Naumi Singh Yadav Vs. Union of India and ors. - Court Judgment

Excerpt:
- 1. heard mr. n. kerani singh, ld. sr. advocate assisted by mr. umakanta appearing on behalf of the petitioner and also mr. c. kamal, ld. sr. cgsc representing the union of india and others.2. the present case in hand has a chequered history. this is for the second time that the petitioner has to approach this court for redressal of his grievance as regards to his promotion to the higher post. the petitioner is a commandant crpf and has been functioning in the said capacity in 31 bn crpf at pangei. his only grievance is that he has not been considered for his next promotion as additional dy. i.g. by calling the meet of the dpc with retrospective effect because of the down grading in the acr so reflected was not communicated to him at the apportion moment prior to holding of the dpc meeting from april, 1997 onwards and further more reason so assigned by the authority concerned for giving such adverse remark reflected by comparison as claimed so at randomly put by the reviewing and accepting office when the reporting officer had not reflected any short comment against the same. it is also the case of the petitioner that for the adverse remark so put for the period from 14.1996 to 31.3.1997 that has alreadybeen expunged by the director general, crpf vide memo. no. rx-iii-10-97-cr-cell dated 5.5.1999 and as such in keeping with that view of the said expunction, the petitioner is entitled for consideration of his promotion with regard to the dpc convened on 28.4.1997.3. it is stated that since 1967 the petitioner has been serving in the establishment of crpf as dsp commandant, and thereafter as asstt. commandant from 21.5.1975 and from 3.1.1992 he has been working as commandant selection grade. in the gradation list of commandant of selection grade prepared on 1.1.1995, the petitioner was placed at si. no. 46. thereafter as per gradation list of the selection grade commandant released on 1.11.1997, the petitioner was placed at si. no. 5. thereafter two disciplinary enquiries were initiated against the petitioner - one is regarding his leave without permission in between the period 1.7.1996 to 29.7.1996 and the other is for his administrative lapses relating to an incident dated 12.6.1996 in which one inspector lost his life. be that as it may, there was an adverse remark against the acr of the petitioner for the period from 1.4.1996 to 31.3.1997 which was later on expunged on 5.5.1999 as mentioned above. ultimately the petitioner was denied his legitimate promotion to the post of addl. dig. with the said grievance the petitioner - approached this court in c.r. no. 652 of 1998 which was disposed of by this court by a judgment dated 24.6.1999 upon hearing the ld. counsel of both the parties. in the said judgment it was held as follows:'5. after hearing both the sides' lawyers, taking into consideration the facts discussed above, with regard to the enquiry so held for his being on leave as alleged without permission from 1.7.1996 to 29.7.1997 and for his alleged administrative lapses for killing of the inspector by a constable on 12.6.1996. i find by going through the order so passed in this regard on 6.2.1998 and 27.2.1998 respectively, in course of enquiry, nothing wrong on his part was so found though as per the complaint (annexure-a/6) when the representation on his behalf for such adverse remarks was so filed vide annexure-a/7. by the order of the director general of police dated 5.5.1999 the same remarks got expunged. as regards the adverse remarks got expunged which covers up the period 1.4.1996 to 31.3.1997. by looking into the acr, it transpires that this officer was found meritorious and very good officer who was also given police medals for his meritorious services. but, sometime in 1994 on general assessment he was found to be a mediocre and average officer without detailing the reason for putting such down grading remark and mr. komol singh has alsofailed as to show that the same was communicated to the employee at the opportune moment. in the dpc so held in 1997 on 28.4.1997, in 1998 on 6.1.1998, 9.2.1998, and 12.2.1999 not considering his case for promotion has also not been controverted by the other side. the reported case so cited air 1996 sc 1661(u.p. jal nigam and ors v. prabhat chandra jain and ors (supra) is also looked into and the apex court has held that if the down grading reflected by comparison is not communicated at the opportune moment to the employee and when no such reason is assigned in the personal file for such down grading in such circumstances the down grading remark for the particular period will not sustain. by advancing this argument on behalf of the petitioner i find that particularly in the back ground of this reported case, the same has not much of substance. in the instant case through the petitioner's acr shows outstanding remark all through but for certain period and because of the other side has failed to show that the entries showing the reason for giving such remark made in the personal file of the employee also failing to show that such adverse remark was communicated to the employee by way of advice at the right moment. i hold the view that they are not liable to be sustained. for the period 1.4.1996 to 31.3.1997 complaints with remarks as detailed in annexure-a/6 by filing representation (annexure-a/7) have already been expunged by the director general vide his memo dated. 5.5.1999 as detailed above. in that background the modalities for implementation of promotion to the petitioner and the methodology so adopted for not considering his case for promotion to the next higher rank lack transparency.'4. after making the above observation, this court directed the respondents to consider the case of the petitioner for promotion reckoning the services rendered not taking into consideration, the down grading remarks so given in the acr further period detailed above. the respondents were further directed to meet the dpc at an early date preferably within three months, for consideration of the case of promotion of the petitioner after making re-assessment with open mind afresh. mr. n. kerani singh, learned senior counsel for the petitioner has forcefully argues that in spite of the said above mentioned direction and observations the respondents has not yet considered his case for promotion. being frustrated by such situation, the petitioner has no alternative but to approach this court for the second time. it is also stated that in the meantime the petitioner has preferred a contempt case being contempt case no. 36 of 1999 and the same is pending for disposal in this court. on the other hand mr. c. komal, ld. cgsc, while refuting the said contention, has drawn my attention to paragraphs-6 and 9 of theaffidavit in-opposition filed by the respondents. for the sake of convenience the contentions made in the said paragraphs-6 and 9 are reproduced as hereunder:'6. that, with regard to para no. 5 of the writ petition, it is submitted that dpc were convened on 28.4.1997, 6.1.1998 and 9.2.1998 for promotion of commandants to the rank of addl. digp. eligible officers including the petitioner were considered by the above dpcs. the bench mark grading for promotion in the rank of adigp is 'very good'. in the dpc convened on 28.4.1997. 6.1.1998 and 9.2.1998 the petitioner was graded as 'good', 'average' and 'unfit' respectively and therefore he was not brought on panel for promotion to the rank of adigp. other officers including juniors to the petitioner, were found fit for promotion by the above dpcs and accordingly they were brought on panel and promoted. hence, no injustice was done to the petitioner by the respondents. me could not make the requisite grade due to his own records as the dpc has gradation in accordance with the rules and without mala fide. in fact, advancement of an officer's career cannot be regarded as a matter of course, but it should be earned by dint of hard work, good conduct and result oriented performance as reflected in the acrs, which are the basic inputs on the basis of which, assessment is to be made by each dpc. 9. that, with regard to para no. 8 of the writ petition, it is submitted that as a result of expunction of adverse remarks in acr for the year 1996-97 and in compliance to court judgment dated 24.6.1999 with reference to the dpcs dated 28.4.1997. 6.1.1998, 9.2.1998 and 12.2.1999, which re-assessed the record of service of the petitioner for promotion to the rank of adigp with reference to above dpcs afresh by reckoning the service rendered by the petitioner and not taking into consideration the down grading remark so given in the acrs for relevant period. the dpc has graded the petitioner as under: (i) 'good' with reference to dpc of 28.4.1997. (ii) 'good' with reference to dpc of 6.1.1998, (iii) 'good' with reference to dpc of 9.2.1998. (iv) 'good' with reference to dpc of 12.2.1999. as the prescribed bench mark for promotion to the rank of adigp is 'very good' the petitioner could not be brought on panel for promotion to the rank of adigp with reference to any of the dpcs mentioned above.' 5. paraphrasing the contention made in the above paragraphs-6 and 9, it appears that the case of the petitioner for promotion was re-assessed in view of the result of expansion of adverse remarks in acr for the year 1996-97 and in compliance with the courts judgment dated 24.6.1999 with reference to the dpc dated 28.4.1997, 6.1.1998. 9.2.1998 and 12.2.1999, but, it can be safely said that in the said re-assessment the authority ignored the observation and direction of the judgment dated 24.6.1999.6. in the said early judgment, it was clearly observed that since the adverse remarks in the acr for the period from 1.4.1996 to 31.3.1997 got expunged by an order of the director general of police on 5.5.1999, non-consideration of the case of promotion of the petitioner to his next higher rank lacks transparency. further, it was held, after looking into the acrs, that the petitioner was found to be meritorious and very good officer who was given police medals for his meritorious services. but only sometime in 1994 in general assessment he was found mediocre and average officer without detailing reason for putting such down grading remarks to which the ld. cgsc failed to show that the said reason was communicated to the employee at opportune moment.7. mr. n. kerani singh, ld. sr. counsel has also averred that since the petitioner's adverse remarks for the period from 1.4.1996 to 31.3.1997 was expunged by the competent authority on 5.5.1999, his case must be considered by the dpc held as on 28.4.1997 not on subsequent date of dpc as submitted by the ld. cgsc. further, he has argued that so far down grading remarks in 1994 is concerned the same not being communicated to him, that cannot be sustained in the light of the judgment of this court (c.r. 65 of 1998) and also the decision of the supreme court in u.p. jal nigam & ors v. prabhat chandra jain and ors (reported in 1996 sc 1661) the said decision of u.p. jal nigam's case (supra) has already got elaborate discussion in the judgment of this court in c.r. no. 652/98, filed by the petitioner.8. the learned sr. counsel for the petitioner has also placed reliance another authority of the apex court reported in (1991) 1 scc241 (u.p. jal nigam v. s.c. atri & anr.). in that case the apex court held as follows:'4. on the date of which the respondent was considered along with other executive engineers for promotion to the post of superintending engineer, there was an adverse entry for the year,1974-75 in his character roll on account of which he was not promoted although a representation against the adverse entry was pending. this adverse entry was subsequently expunged as his representation was allowed. the effect of the order allowing the expunction of the adverse entry would be that on the date on which he was considered for promotion to the post of superintending engineer, there existed no adverse entry in his character roll. subsequently, it cannot be said that the respondent was not promoted on account of his unsuitability. that being so, the high court was justified in ordering that the respondent on being promoted, though subsequently, shall be entitled to reckon his seniority with effect from the date on which a person junior to him was promoted to the post of superintending engineer. we are also informed that the respondent has since retired from service. we do not, therefore, see any reason to interfere in the matter. the appeal is dismissed. no order as to costs.'9. it is submitted that as the petitioner's adverse remarks for the period from 1.4.1996 to 31.3.1997 has already been expunged on 5.5.1999, his case for promotion to the post of addl. dig must be considered on that date, i.e. 28.4.1997 when dpc convened for promotion to the post of adig as if there existed no adverse remarks in his acrs for the year, 1996 to 1997 in the light of the decision of the u.p. jal nigam case (supra) of 1999. the learned counsel of the petitioner prays for consideration of promotion of the petitioner and also allow him the seniority from the date of his juniors were promoted.i find force in the submission of the learned sr. counsel for the petitioner. it is really unfortunate as to why the authority, in spite of the order of this court, has not considered the case of the petitioner for promotion as per the dpc held on 28.4.1997 on which date he was entitled for consideration of his case. more so, the respondents, union of india and ors, have not preferred any writ appeal against the said judgment and order dated 24.6.1999 passed by this court in w.p. (c) no. 657/98. the simple case of the petitioner is that since his adverse remarks for the period from 1.4.1996 to 31.3.1997 has already been expunged on 5.5.1999 by the competent authority, he has a right for consideration of promotion on the convening date of dpc i.e. on 28.4.1997, a denial of the same has highly prejudiced him gravely affecting his fundamental and constitutional rights.10. i have given thoughtful consideration to the entire facts and circumstances of the case and also meticulously perused thematerials available on records, and upon hearing learned counsel of both the parties at length, i am of the opinion that this writ petition deserves to be allowed in the light of the decision of the apex court in u.p. jal nigam's case of 1996 (supra) and u.p. jal nigam case of 1999 (supra). accordingly, i hereby direct the respondents to consider the case of the petitioner as per the dpc held on 28,4.1997 for promotion to the post of addl. dig, and upon consideration, if the petitioner is found fit for promotion under the law his seniority may be maintained from the date when his juniors were promoted. the entire process of such consideration by convening dpc should be completed within a period of 2 (two) months from the date of receipt of this judgment and order.11. for the reasons, observations and directions made above, this writ petition is allowed. parties are directed to bear their own costs.