Union of India (Uoi) and ors. Vs. S.S. Kothiyal and ors. - Court Judgment

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constitution of india - article 14 & 16--promotion--petitioner superseded by juniors--d.p.c. proceedings not disclosing any basic reason--not found whether dpc took into account petitioner's service record in army--dpc proceedings not disclosing rational nexus between facts considered and conclusions reached--held, proceedings, are not in conformity of requirements of articles 14 & 16;the proceedings of the dpc do not make out any case nor disclose any basic reason on the basis of which the petitioner respondent no. 1 was superseded by several officers who were junior to him in the year 1970. nor there is any such indication available in the proceedings that were held on 17.7.1971, it is also not found that the dpc took into account the service record of the officers for the period they had served in the army;the proceedings of the selection committee should reveal a rational nexus between the facts considered and the conclusions reached. this is what we find conspicuously missing from the proceedings of the dpc. it is not enough to say that the preference should be given because certain kind of process was gone through by the selection committee. it was not enough to say that best officers who were found fit have been setected for promotion as deputy commandants. the proceedings are, thus, not in conformity with requirements of articles 14 and 16 of the constitution of india;appeal dismissed - - the next contention of the learned counsel is that this court could not sit like a court of appeal to examine the recommendations of the dpc under writ jurisdiction. 1 was having an excellent record of service and was wrongly superseded once in the year 1970 and again in the year 1971. it has also been held that the candidature of the petitioner was not rightly considered and inspite of the directions having been handed down from time to time the record was not made available to the court and the service record when the respondent no. it has been found as a matter of fact that the officers junior to the petitioner who had on 'average' acr have been selected and officers who had 'above average' remarks for 3 to 4 years like that of the petitioner have also been selected and although the petitioner had consistently been keeping 'above average' remarks for continuously 4 years has been superseded. the argument of the learned counsel for the appellants that the petitioner might have been superseded on the basis of the record of his service during which he was in the army service also does not sound well. this too is an admitted fact as recorded in the dpc proceedings that only such officers were appointed and absorbed as assistant commandant in the border security force, who had a high average record in the army and who did well during the interview. it was not enough to say that best officers who were found fit have been selected for promotion as deputy commandants.p.k. palli, j.1. this special appeal is directed against the order dated 6.12.1990 passed by the learned single judge, whereby the writ petition filed by the petitioner s.s. kothiyal was allowed. aggrieved against this decision the union of india has filed the present appeal.2. the petitioner (respondent no. 1 in the appeal) joined as commissioned officer in the indian army as iind lieutenant on 30.6.1963. the petitioner was promoted as captain in the year 1965 and acting major in the year 1966. the petitioner was released from the army service on 16.9.1967 and was absorbed in the border security force where he was already working on deputation for some time as assistant commandant.3. respondents no. 3 to 38 likewise the petitioner were recruited as emergency commissioned officers and it is an admitted position that all these 36 officers were likewise absorbed in the border security force and continued to be juniors to the petitioner. it is said that respondents no. 3 to 12 were promoted as deputy commandants on 7.9.1970 and the petitioner was ignored. inspite of repeated representations, no relief was granted to him and once again he was superseded by respondents no. 13 to 38 vide order dated 19.8.1971. these officers too were promoted as deputy commandants.4. the petitioner was, thus, superseded twice once in the year 1970 and again in the year 1971. the petitioner was ultimately promoted as deputy commandant on 30.8.1972 and confirmed as such on 8.5.1975. the petitioner repeatedly went on to file representations and ultimately the representation was rejected vide ex. 19 dated 11.7.1977. thereafter the petitioner served a notice and after having sufficiently waited for the reply, the writ petition was filed challenging his supersession in the year 1970 and 1971 by the respondents no. 3 to 38.5. the grievance of the petitioner was that the appellants promoted number of persons junior to him as deputy commandants and the criteria for promotion is merit-cum-seniority and, thus, he was due promotion and no weightage was given to his merit and seniority by the departmental promotion committee (referred to hereinafter as 'the dpc').6. no counter has been filed on behalf of any of the respondents no. 3 to 38 nor any one has appeared on behalf of the said respondents despite service.7. after going through the respective pleadings of the parties, the material placed on the record and after carefully looking into the proceedings of the dpc, the learned single judge allowed the writ petition and directed that the petitioner (respondent no. 1) be promoted as deputy commandant in the year 1970 i.e. with effect from 7.9.1970 the date when the officers junior to him were promoted. it was further observed that the respondents appellants would issue promotion orders in respect of the petitioner respondent no. 1 according him promotion to the post of deputy commandant with effect from 7.9.1970 and that he would be further entitled to all consequential benefits in the matter of pay, seniority and further promotions to the next higher post to which he would have been entitled to had he not been superseded.8. mr. p.p. choudhary, learned counsel appearing for the appellants opening his arguments, contends that the learned single judge has wrongly issued writ in the nature of mandamus and the writ petition was straight way liable to be dismissed on the ground of laches and delay. the next contention of the learned counsel is that this court could not sit like a court of appeal to examine the recommendations of the dpc under writ jurisdiction. it is next contended that this court cannot order promotion since it exclusively lies in the domain of the dpc.9. in support of his contentions stated above, the learned counsel has referred to u.p. state electricity board and another v. fateh chand sharma kaushflc and others : air1988sc2140 ; dalpat. abasaheb solunke, etc. v. dr. b.s. mahajan etc. : (1990)iillj470sc ; the direct recruit class ii engineering officers' association and others v. state of maharashtra and others : [1990]2scr900 and state of mysore v. c.r. seshadri : (1974)illj301sc and a few other decisions.10. a reading of these decisions makes out that an employee has no right to be promoted, he could only be considered for promotion and the court cannot sit as a court of appeal over the decision of the dpc and it is not in the interest of service to unsettle a settled proposition.11. learned counsel proceeds on the strength of these decisions to submit that the court cannot declare that an officer shall be deemed to have been promoted from a particular date. it is further argued that selection of an officer in preference to others does not amount to supersession of a senior by a junior and the concept of supersession is relevant in the context of promotion and not in the context of selection. it is further submitted that the court in writ jurisdiction cannot review the opinion of the dpc.12. learned counsel appearing for the respondent no. 1 in reply has argued that the writ petitioner could not, be thrown out on the ground of delay and the learned single judge has very carefully examined this aspect of the matter and has rightly observed that the writ petition had not to be dismissed on the ground of delay as the writ petition was admitted after notice of motion and has remained pending for 11 long years and it would, thus, not be proper to throw away this writ petition on that ground and the matter was examined on merits.13. after appreciating the rival contentions of the parties on this matter, we are in respectful agreement with the learned single judge and hold that the writ petition could not be thrown out on the ground of delay and the matter having remained pending for such a long period of time, the petitioner was entitled to a hearing in the matter. we are further supported in our view by the authoritative pronouncement of the hon'ble supreme court rendered in ramchandra shanker deodhar and others v. the state of maharashtra and others : (1974)illj221sc para 9 and arun kumar chatterjee v. south eastern railway and others : (1985)illj532sc (para 6).14. continuing the reply to the submissions of the learned counsel for the appellants, learned counsel for the respondent no. 1 submits that the plea raised by the learned counsel that this court has no power to interfere with the recommendations of the dpc is misconceived. this matter has been examined in depth by the learned single judge and it has been held that this court can look into the recommendations of the dpc in order to satisfy itself whether the recommendations are not perverse and further this can be examined whether the committee has considered the matter objectively or not. a finding has, thus been recorded that the appellants acted in an arbitrary manner in ignoring the petitioner respondent no. 1. it was found on appreciation of the material and from the dpc proceedings that the respondent no. 1 was having an excellent record of service and was wrongly superseded once in the year 1970 and again in the year 1971. it has also been held that the candidature of the petitioner was not rightly considered and inspite of the directions having been handed down from time to time the record was not made available to the court and the service record when the respondent no. 1 was in the army is stated to have been destroyed. the learned single judge, thus, proceeded to look into the available record on the strength of which it has been found that the petitioner had earned 'above average' remarks continuously for 4 consecutive years right from 1967-68 to 1970-71 which goes to show that he consistently having 'above average' service record was higher in merit in comparison to those who have earned only 'average' remarks and the dpc when it met in the year 1971 promoted several officers ignoring the candidature of the petitioner. it has been found as a matter of fact that the officers junior to the petitioner who had on 'average' acr have been selected and officers who had 'above average' remarks for 3 to 4 years like that of the petitioner have also been selected and although the petitioner had consistently been keeping 'above average' remarks for continuously 4 years has been superseded. it would be quite useful at this stage here to refer to the comperative merits in so far as the relevant seniority of the petitioner on one hand and respondents no. 3 to 38 on the other hand has been minutely examined by the learned single judge from the dpc proceedings starting from page 10 of the order to page 16.15. on a careful perusal of these proceedings, which have been made available to us by the learned counsel for the appellants we are also of the opinion that there was nothing adverse to the petitioner. no adverse communication was ever sent to him and officers with one average remark were selected. the petitioner was, thus, illegally denied this benefit and should have been selected on the same principles.16. so far as the record of army service is concerned, which is now stated to have been destroyed pertained to the period 1964-65, 1965-66. this is an admitted case that the petitioner was promoted from the post of iind lieutenant to that of captain rank in the year 1966 which by itself would show that there was nothing against the petitioner, otherwise he would not have been posted on the next higher post.17. in so far as the continuous service record of the petitioner in the border security force for six years he has been getting consistently 'above average' remarks for all the four years and these are in close proximity with the years of promotion i.e. 1970 and 1971 and he was entitled to be treated in the same manner and should have been considered for the purposes of promotion to the post of deputy commandant on the basis of such material which was advantageous to him.18. it has been noticed by the learned single judge that according to the appellants the army record was destroyed in the year 1979 and 1982. this writ petition was admitted in the year 1979 after notice of motion and in the presence of the parties. a duty was, thus, cast on the appellants to get the relevant record from the army authorities immediately after service of the notice of the writ petition and atleast the record that was destroyed in the year 1982 could have been preserved and produced before the court. we are, thus, of the confirmed opinion that the petitioner's case was not dealt with fairly.19. the case law cited by the learned counsel for the appellants is also not applicable to the present case, as the matter has not been examined as a court of appeal. the matter has been examined on the basis of the record which, was considered by the dpc itself and we can certainly find out whether the conclusions arrived at by the dpc suffered from errors apparent on the face of the record or not. the criteria was merit cum seniority and persons junior to the petitioner having been promoted and selected, the petitioner should not have been discriminated against.20. the third contention of the learned counsel for the appellants too has no force in the peculiar situation of this case. it is after the scrutiny of the record of the dpc that a conclusion has been reached by the learned single judge that the petitioner respondent no. 1 was wrongly denied his due promotion at the due time and, thus, a positive direction had to be given asking the appellants to promote the petitioner. the non- production of the record from the side of the appellants despite the repeated directions of this court also leads to adverse inference against them. a categoric observation has been made from the scrutiny of the record that the action of the appellants was not only arbitrary but it also suffered from malice in law. the argument of the learned counsel for the appellants that the petitioner might have been superseded on the basis of the record of his service during which he was in the army service also does not sound well. there is no such mention in the proceedings of the dpc as observed by the learned single judge. the proceedings of the dpc do not make out any case nor disclose any basic reason on the basis of which the petitioner respondent no. 1 was superseded by several officers who were junior to him in the year 1970. nor there is any such indication available in the proceedings that were held on 17.7.1971. it is also not found that the dpc took into account the service record of the officers for the period they had served in the army. the proceedings indicate that according to the promotion rules an assistant commandant with six years of service was eligible for promotion as deputy commandant. this too is an admitted fact as recorded in the dpc proceedings that only such officers were appointed and absorbed as assistant commandant in the border security force, who had a high average record in the army and who did well during the interview. there were no interviews held for the post of deputy commandants. it, thus, leads to a conclusion that the record of the petitioner even in the army was a high average record otherwise he would not have been absorbed as assistant commandant in the border security force. there is nothing to indicate in the proceedings the basis for supersession of the petitioner respondent no. 1. reference may usefully be made to the observations made in union of india v. m.l capoor and others : (1973)iillj504sc wherein it is said that the proceedings of the selection committee should reveal a rational nexus between the facts considered and the conclusions reached. this is what we find conspicuously missing from the proceedings of the dpc. it is not enough to soy that the preference should be given because certain kind of process was gone through by the selection committee. it was not enough to say that best officers who were found fit have been selected for promotion as deputy commandants. the proceedings are, thus, not in conformity with the requirements of articles 14 and 16 of the constitution of india.21. thus, we are of the considered opinion that the matter has not been considered objectively and on rational basis. the petitioner was, thus, entitled to be promoted as deputy commandant in the year 1970 which is the date when officers junior to him have been promoted, as deputy commandants.22. no other point has been stressed.23. there is, thus, no scope for interference in this appeal and we do not find any illegality in the approach of the learned single judge, rather we are in full agreement with the conclusions reached. the appeal is, thus, devoid of merit and is consequently dismissed with no orders as to costs.