Daljit Singh Grewal vs State Of Punjab & Ors

The brief facts of the case are mentioned below :-

On 30.06.2001, the appellant became eligible for promotion to the post of Battalion Commander after completion of 8 years of service as per Punjab Home Guard Class-I Rules, 1988. Rule 8(2) of the Rules provides that the District Commanders having 8 years of experience are entitled to promotion to the post of Battalion Commander on the basis of seniority-cum-merit and that no person could claim promotion on the basis of seniority alone.

Meanwhile, the representation of the appellant was rejected by respondent No. 4 by way of a non-speaking order on 08.08.2001.

Two more representations were made by the appellant on 31.03.2003 and 09.04.2003 to respondent No. 4, but no action was taken.

On 16.02.2004, the appellant issued a legal notice to the respondent Nos. 4 and 5 for upgrading the ACR for the period 2001-2002 from ‘Average’ to ‘Excellent’.

The appellant made a complaint on 11.03.2004 to the respondent no.4 seeking that action be taken against the persons who were tampering with the ACR’s to harm the service career of the appellant.

Meanwhile, the appellant was supplied certain documents under the RTI Act which had material effect on the merits of his case. The appellant filed SLP (C) No. 14964 of 2004 against the order of the High Court dated 02.04.2004. This Court granted leave in the said SLP and the same was converted into Civil Appeal No. 5192 of 2004 and was directed to be heard along with the case of Balbir Singh Bedi referred to supra. The case was dismissed, but the appellant was granted liberty by this Court to file a Review Petition before the High Court.

The promotion of the appellant to the post of Battalion Commander from the post of District Commandant is governed by Rule 8(1)(2)(i) of the Rules. The aforesaid rule contemplates that 75% of the promotional posts of the Battalion Commander be filled up by promotion amongst the Battalion second in command. The legal requirement for promotion to the post of Battalion Commander is that the claimant should have been working as a District Commandant for a period of 8 years and the appointment to the said promotional post shall be made by the Competent Authority on seniority-cum- merit basis. No person shall be entitled to claim promotion on the basis of seniority alone. As per the Punjab State Government Instructions issued on 06.09.2001, certain guidelines have been laid down for DPC to consider the cases of promotion to the post of Class-I and Class-II namely, group ‘A’ and ‘B’ posts. As per the said guidelines, an eligible candidate is promoted on the basis of the seniority-cum-merit criteria, where merit is determined on the basis of benchmark awarded to the various aspects contained in the ACR of the officer, wherein marks are awarded against such entries made in the ACRs of the officers concerned for the relevant period.

Further, as per the records obtained by the appellant from the respondents under the RTI Act at the time of his claim for promotion to the post of Battalion Commander was first considered, his ACRs from year 1996 were considered. The Instructions dated 29.12.2000 would be applicable prospectively to the ACRs of the appellant for relevant periods which were prepared after those Instructions were issued. According to the Instructions, officers obtaining 0-14 marks out of a total of 20 marks would be graded over all ‘Good’. Thus, the appellant was entitled to promotion as he had been awarded 10 marks as per the proceedings of DPC.

Further, the adverse remarks for the period 1999-2000 were conveyed to appellant vide communication dated 28.06.2000 by the D.G.P-cum- Commandant General. The representations dated 18.08.2000 and 25.08.2000 made by the appellant against the same were submitted to respondent No. 4. The said representation was rejected on 07.05.2001. The appellant had challenged the same by filing Civil Suit No. 70 of 2001, wherein the respondent No. 4 was impleaded as defendant No. 3. The civil suit was decreed on 15.03.2002 in favour of the appellant. The said judgment and decree passed in favour of the appellant has not been implemented by the respondent Nos. 4 and 5, despite having attained finality, which clearly reflects the fact that the respondent No.4 was not fair in considering him for promotion to the post of Battalion Commander as provided under Rule 8(2) of the Rules. According to the Rules, the appointment to the promotional post shall be made on seniority-cum-merit basis. As per the ACRs placed on record, the appellant has fulfilled the aforesaid requirement of seniority-cum-merit by securing 14 marks, as per the Instructions in relation to all aspects entered in the ACR. The strong reliance placed upon the adverse remarks made by the respondent No.4, who has made the same without assigning any reasons, has resulted in the appellant being denied of the promotional benefit, even though the order of the respondent No. 4 was set aside by the judgment and decree in Civil Suit no. 70 of 2001. The action of respondent No. 4 in denying the promotional benefit to the appellant is tainted with malafides. It can further be observed from the record that it was respondent no.7 who had filed the reply on behalf of all the respondents in the writ petition proceedings before the High Court. It is important to note at this stage that respondent No. 7 happens to be an officer junior to the appellant, who was promoted to the post in question. The non-filing of written statement by respondent No. 4 traversing the allegations of malafide against him proves the malafide intention on part of the respondent No. 4. Therefore, there was no justification for the respondent No. 4 in denying the promotional benefit to the post of Battalion Commander to the appellant and. The learned senior counsel on behalf of the appellant has rightly placed reliance on the case of Sukhdev Singh (supra), wherein this Court has lucidly laid down the law pertaining to communication of ACR. It was held that if the ACR of the officer concerned is to be used for the purpose of denying promotion, then all such ACRs were required to be communicated to him, to enable him to make a representation against his adverse entries made in the ACRs.

Therefore, the order of denial of promotion to the appellant, which has been affirmed by the High Court in its judgment and order passed in the Writ Petition and Review Application is liable to be set aside.

For the reasons stated supra, we pass the following order:-