JUDGMENT
D.P. Buch, J.
1. The present petition has been filed under Article 226 of the Constitution
of India read with Articles 14 and 16 thereof, challenging the action of the respondents
in not promoting the petitioner from the post of Inspector to the post of
Assistant Commandant in Border Security Force.
2. The petitioner claims that he was working as Police Inspector in Border
Security Force since 20.11.1980 and therefore, he was eligible for promotion to
the post of Assistant Commandant. That by a wireless message, 66 Inspectors
were promoted to the post of Assistant Commandant w.e.f. 10.2.1989. That out of
these, 35 Inspectors are junior to the petitioner, that at the time when the
junior Inspectors were promoted to the post of Assistant Commandant, the
petitioner was not promoted to the said post. That against the said
supersession, the petitioner has made representation to the first respondent on
22.2.1989 as per Annexure ‘C’. That his representation was rejected by the
respondent by letter dated 29.5.1989, copy of which has been placed at Annexure
‘B’.
3. The petitioner claims that promotion from the post of Inspector to the
post of Assistant Commandant has to be made on the basis of merit having due
regard to seniority as per rules of the department. That it would mean that
seniority has to play a predominant part and the criterion for promotion would
be seniority-cum-merit and in that case the petitioner could be superseded only
if he was found positively unfit for promotion. That there was no material
before the departmental committee for finding the petitioner positively unfit
for the said promotion and the supersession is liable to be set aside. That the
Committee had applied the criterion of merits only, which criterion was meant
for the higher posts of Deputy Inspector General and above as per the rules
applicable to the petitioner. That therefore, incorrect criterion has been
applied in the present case. Hence supersession is liable to be set aside, that
the petitioner would even satisfy the criterion of pure merits apart from
merits having due regard to seniority. It is stated that no adverse remarks
were even communicated to the petitioner which would mean that all his
confidential records were good and above. The petitioner was never imposed any
penalty and not even warning or censure was imposed. That on the other hand,
the petitioner had received merit certificates in 82-83 onwards and even cash
awards were also awarded to the petitioner as stated in para 8 of the petition.
The petitioner further contends that the Annual Confidential Report for the
year 1982, 1983 and 1984 were not available with the Departmental Promotion
Committee. That the self-appraisal reports were required to be submitted by the
petitioner in 1987 but he could not do so. Therefore, the department did not
have any Annual Confidential Report for the aforesaid three years at the time
when the case of promotion of the petitioner was considered. Therefore, it is
apparent that the Departmental Committee did not consider the services of the
petitioner for the aforesaid three years i.e. 1982, 1983 and 1984. Therefore,
also the omission of name of the petitioner from the select list for the
promotion was illegal. The petitioner also contended that the persons junior to
the petitioner who have been promoted from 10.2.1989 did not possess
outstanding service records so as to supersede the petitioner and in fact some
of them had suffered penalties to their discredit. That the respondents may be
called upon to produce the service records of the petitioner as also those of
juniors promoted from 10.2.1989 before this Court. The petitioner has further
contended that the petitioner’s service record is good since no adverse remarks
have been communicated to him. That if the service record is good then the
petitioner would satisfy the test of even pure merit and hence he cannot be
superseded. The petitioner has, therefore, challenged his supersession and for
appropriate writ, order or direction quashing and setting aside the
supersession of the petitioner for the post of Assistant Commandant and for
direction to the respondents or any committee appointed by them to consider the
case of the petitioner for promotion to the post of Assistant Commandant in
proper perspective and/or promote him to the said post w.e.f. 10.2.1989 with
all consequential benefits.
4. When this Special Civil Application came up for admission Notice pending
admission was issued. Interim relief was also granted directing that the
promotions already made so far shall be subject to the result of the petition.
5. On receipt of notice, the respondents have submitted affidavit in reply
of Mr Surinder Singh, D.I.G., B.S.F. At page 25 in para 9 of the said affidavit
the respondents have contended that the promotion from the post of Inspector to
the post of Assistant Commandant is given on the basis of merits with due
regard to seniority which does not mean that the person who is senior though
unfit should be promoted i.e. the principle where the criterion is
seniority-cum-merits for the promotion and not merit-cum-seniority,
merit-cum-seniority – means if the junior is found more fit than the senior,
then the junior can be promoted bypassing the senior and in the present case
the criterion applicable is merits with due regard to seniority and the same
has been followed by the respondents. It has been further contended in the
affidavit that the Ministry of Home Affairs has issued notification dated
28.1.2985 clarifying the rule for promotion which has been produced on record.
However, it has been contended in the affidavit that the eligible persons are
classified into three categories, namely; outstanding, very good and good. That
the case of the petitioner was considered by the Departmental Promotion
Committee which met on 16.6.1988 and it was also reviewed by the said Committee
on 26.12.1988. That the petitioner was placed in ‘good’ category by the said
Committee after considering the confidential report and overall performance.
That the Departmental Promotion Committee has placed two Inspectors in
‘outstanding’ category and 18 Inspectors in ‘very good’ category followed by 8
Inspectors in ‘good category being SC/ST and the petitioner was included in
‘good category’ and, therefore, he was not within first 66 Inspectors who are
eligible for promotion and, therefore, he has been left out with other 112
Inspectors who have not been promoted at the relevant time. In view of the
aforesaid, it is submitted that the petitioner was not entitled to be promoted
at the relevant point of time and, there is no merit in the present petition
and hence it may be dismissed with costs.
6. Thereafter, the petitioner has filed affidavit-in-rejoinder at page 34.
There again he has re-agitated that the Annual Confidential Reports in respect
of the petitioner for the years 1982, 1983 and 1984 stating that they were not
available with the Departmental Promotion Committee and that the petitioner has
been treated to be ‘good’ and, therefore, considering his record, he should
have been included in the category of ‘outstanding’ or at any rate ‘very good’.
7. It may be clarified that the respondents have made it clear in their
affidavit that the Annual Confidential Reports for the year 1982, 1983 and 1984
were available with the Departmental Promotion Committee when the case of the
promotion in respect of the petitioner was considered by the said Committee.
8. On the aforesaid set of pleadings and affidavits, I have heard the
learned Advocates for the parties and have perused the papers. It has been
contended on behalf of the petitioner that the criteria for promotion from the
post of Inspector to the post of Assistant Commandant is seniority-cum-merit
and not merit-cum-seniority. For the said purpose, learned Advocate for the
petitioner has referred to the promotional rules placed at Annexure ‘A’. These
are the rules namely; Border Security Force (Seniority, Promotion and
Superannuation of Officers) Rules, 1978. The relevant rule is Rule 5. Sub-rule
(1) of Rule 5 reads as under:
“5. Promotion of Officers: (1) Promotion of
officers upto the rank of Commandant shall be made on the basis of merit having
due regard to seniority.”
9. On the strength of the aforesaid rule 5(1) of the said Rules, it has been
strenuously contended by the learned Advocate for the petitioner that the
criterion for promotion is seniority-cum-merits and not merit-cum-seniority. It
is not possible for me to agree with the said argument advanced on behalf of
the petitioner. The rule itself specifically says that the promotion shall be
made on the basis of merits having due regard to seniority. This would mean
that the department would first consider criterion of merit and while promoting
the person concerned, due regard will also be given to the seniority. This
would mean that while considering the cases of promotion, due weightage seems
to be given to the seniority but it would not mean that seniority will be the
sole criterion for considering the case of promotion. The rule itself shows
clearly that the promotion is being released only on the basis of merit with
due regard to the seniority which would mean that the case of
merit-cum-seniority and not seniority-cum-merit.
17.1. Learned Advocate for the petitioner also argued that the department
has wrongly applied the criteria of Rule 5(2) of the said rules as said above.
The said rule has not been applied while considering the case of the petitioner
in February, 1989. Rule 5(2) will come into play when the merit is solely considered.
Here the petitioner’s case is considered on merit-cum-seniority. That would be
governed by rule 5(1). Therefore, there is no illegality committed by the
department in bypassing the petitioner in February, 1989.
17.2. Learned Advocate for the petitioner has relied upon a decision in the
case of B G Joshi v. Gujarat Public Service Commission recorded in Special
Civil Application No.150 of 1985. This Court has recorded findings in the
aforesaid decision dated 2.7.1985 that when the petitioner was considered to be
‘good’, then he could not be dropped from the promotional list. In the said
case, the respondents were directed to promote the petitioner to the post of
Dy.Commissioner of Industries w.e.f. 2.11.1989, the date on which his junior
was promoted to that post. Here the factual aspects are different. Though the
petitioner was classified as ‘good’, there were other persons who have been
classified as ‘very good’ and ‘outstanding’ and the promotions were required to
be released on merit-cum-seniority. Therefore, while considering the merits,
the department promoted persons who have been classified as ‘outstanding’ and
‘very good’ before releasing the promotion in respect of the persons who have
been classified as ‘good’. Therefore, there are three categories. The persons
with better merits, have been promoted first which was not the case in the
aforesaid decision relied upon by the petitioner. Therefore, the principle
enunciated in that matter will not apply on facts to the case before this
Court.
10. Therefore, it is not possible for me to agree with the arguments
advanced by the learned Advocate for the petitioner that the criterion for
promotion is seniority-cum-merit. I am of the opinion that the rules make it
clear that the criterion for promotion in this case is merit-cum-seniority.
11. So far as the Annual Confidential Reports for the year 1982, 1983 and
1984 are concerned, it has been contended on behalf of the petitioner that
those reports were not available with the department when the case of promotion
of the petitioner was considered. On the other hand, there is positive
affidavit filed on behalf of the respondent that those Confidential Reports
were with the department when the case of the promotion of the petitioner was
considered. At this stage, it has been argued by the learned Advocate for the
petitioner that in the year 1987, the petitioner was asked to submit his
self-appraisal report and he could not do it for want of sufficient time and on
account of lapse of about three years that he did not have sufficient material
with him at that point of time to fill up the self-appraisal report and,
therefore, he could not submit it. Therefore, the department did not have the
Annual Confidential Report for the years 1982, 1983 and 1984 with them at the
time when the case of promotion of the petitioner was considered. Simply
because self-appraisal reports were not furnished by the petitioner to the
department, the department would not be debarred from preparing the Annual
Confidential Report. The only thing is that the ACR prepared by the department
would be without any self-appraisal report of the petitioner. When there is
positive evidence, it cannot be said that the said reports were not available
with the department when the case of the petitioner for promotion as aforesaid
was considered. Therefore, it is not possible for me to agree with the
arguments of the learned Advocate for the petitioner that the ACR for the years
1982, 1983 and 1984 in respect of the petitioner were not available with the department
and they were not considered by the department at the time when the case of
promotion of the petitioner was considered. In other words, it cannot be said
that the department bypassed the petitioner without considering the ACR of the
petitioner for the years 1982, 1983 and 1984.
12. As said above, it also cannot be said that the department applied wrong
criteria of meritorious service and did not apply the correct criterion of
seniority-cum-merits. As stated above, rules make it clear that the promotion
is to be released on merit-cum-seniority. Therefore, wrong criteria could not
be said to have been applied by the department while considering the case of
promotion in respect of the petitioner. It has further been contended that no
adverse remarks has been communicated to the petitioner and, therefore, it has
to be inferred that there is no adverse remarks in ACR in respect of the
petitioner. Even if there was no adverse remarks and it was not communicated to
the petitioner, the matter would not end there. Since the promotion is to be
released on the basis of merit-cum-seniority. Therefore, even if there is no
positive demerit, the department will consider merits of the eligible persons
and in doing so, if it is found that there are persons junior to the petitioner
in rank, but having more merits, then the department may place them above the
petitioner. Even if the petitioner may not have suffered any adverse remarks,
then also this argument will not come to the rescue of the petitioner. It has
been contended in para 10 of the petition that there are persons junior to the
petitioner who have been promoted did not possess outstanding service records
so as to supersede the petitioner and in fact some of them had penalties to
their discredit. There is no further material about the same. Moreover, their
names have not been mentioned in the petition. Therefore, it may not be
possible for the respondent to properly reply to the said contention of the
petitioner. It is not mentioned as to how the petitioner came to know about
this position that some juniors to the petitioner did not have good remarks.
Therefore, this sort of allegations cannot be taken into consideration by this
Court. It has also been contended in para 11 that the petitioners service
record is good since no adverse remarks has been communicated. So far as the
respondents are concerned they made it clear that the petitioner has been
classified as ‘good’. Therefore, there is no dispute with respect to the same.
However, the respondents have also made it clear that there are some persons
classified as ‘very good’ and some other persons have been classified as
‘outstanding’. When the promotions are released on merit-cum-seniority, persons
who have been classified as ‘outstanding’ have to be preferred over to the
persons who have been classified as ‘very good’ and persons who have been
classified as ‘very good’ have to be preferred over the persons who have been
categorised as ‘good’. When the petitioner has been categorised as ‘good’, he
has to stand below to those who have been classified as ‘outstanding’ and ‘very
good’. Therefore, even if the petitioner is right in saying that his record is
good, he will not be benefitted by saying so when there are certain persons who
may be otherwise junior to him, but who have been categorised as ‘outstanding’
and ‘very good’ and the petitioner has to stand below to those ‘outstanding’
and ‘very good’persons. It has been lastly contended that the petitioner
subsequently subsequently promoted in the same year in the month of October. So
he was promoted as Assistant Commandant in October, 1989. It has therefore,
been contended that he was promoted in the same year without any additional
material. But the promotion was granted on the same set of material which would
show that there was nothing against the petitioner, and he was promoted only on
receipt of notice of the Court. The fact appears to be that the petitioner was
categorised as ‘good’. The persons who have been categorised as outstanding
must have been promoted earlier followed by the persons categorised as ‘very
good’. After the issue of promotion orders inrespect of those ‘outstanding’ and
‘very good’ persons, the department must have taken cases of persons who have
been categorised as ‘good’ and it appears to have been released orders in
respect of such promotion and, therefore, even the petitioner was promoted in
October, 1989 on the same set of materials which would not be on account of the
receipt of the notice of the Court, but because of the fact that the petitioner’s
turn was there to be promoted on par with others who may have been categorised
as ‘good’.
13. On the aforesaid facts and circumstances of the case, it is very clear
that the department cannot be said to have applied a wrong criteria of
merit-cum-seniority. In fact the department cannot be said to have applied the
criteria of merits only. The department has clearly said that the criteria of
merit-cum-seniority has been applied and considered rules Annexure ‘A’ and
particularly sub-rule (1). Sub-rule (1) of Rule 5 makes ita clear that the
promotion has to be released on the strength of merits with due regard to
seniority which would mean merit-cum-seniority. The department has, therefore,
applied the correct criteria for releasing promotion. No illegality has,
therefore, been shown to have been committed by the department in bypassing the
petitioner while promoting his juniors who were otherwise persons classified as
‘outstanding’ and ‘very good’. Therefore, there is no substance in the present
petition and the department cannot be said to have committed anything illegal
or wrong.
In the aforesaid facts and circumstances of the case
and considering the rules for promotion, there is no merit in the present petition and it deserves to be dismissed. This Special Civil Application is accordingly ordered to be dismissed with costs of the respondent. Rule discharged. Interim relief stands vacated.