* THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + WRIT PETITION NO. 7254 OF 2002 % Dated 21.12.2010 # V.K.S.Narayanan and another ... PETITIONERS V. $ The Director General, CISF, New Delhi and others ...RESPONDENTS ! Counsel for the Petitioners : Sri B.Gajendra Reddy ^ Counsel for the Respondents : Sri M.Ganga Rao, Central Government Standing Counsel and Sri Ponnam Ashok Goud, Asst. Solicitor General < Gist : > Head Note: ? Cases Referred: 1. 2001 (5) ALD 131 (DB) THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION NO: 7254 OF 2002 Date: 21-12-2010 BETWEEN: V.K.S.Narayanan and another ... PETITIONERS AND The Director General, CISF, New Delhi and others ...RESPONDENTS HONOURABLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION No.7254 OF 2002 ORDER: Petitioners were employed as Constables in the Central Industrial Security Force (for short ‘CISF’). They have opted to become part of the Fire Wing of the Force in the year 1991. The Departmental Promotion Committee (for short ‘DPC’) was constituted for effecting promotions of Constables (Fire) to Nayak (Fire). Petitioners were promoted only in the year 1997 on the basis of the selection made by the DPC. Petitioners made number of representations and approached this Court on several occasions, complaining that many constables, who were juniors to them, were promoted much before, and they have been denied their legitimate place in the seniority list of the post of Nayak (Fire). The last of such writ petitions was disposed of with a direction to the respondents to consider the case of the petitioners and to pass appropriate orders. According to them, the Director General, CISF, passed orders, dated 16-11-2001 and 20-11-2001, in respect of both the petitioners herein, rejecting their cases. Petitioners feel aggrieved by the same. They contend that they became due for promotion, soon after they joined the Fire Wing of the Force, but their promotions were effected only in the year 1997 and several Constables, who were juniors to them, were given promotion in preference to them. 2. Respondents filed a detailed counter affidavit as well as additional counter affidavit. They have also filed the supporting documents, including the relevant rules and notifications. They contend that appointment to the post of Nayak (Fire) is through selection and only those constables, who cross the minimum of 50 marks, in terms of assessment of their performance in a block of 5 years, that would be promoted. It is urged that the petitioners did not cross the bench mark for the block of 5 years between 1987 and 1991 and they secured more than 50 marks only in the subsequent block period between 1992 and 1996. 3. Sri B. Gajendra Reddy, learned counsel for the petitioners submits that the respondents did not dispute that several juniors to the petitioners were promoted to the post of Nayak (Fire) much earlier, and there was no justification in denying promotion to the petitioners at the relevant point of time. He submits that the petitioners were denied promotion on the basis of certain unfavourable entries in the service record and unless they were communicated to the petitioners, the respondents were not supposed to rely upon them. He places reliance upon the judgment rendered by a Division Bench of this Court in A.VEMA REDDY v. CONPTROLLER GENERAL OF DEFENCE ACCOUNTS, NEW DELHI[1]. 4. Learned Additional Standing Counsel for the respondents, on the other hand, submits that the appointment to the post of Nayak (Fire) is purely by selection and the objective parameters for assessment of the merit are stipulated under the relevant rules. He contends that the petitioners were not promoted earlier to 1992 because of their poor performance for the block from 1989 to 1991. He submits that the impugned order has mentioned the reasons with reference to relevant records and that it does not warrant any interference. 5. Petitioners became part of the Fire Wing of the CISF in the year 1991, as Constables. Even by that time, they possessed the requisite length of service, for being considered for promotion to the post of Nayak (Fire). 6. The Government of India issued the CISF Rules, 1969 in exercise of power under Section 22 of the CISF Act, 1968. Amendments were made to those Rules in the year 1990. The rules as amended, provide for the method of recruitment to various posts. The post of Nayak (Fire Service) is treated as selection post. The method of recruitment is by absorption of persons from the units of Industrial Undertakings, to the extent of 10%, and by promotion to the extent of 90%, failing which the post can be filled by direct recruitment. 7. Through circular No.13/1992, dated 30-04-1992, the Director General of CISF, elaborated the method of selection for promotion from the post of Constable (Fire) to the post of Nayak (Fire). Eligibility and other relevant factors are mentioned as under: “List B: CONSTABLE (FIRE) TO NAIK (FIRE). i) ELIGIBILITY : From amongst Constable (Fire) with 5 years regular service and having successfully passed the P.C.C. while counting the qualifying service in the rank, the regular service rendered by a person in the equivalent rank of executive cadre may also be taken into consideration. The zone of consideration / cut off year in order of seniority will be issued by Force HQrs. In case of personnel absorbed from Public Sector Undertakings etc. as optee, the service rendered by them in the grade equivalent to Constable (Fire) will also be counted. ii) Composition of the DPC : The DPC as per the following composition may be convened at least once in a year in the month of MARCH. a) Chairman - AIG (Fire) / Comdt (Fire) / Principal, CISF, FSTI. b) Member 1. - Dy. Comdt (Fire) / Asstt. Commandant (Fire) 2. - Asstt. Comdt (Fire) / Asstt. Comdt (Exe) 3. - One Asstt. Comdt. from the field unit belonging to SC/ST Category. NOTES:1. Chairman and members to be nominated by DIG (Fire). 2. Proceedings of the DPC including that of Fire Service Trg. Institute are to be approved by DIG (Fire). 3. Cases of personnel borne on the strength of the Force Hqrs. will be considered by CISF HQrs. (Fire) with the above said composition of the DPC. The proceedings in respect of these personnel shall be approved by DIG (Fire). 4. DPC proceedings, in duplicate shall be sent to Force HQrs. (Estt.I Section) for preparing a consolidated panel latest by 1st APRIL. iii) SERVICE RECORDS (TOTAL MARKS – 80). 1. Annual Remarks (Total marks – 30) : A maximum of 16 marks are allocated for each annual remarks for past 5 years which the DPC will consider as per details given below (viz 16 x 5 = 80 marks). a) Outstanding - 16 marks b) Very Good - 13 marks c) Good - 10 marks d) Satisfactory / Average - 07 marks e) Below Average - 00 (Zero) 2 . PUNISHMENTS : during the past five years period which the DPC will consider, 3 marks will be deducted for each Minor Punishment. He will be declared ‘BELOW AVERAGE/NOT YET FIT’ in case of major punishment in the preceding year of holding of DPC. Otherwise 5 marks will be deducted for each MAJOR PUNISHMENT. However, the aggregate marks should not be less than 50marks in case of general category candidates and not less than 40 marks in case of SC/ST candidates. NOTES : 1. For all general category candidates who secure 50 marks or above and 40 marks or above in respect of C/ST candidates would be termed as ‘GOOD’. All candidates who secure bench marks ‘GOOD’ as prescribed above should be included in the panel in order of their inter-se-seniority in the lower category.” 8. From this, it is very clear that the assessment of the performance in terms of marks would be undertaken for each block of 5 years. It is only those, who secured 50 marks (40 marks for Scheduled Caste and Scheduled Tribe candidates) that would be considered for promotion and the process is purely by selection in nature. 9. The record placed before this Court discloses that the 1st petitioner secured 44 marks for the 5 years block from 1987 to 1991. His performance was as under: “87 – Average – 07 88 – Good - 10 89 – Average - 07 90 – V/Good - 13 91 – Average - 07 ------------------------- Total - 44 ------------------------- 10. Similarly, for the 2nd petitioner, the performance for the very same block was as under: “87 – Average – 07 88 – Average – 07 89 – Good - 10 90 – Good - 10 91 – Good - 10 ----------------------- Total - 44 ------------------------ 11. It is only in the next block of 5 years from 1992 to 1996 that the 1st petitioner secured 51 ½ marks and the 2nd petitioner secured 53 marks. Accordingly, they were promoted. Some Constables, who were juniors to the petitioners, were no doubt, promoted to the post of Nayak (Fire) much before the promotion of the petitioners. That, however, was on the basis of the assessment of their performance in the same manner. For example, S.C.Sekaran, who was a Constable, junior to the petitioners, secured 53 marks for the 5 years block of 1987 to 1991. Therefore, no exception can be taken to the promotion of certain juniors in preference to the petitioners. 12. Reliance is placed upon the judgment of this Court in Vema Reddy’s case (supra 1). This Court took the view that an employee cannot be denied promotion solely on the ground that his performance in the feeder category post was assessed to be ‘average’. The Rules of promotion applicable to that case, however, are substantially different. The following passage makes that aspect very clear: “2. ….. Under the relevant cadre and recruitment rules the mode of promotion from the post of Auditor to the post of Section Officer (Accounts), from the post of Section Officer to the post of Accounts Officer is by way of seniority-cum-fitness.” 13. In the instant case, the promotion is purely by selection and hardly any role is assigned to the seniority. The process of selection, in turn, is absolutely objective and virtually no role is left to be played by the Selection Committee. 14. The grievance of the petitioners that the remarks were not intimated to them, does not warrant appreciation. The assessment of the performance of an employee is substantially different from making of adverse entries or remarks against him in the service record. If any adverse entry is made, it is liable to be communicated and such an entry cannot be taken into account for the purpose of promotion etc., unless it was communicated. The assessment of performance, on the other hand, does not in any way reflect negatively upon the employee. It is an opinion, expressed by the Superior Official and hardly any punitive element exists in it. The 1st respondent has assigned cogent reasons in support of his conclusion and this Court is not inclined to interfere with the impugned order. 15. The Writ Petition is, accordingly, dismissed. There shall be no order as to costs. ____________________ L. NARASIMHA REDDY, J December 21, 2010. Note:- L.R.Copy to be marked B/O(KTL) [1] 2001(5) ALD 131 (DB)