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2019 Supreme(Gau) 1299
IN THE HIGH COURT OF GAUHATI
Manish Choudhury, J.
Suresh Chander Parashar - Appellants
Vs.
Union of India and Ors. - Respondent
WP (C) No. 5941 of 2018
Decided On : 05-12-2019
For the Appellant :R. Mazumder, Advocate
For the Respondents:S.C. Keyal, Asstt. SGI and S. Kakoti, Advocate
Headnote:
Constitution of India,1950 - Articles 226, 14 and 16 - Prevention of Corruption Act - Sections 7/13 - Quashing and setting aside of a communication - Effect of postponing the future increments of his pay - Petitioner has prayed for quashing and setting aside of a communication and an order with further directions to respondent authorities to promote petitioner to post of Inspector General of Police - Immediate juniors were promoted and to provide all consequential benefits of post of LGR, C.R.P.F. with effect communication petitioner was informed by office of Director General - Hand of Under Secretary to Government of India, Ministry of Home Affairs, which was issued with approval of Competent Authority, representation filed by petitioner - Petitioner was promoted from time to time and finally, to post of D.I.G, C.R.P.F. in post he is presently serving - When petitioner was functioning as a Commandant, disciplinary proceeding was initiated against him by a Memorandum of Articles of Charge - Disciplinary proceeding continued against petitioner under provisions of Central Civil Services Rules, 1965 by recording in process statements of 10 prosecution witnesses and 13 defence witnesses – Held, Accepting Authority did not efface alleged "adverse" remark of Reporting Authority from APAR of petitioner for year and despite such effacement - Such non-recording of reason and taking of a view which is to detriment of petitioner to bring in "adverse" civil consequences in form of denial of chance of his promotion and, that too, without affording any kind of opportunity to petitioner who is under a bona fide belief for a valid reason that there is nothing "adverse" in APAR for the year - Minutes of the DPC convened is found to be arbitrary, unfair and unsustainable - Suffers from same reason of sheer non-application of mind as the competent authority did not take notice of fact that none of the DPCs and Review DPC had assigned any reason - Petitioner was placed at serial no. in zone of consideration empanelled for filling up vacancies in ratio - But on all occasions petitioner was found to be "Unfit" for one arid only reason has been found to be arbitrary, unfair and unsustainable - Such non-consideration of case of petitioner which is found arbitrary and unfair - Direction to convene a Review DPC to consider the case of the petitioner again in observations as regards APAR is found to be justified - It is pertinent to note that petitioner is going to be retired on reaching the age of superannuation - Petitioner for promotion to rank cadre of I.G.P., C.R.P.F. for vacancy onwards by taking into consideration observations made if after such consideration - Petitioner was arbitrarily and unfairly found "Unfit" for promotion right held with no delay attributable to the petitioner for the aforesaid - Writ petition stands allowed
JUDGMENT :
Manish Choudhury, J.
1. Heard Mr. R. Mazumdar, learned counsel for the petitioner and Mr. S.C. Keyal, learned Assistant Solicitor General of India assisted by Mr. S. Kakoti, learned counsel for the respondents.
2. By this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside of a communication dated 05.07.2017 and an order dated 10.05.2018 with further directions to the respondent authorities to promote the petitioner to the post of Inspector General of Police (I.G.P.), Central Reserve Police Force (C.R.P.F.) with effect from 01.02.2014 i.e. the date from which his immediate juniors were promoted and to provide all the consequential benefits of the post of LGR, C.R.P.F. with effect from 1.2.2014. By the communication dated 05.07.2017, the petitioner was informed by the office of the Director General, C.R.P.F. that his representation dated 15.07.2016 as regards his promotion to the rank of I.GP., C.R.P.F. was considered by a Review Departmental Promotion Committee (D.P.C.) but the Review D.P.C. found the petitioner not suitable for promotion to the rank of I.GR, C.R.P.F. By the order dated 10.05.2018 issued under the hand of the Under Secretary to the Government of India, Ministry of Home Affairs, which was issued with the approval of the Competent Authority, the representation filed by the petitioner on 03.11.2017, pursuant to an order dated 09.10.2017 passed by the Hon'ble Allahabad High Court in a writ petition, C.M.W.P. No. 46876/2017, permitting the petitioner to submit such representation, for considering him for promotion to the rank of I.GP., C.R.P.F. was rejected.
3. The relevant and pertinent facts, in brief, leading to the institution of the present writ petition by the petitioner who is presently serving in the rank of Deputy Inspector General of Police (D.I.G), C.R.P.F. are to be noticed for the purpose of appreciation of the issues raised in the writ petition.
4. The petitioner joined as a Deputy Superintendent of Police (D.S.P.)/Assistant Commandant in the C.R.P.F. on 16.10.1984. The petitioner was promoted from time to time and finally, to the post of D.I.G, C.R.P.F. in which post he is presently serving. When the petitioner was functioning as a Commandant, 102 BnRAF, Mumbai in the year 2008, a disciplinary proceeding was initiated against him by a Memorandum of Articles of Charge dated 05.03.2008. After appointment of Presenting Officer and Inquiry Officer, the said disciplinary proceeding continued against the petitioner under the provisions of Central Civil Services (Classification, Control & Appeal) Rules, 1965 by recording in the process statements of 10 prosecution witnesses and 13 defence witnesses, wherein the petitioner as the delinquent officer participated along with his Defence Assistant.
5. During the pendency of the disciplinary proceeding against the petitioner, the Annual Performance Assessment Report (APAR) of the petitioner for the year: 2012-2013 was prepared and the said report was in two parts - one part was for the period from 1.4.2012 to 8.10.2012 and the other part was for the period from 9.10.2012 to 31.3.2013.
5.1. In respect of the APAR for the period from 1.4.2012 to 8.10.2012, the Grading given by the Reporting Authority which was signed on 14.10.2012, in the said APAR was "Good". The Reporting Authority had reported about the Pen-Picture of the petitioner as on 16.10.2012, as under:-
^^lkekU; rkSj ij vf/kdkjh ifjpkyfud ,oa iz'kklfud n`f"V ls vPNk dk;Z dj jgs gS] ysfdu buds vkpj.k ij dM+h fuxjkuh j[kus dh vko';drk gS^^
In respect of the aforesaid Pen-Picture remark of the Reporting Authority about the petitioner, it was recorded on 17.12.2012 by the Reviewing Authority in the APAR that the APAR for the period from 01.04.2012 to 08.10.2012 in respect to the petitioner could not be reviewed as the then Accepting
