Case: Union of India &amp; Others Vs. K.P.S. Raghuvanshi &amp; Others

DGICG before completion of 90 days mandatory period. Thus, the officer DGICG, who had not completed 90 days, was competent as apparent from the notings of Secretary. The following matter was placed for consideration before the Ministry of Defence : "File Note 3 of MoD dated 16.04.2009 also states as under: "Vice Admiral Anil Chopra AVSM has taken over as DGICG on 1st December, 2008 Vice Admiral RF Contractor, retired on superannuation. The review of ACRs of Coast Guard Officers from whom the report is due as on 1st February 2009 need not be carried out by the incumbent DGICG as has not rendered 3 months of service to observe their workings on the date of the report due." File notings dated 21.04.2009 by Shri R.K. Sharma, Deputy Director (Personnel), OA&R, Coast Guard Headquarters at para 2 is also significant, which reads as under:- "In this connection, it is intimated that there has been no precedent where special dispensation has been sought from MoD on the subject matter." The Under Secretary (CG)/MoD in his note dated 22.04.2009 states that:- In view of the above, we may inform CGHQ to follow the instructions contained in CGO 04/05." 45. Thereafter, the matter travelled to Ministry of Defence and Defence Secretary and the Director. The Ministry of Defence communication dated 23.4.09 is as extracted below: "Ministry of Defence D (CG-R) Subject: Review of ACRs - Coast Guard Officers CGHQ may kindly refer to their Note No. OF/0303/ACR dated 13th April, 2009 on the subject mentioned above. 2. Review of ACRs by the Officer who has not observed the CG Officers for three months may be completed as per provisions of the CGO 04/2005. (V.K.Tiwary) Director (N-II) DDG/CGHQ M of D ID No.472/D(CG-R)09 dated 23rd April, 2009" It is apparent from the aforesaid note dated 22.04.2009, that review of the officers, who has not observed, may be completed as per provisions of 04/05, i.e., in accordance with para 54 of the CGO 04/05. 46. The High Court has misread the decision of the MoD and the order of Secretary. In fact, the Secretary, Ministry of Defence has also said in the notings that ACRs be completed as per CGO 04/05. CGO 04/05 authorized the current incumbent the DGICG to write the ACRs. Thus, the High Court has gravely erred in law in holding otherwise by misreading the notings as well as the provisions of para 54 of the CGO 04/05. There was no question of violation of the direction issued by the Secretary, MoD. CGO 04/05 was final, which hold field, and the action was in terms of the order as well as in accordance with said notings of Secretary, MoD. 47. Thus, in our opinion, the High Court ought not to have cast aspersions on the bonafide of DGICG, particularly, when he has reviewed not only the ACR of the concerned officer but 36 officers of the DIG rank and of 155 officers of Commandant rank. The observations made by the High Court about unauthorized exercise of power were totally uncalled for. 48. Coming to the question of correctness of remarks made by the reviewing officer, it appears that the period of ACR was 01.02.2008 to 31.01.2009, the DGICG had mentioned that - "the officer has put in a creditable performance at sea. His Ship accomplishment have been a trifle diluted by a few accidents and incidents. A hardworking, dedicated officer, who is articulate and sincere to his profession. Somewhat over assessed by the IO. I have maintained the numerical grading of my predecessor." We do not find anything adverse in the aforesaid comments made by the reviewing officer with respect to any particular incident of November 2007. One of the incidents relating to ship had taken place in November, 2007 with respect to that show cause was pending and was finalised later on. Other incident relating to ship, which was mentioned in the appraisal report, was of the year 2008, which was of the relevant period. Be that as it may, the notings, which have been made, does not show any prejudice on the part of the DGICG, in particular when he has maintained the numerical gradings made by his predecessor. It is apparent from the facts that there were 3 posts of general duty branch and the respondent was placed at serial No.4, among the general duty branch and thus, was left out. It is also apparent that criteria has not been changed in order to oblige IG-K.C. Pande as apparent from the fact that DPC had considered the cases of DIGs of the ranks, seniority up to 31.10.2005. The batch of the respondent comprised of 5 officers including him, which had completed 5 ACR of DIG. Respondent IG-K.C. Pande had only three reports, i.e., for the years 2005, 2006 and 2008 in the rank of DIG. Thus, all the 5 officers of the respondent batch were considered in accordance with para 7 CGO 02/09, which is extracted hereunder :CGO 02/2009 "7. The suitability for promotion shall be based in relevant service records and performance as reflected in the last five years confidential reports in the current rank. If sufficient ACRs are not available in current rank, consecutive 05 ACRs including those of previous rank will be considered. However, in case of Commandant (JG) the ACR years in the current rank will only be considered." 49. The High Court has misdirected itself in attributing uncalled for malafide, behind promulgation of the CGO 02/09. As already held, it was in order to bring the same in tune with the instructions issued by the Department of Personnel and Training. Earlier too, similar provision as that of para 7 of CGO 02/09 existed in CGO 14/02 before issuance of CGO 02/05. The process was initiated for issuance of CGO 02/09 w.e.f. 2005, it was not that all of a sudden the exercise had been undertaken in order to oblige any particular officer. We find no merit in the appeal preferred by DIG K.P.S. Raghuvanshi.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are unable to accept the aforesaid contention raised on behalf of the appellant, as it was disputed by Shri B.P. Singh, learned counsel appearing on behalf of Respondent No.1. Even otherwise, the concession on legal aspect is of no utility. However, we find that leave was granted by this Court vide order dated 27.11.2015 in the Special Leave Petitions. Apart from that, we find that the application being I.A. No.1/15 had been filed on behalf of the appellants for modification of the order passed by this Court on 21.11.2014 and a prayer was made to modify the said order and to grant liberty to file Special Leave Petition afresh challenging the main order in case of dismissal of review application. For grant of such liberty in the present IA No.1/15, reliance has been placed on a decision of this Court dated 10.4.2015 in I.A No.3 in SLP(C)No. 25293/2013, in which this Court had modified a similar order dated 05.08.2013, so as to permit the petitioner to assail the main impugned order dated 20.12.2012, as also the order passed on review, in case the petitioner is unsuccessful in the review petition.In the facts and circumstances of the present case, when the leave to file appeal has been granted, we deem it appropriate to modify the order dated 21.11.2014 passed by this Court, to the effect that liberty is granted to assail the order passed by the High Court on 04.09.2014 in a fresh Special Leave Petition, in case Review application is dismissed.Though, reliance has been placed by the respondent on a decision of this Court in Sandhya Educational Societys case (supra), wherein it has been laid down that once Special Leave Petition has been withdrawn with liberty to file review application, without taking permission to file the Special Leave Petition afresh, main order cannot be questioned again. We need not enter into the question, as this question is referred to a larger Bench in "Khoday Distilleries Ltd. and Ors. v. Mahadeshwara S.S.K. Ltd., 2013(1) R.C.R.(Civil) 287 : (2012) 12 SCC 291.   However, as we have modified the order, the appeals are maintainable.It is apparent from the aforesaid Rule 11(i)(c) and the Office Memorandum dated 30.05.1995, which has been referred to by the learned counsel for the parties, that financial sanction is necessary for creation of posts. In the instant case, it was not the case set up by the respondent that the financial sanction was already granted before the matter was placed before CCS. The High Court has also not found that financial sanction was granted before the matter was placed before CCS. In our opinion, posts can be said to be created finally when Presidents approval was conveyed vide communications dated 22.05.2009 and 23.06.2009 as provided under Article 77 of the Constitution of India. Be that as it may, even if we assume for the sake of argument that sanction had been granted by the Finance Ministry before the matter was placed in CCS and CCS had finally created posts on 16.02.2009 that would not tilt the matter in the instant case in favour of Respondent No.1 for the reasons to be mentioned hereafter.Firstly, it is not the case of the change of any Rules and where appointment procedure had been initiated by issuance of an advertisement and Rules had been amended subsequently or the procedure for promotion had been delayed, this Court has taken the view that the Rules which were in existence, when the vacancies arose, should be taken into consideration until and unless otherwise specifically so decided. In the case of Y.V. Rangaiah (Supra), there was a delay in preparing list for promotion which was required to be prepared by September, 1976. It was prepared in 1977 after amendment of Rules for promotion. By virtue of amendments, original rule for considering LDCs with UDCs for promotion was deleted. The amendment affected promotional chances of the LDCs, Hence, the vacancies which arose in 1976 were ordered to be filled from eligible persons including LDCs. Situation in the instant case is different, there is no amendment made in the Rules for promotion and only ACR criteria has been changed. Thus, ratio of Y.V. Rangaiah (supra) is not attracted. In our considered opinion, the posts in question had been created only in the year 2009. They were not in existence earlier. There was no delay in calling DPC. Thus, determinative date for applicability of procedure would be the date of DPC. The CGO 02/09 which was issued after exercise of 4 years was in force. Thus, the High Court has committed grave error in law in holding that the CGO 02/05 should be applied and complied with, particularly, when the date of DPC was 23.07.2009. It is the date of DPC which matters in the instant case and the procedure which is prevalent on the date on which the DPC is held is applicable. Thus, the provisions contained in CGO 02/09 would hold the field and DPC was rightly held as per instructions relating to ACRs contained in CGO 02/09.Ministry has mentioned in notings of 17.06.2009 that matter of promotion was submitted for approval of the Defence Secretary and Defence Secretary has earlier approved the filling up of all posts as per instruction 02/05. However, in our opinion, CGO 02/09 did not require approval of MoD. It was not sent for the purpose of approval but it was sent only for the purposes ofis apparent from the aforesaid delegation of powers that Ministry of Defence has to be consulted only when there are financial implications while issuing CGO, not otherwise.Since there was financial implications for the creation of posts, administrative clearance had already been granted and by virtue of grant of sanction by the President of India, posts came to be created and before that, matter must have travelled to Ministry of Finance. The order dated 17.08.2001 is with respect to Delegation of Administrative Powers putting the rider of consultation of MoD(finance), when matter has financial implication and not with respect to issuance of CGO 02/09, pertaining to ACR criteria, which had no financial implication for issuance of which DGICG was fully competent under the Rules of 1986. Thus, it was not necessary for the CGO, not having financial implications, to travel for approval to the Ministry of Defencethat as it may, the fact remains that earlier when the Secretary of MoD considered the matter on 16.04.2009, the CGO 02/09 was not promulgated. Once the CGO 02/09 has been promulgated, it would hold the field, not the order dated 16.04.2009 of Secretary, MoD. The promotion is required to be considered as per law not as per the decision of administrative authorities. The DPC which was held in the month of July, 2009, in our opinion, was required to be held as per CGO 02/09 and it was rightly so held.Coming to another unsavory comment made by the High Court with respect to violation of CGO 04/05 and notings of Secretary with respect to review of ACR forThe High Court has clearly misread not only the notings made by the Secretary, MoD, but also the provisions of para 54 of the CGO orderbare reading of the aforesaid provisions in para 54 makes it clear that if the Reviewing Officer has not observed an officer for a minimum period of three months, review can be done by previous officer provided he is still in service. It is not disputed in the instant case that, Shri R.F. Contractor, the previous incumbent, who was holding the post of DGICG, had retired on 30.11.2008 and on 01.12.2008 the present incumbent came to hold the said post who had not completed 90 days. It is apparent, in case previous incumbent had retired or is otherwise not available to review report a notation remarks to that effect, has to be made by the RO in the relevant column to enable the present RO to review such report. No doubt, such notation was required to be made so as to reflect the competence of officer to write review as general permission was sought in this case to write review of ACRs of large number of officers that amounted to notation for purpose of reviewing the ACRs. Admittedly, previous incumbent had retired. He was not available to make the said notation in the relevant column and not making the notation in the relevant column by present incumbent would be inconsequential since, admittedly, the previous incumbent had retired and thus was not available to write the review. Obviously, the review could be undertaken in the facts of the case by DGICG before completion of 90 days mandatory period. Thus, the officer DGICG, who had not completed 90 days, was competent as apparent from the notings ofis apparent from the aforesaid note dated 22.04.2009, that review of the officers, who has not observed, may be completed as per provisions of 04/05, i.e., in accordance with para 54 of the CGO 04/05.The High Court has misread the decision of the MoD and the order of Secretary. In fact, the Secretary, Ministry of Defence has also said in the notings that ACRs be completed as per CGO 04/05. CGO 04/05 authorized the current incumbent the DGICG to write the ACRs. Thus, the High Court has gravely erred in law in holding otherwise by misreading the notings as well as the provisions of para 54 of the CGO 04/05. There was no question of violation of the direction issued by the Secretary, MoD. CGO 04/05 was final, which hold field, and the action was in terms of the order as well as in accordance with said notings of Secretary, MoD.Thus, in our opinion, the High Court ought not to have cast aspersions on the bonafide of DGICG, particularly, when he has reviewed not only the ACR of the concerned officer but 36 officers of the DIG rank and of 155 officers of Commandant rank. The observations made by the High Court about unauthorized exercise of power were totally uncalledPande had only three reports, i.e., for the years 2005, 2006 and 2008 in the rank of DIG. Thus, all the 5 officers of the respondent batch were considered in accordance with para 7 CGOThe High Court has misdirected itself in attributing uncalled for malafide, behind promulgation of the CGO 02/09. As already held, it was in order to bring the same in tune with the instructions issued by the Department of Personnel and Training. Earlier too, similar provision as that of para 7 of CGO 02/09 existed in CGO 14/02 before issuance of CGO 02/05. The process was initiated for issuance of CGO 02/09 w.e.f. 2005, it was not that all of a sudden the exercise had been undertaken in order to oblige any particular officer. We find no merit in the appeal preferred by DIG K.P.S.