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High Court of Delhi
ANIL KUMAR & SUDERSHAN KUMAR MISRA
Sumer Singh
versus
Union of India & Another
W.P.(C) No. 558 of 1994
Decided on: 09-05-2012
WRIT - SERVICE - PROMOTION - CCS (CONDUCT) RULES, 1964 - RULE 13(4) AND 18(3) - DISPLEASURE - ADVERSE REMARKS - DPC - REVIEW DPC - RELIEF.
Fact of the Case:
The petitioner, who was not recommended for promotion to the post of Deputy Commandant from the post of Assistant Commandant by the DPCs held on 29th October, 1991; 24th November, 1992 and 17th November, 1993, has sought directions to the respondents to produce the service dossier and other relevant records and has sought perusal of the same and to quash the ‘displeasure’ dated 16th April, 1991 given by the Director General of the Border Security Force and for expunging the adverse remarks in his ACR for the period ending 31st March, 1992. The petitioner has also prayed that on quashing the ‘displeasure’ given by the Director General, Border Security Force and on expunging the adverse remarks from his ACR for the period ending 31st March, 1992, he be given promotion, pay and allowances and other benefits from the date his immediate juniors had been promoted. The petitioner has also prayed for compensation for humiliation and dishonour shown to him on the basis of false and malafide complaints against him.
Finding of the Court:
The displeasure of the Director General given on 16th April, 1991 and the warnings and adverse remarks in the ACRs are quashed and expunged. The respondents are directed to hold the review DPC for the petitioner to consider him for promotion from the post of Assistant Commandant to the post of Dy. Commandant, and in case the review DPC finds the petitioner to be fit for promotion then to promote the petitioner from the date the immediate junior of the petitioner was promoted to the post of Dy. Commandant. The petitioner shall also be entitled for all the consequential promotional pay allowances and other benefits.
Issues: 1. Whether the displeasure note given on 16th April, 1991 could be considered by the DPC held on 29th October, 1991? 2. Whether the adverse remarks given in 1992 were communicated to the petitioner on 4th December, 1992 after the DPC was held on 24th November, 1992? 3. Whether the adverse remarks “needs to be kept under watch” which was retained even after expunging of the adverse remarks also does not have any basis?
Ratio Decidendi: 1. The DPC held on 29th October, 1991 could not have taken into consideration the ‘displeasure’ dated 16th April, 1991 which was given after 31st March, 1991, and also as the DPC had not recorded the reason explaining as to why the petitioner had been exclude on account of the said ‘displeasure’. 2. The adverse remarks were not communicated to the petitioner prior to holding of DPC on 24th November, 1992. In any case, even if for some reason it can be inferred that the letter was, in fact, delivered to the petitioner prior to holding of DPC on 24th November, 1992, it is apparent that he was not given sufficient time to make a representation against the adverse remarks and the representation of the petitioner which he had made had not been considered before the DPC held on 24th November, 1992. 3. The adverse remark “needs to be kept under observations” which was retained even after expunging of the adverse remarks also does not have any basis.
Final Decision: The writ petition is allowed in terms hereof. The petitioner shall also be entitled for a cost of Rs.30,000/- against the respondents. Cost be paid by the respondents within a period of one month. The Review DPC should also be held by the respondents within three months, and in case the review DPC recommends the petitioner for promotion, the petitioner be given promotion to the post of Dy. Commandant from the date his immediate juniors were promoted within one month thereafter.
ANIL KUMAR, J.
1. The petitioner, who was not recommended for promotion to the post of Deputy Commandant from the post of Assistant Commandant by the DPCs held on 29th October, 1991; 24th November, 1992 and 17th November, 1993, has sought directions to the respondents to produce the service dossier and other relevant records and has sought perusal of the same and to quash the “displeasure” dated 16th April, 1991 given by the Director General of the Border Security Force and for expunging the adverse remarks in his ACR for the period ending 31st March, 1992. The petitioner has also prayed that on quashing the `displeasure’given by the Director General, Border Security Force and on expunging the adverse remarks from his ACR for the period ending 31st March, 1992, he be given promotion, pay and allowances and other benefits from the date his immediate juniors had been promoted. The petitioner has also prayed for
compensation for humiliation and dishonour shown to him on the basis of false and malafide complaints against him.
2. Brief facts relevant for the decision of the present writ petition are that the petitioner was an Assistant Commandant in Border Security Force during the relevant period that is 1991, 1992 and 1993 till he was promoted to the post of Deputy Commandant on the recommendation of the DPC held in November, 1994. Pursuant thereto, he was promoted to the said post in June, 1995.
3. The petitioner had joined the Border Security Force in 1986 and after completion of his training period he had been declared best trainee officer and was awarded the “sword of honour” by the Home Minister. He had also been awarded “sword of honour” by Director General, BSF for command footing contingent during Republic Day Parade in 1989. The petitioner disclosed that he was also awarded Inspector General’s “commendation” for best performance in 1988 and 1989.
4. According to the petitioner, while on duty in Punjab he had apprehended hard core militant Sukhvinder @ Bhinder Singh and in July, 1991 his company had apprehended other terrorist Buta Singh and had also seized one tractor and ammunition in encounter in which he had played very important role. He had saved the lives of 64 persons of a company from ambush of militants near the village of Harvan (J&K) by putting his own life in danger. He also disclosed that he had apprehended a top organizer of JKLF (Sokat) and had participated in “hot spring expedition”. His performance was good on the academic side in various courses conducted by the BSF and the Army.
5. On 25th April, 1990 a Court of Enquiry was ordered by the DIG, BSF, Shillong on the complaint of an Assistant Director (G), Shillong in respect of a car No.DEA 986 which was auctioned on 25th August, 1988 by 25 Bn. BSF to Mr.Rampat son of Sh.Bhoop Singh, Village and Post Office Kangan Teri, New Delhi in a public auction for an amount of Rs.19,404/-. The said car was purchased from Sh.Rampat by the father of the petitioner Sh.Ami Lal for an amount of Rs.32,000/- which was gifted by the petitioner’s father to the minor son of the petitioner Jitender. The said car was taken by the petitioner which was gifted to his minor son to 22 Bn. BSF, which was located in 1988 at Shillong, as the petitioner was posted there. The car gifted to the son of the petitioner Jitender was later on sold for a consideration of Rs.40,000/-, and according to the petitioner, the car though was gifted to his son was sold with the consent of his father and the sale consideration was remitted to Sh.Ami Lal, petitioner’s father.
6. The allegations which were made in the Court of Enquiry were that the petitioner had purchased the said car for Rs.25,000/- without obtaining permission from the authorities concerned and had brought the said car in a seven tonner vehicle of BSF by Constable Gurbaksh Singh of 22 Bn., BSF and got it repaired in the workshop of BSF which was later on sold to a khasi lady. The Court of Enquiry, however, found the al
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