputy Commandant. The number of Assistant Commandants from the various sources who had become eligible for promotion is given below:
(1) Dy. SPS on deputation.......... 22(2) ACs of EC-1 batch.............. 96(3) ACs of EC-2 batch..............142(4) ACs of EC-3 batch.............. 22(5) ACs of EC-4 batch.............. 34(6) ACs of EC-5 batch...............36(7) ACs of EC-6 batch...............59Total...............................4115. The process of selecting from among the Assistant Commandants for filling up post of Deputy Commandants was very difficult in view of the fact that a large number of Assistant Commandants had good records before and after their entry in the BSF. After careful scrutiny of the dossiers of the eligible officers relating to the period prior to and after their appointment to the BSF, the D.P.C. concluded that 20 officers were fit to hold the post of Deputy Commandants and therefore can be promoted.
6. In bringing the names on the select list, we have tried to select the best officers.
Scheduled Caste/Scheduled Tribes:
7. Only one officer Shri P. Gangte, a Scheduled Tribe Dy. SP from Manipur, came in the Zone of promotion. We have recommended his name for being brought on the Select List.
8. We recommend that the following names may be brought on the Select List of Assistant Commandants for promotion as Deputy Commandant/Joint Assistant Director--
1. Shri Gandharb Singh2. Shri P. Gangte3. Shri Y.C. Dixit4. Shri P.U. Govindankutty Nair5. Shri Beyant Singh6. Shri S.S. Sekhon7. Shri Surindur Singh8. Shri Jagdev Singh9. Shri Ravinder Singh Mehta10. Shri Roop Ram Jat11. Shri A.K. Sarbadhikari12. Shri R.S. Jasrotia13. Shri B.N. Bhattacharjee14. Shri B.S. Garcha15. Shri N.S. Yadav16. Shri Narpat Singh17. Shri P. Pillai18. Shri G.C. Pant19. Shri G.P. Bhatnagar20. Shri Avtar Singh Bedi.Sd- Sd-Director General, BSF (B. Venkataraman)Joint Secretary (P), MHA.'On the basis of the aforesaid D.P.C. the respondent Nos. 3 to 12 were promoted as Dy. Commandants by the order dated 7th September, 1970. The proceedings of the D.P.C. for the year 1971 as were produced for the perusal of the Court by the counsel for the respondents are reproduced as under:
'PROCEEDINGS OF THE DPC FOR PROMOTION OF ASSISTANT COMMANDANTS TO THE RANK OF DEPUTY COMMANDANT IN THE BSF HELD ON 11.7.1971.The DPC set up in the Ministry of Home Affairs for considering cases for promotion of Assistant Commandants to the rank of Deputy Commandant in the BSF on 11.7.1971.
2. According to the Promotion Rules, an. Assistant Commandant with 6 years service is eligible for promotion as a Deputy Commandant.
3. The number of Assistant Commandants eligible for promotion is given below:-
Dy SP on deputation = 10AC (Ex-ECO) = 481The total number of sanctioned posts of Deputy Commandant/Joint Asstt. Director is 181. The number of vacancies is 113.
4. The DPC carefully went through the ACRs of the officers. By and large, the officers had a good record because it was only the pick of the Ex-ECOs i.e. who had a high average record in the Army and who did well during interview, who had been appointed as Assistant Commandants in the BSF. It was not an easy problem to distinguish between the performance of the officers for selecting them for promotion. The DPC felt that nature of responsibility that would have to be undertaken by the Deputy Commandant, only officers having an above average record should be promoted.
5. The sudden intake of a large number of Ex-ECOs and Assistant Commandants having the same seniority and having about the same age group has posed a difficult cadre management problem. It has, therefore, been decided that all the vacancies of the Deputy Commandants should not be filled up in one lot although there are sufficient number of officers in the promotion zone available. The DG BSF under the powers delegated to him would try Assistant Commandants who are also above average and who are lower down in the seniority list, by giving them charge of the duties of Deputy Commandants, in addition to their own duties as Assistant Commandants. This would enable a better judgment and assessment of their work for purposes of regular promotion as also stagger promotions for better cadre management in higher ranks.
6. The promotions in the BSF from the rank of Assistant Commandants, a Class I post to the rank of Deputy Commandant, another Class I post, are made on the basis of seniority subject to fitness.
7. The rules regarding reservation for SC/ST for promotions on the basis of seniority subject to fitness are reproduced below:
(C) Promotions on the basis of seniority subject to fitness:
There is no reservation for SC and ST in appointments made by promotion on the basis of seniority subject to fitness, but cases involving supersession of SC and ST officers in Class I and Class II appointments should be subjected for prior approval to the Minister or Dy. Minister concerned. Cases involving supersession of SC and ST officers in Class III and IV appointments should be reported within a month to the Minister or Dy. Minister concerned for information.
8. It will thus be seen that there is no reservation for SC/ST in appointments made by promotion the rank of Dy Commandants; however, cases involving supersession of SC/ST officers are to be submitted for prior approval to the Minister.
9. There is no SC/ST candidate within the zone of promotion.
10. There are two Muslim candidates who are in the promotion zone. Shri S.H. Hussain at S.No. 78 has not been recommended by the DPC for promotion because of indifferent record. The other candidate Shri S.H. Khan at S. No. 91 has been recommended for promotion as Dy. Commandant.
11. We recommend that the following names may be brought on the Select List of ACs for promotion as Dy. Commandant:
1. Shri R.S. Rathore2. Shri S.P. Gorowara3. Shri O.P. Rana4. Shri V.P. Singh5. Shri Sher Singh6. Shri Bharat Bhushan7. Shri Bakshish Singh8. Shri A. Allur9. Shri B.M. Chengappa10. Shri V.S. Sirohi11. Shri K.S. Vohra12. Shri M.K. Soni13. Shri U.C. Chhabra14. Shri S.P. Sawhney15. Shri B.N. Chaturvedi16. Shri A.S. Mangat17. Shri S.H. Khan18. Shri Ghanshyam Singh19. Shri G.D. Singh20. Shri U. S. Rawat21. Shri R.M. Das22. Shri Raghubir Singh23. Shri Daljit Singh24. Shri Sulckhan Singh25. Shri D.D. Swami26. Shri Joginder Singh27. Shri D.R. Yadav28. Shri S.P. Kewal29. Shri Ashok Kumar30. Shri PPS SawhneySd- Sd-(K.F. Rustamji) (B. Venkataraman)DG BSF JS (P) MHA'On the basis of these recommendations the respondent Nos. 13 to 38 were promoted as Dy. Commandants by the order dated 19th August, 1971. These orders dated 7th September, 1970 and 19th August, 1971 in so far as they accord promotion to the petitioner's juniors and deny the promotion on the post of Dy. Commandant to the petitioner are under challange before me and it has to be considered as to whether the petitioner's candidature has received a fair consideration in confirmity with the right of equality of opportunity in the matters relating to employment as provided in Article 16 of the Constitution of India or not. In view of the DPC proceedings as also in view of the comparative chart which has been placed on record by the counsel for the respondents, the controversy is now confined to the question as to whether the petitioner was rightly superseded in a selection based on merit-cum-seniority for the purpose of promotion to the post of Dy. Commandant?. The charts which have been produced before me contain the remarks in the ACRs for the years beyond 1966 i.e. for the year 1967-68, 1968-69, 1969-70 and 1970-71 and the same are reproduced as under:COMPARATIVE STATEMENT OF SYNOPSIS OF BSF OFFICERS OF THE RANK OF ASSISTANT COMMANDANT FEATURING IN THE LIST OF RESPONDENTS 3 TO 12 OF W.P. NO. 713/79 CONSIDERED/RECOMMENDED BY A DPC DURING MAY, 1970 FOR THEIR EMPANEL-MENT/PROMOTION TO THE RANK OF DEPUTY COMMANDANT IN BSF EXCLUSIVE OF ARMY SERVICE FROM 1964 TO 1966 (ARMY CR DOSSIER HAVING BEEN DESTROYED).Sr. NAME ACR GRADING FOR THE YEARNO. 1967-68 1968-69 1969-701 A.K. SARBADHIKARI AA AA ON COURSEEC- 510772 R.S. JASROTIA A AA AAEC-507653 B.N. BHATTACHARYA AA AA AAEC-514984. B.S.GARCHA AA AA AAEC-509045. N.S. YADAV AA AA AAEC-510966. NARPAT SINGH AA AA AAEC-506107. P. PILLAI AA AA AAEC-507878. G.C. PANT AA AA AAEC-506169. G.P. BHATNAGAR A AA AAEC-5142410. A.S.BEDI AA A AAEC-50791PETITIONERS.S.KOTHIYAL AA AA AAEC-50754COMPARATIVE STATEMENT OF SYNOPSIS OF BSF OFFICERS OF THE RANK OF ASSISTANT COMMANDANT FEATURING IN THE LIST OF RESPONDENTS 13 TO 38 WP NO. 713/79 CONSIDERED/RECOMMENDED BY A DPC DURING JULY 1971 FOR THEIR EMPANELMENT/PROMOTION TO THE RANK OF DEPUTY COMMANDANT IN BSF EXCLUSIVE OF ARMY SERVICE FOR THE YEAR 1965 AND 1966 (ARMY CR DOSSIERS HAVING BEEN DESTROYED)Sr. Name AGE GRADING FOR THE YEARNo 1967-68 1968-69 1969-70 1970-711. V.P. SINGH AA AA AA AAEC-507842. SHER SINGH AA AA AA AA AAEC-51318 f3. BHARAT BHUSHAN AA AA AA AAEC-505174 BAKSHISH SINGH AA AA AA AA AAEC-506465. A.S. ALUR O AA AA OEC-508116. R.M. CHENGAPPA AA AA AA AAEC-508167. V.S.SIROHI AA AA AA AAEC-506528. K.S. VOHRA AA AA AA AAEC-506699. M.K. SONI AA AA AA AAEC-5160310. U.C. CHABRA AA AA AA AAEC-506611. S.P.SAWHNEY A AA O OEC-5067412. B.N. CHATURBEDI AA AA AA AAEC-5067813. A.S. MANGAT AA AA AA AAEC-5055114. S.P. GORWARA AA A A AAEC-1825615. GHANSHYAM SINGH O O O AAEC-5156816. G.D.SINGH AA AA AA AAEC 5160517. S.S.RAWAT AA AA AA AAEG-5164618. R.M. DAS AA AA AA AAEC-5173919 RAGHUBIR SINGH AA AA AA AAEC-5074920. DALJIT SINGH AA AA AA OAEC-5164621. SULAKHAN SINGH O AA O AEC-51739(PP&FSM; FOR G-68)22. D.D.SWAMI AA AA AA AAEC-5174923. D.R. YADAV AA AA AA AAEC-5178124. S.P.KEWAL AA AA AA AAEC-5189925. ASHOK KUMAR AA AA O OEC-5216026. P.P.S.SAHNI AA A O AAEC-52496PETITIONERS.S.KOTHIYAL AA AA AA AAEC-50754
8. Thus the only record which has been made available before the Court is for the period for which the officers had served in the BSF and the record with regard to the period of their service before joining the BSF i.e. in the Army, the submission has been made that this record has been destroyed by the Army Authorities in the year 1977 and 1982, although, no specific dates have been given as to on what dates the record was destroyed in the year 1977 and what record was destroyed in the year 1982. Be that as it may, the fact remains that the objective material for the period for which the officers had rendered service in the Army prior to joining the BSF not available before the court on the basis of which it could be ascertained as to how the departmental promotion committee had assessed the fitness or otherwise for promotion not the minutes of the DPC as have been quoted hereinabove go to disclose the reasons for the supersession of the petitioner and thus the only material with which this Court has to consider the matter are the ACRs for the year 1967-1971 in the form of the charts produced on behalf of respondents Nos.1 and 2. A bare perusal of these charts would show that for the Years 1967-68, 1968-69 and 1969-70, the petitioner was assessed as `Above Average officer' and this was only the part of the material which was there before the DPC at the time when the DPC met on 30th May, 1970 on the basis of which the order dated 17th August, 1970 was passed and the petitioner was superseded. On the other hand it is found that by this very DPC the officers who had been assessed to be 'Average'only', namely R.S. Jasrotia (respondent No.4 herein) was assessed as an, 'Average officer' in the Year 1967-68, Shri G.P. Bhatanagar (Res. No. 11) was assessed as an 'Average officer' in the Year 1967-68, Shri A.S. Bedi (respondent No.12) was assessed to be an 'Average officer' in the Year 1968-69. In one case i.e. of Shri A.K. Sarbadhikari (respondent No.3) the A.C.R. for the Year 1969-70 was not available as it is mentioned to be 'On course'. Thus I find that so far as the ACRs for the period for which the petitioner has served in the BSF his record is a foot higher in comparsion to the above named three officers who had atleast one average out of the three remarks for three consequitive Years. Similarly, the DPC which met on 11th July, 1971 took into consideration the remarks for the Years 1967-1971 and even for the Year 1970-71 i.e. in the forth Year the petitioner had earned the 'Above Average' remarks. Thus for four consequtive years right from 1967-68 to 1970-71 the petitioner has earned 'Above Average' remarks which goes to show that the petitioner has consistently above average service record which definitely shows a higher merit in comparison to those who have earned only average ACR and even the DPC which met in the year 1971 the candidates viz., Shri S.P. Sawhney had earned on avearge ACR in the year 1967-68 though in the year 1969-70 and 1970-71 he has earned outstanding remarks. In the case of one Shri S.P. Gorwara (respondent No.26) there is no ACR for the year 1967-68 and in the case of Sulakhan Singh (respondent No.33), he has earmed only average ACR for the year 1970-71 although in the year 1967-68 and 1969-70 he has earned outstanding remarks. The overall picture that embrges is that so far as the record for the period the officers had served in the BSF is concerned the officers junior to the petitioner, who had atleast one average ACR have been selected and the officers who had above average remarks for 3 and 4 years like that of the petitioner have also been selected but the petitioner although had consistently average remarks for all the 3 years and for the forth year i.e. 1970-71 respectively has been superseded. The counsel for the respondents Shri P.P. Chaudhary has submitted that the DPCs for the year 1970 and 1971 have also taken in to consideration the record of service pertaining to the period when the officers had served in the Army and may be that the petitioner's record for the, period he served in the Army was inferior vis -a- vis the other officers who have been selected by the DPCs in the years 1970 and 1971 and, therefore, on the consideration of 6 years service record, the DPC did not find the petitioner to be suitable for promotion and it may be on account of the inferior quality of service record while he was in Army and the same thing may not be obtaining in the case of other junior officers who have been selected. Once it is admitted before this Court that the promotions in- this case were based on merit-cum-seniority and yet it is borned out from the record that the candidates having average remarks have been selected, may be for one year, this ipso facto goes to show that the various candidates including the petitioner have not received a fair consideration at the hands of the DPC and the uniformity has not been followed. It is made out by the record produced by the respondent themeslves that even when the petitioner was in the Army, there was nothing adverse to him. Firstly because no adverse communication was sent to the petitioner as has been argued by the learned Counsel for the petitioner. Even if it is presumed that in the year 1966 the petitioner had average remark that would also be a case of average remark for one year only and, therefore, if other officers having one average, remark were selected, the petitioner too should have been selected on the same principle. It is the case of the respondents themselves that so far as the Army Services are concerned, the record which was taken into consideration was for the year 1964-65 and 1965-66. Admittedly the petitioner was promoted from the post of IInd Lieutenant to the rank of Captain in the year 1966, and, therefore, there cannot be anything against the petitioner upto 1966 even in the Army Service and even if the field posting which was given to the petitioner on the next higher post of Major is not taken to be a promotion, at least, this much can be inferred that there was nothing against the petitioner. Had there been anything against the petitioner he would not have been given a posting on the next higher post even in the Field Services.
9. It may also be considered that this is a case in which the Court is faced with a great predictment to decide this controversy for the simple reason that the objective material on the basis of which a decision could be arrived at as to whether the supersession was rightly done or not and as to whether the petitioner has received a fair and impartical consideration or not is not before the Court and the case of the respondents is that this record has been destroyed and, therefore, this record can never become available for the perusal of the Court so as to arrive at the decision. Facing such a situation, the Court is not left exept to take into consideration and if the material which has been made available by the respondents is considered and that material goes to show that out of 6 years continuous service record, the petitioner has consistantly above average remarks for all the four years while he has served in the BSF and the remarks of above average for all the four years in the close proximity with the years of promotion i.e. 1970 and 1971 the relief will have to be provided and the petitioner has to be considered for the purpose of promotion to the post of Dy. Commandant on the basis of such material which is advantageous to him. The Court was faced with a situation in the case of Mirza Shokat Beg v. University of Rajasthan reported in , wherein the answer-books of the candidates who had appeared in the LLM Part -II Examination, had been destroyed by the University authorities and, therefore, their answer-books could not be sent for third evaluation. When the Court was confronted with the situation that the answer-books were not available for their assessment and the same had been destroyed, the Court had applied the principle of advantageous marks and issued a direction that the assessment which was advantageous to the petitioner in that case out of the two assessments for which the difference was more than 15% should be taken into consideration and the results of the petitioners for LLM Part-II Examination should be declared by applying the principle of advantageous marks. The relevant operative part of that judgment is reproduced as under:
As a result of the foregoing discussion I accept the writ petitions and direct the University to compute the marks of the petitioners in their result sheet as shown in the body of judgment while dealing with the case of each petitioners and declare them successful in the LLM-Part-I examination. I further direct the University to declare the result of the petitioners' LLM. Part II examination held in the year 1975. In the facts and circumstances of the case I leave the parties to bear their own costs.
10. Similar situation had come up befor the Court in the case of Shyam Sunder Pathak v. University of Rajasthan and 2 others, reported in RLR 1986, Vol. 5.498, wherein Justice S.C. Agarwal (as he then was) held that when the only objective material which can render any assistance while considering as to whether the said complaint of the student is justified or not had been destroyed by the examiners, the student could legitimately ask for a direction by the Court even for holding special examination in the paper concerned and for declaration of his result on the basis of the marks obtained in such examination. Thus the Court cannot be rendered helpless and cannot sit as a silent spectator merely because the objective material has been destroyed by any party. Shri Chaudhary submits that in case the record was destroyed, no one else but the petitioner himself is responsible for it because the record had been destroyed after a long period as per the rules by the Army Authorities. Although no such set of Rules has been placed before me and the counsel for the respondents then submitted that there are no such Rules but there are only administrative circulars to this effect but the same are not available with him because the same are issued by the Army Authorities and the respondents only represent the BSF and the BSF is not governed by the Defence Ministry because the concerned Ministry in the case of BSF is only Home Ministry. He has further submitted that the Defence Ministry has not been impleaded as a party in this case. Obviously no relief was claimed against the Defence Ministry and, therefore, the Defence Ministry could not be a party here. It is the case of the respondents themselves that the records were destroyed in the year 1979 and in the year 1982. It is and it was in the knowledge of respondents Nos. 1 and 2 that this matter was subjudice before the Court, and, therefore, when they had already been served with the notice of this court in the year 1979 and the writ petition was admitted in their presence after hearing them and in the pleadings also the respondents had stated with regard to the ACR of the petitioner and the other respondents; it was the duty of the respondents to have produced the relevant record from the Army Authorities. Had any efforts been made by the respondents Nos. 1 and 2 to procure such records immediately after the service of such notice of this writ petition upon them the record could be preserved and procured and atleast the record which were destroyed in the year 1982 could be certainly preserved and the same ought to have been procured.
11. In the instant case the reference may also be made to Annexure-17, the pleadings of the parties at page 8 and page 17 sub-para(f). I have gone through these pleadings and the reply thereof. More I read more I am convinced that it is a case in which the petitioner's candidature has not, at all, received a fair consideration. Shri Chaudhary then submitted that in accordance with the principles laid down by the Supreme Court in the case of Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, reported in : (1990)IILLJ470SC and certain other decisions which have been cited by him, this Court should not sit as a Court of appeal over the decision of the DPC and this Court should not substitute its own decision. In reply to the above authorities Shri Balia has cited before me the case of U.O.L. v. M.L. Kapoor and Ors., a case reported in : (1973)IILLJ504SC and Gurdial Singh v. State of Punjab reported in : [1979]3SCR518 . It has also been pointed out by Shri Balia that Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan's case is a case of direct recruits. Besides this distinction, I find that it is not a case in which this Court is considering this matter as a Court of appeal or a question of assessing the comparative and relative merits of the parties. The Court as a matter of the fact on the basis of the record as was considered by the DPC itself finds that the conclusion which has been arrived at by the DPC in this case suffers from an obvious error apparent on the face of record in asmuch as the persons having average remarks have been selected in a selection based on merit-cum-seniority and large number of persons having above average remarks for four years but were junior to the petitioner have also been selected and thus it is found that there was no question of making an exception in the case of the petitioner in a most arbitrary manner. Even if a body or an authority is clothed with a power has been exercised in an arbitrary manner, the decision arrived at by such body even if it is an expert body can be interfered with by the Court. Even according to the Supreme Court judgment on which Mr. P.P. Chaudhary has placed reliance, the Supreme Court has observed that if the decision of an expert body is malafide, such decision can be interfered with. The question of malafide, has two aspects. An order or decision may suffer from malice in fact and/or from malice in law and hence even if an order or a decision does not suffer from malice in fact and it suffers from malice in law, the decision can be interfered with. In the instant case when it is found that the petitioner who was having above average remarks in his ACRs continuously for a period of 4 years has been superseded whereas the persons junior to the petitioner who had average remark have been selected; the decision certainly is arbitrary and it suffers from malice in the eye of law. There is no question of comparison of the relative merits in the facts of this case as it stares on the very face of the record that the petitioner who had all above average remarks for 4 consequtive years immediately before the exercise of consideration for promotion was undertaken and yet he has been superseded vis-a-vis, those juniors who were having average remark, the decision cannot but be arbitrary and suffers from malice in law. So far as the contention of Shri Chaudhary; that these 4 years remarks do not include the period for. which the petitioner had served on the basis of the record of his service for the period he was in the Army Services and, therefore, this Court should not interfere is concerned, it does not impress me for the reason that no such mention has been made in the proceedings of the DPC which met on 30th May, 1970 on the basis of which the order dated 7th September, 1970 was passed although it has been recorded in the minutes of the DPC for the year 1970 that the decision had been arrived at after careful scrutiny of the dossiers of the eligible officers relating to the period prior to and after their appointment to the BSF. Thus the proceeding of the DPC for the year 1970 do not disclose as to what was the basic reasons for which the petitioner was superseded by 10 officers who were junior to him in the year 1970. So far as the proceedings of the DPC which met on 17th July, 1971, I do not find any mention in these proceedings as was made in the proceedings of the year 1970 that this DPC had also taken into consideration the service record of the officers for the period for which they had served in the Army. IT has, of course, been mentioned at item No. 2 of these proceedings that according to the promotion rules an Asstt. Commandant with 6 years service is eligible for promotion as Dy. Commandant and on that basis Shri Chaudhary has tried to build up an argument that in view of this mention the service record of proceeding 6 years must have been taken into consideration. Although it is difficult to accept this speculative contention, even if it is accepted that the service record of proceeding 6 years had been taken into consideration, I find from the proceedings recorded in para 4 of the DPC of 1971 that only such officers were picked up form amongst Ex Emergency Commissioned Officers who had a high everage record in the Army and who did well during interview, who had been appointed as Assistant Commandant in the BSF. If is stated on behalf of the respondents by Shri P.P. Chaudhary under instructions from the Officer Incharge of the case Shri R.P.V. Nair, who is the Law Officer in the BSF that interviews of EX-ECOs were held only at the time when they were absorbed in the BSF. Now when the DPC has recorded that only such EX-ECOs were appointed and absorbed as Asstt. Commandants in the BSF, who had a high average record in the Army and who did well during the interview, as on interviews were held for the post of Dy. Commandants, it stands proved beyond any manner of doubt that even in the Army Services, the petitioner had a high average record because had the petitioner did not have a high average record he would not have been absorbed as Asstt. Commandant in the BSF and now even if the ACRs for the period of the petitioner's service in the Army has been destroyed and the same is not available and it is found that the primary evidence regarding his performance for the period of his service in the Army is not available, it is proved by the proceedings of the DPC of the year 1971 before which the service record for the period the petitioner was in the Army Services was there and the DPC itself has referred for officers like the petitioner that they had a high average record in the Army. Hence it is deducible on the basis of the record produced by the respondents in the form of the chart for the period the petitioner worked in the BSF coupled with the proceedings of the DPC for the year 1971 that the petitioner had a consistently high average record not only for the period he served in the BSF, but also for the period for which he served in the Army and in this view of the matter the non-availability of the service record for the period for which the petitioner had served in the Army becomes immaterial and the same is of no consequence as the evidence that the petitioner had high average record in the form of a contemporaneous evidence was available before the DPC at least in the year 1971 and it could be safely deduced from the mention made in para 4 of these proceedings that even during the period the petitioner was in the Army Services he had high average record. Thus I have no hesitation in holding that the petitioner's supersession was wholly unjustified and the petitioner was subjected to a glaring and hostile discrimination before the DPCs of 1970 and 1971 and he was superseded although there was not even an iota of material for his supersession. In these circumstances it becomes all the more clear that had there been any basis, for the- petitioner's supersession it could have been mentioned in the proceedings of the two DPCs atleast in some form indicating the basis for supersession. I do not mean that the DPC should have given elaborate reasons for it but what has been held in Mohan Lal Capoor's case reported in : (1973)IILLJ504SC , U.O.I. v. M.L. Kapoor, in para 28 thereof cannot be lost sight of. Para 28 is reproduced as under:
In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by Articles 14 and 16 of the Constitution, which are available them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making selections. If that had been done, facts on service records of officers considered by the Selection Committee, would have been corelated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions reached. Only in this way can manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to.
In this case although there was a requirement of Rule that the DPC should record for supersession of any senior officer but the Supreme Court did not keep the question confined with reference to the requirement of rule for recording reasons in case of supersession but invoked Articles 14 and 16 and even bereft of the requirement of rule, it has been Independautly held with reference to the requirement of Articles 14 and 16 in para 28 of the judgment that as members of the Public Service they are entitled to just and reasonable treatment by reason protections conferred upon them by Articles 14 and 16 of the Constitution which is available to them throughout their service, it was incumbent of the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in 'relation to records of other who were to be preferred particularly as this is practically, the only remaining visible safeguard against possible injustice and arbitrariness in making selections. Even in the instant case had that been so and the fact of the service of the officers considered by the Selection would have been correlated to the conclusions reached and had there been reasons as the links between the materials on which the conclusions were based and the actual conclusions this Court could have ascertained as to whether the proper procedure was followed or not and as to whether any officer had been rightly superseded or not and it could be examined as to the mind was applied in order to arrive at the decision. The Supreme Court has observed reveal a rational nexus between the facts considered and the conclusions reached and this is what precisely I find to be lacking in the proceedings of the DPC of the year 1970 as well as in the year 1971. The Supreme Court has categorically observed that it is not enought to say that preference should be given because certain kind of process was gone through by the Selection Committee. The DPC in the minutes for both these years has only used the phrases in saying that it has selected the best officer who have been found fit to hold the post of Dy. Commandants and that the officers named therein are brought on the Select List for promotion as Dy. Commandants. In this view of the matter, the DPC proceedings as were drawn cannot be said to have been recorded in accrodance with the requirements of Articles 14 and 16 as to disclose the actual reasons for the conclusions arrived at and I find that had the matters been considered objectively and on rational basis, the petitioner having above average service record would have been certainly there in the Select List for promotion to the post of Dy. Commandants in the year 1970 itself and in that ease he would have been promoted as Dy. Commandants at the time when the order dated 7th September, 1970 was passed.
12. Once it has been held that the petitioner was entitled to be promoted as Dy. Commandant in the year 1970 and his name should have found place in the order dated 7th September, 1970, Shri P.P. Chaudhary sought to contest the matter that a positive direction should not be given by this Court to accord promotion to the petitioner as Dy. Commandant in the year 1970 from the date the officers junior to him were promoted as Dy. Commandants and in support of this submission the counsel for the respondents Shri P.P. Chaudhary has cited before me : (1974)ILLJ301SC thereof and : AIR1988SC2140 and on the authority of these two decisions he has argued that the positive direction to accord promotion to the petitioner in the year 1970 should not be given. On the other hand Shri Balia appearing on behalf of the petitioner has cited 1979(1) SLR 628, 1980(3) SLR 503 para 16 thereof, : AIR1970SC479 and 1990(1) WLN 370. I have considered the ratio descendi of each of the aforesaid case and I find that it depends upon the facts of each case and whether such a direction should be given or not has to be decided on the facts of a given case. In the instant case, it is the case of the respondent themselves that the officers having above average service records could be selected and in fact such candidates have been selected and promoted on the next higher post in a selection based on merit-cum-seniority. On the basis of the comparative charts filed by the respondents and the proceedings of the DPC for the year 1970 and 1971 it is clear that the petitioner had an above average service record for all these years and in view of the fact that he had above average service record for all these years and there is no other impediment nor any other material has been placed on record to show that the petitioner could not be selected in the year 1970, it will be an exercise in futility and a further collosal wastage of time and would further prolong the agony of the petitioner to the gain of none, if the matter is yet left for consideration, the ultimate decision of a fair consideration is clearly visible like a writing on the well that in view of the above average service record for all the 6 years or even for 3/4 years (because the previous record according to the respondents has already been destroyed) it is not, at all necesaary rather wholly unwarranted to leave the matter for any further consideration and I deem it absolutely proper in the peculiar facts of this case which are borne out from the record produced by the respondents themselves to direct that the petitioner should be promoted as Dy. Commandant in the year 1970 from 7th September, 1970 the date when the officers junior to him were so promoted. I accordingly allow the writ petition and direct the respondents Nos. 1 and 2 to issue the promotion orders in respect of the petitioner according promotion to him on the post of Dy. Commandant in the year 1970 i.e. from 7th of September, 1970, the date on which the officers junior to him were so promoted and further order that the petitioner shall be entitled to all consequential benefits in the matter of pay, seniority and further promotions to the next higher posts to which he would have been entitled had he been promoted on 7th September, 1970 as Dy. Commandant. The writ petition is allowed as indicated above. No order as to costs.