Full Text
Date of Decision: 19.08.2015 WP (C) No. 13 5 9 of 2013
MAHABOOB KHAN Petitioner
Through: Mr. N.L. Bareja, Advocate.
Through: Mr. S.S. Sejwal, Law Officer & SM/OS Mr. R.K. Sharma, CRPF
WP (C) No.2757 of 2013 GIRRAJ PRASAD GURJAR Petitioner
Sejwal, Law Officer & SM/OS Mr. R.K.
Sharma, CRPF WP (C) No.354 of 2014 RAMBIR SINGH Petitioner
YOGESH KUMAR Petitioner
Officer & SM/OS Mr. R.K. Sharma, CRPF WP(C) No. 1803of2014
JAGDISH PRASAD JAT Petitioner ow
Through:
Respondents Mr. Jasmeet Singh, CGSC with Mr. Rahul Raj Malik, Advocate along with Mr. S.S.
Sejwal, Law Officer & SM/OS Mr. R.K.
Sharma, CRPF WP(C)No.6183 of 2015 CT/GD SANDEEP Petitioner
HON'BLE MR. JUSTICE NAJMI WAZIRI WP (C) No. 1359 & 2757 of2013, 354, 1297 & 1803 of2014 & 6183 of 2015 :DHC:11477-DB
4- NAJMI WAZIRL J. (Oral)
The facts of all six writ petitions are nearly identical the minor differences have been listed in the table below. Since the question of law to be dealt with in all the petitions is the same, this common order shall dispose off each petition accordingly.
S. No. Name Date of Year of Number of Post Impugned LDCE days of
Letter NQS & period
JUDGMENT
1. Mahaboob 12.09.2012 2012 6 days from SI/GD Khan 30 th January till 4th February,
2. Girraj 20.09.2012 2012 15 days SI/GD Prasad from Gurjar 15.09.2005 to 29.09.2005
3. Rambir 28.06.2013 2013 (6+13)21 SI/GD Singh days from
03. 12.2007 to 08.12.2007 and 22.11.2010 to
4. 12.2010
4. Yogesh 28.06.2013 2013 1 day on SI/GD Kumar 04.08.2006
5. Jagdish 28.06.2013 2013 2 days from SI/GD Prasad Jat 2 1.05.2007 to 22.05.2007
6. Sandeep 13.04.2015 2014 64 days SI/GD WP (C) No. 1359& 2757 of 2013, 354, 1297& 1803 of 2014 & 6183 of2015:DHC:11477-DB from 23.08.2006 to 25.10.2006
1. These writ petitions impugn the abovementioned letters, as listed in the third column whereby the petitioners' appointments to the post of SI/GD through their respective LDCE were rejected on account of them having Non Qualifying Service (NQS) as aforementioned which were treated as Dies Non.
2. The ground for rejection was that the petitioners had several days of Non Qualifying Service (NQS) as aforementioned. The petitioners otherwise were declared to be qualified on all other parameters. Furthermore, it is not in dispute that the said number of days of absence in each case were regularized by way of EOL. Since the petitioners had otherwise qualified in the said examination on all other parameters, they would have been appointed to the said posts of Sub Inspector (General Duty) in CRPF. However, due to the presence of NQS in their service records, their appointment was rejected.
4. It is the petitioners' case that they were never informed about the entries/endorsements of the said number of days of NQS in their service Irw records, which if intimated to them earlier at the relevant time would have caused them to take remedial measures to ensure that apart from the same having been regularised, it would not have become NQS. It is submitted that the petitioners would have instead not availed their other leaves. It is further contended that the entries/endorsements of the said number of days of NQS in their service records is in breach of Rule 32 of the CRPF Rules, WP (C) No. 1359 & 2757 of2013, 354, 1297& 1803 of 2014 & 6183 of 2015:DHC:11477-DB
1955.
5. According to the policy applicable to the petitioners, any entry of the above nature, i.e., absence without leave or even an entry of punishment in the service record of an individual during the recruitee's training period, which is prior to administration of oath is not considered an adverse entry against the said individual in his subsequent career. The petitioners rely upon Habitual Offenders Policy dated 18th December, 1996, Clause (7) of which provides as under:
7. Punishment entries Not to be Counted. The following punishment entries are not to be counted for the purpose of declaring an Airmen / NC (E) Habitual Offender or Potential Habitual \offender necessitating issue of show cause notice or warning letter as the case may be:- (a) Punishment entries incurred during ab-initio training period The policy is henceforth applicable only after completion of ab-initio training. (b) A Black Ink entry...........and NCs (E)."
6. It is further submitted that the endorsement of the said number of days of NQS was within very short time of their enrolment in the Force as well as prior to administration of oath, which evidently is done on the conclusion of basic training and receipt of satisfactory character/antecedents report from the civilian authorities. The petitioners were duly inducted into the force after administration of oath and meeting of all requisite formalities. Therefore, the said entries could not be considered as an impediment in their career prospects. It is submitted that the LDCE, 2012 and subsequent LDCEs were conducted under the Standing Order No. 01/2010 which was further amended by way of the Addendum/Amendment dated 11th October, 2011 and vide Signal dated 02.12.2011, which provided that the applicant WP (C) No. 1359& 2757 of 2013, 354, 1297& 1803 of 2014 & 6183 of 2015:DHC:11477-DB should have minimum good ACRs for the last four years and should have an unblemished service record immediately preceding four years.
7. The NQS referred to and relied upon by the respondents are for periods prior to the aforesaid Addendum/Amendment to the Standing Order. Therefore, assuming that the said period was to be treated as NQS, it would neither be applicable nor relevant under the aforesaid Addendum/Amendments to Standing Order No. 1/2010. The said Addendum/Amendment reads as under: Stage - I Checking of service records No marks allotted for Stage-I. Applicant should have minimum Good ACRs of last four years and should have unblemished service record until the issue of offer of appointment. The Unit/GC/ office/ institution concerned will certify eligibility of each candidate applied for SI-LDCE and forward nomination along with this certificate to the concerned Sector conducing SI-LDCE.
8. It is further contended that since the entries have been made surreptitiously without notice to the petitioners, they would be of no consequence and they cannot be relied upon or taken into consideration as obstacles in the appointment of the petitioners to the post of Sub Inspector (GD).
9. Refuting the said arguments, the learned counsel for the respondents submits that the denial of appointment to the post of Sub Inspector (GD) was on the basis of the record which revealed that the there were several number of days of NQS; that newly enlisted recruits were bound to attend roll call, evening marker, check roll call, etc. as a measure of discipline and to ensure that they may not desert from duties; that while undergoing basic WP (C) No. 1359 & 2757 of2013, 354, 1297 & 1803 of2014 & 6183 of 2015 Page 6of[8] 2015:DHC:11477-DB training, recruits have to adhere to a systematic procedure and that it was incorrect that the petitioners were dining in the B Mess of AWS.
10. After having hear the learned counsel for the parties, a query was put by the Court to the learned counsel for the respondents, whether the petitioners had been intimated of the said NQS entry in their service record and the answer was in negative.
11. This Court is of the view that putting a government servant at a disadvantage by an adverse entry in his service book without intimation to him would be against the principles of natural justice. It need not be reemphasised that no punishment or adverse entry can be meted out to any person without first giving the person an opportunity to be heard.
12. In the present cases, the petitioners were never informed that certain periods of absence from work were treated as NQS. Although, it is claimed that they were very much within the AWS precincts and were dining in B Mess. Furthermore, the amended Standing Order requires consideration of only the immediately previous four years' ACRs and an unblemished service record, till the issue of appointment letter. It is not in dispute that 'U' the petitioners' last four years' ACRs immediately preceding the Limited Departmental Competitive Examination (LDCE) were good and they continued to have unblemished service records thereafter till the impugned letter of rejection, which actually should have been offer of appointment. Therefore, the entry of the aforementioned number of days as NQS is void and meaningless and is unsustainable in law. There being no impediment in the appointment of the petitioners to the posts of Sub Inspector (GD), they ought to be so appointed.
13. In view of the above, the writ petitions are allowed. The respondents WP (C) No. 1359 & 2757 of 2013, 354, 1297 & 1803 of 2014 & 6183 of2015:DHC:11477-DB 3C are directed to issue, within two months from today, letters of appointment to the petitioners to the post of Sub Inspector (GD) as per their respective order of merit in their respective LDCE. The petitioners shall be entitled to Ii all benefits, as available to them in law. the above terms.
AUGUST 19, 2015 acm The petitions are disposed off in NAJMIRT, J. KAILAMBHIR, J. WP (C) No. 1359 & 2757 of 2013, 354, 1297 & 1803 of 2014 & 6183 of 2015:DHC:11477-DB