The court emphasized the necessity to communicate every entry in the ACR and upheld the discretion of the Review DPC in making assessments.

JUDGMENT :

S. Muralidhar, J.

1. The Petitioner who is a Deputy Inspector General (DIG) in the Indo-Tibetan Border Police Force (ITBP) has challenged an order dated 11th January, 2019 passed by the Deputy Inspector General (Pers.) in the Directorate General, ITBP at New Delhi, placing Respondent No. 4, Ishwar Singh Duhan, above the Petitioner as DIG.

2. A challenge is also laid to the proceedings of the Review Departmental Promotion Committee (Review DPC) dated 23rd October, 2018 whereby Respondent No. 4 was declared as fit for promotion despite not meeting the eligibility conditions in his Annual Confidential Rolls (ACRs) and has been promoted as Additional DIG with effect from 30th May, 2007. The third relief is for a direction to the Respondents to maintain the Petitioner's original seniority in the rank of Additional DIG, as it existed prior to the change brought about by the impugned orders and consider the Petitioner for promotion to the post of Inspector General (IG) if found fit, with all consequential benefits.

Background facts

3. A DPC was convened on 27th February, 2007 for making promotions to the rank of Additional DIG from among Commandants. Those at S. Nos. 2 to 21 in the seniority list of Commandants were considered for such promotion. Respondent No. 4, who was at S. No. 9, was found not fit for promotion due to adverse remarks in his ACR for the period 2004-2005 and average grading during the year 2005-2006. The Petitioner was at S. No. 14 in the seniority list of Commandants.

4. By an order dated 9th May, 2008 the Petitioner was promoted as Additional DIG. Consequent upon the recommendations of the 6th Central Pay Commission (CPC), the post of Additional DIG was abolished and merged into the post of DIG. The Petitioner was, therefore, designated as DIG.

5. The Respondent No. 4 made a representation against the adverse remarks for the year 2004-2005. This representation was rejected on 6th June, 2006. The appeal preferred by Respondent No. 4 against the said order was rejected on 10th April, 2007. As regards the adverse remarks in his ACR for the period 2005-2006, Respondent No. 4 made a representation and the adverse remarks were set aside by the order dated 13th March, 2007. However, the average grading in the ACR for 2005-2006 remained.

Order of P&H High Court

6. Aggrieved by the grading for 2005-2006 remaining "average" Respondent No. 4 filed W.P. (C) No. 10217/2008 in the High Court of Punjab and Haryana. By the order dated 28th April, 2010 the High Court of Punjab and Haryana disposed of the aforementioned writ petition and directed the Directorate General of the ITBP (Respondent No. 2) to communicate to Respondent No. 4 the grading for 2005-2006. Respondent No. 4 was given the liberty to assail it, if it was adverse to him.

7. In compliance with the above direction, Respondent No. 4 was communicated the "average" grading for 2005-2006. His representation against the grading was rejected by an order dated 13th January, 2011.

Interim order of Single Judge of J&K High Court

8. Respondent No. 4 challenged both the adverse remarks for 2004-05 and the "average" grading for 2005-06 in a writ petition being SWP No. 1157/2011 in the High Court of Jammu and Kashmir (J&K). By an interim order dated 31st May, 2011 the learned Single Judge of the High Court of J&K directed the Respondent No. 2 to consider the case of Respondent No. 4 for promotion as per the extant rules, ignoring the adverse remarks/ entries recorded in the ACR for the period 2004-2005 and the average grading in ACR for the period 2005-2006.

9. Pursuant to the aforementioned interim order, the DPC was convened on 10th June, 2011, in which Respondent No. 4 was found fit for promotion as DIG against the vacancy year 2011-2012. However, the said recommendation was kept in a sealed cover as there was another case pending against Respondent No. 4. Subsequently, by an order dated 5th September, 2012 Respondent No. 4 was promoted as DIG with effect from 25th June, 2011