RD Dogra v. Union of India & Ors.

1. This petition has been filed by the petitioner with the following prayers: “In view of the foregoing facts and circumstances, this Hon‟ble Court may graciously be pleased to: a) Issue a Writ, order, or direction in the nature of Certiorari quashing the impugned order dated 31.08.2022 passed by the Ministry of Home Affairs, to the extent that Petitioner has been ignored and his juniors i.e. Respondent No. 3 to 5 have been promoted to the post of Deputy Inspector General; b) Issue a Writ, order, or direction in the nature of mandamus directing the Respondents No. 1 and 2 to consider the Petitioner for promotion to the rank of Deputy W.P.(C) 14141/2022 Page 2 Inspector General for the vacancy year 2022 and include his name in the Select Panel and he may also be promoted on his own turn alongwith all consequential benefits. c) Pass any other or further order/s as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case.”

2. The primary challenge of the petitioner in this petition is to the order dated August 31, 2022 passed by the respondent No.1, whereby, the petitioner was denied promotion to the post of Deputy Inspector General (‘DIG’, for short) in Level-13A in the BSF and as such the juniors to the petitioner, who have been arrayed as respondent nos. 3, 4 and 5 in this petition, were promoted.

3. It is the case of the petitioner and as contended by Dr. S.S. Hooda that the petitioner while working as Commandant was graded „very good‟ / „outstanding‟ in the last five relevant ACRs for considering his case for promotion to the post of DIG for the vacancy year 2022.

4. Dr. S. S. Hooda states that the petitioner meets the benchmark for promotion and yet, he has been denied promotion for the reasons best known. Thus, according to the Dr. Hooda, the reasons for denying promotion to the petitioner have not been communicated him. Dr. Hooda also concedes to the fact that though in the year 2016, the petitioner was communicated the displeasure of the Director General (‘DG’, for short) of the BSF, the displeasure being not in the nature of penalty could not have come in the way of promotion of the petitioner in view of „very good‟ / „outstanding‟ grading possessed by the petitioner in the last 5 preceding years of consideration, i.e., 2022. He W.P.(C) 14141/2022 Page 3 would rely upon the circular dated June 28, 1989 and OM dated March 27, 2015, issued by Ministry of Home Affairs/respondent No.1 to contend that it is no more res integra that displeasure is not a punishment/penalty and the same is generally awarded in cases where there is evidence of delinquency or irregularity but it is not considered worthwhile to institute formal disciplinary proceedings. He states that circular dated June 28, 1989, also contemplates, if displeasure has been recorded in a Confidential Record (‘CR’) for a period prior to the normal period of consideration of CRs by the DPC, it should be ignored. He further relies upon the Judgment of this Court in the case of Dr. O.P. Nimesh v. Union of India and Ors., W.P.(C) 2466/2017, decided on October 2, 2018 to contend that the present case is squarely covered by the ratio laid down in the said judgment to the effect that displeasure cannot act as an embargo to promotion.

5. Dr. Hooda has also shown to the Court, the show-cause notice dated November 27, 2015, issued to the petitioner by the respondent No.1, which ultimately led to the conveyance of displeasure of DG to the petitioner. He specifically relies upon the OM dated March 27, 2015, to contend once an APAR of an officer or a member of CAPF is finalized for the year or the date of finalizing such APAR is over, the displeasure or warning conveyed will become infructuous. He submits that the ACR of the petitioner of the year 2015-16 having been graded as „very good‟, despite consideration of the displeasure conveyed to the him, the same has now become infructuous. In other words, it is his submission that displeasure could not have been considered by the DPC, in view of the fact that despite considering the displeasure W.P.(C) 14141/2022 Page 4 conveyed to petitioner, he has been graded „very good‟ for the year 2015-16 and also in view of the OM dated March 27, 2015.

6. On the other hand, it is the case of Mr. Ripu Daman Bhardwaj, learned CGSC appearing for the respondent Nos. 1 and 2, that the petitioner joined the BSF on December 09, 1991, as Assistant Commandant and subsequently promoted to the ranks of Deputy Commandant w.e.f. October 7, 1998, Second-in Command w.e.f. June 3, 2005 and Commandant w.e.f. September 3, 2010. He states, the medical category of the petitioner is SHAPE-I. The petitioner’s case for empanelment and promotion to the rank of DIG was considered by the supplementary DPC held on August 10, 2022, under the Chairmanship of Special Secretary (IS) for the vacancy year 2022. However, the DPC graded the petitioner ‘unfit’ due to DG’s displeasure awarded to him on January 21, 2016. He states, it is pursuant thereto, the impugned order dated August 31, 2022 has been issued.

7. According to him, as per DoPT’s, OM dated February 8, 2002, the prescribed benchmark for promotion to the post of DIG is „very good‟. Moreover, there should not be any adverse entry in any of the ACRs under consideration of the DPC. In the present case, for the DPC held for the vacancy year 2022, the APARs for the last 5 years i.e., from 2015-2016 to 2019-2020 were to be considered. Since, the petitioner was awarded DG’s displeasure on January 21, 2016, which fact is recorded in his APAR for 2015-2016, the DPC has rightly found him unfit.

8. He further submits that though the petitioner has submitted the representation dated September 05, 2022, the same has been sent to W.P.(C) 14141/2022 Page 5 respondent No.1 for its decision and as such, the outcome of the same shall be intimated to the petitioner.

9. In the rejoinder submissions, Dr. Hooda, would submit that the stand of the respondent Nos. 1 and 2, that the displeasure having been recorded in the APAR of 2015-2016 and the same has been taken into consideration for denying promotion to the petitioner is totally an untenable argument. He also submits that the stand of Mr. Bhardwaj that DPC enjoys full discretion to devise its own method and procedure for objective assessment for suitability of candidates who are to be considered by them is also a misconceived argument as power to devise own method and procedure cannot be equated to laying down its own benchmark in contravention of the specific policies laid down by the Cadre Controlling Authority i.e., the respondent No.1. In other words, it is his submission, when specific guidelines have been laid down as to when the issuance of DG’s displeasure can be considered by the DPC, the DPC cannot go beyond the policies which have been laid down. He submits that the policy regarding DG’s displeasure by necessary implication means the grounds for consideration of DG’s displeasure beyond what is provided for are barred. He submits that in terms of the policy dated March 27, 2015, it is clear that the issuance of DG’s displeasure after writing of ACR, automatically become infructuous. In the instant case, the Reporting Officer has recorded in the petitioner’s APAR for the period April 01, 2015 to March 31, 2016 at Column NO. 9(d), only the factum of DG’s displeasure being conveyed to the petitioner. The Reporting Officer did not even find it worth considering the impact of DG’s displeasure on the suitability of the petitioner for W.P.(C) 14141/2022 Page 6 discharging his duties. Moreover, the Reporting Officer has recorded that the petitioner is a sincere and empowered officer and takes adequate interest in his command and also takes adequate steps for welfare, training and operations and as such graded him ‘very good‟ by giving him 6.04 marks out of 10, which has also been accepted by the Reviewing Authority.

10. In substance, it is his plea that DPC has by going into facts and circumstances under which the DG’s displeasure is issued and then deciding to ignore the petitioner for promotion, has gone beyond the well articulated and clear guidelines on the subject.

11. Having heard the learned counsel for the parties, the issue which arises for consideration in the present case, is no more res integra, in view of the Judgment of this court in the case of Dr. O.P. Nimesh (supra) decided on October 22, 2018, inasmuch as, in the said case, this Court had considered the effect of the displeasure conveyed to an officer, which is evident from paragraphs 10,11 and 12, reproduced as under:- “10. Having heard the learned counsel for the parties, the issue which falls for consideration is whether the petitioner was rightly denied promotion. The relevant proceedings have been placed before us and against the petitioner the following has been stated:

┌──────────────────────────────────────────────────────────────────────────────────────────────────────────────┐
│                                        Sl. Name         Designation Medical    Recommendat Remarks           │
│                                        No.                          Category   ion of the                    │
│                                                                                DPC                           │
├──────────────────────────────────────────────────────────────────────────────────────────────────────────────┤
│                                        2.      Dr.      DIG         SHAPE-I    Unfit       Not meeting       │
│                                                O.P.     (Medical)                          the benchmark     │
│                                                Nimesh                                      in APAR for       │
│                                                                                            the year 2012-    │
│                                                                                            13.      DG‟s     │
│ Signature Not Verified                                                                                       │
│ Digitally Signed                                                                                             │
│ By:ANIL KUMAR             W.P.(C) 14141/2022                                                        Page 6   │
│                                                                                            displeasure in    │
│                                                                                            2012-13           │
└──────────────────────────────────────────────────────────────────────────────────────────────────────────────┘

V. KAMESWAR RAO, J

SAURABH BANERJEE, J FEBRUARY 05, 2024