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SUPREME COURT OF INDIA
SUDHANSU JYOTI MUKHOPADHAYA, KURIAN JOSEPH, JJ.
Union of India & Ors. – Appellants
Vs.
S.P. Nayyar – Respondent
[Civil Appeal No. 5852 of 2014 arising out of SLP(C) No.29792 of 2013]
Decided On : 30-06-2014
(b) Service Law – Promotion – BSF – Merit-cum-suitability – Selection committee adjudging respondent as ‘good’ whereas bench mark was ‘very good’ – Selection Committee adjudging on basis of ACR of all candidates in zone of consideration – High Court assessing merit of respondent in absence of ACR of other candidates – Not permissible. (Para 13)
(c) Administration of justice – Bias and mala fide – Chair person of selection committee assessing respondent as ‘good’ instead of the bench mark of ‘very good’ – No ground to hold bias – Even if chair person is biased, it cannot be held that all members were biased. (Para 14, 15)
Facts of the Court:
The respondent -S.P. Nayyar joined the Border Security Force (BSF) as an Assistant Commandant(Technical) in 1971 and was promoted as Deputy Commandant in the year 1981. While in service, the respondent was issued Director-General's displeasure on 27th March, 1984 and 25th February, 1998 for not observing laid down procedure in disposal of condemned vehicles and for irregularities in fabrication of recovery vehicles, respectively.
The respondent became Commandant with effect from 1st October, 1997. On 25th January, 2000, the case of the respondent was considered for his promotion by selection to the Rank of Addl. DIG by the DPC constituted for such purpose. After consideration, the name of respondent, having not found fit, was not recommended by the DPC.
The respondent filed Writ Petition which was allowed.
Finding of the court:
Impugned judgment is not sustainable.
Result: Appeal allowed.
JUDGMENT
SUDHANSU JYOTI MUKHOPADHAYA, J
1. Leave granted.
2. This appeal has been preferred by the appellants against the order dated 21st August, 2012 passed by the Division Bench of the High Court of Delhi, New Delhi in Writ Petition (Civil) No. 3004/2000. By the impugned judgment, the Division Bench of the High Court after going through the relevant record including ACRs of respondent- S.P. Nayyar, opined that due to personal bias of his superior officer, E.N. Ram Mohan, the respondent- S.P. Nayyar was targeted and was wrongly superseded in the matter of departmental promotion and hence allowed the writ petition filed by the respondent directing the appellants to promote the respondent as Additional DIG with back wages with the following observations:
"13. Under the circumstances, we allow the writ petition and direct the petitioner to be promoted as Addl. DIG. We are directing petitioner to be promoted and not a review DPC to be held, for the reason, learned counsel for the respondent does not dispute that the bench mark to be achieved was 3 Very Good grading in the ACR in the preceding 5 years and that the petitioner achieved the bench mark. Admittedly, there are no adverse entries against the petitioner. The petitioner had not suffered any penalty during the said 5 years period.
14. Needless to state, petitioner's promotion as an Addl. DIG would be with effect from the date person immediately junior to the petitioner was promoted. We note that as an Addl. DIG, the petitioner would have superannuated on 31st July, 2007. We direct petitioner to be paid wages for the said period, notwithstanding the petitioner not having rendered actual services on account of the apparent mala fide of the DG BSF. Needless to state, pension of the petitioner would be re-fixed in the grade applicable and paid accordingly. All consequential benefits will also flow. The petitioner is also held entitled to a sum of Rs.11,000/- to be paid by the respondents towards costs. Necessary payment be made to the petitioner within 12 weeks from today."
3. The factual matrix of the case is as follows:- The respondent -S.P. Nayyar joined the Border Security Force (BSF) as an Assistant Commandant(Technical) in 1971 and was promoted as Deputy Commandant in the year 1981. While in service, the respondent was issued Director-General's displeasure on 27th March, 1984 and 25th February, 1998 for not observing laid down procedure in disposal of condemned vehicles and for irregularities in fabrication of recovery vehicles, respectively.
4. According to the appellants, as per paragraph 6.1.2. of the guidelines on the Departmental Promotion Committees and related matters issued vide DOP & T OM dated 10.4.1989, Departmental Promotion Committees (hereinafter referred to as 'DPCs' for short) have been empowered to enjoy full discretion to devise their own method and procedure for objective assessment of the suitability of candidates who are to be considered.
5. The respondent was promoted as Second-in-command in 1990 and became Commandant (Ordinary Grade) on 9th February, 1993. Thereafter, the respondent became Commandant (as Ordinary Grade and Selection Grade got merged) with effect from 1st October, 1997. On 25th January, 2000, the case of the respondent was considered for his promotion by selection to the Rank of Addl. DIG by the DPC constituted for such purpose. After consideration, the name of respondent, having not found fit, was not recommended by the DPC.
6. Being aggrieved, the respondent filed Writ Petition (Civil) No. 3004 of 2000 before Delhi High Court challanging the decision of the said DPC. He alleged that he fulfilled the criteria of having three 'Very Good" out of five previous ACRs, yet persons junior to him were selected. He imputed this to be malafide act of Appellant No.3 - E.N. Ram Mohan. The appellants in their counter affidavit denied the said allegations and brought to the notice of the High Court the service record, decision taken by DPC and reasons fo
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