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

2. A Writ Petition (C) No.10726/2009 was filed on 06.08.2009 before the High Court of Delhi by DIG K.P.S.No.1, posted in the Coast Guard services. He had questioned the recommendations of the Departmental Promotion Committee (in short DPC) for promotion to the rank of Inspector General, held on 23.07.2009, as illegal, arbitrary and conducted on the basis of selection policy, which was framed a month prior to the holding of the Selection Board. The respondent had also questioned the action of the Director General (Coast Guard) in endorsing the Annual Confidential Report (in short ACR) of Respondent No.1, for the period from 01.02.2008 to 31.01.2009, in spite of not having observed the performance of the incumbent for a mandatory period of 90 days, as contained in the policy in Coast Guard Order (in short CGO) No.04/2005. Prayer was also made to call for the ACRs for the aforesaid period and to quash the entry made for the yearPrayer was also made to quash CGO No.02/09.The facts in short, indicate that K.P.S. Raghuvanshi joined the Indian Coast Guard services in January, 1984. He claimed to have rendered unblemished service and had an outstanding career, as apparent from the fact that he was promoted to the various ranks as per the ACR gradings. The Respondent No.1 was promoted to the rank of DIG in 2005 and was holding the rank of Deputy Inspector General (DIG for short) at the relevant time when he was due for consideration for promotion to the post of Inspector General (IG for short). There was creation of four posts in the rank of IG.It was averred that Respondent No.1 was placed first in the merit list during the DPC held in the year 2005 for promotion to the rank of DIG. He is an alumni of Naval War College (USA). He was the first Coast Guard Officer to be selected for this course, based on outstanding performance and his positionother officers in the panel. The respondent was awarded the "Tatrakshak Medal" by the President of India on 15th August, 2007 for meritorious service and was also commended on two separate occasions by the Director for his exceptional work. In May, 2006, he was the first in merit among DIGs and was shortlisted for National Command College (NCC) Korea. Subsequently, in September, 2008 he once again stood first in merit amongst the 5th Batch officers for National Defence College (NDC) Course, New Delhi.It was further averred that on 16.02.2009, in the wake of 26.11.2008 attack on Mumbai, the Cabinet Committee on Security (CCS for short) approved one post of Additional Director General, three posts of IG (GD) and one post of IG (Tech) and communicated the same to the Coast Guard Headquarters through the letter of Ministry of Defence dated 24.02.2009. Since new posts were sanctioned, holding of DPC was necessitated to fill the posts. The relevant selection year commenced from 1st April to 31st March of the following year. A proposal dated 01.04.2009 for conducting DPC on 18.04.2009 for one post of IG (GD) with restricted zone of consideration i.e. 4th batch of General Duty, was forwarded to the Ministry of Defence (MoD for short). The said proposal was rejected by the MoD at the level of Directoron 02.04.2009. Again on 13.04.2009, a proposal for composition of DPC, reiterating the earlier proposal of 01.04.2009, along with two amendments to CGO 02/2005 was forwarded to CGHQ to MoD. The MoD rejected the proposal again on 16.04.2009, but this time, at the level of Defence Secretary. The MoD once again directed CGHQ to follow the CGO 02/05 and to conduct the DPC expeditiously. Following is the extract of the aforesaid minutes dateddated 15th April,th April,th April,may ask DGCG to go ahead with the DPC based on existing guidelines on the subject. This may also be done. It was further averred in the petition that the IG had noted on09 that the post be filled as per the existing provisions of amended Coast Guard (Seniority & Promotion) Rules, 1987 and CGO 02/05. It was further averred that in accordance with the provisions existing in the amended Coast Guard Rules, 1987 and CGO 02/05, all vacancies existing at the time of DPC are to be considered. Vide order dated 27.04.2009 of Deputy Director General (DDG for short), it was further observed that restricting the release of vacancies for IG, promotion may amount to deviation from the said provisions and lead to legal complications at a later stage.Thus, the directive of Ministry of Defence was clearly understood by the respondent that the posts were required to be filled as per CGO 02/05 not as per CGO 02/09 which was approved on 19.6.2009 i.e. one month prior to the scheduled date of DPC (23.07.2009). It was submitted that DPC was conducted erroneously with selective change of ACR criteria to manipulate merit. The ACR of respondent was reviewed for the period 2008 to 2009 by Vice Admiral Anil Chopra, the then Director General, despite not having observed the officer for a mandatory period of 90 days, as prescribed in para 54 of CGO 04/05.It appears that the MoD and the Cabinet Committee on Security (CCS) took a decision of 16.02.2009, in its meeting for creation of one post of additional Director General Coast Guard in Higher Administrative Grade, one post of Commander, Coast Guard Region (North West) in the rank of IG and three posts of Deputy Director General (Acquisition, Technical and Coastal Security) in the rank of IG in Coast Guard Headquarters.As apparent from the letter of Joint Secretary, MoD, dated 24.02.2009, written to the DG Coast Guard, it was submitted by the respondent before the High Court that final sanction for the posts was approved and granted by the CCS in February, 2009. Thus, these posts were required to be filled up in accordance with the CGO 02/05, not in accordance with the order, promulgating CGO 02/09. The case set up by the respondent with respect to the remarks made by the reviewing officer, i.e., Director General Coast Guard, was that he took into consideration the event that took place prior to the period to which ACR was made, i.e., from 01.02.2008 to 31.01.2009. It was not upon him to write an ACR for the relevant period, as the officer had not completed 90 days under him.Pande, the CGO 02/09 came to be issued. The DPC could not have been held as per the changed criteria of zone for consideration of ACR introduced by CGO 02/09.The case set up by the department before the High Court was that the case of the respondent was considered for promotion to the rank of IG, he was not found fit. The CGO No.02/05 pertaining to composition of promotion Board, release of vacancies, increase of number of looks, criteria for consideration of ACR etc. and after due deliberations, the CGO 02/09 was promulgated superseding CGO 02/05. The CGO 02/09 approved by the DGICG was forwarded to the Ministry by the Department on 18.5.2009, for conducting the DPC for the four posts of IG in July, 2009, as per the revised guidelines notified vide CGO 02/09 and the Joint Secretary also signed it on 19.06.2009.It was further averred that ACR criteria was revised in accordance with Government instructions (DOP&T Guidelines), which provides that ACR for last five years including ACRs in the lower rank, if necessary, be taken into consideration for the purpose of promotion. Hence, to bring promotion guidelines in consonance with it CGO 02/09 was promulgated by revising the provisions of CGO 02/05, with a view to enhance promotion prospects, morale and efficiency of Coast Guard Officers and it was not done malafidely, as averred by the respondent. Process was initiated in 2005. The Promotion Board, convened on 23.07.2009, was conducted as per the revised guidelines contained in CGO 02/09.It was further contended that guidelines for the endorsements in ACRs on Coast Guard Officers are contained in CGO 04/05. As the Director General had retired, it was open to Director General Coast Guard to write the ACRs, without observing the performance of the officer for 90 days, as provided in para 54 of CGO 04/05.The Rules of 1987 were taken into consideration and para 7 of the CGO 02/09 provided that suitability for promotion shall be based on the relevant service records and performances, as reflected in the last report in the current rank, if they are not available, the 5 ACRs including previous rank ACRs, were to be considered. Notation was not required to be made, as Director General had sought permission to write the ACRs of large number of officers, as predecessor Director General had retired.The respondent No. 2 reviewed the ACRs of 36 officers in the rank of Deputy Inspector General, including Respondent No.1 and 155 officers of the rank of Commandant for the period 2008, to all of whom Respondent No.2 had not observed for a minimum period of three months and the review made, had not been questioned by any other officer, except by Respondent No.1. Representation dated 02.05.2011 made by the respondent with respect to grading given by the Reviewing Officer, had been rejected by the MoD on 23.03.2012.Pandes ACR for 2003 in the rank of Commandant, were considered in accordance with para 7 of CGO 02/09. Respondent No.2 had maintained the numerical grading of his predecessor. It was also denied that the pen picture contents referring to the incidents are outside the purview, being contrary to para 27(e) of CGO 04/05.Respondent No.1 had been subsequently considered twice for promotion to the rank of IG in the promotion Boards, convened in October, 2011 and December, 2012, but was not found fit for promotion by those DPCs. Till date, no officer from a junior Batch than that of the respondent No.1, has been promoted to IG.The High Court by the impugned judgment and order held that the existing ACR criteria as set out in CGO 02/05 was amended clandestinely and approval of the Joint Secretary (Navy), MoD, was obtained on 19.06.2009. Since the proposal was originally rejected at the level of Defence Secretary on 16.04.2009, the approval granted by the Joint Secretary on 19.06.2009 was without any authority. As such, it was illegal to conduct the DPC on the basis of the ACRs criterion reflected in the context of promulgation of CGO 02/09 superseding CGO 02/05.The High Court has also held that the vacancies for the 4 posts of Inspector General had occurred prior to the amendment of CGO 02/05 and the said posts were created and sanctioned on 16.02.2009. Reliance has been placed on a decision reported as Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284.   The High Court has opined that the normal vacancy, which had arisen, would be governed by the unamended Rules and not by the amended Rules. The Government had taken the decision not to fill the vacancies under the old Rules. The various notings made by the MoD were referred to by the High Court. The High Court has opined that promotions were made without due deliberations with the concerned Ministry. Apart from that, the High Court has also observed that as three months had not been completed by Respondent No.2, the DGICG was not competent to write the ACR and to act as Reviewing officer. The prayer, which was made to write ACRs by new incumbent, was categorically refused by MoD vide communication dated 23.04.2009.The High Court also observed that the respondent has succeeded in establishing his case of selective change of ACR criteria to manipulate merit by the appellants, smacking of arbitrariness. The respondent has also succeeded in establishing that the review of his ACR for the period ofby the then DGICG, was in violation of Para 27(e) and Para 54 of CGO 04/05, which resulted in his being punished twice for the same incident. The vacancies which had occurred for the post of IG on 06.02.2009 were governed by the unamended Rules, i.e., CGO 02/05 read with Rule 7 (3) of the Coast Guard (Seniority and Promotion) Rules, 1987, as amended in 2004. The High Court held that the ACR review of the respondent by the appellant, in violation of para 54 of CGO 04/05 read with para 55 (fvd), para 38 and para 27(e) of the said CGO, was both illegal and arbitrary and deserves to be ignored. The High Court has ordered promotion to the rank of IG shall be made on "Relative Merit Based Selection" within the eligible batch of officers. Review DPC should be held on the basis of ACR criteria as per CGO 02/05. If Respondent No.1 is selected for promotion, he shall be promoted on the same date, when three other persons were promoted, as per recommendation of DPC dated 23.07.2009. The respondent would be entitled to all notional benefits including security. It would be open to the Department to create supernumerary post to accommodate the respondent.Initially, the order dated 04.09.2014 passed by the High Court of Delhi, was questioned by filing SLP(C)No.30380/2014, which was withdrawn with liberty to file review petition before High Court. It was clarified that this Court had not considered the merits of the petition.The review application was preferred, which had been dismissed by the High Court vide order dated 19.12.2014. Thereafter, the present Civil Appeals have been filed, questioning the decisions of the main petition as well as the review petition.An application being I.A. No.1/2015 in SLP (C)No.30380/2014, was filed for modification of Courts order dated 21.11.2014. This Court granted leave to file appeal registered as Civil Appealand kept alive I.A.No.1/15 to be decided at the time of final hearing of the present civil appeals.

Reasoning:
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.