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SUPREME COURT OF INDIA
Arun Mishra, Navin Sinha, JJ.
Union of India and Another – Appellants
Versus
K.P.S. Raghuvanshi and Others – Respondents
Civil Appeal Nos. 13776, 13777, 13778 of 2015, I.A. No. 1 of 2015 (For modification) in Special Leave Petition (C) No. 30380 of 2014
Decided On : 11-05-2017
DPC - Promotion Dispute - CGO 02/05, CGO 02/09, CGO 04/05 - The court held that the DPC was required to be held as per CGO 02/09 and it was rightly so held. The High Court has also held that the vacancies for the 4 posts of Inspector General had occurred prior to the amendment of CGO No. 02/05 and the said posts were created and sanctioned on 16.02.2009. The High Court has opined that promotions were made without due deliberations with the concerned Ministry. The High Court has opined that as three months had not been completed by Respondent No. 2, the DGICG was not competent to write the ACR and to act as Reviewing officer. The prayer, which was made to write ACRs by new incumbent, was categorically refused by MoD vide communication dated 23.04.2009. The High Court also observed that the respondent has succeeded in establishing his case of selective change of ACR criteria to manipulate merit by the appellants, smacking of arbitrariness. The respondent has also succeeded in establishing that the review of his ACR for the period of 2008-2009 by the then DGICG, was in violation of Para 27(e) and Para 54 of CGO 04/05, which resulted in his being punished twice for the same incident. The vacancies which had occurred for the post of IG on 06.02.2009 were governed by the un-amended Rules, i.e. CGO 02/05 read with Rule 7 (3) of the Coast Guard (Seniority and Promotion) Rules, 1987, as amended in 2004. The High Court held that the ACR review of the respondent by the appellant, in violation of para 54 of CGO 04/05 read with para 55 (FVD), para 38 and para 27(e) of the said CGO, was both illegal and arbitrary and deserves to be ignored. The High Court has ordered promotion to the rank of IG shall be made on "Relative Merit Based Selection" within the eligible batch of officers. Review DPC should be held on the basis of ACR criteria as per CGO 02/05. If Respondent No. 1 is selected for promotion, he shall be promoted on the same date, when three other persons were promoted, as per recommendation of DPC dated 23.07.2009. The respondent would be entitled to all notional benefits including security. It would be open to the Department to create supernumerary post to accommodate the respondent.
Fact of the Case:
The respondent, DIG K.P.S. Raghuvanshi, filed a Writ Petition before the High Court of Delhi challenging the recommendations of the Departmental Promotion Committee (DPC) for promotion to the rank of Inspector General, held on 23.07.2009, as illegal, arbitrary and conducted on the basis of selection policy, which was framed a month prior to the holding of the Selection Board. The respondent also questioned the action of the Director General (Coast Guard) in endorsing the Annual Confidential Report (ACR) of Respondent No. 1, for the period from 01.02.2008 to 31.01.2009, in spite of not having observed the performance of the incumbent for a mandatory period of 90 days, as contained in the policy in Coast Guard Order (CGO) No. 04/2005. The respondent claimed that the DPC was conducted erroneously with selective change of ACR criteria to manipulate merit. The ACR of respondent was reviewed for the period 2008 to 2009 by Vice Admiral Anil Chopra, the then Director General, despite not having observed the officer for a mandatory period of 90 days, as prescribed in para 54 of CGO No. 04/05.
Finding of the Court:
The High Court held that the DPC was required to be held as per CGO 02/09 and it was rightly so held. The High Court also held that the vacancies for the 4 posts of Inspector General had occurred prior to the amendment of CGO No. 02/05 and the said posts were created and sanctioned on 16.02.2009. The High Court has opined that promotions were made without due deliberations with the concerned Ministry. The High Court has opined that as three months had not been completed by Respondent No. 2, the DGICG was not competent to write the ACR and to act as Reviewing officer. The prayer, which was made to write ACRs by new incumbent, was categorically refused by MoD vide communication dated 23.04.2009. The High Court also observed that the respondent has succeeded in establishing his case of selective change of ACR criteria to manipulate merit by the appellants, smacking of arbitrariness. The respondent has also succeeded in establishing that the review of his ACR for the period of 2008-2009 by the then DGICG, was in violation of Para 27(e) and Para 54 of CGO 04/05, which resulted in his being punished twice for the same incident. The vacancies which had occurred for the post of IG on 06.02.2009 were governed by the un-amended Rules, i.e. CGO 02/05 read with Rule 7 (3) of the Coast Guard (Seniority and Promotion) Rules, 1987, as amended in 2004. The High Court held that the ACR review of the respondent by the appellant, in violation of para 54 of CGO 04/05 read with para 55 (FVD), para 38 and para 27(e) of the said CGO, was both illegal and arbitrary and deserves to be ignored. The High Court has ordered promotion to the rank of IG shall be made on "Relative Merit Based Selection" within the eligible batch of officers. Review DPC should be held on the basis of ACR criteria as per CGO 02/05. If Respondent No. 1 is selected for promotion, he shall be promoted on the same date, when three other persons were promoted, as per recommendation of DPC dated 23.07.2009. The respondent would be entitled to all notional benefits including security. It would be open to the Department to create supernumerary post to accommodate the respondent.
Issues: The issues in the case revolved around the legality and arbitrariness of the Departmental Promotion Committee (DPC) for promotion to the rank of Inspector General, the endorsement of the Annual Confidential Report (ACR) of the respondent, and the selective change of ACR criteria to manipulate merit. The court also considered the violation of the Coast Guard Order (CGO) No. 04/05 and the creation and sanctioning of posts for the rank of Inspector General.
Ratio Decidendi: The court held that the DPC was required to be held as per CGO 02/09 and it was rightly so held. The High Court also held that the vacancies for the 4 posts of Inspector General had occurred prior to the amendment of CGO No. 02/05 and the said posts were created and sanctioned on 16.02.2009. The High Court has opined that promotions were made without due deliberations with the concerned Ministry. The High Court has opined that as three months had not been completed by Respondent No. 2, the DGICG was not competent to write the ACR and to act as Reviewing officer. The prayer, which was made to write ACRs by new incumbent, was categorically refused by MoD vide communication dated 23.04.2009. The High Court also observed that the respondent has succeeded in establishing his case of selective change of ACR criteria to manipulate merit by the appellants, smacking of arbitrariness. The respondent has also succeeded in establishing that the review of his ACR for the period of 2008-2009 by the then DGICG, was in violation of Para 27(e) and Para 54 of CGO 04/05, which resulted in his being punished twice for the same incident. The vacancies which had occurred for the post of IG on 06.02.2009 were governed by the un-amended Rules, i.e. CGO 02/05 read with Rule 7 (3) of the Coast Guard (Seniority and Promotion) Rules, 1987, as amended in 2004. The High Court held that the ACR review of the respondent by the appellant, in violation of para 54 of CGO 04/05 read with para 55 (FVD), para 38 and para 27(e) of the said CGO, was both illegal and arbitrary and deserves to be ignored. The High Court has ordered promotion to the rank of IG shall be made on "Relative Merit Based Selection" within the eligible batch of officers. Review DPC should be held on the basis of ACR criteria as per CGO 02/05. If Respondent No. 1 is selected for promotion, he shall be promoted on the same date, when three other persons were promoted, as per recommendation of DPC dated 23.07.2009. The respondent would be entitled to all notional benefits including security. It would be open to the Department to create supernumerary post to accommodate the respondent.
Final Decision: The court allowed the appeals of Union of India and dismissed the appeal preferred by DIG K.P.S. Raghuvanshi. The court set aside the impugned order passed by the High Court and clarified that aspersions made by Respondent No. 1 against the higher officers, shall not be taken into consideration and though, it appears that his performance was good but he had not been found fit on the basis of comparative merit. As and when occasion arises, the appellants shall consider the case of Respondent No. 1 sympathetically, in accordance with law, for further promotion to the post of IG. He shall not be victimized for filing the petition and be given his due, as per merits. All pending applications were disposed of and no costs were awarded.
ORDER :
1. The Union of India and Another, has preferred the appeals, aggrieved by the judgment and order dated 4th September, 2014, passed by the High Court of Delhi and also dismissal of the review application, vide order dated 19.12.2014.
2. A Writ Petition (C) No. 10726/2009 was filed on 06.08.2009 before the High Court of Delhi by DIG K.P.S. Raghuvanshi-Respondent No. 1, posted in the Coast Guard services. He had questioned the recommendations of the Departmental Promotion Committee (in short DPC) for promotion to the rank of Inspector General, held on 23.07.2009, as illegal, arbitrary and conducted on the basis of selection policy, which was framed a month prior to the holding of the Selection Board. The respondent had also questioned the action of the Director General (Coast Guard) in endorsing the Annual Confidential Report (in short ACR) of Respondent No. 1, for the period from 01.02.2008 to 31.01.2009, in spite of not having observed the performance of the incumbent for a mandatory period of 90 days, as contained in the policy in Coast Guard Order (in short CGO) No. 04/2005. Prayer was also made to call for the ACRs for the aforesaid period and to quash the entry made for the year 2008-2009. Prayer was also made to quash CGO No. 02/09.
3. The facts in short, indicate that K.P.S. Raghuvanshi joined the Indian Coast Guard services in January, 1984. He claimed to have rendered unblemished service and had an outstanding career, as apparent from the fact that he was promoted to the various ranks as per the ACR gradings. The Respondent No. 1 was promoted to the rank of DIG in 2005 and was holding the rank of Deputy Inspector General (DIG for short) at the relevant time when he was due for consideration for promotion to the post of Inspector General (IG for short). There was creation of four posts in the rank of IG.
4. It was averred that Respondent No. 1 was placed first in the merit list during the DPC held in the year 2005 for promotion to the rank of DIG. He is an alumni of Naval War College (USA). He was the first Coast Guard Officer to be selected for this course, based on outstanding performance and his position vis-a-vis other officers in the panel. The respondent was awarded the "Tatrakshak Medal" by the President of India on 15th August, 2007 for meritorious service and was also commended on two separate occasions by the Director for his exceptional work. In May, 2006, he was the first in merit among DIGs and was shortlisted for National Command College (NCC) Korea. Subsequently, in September, 2008 he once again stood first in merit amongst the 5th Batch officers for National Defence College (NDC) Course, New Delhi.
5. It was further averred that on 16.02.2009, in the wake of 26.11.2008 attack on Mumbai, the Cabinet Committee on Security (CCS for short) approved one post of Additional Director General, three posts of IG (GD) and one post of IG (Tech) and communicated the same to the Coast Guard Headquarters through the letter of Ministry of Defence dated 24.02.2009. Since new posts were sanctioned, holding of DPC was necessitated to fill the posts. The relevant selection year commenced from 1st April to 31st March of the following year. A proposal dated 01.04.2009 for conducting DPC on 18.04.2009 for one post of IG (GD) with restricted zone of consideration i.e. 4th batch of General Duty, was forwarded to the Ministry of Defence (MoD for short). The said proposal was rejected by the MoD at the level of Director (Navy-II) on 02.04.2009. Again on 13.04.2009, a proposal for composition of DPC, reiterating the earlier proposal of 01.04.2009, along with two amendments to CGO No. 02/2005 was forwarded to CGHQ to MoD. The MoD rejected the proposal again on 16.04.2009, but this time, at the level of Defence Secretary. The MoD once again directed CGHQ to follow the CGO No. 02/05 and to conduct the DPC expeditiously. Follo
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