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Friday, July 11, 2014

Service matter - promotion to DGP - allegations of bias against the chairmen of the committee - High court allowed the writ and directed to give promotion as DGP - challenged - Apex court held that The bias and malafide acts can be adjudged only on the basis of evidence. The assessment of Character Roll by one or the other officer,giving a general grade such as ‘Good’ cannot be the sole ground to hold that the officer was biased against the person whose Character Roll is assessed. In the instant case, there is nothing on record to suggest that the appellant no. 3 –E.N. Ram Mohan was biased against the respondent.Merely because he assessed the ACR of the respondent as ‘Good’ as against assessment of ‘Very Good’ made by I.O. it cannot be said that he was biased against the respondent. and set aside the High court order = U.O.I. & ORS. … APPELLANTS VERSUS S.P.NAYYAR … RESPONDENT = 2014 – June. Part -http://judis.nic.in/supremecourt/filename=41731

   Service matter - promotion to DGP - allegations of bias against the chairmen of the committee - High court allowed the writ and directed to give promotion as DGP - challenged - Apex court held that The bias and malafide acts can  be  adjudged  only  on  the  basis  of evidence.  The assessment of Character Roll by one  or  the  other  officer,giving a general grade such as ‘Good’  cannot be the  sole  ground  to  hold that the officer was biased against  the  person  whose  Character  Roll  is assessed.   In the instant case, there is nothing on record to suggest  that the appellant no. 3 –E.N. Ram  Mohan  was  biased  against  the  respondent.Merely because he assessed the ACR of the respondent as  ‘Good’  as  against assessment of ‘Very Good’ made by I.O. it cannot be said that he was  biased against the respondent. and set aside the High court order =
15.   The Departmental Promotion Committee consists of a  Chairman  and  the
members.  Even if bias is alleged against the  Chair-person,  it  cannot  be
presumed that all the members of the Committee were biased.  No  ground  has
been made out by the respondent to show as to why  the  assessment  made  by
the DPC is not  to  be  accepted.  The  High  Court  failed  to  notice  the
aforesaid fact and wrongly discarded the assessment made by the D.P.C.
16.   It is also settled that the High Court under  Article  226  can  remit
the matter for reconsideration if a person was not properly  considered  for
a promotion for which he was eligible.  But it cannot direct  to  promote  a
person to the higher post, without giving a plausible ground.
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.” =

The bias and malafide acts can  be  adjudged  only  on  the  basis  of
evidence.  The assessment of Character Roll by one  or  the  other  officer,
giving a general grade such as ‘Good’  cannot be the  sole  ground  to  hold
that the officer was biased against  the  person  whose  Character  Roll  is
assessed.   In the instant case, there is nothing on record to suggest  that
the appellant no. 3 –E.N. Ram  Mohan  was  biased  against  the  respondent.
Merely because he assessed the ACR of the respondent as  ‘Good’  as  against
assessment of ‘Very Good’ made by I.O. it cannot be said that he was  biased
against the respondent.
15.   The Departmental Promotion Committee consists of a  Chairman  and  the
members.  Even if bias is alleged against the  Chair-person,  it  cannot  be
presumed that all the members of the Committee were biased.  No  ground  has
been made out by the respondent to show as to why  the  assessment  made  by
the DPC is not  to  be  accepted.  The  High  Court  failed  to  notice  the
aforesaid fact and wrongly discarded the assessment made by the D.P.C.
16.   It is also settled that the High Court under  Article  226  can  remit
the matter for reconsideration if a person was not properly  considered  for
a promotion for which he was eligible.  But it cannot direct  to  promote  a
person to the higher post, without giving a plausible ground.
17.   For the reasons as aforesaid, we cannot uphold  the  findings  of  the
judgment dated 21st August, 2012 passed by the High Court of Delhi  and  the
same is accordingly set aside.
18.   The appeal is allowed.

 2014 – June. Part -http://judis.nic.in/supremecourt/filename=41731

                                                                REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO. 5852  OF 2014
                  (arising out of SLP(C) No.29792 of 2013)

U.O.I. & ORS.                                      … APPELLANTS

                                   VERSUS

S.P.NAYYAR                                   … RESPONDENT

                               J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J

      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 for not recommending the name  of  the  respondent.   The
High Court after perusal of the record, allowed the writ petition  with  the
observation as mentioned above.
7.    Learned counsel for the appellants made the following  submissions  to
assail the judgment:
      (a)   The High Court was not right in  directing   the  appellants  to
grant promotion to the respondent rather than directing  the  appellants  to
reconsider the case under DPC; and
      (b)   The High Court without any evidence, adjudicated disputed  issue
of malafide acts alleged against the appellant no. 3  in  writ  jurisdiction
while dealing with  a  service  matter,  particularly,  in  the  case  where
allegation was made by a person who had vested interest in the allegation.
8.    Learned counsel for the respondent submitted that the  respondent  was
wrongly superseded in the matter of promotion from the  rank  of  Commandant
to the rank of Addl.DIG in the BSF  in the DPC held on 25th  November,  2000
which considered the ACRs for the years 1994-95, 1995-96,  1996-97,  1997-98
and 1998-99.
It was submitted that the  ACRs  of  1994-95  and  1995-96,  respondent  was
graded ‘Very Good’ by the Initiating Officer(IO)  Reviewing  Officer(RO)  as
well as Accepting  Authority(AO).  For the  ACR of 1996-97,  the  respondent
was graded ‘Very Good’ by  the  Initiating  Officer  as  well  as  Reviewing
Officer, but the appellant no. 3-  E.N.Ram  Mohan   who  was  the  Accepting
Officer, down-graded  the  ACR  as  ‘Good’  without  recording  any  reason.
However,  the  Director-General,  BSF,  undoing  the  damage,   graded   the
respondent as ‘Very  Good’.  It  is  further  contended  that   the   record
produced before the High Court also revealed  that appellant no.3 –E.N.  Ram
Mohan  who took over as Director-General,  BSF,  down-graded  ACRs  of   the
respondent for the years 1997-98 and  1998-99  to  ‘Good’  contrary  to  the
grading given by Initiating Officer and Reviewing Officer that  too  without
assigning any reason there for,  contrary  to  the  instructions  dated  3rd
December, 1991. The down-graded ACRs of the respondent for the  years  1997-
98 and 1998-99 were never communicated to him.
9.    The bench-mark for promotion from the rank of Commandant to Addl.  DIG
is ‘Very Good’.   The  bench-mark  ‘Very  Good’  has  been  defined  in  the
instructions dated 6th February, 1991.  The sum and substance  of  the  said
instructions is  that the DPC would grade an  officer  as  ‘Very  Good’   if
atleast three of his five ACRs are ‘Very Good’ and  in  the  remaining  ACRs
under consideration,  the performance is generally ‘Good’   and  that  there
is no adverse entry in any of the five ACRs  under consideration.
10.   According to the learned counsel for the    respondent,   despite  the
two wrong down-graded and un-communicated ACRs for the  years   1997-98  and
1998-99, the respondent fulfilled the bench-mark,   having  ‘Very  Good’  in
three ACRs for the  years  1994-95,  1995-96,  1996-97  and  ‘Good”  in  his
remaining two ACRs  and there is no adverse entry against him in any of  the
five ACRs under consideration. However,  despite  the  aforesaid,   the  DPC
held on 25th November, 2000, which was presided over by the appellant no.  3
–E.N. Ram Mohan graded the respondent as ‘Good” as against the ‘Very  Good’,
resulting  into supersession of the respondent to  the  rank  of  Addl.  DIG
depriving the respondent of well-deserved promotion.
11.    After   giving  our  careful   consideration   to   the   facts   and
circumstances of the case and submissions made by learned  counsel  for  the
parties, we are of the view that High Court was wrong in  holding  that  the
respondent was targeted due to the personal bias of  appellant  no.  3  -E.N
Ram Mohan.   The  High  Court  was  also  not  justified  in  directing  the
authorities to promote the respondent to the post of Addl. DIG.
12.   It is settled that High Court under Article 226  of  the  Constitution
of India cannot sit in appeal over the assessment made by the DPC.   If  the
assessment made by the DPC  is perverse  or  is  not  based  on  record   or
proper record has not been considered by the DPC,  it is always open to  the
High Court under Article 226 of the Constitution to remit  the  matter  back
to the DPC for recommendation,  but the High Court cannot assess  the  merit
on its own,  on perusal of the service record of one or the other employee.
13.   The selection to  the  post  of  Addl.  DIG  is  based  on  merit-cum-
suitability which is to be adjudged  on  the  basis  of  ACRs  of  different
candidates. The merit position can be adjudged by  the  Selection  Committee
on appreciation of their Character Roll.  In absence of the  Character  roll
of other candidates,  who were also in the zone of  promotion,   it  is  not
open to the High Court to assess the  merit  of  one  individual  who  moves
before the High Court, to give a finding whether he comes  within  the  zone
of promotion or fit for promotion.
14.   The bias and malafide acts can  be  adjudged  only  on  the  basis  of
evidence.  The assessment of Character Roll by one  or  the  other  officer,
giving a general grade such as ‘Good’  cannot be the  sole  ground  to  hold
that the officer was biased against  the  person  whose  Character  Roll  is
assessed.   In the instant case, there is nothing on record to suggest  that
the appellant no. 3 –E.N. Ram  Mohan  was  biased  against  the  respondent.
Merely because he assessed the ACR of the respondent as  ‘Good’  as  against
assessment of ‘Very Good’ made by I.O. it cannot be said that he was  biased
against the respondent.
15.   The Departmental Promotion Committee consists of a  Chairman  and  the
members.  Even if bias is alleged against the  Chair-person,  it  cannot  be
presumed that all the members of the Committee were biased.  No  ground  has
been made out by the respondent to show as to why  the  assessment  made  by
the DPC is not  to  be  accepted.  The  High  Court  failed  to  notice  the
aforesaid fact and wrongly discarded the assessment made by the D.P.C.
16.   It is also settled that the High Court under  Article  226  can  remit
the matter for reconsideration if a person was not properly  considered  for
a promotion for which he was eligible.  But it cannot direct  to  promote  a
person to the higher post, without giving a plausible ground.
17.   For the reasons as aforesaid, we cannot uphold  the  findings  of  the
judgment dated 21st August, 2012 passed by the High Court of Delhi  and  the
same is accordingly set aside.
18.   The appeal is allowed.


                                                ..........................J.
                                               (SUDHANSU JYOTI MUKHOPADHAYA)


                                                ..........................J.
                                  (KURIAN JOSEPH)
NEW DELHI,
JUNE 30,2014.

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