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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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