Swapan Kumar Dasgupta vs The Chief Security Commissioner

Arun Kumar Mitra, J.—In this writ petition the grievance of the writ Petitioner is that he has not been given promotion in the next higher post though the Respondent Nos. 4 to 35, who are junior to the Petitioner have been given promotion illegally and arbitrarily.

The Petitioner is an Instructor; Railway Protection Force and he has been posted at Sini under Chakradharpur Division in the District west Singbhum, Bihar. The Petitioner initially joined as Sub-Inspector (Executive), and he was appointed directly by the Railway Service Commission and had undergone initial post training in the year 1 976-1977. The Petitioner was posted in a working post w.e.f. March 27, 1977 as Sub-Inspector.

The Petitioner is senior in the length of service as Sub-Inspector to the Respondent No. 4 to 35. In para. 6 of the writ petition the Petitioner has given the date of promotion of the Respondent Nos. 4 to 35 respectively. According to the Petitioner he is senior to the Respondent Nos. 4 to 35 in length of service. Chapter 10, para. 10 of Railway Protection Force Regulations 1966 (hereinafter termed as said regulation) runs as follows:

The directly recruited candidates hall have to execute the agreement as given in appendix-A of the R.P.F. Rules before joining the training school and shall be designated as an ''S.I. Cadet'' until he has successfully completed the training. There was stipulation that while underlining he will be entitled to the payment of ''stipend'' in accordance with Board''s letter No. P.C.59/PS-9/B/3, dated 01.04.1963. The date of his appointment will be the date on which he is appointed against a working post after successful completion of his training.'' Accordingly the Petitioner was appointed as Sub-Inspector (Executive) after successful completion of training. According to the Petitioner it is therefore also clear that as a direct recruited candidate the date of appointment of the Petitioner is the date on which he is appointed against a working post.

Chapter 10, para 16(iii) of the said regulation runs as follows:

(iii) Seniority:, The Seniority of Sub-Inspectors both directly recruited and promotes will be determined on the following principles:

a) Directly recruited Sub-inspectors: The seniority of directly recruited Sub-Inspectors will be fixed according to merit position obtained in the examinations of S.ls in the initial course at the training: centre when two or more candidates are declared to be of equal merit at one-and the. same examination, their relative seniority is to be determined by the date of birth- the elder candidate being the senior.

In case a Sub-Inspector candidate fails to .qualify in the Initial course examination and subsequently qualifies in a repeat course, he shall be placed below those who qualified in the said initial examination. In case more than one S.I. qualified in the repeat course, they will. be placed on bloc (in order of merit) below those who qualified in the said initial course examination.

b) Seniority of Promoter Senior Inspectors, who appeared for selection: Those will be determined according to the position assigned to candidates in the select panel of Sub-Inspector drawn up by the Selection Committee.

According to the Petitioner the seniority should have been fixed giving effect to Ch. 10, Serial No. 9, ch. 11, serial No. 11 of R..P.F. Regulation, 1966 whereas during fixation of the seniority of the Petitioner the Respondent authorities ignored all norms and rules and prepared the seniority list arbitrarily violating the R.P.F. Rules.

The Petitioner contended that if correct seniority position is taken into account the Petitioner should have been promoted to the post of Inspector as the Petitioner is senior to Respondent Nos. 4 to 35.

According to the Petitioner the Respondent No. 1 by his order dated July 24, 1985 promoted 37 Sub-Inspectors to the rank of Inspector Gr. II in the scale of Rs. 470-750 and most of them are junior to the Petitioner in length of service and the Respondent No. 9 by his said action violated the norms and fixed up an incorrect seniority list. The Petitioner contended that by promoting the Respondents as Sub-Inspectors the Respondent No. 1 committed illegality and this is in violation of R.P.F. Regulation 1966.

The Petitioner contended further that the promotion of the lnspeutor Gr.II was considered according to the seniority-cum-suitabiiity. The principle of suitability is to be determined from the service records during the period from 1979 to 1984. According to the Petitioner he has accrued a right to be considered for the promotion in the rank of Inspector Gr.II. His seniority-cum-suitability in force Order ho. 230/85 dated July 24, 1985.

The Petitioner alleged that he received. notice issued by Respondent No. 2 dated December 29, 1986 in which it was stated adversed remarks have been recorded in the Annual Confidential Report for the year 1985. The allegations made against the Petitioner are as follows:

9(E)(1) Poor.

F(1) No cordial relation between him and-the-officers.

This SIPF was organising crime in NMP Yard taking protection under R.P.F. Association. He is dishonest, indisciplined and disloyal. The Petitioner has annexed the said Confidential Report dated December 29, 1986 as Annexure-F to the writ petition.

The Petitioner made several representations which have been collectively made Annex. G.

According to the Petitioner uncommunicated remarks cannot be taken into account in assessing the merits of an eligible candidate like the Petitioner.

The Petitioner filed an application under Article 226 of the Constitution of Indin and Hon''ble Justice G.N. Roy (as His Lordship then was) directed the. Petitioner to make a detailed representation-by his order dated June 21, 1989. The Petitioner submitted the representation within the ''stipulated period fixed by his Lordship and it was dated July 8, 1989, mentioning all the facts and anomalies in seniority list as well as adverse remarks of his Annual Confidential Report. The Petitioner has annexed the representation dated July 8, 1989 as annex. H to the writ petition.

The Respondent by his order dated November 6, 1989 rejected the said representation. The said rejection order has been made annex. I to the writ petition.

Challenging the said rejection order the Petitioner moved another writ petition which was registered as CO. No. 2089 (W) of 1990 and the matter was finally heard by Hon''ble Justice Mohitosh Majumdar (as His Lordship then was) on March 26, 1991. His Lordship after hearing the learned advocate for the parties set aside the impugned order dated November 6, 1989. His Lordship was pleased to direct the Respondent No. 1 to consider the Petitioner''s case within two months in terms of his representation. The writ petition was allowed and disposed of. The copy of the said order dated March 26, 1991 passed by his Lordship has been made Annex. J to the writ petition.

According to the Petitioner, thereafter he made representations through proper channel with request to consider the case of the Petitioner as per orders, (enclosing the copy of the orders) dated March 26, 1991 passed by his Lordship. But nothing was done and the Petitioner had to serve a notice alleging contempt through his advocate''s letter dated May 27, 1993.

The Petitioner in this writ petition has challenged Annex, F to the writ petition i.e. the communication of the adverse remarks at a much latter stage, Annex.-I to the'', writ petition which is an order passed by C.S. C.R.P.F./S.E. Railway rejecting the claim ''of the Petitioner as well as Annex.-K being an order with a covering letter dated July, 14, 1993 and the said order being allegedly passed in terms of the order passed by Hon''ble Mr. . Justice Mohitosh Majumdar (as his Lordship then was).

Affidavit-in-opposition was filed on behalf of Respondent Nos. 1,2 & .3, In the said affidavit-in-op-position allegations of the Petitioner was denied. The stand taken in the affidavit-in-opposition is that the allegations made by the Petitioner that the Respondent Nos. 4 to 35 are juniors to him in service is not correct. In para. 12 of the said opposition it has been stated that the representation of the Petitioner has been carefully examined and the seniority of the Petitioner as Sub-Inspector has been correctly assessed. It was also averred in the said paragraph that the seniority list has been communicated in time to the Petitioner. The Petitioner''s claim that he was awarded with good number of rewards several times have been ignored as not correct. In paras. 19 & 20 of the opposition it was stated that Annual Confidential Report of the Petitioner contain '' adverse remarks. It has also been stated that the order dated June 2, 1993 in response to the Petitioner''s representation are never illegal, arbitrary nor there is non-application of mind as alleged or at all. It was also the case of the Respondents that more than three months'' time was given for submitting representation against the seniority list but the Petitioner did not object within that stipulated period.

In the opposition, it has been stated that the contention of the Petitioner that his juniors have been promoted to the post of Inspector Gr.ll under restructuring scheme (w.e.f. 01.04.1984) is totally baseless.

In the affidavit-in-opposition the grant of promotion to Md. Nur Alam has been justified. It has been stated that the allegations are vague and as such the writ petition should be dismissed.

The Petitioner gave a reply, to the said anidavit-in-6pposition. In the reply the Petitioner reiterated his stand taken in the writ petition. The Petitioner in para. 7 gave a detailed list of the Sl. No. in the seniority list and their date, of promotion/appointment. The Petitioner cited the case of R.R. Gurung, the case of Md. Nur Alam in addition to the SI. Nos. 161,163,165,167,169,171,173,175, 177,179.

In the reply the Petitioner also said that R.P.F. Rules fixing the seniority and granting promotion has been grossly violated. The Petitioner submitted that Annexs.F.I, & Annex. K should be set aside and the writ petition should be allowed.

2.2. The learned Counsel for the Petitioner submitted that the only case that could be made out by the Respondents is that in the Annual Confidential Report there is adverse remarks against the Petitioner and as such promotion was not granted to him. The Respondents also took a stand that the Respondent Nos. 4 to 35 are. not junior in service to the Petitioner.

The learned Counsel for the Petitioner further submitted that adverse remarks, if any, should be communicated to the Petitioner and opportunities should be given to him to counter the allegation labeled against him. In this regard the learned Counsel for the Petitioner relied on a judgment of the Hon''ble Apex Court reported in 1979 S.C.C. L&S 197 (Gurdial Singh Fiji. v. State of Punjab). The learned Counsel for the Petitioner laid stress on para. 17 of this judgment which is quoted herein below:

The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation-offered by the person concerned, whether the adverse report is. justified. Unfortunately, for one reason or another, not arising out of any fault On the part of the Appellant,. though the adverse report was communicated to him, the Government has not been able to consider his explanation whether the report was justified. In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the Appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the abse rice of a proper pleading, whether the Appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him.

The learned Counsel for the Petitioner also relied on a judgment delivered by Hon''ble Justice Ajit Kr. Sengupta (as his Lordship then was) in Narendra Nath Dutta v. Union of India CO. No. 6693 (W) of 1985.

In this judgment the Hon''ble single Judge referred to Fiji''s case and observed that a system may be introduced is to ask the Officers which records the confidential remarks to serve a copy of the said remarks on the officer concerned before the confidential roll is submitted by the higher authority so that his representation against the remarks also reach the higher authority shortly after the confidential roll is received. In this judgment also the Hon''ble single Judge observed that when making any adverse remark in Annual Confidential Report the Petitioner must be given opportunity.

In a judgment delivered by Hon''ble Division Bench in .an unreported decision-in Sudhir Kr. Moitra v. Union of India Co. No. 15756 (W) of 1988 observed in the manner as follows:

In the instant case the learned Trial Judge himself has held that the Petitioner could not have been denied his right to be considered for promotion on the basis of such uncommunicated adverse remarks, in this view of the matter we are of the opinion that in view if. Article 14 and 16 of the Constitution of India the Petitioner was entitled to all the service benefits to which the other persons similarly situated were granted, namely, the proforma fixation with, effect from 1.4.83 along with cash payment with effect from . 1.1.84 in terms of letter dated 9.5.84 read with letters dated 17.4.84 and 31.3.84. In a similar matter the Division Bench of this Court comprised of G.N. Roy and S.K. Hazari (as his Lordships then were) granted the said prayer wherein also the concerned employee was debarred from promotion on the. basis of doubtful integrity. Furthermore there cannot be any doubt whatsoever that as the persons who are similarly situated have got the benefit, the Petitioner is also entitled thereto.

For the reasons aforementioned this appeal succeeds and that part of the judgment whereby and where-under the Petitioner was to receive benefit from the date of filing of the writ application is set aside and in its place and stead it is directed that the Petitioner should be given notional promotion with effect from April 1, 1983 as was given to other employees and it is further directed that the cash benefit should be given to him with effect from January 1, 1984 as similar benefits have been given to other employees.

This appeal is, therefore, allowed with the aforementioned directions.

In the facts and circumstances of the case there will be no order as to costs.

The Petitioner then relied on another unreported decision in Harihar Prasad Tripathi and Ors. v. Union of India and Ors. Co. No. 14196 (W) of 1989.

In this judgment Hon''ble Justice Samaresh Banerjee observed in the manner as follows:

Let a writ in the nature of Mandamus be issued directing the Respondents to form a Selection Committee within a month from the date of communication of the order for consideration of the case afresh. Such Selection Committee while considering the case of the Petitioner will consider the service records of the Petitioner for the period from 1979 to 1983 only for the purpose of examining whether he is so unsuitable and unfit for which notwithstanding his seniority he -can be denied promotion.

It is, however, made clear while making such consideration, the said Selection Committee shall not taken into consideration the adverse remarks for the year ending 1982-83 which were communicated to the Petitioner previously after the meeting of the Selection Committee.

The Respondents after such decision of the Selection Committee shall promote the Petitioner to the post of Sub-Inspector Railway Protection Force in accordance with law with effect from the date his juniors have been promoted and thereafter his interse seniority in the post of Sub-Inspector shall be fixed.

It is further directed that such promotion shall be given with effect from the date he has been superseded by his juniors notionally but he will be entitled to cash benefits in terms of the Government Circular dated January 1, 1984. The pay of the Petitioner shall also be accordingly fixed on the basis of the aforesaid promotion.

All such steps shall be taken- by the Respondents'' positively within two months from the date of decision of the Selection Committee.

In this judgment the Hon''ble Justice Samaresh Banerjee in an identical situation directed the Respondent to grant promotion to the Petitioner.

The learned Counsel for the Petitioner submits that the should be granted promotion on quashing Annexs. F, l & K.

The learned Counsel for the Respondents opposed the prayer of the Petitioner and submitted that promotion is not a matter of right and here the criteria of promotion is suitability-cum-seniority and not only seniority and in that view of the matter the Petitioner cannot claim promotion as a matter of right. No rule has been violated and the named persons being Respondent Nos. 4 to 35 are not juniors to the Petitioner and. as such the claim of the Petitioner cannot be said to be accepted.

Heard the learned Counsel for the Petitioner as well as the Respondents. It appears from annexed seniority list which has been quoted again in the affidavit-in-reply that most of the persons out of Respondent Nos. 4 to 35 are junior to. the Petitioner.

It is also a settled position of law as would appear from the judgments referred to above and many other judgments that if there is any adverse remark or adverse comment in the Annual Confidential Report of any employee the same must be communicated to him and opportunity must be given to him to defend the said adverse remark. It appears from Annex. J to the. writ petition that Hon''ble Justice Mohitosh Majumdar (as his Lordship then was) allowed the writ petition and set aside the adverse remark and directed the authority to hear the Petitioner and pass a reasoned order. In pursuance of the said order of his Lordship, the Respondent authority/Chief Security Commissioner, R.P.F. gave a hearing to the Petitioner but ultimately rejected the representation of the Petitioner and or claim of the writ Petitioner on the ground- that the Petitioner has not raised objection and committed delay in the matter of final objection insofar as the seniority list is concerned. It really appears from the annexures to the writ-petition that the Petitioner has made several representations and the authority rejected the claim of the Petitioner .mechanically on the ground of adverse remark in Annual Confidential Report. Hon''ble Justice, Mohitosh Majumdar (as his Lordship then was) set'' aside the adverse remark and directed the Respondent authority to pass a reasoned order. Again as would appear in Annex. K the Respondent authority passed the same order. In the conclusion the Respondent authority only said that since the Petitioner has committed delay, his petition is rejected.

I don''t find it necessary to encumber this judgment referring to so many other judgment of the Hon''ble Apex Court as well as different High Courts. I think the only one will suffice which is reported in 1985 SCC (L&S) 465 (Arun Kr. Chatterjee v. South Eastern Railway and Ors.). In this judgment the Hon''ble Apex Court observed in the manner as follows:

We have set out the facts at some length. It would appear from these facts that there was no delay, much less inordinate delay, on the part of the- Appellant in filing the petition under Article 226 of the Constitution for the protection of high right as to inter se seniority. Earlier, he had made three representations to the departmental authorities in the matter without any redress. If the attention of the learned Judges had been drawn to these facts, they would not have made the aforesaid modification. It is, however, argued that the order of posting on transfer communicated by the Chief Personnel Officer dated October 14, 1958 specifically stated that the seniority of the Appellant would be counted from the date of his posting below all permanent and temporary clerks. In his supplementary rejoinder, the Appellant has controverted this fact there is nothing on record to show that the said order of posting was ever communicated to him.

This judgment was delivered by the Hon''ble Apex Court in an identical situation,

It is also a settled proposition that promotion is not a matter of right, it is the prerogative of the management. The right to be considered for promotion is how-'' ever. a right if the candidate is within the zone of consideration. But in the instant case by making discrimination or violating of all provisions of Article 14 & 16 the authority has made the Petitioner entitled to get promotion. Normally the Court should not direct any authority to grant promotion to anybody. But in the instant case the Petitioner has suffered a long not because of his own fault but because of: non-communication of adverse comment, non-consideration of representations and or mechanical consideration of the representations and even if after passing of the judgment by Hon''ble Justice Mohitosh Majumdar (as his Lordship then was), the authority passed a long order but the extent of observation is same that is there is adverse remark in the Annual Confidential Report of the Petitioner and there is delay in challenging the seniority list.

In my opinion, both the points advanced by the Respondent authority to come to a logical conclusion in not granting promotion to the Petitioner are not tenable in law. Adverse comment was not communicated and delay cannot be a ground in the instant case since for a long time representation after representation has been given by the Petitioner, order has been passed by the Respondent authority mechanically, the said order has been set aside by the High Court and then again identical order has been passed.

In that view of the matter the Annexs. F, l & K are set aside. The writ petition is allowed, the Respondent authorities are directed to grant promotion to the Petitioner in the next higher post. Such promotion is to be given to the Petitioner within a period of one month from'' the date of communication of the order. When granting such promotion, however, the position of Respondent Nos. 4 to 35 should not be disturbed inasmuch as they have been serving in their posts for a long time. After giving the promotion to the Petitioner the scale of pay is to be fixed notionally from the date of grant of the promotion and actual payment benefit will be given to the Petitioner prospectively,

The. writ petition is thus disposed of with the above directions.

There will be no order as to costs.

Urgent xerox certified copy, if applied for, will be given to the parties expeditiously.