Dismissed

Ajay Bharatan, Hyderabad. v. Union of India, Home,New Delhi, and 2 Otrs.

Telangana HC7 Feb 2022WP/43567/2016

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the rejection of a promotion representation for a CRPF officer. The court held that the Discretionary Promotion Committee acted within its jurisdiction to deny promotion due to recorded displeasure and censure, overriding positive grading in annual reports.

What did the court decide?

Petition dismissed; petition standing stands closed without orders concerning the promotion of the petitioner.

Ajay Bharatan, Hyderabad. Vs Union of… — Pension and Retirement Benefits | Telangana HC (2022)

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.. HIGH COURT^{FORTHE STATEOF TELANGANA} AT HYDERABAD (SPecial Original^{Jurisdiction)}

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IMONDAY,^{THE SEVENTH DAY OF FEBRUARY} TWO THOUSAND^{AND TWENTY TWO}

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PRESENT

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THE HONOURABLE^{SRIJUSTICEB.VIJAYSEN REDDY}

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WRIT PE^{TITIONNO : 43567 0F 2016}

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Between:

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Aiav Bharatan,^{S/o. C.V.Bharatan,aged 52^yeats, occ . Deoutv lnspector Generalof} pbtice 0/0 lnspector e"n"i'i'oi'pdlice^{S6uthern Sector"Centrai ReservePolice} F" ilr-,i t c np r i^{b ayatri HiII s' H vd era bad 500 03 3'}

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...PETITIONER

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AND

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Union of^{lndia, Rep by its Secretary Ministry of HomeAffairs' North Block} New Delhi.

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2 The Secretary,^{Department of Personneland Training North Block' New} Delhi.

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3 The Director^{General, Central Reserve Police Force (CRPF) COO Complex'} Lodhi Road, New^Delhi.

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...RESPONDENTS

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Petition Under^{Article 226 ol lhe Constitutionof lndia prayingthat in the} circumstances^{statedin if''"-} "ttiJ"it^{filed therewith' the High Court maybe} pleased to issue a^{Writ, order or Airection' more particularly one in the nature of a} writ of Mandamus^{declarii!- u"tion or respondents in not promoting the petitioner} as Deputy^{lnspector e enerJt} "i^{p"ii*from the date he was due} No.P.Vll-3/2009-Pers-DA-l^{for prombtionand} ;;;;;',"; -Lis -appear ui tniro i"ipondent vide -in dated^'1 1.09.2015^{as arOitrlry and illegal and consequently direct the respondents} to^{promote the petitioner lJO"p'tV"f ntpectorGeneral of Police from the date} when his immediate .lunior^{was promoteOas Deputy lnspector'Generalof Police} with all consequential^benefits'

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l.A.NO: 1 0F^{201 6(WPMP.NO: 53765oF 2016)}

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PetitionUnderSectionlslCPCprayingthatinthecircumstancesstatedin the affidavit^{filedin suppoJofthe petition, t-neHign Court may be pleased to direct} the respondents^{to re-consiJerthe case of the petitioner for promotionto the post} lnspector Generalof^{police,pendingdisposal of the above writ petition.} "ib"prtv

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Counsel for^{the Petitioner: M/s'K'V'RAJASREE} RAr€su+uAR^{rao (asso')} Coqnsel tsr the B4ponde,4s^{I SRI NAMAvARAPU} T[',a^{aor.trhmaJa lla itttot{1 r ORDeR}

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THE H)N'BLE SRI JUSTICE^{B. VI]AYSEN REDDY}

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WRIT PETITION No.43567^{of 2016}

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ORDER

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I ! I I I i I {. tI a'a&:ttt :r::::r;li. : : : : .,

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This writ^petition is^{filedchallenging the impugnedorder} No. P.VII-3/2009-Pers-DA-I dated^{11'09'2015passed bythe} respondent No.3 whereby the^{representationfiled by the petiiioner} for restorati seniority was rejected^{and the petitione' was}

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it is the of the petitioher that he^is a^{DirectRecruit} Assistant Corrmandant and^{joined servicein the year 1986 He} Police. He was due for^{promotion to the post of Deputy Inslector} General of Police in the^{year 2009-10and Departmental Prorlotion} Committee (DPC) was convened^{on 30.09.2009and ht: was} overlooked for^{promotion withoutthere being any justificationHe} filed representation before^{the respondent No.4. which came to be} ected und ed order.

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ure being follov/ed^bY Confidentia Reports^(ACRS) fornr^basis where n officer is assessed by^{the seniorcfficers} Outstanding or Very^{Goodo| Good} the last five^years are^{tak€n into}

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consideration by the^DPC while^{effectingpromotions' in respect of} petitioner, the DPC was required to look into ACRS from the year 2OO3-04 to 2007-08. Petitioner claimed that^{all theseyears,he was} graded as very good and he received several appreciations from senior officers. However, he was not^{promoted and officers junior to} him were promoted on 30.09.2008^{videDte.GenlCRPFpromotion} order No. P.VII-3/z-8-Pers-7, which resulted^{in great injusticeto} the petitioner. According to the^{petitioner, the officers, whodo not} have very good grading for five consecutive^{years, were considered} for promotion. When he enquired about^{his non-promotion,he} ,.,.:..'rt. came to know that he was^{overlooked and thus, filed} representation, which was rejected^{underthe impugned order.}

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It is stated that ln the impugned^{orderthat the petitioner} was awarded the following^{penalty/displeasure -} (a) DG's displeasure issued vide order dated 1'7/04/2004 (b) Penalty of Censure issued vide order dated^27/09/2OOG (c) DG's displeasure issued vide order dated 30/06/2008

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It is mentioned that as^per the^DPC DPC is not guided .,] merely by overall^grading that may be^rec n the ACR but al makes its own assessment on the^basis of^{the entries in the} Confidential Reports. Petitioner submitted^{that the displeasureof} the years 2004 and 2006 do not find^{place in his ACRS. Similarly,} censure is also not recorded. In any case, displeasure^{cannot bea}

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grourid to ure which is of tl,lthe iiiar^{20C6,lCannotbe} a^ground for supersession sinc€ three censure dated .09.200 from 2003-04 to 2007-08,'. thb petitioner earned number of appreciatiorrs and rewards such as (1) DG's Commendation Letter 2004 (2 r DG,s Commendation Letter 2005 apart from appreciations from other su perior offic€ rs.

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.^5. Petitioner submitted that assessment of performance is made ',:-_^{by superiorofficerhaving full knowledgeof his working for one} year; s not ,,a:,:!.1at!^{incidentthat takes place during the year to} :: . ,:::^, ete e,hii 1@rfciimance^{but thi-.'grading} is based upon overall of orie year; after immediate superior officer nakes e gra iling the next superior authority i.e. reviewing authority also ooks into all r:h ese aspe cts and approves the grading given l)y the mediate superior authority with his own remarks; thereafter. it goes to the Director General for counter signature and after looking into all the aspects the final grading is given. The petition<:r has. been graded as very good during all these years from 2003 to 2008. The petitioner has been graded outstan ding/very gocd all through during his service by his superior officers. There is no justifiaition fcr the DPC to say that. they have made thei,. own :

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assessment on the basis of the entriesⁱⁿ the Annual^Performance Appraisal Report, when the^pena lty/displeisure stated in^the impugned order does not find entryⁱⁿ the^ACRs. t!^{is further stated} that the displeasure is not a^punishment the petitioner on 27.09.2006 oug ht^not because more than three Years had^I oreover, displeasure and censure were^{lookedinto by the superior officers} i.e. DIG, IG & DG who have^graded him^{verygoodbecause of his} overall performance.

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It is the case of the respondents^{that as per para 6.2'1(e) of} DPC Rules, the DPC should not be^g by the ove grading, if any, that may be recorded ential but should make its own assessment^on is of the en the confidential records. The^Governments nly a leg enforceable right to be considered^for there is right for promotion. The employee^claiming unblemished record. An employee^{who is found} g uilty of miscondu cannot be^placed at^par with the other^{employeesand his case has} to be treated differently.^{In the list of empanelledCommandants} with reference to DPC dated 03.09.2009,^{forwardedby Ministryof} Home Affairs vide order dated^{25.08.2009,the nameof the} petitioner was not present. DPC might have^gladedth

I I t I! |: Ii x e

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for promotion kee ing in view his overall service recordⁱⁿ tf'e^light of DPC guidelinds, which is evident that he was^atvarded displeasu re/censur'e for his misconduct for three time at^t'egular intervals. Thus, representation dated 24.O9.2016 was rejectr:d vide 2016. It is stated that the Supreme C)urt in Goe/ (Appeal (Civil) No.689 of 2009 arising /2007^{dated L2.O2.20O7), heldthat tlleDPC} method and procedLrre for bjective a t of suitability and merit of the candidatr:^being nsidered by it and no^judicial review is warranted.

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In th€ counter, it was stated that the^petitiont:r was considered for promotion to the rank of DIG by the DPC corvened on 03.09.2009 for the^year 2009-10. The confidential reccrds for last 5 years i.e. from 2003-04 to 2007-08 were tak(rn into i consideration by the DPC and due to adverse remarks , his cz^{se was} not consid etitioner was awarded displeasure vide order r his failure in recruitment board in ersuring l. checking t,f ii) n.Jpu," domi cate (ii) Caste certific;rte and ficate, whi ng as Presiding Officer of the tment Group Centre, CRPF, Bhopal. 1e was awa rd nsure as a result of departmental enqu ry vide order dated 27 .O9.2O06 for his misconduct or his failure to ensure

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and follow th e procedure laid down for purch i canteen for recruits. The charges were parti y proved against hi and cens ure was awarded on the advice of UPSC. Thirdly, he w awarded DG's displeasure vide order dated 30.06.2008 indulging in undesirable activities during the recruitment Consta ble/G D for the yea r 2006-O7 the States of Bihar and Jharkhand under

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B. The following d isp leasu re/ce

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a gainst the petitioner:

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Order dated 17.04.2004 -^displeasu the petitioner on the charge that the checking of (1) proper domicile certificate, and (3) CRPF ward certificate during the recruitment of Followers of Group Centre, Bhopal and it was found that not even a single candidate selected was from Chattisgarh.

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2- Order dated 27.09.2006 - penalty of censure was imposed on the petitioner. The charge against the wa5 that he committed serious misconduct. in not failed to follow the procedure laid down items in canteen for recruits oF competitive post and intentionally allowed M/s. Burnwal Stores, Durgapur, to charge exorbitant

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items with ulterior motives.

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I 1 )

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Order^(lated

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nst tve rea the

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Mr. S. Satyam Reddy, learned senior counsel for the petitioner, submitted that the judgment of the Supreme C,:urt in S.K. Goel's case (supra) relied upon by the respondents is not i the fbct of the instant case. The said case deals with ngradi ng at the level of the p re:;cribed an adverse rrlmark. . The petition 3r was ears a nd yet he was declared u tfit for rom DEV DUTT v, UNION OF sion in S. K. oel's case (supra) does not lay down correct law as it is contrary to the decision of a :;evenJudge Constitutional Bench in MENAKA GANDHI v. UNICTN OF

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INDIA2.

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It is furth ubmitted by the learned senior counsel that the .fi 09.2 2009-2010 ard the -04 to 2007-0t have

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](2008)^{h scc?2s} '⁽¹⁹⁷⁸⁾ I SCC :tJS

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to be evaluated. The displeasure is not a punishment and it could not have been taken into consideration a memorandum No.1-a5026/25/87-

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ended after one consideration. The categorically stated the displeasure or warning conveyed will nfructuous a the same could not h ave been taken into consideration by the DPC. The petitioner was graded very good in confidential reports by the superior officers. The office memorandum No.22017/4/2007-Estt. (D) dated 21.Lt.20L6 stated in para 2 that censure cannot be ground for ignoring an officer for p

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On the other hand, learned Assistantr Soticitor General of :'1: India for the respondents, submitted that as pe. 6.2.1 of DPC .,. i,, Rules, the DPC has full discretion to make its own assessment on^-r': the basis of entries in the co entia I re assessment of the petitioner by esa sta nda rd/ya rdstick and norms for the petitioner and others. H further submitted that in STATE BANK OF INDIA v. MOHD. MYNUDDIN3, UPSC V. HIRANYALAL DEV4 ANd.,BADRINATH V.

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GOVERNMENT OF TAMIL NADUS. the Supreme Court herd that Courts may not interfere where DPC has done the assessrrent as per rules. gment of the Supreme Court in ME NAKA supra) is not applicable to the facts of tht: case. assessment of DPC and entire circuinstanr:es, fa cts are different. As per MHA Letter if displeasurt: fa lls confidential reports t,y the hould apply its mind where ones pecunr ary gain, abuse of povrer or moral turpitude a d if any of these elements is present, thr: DpC should not consid er the officer for promotion for a period c f two yea rs.

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stated that the office memorandum I ated to the petitioner as his case has b een ons in June, 1989. As per below Rule 11 of the CCS is formal and publi. act perso has been guitty of r '.,:t some blamewc rthy act or omission for which it has been f cund necessary to award him a formal punishment. A recorJ of i

'^{(zooo)a scc :qs}

punishment so imposed is the fact that he has been censu re assessment of his merit of suitability for p higher Reliance is placed on the decision of the Suprem e Court in UNIO

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OF INDIA v. K.V, JANKIRAMANs wherein the Supreme Court

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taken cognizance of role of DPC on the case penalty has been imposed and held that an found of misconduct cannot be placed at and his case has to be treated differently and,his whole record has to be taken into consideration. As per office memorandum dated.;' ,^-': 09.05.2014, the DPC is required. to d being considered for^promc )tion with

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benchmark, by making its own decision on

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and grading containing the APARS.

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Heard learned senior counsel for the petitioner and learned Assistant Solicitor General of India for the respondents and^pe the record.

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The DPC was held on petitioner for promotion was assessed and ire.lelted. The office memorandums dated 27.03.2015, 09.05.2014'aqd 2t.Lt.2076',ii , :^,-j ;i:* are pressed into service by the learned seniorlcounsel. which in thffi

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6 1.a.tn toot sc zotoy

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relevant inasmuch as they are issued ubsequ oreover, in the office memorandunr dated as u nder:

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"These instructions will take effect from the date ( f issue cf this OM. ... ... In no case, cases settled beforl issue cf this OM in the light of the instruction datel lune 1989 in I vogue till now, will be reopened."

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It is thus, clear t t the case of the petitioner, which was rJecided prior to th memorandum dated 27.03.7015 can'rot be reopened, ai rightly contended.by the learned counsel 'or the respondents.

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'.1 ' ,T 15. The assertioh of the respondents in the counter affidavit and ....ii. additional aflidaviti with reference to para 6.2.1 of DpC Rul-.s that t.\ DPC should rlakerits own assessment on the basis of entrie: in the confidential repo s not rebutted by the learned senior <:ounsel for th6 petitioner. per MHA letter dated 28,06.1989, it is; made clear that if displ ure falls within the period of two years of consideration nfidential reports by DPC, the officer sho,.rld not be considererJ motion for a period of one year or twc, yea rs nsider a pprc priate. er on 30.06.2008, eld on 30.09.2009.

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I
I
I

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"... the DPC enjoy full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being consid

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I 16. The observation of the Supreme Court,in . i ; .f: DEV - DUTT'S . case li:;i r,i:'.'...i' :i (1 supra) in para 23 that the decision in S.Ki Co.:1.s case (supra)'.I cannot prevail over 7-Judge - constitution^jt p"iiin; o"gi.1on ig$ i: :-,^, MENAKA GANDHI'S case (2 supra) is only wlth.:r6fer "n."^{to tnffi} point as to whether adverse entry need to be'iommunicated to thel-:$ ..1 employee. in para 25. the Supreme Court held that the action of the respondents in not communicating the 'good' entry^(adverse entry) for the year 1993-94 to the appellant is arbitrary and is in violation of principles of natural^justice. The point involved in this writ petition is not with regard to communication of adverse entry.

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petitioner as unfit for promotion as arbitra was clearly held in the instructions Government of India for the procedure displeasure is awarded and as held in^para should not consider the officer for promotion for,.a period of one year or two years from the date of award of displeasure. Thus, merely grading the petitioner as good in confidential reports cannot

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be taken as a^circumstance to ignore^{the displeasure avrarded} I etitioner^{as per abovereferred instructions'} against the P

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bove observations,^{there are no merits in the} petition is d^isrnissed. hall stand^closed.There

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//TRUE COPY//

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SD/-N.CHANDRA SEKHAR^RAO ASSISTANT REGISTRARS

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SECl'ION OFFICER

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One CC to M/s.K.V.RAJASREE,^Advocate [OPUC] 2. One CC to SRI.NAMAVARAPU^{RAJESHWAR RAO (ASSGI)[OPUC]} 3. Two CD Copies

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One spare copy

S.A

q/)

HIGI{ COURT

DATED:0710212022

ORDER

WP.No.43567^{of 2016}

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D'SM'SS'NG^{THE W.P}

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WITHOUT^COSTS,

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Ocrgrta @ Sr!-,-q^1,-

Ajay Bharatan, Hyderabad. v. Union of India, Home,New Delhi, and 2 Otrs.

Case brief

What is this about?

What did the court decide?

Ajay Bharatan, Hyderabad. v. Union of India, Home,New Delhi, and 2 Otrs.

Case brief

What is this about?

What did the court decide?

What the court decided

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