Subrata Banga vs Union of India

Pramath Patnaik, J

In the captioned writ application, the petitioner has inter alia prayed (i).for quashing order dated 06.09.2010, whereby the representation of the

petitioner dated 11.05.2010 against recording of below bench mark grading in his ACR, now called as Annual Performance Assessment Report

(APAR) for the period from 11.04.2005 to 30.11.2005 has been rejected; (ii).for quashing order dated 14.09.2010 whereby the representation of the

petitioner dated 11.05.2010 against recording of below against recording of below bench mark grading in his ACR, for the period from 01.04.2004 to

31.03.2005 has been rejected; also (iii).for quashing order dated 29.09.2010 whereby the representation of the petitioner dated 11.05.2010 against

recording of below against recording of below bench mark grading in his ACR, for the period from 01.04.2007 to 31.03.2008 has been rejected;

(iv).for quashing order dated 25.01.2001 whereby the representation of the petitioner dated 17.03.2009 has been disposed of with concluding order

that “ in view of the facts on record, petitioner cannot be granted promotion for the reasons as mentioned above†and also (v).for quashing order

dated 05.10.2009 whereby the representation of the petitioner dated 17.03.2009 has been disposed of with the concluding order that “in view of the

fact on record, Shri Subrata Banga, Commandant cannot be granted promotion for the reasons as mentioned above†and further for direction upon

the respondents to reconsider their orders/decisions of grading below benchmark in ACR of petitioner for the aforesaid period and reconsider the

petitioner’s plea of claim for his promotion to the post of Senior Commandant and further dispose of the representation of the petitioner dated

02.03.2010 made by the petitioner with regard to the APAR from 01.06.2008 to 31.03.2009.

2. The facts, as delineated in the writ application, in brief is that the petitioner was initially appointed on 01.02.1973 in C.I.S.F and after discharging

his duties for about four decades on attaining the age of superannuation he retired on 30.11.2011. It has further been averred that while the petitioner

was posted as Deputy Commandant, CISF Unit, IOC, Gauhati, the part annual confidential report recorded for the period from 11.04.2005 to

30.11.2005 contains some adverse remarks, aggrieved thereof the petitioner represented before the authorities, which was rejected vide order dated

19.10.2006. Further, while the petitioner was posted as Commandant, CISF Group, Headquarter, Kochin other commandants were promoted, save

and except the petitioner. Hence, the petitioner represented before the authorities, but it did not evoke any response, which compelled the petitioner to

move before the Hon’ble High Court of Kerela at Ernakulam by filing W.P.C No. 14949 of 2009 which was disposed of vide order dated

01.06.2009. Pursuant to which, the representation of the petitioner dated 17.03.2009 was disposed of vide order dated 21.10.2009 stating therein that

in the duly convened DPC the petitioner was assessed “unfit†as he failed to achieve the required benchmark. Later on, the petitioner received a

letter dated 23.04.2010 whereby it was informed that the petitioner has been granted below benchmark for the following periods:

(a).01.04.2004 to 31.03.2005

(b).11.04.2005 to 30.11.2005

(c).04.04.2007 to 31.03.2008.

 Being aggrieved, the petitioner submitted representation against such grading of below benchmark, which resulted in issuance of impugned orders,

which has been challenged by the petitioner by filing the instant writ application.

Heard Mr. Atanu Banerjee, learned counsel for the petitioner and Mr. Binod Singh, learned C.G.C being assisted by Mr. Sarvendra Kumar,

Associate Counsel to learned C.G.C for the respondents.

Learned counsel for the petitioner submitted that for the first time vide letter dated 23.04.2010, the petitioner was officially communicated about his

ACR grading him below benchmark for the aforesaid periods assigning the reason for not granting him promotion while granting promotion to junior to

the petitioner. However, at that stage, the petitioner represented before the authorities by submitting representation dated 11.05.2010 which was

disposed of by passing the impugned orders, without giving any due consideration to the pleas and contentions raised by the petitioner in his

representation dated 11.05.2010. In this regard, it has further been submitted that the petitioner has neither been afforded any opportunity of being

heard nor any show cause notice was ever issued with regard to so-called grading or adverse entries in the ACRs because of which the petitioner has

been denied promotion nor had been issued any notice to improve himself or his efficiency. Moreover, the impugned orders served upon the petitioner

are cryptic, non-speaking and vague. Aggrieved, thereof, the petitioner also represented before the authorities vide representation dated 02.03.2010

but that has not been disposed of till date. Learned counsel for the petitioner further submitted that though remarks of the reviewing authority was

‘very good’ and further remarks of accepting authorities was mentioned as ‘good’ but the accepting authority made remarks “an

average officerâ€. Keeping such view of the matter, it has been submitted that it is a fit case to issue writ of mandamus directing the authorities

concerned to give benefit of promotion to the petitioner.

As against this, learned counsel for the respondents at the very outset raised the issue of maintainability and submitted that in a duly convened

D.P.C, the petitioner was assessed ‘Unfit†as he failed to achieve the required benchmark. Aggrieved thereof, the petitioner knocked the door of

Hon’ble High Court of Kerela by filing Writ petition No. 14949 of 2009, which was disposed of vide order dated 01.06.2009 and thereafter Writ

Appeal No. 1905 of 2009, which was disposed of vide judgment dated 13.10.2009 directing the respondents to pass appropriate order on

representation of the petitioner. Thereafter, the petitioner preferred Contempt case (Civil) No. 190 of 2010, which was disposed of observing that no

case of contempt is made out. Hence, the issue which has been decided by the writ Court at the Judicature of Hon’ble High Court of Kerela

cannot be allowed to be re-agitated before another Writ Court. On the issue of maintainability, it has further been submitted that as per the instructions

of DoP&T, there is provision of Memorial to the Hon’ble President of India after rejection of representation against the adverse remarks/below

bench mark grading, but, the petitioner without exhausting the alternative remedy approached this Court, which calls for dismissal of the writ petition in

limine.Â

On merit of the case, learned counsel for the respondents submitted that the post of Senior Commandant is a “selection postâ€, for which, the

prescribed benchmark has been fixed is “Very Good†as per instruction given by the Department of Personnel and Training Office Memorandum

dated 08.02.2002. The petitioner in a duly convened DPC was assessed “Unfit†as he failed to achieve the required benchmark, therefore, the

petitioner was superseded by his juniors, who achieved the benchmark and were empanelled in the duly convened DPC meeting. It has further been

submitted that as per DoP&T vide memo dated 13.04.2010 three Annual confidential reports for the relevant period were taken into consideration for

promotion, in which the petitioner did not meet the parameter fixed for promotion. It has further been submitted that prior to the period 2008-09 only

adverse remarks in the ACRs had to be communicated to the concerned officer and it is the case where the petitioner has failed to achieve the

required bench mark.

In support of his submission, learned counsel for the respondents referred to the decision rendered in the case of Dev Dutt Vs. Union of India &

Ors as reported in (2008) 2 SCC (L&S) 771.

From the pleadings available on record, it appears that substantially the petitioner is staking his claim for his promotion to the post of Senior

Commandant on the strength of argument that entries made in the ACRs for the relevant period were made arbitrarily and without giving any

opportunity of the petitioner. In this regard, it is manifestly clear that matter of promotion of the petitioner was earlier challenged before the writ Court

and Appellate Court at High Court of Kerela, but, besides that here the petitioner sought for quashing of impugned orders, by which, the representation

of the petitioner against adverse entries for the relevant period has been rejected. Thereafter, consequential prayer has been made for reconsideration

of petitioner’s claim for promotion on the promotional post. Hence, to meet the ends of justice the issue of maintainability even there is availability

of alternate remedy of appeal by way of Memorial, issue of maintainability is brushed aside. The question of availability of alternate remedy of appeal

has been well decided by Hon'ble Supreme Court in the case of A.V. Venkateswaran, Collector of Custom, Bombay Vs. Ramchand Sobhraj

Wadhwani & Another as reported in AIR 1961 SC 1506 and also in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors

as reported in AIR 1999 SC 22 wherein the Hon’ble Apex Court has copiously held that alternative remedy is not an absolute bar and it is not

binding upon the writ Court.Â

Now coming to merit of the case, on close scrutiny of documents available on record, it appears that the promotional post in question i.e. Senior

Commandant is a “Selection Postâ€, for which minimum prescribed bench mark was fixed as “Very Good†as per Department of Personnel

and Training Government of India, Office Memorandum dated 08.02.2002. From bare perusal of impugned orders it appears that the petitioner did not

meet the benchmark, hence, there is no illegality in the conclusion arrived at by the DPC by assessing the petitioner “Unfit†for the said post, Â

as he failed to achieve the required bench mark. So far entries made in the Annual Confidential Reports, now called as Annual Performance

Assessment Reports (APARs) are concerned, from perusal it appears that there was no adverse entries and as per averments made in the counter

affidavit, as per instruction given by DoP&T, prior to assessment year 2008-09, only adverse remarks in the ACRs were to be communicated to the

concerned officers and only after enunciation of decision rendered in the case of Dev Dutt (Supra) and consequential issuance of Office

Memorandum dated 14th May, 2009 communication of all entries were provided to the petitioner. Hence, this Court finds no room for interference so

as to quash the impugned orders.

As a cumulative effect of the aforesaid facts, reasons, judicial pronouncements and circulars/instructions issued by DoP&T, the writ application,

being devoid of any merit is dismissed.