SBCR NO. 387/2003 – D.S. RATHORE V/S UNION OF INDIA AND ORS. : JUDGMENT DTD.25.3.2009 1/10 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO. 387/2003 D.S. Rathore versus Union of India and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr. K.K. Shah, for the petitioner. Mr.Vivek Shrimali on behalf of Mr.Ravi Bhansali, for the respondents. REPORTABLE DATE OF JUDGMENT : 25th March, 2009. JUDGMENT 1. By this writ petition, the petitioner – Dy. Commandant, presently working as Commandant in BSF has prayed that he ought to have been promoted to the Rank of Second-in-Command with effect from 16.1.1995, the date when his junior persons were promoted as such as his service career has been throughout unblemished and appreciated by various higher authorities and adverse entry for the SBCR NO. 387/2003 – D.S. RATHORE V/S UNION OF INDIA AND ORS. : JUDGMENT DTD.25.3.2009 2/10 year 1991-92 was since expunged by the competent authorities, therefore, there was no impediment in the way of his promotion to the post of Second-in-Command with effect from the aforesaid date on 16.1.1995. The petitioner was so promoted to the post of Second-in- Command later on by the DPC held on 29.9.1997. Therefore, the question is only whether he ought to have been promoted with effect from the date on 16.1.1995 when his juniors were so promoted. 2. Mr. K.K. Shah, learned counsel appearing for the petitioner vehemently submitted that the appreciation certificates given by the higher authorities of BSF in favour of the petitioner, copies of which have been placed on record as Annex.1 to 5 indicate that the petitioner has performed excellently in the BSF and has not only done exceptional hard work and devotion of duty in Gurdaspur (Punjab) at the time of terrorism in Punjab, but has also done excellent performance in an armed encounter with extremists on 23.8.1987 during such extremism and refusal to promote the petitioner to the post of Second-in-Command w.e.f. 16.1.1995 is absolutely wrong. Mr. Shah submitted that following adverse remarks for the year SBCR NO. 387/2003 – D.S. RATHORE V/S UNION OF INDIA AND ORS. : JUDGMENT DTD.25.3.2009 3/10 1991-92 communicated to him vide Annex.9 dated 24.8.1993 was expunged in two phases. The adverse remarks read as under: “A bulky looking officer who shows adequate interest in professional work. He is quite intelligent and painstaking. He can produce results once given a job. Has good level of initiative and dash... but for a minor indiscretion in faulty accounting of POL for which a SCOI is under finalisation. Integrity not certified till SCOI is not finalised.... SCOI is pending for various omission and commission. He needs a tough handler.” 3. Drawing the attention of the Court towards Annex.11 dated 14.5.1996, he submitted that adverse remarks to the extent of words “... He needs a tough handler” were deleted upon his representation and later on the remaining part of the aforesaid adverse remarks were also expunged vide Annex.15 dtd.14.10.1998. Mr. Shah, therefore, urged, relying upon the various decisions of the Hon'ble Supreme Court in the case of Dev Dutt V/s Union of India reported in (2008) (3) SCC (L & S) 771, Gopi Chand V/s State of U.P. and anr. SBCR NO. 387/2003 – D.S. RATHORE V/S UNION OF INDIA AND ORS. : JUDGMENT DTD.25.3.2009 4/10 reported in (2006) SCC (L & S) 1976 and Indian Institute of Technology and anr. V/s Paras Nath Tiwari and ors. reported in (2006) SCC (L & S) 1977 and judgment of this Court in the case of Satyamani Tiwari V/s State of Rajasthan (S.B. Civil Writ Petition No.2878/2003 decided on 11.8.2006) submitted that there was no reason to deny the promotion to the post of Second-in-Command to the petitioner w.e.f. 16.1.1995 when his juniors were so promoted to the said post and with the expunction of the adverse remarks as aforesaid, the petitioner became entitled to the benefit of promotion with retrospective date. 4. These contentions were strenuously opposed by Mr. Vivek Shrimali, learned counsel for the respondents who submitted along with the record of the case including the DPC proceedings that since categorization of the petitioner was average for the year 1991-92 and the record of 5 past years has to be considered for such promotion to the post of Second-In-Command in BSF for which bench mark categorization of the eligible candidates has to be 'very good' as per the guidelines laid down by the Ministry of Home Affairs vide circular dtd.25.11.1988, the petitioner could not be so promoted w.e.f. SBCR NO. 387/2003 – D.S. RATHORE V/S UNION OF INDIA AND ORS. : JUDGMENT DTD.25.3.2009 5/10 1.6.1995 and even though his adverse remarks were expunged in two parts on 14.5.1996 vide Annex.11 and 14.10.1998 vide Annex.15, yet the DPC had rightly decided not to promote him w.e.f. 16.1.1995. He submitted that since the petitioner's name was included in the list of 'officers with doubtful integrity' on these three dates, when the DPC considered the case for promotion on 22.9.1994, 22.11.1995 and 30.9.1996 and consideration of previous five years included the entries for the year 1991-92 in which the petitioner was categorized as 'average', therefore, notwithstanding later expunction of adverse remarks, he could not be promoted. 5. Mr. Vivek Shrimali, learned counsel for the respondents further submits that since on 29.9.1997, consideration for five years, namely, 1992-1993, 1993-94, 1994-95, 1995-96 and 1996-97 was made by the DPC on 29.9.1997, the petitioner's category was “very good” and his name was also out of the list of 'officers of doubtful integrity', the petitioner was so promoted to the post of Second-In-Command and therefore, no exception can be taken to not promoting him w.e.f. 16.1.1995. Drawing attention of the Court towards the additional affidavit filed by the respondents in this Court and reply filed by the SBCR NO. 387/2003 – D.S. RATHORE V/S UNION OF INDIA AND ORS. : JUDGMENT DTD.25.3.2009 6/10 respondents, he justified non-promotion of the petitioner and submitted that even review DPC held on 6.4.2000 had rightly found him unfit for promotion w.e.f. 16.1.1995. He therefore, prayed for dismissal of the writ petition. 6. Having heard the learned counsels at length and having perused the record of the case and the judgments cited at the Bar, this Court is of the opinion that the present writ petition filed by the petitioner deserves to be allowed. The reasons are as follows. 7. Admittedly, when the adverse remarks quoted above, which this Court was at loss to figure out as to how much and how far they were adverse, as far as services of the petitioner is concerned and even that too stood expunged by the competent authority vide Annex.11 dtd.14.5.1996 and Annex.15 dated 14.10.1998, how the petitioner was not entitled to be promoted from the date when his juniors were promoted w.e.f. 16.1.1995. Admittedly, no charge-sheet was served upon the petitioner as would be clear from Clause 6 of the report produced as Annex.R/7 document dated 14.5.1993 and the petitioner has not been held guilty either by the SCOI or by any SBCR NO. 387/2003 – D.S. RATHORE V/S UNION OF INDIA AND ORS. : JUDGMENT DTD.25.3.2009 7/10 other competent disciplinary authority. Once, the adverse entries communicated for the year 1991-92 stood wiped out at the hands of competent authority, there remains no basis for concerned DPC to still treat the petitioner as unfit. As would appear from the record, prima facie services of the petitioner have been commendable and his services have been appreciated time and again by various higher authorities. At the time when earlier DPCs were held on 29.9.1994, 22.11.1995 and 30.9.1996 since the aforesaid adverse entry was not expunged by that time, as it came to be expunged in second phase vide communication (Annex.15) dated 14.10.1998, the concerned authority had that adverse report in mind while considering the case of the petitioner for promotion and therefore, notwithstanding later expunction of adverse remarks by the competent authority, the categorization of the petitioner was found to be 'average' for the previous year 1991-92 and that deprived the petitioner from his due promotion w.e.f. 16.1.1995. It may be seen from the record that for the year 1989-90, the categorization of the petitioner was 'very good'. It is only for the year 1990-91 and 1991-92 that his categorization came to be made as 'average' which is this period when the so called adverse entries were operating against the petitioner and had been SBCR NO. 387/2003 – D.S. RATHORE V/S UNION OF INDIA AND ORS. : JUDGMENT DTD.25.3.2009 8/10 expunged by the competent authority after representation from the petitioner. Even the so called adverse entries reproduced above is half way praising the petitioner, but it is not known whether his description as “bulky looking officer” followed by “minor indiscretion in faulty accounting of POL (Petrol, Oil and Lubricant) for which SCOI (Staff Committee Of Inquiry) is under finalisation” or “he needs a tough handler” was felt to be an adverse remarks. This Court is really at loss to understand how these remarks should be straightway taken as adverse remarks and which also caused loss of categorization of the petitioner from “ very good” to “average” for two years, which resulted in delaying his promotion from 16.1.1995 to 29.9.1997. At least with the expunction of these remarks, the respondents in fairness, should have put the clock back and promoted him from 16.1.1995, when his juniors were promoted. 8. The Hon'ble Supreme Court in the case of Gopi Chand Vishnoi (supra) has clearly laid down that once the adverse entries were expunged, the promotion must be treated to have been wrongly refused in the year 1985 when such adverse entries were expunged in the year 1989 and therefore, the petitioner would be entitled to SBCR NO. 387/2003 – D.S. RATHORE V/S UNION OF INDIA AND ORS. : JUDGMENT DTD.25.3.2009 9/10 promotion w.e.f. 1985 when his juniors were so promoted, with all consequential benefits. 9. In the case of Dev Dutt V/s Union of India and ors (supra), the Hon'ble Apex Court laid down in para 12 that every entry in the annual Confidential Report of every employee under the State, whether he is in civil, judicial, police or other service (except the military) must be communicated to him, so as to enable him to make a representation against it, because non-communication deprives the employee of the opportunity of making a representation agaisnt it which may affect his change of being promoted. Notwithstanding the exception of Military Service made in para 12 by the Hon'ble Supreme Court, the fact that since the petitioner's adverse remarks, if at all they can be called 'adverse' were expunged by the competent authority which fact is not in dispute from the side of the respondents before this Court, this Court sees no justification in not awarding due promotion to the petitioner w.e.f. 16.1.1995 when his juniors were admittedly promoted. SBCR NO. 387/2003 – D.S. RATHORE V/S UNION OF INDIA AND ORS. : JUDGMENT DTD.25.3.2009 10/10 10. Consequently this writ petition is allowed and the respondents are directed to re-consider the case of the petitioner for promotion to the post of Second-In-Command w.e.f. 16.1.1995 when his juniors were so promoted and if the petitioner is accorded promotion w.e.f. the aforesaid date 16.1.1995, the petitioner shall also be entitled to other consequential benefits in accordance with law. No order as to costs. (DR. VINEET KOTHARI)J. ITEM NO. Ss/-